Federal Form

28 Mar

TIMOTHY L. MCCANDLESS, ESQ. SBN 147715

LAW OFFICES OF TIMOTHY L. MCCANDLESS

 

 

 

 

Attorney for Plaintiff(s)

(Plantiff Name(s)

 

SUPERIOR COURT FOR THE STATE OF CALIFORNIA

IN AND FOR COUNTY OF «County»

 

PLAINTIFF(s)

Plaintiff,

V.

 

DEFENDANTS

and DOES 1 through 50 inclusive

Defendants.  

CASE NO:

 

COMPLAINT FOR:

  1. DECLARATORY RELIEF
  2. CANCELLATION OF DEED
  3. DAMAGES ARISING FROM:
  4. BREACH OF FIDUCIARY DUTY
  5. BREACH OF COVENANT OF GOOD FAITH AND FAIR DEALING
  6. INJUNCTIVE RELIEF
  7. FRAUD
  8. DAMAGES ARISING FROM:

VIOLATION OF [15 U.S.C. § 1611 et seq.]; VIOLATION OF [26 U.S.C. § 2605 et sq.]; VIOLATION OF [15 U.S.C. § 1602 et seq.]; VIOLATION OF [15 U.S.C. § 1692];

   

COMES NOW, Plaintiff(s) PLANTIF(s) NAME, hereby

complains and alleges as follows:

ALLEGATIONS COMMON TO ALL COUNTS

  1. Plaintiff(s), PLAINTIFF(s) NAME is a resident of the County of «County» and the owner of certain real property (hereinafter referred to as “the Property”) located at ADDRESS and more particularly described as: «Property_Description»
    APN: «APN_Number»
  2. Defendant ON DEED OF TRUST (hereinafter referred to as “SHORT NAME”.
  3. Defendant ON DEFAULT (hereinafter referred to as “SHORT NAME”.
  4. The true names of Defendants named herein as DOES 1 through 50, whether individual, corporate, associate or otherwise, are presently unknown to Plaintiff(s) who therefore, sues said Defendants by such fictitious names; Plaintiff(s) are informed and believes and thereon alleges that each of the Defendants so designated herein proximately caused and contributed to the damages herein alleged, and Plaintiff(s) will ask leave of Court to amend this Complaint to insert the true names and capacity of DOES 1 through 50 when the same have been ascertained and to join such Defendants in this action.
  5. Plaintiff(s) are informed and believes and thereon alleges that, at all times herein mentioned each of the defendants sued herein in relation to the property they claim an interest in was the agent and employee of each of the remaining defendants thereof and at all times was acting within the purpose and scope of such agency and employment.
  6. On or about DATE OF DEED, Plaintiff(s) executed an “Adjustable Rate Note” promising to pay PLAINTIFF(s) NAME the sum LOAN AMOUNT FROM DEED? 1ST DEED? 2ND DEED? by monthly payment.
  7. The Adjustable Rate Note was based upon a six-month adjustable rate.
  8. Plaintiff(s) allege that Defendants and each of them neither explained the workings of the rate, how it is computed nor its inherent volatility.
  9. Further, on information and belief, Plaintiff(s) allege that the Defendants charged and obtained improper fees for the placement of his loan as “sub-prime” when he qualified for a prime rate mortgage which would have generated less in fees and interest.     
  10. On information and belief, Plaintiff(s) allege that the service of the purported note was, without his knowledge, by some means transferred from or by Defendant, either completely or by association or other means to DOE 1 who unknown to Plaintiff provided services in various forms to be determined to others which were of such a nature to render them a “Servicer” within the definition found within 26 U.S.C. § 2605.
  11. In the course of this consumer transaction, Defendants violated 15 U.S.C. § 1635(a) and Regulation Z, § 226, by failing to deliver to Plaintiffs two copies of a notice to rescind (DO WE HAVE ONE? IF NOT, REMOVE) that: Attached her as Exhibit “???
  12. Also on DATE OF DEED Plaintiff(s) executed a “Deed of Trust” which cited the lender as LENDER Attached her as Exhibit “???
  13. On or about DATE OF DEED, PLAINTIFF(s) NAME transferred the deed of trust to DEFENDANT.
  14. Also on DATE OF DEED, Plaintiff(s) executed a “Deed of Trust” which cited the lender as LENDER and stating in the definition section that:

    (E) “MERS” is Mortgage Electronic Registration Systems, Inc. MERS is a separate corporation that is acting solely as a nominee for Lender and Lender’s successors and assigns. MERS is the beneficiary under this Security Instrument.

