Professional Documents
Culture Documents
Federal Complaint Plaintiff or S
Federal Complaint Plaintiff or S
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PLAINTIFF(s)
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CASE NO:
Plaintiff,
V.
COMPLAINT FOR:
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DEFENDANTS
(3) DAMAGES ARISING FROM:
and DOES 1 through 50 inclusive
(4) BREACH OF FIDUCIARY DUTY
Defendants.
(5) BREACH OF COVENANT OF
GOOD FAITH AND FAIR DEALING
(6) INJUNCTIVE RELIEF
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(7) FRAUD
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Complaint
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4. The true names of Defendants named herein as DOES 1 through 50, whether
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who therefore, sues said Defendants by such fictitious names; Plaintiff(s) are
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informed and believes and thereon alleges that each of the Defendants so
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alleged, and Plaintiff(s) will ask leave of Court to amend this Complaint to insert
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the true names and capacity of DOES 1 through 50 when the same have been
ascertained and to join such Defendants in this action.
5. Plaintiff(s) are informed and believes and thereon alleges that, at all times herein
mentioned each of the defendants sued herein in relation to the property they claim
an interest in was the agent and employee of each of the remaining defendants
thereof and at all times was acting within the purpose and scope of such agency and
employment.
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Complaint
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7. The Adjustable Rate Note was based upon a six-month adjustable rate.
8. Plaintiff(s) allege that Defendants and each of them neither explained the workings
of the rate, how it is computed nor its inherent volatility.
9. Further, on information and belief, Plaintiff(s) allege that the Defendants charged
and obtained improper fees for the placement of his loan as sub-prime when he
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qualified for a prime rate mortgage which would have generated less in fees and
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interest.
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10. On information and belief, Plaintiff(s) allege that the service of the purported note
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of such a nature to render them a Servicer within the definition found within 26
U.S.C. 2605.
11. In the course of this consumer transaction, Defendants violated 15 U.S.C.
1635(a) and Regulation Z, 226, by failing to deliver to Plaintiffs two copies of a
notice to rescind (DO WE HAVE ONE? IF NOT, REMOVE) that: Attached her as
Exhibit ???
12. Also on DATE OF DEED Plaintiff(s) executed a Deed of Trust which cited the
lender as LENDER Attached her as Exhibit ???
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Complaint
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13. On or about DATE OF DEED, PLAINTIFF(s) NAME transferred the deed of trust
to DEFENDANT.
14. Also on DATE OF DEED, Plaintiff(s) executed a Deed of Trust which cited the
lender as LENDER and stating in the definition section that:
(E) MERS is Mortgage Electronic Registration Systems, Inc. MERS is a
separate corporation that is acting solely as a nominee for Lender and Lenders
successors and assigns. MERS is the beneficiary under this Security Instrument.
15. On or about DATE OF DEED, the Deed of Trust was recorded with the County
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County Recorder and DEFENDANT was named as Trustee of the Deed of Trust.
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17. The Mortgage Loan Statement included a coupon for payment with a mailing
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18.
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Default and of Election to Cause Sale of Real Property Under Deed of Trust
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(hereinafter referred to as Notice of Breach) stating that the payments were due
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Exhibit ???.
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Complaint
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immediately due and payable and has elected and does hereby elect
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thereby.
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You may have the right to cure the default hereon and reinstate the
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thereafter be sold.
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Complaint
22. Plaintiff(s) are informed and believe and thereupon allege that the NOTE was
invalid and unenforceable due to the intentional and willful violations including but,
not limited to: provisions contained in the Truth In Lending Act 15 U.S.C. '' 1601,
1640 etc. et seq.; Regulation Z ' 226 etc. et seq. by failing and/or refusing to provide
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plaintiff with two copies of the Notice to Cancel ; California Civil Code ' 2924b etc.
refusing to mail the Notice of Default within ten business days to Plaintiffs, by failing
and/or refusing to post and mail the Notice of Default; by failing and/or refusing to
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mail Plaintiffs the Notice of Default within one month pursuant to California Civil
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Code 2924b (c)(1), (2); by failing and/or refusing to properly set the sale date
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pursuant to California Civil Code 2924f(b); by failing and/or refusing to publish the
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Notice of Sale twenty days prior to the date set for sale pursuant to California Civil
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Code 2924f(b); by failing and/or refusing to record the Notice of Sale pursuant to
California Civil Code 2924g(d).
