CUTLIP V DEUTSCHE

William J. Cutlip619 Union Avenue

Campbell, Ca 95008Pro se

THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA WILLIAM J. CUTLIP

Plaintiff

vs.

DEUTSCHE BANK NATIONAL TRUST COMPANYAS TRUSTEE, UNDER POOLING AND SERVICING

AGREEMENT DATED AS OF JULY 7, 2007 SECURITIZED ASSET BACKED RECEIVABLE LLC MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2007-7 , Benjamin Petiprin Esq. (Ca Bar # 256797) Defendants)

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)CASE No. 15-CV-1345-BLF FIRST AMENDED COMPLAINT FOR INDEPENDENT ACTION IN EQUITY TO VOID JUDGMENT FOR FRAUD ON THE COURT, CANCELATION OF A RECORDED INSTRUMENT. DECLARATORY JUDGMENT, TAKING OF REAL PROPERTY, DEPRIVATION OF A CONSTITUTIONALLY PROTECTED RIGHT. MEMORANDUM OF POINT AND AUTHORITIES IN SUPPORT OF.DATE: TBATIME : TBA

COURTROOM ; 3

JUDGE: Beth-Larson FreemanDEMAND FOR JURY TRIAL. PLAINTIFF DEMANDS A JURY TRIAL ON ALL ISSUES

MEMORANDUM OF POINT AND AUTHORITIES ___________________________________________TO THE HONORABLE Beth-Labson-Freeman DISTRICT COURT JUDGE FOR THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA: 281 South First Street San Jose CA Third Floor Court Room No. 3.This independent action in equity arises out of two cases litigated in the Superior Court of the State of California for the county of Santa Clara. The first case filed is a quiet title and the second case filed is an unlawful detainer action both cases contain the same exact parties concerning the same property and same basic cause of action. Plaintiff has been denied declaratory judgment to determine the respective rights and obligations of the plaintiffs and defendants arising out of written agreement mortgage contract originated between plaintiff and Downey savings on April 19, 2007 of which plaintiff complains defendant has forged and recorded a document purporting authority after the fact to have authority to enforce. This court is asked to determine the respective rights and obligations of the plaintiffs and defendants arising out of the written contract originated between plaintiff and Downey savings on April 19, 2007 the written contract consisting of two parts a written Deed of trust and a written promissory Note neither of which defendant was a party disclosed or undisclosed recorded or unrecorded and has neither alleged or produced evidence it has any right title or interest in the first instance to have enforced the written contract but purports to take action and declare a default for which it has no authority and plaintiff was not in default. Plaintiffs exhibit (e) (f) respectively the written promissory note and the written Deed of trust, absent the fraudulent document and perjured testimony submitted by Deutsche attorney the question of title has not been determined in a state court and there are no preclusions that would prohibit this court from making this determination for the first time. IINTRODUCTIONWilliam Cutlips brings this independent action in equity for among other reason to complain of fraud upon the unlawful detainer court and seeks this court equitable relief under Title 28, U.S.C., 1655,. To set aside a judgment for fraud upon the court, relief from operation of judgment is to be liberally construed to carry out the purpose of avoiding enforcement of erroneous judgments. The action to set aside a judgment in which the losing party has been fraudulently prevented from presenting a defense is in the general nature of a proceeding the district court can rightfully take cognizance under its equity powers. Marshall v. Holmes 12 141 U.S. 589 12 Ct. 62: (1891). To justify setting aside a decree for fraud, the proof of the ultimate fact, to wit is that the decree was obtained by fraud." Toledo Scale Co. v. Computing Scale Co., Id. at 421. Throckmorton 98 U.S. 61 (1878) The need for equitable relief is clear, not remote or speculative.Abidor, 990 F. Supp. 2d at 272 Marshal V. Holmes , 141 141 U.S. 589 (1891) IIATTORNEYS PERJURED TESTIMONY AND, FORGED DOCUMENT In Throckmorton the court discussed that an officer of the court submitting perjured testimony and forged documents is extrinsic fraud. In Marshal a forged document was used to obtain judgment. In Hazel-Atlas Glass v. Hartford, (1944) officials and attorneys had carried out the fraud and the judgment was set-aside.

In this instant action the criteria to set aside a judgment established in the three leading cases are met, in addition to the criteria set out in these leading cases is the fact that the fraud was not only the courts basis for judgment but the perjured testimony and forged document submitted and verified by an officer of the court was material to the court acquiring jurisdiction.

Motion for equitable relief in the form of an independent action in equity, as provided for in Rule 60(d) (1), the Rule 60 savings-clause provision. Such an action has no time limitation. The district court stated that Fed Rules Civ. Proc., Rule 60(b) (4), 28 U.S.C.A.; U.S.C.A. Const Amend. 5. Klugh v. U.S., 620 F.Supp. 892 (D.S.C. 1985).Fed Rules Civ. Proc., Rule 60(b)(4) permits relief from a Judgment or Order for, inter alia,; (1) mistake, inadvertence, surprise, or excusable neglect; (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;(4) the judgment is void; or (6) any other reason that justifies relief . IIIVOID JUDGMENTS A Judgment is void whenever the Court that rendered it lacked jurisdiction over the subject, the person or acted in a manner inconsistent with due process of law). Under Griffith v. Bank of New York, 147 F.2d 899, 901-03 (2d Cir. 1945) It is well settled that the federal courts may exercise equity powers available to set aside, deny enforcement or ignore a state court judgment obtained by extrinsic fraud, lacked subject matter Jurisdiction, personal jurisdiction or acted in a manner inconsistent with due process.This independent action in equity is not based on an irregularity or an error of law in the trial court and it is not a bill of review or an appeal. This proceeding is a bill in equity to set aside a decree for fraud in the obtaining of the trial courts jurisdiction and the judgment thereof and constitutes an original and independent proceeding under Fed Rules Civ. Proc., Rule 60(b) (4), Marshall v. Holmes, 141 U.S. at 599, quoting Johnson v. Waters, 111 U.S. 640, 667, 28 L. Ed. 547, 4 S. Ct. 619 (1884).

Cutlip is not asking the federal courts to review the merits of the foreclosure decree only fraud upon the rendering California state court discovered after judgment in the trial courts and after the close of all briefings in the courts of review Fed Rules Civ. Proc., Rule 60(b) (4),and the independent action in equity it allows "should be available to prevent a grave miscarriage of justice.

IVTHE FRAUD REPRESENTS A GRAVE MISCARRIAGE OF JUSTICE.

The case cited by the district court and The United States Supreme Court inBeggerlyas an example of a "grave miscarriage of justice is Marshall v. Holmes, 141 U.S. 589 (1891), in Marshall an independent action in equity was allowed to proceed because the underlying judgment was secured based on a forged document. The forged document in Marshal was a bill of lading used to procure supplies.

In the Discussion to follow Cutlips establishes through clear and convincing evidence that defendant and its attorneys perpetrated an unconscionable scheme to manufacture evidence, record that evidence, submit that false evidence into court and did deceive the trial court of its jurisdiction and it was used to obtain the trial courts final judgments therein tampering with the administration of justice and the courts ability to impartially adjudicate the case, influenced by the fraud on the court.

Ultimately the forged document was used as a fraudulent conveyance to obtain a writ of possession to unlawfully oust the Cutlips from their home in deprivation of their constitutionally protected right to due process by depriving the Cutlips of their home prior to a full fair trial on the merits and obtain the Cutlips substantial equity.

In Marshal v. Holmes the forged document was for an authorization for a bill of goods then surely a deprivation of an amended right and unlawful ouster of a family fall under a grave miscarriage of justice.A court of the United States may enjoin an execution issued by a state court when an officer of the court transcends his powers. The court is not precluded from restraining acts which done under the color of authority derived from the other are yet illegal and void. . Cropper v. Coburn, 2 Curtis CC 465VTHE PARTIES

Plaintiff William Cutlip has been a resident and paid taxes in and of the City of Campbell, County of Santa Clara, in the State of California for twenty five years (Hereafter, Plaintiff or Cutlip.) William Cutlip is the only party to this litigation with a recorded or unrecorded interest effecting title to the subject property, for whatever reason the laws of this state are being ignored the hearings have been a mockery of justice and have not considered the evidence or the law. The owner in passion cannot be denied due process prior to being deprived of substantial interest in real property regardless of post deprivation remedies this is consistent with the law as set out by the United States Supreme Court. The Supreme Court of The United States (the core requirement of the due process clause is that an individual be provided an opportunity for a full fair hearing prior to being deprived of any significant liberty interest or property see also Memphis Light, Gas & Water Div. v. Craft 436 U.S. 1. 19, 98 S. CT. 1554. 56 L. Ed 2d. 30 (1978)

Defendant Deutsche Bank National Trust Company as Trustee for the Harborview Mortgage Loan Trust 2007-7 is Created and controlled by the trust that is governed by the law of its state of incorporation the Harborview mortgage loan trust (HVMLT 2007-7) and its trustee are governed by the trust laws of the state of New York .( Hereafter, defendant or Deutsche) (HVMLT-2007-7) Corporations 1332(c)(1): A corporation shall be deemed to be a citizen of any State by which it has been incorporated. Deutsche rights as a trustee is created by the HMLT 2007-7 and does not exist as trustee outside of the HMLT-2007-7 trust documents incorporated in the State of New York and Governed by the trust laws of the State of New York. . 1761 East St. Andrew Place, Santa Ana, CA 92705-4934As Discussed herein Deutsche relies on an after acquired interest to enforce the written contract in the first instance. F.R.C P. Rule 17 would dictate that action is void. Standing was not considered in the state courts prior to their final judgments and for the reason discussed does not present any preclusion for this court to determine. Defendant Benjamin Petiprin, Esq. CA Bar # 256797 from the Law offices of Les Zieve located at 18377 Beach Boulevard Suite 201 Huntington Beach, CA 92648 is an attorney for Deutsche Bank National Trust Company as Trustee for the Harborview Mortgage Loan Trust 2007-7

On August 14, 2012 Benjamin Petiprin, verified the unlawful detainer complaint filed in the Superior Court of California for the County of Santa Clara in case number 112CV230319 the complaint contained exhibit (a) a materially altered copy of recorded document 21756912 recorded in the Santa Clara county recorders office. The recorded document has the express language No representation as to its effect upon title inscribed on the face of the recorded document. The copy verified and filed by Benjamin Petiprin on August 14, 2012 under penalty of perjury to be a full and true copy of the recorded document has had this language removed.

