TIMOTHY L. MCCANDLESS, ESQ.

SBN 147715
1
LAW OFFICES OF TIMOTHY L. MCCANDLESS
2 13240 Amargosa Road
Victorville, California 92392
3
(760) 951-3663 Telephone
4
(909) 382-9956 Facsimile
5

6 Attorney for Plaintiffs

7
«Client_FirstName» «Client_LastName» and Merly Mahinay

9 SUPERIOR COURT FOR THE STATE OF CALIFORNIA

10 IN AND FOR COUNTY OF «File_Court»

11
«Client_LastName» «Client_FirstName»,
12 CASE NO: «File_CrtCaseNum»
Plaintiffs,
13
COMPLAINT FOR:
14
V. MONETARY DAMAGES
STATUTORY DAMAGES, PUNITIVE
15 DAMAGES, INJUNCTIVE RELIEF AND
DECLARATORY RELIEF
16
«Def_First»«Def_Last»«Def_Last» and
DOES 1 through 50 inclusive 1. VIOLATION OF CALIFORNIA CIVIL
17
CODE §2923.6;
2. VIOLATION OF BUSINESS AND
18 Defendants. PROFESSIONS CODE §17200;
19
3. BREACH OF COVENANT OF GOOD
AND FAIR DEALING;
20 4. INJUNCTIVE RELIEF;
5. VIOLATION OF CIVIL CODE §1572;
21 6. FRAUD;
7. DECLARATORY RELIEF;
22 8. INTENTIONAL MISREPRESENTATION;
9. TO SET ASIDE FORECLOSURE
23 10. VIOLATION OF CALIFORNIA CIVIL
CODES §2923.5 AND §2924.
24

25

26
Plaintiffs, «Client_LastName»«Client_FirstName», (Hereinafter referred as “Plaintiffs”) allege
27 herein as follows:

28

1
_________________________________________________
COMPLAINT
1

3 I.
4

5 GENERAL ALLEGATIONS

6 1. Plaintiffs, «Client_FirstName»«Client_LastName»at all times relevant have been

7
residents of the County of «Client_City», State of California and the owners of Real
8
Property, including but not limited to the property at issue herein,
9

10
«Client_Address»The Legal descriptions are as follows:

11 Put in APN #
12 Put in legal description.
13
2. Defendant, INSERT LENDER. (hereinafter “INSERT LENDER”) at all times herein
14
mentioned was doing business in the County of San Bernardino, State of California and
15

16 was the original Lender for Plaintiff’s Trust Deed and Note.

17 3. Mortgage Electronic Registration Systems Inc., (hereinafter “MERS”) at all times

18
herein mentioned was presumed to being doing business in the County of
19
«Client_City», State of California and alleged to be the Beneficiary regarding
20
Plaintiffs’ Real Property as described above and as Situated in «Client_City»County
21

22 California

23 4. Defendant, INSERT DEFENDANT - note that this is the def who is on default.
24
(hereinafter “INSERT DEFENDANT”) at all times herein mentioned was doing
25
business in the County of «Client_City», State of California and was listed on the
26

27
Notice of Default for the above named Real Property.

28

2
_________________________________________________
COMPLAINT
 5. Defendant, INSERT DEFENDANT. (hereinafter “INSERT SHORT NAME OF
1

2 DEFENDANT”) at all times herein mentioned was doing business in the County of

3 San Bernardino, State of California and was listed on the Notice of Default for the
4
above named Real Property.
5
6. Plaintiffs are ignorant of the true names and capacities of defendants sued herein as
6

7
DOES 1 through 50, inclusive, and therefore sues these defendants by such fictitious

8 names and all persons unknown claiming any legal or equitable right, title, estate, lien,
9 or interest in the property described in the complaint adverse to plaintiff(s title, or any
10
cloud on Plaintiffs title thereto. Plaintiff will amend this complaint to allege their true
11
names and capacities when ascertained.
12

13 7. Plaintiffs are informed and believe and thereon allege that, at all times herein

14 mentioned each of the defendants sued herein was the agent and employee of each of
15
the remaining defendants. Plaintiffs allege that each and every defendant alleged herein
16
ratified the conduct of each and every other defendant. Plaintiffs further allege that at
17
all times said defendants were was acting within the purpose and scope of such agency
18

19 and employment.

20 8. Plaintiffs purchased the foregoing Real Property and on or about INSERT DATE OF
21
DOTfinanced their purchase through INSERT ORIGINAL LENDERby virtue of a
22
Trust Deed and Notes securing the Loans. (See Exhibit “A”)
23

24
9. Plaintiffs are informed and believe that directly after INSERT ORIGINAL LENDER

25 caused Mortgage Electronic Registration Systems (“MERS”) to go on title as the

26 “Nominee Beneficiary” this is routinely done in order to hide the true identity of the
27
successive Beneficiaries when and as the loan was sold. MERS, however, acted as if
28

3
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COMPLAINT
 they were the actual beneficiary although a Nominee is an entity in whose name a
1

2 security is registered through true ownership is held by another party, in other words

3 MERS is not the Beneficiary but is used to hide the true identity of the Beneficiary.
4
Based on this failure to disclose, and the lack of consideration paid by MERS,
5
Plaintiffs allege that the Deed of Trust were never perfected and are a nullity as the
6

7
MERS recording separates the Debt from the Lien, and this is more so especially upon

8 a sale of the Note and Trust Deed.

9 10. Plaintiffs further allege that MERS acts as a Nominee for more than one principal,
10
and conceals their identity therefore if a Nominee is the same as an agent MERS
11
cannot act as an agent for multiple Banks, insurance and title companies and Mortgage
12

13 Companies because of a serious Conflict of interest. In addition Plaintiff allege that a

14 Deed of Trust cannot lawfully be held by a Nominee who has no financial interest in
15
the instrument without disclosing the identity of the actual Beneficiary, and that if a
16
party with no interest in the Note records it in their name the recorded deed is Nullity.
17
11. Plaintiffs further allege that MERS failure to transfer beneficial interests as the Note
18

19 and deed are sold further renders the Deed recording a nullity.

20 12. Plaintiffs further allege that on or about INSERT DATE OF DEED OF TRUST,
21
Defendants allege that Plaintiffs became in default of their loan. (See Exhibit “B”)
22
However this default of the loan was occasioned by the high payments, the structure of
23

24
the loan and interest rate. Furthermore, Plaintiffs were not in default because of the

25 prior breach of the terms of the notes by Defendants, and each of them, and therefore,
26 the performance of Plaintiffs is excused. In addition, the Declaration of Due Diligence
27
attached to the Notice of Default is void because the required “penalty of perjury” and
28

4
_________________________________________________
COMPLAINT
 signature of a person with actual knowledge is missing which will be discussed later in
1

2 the complaint.

3 13. Plaintiffs allege that the loan contract was procedurally and substantively
4
unconscionable because while the Plaintiffs’ stated income at the time of making the
5
loan was unknown to plaintiff, whereas, the payment on the loan exceeded the
6

7
Plaintiffs’ entire spendable income, the employees and/or agents of INSERT ORIG

8 LENDERdid not disclose to Plaintiffs the terms and conditions of the repayment, and
9 Plaintiffs executed documents without any explanation whatsoever.
10
14. Plaintiffs allege that the employees and/or agents of INSERT ORIG
11
LENDERrepresented that said employees and/or agents could work-around the fact
12

13 that Plaintiffs’ credit was not in good standing and could get Plaintiffs approved for the

14 loan. Defendants did not disclose at any time to Plaintiffs that the initial loan payment
15
would exceed their entire income. Plaintiffs allege that the loan contract, deed of trust
16
and accompanying documents were offered to Plaintiffs on a take it or leave it basis.
17
15. Further, on information and belief, Plaintiffs allege that the Defendants charged and
18

19 obtained improper fees for the placement of their loan as “sub-prime” when they

20 qualified for a prime rate mortgage which would have generated less in fees and
21
interest.
22
16. On information and belief, Plaintiffs allege that the service of the purported note was,
23

24
without their knowledge, by some means transferred from or by Defendant INSERT

25 ORIG LENDEReither completely or by association or other means to MERS who

26 unknown to Plaintiffs provided services in various forms to be determined to others
27
which were of such a nature to render them a “Servicer.”
28

5
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COMPLAINT
 17. Also on INSERT DATE OF DEED OF TRUSTPlaintiffs executed a “Deed of Trust”
1

2 which cited the lenders INSERT ORIG LENDER/DEFENDANTS and stating in the

3 definition section that:

4
(E) “MERS” is a Mortgage Electronic Registration Systems, Inc., MERS is a separate
5
corporation that is acting solely as a nominee for Lender and Lender’s successors and
6

7
assigns. MERS is the beneficiary under this Security Instrument.

8 18. Plaintiff alleges that Defendant INSERT DEFENDANTand a superior bargaining

9 strength over Plaintiff, and that Plaintiffs was relegated only the opportunity to adhere
10
to the contract or reject it, that INSERT DEFENDANTdrafted all of the documents
11
related to the loan, that no negotiations were possible between Plaintiffs and INSERT
12

13 DEFENDANT, and MERS, and that the contract was a contract of adhesion.

14 19. Plaintiff alleges that the loan was unconscionable in that the repayment terms were
15
unfair and unduly oppressive, because the payments exceeded Plaintiffs entire
16
combined income and as such, Defendants, and each of them, cannot enforce the terms
17
and conditions of the loan against Plaintiffs, and any non-judicial foreclosure arising
18

19 there from is void.