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herein.
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Plaintiff(s) repeats and realleges Paragraphs 1 through 22 as though fully set forth
On information and belief, Plaintiff(s) allege that Defendants and each of them are
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Complaint
credit as the term is defined under the Truth in Lending Statute (TILA).
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subject to the requirements of the Truth in Lending Statute (TILA) and have violated the
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full accounting and the required disclosures as to the true finance charges and fees;
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On information and belief, Plaintiff(s) allege that Defendants and each of them are
B.
C.
determined;
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Plaintiff(s) further alleges that these violations are such as to require rescission or
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cancellation of the loan herein and return of all funds received by Defendants from
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Plaintiff.
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to be determined at trial.
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29.
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violation of the TILA act, willfully, maliciously, oppressively and fraudulently and in
conscious disregard for the rights of Plaintiff and as such, Plaintiff is entitled to punitive
damages.
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Complaint
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30.
Plaintiff(s) repeats and realleges Paragraphs 1 through 29 as though fully set forth
herein.
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Based upon information and belief, and on that basis Plaintiff(s) allege that
Defendants and each of them are such that they fall within the requirements of the Real
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Based upon information and belief, and on that basis Plaintiff(s) allege that
Defendants and each of them, placed loans for the purpose of unlawfully increasing or
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otherwise obtaining yield spread fees and sums in excess of what would have been
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lawfully earned.
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33.
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Based upon information and belief, and on that basis Plaintiff(s) allege that
Servicers as that term is used with the RESPA act and either individually or jointly
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violated the requirements of 26 U.S.C. 2605(B) in that the servicing contract or duties
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34.
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to be determined at trial.
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Complaint
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30.
Plaintiff(s) repeats and realleges Paragraphs 1 through 29 as though fully set forth
herein.
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Based upon information and belief, and on that basis Plaintiff(s) alleges that the
mortgage obtained by her through Defendants, by means unknown obtained and enforced
by other Defendants herein falls within the purview of 15 U.S.C. 1602 et seq.,
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commonly known as the Home Ownership and Equity Protection Act of 1994 (HOEPA).
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Based upon information and belief, and on that basis Plaintiff(s) alleges that the
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loan was placed in violation of the HOEPA act as it was placed and administered and
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otherwise utilized without regard to Plaintiffs income or cash flow and with the intention
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of inducing a default.
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As a direct and a legal consequence of the above actions, Plaintiff(s) have been
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Plaintiff(s) repeats and realleges Paragraphs 1 through 34 as though fully set forth
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herein.
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Defendants and each of them are debt collectors either directly or through agents as
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Based upon information and belief, and on that basis Plaintiff(s) allege that
Plaintiff(s) alleges that he duly and properly on more than one occasion requested
validation of the debt under 15 U.S.C. 1692, the Fair Debt Collection Practices Act
(FDCPA).
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Plaintiff(s) further allege that Defendants did not respond to his demands in such a
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39.
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herein.
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Plaintiff(s) repeats and realleges Paragraphs 1 through 39 as though fully set forth
relationship of great trust and acted for and were the processors of property for the
benefit of Plaintiff(s).
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Defendants breached his fiduciary duties owed to Plaintiff(s) as they have acted and
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Complaint
continue to act for his own benefit and to the detriment of Plaintiff(s).
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Among other things, they have placed and negotiated loans without due care to the
As a direct and proximate result of the breach of the fiduciary duties, Plaintiff(s)
have suffered economic damages and loss of funds and payment of fees improperly
incurred in an amount to be proved at trial.
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maliciously, oppressively and fraudulently and in conscious disregard for the rights of
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On information and belief, Plaintiff(s) alleges that Defendants have acted willfully,
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47. Plaintiff repeats and realleges Paragraphs 1 through 46 as though fully set forth
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herein.