Benjamin Petiprin further verified the document was proof of perfection of title for his client. This is a material misrepresentation to obtain jurisdiction and judgment in a complaint filed under California civil code 1161a that requires plaintiffs to have acquired perfection of title prior to filing the action to state a cause of action and obtain the courts jurisdiction. It will be conclusively established herein Benjamin Petiprin committed forgery and perjury constituting extrinsic fraud upon the court by an officer of the court to obtain jurisdiction of the unlawful detainer court and that the courts final judgment of December 31, 2012 was entirely based on the misrepresentations and belief the document submitted and verified by Benjamin Petiprin on August 14, 2012 had representation as to its effect upon title when it did not. VITHE CASES INVOLVED "In the present case, the subject matter of both actions isreal property an action to quiet title real property an unlawful detainer to real property, a contract relating to such real property no relief of a personal character breach of contract to real property.Quiet Title Case 112CV217452

On January 25, 2012 William J. Cutlip (Cutlip) filed a Quiet title action in the Santa Clara County Superior Courts Unlimited Civil Division naming Downey Savings and US Bank as defendant regarding the property located at 619 Union Avenue Campbell California (subject property) Case number 112CV217452 Judge Kirwan Presiding . On February 1, 2012 Cutlip recorded and filed his Lis Pendens securing his interest in the subject property during the proceeding U.S. Bank and Downey were dismissed and Deutsche Bank National Trust Company For The Harborview Mortgage Loan Trust Pass-Through Certificate 2007-7 (Deutsche) and Western Progressive llc (Western) collectively the (defendants)Sixth District Court Of Appeal (6DCA) confirmed the trial courts judgment by opinion filed October 9, 2014 a timely request for consideration was denied without opinion October 29, 2014 a timely petition to review was filed with the California Supreme court and was denied without opinion January 14, 2015.

It is claimed preliminarily that by reason of failure to plead a claim in the demurrer and reply filed in the trial court that the court never acquired jurisdiction of the subject matter of the action, and that the judgment must therefore be declared null and void.

Unlawful Detainer Case 112CV230319

On August 14, 2012 Deutsche Bank National Trust Company For The Harborview Mortgage Loan Trust Pass-Through Certificate 2007-7 (Deutsche) filed an unlawful Detainer action case number 112CV230319 in the limited jurisdiction of the California Superior Court for the County Of Santa Clara naming William Cutlip as defendant concerning the Property located at 619 Union Avenue Campbell, CA 95008 (subject property), Judge Greenwood presiding. (Cutlips exhibit (c) Final judgment filed December 31, 2012.finnding the trustee deed represented a prima facie case for plaintiff.) It is claimed preliminarily that by reason as the purported beneficiary Deutsche claimed is authority to foreclose in an after acquired interest in a defective document recorded after foreclosure and outside the chain of title that Deutsche failed to prove it was the real parties in interest to have initiated foreclose and bring this action and this failure to prove the title was perfected the trial court never acquired jurisdiction of the subject matter of the action, and that the judgment must therefore be declared null and void. Cutlips motion for new trial was heard February 13, 2013 by Judge Greenwood in the Santa Clara County Superior Courts Family Law Division Department 71. Exhibit (d) Cutlip s appeal was heard in the appellate division of The Santa Clara Counties Superior case number 113CV001530 opinion affirming the Judgment filed June 24, 2014. A petition to review rehearing filed July 10, 2014 denied without opinion or reply. A petition to transfer to the Sixth District Court of Appeal denied without opinion July 18, 2014.

VIIFEDERAL COURT VENUE

Venue is proper pursuant to 28 U.S.C. 1391 (b) because the events giving rise to plaintiffs claims allegedly occurred within this judicial district.IIXJURISDICTION And jurisdiction under the collateral order rule.1See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949.)

`The question of the Federal courts jurisdictions is, whether the proceeding to procure nullity of the former judgment in such a case as the present where the proceedings is tantamount to a bill in equity to set aside a decree for fraud in the obtaining thereof, The distinction is an investigation of a new case arising upon new facts, although having relation to the validity of an actual judgment or decree, or of the partys right to claim any benefit by reason thereof. Id. at 82-83. In Furnald v. Glen, 64 F. 49 (2d Cir. 1894), the court applied Barrow v. Hunton. The circuit courts of the United States are not precluded from exercising in proper cases the inherent jurisdiction of courts of equity to restrain the prosecution of unconscionable actions at law, notwithstanding the particular action may be based upon the Judgment of a state court.

Payne v. Hook, 7 14 Wall. 425; Barrow v. Hunton, 99 U.S. 80; Johnson v. Waters, 111 U.S. 640, 4 Sup. Ct. 619; Marshall v. Holmes, 141 U.S. 589, 12 Sup. Ct. 62; Mississippi Mills v. Cohn, 150 U.S. 202, 14 Sup. Ct. 75. Id. at 53-54. McKay v. Pfeil, 827 F.2d 540, 543 (9th Cir. 1987);

IXSTATEMENT OF THE CASE The issue of fraud was not discovered until after final judgment was filed in the trial courts and after the close of briefing on appeal. The issue of fraud was not presented adjudicated in the trial court or considered in the court nor could it have been.

The unlawful detainer did not adjudicate an absolute right to possession of property because the object of the [unlawful detainer] statute was not to try titles, but to preserve the peace and prevent violence"); Seitz, 2012 WL 5523078, and in regards*7

In regard to the quiet title case filed in the Santa Clara County Superior court on January 25, 2012, Case 112CV217452 Cutlip v. Deutsche regarding the Union Avenue Property. Simple logic leads to the conclusion that if the court would have adjudicated and decided the issue of title in favor of Deutsche the court would not have found it necessary to dismiss Cutlips SAC quiet title cause of action for failure to tender and the trial courts final judgment April 3, 2013 makes no mention of the status of Deutsche title or that title is vested in Deutsche.

XFEDERAL REMEDY IS APPLICABLE This independent action in equity is not based on an irregularity or an error of law and it is not a bill of review or an appeal. This proceeding is a bill in equity to set aside a decree for fraud in the obtaining of the trial courts jurisdiction and the judgment thereof and constitutes an original and independent proceeding under 60(b) Marshall v. Holmes , 141 U.S. at 599, quoting Johnson v. Waters , 111 U.S. 640, 667, 28 L. Ed. 547, 4 S. Ct. 619 (1884). Judgment was obtained through fraud an undue advantage that the party ought not to be allowed to profit. Pearce v. Olney, 20 Conn. 544,This action does not impeach the regularity of the judgment it merely establishes that the judgment was obtained through fraud, on the court an undue advantage that the party ought not to be allowed to profit. Pearce v. Olney, 20 Conn. 544,42 U.S.C. 1983

In reviewing the legislative history of 1983 in Monroe v. Pape, supra, the Court inferred that Congress had intended a federal remedy in three circumstances: where state substantive law was facially unconstitutional, where state procedural law was [449 U.S. 90, 101] inadequate to allow full litigation of a constitutional claim, and where state procedural law, though adequate in theory, was inadequate in practice. 365 U.S., at 173 -174. In short, the federal courts could step in where the state courts were unable or unwilling to protect federal rights. Id., at 176. This understanding of 1983 supports an exception to res judicata and collateral estoppel where state law did not provide fair procedures for the litigation of constitutional claims, which a litigant based his or the state court failed to even acknowledge the existence of the constitutional principle on claim, IE; Due process and equal protection, standing, real party in interest and lack of jurisdiction.

Whenever state officers act jointly with a private creditor in securing the property in dispute. Sniadach v. Family Finance Corp., 395 U.S. 337. And if the challenged conduct of the creditor constitutes state action as delimited by this Court's prior decisions, then that conduct is also action under color of state law, and will support a suit under 1983. Pp. 926-935. [p923] Cutlips valid defense establishes through clear and convincing evidence that it is a legal impossibility for Deutsche to have a legal interest in Cutlips property.

The state courts in quiet title and unlawful detainer out right refused to try title contravening the courts governing statutes dictating that title must be determined, even in the face of statute dictating that title be determined the courts refuse knowing Deutsche did not have legal title . The courts special relationship with Deutsche dictated the courts actions not statute or stare decisis precedent or due process all of which were subordinated to the pursuance of Deutsche financial agenda. Deutsche relies on the courts to act under the color of law in support of its financial agenda. Deutsche is the trustee for two hundred billion dollars of mortgage backed securities that comprise the states retirement fund administered by Calpers of California.

