Foreclosure-Gate Screw Tightens: Banks Face $17 Billion in Suits Over Foreclosures

Posted on May 26, 2011 by Neil Garfield

GET COMBO TITLE AND SECURITIZATION ANALYSIS – CLICK HERE

EDITOR’S COMMENT: Here is our problem writ large. The commentary written by Shedlock (see below) is basically on the side of punishing the banks for their wrongdoing, but not giving any relief to borrowers. The logic behind the position is that anyone who does not pay their mortgage should expect to lose their home. On its face, it would seem that nobody could reasonably argue to the contrary. The problem we face is the assumption behind that sentiment. The presumption is that the payments were due, that the creditor was not getting paid, and that the homeowner should lose the house for which they paid a “stupid price” — a slam at homeowners who accepted the lender’s appraisal of the property.

My premise goes deeper than the shallow waters of Shedlock’s position, who clearly represents the feeling of a majority of people who just take a quick glance at the problem. My premise is that anyone who has a debt that is due has the responsibility to pay it to the party to whom it is due, less any legally meritorious defenses for bad behavior on the part of those who induced him into the transaction.

So if you enter into a transaction where you get funded for $100,000, you have agreed to repay that $100,000. If you have a claim against the party who wants to enforce the obligation, then you should repay the net amount due after computation of damages for both sides. And if the amount due from the “enforcer” (pretender) is more than the amount claimed by the enforcer, there is no debt to pay from the borrower’s perspective. The borrower in that scenario is owed money which is an unsecured debt. I don’t think anyone could reasonably argue with that position either.

The first issue, though is whether the debt is due, and to whom. The debt might not be due at all if the creditor has received, directly or indirectly, payment or settlement from bailouts, insurance, credit default swaps, guarantees, etc. Shedlock’s mistake is the same as most people — assuming that because the homeowner stopped paying, there must be a default. In ordinary times with ordinary mortgage lending practices that would be true. In the context of the illusion of securitization and following the actual money trail, it is not true.

At the time of the declaration of default, the servicer is probably continuing to make the payments to the creditor, which means that from the creditor’s perspective, the obligation is NOT in default. Because the securitization scheme involves multiple obligors on the obligation, only one of which is the homeowner, it is not possible to determine a default unless one gets an accounting from all levels of the securitization chain. If the servicer is making the payments, then the original obligation to the creditor is NOT in default, but the servicer MIGHT have a claim for restitution against the homeowner for making his payment — but that claim is not secured and not  liquidated unless and until the servicer proves the actual money trial. So my premise is based upon making decisions based upon the actual facts rather than a set of incorrect presumptions.

The most serious defect in Shedlock’s position is that taken at face value, it would allow anyone to take the house away regardless of whether or not they are the creditor. Assuming the creditor is the investor-lender. Just because the actual lender refuses to enforce the obligation, and the obligation is “perceived” as due, does not give a license to ANYONE with some knowledge to make the claim in lieu of the real creditor. That is insane. If that were the law, then our marketplace would be filled with uncertainty inasmuch as it would virtually guarantee multiple claims on the same debt by multiple parties. In a race to the courthouse the first one to initiate proceedings to enforce the obligation would arguably be the winner — even though they never loaned any money and never purchased the obligation — and even though the obligation has potentially been paid in full or is being paid current by the servicer. Nobody can reasonably argue with this point either.

The last major point I would make is that Shedlock presumes the original transaction was properly documented and recorded in the form and content required by law. This is not the case in virtually all securitized loans. The documentation shows that homeowner-borrower (HB) was funded by originating lender (OL). In truth OL was merely acting as stand-in for undisclosed parties contrary to federal and state laws. The money trail clearly shows that the investor-lender (IL) was the source of the funds and was the intended beneficiary of the transaction.

So the documentation shows a transaction (HB-OL) that never existed since OL did not lend or otherwise even handle the money involved in the funding of the loan, most of which work was done by the closing or escrow agent. The documentation should have identified IL as the lender but didn’t. In fact, there is no documentation in which both IL and HB appear as parties, neither one actually knowing about the other nor the terms of the transaction by which IL advanced money and HB received the benefit of money.

And here is the rub: the investors don’t want any part of the predatory lending practices and faulty underwriting that was custom and practice in the industry during this mortgage mess, so they seek no remedy from the homeowner. IL does not want to limit itself and collect from HB because IL knows that the investment banker who sold the mortgage bonds didn’t use all the money for funding mortgages. Instead they used the money to claim fees and profits part of which funded bets against the very loans that they said they were selling to the IL but in fact never transferred from OL.

If  Shedlock’s premise were accepted, then the pretender lenders score a great victory for themselves at the expense of the IL whose money they used to fund the scheme and the HB whose obligation has been partially or entirely extinguished by trillions of dollars in payments received by the securitized parties on behalf of the IL but which was neither reported nor paid to IL. IL therefore has chosen to sue not the homeowner, where the damages would be reduced to near zero, but rather to sue the investment bank, where the damages are 100% of the money they advanced. If they went for the HB, they would end up with at best a home worth a small fraction of fraudulent appraisal OL used to get HB’s signature. Both the loan amount and the security for the loan would already be substantially lower than the money advanced by IL. So given that they are looking at 20 cents on the dollar if they go after the HB, less offset for predatory lending claims, they have chosen to sue the investment banker for 100 cents on the dollar.

The void created by the choice of IL not to enforce against HB has been filled with pretender lenders who see an opportunity to gain a free house. It is the banks who have created the choice of a free house (or HB relief for the borrower) or a free house for the pretender lenders. Given the equities and the fact that all of the fees and profits of the securitizers and pretenders are ill-gotten based upon fraudulent statements it hardly seems right to say that the collateral benefit from all this should flow to the banks rather than homeowners who were duped into the transaction to begin with.

from Mish Shedlock, http://globaleconomicanalysis.blogspot.com

Foreclosure-Gate Screw Tightens: Banks Face $17 Billion in Suits Over Foreclosures; Common Sense Says $5 Billion is Very Generous

State attorneys general are not happy with a $5 billion offer by major banks to settle lawsuits regarding robo-foreclosures and other alleged grievances. Some officials want as much as $20 billion. The compromise threat is on the high end.

Please consider Banks Face $17 Billion in Suits Over Foreclosures

State attorneys general told five of the nation’s largest banks on Tuesday they face a potential liability of at least $17 billion in civil lawsuits if a settlement isn’t reached to address improper foreclosure practices, according to people familiar with the matter.

The figure doesn’t cover additional billions of dollars in potential claims from federal agencies such as the Department of Housing and Urban Development and the Justice Department. State and federal officials haven’t proposed a specific comprehensive settlement figure, but Tuesday’s discussions represented the first effort to formally quantify potential liability.

Banks have proposed a $5 billion settlement that would be used to compensate any borrowers previously wronged in the foreclosure process and provide transition assistance for borrowers who are ousted from their homes. Federal and state officials have dismissed that as insufficient. Some officials have pushed for a total price tag of more than $20 billion to resolve foreclosure-handling abuses that surfaced last fall.

The U.S. Trustee Program, a part of the Justice Department that oversees bankruptcy cases, has asked for an additional $500 million to $1 billion in penalties, according to people familiar with the matter. Officials of the unit have raised questions in several cases over the authenticity of foreclosure documents.

Banks have argued that their problems are largely technical and that few if any borrowers have faced wrongful foreclosures. State and federal officials have faulted mortgage companies for not hiring enough staff to provide assistance to millions of borrowers that have fallen behind on their mortgages.

The latest development comes as state and federal officials are intensifying their scrutiny of other parts of the mortgage machine. Attorneys general in California and New York have announced wide-ranging mortgage investigations.

What are the Damages?

This is what I want to know:

1. How many people lost their home to foreclosure out of an error? By error I mean the wrong person, a home with no mortgage, or a major procedural error.
2. How many people think they deserve a free house and clear or a principal reduction over “show me the note” nonsense or other problems including unemployment?
3. How many people did banks string along for many months with promises of work-outs, where the person paid their mortgage for months, then lost their home.

Throw Category #2 in the Ash Can

I am sure category #2 is the largest. Throw those cases in the ash can where they belong.

No one want to admit they were stupid. Yet people paid stupid prices for homes. Others were unlucky. Some lost their jobs. Even then, one can ask “did you have a year’s worth of living expenses saved up in the bank, in case you lost your job?” Regardless of the answer, banks should not be on the hook for people losing their jobs or having medical problems.

Here’s the cold simple truth: If you do not pay your mortgage, it is reasonable to expect to lose your home. There is no other realistic way of looking at it. Robo-signing may not be right, but it is irrelevant.

Category #1 the Real Problem

I have deep sympathy for those in cases where banks foreclosed on the wrong home, the wrong address, or on homes with no mortgage at all. Those people deserve their home paid free and clear and some huge penalty on top of it.

I suspect the number of such cases is minuscule. They receive enormous publicity but is the number 10,000? 5,000? 500? or 50? I suspect the number is far closer to the lower end than the higher end. 50 might easily be on the high side.

Whatever the number is, banks should pay mightily and punitively for it. The money should go to those wronged, not to the states. Even with massive penalties I doubt the total would come close to $200 million.

Category 3 is Where the Uncertainty Is

I do not know how big the “strung along” category is, but the only ones in this category who were genuinely harmed to any significant degree are those who continued to make mortgage payments, strung along on a promise, when instead they could have and should have walked away.

How many is that? You tell me. However, the harm is easy to quantify. The harm is extra payments people made (if any), while the banks engaged in deceptive practices or were simply understaffed.

Assume banks engaged in deceptive practices and people made extra payments instead of walking away. Would those extra payments amount to as much as $1 billion? I rather doubt it.

$5 Billion is Very Generous

What is a valid penalty? $4 billion seems like a lot of money to me. That would be a 400% penalty if the total wrong-doing amounted to $1 billion which I doubt.

The sad truth of the matter is we have a full scale witch-hunt over robo-signing and other alleged grievances even though there was little actual damage caused by banks.

If you disagree then total up the damages. However, I insist you start from two essential points.

1. If you do not pay your mortgage, it is reasonable to expect to lose your home.
2. Robo-signing may not be right, but it is irrelevant as per point #1.

So total up the damages, add a huge penalty, and let me know what you come up with.

No doubt, many will accuse me of siding with banks. The reality is I am siding with common sense. No one fought against bank bailouts harder than I did. Banks should have been allowed to go under.

Unfortunately they were bailed out. However, two wrongs do not make a right.

I am all for punishing banks provided the punishment is based on damages rather than the widespread belief “we need to stick it to the banks”.

tila statute of limitations

Statutes of Limitations for TILA and RESPA Claims – For TILA
claims, the statute of limitations for actions for damages runs one
year after the loan origination.  15 U.S.C. § 1640(e).  For actions
seeking rescission, the statute of limitations is three years from
loan origination.  15 U.S.C. § 1635(f).  For RESPA, actions brought
for lack of notice of change of loan servicer have a statute of
limitation of three years from the date of the occurrence, and actions
brought for payment of kickbacks for real estate settlement services,
or the conditioning of the sale on selection of certain title services
have a statute of limitations of one year from the date of the
occurrence.  12 U.S.C. § 2614.

Ibanez does it apply in california

Applicability of US Bank v. Ibanez – The Ibanez case, 458
Mass. 637 (January 7, 2011), does not appear to assist Plaintiff in
this action.  First, the Court notes that this case was decided by the
Massachusetts Supreme Court, such that it is persuasive authority, and
not binding authority.  Second, the procedural posture in this case is
different than that found in a case challenging a non-judicial
foreclosure in California.  In Ibanez, the lender brought suit in the
trial court to quiet title to the property after the foreclosure sale,
with the intent of having its title recognized (essentially validating
the trustee’s sale).  As the plaintiff, the lender was required to
show it had the power and authority to foreclose, which is
established, in part, by showing that it was the holder of the
promissory note.  In this action, where the homeowner is in the role
of the plaintiff challenging the non-judicial foreclosure, the lender
need not establish that it holds the note.

res judicata effect of prior unlawful detainer action

Res Judicata Effect of Prior UD Action – Issues of title are
very rarely tried in an unlawful detainer action and moving party has
failed to meet the burden of demonstrating that the title issue was
fully and fairly adjudicated in the underlying unlawful detainer.
Vella v. Hudgins, 20 Cal. 3d 251, 257 (1977).  The burden of proving
the elements of res judicata is on the party asserting it.  Id. The
Malkoskie case is distinguishable because, there, the unlimited
jurisdiction judge was convinced that the title issue was somehow
fully resolved by the stipulated judgment entered in the unlawful
detainer court.  Malkoskie v. Option One Mortg. Corp., 188 Cal. App.
4th 968, 972 (2010).

Promissory Estoppel

Promissory Estoppel – “The doctrine of promissory estoppel
makes a promise binding under certain circumstances, without
consideration in the usual sense of something bargained for and given
in exchange. Under this doctrine a promisor is bound when he should
reasonably expect a substantial change of position, either by act or
forbearance, in reliance on his promise, if injustice can be avoided
only by its enforcement. The vital principle is that he who by his
language or conduct leads another to do what he would not otherwise
have done shall not subject such person to loss or injury by
disappointing the expectations upon which he acted. In such a case,
although no consideration or benefit accrues to the person making the
promise, he is the author or promoter of the very condition of affairs
which stands in his way; and when this plainly appears, it is most
equitable that the court should say that they shall so stand.”  Garcia
v. World Sav., FSB, 183 Cal. App. 4th 1031, 1039-1041 (2010)
(citations quotations and footnotes omitted).

argumment only is not enough

Unargued Points – “Contentions are waived when a party fails
to support them with reasoned argument and citations to authority.”
Moulton Niguel Water Dist. v. Colombo, 111 Cal. App. 4th 1210, 1215
(2003).

If opposed service isues are waived

Responding on the Merits Waives Any Service Defect – “It is
well settled that the appearance of a party at the hearing of a motion
and his or her opposition to the motion on its merits is a waiver of
any defects or irregularities in the notice of the motion.”  Tate v.
Superior Court, 45 Cal. App. 3d 925, 930 (1975) (citations omitted).

ok what is emotional distress

Cause of Action for Intentional Infliction of Emotional
Distress –  Collection of amounts due under a loan or restructuring a
loan in a way that remains difficult for the borrower to repay is not
“outrageous” conduct.  Price v. Wells Fargo Bank, 213 Cal. App. 3d
465, 486 (1989). Perhaps its when a Marshall is making a 72 year old woman disrobe

when he is evicting the woman. She asks if she can get some cloths on and he watches as

she disrobes to put on her cloths. All this on behalf of the bank. Maybe that’s emotional distress.

I don’t mean to be salacious but this happened to a client of mine.

17200 Unfair Business Practices maybe thats what it is

– Cause of Action for Violation of Bus. & Prof. Code § 17200 –
“The UCL does not proscribe specific activities, but broadly prohibits
any unlawful, unfair or fraudulent business act or practice and
unfair, deceptive, untrue or misleading advertising. The UCL governs
anti-competitive business practices as well as injuries to consumers,
and has as a major purpose the preservation of fair business
competition. By proscribing “any unlawful business practice,” section
17200 “borrows” violations of other laws and treats them as unlawful
practices that the unfair competition law makes independently
actionable.  Because section 17200 is written in the disjunctive, it
establishes three varieties of unfair competition-acts or practices
which are unlawful, or unfair, or fraudulent. In other words, a
practice is prohibited as “unfair” or “deceptive” even if not
“unlawful” and vice versa.”  Puentes v. Wells Fargo Home Mortg., Inc.,
160 Cal. App. 4th 638, 643-644 (2008) (citations and quotations
omitted).

“Unfair” Prong

[A]ny finding of unfairness to competitors under section 17200 [must]
be tethered to some legislatively declared policy or proof of some
actual or threatened impact on competition. We thus adopt the
following test: When a plaintiff who claims to have suffered injury
from a direct competitor’s “unfair” act or practice invokes section
17200, the word “unfair” in that section means conduct that threatens
an incipient violation of an antitrust law, or violates the policy or
spirit of one of those laws because its effects are comparable to or
the same as a violation of the law, or otherwise significantly
threatens or harms competition.

Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co.,
20 Cal. 4th 163, 186-187 (1999).

“Fraudulent” Prong

The term “fraudulent” as used in section 17200 does not refer to the
common law tort of fraud but only requires a showing members of the
public are likely to be deceived. Unless the challenged conduct
targets a particular disadvantaged or vulnerable group, it is judged
by the effect it would have on a reasonable consumer.

Puentes, 160 Cal. App. 4th at 645 (citations and quotations
omitted).

“Unlawful” Prong

By proscribing “any unlawful” business practice, Business and
Professions Code section 17200 “borrows” violations of other laws and
treats them as unlawful practices that the UCL makes independently
actionable. An unlawful business practice under Business and
Professions Code section 17200 is an act or practice, committed
pursuant to business activity, that is at the same time forbidden by
law. Virtually any law -federal, state or local – can serve as a
predicate for an action under Business and Professions Code section
17200.

Hale v. Sharp Healthcare, 183 Cal. App. 4th 1373, 1382-1383 (2010)
(citations and quotations omitted).

“A plaintiff alleging unfair business practices under these statutes
must state with reasonable particularity the facts supporting the
statutory elements of the violation.”  Khoury v. Maly’s of California,
Inc., 14 Cal. App. 4th 612, 619 (1993) (citations and quotations
omitted).

Tender or if I could tender I wouldn’t be filing this suit

Tender – A borrower attacking a voidable sale must do equity
by tendering the amount owing under the loan.  The tender rule applies
to all causes of action implicitly integrated with the sale.  Arnolds
Management Corp. v. Eischen, 158 Cal. App. 3d 575, 579 (1984).

Statute of frauds and foreclosure

Statute of Frauds, Forebearance Agreement – An agreement to
forebear from foreclosing on real property under a deed of trust must
be in writing and signed by the party to be charged or it is barred by
the statute of frauds.  Secrest v. Security Nat. Mortg. Loan Trust
2002-2, 167 Cal. App. 4th 544, 552-553 (2008).

Statute of frauds and modification

– Statute of Frauds, Modification of Loan Documents – An
agreement to modify a note secured by a deed of trust must be in
writing signed by the party to be charged, or it is barred by the
statute of frauds.  Secrest v. Security Nat. Mortg. Loan Trust 2002-2,
167 Cal. App. 4th 544, 552-553 (2008). Oh yes but what about the exceptions.

Performance of the contract like if you will provide all you personal financial information

we (the lender)  will postpone the Trustee sale. You provide the information they foreclose anyway.

Possession of the note in California does not apply the whole UCC fpr that matter does not apply

Possession of the original promissory note – “Under Civil
Code section 2924, no party needs to physically possess the promissory
note.” Sicairos v. NDEX West, LLC, 2009 WL 385855 (S.D. Cal. 2009)
(citing CCC § 2924(a)(1); see also Lomboy v. SCME Mortgage Bankers,
2009 WL 1457738 * 12-13 (N.D. Cal. 2009) (“Under California law, a
trustee need not possess a note in order to initiate foreclosure under
a deed of trust.”).

Bet you didn’t know that the spanish contract translation does not apply to trust deeds

Cause of Action for Violation of Civil Code § 1632 - Section
1632, by its terms, does not apply to loans secured by real property.
CCC § 1632(b).



(a) The Legislature hereby finds and declares all of the

following:

(1) This section was enacted in 1976 to increase consumer

information and protections for the state’s sizeable and growing

Spanish-speaking population.

(2) Since 1976, the state’s population has become increasingly

diverse and the number of Californians who speak languages other than

English as their primary language at home has increased

dramatically.

(3) According to data from the United States Census of 2000, of

the more than 12 million Californians who speak a language other than

English in the home, approximately 4.3 million speak an Asian

dialect or another language other than Spanish. The top five

languages other than English most widely spoken by Californians in

their homes are Spanish, Chinese, Tagalog, Vietnamese, and Korean.

Together, these languages are spoken by approximately 83 percent of

all Californians who speak a language other than English in their

homes.

(b) Any person engaged in a trade or business who negotiates

primarily in Spanish, Chinese, Tagalog, Vietnamese, or Korean, orally

or in writing, in the course of entering into any of the following,

shall deliver to the other party to the contract or agreement and

prior to the execution thereof, a translation of the contract or

agreement in the language in which the contract or agreement was

negotiated, which includes a translation of every term and condition

in that contract or agreement:

(1) A contract or agreement subject to the provisions of Title 2

(commencing with Section 1801) of, and Chapter 2b (commencing with

Section 2981) and Chapter 2d (commencing with Section 2985.7) of

Title 14 of, Part 4 of Division 3.

(2) A loan or extension of credit secured other than by real

property, or unsecured, for use primarily for personal, family or

household purposes.

(3) A lease, sublease, rental contract or agreement, or other term

of tenancy contract or agreement, for a period of longer than one

month, covering a dwelling, an apartment, or mobilehome, or other

dwelling unit normally occupied as a residence.

(4) Notwithstanding paragraph (2), a loan or extension of credit

for use primarily for personal, family or household purposes where

the loan or extension of credit is subject to the provisions of

Article 7 (commencing with Section 10240) of Chapter 3 of Part 1 of

Division 4 of the Business and Professions Code, or Division 7

(commencing with Section 18000), or Division 9 (commencing with

Section 22000) of the Financial Code.

(5) Notwithstanding paragraph (2), a reverse mortgage as described

in Chapter 8 (commencing with Section 1923) of Title 4 of Part 4 of

Division 3.

(6) A contract or agreement, containing a statement of fees or

charges, entered into for the purpose of obtaining legal services,

when the person who is engaged in business is currently licensed to

practice law pursuant to Chapter 4 (commencing with Section 6000) of

Division 3 of the Business and Professions Code.

(7) A foreclosure consulting contract subject to Article 1.5

(commencing with Section 2945) of Chapter 2 of Title 14 of Part 4 of

Division 3.

(c) Notwithstanding subdivision (b), for a loan subject to this

part and to Article 7 (commencing with Section 10240) of Chapter 3 of

Part 1 of Division 4 of the Business and Professions Code, the

delivery of a translation of the statement to the borrower required

by Section 10240 of the Business and Professions Code in any of the

languages specified in subdivision (b) in which the contract or

agreement was negotiated, is in compliance with subdivision (b).

(d) At the time and place where a lease, sublease, or rental

contract or agreement described in subdivision (b) is executed,

notice in any of the languages specified in subdivision (b) in which

the contract or agreement was negotiated shall be provided to the

lessee or tenant.

(e) Provision by a supervised financial organization of a

translation of the disclosures required by Regulation M or Regulation

Z, and, if applicable, Division 7 (commencing with Section 18000) or

Division 9 (commencing with Section 22000) of the Financial Code in

any of the languages specified in subdivision (b) in which the

contract or agreement was negotiated, prior to the execution of the

contract or agreement, shall also be deemed in compliance with the

requirements of subdivision (b) with regard to the original contract

or agreement.

(1) “Regulation M” and “Regulation Z” mean any rule, regulation,

or interpretation promulgated by the Board of Governors of the

Federal Reserve System and any interpretation or approval issued by

an official or employee duly authorized by the board to issue

interpretations or approvals dealing with, respectively, consumer

leasing or consumer lending, pursuant to the Federal Truth in Lending

Act, as amended (15 U.S.C. Sec. 1601 et seq.).

(2) As used in this section, “supervised financial organization”

means a bank, savings association as defined in Section 5102 of the

Financial Code, credit union, or holding company, affiliate, or

subsidiary thereof, or any person subject to Article 7 (commencing

with Section 10240) of Chapter 3 of Part 1 of Division 4 of the

Business and Professions Code, or Division 7 (commencing with Section

18000) or Division 9 (commencing with Section 22000) of the

Financial Code.

(f) At the time and place where a contract or agreement described

in paragraph (1) or (2) of subdivision (b) is executed, a notice in

any of the languages specified in subdivision (b) in which the

contract or agreement was negotiated shall be conspicuously displayed

to the effect that the person described in subdivision (b) is

required to provide a contract or agreement in the language in which

the contract or agreement was negotiated, or a translation of the

disclosures required by law in the language in which the contract or

agreement was negotiated, as the case may be. If a person described

in subdivision (b) does business at more than one location or branch,

the requirements of this section shall apply only with respect to

the location or branch at which the language in which the contract or

agreement was negotiated is used.

(g) The term “contract” or “agreement,” as used in this section,

means the document creating the rights and obligations of the parties

and includes any subsequent document making substantial changes in

the rights and obligations of the parties. The term “contract” or

“agreement” does not include any subsequent documents authorized or

contemplated by the original document such as periodic statements,

sales slips or invoices representing purchases made pursuant to a

credit card agreement, a retail installment contract or account or

other revolving sales or loan account, memoranda of purchases in an

add-on sale, or refinancing of a purchase as provided by, or pursuant

to, the original document.

The term “contract” or “agreement” does not include a home

improvement contract as defined in Sections 7151.2 and 7159 of the

Business and Professions Code, nor does it include plans,

specifications, description of work to be done and materials to be

used, or collateral security taken or to be taken for the retail

buyer’s obligation contained in a contract for the installation of

goods by a contractor licensed pursuant to Chapter 9 (commencing with

Section 7000) of Division 3 of the Business and Professions Code, if

the home improvement contract or installation contract is otherwise

a part of a contract described in subdivision (b).

Matters ordinarily incorporated by reference in contracts or

agreements as described in paragraph (3) of subdivision (b),

including, but not limited to, rules and regulations governing a

tenancy and inventories of furnishings to be provided by the person

described in subdivision (b), are not included in the term “contract”

or “agreement.”