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48. Plaintiff alleges that at all times there existed an implied covenant of good faith and
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fair dealing requiring Defendants, and each of them, to safeguard, protect, or otherwise
care for the assets and rights of Plaintiff(s). Said covenant prohibited Defendants from
activities interfering with or contrary to the rights of Plaintiff(s).
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49. Plaintiff alleges that the commencement of foreclosure proceedings upon the
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demonstrating the lawful rights for the foreclosure constitutes a breach of the covenant.
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Complaint
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50. As a direct and proximate result, Plaintiff has been damaged in a sum to be proven
at trial.
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(Injunctive Relief)
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51. Plaintiff(s) repeats and realleges Paragraphs 1 through 50 as though fully set forth
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herein.
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52. Plaintiff seeks a determination as to the legal status of the parties to the Adjustable
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53. The Adjustable Rate Note states that the Lender is LENDER NAME.
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54. It also states, Lender or anyone who takes this Note by transfer and who is entitled
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58. The deed of trust states that Mortgage Electronic Registration Systems is the
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beneficiary.
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Complaint
OF DEED Plaintiff(s) received a Deed of Trust stating that the money is owed to
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SALE? DEED? Plaintiff(s) received notice that the payments were due to Defendants
and on NOITCE OF DEFAULT the Notice of Breach states that MERS is the
Beneficiary.
60. Additionally, based upon information and belief, Mortgage Electronic Registration
Systems has not qualified to do business in the State of California and therefore, would
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61. Defendants should be required to provide the original note with the appropriate
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accordance with the California Revised Statutes, who owns the right to receive
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payments on loan number and exercises the rights relating to said ownership.
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62. Only the Note Holder is authorized to collect payments and, in the event of a
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Trustee.
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63. Until Defendants are able to provide Plaintiff(s) and this Honorable Court the
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aforementioned documents, this Honorable Court should order that Plaintiff(s) are not
required to make any further payments on the Adjustable Rate Note and enjoin any
further collection activity on the Note, including staying the count down towards the
date a Notice of Trustees sale may be filed and served.
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Complaint
(Injunctive Relief)
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64. Plaintiff repeats and realleges Paragraphs 1 through 70 as though fully set forth
herein.
65. Plaintiff(s) are the owner in fee simple of the real property located at ADDRESS
66. Plaintiff(s) received the fee simple title by virtue of the Grant, Bargain, Sale Deed
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67. Defendants ALL DEFENDANTS claim an interest or estate in the Plaintiff (s)
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property disputing or denying Plaintiffs rights to ownership and by contending that his
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68. Plaintiff alleges that Defendants, ALL DEFENDANT have no such right, title or
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interest in the estate of the Property in that the Trustees sale proposed will be
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fraudulent or otherwise in violation of federal and state law and transfer no rights to
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Defendants.
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69. Defendants have wrongfully interfered with or threaten to interfere with Plaintiffs
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use and enjoyment of the Property in that they threaten to dispossess them.
70. Defendants threats to dispossess Plaintiff(s) of his home will continue unless and
until enjoined or restrained by this Honorable Court.
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71. Failure to enjoin or restrain Defendants will cause Plaintiff(s) grave and irreparable
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harm as they will be deprived of the use and enjoyment of unique property.
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72. Plaintiff(s) have no adequate remedy at law for the threatened and continuing
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Complaint
conduct of the impending Trustees sale. The sale of Plaintiffs home will not be
73. Plaintiff(s) further allege that the conduct herein described is of such a nature and
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74. Plaintiff(s) repeats and realleges Paragraphs 1 through 80 as though fully set forth
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herein.
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75. A dispute has arisen between and among Plaintiff(s) and Defendants and each of
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them as to the duties and obligations of the respective parties with regard to the loan or
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the foreclosure.
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76. These disputes concern but are not limited to the ownership rights and the validity
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78. Plaintiff(s) further alleges that a declaration of rights and duties of the parties
herein are essential to determine the actual status and validity of the loan, deed of trust,
nominated beneficiaries, actual beneficiaries, loan servicers, trustees instituting
foreclosure proceedings and related matters.
