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GEORGE HOLLAND, ESQ. (CSB No. 216735)
HOLLAND LAW OFFICES
1970 Broadway, Suite 1030
Oakland, Ca. 94612
Telephone: 510-465-4100
Facsimile: 510-465-4747
Attorney for Plaintiff
BRAD G. MILLER
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SUPERIOR COURT OF CALIFORNIA
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COUNTY OF ORANGE, CENTRAL JUSTICE CENTER
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BRAD G. MILLER
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Plaintiff,
Vs.
DEUTSCHE BANK NATIONAL
TRUST, ONE WEST BANK,
INDYMAC BANK, COUNTY OF
ORANGE, REGIONAL TRUSTEE
SERVICES INC.,
DOES 1-50, INCLUSIVE,
Defendants,
-----------------------------------------DEUTSCHE BANK NATIONAL
TRUST
Plaintiff,
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Vs.
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BRAD G. MILLER
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Defendant
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No.: ___________________________
UD CASE No: 30-2010-00353264-CLUD-WJC
NOTICE OF MOTION AND MOTION
TO CONSOLIDATE CASES;
AND
EX PARTE APPLICATION FOR
ORDER SHORTENING TIME FOR
MOTION TO CONSOLIDATE
SUPERIOR COURT CASE –LIMITED
CIVIL- NO. UD CASE No.: 30-201000353264
WITH SUPERIOR COURT CASE –
UNLIMITED CIVIL –
NO. Fraud Case No.:
_______________________________
AND TRO
MEMORANDUM OF POINTS AND
AUTHORITIES
Date: June ________, 2010
Time: ________________
Dept. _________________
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The Real Property address is 18212 Newmoon Lane, Huntington Beach, California
91648. The Real Property APN # 159-233-14 Orange County, CA.
Depart: C15
UD CASE No: NNN
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MOTION TO CONSOLIDATE CASES AND REQUEST FOR STAY
________________________________________________________________
NOTICE OF MOTION AND MOTION
TO CONSOLIDATE CASES.
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TO THE HONORABLE JUDGE OF THE SUPERIOR COURT AND ALL OTHER
PARTIES IN INTEREST:
NOTICE IS HEREBY GIVEN that on June ___________, 2010 at 1:30pm, in
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Department ___________ of the Superior Court of California, County of Orange
located at SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE 700 West
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Civic Center Drive Santa Ana, CA 92702 Plaintiff BRAD G. MILLER moved the court
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for an Order transferring the above-entitled matter to the Superior Court Unlimited Civil
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Plaintiff respectfully applies to the court for a Motion to Consolidate Cases and
an ex parte application for order to consolidate the two cases. This application is made
on the grounds that such an order is necessary to effectuate the correct venue and
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provide the due process of the law for the Plaintiff per statutes and to maintain and
protect his interest in her property.
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This application is made pursuant to the moving papers attached hereto, the
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complaint, all documents in the court file, and any oral argument that may be given at
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the hearing on the matter.
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Dated: June _______, 2010
____________________________
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George Holland Jr.
Holland Law Firm
Attorney for
Brad G. Miller
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MOTION TO CONSOLIDATE CASES AND REQUEST FOR STAY
________________________________________________________________
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GEORGE HOLLAND, ESQ. (CSB No. 216735)
HOLLAND LAW OFFICES
1970 Broadway, Suite 1030
Oakland, Ca. 94612
Telephone: 510-465-4100
Facsimile: 510-465-4747
Attorney for Plaintiff
BRAD G. MILLER
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SUPERIOR COURT OF CALIFORNIA
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COUNTY OF ORANGE, CENTRAL JUSTICE CENTER
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BRAD G. MILLER
Plaintiff,
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Vs.
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DEUTSCHE BANK NATIONAL
TRUST, ONE WEST BANK,
INDYMAC BANK, COUNTYOF
ORANGE CALIFORNIA
DOES 1-50, INCLUSIVE,
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Defendants,
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DEUTSCHE BANK NATIONAL
TRUST
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Plaintiff,
Vs.
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UD CASE No: 30-2010-00353264-CLUD-CJC
NOTICE OF MOTION AND
MOTION TO CONSOLIDATE
CASES.
AND
EX PARTE APPLICATION FOR
ORDER SHORTENING TIME FOR
MOTION TO CONSOLIDATE
SUPERIOR COURT CASE –
LIMITED CIVIL- NO. UD CASE
No.: 30-2010-00353264
WITH SUPERIOR COURT CASE –
UNLIMITED CIVIL –
NO. Fraud Case No.: 30-2010______________ AND TRO
AND
MEMORANDUM OF POINTS AND
AUTHORITIES
DATE: JUNE _________, 2010
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BRAD G. MILLER
Time:
Time: __________
1:30 PM
Department:
Depart: C15 ______________,
Defendant
Judge:___________________
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D
MOTION TO CONSOLIDATE CASES AND REQUEST FOR STAY
________________________________________________________________
Dept:_____________
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TO THE HONORABLE JUDGE OF THE SUPERIOR COURT AND ALL OTHER
PARTIES IN INTEREST:
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BRAD G. MILLER respectfully applies to the court for a Motion to Consolidate Cases
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and an ex parte application to consolidate the two cases and a stay- temporary
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restraining order to maintain the status quo pending the outcome. This application is
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made on the grounds that such an order is necessary to effectuate the correct venue
and provide the due process of the law for Miller per statutes and to protect his interest
in his property.