20 20. Plaintiff is informed and believes and thereupon alleges that Defendants, and each of
21
them, entered into a fraudulent scheme, the purpose of which was to make a loan to
22
Plaintiff, which Defendants, and each of them, were keenly aware that Plaintiff could
23

24
not afford, at a cost way above the then prevailing market rate, made loans to Plaintiff

25 and falsely represented to Plaintiff that they could not qualify for any other financing,
26 that Plaintiff could not qualify under any reasonably underwriting guidelines, that such
27
scheme was devised to extract illegal and undisclosed compensation from Plaintiff by
28

6
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COMPLAINT
 virtue of an undisclosed yield spread premium and which Defendants, and each of
1

2 them, shared in some presently unknown percentage.

3 21. Plaintiff is informed and believes and therefore alleges that their loans after they were
4
originated and funded were sold on multiple occasions, bundled into a group of Trust
5
Deeds and subsequently sold to investors as a Derivative, “Mortgage Backed Security”,
6

7
and that therefore none of these defendants, and each of them, owned this loan, or Note

8 and cannot be and are not the Beneficiary, or lawfully appointed trustee, and have no
9 right to declare a default, to cause notices of default to issue or to be recorded, or to
10
foreclose on Plaintiffs interest in the subject property, Defendants, and each of them,
11
were not the note Holder or the Note holder in due course or any Beneficiary at any
12

13 time in regards to this loan.

14 22. That none of these Defendants, and each of them, were ever disclosed as the
15
beneficiary in accordance with California Code of Civil Procedure section 2924 et seq.
16
Moreover The California Legislature passed Senate Bill 1137, impacting residential
17
mortgage lenders, foreclosure procedures and eviction procedures. The Governor has
18

19 signed this law into effect and it has taken effect as Urgency Legislation. The law has

20 three pertinent parts. It amends California Code of Civil Procedure Section 1161(b)
21
regarding notice of an eviction. It adds a provision strengthening the right of local
22
governments to adopt “blight” ordinances and moreover, it modifies the non-judicial
23

24
foreclosure procedures set forth in California Civil Code Section 2924. The legislature

25 recognized that the need for such legislation by stating as follows:

26

27 “…It is essential to the economic health of California for the state to ameliorate
28
the deleterious effects on the state economy and local economies and the
California housing market that will result from the continued foreclosures of

7
_________________________________________________
COMPLAINT
 residential properties in unprecedented numbers by modifying the foreclosures
1
process to require mortgagees, beneficiaries, or authorized agents to contact
2 borrowers and explore options that could avoid foreclosure…”

3
This law is effective immediately and extends on to January 1, 2013. This law
4

5 impacts owner-occupied primary residences only and only loans made on January 1, 2003

6 and December 3, 2007. California Civil Code Section 2924 states in part:
7
Foreclosure:
8
The primary purpose for the Statute is foreclosure procedures and imposes an
9

10
unprecedented duty upon lenders relating to contact with borrowers. The Statute amends

11 provisions of the non-judicial foreclosure procedures found in California Code of Civil

12
Procedure §2924, by adding requirements for meetings, due diligence, and notification of
13
counseling. Some of the more important provisions include all of the following:
14

15
• The lender, beneficiary or authorized agent must wait thirty (30) days after contact is
16
made with the borrower, or thirty days (30) after satisfying the due diligence requirements
17
set forth in the Statute, in order to commence the filing of a Notice of Default.
18

19 • The contact requires that the borrower’s financial situation be assessed and requires that

20 the borrower and lender explore options for the borrower to avoid foreclosure.
21
This was not done by plaintiff or the lender.
22
• The Statute requires the lender or their authorized agent to advise the borrower that the
23

24
borrower has the right to a subsequent meeting within fourteen (14) days of the initial

25 contact.
26 • The borrower is to be provided a toll free telephone number available at HUD for
27
certified housing counseling agencies.
28

8
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COMPLAINT
 • The borrower may designate an authorized agent, such as a counseling service,
1

2 REALTOR® or attorney, to act as their authorized agent but must expressly approve any

3 workout agreement reached by that agent.

4
• The Notice of Default must include a declaration indicating that the lender has made the
5
contact or made a diligent effort to make the contact and will not apply in the event of
6

7
surrender of the property.

8 • If the Notice of Default was already recorded prior to the date of the Statute, this
9 declaration must be included in Notices of Sale.
10
• In the event that the lender is initially unable to contact the borrower, they must attempt
11
telephone contact on three separate occasions at three different times.
12

13 • The lender must provide the borrower with an (800) number that will be answered by a

14 live person during normal business hours and provide certain links to web pages. The web
15
page must be a prominent link and must link to the following information:
16
- Options for borrowers who cannot afford their payments.
17
- A list of financial documents to gather when discussing their options.
18

19 - A toll-free telephone number available by HUD for certified counseling services.

20 - A toll-free telephone number for borrower’s to discuss options to avoid foreclosure with
21
the lender or lender’s representative.
22
Defendants did not fully comply with this code therefore the title is not duly
23

24
perfected.

25 23. Plaintiffs further allege on information and belief that none of these alleged
26 beneficiaries or representatives of the Beneficiary have the original note to prove that
27
they are in fact the party authorized to conduct the foreclosure.
28

9
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COMPLAINT
 24. Plaintiffs further allege that the foreclosure sale of the Subject Property was not
1

2 executed in accordance with the requirements of California Civil Code Sections

3 2923.5, 2932.5 and Commercial Code section 3302 et seq.

4
25. That the notices and foreclosure failed to conform with the provisions of California
5
Civil Code Sections 2923.5, 2932.5 et seq., and Commercial Code section 3302
6

7
et seq. Furthermore, the Notice of Default did not have a penalty of perjury disclosure,

8 nor is the agent of personal knowledge. Therefore, it is not a valid declaration.

9 26. Plaintiffs further allege that California Civil Code section 2924 et seq. and its subparts
10
are being applied to Plaintiffs in a manner that is unlawful, because at least in part the
11
party acting as the Trustee proceeded with the foreclosure of Plaintiffs Subject
12

13 Property notwithstanding the fact that the Trustee was not in possession of the original

14 Note, that the Note when it was assigned, the assignment by INSERT
15
LENDER/DEFENDANTand its assigns, did not covey the power of sale because it
16
violated the terms of California Civil Code section 2932.5, that the assignment when it
17
was made, that the Note executed by Plaintiff was no longer a negotiable instrument
18

19 because the assignment was not physically applied to the Note pursuant to the holding

20 of Pribus v. Bush, (1981) 118 Cal.App.3d 1003, 173 Cal.Rptr. 747, although there was
21
sufficient room on the back of the Note to complete the assignment, and as such the
22
foreclosure of Plaintiff’s subject property did not conform to the strict mandates of
23

24
Civil Code section 2924.76.

25 27. Plaintiffs allege that the employees and/or agents of INSERT

26 LENDER/DEFrepresented that said employees and/or agents could work-around the
27
fact that Plaintiffs’ credit was not in good standing and could get Plaintiffs approved
28

10
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COMPLAINT
 for the loan. Defendants did not disclose at any time to Plaintiffs that the initial loan
1

2 payment would exceed their entire income.

3 28. Plaintiffs allege that the loan contract, deed of trust and accompanying documents
4
were offered to Plaintiffs on a take it or leave it basis.
5
29. That by virtue of the method and manner of Defendants carrying out Civil Code
6

7
section 2924 et seq., the foreclosure of the Subject Property is void ab initio as a matter

8 of law.
9 30. Plaintiff alleges that Defendants, and each of them, are engaged in and continue to
10
engage in violations of California law including but, not limited to: Civil Code section
11
2924 et seq. and 2932.5 et seq., and unless restrained will continue to engage in such
12

13 misconduct, and that a public benefit necessitates that Defendants be restrained from

14 such conduct in the future.

15
II.
16
CALIFORNIA LEGISLATURE FINDINGS
17

18 31. Recently, the California Legislature found and declared the following in enacting
19
California Civil Code 2923.6 on July 8, 2008:
20

21

22
(a) California is facing an unprecedented threat to its state economy because

23
of skyrocketing residential property foreclosure rates in California. Residential

24
property foreclosures increased sevenfold from 2008 to 2007, in 2007, more than

25
84,375 properties were lost to foreclosure in California, and 254,824 loans went

26
into default, the first step in the foreclosure process.

27

28

11
_________________________________________________
COMPLAINT
1 (b) High foreclosure rates have adversely affected property values in
2 California, and will have even greater adverse consequences as foreclosure rates
3 continue to rise. According to statistics released by the HOPE NOW Alliance the
4 number of completed California foreclosure sales in 2007’ increased almost
5 threefold from 2002 in the first quarter to 5574 in the fourth quarter of that year.
6 Those same statistics report that 10,556 foreclosure sales, almost double the
7 number for the prior quarter, were completed just in the month of January 2008.
8 More foreclosures means less money for schools, public safety, and other key
9 services.
10

11 (c) Under specified circumstances, mortgage lenders and servicers are

12 authorized under their pooling and servicing agreements to modify mortgage loans
13 when the modification is in the best interest of investors. Generally, that
14 modification may be deemed to be in the best interest of investors when the net
15 present value of the income stream of the modified loan is greater than the amount
16 that would be recovered through the disposition of the real property security
17 through a foreclosure sale.
18

19 (d) It is essential to the economic health of California for the state to

20 ameliorate the deleterious effects on the state economy and local economies and
21 the California housing market that will result from the continued foreclosures of
22 residential properties in unprecedented numbers by modifying the foreclosure
23 process to require mortgagees, beneficiaries, or authorized agents to contact
24 borrowers and explore options that could avoid foreclosure. These Changes in
25 accessing the state's foreclosure process are essential to ensure that the process
26 does not exacerbate the current crisis by adding more foreclosures to the glut of
27 foreclosed properties already on the market when a foreclosure could have been
28

12
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COMPLAINT
1 avoided. Those additional foreclosures will further destabilize the housing market
2 with significant, corresponding deleterious effects on the local and state economy.
3
(e) According to a survey released by the Federal Home Loan Mortgage
4
Corporation (Freddie Mac) on January 31, 2008, 57 percent of the nation’s late-
5
paying borrowers do not know their lenders may offer alternative to help them
6
avoid foreclosure.
7

8
(f) As reflected in recent government and industry-led efforts to help troubled
9
borrowers, the mortgage foreclosure crisis impacts borrowers not only in
10
nontraditional loans, but also many borrowers in conventional loans.
11

12
(g) This act is necessary to avoid unnecessary foreclosures of residential
13
properties and thereby provide stability to California's statewide and regional
14
economies and housing market by requiring early contact and communications
15
between mortgagees, beneficiaries, or authorized agents and specified borrowers
16
to explore options that could avoid foreclosure and by facilitating the modification
17
or restructuring of loans in appropriate circumstances.
18

19
32. “Operation Malicious Mortgage’ is a nationwide operation coordinated by the U.S.
20
Department of Justice and the FBI to identify, arrest, and prosecute mortgage fraud
21
violators.” San Diego Union Tribune, June 19, 2008. As shown below, Plaintiffs were
22

23 victims of such mortgage fraud.

