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Fagan SBN 160104 2 Malibu, CA 90265-1213 3 Phone (310) 717-1790 4 Attorney for Plaintiffs 5 6 7 8 9 , an individual 10 11 12 13 14 15 16 17 18 19
) ) ) Plaintiffs, ) vs. ) ) BANK OF AMERICA, a national banking ) association; BLVD., LOS ANGELES, CA ) 9004 real property, in rem, and DOES 1 to 50, ) INCLUSIVE. ) ) Defendants. ) ) ) ) ) ) ) Case No. VERIFIED COMPLAINT 1. FOR DECLARATORY RELIEF; 2. TO QUIET TITLE TO REAL PROPERTY; 3. CANCELLATION OF INSTRUMENT 4.FRAUD/MISREPRESENTATIONCONCEALMENT; 5.FRAUD/MISREPRESENTATIONINDUCEMENT; 6. FOR AN ACCOUNTING; (Unlimited Action) [Demand for Jury Trial] PO BOX 1213
firstname.lastname@example.org SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES, STANLEY MOSK COURTHOUSE
20 COMES NOW the Plaintiffs, by and through their undersigned counsel, hereby complains and 21 alleges; 22 23 24
NO FORECLOSURE PENDING As a preliminary affirmation and allegation Plaintiffs herein represents that there is no
25 ongoing foreclosure proceeding in effect governing, concerning or relative to any of the Parties, 26 herein or as to subject real property. 27 28
-1– VERIFIED COMPLAINT
JURISDICTION 1. The within action is properly within the jurisdiction of this Court upon the ground,
3 inter alia, that real property which is subject matter hereof is situated within this Judicial District 4 of the County of Los Angeles, California. 5 6 7 8 9 10 11
PARTIES 2. At all times hereto relevant, Plaintiff is a married man appearing as an individual resident of the County of Los Angeles, State of California. Plaintiff appears in this action in his individual capacity as the owner of the real property at. (the “Property”) 3. Plaintiff is informed and believes, and thereon alleges, that the Plaintiff is a married
12 woman whose name appears on both the 2006 Deed of Trust and the 2011 Assignment of the 13 Deed of Trust as Joint Tenants but who never executed the 2006 Deed of Trust prior to the 2011 14 Assignment of the Deed of Trust and has no interest in both the Note and Deed of Trust. BOFA 15 16 17 18 19
through fraud and deceit negotiated a loan and modification without having any beneficial interest in the underlying note and deed of trust and did so without participation or authorization. (Attached hereto and made a part hereof as Exhibit A is the 2006 Deed of Trust) 4. Plaintiff is informed and believes, and thereon alleges, that at all times hereto relevant
20 Defendant BANK OF AMERICA N.A. (hereinafter "BOFA") was a national banking association 21 duly registered with the Secretary of State of the State of California to do business, and which 22 has done and continues to do business, in the State of California, as a bank and as a mortgage 23 24 25 26
loan servicer. 5. At all times hereto relevant Defendant in rem, ", LOS ANGELES, CA 9004" was improved, residential real property situated within this Judicial District of the County of Los
27 Angeles, State of California, more fully and legally described as: 28
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7. the Plaintiff cannot state with certainty that a viable cause of action lies herein as against such individuals or entities. At all relevant times prior to March 3. 19 20 21 General Allegations of Material Fact 7. Defendant in rem "THE PROPERTY") was residential real property owned of record by 27 28 Plaintiff. Plaintiff reserves the right to amend the instant Complaint to allege the true names and capacities of such fictitiously named Defendants when the same become known or when it has been ascertained with reasonable certainty that a cause of action 17 hereunder can be satisfactorily stated and maintained as against each such fictitiously named 18 individual or entity. 4004-. -3– VERIFIED COMPLAINT . the PROPERTY 26 (to wit. and hereinafter referred to as 4 the "PROPERTY. IN THE OFFICE OF THE COUNTY RECORDER OF LOS ANGELES COUNTY. 3 CALIFORNIA. 12 wherefore said Defendants are herein named in accordance with the provisions of California 13 14 15 16 Code of Civil Procedure § 474. at this time. PAGES 2 INCLUSIVE 2 OF MAPS." 5 6 7 8 9 6. 2006. AS PER MAP RECORDED IN BOOK 6. Also referred to as Assessor's Parcel No. Plaintiff is unaware of the true names and capacities of individuals and/or entities sued herein under the fictitious names DOES 1 through 50. Plaintiffs are facing the potential loss of their home through foreclosure initiated and 22 advanced by Defendants in violation of the NOTICE AND STANDING requirements of 23 California foreclosure law. 11 with sufficient specificity to satisfy the requirements of Code of Civil Procedure § 128. to the extent that the names of such individuals or entities may be known to Plaintiff. inclusive or. or 10 Plaintiff is unable to allege the elements of such a cause of action. 24 25 8. 59. prior to discovery.1 LOT 32 OF TRACT NO. and upon that date.