The crux of the pending action is the determination of title which is essential to
execute unlawful detainer and eviction. No evidence can be produced by DEUTSCHE
BANK NATIONAL TRUST to establish a prima facie unlawful detainer case. The matter
was taken in secret without service or notice to the defendant.
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This emergency motion is necessary because the harm Miller seeks to halt is
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imminent. A temporary restraining order prohibiting and restraining DEUTSCHE BANK
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NATIONAL TRUST is needed to prevent BRAD G. MILLER from an illegal summary
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motion judgment, illegal writ of possession and an illegal sheriff’s eviction and illegal
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claim of title and being forcibly removed from his home without notice or opportunity to
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present competent evidence before the court due lack of due process from improper
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service or lack of service.
The main grounds for the appeal of the limited court case on appeal are that the
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limited court case on appeal on denial of due process proceeding in limited court lacks
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subject matter jurisdiction, the evidence does not support the judgment, thus
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DEUTSCHE BANK NATIONAL TITLE has no standing to bring this unlawful detainer.
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The counsel for plaintiff DEUTSHCE BANK NATIONAL TRUST in the limited case is
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MOTION TO CONSOLIDATE CASES AND REQUEST FOR STAY
________________________________________________________________
committing a fraud on the court. Further the limited subject matter court was induced to
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violate its oath and commit fraud against the people of California and the defendant if it
allows such fraudulent judgment to stand. DEUTSCHE BANK NATIONAL TRUST will
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not be prejudiced because it had notice of the illegal claim and title dispute and has
recourse against the
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Illegal sale. This motion to consolidate the cases is made on the grounds of the lack of
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due process in limited matter is that Miller was never served either personally or by
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substitute service with a notice of Summary judgment motion and hearing regarding any
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unlawful detainer proceedings in the above entitled matter.
MILLER hereby files the within application to consolidate the cases and obtain
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a temporary restraining order against DEUTSCHE BANK NATIONAL TRUST to stay
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them from taking possession and transferring any interest in the Subject Property
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pending the outcome of the complaint
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MEMORANDUM OF POINTS AND AUTHORITIES
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INTRODUCTION
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The Real Property address is 18212 Newmoon Lane, Huntington Beach, CA 92648.
The Real Property APN #159-233-14 Orange County, California (“Subject Property”).
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An unlawful detainer action case # 30-2010-00353264-CL-UD-WJC was filed on
March 12, 2010 in Limited Civil court.
On June ________, 2010 MILLER filed a complaint in UNLIMITED CIVIL court
against the Unlawful Detainer Plaintiff DEUTSCHE BANK NATIONAL TRUST with
regards to the above real property. Additional defendants were listed in the
UNLIMITED CIVIL complaint for Wrongful Foreclosure, Violation of Financial Code
4973 (Predatory Lending), Conversion, Violation of Civil Code Section 2923.5, and
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MOTION TO CONSOLIDATE CASES AND REQUEST FOR STAY
________________________________________________________________
Wrongful Eviction.
The unlimited case is complex, with Brad G. Miller (949) 292-6009 complaining
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against defendants DEUTSCHE BANK NATIONAL TRUST, ONE WEST BANK,
INDYMAC BANK, COUNTY OF ORANGE CALIFORNIA, REGIONAL TRUSTEE
SERVICES INC., DOES 1-50, inclusive.
APPLICATION FOR EX PARTE RELIEF IS NECESSARY
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Why Ex Parte Relief Is Necessary: This Application is made on the grounds that
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the requested injunctive Order is necessary to avoid substantial, continuing and
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irreparable harm to defendant who will lose possession of his PROPERTY if a summary
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motion, writ of possession and a sheriff’s eviction is allowed to occur, a direct result of
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violation of constitutional rights to due process and misleading the court to obtain a false
default unlawful detainer judgment. The facts are set forth in the Declaration of Brad G.
Miller, the pleading in this matter, and/or will be presented at the time of hearing and/or
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trial.
Unless immediately restrained as requested in this application to maintain the
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status quo, Brad G. Miller will suffer irreparable harm by loss of his property and
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displacement by forcible sheriff's eviction. Further, the cost to the court on error later
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corrected to the favor of DEUTSCHE BANK NATIONAL TRUST is not as great as the
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cost to the court later to correct to Miller’s favor. This court has a mandatory duty to
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STAY the judgment for lack of due process violation of foreclosure .