(h) This section does not apply to any person engaged in a trade

or business who negotiates primarily in a language other than

English, as described by subdivision (b), if the party with whom he

or she is negotiating is a buyer of goods or services, or receives a

loan or extension of credit, or enters an agreement obligating

himself or herself as a tenant, lessee, or sublessee, or similarly

obligates himself or herself by contract or lease, and the party

negotiates the terms of the contract, lease, or other obligation

through his or her own interpreter.

As used in this subdivision, “his or her own interpreter” means a

person, not a minor, able to speak fluently and read with full

understanding both the English language and any of the languages

specified in subdivision (b) in which the contract or agreement was

negotiated, and who is not employed by, or whose service is made

available through, the person engaged in the trade or business.

(i) Notwithstanding subdivision (b), a translation may retain the

following elements of the executed English-language contract or

agreement without translation: names and titles of individuals and

other persons, addresses, brand names, trade names, trademarks,

registered service marks, full or abbreviated designations of the

make and model of goods or services, alphanumeric codes, numerals,

dollar amounts expressed in numerals, dates, and individual words or

expressions having no generally accepted non-English translation. It

is permissible, but not required, that this translation be signed.

(j) The terms of the contract or agreement which is executed in

the English language shall determine the rights and obligations of

the parties. However, the translation of the contract or the

disclosures required by subdivision (e) in any of the languages

specified in subdivision (b) in which the contract or agreement was

negotiated shall be admissible in evidence only to show that no

contract was entered into because of a substantial difference in the

material terms and conditions of the contract and the translation.

(k) Upon a failure to comply with the provisions of this section,

the person aggrieved may rescind the contract or agreement in the

manner provided by this chapter. When the contract for a consumer

credit sale or consumer lease which has been sold and assigned to a

financial institution is rescinded pursuant to this subdivision, the

consumer shall make restitution to and have restitution made by the

person with whom he or she made the contract, and shall give notice

of rescission to the assignee. Notwithstanding that the contract was

assigned without recourse, the assignment shall be deemed rescinded

and the assignor shall promptly repurchase the contract from the

assignee.

Slander of title maybe thats it

Causes of Action for Slander of Title – The recordation of
the Notice of Default and Notice of Trustee’s Sale are privileged
under CCC § 47, pursuant to CCC § 2924(d)(1), and the recordation of
them cannot support a cause of action for slander of title against the
trustee.  Moreover, “[i]n performing acts required by [the article
governing non-judicial foreclosures], the trustee shall incur no
liability for any good faith error resulting from reliance on
information provided in good faith by the beneficiary regarding the
nature and the amount of the default under the secured obligation,
deed of trust, or mortgage. In performing the acts required by [the
article governing nonjudicial foreclosures], a trustee shall not be
subject to [the Rosenthal Fair Debt Collection Practices Act].”  CCC §
2924(b).

Quiet title by code and verified

Cause of Action to Quiet Title – To assert a cause of action
to quiet title, the complaint must be verified and meet the other
pleading requirements set forth in CCP § 761.020.

The complaint shall be verified and shall include all of the following:

(a)A description of the property that is the subject of the action. In the case of tangible personal property, the description shall include its usual location. In the case of real property, the description shall include both its legal description and its street address or common designation, if any.

(b)The title of the plaintiff as to which a determination under this chapter is sought and the basis of the title. If the title is based upon adverse possession, the complaint shall allege the specific facts constituting the adverse possession.

(c)The adverse claims to the title of the plaintiff against which a determination is sought.

(d)The date as of which the determination is sought. If the determination is sought as of a date other than the date the complaint is filed, the complaint shall include a statement of the reasons why a determination as of that date is sought.

(e)A prayer for the determination of the title of the plaintiff against the adverse claims.

Negligence please tell me I have a least have a case in Negligence well maybe

Cause of Action for Negligence – “Under the common law,
banks ordinarily have limited duties to borrowers. Absent special
circumstances, a loan does not establish a fiduciary relationship
between a commercial bank and its debtor. Moreover, for purposes of a
negligence claim, as a general rule, a financial institution owes no
duty of care to a borrower when the institution’s involvement in the
loan transaction does not exceed the scope of its conventional role as
a mere lender of money. As explained in Sierra-Bay Fed. Land Bank
Assn. v. Superior Court (1991) 227 Cal.App.3d 318, 334, 277 Cal.Rptr.
753, “[a] commercial lender is not to be regarded as the guarantor of
a borrower’s success and is not liable for the hardships which may
befall a borrower. It is simply not tortious for a commercial lender
to lend money, take collateral, or to foreclose on collateral when a
debt is not paid. And in this state a commercial lender is privileged
to pursue its own economic interests and may properly assert its
contractual rights.”  Das v. Bank of America, N.A., 186 Cal. App. 4th
727, 740-741 (2010) (citations and quotations omitted).

they breched but my house is worth 300,000 and I owe 600,000 ??? damages!!!

Cause of Action for Breach of Contract – “A cause of action
for damages for breach of contract is comprised of the following
elements: (1) the contract, (2) plaintiff’s performance or excuse for
nonperformance, (3) defendant’s breach, and (4) the resulting damages
to plaintiff. It is elementary that one party to a contract cannot
compel another to perform while he himself is in default. While the
performance of an allegation can be satisfied by allegations in
general terms, excuses must be pleaded specifically.”  Durell v. Sharp
Healthcare, 183 Cal. App. 4th 1350, 1367 (2010) (citations and
quotations omitted).

We don’t even have to act in “good Faith” or is that “bad Faith”

Cause of Action for Breach of the Implied Covenant of Good
Faith and Fair Dealing – “[W]ith the exception of bad faith insurance
cases, a breach of the covenant of good faith and fair dealing permits
a recovery solely in contract.  Spinks v. Equity Residential Briarwood
Apartments, 171 Cal. App. 4th 1004, 1054 (2009).  In order to state a
cause of action for Breach of the Implied Covenant of Good Faith and
Fair Dealing, a valid contract between the parties must be alleged.
The implied covenant cannot be extended to create obligations not
contemplated by the contract.  Racine & Laramie v. Department of Parks
and Recreation, 11 Cal. App. 4th 1026, 1031-32 (1992).

On account we don’t have to give you an accounting

Cause of Action for an Accounting – Generally, there is no
fiduciary duty between a lender and borrower.  Perlas v. GMAC Mortg.,
LLC, 187 Cal. App. 4th 429, 436 (2010).  Further, Plaintiff (borrower)
has not alleged any facts showing that a balance would be due from the
Defendant lender to Plaintiff.  St. James Church of Christ Holiness v.
Superior Court, 135 Cal. App. 2d 352, 359 (1955).  Any other duty to
provide an accounting only arises when a written request for one is
made prior to the NTS being recorded.  CCC § 2943(c).

Then there is “Constructive Fraud” intent need not be shown

Cause of Action for Constructive Fraud – “A relationship need
not be a fiduciary one in order to give rise to constructive fraud.
Constructive fraud also applies to nonfiduciary “confidential
relationships.” Such a confidential relationship may exist whenever a
person with justification places trust and confidence in the integrity
and fidelity of another. A confidential relation exists between two
persons when one has gained the confidence of the other and purports
to act or advise with the other’s interest in mind. A confidential
relation may exist although there is no fiduciary relation ….”
Tyler v. Children’s  Home Society, 29 Cal. App. 4th 511, 549 (1994)
(citations and quotations omitted).

Lender no fiduciary duty Broker maybe

Cause of Action for Breach of Fiduciary Duty by Lender –
“Absent special circumstances a loan transaction is at arm’s length
and there is no fiduciary relationship between the borrower and
lender. A commercial lender pursues its own economic interests in
lending money. A lender owes no duty of care to the borrowers in
approving their loan. A lender is under no duty to determine the
borrower’s ability to repay the loan. The lender’s efforts to
determine the creditworthiness and ability to repay by a borrower are
for the lender’s protection, not the borrower’s.”  Perlas v. GMAC
Mortg., LLC, 187 Cal. App. 4th 429, 436 (2010) (citations and
quotations omitted).

Ok so maybe it wasn’t Fraud they (the lender) Misrepresented the loan to me

Cause of Action for Negligent Misrepresentation – “The
elements of negligent misrepresentation are (1) the misrepresentation
of a past or existing material fact, (2) without reasonable ground for
believing it to be true, (3) with intent to induce another’s reliance
on the fact misrepresented, (4) justifiable reliance on the
misrepresentation, and (5) resulting damage.  While there is some
conflict in the case law discussing the precise degree of
particularity required in the pleading of a claim for negligent
misrepresentation, there is a consensus that the causal elements,
particularly the allegations of reliance, must be specifically
pleaded.”  National Union Fire Ins. Co. of Pittsburgh, PA v. Cambridge
Integrated Services Group, Inc., 171 Cal. App. 4th 35, 50 (2009)
(citations and quotations omitted).

What is the statue of limitations on fraud

Fraud – Statute of Limitations- The statute of limitations for
fraud is three years.  CCP § 338(d).  To the extent Plaintiff wishes
to rely on the delayed discovery rule, Plaintiff must plead the
specific facts showing (1) the time and manner of discovery and (2)
the inability to have made earlier discovery despite reasonable
diligence.”  Fox v. Ethicon Endo-Surgery, Inc., 35 Cal. 4th 797, 808
(2005).

What is fraud in factum anyway well here is what is required to plead it property

Cause of Action for Fraud, Requirement of Specificity – “To
establish a claim for fraudulent misrepresentation, the plaintiff must
prove: (1) the defendant represented to the plaintiff that an
important fact was true; (2) that representation was false; (3) the
defendant knew that the representation was false when the defendant
made it, or the defendant made the representation recklessly and
without regard for its truth; (4) the defendant intended that the
plaintiff rely on the representation; (5) the plaintiff reasonably
relied on the representation; (6) the plaintiff was harmed; and, (7)
the plaintiff’s reliance on the defendant’s representation was a
substantial factor in causing that harm to the plaintiff. Each element
in a cause of action for fraud must be factually and specifically
alleged. In a fraud claim against a corporation, a plaintiff must
allege the names of the persons who made the misrepresentations, their
authority to speak for the corporation, to whom they spoke, what they
said or wrote, and when it was said or written.”  Perlas v. GMAC
Mortg., LLC, 187 Cal. App. 4th 429, 434 (2010) (citations and
quotations omitted).

no teeth here either

Cause of Action for Violation of CCC §§ 2923.52 and / or
2923.53 – There is no private right of action.  Vuki v. Superior
Court, 189 Cal. App. 4th 791, 795 (2010).

All we have is hope

Cause of Action Under CCC § 2923.6 – There is no private
right of action under Section 2923.6, and it does not operate
substantively.  Mabry v. Superior Court, 185 Cal. App. 4th 208,
222-223 (2010).  “Section 2923.6 merely expresses the hope that
lenders will offer loan modifications on certain terms.”

pre-foreclosure only

Cause of Action Under CCC § 2923.5, Post Trustee’s Sale –
There is no private right of action under Section 2923.5 once the
trustee’s sale has occurred.  The “only remedy available under the
Section is a postponement of the sale before it happens.”  Mabry v.
Superior  Court, 185 Cal. App. 4th 208, 235 (2010).

Wrongful foreclosure and California Judge Firmat

Orange County (Cali) Superior Court Judge Firmat posted these notes on
the law and motion calendar to assist attorneys pleading various
theories in wrongful foreclosure cases etc.  Some interesting
points….

FOOTNOTES TO DEPT. C-15 LAW AND MOTION CALENDARS

Note 1 – Cause of Action Under CCC § 2923.5, Post Trustee’s Sale –
There is no private right of action under Section 2923.5 once the
trustee’s sale has occurred.  The “only remedy available under the
Section is a postponement of the sale before it happens.”  Mabry v.
Superior  Court, 185 Cal. App. 4th 208, 235 (2010).

Note 2 – Cause of Action Under CCC § 2923.6 – There is no private
right of action under Section 2923.6, and it does not operate
substantively.  Mabry v. Superior Court, 185 Cal. App. 4th 208,
222-223 (2010).  “Section 2923.6 merely expresses the hope that
lenders will offer loan modifications on certain terms.”  Id. at 222.

Note 3 – Cause of Action for Violation of CCC §§ 2923.52 and / or
2923.53 – There is no private right of action.  Vuki v. Superior
Court, 189 Cal. App. 4th 791, 795 (2010).

Note 4 –  Cause of Action for Fraud, Requirement of Specificity – “To
establish a claim for fraudulent misrepresentation, the plaintiff must
prove: (1) the defendant represented to the plaintiff that an
important fact was true; (2) that representation was false; (3) the
defendant knew that the representation was false when the defendant
made it, or the defendant made the representation recklessly and
without regard for its truth; (4) the defendant intended that the
plaintiff rely on the representation; (5) the plaintiff reasonably
relied on the representation; (6) the plaintiff was harmed; and, (7)
the plaintiff’s reliance on the defendant’s representation was a
substantial factor in causing that harm to the plaintiff. Each element
in a cause of action for fraud must be factually and specifically
alleged. In a fraud claim against a corporation, a plaintiff must
allege the names of the persons who made the misrepresentations, their
authority to speak for the corporation, to whom they spoke, what they
said or wrote, and when it was said or written.”  Perlas v. GMAC
Mortg., LLC, 187 Cal. App. 4th 429, 434 (2010) (citations and
quotations omitted).

Note 5 –Fraud – Statute of Limitations- The statute of limitations for
fraud is three years.  CCP § 338(d).  To the extent Plaintiff wishes
to rely on the delayed discovery rule, Plaintiff must plead the
specific facts showing (1) the time and manner of discovery and (2)
the inability to have made earlier discovery despite reasonable
diligence.”  Fox v. Ethicon Endo-Surgery, Inc., 35 Cal. 4th 797, 808
(2005).

Note 6 – Cause of Action for Negligent Misrepresentation – “The
elements of negligent misrepresentation are (1) the misrepresentation
of a past or existing material fact, (2) without reasonable ground for
believing it to be true, (3) with intent to induce another’s reliance
on the fact misrepresented, (4) justifiable reliance on the
misrepresentation, and (5) resulting damage.  While there is some
conflict in the case law discussing the precise degree of
particularity required in the pleading of a claim for negligent
misrepresentation, there is a consensus that the causal elements,
particularly the allegations of reliance, must be specifically
pleaded.”  National Union Fire Ins. Co. of Pittsburgh, PA v. Cambridge
Integrated Services Group, Inc., 171 Cal. App. 4th 35, 50 (2009)
(citations and quotations omitted).

Note 7 – Cause of Action for Breach of Fiduciary Duty by Lender –
“Absent special circumstances a loan transaction is at arm’s length
and there is no fiduciary relationship between the borrower and
lender. A commercial lender pursues its own economic interests in
lending money. A lender owes no duty of care to the borrowers in
approving their loan. A lender is under no duty to determine the
borrower’s ability to repay the loan. The lender’s efforts to
determine the creditworthiness and ability to repay by a borrower are
for the lender’s protection, not the borrower’s.”  Perlas v. GMAC
Mortg., LLC, 187 Cal. App. 4th 429, 436 (2010) (citations and
quotations omitted).

Note 8 – Cause of Action for Constructive Fraud – “A relationship need
not be a fiduciary one in order to give rise to constructive fraud.
Constructive fraud also applies to nonfiduciary “confidential
relationships.” Such a confidential relationship may exist whenever a
person with justification places trust and confidence in the integrity
and fidelity of another. A confidential relation exists between two
persons when one has gained the confidence of the other and purports
to act or advise with the other’s interest in mind. A confidential
relation may exist although there is no fiduciary relation ….”
Tyler v. Children’s  Home Society, 29 Cal. App. 4th 511, 549 (1994)
(citations and quotations omitted).

Note 9 – Cause of Action for an Accounting – Generally, there is no
fiduciary duty between a lender and borrower.  Perlas v. GMAC Mortg.,
LLC, 187 Cal. App. 4th 429, 436 (2010).  Further, Plaintiff (borrower)
has not alleged any facts showing that a balance would be due from the
Defendant lender to Plaintiff.  St. James Church of Christ Holiness v.
Superior Court, 135 Cal. App. 2d 352, 359 (1955).  Any other duty to
provide an accounting only arises when a written request for one is
made prior to the NTS being recorded.  CCC § 2943(c).

Note 10 – Cause of Action for Breach of the Implied Covenant of Good
Faith and Fair Dealing – “[W]ith the exception of bad faith insurance
cases, a breach of the covenant of good faith and fair dealing permits
a recovery solely in contract.  Spinks v. Equity Residential Briarwood
Apartments, 171 Cal. App. 4th 1004, 1054 (2009).  In order to state a
cause of action for Breach of the Implied Covenant of Good Faith and
Fair Dealing, a valid contract between the parties must be alleged.
The implied covenant cannot be extended to create obligations not
contemplated by the contract.  Racine & Laramie v. Department of Parks
and Recreation, 11 Cal. App. 4th 1026, 1031-32 (1992).

Note 11 – Cause of Action for Breach of Contract – “A cause of action
for damages for breach of contract is comprised of the following
elements: (1) the contract, (2) plaintiff’s performance or excuse for
nonperformance, (3) defendant’s breach, and (4) the resulting damages
to plaintiff. It is elementary that one party to a contract cannot
compel another to perform while he himself is in default. While the
performance of an allegation can be satisfied by allegations in
general terms, excuses must be pleaded specifically.”  Durell v. Sharp
Healthcare, 183 Cal. App. 4th 1350, 1367 (2010) (citations and
quotations omitted).

Note 12 – Cause of Action for Injunctive Relief – Injunctive relief is
a remedy and not a cause of action.  Guessous v. Chrome Hearts, LLC,
179 Cal. App. 4th 1177, 1187 (2009).

Note 13 – Cause of Action for Negligence – “Under the common law,
banks ordinarily have limited duties to borrowers. Absent special
circumstances, a loan does not establish a fiduciary relationship
between a commercial bank and its debtor. Moreover, for purposes of a
negligence claim, as a general rule, a financial institution owes no
duty of care to a borrower when the institution’s involvement in the
loan transaction does not exceed the scope of its conventional role as
a mere lender of money. As explained in Sierra-Bay Fed. Land Bank
Assn. v. Superior Court (1991) 227 Cal.App.3d 318, 334, 277 Cal.Rptr.
753, “[a] commercial lender is not to be regarded as the guarantor of
a borrower’s success and is not liable for the hardships which may
befall a borrower. It is simply not tortious for a commercial lender
to lend money, take collateral, or to foreclose on collateral when a
debt is not paid. And in this state a commercial lender is privileged
to pursue its own economic interests and may properly assert its
contractual rights.”  Das v. Bank of America, N.A., 186 Cal. App. 4th
727, 740-741 (2010) (citations and quotations omitted).

Note 14 – Cause of Action to Quiet Title – To assert a cause of action
to quiet title, the complaint must be verified and meet the other
pleading requirements set forth in CCP § 761.020.

Note 15 – Causes of Action for Slander of Title – The recordation of
the Notice of Default and Notice of Trustee’s Sale are privileged
under CCC § 47, pursuant to CCC § 2924(d)(1), and the recordation of
them cannot support a cause of action for slander of title against the
trustee.  Moreover, “[i]n performing acts required by [the article
governing non-judicial foreclosures], the trustee shall incur no
liability for any good faith error resulting from reliance on
information provided in good faith by the beneficiary regarding the
nature and the amount of the default under the secured obligation,
deed of trust, or mortgage. In performing the acts required by [the
article governing nonjudicial foreclosures], a trustee shall not be
subject to [the Rosenthal Fair Debt Collection Practices Act].”  CCC §
2924(b).

Note 16 – Cause of Action for Violation of Civil Code § 1632 – Section
1632, by its terms, does not apply to loans secured by real property.
CCC § 1632(b).

Note 17 – Possession of the original promissory note – “Under Civil
Code section 2924, no party needs to physically possess the promissory
note.” Sicairos v. NDEX West, LLC, 2009 WL 385855 (S.D. Cal. 2009)
(citing CCC § 2924(a)(1); see also Lomboy v. SCME Mortgage Bankers,
2009 WL 1457738 * 12-13 (N.D. Cal. 2009) (“Under California law, a
trustee need not possess a note in order to initiate foreclosure under
a deed of trust.”).

Note 18 – Statute of Frauds, Modification of Loan Documents – An
agreement to modify a note secured by a deed of trust must be in
writing signed by the party to be charged, or it is barred by the
statute of frauds.  Secrest v. Security Nat. Mortg. Loan Trust 2002-2,
167 Cal. App. 4th 544, 552-553 (2008).

Note 19 – Statute of Frauds, Forebearance Agreement – An agreement to
forebear from foreclosing on real property under a deed of trust must
be in writing and signed by the party to be charged or it is barred by
the statute of frauds.  Secrest v. Security Nat. Mortg. Loan Trust
2002-2, 167 Cal. App. 4th 544, 552-553 (2008).

Note 20 – Tender – A borrower attacking a voidable sale must do equity
by tendering the amount owing under the loan.  The tender rule applies
to all causes of action implicitly integrated with the sale.  Arnolds
Management Corp. v. Eischen, 158 Cal. App. 3d 575, 579 (1984).

Note 21 – Cause of Action for Violation of Bus. & Prof. Code § 17200 –
“The UCL does not proscribe specific activities, but broadly prohibits
any unlawful, unfair or fraudulent business act or practice and
unfair, deceptive, untrue or misleading advertising. The UCL governs
anti-competitive business practices as well as injuries to consumers,
and has as a major purpose the preservation of fair business
competition. By proscribing “any unlawful business practice,” section
17200 “borrows” violations of other laws and treats them as unlawful
practices that the unfair competition law makes independently
actionable.  Because section 17200 is written in the disjunctive, it
establishes three varieties of unfair competition-acts or practices
which are unlawful, or unfair, or fraudulent. In other words, a
practice is prohibited as “unfair” or “deceptive” even if not
“unlawful” and vice versa.”  Puentes v. Wells Fargo Home Mortg., Inc.,
160 Cal. App. 4th 638, 643-644 (2008) (citations and quotations
omitted).

“Unfair” Prong

[A]ny finding of unfairness to competitors under section 17200 [must]
be tethered to some legislatively declared policy or proof of some
actual or threatened impact on competition. We thus adopt the
following test: When a plaintiff who claims to have suffered injury
from a direct competitor’s “unfair” act or practice invokes section
17200, the word “unfair” in that section means conduct that threatens
an incipient violation of an antitrust law, or violates the policy or
spirit of one of those laws because its effects are comparable to or
the same as a violation of the law, or otherwise significantly
threatens or harms competition.

Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co.,
20 Cal. 4th 163, 186-187 (1999).

“Fraudulent” Prong

The term “fraudulent” as used in section 17200 does not refer to the
common law tort of fraud but only requires a showing members of the
public are likely to be deceived. Unless the challenged conduct
targets a particular disadvantaged or vulnerable group, it is judged
by the effect it would have on a reasonable consumer.

Puentes, 160 Cal. App. 4th at 645 (citations and quotations
omitted).

“Unlawful” Prong

By proscribing “any unlawful” business practice, Business and
Professions Code section 17200 “borrows” violations of other laws and
treats them as unlawful practices that the UCL makes independently
actionable. An unlawful business practice under Business and
Professions Code section 17200 is an act or practice, committed
pursuant to business activity, that is at the same time forbidden by
law. Virtually any law -federal, state or local – can serve as a
predicate for an action under Business and Professions Code section
17200.

Hale v. Sharp Healthcare, 183 Cal. App. 4th 1373, 1382-1383 (2010)
(citations and quotations omitted).

“A plaintiff alleging unfair business practices under these statutes
must state with reasonable particularity the facts supporting the
statutory elements of the violation.”  Khoury v. Maly’s of California,
Inc., 14 Cal. App. 4th 612, 619 (1993) (citations and quotations
omitted).

Note 22 – Cause of Action for Intentional Infliction of Emotional
Distress –  Collection of amounts due under a loan or restructuring a
loan in a way that remains difficult for the borrower to repay is not
“outrageous” conduct.  Price v. Wells Fargo Bank, 213 Cal. App. 3d
465, 486 (1989).

Note 23 – Cause of Action for Negligent Infliction of Emotional
Distress – Emotional distress damages are not recoverable where the
emotional distress arises solely from property damage or economic
injury to the plaintiff.  Butler-Rupp v. Lourdeaux, 134 Cal. App. 4th
1220, 1229 (2005).

Note 24 – Cause of Action for Conspiracy – There is no stand-alone
claim for conspiracy.  Applied Equipment Corp. v. Litton Saudi Arabia
Ltd., 7 Cal. 4th 503, 510-511 (1994).

Note 25 – Cause of Action for Declaratory Relief – A claim for
declaratory relief is not “proper” since the dispute has crystallized
into COA under other theories asserted in other causes of actions in
the complaint.  Cardellini v. Casey, 181 Cal. App. 3d 389, 397-398
(1986).

Note 26 – Cause of Action for Violation of the Fair Debt Collection
Practices Acts – Foreclosure activities are not considered “debt
collection” activities.  Gamboa v. Trustee Corps, 2009 WL 656285, at
*4 (N.D. Cal. March 12, 2009).

Note 27 – Duties of the Foreclosure Trustee – The foreclosure
trustee’s rights, powers and duties regarding the notice of default
and sale are strictly defined and limited by the deed of trust and
governing statutes.  The duties cannot be expanded by the Courts and
no other common law duties exist.  Diediker v. Peelle Financial Corp.,
60 Cal. App. 4th 288, 295 (1997).

Note 28 – Unopposed Demurrer – The Demurrer is sustained [w/ or w/o]
leave to amend [and the RJN granted].  Service was timely and good and
no opposition was filed.
Failure to oppose the Demurrer may be construed as having abandoned
the claims.  See, Herzberg v. County of Plumas, 133 Cal. App. 4th 1,
20 (2005) (“Plaintiffs did not oppose the County’s demurrer to this
portion of their seventh cause of action and have submitted no
argument on the issue in their briefs on appeal.  Accordingly, we deem
plaintiffs to have abandoned the issue.”).