N. on March 10. now owned by BOFA claims to have been the holder of the NOTE since at least March 3. COUNTY OF LOS ANGELES. The original lender of the promissory note 6 7 8 9 is AMERICA’S WHOLESALE LENDER. (hereafter “MERS”) is not named as the payee of the note.A.000. On MARCH 3. 28 -4– VERIFIED COMPLAINT . 2006 Plaintiffs executed as trustor. which was recorded in the Official 26 Records of the County of Los Angeles. State of California. Plaintiff is informed and believes. and on that basis alleges. 5 This document identifies the loan number as 0001276.00. 11 10.(hereinafter "ASSIGNMENT of the Deed of Trust"). 11. Plaintiff is informed and believes. 13 14 15 16 2006 under loan number 1276. This document was filed as 3 document number 06051 in the Official Records. 200621 22 23 24 (hereinafter "the Deed of Trust"). and thereon alleges that the challenged action is 19 based upon the Deed of Trust instrument. 4 CALIFORNIA. The original 10 trustee under this Deed of Trust is RECONTRUST COMPANY. Plaintiff is informed and believes.A. On or about March 3. on August 29. 2006.A. Mortgage Electronic Registration Systems. that Countrywide Bank 12 N. // 13. Inc. and thereon alleges that the challenged action is 25 based upon an Assignment of the Deed of Trust instrument. 2011 under Instrument 27 Number 2011. 18 12." (hereinafter "Original Deed of Trust") naming 17 Countrywide Bank N. and delivered. a document titled as a "Short Form Deed of Trust. now owned by Defendant BOFA as Beneficiary. but is named as acting solely as a “nominee” for lender as the beneficiary of the security interest Deed of Trust. State of California. Debtors executed a negotiable promissory note and a security 2 interest in the form of a Deed of Trust in the amount of $595. which was recorded in the Official Records of the 20 County of Los Angeles.1 9. 2006 as instrument no.
1 14. In view of the 21 22 23 24 void act for the reason that it violated the express terms of the Trust instrument. it may not be assigned or transferred apart from the debt. 2006. and an attempt to assign the Deed of Trust without a transfer of 10 the debt is without effect. Therefore. 2 transferred and securitized into CHL MORTGAGE PASS-THROUGH TRUST 2006-10. and is a matter of public record. The 18 Trust by its terms set a “CLOSING DATE” of MARCH 30. The Deed of Trust is a mere incident of the 4 debt it secures and an assignment of the debt carries with it the security instrument. Plaintiff is informed and believes. The Note was securitized into CHL MORTGAGE 13 14 15 16 PASS-THROUGH TRUST 2006-10. The 17 Trust is also described in a “Prospectus Supplement. The promissory note in this 19 case became trust property in compliance with the requirement set forth in the PSA. available on the website of the Securities Exchange Commission. The Trust 20 agreement is filed under oath with the Securities and Exchange Commission. that this is foregoing. all Assignment of Deed of Trust executed after the Trust’s Closing Date would be a 25 presumptively a predatory “ASSET BASED” loan under regulation Z of the Federal Reserve. Plaintiff is informed and believes. 26 and the Federal Truth in Lending Act. 16. a 5 Deed Of Trust is inseparable from the debt and always abides with the debt. and on that basis alleges. 3 MERS: The Deed of Trust shows MIN 1000157-. and thereon alleges that the NOTE was sold.” also available on the SEC website. 11 15. Plaintiff is informed and believes. The written agreement that created the CHL MORTGAGE PASS-THROUGH TRUST 2006-10 is a “Pooling and Servicing Agreement” (PSA). This means that the identity of the creditor has been 27 misstated and the issue of whether the obligation is secured is dependent upon whether there was 28 -5– VERIFIED COMPLAINT . It has no market or 6 7 8 9 ascertainable value apart from the obligation it secures. A Deed of Trust has no assignable quality independent of the debt. and thereon alleges that the Note and Deed 12 have taken two distinctly different paths.
