Guliex: Silenced for applying the Rule of Law

By Neil Garfield

The Justices of the Fifth District Court and courts especially in California have been interpreting procedural rules, laws of evidence, statutory and common law differently in foreclosure cases than they do in other cases where the issues are identical as to ownership and authority to collect a debt. The Guliex decision, in this case, returns us to the rule of law in California, and hence the nation, to the extent courts follow the Courts in California. The decision inherently conflicts with other decisions in California, even if the decision is not facially apparent.

 

In this case, the court merely stated the law as it always was before the foreclosure crisis ( and still is in all other cases). It provides great clarity and its effect will be to reduce the volume of foreclosures generally and wrongful foreclosures especially. The decision, in this case, changes the application of the law from what has been recently enunciated in other decisions. It places the burden where it belongs — on the foreclosing party such that it cannot achieve a forced sale by nonjudicial means in a case that where it would have lost in a judicial proceeding.

Hence the decision would bar the unconstitutional application of nonjudicial legislative frameworks. It essentially reduces the use of assumptions and presumptions of facts that are not true and are within the sole knowledge and control of the party claiming to be authorized to foreclose.

The Guliex decision levels the playing field significantly by requiring actual proof rather than presumed proof. Without the publication of this decision courts in the Fifth district will continue to be at liberty to disregard the rule of law and continue to be creative in finding a basis for strangers to transactions to prevail in enforcing those transactions.

Hence the need for publication. This court has already seen countless cases of divergent rulings that undermine the simple rules of law enunciated in this decision. The publication of this decision will end at least some of the diversity of rulings and provide a stable basis upon which attorneys can advise their clients.
The public interest in the Guliex decision has been evident by allowing the clerk whose directions to both lawyers and pro se litigants and other interested parties has been inadvertently inconsistent as to the method and timing of the requests for publication.  Also, by initially closing the period to submit Requests for Publication by six days, those individuals who supported the decision to publish were denied the opportunity to do so.

I can assure the Court that in addition to the notices and letters that have been tendered to the Clerk, some of which seem to have been rejected, I have received hundreds of emails and comments, mostly in California, from both attorneys and pro litigants who all want this decision to be published.

The strength and relevance of the opinion is likely why the clerk played games to diminish the number of Requests to Publish received.

17 Responses

  1. @ Everyone (Part III)

    Below are the remaining requests for publication as of Monday, August 7, all of which have a “Received” status.

    08/07/2017 Received: Request for Publication from Shelly Eubia (No POS)

    08/07/2017 Received: Request for Publication from Charles Knott (No POS)

    08/07/2017 Received: Request for Publication from E. Deveaux (No POS)

    08/07/2017 Received: Request for Publication from Fabio Garcia (No POS)

    08/07/2017 Received: Request for Publication from Melly Garcia (No POS)

    08/07/2017 Received: Request for Publication from Fabia Mauricio Garcia (No POS)

    08/07/2017 Order denying publication filed. The multiple requests for publication of the opinion filed in the above entitled matter from July 31, 2017 through and including August 4, 2017, are hereby denied. The opinion does not establish a new rule of law, nor does it meet any of the other criteria set forth in California Rules of Court, rule 8.1105(c). In compliance with California Rules of Court, rule 8.1120(b), the Clerk/Administrator of this court shall transmit copies of the requests for publication, the opinion, and this order to the Supreme Court.

  2. “On July 12, 2017 the California Fifth Appellate Court issued an unpublished opinion in the case of Guliex v. Pennymac Holdings Inc. This is a case that discusses chain of title in relation to a case of foreclosure. The opinion has a very detailed discussion of chain of title and points out the broken links in the chain. Because the opinion discusses this issue in such detail many who have been affected by foreclosure of mortgage problems find it a compelling decision.”

    http://mortgageflimflam.com/2017/07/27/california-appellate-court-violates-rules-of-court/

  3. OOPS!

    “…since [Friday]…”

  4. @ Everyone (Part II)

    Below are the remaining requests for publication since, most of which has a “Received” status.

