Upload
catbenitez8888
View
128
Download
0
Tags:
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
LAW
OF
FIC
ES
OF
CA
TAR
INA
M. B
EN
ITE
Z20
14
TU
LA
RE
ST
RE
ET,
SU
ITE
40
0F
RE
SN
O, C
A 9
3721
CATARINA M. BENITEZ SBN 256518LAW OFFICES OF CATARINA M. BENITEZ2014 Tulare Street, Suite 400Fresno, California 93721Telephone: (559) 472-7337Facsimile: (559) 579-1100
Attorney for Plaintiff,
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF FRESNO
UNLIMITED CIVIL DIVISION
, an individual,
Plaintiff,
v.
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, BANK OF AMERICA HOME LOANS, a limited partnership; RECONTRUST COMPANY; and DOES 1 through 150, inclusive,
Defendants.
Case No.
COMPLAINT FOR 1. FRAUD2. QUIET TITLE3. DECLARATORY RELIEF4. BREACH OF COVENANT OF
GOOD FAITH AND FAIR DEALING
5. PROMISSORY ESTOPPEL6. WRONGFUL
FORECLOSURE7. INJUNCTIVE RELIEF8. SET ASIDE ILLEGAL
TRUSTEE’S SALE9. CANCELLATION OF
TRUSTEE’S DEED10. UNFAIR BUSINESS
PRACTICES
JURY TRIAL REQUESTED
Plaintiff, (hereinafter referred to as “Plaintiff”) hereby brings a Complaint against
Defendants BANK OF AMERICA NATIONAL TRUST AND SAVINGS COMPANY
(hereinafter referred to as “BANK”), BANK OF AMERICA HOME LOANS (hereinafter
referred to as “BAC”)RECONTRUST COMPANY (hereinafter referred to as “RECON”),
and DOES 1 through 150, inclusive, for causes of action alleged as follows:
-1-________________________________________________________________________________
Complaint
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
LAW
OF
FIC
ES
OF
CA
TAR
INA
M. B
EN
ITE
Z20
14
TU
LA
RE
ST
RE
ET,
SU
ITE
40
0F
RE
SN
O, C
A 9
3721
///
PARTIES
1. On information and belief, Defendant BANK is a subsidiary of Bank of
America, N.A. Plaintiff believes and hereby alleges that BANK was the original holder of
Plaintiff’s note. Plaintiff believes and hereby alleges that Bank of America N.A. is
incorporated in the jurisdiction of the United States in the state of North Carolina and
registered with the California Secretary of State as Corporation # C2551762 doing business
in the state of California. The agent for service of process is CT Corporation System and is
located at 818 West Seventh Street, Los Angeles, CA 90017. Plaintiff is of the belief that
BANK is the alleged beneficiary in this matter.
2. On information and belief, Defendant BAC is a limited partnership and is a
subsidiary of Bank of America, N.A. Plaintiff believes and hereby alleges that BAC was the
loan servicer for Plaintiff’s loan. Plaintiff believes and hereby alleges that Bank of America
N.A. is incorporated in the jurisdiction of the United States in the state of North Carolina and
registered with the California Secretary of State as Corporation # C2551762 doing business
in the state of California. The agent for service of process is CT Corporation System and is
located at 818 West Seventh Street, Los Angeles, CA 90017. Plaintiff is of the belief that
BAC is the alleged servicer in this matter.
3. On information and belief, Defendant RECON is a corporation, although at
this time its entity status is unknown. Plaintiff believes and hereby alleges that its corporate
office serves as its agent for service of process which is located at 1800 Tapo Canyon Rd.,
CA6-914-01-04 Simi Valley, CA 93063. Plaintiff is of the belief that RECON is the alleged
trustee in this matter.
4. Plaintiff is ignorant of the true names and capacities of the Defendants sued
herein as DOES 1 through 150 inclusive, and therefore sues these Defendants by such
fictitious names. Plaintiff will amend this complaint to allege their true names and capacities
when ascertained.
5. Plaintiff is informed and believes and thereon alleges that, at all times herein
-2-________________________________________________________________________________
Complaint
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
LAW
OF
FIC
ES
OF
CA
TAR
INA
M. B
EN
ITE
Z20
14
TU
LA
RE
ST
RE
ET,
SU
ITE
40
0F
RE
SN
O, C
A 9
3721
mentioned, each of defendants sued herein was the agent, employee, assignee, predecessor or
successor in interest of each of the remaining defendants and was at all times acting within
the purpose and scope of such agency and/or employment.
6. Whenever in this Complaint an act or omission of a corporation or business
entity is alleged, the said allegation shall be deemed to mean and include an allegation that
the corporation or business entity acted or omitted to act through its authorized officers,
directors, agents, servants, and/or employees, acting within the course and scope of their
duties, that the act or omission was authorized by corporate managerial officers or directors,
and that the act or omission was ratified by the officers and directors of the corporation.
JURISDICTION AND VENUE
7. At all times herein mentioned Plaintiff was, and now is a natural person,
residing in the city of California.