24 33. "Home ownership is the foundation of the American Dream. Dangerous mortgages
25
have put millions of families in jeopardy of losing their homes.” CNN Money,
26
December 24, 2007. The Loan which is the subject of this action to Plaintiff is of such
27
character.
28

13
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COMPLAINT
 34. "Finding ways to avoid preventable foreclosures is a legitimate and important concern
1

2 of public policy. High rates of delinquency and foreclosure can have substantial

3 spillover effects on the housing market, the financial markets and the broader
4
economy. Therefore, doing what we, can to avoid preventable foreclosures is not just
5
in the interest of the lenders and borrowers. It's in everybody's best interest." Ben
6

7
Bernanke, Federal Reserve Chairman, May 9, 2008.

8 35. Plaintiff alleges that Defendants had the duty to prevent such foreclosure, but failed to
9 so act.
10
36. "Most of these homeowners could avoid foreclosure if present loan holders would
11
modify the existing loans by lowering the interest rate and making it fixed, capitalizing
12

13 the arrearages, and forgiving a portion of the loan. The result would benefit lenders,

14 homeowners, and their communities.” CNN Money, id.

15
37. On behalf of President Bush, Secretary Paulson has encouraged lenders to voluntarily
16
freeze interest rates on adjustable-rate mortgages. Mark Zandl, chief economist for
17
Mood’s commented, “There is no stick in the plan. There are a significant number of
18

19 investors who would rather see homeowners default and go into foreclosure.” San

20 Diego Union Tribune, id.

21
38. “Fewer than l%· of homeowners have experienced any help "from the Bush-Paulson
22
plan.” San Diego Union Tribune, id. Plaintiffs' are not of that sliver that have
23

24
obtained help.

25 39. The Gravamen of Plaintiff's complaint is that Defendants violated State laws which
26 were specifically enacted to protect such abusive, deceptive, and unfair conduct by
27
Defendants, and that Defendants cannot legally enforce a non-judicial foreclosure.
28

14
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COMPLAINT
 40. Plaintiff is a "debtor" as defined by the Rosenthal Act, California Civil Code
1

2 1788.2(h).

3 41. Defendants are engaged in the collection of debts from consumers using the mail and
4
telephone.
5
42. Defendants regularly attempt to collect consumer debts alleged to be due to another.
6

7
43. Defendants are "debt collectors" as defined by the Rosenthal Act, California Civil

8 Code §1788.2(c).
9 44. The purported debt which Defendants attempted to collect from Plaintiff was a
10
"consumer debt" as defined by the Rosenthal Act, California Civil Code §1788.2(f).
11

12 Defendants Are Not Holders In Due Course Since Plaintiff Was Duped Into An

13 Improper Loan And There Is No Effective Endorsement:

14
45. Plaintiff incurred a "debt" as that term is defined by California Civil 17 Code
15

16 §1788(d), when he obtained a Loan on their Personal Residence.

17 46. The loan is memorialized via a Deed of Trust and Promissory Note, each of which
18
contain an attorney fees provision for the lender should they prevail in the enforcement
19
of their contractual rights.
20
47. Plaintiff has no experience beyond basic financial matters.
21

22 48. Plaintiff was never explained the full terms of their loan, including but not limited to

23 the rate of interest how the interest rate would be calculated, what the payment
24
schedule should be, the risks and disadvantages of the loan, the prepay penalties, the
25
maximum amount the loan payment could arise to.
26

27

28

15
_________________________________________________
COMPLAINT
 49. Certain fees in obtaining the loan, were also not explained to the Plaintiff, including
1

2 but not limited to "underwriting fees," "MERS registration fee," "appraisal fees,"

3 "broker fees”, “loan tie in fees," etc.

4
50. A determination of whether Plaintiff would be able to make the payments as specified
5
in the loan was never truly made.
6

7
51. Plaintiff's income was never truly verified.

8 52. Plaintiff was rushed when signing the documents; the closing process provided no
9 time for review and took minutes to accomplish.
10
53. Plaintiff could not understand any of the documents and signed them based on
11
representations and the trust and confidence the Plaintiff placed in Defendants’
12

13 predecessors.

14 54. Plaintiff is informed and believes that Defendants and/or Defendants' predecessors
15
established and implemented the policy of failing to disclose material facts about the
16
Loan, failing to verify Plaintiff's income, falsifying Plaintiff's income, agreeing to
17
accept a Yield Spread Premium, and causing Plaintiff's Loan to include a penalty for
18

19 early payment.

20 55. Plaintiff is informed and believes that Defendants and/or Defendants’ predecessors
21
established such policy so as to profit, knowing that Plaintiff would be unable to
22
perform future terms of the Loan.
23

24
56. Plaintiff was a victim of Fraud in the Factum since the forgoing misrepresentations

25 caused them to obtain the home loan without accurately realizing, the risks, duties, or
26 obligations incurred.
27

28

16
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COMPLAINT
 57. The Promissory Note contains sufficient space on the note itself for endorsement
1

2 whereby any assignment by allonge is ineffective pursuant to Pribus v. Bush, 118 Cal.

3 App. 3d 1003 (May 12, 1981).

4
58. Defendants are not holders in due course due to Fraud in Factum and ineffective
5
endorsement.
6

7 Defendants’ Lack Standing To Conduct A Non-Judicial Foreclosure

8 Pursuant To California Civil Code 2932.5
9

10 59. Defendants have no standing to enforce a non-judicial foreclosure.

11 60. Defendants are strangers to this transaction, and have no authority to go forward with
12
the foreclosure and Trustee's Sale.
13
61. Plaintiff executed a Promissory Note (hereinafter the “Note”) and a Deed of Trust to
14

15 INSERT ORIGINAL LENDER. (See “Exhibit A”)

16 62. INSERT ORIGINAL LENDERis the Lender and only party entitled to enforce the
17
Note and any security interest with it.
18
63. FIRST AMERICAN is not listed anywhere in the Deed of Trust or Promissory Note.
19
64. INSERT DEFENDANT(S)is not listed anywhere in the Deed of Trust or Promissory
20

21 Note

22 65. In California, California Civil Code § 2932.5 governs the Power of sale under an
23
assigned mortgage, and provides that the power of sale can only vest in a person
24
entitled to money payments: "Where a power to sell real property is given to a
25

26
mortgagee, or other encumbrancer, in an instrument intended to secure the payment of

27 money, the power is part of the security and vests in any person who by assignment
28 becomes entitled to payment of the money secured by the instrument. The power of

17
_________________________________________________
COMPLAINT
 sale may be exercised by the assignee if the assignment is duly acknowledged and
1

2 recorded.”

3 66. The «Client_City»County Recorder's Office does not contain any evidence of a
4
recorded assignment from INSERT DEFENDANT.
5
67. INSERT DEFENDANT(S)has never assigned their rights under the Note.
6

7
68. The power of sale may not be exercised by any of the Defendants since there was

8 never an' acknowledged and recorded assignment pursuant to California Civil Code §
9 2932.5.
10
69. Since the Defendants did not comply with California Civil Code§2932.5, the Notice
11
of Default provisions of California Civil Code § 2924 were likewise never complied
12

13 with.

14 70. INSERT DEF WHO DID THE DEFAULT NOTICE never complied with the Notice
15
of Default provisions of California Civil Code §2924. (See Exhibit “B”)
16
71. INSERT DEFENDANT WHO DID DEFAULT NOTICE never complied with the
17
Notice of Default provisions of California Civil Code §2924.
18

19
Defendants’ Lack of Standing to Enforce A Non-Judicial Foreclosure Pursuant To
20
California Commercial Code § 3301
21

22 72. A promissory note is person property and the deed of trust securing a note is a mere

23 incident of the debt it secures, with no separable ascertainable market value.

24
California Civil Code §§ 657, 663. Kirby v. Palos Verdes Escrow Co., 183 Cal. App.
25
3d 57, 62.
26

27
73. Any transfers of the notice and mortgage fundamentally flow back to the note:

28

18
_________________________________________________
COMPLAINT
 "The assignment of a mortgage without a transfer of the Indebtedness confers no right,
1

2 since debt and security are inseparable and the mortgage alone is not a subject of

3 transfer, " Hyde v. Mangan (1891) 88 Cal. 319, 26 P 180, 1891 Cal LEXIS 693;
4
Johnson v, Razy (1919)181 Cal 342, 184 P 657; 1919 Cal LEXIS 358;
5
Bowman v. Sears (1923, Cal App) 63 Cal App 235, 218 P 489, 1923 Cal App LEXIS
6

7
199; Treat v. Burns (1932) 216 Cal 216, 13 P2d,724, 1932 Cal LEXIS 554.