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The issue underlying these suits is a title dispute and wrongful eviction from real
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property; a remedy should Miller be unsuccessful will not be lost. However,
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DEUTSCHE BANK NATIONAL TRUST has presented no evidence that it has acquired
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possession with the right to evict since it has falsely alleged valid service on defendants
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and obtained a default judgment in a unlawful detainer with violations of Miller’s due
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process. BRAD G. MILLER was denied due process by the lack of proper service and
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MOTION TO CONSOLIDATE CASES AND REQUEST FOR STAY
________________________________________________________________
proof of the primary issue of superior title is disputed. It is unlikely that DEUTSCHE
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BANK NATIONAL TRUST will be placed in much jeopardy, given the current nature of
the real estate market. Miller believes that DEUTSCHE BANK NATIONAL TRUST
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intentionally took advantage of their standing as allegedly credible firm in the community
to attempt to wrongfully evict Miller without proper service from his unique property.
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Judgment hearing and motions to enjoin the any eviction pending to a consolidation
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with the unlimited matter to allow the parties to set forth their respective claims. This
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Based upon legal and equitable considerations, this Court must stay the Default
entire case should be vacated and dismissed in the appeal or set aside for trial because
there was no service of the summons, complaint , no service of the motion for summary
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judgment, and no notice of the hearing date for the motion.
Miller seeks an emergency order to quash the writ of possession in order to stay
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the unlawful detainer eviction resulting from these illegal proceedings to preserve the
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status quo and prevent irreparable harm by loss of his family home by immediately
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pending wrongful eviction.
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When jurisdiction is challenged, the party claiming that the court has jurisdiction
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has the legal burden to prove that jurisdiction was conferred upon the court through the
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proper procedure. Otherwise, the court is without jurisdiction. Whenever a party denies
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that the court has subject-matter jurisdiction, it becomes the duty and the burden of the
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party claiming that the court has subject matter jurisdiction to provide evidence from
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the record of the case that the court holds subject-matter jurisdiction. Bindell v City of
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Harvey 571 B,E, 2d 1017
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Until DEUTSCHE BANK NATIONAL TRUST and other interested parties submit
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uncontroversial evidence of subject matter jurisdiction to the court that the court has
subject matter jurisdiction the court has proceeded without subject matter jurisdiction
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MOTION TO CONSOLIDATE CASES AND REQUEST FOR STAY
________________________________________________________________
and in violation of due process, any default judgment motions and hearing must not
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allow the Subject Property to be liquidated where it violates due process rights on
appeal and the core issues are pending in the unlimited court.
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In this instance no one was properly served. Further more, DEUTSCHE BANK
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NATIONAL TRUST lacks standing to pursue their unlawful detainer complaint.
DEUTSCHE BANK NATIONAL TRUST purported deed is disputed. The court must
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quash the summons and complaint and void the judgment and revoke the writ of
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possession. DEUTSCHE BANK NATIONAL TRUST may not claim a default judgment
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without showing lawful proper proof of service and notice to Miller. Miller was not
served summons and complaint and had no notice of the hearing. See attached
declaration of BRAD G. MILLER. The unlawful detainer court proceeded without
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subject matter jurisdiction and without personal jurisdiction and without due process
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notice of the hearing. The overlapping issues are the same in both cases and must be
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consolidated and simultaneously determined.
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POINTS AND AUTHORITIES
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SUPERIOR COURT-LIMITED CIVIL IS NOT THE CORRECT VENUE
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WHERE AS HERE, THE DAMAGES EXCEED THE
JURISDICTIONAL LIMITS OF THE COURT
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In Orange County Superior Court Case No. 30-2010-___________
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Plaintiff Brad G. Miller is seeking monetary damages arising from the fraudulent &
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wrongful foreclosure of his personal residence valued at approximately $ 750,000.00.
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Additionally, plaintiff is seeking other compensatory and punitive damages for fraud,
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federal truth in lending violations, predatory lending, civil conspiracy, PONZI, breach of
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MOTION TO CONSOLIDATE CASES AND REQUEST FOR STAY
________________________________________________________________
fiduciary duty, unjust enrichment, violations of business and professions code §17200,
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usury, slander of title, violations of home ownership equity protection act, civil RICO,
violations of CA CIV CODE §1572, violations of CA CIV CODE §1788.17 and other
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violations against all defendants including DEUTSCHE BANK NATIONAL TRUST, the
Plaintiff in the Unlawful Detainer action.
The Fourth District Court of Appeal stated in Asuncion v. Superior Court of the
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City of San Diego (1980) 108 Cal.App.3d 141, 144, 166 Cal. Rptr. 306, 308, in pertinent
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part:
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It is generally recognized the summary unlawful detainer action is not a suitable
vehicle to try complicated ownership issues involving assertions of fraud and deceptive
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practices such as the Asuncions allege here.
Here, Defendant Brad G. Miller contends that on or about October 13, 2005, loan
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fraud was committed by the predatory subprime ‘lender’ IndyMac Bank in the refinance
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transaction on the property at 18212 Newmoon Lane, Huntington Beach, California
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92648. The amount of the refinance was $ 804,000.00 Brad G. Miller had originally
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purchased the subject property on or about March 20th 2003.