    08/03/2017 Received: Request for Publication from atty James Sturdevant

    08/03/2017 Filed request to publish opinion. From Jeanne Mount

    08/03/2017 Filed request to publish opinion. From Yuri Lee

    08/03/2017 Filed request to publish opinion. From Ikho Kang

    08/03/2017 Received: Request for Publication from Dune Mayes (No POS)

    08/03/2017 Received: Request for Publication from Debra Stanley (No POS)

    08/03/2017 Received: Request for Publication from Frel N (No POS)

    08/03/2017 Received: Request for Publication from Dutch Maynard (No POS)

    08/03/2017 Received: Request for Publication from Donsil Harris (No POS)

    08/03/2017 Received: Request for Publication from Brenda Brooks (No POS)

    08/03/2017 Received: Request for Publication from DAndre Harris (No POS)

    08/03/2017 Received: Request for Publication from Yvonne Brooks (No POS)

    08/03/2017 Received: Request for Publication from Barbara Stennes Cox (No POS)

    08/03/2017 Received: Request for Publication from Janet Lewis Crosman (No POS)

    08/03/2017 Received: Request for Publication from Helen Tjaden (No POS)

    08/03/2017 Received: Request for Publication from Elizabeth Evelyn (No POS)

    08/03/2017 Received: Request for Publication from Richard Tjaden (No POS)

    08/03/2017 Received: Request for Publication from Lucas Pine (No POS)

    08/03/2017 Received: Request for Publication from Bobby Mason (No POS)

    08/03/2017 Received: Request for Publication from Linda Hamilton (No POS)

    08/03/2017 Received: Request for Publication from Steve Mason (No POS)

    08/04/2017 Received: Request for Publication from William Sims (No POS)

    08/04/2017 Received: Request for Publication from AngelicaSantana

    08/04/2017 Received: Request for Publication from Thomas Lee (No POS)

    08/04/2017 Received: Request for Publication from Lynette Esparza (No POS)

  5. @Kalifornia – ‘moniker’ @aol.com Thanks.

  6. @ Papergate

    Honestly, other than the moniker “Papergate”, I have no idea what your name is and whether it is in the list of requests for publication.

    Is there an e-mail address to communicate directly with you — outside of LL comments?

  7. Response from Neil Garfield: Yes it happens all the time. But it raises a potential issue for a claim for modification fraud, fraud in the inducement, TILA, FDCPA, RESPA ETC. Part of this relates to the fact that the modification was in fact a new loan with a new false lender.
    This is not legal advice, but for educational purposes only. Livinglies Moderator.

  8. @Kalifornia – thanks for status – as an official certified legal professional in California and notary, was my request (w/POS) filed or not? Thanks for all your hard work on this project.

  9. Wonderful Marina!
    In ignorance, I never knew that the politics could be played this way, and while there may be deadlines set, I think there ought to be massive public outcry to get things in motion, and if letters and emails from across the country could make a difference, I’d say it’s time to try this for everything that’s every been shushed where logic, reason, the rule of law, the rights of the people, and the good of our nation is at stake. We can all work for this now and be prepared for the next time.

  10. I know my group hand carried 630 letters from foreclosed homeowners requesting Guliex publication to Fresno CA on 08/01/2017 when court opened up at 8 am.