8. Jurisdiction of the subject matter in this Court is proper because the cause of
action herein arose in Fresno County, California by virtue of a mortgage loan and which
concerns the Plaintiff’s primary residential real estate which is located at ___(hereinafter
referred to as “the Property”).
9. Venue of this action is proper within this Court as at least one named
Defendant is subject to suit within this Court, and thus all Defendants are properly sued in
this Court.
10. The transactions and events which are the subject matter of this Complaint all
occurred in the County of Fresno, State of California.
JURY TRIAL DEMAND
11. Plaintiff requests a jury trial on all issues in this matter.
NATURE OF THE ACTION
12. This case arises out of Defendants’ breaches of their obligations as Mortgagee
or “Trustee” on the Deed of Trust and Defendants’ bad faith negotiations prior to the
purported Trustees sale of Plaintiff’s property on June 2, 2010.
13. In addition to seeking compensatory, consequential and other damages,
-3-________________________________________________________________________________
Complaint
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
LAW
OF
FIC
ES
OF
CA
TAR
INA
M. B
EN
ITE
Z20
14
TU
LA
RE
ST
RE
ET,
SU
ITE
40
0F
RE
SN
O, C
A 9
3721
Plaintiff seeks declaratory relief as to what (if any) party, entity or individual or group
thereof is the owner of the promissory note executed at the time of purported Trustees Sale,
and whether the Deed of Trust (Mortgage) secures any obligation of the Plaintiff, and a
mandatory Injunction requiring re-conveyance of the subject property to the Plaintiff or, in
the alternative, a Final Judgment granting Plaintiff Quiet Title in the subject property.
FORECLOSURE PROCEDURAL HISTORY
14. In July, 2008, the California Legislature enacted Senate Bill 1137, impacting
residential mortgage lenders, foreclosure procedures and eviction procedures. The law was
enacted as an emergency measure designed to address the adverse effects of the state’s high
foreclosure rate.
15. The law has three pertinent parts. It amends California Code of Civil
Procedure Section 1161(b) regarding notice of an eviction, it adds a provision strengthening
the right of local governments to adopt “blight” ordinances, and, moreover, it modifies the
non-judicial foreclosure procedures set forth in California Civil Code Section 2924. The
legislature recognized the need for such legislation by stating as follows:
“…It is essential to the economic health of California for the state to ameliorate the deleterious effects on the state economy and local economies and the California housing market that will result from the continued foreclosures of residential properties in unprecedented numbers by modifying the foreclosures process to require mortgagees, beneficiaries, or authorized agents to contact borrowers and explore options that could avoid foreclosure…”
16. This law is effective immediately and extends on to January 1, 2013. This law
impacts owner-occupied primary residences only and only loans made between January 1,
2003 and December 3, 2007. California Civil Code Section 2924 states in part:
The primary purpose for the Statute is foreclosure procedures and imposes an unprecedented duty upon lenders relating to contact with borrowers. The Statute amends provisions of the non-judicial foreclosure procedures found in California Code of Civil Procedure §2924, by adding requirements for meetings, due diligence, and notification of counseling. Some of the more important provisions include all of the following:
17. The contact by the lender or authorized agent requires that the borrower’s
-4-________________________________________________________________________________
Complaint
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
LAW
OF
FIC
ES
OF
CA
TAR
INA
M. B
EN
ITE
Z20
14
TU
LA
RE
ST
RE
ET,
SU
ITE
40
0F
RE
SN
O, C
A 9
3721
financial situation be assessed and requires that the borrower and lender explore options for
the borrower to avoid foreclosure. This was not done by the lender.
18. The Statute requires the lender or their authorized agent to advise the
borrower that the borrower has the right to a subsequent meeting within fourteen (14) days of
the initial contact. This was not done by the lender.
19. The borrower is to be provided a toll free telephone number available at HUD
for certified housing counseling agencies. This was not done by the lender.
20. The borrower may designate an authorized agent, such as a counseling
service, REALTOR® or attorney, to act as their authorized agent but must expressly approve
any workout agreement reached by that agent.
21. The Notice of Default must include a declaration indicating that the lender has
made the contact or made a diligent effort to make the contact and will not apply in the event
of surrender of the property.
LOAN MODIFICATION PROCEDURAL HISTORY
22. Between September and December, 2009, the United States Treasury
Department created guidelines under the Making Home Affordable Plan (“HAMP”) to assist
eligible homeowners with making their monthly mortgage payments.
23. The first set of guidelines was created on or about October
24. The guidelines created on or about November 3, 2009, are referred to as
Supplemental Directive 09-08, and became effective January 1, 2010. Excerpts from
Supplemental Directive 09-08 are as follows:
1) A servicer must send a Borrower Notice to every borrower that has been
evaluated for HAMP but is not offered a Trial Period Plan, is not offered an
official HAMP modification, or is at risk of losing eligibility for HAMP because
they have failed to provide required financial documentation. The written notices
must comply with all laws, rules and regulations including but not limited to, the
Equal Credit Opportunity Act, when applicable to the transaction.
