1 BRIAN W DAVIES'

43277 SENTIERO DRIVE

2 INDIO, CA 92203 B.DAVIESMD@GMA!LCOM 3 ATTORNEY IN PRO SE

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10 BRIAN W DAVIES
11 PLAINTIFF
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14 VS. SUPERIOR COURT OF CALIFORNIA COUNTY OF RIVERSIDE LARSEN JUSTICE CENTER

CASE NO. INC 090697 SECOND VERIFIED AMENDED COMPLAINT FOR DAMAGES UNLIMITED CIVIL

IN EXCESS OF

$25,000

15
FRAUD AND DECEIT
16 1. INTENTIONAL
NDEX WEST LLC, DEUTSCHE BANK MISREPRESENTATION
17 NATIONAL TRUST COMPANY, AS TRUSTEE
OF THE RESIDENTIAL ASSET 2. NEGLIGENCE PER SE
18
SECURITIZATION TRUST 2007 -A5, MORTGAGE 1)-B&P Code §17200-
19 ~17500
PASS THROUGH CERTIFICATES, SERIES 2)- CAL. CIV. ODES
20 2007 -E UNDER THE POOLING AND SERVICING §2923.5, §2924
§2943 § 2923.6
21
AGREEMENT DATED 3-1-07 3)-Fin Code §4973(f)
22 INDYMAC MORTGAGE SERVICES,
A DIVISION OF ONEWEST BANK,
23 UNIVERSAL AMERICAN MORTGAGE COMPANY, FRAUD AND DECEIT
UNIIVERSAL AMERICAN MORTGAGE COMPANY 3. NEGLIGENT
24 MISREPRESENTATION
OF CALIFORNIA, MORTGAGE ELECTRONIC
25 REGISTRATION SYSTEMS, INC., 4. VIOLATION OF CAL.
CIVIL
26 DOES 1-20 CODE§ 1572
27 DEFENDANTS
28 1 COMES NOW, THE PLAINTIFF, BRIAN W DAVIES, Here in after referred to as

2 "PLAINTIFF" and for his Causes of Action herein, alleges, and states as follows:

3

JURISDICTION AND VENUE

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6 1. Jurisdiction for his action is properly founded in the Riverside Superior Court in that

7 the subject property is located in the jurisdiction of this Courthouse located in Indio, 8 California.

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10 2. Venue for this action is further properly founded in the subject property is located and 11 recorded in Riverside County and Superior Court District of Indio.

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13 3. Riverside County has recorded as such Notice of Default with Trustee Sale Number 14 20090159908346 within the jurisdiction of this Court, pursuant to Code of Civil

15 Procedure, Section 395 ..

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17 4. Further, precise venue is properly founded in the Indio Courthouse of Riverside 18 County Superior Court in the real property, is located at 43277 Sentiero Drive Indio, 19 California 92203.

20 GENERAL ALLEGATIONS AND

THE PARTIES

21 22

23 5. Plaintiff, holds title as Trustor, by Deed of Trust executed on November 16, 2006

24 and recorded on November 17, 2006 as Riverside Recorded Document 2006-853245. 25 The property, Assessor's Parcel Number 601710020-5, (abbreviated legal description 26 as LOT 075 TR 31601-4), commonly known as 43277 Sentiero Drive, Indio, California 27

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1 92203 and is the subject matter of alleged:

2 A) Predatory Lending Practices of Lender Defendants and

3 B) Fraudulent Non-Judicial Foreclosure Filings.

4 Including but not limited to violation of California Civil Code 2923.5. 5

6 As noted by noted by FORECLOSING real estate attorneys from Allen, Matkin & ass.

7 :Unquestionably, section 2923.5 places a large additional burden on a party seeking to 8 foreclose on owner-occupied, residential real estate. If you are the holder of an

obligation secured by residential real estate and are seeking to foreclose, a close

9 analysiS of the requirements of section 2923.5 is necessary. Given that this is a new 10 statute, it is unclear how courts will interpret section 2923.5's requirements. As a result, 11 the interpretation of section 2923.5 will continue to be a developing area of law and must be monitored closely. 11 Failure to comply will void the Notice of Default.

12

13 And multiple other California Statute violations and compliance to Federal requirements 14 as completely discussed in the causes of action and below.

15

********PLAINTIFF IS WORKING WITH NACA, NEIGHBORHOOD ASSISTANCE

16 CORPORATION OF AMERICA, A FEDERALLY APPROVE ORGANIZATION THAT HAS PUT THE FORECLOSURE PROCESS ON HOLD as it works with

17 OneWest Bank FSB. ********

18 ******ONEWEST BANK HAS RECEIVED NEARLY $650,000,000.00 IN HAMP FUNDS FOR LOAN MODIFICATIONS AND IS BOUND TO NEGOTIATE PLAINTIFF'S

19 MODIFICATION.********

20 *******NACA IS IN THE PROCESS OF DOING A FORENSIC ACCOUNTING OF ALL PLAINTIFF'S DOCUMENTS.

21

******PLAlNTIFF IS TRYING TO VERIFY:

22

The sales and valuation process The creditor assignments,

Who owns his home and was it done correctly Who he owes and what accurate amount is owed

Have any insurance, federal funding paid for his home already

1) 23 2) 3)

24 4) 5)

25

PLAINTIFF'S HOUSE HAS DECREASED IN VALUE BY 67% BASED ON CURRENT

26 SALES AND ORIGINAL PRICES PAID IN 2006.-

NATIONAL AVERAGES ARE down 29.2% Wells Fargo Economic assessment 2-12-10.

1 VERIFICATION--

2 This is what Mr. Robert E. Bostrom, Executive Vice President,_General Counsel & Corporate Secretary of Freddie Mac had to say to the Supreme Court Task Force 3 on Foreclosures.

4 "Recommendation regarding verification of "ownership" of the mortgage"

"The Task Force has recommended a requirement for a plaintiff in a foreclosure action to 5 verify that it owns and holds the note. Typically, the plaintiff in a foreclosure action does not own the underlying note or loan that is secured by the property subject to the

6 foreclosure proceeding.

7 Robert E. Bostrom

Freddie Mac

8 Executive Vice President

General Counsel & Corporate Secretary

9

10 6. The Defendant UNIVERSAL AMERICAN MORTGAGE COMPANY OF CALIFORNIA, 11 is a Mortgage Bank Subsidiary of the builder Lennar Homes, located at 700 N. W. 107th 12 Avenue Suit 400 Miami, Florida, and is incorporated in California. As such is the

13 "Original Lender" on Plaintiff's Deed of Trust dated November 16, 2006.

14
15 A.
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21 B.
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28 UNIVERSAL AMERICAN MORTGAGE COMPANY OF CALIFORNIA WAS RESPONSIBLE FOR THE PREDATORY LENDING and high default rates and damages to large communities built by Lennar their owner and builder. More specifically they built 200 homes in Terra Lago in Indio, California a community in which Plaintiffs home is located.

UNIVERSAL AMERICAN MORTGAGE COMPANY OF CALIFORNIA, a subsidiary of parent builder Lennar Homes and appraisers artificially inflated property values and the loans which paid them. Such vertical integration has no checks and balances.

Such is part of AB 1534-

The legislation is attempting to correct this problem.

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6 C.
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11 D.
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18 E.
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21 "This bill would prohibit a general building contractor from originating~ directly or through a related entity, a consumer loan, as defined, to be used for the purchase of a home that is for sale by the contractor or a related entity of the contractor."

UNIVERSAL AMERICAN MORTGAGE COMPANY OF CALIFORNIA created multiple loans without using the underwriting standards acceptable to be eligible for the Residential Asset Securitization Trust 2007 -A5, under the pooling and servicing agreement 2007-E signed 3-1-2007.

As the purported original lender participated in a "Yield to Spread Premium" undisclosed to Plaintiff and illegal under the California Consumer Fraud Act and to the disadvantage of Plaintiff and Plaintiffs neighbors. In addition the documents for the loan were on a take it leave it basis. Plaintiff was further given a loan that was 100% financing and done to maximize the profits for this lender a value that could not be imagined if done on a cost basis method or accurate comparables.

UNIVERSAL AMERICAN MORTGAGE COMPANY OF CALIFORNIA IS NOT LISTED AS A MORTGAGE ELECTRONIC SYSTEM MEMBER BY NAME.

Plaintiff could not qualify under any reasonably underwriting guidelines, that such 22 scheme was devised to extract illegal and undisclosed compensation from Plaintiff by 23 virtue of an undisclosed yield spread premium, undisclosed self dealings, and which

24 Defendants, and each of them, shared in some presently unknown percentage.

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1 7. Defendant "MERS" is Mortgage Electronic Registration Systems, Inc. Is a

2 separate corporation that is purportedly acting soley as nominee for the Lender and 3 Lender's successors and assigns. MORTGAGE ELECTRONIC REGISTRATION

4 SYSTEMS, INC. is the beneficiary under the Security Instrument.

5 MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. is organized and existing 6 under the Laws of Delaware, and has an address of P. O. Box 2026 Flint, Michigan

7 48501-2026, an is a California Corporation as of June 1,2009.

8

9 8. MERS the beneficiary listed on the Notice of Default. MERS is a computer tracking 10 system with around 20 employees and assigned vice presidents or agents used to

11 transfer mortgages in the name of the nominee lenders in millions of loans such as

12 Plaintiff's.

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14 9. Plaintiff further alleges that MERS acts as a Nominee for more than one principal, 15 and conceals their identity. Therefore if a Nominee is the same as an agent, MERS 16 cannot act as an agent for multiple Banks, Insurance, Title, and Mortgage Companies 17 because of serious "Conflicts of Interest".

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19 10. Plaintiff allege that a Deed of Trust cannot lawfully be held by a Nominee who has 20 no financial interest in the instrument without disclosing the identity of the actual

21 Beneficiary, and that if a party with no interest in the Note records it in their name the 22 recorded deed is Nullity. MERS is not the beneficiary but is used to hide the identity of 23 the real owner, creditor, beneficiary or person that advanced the money for the security 24 interest-mortgage of such note.

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1 11. Plaintiff alleges that the service of the purported note was, without his knowledge,

2 by some means transferred from or by Defendant UNIVERSAL AMERICAN MORTGAGE 3 COMPANY OF CALIFORNIA either completely or by association or other means to

4 MERS who unknown to Plaintiffs provided services in various forms to others which were 5 of such a nature to render them a "Servicer."

6

7 12. Defendant UNIVERSAL AMERICAN MORTGAGE COMPANY LLC, herein after 8 referred to as "UAMC LLC" located at 700 NW 10th Avenue, 3rd floor Miami, Florida 9 33172-3139, has surrendered its California license C1680488 on December 18,2000.

10 Defendant is the original Trustee for the Plaintiffs Deed of Trust and associated 11 Promissary Note executed November 16, 2006.

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13. UNIVERSAL AMERICAN MORTGAGE COMPANY LLC, as trustee of deed of trust has a duty to both the lender and the borrower. It is the parent of Universal American Mortgage Company of California. Both are owned by builder Lennar Homes. Lennar is listed on the NYSE as LEN. It also owns interest in title companies, and insurance companies.

