Upload
ronald-houchins
View
248
Download
0
Embed Size (px)
Citation preview
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Alejandro M. Ramirez689 34th StreetOakland, California 94609-2941Telephone:Facsimile:Email:
Plaintiff, Pro Se
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF ALEMEDA
ALEJANDRO M. RAMIREZ,
PLAINTIFF,
vs.
RIGHT-AWAY MORTGAGE, INC. ;MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC; THE BANK OF NEW YORK MELLON ASSUCCESSOR INDENTURE TRUSTEEUNDER NOVASTAR MORTGAGE FUNDING TRUST, SERIES 2006-1 BY SAXON MORTGAGE SERVICES, INC.;AS ATTORNEY IN FACT; NOVASTAR MORTGAGE, INC.; SAXON MORTGAGE SERVICES, INC. AND JOHN DOES 1-100, DEFENDANTS.
)))))))))))))))))))))))))
PLAINTIFFS’ COMPLAINT FOR
(1) FRAUD;(2) CANCELLATION OF A VOIDABLE CONTRACT UNDER REV & TAX CODE §§ 23304.1, 23305A AND VIOLATION OF CAL. CORP. CODE §§ 191(C)(7);(3) TO SET ASIDE TRUSTEE’S SALE;(4) TO VOID OR CANCEL TRUSTEE’S DEED UPON SALE;(5) TO VOID OR CANCEL ASSIGNMENT OF DEED OF TRUST;(6) WRONGFUL FORECLOSURE;(7) BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING;(8) UNJUST ENRICHMENT; (9) VIOLATION OF CALIFORNIA BUSINESS AND PROFESSIONS CODE SECTIONS 17200 ET SEQ.;(10) QUIET TITLE; AND (11) SLANDER OF TITLE
TO THIS HONORABLE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD
HEREIN:
Plaintiff hereby alleges as follows:
PLAINTIFFS’ COMPLAINT1
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
PARTIES
1. Plaintiff Alejandro M. Ramirez is a natural person residing in Alameda County,
California and is otherwise sui juris.
2. All acts complained of occurred in Alameda, County, California.
3. Defendant Right-Away Mortgage, Inc. is a Texas Corporation and at all times
herein mentioned, was a foreign corporation doing business in Alameda County, California.
4. Defendant Mortgage Electronic Registration Systems, Inc. is a Delaware
Corporation and at all times material herein mentioned, was doing business in Alameda County,
California.
5. Defendant The Bank of New York Mellon as Successor Indenture Trustee under
NovaStar Mortgage Funding Trust, Series 2006-1 By Saxon Mortgage Services, Inc. as Attorney
in Fact is a business entity of unknown origin doing business in Alameda County, California.
6. Defendant NovaStar Mortgage, Inc. is a Corporation doing business in Alameda
County, California.
7. Defendant Saxon Mortgage Services, Inc. is a Corporation doing business in
Alameda County, California.
8. Plaintiff does not know the true names and capacities of the defendants sued
herein as DOES 1 through 100 (“DOE Defendants”), inclusive, and therefore sues said DOE
Defendants by fictitious names. Plaintiffs are informed and believe and based on such
information and belief aver that each of the DOE Defendants is contractually, strictly,
negligently, intentionally, vicariously liable and or otherwise legally responsible in some manner
for the acts and omissions described herein. Plaintiffs will amend this Complaint to set forth the
true names and capacities of each DOE Defendant when same are ascertained.
9. Plaintiff is informed and believes, and based on such information and belief aver
PLAINTIFFS’ COMPLAINT2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
that Defendants Mortgage Electronic Registration Systems, Inc; The Bank of New York Mellon
as successor Indenture Trustee Under NovaStar Mortgage Funding Trust, Series 2006-1 By
Saxon Mortgage Services, Inc., as Attorney In Fact and each of them, are and at all material
times have been, the agents, servants or employees of each other, purporting to act within the
scope of said agency, service or employment in performing the acts and omitting to act as
averred herein. The Bank of New York Mellon as Successor Indenture Trustee Under NovaStar
Mortgage Funding Trust, Series 2006-1 By Saxon Mortgage Services, Inc. as Attorney In Fact,
MERS and DOE Defendants 1-100, inclusive, are hereinafter collectively referred to as the
“Foreclosing Defendants.”
10. Each of the Defendants named herein are believed to, and are alleged to have
been acting in concert with, as employee, agent, co-conspirator or member of a joint venture of,
each of the other Defendants, and are therefore alleged to be jointly and severally liable for the
claims set forth herein, except as otherwise alleged.