2) Evaluation for HAMP. Supplemental Directive 09-06 announced additional data
-5-________________________________________________________________________________
Complaint
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
LAW
OF
FIC
ES
OF
CA
TAR
INA
M. B
EN
ITE
Z20
14
TU
LA
RE
ST
RE
ET,
SU
ITE
40
0F
RE
SN
O, C
A 9
3721
reporting requirements that are triggered when a mortgage loan is evaluated for
HAMP. It provided that a mortgage is evaluated for HAMP when one of the
following events has occurred:
a. A borrower has submitted a written request (either hardcopy or electronic
submission) for consideration for a HAMP modification that includes, at a
minimum, current borrower income and a reason for default or
explanation of hardship, as applicable; or
b. A borrower has verbally provided sufficient financial and other data to
allow the servicer to complete a Net Present Value (NPV) analysis; or
c. A borrower has been offered a Trial Period Plan.
3) When a borrower is evaluated for HAMP and the borrower is not offered a Trial
Period Plan or official HAMP modification, servicers are required to provide data
specified in Schedule IV of Supplemental Directive 09-06 (Schedule IV) to Fannie
Mae as Treasury’s program administrator. The data reporting requirements in
Schedule IV are designed to document the disposition of borrowers evaluated for
HAMP.
4) Whenever a servicer is required to provide data specified in Schedule IV, the
servicer must also comply with the requirements in this Supplemental Directive
and send the appropriate Borrower Notice. With the exception of the Notice of
Incomplete Information, all Borrower Notices must be mailed no later than 10
business days following the date of the servicer’s determination that a Trial Period
Plan or official HAMP modification will not be offered. Borrower Notices may be
sent electronically only if the borrower has previously agreed to exchange
correspondence relating to the modification with the Servicer electronically.
5) Content of Borrower Notices. The content of the Borrower Notices will vary
depending on the information intended to be conveyed or the determination made
by the servicer. All Borrower Notices must be written in clear, non-technical
language, with acronyms and industry terms such as “NPV” explained in a
-6-________________________________________________________________________________
Complaint
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
LAW
OF
FIC
ES
OF
CA
TAR
INA
M. B
EN
ITE
Z20
14
TU
LA
RE
ST
RE
ET,
SU
ITE
40
0F
RE
SN
O, C
A 9
3721
manner that is easily understandable. The explanation(s) should relate to one or
more of the Not Approved/Not Accepted reason codes specified in Schedule IV.
Model clauses for reasons that relate to the codes in Schedule IV are attached as
Exhibit A. Use of the model clauses is optional; however, they illustrate a level of
specificity that is deemed to be in compliance with the language requirements of
this Supplemental Directive.
a. Non-Approval – for borrowers not approved for a Trial Period Plan or
official HAMP modification, this notice must provide the primary reason
or reasons for the non-approval. The notice must also describe other
foreclosure alternatives for which the borrower may be eligible, if any,
including but not limited to other modification programs, short sale and/or
deed in lieu or forbearance, and identify the steps the borrower must take
in order to be considered for those options. If the servicer has already
approved the borrower for another foreclosure alternative, information
necessary to participate in or complete the alternative should be included.
Whenever a non-government foreclosure prevention option is discussed,
the notice should be clear that the borrower was considered for but is not
eligible for HAMP.
b. When the borrower is not approved for a HAMP modification because the
transaction is NPV negative, the notice must, in addition to an explanation
of NPV, include a list of certain input fields that are considered in the
NPV decision and a statement that the borrower may, within 30 calendar
days of the date of the notice, request the date the NPV calculation was
completed and the values used to populate the NPV input fields defined in
Exhibit A. The purpose of providing this information is to allow the
borrower the opportunity to correct values that may impact the analysis of
the borrower’s eligibility.
6) If the borrower, or the borrower’s authorized representative, requests the specific
-7-________________________________________________________________________________
Complaint
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
LAW
OF
FIC
ES
OF
CA
TAR
INA
M. B
EN
ITE
Z20
14
TU
LA
RE
ST
RE
ET,
SU
ITE
40
0F
RE
SN
O, C
A 9
3721
NPV values orally or in writing within 30 calendar days from the date of the
notice, the servicer must provide them to the borrower within 10 calendar days of
the request. If the loan is scheduled for foreclosure sale when the borrower
requests the NPV values, the servicer may not complete the foreclosure sale until
30 calendar days after the servicer delivers the NPV values to the borrower. This
will allow the borrower time to make a request to correct any values that may
have been inaccurate.
FACTS
25. In or about 1995, Plaintiff purchased the property as his primary residence.
26. In or about 2004, Plaintiff was laid off from his place of employment, where
he had been working as an industrial painter.
27. From 2004 through 2009, Plaintiff struggled to make ends meet and used his
retirement to make his monthly mortgage payments.
28. In or about May, 2009, Plaintiff started falling behind on his monthly
mortgage payments on the property.