interest or rights to collect 24 monies. 20. enforce or foreclose upon the Subject Property. Attached hereto and made a 2 part hereof as Exhibit B is Plaintiff’s PROPERTY SECURITIZATION ANALYSIS REPORT 3 which was prepared by C. 27 28 -6– VERIFIED COMPLAINT . 20 21 22 23 21. and thereon alleges that after the origination and funding of this loan it was sold or transferred to investors or other entities and that BOFA NA 10 and Does 1-50 do not and did not own the loan or the corresponding note at the time of any 11 modification. LLC 4 17. Accordingly. which is a question of fact. Irreparable harm will unavoidably result from an unlawful taking of monies 19 or the PROPERTY. Specifically that Plaintiff did not breach their obligation to said Defendants and that said Defendants do not have legal title. Plaintiff is informed and believes. the Defendants in this action had/have no the right to collect payments from Plaintiff. 12 13 14 15 16 17 19. and not fungible 18 as a matter of law. 18. A breach of the obligation for which the Deed of trust is security has not 5 occurred. Plaintiff desires a judicial determination and declaration of Plaintiff’s and Defendant’s respective rights and duties. The PROPERTY is Plaintiff’s longtime principal family residence. Defendant is NOT permitted to seek any right against the subject property or the Plaintiff under any agreement given that the defendant is no longer a party to those agreements and cannot claims said rights through competent evidence.1 a split of the note from the mortgage. Such a declaration is appropriate at this 25 time so Plaintiff may determine its rights and duties before the Subject Property is subject to any 26 future foreclosure proceeding. An actual controversy exists between Plaintiff and defendants concerning their 6 7 8 9 respective rights and duties pertaining to the “PROPERTY”.
nature and extent of Defendants’ interest in the “Property. That the court render between Plaintiff and Defendant BOFA an accounting 2 determining the actual amount paid from Plaintiff to Defendant as an actual controversy exists as 3 between Plaintiff and the Defendant named herein. Plaintiff is informed and believes that Defendants allege that the Altered Deed of Trust cannot be determined to be null and void because it is secured by the Property which is Plaintiff’s principal residence and is not wholly unsecured. Plaintiff is informed and believes and on that basis alleges. that BOFA through fraud and deceit negotiated a modification without having any beneficial interest in the under lying note and deed of trust and did so without plaintiff’s participation or approval. Plaintiff is informed and believes and thereon alleges. FIRST CAUSE OF ACTION FOR DECLARATORY RELIEF (As to all Defendants & DOES 1-50) 28. in that the lien evidenced by 10 the Deed of Trust and its subsequent assignments has no value since as it is wholly unsecured. 4 5 6 7 8 9 23. 11 and that accordingly. Plaintiff is informed and believes and on that basis alleges. 12 13 14 15 16 25. 24. the Deed of Trust and the Assigned Deed of Trust is null and void. 18 27. 26. nature and extent of their 20 interests in the Property.1 22. that an actual controversy 19 exists between Plaintiff and Defendants with regard to the validity. that Defendants dispute 17 the contention alleged herein. Plaintiff re-alleges and incorporates by reference all preceding paragraphs as though -7– VERIFIED COMPLAINT . and it is necessary that this Court determine the actual rights and 21 22 23 24 25 26 27 28 obligations of the parties and make a determination as to the validity. Plaintiff is informed and believes and thereon alleges. that he holds an interest in the Property free and clear of any interest of defendants.
inclusive. obligations and interests with regard to the property. by this reference. Plaintiff requests a determination of the validity of the Deed of Trust since 2006 when the Note was sold. 6 7 8 9 30. Defendants dispute Plaintiff’s contention and instead contend that they may properly assert rights over Plaintiff and Plaintiff’s property. Plaintiff 4 contends that Defendants do not have the authority to enforce any rights upon Plaintiff and the 5 subject property. 31. transferred and assigned and a concurrent irrevocable assignment of the underlying DOT. Plaintiff therefore requests a judicial determination of the rights. and such determination is necessary and 11 appropriate at this time under the circumstances so that all parties may ascertain and know their 12 rights. hereinabove. reiterates. FOR A SECOND SEPARATE AND DISTINCT CAUSE OF ACTION. obligations and 10 interests of the parties with regard to the property. An actual controversy has arisen and now exists between Plaintiff and Defendants 3 concerning their respective rights and duties regarding the Note and Deed of Trust. Plaintiff requests a determination of whether the named Defendant has any future 18 right to foreclose on the subject property. 13 14 15 16 17 32. 33.1 2 fully set forth herein. -8– VERIFIED COMPLAINT . and re-alleges each and all of the allegations set forth in paragraph 1 through 33. THEREFORE. and thereby incorporated within the instant cause of action. 19 20 21 22 SECOND CAUSE OF ACTION TO QUIET TITLE TO REAL PROPERTY (As to ALL DEFENDANTS & DOES 1-50) 23 AND. 24 25 26 27 28 Plaintiff hereby repeats. as though each such allegation were here restated in full. 29.