In addition to this conflict of interest Forty Two of Californias 105 appellate court justices (40%) own significant amounts of stock in at least one mortgage financial company which means they are inclined to rule against homeowners because a string of decisions against the banks would reduce the profitability of the entire sector, they dont want to be the judge to set a precedent. Cutlip has not been able to get a fair trial

XIPLAINTIFF CLAIM IS NOT INEXTRICABLY INTERTWINED

Noel, 341 F.3d at 1158. In this case, Cutlip is not bringing a forbidden de facto appeal because he is not alleging as a legal wrong an erroneous decision from the state court. See id. At 1164. Therefore, the "inextricably intertwined" test does not come into play. [The federal claim is not inextricably intertwined with the state-court judgment because for the federal plaintiffs claim to be successful the federal court does not need to determine that the state court wrongly decided the case.

Here fraud was not adjudicated in the state court and is not inextricably intertwined with that courts decision because the fraud was not discovered until after final judgment in the trial court and after the close of briefing on appeal and has not been addressed by a state court.

An issue cannot be inextricably intertwined with a state court judgment if the plaintiff did not have a reasonable opportunity to raise the issue in state court proceedings"); Dale v. Moore, 121 F.3d 624, 626 (11th Cir.1997) The inextricably intertwined analysis is inapplicable where federal plaintiffs have not been given a reasonable opportunity to raise their federal claims in the state proceedings. See Lemonds, 222 F.3d at 495-96 .XIITHE COLLATERAL ESTOPPEL BAR IS INAPPLICABLE

: Collateral estoppel does not apply where the party against whom an earlier court decision is asserted did not have a full and fair opportunity to litigate the claim or issue decided by the first court. See supra, at 95.

When the claimant did not have a "full and fair opportunity to litigate" the issue decided by the state court. A claimant can file a federal suit to challenge the adequacy of state procedures. there is no claim preclusion based under Californias compulsory cross-complaint statute because the unlawful detainer courts Judge Greenwood put it succinctly the court prohibited the Cutlips from attacking Deutsche title and standing. See exhibit (d)

XIIISAME NUCLEUS OF FACTS IS INAPPLICABLESame nucleus of facts is inapplicable when there are different causes of action

Even though two suits involve the same nucleus of facts, they do not necessarily raise the same cause of action Morris illustrates that, even though two suits involve the same nucleus of facts, they do not necessarily raise the same cause of action under California law. See also Branson v. Sun-Diamond Growers, 24 Cal.App.4th 327, 29 Cal.Rptr.2d 314, 321 n. 6 (1994) (refusing to apply a "nucleus of facts" test for claim preclusion purposes).

XIVROOKER FELDMAN IS INAPPLICABLE

The 9th Circuit has adopted the fraud exception to the Rooker Feldman doctrine, see Kougasian, 359 F.3d at 1141 (citing Barrow v. Hunton, 99 U.S. 80 (1878)).116.Barrow, 99 U.S. at 84. T The Fifth, Sixth, Seventh, Ninth and Tenths Circuits have all held that the Rooker-Feldman doctrine does not bar an original, separate independent action that could be brought as a remedy under the law of the rendering state and federal law in the nature of a common law bill in equity collaterally attacking a final state court judgment as void if the court that rendered it either lacked subject matter Jurisdiction, personal jurisdiction or acted in a manner inconsistent with due process. Lewis v. East Feliciana Parish Board, 820 F.2d 143, 146 (5th Cir. 1987); Catz v. Chalker, 142 F.3d 279, 294 (6th Cir. 1998); Nesses v. Shepard, 68 F.3d 1003, 1005 (7th Cir. 1995); McKay v. Pfeil, 827 F.2d 540, 543 (9th Cir. 1987); Johnson v. Rodriques, 226 F.3d 1103, 1107 10th Cir. 2004) (federal courts may entertain a collateral attack on a state court judgment that is void whenever the Court that rendered it lacked jurisdiction over the subject, the person or acted in a manner inconsistent with due process of law). Under Griffith v. Bank of New York, 147 F.2d 899, 901-03 (2d Cir. 1945) it is well settled that the federal courts may exercise equity powers available to set aside, deny enforcement or ignore a state court judgment obtained by extrinsic fraud and a bill of equity enjoins void judgment

The situation presented here, the limited purpose of the non statutory motion to vacate a judgment is "to secure relief, where no other remedy exists, from a judgment rendered while there existed some fact which would have prevented its rendition if the trial court had known it and which, through no negligence or fault of the defendant, was not then known to the court." (People v. Adamson (1949), 34 Cal.2d 320, 326 [1] [210 P.2d 13].)XVRELEVANT FACTUAL HISTORYIn April 2007 Cutlip originated a contract with Downey saving & loan (Downey) by executing a Deed of Trust (Deed) secured by a promissory Note (Note) The Deed and Note identify Downey as the lender and beneficiary) and Downeys wholly owned subsidiary DSL Service Company as the trustee under the (Deed) In November 2008 Downey failed and the Federal Deposit Insurance Corporation (FDIC) acting as receiver sold Downey as a whole to US Bank.

In November 2009 Cutlip contacted The Federal Deposit Insurance Corporation (FDIC) to determine if U.S. Bank was the beneficiary note holder of his mortgage.

On or about December 17, 2009 Cutlip sent a Qualified Written Request pursuant to California Civil Code 2943 to US Bank as successor in interest to the failed Downey Requesting complete copies of the front and back of his original deed of trust certified to be an exact copy of the original, as proof of chain of title beneficiary status and debt verification.

`California Civil Code 2943 requires a beneficiary to send completes true and correct copies of the original Deed (Deed) and (Note) showing any sign of modification (assignment or endorsement).and a beneficiary statement, within 21 day of receipt of a Qualified Written Request For Debt Verification, by statute these documents can be relied on to prove beneficiary and debt status and chain of title.

On or about January 21, 2010 U.S. Bank sent Cutlip complete copies of the front and back of his original Deed and Note certified by The Vice President of Compliance for residential mortgage portfolios for US Bank to be true and exact copies of the originals. The Vice President signed the certified documents certificate attached to the precise copy of the Deed and Note being certified on January 21, 2010 .The Deed and Note have not been assigned, endorsed, transferred or conveyed from Downey and there is no alonge attached.

The Vice President of compliance signed a letter of attestation that accompanied the certified Deed and Note stating in pertinent.

As requested, we have enclosed certified copies of the adjustable Rate Note (with all riders) and the mortgage (with all riders). In favor of the former Downey Savings, now part of US Bank. Each of these documents is signed by you, and each of these documents evidences your indebtedness to US Bank (US Bank CT-125 Paragraph 1)

XVISELF AUTHENTICATING UNDER STATE AND FEDERAL EVIDENCE CODE

Federal Evidence Code 902, gives the certified and attested copies of Cutlips original Deed and Note self authenticating evidentiary weight by statute.

Pursuant to California Evidence Code Section 1450-1454 the documents are self authenticating, California Evidence Code Section 1530 the documents are certified evidence made for establishing the facts under certification. California Civil code 2943 the documents are given evidentiary weight by statute and can be relied as proof of evidence of beneficiary status and dept verification By Statute The certified Deed and Note accompanied by a letter of attestation is clear and conclusive evidence that in January 2010 Cutlips original Deed and Note have not been assigned endorsed transferred or conveyed from their originating lender and are in possession of U.S. Bank.

XVIIFDIC RECEIVER OF DOWNEY SAVINGS & LAON

On May 3, 2010 the Sr. Ombudsman specialist for the Federal Deposit Insurance Corporation (FDIC) sent Cutlip a response to his inquiry about the ownership of his loan it informs Cutlip that I researched s your loan as requested and found that Downey sold your loan prior to its failure in November 2008 to an investor therefore US Bank does not have an ownership interest in your loan US Bank is not servicing your loan and your loan was not a part of the sales and assumption agreement and US Bank to receive all assets of the failed downy savings U.S. Bank has no authority in your loan. (.Email from the FDIC Exhibit (h)) admissible under Federal Evidence Code 201)

The Federal Deposit Insurance Corporation confirmed U.S. Bank is not servicing Cutlips loan and does not have an ownership interest in Cutlip loan, and the loan was sold.

U.S. Bank has certified that it is in possession of Cutlips original Deed and Note.

It is well settled law that an undelivered deed is a nullity. Downey sold Cutlips mortgage toan entity that was not US Bank or Deutsche thus leaving US Bank a nominal holder of Cutlips Deed and note, lacking the legal capacity to assign or transfer the mortgage, creating an irreparable break in the chain of title to Cutlips mortgage making it virtually a legal impossibility for Deutsche to have acquired a legal interest in Cutlips property and any action flowing from Deutsche as a purported secured or unsecured creditor are fraudulent.

XVIIIA REASONABLE INFERENCE CAN BE REACHED FROM A SET OF FACTS THE TRUST NEVER RECEIVED AN ASSIGNMENT OR TRANSFERAs a failed deliver or failed securitization if you will trust laws pertaining to a failed deliver is well settled. An axiom of trust law from the leading case: Equity will not lie for an incomplete delivery (Milroy v lord (1862.) It is detrimental that the trust takes delivery of the items to be entrusted, or the trust will not have an ownership interest in the item to be entrusted. Under our system it is a necessary provision of the court to inquire and determine whether a valid trust has been created.. The mode of administration, the power to regulate and direct its subsequent administration, is quite separate and distinct from a question of whether a legal trust has been created. (Estate of Hinckley, 58 Cal. 457., cited 73 Cal. 564.)The FDIC as receiver confirms Downey sold Cutlips Deed and Note prior to Downeys failure in 2008.In January 2010 U. S. Bank confirmed Downey failed to transfer, assign or endorse its beneficiary right, title or interest in Cutlips mortgage contract to any entity.In January 2010 U.S. Bank is in possession of Cutlip original Deed and Note of which U.S. Bank has no ownership interest, U.S. Bank is not servicing Cutlips Deed or Note and the Deed and Note have not been endorsed or assigned to any entity..