14 15 16 17 18 19

20 14. Defendant INDYMAC MORTGAGE SERVICES, herein after referred to as " INDY"

21 is a subsidiary of ONEWEST BANK FSB, the surviving entity of INDYMAC BANK FSB. 22 ONEWEST BANK FSB was chartered on March 19,2009.

23

24 15. INDYMAC BANK FSB was taken over by the FDIC and became INDYMAC 25 FEDERAL BANK, FSB in July 2008.

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In an article in the "Wall Street Journal ", regarding the INDYMAC BANK FSB failure:

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1 "Senator Chuck Schumer fired back, laying the blame on bank regulators for turning a 2 blind eye to Indymac's "fast and loose lending practices" until it was too late. Reich,

Office of Thrift Supervision conceded that Indymac, which had been plagued by

3 mortgage loan defaults, might have failed on its own without being helped along by

4 Senator Chuck Schumer's public remarks .

5 The Federal Deposit Insurance Corp is now supervising Indymac's operations. It is 6 estimated that the tax payers will have to cover between four and eight billion

dollars in bad Indymac loans".

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8 16. The name INDYMAC MORTGAGE SERVICES WAS THE NEW SERVICING NAME 9 FOR ONEWEST BANK, FSB which started operations on March 19,2009.

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INDYMAC MORTGAGE SERVICING was the purported 'MASTER SERVICER'

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21 17. INDYMAC MORTGAGE SERVICES, the apparent ONEWEST BANK FSB"S

22 surviving entity of the original Master Servicer, of such trusts, is responsible for and has 23 negotiated with Plaintiff for loan modifications. INDYMAC MORTGAGE SERVICES

has failed to follow Federal and California Statues in trying to modify loans, and bring on 24

for the original INDYMAC SECURITIZATION TRUSTS, a grouping of Mortgage

Backed Securities that were put together by INDYMAC MBS.

INDYMAC BANK FSB, was an original assigned Lender by OPTEUM FINANCIAL

LLC with in a few months after the original funding from UNIVERSAL AMERICA

MORTGAGE COMPANY OF CALIFORNIA. INDYMAC MBS was the depositary

of such mortgage securities into the INDYMAC TRUSTS.

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foreclosure actions.

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1 18.INDYMAC TRUSTS, were created and structured by INDYMAC FSB to issue

2 billions of dollars worth of Certificates pursuant to the Offering Documents filed 3 with the SEC. The trusts are common law trusts formed under the laws of the State of 4 New York. Plaintiff's mortgage was part of the:

5 RESIDENTIAL ASSET SECURITIZA TION TRUST 2007-A5, and was part of a

6 MORTGAGE PASS-THROUGH CERTIFICATE SERIES 2007-E UNDER THE POOLING 7 AND SERVICING AGREEMENT DATED MARCH 1, 2007.

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9 19. Defendant DEUTSCHE BANK NATIONAL TRUST COMPANY "DBNTC" was the

10 TRUSTEE FOR THE INDYMAC TRUSTS issued pursuant to the Registration Statements 11 filed with the Security and Exchange Commission.

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20. DEUTSCHE BANK NATIONAL TRUST COMPANY more specifically is the Trustee 14

of the RESIDENTIAL ASSET SECURITIZATION TRUST 2007 A5 of which Plaintiff's

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property is allegedly located.

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The note by written agreement of the Pooling and Servicing agreement is located at a site secured and controlled by DBNTC. The Pooling and Servicing agreement

outline what is required, what underwriting standards should exist, and the relationship of 19

INDYMAC MORTGAGE SERVICES, A DIVISION OF ONEWEST BANK FSB such

20 TRUSTEE of such TRUST.

21

As such DBNTC does not verify the underwriting or quality of the mortgages/notes 22

placed into such trust for the owners of such MORTGAGE BACKED SECURITIES.

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21. The 2007-A5, WITH PSA 2007-E dated 3-1-2007, securitization was underwritten 24

by CITIGROUP GLOBAL MARKETS, INC. and UBS SECURITIES LLC. 25

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1 22. DEUTSCHE BANK NATIONAL TRUST COMPANY is located at 1761 East St. 2 Andrew Place, Santa Ana, California 92705.

3 DEUTSCHE BANK NATIONAL TRUST COMPANY is responsible for collecting and 4 disbursing monies collected from such Residential Asset Securitization Trusts and

5 distributes the earnings to THE CREDITORS or owners of the certificates. These 6 owners have partial interests in the mortgages of such MORTGAGE BACK

7 SECURITIES.

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9 23. DEUTSCHE BANK NA TlONAL TRUST COMPANY is the purported holder of the 10 promissary note secured by the deed of trust for shareholders of the certificates the

11 alleged true creditor ..

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24. INDYMAC MORTGAGE SERVICES, A DIVISION OF ONEWEST BANK FSB refers to DEUTSCHE BANK NATIONAL TRUST COMPANY as 'THE LENDER' OR

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INVESTOR" on all interactive calls.

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18 25. Defendant NDEX WEST, LLC, herein after referred to as "NDEX" is the purported

agent of INDYMAC MORTGAGE SERVICES, A DIVISION OF ONEWEST FSB. They 19

work in concert and appear to share information. 20

21

22 26. Defendant NDEX WEST LLC as alleged collection agent of INDY filed a Notice of 23 Default on July 14, 2009. As agent of the trustee, lender, or beneficiary. The filing

24 included MERS as the beneficiary. (Exhibit # 7)

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1 27. NDEX WEST LLC is a Limited Liability Corporation active in the State of California 2 since January 19, 2007. It is located at 15000 Surveyor Blvd. Ste. 100 Addison, Texas. 3

4 28. At the time of filing Plaintiff's complaint, NDEX WEST LLC acted in the role as 5 TRUSTEE. As Trustee NDEX WEST LLC filed a Notice of Default with malice by

6 ignoring Cal. Civ. Codes § 2923.5, §2924. A Notice of Default filed in violation of statue 7 is void as a matter of law, and therefore is responsible for error and omissions as a

8 Trustee. Even when there was question in a letter specifically questioning the

9 Declaration required by CC § 2923.5 (exhibit#2, page 2, number 2.) NDEX WEST LLC 10 had an opportunity to review and correct. They did not and chose to go with a faulty 11 document. For this they have demonstrated negligent intent with malice.

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13 29. Defendant OPTEUM FINANCIAL LLC, herein after referred to as OPTEUM, was a 14 wholesale lender, who was involved with Plaintiff as lender and servicer immediately 15 after the original funding.

16

The CEO of OPTEUM FINANCIAL LLC said in a conference call March 20, 2007 that,

17 "The company had run into trouble with its primary funding agreement with a Citigroup 18 affiliate, and that lax underwriting standards, early payment defaults and high

19 delinquency rates involving subprime mortgages and concerns over the general state 20 of the U. S. Housing Market had lead to "significant distress" in the secondary market for 21 mortgage loans ..

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30. OPTEUM FINANCIAL LLC failed and, no longer exists, all assets were distributed

24 in mid 2007. This defendant is not named.

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1 31. Plaintiff is informed and believe and thereon alleges that at all times mentioned 2 herein Defendants Does 1-20, inclusive, were the agents and/or employees of

3 defendants DEUTSCHE BANK NATIONAL TRUST COMPANY, NDEX WEST LLC,

4 MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., INDYMAC MORTGAGE 5 SERVICES, A DIVISION OF ONEWEST BANK, UNIVERSAL AMERICA MORTGAGE

6 COMPANY OF CALIFORNIA, UNIVERSAL AMERICA MORTGAGE COMPANY LLC,

7 and in doing the things herein alleged, were acting in the course and scope of such

8 agency and/or employment and with the consent of his co-defendants.

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10 32. Plaintiff is ignorant of the true names and capacities of defendant sued herein as 11 Does 1 through 20, and therefore list these defendants by such fictitious names.

12 Plaintiff will amend his complaint to amend the true names and capacities when

13 ascertained.

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15 33. Plaintiff is informed and believes and thereon alleges that each of these fictitious 16 named defendants claim some right, title, estates, lien or interest in the herein

17 after described real property adverse to Plaintiff's title to that property.

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20 34. Plaintiff is informed and believe and therefore alleges that his loans after they were

21 originated and funded, were sold on multiple occasions, bundled into a group of Trust

Deeds and subsequently sold to investors as a Derivative, "Mortgage Backed 22

23

Securities" .

24 Each buyer of the certificate bought the cash flows from the payments and also a 25 partial ownership in the mortgage/property.

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1 35. Plaintiff further is informed none of these defendants, and each of them, owned

2 this loan, or Note and cannot be and are not the Beneficiary, or lawfully appointed

3 trustee, and have no right to declare a default, to cause notices of default to issue or to 4 be recorded, or to foreclose on Plaintiffs interest in the subject property.

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36. Defendants, and each of them, were not the note Holder or the Note holder in due course or any Beneficiary at any time in regards to this loan.

7 8 9

10 NDEX WEST VIOLATED California Civil Codes§ 2923.5, § 2924

11 37 Defendant NDEX WEST LLC caused to recorded a materially defective Notice of 12 Default and Election to Sell under the Deed of Trust on July 14, 2009, Document No. 13 2009-0362260.

14 As Trustee or agent of the beneficiary NDEX WEST LLC, breached the duty to follow

California Statutes § 2923.5 and § 2924 causing a direct and proximate cause of 15 damages to Plaintiff and voids the Notice of Default.

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17 AS TRUSTEE NDEX WEST LLC VIOLATED MERS POLICIES.

18 MERS was forced to release a news release in response to adverse rulings in regards 19 to MERS in many courts across this country, and that number is increasing:

20

FROM MERS WEBSITE

21 "In recent years certain ill-advised practices have been adopted in the default

management process by some in the Residential servicing community that were 22 intended to expedite the foreclosure process •....•.

23 It was these "short cuts" that were rejected by the Judges in the Ohio ceses, and 24 none of the rejected procedures are a part of the approved MERS program . .,

25 These policies are discussed in response court losses for MERS usage in foreclosure 26 actions. (exhibit #1)

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INDYMAC MORTGAGE SERVICES, A DIVISION OF ONEWEST BANK FSB FAILED TO RESPOND TO QUALIFIED WRITTEN REQUESTS AS REQUIRED BY RESPAAND TILA.

THEY WERE EITHER INCOMPETENT, TOO BUSY WITH SO MANY FORECLOSURES, OR JUST DIDN'T CARE TO FOLLOW FEDERAL REQUIREMENTS.

1 2 3 4 5 6

7 38. Well before filing his Verified Complaint, Plaintiff made oral and written demands

for validation of the debt as outline in RESPA per 12 USC 2605(e) as well as a request under the Truth and Lending Act 15 USC section 1601. (exhibit # 2)

An example of a proper response is from Plaintiff's second mortgage from Servicer SLS, Specialized Loan Services LLC. Such a response included all documents requested by law. Even though it is part of a Securitization the actual owner is identified. (Exhibit # 3)

39. TILA specifically remedial in nature, its provisions must be strictly construed. A 15

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creditor must comply with TILA in all credit transactions and "misleading disclosure is

as much a violation of TILA as a failure to disclose at all." Smith v. Chapman, 614 F.2d 968, 977 (5th Cir. 1980).