Note 29 – Responding on the Merits Waives Any Service Defect – “It is
well settled that the appearance of a party at the hearing of a motion
and his or her opposition to the motion on its merits is a waiver of
any defects or irregularities in the notice of the motion.”  Tate v.
Superior Court, 45 Cal. App. 3d 925, 930 (1975) (citations omitted).

Note 30 – Unargued Points – “Contentions are waived when a party fails
to support them with reasoned argument and citations to authority.”
Moulton Niguel Water Dist. v. Colombo, 111 Cal. App. 4th 1210, 1215
(2003).

Note 31 – Promissory Estoppel – “The doctrine of promissory estoppel
makes a promise binding under certain circumstances, without
consideration in the usual sense of something bargained for and given
in exchange. Under this doctrine a promisor is bound when he should
reasonably expect a substantial change of position, either by act or
forbearance, in reliance on his promise, if injustice can be avoided
only by its enforcement. The vital principle is that he who by his
language or conduct leads another to do what he would not otherwise
have done shall not subject such person to loss or injury by
disappointing the expectations upon which he acted. In such a case,
although no consideration or benefit accrues to the person making the
promise, he is the author or promoter of the very condition of affairs
which stands in his way; and when this plainly appears, it is most
equitable that the court should say that they shall so stand.”  Garcia
v. World Sav., FSB, 183 Cal. App. 4th 1031, 1039-1041 (2010)
(citations quotations and footnotes omitted).

Note 32 – Res Judicata Effect of Prior UD Action – Issues of title are
very rarely tried in an unlawful detainer action and moving party has
failed to meet the burden of demonstrating that the title issue was
fully and fairly adjudicated in the underlying unlawful detainer.
Vella v. Hudgins, 20 Cal. 3d 251, 257 (1977).  The burden of proving
the elements of res judicata is on the party asserting it.  Id. The
Malkoskie case is distinguishable because, there, the unlimited
jurisdiction judge was convinced that the title issue was somehow
fully resolved by the stipulated judgment entered in the unlawful
detainer court.  Malkoskie v. Option One Mortg. Corp., 188 Cal. App.
4th 968, 972 (2010).

Note 33 – Applicability of US Bank v. Ibanez – The Ibanez case, 458
Mass. 637 (January 7, 2011), does not appear to assist Plaintiff in
this action.  First, the Court notes that this case was decided by the
Massachusetts Supreme Court, such that it is persuasive authority, and
not binding authority.  Second, the procedural posture in this case is
different than that found in a case challenging a non-judicial
foreclosure in California.  In Ibanez, the lender brought suit in the
trial court to quiet title to the property after the foreclosure sale,
with the intent of having its title recognized (essentially validating
the trustee’s sale).  As the plaintiff, the lender was required to
show it had the power and authority to foreclose, which is
established, in part, by showing that it was the holder of the
promissory note.  In this action, where the homeowner is in the role
of the plaintiff challenging the non-judicial foreclosure, the lender
need not establish that it holds the note.

Note 34 – Statutes of Limitations for TILA and RESPA Claims – For TILA
claims, the statute of limitations for actions for damages runs one
year after the loan origination.  15 U.S.C. § 1640(e).  For actions
seeking rescission, the statute of limitations is three years from
loan origination.  15 U.S.C. § 1635(f).  For RESPA, actions brought
for lack of notice of change of loan servicer have a statute of
limitation of three years from the date of the occurrence, and actions
brought for payment of kickbacks for real estate settlement services,
or the conditioning of the sale on selection of certain title services
have a statute of limitations of one year from the date of the
occurrence.  12 U.S.C. § 2614.

Yau v. Deutsche FIRST AMENDED CLASS ACTION COMPLAINT

Yau_-_complaint_First_Amended_Pleading.78103044

FIRST AMENDED CLASS ACTION COMPLAINT
Yau v. Deutsche Bank National Trust Company Americas
Request for IMMEDIATE RELIEF:

Lenore L. Albert, Esq. SBN 210876
LAW OFFICES OF LENORE ALBERT
7755 Center Avenue, Suite #1100
Huntington Beach, CA 92647
Telephone (714) 372-2264
Facsimile (419) 831-3376
Email: lenorealbert@msn.com
Attorney for Plaintiffs and the Class
EDDIE YAU, GLORIA YAU,
ROBERT H. RHOADES, NICOLE
RHOADES, STEVE BURKE, CHEN
PI AS AN INDIVIDUAL AND AS
TRUSTEE FOR THE PI TRUST
DATED MAY 17, 2004, SALIM
BENSRHIR, KIMBERLY
CHRISTENSEN, ALICE MBAABU,
CARMEN ARBALLO, ANGELA
BROWN, ANTHONY JOHNSON,
OTIS BANKS, RICHARD
APOSTOLOS, REGAN OWEN,
JENNIFER OWEN, JOANNE
ANDERSON, JEREMY JOHN DALE,
DOUGLAS L. EDMAN, and
DOUGLAS L. EDMAN and ERIC
EDMAN as trustees of the HIGH
DESERT ENTERPRISES TRUST,
on behalf of themselves and all others
similarly situated,
Plaintiffs,
vs.
DEUTSCHE BANK NATIONAL
TRUST COMPANY, DEUTSCHE
1. Breach/Unjust Enrichment
2. HAMP Breach/Unjust Enrichment
3. Breach of Contract – Third Party Ben.
4. Declaratory Relief/Default Cured
5. Declaratory Relief/Unsecured Creditor
6. Declaratory Relief/Fees and Costs
7. Fraud
8. Injunctive Relief
9. Accounting
10.Unlawful/Unfair Acts §17200
11.Fraud
12.Declaratory Relief/Injunction
[ ]
***
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CASE NO. SACV11-0006-JVS (RNBx)
Assigned for all purposes to the honorable:
James V. Selna
FIRST AMENDED CLASS ACTION
COMPLAINT
Demand for Jury Trial
FIRST AMENDED CLASS ACTION COMPLAINT
Yau v. Deutsche Bank National Trust Company Americas
TEMPORARY RESTRAINING ORDER and
INJUNCTION filed Concurrently herewith

BANK TRUST COMPANY
AMERICAS and AURORA LOAN
SERVICES, LLC, Inclusive,
Defendants.
***
FIRST AMENDED CLASS ACTION COMPLAINT
Yau v. Deutsche Bank National Trust Company Americas
Plaintiffs, by and through their attorney, bring this action on behalf of themselves
and all others similarly situated against Deutsche Bank National Trust Company
(“DBNT” or “Defendant”). Deutsche Bank Trust Company Americas (“DBTCA” or
“Defendant”) and Aurora Loan Services, LLC. (“Aurora” or “Defendant”). Plaintiffs
allege the following on information and belief, except as to those allegations which
pertain to the named Plaintiffs:
1. Plaintiffs bring this action to challenge the defendants’ manipulation and use of
the federal and state programs surrounding the mortgage crisis, such as HAMP and other
foreclosure prevention services.
2. The defendants defaulted the plaintiffs and those similarly situated then offered
them federal and state home retention programs such as Home Affordability
Modification Program agreements (HAMP).
3. After the Plaintiffs made their post default payments as requested, the
defendants never-the-less denied the permanent modification, did not cure the default or
reinstate the plaintiffs’ loans on the grounds they couldn’t get the loan to work.
4. The program guidelines state that if the Net Present Value (“NPV”) of the loan
modification is greater than the NPV at foreclosure, then the lenders modify the
loan.
1. Introduction
5. Plaintiff is informed and believes and alleges thereon that the defendants were
already made whole upon the loans because these loans were securitized with credit
default swaps (“CDS”) and other security interests, and the CDS were factored into the
NPV and not merely the amount that the defendants may receive on a foreclosure sale.
6. The securitization of their loans with CDS was never revealed to the plaintiffs
and the Class prior to their default.
7. The Court has subject matter jurisdiction over this action under 28 USC § 1331
wherein the action arises under the Constitution, laws or treaties of the United States.
8. The Court has personal jurisdiction over the defendants in this action by the
fact that the Defendants are corporations conducting business in the state of California.
9. Venue is proper in this Court pursuant to 28 USC § 1392 because the action
involves real property located in both the Central and Southern District of California; and
pursuant to 28 USC § 1391(b) inasmuch as defendant DBNT and DBTCA reside in the
Central District of California, and a substantial part of the events or omissions on which
the claims are based occurred in this District.
10.Plaintiffs Eddie Yau and Gloria Yau (the “Yaus,” “plaintiff,” “plaintiffs” or
“borrowers”) are a married couple residing in Vista, California. Plaintiff is now, and at
all times mentioned herein relevant to this complaint was the owner of real property
2. Jurisdiction and Venue
3. The Parties
commonly known as 1307 Summer Court, Vista, California 92084 (“subject property”).
Douglas L. Edman was the borrower on the loan.
11.Plaintiffs Robert Rhoades and Nicole Rhoades (the “Rhoades,” “plaintiff,” or
“borrowers”) are a married couple residing in Chino, California. Plaintiff is now, and at
all times mentioned herein relevant to this complaint was the owner of real property
commonly known as 7746 Holland Park, Chino, California 92401 (“subject property”).
Robert Rhoades was the borrower on the loan.
12.Plaintiff Steve Burke is an adult residing in Paradise, California. Plaintiff is
now, and at all times mentioned herein relevant to this complaint was the owner of real
property commonly known as 5871 Pine Circle, Paradise, California 95969 (“subject
property”). Steve Burke was the borrower on the loan.
13.Plaintiff Chen Pi, acting on her own behalf and as trustee for the Pi Trust dated
May 17, 2004 resides in La Puente California. Plaintiff is now, and at all times
mentioned herein relevant to this complaint was the owner of real property commonly
known as17116 Samgerry Dr., La Puente, California (“subject property”). Chen Pi was
the borrower on the loan.
14.Plaintiff Otis Banks is an individual residing in Inglewood, California. Plaintiff
is now, and at all times mentioned herein relevant to this complaint was the owner of real
property commonly known as 5408-5408 ½ 8TH Avenue, Los Angeles, California 90045
(“subject property”). Otis Banks was the borrower on the loan.

15.Plaintiff Salim Bensrhir and Kimberly Christensen are a married couple
residing in Los Angeles, California. Plaintiff is now, and at all times mentioned herein
relevant to this complaint was the owner of real property commonly known as 842 N
Dillon Street, Los Angeles, California 90026 (“subject property”). Salim Bensrhir and
Kimberly Christensen were the borrowers on the loan.
16.Plaintiff Alice Mbaabu is an individual residing in Fontana, California.
Plaintiff is now, and at all times mentioned herein relevant to this complaint was the
owner of real property commonly known as 13536 Whipple Street, Fontana, California
92336 (“subject property”). Alice Mbaabu was the borrower on the loan.
17.Plaintiff Carmen Arballo is an individual residing in Chino, California.
Plaintiff is now, and at all times mentioned herein relevant to this complaint was the
owner of real property commonly known as 6952 Gloria Street, Chino, California 91710
(“subject property”). Carmen Arballo was the borrower on the loan.
18.Plaintiff Angela Brown is an individual residing in Stockton, California.
Plaintiff is now, and at all times mentioned herein relevant to this complaint was the
owner of real property commonly known as 4516 Abruzzi Circle, Stockton, California
95206 (“subject property”). Angela Brown was the borrower on the loan.
19.Plaintiff Anthony Johnson is an individual is an individual residing in Corona,
California. Plaintiff is now, and at all times mentioned herein relevant to this complaint
was the owner of real property commonly known as 382 Minaret Street, Corona, CA
92881 (“subject property”). Anthony R. Johnson was the borrower on the loan.
20.Plaintiff Richard Apostolos is an individual residing in Perris, California.
Plaintiff is now, and at all times mentioned herein relevant to this complaint was the
owner of real property commonly known as 21200 Mountain Ave., Perris, California
92570 (“subject property”). Richard Apostolos was the borrower on the loan.
21.Regan Owen and Jennifer Owen are a married couple residing in Chula Vista,
California. Plaintiff is now, and at all times mentioned herein relevant to this complaint
was the owner of real property commonly known as 2872 Ranch Gate Rd., Chula Vista,
California (“subject property”). Regan Owen was the borrower on the loan.
22.Plaintiff Joanne Anderson is an individual residing in Laguna Niguel,
California. Plaintiff is now, and at all times mentioned herein relevant to this complaint
was the owner of real property commonly known as 24291 Park Pl Dr, Laguna Niguel,
CA 92677 (“subject property”). Joanne Anderson was the borrower on the loan.
23. Jeremy John Dale is an individual residing in Paynes Creek, California.
Plaintiff is now, and at all times mentioned herein relevant to this complaint was the
owner of real property commonly known as 30510 HWY 36 East, Paynes Creek,
California 96075 (“subject property”). Jeremy John Dale was the borrower on the loan.
24.Douglas L. Edman is an individual residing in Malibu, California. Plaintiff is
now, and at all times mentioned herein relevant to this complaint was the owner of real
property commonly known as 612 Thrift Road, Malibu, California 90265 (“subject
property”). Douglas L. Edman was the borrower on the loan.
25.Douglas L. Edman and Eric Edman as trustees of the HIGH DESERT
ENTERPRISES TRUST reside in Malibu, California. Plaintiff is now, and at all times
mentioned herein relevant to this complaint was the owner of real property commonly
known as 612 Thrift Road, Malibu, California 90265 (“subject property”). Douglas L.
Edman was the borrower on the loan. Then after the loan was made, the property was
transferred by Douglas L. Edman to Douglas L. Edman, Trustee of the High Desert
Enterprises Trust.
26.Defendant DEUTSCHE BANK NATIONAL TRUST COMPANY (“DBNT”
or “Custodian”) has its principal place of business at 1761 Saint Andrews Place, Santa
Ana, CA 92705.
27.Defendant DEUTSCHE BANK TRUST COMPANY AMERICAS
(“DBTCA”) has its principal place of business at 1761 Saint Andrews Place, Santa Ana,
CA 92705. When DBNT and DBTCA are mentioned together in this complaint they
may be referred to as “Deutsche Bank.”
28.Defendant AURORA LOAN SERVICES, LLC (“Aurora” or “loan servicer”) is
headquartered in Littleton, Colorado and regularly conducts business in the state of
California.

29. Plaintiffs are informed and believe and allege thereon that their loans are in
securitized trusts where the defendants are either the Servicer, Custodian, or Trustee of
that trust.
30.Plaintiff is informed and believes and alleges thereon that DBNTC and
DBTCA act as board members and are referred to as the Company each with different
duties in the trusts.
31.DBNTC and DBTCA are both subsidiaries created by nonparty Deutsche Bank
Company (“DBC”) which has its principal place of business in Germany. Plaintiff is
informed and believes and alleges thereon DBNTC and DBTCA were either acting in
concert, instructing, adopting, ratifying, assisting DBC’s conduct as alleged in this
complaint through an agency or contractual relationship. As such, the actions or failure
to act are the actions or failure to act of each other.
32.Nonparty FANNIE MAE/FREDDIE MAC (“Fannie Mae”) entered into an
agreement with defendant Aurora of which the plaintiffs and the Class were intended
beneficiaries.
33.Plaintiff is informed and believes and alleges thereon that each defendant is
responsible in some manner for the occurrences alleged in this complaint, and that
plaintiff’s damages were proximately caused by the defendants and at all times
mentioned in this complaint, were the agents, servants, representatives, and/or employees
of their co-defendants, and in doing the things hereinafter alleged were acting in the
scope of their authority as agents, servants, representatives, family members and/or
employees, and with the permission and consent of their co-defendants.
34.Additionally, plaintiff is informed and believes and alleges thereon that each
defendant assisted, aided and abetted, adopted, ratified, approved, or condoned the
actions of every other defendant and that each corporate defendant, if any, was acting as
the alter ego of the other in the acts alleged herein.
35.On March 4, 2009 President Obama signed into law the Making Home
Affordable Plan as part of the Emergency Economic Stabilization Act of 2008. It is in
two parts: the Home Affordable Refinance program (“HARP”) and the Home Affordable
Modification program (“HAMP”).
36.Under these programs, the U.S. Department of the Treasury directed the large
national bank servicers to take corrective action by providing loan modifications that
produced more sustainable loan payments.
37.On March 4, 2009 the U.S. Department of the Treasury explained,
38.With the information now available, servicers can begin immediately to modify
eligible mortgages under the Modification program so that at-risk borrowers can better
afford their payments.
39.Aurora entered into a Servicer Participation Agreement for the HAMP program
with Fannie Mae; the latter acted as Financial Agent of the United States. ( ).
3. Statutory and Regulatory Scheme
Exhibit 1

40.However, Aurora failed and refused to put Mr. Yau immediately into a
modification program until they first defaulted and gave Notice of Sale of Mr. Yau’s
home. Plaintiff is informed and believes and alleges thereon that defendant Aurora first
caused Notices of Default and Notice of Foreclosure Sale to be served on the Class prior
to placing the Class into a temporary HAMP also.
41.By March 2010, the White House fortified the HAMP program because only
borrowers out of the it was aimed at were placed in a
more affordable home loan.
42.Thereafter, the contract between Aurora and Fannie Mae was amended and
restated on or about September 1, 2010. The Amended and restated contract is attached
hereto and fully incorporated herein as .
43.The United States Treasury, Office of the Comptroller of Currency (hereinafter
the “OCC”) regulates the banking industry such as defendant Deutsche Bank. The OCC
mandated that the largest banks institute HAMP programs.
44.The Office of Thrift Supervision (hereinafter the “OTS”) regulates loan
services such as defendant Aurora.
45.According to the Aurora Loan Services – Issuer Profile dated June 24, 2008 by
Analyst Kathleen Tillwitz, Aurora Loan Services was a wholly owned subsidiary of
Lehman Brothers Bank, FSB, servicing 20,000 to 110,380 (or 21.4% of their loans) in
170,000 3 to 4 million borrowers
Exhibit 2
California. As of February 29, 2008 Aurora serviced 514,831 mortgage loans totaling
$113.2 billion dollars.
46.On 11/19/10 the OCC supplied the following written testimony:
47.HAMP guidelines now preclude the servicer from initiating a foreclosure
action until the borrower has been determined to be ineligible for a HAMP modification.
48.Aurora actions in working with the borrowers on the loans at issue in this
complaint violated and continue to violate these directives.
49.Under the contract, the Servicer of the loan must perform a Net Present Value
(NPV) Test to compare the value of the money that it would receive if the loan were
modified with the value it could expect from foreclosure.
50. If the servicer and owner of the loan can expect a greater return from modifying
the loan, the loan is considered NPV positive and the servicer and owner then
modify the loan. ( )
51. In plaintiff’s case, plaintiff is informed and believes and alleges thereon that the
defendants as the servicer and owner of the loan could have expected no more than onethird
of what the plaintiff would have paid under the HAMP loan modification which
would have been anywhere from $934,560.00 to over $1 million dollars.
52.As servicer of the loan, Aurora must modify the loan unless the contractual
agreement it has with the actual holder of the loan prohibits modification. In that case,
must
Exhibit 4
the servicer is required to use reasonable efforts to obtain waivers or approval of a
modification from the owner and/or investor
53.Plaintiff is informed and believes and alleges thereon that Aurora failed to
disclose to Fannie Mae that loans like the Yau’s which appear to nicely fit under the
program’s protected class, were actually the loans that would never become permanently
modified because these loans were backed by CDS and such. Signing up as a servicer of
the HAMP program, was a carrot to lure distressed homeowners into default.
54.The defendants signed up for exemptions with the California Commissioner for
the same reason, motive or to assist in effectuating this plan.
55.Plaintiff is informed and believes and alleges thereon defendant failed to make
these material disclosures to Fannie Mae and the California Commissioner, so the
defendants could use the guise of being able to offer these “Programs” to maximize their
own profit by luring homeowners into default, dragging out the process and obtaining
more money from the defaulted homeowner than otherwise would likely occur if the
homeowner did not have hope they may qualify for one of the foreclosure alternatives,
such as HAMP.
56. In the Yau’s case, who were initially only behind by $5,000.00, if they had
known and understood the truth to this scheme, they would have had an incentive to find
a short term loan or other capital to cure the late payment prior to default instead of
relying on their lender to place them in a foreclosure alternative program; they most
$3.86 Trillion dollars.
likely would have never entered into the mortgage in the first place; and surely would
have never paid a dime to the defendants after they gave notice of default and
foreclosure.
57.The impact of Aurora’s practice of defaulting before processing a foreclosure
alternative request by a homeowner, then dragging out the process while the homeowner
is making monthly payments and denying blocks of HAMP modifications after obtaining
a temporary modification is nothing more than a financial “Death Spiral” for the
homeowner.
58.At all times herein mentioned, plaintiff and the Class believed that they were
eligible for HAMP.
59.Although the plaintiffs and the Class complied with the terms of the post
default program agreements, Defendants refused to cure the default, offer such a
permanent modification under the program or to take corrective action by providing loan
modifications that produced more sustainable loan payments to plaintiff.
60.The market size for credit default swaps by 2008 in the United States was
estimated to be Dodd- Frank Wall Street Reform and Consumer Protection Act
Critics assert that naked CDS should be banned, comparing them to
buying fire insurance on your neighbor’s house, which creates a huge
incentive for arson.1 [emphasis added]
61. In essence the defendants bet against the borrower from the beginning then
used the Federal Government through the federal HAMP program to take even more
money from the defaulting homeowner in this class knowing that they would never grant
this class of homeowners a permanent loan modification or any other type of relief. The
defendants never fully disclosed or adequately explained this to Fannie Mae/Freddie
Mac. The entire program failed to the assist the very class of homeowners it was
intended to protect.
62.On or about February 2, 2011 the Securities and Exchange Commission started
accepting comment on creating an exchange called “Swap Execution Facilities” under
the in order to create
greater transparency with Credit Default Swaps which the SEC refers to as “Security
Based Swaps.”
63.The plaintiffs and the Class in this Complaint are the class of homeowners
these federal and state programs, including the HAMP program were intended to protect.
64.The plaintiffs and the Class were led to believe that they would have the
opportunity to cure their default and be reinstated, but no matter how much they paid the
defendants each month or what they signed, it never happened and they were kept in
constant foreclosure status the entire time while doling out money and their private
financial information to the defendants.
65.Plaintiff alleges defendants intended to, did and still continue to use these
Programs to manipulate more money from the Plaintiffs and the Class.
66.After obtaining the agreements with Fannie Mae and the California
Commissioner, the defendants used the guise of offering these “Programs” to lure
homeowners into default, drag out the process and confuse the homeowners on the type
of alternative temporary program they were placing the homeowner in just to get them to
shell out more money to the defendants after a Notice of Default and Notice of Sale was
filed and served.
67.Plaintiff is informed and believes and alleges thereon that defendant Aurora
knew or had reason to know that defendant Deutsche Bank bought credit default swaps
or other types investment security/insurance that were either worth more than making the
loan modifications permanent prior to default on these blocks of homes when entering to
the contract with Fannie Mae or defendants failed to properly calculate the Net Present
Value (“NPV”) on these loan modifications. But Aurora never disclosed these facts to
Fannie Mae/Freddie Mac.
68.Plaintiff is informed and believes and alleges thereon that these CD swaps and
other financial arrangements and the NPV calculations as applied to these asset-backed
loans were material facts and as such Defendants had a duty to disclose these material
facts under the agreement with Fannie Mae/Freddie Mac or comply with the terms with
regard to NPV calculations.
69.Even if such material facts were disclosed to Fannie Mae/Freddie Mac, these
material facts were never disclosed to the intended beneficiaries of the agreements
between Fannie Mae/Freddie Mac and Aurora, the plaintiffs and the Class.
70. If it is later interpreted that the facts were disclosed to Fannie Mae/Freddie Mac
but the defendants were forbidden from using the gains they could expect to receive from
the CDS by defaulting the homeowners, then the plaintiffs allege that the defendants
breached that covenant to the injury of the plaintiffs.
71.As intended beneficiaries of the agreements between Fannie Mae/Freddie Mac
and Aurora, the Plaintiffs and the Class were injured due to the failure to disclose these
material facts and/or comply with the terms of the agreement.
72. The impact of defendants’ practice and/or scheme as more fully described
below was nothing more than a financial “Death Spiral” to the borrower resulting in
making extortion like payments after giving a complete disclosure of their remaining
financial assets, and allowing their credit to be decimated or face foreclosure sale.
73.And even if these borrowers had the ability to reinstate their loans, under this
scheme the proceeds the defendants received on default would not be applied to the loan
but become a windfall to the defendants, still leaving the homeowner’s credit and
financial health badly battered, making the entire scheme outrageous, despicable and
deserving of punitive or exemplary damages.
74.The plaintiffs each received a written agreement such as a temporary HAMP
agreement after default appearing to give the plaintiffs an opportunity to save their home
if they made the requested payments.
75.Plaintiffs and those similarly situated made all payments, however the
defendants did not cure the default, reinstate the loan or permanently modify the loan.
76.Plaintiff is informed and believes and alleges thereon that at all times
mentioned in this complaint, the defendants knew California was not a deficiency
judgment state and understood their actions of collecting payment after default without
cure or reinstatement was unlawful.
77.Yet, the defendants collected money from the plaintiffs before satisfying the
debt with the security.
78.Mr. Burke has paid the defendants approximately $20,279.00 since the Notice
of Default dated 9/16/08 originally for $6,312.74.
79.Plaintiff, Mr. Apostolos has paid $27,928.00 after his Notice of Default dated
6/7/10 in the amount of $33,014.53 and turned over approximately $7,000.00 payments
to his attorney to be held in trust for payments on his home.
4. General Factual Allegations
80.Plaintiff Ms. Brown has paid the defendants approximately $24,728.00 after
her Notice of Default dated 2/14/09 in the amount of $5,899.60 and also placed
additional payments in trust with her attorney and/or deposited with the court.
81.Plaintiff Mr. Salem Benshir and Kimberly Christensen has paid the defendants
approximately $51,991.25 after their Notice of Default dated 11/16/08 in the amount of
$10,495.23.
82.Plaintiff Regan Owens and Jennifer Owens paid the defendants approximately
$38,059.00 after their Notice of Default dated 3/10/09 in the amount of $27,371.99.
83.Plaintiff Ms. Chen Pi has paid the defendants approximately $24,728.00 after
her Notice of Default dated 2/14/09 in the amount of $5,899.60 and also placed
additional payments in trust with her attorney and/or deposited with the court.
84.Plaintiff Ms. Alice Mbaabu has paid the defendants approximately $24,728.00
after her Notice of Default dated 2/14/09 in the amount of $5,899.60 and also placed
additional payments in trust with her attorney and/or deposited with the court.
85.Plaintiff Ms. Carmen Arballo has paid the defendants approximately
$24,728.00 after her Notice of Default dated 2/14/09 in the amount of $5,899.60 and also
placed additional payments in trust with her attorney and/or deposited with the court.
86.Plaintiff Mr. Anthony Johnson has paid the defendants approximately
$24,728.00 after her Notice of Default dated 2/14/09 in the amount of $5,899.60 and also
placed additional payments in trust with her attorney and/or deposited with the court.
87.Plaintiff Mr. Otis Banks has paid the defendants approximately $24,728.00
after her Notice of Default dated 2/14/09 in the amount of $5,899.60 and also placed
additional payments in trust with her attorney and/or deposited with the court.
88. In fact, each of the named plaintiffs and those similarly situated have entered
into agreements with the defendants after default and tendered payments as requested.
89. In 2009, 632,573 California properties had some type of foreclosure filed on its
property record.2
90.According to a California Consumer Banking article dated December 13, 2010,
the outlook for 2011 is worse.
91.The number of foreclosures is expected to increase in 2011 as more mortgage
defaults work their way through the pipeline. Rick Sharga, a senior vice president for
RealtyTrac, said there were approximately 1.2 million bank repossessions in 2010,
900,000 in 2009, and “We expect we will top both of those numbers in 2011,” he said.3
92.Quality Loan Service Corporation, agent of defendant Aurora Loan Services,
LLC recorded over foreclosure type filings in in 2010
alone.
93.Recently, the Attorney General of Arizona was quoted by Business Week as
stating
What I’m most angry about is the simultaneous modifications and
foreclosures… We need to look for a stipulated judgment in all 50 states,
that if someone is in modification, they can’t be foreclosed.
(www.businessweek.com/news/2010-10-28/arizona-seeks-changes-tobanks-
home-loan-modification-process.html).
94.The plaintiffs and the Class were led to believe that they would have an
opportunity to cure their default, receive a modification and have their loan reinstated,
but no matter how much they paid the defendants each month or what they signed, it
never happened. Attached hereto and fully incorporated herein as is a true and
correct copy of the Yaus’ Temporary HAMP Agreement.
95.Some plaintiffs signed temporary modification agreements, others were
actually placed in limited modification Special Forbearance agreements, and some were
placed in both after notice of default.
96. Defendant Aurora contracted with Fannie Mae to provide foreclosure
prevention services intending to benefit homeowners with affordable loan modifications.
In return Aurora would be compensated over in taxpayer funds as
incentive to do so. Attached hereto and fully incorporated herein as is a true
and correct copy of the original Agreement between Aurora and Fannie Mae.
Exhibit 3
$2.873 Billion dollars
Exhibit 1
97.Plaintiff is informed and believes and alleges thereon that Aurora Loan
Services made and/or is making more money on defaults and/or foreclosures than on the
loan modifications and knew it would do so when entering into the contract with Fannie
Mae.
98.Plaintiff is informed and believes and alleges thereon that defendant Aurora
knew or had reason to know that defendant Deutsche Bank bought credit default swaps
or other types investment security/insurance that were either worth more than making the
loan modifications permanent prior to default on these blocks of homes when entering to
the contract with Fannie Mae or they failed to report the way they were calculating NPV
under the agreement. But Aurora never disclosed these facts to Fannie Mae.
99.Plaintiff is informed and believes and alleges thereon that these CDS and other
financial arrangements were material facts and as such Defendants had a duty to disclose
these material facts under the agreement or the NPV calculations violated the terms of
the agreement with Fannie Mae/Freddie Mac. Attached hereto and fully incorporated
herein as is a true and correct copy of the March 4, 2009 Home Affordable
Modification Program Guidelines including the NPV calculations.
100. But defendants never disclosed or adequately explained these material facts.
101. Assistant Treasury Secretary Herbert M. Allison admitted that modifying
mortgages has been more difficult than administration officials had anticipated.”
Exhibit 4
FIRST AMENDED CLASS ACTION COMPLAINT
Yau v. Deutsche Bank National Trust Company Americas