Under California Universal Commercial Code there is no definition for a holder without rights of a holder; The California universal commercial code, contract law and property law hold that a nominal holder without interest or assignment rights to the Deed or Note is a nullity.

Without an ownership interest U.S. Bank cannot legally assign transfer or convey Cutlips mortgage and is unable to legally transfer the note or deed even as successor in interest U.S. Banks did not acquire an interest in the Cutlip Deed or Note.

Given the evidence it is undisputed that U.S. Bank is a nominal holder who was not transferred interest in the mortgage therefore does not have the legal capacity to assign or transfer Cutlips mortgage. The facts in the record and well settled law would confer the documents are rendered a nullity and Deutsche as the trustee for the Harborview Mortgage loan trust Could not have receive an assignment or transfer of the subject Deed or Note recorded or unrecorded, this legal theory is wholly supported by law and the record.Where a party alleges a trust with no evidence it is a parole trust, and enforcement must be denied and a general demurrer will not lie Peralta v. Castro, 6 cal. 354.)

In case the execution of a valid conveyance cannot be decreed the beneficiaries of the trust are entitled to recover its value from those by whose wrongful acts it was lost(price v. reeves, 38 Cal 457.)

XIXNO REASONABLE OPPORTUNITY TO RAISE CONSTITUTIONAL STANDING CLAIMS The states unlawful detainer statute prevented Cutlip from attacking the veracity of the trust deed. Cutlip did not know at this time the purported trustee deed had been forged. Had Cutlip known of the forgery he could have presented a complete defense to establish a lack of perfection of title and failure to state a cause of action required under cal Civil Code 1161a. Cutlip did not have a reasonable opportunity to bring his federals constitutional standing argument. As shown from the exerts form (Cutlips exhibit (d) Unlawful detainer court reporters transcript for Cutlips motion for new trial heard February 13, 2013)

The court;, There may have been problems with what happened before the sale. There may have been problems with it, but the issues raised related to the standing of Deutsche bank were not issues that this court could consider in the context of the trial. (. (Cutlips exhibit (d) Unlawful detainer court reporters transcript for Cutlips motion for new trial heard February 13, 2013 P 26: 1-7)

The court; your argument that Deutsche Bank could not act as -- as the actor in this procedure because they did not have a valid title and that as I understand the law is not something that I can consider in this context. ((Cutlips exhibit (d) Unlawful detainer court reporters transcript for Cutlips motion for new trial heard February 13, 2013 page 3 lines 20 -: 4:1-6)The Court; `The part the court disagrees with is what the court can consider in the context of reviewing a 2924 sale in an unlawful detainer action when the court looks at all the arguments that you are making fundamentally it comes down to the question of whether Deutsche had the right come into court and seek the eviction in the first place, the courts understanding of the case law is that there might very well have been issues. That is not before me that is not something I can consider (Cutlips exhibit (d) RT- February 13, 2013 page 25 lines 1-7)XXTHE RULE IS WHERE THE ASSERTED FRAUD WAS PRESENTED AND CONSIDERED.HERE THE FACTS ESTABLISH THE ISSUE OF FRAUD WERE NOT, AND COULD NOT HAVE BEEN, LITIGATED IN THE PRIOR ACTIONS.Preclusion in federal litigation following a judgment in state court depends on the Full Faith and Credit Statute, 28 U.S.C. 1738, which requires the federal court to give the judgment the same effect as the rendering state would..A judgment from a court lacking in personal or subject matter jurisdiction is void and because there is nothing in the record indicating that the question of jurisdiction was actually presented to the California state courts, there can be no implicit jurisdictional determination entitled to preclusive effect because in the absence of fraud Deutsche failed to state a cause of action the court was prevented from acquiring subject matter jurisdiction. . (Cutlips exhibit (d) Unlawful detainer court reporters transcript for Cutlips motion for new trial heard February 13, 2013 (page 3 lines 20 -28: 4:1-6)XXIFACTUAL PROCEDURAL HISTORY On January 25, 2012 William J. Cutlip (Cutlip) filed a Quiet title action in the Santa Clara County Superior Courts Unlimited Civil Division naming Downey Savings and U.S. Bank as defendant regarding the property located at 619 Union Avenue Campbell California (subject property) Case number 112CV217452 Judge Kirwan Presiding. On February 1, 2012 Cutlip recorded and filed his lis pendens securing his interest in the subject property.

In February 2012 Cutlip was not in default and was in a title quite title dispute with U.S. Bank as the beneficiary and holder of Cutlips Note and Deed. Under Cutlips Deed of trust and promissory Note it is the exclusive right of the lender of record to declare a default and the exclusive right of the trustee named under the deed of trust to record a notice of default. (Cutlips Exhibit (e) (f) Cutlips note page 1 whoever takes this Note by transfer and is authorized to receive payment is the note holder lender. Only the note holder can declare a default. Cutlip was in litigation concerning the beneficiary statutes of U.S. Bank as the note holder and U.S. Bank did not declare a default, any default declared by any other party declaring a default without U.S. Bank knowledge is fraudulent. There is no scenario in Cutlips mortgage contract that allows for an unrecorded unknown party to legally cause another unrecorded unknown party to record a notice of default against the Cutlips property. On February 22, 2012 Deutsche purport to declare a default Cutlip had never heard of Deutsche. Deutsche had no interest in the debt to declare a default and is not claiming to be acting on any other authority. The Cutlips claim is that the record establishes the Note and Deed are a nullity in possession of a holder without rights of a holder creating an irreparable break in the chain of title for which there is no avenue available that Deutsche could have overcome to obtain a legal interest in the Cutlips mortgage contract. This is the reason Deutsche has resorted to forged document and perjured testimony to fraudulently create standing.U.S. Bank did not purport to assign the mortgage to Deutsche nor does Deutsche allege an assignment.

In March of 2009 U.S. Bank as the holder of the Note and Deed of Trust and successor in interest to the loans originator and purported beneficiary transferred the servicing of Cutlips mortgage to the current servicer.

The record is conclusive of the fact that there is an irreparable break in the chain of title and even at this filing U.S. Bank remains in possession of the original Deed and Note barring Deutsche from acquiring legal interest in Cutlips mortgage.

Deutsche has never disputed the evidence. Deutsche has not produced evidence or allegation to the contrary or its authority to enforce the Cutlips mortgage contract consequently any action flowing from Deutsche in regards to the Cutlip mortgage or property is based in fraud.

U. S. Bank is the only party demonstrating that it is the holder of the obligation and did not declare a default. U.S. Bank is not in privity with Deutsche or the trust Deutsche purports to represent.In March 2012 Cutlip sent Deutsche a Qualified Written Request pursuant to California Civil Code 2943 Deutsche failed to respond. Silence can only be associated with fraud and Deutsche has neither alleged to have legal capacity to declare a default nor has it produced its authority to declare a default.

Cutlip had worked with Downey saving since the inception of the loan in 2003 and under the circumstances Downey would not have declared a default but refinanced his mortgage as in 2007. Cutlip has substantial equity of three hundred thousand and has never been late on a payment with a perfect credit score. The interest rate was at 7 % when the average rate was at 4% the rate was scheduled to jump to 12% and Cutlip pro actively was working on refinancing his loan with NACA exhibit (d) as a direct result of the Deutsche causing an unlawful recording of a notice of default that caused Cutlips refinancing to fail his credit score to fall preventing a refinance of his loan, the interest rate on the loan subsequently went to 12%.. Cutlip was not attempting avoid his obligation but reasonably wanted to determine that the payments were being directed to the correct party.The facts on the face of the record clearly establish that Deutsche only claim of authority is a post foreclosure self assigned document defectively recorded outside the chain of title that has no representation as to its effect upon title stamped on the recorded version. (Cutlips exhibit (a) no Representation as to its effect upon title Deutsche has resorted to forged documents and perjured testimony to create its standing.Cockerell v. Title Ins. & Trust Co., 42 Cal. 2d 284 - Cal: Supreme Court 1954 "The burden of proving an assignment falls upon the party asserting rights thereunder. In an action by an assignee to enforce an assigned right, the evidence must not only be sufficient to establish the fact of assignment when that fact is in issue but the measure of sufficiency requires that the evidence of assignment be clear and positive. To Summarizes as holding that the deed of trust "could only be foreclosed by the owner of the note. Deutsche failed to meet its burden of proof as the real party in interest and the status of Cutlips mortgage has no bearing on Deutsche lack of standing.

Western purporting to be an unrecorded agent for an unauthenticated unknown unrecorded beneficiary, Western is not only not the disputed trustee Western is not the agent of the trustee or the beneficiary as required by California civil code 2924, because Deutsche was never an assignee of the Cutlips mortgage recorded or unrecorded. Deutsche own evidence and testimony confirm the same.

The discussion to follow will establish that Deutsche has lied acted recklessly in total disregard for the law and Deutsche attorney Benjamin Petiprin has forged document by altering the recorded document 21756912 and submitted the fraudulent document with his perjured testimony into the unlawful detainer court. The record established that the actions and behavior of Benjamin Petiprin was lawless and reckless in total disregard for the laws of the United States and the laws of California. Cutlips claims are supported by the record and cannot be reasonably disputed, the record show these claims are proven by clear and convincing evidence.In March 2012 Cutlip dismissed Downey saving and US Bank without prejudice from the quiet title litigation and in March 2012 added Deutsche Bank National Trustee Company and Western Progressive llc and does 1-20 as defendant in the quiet title case 112CV217452.Western acted on the instruction of Deutsche and is not vital to this determination of fraud on the court.XXIICOUNT ONE; FRAUD UPON THE COURT BY AN OFFICER OF THE COURTPlaintiff incorporates the previous paragraphs as if fully contained herein.