    Marina Yiu ________________________________

  11. @david belanger ,

    I am requesting what you asked about … in my case we have the true note owner and the fake assignment trail… I do not expect to ever get a true and correct answer to discovery ,, and in fact I expect no answer at all. The plaintiff is already logically checkmated based on submissions in the first FC suit and subsequent findings of fact by superior courts… I’ll let you know when the time comes if I am not bound by a gag order…

  12. Reblogged this on California freelance paralegal and commented:
    That is very unfortunate that the Court did not publish this opinion. It is true that California Rule of Court 8.1115(a) states that an unpublished opinion cannot be cited. However it is also true that this conflicts with Evidence Code section 452(d)(1) which states that judicial notice may be taken as to the “[r]ecords of any court of this state.” One California Court of Appeal recognized the conflict with Rule 8.1115(a), stating that “[a]lthough [a] Court of Appeal opinion . . . is not published, we may take judicial notice thereof as a court record pursuant to Evidence Code section 452, subdivision (d)(1).” Gilbert v. Master Washer & Stamping Co. (2001) 87 Cal. App. 4th 212, 218, n. 14 (taking judicial notice of an unpublished opinion of the California Court of Appeal to aid in the analysis of a subsequent appeal therefrom).

    Another issue is that in deciding the conflict between Rules of Court, Rule 8.1115(a) and Evidence Code section 452(d)(1), the California Constitution suggests that the statutory evidence code must take precedence.”

    Visit this link for more information: http://www.rhlaw.com/blog/citing-unpublished-opinions-the-conflict-between-the-no-citation-rule-and-judicial-notice/

    Specifically, California Constitution Article VI, § 6(d), which provides the authority of the Judicial Council to promulgate the Rules of Court, states that the “council shall . . . adopt rules for court administration, practice and procedure, and perform other functions prescribed by statute. The rules adopted shall not be inconsistent with statute.” (Emphasis added.)

  13. @ EVERYONE

    In Guliex, there are ~21 “Filed” requests for publication.

    All other requests were merely processed as “Received”; apparently because of the lack of a proof of service

    According to the Court’s own rule there is supposed to be 20 days to file requests for publication of an opinion, which would extrapolate to August 1.

    Here, however, following the sole “Filed” request by “Attorney Glen Moss obo Moss & Murphy” on July 25 the docket indicates:

    “07/27/2017 Order denying publication filed. The request for publication of the opinion filed in the above entitled action on July 12, 2017, is denied. The opinion does not establish a new rule of law, nor does it meet any of the other criteria set forth in California Rules of Court, rule 8.1105(c). In compliance with California Rules of Court, rule 8.1120(b), the Clerk/Administrator of this court shall transmit copies of the request for publication, the opinion, and this order to the Supreme Court.”

    Thus, there are 20 additional timely “Filed” requests to “transmit copies of…to the Supreme Court.”

    QUESTION(s):

    Does anyone know of or if there is a procedural mechanism to compel the inclusion of the other 20 additional timely “Filed” requests to “transmit copies of…to the Supreme Court”?

    Would ground exist for a writ?

  14. Will it help to continue to submit requests? Would it help to write representatives?

  15. @ EVERYONE

    [BELOW COMPARES THE SEQUENCE & ORDER GRANTING PUBLICATION of: Glaski v. Bank of America et al.]

    07/31/2013 Opinion filed. (Signed Unpublished) The judgment of dismissal is reversed. The trial court is directed to vacate its order sustaining the general demurrer and to enter a new order overruling that demurrer as to the third, fourth, fifth, eighth, and ninth causes of action. Glaski’s request for judicial notice filed on September 25, 2012, is denied. Glaski shall recover his costs on appeal; Franson, Wiseman, Kane; 29 pages.
    opinion ordered published on 8/8/13

    08/05/2013 Filed request to publish opinion. Atty Antognini obo applt Glaski (JAA)

    08/05/2013 Filed request to publish opinion. atty Didak (JAA)

    08/08/2013 Order granting publication filed. As the nonpublished opinion filed on July 31, 2013, in the above entitled matter hereby meets the standards for publication specified in the California Rules of Court, rule 8.1105(c), it is ordered that the opinion be certified for publication in the Official Reports. (JAA)

    08/08/2013 Received: request for publication submitted by atty Freshman, however pos does not include all parties ; moot since publication granted

    08/08/2013 Received: request for publication submitted by atty Perry, however pos does not include all parties; moot since publication granted

    08/09/2013 Received: Request for Publication by Robert H. Rhoades. Publication granted 8/8/13.