and therefore alleges. according 10 to proof. including the Recorded Deed of Trust. oppression and malice under Cal. Plaintiff is entitled to relief by a judicial order and decree establishing and affirming 4 Plaintiff’s lawful title in and to the PROPERTY. the true and lawful owner of 2 record of the subject PROPERTY. by causing the Assignment of Deed of Trust instrument to 24 be prepared and recorded without a factual or legal basis for doing so. reasonable. 11 12 13 14 THIRD CAUSE OF ACTION CANCELLATION OF INSTRUMENT (As to ALL DEFENDANTS & DOES 1-50) 37. and harm. and is likely to continue to suffer loss. -9– VERIFIED COMPLAINT . and proper in the premises. equity. Plaintiff has suffered loss. Plaintiff re-alleges and incorporates by reference all preceding paragraphs as though 15 fully set forth herein. these acts by Defendants constitute fraud. Upon information and belief. Civil Code §3294. Plaintiff is informed and believes. Plaintiff is also entitled to such further relief as the court may deem to comport with law and the principles of equity. At all times hereto relevant. and to be just. and harm unless the said recorded instrument is 20 cancelled and the parties returned to status quo ante. damage. that BOFA and DOES 1 22 through 50 acted willfully and with a conscious disregard for Plaintiff’s rights and with a specific 23 intent to defraud and injure Plaintiff. 25 26 27 28 40. 36. Plaintiff has been. and thereby quieting title therein 6 7 8 9 in such manner as the court finds to comport to law. damage. As a direct and proximate result of Defendants’ recordation of the aforesaid Deed of Trust and Assignment of Deed of Trust. 16 17 18 19 38.1 34. according to proof. 21 39. and proof. invalidating all unlawful claims against said 5 title. 3 35. and is.
2 Plaintiffs are entitled to general and special damages according to proof at trial. commanding the 6 7 8 9 10 11 12 13 said instrument.10 – VERIFIED COMPLAINT . which affected the security interest in Plaintiff’s property. declaring the said instrument to be void ab initio. By virtue of Defendants’ willful and wrongful conduct as herein alleged above. Defendants concealed the fact that Plaintiff’s Note was sold.1 41. et seq. but not less than 3 $25. to enter a nunc pro tunc cancellation of FOURTH CAUSE OF ACTION FRAUD IN THE CONCEALMENT (As to ALL DEFENDANTS & DOES 1-50) 43. 24 25 26 27 28 47. 22 46. Defendants’ knew or should have known that had the truth been disclosed.000. . Plaintiff re-alleges and incorporates by reference all preceding paragraphs as though 14 fully set forth herein. and of each of them. 21 in character. County Recorder of Los Angeles County. 4 42. Wherefore Plaintiffs are entitled to relief by a judgment pursuant to California Civil 5 Code §§ 3412. By concealing the sale. thus separating the Note from the Deed of Trust (DOT) and making the Note unsecured and the assigned DOT a nullity and void. Plaintiff would not have entered into this Loan or would not have continued to make payments to Defendant. California.. 15 16 17 18 19 20 45. in the Official Records of the Office of the County Recorder of said county. Changing the character of the Loan in this way had a materially negative effect on 23 Plaintiff that was known by Defendants but not disclosed to Plaintiff. as well as punitive and exemplary damages as determined by this Court. Defendants concealed the fact that Plaintiff’s loan changed 44.
As a direct and proximate result of the misrepresentations and concealments. 27 28 . fraud. Plaintiff was damaged in an amount to be proven at trial. Defendants are guilty of malice. 11 52. perjury.11 – VERIFIED COMPLAINT . Defendants’ failure to disclose that it did not have the Note induced Plaintiff to pay 12 Defendant and caused Plaintiff to have to incur costs and expenses and attorney fees. 51. Defendant altered the deed of trust in order to conceal the truth concerning 4 Investors being the true owner of Plaintiff’s note. Plaintiff would have known of Defendants’ true 10 intentions and profits from the Loan and the adverse effect on the value of Plaintiff’s home. but not limited to. Defendant’s false representation or concealment of a ‘material’ fact would be 54. costs. including. In fact. and/or oppression. But for the failure to disclose the true and material terms of the transaction. expenses and 17 attorneys’ fees. Plaintiff’s reasonable reliance on the misrepresentations was detrimental in that Plaintiff made payments for over five (5) years. 18 19 20 21 22 23 24 55.1 48. 56. Plaintiff could have been alerted to issues of concern. Defendant’s actions were and are malicious and done willfully in conscious disregard of the rights and safety of Plaintiff’s in that the actions were calculated to injure Plaintiff. damage to Plaintiff’s financial security and credit. Defendants intended to induce Plaintiff to make payments to Defendants based on 2 these misrepresentations and improper lack of disclosures and concealments. 25 deemed a ‘material’ if ‘a reasonable (person) would attach importance to its existence or 26 nonexistence in determining his choice of action in the transaction. 3 49. 13 14 15 16 53. cost of payments on the loan. 5 6 7 8 9 50.