“Certainly we’ve seen a lot of frustration with this program since its
inception,” he told lawmakers. “We did not fully envision the
challenges we would encounter.” (http://rismedia.com/2010-03-
28/white-house-to-adjust-troubled-mortgage-modification-program/)
102. Section 5 of the Servicer agreement between Aurora and Fannie Mae
contains the representations, warranties and covenants which state in part:
(b) Servicer is in compliance with, and covenants that all
Services will be performed in compliance with all applicable
Federal, state and local law, regulations, regulatory guidance,
statutes, ordinances, codes and requirements, including, but not
limited to, the Truth in Lending Act, 15 USC 1601 et seq., the
home Ownership and Equity Protection Act, 15 USC 1639, the
Federal Trade Commission Act, 15 USC 41 et seq., the Equal
Credit Opportunity Act, 15 USC 701 et seq., the Fair Credit
Reporting Act, 15 USC 1681 et seq., the fair Housing Act and
other Federal and state laws designed to prevent unfair,
discriminatory or predatory lending practices and all applicable
laws governing tenant rights…Servicer is not aware of any
other legal or financial impediments to performing its
obligations under the Program in which Servicer participates or
the Agreement and shall promptly notify Fannie Mae of any
financial and/or operational impediments which may impair its
ability to perform its obligations under such Programs or the
Agreement…
(c) Servicer covenants that:…all data …that is relied upon by
Fannie Mae or Freddie Mac in calculating the Purchase Price or
in performing any compliance review will be true, complete and
accurate in all material respects, and consistent with all relevant
business records, as and when provided.
(d) Servicer covenants that it will(i) perform the Services
required under the Program Documentation and the Agreement
in accordance with the practices, high professional standards of
care, and degree of attention used in a well-managed
operation…

(f) Servicer acknowledges that the provision of false or
misleading information to Fannie Mae or Freddie mac in
connection with any of the Programs or pursuant to the
Agreement may constitute a violation of: (a) Federal criminal
law involving fraud, conflict of interest, bribery, or gratuity
violations found in Title 18 of the United States Code; or (b) the
civil False Claims Act (31 USC § 3729-3733). Servicer
covenants to disclose to Fannie Mae and Freddie Mac any
credible evidence, in connection with the Servicers, that a
management official, employee, or contractor of Servicer has
committed, or may have committed, a violation of the
referenced statutes.
(g) Servicer covenants to disclose to Fannie Mae and Freddie
Mac any other facts or information that the Treasury, Fannie
Mae or Freddie Mac should reasonably expect to know about
Servicer and its contractors to help protect the reputational
interests of the Treasury, Fannie Mae and Freddie Mac in
managing and monitoring the Programs in which Servicer
participates.” ( page A-2 to A-4 ; Exhibit 2 page B-3
to B-4)
103. Plaintiff alleges that defendants breached these covenents.
104. Defendants used the offering of the federal HAMP Program as an incentive
to get the homeowners to default on their loans which would trigger payment on the CDS
without any care about placing the homeowners at risk of a foreclosure sale and then
have the homeowners like the plaintiffs in this case continue to make monthly payments
on them while in default facing a foreclosure sale all to the defendants’ financial benefit.
105. On July 7, 2007 plaintiff Eddie Yau borrowed $608,000.00 from
Homecomings Financial, LLC on a 30 year negative adjustable rate note to purchase his
Exhibit 1
8. Factual Allegations of the Yaus Repesenting the HAMP Subclass
home where he lives with his wife. His payments were supposed to be fixed at $2,402.34
per month for the first five years of the loan.
106. Mr. Yau, a retired military veteran and mechanic, has no mortgage or home
lending financial experience beyond basic financial matters.
107. Plaintiff, as trustor, executed and delivered a deed of trust, conveying the
real property described herein to secure payment of the principal sum and interest as
provided in the note and as part of the same transaction to Homecomings Financial, LLC
which was then later assigned, sold or transferred by the lender to either DBNT or
DBTCA as beneficiary and serviced by defendant Aurora.
108. Mr. Yau missed his July 2008 payment and telephoned defendant Aurora
Loan Services and explained he was experiencing financial difficulties due to a decrease
in his income and inquired as to alternatives to foreclosure.
109. On or about September 24, 2008 defendant Aurora Loan Services sent a
letter explaining the following programs it offered and that by entering into the programs
the borrower “will avoid the loss of your home through foreclosure or further impairment
on your credit.”
“Repayment Plan: If you recently experienced a temporary reduction
in income or an increase in living expenses, a repayment plan will
allow you to repay the past due amount over a specified period of
time.
Forbearance Plan: You may be able to suspend or reduce your
mortgage payments for a short period of time. Thereafter, we would
review your current financial situation and determine what home
retention option would best assist you in bringing your loan current.
Loan Modification: A loan modification may offer you the ability to
change on or more of the terms of your mortgage. This may assist
you with providing an affordable payment and avoiding foreclosure.
Again, we would need to review your financial situation and ability to
pay. If your loan is current and you anticipate that you may have
difficulty in making the increased monthly payment, we may be able
to assist you with a loan modification that will provide you with an
affordable payment based on your current financial information.
110. Then on December 02, 2008 defendant Aurora Loan Services wrote Mr.
Yau which stated:
“Based upon the information that you provided during your telephone
conversation with Aurora, your loan may qualify for a loan
modification….You must provide documentation to support your
inability to reinstate the mortgage loan in one lump sum…under some
circumstances,
111. Then on December 19, 2008 Aurora Loan Services sent Mr. Yau a letter
noting Mr. Yau’s was in default in the amount of $4,828.68 and that
“If you do not bring your loan current within thirty (30) days of the
date of this letter, Aurora Loan Services may demand the entire
balance outstanding under the terms of your Mortgage/Deed of Trust.”
112. Aurora then followed up with the same letter of September 24, 2008 again
on December 24, 2008 and January 20, 2009.
113. Instead of sending Mr. Yau a loan modification plan, defendant Aurora
Loan Services sent him a Repayment Agreement expecting him to pay an additional
$802.78 per month ($3,207.12 per month for 6 months) which equaled a 33% increase in
you may be expected to pay a loan modification fee.”
[Emphasis added]
his monthly mortgage payment. This payment plan did not create a “more sustainable
payment plan.”
114. In 2009 the Yau’s financial situation became worse as their investments
were depleted from what was later characterized as a “Ponzi scheme.”
115. From that time up to June 2009, plaintiff would telephone defendant Aurora
seeking a modification and Aurora would take down information representing the
defendants would start the process, but the process was never started.
116. Mrs. Yau spoke to a person at Aurora Loan Services named Steve who
promised that someone from Aurora Loan Services would call them back no later than
June 1st about the Making Home Affordable Loan Program.
117. On June 16, 2009 defendant caused to be served and recorded a purported
Notice of Default and Election to Sell under Deed of Trust (NOD) alleging (a) that a
breach of the obligation secured by the deed of trust had occurred, consisting of Mr.
Yau’s failure to pay $12,655.67 as of 6/15/09, and (b) that the defendant, as beneficiary,
elected to sell, or to cause to be sold, the property to satisfy that obligation.4
4 However, that Notice of Default was outside the chain of title because Lawyers Title Company, as
the original trustee and Mortgage Electronic Registration Systems, Inc. as the nominee did not
assign this right until June 24, 2009. Attached hereto and fully incorporated herein as is a
true and correct copy of the Assignment to Quality Loan Service which was not notarized until
6/24/09.
Exhibit 8

118. A few months later defendant Aurora Loan Services faxed a “customized
Home Affordable Modification Trial Period Plan (“Trial Period Plan”)” under HAMP
wherein Mr. Yau was supposed to make payments of $1,943.70 on 10/01/09, 11/01/09,
and 12/01/09.
119. The temporary HAMP agreement which is incorporated herein stated in part
“If I comply with the requirements in Section 2 and my
representations in Section 1 continue to be true in all material
respects, the Lender will send me a Modification Agreement for my
signature which will modify my Loan Documents as necessary to
reflect this new payment amount and waive any unpaid late charges
accrued to date.”
120. Aurora promised:
“If you qualify under the federal government’s Home Affordable
Modification program and comply with the terms of the Trial Period
Plan, we will modify your mortgage loan and you can avoid
foreclosure.”
121. These terms are boilerplate in all such agreements received by the coplaintiffs
and the class.
122. Mr. Yau believed he was eligible for HAMP and made the payments as laid
out in the agreement under Section 2, provided the necessary documents and his
representations in Section 1 continued to be true in all material respects, yet defendant
Aurora Loan Services failed and refused to send the Modification Agreement for him to
sign, or to cure the default and reinstate the loan.
123. On or about March 6, 2010 defendant Aurora Loan Services sent a letter to
Mr. Yau explaining,
“Unfortunately, we are unable to offer you a Home Affordable
Modification for the following reasons: Excessive Forbearance. We
are unable to offer you a Home Affordable Modification because we
are unable to create an affordable payment equal to 31% of your
reported monthly gross income without changing the terms loan
beyond the requirements of the program.”
124. Defendant’s representation in that letter was false. According to Aurora
Loan Service’s Customer Account Activity Statement the principal balance on the loan
was at $643,178.83 when he entered the temporary payment plan.
125. The contract required Aurora to place the Yaus into a permanent
modification if the NPV was greater under modification than a foreclosure sale. Plaintiffs
allege the defendants breached by failing to place them in the permanent modification.
126. Plaintiff is informed and believes and alleges thereon that Plaintiff’s home
at foreclosure would not have resulted in a sale in excess of the NPV of the modification.
127. Plaintiff through counsel, demanded defendant’s calculations used to deny
plaintiff’s modification and NPV. To date, defendant failed to provide plaintiff with a
HAMP-compliant modification or any documentation showing its calculations to justify
why a permanent modification was not offered to Plaintiff.
128. Mr. Yau’s loan accelerated from $643,178.83 to $649,482.15 during the
interim.
129. Along with the notice that Mr. Yau did not qualify for the loan modification,
defendant Aurora stated that Mr. Yau may qualify for other foreclosure alternatives such
as “Repayment Plan: allows you to repay the past due amount over a
specified period of time.
Forbearance Plan: allows you to suspend or reduce your mortgage
payments for a short period of time until a long term solution is
available.
Loan Modification: allows us to modify one or more of your original
mortgage terms which will provide you with an affordable payment
based on your current financial information.
Pre-foreclosure Sale (short sale): allows you to sell your property,
pay off your mortgage for an amount less than total pay off to avoid
foreclosure and minimize damage to your credit rating.
Deed in lieu of foreclosure: allows you to voluntarily deed your
property to Aurora Loan Services to payoff your mortgage. Taking
this action may not save your home, but it may help your ability to
qualify for another mortgage in the future.”
130. The Yaus telephoned Aurora and were assured that the defendants would
work with the Yaus and that they could cure their default by having the lender
temporarily forebear the terms of the agreement so that the Yaus could catch up.
131. Consequently, Mr. Yau continued making monthly payments on his home
and entered into a Special Forbearance Plan with defendant Aurora when they sent him
the application to sign.
132. On or about April 7. 2010 Defendant Aurora sent Plaintiffs a letter stating it
had enclosed a “Special Forbearance Agreement which has been prepared on your
behalf.” On page 2 of the agreement it stated “WHEREAS, customer has requested and
Lender has agreed to allow Customer to repay the Arrearage pursuant to a loan work-out
arrangement on the terms set forth herein.”
133. However, there was no real consideration and the agreement was illusory
because the Lender had been given the right to proceed with a foreclosure sale during the
term of the agreement at its discretion and the terms never gave the Yaus an opportunity
to repay the arrearage.
134. The Plan was not the same as advertised in its prior letters to Mr. Yau or as
represented on the telephone. The forbearance Plan did not allow Mr. Yau to suspend or
reduce his mortgage payments for a short period of time until a long term solution was
available.
135. Mr. Yau made the required $4,804.72 initial payment and monthly
payments of $2,875.00 but he was only getting further in debt.
136. The true facts were that his payments were increased to $2,875.00 per
month and no other terms of his loan were modified or suspended during the forbearance
period. He was still in default and the foreclosure sales were still pending.
137. Furthermore, the terms of the Agreement violated California law.
138. Mr.Yau continued to make the $2,875.00 monthly payments until this action
was filed.
139. Instead of putting Mr. Yau into a temporary modification, they delayed
processing, requesting the same documents they already had over and over again.
140. As a result of defendants’ unlawful practices, unfair acts and failure to place
Mr. Yau into a permanent HAMP loan modification on December 1, 2009, his loan as of
October 10, 2010 approached the HAMP cap.
Total Unpaid principal $664,711.59
Interest from 12/1/09 to 10/10/10 47,916.49
Escrow/Impound Overdraft 12,983.09
Corporate advance 3,652.84
Unpaid Late Charges 120.12
Recording Fee 37.00
Suspense Balance -2,345.75
Total: $727,075.38
141. On November 5, 2010 defendant Aurora sent notice that it intended on
increasing Mr. Yau’s monthly loan payment to $5,466.57 on 3/01/11.
142. Defendant then notified Mr. Yau it intended to sell his home on 12/13/10.
143. From September 2008 when Mr. Yau was behind by approximately
$5,000.00 through present plaintiff has paid defendants approximately $54,293.08. This
is very close to the amount he would have paid the defendants if he had never defaulted
on the loan in the first place ($2402.34*24 months = $57,656.16).
144. Plaintiff further alleges the defendants were deceptive and unlawful in their
handling of the loans and business practices. Examples in the Yaus’ case, include but are
not limited to the fact that defendant has not rescinded the Notice of Default or Notice of
foreclosure sale although the Notice was filed before Quality Loan Services received
assignment and as such is outside the chain of title. Failing to send the plaintiffs a loan
modification application until after they filed a Notice of Default. Additionally, flood
hazard insurance was not required on the Yaus loan but the defendants charged Mr. Yau
$1592.00 for flood hazard insurance after the loan went into default in addition to other
fees and charges for allegedly driving by the home and such. Also, Defendant obtained
an exemption to allow defendant Aurora to offer modifications and other programs in
excess of 38% of the borrower’s income from the California Commissioner but
defendant never notified plaintiff of that fact as required under California law and never
took the foreclosure off of the home when it was notified of this failure to notify.
Defendants failed and refused to request partition even after being notified only Mr. Yau
was on the Note and Mrs. Yau at most was a trustee and was given no consideration for
her name to be placed on their filed recordings as a “co-borrower” for non-judicial
foreclosure purposes.
5. Factual Allegations of Mr. Edman representing the Forebearance Class
145. Mr. Edman obtained a loan to build a home on his land in Malibu,
California.
146. On or about 12/07/06, for valuable consideration, plaintiff, as borrower
made, executed and delivered to his original lender a written promissory note in the
amount of $850,000.00, a true and correct copy of which is attached as and
incorporated by reference herein.
147. According to the terms of the Note, Mr. Edman was required to pay
$3,141.77 per month for the first five (5) years.
148. Plaintiff, as trustor, executed and delivered a deed of trust, conveying the
real property described herein to secure payment of the principal sum and interest as
provided in the note and as part of the same transaction which was then transferred to
defendant, as beneficiary.
149. Said deed of trust was recorded against the subject property in the Official
Records in Los Angeles County, California, a true and correct copy of which is attached
as and incorporated by reference herein.
150. On or about 1/14/09, defendant caused to be recorded a notice of default
and election to sell in the Official Records in Los Angeles, County, California alleging
(a) that a breach of the obligation secured by the deed of trust had occurred, consisting
of plaintiff’s alleged failure to pay $14,267.35 as of 1/13/09, and (b) that the defendant,
as beneficiary, elected to sell, or to cause to be sold, the trust property to satisfy that
Exhibit 10
Exhibit B

obligation, a true and correct copy of which is attached as and incorporated
by reference herein.
151. A week later on or about 1/23/09, defendants delivered a document to Mr.
Edman which represented a “Special Forbearance Agreement [] has been prepared on
your behalf.”
“WHEREAS, customer has requested and Lender has agreed to allow Customer to
repay the Arrearage pursuant to a loan work-out arrangement on the terms set forth
herein…NOW, THEREFORE…Lender shall forbear from exercising any or all of its
rights and remedies..” [pg 2]
“The amount of each Plan payment specified above includes both (1) the regularly
scheduled monthly payment, plus (2) the portion of the Arrearage specified above…
in the event Customer cures the Arrearage by making all Plan payments on or before
the Expiration Date, and is current with the payments then due, and no default then
exists under the Loan Documents and Agreement, Lender shall consider the Note
and Security Instrument to be current and in effect according to their original terms
and conditions.” Attached hereto and fully incorporated herein as is a
true and correct copy of the Special Forbearance Agreement entered into postdefault.
152. Consequently, Mr. Edman made the monthly payments on his home and
entered into a Special Forbearance Plan with defendant Aurora.
Exhibit 11
Exhibit 12

concert therewith after default, but whose default was not cured and loan was not
reinstated by defendants after plaintiff tendered the requested payments.
California homeowners who were denied permanent HAMP loan
agreements after entering in a temporary HAMP agreement with
defendant Aurora whose loans are held by DBNT as Custodian, and
making their payments as requested under the temporary HAMP
agreement.
California homeowners who were denied permanent HAMP loan
agreements after entering in a temporary limited modification Special
Forbearance agreement with defendant Aurora whose loans are held
by DBNT as Custodian, and making their payments as requested
under the temporary HAMP agreement.
159. Excluded from the Class are governmental entities, defendants, and their
affiliates, subsidiaries, current or former employees, officers, directors, agents,
representatives, their family members, the members of this Court and its staff.
160. Defendants subjected plaintiffs and each of their respective Classes to the
same unfair, unlawful and deceptive practices and harmed them in the same manner.
Now plaintiffs and each of their respective Classes seek to enforce the same rights and
remedies under the same substantive law.
161. Plaintiffs do not know the exact size or identities of the members of the
proposed class, since such information is in the exclusive control of the Defendants.
Plaintiffs believe that the Class encompasses over 41 individuals California homeowners
HAMP Subclass:
Forbearance Subclass:

which could reach into the thousands whose identities can be readily ascertained from
Defendant’s books and records. Defendants filed over 4,000 foreclosure documents with
the Orange County Recorder’s office in 2010 alone. Therefore, the proposed Class are so
numerous that joinder of all members is impracticable.
162. Based on the market value of these homes in foreclosure and the size of the
payments made by the Class members under the temporary HAMP agreements and
thereafter, plaintiffs believe the amount in controversy could range anywhere from
$1,250,000 for the first 25 members to over $2 billion dollars for the entire anticipated
class.
163. All members of the Class have been subject to and affected by the same
conduct. The claims are based on wrongfully forcing the Class into default before
implementing a written foreclosure alternative program then wrongfully failing to cure
the default, reinstate the loan or permanently modifying the loan under HAMP and other
government programs after the Class made the payments as requested.
164. There are questions of law and fact that are common to the Class, and
predominate over any questions affecting only individual members of the Class. These
questions include, but are not limited to the following:
a. The validity of the contracts at issue in this case (
(5th Cir 1985) 759 F2d 466, 471);
See, Black Gold Marine,
Inc. v Jackson Marine Co.
b. The nature, scope and operation of defendants’ obligations to the borrowers
under the Servicer Participation Agreements entered into between Aurora
and Fannie Mae ( . (2nd Cir
1986) 799 F.2d 851, 856);
c. Whether the defendants must now be reclassified as unsecured creditors.
d. Whether the plaintiffs have cured their defaults and are entitled to
reconveyance upon payments of subsequent sums due and owing, if any.
e. Whether plaintiffs are entitled to reconveyance of their deeds.
f. The defendants’ obligations to the borrowers when the borrower holds a
CDS or some similar type of security/insurance against default on the
borrower’s loan;
g. Whether the existence of a CDS or similar type of security/insurance to a
borrower should be disclosed at the time the borrower signs the promissory
note and mortgage or as soon as the lender obtains a CDS contract that
could cover the loan.
h. Whether the failure to disclose the existence of a CDS or similar type of
security/insurance to a borrower before default is a breach of good faith and
fair dealing;
See, Topps Chewing Gum, Inc. v Fleer Corp
i. The Class’ right to terminate and rescind the contracts at issue in this action
( . (2nd
Cir. 1994) 17 F3d 38, 39-40).
j. The nature, scope and operation of defendants’ obligations to the borrowers
under the temporary HAMP agreements;
k. Whether the temporary HAMP agreements created any legally binding
obligation on the defendants;
l. Whether the agreements entered into by the borrowers after they were
denied a permanent HAMP agreement were void ab initio for failure or
partial failure of consideration;
m. Whether the agreements entered into by the borrowers after they were
denied a permanent HAMP agreement were illusory;
n. Whether the promissory note and mortgage agreements entered into by the
borrowers after the owner purchased a CDS or similar security/insurance
were void ab initio for failure to disclose this adverse interest or partial
failure of consideration;
o. Whether defendants actions failed to take corrective action by providing
loan modifications that produced more sustainable loan payments;
p. Whether the plaintiffs and the Class (“borrowers’”) payments after the
Notice of Default were the result of fraud of duress;
See, Leisure Time Productions, B.V. v Columbia Pictures Indus. Inc