    1. On or about DATE OF DEED, the Deed of Trust was recorded with the «County» County Recorder and DEFENDANT was named as Trustee of the Deed of Trust.
    2. On or about «Transfer_Date», Plaintiff(s) received a “Mortgage Loan Statement” from DEFENDANT ON MORTGAGE LOAN for the property address: ADDRESS for loan number.
    3. The Mortgage Loan Statement included a coupon for payment with a mailing address for DEFENDANT ON MORTGAGE LOAN.
    4. On or about DEFAULT DATE an unknown employee of DEFENDANT ON DEFAULT executed on behalf of the alleged Beneficiary a “Notice of Breach and Default and of Election to Cause Sale of Real Property Under Deed of Trust” (hereinafter referred to as “Notice of Breach”) stating that the payments were due to Mortgage Electronic Registration Systems as Beneficiary. Attached here as Exhibit “???”.

    5. On the Notice of Breach, it stated, in part, that Plaintiff(s) as Trustor, to secure certain obligations in favor of Mortgage Electronic Registration Systems, as beneficiary.

    6. It further states that:

        That by reason thereof of the present Beneficiary under such deed of Trust has executed and delivered to said duly appointed Trustee a written Declaration of Default and Demand for Sale and has deposited with said duly appointed Trustee such Deed of Trust and all documents evidencing obligations secured thereby and has declared and does hereby declared all sums secured thereby immediately due and payable and has elected and does hereby elect to cause the trust property to be sold to satisfy the obligations served thereby.

     

    The Notice of Breach also states:

    You may have the right to cure the default hereon and reinstate the one obligation secured by such Deed of Trust above described. Section … permits certain defaults to be cured upon the Payment of the amounts required by that statutory section without requiring payment of that portion of principal and interest which would not be due had no default occurred. Where reinstatement is possible, if the default is not cured within 35 days following the recording and mailing of this Notice to Trustor or Trustor’s successor in interest, the right of reinstatement will terminate and the property may thereafter be sold.

     

  1. Plaintiff(s) are informed and believe and thereupon allege that the NOTE was invalid and unenforceable due to the intentional and willful violations including but, not limited to: provisions contained in the Truth In Lending Act 15 U.S.C. 1601, 1640 etc. et seq.; Regulation Z 226 etc. et seq. by failing and/or refusing to provide plaintiff with two copies of the “Notice to Cancel” ; California Civil Code 2924b etc. et seq., California Civil Code §§§ 2924b(a), 2924b(d), 2924b(e) by failing and/or refusing to mail the Notice of Default within ten business days to Plaintiffs, by failing and/or refusing to post and mail the Notice of Default; by failing and/or refusing to mail Plaintiffs the Notice of Default within one month pursuant to California Civil Code § 2924b (c)(1), (2); by failing and/or refusing to properly set the sale date pursuant to California Civil Code § 2924f(b); by failing and/or refusing to publish the Notice of Sale twenty days prior to the date set for sale pursuant to California Civil Code § 2924f(b); by failing and/or refusing to record the Notice of Sale pursuant to California Civil Code § 2924g(d).

 

FIRST CAUSE OF ACTION

    (Violation of 15 U.S.C. § 1611 et seq.)