THEREFORE.1 57. by this reference. and thereby incorporated within the instant cause of action. 65. As such. reiterates. 62. hereinabove. Defendant was and is attempting to collect on a debt to which they have no legal. 3 4 upon it. as though each such allegation were here 16 restated in full. FOR A FIFTH SEPARATE AND DISTINCT CAUSE OF ACTION. However. equitable or pecuniary interest in. punitive damages to punish Defendants and to deter them from engaging in future misconduct. Defendant BOFA misrepresented that they are the “OWNER” of the Note and the 23 beneficiary of the Deed of Trust. 5 6 7 8 9 10 11 12 58.12 – VERIFIED COMPLAINT . FIFTH CAUSE OF ACTION FOR FRAUD IN THE INDUCEMENT (Against Defendant BOFA and DOES 1-50) 13 AND. Defendants are not entitled to exercise the Power of Sale and have no legal. Defendants’ intentionally misrepresented to Plaintiff that Defendants are entitled to 21 equitable or actual beneficial interest whatsoever in the property. 60. 14 Plaintiff hereby repeats. this is not true and is a misrepresentation of a material fact. 22 63. and re-alleges each and all of the allegations set forth in 15 paragraph 1 through 60. 24 25 26 27 28 64. Defendant’s representation was made with the intent to induce plaintiff to act 59. Plaintiffs are entitled to recover. 61. inclusive. . Plaintiff entered into the contract in ‘justifiable reliance’ upon the representation. in addition to actual damages. In fact. 17 18 19 20 exercise the Power of Sale provision contained in the Deed of Trust. Defendant made the representation with knowledge of its falsity or without 2 sufficient knowledge of the subject to warrant a representation.
and accepted payments that they were not entitled to. By and through the aforesaid inaccurate accounting. 70. Defendants were aware of the misrepresentations and profited from them. Plaintiff did in fact pay Defendant. Defendants. 4 67. expenses. induced Plaintiff to pay Defendant BOFA. damage to Plaintiff’s financial security and credit. Defendants made . perjury and/or oppression. Defendants’ failure to disclose that the loan was sold to an INVESTOR and the 5 Note and Deed of Trust were severed. 27 28 75. 74. the Defendants. costs.1 66. breaking the chain of title and making the security interest 6 7 8 9 void. Defendants are fraudulently alleging rights to Plaintiff’s property which they have 2 no monetary or pecuniary interest and this conduct is outrageous. and each of them. Plaintiff was damaged in an amount to be proven at trial. As a direct and proximate result of the misrepresentations and concealments. fraud. At all relevant times. and attorney’s fees. 68. failed to properly credit payments made on the Subject Property. inflated 21 22 23 24 appraisals. The Defendant engaged in a pattern and practice of defrauding Plaintiff in that. 71. 11 12 13 14 15 16 17 69. 19 73. had actual knowledge that 25 Plaintiff's account did not accurately reflect actual payments made to that account by or on 26 behalf of Plaintiff.13 – VERIFIED COMPLAINT . 20 during the life of the mortgage loan. 72. but not limited to. filed false loan applications. Defendant’s actions were and are malicious and done willfully in conscious 18 disregard of the rights of Plaintiff’s in that the actions were calculated to injure Plaintiff. including. Defendants are guilty of malice. especially in light of the fact 3 they have full knowledge of the facts as contained herein. The material misrepresentations made by Defendant BOFA that it owned the loan was made with the intent to cause Plaintiff to reasonably rely on the misrepresentations in order 10 to induce the Plaintiff to pay said Defendant.
assignments. Defendants concealed the said material facts with the intent to defraud Plaintiff 18 by causing him to act in ignorance of facts which he was entitled to know. appearing within the said account. Defendants made the above-alleged false representations. notices. 13 14 15 16 17 78. Plaintiff did. the knowledge of 19 which would have necessarily altered Plaintiff’s decisions and actions in respect to the subject 20 matter of the within dispute. Defendants and each of them knew that the 5 said representations of material fact were false. Plaintiff did not know that the said representations of material fact were false but believed them to be true. 79. At the time. justifiably rely on the completeness and accuracy of 27 Defendant’s accounting and claims of ownership. which Defendants were duty-bound to disclose. 26 81. asserting thereby that the said charges 3 and account entries were true and accurate. Defendants further concealed material facts known to them but not to Plaintiff. 77. 25 complete. 21 22 23 80.14 – VERIFIED COMPLAINT . and accurate information from Defendants. and omissions of credits for 12 payments made. transfers. At the time. charges. 2 penalties and interest for which there was no justification.1 misrepresentations of material fact by the inclusion within said accounting of fees. 4 76. late fees. changed beneficiaries. It was not until the commencement of the within dispute that Plaintiff was first able to 11 discover the pattern of inaccurate. and relied thereon to his 10 detriment. and charges. and made those misrepresentations with the 6 7 8 9 intent to defraud Plaintiff. regarding payments. false representations and charges. and at all relevant times. and at all relevant times. in fact. and engaged in the above-alleged concealments and non-disclosures willfully and with the intention of thereby 24 inducing Plaintiff's reliance on said representations and on the mistaken belief that he had full. 28 .
