Fac Final Complaint

8/4/2019 Fac Final Complaint

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-1-PLAINTIFFS FIRST AMENDED COMPLAINT

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Christian McLaughlin (State Bar No. 250885)LEGAL OBJECTIVE 701 Palomar Airport Road, Ste. 300Carlsbad, CA 92011Telephone No.: (760) 431-2200Facsimile No.: (760) 431-2244

Attorney for Plaintiff,Jeffrey Bohl

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SAN DIEGO

Case No. 37-2010-00096860-CU-FR-CTL

PLAINTIFFS FIRST AMENDEDCOMPLAINT FOR:

1. FRAUD-INTENTIONALMISREPRESENTATION

2. FRAUD-NEGLIGENTMISREPRESENTION

3. BREACH OF FIDUCIARY DUTY4. WRONGFUL FORECLOSURE5. CANCEL TRUSTEES DEED

6. SLANDER OF TITLE

7. VIOLATION OF BUSINESS &PROFESSIONS CODE 172008. QUIET TITLE9. NUISANCE10. TRESPASS11. NEGLIGENCE

REQUEST FOR JURY TRIAL

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JEFFREY BOHL, an individual,

Plaintiff,

vs.

AVALON MORTGAGE, anunknown entity; LONG BEACHMORTGAGE COMPANY, asurrendered California corporation;WAMU, a surrendered Californiacorporation, as successor in interestto Long Beach Mortgage Company;JPMORGAN CHASE BANK, a

California corporation, as successorin interest to WAMU; DEUTSCHEBANK NATIONAL TRUSTCOMPANY, a Trustee for LongBeach Mortgage Company;PACIFICA MORTGAGECOMPANY, INC., a suspendedCalifornia entity; REO WORLD,Inc., a California corporation; J.C.AGAJANIAN, an individual; GARYZINC, an individual; DEBORAHBRIGNAC, an individual, and DOES1 through 100, inclusive,

Defendants.


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Plaintiff Jeffrey Bohl (Bohl or Plaintiff), by and through counsel, for his First

Amended Complaint against Defendants Avalon Mortgage, Long Beach Mortgage Company,

WAMU, JPMorgan Chase Bank, National Association, Deutsche Bank National Trust Company,

Pacifica Mortgage Company, Inc., REO World, Inc., J.C. Agajanian, Gary Zinc, and DeborahBrignanc, alleges as follows:

PARTIES

1. Plaintiff Jeffrey Bohl is, and at all times mentioned herein was, a resident of the City of

San Diego, State of California.

2. Plaintiff is informed and believes, and thereon alleges, that at all times mentioned herein,

defendant Avalon Mortgage (Avalon) was, an active California corporation and

conducted business in the County of San Diego.


defendant Long Beach Mortgage Company (Long Beach Mortgage) was an active

Delaware corporation qualified to do business in the State of California and conducted

business in the County of San Diego.


defendant Washington Mutual Bank (WAMU ) was an active Washington Corporation

qualified to do business in the State of California, and conducted business in the County

of San Diego. Plaintiff is further informed and believes, and thereon alleges, that at all

times mentioned herein, WAMU was a successor in interest to Long Beach Mortgage.


defendant JPMorgan Chase Bank, National Association (JPMorgan) was an active New

York corporation qualified to do business in the State of California, and conductedbusiness in the County of San Diego. Plaintiff is further informed and believes, and

thereon alleges, that at all times mentioned herein, JPMorgan was a successor in interest

to Washington Mutual.


defendant Deutsche Bank National Trust Company (Deutsche Bank) was a trustee for


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Long Beach Mortgage.


defendant Pacifica Mortgage Compa ny, Inc. (Pacifica Mortgage) was a California

corporation and conducted business in the County of San Diego.8. Plaintiff is informed and believes, and thereon alleges, that at all times mentioned herein,

defendant REO World, Inc. (REO) was a California c orporation and conducted

business in the County of San Diego.


defendant J.C. Agajanian (Mr. Agajanian) was and currently still is an employee and/or

agent of Pacifica Mortgage.


defendan t Gary Zinc (Mr. Zinc) was and currently still is an employee and/or agent of

Pacifica Mortgage.


defendant Deborah Brignac was and still is an individual whos employer is not yet

known.

12. The true names and capacities, whether individual, corporate, associate, or otherwise, of

DOES 1 through 100, inclusive, are unknown to Plaintiff, who therefore sues said DOE

defendants by such fictitious names pursuant to Code of Civil Procedure section 474.

Plaintiff will amend this Complaint to show their true names and capacities when they

have been ascertained.

13. Plaintiff is informed and believes, and thereon alleges, that Defendants, and each of them,

including DOES 1 through 100, inclusive, were the agents, servants, employees,successors, assigns, transferees and/or joint venturers of their co-Defendants, and each

was, as such, acting within the course, scope and authority of said agency, employment

and/or joint venture, and was acting with the consent, permission and authorization of

each of the remaining Defendants. All actions of each Defendant as alleged herein were

ratified and approved by every other Defendant or its officers, directors or managing


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agents.

HISTORIC BACKGROUND

14. The financial crisis facing our nation is not a natural disaster, people did it and extreme

greed drove it. America has suffered a devastating economic assault, individuals such asPlaintiff have been damaged and Plaintiff is entitled to relief.

15. WAMU had long realized that it was more profitable to sell loans then to hold them. By

selling a loan, a profit can be made and fresh capital is generated to fund more loans. The

securitization of mortgages provided a quick and predictable means for banks, like

WAMU, to sell loans on their books in bulk. Loans were pooled, shell organizations

were formed to hold the pools revenue stream, the value of the pool was calculated, the

pool was rated by credit rating agencies, bonds were created, and bonds were insured and

then sold as Mortgage Backed Securities (MBS).

16. The trade value of a loan, in part, was based on the total amount of theoretic revenue

produced over time. Hence, high risk loans carrying higher interest rates brought the

highest trade value. Little if any consideration was given to the borrowers actu al ability

to repay the loan. The focus was on volume and speed, not quality. The insurance

policies insuring the MBS were also pooled and traded on the open market in what

became known as credit default swaps, or what can easily be referred to as gamb ling on

failure. The industry standard became, sell fast and pass off the risk.

17. WAMU would purchase loans from third- party originators. In Plaintiffs case, WAMU

purchased Plaintiffs loan from Long Beach Mortgage. Long Beach Mortgage was

primarily a high risk lender.

18.

In 1999 WAMU purchased Long Beach Mortgage, and by 2006 Long Beach Mortgagehad developed a reputation for creating the worst performing loans on the market. Ken

Schneider, former CEO of Washington Mutual said, Long Beach Mortgage Com pany

routinely closed loans containing fraudulent documents, and the fraudulent documents

were often created by Long Beach Mortgage Company. (See, Home Land Security &

Governmental Affairs Subcommittee investigation into the fall of WAMU).


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19. Long Beach Mortgage also realized the value in having no direct contact with a borrower

and obtained their clients by offering undisclosed bonuses and commissions to

independent agents/brokers. The independent brokers and agents would seek out

consumers and conduct loan closings naming Long Beach Mortgage as the lender. Thecommissions paid were significantly higher for the more profitable subprime loans verses

ones with traditional fixed rates, and as a result almost all borrowers were steered toward

the subprime market.

20. Long Beach Mortgage had undisclosed, preexisting agreements with WAMU allowing

for loans to be transferred from Long Beach Mortgage to WAMU upon the borrowers

signing. The intentional lack of oversight by Long Beach Mortgage and WAMU created

a standard of practice in which the only qualification a borrower needed to possess was

the motor skills necessary to sign a loan document. A Ponzi Scheme of enormous

magnitude was created.

21. As of mid July 2007, the bubble burst, the sub-prime market went cold and banks such as

WAMU were left holding unmarketable securities. On September 25, 2008, Washington

Mutual Bank, a three-hundred billion dollar thrift and the sixth largest financial

institution in America, was seized and sold to JPMorgan through the FDIC for just under

two billion dollars, in what was the largest bank failure in United States history.