29. On or May 7, 2010, Plaintiff received a Notice of Trustee’s Sale.
30. On the day Plaintiff received the Notice of Trustee’s Sale, he spoke to a
person by the name of Jason at BAC regarding the loan modification program. Upon inquiry,
Plaintiff was asked to prepare all of his monthly bill statements, and was told that he would
receive documents through Federal Express within ten days of the phone call.
31. On or about May 17, 2010, Plaintiff called BAC again and spoke with Mary.
Plaintiff notified Mary that he did not receive the documents he was assured he would
receive from Jason. At that point, Mary, the representative from BAC, notified Plaintiff that
he had been approved for a loan modification on May 16, 2010. Plaintiff was instructed to
call on May 28, 2010 to let BAC know if he had received the loan modification
documentation. Plaintiff was notified that BAC needed the signed documents returned to
them at least seventy-two (72) hours before BAC could postpone the sale date. Plaintiff also
notified BANK that he received a “Letter of Reinstatement” but was told that he did not need
-8-________________________________________________________________________________
Complaint
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
LAW
OF
FIC
ES
OF
CA
TAR
INA
M. B
EN
ITE
Z20
14
TU
LA
RE
ST
RE
ET,
SU
ITE
40
0F
RE
SN
O, C
A 9
3721
to worry about that letter, as the modification was going through. Therefore, Plaintiff
believed the modification was approved.
32. On or about May 28, 2010, Plaintiff called BAC. This time, he was told that
the loan documentation was sent from BAC to RECON, and Plaintiff was instructed to call
back on June 1, 2010.
33. On or about June 1, 2010, Plaintiff called BAC to inquire about his
modification. On that day, for the first time, Plaintiff was notified that he had been denied for
the modification. Plaintiff then inquired as to why he had been denied for the modification
even though he was told he had been approved in May. Plaintiff was not provided with a
reason for BAC’S denial of his modification. During the entire day of June 1, 2010, Plaintiff
made several phone calls to BANK and RECON to find out ways to save his home. He was
not provided with a response from either BAC or RECON.
34. On or about June 2, 2010, at 7:00 AM, Plaintiff called RECON to determine
if any of the paperwork had been received from BAC and was told that paperwork had not
been received. Plaintiff then called BAC and spoke to a party by the name of Alex or Eric in
their foreclosure department to receive assistance. At that time, Plaintiff was notified that he
had to send $8,892.70 via overnight mail to BAC to save his home and cure the default.
Plaintiff was ready, willing, and able to pay the amount in arrears that morning. That
afternoon, at approximately 2:00 PM, Plaintiff spoke with a representative from BAC by the
name of Elian. At that time, Plaintiff was notified that sending the $8,892.70 originally
requested would not serve as a guarantee or protection against his home selling at the
Trustee’s Sale.
35. Also on June 2, 2010, Plaintiff once again called RECON to determine if any
paperwork had been received from BAC. At that point, Plaintiff was informed that his house
was sold at 10:30 AM that day for approximately $77,000. At that time, Plaintiff’s home’s
value was estimated at $130,000.00. Plaintiff’s balance on his mortgage was approximately
$56,000.00
-9-________________________________________________________________________________
Complaint
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
LAW
OF
FIC
ES
OF
CA
TAR
INA
M. B
EN
ITE
Z20
14
TU
LA
RE
ST
RE
ET,
SU
ITE
40
0F
RE
SN
O, C
A 9
3721
36. At this time, Plaintiff is of the belief that BAC is now conducting an internal
investigation as to whether the Trustee’s Sale was valid and is in the process of considering
rescinding the sale. However, there is no guarantee that the sale would be rescinded, and it is
possible that the Trustee’s Deed Upon Sale will be recorded.
FIRST CAUSE OF ACTION
(Fraud - Against Defendant BAC and DOES 1 through 25)
37. Plaintiff hereby incorporates Paragraphs 1 through 29 as if the same were
fully set forth herein.
38. Fraud occurs where: there is an affirmative misrepresentation, concealment of
a known fact, or a “half-truth”, or suppression of a fact by a party obligated to disclose such
information which information is likely to mislead the party receiving the information.
39. Fraud also occurs where a defendant makes an untrue representation of a
material fact without a reasonable ground for its truth or in a manner not warranted by the
available information. Such representation must be made with the intent that Plaintiff would
rely and does rely, and where such reliance causes Plaintiff’s harm.
40. BAC, as their role as the true beneficiary, failed to provide Plaintiff with
adequate notice regarding the Trustee’s Sale, and lead him to believe that the sale of his
home would be placed on hold until a loan modification was evaluated.
41. At the time BAC made the above-mentioned misrepresentations, they knew
them not to be true, and did not intend to keep the promises that were made, and intended at
all relevant times to proceed with the foreclosure sale of the Property, and to deny any
request made by Plaintiff to obtain a loan modification.
42. Plaintiff is of the belief and therefore contends that the representations made
by BAC were done to provide Plaintiff with a false sense of hope that his home could
actually be saved.