but not limited to. and is entitled to an award of damages on account thereof in such sum as may accord with proof at trial. 21 22 87. damage to his credit standing. wherefore Plaintiffs are further entitled to imposition upon Defendants of exemplary damages in such sum as the court may deem sufficient to dissuade Defendants and 17 others similarly situated from engaging in identical or similar conduct in the future. 24 25 26 upon it. damage and harm including.1 82. willful. 27 28 . Plaintiff has suffered loss. As an unavoidable consequence of Defendants’ fraudulent conduct as herein 10 alleged. prudent 11 and justified efforts to mitigate damage wherefore Plaintiff is entitled to an award of such special 12 and/or consequential damages as may be allowable by law and as may accord with proof at trial. malicious. damage. was wanton. as herein alleged. and unconscionable. Plaintiff has incurred and accrued substantial cost and expense in reasonable. 18 86. Defendant’s representation was made with the intent to induce plaintiff to act . as herein alleged. costs 4 and potential future loss of his property. As a direct and proximate result of Defendants’ fraudulent conduct. As a direct and proximate result of Plaintiffs’ justifiable reliance on the 2 completeness and accuracy of Defendants’ accounting and claims of ownership. Defendant’s false representation or concealment of a ‘material’ fact would be 19 deemed a ‘material’ if ‘a reasonable (person) would attach importance to its existence or 20 nonexistence in determining his choice of action in the transaction. Defendant made the representation with knowledge of its falsity or without 23 sufficient knowledge of the subject to warrant a representation. 13 14 15 16 85. and harm. 84. 5 6 7 8 9 83.15 – VERIFIED COMPLAINT 88. Defendants’ fraudulent conduct. Plaintiffs’ 3 suffered loss.
said Defendants has a duty to Plaintiff to properly 13 account for payments made by Plaintiff. BOFA has purportedly held them selves out to be Plaintiff’s creditor. Plaintiff entered into the contract in ‘justifiable reliance’ upon the 2 representation. The amount of money paid to BOFA and claimed still owed to Defendant BOFA is unknown to Plaintiff and cannot be determined without an accounting. 12 of this purported relationship with Plaintiff. by this reference. hereinabove.16 – VERIFIED COMPLAINT . reiterates. for the reasons stated above. 14 15 91. 3 4 5 6 SIXTH CAUSE OF ACTION FOR ACCOUNTING (Against Defendant BOFA) 7 Plaintiff hereby repeats. and re-alleges each and all of the allegations set forth in 8 paragraph 1 through 89. As a result of the aforementioned fraudulent conduct. Plaintiff paid his mortgage 16 payments for a period of approximately five years. none 17 18 19 20 21 22 23 of these payments were actually owed to BOFA. As a result restated in full. 92. However. 25 /// 26 /// 27 /// 28 .1 89. and thereby incorporated within the instant cause of action. these payments are due to be returned to Plaintiff in full. inclusive. as though each such allegation were here 9 10 11 90.000. Plaintiff is informed and believes and thereon alleges that the amount due to him is in excess of 24 $25. For that reason.
as follows: 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 FOR AND UPON PLAINTIFFS’ DECLARATORY AND EQUITABLE CLAIM FOR RELIEF (As to ALL DEFENDANTS and DOES 1-50) 93. decree and order as to each of the following: For a judicial finding. That Defendant BOFA.1 PLAINTIFF’S PRAYER 2 WHEREFORE Plaintiff prays this Honorable Court for relief. 2006 as Instrument No. d. Defendants herein. a national banking association. are without standing to pursue or take any benefit from any putative obligation of Plaintiff arising by reason of that certain Promissory Noted dated March 3.17 – VERIFIED COMPLAINT .. is not the Obligee (Lender) in respect to that certain Promissory Note which is reputedly secured by the aforesaid Short Form Deed of .(the “Defective Trust Deed”) That Defendant BOFA. is not the Obligee (Lender) in respect to that certain Promissory Note which is reputedly secured by the aforesaid Short Form Deed of Trust. and c. decree and order that: a. Plaintiffs are entitled to declaratory relief by a judicial finding. is not the beneficiary of the ASSIGNMENT of Deed of Trust Official Records of the City and County of California on August 29. That Defendant BOFA. is not the beneficiary of that certain Short Form Deed of Trust Official Records of the City and County of California on March 10. Defendants herein. 2006. are without standing to enforce or take any benefit from that certain Deed of Trust dated March 10. and each of them. 2011 as Instrument No. and each of them. and recorded in the Office of the County Recorder of Los Angeles County as Instrument No 2006-. 2011. a national banking association. 2006.(the “Defective ASSIGNED Trust Deed”) That Defendant BOFA. and b. 2006. and.