FACTUAL ALLEGATIONS

22. During the period between June 30, 2006, and up to early 2010, Plaintiff had been the

owner of real property located at, and commonly known as, 4544 Alhambra Street, San

Diego, CA 92107 (Subject Property), and described more specifically as: Lot 16 in

block 16 of Sunset Cliffs, in the City of San Diego, county of San Diego, State of California, according to map thereof No. 1889, file in the Office of the County Recorder

of San Diego County, March 1, 1926, said land lies within the boundaries of Sunset Cliffs

Lighting District No. 1.

23. During the early part of 2006, Plaintiff purchased the Subject Property for a total of

$1,279,706.140, of which approximately $300,000.00 was paid by Plaintiff as a cash


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down payment.

24. On or about mid, 2006, Plaintiff was induced to enter into a loan agreement with

defendants Long Beach Mortgage and WAMU, through a broker from Avalon Mortgage,

for a total borrowed amount of approximately $990,000.00. This Long Beach Mortgageloan, No. 6742814-7874, was secured by a Deed of Trust in connection with the Subject

Residence (Subject Loan.)

25. The Subject Loan was pooled and securitized into the Mortgage Backed Securities

Market (MBS). The Subject Loan may be located in Long Beach Mortgage Loan Trust

Pool 2006-8.

26. After Plaintiff had made timely payments on the Subject Loan for approximately 2 years,

he received a letter from the servicer informing him that his rate would increase beyond

8.75%. It was at that time Plaintiff began to discover the true terms and conditions of the

Subject Loan, which were very different from those represented to him by Avalon

Mortgage prior to and at the time the loan was consummated. The unknown terms and

conditions of the Subject Loan include, without limitation, the following:

a. Plaintiff was promised and Plaintiff received a loan with an initial fixed interest

rate of 8.75% for a period of two years, thereafter the interest rate would fluctuate

according to LIBOR plus a margin and the interest rate would never exceed

14.75%. Significantly different from what Plaintiff was promised is the fact that

the interest rate on the loan that Plaintiff received would never be less than 8.75%.

b. Plaintiff was promised a thirty (30) year loan, but Plaintiff received a forty (40)

year loan.

c.

The settlement charges were far greater than those promised to Plaintiff,amounting to approximately $11,261.69.

27. Plaintiff looked into refinancing the existing loan, but Plaintiffs attempts to refinance in

2008 were halted due to a nationwide freeze on credit.

28. Plaintiff contacted WAMU by telephone, the then acting loan servicer of Pl aintiffs loa n

and specifically explained to WAMU loan servicing representatives that it was not a


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question of affordability, but rather, it was the fact that Plaintiff found himself paying on

a loan that was not the terms that Plaintiff was promised. Plaintiff explained to WAMU

that the loan was sold to him under false pretenses and that he wanted to rescind the loan

based on this discovery. WAMU agents represented that a loan modification would bethe easiest way to correct the misrepresentations.

29. It was WAMU s policy to not offer a loan modification to a borrower unless that

borrower was at least three months behind on the loan payments. WAMU agents

instructed Plaintiff to fall at least three months behind on his monthly mortgage payments

and WAMU agents repeatedly told Plaintiff that WAMU would then modify the terms of

Plaintiffs loan.

30. In May of 2008 Plaintiff, following the advice of the WAMU agents, fell three months

behind on his payments and then Plaintiff applied for a loan modification. Plaintiff was

repeatedly assured by WAMU agents that if he followed their instructions, they would

not foreclose on his property and that he would receive a loan modification. Despite the

promises made by WAMU loan servicing agents, Plaintiff never received a loan

modification and Plaintiff learned WAMU had not only initiated foreclosure proceedings,

but also continued these proceedings in the shadows of their promises to not foreclose.

31. On September 25, 2008, the banking operations of Washington Mutual, Inc - Washington

Mutual Bank, Henderson, NV and Washington Mutual Bank, FSB, Park City, UT were

sold to JPMorgan in a transaction facilitated by the Office of Thrift Supervision ( OTS)

and the Federal Deposit Insurance Corporation ( FDIC ). The OTS/FDIC sold three

hundred billion dollars ($300B) of bank subsidiaries to JPMorgan for just under two

billion dollars.32. Throughout October, November, and December of 2008 Plaintiff receive weekly

telephone calls from WAMU servicing agents regarding his loan and beginning in

January of 2009, Plaintiff also began to receive weekly telephone calls from JPMorgan

loan servicing agents.

33. In or around, February 2009 Plaintiff traveled to Washington DC to attend the


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congressional hearings on the Subprime Loan Crisis.

34. On February 24, 2009, Plaintiff attended a House Committee Financial Services-Housing

and Community Opportunity meeting, held in Washington, DC. Also attending this

meeting with Plaintiff was Lim (Lynn) Schramm. Ms. Schramm and Plaintiff attendedthis meeting specifically to listen to guest speaker presentations regarding loan

modifications. The guest speakers were divided into two panels as follows: 1st panel

o Patrick Lawler, Federal Housing Finance Agency, Chief Economisto Grovetta Gardineer, Office of Thrift Supervision

o Joseph Evers, Office of Controller of Currencyo Vance Morris, Housing and Urban Development, Single Family Asset

Director

2nd panelo William Murphy, Ocwen Financial Corporation, Chairmen And CEOo Mary Coffin, Executive Vice President, Wells Fargo Home Mortgage

Servicing

o Micheal J Gross, Managing Director, Bank of America Loss Mitigationo Molley Shehan, Senior Vice President, Home Lending JP Morgan

o Steve Hemperly, Executive Vice President, Citigoup Mortgage Default

Servicing

35. At the subcommittee meeting the panelists admitted and agreed that something must be

done by loan servicers to address borrowers that had been seeking modifications because

they were victims of predatory lending.

36. On February 24, 2009, following the presentation at the House Meeting, Plaintiff

approached panelist Molley Shehan, Executive Vice President of Home Lending, for JPMorgan Chase. Plaintiff explained that he was a home owner that had obtained a home

loan from WAMU through Long Beach Mortgage. Plaintiff further explained that he was

in default and that he had been unsuccessful in obtaining a loan modification despite

being promised one by WAMU/JPMorgan loan servicing agents. Ms. Shehan referred

Plaintiff to Robert Griner, Vice President of JP Morgan Government Relations. Plaintiff


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explained to Mr. Grinder that he had received an adjustable rate loan from Long Beach

Mortgage, under WAMU, and that Plaintiff believed the loan to be predatory in nature.

Specifically, Plaintiff explained that the loan contained clauses in it that Plaintiff had

never seen, reviewed or agreed to. Plaintiff explained that WAMU servicing agents had

promised him a loan modification, but required that he first must fall at least three monthsdelinquent on his mortgage loan payments. Plaintiff explained that he had tried to get

these issues reviewed for over eleven months and by following the instructions of his

servicer he was now facing an imminent threat of foreclosure and damaged credit.

37. On February 24, 2009, after a lengthy conversation between Mr. Griner and Plaintiff, Mr.

Griner gave Plaintiff his card and in front of witnesses, namely Ms. Schramm and a

congressional aide of Maxine Waters, stated that if Plaintiff sent him an email and

followed up by telephoning his office, he would person ally look into Plaintiffs loan, and

if appropriate, take steps to suspend the foreclosure, and work to resolve the situation.

38. On February 25, 2009 Plaintiff emailed Mr. Robert Griner to supply Mr. Griner with

Plaintiffs loan number, and Mr. Griner confirmed receipt of Plaintiffs email.

39. On March 4, 2009, Plaintiff sent Mr. Griner another e-mail to remind him that Plaintiffs

home was set for Trustees Sale on March 10, 2009. Mr. Griner suspended the sale of the

Subject Property, and instructed Plaintiff that a local representative of JPMorgan would

be able to further assist him.