8 80. ''A mortgagee's purported assignment of the mortgage without an assignment of the
9 debt which is secured is a legal nullity.” Kelley V. Upshaw (1952) 39 Cal 2d 179,
10
246 P2d 23, 1952 Cal. LEXIS 248.
11
74. ''A trust deed has no assignable quality independent of the debt; it may not be
12

13 assigned or transferred apart from the debt; and an attempt to assign the trust deed

14 without a transfer of the debt is without effect.” Domarad v. Fisher & Burke, Inc.
15
(1969 Cal. App. 1st Dist) 270 Cal. App. 2d 543, 76 Cal. Rptr. 529, 1969 Cal. App.
16
LEXIS 1556.
17
75. The Promissory Note is a negotiable instrument.
18

19 76. Transferring a Deed of Trust by itself does not allow enforcement of the instrument

20 unless the Promissory Note is properly negotiated.

21
77. Where an instrument has been transferred, enforceability is determined based upon
22
possession.
23

24
78. California Commercial Code § 3301 limits a negotiable instrument's enforcement to

25 the following:
26 "Person entitled. to enforce" an Instrument means (a) the holder of the instrument,
27
(b) a nonholder in possession of the instrument who has the rights of a holder, or
28

19
_________________________________________________
COMPLAINT
 (c) a person not in possession of the instrument who is entitled to enforce the
1

2 instrument pursuant to

3 Section 3309 or subdivision (d) of Section 3418. A person may be a person entitled
4
to enforce the instrument even though the person is not the owner of the instrument
5
or is in wrongful possession of the instrument.
6

7
79. None of the Defendants are present holders of the instrument.

8 80. None of the Defendants are nonholders in possession of the instrument who has rights
9 of the holder.
10
81. None of the Defendants are entitled to enforce the instrument pursuant to section
11
3309 or subdivision (d) of Section 3418.
12

13 82. Defendants have no enforceable rights under California Commercial Code 3301(a) to

14 enforce the negotiable instrument.

15
83. Since there is no right to enforce the negotiable instrument, the Notice of Default
16
provisions of California Civil Code § 2924 and Notice of Sale provisions of California
17
Civil Code § 2924(f) were likewise never complied with, and there is no subsequent
18

19 incidental right to enforce any deed of trust and conduct a non-judicial foreclosure.

20 84. That the Trustee and the loan servicer are acting as agents of the Beneficiary and
21
signing documents as the agent of the agent of the agent of the Beneficiary for
22
Plaintiffs Notes and the notices therein, notwithstanding the fact that the Notes were
23

24
not negotiable prior to the sale of the Subject Property.

25 85. That by virtue of the method and manner of Defendants carrying out Civil Code
26 section 2924 et seq., the foreclosure of the Subject Property is void ab initio as a matter
27
of law.
28

20
_________________________________________________
COMPLAINT
 86. MERS was NOT and never has been a Beneficiary of this loan or any other. MERS
1

2 is solely a registration service for tracking these Trust Deeds and mortgages and also

3 the Notes. MERS records these Trust Deeds in their name as a “nominee”, with NO
4
actual ownership interest in these Loans, the purpose is allegedly to allow the sale and
5
transfer of these instruments without the need for further recordation, however what
6

7
actually occurs is that the real Beneficiary remains obscured, and unknown. In

8 addition MERS is NOT a TRUSTEE and has no right to collect any TD payments on
9 the Note, neither does MERS have any right to enforce the notes or to be a party in
10
any Foreclosure proceedings. Yet MERS has represented itself under oath in this case
11
to be the BENEFICIARY and in that “stated” but “false” capacity has unlawfully
12

13 nominated a successive trustee.

14 87. While MERS remain on title as a “nominee” for the TD and Note both are sold on
15
several occasions afterward and ultimately bundled as a security and sold to a final
16
investor. MERS actually helps to conceal the real beneficiary which is in violation of
17
California statutory law, Cal. Civ. Code Sec. 2924 et. Seq. The Beneficiary is
18

19 completely shielded and not disclosed as required. Also the forms that they used to

20 give Notices are defective.

21
88. Evidence in prior cases has demonstrated that MERS is nothing more than a
22
Registration Service, and does not even service the loan. MERS cannot prove or show
23

24
ownership in the form of an “original Note” (i) with proper endorsements, to them, or

25 that they are actually in the chain of ownership and (ii) to establish the actual
26 relationship of the holder of the Note, as a Holder in Due course, and (iii) with the right
27
to enforce the Note. April Charney, a lawyer at Jacksonville Are Legal Aid in Florida,
28

21
_________________________________________________
COMPLAINT
 in 2007 had over 300 foreclosure cases dismissed or postponed due to “MERS”
1

2 attempting to foreclose on those Mortgages.

4
III.
5

6 FIRST CAUSE OF ACTION

7 VIOLATION OF CALIFORNIA CIVIL CODE §2923.6

8 (As Against All Defendants)

10
89. Plaintiffs reallege and incorporate by reference the above paragraphs 1 through 90 as
11

12
though set forth fully herein.

13 90. Defendants’ Pooling and Servicing Agreement (hereinafter “PSA”) contains a duty to
14 maximize net present value to its investors and related parties.
15
91. California Civil Code 2923.6 broadens and extends this PSA duty by requiring
16
servicers to accept loan modifications with borrowers.
17

18 92. Pursuant to California Civil Code 2923.6(a), a servicer acts in the best interest of all

19 parties if it agrees to or implements a loan modification where the (1) loan is in

20
payment default, and (2) anticipated recovery under the loan modification or workout
21
plan exceeds the anticipated recovery through foreclosure on a net present value basis.
22
93. California Civil Code 2923.6(b) now provides that the mortgagee, beneficiary, or
23

24 authorized agent offer the borrower a loan modification or workout plan if such a

25 modification or plan is consistent with its contractual or other authority.

26
94. Plaintiffs’ loan is presently in an uncertain state.
27

28

22
_________________________________________________
COMPLAINT
 95. Plaintiffs are willing, able, and ready to execute a modification of their loan on a
1

2 reasonable basis

3
(a) New Loan Amount: $INSERT LOAN AMOUNT
4
(b) New Interest Rate: 4%
5
(c) New Loan Length: 30 years
6
(d) New Payment: $ INSERT NEW PAYMENT
7

8 96. The present fair market value of the property is INPUT FAIR MARKET
9
VALUE OF HOME.
10
97. The Joint Economic Committee of Congress estimated in June, 2007, that the average
11

12
foreclosure results in $77, 935.00 in costs to the homeowner, lender, local government,

13 and neighbors.
14 98. Of the $77,935.00 in foreclosure costs, the Joint Economic Committee of Congress
15
estimates that the lender will suffer $50,000.00 in costs in conducting a non-judicial
16
foreclosure on the property, maintaining, rehabilitating, insuring, and reselling the
17

18 property to a third party. Freddie Mac places this loss higher at $58,759.00.

19 99. Pursuant to California Civil Code §2823.6, Defendants are now contractually bound
20
to accept the loan modification as provided above and tender is deemed made pursuant
21
to Defendants’ Pooling and Service Agreement, California Civil Code 2923.6(a), and
22
California Civil Code 2923.6(b), taken individually or entirely. Plaintiffs invoke the
23

24 remedies embodied in the aforementioned agreement and/or codes with a willingness

25 to execute a modification of their loan.

26

27

28

23
_________________________________________________
COMPLAINT
 100. Alternatively, Plaintiffs allege that tender, if any, is excused by obstruction or
1

2 prevention or imposition of unwarranted conditions by the person or corporate entity to

3 whom it was to be made.

4
101. Alternatively, Plaintiffs allege that obstruction or imposition of unwarranted
5
conditions by defendants occurred when defendants evaded the plaintiffs’ attempts to
6

7
provide tender as specified and encouraged by defendants’ pooling agreement,

8 California Civil Code 2923.6(a), and California Civil Code 2923.6(b). [Hudson v.
9 Morton, 231 Ala. 392, 165 So. 227 (1936); Loftis v. Alexander, 139 Ga. 346, 77 S.E.
10
169 (1913); Kennedy v. Neil, 333 Ill. 629, 165 N.E. 148 (1929); Borden v. Borden, 5
11
Mass. 67, 1809 WL 989 (1809); Loughney v. Quigley, 279 Pa. 396, 123 A. 84 (1924);
12

13 Montague Corp. v. E.P. Burton Lumber Co., 136 S.C. 40, 134 S.E. 147 (1926);

14 Stansbury V. Embrey, 128 Tenn. 103, 158 S.W. 991 (1913); Loehr v. Dickson, 141
15
Wis. 332, 124 N.W. 293 (1910)]
16
102. Alternatively, Plaintiffs further allege that obstruction or imposition of unwarranted
17
conditions by defendants occurred when defendants manifested to the Plaintiffs that
18

19 tender, if made, will not be accepted, the Plaintiffs are excused from making tender as

20 it would be a futile gesture, and the law will not require the doing of a useless act.
21
[Simmons v. Swan, 275 U.S. 113, 48 S. Ct. 52, 72 L. Ed. 190 (1927); Lee v. Joseph E.
22
Seagram & Sons, Inc., 552 F.2d 447 (2d Cir. 1977); Buckner v. Tweed, 157 F.2d 211
23

24
(App. D.C. 1946); Peterson v. Hudson Ins. Co., 41 Ariz. 31, 15 P.2d 249 (1932);

25 Woods-Drury, Inc. v. Superior Court in and for City and County of San Francisco, 18
26 Cal. App. 2d 340, 63 P.2d 1184 (1st District 1936); Chesapeake Bay Distributing Co. v.
27
Buck Distributing Co., Inc. 60 Md. App. 210, 481 A.2d 1156 (1984); Issacs v.
28