19 40. It is not sufficient to attempt to comply with the Act, but rather, creditors are

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required to strictly comply with all the requirements of the Act. There is no need to show that the consumer was misled or deceived by ambiguous credit terms in order to prevail. Noel v. Fleet Finance. Inc., 971 F. Supp. 1102 (E.D. Mich. 1997).

41.Congress did not intend for creditors to escape liability for merely technical violations, that even minor or technical violations impose liability upon the creditors. Huffv. Steward-Gwinn Furniture Co., 713 F.2d 67, 69 (4th Cir. 1983). See also, Washington v. Ameriquest Mortg. Co., 2006 W.L. 1980201 (N.D. 111.).

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18 45.. UNIVERSAL AMERICA MORTGAGE COMPANY OF CALIFORNIA as Lender is

42. RESPA provides substantial penalties and fines for non-compliance or failure to answer the questions within 60 days of its receipt. Plaintiff's "Qualified Written

Demands" were not returned. This is a clear violation.

43. All of Plaintiffs demands were ignored. Defendants do not provide accurate

document documents as requested by law.

44. The Fair Debt Collection Practices Act(FDCPA), 15 U.S.C. §§ 1692-1692p.

The term "creditor" means any person who offers or extends credit creating a debt or to whom a debt is owed, but such term does not include any person to the extent that he receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another.

THE NOTICE OF DEFAULT FAILED TO CONFORM WITH THE

PROVISIONS OF CALIFORNIA CIVIL CODE SECTIONS 1624, 2923.5,2932.5 ET.

SEQ., AND COMMERCIAL CODE SECTION 3302 ET SEQ.

19 not the Creditor.

20 46.. Plaintiff contends DEUTSCHE BANK NATIONAL TRUST COMPANY is not the

21 22

Creditor.

47. Plaintiff contends NDEX WEST LLC is not the Creditor. 23

24 48. Plaintiff contends MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. is

25 not the Creditor.

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1 2 3 4

49. Plaintiff contends neither UAMC LLC and INDYMAC MORTGAGE SERVICES, A DIVISION OF ONEWEST BANK, FSB is the Creditor.

CALIFORNIA CIVIL CODE § 2932.5

5 CC§ 2932. 5 governs the Power of sale under an assigned mortgage, and provides that the 6 power of sale can only vest in a person entitled to money payments:

7 "Where a power to sell real property is given to a mortgagee, or other encumbrancer, in an 8 instrument intended to secure the payment of money, the power is part of the security and 9 vests in any person who by assignment becomes entitled to payment of the money

10 secured by the instrument.

11 12 13

The power of sale may be exercised by the assignee if the assignment is duly acknowledged and recorded.

14 50. Any transfers of the notice and mortgage fundamentally flow back to the note:

15 "The assignment of a mortgage without a transfer of the Indebtedness confers no 16 right, since debt and security are inseparable and the mortgage alone is not a subject 17 of transfer, " Hyde v, Mangan (1891) 88 Cal. 319, 26 P 180, 1891 Cal LEXIS 693;

18 19

Johnson v, Razy (1919)181 Cal 342, 184 P 657; 1919 Cal LEXIS 358;

20 Bowman v. Sears (1923, Cal App) 63 Cal App 235,218 P 489,1923 Cal App LEXIS 199; 21 Treat v, Burns (1932) 216 Cal 216, 13 P2d,724, 1932 Cal LEXIS 554.

22 51. '~ mortgagee's purported assignment of the mortgage without an assignment of 23 the debt which is secured is a legal nullity." Kelley V. Upshaw (1952) 39 Cal 2d 179, 24 246 P2d 23, 1952 Cal. LEXIS 248.

25

52. '~ trust deed has no assignable quality independent of the debt; it may not

26 be assigned or transferred apart from the debt; and an attempt to assign the trust deed without a transfer of the debt is without effect. 11 Domarad v. Fisher & Burke,

2

1 Inc. (1969 Cal. App. i= Dist) 270 Cal. App. 2d 543, 76 Cal. Rptr. 529, 1969 Cal. App.

LEXIS 1556.

3 53, The Promissory Note is a negotiable instrument. 4

54. Transferring a Deed of Trust by itself does not allow enforcement of the instrument 5 nless the Promissory Note is properly negotiated.

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55. Where an instrument has been transferred, enforcement ability is determined based 7 pon possession.

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56. California Commercial Code § 3301 limits a negotiable instrument's enforcement to 9 he following:

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57. "Person entitled. to enforce" an Instrument means 11 (a) the holder of the instrument,

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(b) a non holder in possession of the instrument who has the rights of a holder, or 13

14 (c) a person not in possession of the instrument who is entitled to enforce the instrument

15 pursuant to Section 3309 or subdivision

16 (d) of Section 3418.

17 18

A person may be a person entitled to enforce the instrument even though the person

is not the owner of the instrument or is in wrongful possession of the instrument. 19

20 8. None of the Defendants are present holders of the instrument. All elements discussed

21 upra were also validated in the MERS member release. (Exhibit #1)

22 59. None of the Defendants are non-holders in possession of the instrument who has 23 rights of the holder.

24 25

60.. None of the Defendants are entitled to enforce the instrument pursuant to section

3309 or subdivision (d) of Section 3418. 26

27 61, Defendants have no enforceable rights under California Commercial Code 3301 (a) to

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1 enforce the negotiable instrument.

Code § 2924(f) were likewise never complied with, and there is no subsequent incidental right to enforce any deed of trust and conduct a non-judicial foreclosure.

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62. Since there is no right to enforce the negotiable instrument, the Notice of Default

3

provisions of California Civil Code § 2924 and Notice of Sale provisions of California Civil

4 5 6

7 63. That the Trustee and the Loan Servicer are acting as agents of the Beneficiary and 8 signing documents as the agent of the agent of the Beneficiary for Plaintiffs Notes and the 9 notices therein, notwithstanding the fact that the Notes were not negotiable prior to the sale

10 of the Subject Property.

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64. . That by virtue of the method and manner of Defendants carrying out Civil Code

12 section 2924 et seq., the foreclosure of the Subject Property is void ab initio as a 13 matter of law.

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15 65. MERS was NOT and never has been a Beneficiary of this loan or any other.

16 66. MERS is solely a registration service for tracking these Trust Deeds and mortgages and 17 also the Notes.

18 67. MERS records these Trust Deeds in their name as a "nominee", with NO actual 19 ownership interest in these Loans, the purpose is allegedly to allow the sale and 20

transfer of these instruments without the need for further recording, however what

21 22

actually occurs is that the real Beneficiary remains obscured, and unknown.

23 68. MERS is NOT a TRUSTEE and has no right to collect any TO payments on the Note. 24 69. MERS does not have any right to enforce the notes or to be a party in any Foreclosure 25 proceedings.

70. Yet MERS has represented itself under oath in this case to be the BENEFICIARY and

1 in that "stated" but "false" capacity has unlawfully nominated a successive trustee.

2 71. Plaintiff refers to the "THE COURT OF COMMON PLEAS FOR THE THIRD JUDICIAL 3

CIRCUIT,STATEOFCAROLlNA,FORTHECOUNTYOFSUMTER,CIVILACTION#2005-

4 5

CO-43-0278." Also read the contents of (exhibit #1).

6 In this order the court found the following:

Although the assignment to MERS [recorded] in volume 852 at page 9] purports to convey the mortgage "together with the note thereby secured," MERS contractual relationship with lenders is such that the lender retains the note, the debt thereby represented, and the right to collect the debt. The Member, at its own expense, shall promptly, or as soon as practicable, cause MERS to appear in the appropriate public records as the mortgagee of record with respect to each mortgage loan that the Member registers on the MERS System. MERS shall serve as mortgagee of record with respect to all such mortgage loans solely as a nominee, in an administrative capacity, for the beneficial owner or owners thereof from time to time.

MERS shall have no rights whatsoever to any payments made on account of such mortgage loans, to any servicing rights related to such mortgage loans, or to any mortgaged properties securing such mortgage loans.

In a Nebraska Case, which MERS initiated to avoid having to pay fees levied in that State against mortgage bankers, MERS represented to the Court and/or the Court found: MERS is a private corporation that administers the MERS System, a national electronic registry that tracks the transfer of ownership interests and servicing rights, in mortgage loans.

19

1 Through the MERS System, MERS becomes the mortgagee of record for

2 participating members through assignment of the member's interests to MERS. MERS is 3 listed as the grantee in the official records maintained at county register of deeds offices. 4 The lenders retain the promissory notes, as well as the servicing rights to the

5 mortgages. The lenders can then sell these interests to investors without having to

6

record the transaction in the public record.

7 8

MERS is compensated for its serves through fees charged to participating MERS

9 members. MERS does not own the promissory notes secured by the mortgages 10 and has no right to payments made on the notes. MERS explain that it merely

11 "immobilizes the mortgage lien while transfers of the promissory notes and servicing 12 rights continue to occur."

13 14

1. Since MERS initiated the Nebraska litigation and prevailed in it, it is judicially

15 16

estopped to disavow the positions it advanced during the litigation process there or to

avoid the findings and conclusions articulated by the Nebraska Court. 17

18

19 2. The affiant's representation that Guaranty assigned the note and mortgage to

20 21 22 23 24 25 26 27 28

MERS "for valuable consideration" is diametrically opposed to the way MERS operates, as described in the Nebraska case. As evidenced by the text of the Nebraska decision:

MERS does not acquire the notes or debts thereby represented for or without consideration. It has neither the right nor the obligation to service the debts represented by the notes and/or secured by the mortgages. As its sole source of

20

1 2 3

4

5 3. Furthermore, the principal/agent (nominee) relationship between its members and

revenue "MERS is compensated for its services through fees charged to

participating MERS members."

6 MERS is such that the "close-connectedness doctrine" would prevent MERS from

7 qualifying as a holder in due course without notice, even if it did acquire some ownership 8 interest in the debt.

9 10

4. Although there is implicit in the affidavit a suggestion that the process through which 11

MERS "acquires" a mortgage qualifies it as a holder in due course and protects it from 12

13 defects in transactions which preceded the acquisition, the affiant does not state whether

14 MERS even sees (much less examines for impropriety) the mortgage, the note, or any of 15 the loan documents.

16 5. However, the MERS method of operation, as reported in its contracts with its

17 "members" and as found by the Nebraska Court, would indicate that it doesn't. Certainly, 18 there is no reason for it to do so, since it has nothing invested in the transaction and will 19 receive payment from its members irrespective of any defect in the transaction.

20

Consequently, any implication of the contrary in the affidavit would be disingenuous, if not

21

an outright misrepresentation.

22 23

24 72. While MERS remain on title as a "nominee" for the Trust Deed and Note both are

25 sold on several occasions afterward and ultimately bundled as a security and sold to a 26 final investor.

27 28

21

3

1 73. MERS actually helps to conceal the real beneficiary, which is in violation of 2 California statutory law, Cal. Civ. Code Sec. 2924 et. Seq.