GENERAL ALLEGATIONS
11. On or about November 2, 2005 Plaintiff purchased certain real property
commonly known as 689 34th Street, Oakland, California 94609 (the “Subject Property”).
12. The mortgage loan transaction contained numerous violations of State and
Federal law, including the violations contained in the following paragraphs.
13. The Assignment of the deed of Trust from MERS to The Bank of New York as
Successor Indenture Trustee Under NovaStar Mortgage Funding Trust, Series 2006-1 By Saxon
Mortgage Services, Inc. as Attorney In Fact was illegal for the reasons set forth below.
14. MERS does not own any note and cannot enforce any note, and has no rights in
any mortgage, including the note and mortgage involved in this case, and therefore cannot assign
any such rights to any assignee.
PLAINTIFFS’ COMPLAINT3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
15. Since MERS does not own the underlying note, MERS had no interest it could
transfer to The Bank of New York Mellon as Successor Indenture Trustee Under NovaStar
Mortgage Funding Trust, Series 2006-1 By Saxon Mortgage Services, Inc. as Attorney in Fact.
As the assignment was and is invalid, any resulting foreclosure by these foreclosing Defendants
was and is likewise illegal and constitutes a wrongful foreclosure, as any attempt to transfer the
beneficial interest of the Deed of Trust without the ownership of the underlying note is void
under California law.
16. The subject loan was securitized. As a result of the securitizing process, the
following legal violations occurred, as set forth below.
17. Defendants’ home, encumbered by a mortgage and promissory note made with
the originator named as mortgagee, Right-Away Mortgage, Inc. is the property at issue in this
foreclosure action. Defendant trust entity also known as a Special Purpose Vehicle became an
alleged successor in interest to the originator and issued securities collateralized by the mortgage
under a master pooling and servicing agreement by which all legal and equitable interest was
transferred to the certificate holders. Plaintiff trustee is acting in the capacity of the alleged
representative for and nominee of the certificate holders for the purposes of foreclosure of the
property because the loan is allegedly in default. Defendant bank is not the holder or owner of
the note.
18. Because the mortgage was securitized, the mortgage was rendered
unenforceable. Securitization of the mortgage created restrictions upon modification of the
mortgage which had not been approved by the mortgagor. Securitization also converted the
mortgage note from an alienable, transferable instrument which was and could be sold into a
instrument which cannot be sold, transferred or alienated, without amending the terms and
conditions of the mortgage. In either case, the action renders the mortgage unenforceable as a
PLAINTIFFS’ COMPLAINT4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
matter of law. Defendants lack standing because plaintiff does not own or hold the note and
cannot have the power and authority to represent the actual owners of the note, as a matter of
law.
Improper Restrictions19. The mortgage is a security agreement between the creditor and debtor to secure
repayment of the loan by encumbering collateral for the benefit of the creditor.
20. Both parties agree that the security agreement may not be modified or amended
by one party without the prior written consent of the other.
21. The master pooling and servicing agreement which is the organic document
creating mortgage backed securities changes the terms and conditions of the mortgage.
22. The changes are made unilaterally by the holder of the mortgage as a successor to
the original mortgagee named in the mortgage. The changes are made without the consent of the
mortgagor.
23. When the parties executed the mortgage, the mortgagor was neither obligated to
agree to an alternate dispute resolution in the event of a default nor restricted from entering an
alternate dispute resolution. When signing the mortgage, the mortgagor neither knew nor had
reason to know that a successor in interest to the mortgagee would subsequently self impose
restrictions upon modification of the mortgage and create liability for itself by modifying the
loan.
24. The master pooling and servicing agreement creates restrictions upon modification of
the promissory note by:
(a) Imposing the restriction needed on mortgage modification to qualify for pass through tax
treatment under IRS regulations.
(b) Imposing restrictions upon the number of mortgages in the pool which may be modified.
PLAINTIFFS’ COMPLAINT5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(c) Providing a procedure for foreclosure but no procedure to modify the loan as an alternate
dispute resolution.
(d) Creating securities with classes of ownership (“tranches”) with adverse and opposing
financial interests resulting in so called “tranche warfare” so that a modification which
favors one tranche may work a detriment upon another.
(e) Restricting the ability to lower interest payments on the note.
(f) Restricting the ability to increase the number of payments to be made.
(g) Restricting the ability to defer payments.
(h) Restricting the ability to extend the term of the mortgage.
(i) Restricting the ability to impose a temporary moratorium on payments.
(j) Restricting the ability to accept “short sales”.