40. On February 24, 2009, after the subcommittee meeting, Plaintiff also met Maxine Waters,

who invited Lynn Schramm and Plaintiff back to her office. In Ms. Waters office,

Plaintiff told Ms. Waters that he was a victim of a predatory loan and he was also an

investor in Fannie Mae Preferred stock. Ms. Waters explained that somebody in her

office would assist Plaintiff in his efforts to modify his loan.

41. Ms. Waters introduced Plaintiff to Chief Of Staff McKail. Mr. McKail sat with Plaintiff,

in Mr. McKails office, and they discussed the history of loan modifications offered by

JPMorgan and WAMU.42. On April 20, 2009, Plaintiff telephoned Keith Cross at JP Morgan Chase Home Loan

Modification Division. Soon after, Plaintiff met with Mr. Cross at his San Diego office

where Mr. Cross explained to Plaintiff that he would handle the loan modification for

Plaintiff. At this meeting Mr. Cross assured Plaintiff that JPMorgan would review his

loan file, stop the foreclosure, and get Plaintiff a loan modification.


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43. In April of 2009, Plaintiff retained the services of attorney Nathan Aguilar to represent

him in his efforts against JPMorgan. Plaintiff filed case number 37-2009-00090244-CU-

OR-CTL in the Superior Court of California, Central Division. Plaintiff then filed a Lis

Pendens on the Subject Property.

44. On May 22, 2009 attorney Aguilar called Keith Cross to discuss the progress of hisinvestigation. Mr. Cross said that the foreclosure was delayed indefinitely and he gave

attorney Aguilar the telephone number t o JPMorgans legal department, which confirmed

that the foreclosure had been suspended.

45. Without any further notice or contact, on August 4 th, 2009, JPMorgan foreclosed on the

Subject Property.

46. Following the foreclosure, despite the fact Plaintiff was still in possession of and living at

the Subject Property, JPMorgan, through its asset management company REO World,

caused agent JC Agajanian and/or broker Gary Zinc of Pacifica Mortgage Company to

enter or cause to be entered the Subject Property, change the locks on the Subject

Property and list the Subject Property for sale.

47. Attorney Aguilar sent the agent, broker, and Pacifica Mortgage a letter explaining that

Plaintiff was still residing at the Subject Property and that their entry and damage to the

Subject Property was unlawful. Defendants gave the new keys and possession back to

Plaintiff.

48. On or around July 14, 2010, while an Unlawful Detainer proceeding was ongoing, JP

Morgan through its asset management company, REO World, again caused agent JC

Agajanian and/or broker Gary Zinc of Pacifica Mortgage Company to enter the Subject

Property, change the locks on the Subject Property, and listed the Subject Property for

sale. This time, all of Plaintiffs belongings were removed from the Subject Property.

49. Plaintiff, acting through new counsel, again sent the agent, broker and Pacifica Mortgage

a letter explaining that Plaintiff was still residing at the subject property and their entry

and damage to the Subject Property was unlawful. Again, Defendants gave the new keysand possession back to Plaintiff. However, Plaintiffs personal property possessions were

never returned.

50. On or around July 28, 2010, Plaintiff filed this complaint and initiated the present

litigation.

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FIRST CAUSE OF ACTION

FRAUD INTENTIONAL MISREPRESENTATION

(Against Defendants Avalon and Long Beach Mortgage)

51. Plaintiff realleges and incorporates herein by reference each and every allegationContained in paragraphs 1 through 50 of the Complaint as though set forth in full.

52. As alleged herein, in or around mid 2006 Avalon solicited to Plaintiff the Subject Loan

by disclosing false terms and conditions and withholding material information in order to

induce Plaintiff into consummating the Subject Loan.

53. Specifically, on numerous occasions prior to and on or around July 6, 2006, at the loan

signing, Avalon represented to Plaintiff that the interest rate of the SUBJECT LOAN

would be fixed at 8.75% for a period of two years, and then adjusts according to LIBOR

plus a margin, but at no time would it exceed 14.75%. In addition, Plaintiff was

promised a 30 year loan and that after two years there would be no prepayment penalty.

54. Specifically, on numerous occasions prior to and on or around July 6, 2006, at the loan

signing, Avalon represented to Plaintiff that after making timely payments for two years,

Avalon would be able to refinance the Subject Loan into a fixed-rate loan with more

favorable terms. Avalon advised Bohl that he should wait for the prepayment penalty to

pass, the market rate to drop and at that time Avalon would procure a permanent fixed

rate loan.

55. In inducing Plaintiff into the Subject Loan, on or around July 6, 2006, Avalon requested

Plaintiff pre-sign all loan documents in order to, lock in the promised interest rate.

56. On or around July 6, 2006, Plaintiff met with a representative of Avalon and in the front

seat of her automobile, while parked at the San Diego Marina with no notary present,with no review of any of the documents, and with no disclosures or notices of the right to

rescind provided to Plaintiff, Plaintiff was requested to sign and not date the loan

documents. Plaintiff never received a finalized copy of the documents he was requested

to sign.

57. In convincing Plaintiff to consummate the Subject Loan with Long Beach Mortgage,


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Avalon and Long Beach Mortgage concealed and suppressed from Plaintiff, or omitted,

withheld or otherwise intentionally failed to disclose to Plaintiff, material facts and

information concerning the Subject Loan including, without limitation, the following:

a. Plaintiff was promised and Plaintiff received a loan with an initial fixed interestrate of 8.75% for a period of two years, thereafter the interest rate would fluctuate





year loan.

c. The settlement charges were far greater than those promised to Plaintiff,

amounting to approximately $11,261.69.

58. On or around July 6, 2006, Defendant Avalon required that Plaintiff sign predated or

undated loan documents and failed to furnish Plaintiff with the required written

disclosures to ensure the fraud would not be detected.

59. The representations made by Avalon and Long Beach Mortgage, both

verbally and written in the Subject Loan documents concerned facts materi al to Plaintiffs

evaluation and decision to enter into the Subject Loan and these representations were

false.

60. Avalon and Long Beach Mortgage made these representations to Plaintiff with

knowledge of their falsity or with reckless disregard for their truth or falsity.

61. Avalon and Long Beach Mortgage made these representations to Plaintiff with

knowledge and intent that Plaintiff would rely on the representations and with the intentto deceive Plaintiff and to induce him to enter into the Subject Loan.

62. In reasonable and justifiable reliance on Avalon and Long Beach Mortgage s

representations, and without knowledge of their falsity, Plaintiff, on or around July 6,

2006, was induced to his detriment to proceed with consummation of the Subject Loan.

63. But for Avalon and Long Beach Mortgage s representations, Plaintiff would not have


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consummated the Subject Loan.

64. As a result of Avalon and Long Beach Mortgage s intentional and fraudulent

representations and Plaintiffs reasonable and justifiable reliance thereon, Plaintiff has

been injured in an amount in excess of this Courts jurisdictional minimum, whichamount will be proven at trial.

65. Avalon and Long Beach Mortgage s conduct was willful, oppressive, and fraudulent, and

an award of punitive damages is justified in an amount to be proven at trial.

66. As a result of the above-alleged misconduct, Plaintiff has been required to hire the law

firm of Legal Objective to commence and prosecute this action, and has incurred and will

incur attorneys fees and costs in an amount to be proven at trial. Pursuant to the

controlling contractual document(s) and/or applicable law, Plaintiff is entitled to recover

his co sts and reasonable attorneys fees.

FRAUD INTENTIONAL MISREPRESENTATION

(Against Defendants Washington Mutual and JPMorgan)

67. Plaintiff realleges and incorporates herein by reference each and every allegation

contained in paragraphs 1 through 67 of the Complaint as though set forth in full.

68. As alleged herein, in or around April of 2008, Plaintiff began contacting his loan servicer,

WAMU, to discuss any and all options that may be available to address and rectify a

number of misrepresentations and problems Plaintiff had discovered regarding his loan.