The Beneficiary is completely shielded and not disclosed as required. Also the forms that 4

5 they used to give Notices are defective.(exhibit # 7)

6 74. . Evidence in prior cases has demonstrated that MERS is nothing more than a 7 Registration Service, and does not even service the loan.

8 75. MERS cannot prove or show ownership in the form of an "Original Note"

9 10

(I) with proper endorsements, to them, or that they are actually in the chain of ownership,

11 (ii) to establish the actual relationship of the holder of the Note, as a Holder in Due 12 course, and

13 (iii) with the right to enforce the Note.

14 15 16 17

76. April Charney, a lawyer at Jacksonville Are Legal Aid in Florida, in 2007 had over 300 foreclosure cases dismissed or postponed due to "MERS" attempting to foreclose on those Mortgages.

18 77.. Plaintiff has a letter from Indymac Mortgage Services dated October 9, 2009. It 19 is apparent no one knows or can identify the creditor. (exhibit #4 )

20 78.. Defendants owe Plaintiff the duty to notify him who he owes and what he owes, 21 and they have refused to follow State and Federal Laws without any fears. This despite 22 being brought to a class action lawsuit for such actions.

23 24 25 26 27 28

ONEWEST BANK SETTLED A CLASS ACTION - VIOLATION OF FEDERAL LAW.

PLAINTIFF WAS NOTIFIED BY ONEWEST, HE IS ELIGIBLE FOR THE CLASS

22

8 9 10

1 79. Defendant OneWest Bank FSB, has agreed to a class action settlement,

2 admitting that Plaintiff (BRIAN W DAVIES) may not have receive a validation of 3

debt, accountings of what was owed, identity of the creditor to whom it is owed

4 5 6

7 FDCPA, FAIR DEBT COLLECTION PRACTICE ACT 15 U. S. C. § 1692 (9). (exhibit #5)

and a statement verifying the debt is valid.

80. Plaintiff is a member of the class letter sent to him by ONEWEST BANK FSB.

11 ONEWEST BANK FSB, took over the obligation on March 19, 2009 when it signed with 12 the FDIC to buy INDYMAC FEDERAL BANK FSB.

13 INDYMAC MORTGAGE SERVICES, A DIVISION OF ONEWEST BANK FSB. (Not as 14 INDYMAC MORTGAGE SERVICING), the "Master Servicer" for the INDYMAC TRUSTS 15

81. Defendants all of them have a duty to produce detailed "CREDITOR" information 16

17 18 19 20 21 22 23 24 25 26 27 28

by law, debt amount owed, and the identity of the actual creditor as defined in the

FDCPA.

82. Defendants, are not creditors and thus lack standing to as the "real party in

interest" or the person who is to be paid the debt and able to negotiate loan

modification as required by California Civil Code 2923.6.

83. California Civil Code § 2923.6 was passed in which the legislature outlines a

servicers acts to be in the best interest of all parties if it agrees to modify a loan where

1) The loan is in default and

23

1 2 3 4 5 6 7

NET PRESENT VALUE·CC § 2923.6

2) The anticipated recovery under the loan modification or workout plan exceeds the

anticipated recovery under the loan modification or

3) Where the work out plan exceeds the recovery through foreclosure on a net

present value basis.

84. Plaintiff's house value is $208,000.00. (Actual recent sales). 8

9 85. The cost of foreclosure is $77,935.00. (National reports).

10 86. Plaintiff allegedly owes nearly $540,000. Therefore the net present value would

11 12 13

suggest the true Creditor be paid $130,000 or more to make money $208,000-

$77,735= $130,065.00

14 87. A temporary modification from January 2009 thru April 2009 was given to Plaintiff.

15 16 17 18 19 20 21 22 23 24

Plaintiff was compliant with the terms and a new modification agreement was sent to

Plaintiff on March 6, 2009.

Plaintiff signed a forbearance modification agreement in good faith, and without

counciling, on March 24, 2009 and sent in the required check for more than $1,582.66

to cover the April payment. INDYMAC FEDERAL BANK FSB was in charge of

negotiating with Plaintiff.(exhibit # 6)

88. Plaintiff was compliant in payment, however was denied to continue, for a reason not disclosed.

25 It is now concerning that INDYMAC MORTGAGE SERVICES AND

26 ONEWEST BANK FSB, took over ownership and decisions for such

27 modification on March 19, 2009. The denial letter came several weeks

28 later. Plaintiff appealed this decision.

24

9 10 11

1 89 .. Plaintiff is justified in proceeding in the premises, because Defendants are 2 not the "REAL CREDITOR"and failed to follow the federal requirements in

3 response to the "Qualified Written Requests", respond to the wishes of 4 the legislature intent in §2923.5, §2923.6, § 2924 and §2943.{exhibit # 2) 5

6

7

90. Plaintiff further allege that California Civil Code section 2924 et seq. and

8 its sub parts are being applied to Plaintiffs in a manner that is unlawful,

because at least in part the party acting as the Trustee proceeded with the

foreclosure of Plaintiffs Subject Property notwithstanding the fact that the Trustee was not in possession of the original Note or a non fraudulent

12 legitimate Declaration as required by prerequisite CC § 2923.5

13 14 15 16 17

91. OPTEUM FINANCIAL LLC., took assignment from UNIVERSAL AMERICAN MORTGAGE COMPANY OF CALIFORNIA This alleged assignment did not covey the power of sale because it violated the terms of California Civil Code section 2932.5.

18 92. When Deutsche Bank THE TRUSTEE for the actual investor took

19 20 21 22 23 24 25 26 27 28

assignment of the Mortgage from MERS the Note executed by Plaintiff was no longer a negotiable instrument because the assignment was not physically applied to the Note pursuant to the holding of Pribus v. Bush, (1981) 118 Cal.App.3d 1003, 173 Cal. Rptr. 747, although there was sufficient room on the back of the Note to complete the assignment, and as such the foreclosure of Plaintiff's subject property did not conform with the strict mandates of Civil Code section 2924. This detail will be demonstrated when the actual note is directly visualized.

93.. As a direct and proximate result of the wrongful conduct of the Defendants DEUTSCHE BANK NATIONAL TRUST COMPANY, MORTGAGE ELECTRONIC

25

1 2 3 4 5 6 7

8
9
10
11
12
13
14 94.
15
16 95 ..
17 REGISTRATION SYSTEMS, INC., INDYMAC MORTGAGE SERVICES, A DIVISION OF ONEWEST BANK. UNIVERSAL AMERICA

MORTGAGE COMPANY OF CALIFORNIA, UNIVERSAL AMERICA MORTGAGE COMPANY LLC, and NDEX WEST LLC ,

Plaintiff has been forced to bring this Unlimited Civil Action, has suffered monetary damages, is facing irreparable injury.

FIRST CAUSE OF ACTION INTENTIONAL MISREPRESENTATION OF FACT

( UNIVERSAL AMERICAN MORTGAGE COMPANY OF CALIFORNIA AND LENDER ASSIGNS, UNIVERSAL AMERICAN MORTGAGE COMPANY LLC, AND MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. DOES 1-20)

Plaintiff refers to and incorporates, as though fully set forth herein paragraphs

1-93, inclusive.

Plaintiffs allege intentional misrepresentation, fraud, and deceit in the

origination of loan for the subject property with facts to prove the following elements: 18

19 1) Misrepresentation made by defendant;

20 2) Scienter;

21

3) An intent to induce plaintiff's reliance on the misrepresentation; 22

23 4) Causation;

24 5) Justifiable reliance by plaintiff on the misrepresentation; and 25

26 6) Damages.

27 6. Plaintiff is informed and believes and thereon alleges that, at all times herein 28

26

1 2 3

entioned, defendant Jeffrey Feig, was the agent (LOAN ADVISOR) and employee of

defendant UNIVERSAL AMERICAN MORTGAGE COMPANY OF CALIFORNIA, and

4 in doing the things herein allege was acting within the course and scope of such 5 agency and employment and with the permission the LENDER AND ASSIGNED

6 LENDERS OPTEUM, INDYMAC BANK FSB AND IT ASSIGNS, INDYMAC MBS, 7 AND DEUTSCHE BANK NATIONAL TRUST COMPANY INVESTOR/OWNER

8 9 10 7.

CREDITOR Defendants ..

On or about November 16, 2006, defendant JEFFREY FEIG made the

11 following representations to plaintiff: 12

(a) That plaintiff's income to debt ratio would not be a consideration in the loan

13

process when it was obvious that the plaintiff could not qualify for the loan based on 14

15

standard underwriting guidelines;

16 b)

That plaintiff would be getting a 30 years fixed loan, not an adjustable rate loan

17

with balloon payment, with required payments of only principal for an approximately

18 19 20 (c) That plaintiff did have adequate documentation to support 100% financing.

amount of $2,023.00 monthly;

21 d) That plaintiff only needed to sign the blank loan application and that the loan

22 23

advisor Jeffrey Feig would fill in all the pertinent information from own knowledge and

experience; and 24

25 e) That plaintiff did not need to review the completed loan application which, in fact, 26 failed to offer to plaintiff for his adequate review of the loan application.

27

8. The representations made by defendant were in fact false. The true facts were: 28

27

1 a) The income to debt ratio is generally used as part of the standard underwriting

2 3 4 ) Plaintiff's loan was not a 30 years fixed loan with fixed monthly payments;

guidelines;

5 (c) Plaintiff did not have adequate documentation to support such a loan. 6

d) The loan application needed to fill out based on plaintiff's individualized 7

8 circumstance and not based on Loan Advisor Jeffrey Feig's own knowledge and

9 experience; and plaintiff is not supposed to sign a blank loan application;

10

e) Plaintiff was never given the chance to review the completed loan application, and

11 12 13 effrey Feig did not offer the completed loan application for plaintiff to review prior to

UNIVERSAL AMERICAN MORTGAGE COMPANY OF CALIFORNIA'S EMPLOYEE

14 submittals to the co-defendants banks.

15 16

9. Defendant Universal American Mortgage Company through it Loan Advisor

Jeffrey Feig stands in such a fiduciary relationship to plaintiff as would call for a duty 17

18 of disclosure.

19 00. Defendant Universal American Mortgage Company of California knew that

20

plaintiff is unaware of, and cannot reasonably discover material information about the

21 22

loan transaction, since the loan transaction was prepared from a blank loan

23 application.

24 01. Defendant Defendant Universal American Mortgage Company of California

25 deceived plaintiff, and as such, Loan Advisor Jeffrey Feig was under a duty to inform 26

plaintiff of the true facts.

27 28

28

2 3

1 02. When Loan Advisor Jeffrey Feig made these representations, defendant

Universal American Mortgage Company of California immediate supervisors knew

them to be false and made these representations with the intention to deceive and 4

5 defraud plaintiff and to induce plaintiff to act in reliance on these representations in the

6 manner hereafter alleged, or with the expectation that plaintiff would so act.

7

03. Plaintiff, at the time these representations were made by defendant and at the

8

time plaintiff took the actions herein alleged, was ignorant of the falsity of defendant's

9

10 representations and believed them to be true.