25. Declaratory relief or invalidation of the restrictions created by the master pooling
and servicing agreement will not remedy the problem. Given the potential liability of the issuer
and securitizer of the note to certificate holders, the holder will not modify the mortgage even if
the restrictions on modification of the mortgage are nullified.
Improper Conversion
26. The securitization of the mortgage constitutes a conversion of the asset rendering
it null, void and unenforceable. The holder of the note of a pass through trust has no legal or
equitable interest in the securitized mortgages. The holder profits from the fees collected from
foreclosure. The certificate holders, guarantors and mortgage insurers bear the losses.
Foreclosure avoids litigation from disgruntled certificate holders who could claim a mortgage
modification improperly resulted in a financial loss. By separating the incidence of loss from the
authority to foreclose, the original note has been altered resulting to a change to the mortgage
PLAINTIFFS’ COMPLAINT6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
without the consent of the mortgagor. The conversion of the mortgage to mortgage backed
securities renders the mortgage unenforceable.
27. The interests of the defendants as mortgagor are adversely and materially
affected by these changes.
28. Further, with regard to the entire loan origination and closing process of this
loan, the following Non-Compliance with State and Federal Law occurred, to wit:
29. There were substantial violations of the law and the lender and other parties
involved in the closing did not comply with the Federal Truth in Lending Act (TILA); the
Federal Real Estate Settlement and Procedures Act (RESPA); and other state and federal
consumer protection laws. These acts of non-compliance include, but are not necessarily limited
to the following:
a. Under California Law, a broker is required to execute a Mortgage Loan Origination Agreement with the borrower. No such Agreement was ever received by affiant, the borrower herein. Only after the execution of a fully completed document can actual work on procuring a loan begin. The loan violated California Law, Section 50700-50706-50701 from the beginning of this transaction. It is also an Unfair and Deceptive Act and Practice under California Competition Law, CA Business & Professions Code 17200.
b. Failed to give borrower signed copies of the closing documents. c. Failed to respond to a Qualified Written Request for documents under
RESPA. d. Charged fees in excess of the Good Faith Estimate in violation of California
Business & Professions Code 10241, 10240-10248 and California UnfairCompetition Law, CA Business & Professions Code 17200.
e. Charged a yield spread premium and failed to disclose same in a proper manner.
f. Failed to make disclosures in compliance with disclosure requirements as documents in the file are dated the same day as the loan closing, not three days after the loan application was submitted.
g. As to underwriting decisions, the lender ignored prudent standards of underwriting, knowing full well the loan would be securitized and any default would be the concern of another party. No consideration of the ability of the borrower to repay this loan with a realistic means test was made. Failure to adequately underwrite the loan is a violation of California Unfair Competition Law, CA Business & Professions Code 17200.
PLAINTIFFS’ COMPLAINT7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
h. There was no determination of the ability of the borrower to repay the loan, with complete disregard for the Guidelines Letters issued by Federal Agencies and even Federal and State Law and in violation of California Unfair Competition Law, CA Business & Professions Code 17200.
i. Lender committed Fraud for false income by the broker. j. Aiding and abetting by the lender for allowing the fraudulent income loan. k. Lack of due diligence by the lender in approving the Lender l. Lack of Good Faith and Fair Dealings by the Lender. m. Breach of Fiduciary Duty by the broker for doing a loan where it could lead
to default. n. Unconscionability by the lender for doing the loan. o. The Fees on the Good Faith Estimate and the Truth in Lending Statement are
not consistent. p. Failure to provide truthful and accurate disclosures are Unfair and Deceptive
Act and Practice under the California Unfair Competition Law, CA Business & Professions Code 17200.
q. Broker violated his Fiduciary Responsibility to the borrower by placing the borrower into his current loan product without regard for other products that might have suited the borrower better; placing the borrower into a loan whereby it was likely the borrower would default or incur bankruptcy as a result of the loan and it was reasonable foreseeable that such would occur, placing the borrower into a loan without a realistic test of the ability of the borrower to repay the loan, failing to provide correct initial disclosure, and placing the borrower into a loan with a prepayment penalty.
r. The loan was unconscionable; lender breached its duty of good faith and fair dealing under the UCC and common law. Lender committed Fraud by placing the borrower into a high debt ratio loan; lender violated the Unfair and Deceptive Acts and Practices At, CA Business & Professions 17200.
30. The parties involved committing these acts of non-compliance include all
parties listed as Defendants.
31. That the undersigned affiant has alleged fraud in the court case referenced
above, as more fully set forth in this complaint.
32. None of the foregoing was disclosed to Plaintiff at any time before, during or
after the closing of the subject transaction.
