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Ricky Cox & Donna Cox 713 Albemarle Avenue Rio Linfu CA95673 Plaintiffs ln Propria Persona

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SUPERIOR COURT OF T}IE STATE OF CALIFORNIA

COUNTY OF SACRAMENTO

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Rickv Cox & Donna Cox, Plaintiffs, V. COMPLAINT FOR:
Intentional Misrepresentation Fact/Fraud
Deutsche BankNational Trust Company as Trustee under the Pooling and Servicing Agreement Dated February 1,2005,

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of

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Negligence Per Se (Violations of B & P Code $17200 et seq. Negligence Per Se (Violations of CCC 92923.5,92924 and $2329.6 supra

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GSAMP Trust 2005-NC1; Quality Loan
Service Cotp.; Litton Loan Servicing LP;

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SlanderofTitle
Wrongful Foreclosure

Marti Norieg4 First United Home Loans;
Tom Delkash; and Does l-50
Defendants.

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Plaintiffs

RICKY & DONNA COX, allege;

PARTIES

1. PlainLiff, RICKY COX, is an j-ndividual residing in the County of Sacramento, State of California.
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COMPLAINT TO SET ASIDE TRUSTEE'S SALE

2. Plaintiff, DONNA COX, is an individual resi-dlng in the County of Sacramento, State of California. 3. Pl-aintiffs, RICKY & DONNA COX (*COXES" or 'PLAfNTIFFS"), are and were the lawful owners of the Property located at 713 Albemarl-e Avenue, Rio Linda, CA 95613. This property i-s a one to four unit residence located in the County of Sacramento, State of California. A copy of the grant deed conferring title to them on November L3,2004 is attached as Exhibit \r1/' to this
Complaint.
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4. Defendant, FIRST UNITED HOME LOANS (*FIRST UNITBD"),' is,/was a business entity with a princlple place of business Iocated at 70l. S. Parker St., Suite 1600, Orange, CA 92868. FIRST UNITED regularly conducted financial transactions in the County of Sacramento, State of California. PLAINTIFFS are informed and bel-ieve that FIRST UNITED, was the "Lender" and "Beneficiary" named on the loan as evidenced by the Deed of Trust, executed on November 1-3, 20A4, whlch is attached as Exhibit "2". 5. Defendant, TOM DELKASH (*DELKASH"), is an individual, employed or formerly employed by FIRST UNfTED as a loan officer. PLAINTIFFS are informed and believe that DELKASH was the l-oan officer that solicited and processed their loan documents as evidenced by his name and si-gnature on the Uniform Residential Loan Application, Loan Servicing Disclosure Statement, and Interim Servicing Notification (attached as Exhibit "4", "6" , & "1") . 6. Defendant, LITTON LOAN SERVICING L.P. (*LITTON") is a business entity with a princj-ple place of business located at 4828 Loop Central Drive, Houston, TX 11 081. LITTON regularly does business within the State of California and specifically within the County of Sacramento, State of Californi-a. PLAINTfFFS are informed and believe that LITTON is the entitv which acted
COMPLAINT TO SET ASIDE TRUSTEE'S SALE

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as a servicer on behalf of the alleged beneficlaries. As servicer, DOES 1-50 ordered the foreclosure sale of 7l-3 Albemarle Avenue, Rio Linda, CA 95613, which occurred on or about November 9, 2009. 7. Defendant, MARTf NORIEGA (*NORIEGA"), is an individual who resides in Texas. PLAINTIFFS are informed and believe that NORIEGA was the individual who signed the Assignment of Deed of Trust (attached as Exhibj-t "14") . 8. Defendant, QUALfTY LOAN SERVfCB CORP. ('QUALITY") is a Business entity, wi-th a principle place of business located at 2741 5tb Avenue, San Diego, CA 92tOL. QUALfTY was the foreclosing trustee of an alleged Deed of Trust on 713 Albemarle Avenue, Rio Linda, CA 95673. QUAIITY regularly conducts business within the State of California and specifi-ca11y within the County of Sacramento, State of California. 9. Defendants, DEUTSCHE BANK NATIONAL TRUST AS TRUSTEE UNDER THE POOLING AND SERVICING AGRBEMENT DATBD FEBRUARY 1, 2005, GSAMP TRUST 2005-NC1 (*DEUTSCHE"), i-s a corporation, form unknown, that conducted financial transactions in the County of Sacramento, State of California. The Assignment of Deed of Trust was recorded on February 3'o, 2OOg whereby MERS grants, assigns and transfers beneficial interest in the subject property to *DEUTSCHE BANK NATIONAL TRUST COMPANY as trustee under the Pooling and Servicing Agreement dated as of February 1, 2005, GSAMP Trust 2005-NC1."
Defendants, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. ('MERS"), is a Delaware corporation engaged in the business of holding title to mortgages. It conducts business in the State of California as evidenced by the inclusion of its name on the Assignment of Deed of Trust from MERS to DEUTSCHE recorded on February 3, 2049 in the Sacramento County Recorder's Office. 11. PLAINTIFFS are informed and believe and thereon a1leqe
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COMPLAINT TO SET ASIDE TRUSTEE'S SALE

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that at all times herein mentioned, each of the Defendants were the agents and/or the employees of their co-defendants, and j-n doing the thi-ngs hereinafter alleged were acting within the course and scope of their authority as such agents, servants and employees, and with the permission and the consent of their codefendants.