11 04. In reliance on these representations, plaintiff was induced to and did accept the 12 loan that is the subject of this litigation.

13

05. Had plaintiff known the actual facts, he would not have taken such action. 14

15 Plaintiff was in the middle of divorce proceedings and the settlements were

16 not know for a year. Plaintiff was on the loan of properties from the marriage and

17 18 19 06. Plaintiff's reliance on defendant's representations was justified because plaintiff

disclosed this to Jeffrey Feig. He chose to ignore these facts.

20 is unsophisticated in real estate matter and that there was no reason for plaintiff to 21 suspect that defendant lender was deceiving him.

22

07.

As a proximate result of the fraudulent conduct of defendants as herein alleged,

23

24 plaintiff duped and subject to onerous foreclosure proceeding and the possibility of the 25 loss of his family residence, by reason of which plaintiff has been damaged in the sum

26 of $ 700,000. 27

28

29

2 3

1 07. The aforementioned conduct of defendant(s) was an intentional

misrepresentation, deceit, or concealment of a material fact known to the defendant(s)

with the intention on the part of the defendant(s) of thereby depriving plaintiff of 4

5 property or legal rights or otherwise causing injury, and was despicable conduct that

6 subjected plaintiff to a cruel and unjust hardship in conscious disregard of plaintiff's 7 rights, so as to justify an award of exemplary and punitive damages.

8

9

SECOND CAUSE OF ACTION

10 11 12 13 14 15

16 PLAINTIFF refers to Paragraphs 1 through 107 of this Complaint; and

Negligence Per Se

COUNT 1

(Violation of Bus & P C § 17200 et. seq.)

17 hereby incorporates the same as if fully set forth herein.

18

19 108. Plaintiff alleges that Defendants' practices are likely to mislead the general 20 public, and therefore, constitute a fraudulent business act of practice within

21

Business and Professional Conduct § 17200 et. seq. 22

23

24 VIOLATION OF CC§2923.5 A REQUIREMENT PRIOR TO FILING A NOD CC§2924

25 109. The defendants NDEX WEST LLC AND INDYMAC MORTGAGE SERVICES, A 26 DIVISION OF ONEWEST BANK FSB, unfair, unlawful, and fraudulent business

27 practices including, but not limited to the patently false and misleading

28

30

1 declaration by Indymac Mortgage Servicing and the errors in filing the NOD on 2 July 14, 2009 in violation to § 2923.5 and § 2924.

3

110. NDEX WEST LLC knowingly attached such declaration, (negligently, and

4 5 6

when confronted chose to ignore this fact demonstrating malice), to the faulty Notice of Default filed 7-14-09 and in violation of statutes § 2923.5 and § 2924 ..

7 111. NDEX WEST LLC AND INDYMAC MORTGAGE SERVICES knew that this

8 was not to be sent, both knew it was not accurate, both knew it was done contrary 9 to Cal. Civ. Code § 2923.5. The legislature enacted this statute to slow the

10 foreclose process and protect homeowners.

11 112. In a rush to mass produce Declaration Notices, to put people out of their

12 homes. NDEX WEST LLC AND INDYMAC MORTGAGE SERVICES, A DIVISION 13 OF ONE WEST BANK FSB harmed Plaintiff and harmed many other who just gave 14 up.

15

Both made more money by rapidly pushing people out of their homes this

16 done aggressively with negligence and when confronted chose to ignore and push 17

harder to eject Plaintiff and other homeowners. This is negligence with malice.

18

They lost money if modifications were done. 19

20 This was presented to Congress as an interim report:

21 "Current extremely high levels of defaults and foreclosures among residential

22 mortgages represents the interim report to Congress by the Secretary of the

23 Department of Housing and Urban Development (HUD) pursuant to Section 1517 of 24 the Housing and Economic Recovery Act (HERA) of 2008 (P.L. 110-289)".

25 26 27 28

"The problems in the mortgage market are routinely referred to as a "foreclosure crisis" because the level of defaults and foreclosures greatly exceed

31

1 previous peak levels in the post-war era and, as a result, have drawn comparisons 2 to the levels of distress experienced in the Great Depression"

3 4 5 6

"This interim report contains a review of the academic literature and industry press on the root causes of the current foreclosure crisis and a plan for further discussion of policy responses to the crisis".

7 113. With so many regulations involved and a new company ONEWEST BANK FSB

8

took over the poor policies of a bankrupt and failed INDYMAC BANK FSB.

9 Regulation errors were made and harmed many innocent homeowners who simply 10 gave up. These people should be ashamed for what they continue to propagate.

11 114 .. The UNITED TRUSTEE ASSOCIATION wrote:

12 'The new requirements of § 2923.5 are not protected by§ 29241 non monetary 13 protection.

14 15 16 17 18

"However relying on the beneficiary or their servicer as to the validity of the declaration any authorized agent should review their power of attorney or agency documents and may wish to consult their legal council regarding indemnification. "

19 115. NDEX WEST LLC KNEW THAT THE DECLARATION SIGNED AND ATTACHED

20 21

TO THE NOTICE OF DEFAULT ON7-14-2009 was fraudulent AND patently violated §2923.5. The details will be outlined in Cause of Action #2 Count #2.

22 116 .. Our California Appellate Court Second District in 2003 is instructive in enunciating

23 a legal test for unfairness in consumer actions under The Bus & P C §17200 et.

24 seq .. "The courts of appeal has suggested that a practice is unfair if it offends

25 an established public policy or is immoral, unethical, oppressive,

26 unscrupulous or substantially injurious to consumer, and that unfairness is

27

28

32

1 determined by weighing the utility of the practice against the gravity of the harm

2 to consumer. ( see Kunert v. Mission financial Services Corp. 110 Cal.Ap.4 th 242

3 and Walker v. HOMEs SERVICING, Inc 2002, 98 Cal.App.4th 1158."

4

1 117. In the case at bar the Defendant lender's conduct and practices were clearly

5

unethical, oppressive, unscrupulous and substantially injurious to consumers as 6

outlined supra. 7

8 118. In fact, the utility of the practices did not only cause grave harm to PLAINTIFF

9 but also most likely caused grave harm to other consumers of these lenders, agents,

10 services or assigned beneficiaries.

11 119. Eighty-five percent of the buyers of Lennar Homes, for example, received

12 their financing from UNIVERSAL AMERICA MORTGAGE COMPANY OF

13 CALIFORNIA, their in house mortgage subsidiary, title work by their title company, 14 appraiser choices. This list goes on.(exhibit #13, page # 2)

15

120. Many consumers, like Plaintiff were told that they needed to use UNIVERSAL

16

AMERICA MORTGAGE COMPANY OF CALIFORNIA and it was the only way to get

17

full discounts. UNIVERSAL AMERICA MORTGAGE COMPANY OF CALIFORNIA

18 19 20

agents worked to these push through poorly qualified loans, they have little fall back liabilities to the company.(exhibit #13, page #1)

21 121. The Lender advertized and stated that they would save money and that was 22 simply not true and in Violation ofBus.& Prof. Code § 17200 et. seq.

23 122. A full forensic accounting audit is being done at the present time.

24 -There is no incentive except greed to perform a significant number of these loan. 25

23. All parties incentive are aligned to make easy profits.

26

124.. From 2004 to 2006 the number of sub prime loans offered by UNIVERSAL 27

28 AMERICA MORTGAGE COMPANY OF CALIFORNIA increased by over 6,000%, yes

six thousand per cent.

33

1 25. By advancing subprime loans to middle- and working-class families who could not 2 afford them, this Inland Empire homebuilder was able to generate new demand for

3 their homes in a market that would otherwise have been saturated.

4 126. Entire communities in the Inland Empire of California succumbed to these 5 complex financial traps and have been left decimated in the aftermath.

6

127. Plaintiff's property has decrease by 60% in value based on recent sales and 7

original prices paid. National averages are well below half that number. 8

9 128. Plaintiff's neighborhood has been decimated. The number of foreclosures have

10 exceeded 50% a number that is being studied at the present time in Plaintiff's

11 neighborhood.

12 129. Defendant's as Lender and assignees owed PLAINTIFF, certain specific

13 statutory duties as set forth within California Bus & P C § 17200 et. Seq.

14

130. PLAINTIFF is within the class of persons to be protected by said statutes.

15

31. Those duties required Defendant lenders, agents, trustees or servicers NDEX 16

WEST LLC and INDYMAC MORTGAGE SERVICES, A DIVISION OF ONEWEST 17

BANK to refrain from any practice that is unfair if it offends an established public 18

policy or is immoral, unethical, oppressive, unscrupulous or substantially injurious to a 19

20 consumer ( PLAINTIFF)

21 132 .. Defendants each of them, breached their said statutory duties because they 22 violated the duties enumerated above in the following particulars:

23 First as lender:

24 133. PLAINTIFF was told that he was could afford a mortgage and should buy

25 26 27 28

instead of rent. Additionally:

134 .. That he could use Lennar's lender and get more discounts than if he used another unrelated broker and advertised as such

.135. That the value of the house was higher than the price.

34

9 10 11

1 136. That he could afford a mortgage using the stated income ..

2 137. That Plaintiff could easily afford and mortgage all the loan so no money out of

3 4 5 6 7

pocket facilitating such predatory lending, and that the house would be $479,000.00 on 11-3-2006, and then at the last minute added extras that were not necessary, but made easy with a loan that could not support the appraisal values. (Exhibit #13, page #3)

38.. PLAINTIFF supplied income and expenses documentation for a traditional loan, 8

but instead he was given a Stated Income such income without documentation that would be inflated without proof, to support the extensive borrowed amount, and without regard to future ability to pay.

12 139. UNIVERSAL AMERICA MORTGAGE COMPANY OF CALIFORNIA knew of

13 Davies true income, but chose to supply an undocumented and such inflated

14 income a fact that will be proven at trial.

15 16 17

econd As Trustee, Agent or Servicer:

140. Both Indymac Mortgage Services and NDEX WEST LLC knew that the 18

19

requirements of § 2923.5 and § 2924 needed to be followed.

20 141.ln a rush to foreclose on thousands of homes they neglected their duties by filing

21 documents that were inaccurate to allow the non-judicial process to initiate, and they

22 did not care that damages they caused.

23 142 The intent of the legislature when passing and forming California Civil code

24 §2923.5 was clear. Protect homeowners and slow foreclosures.

25

26 143 .. As a direct and proximate result of the negligence per se of the lender,

27 28

agents/servicers Defendants, and each of him, the PLAINTIFF has suffered

35

2 3

(Negligence per Se)

VIOLATION OF CALIF. CIVIL CODE § 2923.5, § 2924 (§ 2329.6 supra)

( NDEX WEST LLC, INDYMAC MORTGAGE SERVICES A DIVISION OF ONEWEST BANK, FSB)

1 monetary damages, emotional stress, and the indirect costs in an amount currently

incalculable, but according to proof at trial together with such other and further relief as the Court may deem reasonable and just under the circumstances ..