q. Whether Aurora violated California law by using false, deceptive, and
misleading statements and omission in connection their collection of
Plaintiffs’ and the Class’s mortgage debt;
r. Whether defendants actions or failure to act constituted a breach of their
obligation of good faith and fair dealing;
s. Whether contracts implied in fact were created when Aurora required the
borrowers to continue to make payments after the temporary HAMP
agreement expired;
t. Whether Aurora was required to rescind or otherwise nullify the pending
foreclosure proceedings for all borrowers who were still being considered
for a HAMP modification after the OCC stated “HAMP guidelines now
preclude a servicer from initiating a foreclosure action until the borrower
has been deemed ineligible for a HAMP modification.”
u. Whether the disclosure of the credit default swaps or other types of
investment security/insurance were “material” under federal law;
v. Whether the plaintiff and the Class members are intended beneficiaries of
the agreement between defendant Aurora and Fannie Mae/Freddie Mac;
w. Whether defendant Aurora breached its agreement with Fannie Mae/Freddie
Mac;
x. Whether defendant Aurora failed to disclose a material fact to Fannie
Mae/Freddie Mac as required under its contract with them to the detriment
of its intended beneficiaries;
y. Whether defendants conduct as described in this Complaint constituted
fraud or duress;
z. Whether defendants were unjustly enriched;
aa.Whether defendants acts and practices described herein constitute unfair or
deceptive business practices under California Unfair Competition Law
(“UCL”)
bb.Whether injunctive relief is appropriate
cc.Whether specific performance is appropriate
dd.Whether punitive or exemplary damages are appropriate
165. The claims of the individual named Plaintiffs are typical of the claims of the
Class and do not conflict with the interests of any other members of the Class in that both
the Plaintiffs and the other members of the Class’ loans were all securitized in vehicles
that had default and other types of swaps placed on them, they were subjected to the
same conduct, the same terms, and tendered payments to the defendants after being
served with a Notice of Default pursuant to a post default foreclosure alternative
program.
166. The individually named Plaintiffs will fairly and adequately protect the
interests of the Class. They are committed to the vigorous prosecution of the Class’
claims and have retained attorneys who are qualified to pursue this litigation.
167. A class action is superior to other methods for the fast and efficient
adjudication of this controversy. A class action regarding the issues in this case does not
create any problems of manageability.
168. The putative class action meets the requirements of Federal Rules of Civil
Procedure 23(b)(2) and 23(b)(3).
169. The nature of notice to the proposed class required and/or contemplated is
the best practicable method possible and contemplated the defendant’s list when
disclosed would most likely be mailing to the property addresses affected by the filed
foreclosures and internet and other general notices are contemplated to ensure notice.
170. Defendants have acted or refused to act on grounds that apply generally to
the Class so that final injunctive relief or corresponding declaratory relief is appropriate
respecting the Class as a whole.
7. Claims for Relief
FIRST CAUSE OF ACTION
Breach of Contract/Unjust Enrichment
(All Plaintiffs and Classes against All Defendants)
171. Plaintiff incorporates the allegations in paragraphs 1 through 170 in this
cause of action as though fully set forth herein.
172. Plaintiffs bring this claim on their own behalf and on behalf of each
member of the Class and Subclass described above.
173. Defendant represented to plaintiff that by entering into the Special
Forbearance Agreement, the temporary HAMP agreement, or other written post-default
agreement, plaintiff would be able to save his home in that defendant would not sell
plaintiff’s home, and plaintiff would be able to either cure their default or receive a
permanent loan modification.
174. In reliance on defendants’ representations, plaintiff paid the defendants
after Notice of Default was served and recorded.
175. All of the terms in the forbearance agreements, temporary HAMP
agreements or other post-default agreements were drafted by the defendant, and not
negotiable.
176. Plaintiff had no bargaining power in negotiating the terms of these
agreements or the amounts of payments requested.
177. Defendants took the money then elected to sell the property through
foreclosure.
178. Plaintiff alleges said conduct constituted a breach of good faith and fair
dealing, was unconscionable, unjust and/or coercive.

179. As a result of defendant’s conduct, plaintiff was damaged financially.
180. Plaintiff seeks damages according to proof and reserves the right to seek
equitable remedies of unjust enrichment and disgorgement of profit made on the
Plaintiff under guise of performance of this agreement.
181. Plaintiff incorporates in this cause of action all of the allegations in
paragraphs 1 through 180 as though set forth in full herein.
182. Plaintiffs bring this claim on their own behalf and on behalf of each
member of the Class and the Subclass described above.
183. Defendant Aurora and the Plaintiffs and Class entered into a Temporary
HAMP agreement as alleged above, a true and correct copy of the Mr. Yau’s agreement
is attached hereto and fully incorporated herein as
184. Defendant Aurora agreed to permanently modify plaintiff and each
members of the Class’s loan if plaintiffs and the Class complied with the terms of the
temporary modification.
SECOND CAUSE OF ACTION
Unjust Enrichment/Breach of Temporary HAMP Agreement
(Plaintiffs, Eddie Yau, Gloria Yau, Rob Rhoades, Nicole Rhoades, Steve Burke,
Otis Banks, Richard Apostolos, Joanne Anderson and the HAMP Class against
all Defendants)
Exhibit 3.

185. Plaintiff and the Class complied with the terms of the temporary
modification, except for those terms and conditions that were excused or waived.
186. Defendant unjustifiably and inexcusably breached the contract by failing to
perform its obligations thereunder as described above.
187. As a result of defendant’s breach, plaintiff’s loan was not permanently
modified causing injury to the plaintiff and Class.
188. As a result of Defendants’ unjust enrichment, Plaintiffs and the Class have
sustained damages in an amount to be determined at trial (which include legal and other
fees in excess of the principal and interest due on their loans) and seek full
disgorgement and restitution of Defendants’ enrichments, benefits, and ill-gotten gains
acquired as a result of the wrongful conduct alleged above. Alternatively, Plaintiffs and
the Class seek specific performance or if specific performance cannot be granted,
reformation of the contract from temporary to permanent under the same monthly
payment terms for a term of 30 years or if reformation of the contract cannot be granted,
damages according to proof and reserve the right to seek equitable remedies to rescind
the payments made to defendants under guise of performance of this contract and
disgorgement of profits made on the Plaintiffs and the Class loans above reasonable
rental value of their homes from the time the loans originated.
THIRD CAUSE OF ACTION
Breach of Written Contracts – Third Party Beneficiary
(All Plaintiffs and Classes against all Defendants)
Exhibit 1
Exhibit 2
189. Plaintiffs repeat and re-allege every allegation in paragraphs 1 through 188
as though set forth in full herein.
190. Plaintiffs bring this claim on their own behalf and on behalf of each
member of the Class and Subclass described above.
191. Plaintiffs and the Class members are third party beneficiaries to the
contract attached hereto and fully incorporated herein as and to the Amended
and Restated contract attached hereto and fully incorporated herein as .
192. Plaintiff and the Class are intended beneficiaries under the contracts.
193. Defendants Aurora and DBTCA and DBNTC, jointly and severally,
unjustifiably and inexcusably breached the Contract by failing to perform their
obligations thereunder as described above.
194. Defendants’ breach of the contract resulted in harm to plaintiff.
195. Pursuant to California Civil Code §1559 and/or federal law, plaintiff may
enforce the contract’s provisions.
196. Plaintiffs and the Class seek specific performance or if specific
performance cannot be granted, reformation of the contract from temporary to
permanent under the same monthly payment terms for a term of 30 years or if
reformation of the contract cannot be granted, damages according to proof and reserve
the right to seek equitable remedies to rescind the payments made to defendants under
phs 1 through 196 as though fully set forth herein.
198. Plaintiffs bring this claim on their own behalf and on behalf of each
member of the Class and Subclass described above.
199. An actual controversy exists between plaintiff and defendant concerning
their respective rights and duties pertaining to the subject property and described
transactions because plaintiff alleges there was a cure and reinstatement by mutual
consent.
200. As a result, plaintiff desires a judicial determination and declaration that
the default was cured, plaintiff is entitled to reconveyance upon payment of subsequent
sums and the defendant has no ability to foreclose on plaintiff’s home.
201. Such a declaration is appropriate at this time so that plaintiff may
determine his or her rights and duties before the subject property is sold at a foreclosure
sale.
FOURTH CAUSE OF ACTION
Declaratory Relief – Cure and Reinstatement by Mutual Consent
(All plaintiffs and classes against all defendants)
FIFTH CAUSE OF ACTION
Declaratory Relief – One Action Rule
(All plaintiffs and classes against all defendants)
202. Plaintiff incorporated in this cause of action all of the allegations in
paragraphs 1 through 201 and the allegations in the Second cause of action as though
fully set forth herein.
203. Plaintiffs bring this claim on their own behalf and on behalf of each
member of the Class and Subclass described above.
204. An actual controversy exists between plaintiff and defendant concerning
their respective rights and duties pertaining to the subject property and described
transactions because plaintiff alleges the defendant violated the One Action Rule so
defendant is reduced to the status of unsecured creditor, entitling plaintiff to injunctive
relief, attorney fees and costs of suit.
205. As a result, plaintiff desires a judicial determination and declaration the
defendants are reduced to the status of unsecured creditor(s), the defendants have no
ability to foreclose on plaintiff’s home as unsecured creditors, and plaintiff is entitled to
reasonable attorney’s fees and costs of suit.
206. Such a declaration is appropriate at this time so that plaintiff may
determine his or her rights and duties before the subject property is sold at a foreclosure
sale.
SIXTH CAUSE OF ACTION
Declaratory Relief
Improper Application and/or Calculation of Payments, Fees and Costs
(All plaintiffs and classes against all defendants)
207. Plaintiff incorporates in this cause of action all of the allegations in
paragraphs 1 through 206 as though fully set forth herein.
208. Plaintiffs bring this claim on their own behalf and on behalf of each
member of the Class and Subclass described above.
209. An actual controversy exists between plaintiff and defendant concerning
their respective rights and duties pertaining to the subject property and described
transactions because plaintiff alleges a breach of the obligation for which the deed of
trust is security has not occurred or is excused because the beneficiary improperly
applied and/or calculated plaintiff’s payments, costs, fees, insurance, taxes and other
charges prior to, during, and/or after default.
210. As a result, plaintiff desires a judicial determination and declaration of
plaintiff’s and defendant’s respective rights and duties; specifically that plaintiff did not
breach his or her obligations and as such the Notice of default and election to sell was
null and void.
211. Such a declaration is appropriate at this time so that plaintiff may
determine his or her rights and duties before the subject property is sold at a foreclosure
sale.
212. Plaintiff incorporates by reference the allegations in paragraphs 1 through
211 as though fully set out herein.
213. Plaintiffs bring this claim on their own behalf and on behalf of each
member of the Class and Subclass described above.
214. Consent to the special forbearance was not real or free in that it was
obtained solely through fraud and misrepresentations as herein alleged.
215. Plaintiffs thus seek to rescind the agreements under California Civil Code
section 1689(b)(1). Plaintiffs have retained no consideration provided by defendants
Aurora or Deutsche Bank that can be tendered back to Aurora or Deutsche Bank prior to
rescission.
216. Aurora led plaintiff to believe that it wanted to help Plaintiff maintain
ownership of their homes.
217. Aurora represented it wanted to help Plaintiff maintain ownership of his
home through the language of the special forbearance agreement which states
SEVENTH CAUSE OF ACTION
(Fraud/Misrepresentation of Material Fact)
[By all plaintiffs and classes against all defendants)
“WHEREAS, Customer has requested and Lender has agreed to allow Customer to
repay the Arrearage pursuant to a loan work-out arrangement on the terms set forth
herein.” Aurora led Plaintiff to believe that their arrearage in payments that led to
default would be repaid if they made the payments under the special forbearance
agreement.
218. Plaintiff reasonably relied on defendant’s representations which led
Plaintiff to believe that the default on his home would be cured and his loan would
eventually be reinstated under the agreement.
219. At the time that Aurora made these representations, Aurora know or should
have known that they were not true.
220. Plaintiff is informed and believes and alleges thereon that Aurora would
ensure that the requested payments were never enough to repay the arrearage due to the
way the payments were applied.
221. Plaintiff is informed and believes and further alleges thereon that the notice
of default was on file before the special forbearance was offered so that Aurora could
execute the Trustee’s sale and foreclose after obtaining the payments knowing that the
arrearage would not be repaid.
222. Aurora made these representations with the purpose of persuading Plaintiff
to enter into the Special Forbearance agreements and to continue to make payments of
thousands of dollars.
223. Plaintiff reasonably relied on these representations.
224. Plaintiff would not have entered into the special forbearance agreement and
paid thousands of dollars to defendants Aurora and Deutsch Bank after default had he
known that he would not have had a genuine opportunity to save his home.
225. As a proximate result of defendant’s conduct plaintiff has been financially
injured in an amount to be proven at trial and his credit has been damaged.
226. Plaintiff incorporates in this cause of action all of the allegations in
paragraphs 1 through 225 as though fully set forth herein.
227. Plaintiffs bring this claim on their own behalf and on behalf of each
member of the Class and Subclass described above.
228. Defendants beneficiary and trustee intend to sell and unless restrained will
sell or cause to be sold, the subject property, all to plaintiff’s great and irreparable injury
in that defendant has given notice that the trustee sale of the property will take place on
March 11, 2011 or anytime thereafter, and if the sales take place as scheduled, plaintiff
will forfeit it.
229. The scheduled sales should be enjoined by virtue of the facts alleged that
said sale is wrongful.
EIGHTH CAUSE OF ACTION
Injunctive Relief
(All Plaintiffs and Classes against all Defendants)
230. Plaintiff has no other plain, speedy, or adequate remedy, and the injunction
relief prayed for below is necessary and appropriate at this time to prevent irreparable
loss to plaintiff’s interests.
231. Plaintiff incorporates in this cause of action all of the allegations in
paragraphs 1 through 230 as though fully set forth herein.
232. Plaintiffs bring this claim on their own behalf and on behalf of each
member of the Class and Subclass described above.
233. The amount of money defendant owes to plaintiff or vice versa is unknown
and cannot be determined without an accounting.
234. Plaintiff incorporates in this cause of action all of the allegations in
paragraphs 1 through 233 as though set forth in full herein.
235. Plaintiffs bring this claim on their own behalf and on behalf of each
member of the Class and Subclass described above.
NINTH CAUSE OF ACTION
Accounting
(All Plaintiffs and Classes against all Defendants)
TENTH CAUSE OF ACTION
Unfair and Unlawful Practices
(All plaintiffs and Classes against All Defendants)
236. California’s Unfair Competition Law (UCL) defines unfair competition to
include any “unlawful, unfair, or fraudulent” business act or practice. Cal Bus & Prof
Code 17200 et seq.
237. By its terms, the statute is broad in scope. “It governs „anti-competitive
business practices? as well as injuries to consumers, and has as a major purpose “the
preservation of fair business competition.” [Citations.]” (
(1999) 20 Cal.4th 163, 180.) “By defining
unfair competition to include any „ . . . business act or practice? [citation], the
UCL permits violations of other laws to be treated as unfair competition that is
independently actionable. [Citation.]” ( (2002) 27 Cal.4th 939, 949.)
In addition, under the UCL, “„a practice may be deemed unfair even if not specifically
proscribed by some other law.? [Citation.]” (
(2003) 29 Cal.4th 1134, 1143.) The remedies available under the UCL are
“cumulative . . . to the remedies or penalties available under all other laws of this state.”
(Bus. & Prof. Code, § 17205.) (2010)
238. Defendants have violated Cal Bus & Prof Code §17200 et seq with the
conduct as alleged above.
239. Such acts include but are not limited to:
a. Defendants have a pattern and practice of refusing to provide permanent
loan modifications to those borrowers who loans were placed in temporary
Cel-Tech Communications,
Inc. v. Los Angeles Cellular Telephone Co.
unlawful
Kasky v. Nike, Inc.
Korea Supply Co. v. Lockheed Martin
Corp.
Arce v Kaiser Foundations Health Plan, Inc.
HAMP plans but were covered by CDS or other securities/insurance, and
this refusal to provide permanent loan modifications constitutes an
unlawful, unfair or fraudulent business act or practice in violation of UCL,
and/or
b. Defendant Aurora engaged in “fraudulent” business practices under the
UCL because its temporary HAMP Agreements and post temporary HAMP
Agreements were intended and likely to mislead the public into believing
that if they made the additional payments that Aurora required they would
have an opportunity to cure their loan defaults with a permanent HAMP
modification or similar type of agreement prior to foreclosure. A true
opportunity to cure their defaults was “material” to Plaintiffs and the Class
within the meaning of , (2009) 46 Cal 4th 298, 325,
and/or
c. Aurora engaged in “unlawful” business practices under the UCL based on
its violations of the Security First Rule, Cal Code Civ Pro 726 which states
in pertinent part:
(a) There can be but one form of action for the recovery of any debt or
the enforcement of any right secured by mortgage upon real property
or an estate for years therein, which action shall be in accordance with
the provisions of this chapter. n the action the court may, by its
judgment, direct the sale of the encumbered real property or estate for
years therein (or so much of the real property or estate for years as
may be necessary), and the application of the proceeds of the sale to
In re Tobacco II Cases
the payment of the costs of court, the expenses of levy and sale, and
the amount due plaintiff, including, where the mortgage provides for
the payment of attorney’s fees, the sum for attorney’s fees as the court
shall find reasonable, not exceeding the amount named in the
mortgage.
(b) The decree for the foreclosure of a mortgage or deed of trust
secured by real property or estate for years therein shall declare the
amount of the indebtedness or right so secured and, unless judgment
for any deficiency there may be between the sale price and the amount
due with costs is waived by the judgment creditor or a deficiency
judgment is prohibited by Section 580b, shall determine the personal
liability of any defendant for the payment of the debt secured by the
mortgage or deed of trust and shall name the defendants against whom
a deficiency judgment may be ordered following the proceedings
prescribed in this section….
d. Aurora engaged in “unfair” business practices under the UCL because it
violated the laws and underlying legislative policies concerning: (1)
foreclosure prevention; (2) the unavailability of deficiency judgments after
a lender exercised its election to sell under non-judicial foreclosure; and (3)
the rights of contracting parties to enjoy the benefits of their agreements
after having paid valuable consideration for such benefits.
240. As a proximate result of defendant Aurora’s conduct, plaintiff was injured
financially and/or to his property rights. Aurora’s conduct as set forth herein resulted in
loss of money or property to Plaintiff.
241. Plaintiff seeks damages, disgorgement of profits on the CD Swaps,
injunctive relief in the form of correction of his/her, their damaged credit, cure of
default and reconveyance of the deed, and any other equitable relief that the court deems
appropriate.
242. Plaintiff incorporates by reference the allegations in paragraphs 1 through
241 as though fully set out herein.
243. Plaintiffs bring this claim on their own behalf and on behalf of each
member of the Class and Subclass described above.
244. As more fully described above defendants concealed the following material
facts that they had a duty disclose:
e. Defendants Deutsche Bank and Aurora concealed the material fact that
Deutsche Bank National Trust Company Americas as trustee was the
owner of the note and mortgage loan until after the plaintiffs and Class
were thrown into default on their loans.
f. Defendant Deutsche Bank concealed the material fact that the plaintiffs and
Class’s loans were covered with CDS or other similar security/insurance
after the defendant defaulted the plaintiffs and Class’s loans.
g. Defendant Aurora concealed a material fact that the way the contract was
written between Fannie Mae and Aurora, there was a substantial amount of
ELEVENTH CAUSE OF ACTION
(Fraud/Concealment of Material Fact)
(All Plaintiffs and Classes against All Defendants)
loans aimed at receiving a more sustainable and affordable mortgage under
HAMP that would not pass the NPV test because the lenders such as
defendant Deutsche Bank had purchased credit default swaps or other types
of investment security/insurance against these mortgages.
245. In plain language, the very types of mortgages the federal HAMP program
was designed to protect were the very types of mortgages that were not being protected
by the terms of the agreement between Aurora and Fannie Mae. The lenders like
defendant Deutsche Bank knew it. The servicers such like defendant Aurora knew or
should have known it and the plaintiffs and the Class in this action didn’t have a clue.
246. Aurora was under a duty by the terms of the contract with Fannie Mae to
disclose this material fact to Fannie Mae when it entered into this Agreement or when it
learned of this material fact from defendant Deutsche Bank. The defendants were under
a duty to disclose the owner of the loan.
247. The suppression of this fact was likely to mislead and did mislead Fannie
Mae, the plaintiffs and the Class.
248. The representations and failure to disclose information and suppression of
the information herein alleged to have been made by defendant were made with the
intent to induce plaintiffs and the Class to act in the manner herein alleged in reliance
thereon.
249. In reliance upon the representation that defendants were qualified to offer
the HAMP program to plaintiffs and the Class and without knowing that their loans
were asset-backed pass-through securities held by Deutsche Bank who bought credit
default swaps or other types of investment security/insurance or what that really meant,
the plaintiffs and the members of the Class continued to make payments on their
mortgage after they were in default and entered into the temporary HAMP agreements
as described above believing if they continued to make their payments they would be
accepted into a permanent HAMP modification.
250. Plaintiffs and the members of the Class, at the time these failures to
disclose and suppressions of facts occurred, and at the time plaintiff took the actions
herein alleged, was ignorant of the existence of the facts which defendant suppressed
and failed to disclose. If plaintiff had been aware of the existence of the facts not
disclosed by defendant, plaintiff would not have paid these additional amounts to the
defendants after default; may not have even signed the note or mortgage loan; and most
likely would not have relied on defendant Aurora’s representations which lulled them
into default without looking beyond the servicer for an alternate solution.
251. As a proximate result of Defendants’ fraudulent conduct as herein alleged,
plaintiffs and the Class were induced to disclose all of their private financial information
and pay Aurora additional monies without any real consideration by reason of which
plaintiffs and the Class have been damaged in the sum of their payments so made.
252. Plaintiffs and the Class seek specific performance or if specific
performance cannot be granted, reformation or if reformation cannot be granted, offset,
equitable remedies to rescind the payments made to defendants under guise of
performance of this contract and disgorgement of profits made on the Plaintiffs and the
Class loans above reasonable rental value of their homes from the time the loans
originated.
253. The aforementioned conduct of defendant(s) was an intentional
misrepresentation, deceit, or concealment of a material fact known to the defendant(s)
with the intention on the part of the defendant(s) of thereby depriving plaintiff of
property or legal rights or otherwise causing injury, and was despicable conduct that
subjected plaintiff to a cruel and unjust hardship in conscious disregard of plaintiff’s
rights, so as to justify an award of exemplary and punitive damages.
254. Plaintiffs and the Class seek specific performance of the temporary HAMP
agreement by converting it to a permanent modification on the same terms and if
specific performance cannot be granted; rescission of all of the agreements as a result of
these failures of consideration. Plaintiffs have no other adequate remedy at law and will
suffer irreparable harm if the agreements are not rescinded and if the fees paid (which
included legal and other fees not required to be paid under their notes) are not returned.
TWELFTH CAUSE OF ACTION
Declaratory Relief/Injunction
FIRST AMENDED CLASS ACTION COMPLAINT
Yau v. Deutsche Bank National Trust Company Americas
(As between plaintiff Gloria Yau and all those similarly situated and all
defendants)
8. PRAYER FOR RELIEF
255. Plaintiff incorporates in this cause of action all of the allegations in
paragraphs 1 through 254 as though set forth in full herein.
256. Plaintiff Gloria Yau and all those similarly situated always held title in the
home described in the complaint and in the Notice of Default and Foreclosure Sale
attached hereto as exhibits.
257. Plaintiff Gloria Yau was not a signer on the Note and was not a coborrower
on the loan, in fact.
258. Defendants contend that they have the right to non-judicially foreclose on
plaintiff Gloria Yau’s home, and conduct a trustee’s sale relative to that property and
evict her.
259. Plaintiff contends that Defendants do not have a right to foreclose on her
portion of the home.
260. An actual controversy presently exists between Plaintiff Gloria Yau and
Defendants as to the existence of the ability or right to foreclose on her home and evict
her. A judicial decision is necessary and appropriate at this time so that Plaintiff Gloria
Yau and Defendants may ascertain their respective rights relative to Plaintiffs and the
Class’s homes and the appropriate injunction issued.