24
_________________________________________________
COMPLAINT
 Caterpillar, Inc., 765 F. Supp. 1359 (C.D. Ill. 1991); Platsis v. Diafokeris, 68 Md. App.
1

2 257, 511 A.2d 535 (1986)]

3 103. Alternatively, Plaintiffs further allege that obstruction or imposition of unwarranted

4
conditions by defendants occurred when defendants’ objection for want of actual
5
tender of money is waived by defendants’ refusal to receive the money if produced.
6

7
[Shaner v West Coast Life Ins. Co, 73F.2d 681 (C.C.A. 10th Cir. 1934); Buell v. White,

8 908 P.2d 1175 (Colo. Ct. App. 1995) (when party, who is willing and able to pay,
9 offers to pay another a sum of money and is advised that it will not be accepted, offer
10
amounts to tender even though money is not produced); Hall v. Norwalk Fire Ins. Co.,
11
57 Conn. 105, 17 A. 356 (1888); Lamar v. Sheppard, 84 Ga. 561, 10 S.E. 10984
12

13 (1890); Ventres v. Cobb, 105 Ill. 33, 1882 WL 10475 (1882); Metropolitan Credit

14 Union v. Matthes, 46 Mass. App. Ct. 326, 706 N.E.2d 296 (1999)].
15

16

17
SECOND CAUSE OF ACTION

18
(VIOLATION OF BUSINESS AND PROFESSIONS CODE §17200

19
(As Against All Defendants)

20

21 104. Plaintiffs reallege and incorporate by reference the allegations of paragraphs 1

22 through 102, inclusive, as though set forth at length herein again.

23 105. Beginning in INSERT DATE OF DEED OF TRUST(date of deed), and continuing

24 to the present time, Defendants committed acts of unfair competition as defined by

25 Business and Professions Code § 17200, by engaging in the following practices:
26 106. These acts and practices, as described in the previous paragraphs, violate Business
27 and Professions Code § 17200 because their policies and practices described above
28
violate all the statutes as previously listed and California Civil Code § 1709, and

25
_________________________________________________
COMPLAINT
1 consequently, constitute and unlawful business act of practice within the meaning of
2 Business and Professions Code § 17200.
3

4 107. The harm to Plaintiffs and to members of the general public outweighs the utility of

5 Defendants’ policy and practices, consequently, constitute an unlawful business act of

6
practice within the meaning of Business and Professions Code §17200.
7
108. Further, the foregoing conduct threatens an incipient violation of a consumer law,
8
including, or violates the policy or spirit of such law or otherwise significantly
9

10 threatens or harms competition. Defendants’ practices described above are likely to

11 mislead the general public, and therefore, constitute a fraudulent business act of
12
practice within the meaning of Business and Professions Code §17200. The
13
Defendants’ unfair, unlawful, and fraudulent business practices and false and
14

15
misleading advertising present a continuing threat to members of public in that other

16 consumers will be defrauded into closing on similar fraudulent loans. Plaintiffs and
17
other members of the general public have no other adequate remedy of law.
18
109. As a result of the aforementioned acts, Plaintiffs have lost money or property and
19
suffered injury in fact. Defendants received and continue to hold Plaintiffs’ money and
20

21 other members of the public who fell victim to Defendants’ scheme.

22
THIRD CAUSE OF ACTION
23
BREACH OF COVENANT OF GOOD FAITH AND FAIR DEALING
24
(Only Against AMERICAN BROKERS)
25

26

27 110. Plaintiffs repeat and reallege Paragraphs 1 through 108 as though fully set forth
28
herein.

26
_________________________________________________
COMPLAINT
 111. Plaintiffs allege that at all times there existed an implied covenant of good faith and
1

2 fair dealing requiring Defendants, and each of them, to safeguard, protect, or otherwise

3 care for the assets and rights of Plaintiffs. Said covenant prohibited Defendants from
4
activities interfering with or contrary to the rights of Plaintiffs.
5
112. Plaintiffs allege that the commencement of foreclosure proceedings upon the
6

7
property lawfully belonging to Plaintiffs without the production of documents

8 demonstrating the lawful rights for the foreclosure constitutes a breach of the covenant.
9 113. Defendants breach the provisions as contained within the “Deed of “Trust” which
10
cited the lender as INSERT ORIG LENDER.
11
114. Defendants breached the provisions as contained within the “Adjustable Rate Note”
12

13 promising to pay INSERT ORIG LENDERa monthly payment.

14 115. Plaintiffs paid timely monthly payments in accordance with the “Adjustable Rate
15
Note” to INSERT ORIG LENDERor its agents.
16
116. As a consequence and proximate result, Plaintiffs has been damaged in a sum to be
17
proven at trial.
18

19
FOURTH CAUSE OF ACTION
20
INJUNCTIVE RELIEF
21
(Against all Defendants)
22

23 117. Plaintiffs repeat and reallege Paragraphs 1 through 115 as though fully set forth

24 herein.
25
118. Plaintiffs seek a determination as to the legal status of the parties as to the
26
Adjustable Rate Note and the Deed of Trust.
27

28
119. The Adjustable Rate Note states that the Lender is INSERT ORIG LENDER.

27
_________________________________________________
COMPLAINT
 120. It also states, “Lender or anyone who takes this Note by transfer and who is entitled
1

2 to receive payment under this Note is called the “Note Holder.”

3 121. INSERT DEF-THE ONE STATING THEY'RE IN DEFAULTsent to Plaintiffs a

4
statement with a coupon asking for payment.
5
122. The Deed of Trust which cited the lender as INSERT ORIG LENDERand stating in
6

7
the definition section that:

8 “MERS” is Mortgage Electronic Registration Systems, Inc. MERS is a separate

9 corporation that is acting solely as a nominee for Lender and Lender’s successors and
10
assigns; MERS is the beneficiary under this Security Instrument.
11
123. Additionally, based upon information and belief, Mortgage Electronic Registration
12

13 Systems is not qualified to do business in the state of California and therefore, would

14 not have standing to seek non-judicial remedies as well as judicial remedies.

15
124. Defendants should be required to provide the original note with the appropriate
16
endorsements thereon to Plaintiffs or this Honorable Court so that it may determine
17
under California law, who owns the right to receive payments and exercises the rights
18

19 relating to said ownership.

20 125. Only the Note Holder is authorized to collect payments and, in the event of a
21
default, commence foreclosure proceedings, including authorizing the substitution of a
22
Trustee.
23

24
126. Until Defendants are able to provide Plaintiffs and this Honorable Court the

25 aforementioned documents, this Honorable Court should order that Plaintiffs are not
26 required to make any further payments on the Adjustable Rate Note and enjoin any
27

28

28
_________________________________________________
COMPLAINT
 further collection activity on the Note, including staying the count down towards the
1

2 date a Notice of Trustee’s sale may be filed and served.

3
FIFTH CAUSE OF ACTION
4
VIOLATION OF CIVIL CODE §1572
5
(As to All Defendants)
6

7 127. Plaintiff realleges and incorporates by reference the above paragraphs 1 through
8 125 as though set forth fully herein.
9 128. The misrepresentations by Defendants’ and/or Defendants’ predecessors, failures to

10 disclose, and failure to investigate as described above were made with the intent to

11
induce Plaintiff to obligate himself on the Loan in reliance on the integrity of
Defendants and/or Defendants’ predecessors.
12
129. Plaintiff is an unsophisticated customer whose reliance upon Defendants
13
and/or Defendants’ predecessors was reasonable and consistent with the
14
Congressional intent and purpose of California Civil Code § 1572 enacted in 1872 and
15
designed to assist and protect consumers similarly situated as Plaintiff in this action.
16
130. As an unsophisticated customer, Plaintiff could not have discovered the true nature
17 of the material facts on their own.
18 131. The accuracy by Defendants and/or Defendants’ predecessors of representation is
19 important in enabling consumers such as Plaintiff to compare market lenders in order
20 to make informed decisions regarding lending transactions such as a loan.

21
132. Plaintiff was ignorant of the facts which Defendants and/or Defendants’
predecessors misrepresented and failed to disclose.
22
133. Plaintiff’s reliance on Defendants and/or Defendants’ predecessors was a
23
substantial factor in causing their harm.
24
134. Had the terms of the Loan been accurately represented and disclosed by Defendants
25
and/or Defendants’ predecessors, Plaintiff would not have accepted the Loan nor been
26
harmed.
27 135. Had Defendants and/or Defendants’ predecessors investigated Plaintiff’s financial
28 capabilities, they would have been forced to deny Plaintiff on this particular loan.

29
_________________________________________________
COMPLAINT
 136. Defendants and/or Defendants’ predecessors conspired and agreed to commit the
1
above mentioned fraud.
2
137. As a proximate result of Defendants and or Defendants’ predecessors fraud,
3
Plaintiff has suffered damage in an amount to be determined at trial.
4
138. The conduct of Defendants and/or Defendants’ predecessors as mentioned above
5
was fraudulent within the meaning of California Civil Code § 3294(c)(3), and by virtue
6

7
thereof Plaintiff is entitled to an award of punitive damages in an amount sufficient to

8 punish and make an example of the Defendants.

9
SIXTH CAUSE OF ACTION
10
FOR FRAUD
11 (Against All Defendants)
12
139. Plaintiff repeats and realleges Paragraphs 1 through 141 as though fully set forth
13
herein.
14

15 140. An unknown employee of MERS executed on behalf the alleged Beneficiary a

16 “Notice of Default” which stated that the payments were due to MERS and INSERT
17
DEFENDANTS as Beneficiary. “Notice of Breach and Default and of Election to
18
Cause Sale of Real Property Under Deed of Trust” (See Exhibit “B”)
19
141. On the Notice of Breach, it stated, in part, that Plaintiffs as Trustor, to secure
20

21 certain obligations in favor of Defendants, as beneficiary.