4 Bus. & Pro. Code § 17200 et. seq. 5

6 The court shall impose a civil penalty for each violation of this chapter. In assessing the amount of the civil penalty, the court shall consider anyone or more of the

relevant circumstances presented by any of the parties to the case, including, but not limited to, the following: the nature and seriousness of the misconduct, the number of violations, the persistence of the misconduct, the length of time over which the misconduct occurred, the willfulness of the defendant's misconduct, and the defendant's assets, liabilities, and net worth.

7

8

9

10

11 12 13 14

15 PLAINTIFF refer to Paragraphs 1 through 143 ofthis Complaint; and hereby

SECOND CAUSE OF ACTION Count 2

16 incorporates the same as if fully set forth herein.

17

18 44 .. In particular, Defendant NDEX WEST LLC failed to "Strictly Comply" with

19 California CC §2923.5 and § 2924. in recording Notice of Default on July 14, 2009. 20 45. A Trustee has a duty requirement to follow § 2923.5.

21 "Strict Compliance Rules" prevents the lender from relying on such default as a

22 basis for any subsequent Trustee Sale", (see System Inv. Corp. v Union Bank

23 (1971) 21 CA3d 137) Such failure to comply voids the Notice of Default.

24

25 146.. PLAINTIFF is within the class of persons to be protected by said statute § 26 2923.5. Once the foreclosure train starts down this hill there is little to stop 27 it and protect those who may be caught by dishonesty.

28

36

1 147 California Civil Code § 2923.5 was passed as Senate bill 1137 effective 2 September 2008 and applies to primary home residential property

3 purchased between January 1, 2003 to December 2008.

4

5

148. Plaintiff's purchase was November 2006. It is his primary residence.

6

The legislation requires lenders and servicers to: 1) contact borrowers (or

7

engage in a prescribed process to do so) to schedule telephone or in-person

8

meetings on restructuring options before beginning the foreclosure process

9

149 .. California Civil Code 2923.5.

10

The intent of the legislation is clear, and NDEX WEST LLC and Indymac

11 12

Mortgage Services, a Division of OneWest Bank, FSB simply ignored and were negligent.

Plaintiff was not contacted as outlined in the Declaration supplied by INDYMAC MORTGAGE SERVICING for the Notice of Default filed July 14, 2009. (exhibit # 7)

PLAINTIFF was not contacted nor given consultation or help as Signed in the untrue declaration.{exhibit #7, page 4)

Plaintiff never talked with Emilee Pearce or talked to any councilor as stated in the declaration. The letter was signed in Texas and not under the strict requirements of signature under the penalty of perjury.

Plaintiff was sent a letter July 1, 2009 from INDYMAC MORTGAGE SERVICES, A DIVISION OF ONEWEST BANK, FSB. This letter outlined the initial requirements of due diligence as required in CC§ 2923.5 (g) (1) (exhibit # 8). Plaintiff was waiting on the modification request and appeal. Plaintiff was sent a CERTIFIED LETTER #7100 4047510075908943 on August 19, 2009. This letter was to comply with CC § 2923.5 (g) (2),(3), (4), (5). (exhibit # 9)

37

1
2
3 F)
4
5
6 .G)
7 H)
8
9 I)
10
11 J)
12
13
14 CC § 2923.5 is attached for convenience. (Exhibit # 10)

The declaration was a fraud, and NDEX WEST and INDYMAC MORTGAGE SERVICES, A DIVISION OF ONEWEST BANK FSB knew it

was not true

The declaration was not properly executed.

Plaintiff has never dealt with INDYMAC MORTGAGE SERVICING as signed in the declaration. Who is this entity.

A sample Declaration document used as example on the United Trustee Association website. (Exhibit # 11)

Not only is the NOD defective for all reason, supra, but also it was filed 6 weeks early. The notice of default required by CC § 2923.5 is 30 days after the letter dated August 19, 2009. This would be September 19,2009.

15

16 150. As a direct result of this negligence Plaintiff was injured and continues to be

17 injured. Including the damages from this action.

18 "Not only was Plaintiff injured but also countless others who were scared

19 out of their homes, not allowed the benefit of legislative directed help.

20 Neighborhoods decimated without help dictated by Statute. These careless 21 individuals should be held accountable".

22

23 151 .. Violation of §2923.5 voids the NOD filed on July 14, 2009, and means 24 the preliminary requirements of CC§ 2924 were not met.

25 The the act of filing, pursing, harassing, and the emotional stresses are 26 malice with disregard to Plaintiff homeowner, but others.

27 28

152.. Compliance with § 2923.5 is needed prior to using § 2924 et. seq. to filed the Notice of Default.

38

1 Plaintiff's response to the NOD sent to NDEX WEST LLC demonstrates the anger, 2 shock, and surprise of such a filing, a filling done months early. (exhibit #12)

3

4 153. Both NDEX WEST LLC, AND INDYMAC MORTGAGE SERVICES

5 SIMPLY IGNORED the CC § 2923.5 REQUIREMENT. This was done WITH 6 MALICE against plaintiff.

7

8 154. NDEX WEST LLC as agent or trustee failed to validate the

9 declaration as required by § 2923.5. Declaration is not under penalties

10 of perjury and accurate. It is a mass produced form letter, and doesn't

11 identify the property, loan, correct name or correct servicer name. For

12 that NDEX WEST LLC has been negligent.

13

14 FURTHER DISCUSSION OF THE REQUIREMENTS OF CC § 2923.5

15

16 55 .. INDYMAC MORTGAGE SERVICES did not follow the due requirements

17 § 2923.5 (g). (see exhibit # 10 for the full statue § 2923.5)

18 . Furthermore California Civil Code §2923.5(g) provides that a borrower not

19 contacted by a mortgagee, beneficiary, or authorized agent despite "due

20 diligence" shall mean all of the following: as of September 6, 2008, California

21 Civil Code Section 2923.5 applies to loans made from January 1, 2003, to

22 December 31,2007, and loans secured by residential real property that are for

23 owner-occupied residences. For purposes of Section 2923.5, "owner-occupied"

24 means that the residence is the principal residence of the borrower. Prior to

25 filing a Notice of Default, Section 2923.5 of the California Civil Code provides in

26 pertinent part:

27

28

39

1

2 3 4 5 6 7 8 9

10 11 12

13 (3) A notice of default filed pursuant to Section 2924 shall include a

(1) A trustee may not file a notice of default pursuant to Section 2924 until

30 days after contact is made as required by paragraph (2) or 30 days after

satisfying the due diligence requirements as described in subdivision (g). (2) An authorized agent shall contact the borrower in person or by telephone in

order to assess the borrower's financial situation and explore options for the

borrower to avoid foreclosure. During the initial contact, the mortgagee, beneficiary, or authorized agent shall advise the borrower that he or she has the

right to request a subsequent meeting and, if requested, the mortgagee,

beneficiary, or authorized agent shall schedule the meeting to occur within 14 days.

14 declaration from the mortgagee, beneficiary, or authorized agent that it

15 has contacted the borrower, tried with due diligence to contact the

16 borrower as required by this section, or the borrower has surrendered the

17 property to the mortgagee, trustee, beneficiary, or authorized agent.

18 Invalid Declaration on Notice of Default and/or Notice of Trustee's Sale

19

20 156. The purpose of permitting a declaration under penalty of perjury, in

21 lieu of a sworn statement, is to help ensure that declarations contain a

22 truthful factual representation and are made in good faith. (In re Marriage of

23 Reese & Guy, 73 Cal. App. 4th 1214, 87 Cal. Rptr. 2d 339 (4th Dist. 1999).

24

25 157. In addition to California Civil Code §2923.5, California Code of Civil

26 Procedure CC§2015.5 states:

27

28

40

1 2, 3 4 5 6 7 8 9

10 11 12 13 14 15

16

17 "I certify (or declare) under penalty of perjury that the foregoing is true and

18 correct":

19

20 (Date and Place)

21

22

23 24 25 26 27 28

Whenever, under any law of this state or under any rule, regulation, order or requirement made pursuant to the law of this state, any matter is required or permitted to be supported, evidenced, established, or proved by the sworn statement, declaration, verification, certificate, oath, or affidavit, in writing of the person making the same, such matter may with like force and effect be supported, evidenced, established or proved by the unsworn statement, declaration, verification, or certificate, in writing of such person which recites that is certified or declared by him or her to be true under penalty of perjury, is subscribed by him or her, and (1), if executed within this state, states the date and place of execution; (2) if executed at any place, within or without this state, states the date of execution and that is so certified or declared under the laws of the State of California. The certification or declaration must be in substantially the following form:

(a) If executed within this state:

(Signature)

158. For our purposes we need not look any farther than the Notice of Default to

find the declaration is not signed under penalty of perjury; as mandated by new Civil Code §2923.5©. (Blum v. Superior Court (Copley Press Inc.) (2006) 141 Cal App 4th 418, 45 Cal. Reptr. 3d 902 ).

159. The Declaration is merely a form declaration with a check box.

160. No Personal Knowledge of Declarant

41

1 2 3 4 5 6 7 8 9

10 11 12

According to Giles v. Friendly Finance Co. of Biloxi, Inc., 199 So. 2nd 265 (Miss. 1967), "an affidavit on behalf of a corporation must show that it was made by an authorized officer or agent, and the officer him or herself must swear to the facts.

" Furthermore, in Giles v. County Dep't of Public Welfare of Marion County (Ind.App. 1 Dist.1991) 579 N.E.2d 653, 654-655 states in pertinent part, "a person who verified a pleading to have personal knowledge or reasonable cause to believe the existence of the facts stated therein.

161, "Here, the Declaration for the Notice of Default by the agent does not state if the agent has personal knowledge and how he obtained this knowledge.

13 162. The proper function of an affidavit is to state facts, not conclusions, (Lindley

14 v. Midwest Pulmonary Consultants, P.C., 55 S.W.3d 906 (Mo. Ct. App. W.O.

15 2001 )and affidavits that merely state conclusions rather than facts are

16 insufficient. (Jaime v. St. Joseph Hosp. Foundation, 853 S.W.2d 604 (Tex. App.

17 Houston 1 st Dist. 1993).

18 163, An affidavit must set forth facts and show affirmatively how the affiant

19 obtained personal knowledge of those facts.(M.G.M. Grand Hotel, Inc. v.

20 Castro, 8 S.W.3d 403 (Tex. App. Corpus Chrisit 1999).

21

22 164. Here, The Notice of Default does not have the required agent's personal

23 knowledge of facts and if the Plaintiff borrower was affirmatively contacted in

24 person or by telephone to assess the Plaintiff's financial situation and explore

25 options for the Plaintiff to avoid foreclosure. A simple check box next to the

26 "facts" does not suffice.

27

28

42

1

2 3 4 5 6 7 8 9

10 166. The declaration signed by agent does not state anywhere how he knew or

165 Furthermore, "it has been said that personal knowledge of facts asserted in

an affidavit is not presumed from the mere positive averment of facts, but rather,

a court should be shown how the affiant knew or could have known such facts,

and, if there is no evidence from which the inference of personal knowledge can

be drawn, then it is presumed that from which the inference of personal

knowledge can be drawn, then it is presumed that such does not exist." Bova v.