PLAINTIFFS’ COMPLAINT8
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
33. Based upon information and belief, in or around March 31, 2009, prior to the
foreclosure of the Subject Property but after the Notice of Default, MERS (acting as beneficiary)
assigned the Deed of Trust to The Bank of New York Mellon f/k/a the Bank of New York as
successor to JP Morgan Chase Bank, N.A. as Trustee for the Ownit Mortgage Loan Asset-
Backed Certificates, Series 2006-1. The Assignment was recorded. The Assignment by MERS
was improper because MERS never had a beneficial interest in the Subject Property and was
merely a “nominee” under the Deed of Trust. Therefore, the Assignment was invalid and void.
Moreover, the recording of the Notice of Default was invalid and void.
34. Based upon information and belief, there was no assignment of the Note with the
Deed of Trust, none of the Foreclosing Defendants are the holder of the Note in due course, and
none of the Foreclosing Defendants were assigned the Note by MERS. Accordingly, none of the
Foreclosing Defendants were ever entitled to enforce the Note.
35. Any Trustee’s Deed Upon Sale is also invalid and void because it was based on
an invalid and void assignment.
FIRST CAUSE OF ACTION FOR
FRAUD
(AGAINST THE FORECLOSING DEFENDANTS)
36. Plaintiff incorporates herein by reference the allegations made in paragraphs 1
through 34, inclusive, as though fully set forth herein.
37. The Foreclosing Defendants engaged in a pattern and practice of defrauding
Plaintiffs in that, during the life of the mortgage loan, the Foreclosing Defendants failed to
properly disclose material facts regarding the subject loan transaction, including but not limited
to the fact that the loan was securitized, that other third parties were involved in the transaction,
PLAINTIFFS’ COMPLAINT9
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
that the loan was being placed in a pool of securitized mortgages to be used to sell asset-backed
pass-through certificates to investors, that the fraudulent securitization scheme involved an
Illegal, null and void Assignment of Deed of Trust and other misrepresentations of material facts
as more fully set forth in Plaintiff’s General Allegations.
38. Additionally, the Foreclosing Defendants concealed material facts known to them
but not to Plaintiffs regarding payments, notices, assignments, transfers, late fees and charges
with the intent to defraud Plaintiff.
39. The Foreclosing Defendants made the above-referenced false representations,
concealments and non-disclosures with knowledge of the misrepresentations, intending to
induce Plaintiffs' reliance, which the unsuspecting Plaintiff justifiably relied upon, resulting in
damage to their credit standing, costs and loss of her property. Plaintiff was unaware of the true
facts. Had Plaintiff known the true facts, Plaintiff, among other things, would not have
maintained the Foreclosing Defendants as his lender, servicer and trustee (and their alleged
agents) and/or would have taken legal action immediately to save their house.
40. As a result of the Foreclosing Defendants’ fraudulent conduct, Plaintiff has
suffered compensatory, general and special damages in an amount to proof. Additionally, the
Foreclosing Defendants acted with malice, fraud and/or oppression and, thus, Plaintiff is entitled
to an award of punitive damages.
SECOND CAUSE OF ACTION FOR
CANCELLATION OF A VOIDABLE CONTRACT UNDER REV & TAX CODE §§
23304.1, 23305A AND VIOLATION OF CAL. CORP. CODE §§ 191(C)(7)
(AGAINST THE FORECLOSING DEFENDANTS)
41. Plaintiff incorporates herein by reference the allegations made in paragraphs 1
through 40, inclusive, as though fully set forth herein.
PLAINTIFFS’ COMPLAINT10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
42. MERS operates as a record-keeping database company in which MERS contracts
with lenders to track security instruments in return for an annual fee.
43. Based upon information and belief, MERS was at all times herein operating in
the State of California without registering as a foreign corporation to avoid paying taxes to the
state.
44. As a result of MERS’s failure to comply with the California franchise tax laws,
the Deed of Trust alleged herein is voidable by Plaintiff pursuant to Rev & Tax Code §§
23304.1, 23304.1(b), and 23305a.
45. Moreover, MERS is not in the business of creating evidences, and it is not a
foreign lending institution. It does not originate loans, never had any true interest in the subject
loan or Deed of Trust, and thereby does not meet any legal exceptions to the registration
requirement for foreign corporations.
46. MERS conducted business in California when it was not registered with the
Secretary of State. Specifically, it prepared and/or executed a Substitution of Trustee and
Assignment of Deed of Trust in March, 2009. The substitution allowed the new Trustee, to
record a Notice of Default on the Subject Property.