22 142. It further states that:

23
That by reason thereof of the present Beneficiary under such deed of
24
Trust has executed and delivered to said duly appointed Trustee a
25
written Declaration of Default and Demand for Sale and has
26
deposited with said duly appointed Trustee such Deed of Trust and
27
all documents evidencing obligations secured thereby and has
28

30
_________________________________________________
COMPLAINT
1 declared and does hereby declared all sums secured thereby
2 immediately due and payable and has elected and does hereby elect
3 to cause the trust property to be sold to satisfy the obligations served
4 thereby.
5
143. This representation was made by these defendants in order to induce reliance by
6

7 Plaintiffs.

8 144. Plaintiffs did rely on these representations and because of their reliance their
9
property will be foreclosed and Plaintiffs reliance was justified.
10
145. Plaintiffs is informed and believes that the representation as stated on the Notice of
11

12
Default were a false representation in the following particular(s)

13 A. Documents were not provided to the trustee that showed that INSERT DEFENDANTS or
14 MERS was the Beneficiary and entitled to the payments.
15
B. At the time INSERT DEFENDANTSmade the representations they knew they were false
16
and were made for the sole purpose of inducing reliance.
17

18 145. Plaintiffs allege that Defendants, and each of them, were engaged in an illegal

19 scheme the purpose of which was to execute loans secured by real property in order to
20
make commissions, kick-backs, illegal undisclosed yield spread premiums, and
21
undisclosed profits by the sale of any instruments arising out of the transaction and to
22
make loans to borrowers that they could not afford to repay given their stated financial
23

24 situation. Plaintiffs allege that Defendants, and each of them, have represented to

25 plaintiffs and to third parties that they were the owner of the Trust Deed and Note as
26
either the Trustee or the Beneficiary regarding Plaintiffs real property. Based on this
27
representation they caused a Notice of Default to be issued and recorded without
28

31
_________________________________________________
COMPLAINT
 disclosing their true role, and thereafter a notice of intent to foreclose and finally they
1

2 executed a foreclosure, which was completed, permanently affecting Plaintiffs right,

3 title and interest in the Subject Property. In fact, Plaintiffs allege that the promissory
4
notes which was executed by Plaintiffs and which initially formed a basis of a security
5
interest in the subject property, was assigned in violation of Civil Code section 2932.5
6

7
et seq. because the assignment was not recorded, and as such the promissory note was

8 rendered as non-negotiable and no power of sale was conveyed with the note at the
9 time of the assignment, and therefore, Defendants, and each of them, had no lawful
10
security interest in the subject property.
11
146. On or about ISNERT DATE OF DEED OF TRUST (date of deed), representatives,
12

13 agents and/or employees of Defendants, and each of them, made false representations

14 to Plaintiffs in order to fund a loan, in which the Plaintiffs’ personal residence was to
15
be security therefore. Plaintiffs allege that Defendants, and each of them, made certain
16
representations regarding their honesty, that they were experts in obtaining loans which
17
borrower’s could afford and that they would only offer Plaintiffs a loan which was in
18

19 their best interests given their credit history and financial needs and limitations and that

20 Plaintiffs could trust the representations of Defendants, and each of them. Plaintiffs
21
allege that based upon the representations made by Defendants, and each of them,
22
Plaintiffs reasonably reposed their trust in Defendants’ representations and disclosed
23

24
their private financial information to Defendants, in order that Defendants could in

25 keeping with their representations, find a loan which was in the best interests of
26 Plaintiffs given their financial needs and limitations. More particularly, Defendants,
27
and each of them, represented that they would not make a loan to Plaintiffs unless he
28

32
_________________________________________________
COMPLAINT
 could afford the loan, and that they would not make the loan unless and until he had
1

2 passed the underwriting guidelines of the lender, which further assured that the loan

3 being offered to Plaintiffs were in fact in the Plaintiff’s best interests, and that the loan
4
was within Plaintiffs’ financial needs and limitations.
5
147. Plaintiffs allege that the loans provided by Defendants, and each of them, contained
6

7
a repayment schedule, whereas, exceeded Plaintiffs’ total spendable income, and that

8 the loan contained excessive financing was approved to allow closing costs to be
9 financed, that Defendants failed to utilize adequate due diligence regarding Plaintiffs’
10
ability to repay the loan, Defendants’ as part of their continuing scheme intentionally
11
placed Plaintiffs’ in a sub-prime loan to the benefit of the Defendants with excessively
12

13 high interest rates, Defendants failed to provide Plaintiffs mandated disclosures, and

14 Defendants repeatedly employed coercive tactics in order to force Plaintiffs to sign the
15
loan documents.
16
148. Plaintiffs are informed and believe and thereupon allege that defendants INSERT
17
DEF/LENDER, and MERS, engaged in some degree in making the loan to Plaintiffs
18

19 including, but not limited to: made the loan to Plaintiffs by "marketing and extending

20 adjustable-rate mortgage ("ARM") products to Plaintiffs in an unsafe and unsound

21
manner that greatly increases the risk that Plaintiffs would default on the loan, because
22
the initial payments on the loan exceeded Plaintiffs’ established retirement income, and
23

24
the loan terms offered to Plaintiffs included ARM products with one or more of the

25 following characteristics: without to utilize an adequate analysis of the Plaintiffs ability

26 to repay the debt at the fully-indexed rate; approving Plaintiffs without considering
27
appropriate documentation and/or verification of their income; including substantial
28

33
_________________________________________________
COMPLAINT
 prepayment penalties and/or prepayment penalties that extend beyond the initial
1

2 interest rate adjustment period; providing Plaintiffs with inadequate and/or confusing

3 information relative to product choices, material loan terms and product risks,
4
prepayment penalties, and the Plaintiffs’ obligations for property taxes and insurance;
5
approving Plaintiffs for a loan with inadequate debt-to-income analyses
6

7
that did not properly consider the Plaintiffs’ ability to meet his overall level

8 indebtedness and common housing expenses; and/or approving Plaintiffs for loan
9 arrangements with loan-to-value ratios approaching or exceeding 100 percent of the
10
value of the collateral;" and making Plaintiffs a mortgage loan without adequately
11
considering the Plaintiffs’ ability to repay the mortgage according to its terms.
12

13 149. Plaintiffs allege that based upon the foregoing representations of Defendants, and

14 each of them, plaintiffs did in fact repose their trust in the representations of
15
Defendants, and each of them, and that such trust was reasonable.
16
150. Plaintiffs alleges that Defendants, and each of them, presented a loan to Plaintiffs
17
whereby Defendants represented that they did qualify for ordinary underwriting, and
18

19 that the loan was within Plaintiffs’ personal financial needs and limitations given the

20 confidential financial information that Plaintiffs shared with Defendants, however, the
21
true is that the loan payments exceeded Plaintiffs’ established retirement income.
22
151. Plaintiffs allege that Defendants, and each of them, had a duty to disclose the true
23

24
cost of the loan which was made to Plaintiffs, and the fact that Plaintiffs could not

25 afford the loan in the first instance. Defendants, and each of them, provided Plaintiff a
26 loan through Defendant INSERT LENDER/DEF, and Defendants, and each of them,
27
were secretly compensated, however, they did not disclose for this loan that they were
28

34
_________________________________________________
COMPLAINT
 by being paid for its services, and in a spread of the yield of an amount which has not
1

2 yet been fully ascertained as a Yield Spread Premium paid-outside and after the close

3 of escrow.
4
152. Plaintiffs are informed and believes and thereupon allege that after the close of
5
escrow Defendant INSERT DEF/LENDERpaid the other Defendants herein fees above
6

7
and beyond the value of the services actually performed and an illegal kickback and

8 added that additional amount to the total amount being financed, however such amount
9 was never disclosed to Plaintiffs.
10
153. Plaintiffs acquire the foregoing property by virtue of the said funding through
11
INSERT DEFENDANTbased on the representations of Defendants, and each of them,
12

13 that the loan was the best they could obtain for him, and that the loan was well within

14 Plaintiffs’ financial needs and limitations.

15
154. Plaintiffs ARE informed and believe and thereupon alleges that Defendants, and
16
each of them, represented to Plaintiffs that Defendants, and each of them, were
17
working for the benefit of Plaintiffs and in their particular best interest to obtain for
18

19 him the best loan and at the best rates available.

20 155. That at the time Defendants, and each of them, made the foregoing false
21
representations to Plaintiffs they knew that they were untrue and that these
22
representations were material representations, and that no basis in fact existed to
23

24
support such fraudulent representations.

25 156. That the foregoing representations were made in order to induce Plaintiff to act on
26 and take the said loan(s) in order for both defendants to make a substantial amount of
27
money thereby and there from.
28

35
_________________________________________________
COMPLAINT
 157. Plaintiffs were in fact induced to and did take these loans based on the said
1

2 fraudulent representations.

3 158. That Plaintiffs were induced to rely and did rely on the representations of these
4
defendants through deception and their reliance was justified as they believed that
5
Defendants, and each of them, were working for their and in his best interests.
6

7
159. That by virtue of Plaintiff’s reasonable reliance and the increased interest they were

8 made to pay, they have been damaged in the loss of their good credit and a higher
9 payment and are now being involved in litigation that they did not bargain for, all to
10
their damage and injury.
11
160. Plaintiffs have relied on the representations of Defendant, and each of them, and
12

13 because of this reliance have made various moves to avoid foreclosure all to no avail,

14 while defendants knew all the time that they were deceiving Plaintiffs.
15
161. Plaintiff’s reliance was justified based upon the false representations of Defendants,
16
and each of them, and had no reason to believe that a party representing a bank would
17
go to such lengths to deceive and to convert Plaintiffs’ property by utilizing such a
18

19 fraud and artifice.