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"Fraud" and "dishonesty" are closely synonymous, and "fraud" may consist in
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misrepresentation or concealment of material facts or statement of fact made with the
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consciousness of its falsity. Fort v. Board of Medical Quality Assurance of State of Cal.
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(1982) 136 Cal.App.3d 12, 185 Cal.Rptr. 836.
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The law is well settled that 'representations made to one person with intention
that they will be repeated to another and acted upon by him and which are repeated and
acted upon to his injury gives the person so acting the same right to relief as if the
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representations had been made to him directly. No reason appears why this same rule
should not be applicable to nondisclosures as well as misrepresentations. Massei v.
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MOTION TO CONSOLIDATE CASES AND REQUEST FOR STAY
________________________________________________________________
Lettunich (1967) 56 Cal.Rptr. 232, 235.
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A duty of disclosure in a fraud context is one which may exist when one party to
a transaction has sole knowledge or access to material facts and knows that such facts
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are not known to or reasonably discoverable by the other party. Goodman v. Kennedy
(1976) 18 Cal.3d 335, 134 Cal.Rptr. 375.
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A duty to disclose arises, even in absence of a fiduciary or confidential
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relationship, if material facts are known only to defendant and defendant knows that
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plaintiff does not know or cannot reasonably discover undisclosed facts. Karoutas v.
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HomeFed Bank (1991) 232 Cal.App.3d 767, 283 Cal.Rptr. 809.
In Asuncion supra., the Fourth District Court of Appeal further stated in pertinent
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part at page 146: As we see it, after the eviction is transferred to the superior court, a
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number of procedural devices exist to facilitate accommodating the eviction action with
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the fraud action which the Asuncions separately filed. A possibility, which we
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understand is frequently utilized in other counties, is for the superior court to stay the
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eviction proceedings until trial of the fraud action, based on the authority of Code of Civil
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Procedure section 526 which permits a preliminary injunction to preserve the status quo
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on such grounds as irreparable injury, multiplicity of legal actions, or unconscionable
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relative hardship. We hold only, the Asuncions are entitled to defend this eviction action
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based on the claims of fraud and related causes which they have asserted, and
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accordingly the action necessarily exceeds the jurisdiction of the municipal court and
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cannot be tried there.
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In Asuncion supra., the Fourth District Court of Appeal further stated in pertinent
part at page 146: As we see it, after the eviction is transferred to the superior court, a
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number of procedural devices exist to facilitate accommodating the eviction action with
the fraud action which the Asuncions separately filed. A possibility, which we
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MOTION TO CONSOLIDATE CASES AND REQUEST FOR STAY
________________________________________________________________
understand is frequently utilized in other counties, is for the superior court to stay the
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eviction proceedings until trial of the fraud action, based on the authority of Code of Civil
Procedure section 526 which permits a preliminary injunction to preserve the status quo
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on such grounds as irreparable injury, multiplicity of legal actions, or unconscionable
relative hardship. We hold only, the Asuncions are entitled to defend this eviction action
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based on the claims of fraud and related causes which they have asserted, and
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accordingly the action necessarily exceeds the jurisdiction of the municipal court and
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cannot be tried there.
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In the Asuncion supra. matter, the Asuncions in 1971 obtained a purchase
money mortgage on the property of $19,800 with monthly payments of $149. In 1978
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they executed a second trust deed on an obligation of $3,500, with payments of $64.84,
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they missed two payments on the second trust deed in June and July 1979. The
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beneficiary of the second trust deed filed a notice of default to commence foreclosure
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on July 12. On July 19 representatives of Financial contacted the Asuncions. The
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Asuncions signed papers on that date which they were told were necessary to prevent
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foreclosure on their home. The legal effect of those papers was, among other things, to
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grant title to the property to Financial, subject to a 45-day option to reacquire the
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property by executing in financial's favor a $12,000 promissory note at 18 percent "or
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more" payable in three years. financial in return promised to retire a furniture company
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debt in the sum of $1,126.36 and to pay the second trust deed of approximately $3,500.
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Financial recorded the grant deed immediately after its execution on July 19. On
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October 15, 1979, it commenced the unlawful detainer action alleging expiration of the
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option on September 3, 1979, resulting in ownership of the property in Financial.
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The net effect of the parties' dealings is, financial has loaned the Asuncions
about $4,800 for 45 days, in return for real property having equity in excess of $20,000.
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MOTION TO CONSOLIDATE CASES AND REQUEST FOR STAY
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Plaintiff alleged that such a loan may be usurious, as well as fraudulent and in
violation of a number of laws, both state and federal. (confusing, which case is this guy
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arguing??)
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The amount in controversy exceeds the jurisdictional limits of the Superior
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Court-Limited Civil of $25,000, in that Plaintiff is seeking recovery of damages
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exceeding $25,000, and the imposition of punitive damages & other damages in a
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substantially greater amount.