47. At all relevant times herein, MERS was not registered in California and could not
prepare or execute the Assignment of Deed of Trust. MERS had no legal authority to take such
action. Deeds of Trust are contractual in nature. A contract made by a corporation doing
business in California while that corporation has failed to perform its franchise tax obligations is
voidable at the option of any party to the contract, other than the [delinquent] taxpayer. Thus,
MERS did not have the legal capacity to enter into a contract with Plaintiff or anyone else, and
Plaintiffs have the option of voiding the contract. Therefore, any action that MERS took with
PLAINTIFFS’ COMPLAINT11
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
regard to assigning the within deed of trust and substituting the trustee would be ultra vires and
void.
48. Plaintiff hereby expressly requests an adjudication to the effect that the
assignment of the deed of trust and substitution of trustee by MERS are void.
THIRD CAUSE OF ACTION
TO SET ASIDE TRUSTEE’S SALE
(AGAINST THE FORECLOSING DEFENDANTS)
49. Plaintiff incorporates herein by reference the allegations made in paragraphs 1
through 47, inclusive, as though fully set forth herein.
50. The Foreclosing Defendants never had the legal authority to foreclose, i.e., the
authority to exercise the power of sale as an assignee of the Note and Deed of Trust, because the
Foreclosing Defendants’ interest was never properly acknowledged and recorded in violation of
Civil Code § 2932.5, resulting in the non-judicial foreclosure sale being void ab initio.
51. Moreover, the Foreclosing Defendants never had the legal authority to foreclose
because the instrument (Deed of Trust), which permitted foreclosure if the borrower was in
default, is void as it was improperly assigned and/or transferred to the Foreclosing Defendants
from Defendant MERS. Therefore, the Deed of Trust could not provide a basis for a
foreclosure, and the non-judicial foreclosure is void ab initio.
52. Accordingly, Plaintiff hereby requests an order of this Court that the Trustee’s
Sale was irregular in that it was legally void and conducted without any right or privilege by the
Foreclosing Defendants.
FOURTH CAUSE OF ACTION
TO VOID OR CANCEL TRUSTEE’S DEED UPON SALE
(AGAINST THE FORECLOSING DEFENDANTS)
PLAINTIFFS’ COMPLAINT12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
53. Plaintiff incorporates herein by reference the allegations made in paragraphs 1
through 52, inclusive, as though fully set forth herein.
54. Although any trustee’s deed upon sale appears valid on its face, it is invalid, and
of no force and effect, for the reasons set forth above including, inter alia, the fact the Deed of
Trust which purportedly secured the Note, which served as the basis for a claim to have the right
to conduct a non-judicial foreclosure was at all times void due to the wrongful and improper
assignment to the Foreclosing Defendants.
55. Plaintiffs are therefore entitled to an order that any Trustee’s Deed Upon Sale is
void ab initio and cancelling such Trustee’s Deed.
FIFTH CAUSE OF ACTION
TO VOID OR CANCEL ASSIGNMENT OF DEED OF TRUST
(AGAINST THE FORECLOSING DEFENDANTS)
56. Plaintiff incorporates herein by reference the allegations made in paragraphs 1
through 55, inclusive, as though fully set forth herein.
57. The assignment of the deed of trust is invalid, and of no force and effect, for the
reasons set forth above including, inter alia, the fact the MERS did not have standing or the legal
authority to assign the deed of trust which purportedly secured the Note, and which served as the
basis for a claim to have the right to conduct a non-judicial foreclosure. Thus, the assignment of
the deed of trust was at all times void.
58. Plaintiff is therefore entitled to an order that the Assignment of the Deed of Trust
is void ab initio and cancelling such Assignment.
SIXTH CAUSE OF ACTION
WRONGFUL FORECLOSURE
(AGAINST THE FORECLOSING DEFENDANTS)
PLAINTIFFS’ COMPLAINT13
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
59. Plaintiff incorporates herein by reference the allegations made in paragraphs 1
through 58, inclusive, as though fully set forth herein.
60. Plaintiff is informed and believes and thereon alleges that after the origination
and funding of his loan, it was sold to investors as a “mortgage backed security” and that none
of the Foreclosing Defendants in this action owned this loan, or the corresponding note.
Moreover, none of the Foreclosing Defendants in this action were lawfully appointed as trustee
or had the original note assigned to them. Accordingly, none of the Foreclosing Defendants in
this action had the right to declare default, cause notices of default to be issued or recorded, or
foreclose on Plaintiffs’ interest in the Subject Property. The Foreclosing Defendants were not
the note holder or a beneficiary at any time with regard to Plaintiffs’ loan.