43. Plaintiff, in obtaining the information from Defendants, reasonably relied on
such information, and continued attempting to obtain a loan modification, with the hope that
the loan modification would go through before the projected sale date of June 2, 2010.
-10-________________________________________________________________________________
Complaint
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
LAW
OF
FIC
ES
OF
CA
TAR
INA
M. B
EN
ITE
Z20
14
TU
LA
RE
ST
RE
ET,
SU
ITE
40
0F
RE
SN
O, C
A 9
3721
44. As a direct and proximate cause of Defendants’ material omissions and
misrepresentations, Plaintiff has suffered damages.
SECOND CAUSE OF ACTION
(Quiet Title – Against Defendants BAC and DOES 26 through 49)
45. Plaintiff hereby incorporates Paragraphs 1 through 44 as if the same were
fully set forth herein.
46. Plaintiff is and at all times mention was, entitled to possession of the property
located at , , California APN ---- .
47. From the time Plaintiff first inquired about a loan modification, until the time
it was sold, agents and/or employees of Defendants, and each of them, made false
representations to Plaintiff in order to fund a loan, in which the Plaintiff’s personal residence
was to be security therefore. Defendants also made false representations which lead Plaintiff
into believing that a loan modification would be obtained for his property. Plaintiff alleges
that based upon the representations made by Defendants, and each of them, Plaintiff
reasonably placed his trust in Defendants’ representations and disclosed his personal
financial information to Defendants so Plaintiff could obtain a loan which matched his
financial needs and limitations.
48. Plaintiff is informed and believes, and upon such belief alleges that
defendants, and each of them, claim an interest in the property adverse to plaintiff herein.
However, the claim of said Defendants is without any right whatsoever, and these Defendants
do not have a legal or equitable right, claim, or interest in said property.
49. Plaintiff alleges that due to the fraud of Defendants, and each of them, title to
the subject property has been rendered unmarketable in that these Defendants, and their
assigns, have caused to be recorded as against the subject property documents which have
clouded Plaintiff’s title thereto.
50. Plaintiff therefore seeks a declaration that the title to the subject property is
vested in plaintiff alone and that the defendants, and each of them, herein be declared to have
no estate, right, title or interest in the subject property and that said defendant, and each of
-11-________________________________________________________________________________
Complaint
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
LAW
OF
FIC
ES
OF
CA
TAR
INA
M. B
EN
ITE
Z20
14
TU
LA
RE
ST
RE
ET,
SU
ITE
40
0F
RE
SN
O, C
A 9
3721
them, be enjoined forever from asserting any estate, right, title or interest in the subject
property adverse to plaintiff herein.
THIRD CAUSE OF ACTION
(Declaratory Relief – Against All Defendants)
51. Plaintiff hereby incorporates by reference paragraphs 1 through 50 and
paragraphs as if the same were fully set forth herein.
52. The allegations by Plaintiff herein establish that a real and present controversy
exist as to the respective rights of the parties to this matter.
53. That by virtue of the method and manner of Defendants’ carrying out the
foreclosure without meeting the due diligence requirements or meeting the requirements of
any of the federal supplemental directives violates RESPA.
54. Plaintiff further alleges that the foreclosure sale of the Subject Property was
not executed in accordance with the requirements of California Civil Code Sections 2923.5
and 2923.6.
55. Plaintiff also alleges that Defendants, and each of them, wrongfully and
without privilege, caused a Notice of Default and Notice of Trustee’s Sale to be recorded
against the property. Plaintiff seeks a declaratory relief stating that none of the named
defendants, at the time of the recordation of Notice of Default and subsequent Notice of
Trustee’s Sale, had or has any right to interest in the Note, Deed or the Property which
authorized them to record such instrument, thus making the foreclosure of the Subject
Property is void ab initio as a matter of law.
56. Accordingly, a judicial declaration is necessary and appropriate at this time
and under these circumstances in order that Plaintiff may ascertain his rights and duties and
avoid a Trustee’s Deed Upon Sale from being recorded against his home and further avoid a
wrongful eviction from his home. Such recordation of the trustee’s deed and eviction will
cause Plaintiff to lose his property without establishing a lawful right of the defendants to
conduct such actions.
57.
-12-________________________________________________________________________________
Complaint
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
LAW
OF
FIC
ES
OF
CA
TAR
INA
M. B
EN
ITE
Z20
14
TU
LA
RE
ST
RE
ET,
SU
ITE
40
0F
RE
SN
O, C
A 9
3721
FOURTH CAUSE OF ACTION
(Breach of the Covenant of Good Faith and Fair Dealing – Against Defendants BAC
and DOES 50-100)
58. Plaintiff hereby incorporates by reference paragraphs 1 through 56 and
paragraphs as if the same were fully set forth herein.
59. Plaintiff and BAC entered into the Agreement by which BAC promised to halt
the foreclosure pending the approval or denial of a loan modification. Plaintiff was ready,
willing, and able to tender the delinquent sums in full, but was notified that doing so would
not necessarily halt the trustee’s sale of his home. Thus, Plaintiff performed according to the
Agreement until BAC repudiated the Agreement by selling Plaintiff’s home on or about June
2, 2010.