L2. PLAINTIFFS are ignorant of the true names and capacities of the Defendants sued herein under the fictitious names DOBS 150, i-nclusive, and PLAfNTIFFS pray for leave to amend this I Complaint to allege such names and capacj-ties as soon as they 10 are ascertained. Each of said fictitiously named Defendants is responsJ-b1e in some manner for the wrongful acts complained of 11
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herein. 13. Defendants, and each of them, at all relevant times hereln were and still are agents for one another, and acting under the course and scope thereof, with knowledge and consent of each other.
.I(IRISDICTfON

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L4. The transactions and events, which are the subject matter of this Complaint all occurred withln the County of Sacramento, State of California. 15. The property located at 713 Albemarle Avenue, Rio Linda, CA 95673 is located in the County of Sacramento, State of California. The APN i-s 206-0294-003-000016. The legal description of the property is Lot 23, as shown on the plat of Jefferson Park, recorded in the office of the Recorder of Sacramento County, December 18, 1959, in book 58 of maps, map no. 18. REQLEST FOR in Ry TRIAT L7. The COXES request a jury trial on all issues .i-n this
matter.
COMPLAINT TO SET ASIDE TRUSTEE'S SALE

EACTT'AI.. BACKGROI'IID

18. This action arises out of a loan related activity to the 3 property of which the PLAINTIFFS are the rightful owners. 19. Beginning in 1998, and such facts are so well known as to be Judicially Noticeable under California Evidence Code 5451 and 5452, lenders, thej-r agents, employees, and related servicers, including Defendants, developed a scheme to rapidly infuse capital into the home mortgage lending system by selli-ng mortgages on the secondary market, normally three to fj-ve times, I to create a bankruptcy remote transaction. The lenders, their 10 agents, employees, and related servicers, includj-ng Defendants, 11 then pooled these mortgages into large trusts, securitizing the pool and selling these securities on WaIl Street as mortgage 12 backed securities, bonds, derivatives and insurances, often for 13 twenty or thi-rt.y ti-mes the ori-ginal mortgage. 14 20. In "sellLng" these mortgage notes on the secondary market, O,U Defendants falled to follow the basic legal requirements for the 16 transfer of a negotiable instrument and an interest in real 17 property. While lenders could have simply gone to Congress to 18 amend existing law so that it would allow for their envj"sioned 19 transfers, they did not. Inst.ead the Defendants simply ignored 20 the legal requirements. 2L. In factr ro interest in the Mortgage Note, Deed of Trust 21 or Property was ever 1egal1y transferred to any of the 22 Defendants, and that the Defendants are in effect straw men, and 23 parties without any standing before this court to assert 1egal 24 rights with respect to this contractual transaction. 25 22. Further, as this process became more and more profitable, m the underwriting requirements were repeatedly reduced to ensure 27 more and more unsuspecting borrowers. As the lenders reduced the 28 underwriting requi-rements, they introduced the concept of
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COMPLAINT TO SET ASIDE TRUSTEE'S SALE

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"churning" loans involving a calculated plan to repeatedly refinance borrowers' 1oans, taking as much equity as possi-ble, and artificially driving up housi-ng prices. 23. Lenders, Defendant FfRST UNITED HOME LOANS included, regularly trained, directed, authorized andlor participated with mortgage brokers to implement this scheme, giving them monetary incentives to violate the borrowers' trust. 24. In 7961 Lorenzia & Ruby Cox, parents of Plaintiff RICKY COX, purchased the property located at 713 Al-bemarle Avenue, Rio Linda, CA 95673 where they raised their famj-ly, including the plalntiff Ricky Cox. 25. Lorenzia Cox passed away in December 1-985 leaving Ruby Cox wi-th the property. 26. Ruby Cox passed away in May 2004 leaving the property to her son, Plaintiff Ricky Cox and hls wife Plaintiff, Donna Cox who moved 1n to the home in August 2004. 27. In or about November 2004, Defendant TOM DELKASH approached PLAINTIFFS, telling them that he was a loan officer for Defendant FIRST UNITED HOME LOANS, and solicited them to ref j-nance their mortgage. 28. Defendant DELKASH advi-sed t.he COXES that he could get them the "best deal" and the "best interest rates" available on the market. Defendant DELKASH knew or should have known t.hat these assurances were false and misleading. 29. Defendant DELKASH advised the COXBS that he could get them 100% financing for their Mortgage, that their loan would be a fixed rate loan with low interest for 30 years. However, Defendant DBLKASH actually sold the PLAINTfFFS a loan with an adjustable rate rider that would negatively amortize. 30. PLAfNTIFFS advised Defendant DELKASH that they did not want a prepayment penalty attached to their loan. Defendant DELKASH assured the COXES that no prepayment penalty would be
COMPLAINT TO SET ASIDE TRUSTEE'S SALE