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California Code of Civil Procedure section 86 provides in pertinent part as
follows:
(a) Each municipal and justice court has original jurisdiction of civil cases
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and proceedings as follows:
(1) In all cases at law in which the demand, exclusive of interest, or the
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value of the property in controversy amounts to twenty-five thousand dollars ($25,000)
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or less, except cases which involve the legality of any tax, impost, assessment, toll, or
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municipal fine, except the courts have jurisdiction in actions to enforce payment of
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delinquent unsecured personal property taxes if the legality of the tax is not contested
by the defendant.
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Thus, the Superior Court – Limited Civil lacks subject matter jurisdiction,
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where as here, the amount is controversy exceeds $25,000, to wit, $900,000.00 in
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quantifiable compensatory damages.
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A court has no jurisdiction to hear or determine a case where type of
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proceeding or amount in controversy is beyond jurisdiction defined for that particular
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court by statute or constitutional provision. Workmen's Compensation Appeals Bd. v.
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Small Claims Court of Alameda County (1973) 35 Cal.App.3d 643, 111 Cal.Rptr. 6.
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MOTION TO CONSOLIDATE CASES AND REQUEST FOR STAY
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Therefore, the Superior Court – Limited Civil is devoid of jurisdiction to
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continue and the matter must be transferred to the Superior Court – Unlimited Civil.
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THE SUPERIOR COURT – LIMITED CIVIL LACKS JURISDICTION TO
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RENDER A JUDGMENT AS TO THE LAWFULNESS
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OF CLAIMS TO TITLE BY DEFENDANT
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Plaintiff Brad G. Miler contends that if the Superior Court – Limited Civil lacks
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jurisdiction given the amount in controversy that is, the sum of $804,000.00, plus other
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compensatory and punitive damages, then the court lacks jurisdiction over any issues
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therein.
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As set forth in the Asuncion supra. matter, the traditional approach in these
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matter, is given the allegations of fraud being made by Plaintiff Brad G. Miller, to
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transfer the matter to Superior Court – UNLIMITED CIVIL and for the higher court to
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impose a stay of the unlawful detainer action pending resolution of the fraud issues.
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Lacking jurisdiction over the present issues by virtue of the amount in controversy, the
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court must order the instant matter be transferred to Superior Court.
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THE COURT MAY ORDER STAY OF ACTION PENDING COORDINATION OF
CONSOLIDATION OF THESE CASES
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"Pending any determination of whether coordination is appropriate, the judge making
that determination may stay any action being considered for, or affecting an action
being considered for, coordination."
C.C.P. Section 404.5.
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Since the unlawful detainer matter has currently has not been decided, this court
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must preserve the status quo of the parties by ordering a stay of the pending sheriff
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eviction.
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If Moser’s home is not protected these matters will sacrifice his families and
the interests of justice in due process and preservation of rights.
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MOTION TO CONSOLIDATE CASES AND REQUEST FOR STAY
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4.
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A MOTION TO CONSOLIDATE ACTIONS ARE FAVORED BY THE COURTS FOR
JUDICIAL ECONOMY AND CONSISTENCY OF JUDGMENTS.
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A.
Authority for Motion:
"When actions involving a common question of law or fact are pending before the court,
it may order a joint hearing or trial of any or all the matters in issue in the actions; it may
order all the actions consolidated and it may make such orders concerning proceedings
therein as may tend to avoid unnecessary costs or delay." C.C.P. Section 1048(a).
B.
Key Procedural Requirements
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"(a) [Requirements of Motion] A notice of motion to consolidate must list all named
parties in each case, the names of those who have appeared, and the names of their
respective attorneys of record. The notice of motion must contain the captions of all the
cases sought to be consolidated, with the lowest numbered case listed first. The motion
to consolidate shall be deemed a single motion for the purpose of determining the
appropriate filing fee. Once copy of the notice of motion must be filed in each case
sought to be consolidated. Points and authorities, declarations, and other supporting
papers shall be filed only in the lowest numbered case. The motion must be served on
all attorneys of record and all non-represented parties in all of the cases sought to be
consolidated and a proof of service filed as part of the motion.
(b) [Lead Case] Unless otherwise ordered in granting the motion to consolidate, the
lowest numbered case in the consolidated case shall be the lead case.
(c) [Order] An order granting or denying all or part of a motion to consolidate shall be
filed in each case sought to be consolidated. If the motion is granted for all purposes
including trail, any subsequent document shall be filed only in the lead case.
(d) [Caption and Case Number] All documents filed in the consolidated case shall
include the caption and case number of the lead case, followed by the case numbers of
all of the other consolidated cases."
C.R.C. Rule 367.
C, PROOF OF THE ISSUES IS COMMON TO BOTH ACTIONS.
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Where the actions at issue present essentially the same or overlapping issues, they
should be consolidated and disposed of as a single proceeding. Spector v. Superior
Court (1961) 55 Cal.2d 839, 844
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The Court’s purpose underlying consolidation of actions is to promote trial
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MOTION TO CONSOLIDATE CASES AND REQUEST FOR STAY
________________________________________________________________
convenience and economy by avoiding duplication of procedure, particularly in the proof
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of issues common to both actions. See McClure v. Donovan (1949) 33 Cal.2d. 717, 722-
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23.