60. BAC had a superior bargaining position and superior knowledge in making
the Agreement and was able to dictate its terms.
61. Implied in the Agreement between Plaintiff and BAC was a covenant of good
faith and fair dealing by which BAC covenanted not to do anything which would deprive
Plaintiff of the benefits of the agreement.
62. PLAINTIFF detrimentally relied on the Agreement in that he withheld the
sums of money he could have tendered to bring his loan current pursuant to the agreement
made between himself and BAC.
63. BAC engaged in a conduct evidencing an intent to frustrate PLAINTIFF’s
enjoyment of his rights under the Agreement.
64. BAC breached the implied covenant of good faith and fair dealing when they
proceeded with the foreclosure of the Property by repudiating the Agreement and selling
Plaintiff’s property on or about June 2, 2010.
65. As a result of BAC’S breach of the covenant, Plaintiff’s estate and Plaintiff
have suffered damages including the loss of his home, money damages, severe emotional
distress, and other incidental and consequential foreseeable damages in an amount to be
proven at trial.
-13-________________________________________________________________________________
Complaint
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
LAW
OF
FIC
ES
OF
CA
TAR
INA
M. B
EN
ITE
Z20
14
TU
LA
RE
ST
RE
ET,
SU
ITE
40
0F
RE
SN
O, C
A 9
3721
FIFTH CAUSE OF ACTION
(Promissory Estoppel – Against All Defendants)
66. Plaintiff hereby incorporates by reference paragraphs 1 through 64 and
paragraphs as if the same were fully set forth herein.
67. Plaintiff and BAC entered into the Agreement.
68. BANK knew or had reason to know that such an agreement was entered into
between the parties.
69. BAC through and by its agents, Jason, and Mary, made clear and
unambiguous promises to PLAINTIFF that by executing the Agreement that was to be
delivered to him and RECON, the proceedings to foreclose the Property would be halted.
70. BAC’S agents intended that their statements be acted upon.
71. BAC’S agents made these promises to PLAINTIFF and intended to make
these representations to PLAINTIFF.
72. BAC is estopped from claiming that PLAINTIFF was not acting in good faith
when these promises were made to her.
73. PLAINTIFF believed that he should act upon the above-mentioned promises,
and was ignorant of the true state of facts.
74. PLAINTIFF reasonably and foreseeably relied on these promises and
unknowingly and involuntarily waived the statutory right to cure the default and prevent the
foreclosure sale of the property.
75. PLAINTIFF was ready, willing, and able to make the required payments to
bring his loan current.
76. Had PLAINTIFF knew that BAC did not intend to keep its promises, he
would have paid the $8892.70 to cure the default.
77. Injustice would result if the court will not enforce BAC’S promises, in that
PLAINTIFF will lose and will be permanently evicted from his family home.
///
///
-14-________________________________________________________________________________
Complaint
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
LAW
OF
FIC
ES
OF
CA
TAR
INA
M. B
EN
ITE
Z20
14
TU
LA
RE
ST
RE
ET,
SU
ITE
40
0F
RE
SN
O, C
A 9
3721
SIXTH CAUSE OF ACTION
(Wrongful Foreclosure: Violation of Civil Code Section 2923.5 –
Against BAC and DOES 100-150)
78. Plaintiff hereby incorporates by reference each and every one of the preceding
paragraphs as if the same were fully set forth herein.
79. California Civil Code §2923.5 prohibits the filing of a Notice of Default until
its provisions are fulfilled.
80. By virtue of the method and manner of Defendants carrying out Civil Code
Section 2923.5, Defendants’ act of foreclosing on the Subject Property was done in violation
of said statute, which required a declaration from the mortgagee, beneficiary, or authorized
agent that it has contacted the borrower, tried with due diligence to contact the borrower as
required by this section, or the borrower has surrendered the property to the mortgagee,
trustee, beneficiary, or authorized agent.
81. Plaintiff is informed and believes, and upon such belief alleges that a notice of
default was provided to Plaintiff, but such notice did not include a declaration under penalty
of perjury, as required by Civil Code Section 2923.5.
82. None of the itemized beneficiaries or servicers (BANK, BAC or RECON)
attached a declaration that indicated, based on personal knowledge, that efforts were
discussed to assist Plaintiff in avoiding foreclosure. There was also no detailed account of the
efforts that were made.
83. In addition, California Civil Code §2923.5 requires that the mortgagee,
beneficiary, or authorized agent must contact Plaintiff with due diligence prior to recording a
Notice of Default. Plaintiff is informed and believes and upon such belief alleges that he was
such due diligence efforts were not followed.
84. Furthermore, in viewing this statements on its face, there is no indication that
the requirements of Civil Code §2923.5 were fulfilled. Based on the language set forth in the
Declaration, it appears to be an edited statement of one intended to be used prior to the notice
-15-________________________________________________________________________________
Complaint
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
LAW
OF
FIC
ES
OF
CA
TAR
INA
M. B
EN
ITE
Z20
14
TU
LA
RE
ST
RE
ET,
SU
ITE
40
0F
RE
SN
O, C
A 9
3721
requirements set forth by SB 1137. This Notice of Default directly violates Civil Code
§2923.5.