    08/09/2013 Received: Request for Publication by Rumio Sato. Publication granted 8/8/13.

    08/09/2013 Received: Request for Publication by James Macklin. Publication granted 8/8/13.

    08/09/2013 Received: Rquest for Publication by Rick Ensminger. Publication granted 8/8/13.

    08/09/2013 Received: Request for Publication by Attorney Allen J. Cory. Publication granted 8/8/13.

    08/09/2013 Received: Request for Publication by Charles W. Cox. Publication granted 8/8/13.

    08/13/2013 Received: Request for Publication by Elaine Williams, Publication granted 8/8/13.

    08/13/2013 Received: Request for Publication by Erlinda Aniel, Publication granted 8/8/13.

    08/13/2013 Received: Request for Publication by Brenda Reed, Publication granted 8/8/13.

    08/13/2013 Received: Request for Publication by Toni Schultheis, Publication granted 8/8/13.

    08/13/2013 Received: Request for Publication by Thomas Schultheis, Publication granted 8/8/13.

    08/13/2013 Received: Request for Publication by Susan Augustitus, Publication granted 8/8/13.

    08/13/2013 Received: Request for Publication by Daniela Romero, Publication granted 8/8/13.

    08/13/2013 Received: Request for Publication by David Lilly, publication granted 8/8/13.

    08/13/2013 Received: Request for Publication by Debbie Thompson, publication granted 8/8/13.

    08/13/2013 Received: Request for Publication by Jeanine Newman-Reynolds, publication granted 8/8/13.

    08/13/2013 Received: Request for Publication by Keith Schwartz, publication granted 8/8/13.

    08/13/2013 Received: Request for Publication by Fareed Sepehry-Fard, publication granted 8/8/13.

    08/15/2013 Received: Request for Publication by Matthew Pitagora, publication granted 8/8/13.

    08/16/2013 Received: Request for Publication by Rick and Linda Jones, publication granted 8/8/13.

    08/16/2013 Received: Request for Publication by Douglas Hackett, publication granted 8/8/13.

    08/21/2013 Request filed to: for certified copy of order for publication by Atty Bruce Guttman (certified copy mailed this date).

    08/22/2013 Request filed to: for copy of opinion & order granting request for publication by Rob Rhoades (copies mailed this date).

  16. @ EVERYONE

    07/12/2017 Opinion filed. (Signed Unpublished) The judgment is reversed. The trial court is directed to vacate its order sustaining the demurrer without leave to amend and to enter a new order overruling the demurrer. The trial court also is directed to vacate its order granting the motion for summary judgment and to enter a new order denying that motion. Plaintiff Guliex shall recover his costs on appeal. Levy, Hill, Gomes (30 pages)

    07/25/2017 Filed request to publish opinion. Attorney Glen Moss obo Moss & Murphy

    07/27/2017 Order denying publication filed. The request for publication of the opinion filed in the above entitled action on July 12, 2017, is denied. The opinion does not establish a new rule of law, nor does it meet any of the other criteria set forth in California Rules of Court, rule 8.1105(c). In compliance with California Rules of Court, rule 8.1120(b), the Clerk/Administrator of this court shall transmit copies of the request for publication, the opinion, and this order to the Supreme Court.

    07/31/2017 Returned document for non-conformance. Rejected Request for Publication from Margaret Gauthier which was submitted through TrueFiling on 7/29/17 @ 10:45 a.m. as document was not signed and did not indicate who document was from on request (2nd “Request for Publication was submitted on 7/30/17 which had signature of Margaret Gauthier and POS was submitted as a separate document on 7/30/17).