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“W]hen civil actions sharing a common question of fact or law are pending in a superior
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court and a limited court of the same county, the superior court may, on the motion of
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any party supported by affidavit stating facts showing that the actions meet the
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standards specified in Section 404.1, order transfer from the limited or justice court and
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consolidation of the actions in the superior court." C.C.P. Section 404.
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The matters before this court are complex and originate in the due process and
deception perpetrated against Brad G. Miller.
As a result these matters should be
consolidated in one court. 5.
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CONCLUSION
For all pleadings filed in this matter, the memorandum of points and authorities,
the Declaration of Brad G. Miller and other and further oral and documentary evidence
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to be adduced at the hearing of this matter, Plaintiff Brad G. Miller respectfully requests
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that the court grant the motion to consolidate and transfer the unlawful detainer matter
to the Superior Court – Unlimited Civil Division.
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In addition, the court should order a stay on the eviction of the Miller because the
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court may stay an action pending coordination as necessary to preserve the status quo
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pending the appeal of the lack of due process in the unlawful detainer matter.
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Dated: June ________, 2010
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BY ______________________
George Holland Jr.
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MOTION TO CONSOLIDATE CASES AND REQUEST FOR STAY
________________________________________________________________
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Holland Law Firm
Attorney for Plaintiff
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MOTION TO CONSOLIDATE CASES AND REQUEST FOR STAY
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DECLARATION OF BRAD G. MILLER
1. I am a named defendant and moving party in the within matter. The facts set
forth herein are within my personal knowledge and, if called upon to do so, I could and
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would competently testify thereto under oath. This declaration is made in support of my
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ex parte application to quash unlawful detainer action, , any writ of execution and vacate
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a motion summary judgment hearing to stop the taking possession of my property by a
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pending sheriff’s eviction following unlawful detainer action. I am representing myself
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in the unlawful detainer action and the CIVIL UNLIMITED Complaint case I retained an
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attorney . The matters in these cases are complex and should be consolidated to be
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heard by one court because the illegal issues are overlapping.. The unlimited case
complaint is filed in my true name of Brad G. Miller.
2. The following events led to a violation of my due process in the unlawful
detainer matter in the limited jurisdiction court judgment.
3.
Three Day Notice to Quit was posted on my front door on Monday,
March 8th, 2010, Monday between 2:45 – 2:55 p.m.
4.
On March 16th, 2010, I received from the Superior Court of California to:
Brad G. Miller and All Occupants “Notice That You Have Been Sued” Limited CivilUnlawful Detainer.
5.
On March 23, 2010 according to Court filings, Mr. Doug V. Pham with
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Jackson & Associates files Application and Order to Serve Summons By Posting and
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receives approval on March 25, 2010 from one Glenn Mondo – Judicial Officer for the
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Westminster Superior Court under false and misleading information fraudulently
obtained by Jackson & Associates which were unknown to me.
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6.
On April 2nd, 2010, I have Posted on my Front Door that Notice of Motion
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MOTION TO CONSOLIDATE CASES AND REQUEST FOR STAY
________________________________________________________________
and Hearing on Motion Summary Judgment with Declaration of Amy E. Starrett and
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Memorandum of Points in Support Judgment in Support for a Hearing date of April 30 th,
2010 at 8;30 AM in Department W-10 without serving me any Compliant whatsoever.
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Miller was never served Unlawful Detainer Summons from Jackson & Associates
contracted Unlawful Detainer Service firm DDS Legal Support Company located at 2900
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Bristol Street, Costa Mesa, California 92626 by a Registered Unlawful Detainer
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Assistant by the name of Linelle Northcott License # 2164 in the County of Orange. Ms.
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Northcott declares Under Penalty of Perjury that she personally made for (4) attempts to
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serve notice at my residence at 18212 Newmoon Lane, Huntington Beach, California
92648 on 1) March 15, 2010 at 7:01 PM, on 2) March 16, 2010 at 1:19 PM, on 3) March
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17, 2010 at 7:41 AM and on 4) March 18, 2010 at 2:28 PM. All four alleged attempts
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never occurred and Linelle Northcott never came upon my property not to the front door
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as she has stated for Proof of Service. See Exhibit “A” Attached hereto.
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On April 2, 2010 around 2:55 PM someone ( according to court filings –
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Linette Northcott ) posts and on my front door a Notice of Motion and Hearing on Motion
for Summary Judgment; Declaration of Amy E. Starrett and Memorandum of Points and
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Authorities in Support of Motion for a Hearing date of April 28, 2010 at 8:30 AM in
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Department W-10 and she mails out a First Class Mailing of the same on April 5th, 2010
8.
On April 7th, 2010, I filed an ANSWER to the Unlawful Detainer
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Complaint and filed for a Jury Trail also at that time. The Answer to the Motion
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Summary Judgment was filed by Miller, however the Request for a Jury Trial was
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declined due to for lack of information.
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9.
On April 15th, 2010 the Jury Trial was set for May 4th, 2010.