In the discussion below Cutlip establishes through clear and conclusive evidence that extrinsic fraud was brought upon the unlawful detainer court to conceal an unlawful foreclosure.

Plaintiff, William Cutlip, hereby moves Under Title 28, U.S.C., 1655, to set aside the Unlawful detainer judgment filed December 31, 2012 in case 112CV230319 for fraud upon the court by Deutsche and its attorney Benjamin Petiprin. The unlawful detainer courts courts jurisdiction and final judgment was based entirely on the forgery and the perjury submitted in to the court on August 14, 2012 by Deutsche attorney Benjamin petiprin.

Bailey v. Internal Revenue Service, No. 98-CV-123-TUC-RTT (JMR), 1998 U.S. Dist. Lexis 21517 at *26 (D. Ariz. 1998) (citingWright, Miller & Kane at AS 2870 quoting England v. Doyle, 21 F.2d 304, 309 (9th Cir. 1960))

XXIIICLEAR AND CONCLUSIVE EVIDENCED OFTHE FRAUD

Oil Products Co. v. Root Refining Co., 328 U. S. 575 (1945), cited the Hartford case and said at p. 580, "The inherent power of a federal court to investigate whether a judgment was obtained by fraud is beyond question.

The fraud was designed to deceive the courts into believing facts that were not true. The court was unable to adjudicate the matter properly because the courts were influenced by false information. Evidence was fabricated by the Plaintiffs' attorneys. The attorneys were knowing participants in the fraud on the court Bogus documents were placed into the record, lies were told under oath, and in various filings with the courts, and schemes were concocted to attempt to cover-up certain falsehoods attorneys for the Deutsche were involved in all of this. The fabrication of evidence by a party, in which an attorney is implicated, will constitute a fraud on the court." Id. at 1338 (citing to Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 64 S.Ct. 997 (1944)). Whenever any officer of the court commits fraud during a proceeding in the court, he/she is engaged in "fraud upon the court." 7 Moore's Federal Practice, 2d ed., p. 512, 60.23. The 7th Circuit further stated "a decision produced by fraud upon the court is not in essence a decision at all, and never becomes final.XXIVUNLAWFUL CREATION OF EVIDENCE

Cutlip did not know at the time of the trial the evidence had been forged.On or about July 7, 2012 Deutsche caused to be created false evidence purporting to be a trustee deed. The document identifies Deutsche as a foreclosing beneficiary grantor however Deutsche has never been a grantee of the Cutlips Deed of trust or promissory Note recorded or unrecorded to now purport to be a beneficiary of the Cutlips Deed of trust. Deutsche has not received a transfer of the debt in any manner recorded or unrecorded disclosed or undisclosed that it could purport to declare a default on the Cutlips and foreclose on their Property located at 619 Union Avenue Campbell, CA 95008 (subject property) and enforce the Cutlips Mortgage contract.

XXVRECORDING FALSE DOCUMNETS

Deutsche did not receive an assignment of Cutlips Deed of trust or a transfer of the Cutlips debt obligation; instead Deutsche concocted a self assignment scheme and claims its authority to enforce the Cutlips mortgage contract in an after acquired interest in its self assigned purported trustee deed. This is clear and conclusive evidence that Deutsche is not the real party in interest to have filed the unlawful detainer action.On or about July 18th 2012 Deutsche caused its purported trustee deed to be recorded in the Santa Clara County Recorders Office as document number 21756912. The document is recorded outside the chain of title See Cutlips exhibit (I) Printout from the Santa Clara County recorders office of the recorded owners of his mortgage Deutsche is absent. Regardless of the label of the purported document Deutsche caused to be recorded the recorded document is inscribed with the language that it has no representation as to its effect upon title and is not what it is labeled. There is only one translation for no representation as to its effect of tile and that is the document is not a title instrument , this language was removed from the copy submitted into court to deceive, manipulate and defraud the court into believing the document was proof of perfection of title. A legitimately recorded trustee deeds does not have a disclaimer that it has no representation to its effect upon title.

The point in contention is that this statement was intentionally removed it was fraudulent and deceitful to conceal the fact the document was not proof of perfection of title and absent the fraud would have required Deutsche to present its authority in the first instance to declare a default and has brought fraud upon the court because the facts and evidence in the record establish it is legal logistic impossibility for Deutsche to have received an assignment of the Cutlips Deed of trust or promissory Note recorded or unrecorded to now purport to be a foreclosing beneficiary and grantee , assignee of the Cutlips Deed of trust or promissory Note and constitutes Deutsche committing conveyance fraud. See plaintiffs exhibit (a) the recorded document 21756912 certified by the Santa Clara County Recorders Office has scribed on its face that it has no representation as to its effect upon title this was done by the title company to avoid any liability for recording the document outside the chain of title for a party that was not an assignee recorded or unrecorded. The inscription was to insure that the document would not be confused with an actual title instrument unless the inscription was unlawfully removed and falsely presenting as a title instrument, which is exactly what has occurred. In Wutzke v. Bill Reid Painting Service, Inc.,151 Cal.App.3d 36, 198 Cal.Rptr. 418,Cal.App. 3 Dist., (1984) the Court held: A forged document is void ab initio and constitutes a nullity.On July 18, 2012 Deutsche caused Document 21756912 to be recorded in the Santa Clara County Recorders office inscribed on the face of this recorded document is No representation as to its effect upon titleXXVIOFFICER OF THE COURTS SUBMITS PERJURED TESTIMONY AND A FORGED DOCUMENT

On August 14, 2012 Benjamin Petiprin esquire filed and verified Unlawful Detainer complaint in case 112CV230319 on behalf of Deutsche Bank National Trustee Company As Trustee For The Harborview Mortgage Loan Trust 2007-7 (Deutsche) in the limited jurisdiction of the California Superior Court for the County of Santa Clara, Judge Greenwood presiding in case number 112CV230319 naming as defendant William Cutlip (Cutlip.) On August 14, 2012 in the Superior Court for the State of California for the County of Santa Clara Deutsche attorney Benjamin Petiprin filed the unlawful detainer complaint in case 112CV230319 and attached a document purporting to be a true full copy of recorded document 21756912 this was patently false the document attached to his complaint as ex. (a) was missing the disclaimer warning that it had no representation as to its effect upon title and instead it had a false certification that it was a certified copy of the recoded document the disclaimer was removed and falsely stamped as a certified copy of recorded document 21756912.

Benjamin Petirpin swore in the complaint under penalty of perjury the copy of recorded document 21756912 stamped with a certificate of authenticity was a true and correct copy of the recorded document and proof of perfection of title however the recorded document 21756912 has no representation to its effect on title and was recorded outside the chain of title. With no cognizable connection to the deed of trust as Deutsche was never an assignee of the mortgage in any capacity recorded or unrecorded.

Deutsche attorney Benjamin Petiprin verified under penalty of perjury that the copy of document 21756912 he was submitting into evidence in case 112CV230319 was a true and correct certified copy of the recorded document 21756912 recorded in the Santa Clara County and the document was a proof of Deutsche perfection of title.

Benjamin Petiprin knew this to false when he verified the unlawful detainer complaint

People v. Morrison, (2011) 191 Cal.App.4th 1551, 1555. ("Section 134 provides that a person is guilty of a felony if he or she (1) prepares a false matter or thing, (2) with intent to produce it, or allow it to be produced as true upon any trial, proceeding, or inquiry, whatever, authorized by law, (3) for any fraudulent or deceitful purpose..)

Deutsche attorney Benjamin Petiprin knew the statements were false when he made them because document 21756912 was not proof of perfection of Deutsche title because it has no representation as to its effect upon title.

XXVII

FRAUD DECEIVED THE COURT OF ITS JURISDICTION Benjamin Petiprin was required to view the original recorded document prior to verifying its copy authenticity and would have seen that recorded document had no representation to title and was recorded outside the chain of title.

Benjamin Petiprin was required to view the recorded document 2175691 prior to verifying its copy as a certified document and was proof of his clients perfection of title and would have seen the document was recorded outside the chain of title and had no representation to its effect upon title.