61. Plaintiff further alleges on information and belief that none of the Foreclosing
Defendants in this action are beneficiaries or representatives of the beneficiary and, if the
Foreclosing Defendants allege otherwise, they do not have the original note to prove that they
are in fact the party authorized to conduct the foreclosure.
62. Plaintiff further alleges on information and belief that the loan was sold or
transferred without notifying the Plaintiffs in writing. Therefore, the loan is void of legal rights
to enforce it.
63. Additionally, The Foreclosing Defendants violated California Civil Code
§2923.5(a), which requires a “mortgagee, beneficiary or authorized agent” to “contact the
borrower or person by telephone in order to assess the borrower’s financial situation and explore
options for the borrower to avoid foreclosure. “Section 2923.5(b) requires a default notice to
include a declaration “from the mortgagee, beneficiary, or authorized agent” of compliance with
section 2923.5, including attempt “with due diligence to contact the borrower as required by this
section.”
PLAINTIFFS’ COMPLAINT14
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
64. None of the Foreclosing Defendants contacted Plaintiff to discuss his financial
situation. Moreover, none of the Foreclosing Defendants explored options with Plaintiff to
avoid foreclosure. Additionally, none of the Foreclosing Defendants informed Plaintiffs of the
right to have a meeting within 14 days of said contact. Accordingly, the Foreclosing Defendants
did not fulfill their legal obligation to Plaintiff.
65. Thus, the Foreclosing Defendants engaged in a fraudulent foreclosure of the
Subject Property in that the Foreclosing Defendants did not have the legal authority to foreclose
on the Subject Property and, alternatively, if they had the legal authority, they failed to comply
with Civil Code Section 2923.5 and 2923.6.
66. As a result of the above alleged wrongs, Plaintiff has suffered general and special
damages in an amount to be determined at trial.
SEVENTH CAUSE OF ACTION FOR
BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING
(AGAINST THE FORECLOSING DEFENDANTS)
67. Plaintiff incorporates herein by reference the allegations made in paragraphs 1
through 66, inclusive, as though fully set forth herein.
68. Every contract imposes upon each party a duty of good faith and fair dealing in
its performance and its enforcement. This implied covenant of good faith and fair dealing
requires that no party will do anything that will have the effect of impairing, destroying, or
injuring the rights of the other party to receive the benefits of their agreement. The covenant
implies that in all contracts each party will do all things reasonably contemplated by the terms of
the contract to accomplish its purpose. This covenant protects the benefits of the contract that
the parties reasonably contemplated when they entered into the agreement.
PLAINTIFFS’ COMPLAINT15
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
69. Alternatively, if the note and deed of trust was validly and properly assigned to
the Foreclosing Defendants, the Foreclosing Defendants did not act in good faith and did not
deal fairly with Plaintiff in connection with the note and deed of trust.
70. The Foreclosing Defendants enjoyed substantial discretionary power affecting the
rights of Plaintiff during the events alleged in this Complaint. They were required to exercise
such power in good faith.
71. The Foreclosing Defendants engaged in such conduct to drive Plaintiff into
foreclosure so that they could acquire the Subject Property with its equity at a bargain basement
price. These actions were a bad faith breach of the contract between Plaintiff and the
Foreclosing Defendants which show that they had no intention of performing the contract,
consisting of the original note and deed of trust, in good faith.
72. MERS willfully breached their implied covenant of good faith and fair dealing
with Plaintiff when MERS allowed their alleged agent to execute the Assignment of the Deed of
Trust in order to appoint a new Trustee to begin foreclosure on the Subject Property.
73. As a result of the Foreclosing Defendants’ breaches of this covenant, Plaintiff has
suffered general and special damages in an amount to be determined at trial.
EIGHTH CAUSE OF ACTION FOR
UNJUST ENRICHMENT
(AGAINST THE FORECLOSING DEFENDANTS)
74. Plaintiff incorporates herein by reference the allegations made in paragraphs 1
through 73, inclusive, as though fully set forth herein.
75. By their wrongful acts and omissions, the Foreclosing Defendants have been
unjustly enriched at the expense of Plaintiff, and thus Plaintiff has been unjustly deprived.
PLAINTIFFS’ COMPLAINT16
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
76. By reason of the foregoing, Plaintiff seeks restitution from the Foreclosing
Defendants, and an order of this Court disgorging all profits, benefits, and other compensation
obtained by the Foreclosing Defendants from their wrongful conduct.