10.
On April 23, 2010 an illegal Request for Entry of Default was entered into
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MOTION TO CONSOLIDATE CASES AND REQUEST FOR STAY
________________________________________________________________
court records by Jackson & Associates and stamped by a Margaret Chen Deputy for
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Clerk of the Court Mr. Alan Carlson.
11.
Jackson & Associates replies on April 26th, 2010 and Miller receives
Reply on April 29th, 2010. See Exhibit “C” hereto.
12.
Miller appears on Friday April 28th, 2010 and Motion Summary Hearing
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is extended by Miller filing for Bankruptcy Chapter 13 to Friday June 11 th, 2010 with
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both parties waiving notice and Miller’s Jury Trial is vacated by the Commissioner of the
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Court without Miller’s without cause and not with Miller’s consent. See Exhibit “D”
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hereto for Minute Order from Commissioner.
13. On June 1, 2010, the bankruptcy court heard a motion from DEUTSCHE
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BANK NATIONAL TRUST for relief from stay which was granted. I no longer have the
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bankruptcy protection from the motion summary motion hearing, a writ of possession
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and a sheriff’s eviction which is immediately pending.
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14. I respectfully request that the court void the judgment to allow me my due
process rights. I was not personally served, nor was I served by substitute service, nor
did I receive a mailed copy of the Summons and Complaint. I went to the Court to
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obtain the complete documents and filed my answer. Subsequently, I was never served
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with the notice of the summary judgment hearing and moving papers. This matter was
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temporarily stayed by the filing of my bankruptcy but the federal bankruptcy stay was
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lifted on June 1,, 2010, so there is an immediate pending eviction.
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15.
When I realized that I may have been the victim of a fraudulent foreclosure
on my home, I promptly filed an unlimited action in the Orange County Superior Court.
Then I was caught up in this unlawful detainer and plaintiff violations of my due process
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rights to service and notice and robbed of an proper opportunity to defend my home. I
sought protection of my rights in a federal bankruptcy case but my protection of the
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bankruptcy stay was lifted by motion of plaintiffs in the federal bankruptcy court on June
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1, , 2010. I respectfully seek a temporary restraining order and injunction against
plaintiff DEUTSCHE BANK NATIONAL TRUST pending resolution of the issues set
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forth.
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This ex parte application is being faxed to all parties to advise that any
opposition to this ex parte request must be immediately filed with the Court.
I declare under penalty of perjury under the laws of the state of California that the
foregoing is true and correct. Executed on the _________ day of June 2010 at
Huntington Beach, California.
_______________________________
BRAD G. MILLER
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________________________________________________________________
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GEORGE HOLLAND, ESQ. (CSB No. 216735)
HOLLAND LAW OFFICES
1970 Broadway Suite 1030
Oakland, California 94612
Telephone: 510-465-4100
Facsimile: 510-465-4747
Attorney for Plaintiff
BRAD G. MILLER
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SUPERIOR COURT OF CALIFORNIA
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COUNTY OF ORANGE, CENTRAL JUSTICE CENTER
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BRAD G. MILLER
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Plaintiff,
Vs.
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DEUTSCHE BANK NATIONAL
TRUST, ONE WEST BANK,
INDYMAC BANK, COUNTY OF
ORANGE CALIFORNIA,
REGIONAL TRUSTEE SERVICES
INC.,, DOES 1-50, INCLUSIVE,
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Defendants,
----------------------------------------------DEUTSCHE BANK NATIONAL
TRUST
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Plaintiff,
Case No.: 30-2010-____________
UD CASE No: 30-2010-00353264CL-UD-WJC
PROPOSED ORDER RE MOTION
TO CONSOLIDATE CASES.
AND
EX PARTE APPLICATION FOR
ORDER SHORTENING TIME FOR
MOTION TO CONSOLIDATE
SUPERIOR COURT CASE –
LIMITED CIVIL- NO. UD CASE
No.: 30-2010-00339076
WITH SUPERIOR COURT CASE –
UNLIMITED CIVIL –
NO. Fraud Case No.: 30-201000353263 AND TRO
AND STAY OF EVICTION
Vs.
Date:____________
BRAD G. MILLER
Time:_____________
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﴿
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﴿
Defendant
Depart: C15
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MOTION TO CONSOLIDATE CASES AND D
REQUEST FOR STAY
________________________________________________________________
Dept:_____________
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NOTICE IS HEREBY GIVEN that on June ________, 2010 at ______________,
in Department __________, Miller moved the court for an order transferring the unlawful
detainer matter in the Superior Court Limited Civil to the Unlimited Civil Case in the
Orange County Superior Court.
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___________________appeared on behalf of Brad G. Miller
___________________ appeared on behalf of ______________________________
___________________appeared on behalf of ______________________________
___________________appeared on behalf of ______________________________
___________________appeared on behalf of ______________________________
___________________appeared on behalf of ______________________________
___________________appeared on behalf of ______________________________
___________________appeared on behalf of ______________________________
___________________appeared on behalf of ______________________________
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The court having reviewed the moving papers and good cause appearing therein
granted the motion to consolidate the _______________.