    Against all Defendants

 

  1. Plaintiff(s) repeats and realleges Paragraphs 1 through 22 as though fully set forth herein.
  2. On information and belief, Plaintiff(s) allege that Defendants and each of them are directly or indirectly agents or employees or persons actively involved in the extension of credit as the term is defined under the Truth in Lending Statute (TILA).
  3. On information and belief, Plaintiff(s) allege that Defendants and each of them are subject to the requirements of the Truth in Lending Statute (TILA) and have violated the requirements of the act in that among other things:

        A.    They have refused and continued to refuse to validate or otherwise make a full accounting and the required disclosures as to the true finance charges and fees;

        B.    They have improperly retained funds belonging to Plaintiff in amounts to be determined;

        C.    To disclose the status of the ownership of the loans.

  1. Plaintiff(s) further alleges that these violations are such as to require rescission or cancellation of the loan herein and return of all funds received by Defendants from Plaintiff.
  2. Plaintiff(s) further alleges that he is entitled to compensatory damages in an amount to be determined at trial.
  3. Plaintiff(s) further alleges that he is entitled to attorneys fees according to statute in the event that he retains counsel.
  4. On information and belief, Plaintiff(s) allege that Defendants have acted in violation of the TILA act, willfully, maliciously, oppressively and fraudulently and in conscious disregard for the rights of Plaintiff and as such, Plaintiff is entitled to punitive damages.

    

SECOND CAUSE OF ACTION

    (Violation of 26 U.S.C. § 2605 et seq.)

    Against all Defendants

 

  1. Plaintiff(s) repeats and realleges Paragraphs 1 through 29 as though fully set forth herein.
  2. Based upon information and belief, and on that basis Plaintiff(s) allege that Defendants and each of them are such that they fall within the requirements of the Real Estate Settlement Procedures Act (RESPA).
  3. Based upon information and belief, and on that basis Plaintiff(s) allege that Defendants and each of them, placed loans for the purpose of unlawfully increasing or otherwise obtaining yield spread fees and sums in excess of what would have been lawfully earned.
  4. Based upon information and belief, and on that basis Plaintiff(s) allege that Defendants DEFENDANTS NAMES and DOE 1 either individually or jointly as “Servicers” as that term is used with the RESPA act and either individually or jointly violated the requirements of 26 U.S.C. § 2605(B) in that the servicing contract or duties thereunder were transferred or hypothecated without the required notice.
  5. Plaintiff(s) allegesthat these violations require rescission or cancellation of the loan and a return of all funds received by Defendants from Plaintiff.
  6. Plaintiff(s) further allege that he is entitled to compensatory damages in an amount to be determined at trial.
  7. Plaintiff(s) further allege that he is entitled to attorneys fees according to statute in the event that they retain counsel.

THIRD CAUSE OF ACTION

    (Violation of 15 U.S.C. § 1602 et seq.)

Against all Defendants.

 

  1. Plaintiff(s) repeats and realleges Paragraphs 1 through 29 as though fully set forth herein.
  2. Based upon information and belief, and on that basis Plaintiff(s) alleges that the mortgage obtained by her through Defendants, by means unknown obtained and enforced by other Defendants herein falls within the purview of 15 U.S.C. § 1602 et seq., commonly known as the “Home Ownership and Equity Protection Act of 1994 (HOEPA).
  3. Based upon information and belief, and on that basis Plaintiff(s) alleges that the loan was placed in violation of the HOEPA act as it was placed and administered and otherwise utilized without regard to Plaintiff’s income or cash flow and with the intention of inducing a default.
  4. Plaintiff(s) became aware of this upon the discovery of Defendants’ intent to wrongfully foreclose and sell his property.
  5. As a direct and a legal consequence of the above actions, Plaintiff(s) have been damaged in a sum to be proven at trial.

    

FOURTH CAUSE OF ACTION

    (Violation of 15 U.S.C. § 1692)

    Against all Defendants

    

  1. Plaintiff(s) repeats and realleges Paragraphs 1 through 34 as though fully set forth herein.
  2. Based upon information and belief, and on that basis Plaintiff(s) allege that Defendants and each of them are “debt collectors” either directly or through agents as that term is used in the United States Code.
  3. Plaintiff(s) alleges that he duly and properly on more than one occasion requested validation of the “debt” under 15 U.S.C. § 1692, the Fair Debt Collection Practices Act (FDCPA).
  4. Plaintiff(s) further allege that Defendants did not respond to his demands in such a ways as to meet the requirements of the act.
  5. Plaintiff(s) are entitled to statutory damages under the FDCPA.