Plaintiff had discovered that the loan he had received, and had been making timely

payments on since 2006; was significantly different from the loan that he was originally

promised.

69.

As alleged herein, in or around April of 2008, WAMU loan servicing agents began tocontact Plaintiff weekly. The contact was always by telephone and the purpose of the

contact was always to discuss Plaintiffs loan and his concerns over said loan .

Significantly, Plaintiffs conce rns over said loan did not include affordability. Plaintiff,

at all times relevant, was well able to afford the loan payments.

70. Plaintiff is unable to identify the WAMU loan servicing agents by name, but the agents


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always stated that the calls were being recorded. Hence, the names, time, exact dates and

content of these WAMU loan servicing agents calls are preserved in records now held by

JPMorgan.

71. The WAMU loan servicing agents that contacted Plaintiff always assured him thatWAMU would be able to assist him with all of the issues he had raised regarding his

loan.

72. Specifically, the WAMU agents always represented that WAMU would be able to assist

Plaintiff with his concerns over the following:

a. Plaintiff was promised and Plaintiff received a loan with an initial fixed interest rate

of 8.75% for a period of two years, thereafter the interest rate would fluctuate

according to LIBOR plus a margin and the interest rate would never exceed 14.75%.

Significantly different from what Plaintiff was promised, is the fact that the interest

rate on the loan that Plaintiff received would never be less than 8.75%.

b. Plaintiff was promised a thirty (30) year loan, but Plaintiff received a forty (40) year

loan.

c. The settlement charges were far greater than those promised to Plaintiff, amounting to

approximately $11,261.69.

73. WAMU loan servicing agents always promised to investigate and WAMU servicing

agents always told Plaintiff that these issues could be addressed by getting Plaintiff a loan

modification. WAMU loan servicing agents told Plaintiff that he would receive a loan

modification, if he followed their instructions.

74. Under WAMU loan modification policy, loan modifications were only offered to

borrowers who were at least three (3) months behind on their mortgage payments.WAMU servicing agents instructed Plaintiff to fall at least three months behind on his

mortgage payments. Significantly, WAMU servicing agents told Plaintiff that if he did

so, and continued to follow their instructions, that he would receive a loan modification.

75. In convincing Plaintiff to fall behind on his mortgage loan obligation, WAMU servicing

agents intentionally or negligently concealed and suppressed from Plaintiff, or omitted,


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withheld or otherwise intentionally or negligently failed to disclose to plaintiff, material

facts and information concerning the servicing of the Subject Loan and the WAMU loan

modification program, including but not limited to, the following facts:

a. WAMU either had no ability or no intention of m odifying Plaintiffs l oan;b. WAMU s misrepresentations and actions would negatively affect Plaintiffs credit

as a result of his delinquent payments;

c. WAMU would initiate the foreclosure process;

d. the foreclosure process would cause excessive fees and costs to be added to the

arrearages owed by Plaintiff; and

e. WAMU was about to fail as a financial institution.

76. On September 25, 2008, the banking operations of the failed Washington Mutual, Inc -

Washington Mutual Bank, Henderson, NV and Washington Mutual Bank, FSB, Park

City, UT were sold to JPMorgan in a transaction facilitated by the Office of Thrift

Supervision ( OTS) and the Federal Deposit Insurance Corporation ( FDIC ). The

OTS/FDIC sold three hundred billion dollars ($300B) of bank subsidiaries to JPMorgan

for just under two billion dollars. The FDIC Agreement specifically excludes JPMorgan

from any liability to borrowers for WAMUs lending practices.

77. In or around October, November and December of 2008, following the transfer of

WAMU assets to JPMorgan via the OTS/FDIC Agreement, and in January and February

2009, Plaintiff continued to receive weekly telephone calls from representatives, which

Plaintiff is presently unable to name, identifying themselves as WAMU loan servicing

agents, and others, which Plaintiff is presently unable to name, identifying themselves as

JPMorgan loan servicing agents.78. The WAMU/JPMorgan agents always stated that the calls were being recorded. Hence,

the names, time, exact dates and content of these WAMU/JPMorgan loan servicing

agents calls are preserved in records held by JPMorgan.

79. The WAMU/JPMorgan agents always told Plaintiff that the transfer of WAMU to

JPMorgan would not affect Plaintiff s loan, the servicing of his loan, or his loan


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modification status. In fact, the JPMorgan agents continued to promise Plaintiff that he

would receive a loan modification, promised Plaintiff that his loan file would be reviewed

for lending and servicing violations and promised Plaintiff that as long as he was

cooperating with their process, WAMU/JPMorgan would not foreclose on the SubjectProperty.

80. Plaintiff followed the directions as advised by WAMU/JPMorgan agents, Plaintiff was

diligent in his efforts and Plaintiff cooperated fully with WAMU/JPMorgan.

81. These WAMU/JPMorgan agents intentionally or negligently concealed and suppressed

from Plaintiff, or omitted, withheld or otherwise intentionally or negligently failed to

disclose to plaintiff, material facts and information concerning the Subject Loan, such as,

but not limited to, the following facts:

a. WAMU/JPMorgan either had no ability or no intention of modifying Plaintiffs

loan;

b. given the terms of the FDIC Agreement, excluding liability for WAMU lending

practices WAMU/JPMorgan had no incentive or intention of reviewing Plaintiffs

loan file for lending violations;

c. WAMU/JPMorgan s misrepresentations and actions would negatively affect

Plaintiffs credit as a result of his delinquent payments ;

d. Without knowledge or consent of Plaintiff, WAMU/JPMorgan was continuing

with the foreclosure process; and

e. WAMU/ JPMorgan would add excessive fees and costs to the arrearages owed by

Plaintiff.

82.

On February 24, 2009, Plaintiff attended the House Committee Financial Services-Housing and Community Opportunity meeting (HOUSE MEETING) , in Washington

DC.

83. At this meeting, Plaintiff met Molley Shehan, Executive Vice President of Home Lending

for JP Morgan Chase and Robert Griner, Vice President of JPMorgan Government

Relations. Ms. Shehan and Mr. Griner were panelists at the meeting who both agreed


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that something must be done by loan servicers to address borrowers that had been seeking

modifications because they were victims of predatory lending.

84. On February 24, 2009, after the HOUSE MEETING, Mr. Griner and Plaintiff had a

lengthy conversation regarding Plaintiff s concerns about the poor advice given to him byWAMU and the false promises made to him by WAMU and JPMorgan loans servicing

agents, in addition they discussed how Plaintiff had been victimized by the lending

practices of Long Beach Mortgage. Mr. Griner gave Plaintiff his business card and in

front of witnesses, namely Ms. Schramm and a congressional aide of Maxine Waters,

stated that if Plaintiff sent him an email and followed up by phoning his office, that he

would do the following:

a. Mr. Griner would personally look into Plaintiffs loan file ;

b. if appropriate, Mr. Griner would take steps to suspend the foreclosure; and

c. Mr. Griner would work to resolve the issues that Plaintiff had regarding his loan.

85. On February 25, 2009 Plaintiff emailed Mr. Griner to supply Mr. Griner with Plaintiffs

loan number and Mr. Griner confirmed receipt of Plaintiffs email.

86. On March 4, 2009, Plaintiff sent Mr. Griner another e- mail to remind him that Plaintiffs

home was set for Trustees Sale on March 10 th.

87. On or around March 4, 2009, Mr. Griner telephoned Plaintiff and stated that he had

reviewed Plaintiffs loan file and that Plaintiffs foreclosure was suspended indefinitely.

Mr. Griner also stated that he would put Plaintiff in contact with a local representative of

JPMorgan to further assist Plaintiff in obtaining his loan modification.