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attached to thej-r loan, a representation Defendant DELKASH knew or should have known was false and Defendant DELKASH knew or should have knorsn was designed to induce PLAINTfFFS to accept this loan to their detriment. Unfortunately, PLAINTIFFS have since di-scovered that the loan sol-d to them contained a provision for a 2 year prepayment penalty. 31. On November 13, 2004, the COXES secured a loan of $93,000.00 from FIRST UNITED HOME LOANS. The loan was a 2 yeax fixed rate mortgage. The loan was secured by a Deed of Trust on the property located at 713 Albemarle Avenue, Rio Linda, CA 95673 that was recorded on November 30, 2004 in the Sacramento Count.y Recorder's Office in the County of Sacramento, State of

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California. 32. The promissory note securing the property whj-ch was alleged1y executed on November 13, 2004 was, in fact, not even truly si-gned by the COXES at all. The signatures on the Adjustable Rate Note were, in fact, forgied by either DELKASH or another employee,/agent of FfRST UNITED. This is evidenced by the signatures on the Note compared to various samples of the COXES signatures from other loan related documents, all of which are
attached herein.

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33. This fraudulent instrument promised to the COXES an interest rate of 6.5t for 24 months. The note call-ed for the first palment to conrmence on January 1, 2005. Thereafter, terms of the promissory note were conflicting and confusing. The promissory note called for a ceiling cap of 72.52. The promissory note also stated that the interest rate could cl1mb 28 points per year. The Truth in Lending Disclosure (attached as Exhibit \\5") revealed something entirely different. The Truth in Lending Disclosure reflected an Annual Percentage Rate (APR) of 8.013%. The Truth in Lending Disclosure reflected an approximate $60 increase after the first 24 months, to reach a ceiling of
COMPLAINT TO SET ASIDE TRUSTEE'S SALE

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$655.22 on July I, 2001. Thereafter, JuIy 1, 2001 the monthly mortgage payment was to be $655.22 for 329 months, 34. Defendants FfRST UNITED and DELKASH, as authorized agent for FIRST UNITED, Provided the Loan Servicing Dj-sclosure Statement, which Defendant DELKASH placed l\xx" in the space provided next to the option "We are able to service your loan and presently intend to do so" in the section titled "Servicing Transfer Estimated by Lender" that the loan would not be so1d, transferred, or asslgned to another servicer. The disclosure statement was signed on November !2, 2404 and j-s attached as

Exhibit "6", 35. The day that the

COXES

si-gned the loan documents,

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Defendant.s FIRST UNITED and/or DELKASH, as an authorized agent for Defendant FIRST UNITED, notified the COXES by wrltten

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notice, whi-ch is attached as Exhibit "8", that effective the day the loan was scheduled to close, the servicing of our loan is being assigned, so1d, or transferred from our lender to
Defendant THE PROVIDENT
BANK OF CINCINNATTI, OH.

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36. PLAINTIFFS also received a notice re: transfer,/sale of loan which states that upon the closing of our loan, with the first mortgage payment. not even due for still at least another 30 days, notifying us that our loan had indeed been sold. Defendants FIRST UNITED, and DELI(ASH knew or should have known that this was contradict.ory to the representation made previously as evidenced by Loan Servicing Discl-osure Statement. 37. Soon thereafter, FIRST UNITED pooled this defective note and trust deed with other similar loans that were sold to investors as GSAMP Trust 2005-NC1. However, the assignrnent/transfer of beneficial interest from FIRST UNITED to DEUTSCHE BANK NATTONAL TRUST COMPANY did not occur until February 3, 2A09 when it was recorded in the Sacramento County Recorder's office.
COMPLAINT TO SET ASIDE TRUSTEE'S SALE