Therefore Benjamin Petiprin knew the statements made under penalty of perjury were false when he made them stating copy of document 21756912 attached to the unlawful detainer complaint in case 112CV230319 as exhibit (a) was a true full copy of the recorded document and proof of perfection of title for his client. After seeing the documents disclaimer and the problems it raised for his clients cause of action for a duly perfected title, Benjamin Petiprin materially altered his copy of the recorded document 21756912 by removing the express language showing the document had no representation as to its effect upon title. A faint outline is all that remains as proof that Benjamin Petiprin altered his copy and thereafter applied the false certification stating the document was true and correct certified copy of the recorded document. The false certification contains the recorders number 21756912 that could have only been obtained after the document was recorded and is evidence that the removal occurred after the document had been recorded .(see plaintiffs Exhibit (b) the complaint filed in unlawful detainer case 112CV230319 Exhibit (b) page (5) the altered copy of the recorded document 21756912*submitted in to evidence August 14, 2012 in Case 112CV230319 filed in the Superior Court of the State of California for the County of Santa Clara by Deutsche attorney Benjamin Petiprin as poof of Deutsche perfection of title.(.Exhibit (b) page (1:23-27)

Benjamin Petiprin stating that his copy of the recorded document number 21756912 was a true and correct copy and that it was proof of Deutsche perfection of title. (Exhibit (b) page 3:23-27.) Benjamin Petiprin sworn affidavit under penalty of perjury that the claims contained in the verified complaint filed August 14, 2012 in case 112CV2303129 were true) Benjamin Petiprin swore his clients had been out of town and he was verifying the evidence as true and correct and it was proof of his client duly perfected title. This is clear and conclusive evidence that Benjamin Petiprin forged the document and knowingly gave perjured testimony and submitted a materially altered document and perjured testimony into evidence in the unlawful detainer case 112CV230319. Benjamin Petiprin swore no one else could have done it they were out of town.Benjamin Petiprin client were out of town, Benjamin had to view the recorded document obtain the copy and forged it himself currying favor from his client securing future business no one else could have forged the document they were all out of town according to his sworn testimony .Benjamin Petiprin acts and behavior implicated him in the fraud upon the court as an officer of the court and constitutes extrinsic fraud on the court this is a matter of record.Whenever any officer of the court commits fraud during a proceeding in the court, he/she is engaged in "Extrinsic fraud upon the court. inBulloch V. United States,763 f.2d 1115, 1121 (10th cir. (1985), here we have an officer submitting false document, and perjured testimony into the court to obtain jurisdiction and ultimately the unlawful detainer courts final judgment filed December 31, 2012 (Cutlips Exhibit (c) page (1) the U.D. Courts final judgment) was based entirely on Benjamin Petiprin perjured testimony and forged document. The fact to wit the judgment was procured through fraud on the court by an officer of the court. The fraud intervened in the proceedings in the very procurement of the judgment, unknown to the court or Cutlip. Petitioner was prevented from availing himself in the court then by fraud.XXVIIITHE FRAUD PREVENTED PETITIONER FROM PRESENTING A FULL DEFENSE. Absent the fraud it would have been shown that Deutsche did not have a valid title instrument allowing petitioner to dismiss the case for failure to state a cause of action for perfection of title A restrictive prerequisite mandated by statute 1161a and for failure to sate a cause of action under the unlawful detainer statute 1161a requiring a plaintiff to have acquired perfection of title prior to filing the action under California Civil Code 1161a. An unlawful summons requiring defendant to respond within five days. An unlawful five day summons did not vest the court with jurisdiction over Cutlip. Petitioner was prevented from availing himself by the fraud. The fraud was not discovered until after final judgment and the fraud was not presented or considered during trial, it was not known that the court had been imposed upon and mislead into a false judgment. The U.D. plaintiff attorney knowingly introduces the fraud, it was intentionally designed to mislead the court, it was intentional fraudulent concealment of a controlling and material fact resulting in damaging deception that Cutlip and the court reasonably relied on. The court reasonably relied on the intentional concealment of the fraud.

Benjamin Petiprin was required to view the recorded record, to truthfully verify the document he was presenting was a true and correct copy and the record demonstrated that the document was proof of perfection of title. For perfection of title to be true, Deutsche would have had to be in the chain of title since Deutsche is not in the chain of title and the document has a disclaimer inscribed on its face that it has no representation to title. its not possible for Benjamin Petiprin not to have know he was intentionally misleading the court as to his misrepresentation of his clients stranding to enforce the debt relying solely on an after acquired interest. Under these circumstances Benjamin Petiprin being a learned attorney in the unlawful detainer procedure was aware of the defects in the document and chain of title and knew that the debt was unenforceable by his client.

Petiprin knew the defect in his verification fraudulently furnished his client a cause of action and fraudulently concealed these defect for the purpose of obtaining an undue advantage, the facts bring this case within the parameters of a motion to vacate under the saving clause of rule 60b.The Jurisdiction of a court of equity is not restricted in cases of fraud by the rule that there must not exist an adequate remedy at law. Fraud in any case is ground of equitable jurisdiction.XXIXTHE COURTS JURISDICTION WAS UNLAWFULLY INVOKED

The use of an altered document to obtain jurisdiction deceiving the court of its jurisdiction is extrinsic fraud." [Elliot v. Piersol, 1 Pet. 328, 340, 26 U.S. 328, 340 (1828)]Deutsche attorney Benjamin Petiprin knew his statements were false when he made them and his actions and statement were intentional to create the appearance of his clients perfection of title by submitting what appeared to be a document with representation to the property title.

Benjamin Petiprin was required to have seen the recorded document prior to verifying the veracity of the copy. The recorded document is accessible to the public at the Santa Clara County Recorders Office, proof that his action and statements were made intentionally with the knowledge of their falsity. Benjamin Petiprin claimed to have personal knowledge of the facts he was purporting to verify that required his personal knowledge of the recorded document this implies he would have researched the land records to verify perfection of title and knew the documents contents and the fact it had a disclaimer and was outside the recorded chain of title and in fact was not proof of perfection of title.

A duly perfected title is mandated by statue 1161a as a restrictive prerequisite for a plaintiff filing an unlawful detainer under this section.

Title is duly perfected when it is, valid and good beyond all reasonable doubt. (Hocking v.Title Ins. & Trust Co.(1951),37 Cal.2d 644 ,649, which includes good record title (Gwin v.Calegaris (1903),139 Cal.384, ."(Kessler v. Bridge (1958) 161 Cal. App.2d Supp.837,841 "record title" means a title officially of record. (Bone v. Dwyer, 89 Cal. App. 535).In number 7, Title is duly perfected when it is, valid and good beyond all reasonable doubt there must be no grave doubts about the validity of the title,& that there be no litigation over the Title,& the party claiming title must have both Equitable &Legal Titles: , good recorded title . Record title" means a title officially of record S. P. & C. v. Hollis (1987) 196 Cal. App. 3d 948 ruled at page 952:

Benjamin Petiprin would have seen the recorded lis pendens recorded February 1, 2012 and therefore knew there was litigation over the title that prevented perfection of title. Deutsche document 21756912 was created July 7, 2012 and was created under Cutlips recorded lis pendens. The relation back doctrine of a lis pendens prohibits the perfection of any title not of record at the time of its recording. California Civil Code Section 1213-1217XXXTHE TRIAL COURT WAS DECEIVED

The trial court relied upon the material misrepresentation of Deutsche attorney Benjamin Petiprin. The trial court based its final judgment on the altered document and perjured statements submitted into the court by Benjamin Petiprin. (Plaintiffs Ex, (C) a copy of a trial courts final judgment filed December 31, 2012 lines 21-27 trustees deed represented a prima facie case for plaintiff .)

Knowledge of illegality is not required for conduct to be willful within the meaning of 15 U.S.C. 77x. United State s v. English, 92 F.3d 909, 91416 (9th Cir. 1996).

The proof of the ultimate fact, to wit, that the decree was obtained by fraud Toledo Scale Co. v. Computing Scale Co. 10261 U.S. 399 (1923). Marshall v. Holmes 12 141 U.S. 589 (1891)

(Plaintiffs Ex, (b) a copy of the unlawful detainer complaint filed in case 112CV230319 Page (5) is the forged copy of the recorded document 21756922.

A fraudulent document presented and verified by an officer of the court to unlawfully obtain the courts jurisdiction is extrinsic fraud. Common examples of fraud upon the court include the fabrication of evidence by counsel,Greiner, 152 F.3d at 789

XXXIREASONABLE DELAY IN THE DISCOVERY OF THE FRAUD

Deutsche has never proven its authority to declare a default In the Quiet title or unlawful detainer.

During the quiet title case 112CV217452 Deutsche did not seek leave of court and had no recorded or unrecorded interest or assignment. In Deutsche demurrer to Cutlips FAC Deutsche stated it did not have a title instrument and did not oppose Cutlips title. There was no reasonable reason to believe Deutsche would continue to peruse the foreclosure. Cutlips Exhibit (9)-p-4:7-18)The fraud on the court was not discovered until after final judgment in the trial courts and after close of briefing in the courts of review. As the court pointed out in Gonzales v. Gem Properties, Inc. (1974) 37 Cal. App. 3d 1029, 1036 [112 Cal.Rptr. 884], , "The summary nature of unlawful detainer proceedings suggests that, as a practical matter, the likelihood of the defendant's being prepared to litigate the factual issues involved in a fraudulent scheme to deprive him of his property, no matter how diligent defendant is, is not great."

XXXII

THE FRAUD PREVENTED THE DISCOVERY OF THE FRAUD

The delay in discovery is attributed to the fact that Deutsche attorneys inundated Cutlip with a dozen of copies of the document 21756912 mailed to his home. The document has a certified stamp that claims it is a certified copy of the recorded document. Deutsche attorney swore under penalty of perjury that it was a true and full copy of the recorded document

Cutlip and the courts reasonably relied on Benjamin Petiprin testimony that the document was a certified copy and had representation as to its effect on titles. The trial courts reliance affected the courts ability to adjudicate the case arbitrarily and impartially.

Cutlip reasonably relied on the document to be a true and correct copy of the recorded document to his detriment.

Cutlip did not go to the recorders office for another certified copy. Counsel for Deutsche had already inundated Cutlip with the purported certified copy mailing them to his home allegedly to prevent Cutlip from feeling the need to drive to the recorders office and pay for a document he already had ten certified copies of.