    

FIFTH CAUSE OF ACTION

    (Breach of Fiduciary Duty)

    Against all Defendants

 

  1. Plaintiff(s) repeats and realleges Paragraphs 1 through 39 as though fully set forth herein.
  2. At all times relevant, Defendants created, accepted and acted in a fiduciary relationship of great trust and acted for and were the processors of property for the benefit of Plaintiff(s).
  3. Defendants further placed themselves in a position of trust by virtue of the expertise represented by and through his employees.
  4. Defendants breached his fiduciary duties owed to Plaintiff(s) as they have acted and continue to act for his own benefit and to the detriment of Plaintiff(s).
  5. Among other things, they have placed and negotiated loans without due care to the best interests of Plaintiff(s) or for the protection of his rights.
  6. As a direct and proximate result of the breach of the fiduciary duties, Plaintiff(s) have suffered economic damages and loss of funds and payment of fees improperly incurred in an amount to be proved at trial.
  7. On information and belief, Plaintiff(s) alleges that Defendants have acted willfully, maliciously, oppressively and fraudulently and in conscious disregard for the rights of Plaintiff(s) and as such, Plaintiff(s) are entitled to punitive damages.

 

SIXTH CAUSE OF ACTION

    (Breach of Covenant of Good Faith and Fair Dealing)

    Against all Defendants

 

  1. Plaintiff repeats and realleges Paragraphs 1 through 46 as though fully set forth herein.
  2. Plaintiff alleges that at all times there existed an implied covenant of good faith and fair dealing requiring Defendants, and each of them, to safeguard, protect, or otherwise care for the assets and rights of Plaintiff(s). Said covenant prohibited Defendants from activities interfering with or contrary to the rights of Plaintiff(s).
  3. Plaintiff alleges that the commencement of foreclosure proceedings upon the property lawfully belonging to Plaintiff without the production of documents demonstrating the lawful rights for the foreclosure constitutes a breach of the covenant.
  4. As a direct and proximate result, Plaintiff has been damaged in a sum to be proven at trial.

 

 

 

SEVENTH CAUSE OF ACTION

    (Injunctive Relief)

    Against all Defendants

 

  1. Plaintiff(s) repeats and realleges Paragraphs 1 through 50 as though fully set forth herein.
  2. Plaintiff seeks a determination as to the legal status of the parties to the Adjustable Rate Note and the Deed of Trust.
  3. The Adjustable Rate Note states that the Lender is LENDER NAME.
  4. It also states, “Lender or anyone who takes this Note by transfer and who is entitled to receive payment under this Note is called the “Note Holder.”

  5. DEFENDANT TRUSTEE SALE DATE? sent to Plaintiff(s) a statement dated on or around «Transfer_Date»(trustee date) with a coupon asking for payment.
  6. The Notice of Breach signed on or about DATE and states that MERS is the Beneficiary.
  7. Plaintiff(s) say they are entitled to the money
  8. The deed of trust “states that “Mortgage Electronic Registration Systems” is the beneficiary.
  9. There is a controversy to be decided by this Honorable Court as on or about DATE OF DEED Plaintiff(s) received a Deed of Trust stating that the money is owed to Mortgage Electronic Registration Systems, but on or about DATE OF TRUSTEE SALE? DEED? Plaintiff(s) received notice that the payments were due to Defendants and on NOITCE OF DEFAULT the Notice of Breach states that MERS is the Beneficiary.
  10. Additionally, based upon information and belief, Mortgage Electronic Registration Systems has not qualified to do business in the State of California and therefore, would not have standing to seek non-judicial remedies as well as judicial remedies.
  11. Defendants should be required to provide the original note with the appropriate endorsements thereon to Plaintiff(s) or this Honorable Court so that it may determine in accordance with the California Revised Statutes, who owns the right to receive payments on loan number and exercises the rights relating to said ownership.
  12. Only the Note Holder is authorized to collect payments and, in the event of a default, commence foreclosure proceedings, including authorizing the substitution of a Trustee.
  13. Until Defendants are able to provide Plaintiff(s) and this Honorable Court the aforementioned documents, this Honorable Court should order that Plaintiff(s) are not required to make any further payments on the Adjustable Rate Note and enjoin any further collection activity on the Note, including staying the count down towards the date a Notice of Trustee’s sale may be filed and served.