WHEREFORE, Plaintiffs pray for judgment
against defendants, Aurora Loan
Services, LLC, DBNTC, DBTCA and each of them, jointly and severally, as
follows:
A judicial determination and decree that:
the plaintiffs have cured their default and plaintiff is entitled to
reconveyance upon payment of subsequent sums;
the defendants, and each of them, have no legal right or authority to
foreclose on plaintiff’s home,
that the defendant is reduced to the status of an unsecured creditor,
that defendant improperly applied and/or calculated plaintiff’s payments
requiring a full accounting;
B. An accounting;
C. A permanent or final injunction to force defendants to request immediate
removal of default or foreclosure status and all other derogatory/negative
information from the Plaintiff’s credit reports and to refrain such derogatory
reporting in the future;
A permanent or final injunction, to effect full and fair relief consistent with the
law, including but not limited to forcing defendants to reconvey the deed of the
trust to the plaintiffs and Class and refrain from holding the debt out as
“secured” to any other creditors. Such injunctive relief could include, case
dismissals, rescissions of sales, reconveyance of deeds, cures of defaults,
reinstatement of loans at the principal and rate consistent with the rest of the
relief afforded by way of this Complaint.
Restitution to the Plaintiffs and the Class in amounts to be proven at trial;
Statutory damages and civil penalties;
Disgorgement of profits;
Costs of this action, including the fees and costs of experts;
Attorneys’ fees;
Prejudgment interest at the statutory rate;
Post-judgment interest;
Exemplary and Punitive Damages; and
Grant plaintiffs and the class such other and further relief as this Court finds
necessary and proper.
Plaintiffs hereby demand a jury trial.
Dated: March 11, 2011 LAW OFFICES OF LENORE ALBERT
By _______________
LENORE ALBERT, ESQ.
Attorney for the Plaintiffs and the Class

Yau_-_complaint_First_Amended_Pleading.78103044

Wrongfull foreclosure lawsuit vallejo

http://ahref=

http://www.balitangamerica.tv/foreclosure-lawsuits/?sms_ss=facebook&at_xt=4dd2daa3410e4e26%2C0

CA Class Action gets a TRO; Credit Default Swaps addressed; HAMP’s bogus nature addressed

This complaint from California is remarkable in its treatment of HAMP as well as Credit Default Swaps (CDS) and the rest of the securitization scam.  For research buffs, the complaint can be found here.The federal government is either utterly stupid or in cahoots with the rip-offs on Wall Street.  I tend to believe it is the latter.  Too many “mistakes” lately, especially those related to the “bail-outs.”  The complaint sets forth a clear demonstration of how all the players in the chain (primarily the Servicer and the Securitization Trustee) are incentivized NOT to modify loans, but to foreclose.  To add insult to injury, these rip-offs collect homeowners’ last money, collect the money from the government for MERELY making an ILLUSORY promise of a modification, and collect their own “insurance” (CDSs) on the loans designed to fail (“Subprime”/”Alt-A”).

As the complaint rightly points out, CDSs are line fire insurance on a neighbor’s house: the incentive for arson is too great.

Most of the claim are CA-specific because, apparently, in that state foreclosers need not re-notice a sale once it’s been postponed for pretend-loan-mod efforts, and can sell the property without further notice, notwithstanding apparent loan mod “review.”

This again goes to show: don’t rely on any loan mod promises; instead — modify, but also nullify.

Posted by Attorney Gregory Bryl at 11:44 PM

Email This BlogThis! Share to Twitter Share to Facebook Share to Google Buzz

90 day notice to tenants upheld in Azizona

IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION ONE
THE BANK OF NEW YORK MELLON, as Trustee for the Structured Asset Securities Corporation Mortgage Pass-Through Certificates Series 1998-8, its assignees and/or successors-in-interest,
Plaintiff-Appellee,
v.
PATRICIA DE MEO,
Defendant-Appellant.
)))))))))))))
)
))
1 CA-CV 10-0177
DEPARTMENT B
O P I N I O N
Appeal from the Superior Court in Maricopa County
Cause No. CV 2009-035645
The Honorable Lindsay Best Ellis, Judge Pro Tempore (Retired)
REVERSED
Patricia De Meo, Appellant
In Propria Persona Phoenix
Perry & Shapiro, LLP
by Christopher R. Perry
Jason P. Sherman
Attorneys for Appellee Phoenix
Community Legal Services
by Jeffrey Kastner
Attorneys for Amici Curiae Phoenix
W E I S B E R G, Judge
2
¶1 Appellant, Patricia De Meo, appeals from a judgment finding her guilty of forcible entry and detainer and ordering her to surrender her leased premises to Appellee, The Bank of New York, as Trustee for the Structured Asset Securities Corporation Mortgage Pass-Through Certificates Series 1998-8, its assignees and/or successors-in-interest (“the Bank”). For reasons that follow, we reverse the judgment.
PROCEDURAL HISTORY
¶2 The Bank held a note secured by a deed of trust on real property (“the property”) owned by J.S. J.S. had leased the property to De Meo pursuant to a written lease agreement for one year commencing on August 31, 2005, with an option to purchase that expired on August 31, 2006. After not exercising her option to purchase, De Meo continued to lease the property on a month-to-month basis.
¶3 J.S. later defaulted on the note and the Bank acquired the property at a trustee’s sale. The trustee’s deed was recorded on August 18, 2009. On August 19, 2009, the Bank, through its attorneys, sent a letter to J.S. and/or Occupants giving notice to vacate the property within five days of the date of the letter pursuant to Arizona Revised Statutes
3
(“A.R.S.”) 12-1173 and 12-1173.01 (2003).
1
¶4 On November 24, 2009, the Bank filed a forcible entry and detainer (“FED”) complaint against J.S. and “Occupants and Parties-in-Possession.” De Meo was personally served on December 1, 2009. De Meo filed an answer on January 6, 2010 and raised several defenses, including that the Bank did not serve her with the 90-day notice required by the Protecting Tenants at Foreclosure Act of 2009 (“PTFA”) § 702, 12 U.S.C. § 5220 (2009). The letter indicated that if the property was not vacated within the time prescribed, the Bank would begin legal proceedings to recover possession of it. De Meo was still a tenant on August 19, 2009 and received the Bank’s five-day written notice to vacate.
2
¶5 Regarding the 90-day notice requirement under the PTFA, the Bank’s attorney told the court that the Bank did not file the FED action until 97 days after the August 19, 2009 letter, and that he did not “find anything here that would require us to provide any additional notice or any additional time.” The court noted that the PTFA was a new law and that
1Under A.R.S. § 12-1173, there is a forcible detainer when a month-to-month tenant refuses to surrender possession of property “for five days after written demand.” Under A.R.S. § 12-1173.01(A)(2), a person who retains possession of property after receiving “written demand of possession” may be removed through an action for forcible detainer “[i]f the property has been sold through a trustee’s sale under a deed of trust.”
2Because of our resolution of this issue, we need not address De Meo’s other arguments.
4
“all of us had a little bit of problem[] trying to figure out what it required, but the one thing that is certain that it requires is 90 days before an individual is going to be subject to a writ of restitution on a piece of property that they’re renting.” The court continued, “You had a valid lease. Once the term of the original written lease expired, it became a month-to-month tenancy. You’re entitled to at least 90 days’ notice from the date of the trustee’s sale.” However, the court reasoned that because the bank was the rightful owner, there was “no theory” that precluded the court from granting immediate possession of the property to the Bank.
¶6 The court granted judgment in the Bank’s favor. The court denied De Meo’s motion for the court to set bond and for a stay pending the outcome of the appeal. De Meo timely appealed. We have jurisdiction pursuant to A.R.S. § 12-2101(B) (2003).
DISCUSSION
¶7 De Meo claims the Bank violated the PTFA by failing to give her a 90-day written notice to vacate and that the court therefore erred in granting judgment in the Bank’s favor. The Bank responds that this appeal should be dismissed because De Meo no longer resides on the property, rendering the appeal moot. The Bank also argues that the court did not err in entering judgment in its favor because the PTFA does not require
5
a written 90-day notice, and because the Bank waited more than 90 days after giving De Meo a written five-day notice to institute the FED action.
Mootness
¶8 “A decision becomes moot for purposes of appeal where as a result of a change of circumstances before the appellate decision, action by the reviewing court would have no effect on the parties.” Vinson v. Marton & Assocs., 159 Ariz. 1, 4, 764 P.2d 736, 739 (App. 1988) (citing Ariz. State Bd. of Dirs. for Junior Colls. v. Phoenix Union High Sch. Dist., 102 Ariz. 69, 73, 424 P.2d 819, 823 (1967)). When a tenant has abandoned property after entry of judgment granting the landlord possession, the issue of mootness arises. Thompson v. Harris, 9 Ariz. App. 341, 344, 452 P.2d 122, 125 (1969). We may, however, consider an issue that has become moot “if there is either an issue of great public importance or an issue capable of repetition yet evading review.” Phoenix Newspapers, Inc. v. Molera, 200 Ariz. 457, 460, ¶ 12, 27 P.3d 814, 817 (App. 2001); Fraternal Order of Police Lodge 2 v. Phoenix Emp. Relations Bd., 133 Ariz. 126, 127, 650 P.2d 428, 429 (1982). Even accepting arguendo the Bank’s argument, the issue of notice under the PTFA and its application to the FED statutes falls within both
6
exceptions to the mootness rule, and we therefore decline to dismiss this appeal on that basis.
90-Day Notice under the PTFA
¶9 The PTFA, effective May 20, 2009, is a federal law protecting tenants who reside in certain foreclosed properties. It provides in pertinent part,
(a) In General-In the case of any foreclosure on a federally-related mortgage loan or on any dwelling or residential real property after the date of enactment of this title, any immediate successor in interest in such property pursuant to the foreclosure shall assume such interest subject to—
(1) the provision, by such successor in interest of a notice to vacate to any bona fide tenant at least 90 days before the effective date of such notice; and
(2) the rights of any bona fide tenant—
(A) under any bona fide lease entered into before the notice of foreclosure to occupy the premises until the end of the remaining term of the lease, except that a successor in interest may terminate a lease effective on the date of sale of the unit to a purchaser who will occupy the unit as a primary residence, subject to the receipt by the tenant of the 90 day notice under subsection (1); or
(B) without a lease or with a lease terminable at will under state law, subject to the receipt by the tenant of the 90 day notice under subsection (1),
except that nothing under this section shall affect the requirements for termination of any Federal-or State-subsidized tenancy or of any State or local law that provides longer time
7
periods or other additional protections for tenants.
(Emphasis added).
¶10 The Bank did not dispute below that the PTFA applies in this case.3
¶11 The interpretation and application of statutes are questions of law, which we review de novo. Kromko v. City of Tucson, 202 Ariz. 499, 501, ¶ 4, 47 P.3d 1137, 1139 (App. 2002). In statutory construction, we first look to the plain language of the statute to determine its meaning and to discern the See Harper v. JP Morgan Chase Bank Nat’l Ass’n, 699 S.E.2d 854, 856 (Ga. App. 2010) (PTFA applies where federally-related mortgage loan is being foreclosed upon and the tenant is a bona fide tenant under a bona fide lease). The Bank argues, however, that the PTFA does not require a written 90-day notice to vacate. Instead, it claims, the tenant need only receive “some notice” and that in this case, the five-day written notice was sufficient.
3Community Legal Services, on behalf of a number of organizations, has filed a brief as an amicus curiae in support of De Meo’s position. See ARCAP 16. In its responsive brief, the Bank has argued, for the first time, that the PTFA is unconstitutional as applied to De Meo and, contrary to its earlier position, that she is not protected by the PTFA because she failed to allege that the foreclosure involved a federally-related mortgage. We do not consider these arguments, however, because they are new issues that were not raised below. Parkinson v. Guadalupe Pub. Safety Ret. Board, 214 Ariz. 274, 278, ¶ 22, 151 P.3d 557, 561 (App. 2007) (court will not consider issues in amicus curiae briefs not raised below).
8
intent of Congress. BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183 (2004). We consider the words or phrases in their statutory context. Id. at 186. Also, if there is an ambiguity in a statute, we may consider its legislative history. Id. at 187, n.8.
¶12 Section 702(a)(1) of PTFA provides that a successor property owner assumes an interest in the property subject to its provision of “a notice to vacate to any bona fide tenant at least 90 days before the effective date of such notice.” (Emphasis added). Section 702(a)(2)(B) specifies that a successor property owner acquires its property interest subject to the right of a bona fide tenant who is “without a lease or a lease terminable at will under state law” to receive “the 90 day notice under subsection (1).” (Emphasis added.) Accordingly, by its express terms, § 702 (a) requires that a successor property owner provide a bona fide month-to-month tenant with a 90-day notice to vacate before terminating the tenancy, and the 90-day period must be completed before the notice’s effective date.
¶13 The Bank nonetheless argues that the phrase “effective date of such notice” in § 702(a)(1) refers to the date the owner “takes action to force the tenant to vacate.” Because the FED hearing did not take place until 97 days after the notice, the
9
Bank asserts that De Meo “received the notice required by the PTFA.” However, that interpretation is not consistent with the language of § 702(a) within the context of the entire provision. See BedRoc, 541 U.S. at 185 (“statutory context . . . confirms ordinary meaning”). As explained above, § 702(a) requires that the effective date provided in the notice to vacate be not less than 90 days after service of the notice upon the tenant. Our reading of this section is supported by the opinions of courts in other jurisdictions.
¶14 In Nativi v. Deutsche Bank National Trust Co., 2010 WL 2179885 at *3 (N.D. Cal. May 26, 2010), the court opined that “[t]he PTFA protects tenants who are the victims of the foreclosure crisis. Included in the Act is a right for the tenant to occupy the premises until the end of the lease, as well as a right to receive a notice to vacate 90 days before the effective date.” (citations omitted). See also Bank of America, N.A. v. Owens, 903 N.Y.S.2d 667, 671-72 (City Ct. 2010)(the PTFA’s advance notice provisions cannot be construed to permit owners to take measures to circumvent or “short-circuit” the 90-day notice requirement). Obviously, a five-day notice, even when followed by an unannounced 90-day delay, is at best misleading. The noticed tenant could reasonably conclude that all arrangements to vacate the property and relocate must
10
be concluded within the five-day notice period. Such misleading information would not be consistent with the PTFA’s requirement.
¶15 Moreover, the Bank’s interpretation is contrary to the legislative intent expressed in support of the PTFA. As noted by Senator Christopher Dodd, one of the drafters of the PTFA, “all bona fide tenants who began renting prior to transfer of title by foreclosure . . . must be given at least 90 days’ notice before being required to vacate the property.” He added that [t]his new law protects tenants facing evictions due to foreclosure by ensuring that they . . . at the least, receive sufficient notice and time to relocate their families and lives to a new home.” 155 Cong. Rec. S8978-01 (August 6, 2009).4
¶16 Because the Bank failed to comply with the PTFA’s 90-day notice requirement, the trial court erred in finding De Meo guilty of forcible entry and detainer and in entering judgment in the Bank’s favor. The trial court further erred in failing to dismiss the FED action. See Alton v. Tower Capital Co., Inc., 123 Ariz. 602, 604, 601 P.2d 602, 604 (1979)(if landlord fails to give proper written notice, the trial court must find Our holding is consistent with this legislative intent.
4The Bank also asserts that a written 90-day notice to vacate is not required and that oral notice is sufficient to satisfy the PTFA. But the Bank has not cited any authority for this assertion and such an interpretation would be contrary to the express language of the law.
11
the tenant not guilty of forcible detainer and cannot enter judgment in the landlord’s favor); see also Rule 13(a)(2), Arizona Rules of Procedures for Eviction Actions, (if the tenant does not receive proper termination notice, “the court shall dismiss the [FED] action.”).
CONCLUSION
¶17 For the foregoing reasons, we reverse the judgment of the trial court.
_/s/_________________________
SHELDON H. WEISBERG, Judge
CONCURRING:
__/s/__________________________________
DONN KESSLER, Presiding Judge
__/s/_________________________________
DIANE M. JOHNSEN, Judge

CIVIL PROCEDURE: REAL PARTY IN INTEREST EXPLAINED (via Livinglies's Weblog)

SEE LIVINGLIES LITIGATION SUPPORT AT LUMINAQ.COM EDITOR'S NOTE: Finding that lawyers and judges are confused about the meaning and use of terms like "real party in interest" and "standing," it hardly comes as a surprise that pro se litigants and other homeowners are confused as well. These concepts, which have been used and abused for years now, lie at the crux of the foreclosures and the reason why they should not be allowed to proceed. In plain … Read More

via Livinglies's Weblog

robosigners unite

Review Pleadings “Corrective” Assignment Lender Processing Admission by Shapiro Law Firm that Linda Green was NOT authorized to sign by MERS. 10 VERSIONS LINDA GREEN 10 VERSIONS OF LINDA GREEN SIGNATURES ON MORTGAGE DOCUMENTS 20 TITLES LINDA GREEN MORTGAGE ASSIGNMENTS SHOWING 20 DIFFERENT JOB TITLES USED BY LINDA GREEN 4 VERSIONS TYWANNA THOMAS 4 VERSIONS OF TYWANNA THOMAS SIGNATURES ON MORTGAGE DOCUMENTS A FORGED BANK OF AMERICA SATISFACTION Linda Green Example of a forged “Linda Green” signature on a Mortgage Release and Satisfaction from Bank of America A FORGED BANK OF AMERICA SATISFACTION #2 Linda Green Example of a forged “Linda Green” signature on a Mortgage Release and Satisfaction from Bank of America A FORGED BANK OF AMERICA SATISFACTION #3 Linda Green Another example of “Linda Green” signing Mortgage Satisfactions A FORGED BANK OF AMERICA SATISFACTION #4 Linda Green Another Satisfaction, with a very different signature version of Linda Green than the other Satisfactions A LINDA GREEN/WELLS FARGO ASSIGNMENT WELLS FARGO SIGNATURE VERSION #1 A LINDA GREEN/WELLS FARGO ASSIGNMENT WELLS FARGO SIGNATURE VERSION #2 A LINDA GREEN/WELLS FARGO ASSIGNMENT WELLS FARGO SIGNATURE VERSION #3 A WELLS FARGO/LINDA GREEN AFFIDAVIT WELLS FARGO NOTARIZED OVER 6 MONTHS AFTER THE LINDA GREEN “SIGNATURE” A WELLS FARGO/LINDA GREEN AFFIDAVIT #2 WELLS FARGO SIGNED IN JANUARY 2008; NOTARIZED IN JANUARY 2009 AHMSI Coppell, TX Response of giant mortgage servicer American Home Mortgage Servicing to the investigative report by 60 Minutes: the “real” assignments are still in the vault Ally Financial/GMAC Jeffrey Stephan Nine Examples of Mortgage Assignments Signed by Jeffrey Stephan of Ally Financial Transferring MortgagesTo Unidentified Trusts Altrui Assignment Broward County Example of an Assignment of a non-performing loan to a Wells Fargo trust years after the closing date of the trust. Altrui Lis Pendens Broward County Lis Pendens showing the Altrui foreclosure action was filed by Wells Fargo as Trustee PRIOR to the date the trust acquired the mortgage Anderson, Scott Ocwen Loan Servicing Version #1 of robo-signer Scott Anderson’s signature Anderson, Scott Ocwen Loan Servicing Version #2 of robo-signer Scott Anderson’s signature Anderson, Scott Ocwen Loan Servicing Version #3 of robo-signer Scott Anderson’s signature Anderson, Scott Ocwen Loan Servicing Version #4 of robo-signer Scott Anderson’s signature Anderson, Scott Ocwen Loan Servicing Version #5 of robo-signer Scott Anderson’s signature Assignment of Mortgage Miami-Dade County, FL The Signer thinks she is Assistant Secretary of a company called “Assignment of Mortgage.” Notary thinks the same. BACK-UP FOR EXHIBIT LINDA GREEN EXHIBIT WITH 1-12 VERSIONS OF LINDA GREEN SIGNATURE Bankruptcy Opinion, In re Wilson Eastern District of Louisiana Opinion issued by Honorable Elizabeth W. Magner, U.S. Bankruptcy Judge, on April 6, 2011, regarding fraudulent practices of Lender Processing Services. Barbara Hindman JP Morgan Barbara Hindman signing as Vice President of MERS as nominee for First National Bank of AZ (signing for GRANTOR while really working for GRANTEE) Barbara Hindman JP Morgan Barbara Hindman signing as Vice President, Bank of America, N.A., as successor by merger to LaSalle Bank, N.A. as trustee for WMALT 2006-AR03 Trust by JP Morgan Chase Bank, N.A. as attorney-in-fact Barbara Hindman JP Morgan Barbara Hindman signing as Vice president, MERS, as Nominee for United Financial Mortgage Corp. (signing for the GRANTOR while working for the GRANTEE) Barbara Hindman JP Morgan Barbara Hindman, signing as a Vice President of MERS, as nominee for First Magnus Financial Corporation (signing for the GRANTOR while working for the GRANTEE) Barbara Hindman JP Morgan Barbara Hindman, signing as Vice President, JP Morgan Chase Bank, N.A., as successor-in-interest to Washington Mutual Bank (assigning to trust years after the closing date of the trust) Barbara Hindman JP Morgan Barbara Hindman, signing as Vice President, JP Morgan Chase Bank (to assign a mortgage to a trust years after the closing date of the trust) Beth Cerni David Stern Law Offices Stern employee Beth Cerni’s signature looking exactly like Cheryl Samons signature (another Stern employee) notarized by yet another Stern employee Bly, Bryan Nationwide Title Clearing Mortgage Assignment Signed by Bryan Bly as Attorney-In-Fact for the FDIC as receiver of IndyMac FSB on June 25, 2010. Bly, Bryan Nationwide Title Clearing Mortgage Assignment Signed by Bryan Bly as Attorney-In-Fact for the FDIC as receiver of IndyMac FSB on June 25, 2010. Brittany Snow docx/LPS Notary Fraud Example Cheryl Samons Law Offices of David Stern Signature of Stern employee Cheryl Samons to compare with Beth Cerni signature – Samons signed over 10,000 mortgage assignments in FL in 2008 & 2009 – as a MERS officer CHERYL SAMONS STERN FIRM CHERYL SAMONS SIGNING AS NOTARY ELIZABETH LEE CHERYL SAMONS DAVID STERN Law Offices Unsigned Cheryl Samons Assignment – with blank line witnessed and notarized Corrective Assignment #2 Linda Green Another “Corrective Assignment” filed stating Green had no authority to sign on behalf of MERS DEUTSCHE BANK NEW York SUMMARY OF MORTGAGE-RELATED OPINIONS OF JUDGE ARTHUR SCHACK Doza, Sherry SMI Signature Versions of Sherry Doza, formerly with Stewart Mortgage Information in Houston, TX – now with First American Core Logic, Santa Ana, CA FL Default Law Group Jeffrey Stephans Prominent Florida Foreclosure Firm Admits to Improper Affidavits from Jeffrey Stephans Freddie Mac fraud Docx/LPS Example of Assignment Effective Date 9/9/9999 Jessica Ohde Docx Signature Version #3 Jessica Ohde Docx Signature Version #1 Jessica Ohde Docx Signature Version #2 – and another example of a “Bogus” Assignment Kathy Smith Lender Processing Kathy Smith signing as Assistant Secretary of American Home Mortgage Servicing Kathy Smith Lender Processing Kathy Smith signing as Assistant Secretary of U.S. Bank, N.A. Kathy Smith Lender Processing Kathy Smith signing as Assistant Secretary of MERS as nominee for American Brokers Conduit Kathy Smith Lender Processing Kathy Smith signing as Assistant Secretary of Sand Canyon Corporation as successor-in-interest to Option One Mortgage Corp. Kathy Smith Lender Processing Kathy Smith signing as Asst. Secretary of MERS, as nominee for American Home Mortgage (years AFTER the bankruptcy of American Home Mortgage) Kathy Smith Lender Processing Kathy Smith signing as Asst. Secretary of MERS, as nominee for Homestar Mortgage Lending Corp. Kathy Smith Lender Processing Kathy Smith signing as Assistant Secretary of Argent Mortgage Company, LLC by Citi Residential Lending, Inc. as Attorney-In-Fact Kathy Smith Lender Processing Kathy Smith signing as Attorney-In-Fact for Ameriquest Mortgage Company Keri Selman BAC/Countrywide Mortgage-related decisions and documents regarding the many job titles claimed by Keri Selman of BAC Home Loans Servicing Korell Harp Docx Harp and Thomas signing as officers of “A Bad Bene” – witnessed & notarized! Korell Harp Docx Korell Harp Signature Version #1 Korell Harp Docx Signature Version #2 Korell Harp Docx Signature Version #3 Linda Green DOCX/LPS Linda Green Signing as Vice President of Citigroup Global Markets Realty Linda Green Docx Example of signature variation Linda Green Docx Example #2 of signature variations Linda Green Docx Example #3 of signature variations Linda Green Docx Signature variation #4 Linda Green Docx Most frequent Linda Green signature variation Linda Green Docx Is Linda Green also Linda Thoresen? Compare These. Linda Green DOCX/LPS Mortgage-related decisions and documents regarding the many job titles and signatures of Linda Green, former employee of DOCX/Lender Processing Services in Alpharetta, GA. Linda Thoresen Docx Linda Thoresen Signature Version #2 Linda Thoresen Docx/LPS Signature Version #1 of Linda Thoresen Linda Thoresen Docx/LPS Signature Version #3 Linda Thoresen Mortgage Electronic Registration MERS Deposition of MERS VP William Hultman Shelly Scheffey Docx/LPS Docx employee Shelly Scheffey Forgot To Sign Assignment, but the blank line was witnessed and notarized by Docx employees Christina Huang and Shawanna Crite Steve Nagy New Century Steve Nagy of New Century Mortgage forgot to sign – but his signature was still witnessed Taylor for Deutsche Bank FL – 5th DCA Motion for Rehearing in foreclosure case Tywanna Thomas Docx Tywanna Thomas Signature Version #1 Tywanna Thomas Docx/LPS Signature Version #3 Tywanna Thomas Docx Signature Version #2 Tywanna Thomas Docx/LPS Assignment – Tywanna Thomas Forgot To Sign – but the blank line was still witnessed & notarized by Docx employees Christina Huang and Alicia Williams U.S. SECURITIES & EXCHANGE COMMISSION v. ALEKSAY KAMARDIN MIDDLE DISTRICT OF FLORIDA Civil Action Filed By the SEC For Injunctive and Other Relief For Conducting A Fraudulent Trading Scheme Understanding Mortgage-Backed Securities Talking Points for PGA Conference USA v. ADAM SEGAN, et al. Middle District of Florida (Orlando) Using Phony Subcontractors & Immigrant Workers To Defraud the IRS & Workers’ Comp USA v. ALLEN HILLY DISTRICT OF NEW JERSEY, Newark Division 231-Count Complaint Against the Owner of Leading Edge Insurance Group and Several Illinois PEOs for Money Laundering and Wire Fraud USA v. BERNARD MADOFF Southern District of NY COMPLAINT in the case that is possibly the largest securities fraud ever committed. USA v. CENTURY EXPRESS VAN LINES, et al. Southern District of Florida Fraudulently Offering Low Moving Estimates, Then Inflating the Prices, and Withholding Delivery USA v. CHARLENE CYNTHIA DEMARCO, et al. United States District Court, District of New Jersey (Camden) Conspiracy To Commit Mail Fraud and Wire Fraud for Allegedly Defrauding Patients Suffering from ALS, or Lou Gehrig’s Disease USA v. DAVID BRUCE, et al. District of South Carolina (Greenville) Wire Fraud Case Alleging Attempt to Defraud Potential Investors By Luring Them To A Non-Existent High-Yield Trading Program USA v. DENNIS B. EVANSON, et al. District of Utah Tax Evasion Using Offshore Entities USA v. DENNIS E. LAMBKA and RONALD E. BRAY Eastern District of Michigan Tax Fraud, Bank Fraud and Embezzlement by the Principals of a National Employee Leasing Company, Simplified Employment Solutions USA v. ENRIQUE GUEVARO, ERICK BRANDON and ALEXANDRA CORDERO Southern District of Florida (Miami) Workers’ Compensation Premium Premium Fraud Case Involving General Contractor Who Falsely Claimed That A Large Portion of Its Payroll Was Attributable to Insured Sub-Contractors USA v. FRANK HERNANDEZ, et al. Southern District of Florida (West Palm Beach) Drug and Conspiracy Charges Against 14 Individuals and Seven Companies For Prescription Drug Trafficking on the Internet USA v. GABRIEL MACENROE, et al. District of South Carolina Criminal Complaint Fraudulent High Yield Investment Scheme USA v. JAMES E. TAYLOR Eastern District of Kentucky 108 Counts of Mail Fraud and Wire Fraud in the Fraudulent Sale of Workers’ Compensation Insurance USA v. JAMES KERNAN NDNY Conspiracy and fraud charges relating to the owner of Oriska Insurance and Insurance Co. of the Americas and Robert J. “Skip” Anderson. USA v. JOHN COTONA et al. District of New Jersey, Trenton Division Staged Automobile Accident Allegations Against Multiple Defendants USA v. JUSTIN BRUNER and PAUL VOYLES WESTERN DISTRICT OF OKLAHOMA Mail Fraud and False Declarations Charges Against the Owners of a PEO, Fairway Employment Services, for Selling Fraudulent Insurance USA v. LAWRENCE JONES Middle District of Florida Conspiracy and wire fraud case alleging Lawrence Jones, an officer of several PEOs, sold fraudulent insurance, Regency of the West Indies. USA v. LEROY BROWN United States District Court, District of New Jersey (Newark) Embezzlement by a Former Financial Manager at the Salvation Army USA v. Leroy Felt Southern District of FLorida (Miami) Tax fraud case alleging that the owner of Woody’s Construction, a builder of single-family homes, paid his employees in cash “under-the-table” to avoid payroll taxes. USA v. MALCOLM WEBBER Wichita, Kansas Complaint alleging Malcolm Webber, a/k/a Grand Chief Thunderbird IV, sold memberships in an unrecognized Indian tribe, to immigrants who thought they could get citizenship through the tribe. USA v. MARK S. HAUKEDAHL Northern District of Ohio Money Laundering and Tax Evasion Charges Against An Agent Who Sold Fraudulent Errors and Omissions Insurance To 4,500 Real Estate Agents From 1993 Through 2004 USA v. NEAL BERGSTROM District of Utah Indictment Charging the Former CEO of A Utah Employee Leasing Company, Advantius, Inc., With Defruading the IRS of Employment Taxes USA v. PETER J. PORCELLI, II Southern District of Illinois Telemarketing Fraud Allegations from “Operation No Credit” Alleging Marketing of Phony Visa and MasterCards to Individuals With Poor Credit or No Credit USA v. RICHARD ROSENBAUM WESTERN DISTRICT OF MICH. Indictment charging Richard Rosenbaum, Edward Scott Cunningham and Christina Flocken with Defrauding the IRS of over $18 million by using illegal immigrant workers and failing to pay taxes USA v. ROBERT BARNWELL CLARKSON Greenville, SC Civil case filed by the USA Treasury Dept. against a tax scheme promoter. USA v. RODNEY RICHLEY Northern District of Ohio Tax fraud and money laundering charges against the former owner of Payroll Data Services, a PEO in Kettering, Ohio, charging that $4.3 million in federal employment taxes were diverted for Richley’s personal use. USA v. Ronald Ferguson, et al. Connecticut Order Denying Defendants’ Post-Trial Motions for Judgment of Acquittal USA v. TERRANCE D. STRADFORD, et al. United States District Court, District of New Jersey (Camden) Conspiracy, Wire Fraud and Money Laundering for Operating a Scheme to Fraudulently Obtain $1.36 Million in Mortgages and Spending the Proceeds on Luxury Items Including a 46-foot Yacht, a North Carolina Residence, and Vehicles. USA v. THOMAS KING Middle District of Florida Mail Fraud and Selling Fraudulent Insurance by the Principal of Miralink Group, an Employee Leasing Company in Jacksonville, Florida USA v. WM. COLTON COILE Middle District of Florida Criminal Information filed against Wm. Colton Coile of Fairhope, Alabama, for his role in selling fraudulent workers’ compensation insurance through employee leasing companies. USAv. JOSEPH GIANETTI, JR. DISTRICT OF NEW JERSEY (NEWARK) Criminal Information Filed Against New Jersey Chiropractor for Medical Billing Fraud Wells Fargo v. Moise Kings County, NY Foreclosure decision written by Justice Wayne P Saitta involving an Assignment dated several months AFTER a foreclosure action was filed