NINTH CAUSE OF ACTION FOR
VIOLATION OF CALIFORNIA BUSINESS AND PROFESSIONS CODE SECTIONS
17200 ET SEQ.
(AGAINST THE FORECLOSING DEFENDANTS)
77. Plaintiff incorporates herein by reference the allegations made in paragraphs 1
through 76, inclusive, as though fully set forth herein.
78. California Business & Professions Code Section 17200, et seq., prohibits acts of
unfair competition, which means and includes any “fraudulent business act or practice . . .” and
conduct which is “likely to deceive” and is “fraudulent” within the meaning of Section 17200.
79. As more fully described above, the Foreclosing Defendants’ acts and practices
are likely to deceive, constituting a fraudulent business act or practice. This conduct is ongoing
and continues to this date.
80. Specifically, the Foreclosing Defendants engage in deceptive business practices
with respect to mortgage loan servicing, assignments of notes and deeds of trust, foreclosure of
residential properties and related matters.
81. The Foreclosing Defendants fail to act in good faith as they take fees for services
but do not render them competently and in compliance with applicable law.
82. Moreover, the Foreclosing Defendants engage in a uniform pattern and practice
of unfair and overly-aggressive servicing that result in the assessment of unwarranted and unfair
fees against California consumers, and premature default often resulting in unfair and illegal
PLAINTIFFS’ COMPLAINT17
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
foreclosure proceedings. The scheme implemented by the Foreclosing Defendants is designed
to defraud California consumers and enrich the Foreclosing Defendants.
83. The foregoing acts and practices have caused substantial harm to California
consumers.
84. As a direct and proximate cause of the unlawful, unfair and fraudulent acts and
practices of the Foreclosing Defendants, Plaintiff and California consumers have suffered and
will continue to suffer damages in the form of unfair and unwarranted late fees and other
improper fees and charges.
85. By reason of the foregoing, the Foreclosing Defendants have been unjustly
enriched and should be required to disgorge their illicit profits and/or make restitution to
Plaintiff and other California consumers who have been harmed, and/or be enjoined from
continuing in such practices pursuant to California Business & Professions Code Sections 17203
and 17204. Additionally, Plaintiff is therefore entitled to injunctive relief and attorney’s fees as
available under California Business and Professions Code Sec. 17200 and related sections.
TENTH CAUSE OF ACTION FOR
QUIET TITLE
(AS TO DEFENDANTS FORECLOSING DEFENDANTS; 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; AND
DOES 1 THROUGH 100)
86. Plaintiff incorporates herein by reference the allegations made in paragraphs 1
through 85, inclusive, as though fully set forth herein.
PLAINTIFFS’ COMPLAINT18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
87. Plaintiff is the equitable owner of the Subject Property which has the following
legal description:
Being Lot 11 and portion of Lot 10, Block “E”, “Map of the property ofthe Central Land Company, “filed November 25, 1873, Map Book 2, Page 26,Alameda County Records, described as follows: BEGINNING at a point on the Southern line of 34th Street, formerly Brown Street, distant thereon 416 feetEasterly from the point of intersection thereof with the Eastern line of West Street, as said streets are shown on the map herein referred to; thence EasterlyAlong said line of 34th Street 50 feet; thence Southerly parallel with West Street100 feet; thence Westerly parallel with 34th Street 54 feet; thence Northerly in a direct line 100 feet, more or less, to the point of beginning.
Also known as 689 34th Street, Oakland, California 94609.
88. Plaintiff seeks to quiet title against the claims of all Defendants ; 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; and DOES 1
through 100 (collectively referred to herein as the “Title Defendants”) as the Title Defendants
hold themselves out as entitled to fee simple ownership of the Subject Property by and through
their purchase of the property at any trustee’s sale. In fact, the Title Defendants had no right to
title or interest in the Subject Property and no right to entertain any rights of ownership
including the right to foreclosure, offering the Subject Property for sale at any trustee’s sale,
demanding possession or filing cases for unlawful detainer. Nevertheless, the Title Defendants
proceeded with a non-judicial foreclosure sale, through Defendant The Bank of New York
Mellon as Successor Indenture Trustee Under NovaStar Mortgage Funding Trust, Series 2006-1,
By Saxon Mortgage Services, Inc. as Attorney In Fact, as alleged trustee, illegally and with
unclean hands. Plaintiff is willing to tender the amount received subject to equitable adjustment
for the damage caused to the Plaintiff by the Title Defendants’ activities.
PLAINTIFFS’ COMPLAINT19
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
89. Additionally, the trustee’s sale is void because the requirements of Civil
Code Section 2923.5 were not complied with by any of the Foreclosing Defendants.