    

EIGHTH CAUSE OF ACTION

    (Injunctive Relief)

    Against all Defendants

 

  1. Plaintiff repeats and realleges Paragraphs 1 through 70 as though fully set forth herein.
  2. Plaintiff(s) are the owner in fee simple of the real property located at ADDRESS and more particularly described as:«Property_Description» APN: «APN_Number»
  3. Plaintiff(s) received the fee simple title by virtue of the Grant, Bargain, Sale Deed recorded in the Office of the County Recorder, «County» County, California.
  4. Defendants ALL DEFENDANTS claim an interest or estate in the Plaintiff (s) property disputing or denying Plaintiff’s rights to ownership and by contending that his ownership is or will be with Defendants by means of a Trustee’s sale.
  5. Plaintiff alleges that Defendants, ALL
    DEFENDANT have no such right, title or interest in the estate of the Property in that the Trustee’s sale proposed will be fraudulent or otherwise in violation of federal and state law and transfer no rights to Defendants.
  6. Defendants have wrongfully interfered with or threaten to interfere with Plaintiff’s use and enjoyment of the Property in that they threaten to dispossess them.
  7. Defendants’ threats to dispossess Plaintiff(s) of his home will continue unless and until enjoined or restrained by this Honorable Court.
  8. Failure to enjoin or restrain Defendants will cause Plaintiff(s) grave and irreparable harm as they will be deprived of the use and enjoyment of unique property.
  9. Plaintiff(s) have no adequate remedy at law for the threatened and continuing conduct of the impending Trustee’s sale. The sale of Plaintiff’s home will not be properly compensated by an award of money damages.
  10. Plaintiff(s) further allege that the conduct herein described is of such a nature and character to give them title to the Property

    

NINTH CAUSE OF ACTION

    (For Declaratory Relief)

    Against all Defendants

 

  1. Plaintiff(s) repeats and realleges Paragraphs 1 through 80 as though fully set forth herein.
  2. A dispute has arisen between and among Plaintiff(s) and Defendants and each of them as to the duties and obligations of the respective parties with regard to the loan or the foreclosure.
  3. These disputes concern but are not limited to the ownership rights and the validity of the commencement of the foreclosure process.
  4. As to these issues, Plaintiff(s) are required to seek this relief.
  5. Plaintiff(s) further alleges that a declaration of rights and duties of the parties herein are essential to determine the actual status and validity of the loan, deed of trust, nominated beneficiaries, actual beneficiaries, loan servicers, trustees instituting foreclosure proceedings and related matters.

    

TENTH CAUSE OF ACTION

    (Fraud)

    Against all Defendants

 