88. On April 20, 2009, Plaintiff telephoned Keith Cross at JP Morgan Chase Home

modification division. Plaintiff met with Mr. Cross at his San Diego office where Mr.Cross explained that he would handle the loan modification for Plaintiff. At this meeting,

Mr. Cross assured Plaintiff that JPMorgan would further review his loan file and that they

would get Plaintiff a loan modification. Mr. Cross told Plaintiff that the foreclosure was

delayed indefinitely and he gave Plaintiff the telephone number and contact information

for JP Morgans legal department. Mr. Cross told Plaintiff that as long as he was


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cooperating with the process, JPMorgan would not foreclose on his home.

89. On or around April 21, 2009, Plaintiff telephoned JPMorgans legal department and they

confirmed that the foreclosure had been suspended.

90. While Plaintiff was engaged with a never ending exchange of documents with JPMorganLoan Servicing and without any further notice or contact, on August 4 th, 2009, the

Subject Property was sold at Trustees Sale. Plaintiff was left without ti tle to his primary

residence, was facing eviction and with badly damaged credit.


diligent in his efforts, Plaintiff cooperated fully with both WAMU and JPMorgan, and

now Plaintiff is left with the cost of doing so.

92. Molley Shehan, Robert Griner, Keith Cross, and JPMorgan Loan Servicing agents

intentionally or negligently concealed and suppressed from Plaintiff, or omitted, withheld

or otherwise intentionally or negligently failed to disclose to plaintiff, material facts and

information including but not limited to, the following facts:

a. JPMorgan either had no ability or no intention of m odifying Plaintiffs loan;


practices JPMorgan had no incentive or intention of reviewing Plaintiffs loan file

for lending violations;

c. JPMorgan s misrepresentations and actions would negatively affect Plaintiffs

credit as a result of his delinquent payments;

d. JPMorgan was continuing with the foreclosure process; and

e. JPMorgan would add excessive fees and costs to the arrearages owed by Plaintiff

93.

Molley Shehan, Robert Griner, Keith Cross, WAMU Loan Servicing agents andJPMorgan Loan Servicing agents made representations to Plaintiff with knowledge of

their falsity or reckless disregard for their truth or falsity.

94. Molley Shehan, Robert Griner, Keith Cross, WAMU Loan Servicing agents and

JPMorgan Loan Servicing agents made the representations to Plaintiff with knowledge

and intent that Plaintiff would rely on the representations and with the intent to deceive


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Plaintiff and to induce him into the loan modification program.

95. In reasonable and justifiable reliance on Molley Shehan, Robert Griner, Keith Cross,

WA MU Loan Servicing agents and JPMorgan Loan Servicing agents representations,

and without knowledge of their falsity, Plaintiff was induced to his detriment into fallingbehind on his monthly mortgage payments and to enter into the loan modification

program.

96. But for the representations of Molley Shehan, Robert Griner, Keith Cross, WAMU Loan

Servicing agents and JPMorgan Loan Servicing agents, Plaintiff would not have fallen

behind on his mortgage payments and would not have entered into the loan modification

program.

97. As a result of Molley Shehans, Robert Griners, Keith Cross, WAMU Loan Servicing

agents and JPMorgan Loan Servicing agents intentional and fraudulent representations

and Plaintiffs reasonable and justifiable reliance thereon, Plaintiff has been injured in an

amount in excess of this Courts jurisdictional minimum, which amount will be proven at

trial.

98. All of this was an elaborate scheme created by defendants WAMU and JPMorgan in an

effort to deal with the enormous volume of problematic loan s like Plaintiffs. In 2008

and into 2009, defendant JPMorgan was just starting to comprehend the sheer number of

problematic and fraudulent loans created by WAMU and its subsidiaries, specifically

those originated by Long Beach Mortgage Company. Given the fact that JPMorgan

purchased approximately three hundred billion dollars worth of bank subsidiaries for just

under two billion dollars, it was clearly more profitable to foreclose and resell distressed

real property assets verses attempting to address and rectify why any one particular assetwas in distress. WAMU and JPMorgan established and/or condoned a business practice

of making promises to distressed homeowners, like Plaintiff, that were impossible, and

simply not profitable, to keep.

99. Defendants conduct was willful, oppressive, and fraudulent, and an award of punitive

damages is justified in an amount to be proven at trial.


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100. As a result of the above alleged misconduct, Plaintiff has been required to hire the law



controlling contractual document(s) and/or applicable law, Plaintiff is entitled to recoverhis costs and reasonable a ttorneys fees.

SECOND CAUSE OF ACTION

FRAUD NEGLIGENT MISREPRESENTATION

(Against Defendants Avalon Mortgage and Long Beach Mortgage)



102. As alleged herein, in or around the middle of 2006, Avalon and Long Beach Mortgage

convinced Plaintiff to consummate the Subject Loan for the purchase of the Subject

Residence.

103. In convincing Plaintiff to consummate the Subject Loan with Long Beach Mortgage,

Avalon concealed and suppressed from Plaintiff, or omitted, withheld or otherwise

intentionally failed to disclose to Plaintiff, material facts and information concerning the

Subject Loan including, without limitation, the following:

a. Plaintiff was promised and Plaintiff received a loan with an initial fixed interest





b.

Plaintiff was promised a thirty (30) year loan, but Plaintiff received a forty (40)year loan.



104. The representations made by Avalon and Long Beach Mortgage both verbally and written

in connection with the Subject L oan concerned facts material to Plaintiffs evaluation of


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and decision to finance the Subject Residence and make monthly payments in connection

with the Subject Loan, and these representations were false.

105. Avalon and Long Beach Mortgage made these representations with knowledge of their

falsity or without a reasonable basis to believe that they were true and with theknowledge or expectation that Plaintiff would rely on the representations.

106. In reasonable and justifiable reliance on Avalon and Long Beach Mortgage s

representations concerning the Subject Loan, and without knowledge of their falsity,

Plaintiff to his detriment proceeded to consummate the Subject Loan.

107. But for Avalon and Long Beach Mortgage s representations concerning the Subject Loan,

Plaintiff would not have consummated the Subject Loan.

108. As a result of Avalon and Long Beach Mortgage s negligent representations and

Plaintiffs reasonable and justifiable reliance thereon, Plaintiff has been injured in an

amount in excess of this Courts jurisdict ional minimum, which amount will be proven at

trial.

109. Defendants conduct was reckless, oppressive and misleading, and an award of punitive

damages is justified in an amount to be determined at trial.

110. Defendants conduct was willful, oppressive, and fraud ulent, and an award of punitive






his costs and reasonable attorneys fees.FRAUD NEGLIGENT MISREPRESENTATION

(Against Defendants Washington Mutual and JPMorgan)

112. Plaintiff re-alleges and incorporates herein by reference each and every allegation


113. The elements of intentional misrepresentation and negligent misrepresentation are, in


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essence, the same with the exception that intentional misrepresentation requires scienter

and negligent misrepresentation does not. Melican v. Regents of University of California ,

151 Cal.App.4 th 168, 181-182 (2007).

114. As alleged herein, in or around April of 2008, Plaintiff began contacting his loan servicer,WAMU, to discuss any and all options that may be available to address and rectify a

number of misrepresentations and problems Plaintiff had discovered regarding his loan.

Plaintiff had discovered that the loan he had received, and had been making timely

payments on since 2006; was significantly different from the loan that he was originally

promised.

115. As alleged herein, in or around April of 2008, WAMU loan servicing agents began to

contact Plaintiff weekly. The contact was always by telephone and the purpose of the

contact was always to discuss Plaintiffs loan and his concerns over said loan.

Signif icantly, Plaintiffs concerns over said loan did not include affordability. Plaintiff,

at all times relevant, was well able to afford the loan payments.

116. Plaintiff is unable to identify the WAMU loan servicing agents by name, but the agents

always stated that the calls were being recorded. Hence, the names, time, exact dates and

content of these WAMU loan servicing agents calls are preserved in records now held by

JPMorgan.

117. The WAMU loan servicing agents that contacted Plaintiff always assured him that

WAMU would be able to assist him with all of the issues he had raised regarding his

loan.