20 162. Plaintiffs are informed and believe that Defendants, and each of them, at the time of
21
execution of the Deed of Trust and Note maintained an interest in the Subject Property,
22
however at the time the Note and Deed of Trust were assigned to Defendant
23

24
AMERICAN BROKERS, the Note was no longer negotiable and the power of sale was

25 not conveyed during the assignment, notwithstanding the foregoing, Defendants, and
26 each of them, foreclosed on Plaintiffs’ Trust Deed, in concert with their scheme to
27
defraud Plaintiff out of their property.
28

36
_________________________________________________
COMPLAINT
 163. Plaintiffs have recently learned that Defendants, and each of them, are not the legal
1

2 owners of the Note and TRUST DEED and will not be at the time they will issue the

3 notices and commenced the foreclosure process, notwithstanding the fact that the note
4
was not negotiable and did not contain a valid power of sale.
5
164. Plaintiffs allege that Defendants, and each of them, knew at the time they made
6

7
these representations to Plaintiffs that they were untrue, and defendants know at the

8 time that they were attempting to foreclose on Plaintiffs’ Trust Deeds and notes that
9 they had no right to do so.
10
165. Plaintiffs allege Defendants, and each of them, intentionally and fraudulently
11
converted Plaintiffs’ right, title and interest to his property, and any equity therein.
12

13 166. Plaintiffs allege that due to their reliance on Defendants representations he has been

14 damaged in an amount that currently exceeds $25,000.00 and additionally costs of

15
moving out of Plaintiffs’ property and the costs to relocate back to the subject
16
Property.
17
167. Defendants’ conduct as set forth above was intentional, oppressive fraudulent and
18

19 malicious so as to justify an award of punitive damages in an amount sufficient that

20 such conduct will not be repeated.

21
168. Plaintiffs will be damaged in having their home wrongfully foreclosed and a slander
22
of their title, and being required to become involved in this litigation all to their
23

24
damages and injuries the amount of which is subject to proof at the time of trial.

25 169. The actions of Defendants and each of them were fraudulent oppressive and malicious so as to

warrant the imposition of exemplary damages, and that by virtue of Defendants conduct as set forth herein
26
Plaintiff is entitled to exemplary damages.
27

28 SEVENTH CAUSE OF ACTION

37
_________________________________________________
COMPLAINT
1 FOR DECLARATORY RELIEF
(Against all Defendants)
2

3 170. Plaintiffs repeat and realleges Paragraphs 1 through 169 as though fully set forth

4 herein.
5
171. A dispute has arisen between and among Plaintiffs and Defendants and each of them
6
as to the duties and obligations of the respective parties with regard to the loan or the
7

8
foreclosure.

9 172. These disputes concern but are not limited to the ownership rights and the validity of
10 the commencement of the foreclosure process.
11
173. As to these issues, Plaintiff(s) are required to seek this relief.
12
174. Plaintiffs further alleges that a declaration of rights and duties of the parties herein
13

14 are essential to determine the actual status and validity of the loan, deed of trust,

15 nominated beneficiaries, actual beneficiaries, loan servicers, trustees instituting

16
foreclosure proceedings and related matter.
17

18

19
EIGHTH CAUSE OF ACTION

20
FOR INTENTIONAL MISREPRESENTATION
(Against all Defendants)
21
175. Plaintiffs repeat and realleges Paragraphs 1 through 175 as though fully set forth
22

23 herein.

24 176. Plaintiffs are informed and believe that the representation as stated on the Notice of
25
Default and each of them were a false representation in the following particulars(s):
26
[A] Documents were not provided to the trustee that showed that any of the
27

28
Defendants was the Beneficiary and entitled to the payments.

38
_________________________________________________
COMPLAINT
 [B] At the time Defendants made the representations they knew they were false and
1

2 were made for the sole purpose of inducing reliance and confusing Plaintiffs.

4
NINTH CAUSE OF ACTION
5
TO SET ASIDE A DEFECTIVE AND WRONGFUL FORECLOSURE
6
(Against all Defendants)
7
177. Plaintiff repeats and reallege Paragraphs 1 through 176 as though fully set forth
8

9
herein.

10 Recording of an Assignment Prior to Foreclosure

11 178. Cal. Civ. Code section 2932.5 provides a condition precedent for an assignee of a
12
Deed of Trust prior to commencing a foreclosure:
13
Where a power to sell real property is given to a mortgagee, or other
14

15 encumbrancer, in an instrument intended to secure the payment of money, the

16 power is part of the security and vests in any person who by assignment becomes
17
entitled to payment of the money secured by the instrument. The power of sale
18
may be exercised by the assignee if the assignment is duly acknowledged and
19
recorded. (Emphasis added)
20

21 179. Defendants drafted the Deed of Trust, Plaintiff had no opportunity to negotiate

22 the terms of the instrument.

23
Defendants INSERT DEFENDANTS, failed to record the assignment prior to
24
commencing the foreclosure as such the Foreclosure was not conducted in accordance with
25

26
Cal Civ. Code Sec 2924 and 2932.5.

27 Invalid Notice of Default

28 180. There is in existence a certain written instrument which purports to be a Notice of

39
_________________________________________________
COMPLAINT
 Default that is in the possession of Defendants, and each of them. (See Exhibit “B”)
1

2 181. The written instrument alleged in Paragraph "181" was procured as follows:

3 Defendants cannot prove that the nonjudicial foreclosure which occurred, strictly complied
4
with the tenets of California Civil Code Sections 2923.5 and 2924 in order to maintain an
5
action for possession pursuant to California Code of Civil Procedure section 1161. As of
6

7
September 6, 2008, California Civil Code Section 2923.5 applies to loans made from

8 January 1, 2003, to December 31, 2007, and loans secured by residential real property that
9 are for owner-occupied residences. For purposes of Section 2923.5, “owner-occupied”
10
means that the residence is the principal residence of the borrower. Prior to filing a Notice
11
of Default, Section 2923.5 of the California Civil Code provides in pertinent part:
12

13 (1) A trustee may not file a notice of default pursuant to Section 2924 until 30 days after

14 contact is made as required by paragraph (2) or 30 days after satisfying the due
15
diligence requirements as described in subdivision (g).
16
(2) An authorized agent shall contact the borrower in person or by telephone in order to
17
assess the borrower’s financial situation and explore options for the borrower to
18

19 avoid foreclosure. During the initial contact, the mortgagee, beneficiary, or authorized

20 agent shall advise the borrower that he or she has the right to request a subsequent
21
meeting and, if requested, the mortgagee, beneficiary, or authorized agent shall
22
schedule the meeting to occur within 14 days.
23

24
(3) A notice of default filed pursuant to Section 2924 shall include a declaration from

25 the mortgagee, beneficiary, or authorized agent that it has contacted the borrower,
26 tried with due diligence to contact the borrower as required by this section, or the
27

28

40
_________________________________________________
COMPLAINT
 borrower has surrendered the property to the mortgagee, trustee, beneficiary, or
1

2 authorized agent.

3 Invalid Declaration on Notice of Default and/or Notice of Trustee’s Sale

4
183. The purpose of permitting a declaration under penalty of perjury, in lieu of a sworn
5
statement, is to help ensure that declarations contain a truthful factual representation
6

7
and are made in good faith. (In re Marriage of Reese & Guy, 73 Cal. App. 4th 1214, 87

8 Cal. Rptr. 2d 339 (4th Dist. 1999).

9 183. In addition to California Civil Code §2923.5, California Code of Civil Procedure
10
§2015.5 states:
11
Whenever, under any law of this state or under any rule, regulation, order or
12

13 requirement made pursuant to the law of this state, any matter is required or permitted

14 to be supported, evidenced, established, or proved by the sworn statement,

15
declaration, verification, certificate, oath, or affidavit, in writing of the person making
16
the same, such matter may with like force and effect be supported, evidenced,
17
established or proved by the unsworn statement, declaration, verification, or
18

19 certificate, in writing of such person which recites that is certified or declared by him

20 or her to be true under penalty of perjury, is subscribed by him or her, and (1), if
21
executed within this state, states the date and place of execution; (2) if executed at any
22
place, within or without this state, states the date of execution and that is so certified or
23

24
declared under the laws of the State of California. The certification or declaration must

25 be in substantially the following form:

26 (a) If executed within this state:
27
“I certify (or declare) under penalty of perjury that the foregoing is true and correct”:
28

41
_________________________________________________
COMPLAINT
 _____________________ _______________________
1
(Date and Place) (Signature)
2

3 For our purposes we need not look any farther than the Notice of Default to find the
4
declaration is not signed under penalty of perjury; as mandated by new Civil Code
5
§2923.5(c). (Blum v. Superior Court (Copley Press Inc.) (2006) 141 Cal App 4th 418, 45
6

7
Cal. Reptr. 3d 902 ). The Declaration is merely a form declaration with a check box.

9 No Personal Knowledge of Declarant

10
According to Giles v. Friendly Finance Co. of Biloxi, Inc., 199 So. 2nd 265 (Miss.
11
1967), “an affidavit on behalf of a corporation must show that it was made by an
12

13 authorized officer or agent, and the officer him or herself must swear to the facts.”

14 Furthermore, in Giles v. County Dep’t of Public Welfare of Marion County (Ind.App. 1

15
Dist.1991) 579 N.E.2d 653, 654-655 states in pertinent part, “a person who verified a
16
pleading to have personal knowledge or reasonable cause to believe the existence of the
17
facts stated therein.” Here, the Declaration for the Notice of Default by the agent does not
18

19 state if the agent has personal knowledge and how he obtained this knowledge.