24 maintaining. and their respective agents. concluding. from initiating. without force or legal effect. trustees. and affiliates. 25 transaction. and 96. hypothecating. or otherwise acting in furtherance of any publication. For a judicial decree and finding that the aforesaid NOTE has become. for the purpose or with the 26 intent of alienating. each from the 13 14 15 16 other. estate. For a judicial decree and finding that ownership of the aforesaid NOTE and 12 beneficial interest in the aforesaid Short Form Deed of Trust have become severed. For a Declaration that Plaintiff is the rightful holder of title to the Subject Property and 3 that the Defendant BOFA. a permanent nullity. and is. and each of 21 22 23 employees. representatives.1 2 Trust. 11 95. or interest in the Subject Property. an 17 unsecured obligation of Plaintiff payable to such person or persons as may be 18 determined to be the rightful owner(s) and obligee(s) thereof. and Does 1-50 and each of them be declared to have no title. interest or rights to foreclose upon 10 the Subject Property. wherefore the said Short Form Deed of Trust has become. and is. selling.18 – VERIFIED COMPLAINT . transferring. effective throughout the pendency of this action or 20 until such time as the court may otherwise order. directors. purporting to sell. For a judgment forever enjoining said Defendants BOFA. encumbering. conveying. assigning. 27 offering for sale. right. 94. 19 97. and each of them. or interest in the Subject Property. successors. 5 6 7 8 9 f. e. or proceeding of any kind or nature. them. and Does 1-50 and each of them from claiming any title. legatees. For a preliminary injunction. officers. right. process. and. assigns. For a judicial decree and finding that Plaintiff did not breach his obligation to said Defendants and that said Defendants do not have legal title. or otherwise altering in any way title in 28 . 4 estate. enjoining the Defendants.
costs and expenses of suit. in Los 10 Angeles. or any interest therein or appertaining 2 thereto. and DOES 1-50) 100. and. 12 13 14 15 16 101. in whole or in part. BOFA and any successors or assignees have no right to title or interest in the property and no right to entertain any rights of ownership including rights of possession. et seq. the Court should rule that the Subject Property remains Plaintiff’s property and award consequential damages as proven at trial.000. California. Accordingly. and against Defendant BOFA. and 6 7 8 9 FOR AND UPON PLAINTIFFS’ SECOND CAUSE OF ACTION TO QUIET TITLE (As to Defendant in rem PROPERTY. 104. CA 9004. For Attorneys fees. decree and order pursuant to California Code of Civil Procedure §§ 764. and 3 4 98. and 5 proper in the premises. their agents and assigns. in whole or in part. Plaintiff is the legal owner of the property that is commonly known as. For a judicial finding. title or interest in the Subject Property and that Defendants. quieting Plaintiff’s title in and to the subject PROPERTY as 25 against any and all claims entered upon the title record thereto from and at all times subsequent 26 to March 2006.. but not less than $50. For such additional relief as the court may deem to be just.1 and to the PROPERTY. and anyone else claiming interest in the property. 20 21 22 23 24 103. right title or interest in the Subject Property.010.19 – VERIFIED COMPLAINT . reasonable. and 99. Plaintiff seeks to quiet title against the claims of BOFA. (the “Property”) as recorded in the Office of the County Recorder of the 11 County of Los Angeles. Plaintiff seeks a judicial declaration that the title to the Subject Property is vested 17 in Plaintiff alone and that Defendants and each of them be declared to have no interest estate. 102. be 19 forever enjoined from asserting any estate. 27 28 . 18 right.