118. Specifically, the WAMU agents always represented that WAMU would be able to assist

Plaintiff with his concerns over the following:a. Plaintiff was promised and Plaintiff received a loan with an initial fixed interest



14.75%. Significantly different from what Plaintiff was promised, is the fact that



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year loan.


amounting to approximately $11,261.69.119. WAMU loan servicing agents always promised to investigate and WAMU servicing

agents always told Plaintiff that these issues could be addressed by getting Plaintiff a loan

modification. WAMU loan servicing agents told Plaintiff that he would receive a loan

modification, if he followed their instructions.

120. Under WAMU loan modification policy, loan modifications were only offered to

borrowers who were at least three (3) months behind on their mortgage payments.

WAMU servicing agents instructed Plaintiff to fall at least three months behind on his

mortgage payments. Significantly, WAMU servicing agents told Plaintiff that if he did

so, and continued to follow their instructions, that he would receive a loan modification.

121. In convincing Plaintiff to fall behind on his mortgage loan obligation, WAMU servicing

agents intentionally or negligently concealed and suppressed from Plaintiff, or omitted,

withheld or otherwise intentionally or negligently failed to disclose to plaintiff, material

facts and information concerning the servicing of the Subject Loan and the WAMU loan

modification program, including but not limited to, the following facts:

a. WAMU either had no ability or no intention of modifying Plaintiffs l oan;

b. WAMU s misrepresentations and actions would negatively affect Plaintiffs credit

as a result of his delinquent payments;

c. WAMU would initiate the foreclosure process;

d.

WAMUs misrepresentations and actions would cause excessive fees and costs tobe added to the arrearages owed by Plaintiff; and

e. WAMU was about to fail as a financial institution .

122. On September 25, 2008, the banking operations of the failed Washington Mutual, Inc -

Washington Mutual Bank, Henderson, NV and Washington Mutual Bank, FSB, Park

City, UT were sold to JPMorgan in a transaction facilitated by the Office of Thrift


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Supervision ( OTS) and the Federal Deposit Insurance Corporation ( FDIC ). The

OTS/FDIC sold three hundred billion dollars ($300B) of bank subsidiaries to JPMorgan

for just under two billion dollars. The FDIC Agreement specifically excludes JPMorgan

from any liability to borrowers for WAMUs lending practices.123. In or around October, November and December of 2008, following the transfer of

WAMU assets to JPMorgan via the OTS/FDIC Agreement, and in January and February

2009, Plaintiff continued to receive weekly telephone calls from representatives, which

Plaintiff is presently unable to name, identifying themselves as WAMU loan servicing

agents, and others, which Plaintiff is presently unable to name, identifying themselves as

JPMorgan loan servicing agents.

124. The WAMU/JPMorgan agents always stated that the calls were being recorded. Hence,

the names, time, exact dates and content of these WAMU/JPMorgan loan servicing

agents calls are preserved in records held by JPMorgan.

125. The WAMU/JPMorgan agents always told Plaintiff that the transfer of WAMU to

JPMorgan would not affect Plaintiffs loan, the servicing of his loan, or his loan

modification status. In fact, the JPMorgan agents continued to promise Plaintiff that he

would receive a loan modification, promised Plaintiff that his loan file would be reviewed

for lending and servicing violations and promised Plaintiff that as long as he was

cooperating with their process, WAMU/JPMorgan would not foreclose on the Subject

Property.


diligent in his efforts and Plaintiff cooperated fully with WAMU/JPMorgan.

127.

These WAMU/JPMorgan agents intentionally or negligently concealed and suppressedfrom Plaintiff, or omitted, withheld or otherwise intentionally or negligently failed to

disclose to plaintiff, material facts and information concerning the Subject Loan, such as,

but not limited to, the following facts:

a. WAMU/JPMorgan either had no ability or no intention of modifying Plaintiffs

loan;


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practices WAMU/JPMorgan had no incentive or intention of reviewing Plaintiffs

loan file for lending violations;

c. WAMU/JPMorgans misrepresentations and actions would negatively affectPlaintiffs credit as a result of his delinquent payments ;

d. Without knowledge or consent of Plaintiff, WAMU/JPMorgan was continuing

with the foreclosure process; and

e. WAMU/ JPMorgan would add excessive fees and costs to the arrearages owed by

Plaintiff.

128. On February 24, 2009, Plaintiff attended the House Committee Financial Services-

Housing and Community Opportunity meeting (HOUSE MEETING), in Washington

DC.

129. At this meeting, Plaintiff met Molley Shehan, Executive Vice President of Home Lending

for JP Morgan Chase and Robert Griner, Vice President of JPMorgan Government

Relations. Ms. Shehan and Mr. Griner were panelists at the meeting who both agreed

that something must be done by loan servicers to address borrowers that had been seeking

modifications because they were victims of predatory lending.

130. On February 24, 2009, after the HOUSE MEETING, Mr. Griner and Plaintiff had a

lengthy conversation regarding Pl aintiffs concerns about the poor advice given to him by

WAMU and the false promises made to him by WAMU and JPMorgan loans servicing

agents, in addition they discussed how Plaintiff had been victimized by the lending

practices of Long Beach Mortgage. Mr. Griner gave Plaintiff his business card and in

front of witnesses, namely Ms. Schramm and a congressional aide of Maxine Waters,stated that if Plaintiff sent him an email and followed up by phoning his office, that he

would do the following:

a. Mr. Griner w ould personally look into Plaintiffs loan file;

b. if appropriate, Mr. Griner would take steps to suspend the foreclosure; and

c. Mr. Griner would work to resolve the issues that Plaintiff had regarding his loan.


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131. On February 25, 2009 Plaintiff emailed Mr. Grin er to supply Mr. Griner with Plaintiffs

loan number and Mr. Griner confirmed receipt of Plaintiffs email.

132. On March 4, 2009, Plaintiff sent Mr. Griner another e- mail to remind him that Plaintiffs

home was set for Trustees Sale on March 10th

.133. On or around March 4, 2009, Mr. Griner telephoned Plaintiff and stated that he had

reviewed Plaintiffs loan file and that Plaintiffs foreclosure was suspended indefinitely.

Mr. Griner also stated that he would put Plaintiff in contact with a local representative of

JPMorgan to further assist Plaintiff in obtaining his loan modification.

134. On April 20, 2009, Plaintiff telephoned Keith Cross at JP Morgan Chase Home

modification division. Plaintiff met with Mr. Cross at his San Diego office where Mr.

Cross explained that he would handle the loan modification for Plaintiff. At this meeting,

Mr. Cross assured Plaintiff that JPMorgan would further review his loan file and that they

would get Plaintiff a loan modification. Mr. Cross told Plaintiff that the foreclosure was

delayed indefinitely and he gave Plaintiff the telephone number and contact information

for JP Morgans legal department. Mr. Cross told Plaintiff that as long as he was

cooperating with the process, JPMorgan would not foreclose on his home.

135. On or around April 21, 2009, Plaintiff telephoned JPMorgans legal department and they

confirmed that the foreclosure had been suspended.

136. While Plaintiff was engaged with a never ending exchange of documents with JPMorgan

Loan Servicing and without any further notice or contact, on August 4 th, 2009, the

Subject Property was sold at Trustees Sale. Plaintiff was left without title to his primary

residence, was facing eviction and with badly damaged credit.

137.

Plaintiff followed the directions as advised by WAMU/JPMorgan agents, Plaintiff wasdiligent in his efforts, Plaintiff cooperated fully with both WAMU and JPMorgan, and

now Plaintiff is left with the cost of doing so.

138. Molley Shehan, Robert Griner, Keith Cross, and JPMorgan Loan Servicing agents

intentionally or negligently concealed and suppressed from Plaintiff, or omitted, withheld

or otherwise intentionally or negligently failed to disclose to plaintiff, material facts and


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information including but not limited to, the following facts:

a. JPMorgan either had no ability or no intention of m odifying Plaintiffs loan;


practices JPMorgan had no incentive or intention of reviewing Plaintiffs loan filefor lending violations;

c. JPMorgan s misrep resentations and actions would negatively affect Plaintiffs

credit as a result of his delinquent payments;

d. JPMorgan was continuing with the foreclosure process; and

e. JPMorgan would add excessive fees and costs to the arrearages owed by Plaintiff


JPMorgan Loan Servicing agents made representations to Plaintiff with knowledge of

their falsity or reckless disregard for their truth or falsity.