  1. Plaintiff(s) repeats and realleges Paragraphs 1 through 85 as though fully set forth herein.
  2. Plaintiff(s) seek a determination as to the legal status of MERS as the Deed of Trust states that “MERS is a separate corporation that is acting as Beneficiary for Lender’s successors and assigns.”
  3. Based upon information and belief and on that basis, Plaintiff alleges that MERS did not pay any consideration for the Adjustable Rate Note and in fact was paid a fee by LENDER to act solely as Beneficiary as lender.
  4. Based upon information and belief, and on that basis Plaintiff(s) alleges that MERS will only notate on its internal record keeping system the name of the beneficiary of the deeds of trust and will never tell the trustors the name of the true beneficiary.
  5. As a result, the loan may be transferred from company to company, or bundled together with other loans, pledged to quasi-governmental agencies and then sold as securities on the stock exchange.
  6. This practice allows the beneficiary to allegedly be changed without the necessity of completing an “assignment of deed of trust”, obtaining the appropriate signatures, and recording the assignment with the «County» County Recorder and otherwise notifying Plaintiff(s) of a change in his beneficiary.
  7. Courts across the United States have held that MERS, named as a nominee or Beneficiary, does not have the standing of the beneficiary to enforce the Deed of Trust through the foreclosure process.
  8. Defendants DEFENDANT NAMES and MERS, and each of them, made a representation to Plaintiff on DATE OF DEED that MERS had the rights and standing of a beneficiary under California law.
  9. This statement was made on the Deed of Trust and presented to Plaintiff(s) at the offices of the Title Company on DATE OF DEED.
  10. When Defendants and MERS, and each of them made the representation that MERS was the beneficiary under the Deed of Trust, they both knew that the statement was false when made.
  11. The statement was made to have Plaintiff(s) rely on the misrepresentation by executing the Deed of Trust and Plaintiff did actually rely on the misrepresentation by his signatures affixed to the Deed of Trust on DEED OF TRUST DATE.
  12. Plaintiff(s) have been damaged as a result of said reliance as they have had the title to the Property slandered as a result of the filing of the Notice of Breach.
  13. Plaintiff(s) have been further damaged by the necessity of seeking judicial intervention to prevent the foreclosure of the Property.
  14. On information and belief, Plaintiff(s) alleges that Defendants and MERS have acted willfully, maliciously, oppressively and fraudulently and in conscious disregard for the rights of Plaintiff and as such, Plaintiff are entitled to punitive damages.

ELEVENTH CAUSE OF ACTION

(For Fraud)

Against ALL DEFENDANTS

  1. Plaintiff(s) repeats and realleges Paragraphs 1 through 99 as though fully set forth herein.
  2. On or about NOTICE OF DEFAULT an unknown employee of DEFENDANT ON DEFAULT executed on behalf the alleged Beneficiary, DEFENDANT ON DEFAULT,
    a “Notice of Default” which stated that the payments were due to MERS as Beneficiary. “Notice of Breach and Default and of Election to Cause Sale of Real Property Under Deed of Trust” (hereinafter referred to as “Notice of Breach”).
  3. On the Notice of Breach, it stated, in part, that Plaintiff(s) as Trustor, to secure certain obligations in favor of MERS, as beneficiary.
  4. It further states that: That by reason thereof of the present Beneficiary under such deed of Trust has executed and delivered to said duly appointed Trustee a written Declaration of Default and Demand for Sale and has deposited with said duly appointed Trustee such Deed of Trust and all documents evidencing obligations secured thereby and has declared and does hereby declared all sums secured thereby immediately due and payable and has elected and does hereby elect to cause the trust property to be sold to satisfy the obligations served thereby.
    1. This representation was made by these defendants in order to induce reliance by Plaintiff(s).
  5. Plaintiff(s) did rely on these representations and because of his reliance his property has advanced in the foreclosure stage to a sale and Plaintiff’s reliance was justified.
  6. Plaintiff(s) is informed and believes that the representation as stated on the Notice of Default were a false representation in the following particular(s)
  1. Documents were not provided to the trustee that showed that either MERS or any of the Defendants Identified as Does 1-10, were the Beneficiary and entitled to the payments.
  2. At the time Defendants made the representations they knew they were false and were made for the sole purpose of inducing reliance.
    1. Plaintiff(s) has been damaged in having his home wrongfully placed in foreclosure and a slander of his title, and being required to become involved in this litigation all to his damages and injuries the amount of which are subject to proof at the time of trial.
    2. That TRUSTEE ON DEED was aware of the false representations of LENDER and remained silent thereby aiding TRUSTEE ON DEED OR BUYER in its misrepresentation.
    3. That the actions of these defendants were willful, oppressive and fraudulent so as to justify an award of Exemplary damages.

       

III.