Vinciguerra, 139 A.D.2d 797,526 N.Y. S.2d 671 (3d Dep't 1988).

11 could have known if Plaintiff was contacted in person or by telephone to explore 12 different financial options. It is vague and ambiguous if he himself called plaintiff.

13

14 167. This defendant did not adhere to the mandates laid out by congress before a 15 foreclosure can be considered duly perfected.

16

17 168. The Notice of Default states, "That by reason thereof, the present beneficiary 18 under such deed of trust, has executed and delivered to said agent, a written

19 Declaration of Default and Demand for same, and has deposited with said agent 20 such Deed of Trust and all documents evidencing obligations secured thereby,

21 and has declared and does hereby declare all sums secured thereby immediately 22 due and payable and has elected and does hereby elect to cause the trust

23 property to be sold to satisfy the obligations secured thereby."

24

25 169.However, Defendants do not have the Deed of Trust, nor do they provide any 26 documents evidencing obligations secured thereby. For the aforementioned

27 reasons, the Notice of Default will be void as a matter of law.

28

43

1

2 Recording a False Document

3

4 170 Furthermore, according to California Penal Code § 115 in pertinent part:

5 (a) Every person who knowingly procures or offers any false or forged instrument 6 to be filed, registered, or recorded in any public office within this state, which

7 instrument, if genuine, might be filed, registered, or recorded under any law of this 8 state or of the United States, is guilty of a felony.

9 (b) Each instrument which is procured or offered to be filed, registered, or

10 recorded in violation of subdivision (a) shall constitute a separate violation of this 11 section.

12

13 In addition, California Evidence Code § 669 states in pertinent part:

14 (a) The failure of a person to exercise due care is presumed if:

15

16 (1) He violated a statute, ordinance, or regulation of a public entity;

17

18 171. Here, as stated above the Declaration of Due Diligence as required by 19 Section 2923.5 of the California Civil Code is missing and/or improper for the 20 Notice of Default.

21

22 herefore, Defendants are guilty of a felony for recording the Notice of 23 Default with a false instrument according to California Penal Code §115.

24 Since Defendants have violated a statute, the failure of them to exercise due 25 care will be presumed.

26

27 72. Since the enumerated law was effective as of September 06,2008 the

28 sale of the property at issue is invalid pursuant to California Civil Code Sections

44

1 §2923.5 and §2924, and thus the Defendants' claim of title and allegation thereto

is erroneous. 2

3

4 73. Plaintiff alleges that Defendants, and each of them, willfully, wrongfully and

5 without justification, and without privilege conducted an invalid foreclosure

6 procedure.

7) NDEX WEST LLC, as agent doing many thousands of these foreclosure

8 were wreck less in that they accepted and filed a notice of default with

9 knowledge that the California Civil Code §2923.5 required a standard of

10 declaration that was obviously not met. (Exhibit # 7, page #4)

11 In a rush to push innocent homeowners out of their homes they chose to

12 file a document that wasn't compliant.

13 On the Deed the name is Brian W Davies, not Brian Davies

14 The declaration did not have an address.

15 The declaration did not have a Loan Number.

16 The Declaration was Listed as Pursuant Cal. Civil Code § 2923.5 (b)

17 al. Civ. Code Section § 2923.5(b)

18 b) A notice of default filed pursuant to Section 2924 shall include a declaration 19 from the mortgagee, beneficiary, or authorized agent that it has contacted the

20 borrower, tried with due diligence to contact the borrower as required by this 21 section, or the borrower has surrendered the property to the mortgagee, trustee, 22 beneficiary, or authorized agent.

23 24 25

) The box checked is for California Civil Code § 2923.5 (a)

8) 26

27

28

The company that was listed INDYMAC MORTGAGE SERVICING never had dealings with Plaintiff-it was INDYMAC MORTGAGE SERVICES.

45

9) The document was apparently signed in Austin, Texas. Although it is unclear who signed for what entity.

1 NDEX WEST LLC knew this was wrong. Plaintiff's angry response (exhibit #12)

2 gave them the chance to review and correct these wrongs. They did not and

3 have not acknowledged their gross errors. When called they fused to listen as

4 pushed forward to eject Plaintiff and others from their homes.

5

6 NDEX WEST LLC and INDYMAC MORTGAGE SERVICES acted in concert to

7 misinform and confuse the Plaintiff's and SUBJECT PROPERTY, thereby,

8 slandering Plaintiff's title thereto.

9

10 §2923.5 g, the due diligence requirements.

11 12 13 14 15 16

174. A mortgagee, beneficiary, or authorized agent shall first attempt to contact a borrower by sending a first-class letter that includes the toll-free telephone number made available by HUD to find a HUD-certified housing counseling agency.(done as noted in exhibit #8)

175. After the letter has been sent, the mortgagee, beneficiary, or authorized agent shall attempt to contact the borrower by telephone at least three times at different hours and on different days. Telephone calls shall be made to the primary telephone number on file.

176. A mortgagee, beneficiary, or authorized agent may attempt to contact a borrower using an automated system to dial borrowers, provided that, if the telephone call is answered, the call is connected to a live representative of the mortgagee, beneficiary, or authorized agent.

19

17

18

177. A mortgagee, beneficiary, or authorized agent satisfies the telephone contact

20 requirements of this paragraph if it determines, after attempting contact pursuant to

21 this paragraph, that the borrower's primary telephone number and

secondary telephone number or numbers on file, if any, have

22 been disconnected.

23 24 25 26 27 28

NDEX WEST AND INDYMAC MORTGAGE SERVICING NOTICE WAS DEFECTIIVE AND VOIDS THE NOTICE OF DEFAULT

If the borrower does not respond within two weeks after the telephone call requirements of paragraph (2) have been satisfied, the mortgagee, beneficiary, r authorized agent shall then send a certified letter, with return receipt requested. (Exhibit # 9)

46

1 2 3

The mortgagee, beneficiary, or authorized agent shall provide a means for the borrower to contact it in a timely manner, including a toll-free telephone number that will provide access to a live representative during business hours.

4 178. The mortgagee, beneficiary, or authorized agent never complied with the 5 provisions of §2923.5(g) of California Civil Code in its entirety as proscribed.

6

7 180. A letter sent certified on August 19, 2009 outlined the process of §2923.5 g. It is s

8 up with the intent of the lender communicating and offering services to help defaulted

9 borrower. (Exhibit #9)

10

11 181. The steps taken in the letter from INDYMAC MORTGAGE SERVICES-(SENT

12 August 19, 2009 attached as exhibit #9 ) such requests include calling, sending letters

13 waiting and finally sending a certified letter prior to the filing of the Notice of Default.

14

15 182. The letter was done and certified as the compliance with § 2923.5, but in a rush to

16 file the NOD both NDEX WEST LLC AND INDYMAC MORTGAGE SERVICES FAILE

17 TO DO SO, and filed nearly 6 weeks prematurely.

18 183.. The earliest a Notice of Default could have been certified and filed was 30 days

19 after the certified letter sent August 19, 2009. This was the final step in the extensive

20 due diligence requirements outlined in §2923.5 g, and would be September 19, 2009.

21 (exhibit # 9)

22 184.. The filed fraudulent declaration attached to the NOD was signed in Texas a

23 INDYMAC MORTGAGE SERVICING. An entity that never communicated with

24 Plaintiff.

25 The purpose of permitting a declaration under penalty of perjury, in lieu of a sworn

26 statement, is to help ensure that declarations contain a truthful factual representation an 27 are made in good faith. (In re Marriage of Reese & Guy, 73 Cal. App. 4th 1214,87 Cal. 28 Rptr. 2d 339 (4th Dist. 1999)

47

1

185. Emilee Pearce signed an inaccurate document, and signed as INDYMAC

2

MORTGAGE SERVICING. Plaintiff dealt with INDYMAC MORTGAGE SERVICES.

3

Plaintiff has never talked to Emilee Pearce. A letter requesting the identity of the owner 0

4

Plaintiffs home identified the entity Plaintiff was dealing with for loan modifications

5

(Exhibit #4).

6

186 .. It is clear the entity:

16

(exhibit # 7, page #4 )

17

188. As a direct and proximate cause of said Defendants negligence Plaintiff has been

18

damaged.

19

189. As a direct and proximate result of the negligence per se the PLAINTIFF has suffere

20

monetary damages, emotional distress, including attorney's fees and costs, in an amount

21

currently incalculable, but according to proof at trial with such other and further relief as th

22

Court may deem reasonable and just under the circumstances.

23 24 25 26 27 28

INDYMAC MORTGAGE SERVICES A DIVISION OF ONEWEST APPARENTLY

FAILED TO BE IN COMPLIANCE WITH FEDERAL LAWS

48

27 28

49

1 2 3 4 5

6 190. ONEWEST BANK FSB

DURING THE TIME OF THE NOTICE OF DEFAULT AND TRANSFER FROM THE

INDYMAC FEDERAL BANK FSB TO ONEWEST BANK FSB March 16, 2009.

VIOLATION of FDCPA 15 USC 1692 (g)

7

8 The issues brought forth in the Class Action: Flores v. One West Bank, FSB, No.:09-cv- 04042 (N. D. ILL.) included Violations of FDCPA, 15 U. S. C. 1692g

9

10

Plaintiff is in the class of members affected.

11

Apparent violations occurred in which ONEWEST BANK FSB failed to identify:

12

1) the amount of debt,

13

2) the creditor and the person whom the debt is owed,

14

3) procedures for disputing the debt, and

15

4) a statement verifying that the debt is valid.

16 17

191.. Plaintiff was sent a letter from Indymac Mortgage Services, a Division of On eWes

18

Bank FSB on January 20, 2010. (Exhibit #5)

19 20

192. The letter stated Plaintiff was a person who may not have been given

21

documents specified by the Fair Debt and Collection Practice Act "FDCPA" 15 U. S.

22 C. § 1692(g).

23

24

193. Indymac Mortgage Services, a Division of OneWest Bank FSB, did not provide a

25

notice that included the amount of Debt, the Creditor to whom the Debt is owed,

26

Procedures for disputing debt, and a Statement verifying that the debt was valid.

1 194. Plaintiff has opted out of the settling class action. Plaintiff finds these fact are 2 accurate for "FDCPA" claims in addition to other Laws as outlined above.

3

4 195. As a direct and proximate cause Plaintiff has been damaged to an amount proven a 5 trial with such other and further relief as the Court may deem reasonable and just under th 6 circumstances.

7

8 9 10 11

SECOND CAUSE OF ACTION (Negligence per Se, Count 3) Violation of Financial Code § 4973(f)

( Defendants UNIVERSAL AMERICAN MORTGAGE COMPANY OF CALIFORNIA and its lender/creditor assignees)

12

196 .. PLAINTIFF refers to Paragraphs 1 through 195, and by this reference hereby

13

i corporates the same as if fully set forth herein.

14

15

197. Defendant UNIVERSAL AMERICAN MORTGAGE COMPANY OF CALIFORNIA

16

17 nd it assignees, and DOES 1 through 20, and each of him, as Lenders owed statutory 18 uties to PLAINTIFF, as Borrowers as set forth in Financial Code § 4973(0(1).