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Complaint
(Fraud)
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79.
of Trust states that MERS is a separate corporation that is acting as Beneficiary for
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Based upon information and belief and on that basis, Plaintiff alleges that
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MERS did not pay any consideration for the Adjustable Rate Note and in fact was
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MERS will only notate on its internal record keeping system the name of the
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Based upon information and belief, and on that basis Plaintiff(s) alleges that
beneficiary of the deeds of trust and will never tell the trustors the name of the true
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beneficiary.
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bundled together with other loans, pledged to quasi-governmental agencies and then
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signatures, and recording the assignment with the County County Recorder and
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Courts across the United States have held that MERS, named as a nominee
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or Beneficiary, does not have the standing of the beneficiary to enforce the Deed of
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representation to Plaintiff on DATE OF DEED that MERS had the rights and standing
of a beneficiary under California law.
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This statement was made on the Deed of Trust and presented to Plaintiff(s)
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When Defendants and MERS, and each of them made the representation
that MERS was the beneficiary under the Deed of Trust, they both knew that the
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by executing the Deed of Trust and Plaintiff did actually rely on the misrepresentation
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Plaintiff(s) have been damaged as a result of said reliance as they have had
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the title to the Property slandered as a result of the filing of the Notice of Breach.
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92.
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forth herein.
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were due to MERS as Beneficiary. Notice of Breach and Default and of Election to
Cause Sale of Real Property Under Deed of Trust (hereinafter referred to as Notice
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of Breach).
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95.
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96.
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such deed of Trust has executed and delivered to said duly appointed Trustee a written
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It further states that: That by reason thereof of the present Beneficiary under
Declaration of Default and Demand for Sale and has deposited with said duly
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appointed Trustee such Deed of Trust and all documents evidencing obligations
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secured thereby and has declared and does hereby declared all sums secured thereby
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immediately due and payable and has elected and does hereby elect to cause the trust
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99.
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property has advanced in the foreclosure stage to a sale and Plaintiffs reliance was
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Plaintiff(s) did rely on these representations and because of his reliance his
justified.
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Complaint
100.
A. Documents were not provided to the trustee that showed that either MERS or any
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of the Defendants Identified as Does 1-10, were the Beneficiary and entitled to the
payments.
B. At the time Defendants made the representations they knew they were false and
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foreclosure and a slander of his title, and being required to become involved in this
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litigation all to his damages and injuries the amount of which are subject to proof at
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103.
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its misrepresentation.
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104.
That the actions of these defendants were willful, oppressive and fraudulent
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III.
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Complaint
105. Plaintiff(s) reallege and incorporate by reference the above paragraphs 1 through
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duty to maximize net present value to its investors and related parties.
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California Civil Code 2923.6 broadens and extends this PSA duty by requiring
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all parties if it agrees to or implements a loan modification where the (1) loan is in
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Pursuant to California Civil Code 2923.6(a), a servicer acts in the best interest of
payment default, and (2) anticipated recovery under the loan modification or workout plan
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exceeds the anticipated recovery through foreclosure on a net present value basis.
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authorized agent offer the borrower a loan modification or workout plan if such a
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California Civil Code 2923.6(b) now provides that the mortgagee, beneficiary, or
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Plaintiffs(s) are willing, able, and ready to execute a modification of their loan on
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a reasonable basis
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(a)
(b)
(c)
(d)
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112.
The present fair market value of the property is INPUT FAIR MARKET VALUE
OF HOME.
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Complaint
113.
The Joint Economic Committee of Congress estimated in June, 2007, that the
average foreclosure results in $77, 935.00 in costs to the homeowner, lender, local
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114.
Congress estimates that the lender will suffer $50,000.00 in costs in conducting a nonjudicial foreclosure on the property, maintaining, rehabilitating, insuring, and reselling the
property to a third party. Freddie Mac places this loss higher at $58,759.00.