JPMorgan Loan Servicing agents made the representations to Plaintiff with knowledge

and intent that Plaintiff would rely on the representations and with the intent to deceive

Plaintiff and to induce him into the loan modification program.

141. In reasonable and justifiable reliance on Molley Shehan, Robert Griner, Keith Cross,

WAMU Loan Servicing agents and JPMorgan Loan Servicing agents representations,

and without knowledge of their falsity, Plaintiff was induced to his detriment into falling

behind on his monthly mortgage payments and to enter into the loan modification

program.

142. But for the representations of Molley Shehan, Robert Griner, Keith Cross, WAMU Loan

Servicing agents and JPMorgan Loan Servicing agents, Plaintiff would not have fallenbehind on his mortgage payments and would not have entered into the loan modification

program.

143. As a result of Molley Shehans, Robert Griners, Keith Cross, WAMU Loan Servicing

agents and JPMorgan Loan Servicing agents intentional and fr audulent representations

and Plaintiffs reasonable and justifiable reliance thereon, Plaintiff has been injured in an


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amount in excess of this Courts jurisdictional minimum, which amount will be proven at

trial.

144. All of this was an elaborate scheme created by defendants WAMU and JPMorgan in an

effort to deal with the enormous volume of problematic loans like Plaintiffs. In 2008and into 2009, defendant JPMorgan was just starting to comprehend the sheer number of

problematic and fraudulent loans created by WAMU and its subsidiaries, specifically

those originated by Long Beach Mortgage Company. Given the fact that JPMorgan

purchased approximately three hundred billion dollars worth of bank subsidiaries for just

under two billion dollars, it was clearly more profitable to foreclose and resell distressed

real property assets verses attempting to address and rectify why any one particular asset

was in distress. WAMU and JPMorgan established and/or condoned a business practice

of making promises to distressed homeowners, like Plaintiff, that were impossible, and

simply not profitable, to keep.

145. Defendants conduct was willful, oppressive, and fraudulent, and an award of punitive


146. As a result of the above alleged misconduct, Plaintiff has been required to hire the law




his costs and reasonable attorneys fees.

THIRD CAUSE OF ACTION

BREACH OF FIDUCIARY DUTY

(Against Defendant Avalon) 147. Plaintiff re-alleges and incorporates herein by reference each and every allegation


148. As the mortgage broker(s) and agent(s) for Plaintiff, defendant Avalon was in a fiduciary

relationship with Plaintiff and owed Plaintiff fiduciary duties of the utmost care, integrity,

honesty and loyalty. Defendant nevertheless concealed and suppressed from Plaintiff, or


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omitted, withheld or otherwise intentionally failed to disclose to Plaintiff, material facts

and information concerning the Subject Loan

149. Material facts defendant named herein concealed and suppressed, or omitted, withheld or

otherwise intentionally failed to disclose in connection with the Subject Loan to Plaintiff include, without limitation, the following:

a. The initial interest rate of 8.75% would adjust after 2 years, and it would adjust

upward, rather than downward, to a range between 8.75% and 14.75%;

b. The loan term was 40 years rather than the promised 30 year term; and



150. The facts known to and concealed by Avalon materially affected the Subject Loan

transaction and Plaintiffs current situation following foreclosure of the Su bject

Residence and impending eviction of the same. These facts were not known to Plaintiff

at the time of, and prior to, consummation of the Subject Loan, nor were they

discoverable through Plaintiffs diligent attention and observation.

151. Avalon intended to deceive Plaintiff by its acts, omissions, and conduct in concealing,

suppressing, omitting, withholding or otherwise intentionally failing to disclose material

facts concerning the Subject Loan.

152. Plaintiff reasonably and justifiably relied upon the deception or intentional failure to

disclose material facts and information by Avalon, to his detriment. Plaintiff would not

have entered into the Subject Loan had he been fully apprised of the material facts and

information that defendant concealed, suppressed, omitted, withheld or otherwise

intentionally failed to disclose.153. As a proximate result of such concealment, suppression, omission, withholding or other

intentional failure to disclose material facts and information by Avalon, Plaintiff was

induced to consummate the Subject Loan and has been damaged in an amount in excess

of this Courts jurisdictional minimum, which amount will be proven at trial.

154. The conduct of Avalon was willful, oppressive, and fraudulent, and an award of punitive


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and exemplary damages is justified in an amount to be proven at trial.



incur attorneys fees and c osts in an amount to be proven at trial. Pursuant to thecontrolling contractual document(s) and/or applicable law, Plaintiff is entitled to recover

his costs and reasonable attorneys fees.

FOURTH CAUSE OF ACTION

WRONGFUL FORECLOSURE

(Against Defendants JPMorgan, Deutsche Bank as Trustee for Long Beach Mortgage

Trust)


contained in paragraphs 1 through 155 of the Complaint as though set forth in full.157. On or around August 4, 2009, the Subject Property was wrongfully sold at Trustees Sale.

158. Civil Code Sections 2923.5 and 2943 et seq. govern non-judicial foreclosure proceedings

in California. Civil Code Sections 2923.5 and 2943, et seq. allows for the following to

initiate a non-judicial foreclosure, trustee, mortgagee, or beneficiary or any other

authorized agents.

159. In order to state a claim for wrongful foreclosure, Plaintiffs must allege that the trustees

sale was illegal, fraudulent, or willfully oppressive. Munger v. Moore , 11 Cal.App.3d 1

(1970). To justify setting aside a presumptively valid foreclosure sale, the claimed

irregularity must arise from the foreclosure proceeding itself. Nguyen v. Calhoun , 105

Cal.App.4th

428, 445 (2003); 6 Angels Inc. v. Stuart-Wright Mortgage, Inc. , 85

Cal.App.4 th 1279, 1285 (2001)

160. The Deed of Trust relied upon in the subject Trustees Deed Upon Sale is said to be dated

July 6, 2006, and such date is explicitly referenced in subsequently recorded documents.

However, the Notary Seal on the Trust Deed allegedly bearing Plaintiffs signature is


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dated July 7, 2006. The Trust Deed recorded with the Sand Diego County Recorders

Office bearing a filing date of July 12, 2006, Doc. No. 2006-0489329, is neither a

document Plaintiff executed on July 6, 2006, nor July 7, 2006.

161. On November 18, 2008, California Reconveyance Company, acting as Trustee, requested

the recording of an Assignment of Deed of Trust with the San Diego County Recorders

Office. According to this assignment, JPMorgan granted, assigned and transferred to

Deutsche Bank, as Trustee for Long Beach Mortgage, all beneficial interest under

Plaintiffs purported Trust Deed. This Assignment of Trust Deed was executed by

defendant Deborah Brignac as Vice President.

162. It is well established law in the Ninth Circuit that the assignment of a trust deed does not

assign the underlying promissory note and right to be paid, instead it is the assignment of

the note that carries with it the Deed of Trust. Simply put, the Deed follows the note; the

security interest is incident of the debt. 4 Witkins Summary of California Law, Secured

Transactions in Real Property Section 105 (10 th ed). California Civil Code 2936 states,

The assignment of a debt secured by mortgage carries with it the security. An

assignment of the note carries the mortgage with it, while an assignment of the latter is a

nullity. Carpenter v Longan , 83 U.S. 271, 274 (1872).

163. The alleged transfer of the Trust Deed to Deutsche Bank, as Trustee for Long Beach

Mortgage had no legal significance without also t ransferring JPMorgans interest in the

note. The transfer of the Trust Deed alone does not establish a trustee, mortgagee,

beneficiary or any other authorized agency relationship, and hence does not meet the

standards set forth in Civil Code Sections 2923.5 and 2943, et seq.

