PLAINTIFF'S COMPLAINT1
12345678910111213141516171819202122232425262728Joseph W. Creed (SBN 232129)Creed & Elliott, LLP19200 Von Karman Ave, Suite 600Irvine, CA 92612Tel: 800-679-4202Fax: 714-439-2121
Attorneys for Plaintiff
Mimi Ash
UNITED STATES DISTRICT COURTEASTERN DISTRICT OF CALIFORNIA
MIMI ASH andROBERT T. ASH,PLAINTIFFS,vs.BANK OF AMERICA CORP. as Successorin Interest to Countrywide Financial Corp.;and DOES 1-20, INCLUSIVE,DEFENDANTS.
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CASE NO: 2:10-cv-02821-FCD-KJNFIRST AMENDED COMPLAINT FORDAMAGES WITH DEMAND FOR JURYTRIAL(1) TRESPASS;(2) CONVERSION;(3) NEGLIGENCE;(4) NEGLIGENT INFLICTION OFEMOTIONAL DISTRESS;(5) INTENTIONAL INFLICTION OFEMOTIONAL DISTRESS;(6) VIOLATION OF CALIFORNIABUSINESS AND PROFESSIONS CODESECTIONS 17200 ET SEQ;
(7)INVASION OF PRIVACY;(8) FRAUD(9) BREACH OF CONTRACT;(10) BREACH OF THE IMPLIEDCOVENANT OF GOOD FAITH ANDFAIR DEALING; AND(11) UNJUST ENRICHMENT
COMES NOW the Plaintiffs, by and through their attorneys of record, and state and allegeagainst the above-named Defendants as follows:
Case 2:10-cv-02821-FCD-KJN Document 9 Filed 11/16/10 Page 1 of 22
PLAINTIFF'S COMPLAINT2
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INTRODUCTION
1. Plaintiff, MIMI ASH is the widow and beneficiary of her late husband, Robert L.Ash's estate. Plaintiff, ROBERT T. ASH is the only son of Robert L. Ash. While he was alive,both Mr. and Mrs. Ash ran complimentary businesses and owned various pieces of real propertyin their individual names. One of those properties was a property at 13405 Ski Slope Way,Truckee, California. Their properties were all financed with mortgages from CountrywideFinancial Corp., the predecessor in interest to the Defendant, BANK OF AMERICA, CORP.After Mr. Ash passed away, MRS. ASH stopped paying the mortgage on Ski Slope Waybecause it was in Mr. Ash's individual name and was in his probate estate. Within months of Mr.Ash's death, though, MRS. ASH began to actively work with Countrywide to reach loanworkouts on the mortgages including the Ski Slope Way mortgage. On May 2, 2008, theTrustee under the Deed of Trust for the Ski Slope Way property wrongfully foreclosed andconducted a foreclosure sale. Even though MRS. ASH had been in constant contact withCountrywide, it had failed to give her notice of the foreclosure sale. That foreclosure sale waslater rescinded due to the Trustee's failure to timely communicate with MRS. ASH. Despite this,in late October or early November 2008, Countrywide unlawfully seized the Ski Slope Wayhome, broke into the house, removed the Plaintiffs' personal property which included all of MRS. ASH's deceased husband's personal items and changed the locks. MRS. ASH was givenabsolutely no prior notice and Countrywide performed these activities without any judicialprocess. To remedy the damage caused by the Defendants, the Plaintiffs bring this action andmake the following claims: 1) trespass; 2) conversion; 3) negligence; 4) negligent infliction of emotional distress; 5) intentional infliction of emotional distress;
6) violations of California’s
Business and Professions Code; 7) invasion of privacy; 8) fraud; 9) breach of contract; 10)breach of implied covenant of good faith and fair dealing; and, 11) unjust enrichment.
Case 2:10-cv-02821-FCD-KJN Document 9 Filed 11/16/10 Page 2 of 22
PLAINTIFF'S COMPLAINT3
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PARTIES & JURISDICTION
2. The Plaintiff, MIMI ASH is an individual who resides in Granite Bay, California.Ms. Ash is the beneficiary of her deceased husband's estate which included the real propertylocated at 13405 Ski Slope Way, Truckee, California. The Plaintiff, ROBERT T. ASH is anindividual who also resides in Granite Bay, California. ROBERT T. ASH is also the beneficiaryof his deceased father's estate which included many of the personal items and property in thereal property located at 13405 Ski Slope Way, Truckee, California.3. The defendant, BANK OF AMERICA CORP. is the successor-in-interest toCountrywide Financial Corp. (collectively "Countrywide" and/or "BANK OF AMERICA") andis a corporation headquartered at Bank of America Corporate Center, 100 North Tryon Street,Charlotte, North Carolina. This defendant transacts business in the State of California and issubject to personal jurisdiction in this District.4
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Plaintiff does not know the true names and capacities of the defendants suedherein as DOES
1 through 20 (“DOE Defendants”), inclusive, and therefore sues said DOE
Defendants by fictitious names. Plaintiff is informed and believes and based on suchinformation and belief avers that each of the DOE Defendants is contractually, strictly,negligently, intentionally, vicariously liable and or otherwise legally responsible in some mannerfor the acts and omissions described herein. Plaintiff will amend this Complaint to set forth thetrue names and capacities of each DOE Defendant when same are ascertained.5. Plaintiff is informed and believes and based on such information and belief aversthat Defendants BANK OF AMERICA and DOE Defendants 1 through 20, inclusive, and eachof them, are and at all material times have been, the agents, servants or employees of each other,purporting to act within the scope of said agency, service or employment in performing the acts
Case 2:10-cv-02821-FCD-KJN Document 9 Filed 11/16/10 Page 3 of 22
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Ash v Bank of America
Lawsuit alleging illegal home break-in by foreclosing lender.
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