90. Plaintiff seeks to quiet title as of February 22, 2011. Plaintiff seeks a
judicial declaration that the title to the Subject Property is vested in Plaintiff alone and that the
Title Defendants and each of them be declared to have no interest estate, right, title or interest in
the subject property and that the Title Defendants, their agents and assigns, be forever enjoined
from asserting any estate, right title or interest in the Subject Property subject to Plaintiffs’
rights.
ELEVENTH CAUSE OF ACTION FOR
SLANDER OF TITLE
(AGAINST THE FORECLOSING DEFENDANTS)
91. Plaintiff incorporates herein by reference the allegations made in
paragraphs 1 through 90, inclusive, as though fully set forth herein.
92. Pursuant to, among others, California Civil Code section 2924(a)(1)(C),
only the beneficiary of a Deed of Trust or a beneficiary’s assignee or the agent of a beneficiary
or its assignee may cause to be recorded against real property either a Notice of Default or a
Notice of Trustee’s Sale.
93. Defendant The Bank of New York Mellon, etc., purportedly but falsely
acting as either the trustee or the agent of the beneficiary of the Deed of Trust, wrongfully and
without privilege, caused a Notice of Default to be recorded against the Subject Property.
94. Later, The Bank of New York Mellon, again purportedly but falsely acting as
either the trustee or the agent of the beneficiary of the Deed of Trust wrongfully and without
privilege, caused a Notice of Trustee’s Sale to be recorded against the Subject Property.
PLAINTIFFS’ COMPLAINT20
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
95. Finally, The Bank of New York Mellon, again purportedly but falsely
acting as either the trustee or the agent of the beneficiary of the Deed of Trust wrongfully and
without privilege, caused a Trustee’s Deed Upon Sale to be recorded against the Subject
Property.
96. None of the Foreclosing Defendants, whether jointly or severally, were
ever a trustee, beneficiary or assignee of any beneficiary of any Deed of Trust recorded against
the Subject Property. Accordingly, they wrongfully caused the recording of the Notice of
Default, Notice of Trustee’s Sale and Trustee’s Deed Upon Sale against the Subject Property.
97. The Bank of New York Mellon, wrongfully and without privilege, has
published matters or caused matters to be published that they are the current owners of the
Subject Property which is untrue and disparaging to Plaintiffs’ interest in the Subject Property.
98. By doing the acts described above, the Foreclosing Defendants have
slandered Plaintiffs’ title to the Subject Property.
99. In that the conduct and acts of the Foreclosing Defendants violated,
among others, California Civil Code section 2924(a)(1)(C), such conduct and acts were not
privileged.
100. The conduct of the Foreclosing Defendants caused Plaintiffs to suffer
general and special damages in an amount to be proven at trial.
PRAYER FOR RELIEF
Wherefore, Plaintiff prays for judgment against the Defendants and each of them, jointly
and severally, as follows:
1. For a declaration of the rights and duties of the parties, specifically that the
foreclosure of Plaintiffs’ residence was wrongful.
2. For issuance of an Order canceling all Trustee’s Deed Upon Sale.
PLAINTIFFS’ COMPLAINT21
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3. To vacate the Trustee’s Deed.
4. To vacate and set aside the foreclosure sale.
5. To quiet title in favor of Plaintiff and against Defendants.
6. For compensatory, special, general and punitive damages according to proof
against all Defendants.
7. Pursuant to Business and Professions Code § 17203, that all Defendants, their
successors, agents, representatives, employees, and all persons who act in concert with them be
permanently enjoined from committing any acts of unfair competition in violation of § 17200,
including, but not limited to, the violations alleged herein.
8. For civil penalties pursuant to statute, restitution, injunctive relief and reasonable
attorneys fees according to proof.
9. For reasonable costs of suit and such other and further relief as the Court deems
proper.
DEMAND FOR JURY TRIAL
Plaintiff demands trial by jury on all issues so triable.
VERIFICATION
STATE OF CALIFORNIA ) :ss
COUNTY OF ALAMEDA )
BEFORE ME, the undersigned authority, duly authorized to administer oaths, personally
appeared Alejandro M. Ramirez, who after being duly sworn, deposes and says under penalty of
perjury, that the facts and allegations set forth in the foregoing Complaint are true and correct.
DATED: February 22, 2011 _____________________________________Alejandro M. Ramirez, Plaintiff Pro Se
PLAINTIFFS’ COMPLAINT22
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
_____________________________Notary Public, State of California
My Comission Expires:
PLAINTIFFS’ COMPLAINT23