    07/31/2017 Filed request to publish opinion. From Margaret Gauthier

    07/31/2017 Returned document for non-conformance. Request for Publication from atty Patricia Rodriguez rejected through TrueFiling; no POS

    07/31/2017 Filed request to publish opinion. From Monica Graham

    07/31/2017 Voice Mail Message for: Attorney Daniel Mulligan RE: request for publication of opinion received 7/31/17 must be filed thru TrueFiling (see local rule 8) and it needs a proof of service.

    07/31/2017 Telephone conversation with: Pamela Simmons office RE: request for publication received in todays mail must filed thru our electronic filing system – TrueFiling (also see local rule 8 for instruction) and it needs a proof of service.

    07/31/2017 Received: Request for Publication from Mark Luther (document only received as no POS and no phone number listed)

    07/31/2017 Received: Request for Publication from H. Schmidt; David Schmidt Trustee for Schmidt Trust; David Schmidt; H. Schmidt (Schmidt Family Trust); (document received as no POS and no phone number listed)

    07/31/2017 Received: Request for Publication from Leslie Lassberg (document received as no POS or phone number listed)

    07/31/2017 Received: Request for Publication from Fareed-Sepehry-Fard (document received as no POS; no voicemail box set up to leave message regarding POS)

    07/31/2017 Received: Request for Publication from Michael Ennis (document received as no POS and no phone number listed)

    07/31/2017 Received: Request for Publication from Debbie Thompson (document received as no POS)

    07/31/2017 Received: Request for Publication from Arnel and Nancy Ganzon (document received as no POS)

    07/31/2017 Received: Request for Publication from Jeanne Mount (document received as no POS)

    07/31/2017 Received: Request for Publication from Jennifer E. Harjo (document received as no POS and no phone number listed)

    07/31/2017 Received: Request for Publication from Cindy Ikeoka (document received as no POS and no phone number listed)

    07/31/2017 Received: Request for Publication from Pamela King (document received as no POS and no phone number listed)

    07/31/2017 Received: Request for Publication from Eleda Luther (document received as no POS and no phone number listed)

    07/31/2017 Received: Request for Publication from Yuri Imuta Lee (document received as no POS)

    08/01/2017 Returned document for non-conformance. Request for Publication from Reynaldo Marques rejected through TrueFiling; No POS

    08/01/2017 Filed request to publish opinion. From Nina Wouk

    08/01/2017 Filed request to publish opinion. From Eve Sutton

    08/01/2017 Filed request to publish opinion. Atty Maeve Elise Brown

    08/01/2017 Filed request to publish opinion. From Atty Pamela Simmons

    08/01/2017 Filed request to publish opinion. From Daniel Edstrom

    08/01/2017 Received: Request for Publication from Billi and James Watland (No POS)

    08/01/2017 Received: Request for Publication from B. Marques (No POS)

    08/01/2017 Received: Request for Publication from Brian Tracy (No POS)

    08/01/2017 Received: “Request for Publication of Opinion” dated 7/31/17 by Stephanie. *** Received ONLY – Faxed and no POS ***

    08/01/2017 Received: Request for Publication from Russell Abbondandolo (No POS)

    08/01/2017 Received: “Emergency Request for Publication of Opinion” dated 7/30/17 by Elizabeth Tran *** Received ONLY – Faxed and no POS ***

    08/01/2017 Received: Request for Publication from Susan Hammett (No POS)

    08/01/2017 Received: “Request for Publication of Opinion” dated 7/29/17 by Ikho Kang *** Received ONLY – Faxed and no POS ***

    08/01/2017 Received: Request for Publication from Christopher Anderson (No POS)

    08/01/2017 Received: Request for Publication from Sylvia Jones (No POS)

    08/01/2017 Filed request to publish opinion. Atty Didak

    08/01/2017 Received: “Request for Publication of Opinion” (no date, name cutoff, 2 pages) *** Received ONLY – Faxed and no POS ***

    08/01/2017 Filed request to publish opinion. Atty Pamela D. Simmons

    08/01/2017 Filed request to publish opinion. From Trina Patterson and Regena Patterson (2 separate requests)