85. Plaintiff hereby agrees to tender payment in the amount owing on the
mortgage on the date of the wrongful foreclosure, provided the sums required to tender are
the proper amount due and owing at the time the foreclosure sale was conducted.
86. Thus, due to Defendants’ failure to act with due diligence, Plaintiff has
suffered damages.
SEVENTH CAUSE OF ACTION
(Injunctive Relief – Against All Defendants)
87. Plaintiff hereby incorporates by reference each and every one of the preceding
paragraphs as if the same were fully set forth herein.
88. Defendants, and each of them, are responsible for claims of, or claim to have
an interest in, the Property. BAC has, without privilege, recorded a notice of default and
RECON, without privilege, has caused a notice of trustee’s sale to be recorded against the
Property.
89. Defendants, and each of them, lack standing and do not have the right to
enforce the note and any incidental right to collateral so as to foreclose on Plaintiffs’ Home.
90. Defendants, and each of them, have also committed a wrongful act by
wrongfully foreclosing on Plaintiff’s property.
91. Plaintiff is also threatened with immediate, irreparable harm if any defendant
is permitted to continue to lay claim to Plaintiff’s property and finalize their action to deprive
Plaintiff of title and possession of his rightful Property, by selling Plaintiff’s Property to a
bona fide purchaser. Plaintiff therefore needs an injunction preventing defendants from
taking possession of the Property until such time as this matter can be properly heard and
resolved.
92. Any such action would result in new causes of action against each defendant,
cause irreparable harm to Plaintiffs, and will cause pecuniary compensation which will not
afford adequate relief because Plaintiffs’ Home is unique.
-16-________________________________________________________________________________
Complaint
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
LAW
OF
FIC
ES
OF
CA
TAR
INA
M. B
EN
ITE
Z20
14
TU
LA
RE
ST
RE
ET,
SU
ITE
40
0F
RE
SN
O, C
A 9
3721
93. Even if the named defendants can somehow at some point prove that they are
holders in due course of the Note, or that there was no fraud in the execution of the Note and
Deed of Trust, any injuries they might suffer in the interim would be substantially less than
what Plaintiff will suffer absent injunctive relief from this court.
94. Due to Defendants’ wrongful acts of foreclosing on Plaintiff’s property and
causing a Notice of Default and Notice of Trustee’s Sale to be recorded against the property,
Plaintiff seeks relief preventing the defendants from commencing any action to further their
unlawful claims to an interest in the property.
EIGHTH CAUSE OF ACTION
(Set Aside Illegal Trustee’s Sale – Against All Defendants)
95. Plaintiff hereby incorporates by reference each and every one of the preceding
paragraphs as if the same were fully set forth herein.
96. Defendants are prevented from foreclosing on the subject property, as they
failed to properly conduct a valid foreclosure sale.
97. Defendant BAC failed to satisfy the requirements of the Supplemental
Directive governing the provisions of the Home Affordable Modification Plan, particularly,
portions of Section 09-08 which state that a loan servicer may not complete the foreclosure
sale until 30 calendar days after the servicer delivers the NPV values to the borrower. The
NPV is also known as the Net Present Value test which provides a detailed statement of the
figures used to deny a loan modification. Although Plaintiff requested reasons for the denial
of his loan modification orally, the reasons for the denial were never provided, nor was the
foreclosure sale halted to provide Plaintiff with the reasons for the denial.
98. As a direct and proximate result of the actions of the Defendants, Plaintiff has
and continues to suffer damages.
///
///
///
///
-17-________________________________________________________________________________
Complaint
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
LAW
OF
FIC
ES
OF
CA
TAR
INA
M. B
EN
ITE
Z20
14
TU
LA
RE
ST
RE
ET,
SU
ITE
40
0F
RE
SN
O, C
A 9
3721
NINTH CAUSE OF ACTION
(Cancellation of the Trustee’s Deed – Against All Defendants)
99. Plaintiff hereby incorporates by reference each and every one of the preceding
paragraphs as if the same were fully set forth herein.
100. Plaintiff and BAC entered into an oral agreement on behalf of BAC and on
her behalf, pursuant to which the defendant BAC promised to halt the foreclosure
proceedings initiated by the notice of default, and waive the right to foreclose for the period
of the Agreement, as long as Plaintiff submitted the loan modification documents at least
seventy-two (72) hours prior to the sale date.
101. Plaintiff was prevented from performing due to the breach of BAC’S
obligation: to send the loan modification documents to Plaintiff. The breach of BAC thereby
excused Plaintiff’s continued performance.
102. BAC lead Plaintiff to believe that the trustee’s sale would not be completed on
or about June 2, 2010, thereby leading Plaintiff to waive his right to cure the default and
prevent the foreclosure of the property when they made the fraudulent statements as alleged
above.