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IT IS THEREFORE ORDERED that the unlawful detainer matter in the limited
civil Court is transferred to the Superior Court Unlimited Case.
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IT IS FURTHER ORDERED _________________________________________
______________________________________________________________________
______________________________________________________________________
Dated: June __________, 2010
______________________________
Judge of the Superior Court
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MOTION TO CONSOLIDATE CASES AND REQUEST FOR STAY
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GEORGE HOLLAND, ESQ. (CSB No. 216735)
HOLLAND LAW OFFICES
1970 Broadway Suite 1030
Oakland, California 94612
Telephone: 510-465-4100
Facsimile: 510-465-4747
Attorney for Plaintiff
BRAD G. MILLER
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SUPERIOR COURT OF CALIFORNIA
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COUNTY OF ORANGE, CENTRAL JUSTICE CENTER
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DEUTSCHE BANK NATIONAL
TRUST
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Plaintiff,
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Vs.
BRAD G. MILLER: and DOES 1 to 6,
inclusive
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Defendants.
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-------------------------------------------------
UD CASE No: 30-2010-00335264CL-UD-WJC
NOTICE RE NOTICE
BRAD G. MILLER
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Plaintiff,
Vs.
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DEUTSCHE BANK NATIONAL
TRUST, ONE WEST BANK,
INDYMAC BANK, COUNTY OF
ORANGE CALIFORNIA, REGIONAL
TRUSTEE SERVICES INC.,
DOES 1-50, INCLUSIVE,
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Defendants.
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DECLARATION OF JENNIFER MOSER
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I, declare that:
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1. I am not a party to the within action. I have personal knowledge of the
facts set forth herein and, if called as a witness, I would testify under oath to said facts.
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I make this declaration re ex parte notice given of hearing of MILLER's EX PARTE
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MOTION TO CONSOLIDATE AND MOTION TO STAY Unlawful Detainer Judgment
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Hearing to prevent plaintiff from wrongfully taking possession by a Writ of Possession
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to obtain a Sheriff’s eviction and preserve the status quo .
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2. On June __________ 2010, I gave ex parte notice to DEUTSCHE BANK
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NATIONAL TRUST by calling the their legal department and giving the receptionist ex
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parte notice that BRAD G. MILLER will appear in the above entitled court on June
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______ 2010, at ____________. or as soon thereafter as the court can hear his ex
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parte application to consolidate the unlawful detainer case with his case in the unlimited
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court and a stay to prevent DEUTSCHE BANK NATIONAL TRUST from wrongful
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Unlawful Detainer Judgment Hearing to prevent plaintiff from wrongfully taking
possession by a Writ of Possession to obtain a Sheriff’s eviction sheriff’ eviction or their
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agents from taking possession of her real property and home located at 18212
Newmoon Lane, Huntington Beach, California 92648.
Contact information for counsel for DEUTSCHE BANK NATIONAL TRUST is at
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the follows: Mailing address:____________________________________________
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Fax Number (
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) __________________________,
telephone number (
)_______________________.
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3. I called the One West Bank at_____________________
and gave notice that the court would hear Miller’s application to consolidate the limited
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and unlimited cases.
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4. I called the IndyMac Bank and gave notice to the last known servicer at
__________ and gave notice that the court would hear Moser’s application to
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consolidate the limited and unlimited cases.
5. I called the County of Orange California and gave notice that the court would
hear Miller’s application to consolidate the limited and unlimited cases.
6. I called Regional Trustee Services Inc. and gave notice that the court would
hear Miller’s application to consolidate the limited and unlimited cases.
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I declare under penalty of perjury under the laws of the State of California that
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the foregoing is true and correct.
Executed on May 17, 2010 at Tustin, California.
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______________________________
Declarant Jennifer Moser
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PROOF OF SERVICE
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STATE OF CALIFORNIA, COUNTY OF ORANGE
I am employed in the County of Orange, State of California. I am over the age of
18 and not a party to the within action. My address is
________________________.
On June ________________ , 2010 , I served the foregoing document described
as:
DEFENDANT BRAD G. MILLER'S NOTICE OF MOTION AND MOTION TO
CONSOLIDATE AND STAY EVICTION; MEMORANDUM OF POINTS AND
AUTHORITIES; SUPPORTING DECLARATION OF BRAD G. MILLER;
DECLARATION RE NOTICE; PROPOSED ORDER.
on the interested parties in this action by sending a copy addressed to:
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Name of Attorney and His Address:
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(BY US MAIL) I caused such envelope with postage fully prepaid to be
placed in the United States mail at Tustin, California.
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(BY PERSONAL SERVICE) I caused such envelope to be delivered by
hand to the addressee.
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__x__
(BY FAX) to fax number:
______________
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(STATE) I declare under penalty of perjury under the laws of the State of
California that the above is true and correct.
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Executed on June ___________, 2010 at ________________, California.
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_______________________________________
Declarant
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