linda green robo signer notary fraud complaint

If Linda Green or any of the other docx companies signed any of your assignments or substitution of trustee this might be your complaint:

mccandlessrobosignercomplaintlindagreenrobo signer

Timothy L. McCandless, Esq. SBN 147715

LAW OFFICES OF TIMOTHY L. MCCANDLESS

1881 Business Center Drive, Ste. 9A

San Bernardino, CA 92392

Tel:  909/890-9192

Fax: 909/382-9956

Attorney for Plaintiffs

 

SUPERIOR COURT OF THE STATE OF CALIFORNIA

 

COUNTY OF ____________

___________________________________, And ROES 1 through 5,000, Plaintiff, v. SAND CANYON CORPORATION f/k/a OPTION ONE MORTGAGE CORPORATION; AMERICAN HOME MORTGAGE SERVICES, INC.; WELLS FARGO BANK, N.A., as Trustee for SOUNDVIEW HOME LOAN TRUST 2007-OPT2; DOCX, LLC; and PREMIER TRUST DEED SERVICES and all persons unknown claiming any legal or  equitable right, title, estate, lien, or interest  in the property described in the complaint adverse to Plaintiff’s title, or any cloud on Plaintiff’s  title thereto, Does 1 through 10, Inclusive, Defendants.

CASE NO: FIRST AMENDED COMPLAINT FOR QUIET TITLE, DECLARATORY RELIEF, TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNTION AND PERMANENT INJUNCTION, CANCELATION OF INSTRUMENT AND FOR DAMAGES ARISING FROM: SLANDER OF TITLE; TORTUOUS VIOLATION OF STATUTE [Penal Code § 470(b) – (d); NOTARY FRAUD;

///

///

///

///

Plaintiffs ___________________________ allege herein as follows:

GENERAL ALLEGATIONS

            1.         Plaintiffs ___________ (hereinafter individually and collectively referred to as “___________”), were and at all times herein mentioned are,  residents of the County of _________, State of California and the lawful owner of a parcel of real property commonly known as: _________________, California _______ and the legal description is:

Parcel No. 1:

A.P.N. No. _________ (hereinafter “Subject Property”).

2.         At all times herein mentioned, SAND CANYON CORPORATION f/k/a OPTION ONE MORTGAGE CORPORATION (hereinafter SAND CANYON”), is and was, a corporation existing by virtue of the laws of the State of California and claims an interest adverse to the right, title and interests of Plaintiff in the Subject Property.

3.         At all times herein mentioned, Defendant AMERICAN HOME MORTGAGE SERVICES, INC. (hereinafter “AMERICAN”), is and was, a corporation existing by virtue of the laws of the State of Delaware, and at all times herein mentioned was conducting ongoing business in the State of California.

4.         At all times herein mentioned, Defendant WELLS FARGO BANK, N.A., as Trustee for SOUNDVIEW HOME LOAN TRUST 2007-OPT2 (hereinafter referred to as “WELLS FARGO”), is and was, a member of the National Banking Association and makes an adverse claim to the Plaintiff MADRIDS’ right, title and interest in the Subject Property.

5.         At all times herein mentioned, Defendant DOCX, L.L.C. (hereinafter “DOCX”), is and was, a limited liability company existing by virtue of the laws of the State of Georgia, and a subsidiary of Lender Processing Services, Inc., a Delaware corporation.

6.         At all times herein mentioned, __________________, was a company existing by virtue of its relationship as a subsidiary of __________________.

7.         Plaintiffs are ignorant of the true names and capacities of Defendants sued herein as DOES I through 10, inclusive, and therefore sues these Defendants by such fictitious names and all persons unknown claiming any legal or equitable right, title, estate, lien, or interest in the property described in the complaint adverse to Plaintiffs’ title, or any cloud on Plaintiffs’ title thereto. Plaintiffs will amend this complaint as required to allege said Doe Defendants’ true names and capacities when such have been fully ascertained. Plaintiffs further allege that Plaintiffs designated as ROES 1 through 5,000, are Plaintiffs who share a commonality with the same Defendants, and as the Plaintiffs listed herein.

8.         Plaintiffs are informed and believe and thereon allege that at all times herein mentioned, Defendants, and each of them, were the agent and employee of each of the remaining Defendants.

9.         Plaintiffs allege that each and every defendants, and each of them, allege herein ratified the conduct of each and every other Defendant.

10.       Plaintiffs allege that at all times said Defendants, and each of them, were acting within the purpose and scope of such agency and employment.

11.       Plaintiffs are informed and believe and thereupon allege that circa July 2004, DOCX was formed with the specific intent of manufacturing fraudulent documents in order create the false impression that various entities obtained valid, recordable interests in real

properties, when in fact they actually maintained no lawful interest in said properties.

12.       Plaintiffs are informed and believe and thereupon allege that as a regular and ongoing part of the business of Defendant DOCX was to have persons sitting around a table signing names as quickly as possible, so that each person executing documents would sign approximately 2,500 documents per day. Although the persons signing the documents claimed to be a vice president of a particular bank of that document, in fact, the party signing the name was not the person named on the document, as such the signature was a forgery, that the name of the person claiming to be a vice president of a particular financial institution was not a “vice president”, did not have any prior training in finance, never worked for the company they allegedly purported to be a vice president of, and were alleged to be a vice president simultaneously with as many as twenty different banks and/or lending institutions.

13.       Plaintiffs are informed and believe and thereupon allege that the actual signatories of the instruments set forth in Paragraph 12 herein, were intended to and were fraudulently notarized by a variety of notaries in the offices of DOCX in Alpharetta, GA.

14.       Plaintiffs are informed and believe and thereupon allege that for all purposes the intent of Defendant DOCX was to intentionally create fraudulent documents, with forged signatures, so that said documents could be recorded in the Offices of County Recorders through the United States of America, knowing that such documents would forgeries, contained false information, and that the recordation of such documents would affect an interest in real property in violation of law.

15.       Plaintiffs allege that on or about, ____________, that they conveyed a first deed of  trust (hereinafter “DEED”) in favor of Option One Mortgage, Inc. with an interest of

approximately $_________________.

16.       Plaintiffs are informed and believe and thereupon allege that Option One Mortgage sold interest in the aforementioned DEED to unknown parties as a derivative security, who then repeatedly resold their respective interests, if any, in said DEED on at least six different occasions.

17.       Plaintiffs allege that pursuant to California Civil Code section 2932.5, an assignee may effectuate the power of sale provided the assignment is properly acknowledged and recorded. Plaintiffs further allege that due to acts and/or omissions of Defendants, and each of them, that none of the named Defendants herein are holders in due course and do not maintain an interest in the Subject Property, including but, not limited to: there are no lawful records connecting Defendants to this property other that Sand Canyon Corporation f/k/a Option One Mortgage Corporation, and the interest of Sand Canyon Corporation f/k/a Option One Mortgage Corporation was long ago sold-off to unrelated third parties for which there is no proper “paper trail” to establish the true holder in due course. Plaintiffs allege that as will be seen hereinafter that Defendants, and each of them, resorted to forged instruments in an attempt to create the appearance that Defendant Wells Fargo Bank, N.A. as Trustee of the Soundview Home Loan Trust 2007-OPT2.

18.       Plaintiffs allege that due to certain acts and/or omissions once the DEED was “assigned” to various parties the DEED was detrimentally affected in a number ways, including but, not limited to: that the power of sale inherent in the DEED was severed, because the subsequent parties were no longer holders in due course as a matter of law.

19.       On April 3, 2011, on the national program “60 Minutes”, two former employees of DOCX made admissions which entirely support the allegations set forth in Paragraphs 12 and 13, herein. During said program, former employee, Chris Pendley [sic] stated that he personally drafted the name of “Linda Green” on thousands and thousands of assignments, although he was not Linda Green, that he was signing in excess of 2,500 documents per day, and that he was paid the sum of ten ($10.00) per hour to forge the name of “Linda Green” and that he made no inspection of any documents to determine whether the execution of the assignment was lawful, had no training to make an inspection of documents to determine if the assignment was lawful, and was told by his superiors that his execution of the name Linda Green was lawful.

20.       On April 3, 2011, Linda Green, a former employee of DOCX, appeared on the aforementioned “60 Minutes” program and stated that she worked in the mailroom of DOCX and

eventually signed some documents, that although she was listed as a vice president of several

companies, that she had no connection with those companies, and that she was aware that her signature was being used by several other persons on assignments because her name was short and easy to spell.

21.       Plaintiffs are informed and believe and thereupon allege that Linda Green, acting in her capacity as an employee of DOCX allowed her name to forged upon literally thousands of purported assignments, although Linda Green never executed those assignments, never inspected those assignments, and that DOCX simply listed that Linda Green was a vice president at various

Banks and lending institutions, however, Linda Green was not lawfully a vice president, and the assertion that Linda Green was a vice president was an artifice. Plaintiffs further allege that Linda Green’s name fraudulent appeared on documents for the following institutions: 11-11-2004 & 06-22-2006 Vice President, Loan Documentation, Wells Fargo Bank, N.A., successor by merger to Wells Fargo Home Mortgage, Inc.; 08-11-2008 & 08-14-2008 Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for American Home Mortgage Acceptance, Inc.; 08-27-2008 Vice President, American Home Mortgage Servicing as successor-in-interest to Option One Mortgage Corporation; 09-19-2008 Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for American Brokers Conduit; 09-30-2008;

Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for American Home

Mortgage Acceptance, Inc.; 09-30-2008 Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for American Brokers Conduit; 10-08-2009 Vice President & Asst. Secretary, American Home Mortgage Servicing, Inc., as servicer for Ameriquest Mortgage Corporation; 10-16-2008 Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for American Home Mortgage Acceptance, Inc.; 10-17-2008, 11-20-2008

Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for American

Brokers Conduit; 11-20-2008 Vice President, Option One Mortgage Corporation; 12-08-2008

Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for American Brokers Conduit; 12-15-2008 Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for HLB Mortgage; 12-24-2008 Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for American Home Mortgage Acceptance, Inc.; 12-26-2008 Vice President, American Home Mortgage Servicing, Inc.; 01-13-2009 Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for Family Lending Services, Inc.; 01-15-2009

Vice President, Mortgage Electronic Registration Systems, Inc., acting solely as nominee for

American Home Mortgage Acceptance, Inc.; 02-03-2009 Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for American Brokers Conduit; 02-05-2009 Vice President, Mortgage Electronic Registration Systems, Inc., acting solely as nominee for

American Home Mortgage Acceptance, Inc.; 02-24-2009 Vice President, American Home Mortgage Servicing, Inc. as successor-in-interest to Option One Mortgage Corporation;

02-25-2009 Vice President, Bank of America, N.A.; 02-27-2009 Vice President, American Home Mortgage Servicing, Inc., as successor-in-interest to Option One Mortgage Corporation;

03-02-2009 Vice President, Mortgage Electronic Registration Systems, Inc., acting solely as nominee for American Home Mortgage; 03-04-2009 Vice President, Argent Mortgage Company, LLC by Citi Residential Lending Inc., attorney-in-fact; 03-06-2009 & 03-20-2009 Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for American Home

Mortgage Acceptance, Inc.; 04-15-2009, 04-17-2009, 04-20-2009 Vice President, Bank of America, N.A.; 05-11-2009, 07-06-2009 Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for American Home Mortgage Acceptance, Inc.; 07-14-2009 Vice

President, Bank of America, N.A.; 07-15-2009 Vice President & Asst. Secretary, American

Home Mortgage Servicing, Inc., as servicer for Deutsche Bank National Trust Company, as trustee for, Ameriquest Mortgage Securities, Inc. asset-backed pass through certificates, series 2004-R7, under the pooling and servicing agreement dated July 1, 2004; 07-30-2009 Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for American Home

Mortgage Acceptance, Inc.; 08-12-2009 Vice President, Sand Canyon Corporation f/k/a Option One Mortgage Corporation; 08-28-2009 Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for American Home Mortgage Acceptance, Inc.; 09-03-2009

Asst. Vice President, Sand Canyon Corporation formerly known as Option One Mortgage

Corporation; 09-03-2009 Asst. Secretary, Mortgage Electronic Registration Systems, Inc., acting solely as nominee for American Home Mortgage; 09-04-2009 Asst. Secretary, Mortgage Electronic Registration Systems, Inc., acting solely as nominee for American Home Mortgage;

09-08-2009 Vice President, Bank of America, N.A.; 09-21-2009 & 09-22-2009 Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for American Home Mortgage Acceptance, Inc. Plaintiffs further allege that Linda Green was never lawfully the vice president of any entity, more particularly the foregoing listed entities.

22.       Plaintiffs are informed and believe and thereupon allege that Defendant DOCX was a continuing criminal enterprise whose sole function was to create and forge fraudulent assignments which would purport to convey interests in real property and the entities listed in Paragraph 21 hereinabove, were complicate in Defendants’ fraud.

23.       Plaintiffs are informed and believe from beginning circa 2007 and continuing until sometime in 2010, DOCX produced thousands upon thousands of false and fraudulent assignments which were recorded in the Offices of the County Recorders of the State of

California, and several other States in the United States of America as well.

24.       Plaintiffs are informed and believe and thereupon allege that during the “60 Minutes” program on April 3, 2011, another former DOCX employee, Savonna Krite [sic] acted as a notary public and notarized that the signatures of Linda Green and others, were valid, however, she admitted that the notarizations were not that of Linda Green. Savonna Krite [sic] further admitted that she was told by officers of DOCX that it was “alright” for her to notarize signatures as being valid. Savonna Krite [sic] also admitted as of the program that she now understands that her notarizations of said assignments were “not alright.”

25.       Plaintiffs are informed and believe and thereupon allege that because the entire company structure of DOCX was to manufacture forged assignments by the thousands per day, without any consideration whatsoever that the information contained on those assignments was valid, and that the notarizations were in fact fraudulent, that no reasonable expectation can be made that any of the assignments executed by DOCX employees were or are valid.

26.       Plaintiffs are informed and believe and thereupon allege that circa _______,

Defendants, and each of them, utilized the services of DOCX in order to manufacture a fraudulent assignment from Defendant AMERICAN to WELLS FARGO, because WELLS FARGO could not find documents which would demonstrate that it owned an interest in the Plaintiffs’ subject property.

27.       Plaintiffs are informed and believe and thereupon allege that WELLS FARGO never had a lawful interest in the Plaintiffs’ subject property, either in its own capacity or as that as Trustee for the SOUNDVIEW HOME LOAN TRUST 2007-OPT2.

28.       Plaintiffs allege that they fully tendered all mortgage payments which were

lawfully due under the DEED, and that they are not in default of their payments, having lawfully

tendered all amounts due and owing.

29.       Plaintiffs allege that WELLS FARGO made demands for payment as against the DEED, however, Plaintiffs allege that WELLS FARGO was not a lawful holder in due course, that SOUNDVIEW HOME LOAN TRUST 2007-OPT2 was not a lawful holder in due course, and that neither party had any lawful right, title and interest in the DEED.

30.       Plaintiffs are informed and believe and thereupon allege that on or about, _______________, Defendant DOCX at the request of Defendants, and each of them, forged an instrument (hereinafter “FORGED ASSIGNMENT”) with the name “Linda Green” which was notarized by

“Ellis Simmons.”

31.       Plaintiffs are informed and believe and thereupon allege that on or about, _______________, an unknown employee of DOCX, in the course and scope of their employment, signed the name “Linda Green” and that such document had a notary stamp placed upon the FORGED ASSIGNMENT which purported to be lawfully notarized by “Ellis Simmons.”

32.       Plaintiffs are informed and believe and thereupon allege that the FORGED

ASSIGNMENT was then sent by DOCX through the United States Postal Service or transmitted by facsimile over the telephone and telegraph wires of the United States of America to Defendants, and each of them, in order that such FORGED ASSIGNMENT would be recorded in the Office of the County Recorder of the County of _______________.

32.       Plaintiffs are informed and believe and thereupon allege that on or about _______________, that Defendants, and each of them, their employees and/or agents, caused the FORGED ASSIGNMENT which unlawfully affected Plaintiffs’ subject property to be recorded in the Office of the Country Recorder of the County of _______________ as Instrument No. _______________. A true and correct copy of the assignment set forth in Paragraphs 30 – 31, is attached hereto as Exhibit “A”, and is incorporated by this reference.

33.       Plaintiffs are informed and believe and thereupon allege that the sole claim of Defendants, and each of them, as to their right, title and/or interest in the Plaintiffs’ Subject Property is the  FORGED ASSIGNMENT.

34.       Plaintiffs allege that the FORGED ASSIGNMENT as a matter of law is void and that it did not constitute a conveyance of an interest to Defendants, or to anyone at all, and that the FORGED ASSIGNMENT is a legal nullity.

35.       Plaintiffs allege that Defendants, and each of them, are presently relying upon the FORGED ASSIGNMENT and are knowingly and intentionally prosecuting a non-judicial foreclosure based solely upon the recordation of the FORGED ASSIGNMENT, necessitating the instant action.

FIRST CLAIM FOR RELIEF

(Slander of Title As Against All Defendants)

            36.       Plaintiffs incorporate Paragraphs 1 through 35 of the General Allegations as though such have been fully set forth herein.

37.       Plaintiffs allege that on or about, _______________, Defendants, and each of them, in some measure actively, directly, indirectly, openly and secretly contributed to the preparation of the FORGED ASSIGNMENT and the recordation of said Instrument in the Official Records of the Office of the County Recorder of _______________ County.

38.       Plaintiffs allege that the recordation of the FORGED ASSIGNMENT, by Defendants and each of them, rendered Plaintiffs’ title to the Subject Property as unmarketable.

39.       Plaintiffs allege that Defendants, and each of them, recorded the FORGED

ASSIGNMENT without privilege, knowledge and/or consent of Plaintiffs, the information contained in said FORGED ASSIGNMENT is false in that no lawful conveyance ever existed between the parties thereto, and said FORGED ASSIGNMENT when recorded published the information therein which disparaged Plaintiffs’ title as would lead a reasonable man to falsely assume that Defendants, and each of them, in some measure actually maintained some right, title and interest in Plaintiffs’ Subject Property, whereas, some of the information contained in the FORGED ASSIGNMENT is false. A true and correct copy of the FORGED ASSIGNMENT  is attached hereto as Exhibit “A”, and is incorporated by this reference.

40.       Plaintiffs allege that they actually and proximately suffered damages due to the planning, preparation and recordation of the FORGED ASSIGNMENT in an amount the totality of which has not been fully ascertained, but in no event less than the jurisdictional limitations of this court.

41.       Plaintiffs allege that the slander of the Subject Properties title was intentional,

fraudulent, malicious, oppressive and burdensome and deserving the imposition of punitive

damages in an amount sufficient that such conduct will not be repeated.

SECOND CAUSE OF ACTION

(Tortuous Violation of Statute Penal Code §§ 470(b), 470(d)

As Against Sand Canyon Corporation f/k/a Option One Mortgage Corporation;

American Home Mortgage Services, Inc.; Wells Fargo Bank, N.A., as Trustee

for Soundview Home Loan Trust 2007-OPT2; DOCX, LLC)

42.       Plaintiffs re-allege and incorporate Paragraphs 1 through 35 of the General Allegations and Paragraphs 36 through 41 of the First Cause of Action as though such have been fully set forth herein.

43.       Plaintiffs are informed and believe and thereupon allege that circa July 2004, Defendants, and each of them, contrived a scheme to replace missing documents which purported to assert interests in real properties through-out the United States of America.

44.       Plaintiffs are informed and believe and thereupon allege that by August 2008, Defendants, and each of them, had in some measure participated in the request for production of forged instruments from DOCX, as well as other document forgery mills, the purpose of which was to effect title to real properties through-out the United States of America.