TWELVETH CAUSE OF ACTION

VIOLATION OF CALIFORNIA CIVIL CODE §2923.6

(As Against All Defendants)

 

 

  1. Plaintiff(s) reallege and incorporate by reference the above paragraphs 1 through 103 as though set forth fully herein.
  2. Defendants’ Pooling and Servicing Agreement (hereinafter “PSA”) contains a duty to maximize net present value to its investors and related parties.
  3. California Civil Code 2923.6 broadens and extends this PSA duty by requiring servicers to accept loan modifications with borrowers.
  4. Pursuant to California Civil Code 2923.6(a), a servicer acts in the best interest of all parties if it agrees to or implements a loan modification where the (1) loan is in payment default, and (2) anticipated recovery under the loan modification or workout plan exceeds the anticipated recovery through foreclosure on a net present value basis.
  5. California Civil Code 2923.6(b) now provides that the mortgagee, beneficiary, or authorized agent offer the borrower a loan modification or workout plan if such a modification or plan is consistent with its contractual or other authority.
  6. Plaintiff(s) loan is presently in an uncertain state.
  7. Plaintiffs(s) are willing, able, and ready to execute a modification of their loan on a reasonable basis

        (a)    New Loan Amount: $INSERT LOAN AMOUNT

        (b)    New Interest Rate: 4%

        (c)    New Loan Length: 30 years

        (d)    New Payment: $
    INSERT NEW PAYMENT

     

  8. The present fair market value of the property is INPUT FAIR MARKET VALUE OF HOME.
  9. The Joint Economic Committee of Congress estimated in June, 2007, that the average foreclosure results in $77, 935.00 in costs to the homeowner, lender, local government, and neighbors.
  10. Of the $77,935.00 in foreclosure costs, the Joint Economic Committee of Congress estimates that the lender will suffer $50,000.00 in costs in conducting a non-judicial foreclosure on the property, maintaining, rehabilitating, insuring, and reselling the property to a third party. Freddie Mac places this loss higher at $58,759.00.
  11. Pursuant to California Civil Code §2823.6, Defendants are now contractually bound to accept the loan modification as provided above and tender is deemed made pursuant to Defendants’ Pooling and Service Agreement, California Civil Code 2923.6(a), and California Civil Code 2923.6(b), taken individually or entirely. Plaintiff(s) invoke the remedies embodied in the aforementioned agreement and/or codes with a willingness to execute a modification of their loan.
  12. Alternatively, Plaintiff(s) allege that tender, if any, is excused by obstruction or prevention or imposition of unwarranted conditions by the person or corporate entity to whom it was to be made.
  13. Alternatively, Plaintiff(s) allege that obstruction or imposition of unwarranted conditions by defendants occurred when defendants evaded the plaintiffs’ attempts to provide tender as specified and encouraged by defendants’ pooling agreement, California Civil Code 2923.6(a), and California Civil Code 2923.6(b). [Hudson v. Morton, 231 Ala. 392, 165 So. 227 (1936); Loftis v. Alexander, 139 Ga. 346, 77 S.E. 169 (1913); Kennedy v. Neil, 333 Ill. 629, 165 N.E. 148 (1929); Borden v. Borden, 5 Mass. 67, 1809 WL 989 (1809); Loughney v. Quigley, 279 Pa. 396, 123 A. 84 (1924); Montague Corp. v. E.P. Burton Lumber Co., 136 S.C. 40, 134 S.E. 147 (1926); Stansbury V. Embrey, 128 Tenn. 103, 158 S.W. 991 (1913); Loehr v. Dickson, 141 Wis. 332, 124 N.W. 293 (1910)]
  14. Alternatively, Plaintiffs further allege that obstruction or imposition of unwarranted conditions by defendants occurred when defendants manifested to the Plaintiffs that tender, if made, will not be accepted, the Plaintiffs are excused from making tender as it would be a futile gesture, and the law will not require the doing of a useless act. [Simmons v. Swan, 275 U.S. 113, 48 S. Ct. 52, 72 L. Ed. 190 (1927); Lee v. Joseph E. Seagram & Sons, Inc., 552 F.2d 447 (2d Cir. 1977); Buckner v. Tweed, 157 F.2d 211 (App. D.C. 1946); Peterson v. Hudson Ins. Co., 41 Ariz. 31, 15 P.2d 249 (1932); Woods-Drury, Inc. v. Superior Court in and for City and County of San Francisco, 18 Cal. App. 2d 340, 63 P.2d 1184 (1st District 1936); Chesapeake Bay Distributing Co. v. Buck Distributing Co., Inc. 60 Md. App. 210, 481 A.2d 1156 (1984); Issacs v. Caterpillar, Inc., 765 F. Supp. 1359 (C.D. Ill. 1991); Platsis v. Diafokeris, 68 Md. App. 257, 511 A.2d 535 (1986)]
  15. Alternatively, Plaintiff(s) further allege that obstruction or imposition of unwarranted conditions by defendants occurred when defendants’ objection for want of actual tender of money is waived by defendants’ refusal to receive the money if produced. [Shaner v West Coast Life Ins. Co, 73F.2d 681 (C.C.A. 10th Cir. 1934); Buell v. White, 908 P.2d 1175 (Colo. Ct. App. 1995) (when party, who is willing and able to pay, offers to pay another a sum of money and is advised that it will not be accepted, offer amounts to tender even though money is not produced); Hall v. Norwalk
    Fire Ins. Co., 57 Conn. 105, 17 A. 356 (1888); Lamar v. Sheppard, 84 Ga. 561, 10 S.E. 10984 (1890); Ventres v. Cobb, 105 Ill. 33, 1882 WL 10475 (1882); Metropolitan Credit Union v. Matthes, 46 Mass. App. Ct. 326, 706 N.E.2d 296 (1999)].