Cutlip went online and verified that the document was recorded and purported to be a trustee Deed and reasonably relied on the testimony of Deutsche attorney and the validity of a certified document of which Cutlip was sent many copies, Cutlip reasonably relied on good faith and fair dealings of the parties and that Deutsche attorneys testimony under penalty of perjuring where in fact truthful when they were not. Under The Clean Hands Doctrine Deutsche should not be able to take advantage of its own wrong doing.

Cutlip knew that the banks were held responsible for foreclosure problems and fined twenty five billion dollars but did not realize to what extent the banks and servicers were going to in perpetrating this fraud and apparently neither have the courts.Deutsche created a false document and had it unlawfully recorded outside the chain of title with a disclaimer no representation to title. Deutsche had its attorney white the message out and add a false certificate using the recorders fee and the recorders number to make it look authentic. Deutsche had its attorney submit the document as proof of its cause of action for perfection of title, this is reprehensible. Deutsche and council committed over five felonies under California penal code and have gone unpunished; PC 132,134, 118, 115, 470d, 532a not to mention moral turpitude. It is an unconscionable scheme to obtain judgment that through good conscience should not be allowed to stand.

XXXIII THE FRAUD PREVENTED CUTLIP FROM THE PRESENTATION OF A FULL DEFENSE

The perjury and the fraud of opposing council prohibited Cutlip from the presentation of his complete defense. A duly perfected title is a prerequisite mandated by statute for a plaintiff filing an action under Cal Civil Code Proc.1161a to state a cause of action. Had Cutlip known the recorded document 21756912 has no representation to title and is not evidence of perfection of title Cutlip would have noticed the court to the fact that Deutsche document 21756912 has scribed on its face that it has no representation to title and does not affect title and is not proof of a duly perfected title and therefore Deutsche failed to state a cause of action for perfection of title and the five day summons was unlawful and the case would have been dismissed.

Document 21756912 was the only document submitted in to the court to prove Deutsche had any interest to title to the subject property, absent the fraud Cutlips would have been able to present a full defense to dismiss for failure to state a cause of action for a duly perfected title under 1161a.

XXXIVUNCONSCIONABLE SCHEME

Plaintiff is not Relying on a state court legal errors as the basis for relief, therefore Rooker-Feldman does not bar his federal action. This court is not being called upon to sit in an appellate capacity to review judicial legal error and second guess the merits of the state court decision. Worldwide Church of God v. McNair, 805 F.2d 888, 892- 93 (9th Cir. (1986.)

This action does not impeach the regularity of the judgment it merely establishes that the judgment was obtained through fraud, on the court an undue advantage that the party ought not to be allowed to profit. Pearce v. Olney, 20 Conn. 544.The unconscionable plan was to recorded false documents against Cutlips property. The title company placed a disclaimer on the recorded document 21756912 in the Santa Clara County Recorders Office to avoid liability for recording spurious document outside the chain of title. It reads; no representation as to its effect upon title, Deutsche had its attorney remove the disclaimer and put a fake certified sticker on the document. A dozen copies were sent to Cutlips home allegedly so Cutlip wouldnt go to the recorded office for another copy. Deutsche attorney submitted the forged document 21756912 into evidence under penalty of perjury as a trustee deed and proof of perfection of title. The fraud created the appearance of a cause of action for perfection of title in order to unlawfully obtain the unlawful detainer courts summary format jurisdiction, The unlawful detainer summary format prohibits the defendant from frustrating the summary nature of the action by preventing the defendant form cross complaints for fraud..Here, even if we consider nothing but the sworn admissions and evidence submitted on August 14, 2014 by Deutsche attorney Benjamin Petiprin in case 112CV230319 we find a deliberately planned and carefully executed scheme to defraud the trial court of its jurisdiction. Proof of the scheme, and of its complete success up to date, is conclusive.

Benjamin Petiprin behavior was unreasonable, both as a matter of his general practice of claiming his clients absence from the country and verifying evidence and the complaints when it was not true that the entire corporate body for Deutsch National Trustee Company were all out of the country even if it were true Benjamin Petiprin could have easily made the complaint and evidence available to a corporate signer no matter where they were located.

Benjamin Petiprin should have advised Deutsche the U.D. action would be inappropriate under the circumstances, instead Benjamin Petiprin altered a recorded document knowingly gave perjured testimony and made material misrepresentations about his client standing, finessing the court with the appearance of legality and a cause of action for perfection of title, unlawfully obtaining the courts jurisdiction.

Benjamin Petiprin works for a firm specializing in foreclosures, Benjamin Petiprin knows what a court expects to see as corroborating evidence in a like case. Deutsche as a purported foreclosing beneficiary in all probability would need to present a trustee deed showing perfection of title, an assignment of the mortgage a copy of the note and payment history to facilitate an unlawful detainer. When Deutsche could not produce the necessary documents Benjamin Petiprin took it upon himself to structure the complaint and positioning Deutsche as a third party purchaser without notice and that is exactly the way the complaint is structured with Deutsche as purchaser from a party with an existing beneficial interest in the mortgage.

Nowhere in the complaint is there a reference to the Cutlips Note, Deed or Deutsche as the foreclosing party or the beneficiary. There is no claim of an assignment or transfer of the Cutlips mortgage or of Deutsche authority to foreclose.

Deutsche only claim of authority to purport to foreclose is an after acquired interest in a purported trustee deed recorded outside the chain of title and scribed with the disclaimer that it has no representation as to its effect upon title.

Benjamin Petiprin knew this was improper and unlawful when he misrepresented his client position, purposely misrepresenting his client as a bona fide purchaser without notice to camouflage his client unlawful reliance on an after acquired interest in the document that he altered, this fact alone is conclusive of the fact that Deutsche is not the real party in interest or, the holder in due course.

Benjamin Petiprin knew document 21756912 would not pass as proof of a duly perfected title when it had no representation as to its effect upon title stamped on it.

The unlawful detainer defendant could address this in a motion to dismiss for failure to state a Cause of action for perfection of title. That is why prior to August 14, 2012 and prior to attaching the copy of recorded document 21756912 to the unlawful detainer complaint Benjamin Petiprin altered it to create the appearance of perfection of title and materially misrepresented the document as proof of his clients cause of actions for perfection of title.

Benjamin Petiprin structured the unlawful detainer complaint to purposely misrepresent his clients position to deceive and manipulate the court.

Deutsche claiming title in a trustee deed was in violation of a threshold issue of the real party in interest. Benjamin Petiprin intentionally misrepresented his clients position and unlawfully altered the recorded document this was done for several reason, to hide the fact Deutsche had no title whatsoever in the Cutlips property and secondly to deceive the court of its jurisdiction by creating the appearance of a perfected title.

Perfection of title is a prerequisite that is required by statute 1161a to obtain the unlawful detainer courts jurisdiction, the summary format jurisdiction deprived Cutlip of a full fair defense.

Benjamin Petiprin actions and behavior were reckless and in total disregard for the truth and the law, with the intent to deceive the court of its jurisdiction made with malice aforethought and wanton and reckless disregard of the consequences and of the rights and of the feelings of others.

In the end, the court must hold responsible the attorneys who certified to the court that the representations they are making were "well-grounded in law and fact."

The information in the unlawful detainer complaint is not superficially plausible. A reasonable attorney would not file a an action in unlawful detainer under 1161a without the appropriate collateral backing of evidence in support for the action at a minimum proof of his client beneficiary interest or authority to foreclose would have been required.

XXXV FRAUD ON THE COURT HAS BEEN PLED WITH SPECIFICITY.1) Cutlip pled a false representation exhibit (b) establishes that on August 14, 2012 Benjamin Petiprin verified the unlawful detainer complaint in case No. 112CV230319 knowingly misrepresented The recorded document 21756912 attached to said complaint that it was a certified true full copy of the recorded document and further was proof of perfection of his clients title this was false as shown by Cutlips exhibit (a) the copy submitted by Benjamin Petiprin has had the express langue stating the document has no representation to title has been removed ,, a plausible conclusion is this document is not proof of title (2) Benjamin Petiprin misrepresentations are in reference to material facts concerning his clients perfect title, perfection of title was required to obtain the court jurisdiction absent the fraudulent forged document and the perjured testimony concerning that document establishing his clients perfection or title Deutsche failed to state a cause of action under section 1161a..

(3)) Benjamin Petiprin made material misrepresentations in the unlawful detainer complaint filed August 14, 2012 in the Superior Court of Santa Clara case No. 112CV230319 the testimony was with knowledge of its falsity.

Benjamin Petiprin was required to inspect the recorded document 21756912 prior to verifying his copy was a true full copy of the recorded document.

(4) Benjamin Petiprin altered recorded document 21756912 and in the complaint he verified and filed August 14, 2012 and made misrepresentation that it was a full certified copy and proof of his client perfection of title with the intent to deceive the court of its jurisdiction by knowingly and falsely presenting the appearance of a valid cause of action for perfection of title required by statue 1161a that the complaint was filed under.

Prior to filing the complaint and evidence into the superior court on August 14, 2012 Benjamin Petiprin removed the disclaimer that showed the document was not a title instrument, and added a false certification.

On August 14, 2012 Benjamin Petiprin submitted a copy of document 21756912 into court as proof of perfection of his clients perfection of title when he knew this was false in a carefully planned scheme by Benjamin Petiprin to unlawfully obtain the courts jurisdiction and then use the unlawful detainer courts summary jurisdiction to prohibit Cutlip from presenting a full defense because of the restrictive statute limiting the allowable defense in the summary format preventing a defendant from counter claims and attacking the trust deed.

(5) The unlawful detainer court relied on the misrepresentation of Benjamin Petiprin this is verified in the unlawful detainer courts final judgment in favor of plaintiff based entirely on Benjamin Petiprin misrepresentation and forged copy of document 21756912.