fraudulent. directors. successors. and. 26 111. directors. officers. directly or indirectly. unlawful. employees. according to 18 proof. unfair. For permanent injunction against Defendant BOFA.20 – VERIFIED COMPLAINT . and proof. unfair. from engaging in the improper. and all persons acting in concert with them. its subsidiary. according to proof. servants. from engaging in the improper. agents. including 3 the Recorded Deed of Trust. its subsidiary. 19 20 21 22 23 FOR UPON PLAINTIFF’S FOURTH & FIFTH CAUSE OF ACTION FOR FRAUD IN THE CONCEALMENT & FRAUD IN THE INDUCEMENT (Against Defendants BOFA. and thereby quieting title therein in 4 such manner as the court finds to comport to law. For a judicial order and decree establishing and affirming Plaintiff’s lawful title 2 in and to the PROPERTY. and to be just. equity. agents. and/or deceptive conduct as descried above and according to proof during the pendency of this action. and DOES 1-50) 110. and all persons acting in concert with 24 them. For costs and expenses of suit. fraudulent and/or deceptive acts or practices as more fully 28 . fraudulent. employees. servants. successors. For an order of restitution requiring BOFA to disgorge all revenues acquired from 27 Plaintiff by means of unlawful. officers. and proper in the premises. affiliates. and 109. For permanent injunction against Defendant BOFA. 108.1 105. and. 5 6 7 8 9 10 106. unlawful. directly or indirectly. unfair. reasonable. For such further relief as the court may deem to comport with law and the 17 principles of equity. invalidating all unlawful claims against said title. affiliates. 107. and/or 25 deceptive conduct as descried above and according to proof. Plaintiff is entitled to an order compelling Defendant BOFA and any other 11 Defendants claiming an interest in and to the property to take any/all actions necessary to remove 12 the Cloud they have placed upon his title and an order enjoining such defendants from taking 13 14 15 16 such actions again in the future.
For an order that Defendant BOFA have a involuntary trustee appointed for 4 collection of the proceeds and property resulting from BOFA and/or its agent's wrongful billing 5 actions of all monies. For costs of suit herein incurred and. willful. unfair. 118. 19 20 21 FOR UPON PLAINTIFF’S SIXTH CAUSE OF ACTION FOR ACCOUNTING (Against Defendant BOFA) 22 For an order of restitution requiring BOFA to disgorge all revenues acquired from Plaintiff by 23 means of unlawful. fees and the like acquired from either Plaintiff as a result of or arising from the Mortgage Loan. 112. 116.21 – VERIFIED COMPLAINT . For prejudgment interest as allowed by law.1 2 3 described above and according to proof. 120. 117. 115. proceeds and property wrongfully acquired by them. malicious. and 119. For an order that Defendant BOFA have a involuntary trustee appointed for . For an order of Forfeiture of return of any loan proceeds. fraudulent and/or deceptive acts or practices as more fully described 24 25 26 27 28 above and according to proof. 6 7 8 9 10 11 12 13 14 15 16 114. For statutory damages according to proof. oppressive and unconscionable. 121. For prejudgment interest as allowed by law. payments. revenues. and. proceeds. funds. For a judicial decree and finding that Defendants’ fraudulent conduct was wanton. 113. For an order requiring Defendant BOFA to return all monies. For an award of exemplary damages in such sum as the court may deem 17 sufficient to dissuade Defendants and others similarly situated from engaging in 18 identical or similar conduct in the future.
10 ___________________________ 11 Barry S. proceeds. For an order requiring Defendant BOFA to return all monies. 2012 123. Attorney for Plaintiffs 12 JURY DEMAND 13 14 15 16 17 18 19 State of California 20 21 22 23 I. revenues. County of Los Angeles 24 of my own knowledge. and as to those matters I believe them to be true. and aver that the matters stated in said document are true ) ) Dated: . fees and the like acquired from either Plaintiff as a result of or arising 5 from the Mortgage Loan. at Los Angeles. Fagan. except as to the matters which are therein stated on information or belief. 3 122. the undersigned. 25 or by way of argument. For an order of Forfeiture of return of any loan proceeds. proceeds and property wrongfully acquired by them. 6 7 8 9 Dated: . 26 Executed on . I am a plaintiff in this action. 2012. certify and declare that I have read the foregoing COMPLAINT and know its contents.1 collection of the proceeds and property resulting from BOFA and/or its agent's wrongful billing 2 actions of all monies. Fagan. 27 28 . payments.22 – VERIFIED COMPLAINT . 4 funds. 2012 _____________________________ Barry S. Attorney for Plaintiffs VERIFICATION BY PARTY Plaintiff demands a jury trial for all causes of action set forth herein. California.
13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 . 12 Executed on . Plaintiff ) ) County of Los Angeles I. except as to the matters which are therein stated on information or belief. ___________________________________ . and aver that the matters stated in said document are true 10 of my own knowledge. 3 4 5 State of California 6 7 8 9 ___________________________________ .1 I declare under penalty of perjury under the laws of the State of California that the foregoing is 2 true and correct. at Los Angeles.23 – VERIFIED COMPLAINT I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. California. the undersigned. I am a plaintiff in this action. Plaintiff . certify and declare that I have read the foregoing COMPLAINT and know its contents. 11 or by way of argument. 2012. and as to those matters I believe them to be true.
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