19

20 198 .. Specifically, said Defendant and each of him is by such statute charged with the

21 uty to ensure that the Borrower will be able to make the scheduled payments to repay the 22 bligation based upon his current and expected income, obligations, employment status, 23 nd other financial resources other than the borrower's equity in the dwelling that secures 24

epayment of the loan

25 26 27 28

199 .. PLAI NTI FF is within the class of persons to be protected by said statute.

50

1 2 3 4 5 6 7 8 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

200.PLAINTIFF only wanted a home that he could afford the payment thereon and keep up any payments on any Promissory Note obligations to UNIVERSAL

AMERICAN MORTGAGE COMPANY OF CALIFORNIA and/or his assignors, predecessors in interest, and DOES 1 through 20, inclusive.

201 . .Defendants and each of him knew, or should has known PLAINTIFF actual, financial condition and inability to pay the increased obligation by virtue of using a stated income without verification methodology in generating the loan.

202 .Particularly since the monthly payment including taxes for this loan could increased without reassessing the Plaintiff financial ability or obligation to pay the substantial increase in monthly payments. They simple didn't care. It was a rush for the payment of fees and rebates, because they were to flip the loans without recourse. They were dealers who wouldn't be caught and had no liabilities.

203. Plaintiff was instructed he could refinance in a year or two when the value of the property went up, and relied on their statements. Plaintiff was damaged from such reliance. He would have been better off to rent. Plaintiff originally planned on a home with discounts at $479,000, but was up sold in the last few days to add pool, landscape, window covers, painting, and others that created a higher priced loan of $560,000 or more, that was injurious to Plaintiff.(exhibit # 13, page # 3)

51

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1 2 3 4 5

204 .As a direct and proximate result of the acts and/or omissions and negligence per

se of the Defendants UNIVERSAL AMERICAN MORTGAGE COMPANY OF

CALIFORNIA and its assignees and DOES 1 through 20, and each of him, PLAINTIFF has suffered monetary damages, including attorney's fees and costs, in

6 an amount currently incalculable, but according to proof at trial with such other and 7 further relief as the Court may deem reasonable and just under the circumstances

THIRD CAUSE OF ACTION FRAUD AND DECEIT

Negligent Misrepresentation

( LENDER/CREDITOR DEFENDANTS)

PLAINTIFF refer to Paragraphs 1 through 204 inclusive, as if fully set forth in his Cause.

205. Defendant UNIVERSAL AMERICAN MORTGAGE COMPANY OF

CALIFORNIA and its assignees, and DOES 1 through 20, and each of him, by and through his Assignors who had acted negligently in creating the original loan to PLAINTIFF on a stated loan basis, has assumed all such liabilities as

Successor in interest Assignees.

206. Creditor Defendants, and each of them, when they made these representations concerning the loan to plaintiff, had no reasonable grounds for believing that the representations were true, and defendants, and each of them, made the representations with the intent to induce plaintiff to take the actions herein alleged, and with the intent to prevent plaintiff from further inquiring into the effect of the loan on the subject property.

52

20 21

1 2 3 4 5 6

207. This violation practice was immoral, unethical, oppressive, unscrupulous, and/or injurious to Plaintiff because the monthly mortgage could increase up to a percentage including all taxes that would be unaffordable.

208. Plaintiff acted on this misrepresentation and believed the value of the home 7

8 would increase. That he could afford such and that the practices were honest and

9 legitimate. He no reason to believe otherwise.

10 209.. The Fraudulent Conduct Of Defendants was as follows:

11 A.) Defendants engaged in unfair business practices aimed at deceiving Plaintiff

12 before and during the loan process.

13

B)

Defendants, by and through their officers, employees, and agents failed to

14 disclose that the interest rate actually charged on these loans was higher than the rate 15 represented and promised to Plaintiff;

16

C). Defendants, by and through their officers, employees and agents concealed

17 omitted and/or otherwise failed to disclose information;

18

D). Defendants failed to disclose the true variable nature of interest rates on

19 adjustable rate mortgage loans and adjustable rate home equity loans;

E) . Defendants failed to properly disclose the values of the property and their concerns of such an over inflated house price. Despite this Defendants encouraged a

22

man in the middle of a complicate person ordeal to buy at such an over inflated price.

23 24

210. Defendants' marketing plan and scheme misleadingly portrayed or implied that

25

these loans were fixed rate loans, when Defendants knew that only the periodic

26 27 28

payments were fixed (for a time) but that interest rates were not, in fact, "fixed;"

53

1 2 3 4 5

(1) Plaintiff is entitled to damages;

(2) Plaintiff is entitled to punitive damages; and (3) Plaintiff is entitled to rescission

211 . That the values of the properties were accurate, that the homes were not 6

7 investor properties and that the loan could be refinanced in a year, and that he fully

8 qualified with all documents including his tax returns.

9 212. Defendants knew this to be untrue. But chose to entice and mislead Plaintiff. 10

"If a man, who has or professes to have special know/edge or skill, makes a

11 12

representation by virtue thereof to another with the intention of inducing him to enter

13 into a contract with him, he is under a duty to use reasonable care to see that the 14 representation is correct, and that the advice, information or opinion is

15 reliable. " 16

17

213. Defendant UNIVERSAL AMERICAN MORTGAGE COMPANY OF

18 19 20 21

22 214 .. Defendant UNIVERSAL AMERICAN MORTGAGE COMPANY OF

CALIFORNIA and its assignees, and DOES 1 through 20, and each of him,

owed a duty to be non-negligent or predatory.

23 CALIFORNIA and its assignees, and DOES 1 through 20, and each of him, knew or 24 should has known that stated loans would be abused by brokers, and or loan

25 procurers and preparers in order to obtain larger commissions and more numerous 26 clients. That chosen appraiser would do anything including inflate values so loans

27 would close and they would be chosen to work again. Not doing a fundamental value 28 based on replacement costs or other near by comps.

54

10 11 12 13 14 15

1 215. . Nevertheless, Defendant UNIVERSAL AMERICAN MORTGAGE COMPANY OF 2 CALIFORNIA and agents or assignees, and DOES 1 through 20, and each of him,

3 breached that duty by making PLAINTIFF and/or being an assignee of a stated loan. A 4

loan based on an over inflated appraisal.

5 6

216. The aforementioned acts of Defendants, each of them, were motivated by

7

oppression, fraud, malice in that Defendant each of them, by their respective acts,

8

omissions, nonfeasance, misfeasance and/or malfeasance executed an invalid Notice

9

of Default without care for those who were hurt by the wreck less behavior.

217 .. As a direct and proximate result of the aforementioned conduct of the ALL Defendants INCLUDING LENDERS UNIVERSAL AMERICAN MORTGAGE COMPANY OF CALIFORNIA and its assignees/CREDITORS and DOES 1 through 20, and each of him,

16 PLAINTIFF has suffered monetary damages in a sum according to proof at

17 trial_with such other and further relief as the Court may deem reasonable and

18 just under the circumstances and additional recessions of the transaction.

19 20 21 22 23 24 25 26 27 28

FOURTH CAUSE OF ACTION VIOLATION OF CALIFORNIA CIVIL CODE §1572

( Against All Defendants 1

218 .. Plaintiff refers to Paragraphs 1 through 217 inclusive, and incorporate the

same by this reference, as if fully set forth in this Cause of Action.

219.. Plaintiff is an unsophisticated customer whose reliance upon Defendants was reasonable and consistent with the Congressional intent and purpose of California

55

1 2 3 4 5 6 7 8 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Civil code § 1572 enacted in 1872 and designed to assist and protect consumers similarly situated as Plaintiff in this action.

The basis of this cause of action is:

b1'I.The .suogestion, as a fact, of that which is not true, by one who does not e reve It t()T)e frue;

2. The positiv@.assertion,ipar.nannernotwarranteflby the. information 0tf the person makmq It, ot ma which IS not true, thouqh he believes It to be rue;

3. The suppression of that which is true, by one having knowledge or belief of the fact;

4. A promise made without any intention of performing it; or,

5. Any other act fitted to deceive.

220 .. Defendants' misrepresentation, failures to disclose, and failure to assign and document legitimately. All done to induce Plaintiff to obligate himself in reliance on the integrity of the defendant and/or defendants predecessors. All done to exhume and separate him from his dwelling. Declarations done and approved when known to be inaccurate and dishonest.

221. All done with knowledge of the real facts and values.

222. As an unsophisticated customer, Plaintiff could not have discovered the true nature of the material facts on his own. Plaintiff has spent countless hours learning of these horrible acts, and how to protect himself against the reckless train of greed and the act of unjust foreclosure.

223. Plaintiff was ignorant of the facts which defendants misrepresented and failed to disclose and their reliance was a substantial factor in causing their harm. Had not .c" .. others, he would have succumbed to the same.

56

1 2 3 4 5 6 7 8 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

224. As a proximate results of the defendants careless acts, Plaintiff has suffered damages in the amount to be determined at trial. As agent, beneficiary, trustee, the knowledge that INDYMAC MORTGAGE SERVICING didn't exist and that the entity was INDYMAC MORTGAGE SERVICES, A DIVISION OF ONEWEST BANK FSB.

225. The conduct of Defendants as mentioned above was fraudulent within the meaning of California Civil Code § 3294(c)(3), and by virtue thereof Plaintiff is entitled to an award of punitive damages in an amount sufficient to punish and make an example of the Defendants.

WHEREFORE, PLAINTIFF prays for Judgment as follows:

ON THE

FIRST through FOURTH CAUSES OF ACTION:

1. Actual Economic and Non-Economic Damages.

2. General Damages in a sum in excess of the minimum unlimited jurisdiction of

this Court, but according to proof at trial with such other and further relief as

the Court may deem reasonable and just under the circumstances.

3. For a declaration of the rights and duties of the parties relative to the Plaintiff'

home to determine the actual status and validity of the loan, Deed of Trust,

and Notice of Default.

4. For damages as provided by statutes.

5. For an order enjoying the Defendants from continuing to violate the statutes

alleged herein

6. For punitive damages.

57

1 2 3 4 5 6 7 8 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

7. For an order, restraining defendants and his, hers or its agents, employee,

officers, attorneys and representatives from engaging in or performing any of

the following acts:

1) offering or advertizing sale, and

2) attempting to transfer title to this property. 8. To VOID the Notice of Default and Election to Sell.

9 For Costs of Suit incurred in this action; and, attorney fees pursuant to

California Civil Code § 1717, § 1788.30(b), § 1788.30 (c).

10. For other and further relief as to the Court appears proper including recession

of the original transaction and return of funds paid.

Respectfully Submitted

February 9, 2010

BRIAN W DAVIES

58

6 7 8 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1 2 3 4

59

I, Brian W Davies, the Plaintiff in the above entitled action, has read and written

5 this document and found it to be true. Of my knowledge, except of those matters which

therein stated upon my information or belief, and as to those matters I believe it to be true by the Laws of California and the County of Riverside.

BY BRIAN W DAVIES VtrL,vC", {IV I D Dv--ua

Executed on February 9, 2010 in Indio, California 92203 VERIFICATION 446.2015.5 C. C. P.