20 The proper function of an affidavit is to state facts, not conclusions, ¹ and affidavits that
21
merely state conclusions rather than facts are insufficient. ² An affidavit must set forth facts
22
and show affirmatively how the affiant obtained personal knowledge of those facts. ³
23

24
Here, The Notice of Default does not have the required agent’s personal knowledge

25 of facts and if the Plaintiff borrower was affirmatively contacted in person or by telephone
26 to assess the Plaintiff’s financial situation and explore options for the Plaintiff to avoid
27
foreclosure. A simple check box next to the “facts” does not suffice.
28

42
_________________________________________________
COMPLAINT
 Furthermore, “it has been said that personal knowledge of facts asserted in an
1

2 affidavit is not presumed from the mere positive averment of facts, but rather, a court

3 should be shown how the affiant knew or could have known such facts, and, if there is no
4
evidence from which the inference of personal knowledge can be drawn, then it is
5
____________________________________________________________________________
6

7
¹ Lindley v. Midwest Pulmonary Consultants, P.C., 55 S.W.3d 906 (Mo. Ct. App. W.D. 2001).
² Jaime v. St. Joseph Hosp. Foundation, 853 S.W.2d 604 (Tex. App. Houston 1st Dist. 1993).
8 ³ M.G.M. Grand Hotel, Inc. v. Castro, 8 S.W.3d 403 (Tex. App. Corpus Chrisit 1999).
9 presumed that from which the inference of personal knowledge can be drawn, then it is
10
presumed that such does not exist.” ¹ The declaration signed by agent does not state
11
anywhere how he knew or could have known if Plaintiff was contacted in person or by
12

13 telephone to explore different financial options. It is vague and ambiguous if he himself

14 called plaintiff.
15
This defendant did not adhere to the mandates laid out by congress before a foreclosure
16
can be considered duly perfected. The Notice of Default states, “That by reason thereof,
17
the present beneficiary under such deed of trust, has executed and delivered to said agent,
18

19 a written Declaration of Default and Demand for same, and has deposited with said

20 agent such Deed of Trust and all documents evidencing obligations secured thereby, and
21
has declared and does hereby declare all sums secured thereby immediately due and
22
payable and has elected and does hereby elect to cause the trust property to be sold to
23

24
satisfy the obligations secured thereby.” However, Defendants do not have the Deed of

25 Trust, nor do they provide any documents evidencing obligations secured thereby. For the
26 aforementioned reasons, the Notice of Default will be void as a matter of law.
27

28

43
_________________________________________________
COMPLAINT
 Recording a False Document
1

2 184. Furthermore, according to California Penal Code § 115 in pertinent part:

3 (a) Every person who knowingly procures or offers any false or forged instrument
4
to be filed, registered, or recorded in any public office within this state, which
5
instrument, if genuine, might be filed, registered, or recorded under any law of this
6

7
state or of the United States, is guilty of a felony.

8 (b) Each instrument which is procured or offered to be filed, registered, or recorded

9 in violation of subdivision (a) shall constitute a separate violation of this section.
10
In addition, California Evidence Code § 669 states in pertinent part:
11
(a) The failure of a person to exercise due care is presumed if:
12

13 (1) He violated a statute, ordinance, or regulation of a public entity;

14

15
_______________________________________________________________________________
16
¹ Bova v. Vinciguerra, 139 A.D.2d 797, 526 N.Y. S.2d 671 (3d Dep’t 1988).
17

18

19 Here, as stated above the Declaration of Due Diligence as required by Section 2923.5 of

20 the California Civil Code is missing and/or improper for the Notice of Default. Therefore,
21
Defendants are guilty of a felony for recording the Notice of Default with a false
22
instrument according to California Penal Code §115. Since Defendants have violated a
23

24
statute, the failure of them to exercise due care will be presumed.

25 182. The written instrument alleged in Paragraph "181" was also procured as follows:
26 By an invalid sale conducted on the part of Defendants, and each of them, in violation of
27
statutes including, but not limited to: Plaintiff is informed and believes and thereupon
28

44
_________________________________________________
COMPLAINT
 alleges that the NOTE was invalid and unenforceable due to the intentional and willful
1

2 violations including but, not limited to: California Civil Code 2924b etc. et seq.,

3 California Civil Code §§§ 2924b(a), 2924b(d), 2924b(e) by failing and/or refusing to mail
4
the Notice of Default within ten business days to Plaintiffs, by failing and/or refusing to
5
post and mail the Notice of Default; by failing and/or refusing to mail Plaintiffs the
6

7
Notice of Default within one month pursuant to California Civil Code § 2924b (c (1), (2);

8 by failing and/or refusing to properly set the sale date pursuant to California Civil Code §
9 2924f(b); by failing and/or refusing to publish the Notice of Sale twenty days prior to the
10
date set for sale pursuant to California Civil Code § 2924f(b); by failing and/or refusing to
11
record the Notice of Sale pursuant to California Civil Code § 2924g(d);
12

13 183. Since the enumerated law was effective as of September 06, 2008 the sale of the

14 property at issue is invalid pursuant to California Civil Code Sections 2923.5 and 2924,
15
and thus the Defendants’ claim of title and allegation thereto is erroneous.
16
185. Plaintiff alleges that Defendants, and each of them, willfully, wrongfully and
17
without justification, and without privilege conducted an invalid foreclosure sale against
18

19 the Plaintiff’s SUBJECT PROPERTY, thereby, slandering Plaintiff’s title thereto.

20 186. Furthermore, The California Foreclosure Prevention Act, states the following:
21
The California Foreclosure Prevention Action became effective June 15, 2009. This
22
new law delays the non-judicial foreclosure process by requiring an addition 90-day delay
23

24
(beyond the current three-month period) between recording a notice of default and a

25 notice of stay for certain residential properties. The law applies to:
26 1. Loans recorded between January 1, 2003 and January 1, 2008, inclusive,
27

28

45
_________________________________________________
COMPLAINT
 2. The borrower occupies the property as his/her principal residence and occupied it
1

2 at the time the loan became delinquent;

3 3. A notice of default has been recorded on the property; and

4
4. The loan is secured by a first lien on residential property that is located in
5
California.
6

7
187. In our case, Plantiff, «Client_FirstName»«Client_LastName» property was his

8 principal place of residence and his deed was dated on DATE OF DEED OF TRUST.
9 Therefore, the California Foreclosure Prevention Action applies and they should be
10
allowed an additional 90 days (plus the three-month period already) after Notice of Default
11
is recorded.
12

13 188. The Trustee's Deed Upon Sale obtained after the sale is false and causes a doubt

14 to be cast on Plaintiff’s title to the property described above.

15
189. The aforementioned Instrument directly impairs Plaintiff’s right to possession
16
and ownership of the Subject Property.
17
190. Furthermore, the aforementioned acts of Defendants, and each of them, were
18

19 motivated by oppression, fraud, malice in that Defendants, and each of them, by their

20 respective acts, omissions, nonfeasance, misfeasance and/or malfeasance executed an

21
invalid foreclosure sale of the Plaintiff’s SUBJECT PROPERTY, in order to deny Plaintiff
22
of his rights of possession and ownership, whereupon, the Foreclosure was defective as
23

24
such the Property must be restored to Plaintiff or Plaintiff is entitled to the value of thereof.

25

26 WHEREFORE, Plaintiffs having set forth the claims for relief against Defendants,
27
respectfully pray that this Court grant the following relief against the Defendants:
28

46
_________________________________________________
COMPLAINT
 1. For exemplary and punitive damages;
1

2 2. Actual Economic and Non-Economic Damages;

3 3. Costs and reasonable attorney’s fees pursuant to California Civil Code §1717,
4
§1788.30(b), §1788.30(c);
5
4. For a declaration of the rights of the parties relative to Plaintiff’s Home, including
6

7
a declaration that Defendants have no enforceable lien against Plaintiff’s Home;

8 5. For a preliminary injunction and permanent injunction enjoining all Defendants,

9 their agents, assigns, and all person acting under, for, or in concert with them, from
10
foreclosing on Plaintiff’s Home or from conducting at trustee’s sale or causing a trustee’s
11
sale to be conducted relative to Plaintiff’s Home.
12

13 6. Cancellation of the sale and restitution of the home to the Plaintiffs; and

14 7. For damages as provided by statute;

15
8. For an Order enjoining Defendants from continuing to violate the statutes alleged
16
herein;
17
9. For an Order, requiring Defendant to reinstate Plaintiff on title to his Property, and
18

19 or a restraining order preventing Defendants and his, hers, or its agents, employees,

20 officers, attorneys, and representatives from engaging in or performing any of the

21
following acts: (i) offering, or advertising this property for sale and (ii) attempting to
22
transfer title to this property and or (iii) holding any auction therefore;
23

24
10. For such other and further relief as the court may deem just and proper.

25

26 Dated: July 6, 2009 LAW OFFICES OF TIMOTHY MCCANDLESS ESQ.

27
______________________________________________
28 Timothy L. McCandless, Esq.,

47
_________________________________________________
COMPLAINT
 Attorney for Plaintiffs,
1

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

48
_________________________________________________
COMPLAINT
 «Client_FirstName»«Client_LastName»
1
VERIFICATION
2

3 I, TIMOTHY L. MCCANDLESS, am an attorney at law admitted to practice before all courts of

4 the State of California and have my office in San Bernardino County, California, and am the
5
attorney for the Plaintiff in this action, that all of the officers of the Plaintiff are unable to make the
6
verification because they are absent from said County and for that reason affiant makes this
7
verification on the Plaintiff’s behalf; that I have read the foregoing document and know its
8

9 contents. I am informed and believe and on that ground allege that matters stated herein are true.

10 Executed July 15, 2009, at Victorville, Californa.

11
I declare under penalty of perjury that under the laws of the State of California that the foregoing
12
is true and correct.
13

14
DATED: July 15, 2009
15
___________________________________
16 TIMOTHY L. MCCANDLESS, ESQ
17

18

19

20

21

22

23

24

25

26

27

28

49
_________________________________________________
COMPLAINT