The unlawful detainer court reasonably relied on the false testimony of Peteprin stating under penalty of perjury that the document was a certified copy of the recorded document as proof of perfection of title. The court based its final Judgment entirely on the fraudulent document. Hart v. McLucas, 535 F.2d 516,519 (9th Cir. 1976) (citing Pence v. United States, 316 U.S. 332, 338, 62 S.Ct. 1080, 1083, 86 L.Ed. 1510 (1942)). XXXVITHE DEMANDING STANDARDS FOR FRAUD ON THE COURT The majority agrees that the requirements of 9(b) are met when there is sufficient identification of the circumstances constituting fraud so that the defendant can prepare an adequate answer to the allegations Semegen v. Weidner, 780 F.2d 727,731 (9th Cir. 1985).

The fraud claims against Deutsche and Petiprin are sufficiently pled. As discussed supra, Rule 9(b) requires fraud claims to be pled with particularity "but a pleading is sufficient under Rule 9(b) if it identifies 'the circumstances constituting fraud so that the defendant can prepare an adequate answer from the allegations.' " Gottreich v. San Francisco Investment Corp., 552 F.2d 866 (9th Cir.1977) (quoting Walling v. Beverly Enterprises, 476 F.2d 393, 397 (9th Cir.1973)).

Cutlip has stated the time, August 14, 2012 place Santa Clara Superior Court and nature of the alleged fraudulent activities of Deutsche and its counsel Benjamin Petiprin knowingly submitted a forged a copy of the recorded document 21756912 into the unlawful detainer court on August 14, 2012 and made misrepresentation as to the documents authenticity and proof of his client perfection of title to obtain jurisdiction of the court by Deutsche and its counsel Benjamin Petiprin and that is sufficient. See Bosse v. Crowell Collier & Macmillan, 565 F.2d 602, 611 (9th Circuit

Benjamin Petiprin swore under penalty of perjury that the copy of document 21756912 attached to the unlawful detainer complaint was a certified copy of the recorded document and proof of perfection of title. The intentional material alteration of the copy of the recorded document by Benjamin Petiprin and his verification under penalty of perjury the documents authenticity when Petiprin knew this to be false is perjury and forgery. Betjeman Petiprin was required to see the original document and the records prior to verifying the copy as a true full copy and perfection of title even a superficial examination of the records would establish that the document was recorded outside the recorded chain of title and the recorded document was not a title instrument and defective . Benjamin Petiprin knew it was false and acted recklessly in total disregard for the law, allegedly to impress his client and obtain future business. The court relied on Deutsche attorney Benjamin Petiprin statements that the document was a true copy of the original recorded document and represented perfection of title for his client and was knowingly false when presented to the court.

Proof of the fact to wit is the courts final order was based on the belief that the copy of documents 21756912 submitted into court with the unlawful detainer complaint on August 14, 2012 was a certified copy of the recorded document and had a representation as to its effect upon title. The unlawful detainer court based its final judgment on the copy of document 21756912 introduced by attorney Benjamin Petiprin as representing a prima facie case.

The alteration of a recorded document and presenting the document as a true full copy to deceive is forgery under California Penal Code 470 (d) Intentional deceiving the court of its jurisdiction by an officer of the court constitutes extrinsic fraud upon the court. Deutsche cannot explain this fact away as inadvertent.

The Third Circuit has described the standard as follows: In order to meet the n necessarily demanding standard for proof of fraud upon the court we Conclude that there must be: (1) an intentional fraud; (2) by an officer of the court; (3) which Is directed at the court itself; and (4) in fact deceives the court. Further concluded is that a determination of fraud on the court may be justified only by the most egregious misconduct directed to the court such as bribery of a judge or jury or fabrication of evidence by counsel and that it must be supported by clear, unequivocal and convincing evidence. Id. at 386-87 (The court further

Dixon v. Commissioner,No. 00-70858, 2003 U.S. App. LEXIS 4831, at *11-12 (9th Cir. Mar. 18, 2003), amending 316 F.3d 1041 (9th Cir. 2003), or by egregious misconduct directed to the court itself.

XXXVIIEXHAUSTED THE STATE COURT REMEDIES

. The Superior Court for the County of Santa Clara Appellate division confirmed the trial courts judgment in an opinion filed June 24, 2014 a timely petition for reconsideration was filed July 10, 2014 and denied without opinion. A timely petition for transfer was filed with The Sixth District Court of Appeal and denied without opinion August 27, 2014.Cutlip was given the runaround for six months when the unlawful detainer court had no jurisdiction hear a motion to vacate.

XXXVIIITHE UNLAWFUL DETAINER HAS NO JURISDICTION TO HEAR SUPPLEMENTAL OR INDEPENDENT EQUITABLE ATTACKS ON ITS PRIOR JUDGMENTS. The unlawful detainer court has no jurisdiction to hear offensive motion in equity and although Cutlip filed motions to vacate there was no hearings held on these motions for the reason that the court had no jurisdiction to hear an offensive motion in equity to vacate a judgment. Jurisdiction-Suits In Equity-Exception To Rule.-A Motion To Vacate A Judgment On Grounds Of Extrinsic Fraud Or Mistake Is Not A Defensive Pleading, Nor Can A Municipal Court's Jurisdiction Entertain Such A Motion nor can it be Otherwise Implied From Code Civ. Proc., 89, Prescribing The Original And Equitable Jurisdiction Of Municipal Courts. Bloniarz v. Roloson (1969) 70 Cal.2d 143 [74 Cal.Rptr. 285There has not been a hearing on fraud or fraud on the court there are no judgments or order.

The quiet tiled case contains the same parties, property and basic cause of action and was dismissed for failure to tender, there is no language in the quiet title courts final judgment that title has been adjudicated in favor of Deutsche or that Deutsche had superior title. The quite title cause of action was dismissed for failure to tender if it had been found Deutsche had a superior title it is only logical the case would not have been dismissed for failure to tender. There is no language that the title had been quieted in Deutsch favor.Cutlip has suffered distinct and palpable injury due to Deutsche recording unauthorized spurious document clouding his title. Cutlips injuries arise from Deutsche initiating legal proceedings when it knew it had no legal authority, which has compelled Cutlip to spend time and lost income and cost involved defending his interest. The loan is not in default as Deutsche has no right to declare a default and has no bearing on Deutsche lack of standing to sue.

XXXIXABSENT THE FRAUD THE COMPLAINT DOES NOT SUPPORT

AN ACTION IN UNLAWFUL DETAINER THE COURT LACKED

BOTH SUBJECT MATTER AND PERSONAL JURISDICTIONThe courts actions are so obviously wrong in light of the pre existing law , that only a plainly incompetent officer or one who was knowingly violating the law would have done such a thing or entered a judgment based on such a thing.This instant action is not dealing with the same facts as the state court that rendered the decree, and Cutlip is not asking the federal courts to review the merits of the unlawful detainer judgment. What is at issue is the unlawful detainer court was without subject matter jurisdiction and or personal jurisdiction the court could not have made a judgment. A courts lack of Jurisdiction can be brought at any time. The "due process of law" requirement of the fourteenth amendment is found in situations where the judgment being attacked is void rather than voidable. Where, for example, the prior court had no jurisdiction of the parties or the subject matter, the action attacking that judgment may properly be brought in the federal courts without regard to state law. In such situations, the proceeding is a federal question case. It is only when the judgment of a state court is void either because that court lacked jurisdiction of the subject matter or of the parties to the action, or because it entered a judgment which it had no power to enter under the law, that such judgment may be reviewed in a federal court." Id. at 797."3See note 46 supra.[Vol. 1964:109.An excess of jurisdiction As was said inBroomv. Douglass,175 Ala. 268 [Ann. Cas. 1914C, 1155, 44 L.R.A. (N.S.) 164,57 So. 860]:"By `excess of jurisdiction,' as distinguished from the entire absence of jurisdiction, we understand and mean that the act, though within the general power of the judge, is not authorized, and therefore void, with respect to the particular case, because the conditions which alone authorize the exercise of his general power in that particular case are wanting; and the judicial power is not in fact lawfully invoked." hence it, would be a judicial act in excess of the court's jurisdiction, although it may have had general jurisdiction of the persons and subject matter of the cause. "When an asserted power is inconsistent with an established right, the power must be denied." (Ex parte Alabama Marble Co.,216 Ala. 272 [113 So. 240].) XLCOUNT TWO the unlawful detainer court failed to acquire jurisdiction over defendant. An Unrepresented defendant in an unlawful detainer cannot submit to personal jurisdiction; California Judges bench guide to Unlawful detainers. Plaintiff incorporates the previous paragraphs as if fully contained herein. Absent the fraud plaintiff failed to state a cause of action under unlawful detainer statute and the five day summons was unlawful and did not vest jurisdiction in the court over the defendant. The Failure of a complaint to state a cause of action under unlawful detainer statute 1161a for perfection of title. Service of a substantially defective summons does not confer jurisdiction over a party. (Code Civ. Proc., 412.20, Code Commissioners' Notes, Notes 1, 2, and 3.) Here the summons was fatally defective. A summons must contain a direction that the defendant files a responsive pleading within 30 days unless some specific statute modifies the time for response. (Code Civ. Proc., 412.20.) Plaintiff purported to utilize Code of Civil Procedure section 1167, applicable to actions in unlawful detainer, to secure a summons calling for a response within five days. The section 1167 summons is inappropriate in the case at bench because the complaint, if it states a cause of action at [51 Cal.App.3d 452] all, states it on a theory other than