45.       Plaintiffs are informed and believe and thereupon allege that on or about, August 8, 2008, the agents and/or employees of Defendants and each of them, knowingly and intentionally with the intent to defraud Plaintiffs’ interest in the Subject Property, prepared the FORGED ASSIGNMENT and caused said FORGED ASSIGNMENT to be recorded in the Official Records of the Office of the Recorder of the County of _______________ as Instrument No. _______________. A true and correct copy of the FORGED ASSIGNMENT, is attached hereto as Exhibit “A”, and is incorporated by this reference.

46.       Plaintiffs allege that Defendants, and each of them, tortuously forged the

signature of Linda Green, on the FORGED ASSIGNMENT, with the intent to defraud Plaintiffs, and such forgery directly affected Plaintiffs’ interest in the Subject Property in tortuous violation of California Penal Code sections 470(b) and 470(d).

47.       Plaintiffs allege that they actually and proximately suffered damages due to the planning, preparation and recordation of the FORGED ASSIGNMENT in an amount the totality of which has not been fully ascertained, but in no event less than the jurisdictional limitations of this court.

48.       Plaintiffs allege that the tortuous violation of Penal Code sections 470(b) and 470(d), by and through the preparation of the FORGED ASSIGNMENT, and subsequent recordation thereof was in willful disregard for Plaintiffs’ right, title and interest in the Subject Property,  intentional, fraudulent, malicious, oppressive and burdensome and deserving the imposition of punitive damages in an amount sufficient that such conduct will not be repeated.

THIRD CAUSE OF ACTION

(Notary Fraud  As Against DOCX, LLC and Defendants 1 through 10, Inclusive)

49.       Plaintiffs re-allege and incorporate Paragraphs 1 through 35 of the General Allegations, Paragraphs 35 through 41 and Paragraphs 42 through 48 of  the First and Second Causes of Action as though such have been fully set forth herein.

50.       Plaintiffs are informed and believe and thereupon allege that circa July 2004, Defendants, and each of them, contrived a scheme to replace missing documents which purported to assert interests in real properties through-out the United States of America.

51.       Plaintiffs are informed and believe and thereupon allege that by August 2008, Defendants, and each of them, had in some measure participated in the request for production of forged instruments from DOCX, as well as other document forgery mills, the purpose of which

was to effect title to real properties through-out the United States of America.

52.       Plaintiffs are informed and believe and thereupon allege that on or about, _____________, the agents and/or employees of Defendants and each of them, knowingly and

intentionally with the intent to defraud Plaintiffs’ interest in the Subject Property, prepared the FORGED ASSIGNMENT and caused said FORGED ASSIGNMENT to be recorded in the Official Records of the Office of the Recorder of the County of _______________ as Instrument No. _______________. A true and correct copy of the FORGED ASSIGNMENT, is attached hereto as Exhibit “A”, and is incorporated by this reference.

53.       Plaintiffs are informed and believe and thereupon allege that the FORGED ASSIGNMENT contained knowingly false statements including, but not limited to: that Wells Fargo Bank, N.A., as Trustee for Soundview Home Loan Trust 2007-OPT2, that Linda Green was a vice president of American Home Mortgage Services, Inc., and that Ellis Simmons lawfully notarized the FORGED ASSIGNMENT.

54.       Plaintiffs allege that they actually and proximately suffered damages due to the planning, preparation and recordation of the FORGED ASSIGNMENT in an amount the totality of which has not been fully ascertained, but in no event less than the jurisdictional limitations of this court.

55.       Plaintiffs allege that Defendants, and each of them, committed notary fraud by and through the preparation and notarization of the FORGED ASSIGNMENT, and subsequent recordation thereof was in willful disregard for Plaintiffs’ right, title and interest in the Subject Property, intentional, fraudulent, malicious, oppressive and burdensome and deserving the imposition of punitive damages in an amount sufficient that such conduct will not be repeated.

FOURTH CAUSE OF ACTION

(Cancellation of Instrument As Against Wells Fargo Bank, N.A. as Trustee for

  Soundview Home Loan Trust 2007-OPT2 and Defendants 1 through 10, Inclusive)

56.       Plaintiffs re-allege and incorporate Paragraphs 1 through 35 of the General

Allegations, Paragraphs 35 through 41 and Paragraphs 42 through 48 and Paragraphs 49 through 55 of  the First, Second and Third Causes of Action as though such have been fully set forth herein.

57.       Plaintiffs allege that a FORGED ASSIGNMENT was recorded in the Official

Records of the Office of the County Recorder for the County of _______________ as Instrument No. _______________.

58.       Plaintiffs seek an Order of the above-entitled court cancelling Instrument No. _______________, in as much as said document contains false information and affects Plaintiffs’ right, title and interest in the Subject Property.

FIFTH CAUSE OF ACTION

(Quiet Title As Against All Defendants)

59.       Plaintiffs re-allege and incorporate Paragraphs 1 through 35 of the General Allegations, Paragraphs 35 through 41 and Paragraphs 42 through 48 and Paragraphs 49 through 55 of  the First, Second and Third Causes of Action as though such have been fully set forth herein.

60.       For all the facts alleged herein, Plaintiffs seek an Order quieting title as of

_______________.

SIXTH CAUSE OF ACTION

(Declaratory Relief As Against All Defendants)

61.       An actual controversy has arisen.

62.       The parties desire a judicial determine that they may ascertain their respective

right, title and interest in the Subject Property.

63.       A judicial determination is necessary that the parties may  right, title and interest in the Subject Property.

64.       Plaintiffs allege that as a regular and ongoing part of the business of Defendant

DOCX was to have persons sitting around a table signing names as quickly as possible, so that

each person executing documents would sign approximately 2,500 documents per day. Although the persons signing the documents claimed to be a vice president of a particular bank of that document, in fact, the party signing the name was not the person named on the document, as such the signature was a forgery, that the name of the person claiming to be a vice president of a particular financial institution was not a “vice president”, did not have any prior training in finance, never worked for the company they allegedly purported to be a vice president of, and were alleged to be a vice president simultaneously with as many as twenty different banks and/or lending institutions, that the actual signatories of the instruments set forth in Paragraph 12 herein, were intended to and were fraudulently notarized by a variety of notaries in the offices of DOCX in Alpharetta, Georgia,  that for all purposes the intent of Defendant DOCX was to intentionally create fraudulent documents, with forged signatures, so that said documents could be recorded in the Offices of County Recorders through the United States of America, knowing that such documents would forgeries, contained false information, and that the recordation of such documents would affect an interest in real property in violation of law, that on or about, May 7, 2007, that they conveyed a first deed of trust (hereinafter “DEED”) in favor of Option One Mortgage, Inc. with an interest of approximately $815,000, that Option One Mortgage sold interest in the aforementioned DEED to unknown parties as a derivative security, who then repeatedly resold their respective interests, if any, in said DEED on at least six different occasions, that pursuant to California Civil Code section 2932.5, an assignee may effectuate the power of sale provided the assignment is properly acknowledged and recorded. Plaintiffs further allege that due to acts and/or omissions of Defendants, and each of them, that none of the named Defendants herein are holders in due course and do not maintain an interest in the Subject Property, including but, not limited to: there are no lawful records connecting Defendants to this property other that Sand Canyon Corporation f/k/a Option One Mortgage Corporation, and the interest of Sand Canyon Corporation f/k/a Option One Mortgage Corporation was long ago sold-off to unrelated third parties for which there is no proper “paper trail” to establish the true holder in due course. Plaintiffs allege that as will be seen hereinafter that Defendants, and each of them, resorted to forged instruments in an attempt to create the appearance that Defendant Wells Fargo Bank, N.A. as Trustee of the Soundview Home Loan Trust 2007-OPT2, that due to certain acts and/or omissions once the DEED was “assigned” to various parties the DEED was detrimentally affected in a number ways, including but, not limited to: that the power of sale inherent in the DEED was severed, because the subsequent parties were no longer holders in due course as a matter of law,  that on April 3, 2011, on the national program “60 Minutes”, two former employees of DOCX made admissions which entirely support the allegations set forth in Paragraphs 12 and 13, herein. During said program, former employee, Chris Pendley [sic] stated that he personally drafted the name of “Linda Green” on thousands and thousands of assignments, although he was not Linda Green, that he was signing in excess of 2,500 documents per day, and that he was paid the sum of ten ($10.00) per hour to forge the name of “Linda Green” and that he made no inspection of any documents to determine whether the execution of the assignment was lawful, had no training to make an inspection of documents to determine if the assignment was lawful, and was told by his superiors that his execution of the name Linda Green was lawful, on April 3, 2011, Linda Green, a former employee of DOCX, appeared on the aforementioned “60 Minutes” program and stated that she worked in the mailroom of DOCX and eventually signed some documents, that although she was listed as a vice president of several companies, that she had no connection with those companies, and that she was aware that her signature was being used by several other persons on assignments because her name was short and easy to spell, that Linda Green, acting in her capacity as an employee of DOCX allowed her name to forged upon literally thousands of purported assignments, although Linda Green never executed those assignments, never inspected those assignments, and that DOCX simply listed that Linda Green was a vice president at various Banks and lending institutions, however, Linda Green was not lawfully a vice president, and the assertion that Linda Green was a vice president was an artifice. Plaintiffs further allege that Linda Green’s name fraudulent appeared on documents for the following institutions: 11-11-2004 & 06-22-2006 Vice President, Loan Documentation, Wells Fargo Bank, N.A., successor by merger to Wells Fargo Home Mortgage, Inc.; 08-11-2008 & 08-14-2008 Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for American Home Mortgage Acceptance, Inc.; 08-27-2008 Vice President, American Home Mortgage Servicing as successor-in-interest to Option One Mortgage Corporation; 09-19-2008 Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for American Brokers Conduit; 09-30-2008; Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for American Home Mortgage Acceptance, Inc.; 09-30-2008 Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for American Brokers Conduit; 10-08-2009 Vice President & Asst. Secretary, American Home Mortgage Servicing, Inc., as servicer for Ameriquest Mortgage Corporation; 10-16-2008 Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for American Home Mortgage Acceptance, Inc.; 10-17-2008, 11-20-2008 Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for American Brokers Conduit; 11-20-2008 Vice President, Option One Mortgage Corporation; 12-08-2008 Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for American Brokers Conduit; 12-15-2008 Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for HLB Mortgage; 12-24-2008 Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for American Home Mortgage Acceptance, Inc.; 12-26-2008 Vice President, American Home Mortgage Servicing, Inc.; 01-13-2009 Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for Family Lending Services, Inc.; 01-15-2009 Vice President, Mortgage Electronic Registration Systems, Inc., acting solely as nominee for American Home Mortgage Acceptance, Inc.; 02-03-2009 Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for American Brokers Conduit; 02-05-2009 Vice President, Mortgage Electronic Registration Systems, Inc., acting solely as nominee for

American Home Mortgage Acceptance, Inc.; 02-24-2009 Vice President, American Home Mortgage Servicing, Inc. as successor-in-interest to Option One Mortgage Corporation;

02-25-2009 Vice President, Bank of America, N.A.; 02-27-2009 Vice President, American Home Mortgage Servicing, Inc., as successor-in-interest to Option One Mortgage Corporation;

03-02-2009 Vice President, Mortgage Electronic Registration Systems, Inc., acting solely as nominee for American Home Mortgage; 03-04-2009 Vice President, Argent Mortgage Company, LLC by Citi Residential Lending Inc., attorney-in-fact; 03-06-2009 & 03-20-2009 Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for American Home

Mortgage Acceptance, Inc.; 04-15-2009, 04-17-2009, 04-20-2009 Vice President, Bank of America, N.A.; 05-11-2009, 07-06-2009 Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for American Home Mortgage Acceptance, Inc.; 07-14-2009 Vice

President, Bank of America, N.A.; 07-15-2009 Vice President & Asst. Secretary, American

Home Mortgage Servicing, Inc., as servicer for Deutsche Bank National Trust Company, as trustee for, Ameriquest Mortgage Securities, Inc. asset-backed pass through certificates, series 2004-R7, under the pooling and servicing agreement dated July 1, 2004; 07-30-2009 Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for American Home

Mortgage Acceptance, Inc.; 08-12-2009 Vice President, Sand Canyon Corporation f/k/a Option One Mortgage Corporation; 08-28-2009 Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for American Home Mortgage Acceptance, Inc.; 09-03-2009

Asst. Vice President, Sand Canyon Corporation formerly known as Option One Mortgage

Corporation; 09-03-2009 Asst. Secretary, Mortgage Electronic Registration Systems, Inc., acting solely as nominee for American Home Mortgage; 09-04-2009 Asst. Secretary, Mortgage Electronic Registration Systems, Inc., acting solely as nominee for American Home Mortgage;

09-08-2009 Vice President, Bank of America, N.A.; 09-21-2009 & 09-22-2009 Vice President, Mortgage Electronic Registration Systems, Inc., as nominee for American Home Mortgage Acceptance, Inc. Plaintiffs further allege that Linda Green was never lawfully the vice president of any entity, more particularly the foregoing listed entities, that Defendant DOCX was a continuing criminal enterprise whose sole function was to create and forge fraudulent assignments which would purport to convey interests in real property and the entities listed in Paragraph 21 hereinabove, were complicate in Defendants’ fraud, that beginning circa 2007 and continuing until sometime in 2010, DOCX produced thousands upon thousands of false and fraudulent assignments which were recorded in the Offices of the County Recorders of the State of California, and several other States in the United States of America as well, allege that during the “60 Minutes” program on April 3, 2011, another former DOCX employee, Savonna Krite [sic] acted as a notary public and notarized that the signatures of Linda Green and others, were valid, however, she admitted that the notarizations were not that of Linda Green. Savonna Krite [sic] further admitted that she was told by officers of DOCX that it was “alright” for her to notarize signatures as being valid. Savonna Krite [sic] also admitted as of the program that she now understands that her notarizations of said assignments were “not alright,” that because the entire company structure of DOCX was to manufacture forged assignments by the thousands per day, without any consideration whatsoever that the information contained on those assignments was valid, and that the notarizations were in fact fraudulent, that no reasonable expectation can be made that any of the assignments executed by DOCX employees were or are valid, that circa July 2008, Defendants, and each of them, utilized the services of DOCX in order to manufacture a fraudulent assignment from Defendant AMERICAN to WELLS FARGO, because WELLS FARGO could not find documents which would demonstrate that it owned an interest in the Plaintiffs’ subject property, that WELLS FARGO never had a lawful interest in the Plaintiffs’ subject property, either in its own capacity or as that as Trustee for the SOUNDVIEW HOME LOAN TRUST 2007-OPT2, that they fully tendered all mortgage payments which were

lawfully due under the DEED, and that they are not in default of their payments, having lawfully

tendered all amounts due and owing, that WELLS FARGO made demands for payment as against the DEED, however, Plaintiffs allege that WELLS FARGO was not a lawful holder in due course, that SOUNDVIEW HOME LOAN TRUST 2007-OPT2 was not a lawful holder in due course, and that neither party had any lawful right, title and interest in the DEED, that on or about, _______________, Defendant DOCX at the request of Defendants, and each of them, forged an instrument (hereinafter “FORGED ASSIGNMENT”) with the name “Linda Green” which was notarized by “Ellis Simmons,” that on or about, _______________, an unknown employee of DOCX, in the course and scope of their employment, signed the name “Linda Green” and that such document had a notary stamp placed upon the FORGED ASSIGNMENT which purported to be lawfully notarized by “Ellis Simmons,” that the FORGED ASSIGNMENT was then sent by DOCX through the United States Postal Service or transmitted by facsimile over the telephone and telegraph wires of the United States of America to Defendants, and each of them, in order that such FORGED ASSIGNMENT would be recorded in the Office of the County Recorder of the County of _______________, that on or about _______________, that Defendants, and each of them, their employees and/or agents, caused the FORGED ASSIGNMENT which unlawfully affected Plaintiffs’ subject property to be recorded in the Office of the Country Recorder of the County of _______________ as Instrument No. _______________. A true and correct copy of the assignment set forth in Paragraphs 30 – 31, is attached hereto as Exhibit “A”, and is incorporated by this reference, that the sole claim of Defendants, and each of them, as to their right, title and/or interest in the Plaintiffs’ Subject Property is the  FORGED ASSIGNMENT, that the FORGED ASSIGNMENT as a matter of law is void and that it did not constitute a conveyance of an interest to Defendants, or to anyone at all, and that the FORGED ASSIGNMENT is a legal nullity, that Defendants, and each of them, are presently relying upon the FORGED ASSIGNMENT and are knowingly and intentionally prosecuting a non-judicial foreclosure based solely upon the recordation of the FORGED ASSIGNMENT, necessitating the instant action, and as such, the Defendants set forth herein have no right, title and interest in the Subject Property, whereas, Defendants contend that all of their acts and/or omissions were lawful and that Wells Fargo Bank, N.A. as Trustee of the Soundview Home Loan Trust 2007-OPT2.

WHEREAS, Plaintiffs Manuel A Madrid and Virginia J. Madrid pray for Judgment as follows:

FOR THE FIRST AND THIRD CAUSES OF ACTION:

1.         For an Order, restraining Defendants, and their agents, employees, officers, attorneys, and representatives from engaging in or performing any of the following acts: (i) proceeding with the non-judicial foreclosure without an Order of this court, (ii) offering, or advertising this property for sale and (ii) attempting to transfer title to this property and or (iii) holding any auction therefore;

2.         For general damages subject to proof at time of trial;

3.         For special damages subject to proof at time of trial;

4.         For punitive damages subject to proof at time of trial;

5.         For costs of suit herein;

6.         For reasonable attorney’s fees provided by contract or statute; and

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

FOR THE SECOND CAUSE OF ACTION:

1.         For general damages according to proof at time of trial;

2.         For special damages according to proof at time of trial;

3.         For costs of suit incurred herein;

4.         For reasonable attorney’s fees provided by contract or statute; and

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

FOR THE FOURTH CAUSE OF ACTION:

1.         For an Order cancelling Instrument No. _______________, which was recorded on August in the

Office of the Country Recorder of the County of _______________;

2.         For costs of suit incurred herein;

3.         For reasonable attorney’s fees as provided by contract or statute; and

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

FOR THE FIFTH CAUSE OF ACTION:

1.         For an Order quieting title to the Subject Property from _______________;

2.         For costs of suit incurred herein;

3.         For reasonable attorney’s fees subject to proof at time of trial; and

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

FOR THE SIXTH CAUSE OF ACTION:

1.         For a declaration that Defendants do not have a right, title and interest in the Subject Property;

2.         For costs of suit incurred herein;

3.         For reasonable attorney’s fees subject to proof at time of trial; and

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

Dated:  _______, 2011                                                LAW OFFICES OF

                                                                                    TIMOTHY L. MCCANDLESS

 

 

 

                                                                                    __________________________________

                                                                                          Timothy L. McCandless, Esq.,

Attorney for Plaintiffs

VERIFICATION

I, Timothy L. McCandless am the attorney of record for Plaintiffs in the above-entitled action. The Plaintiffs are either absent from the County of Los Angeles where my office is located, or is otherwise unable to verify this complaint, or the facts are within the knowledge of the undersigned. For this reason, I am making this verification.

I have read the foregoing Complaint and know of its contents. I am informed and believe the matters therein to be true, and on that ground, allege that the matters stated in it are true.  I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed at San Bernardino, California

DATED: __________, 2011

         ____________________________

                         Timothy L. McCandless, Esq.

THE GREAT SECURITIZATION SCAM AND THE GREAT RECESSION

By Neil Garfield

 

            Both the class action lawyers and the AG offices are looking for settlements that will cure the “foreclosure” problem. This is based upon the perceived benefit of getting the foreclosures either litigated or settled, SO THE “MARKET” CAN RESUME “FORWARD” MOTION. But what if the basic transaction was so defective as to be incapable of understanding, much less enforcement?  We ignore the fact that the basic transaction was a lie, that lies are not enforceable and while they could be modified by agreement into enforceable written instruments (completely absent from the current landscape) the inescapable fact is that in order to do so, you will need the signature of borrowers on loans that are based upon fair market values, reality and set-off for the damages inflicted on the homeowners by the Great Securitization Scam.

 

            So we start with the myth that there was a valid legal contract at origination, an assumption that upon examination by a paralegal, much less a first-year law student, is patently untrue.  Thus we proceed with the following ten (10) lies that form the foundation of our impotent financial and economic policies in the Great Recession triggered by the housing crisis:

1. 1.       VALID MORTGAGE TRANSACTION: There was a loan of money, but not by either the payee, the mortgagee, the trustee or anyone else that is mentioned in the closing papers or the foreclosure papers filed anywhere. That is why the pretenders would rather play with the word “holder” than “creditor.”

1. 2.       LEGAL MORTGAGE TRANSACTION: Even if the right parties were at the table, the transaction was illegal because of appraisal fraud, underwriting fraud, Securities Fraud and Servicing Fraud.

1. 3.       LEGAL LOAN: Even if the right parties were at two different tables, the transaction was illegal because of ratings fraud, securities fraud, common law fraud, predatory loan practices and servicing fraud.

1. 4.       KNOWN CREDITOR: Neither the investor who was the source of funds, nor the investment banker who only committed SOME of those funds to loan transactions, nor the borrower (homeowner) even knew of the existence of each other. After the “reconstituted” bogus mortgage pools that never existed in the first place, payments by insurance, credit de fault swaps, and federal  bailouts, it is at the very least a question of fact to determine the identity of the creditor at any given point in time — i.e., to whom is an obligation owed and how many parties have liability to pay on that transaction either as borrower, guarantors, insurers, or anything else? The dart board approach currently used in foreclosures and mortgage modifications, prepayments and refinancing has generally been frowned upon by the Courts.

1. 5.       KNOWN OBLIGATION AMOUNT: The amount advanced by the Lender (investor in bogus mortgage bonds) was far in excess of that amount used by intermediaries to fund mortgages — the rest was used to create synthetic derivative trading devices and charge fees every step of the way. Part of the difference between the funding of the residential loans and the amount advanced by the lender (investor) is easily computed by applying the same formula used to compute a yield spread premium that was paid to mortgage brokers under the table. By obscuring the real nature of the loans in the mix that offered (sold forward without ownership by the investment bank with the intent of acquiring he mortgages later) a 6% return promised to an investor could result in a yield spread premium of perhaps 12% if the loan was toxic waste and the nominal rate was 18%. Thus a $900,000 investment was converted into a $300,000 loan with no hope of repayment based upon a wildly inflated appraisal. Payments by servicers, counterparties, guarantors, insurers and bailout agencies were neither credited to the investor nor to the obligation owed to that investor. Since there was no obligor other than the homeowner according to the documents creating the securitization scam infrastructure, the borrower was part of a transaction where he “borrowed” $900,000 but only received $300,000. Third party payments made under expressly and carefully written waivers of subrogation were not applied to the amount owed to the investor and therefore not applied to the amount owed by the borrower. The absence of this information makes the servicer “accounting” a farce.

1. VALID ACCOUNTING BY ALL PARTIES: Continuing with the facts illuminated in the preceding paragraph, both mortgage closing documents and foreclosure documents are devoid of any reference to the dozens of transactions carried out in the name of, or under agency of, or as constructive trustee of the investor who as lender is obliged to account for the balance due after third party payments.

---

How To Handle Bank of America Loan Modification Denials

April 30, 2011 by Filed under Loan modification advice Leave a comment One of the most tough financial institutions to deal with, it seems, when it comes to Loan Modification is Bank of America, here is the experience of successful mortgage owners when dealing with Bank of America: “For the last year I have been working with a good friend of mine in order to get her Bank of America first mortgage modified. And they finally approved the modification. Payments are going from around $1800 to $1300. To make a long story short, your income, how much you owe and other factors doesn’t determine whether you get a modification or not. Persistance is key with dealing with these people. Another thing key is putting pressure on the bank, through complaints, repeated phone calls and letters. You have to realize that Bank of America really doesn’t want to approve any modificiations, at least in California and most of the ones they do approve are completely inadequate. So it requires a lot in order to get them to approve an adequate one.” Here is Another advice: “You are going to have to play very hard ball with Bank of America. Be prepared for to call them at least twice a week for some months. The loan modification for my friend took a year. Never take no for an answer from B of A. Continue to pressure the bank and you will achieve victory. Start by calling the office of the CEO. The phone number is 704-386-5687 begin_of_the_skype_highlighting 704-386-5687 end_of_the_skype_highlighting. If that number is busy, you can call the numbers for Bank of America headquarters. The number is 704-386-5972 begin_of_the_skype_highlighting 704-386-5972 end_of_the_skype_highlighting. When you get the operator, you ask for the office of the CEO. When you get someone on the phone, explain that you need someone to help you modify the mortgage and nobody else was willing to work with you. You have been a customer with the bank for a long time and really want to work with them, but in all honesty, you are facing financial issues and you don’t want to be forced to file for bankruptcy. You also have to explain that you want to stay in your home but you need a heavy reduction in the payment, at least 50%. I know that they most likely aren’t going to give that to you, but you have to propose something. They will transfer you to a manager who should start the ball rolling. However, even with a manager helping you, it is best, at the same time to reach out to government officials and agencies so that they can apply pressure on Bank of America. You should start by reaching out to your senator and congressperson about this situation. Write them letters and request assistance. Also file a complaint on Bank of America with the OCC, Office of the Comptroller of the Currency which is the regulator of Bank of America. One tactic which I used while helping my friend is in addition to filling a complaint myself, I reached out to one of the aide’s to her congressman. I got that person to complain to the OCC about Bank of America and our situation. Drumming up external pressure on this bank is KEY. As I said before, they do not want to help you or any homeowner but if you generate enough pressure through complaints they will eventually act. But be prepared for a battle.” For those who are finding hard to get loan modification from Bank of America, try to implement these strategies, and best of luck.