    08/01/2017 Received: Request for Publication from A. Marf (No POS)

    08/01/2017 Received: Request for Publication from Doris Smith (No POS)

    08/01/2017 Received: “Request for Publication of Opinion” dated 7/30/17 by Bert Thompson *** Received ONLY – No POS ***

    08/01/2017 Received: Request for Publication from Petra Kirkland (No POS)

    08/01/2017 Received: Request for Publication from Janda McBeth (No POS)

    08/01/2017 Received: “Request for Publication of Opinion” by Thomas Herbst *** Received ONLY – No POS ***

    08/01/2017 Received: “Request for Publication of Opinion” dated 7/29/17 by Michael Healey *** Received ONLY – No POS ***

    08/01/2017 Received: Request for Publication from Mariko Heenan (No POS)

    08/01/2017 Filed request to publish opinion. Renee Yamagishi in Pro Per.

    08/01/2017 Filed request to publish opinion. Atty Daniel Mulligan

    08/01/2017 Filed request to publish opinion. From Atty Sitkin and Kevin Stein

    08/01/2017 Filed request to publish opinion. From Kimberly Cromwell

    08/01/2017 Filed request to publish opinion. From William Webster

    08/01/2017 Filed request to publish opinion. Atty Al West

    08/01/2017 Filed request to publish opinion. From Ralph Kanz

    08/01/2017 Filed request to publish opinion. LifeSavers Concepts Association (630 letters from LifeSavers Members with 2 POS attached)

    08/02/2017 Returned document for non-conformance. Request for Publication from atty Charles Marshall rejected through TrueFiling; no POS (Left vmm on 8/1/17 @ 8:44 a.m.)

    08/02/2017 Filed request to publish opinion. From Atty David Seal

    08/02/2017 Received: Request for Publication from Dale Harms

    08/02/2017 Received: Request for Publication from Daniel Edstrom

    08/02/2017 Received: Request for Publication from Teena Colebrook (No POS)

    08/02/2017 Received: Request for Publication from Lance Keating (No POS)

    08/02/2017 Received: Request for Publication from Colleen Slaughter (No POS)

    08/02/2017 Received: Request for Publication from Cindy Ikeoka (No POS)

    08/02/2017 Received: Request for Publication from Mary Ng (No POS)

    08/02/2017 Received: Request for Publication from Peggy Ikeoka (No POS)

    08/02/2017 Received: Request for Publication from John Kacarab (No POS)

    08/02/2017 Received: Request for Publication from Angelica Santana (No POS)

    08/02/2017 Received: Request for Publication from S. Kay (No POS)

    08/02/2017 Received: Request for Publication from Peter Zeppeiro (No POS)

    08/02/2017 Received: Request for Publication from Fred Guliex (No POS)

    08/02/2017 Received: Request for Publication from Diane Weinsheimer (No POS)

    08/02/2017 Received: Request for Publication from Leonard Frank (No POS)

    08/02/2017 Received: Request for Publication from Peter Deralas (No POS)

    08/02/2017 Received: Request for Publication from Howard Harbottle (No POS)

    08/02/2017 Received: Request for Publication from Marion Mosier (No POS)

    08/02/2017 Received: Request for Publication from Edwin Guardia (No POS)

  17. Neil,lending lies team.

    question… has anyone that has settled, on a foreclosure, and has had settlement agreements , signed by the servicer, acting also for the fake trusts, and also signing as trustee, .

    what am asking, is even though a settlement was signed, by the homeowner, as the real party who owns home, then also signed by
    party’s acting/as owners of the debt, and also signing as the alleged fake trust we all know is true.

    is there a way to get a money trail, of the settlement money that was to go to the fake trustee??????

    i would think there should be, and if the money did not get to trustee/trust that was stated in settlement , that would be a great fraud case. ?????

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