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bound to accept the loan modification as provided above and tender is deemed made
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pursuant to Defendants Pooling and Service Agreement, California Civil Code 2923.6(a),
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and California Civil Code 2923.6(b), taken individually or entirely. Plaintiff(s) invoke the
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392, 165 So. 227 (1936); Loftis v. Alexander, 139 Ga. 346, 77 S.E. 169 (1913); Kennedy
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v. Neil, 333 Ill. 629, 165 N.E. 148 (1929); Borden v. Borden, 5 Mass. 67, 1809 WL 989
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(1809); Loughney v. Quigley, 279 Pa. 396, 123 A. 84 (1924); Montague Corp. v. E.P.
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Burton Lumber Co., 136 S.C. 40, 134 S.E. 147 (1926); Stansbury V. Embrey, 128 Tenn.
103, 158 S.W. 991 (1913); Loehr v. Dickson, 141 Wis. 332, 124 N.W. 293 (1910)]
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[Simmons v. Swan, 275 U.S. 113, 48 S. Ct. 52, 72 L. Ed. 190 (1927); Lee v. Joseph E.
Seagram & Sons, Inc., 552 F.2d 447 (2d Cir. 1977); Buckner v. Tweed, 157 F.2d 211
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(App. D.C. 1946); Peterson v. Hudson Ins. Co., 41 Ariz. 31, 15 P.2d 249 (1932); Woods-
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Drury, Inc. v. Superior Court in and for City and County of San Francisco, 18 Cal. App.
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2d 340, 63 P.2d 1184 (1st District 1936); Chesapeake Bay Distributing Co. v. Buck
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Distributing Co., Inc. 60 Md. App. 210, 481 A.2d 1156 (1984); Issacs v. Caterpillar, Inc.,
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765 F. Supp. 1359 (C.D. Ill. 1991); Platsis v. Diafokeris, 68 Md. App. 257, 511 A.2d 535
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(1986)]
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actual tender of money is waived by defendants refusal to receive the money if produced.
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[Shaner v West Coast Life Ins. Co, 73F.2d 681 (C.C.A. 10th Cir. 1934); Buell v. White,
908 P.2d 1175 (Colo. Ct. App. 1995) (when party, who is willing and able to pay, offers to
pay another a sum of money and is advised that it will not be accepted, offer amounts to
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tender even though money is not produced); Hall v. Norwalk Fire Ins. Co., 57 Conn. 105,
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17 A. 356 (1888); Lamar v. Sheppard, 84 Ga. 561, 10 S.E. 10984 (1890); Ventres v. Cobb,
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105 Ill. 33, 1882 WL 10475 (1882); Metropolitan Credit Union v. Matthes, 46 Mass. App.
Ct. 326, 706 N.E.2d 296 (1999)].
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2.
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For Injunctive Relief including the issuance of a restraining order and thereafter a
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5.
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6. For a declaration of the rights of the parties relative to Plaintiffs Home, including
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their agents, assigns, and all person acting under, for, or in concert with them, from
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8.
Cancellation of the sale and restitution of the home to the Plaintiffs; and
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For an Order enjoining Defendants from continuing to violate the statutes alleged
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herein;
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or a restraining order preventing Defendants and his, hers, or its agents, employees,
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For an Order, requiring Defendant to reinstate Plaintiff on title to his Property, and
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Complaint
following acts: (i) offering, or advertising this property for sale and (ii) attempting to
transfer title to this property and or (iii) holding any auction therefore;
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For such other and further relief as the court may deem just and proper.
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Timothy L. McCandless, Esq.,
Attorney for Plaintiff(s), NAME
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VERIFICATION
I, TIMOTHY L. MCCANDLESS, am an attorney at law admitted to practice before all courts of
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the State of California and have my office in San Bernardino County, California, and am the
attorney for the Plaintiff in this action, that all of the officers of the Plaintiff are unable to make the
verification because they are absent from said County and for that reason affiant makes this
verification on the Plaintiffs behalf; that I have read the foregoing document and know its
contents. I am informed and believe and on that ground allege that matters stated herein are true.
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I declare under penalty of perjury that under the laws of the State of California that the foregoing
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