164. On November 17, 2008, California Reconveyance Company requested the recording of a

Substituti on of Trustee with the San Diego County Recorders Office. According to this


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document, Deutsche Bank substituted California Reconveyance Company as trustee of

the Trust Deed. This assignment was executed by defendant Deborah Brignac as Vice

President.

165. Deutsche Bank, as Trustee for Long Beach Mortgage could not transfer any legal interest

greater than the interest it held, and as identified earlier Deutsche Bank, as Trustee for

Long Beach Mortgage had no legal interest at all, hence the Substitution of Trustee

document had no legal significance and it does not establish a trustee, mortgagee,

beneficiary or any other authorized agency relationship, and hence does not meet the

standards set forth in Civil Code Sections 2923.5 and 2943, et seq.

166. On February 20, 2009, California Reconveyance Company requested the recording of a

Notice of Trustees Sale with the San Diego County Recorders Office. This document

was executed by Deborah Brignac as Vice President.

167. As identified earlier Deutsche Bank, as Trustee for Long Beach Mortgage had no legal

interest to transfer. The Substitution of Trustee document had no legal significance and

thus the Notice of Trustees Sale also had no legal significance.

168. According to the documents on file with the Sa n Diego County recorders off ice,

Deborah Brignac was a Vice President of JPMorgan, Vice President of Deutsche Bank

and Vice President of California Reconveyance Company. Plaintiff is informed and

believes and thereon alleges Deborah Brignacs multiple ti tles are false, and Plaintiff

contests the validity of Deborah Brignacs alleged authority to sign on behalf of any of

the above-referenced companies. Significantly, the signatures of Deborah Brignac on

these three documents, when compared to each other, have notable differences. Plaintiff

believes that one, if not all, of the signatures are forgeries or unauthorized ROBO

SIGNATURES.


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169. On August 4, 2009, despite assurances from JPMorgan and/or WAMU that the Subject

Loan would be modified and the Subject Residence would not be foreclosed upon,

despite the chain of tainted documents on file at the County R ecorders Office, the

Subject Residence was indeed sold at a Trustees sale to Long Beach Mortgage for

approximately $400,000.

170. All of the documents discussed, including but not limited to, The Assignment of the Deed

Of Trust, the Substitution Of Trustee and the Notice Of Trustees Sale were all intricate

documents in the non-judicial foreclosure proceeding, and all provide indisputable

evidence of irregularities in the foreclosure proceedings itself. In addition, Plaintiff was

never served with a Notice Of Default, and such failure is a critical flaw which occurred

in this non-judicial foreclosure process . All of the Defendants failures, and the

fraudulent documents on file with the County Recorder, left Plaintiff without the ability

to identify the proper party to discuss his default and without the ability to appear and bid

at the Trustees sale.

171. If it is determined that Plaintiff is required to tender, Plaintiff is able to make such

arrangements and/or Plaintiff will turn to this Courts equitable powers to structure aremedy. If Plaintiff is unable to make such arrangements and no remedy can be

structured by this Court, Plaintiff will turn to the Bankruptcy Court to provide a

restructuring and/or reorganization of the debt to effectuate the tender requirement.

172. As a direct and proximate result of defendants WAMU and JPMorgan s loan servicing

misconduct, Plaintiff has suffered damages. These damages include, without limitation,

direct monetary loss, consequential damages and emotional distress.

173. In committing the wrongful acts alleged herein, defendants Washington Mutual and

JPMorgan acted with malice, oppression and fraud. Said defendants willful miscond uct

warrants an award of exemplary damages in an amount sufficient to punish the wrongful

conduct alleged herein and to deter such conduct of these defendants in the future.


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FIFTH CAUSE OF ACTION

CANCEL/SET ASIDE TRUSTEES DEED OF SALE

(Against Defendants Deutsche Bank, as Trustee for Long Beach Mortgage Trust 2006-1)

174. Plaintiff realleges and incorporates herein by reference each and every allegationcontained in paragraphs 1 through 173 of the Complaint as though set forth in full.

175. Slander of title is an unprivileged or malicious publication of a false statement that

disparages plaintiffs title to real property and causes pecuniary loss. It is the false and

malicious disparagement of a persons title that causes pecuniary damage to the owner of

the property. Kachlon v Markowitz (2008) 168 Cal. App. 4 th 316, 336; Rubin v. Green

(1993) 4 Cal. 4 th 1187, 1193-94; Southcott v. Pioneer Title Co. (1962) 203 Cal. App. 2d

673, 676.

176. Defendants named herein, and each of them, claim an estate or interest in the Subject

Residence and such claim is adverse to that of Plaintiff. However, Defendants claims

are without any right, as Defendants (specifically, foreclosing defendant Deutsche Bank,

as Trustee for Long Beach Mortgage Trust) have no estate right, valid title or valid

security interest in the Subject Residence.

177. The interest in the Subject Residence claimed by Defendants is based upon a legally

voidable Trustees Deed Upon Sale. The Trustees Deed Upon Sale is voidable as it was

derived from a series of tainted transfer Deeds and a Notice Of Trustees Sale fraudulent

signed by Deborah Brignac and filed with the County Recorder. The tainted documents

are legally void as the transfer of a Deed without the note is a legal fiction under

California Civil Code Section 2936.

178.

The Trustees Deed Upon Sale is a cloud on title to the Subject Residence, which tends todepreciate its fair market value, restricts Plaintiffs fu ll use and enjoyment of the Subject

Residence and hinders Plaintiffs right to unrestrict ed alienation of the property.

179. If the Trustees Deed is not delivered and cancelled; a dangerous consequence will result.

Plaintiff will suffer serious and irreparable injury and the permanent loss of his primary

residence.


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180. If it is determined that Plaintiff is required to tender, Plaintiff is able to make such

arrangements and/or Plaintiff will turn to this Courts equitable powers to structure a

remedy. If Plaintiff is unable to make such arrangements and no remedy can be

structured by this Court, Plaintiff will turn to the Bankruptcy Court to provide arestructuring and/or reorganization of the debt to effectuate the tender requirement.

SIXTH CAUSE OF ACTION

SLANDER OF TITLE

(Against Defendants Deutsche Bank as Trustee for Long Beach Mortgage Trust, JPMorgan

and Ms. Brignac)


contained in paragraphs 1 though 180 of the Complaint as though set forth in full.

182. Defendants Deutsche Bank as Trustee for Long Beach Mortgage Trust, JPMorgan and

Deborah Brignac, willfully, maliciously, and without privilege or justification caused to

be published and recorded with the San Diego County Recorder s Office, false statements

concerning Plain tiffs r ights and title to the Subject Property.

183. Slander of title is an unprivileged or malicious publication of a false statement that

disparages plaintiffs title to real property and cause s pecuniary loss. It is the false and

malicious disparagement of a persons title that causes pecuniary damage to the owner of

the property. Kachlon v Markowitz (2008) 168 Cal. App. 4 th 316, 336; Rubin v. Green

(1993) 4 Cal. 4 th 1187, 1193-94; Southcott v. Pioneer Title Co. (1962) 203 Cal. App. 2d

673, 676.

184. Plaintiff was forced to consummate the Subject Loan on June 30, 2006 in the front seat of

an automobile while parked in the San Diego marina parking lot in the absence of anotary. At that time, and subsequent thereto, Plaintiff has never executed any other

documents in connection with the Subject Loan. The Trust Deed relied upon in the

Trustees Deed Upon Sale reflects a signature date of July 6, 2006, and such date is

explicitly referenced in subsequently recorded documents. However, the Notary Seal on

the Trust Deed allegedly bearing Plaintiffs signature is dated July 7, 2006. The Trust


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Deed on file with the San Diego County Recorders Office bearing a filing date of July

12, 2006, Doc. No. 2006-0489329, is neither a document executed by Plaintiff on July 6,

2006 nor July 7,

Documents

Fac Final Complaint