     

    WHEREFORE, Plaintiff(s) prays for damages as follows:

  1. For compensatory damages, amount to be determined.
  2. For punitive damages in an amount to be determined.

    3.    For any statutory damages according to law;

    4.    For Injunctive Relief including the issuance of a restraining order and thereafter a preliminary injunction to maintain the status quo pending final adjudication;

    5.    For attorney’s fees in the event that counsel is retained;.

    6. For a declaration of the rights of the parties relative to Plaintiff’s Home, including

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

7.    For a preliminary injunction and permanent injunction enjoining all Defendants, their agents, assigns, and all person acting under, for, or in concert with them, from foreclosing on Plaintiff’s Home or from conducting at trustee’s sale or causing a trustee’s sale to be conducted relative to Plaintiff’s Home.

    8.    Cancellation of the sale and restitution of the home to the Plaintiffs; and

    9.    For damages as provided by statute;

10.    For an Order enjoining Defendants from continuing to violate the statutes alleged

herein;

11.    For an Order, requiring Defendant to reinstate Plaintiff on title to his Property, and or a restraining order preventing Defendants and his, hers, or its agents, employees, officers, attorneys, and representatives from engaging in or performing any of the following acts: (i) offering, or advertising this property for sale and (ii) attempting to transfer title to this property and or (iii) holding any auction therefore;

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

 

    DATED March 28, 2014     

 

                    LAW OFFICES OF TIMOTHY MCCANDLESS ESQ.

 

 

                    ______________________________________________

Timothy L. McCandless, Esq.,

Attorney for Plaintiff(s), NAME

VERIFICATION

 

I, TIMOTHY L. MCCANDLESS, am an attorney at law admitted to practice before all courts of the State of California and have my office in San Bernardino County, California, and am the attorney for the Plaintiff in this action, that all of the officers of the Plaintiff are unable to make the verification because they are absent from said County and for that reason affiant makes this verification on the Plaintiff’s behalf; that I have read the foregoing document and know its contents. I am informed and believe and on that ground allege that matters stated herein are true.

    Executed July 15, 2009, at Victorville, Californa.

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

DATED: July 15, 2009

___________________________________

TIMOTHY L. MCCANDLESS, ESQ

 

                                                                                                    

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