103. RECON further acted by selling the home at a trustee’s sale on June 2, 2010,
even though they knew or had reason to know that BAC was acting as though it intended to
stop the sale. Prior to the sale, RECON had the authority to stop the sale, but did not do so.
104. In engaging in the above-mentioned acts, the representatives, officers, and
agents of BAC and RECON were acting did the above acts with the authorization and
consent of BAC and RECON’S officers, directors and managerial agents.
105. The Trustee’s Sale held June 2, 2010, was therefore a result of fraud and
violations of the statutes for non judicial foreclosure designed to protect the homeowners,
and is therefore unconscionable and void and should be cancelled.
106. If left outstanding, the Trustee’s Deed Upon Sale will be caused to be
recorded and would continue to cause serious injury to Plaintiff, who will lose the property
and the family home.
-18-________________________________________________________________________________
Complaint
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
LAW
OF
FIC
ES
OF
CA
TAR
INA
M. B
EN
ITE
Z20
14
TU
LA
RE
ST
RE
ET,
SU
ITE
40
0F
RE
SN
O, C
A 9
3721
TENTH CAUSE OF ACTION
(Unfair Business Practices – Against All Defendants)
107. Plaintiffs reaffirm and reallege paragraphs above herein as if specifically set
forth more fully herein below.
108. California Business and Professions Code § 17200 et seq. prohibits any
unlawful, unfair, or fraudulent business act or practice and unfair, deceptive, untrue or
misleading advertising and any act prohibited by Business and Professions Code § 172500 et
seq.
109. California Business and Professions Code § 172500 et seq. prohibits the
making of a false statement or a publication or a declaration concerning any circumstance or
matter of fact connected with the proposed performance or disposition of real or personal
property, which pronouncements is untrue or misleading, and which is known or which by
the exercise of reasonable care should be known, to be true or misleading.
110. Defendants, and each of them, violated Business and Professions Code §§
17200 and 172500 et seq. through the following actions and by aiding and abetting each
other in the completion and continued perpetration of the following actions: By failing to
engage in loan modification or workout discussions in good faith as required by California
Civil Code §2923.6; by attempting to go to sale without insuring that the beneficiary had in
its possession the original promissory note with endorsements.
111. By committing the acts described herein Defendants, and each of them, have
engaged in unfair business practices, causing injury and damages to plaintiff, and therefore
violated California Business and Professions code section 17200, all of which entitle Plaintiff
to seek damages.
WHEREFORE, Plaintiff prays as follows:
1. For preliminary and permanent injunctive relief, enjoining
BANK, BAC, RECON, and its agents from proceeding with the recording of the Trustee’s
Deed Upon Sale;
-19-________________________________________________________________________________
Complaint
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
LAW
OF
FIC
ES
OF
CA
TAR
INA
M. B
EN
ITE
Z20
14
TU
LA
RE
ST
RE
ET,
SU
ITE
40
0F
RE
SN
O, C
A 9
3721
2. For preliminary and permanent injunctive relief, enjoining
BANK, BAC, RECON, and its agents from selling, transferring, negotiating, or in any
manner encumbering the property at , , California and from proceeding
with an Unlawful Detainer action against Plaintiff and the property;
3. For an Order setting aside the foreclosure sale of the property of
June 2, 2010.
4. A Declaration of the respective rights and responsibilities of the
plaintiffs and defendants with respect to the Forbearance/Stipulation Agreement, Trustee
Deed Upon Sale, and the property at ,;
5. An order compelling BANK, BAC and RECON to convey the
title to the property the property at , to plaintiffs;
6. An order declaring that BANK, BAC, RECON, and/or the DOE
defendants, holds all monies derived from the Trustee Deed Upon Sale, if recorded, in trust
for plaintiffs;
7. For actual and general damages according to proof at trial;
8. For punitive damages according to proof;
9. For interest at the legal rate according to proof;
10. For costs of suit herein incurred;
11. For all other such relief as the Court deems proper.
Dated: June 21, 2010 LAW OFFICES OF CATARINA M. BENITEZ
_______________________________CATARINA M. BENITEZ, Attorney for Plaintiff,PLAINTIFF _____
-20-________________________________________________________________________________
Complaint
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
LAW
OF
FIC
ES
OF
CA
TAR
INA
M. B
EN
ITE
Z20
14
TU
LA
RE
ST
RE
ET,
SU
ITE
40
0F
RE
SN
O, C
A 9
3721
VERIFICATION
I, PLAINTIFF _____, am the Plaintiff in the above entitled action. I have read the
foregoing complaint and know the contents thereof. The same is true of my own knowledge,
expect as to those matters which are therein alleged on information and belief, and as to those
matters, I believe it to be true.
I declare under penalty of perjury, under the laws of the State of California, that the
foregoing true and correct and that this declaration was executed in Fresno, Fresno County,
State of California.
Dated: June _____, 2010
__________________________ PLAINTIFF _____, Plaintiff
-21-________________________________________________________________________________
Complaint