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loan was pooled with others to form GSAMP TRUST 2005-NC1, then LfTTON, also owned by Goldman Sacs, became the servicer of the loan and have remained so ever since then. 39. Throughout the past fer+ years since LfTTON had been servicing the COXES 1oan, the COXES had from time to time been l-ate on their payments and received Notices of Default, whj-ch they always managed to cure before their time ran out. However, those Notices of Default were always issued through QUALfTY as a foreclosi-ng trustee. Not through TICOR, as the Deed of Trust names TICOR as trustee. 40. The first time the COXES ever saw the Adjustable Rate Note was when it was received with the letter from LITTON dated June 24, 2008. Upon review of the document, the COXBS immediately realized that they had not signed the document themselves. As evidenced specifically by the si-gnature of RfCKY COX compared to other samples of his signature (attached as Exhibit *3"). 4L. The COXES are informed and believe that the notices of assignments of the note and trust deed were not provided to them by the subsequent beneficiaries and assignees. 42. fn or about April 2008, the COXES contracted the services of JOSEPH BISOGNO, Sr. Vice President, LOAN COMPLIANCE ADVISORY GROUP. MR. BISOGNO performed an audit of the loan documents and as authorized by the COXES, sent an official written request with attached complaint and exhibits to LITTON and FTRST UNITED on April 30, 2008 (attached as exhibit "9"). Under Section 6 of RESPA, they were required to acknowledge the request within 20 business days and must try to resolve the issue within 60
COXES

38. Once the

business days.
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failed to respond within the allotted timeframe. They did not respond until- June when BISOGNO received a letter dated June 24,2008 (attached as Exhibit *10"). In this response, signed by DAPHNE MOSELEY of the Legal Department at 43. However,
LITTON
COMPLAINT TO SET ASIDE TRUSTEE'S SALE

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LITTON, states in the third paragraph that the servj-cing of the loan was transferred to LITTON in April 2005 and that at the ti-me of the response, the Beneficial Holder was DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE UNDER THE POOLING AND SERVTCfNG AGREEMBNT DATED FEBRUARY 1, 200s-NCl- with the address being 4828 Loop Central Drive, Houston, TX 77081. The address referenced above is the same address as the

principle place of business for LITTON. 8 44. In the Substitution of Trustee, recorded in the office of I the Sacramento County Recorder on January 22, 2A49, DEUTSCHE, 10 who at that time had no lawful beneficial interest in the subject property, substitutes QUALITY in place of Ticor as 11 Trustee under the Deed of Trust. The Substitution of Trustee is 12 attached as Bxhibit 1113" and though it is dated December 10, 13 2008 by DENISE BAILEY, Assistant Secretary , Lj-tton Loan 14 Servicing LP, Attorney-in-fact for DEUTSCHE, it was not Its notarized by Mel-issa Bell until January 5, 2009. The - 16 Substitution of Trustee still was not recorded in the office of 17 the Recorder of Sacramento County for an additi-onal seventeen 18 days on January 22, 2009. Thj-s raises the questionz If it was 19 dated on the same day as the Notrce of Default, why was in neither recorded nor mailed to the COXES at the same time as the 20 Notice of Default? 21 45. An assignment of Deed of Trust, attached as Exhibit "L4", 22 was not recorded in the office of the Recorder of Sacramento 23 County until February 3, 2009 in which the Deed of Trust was 24 transferred to DEUTSCHE from MORTGAGE ELECTRONIC REGISTRATION 25 sysrEMS, rNc. AS NOMINEE FOR FIRST UNTTED HOME T.OANS. MERS 26 authorized agent, MARTI NORfEGA, Assj-stant Vice President, 27 signed the document which was dated Saturday December 6, 2008; however, was not notartzed by Brenda McKinzy until January 21, 28 2009 which was forty six days later and coincidentally the day
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COMPLAINT TO SET ASIDE TRUSTEE'S SALE

before the Recordj-ng of the Substitution of Trustee. This raises the question: If the Assigrunent of Deed of Trust was dated four 2 days before the Notice of DefauJt and the Substitution of 3 Trustee, what wouid cause such a deTay in the notarization as 4 well as the recording of the document? Another important b quesLion is: Why were all three documents recorded in backwards 6 order if they were rea77y prepared jn the correct order? I 46. Prior to the recording of the Assignment of Deed of Trust, 8 there was no notice of any lawful assignment or transfer of any I benefieial interest in the subject propertlz to DEUTSCHE.
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FIRST cjAUSE OF ACTION
IIi|:TEIflTIONAT MISREPRESSNTATION OF I.ACT/I'RAI'D
(TS,t DETfijLSE

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r FrRSr

UNTEED BOME LOAITS)

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47. Plaintiffs RICKY & DONNA COX reallege and incorporate, ds though fully set forth herein paragraphs 1 through 46, inclusive. 48. Plaintlffs allege intentj-onal misrepresentation, fraud and deceit in the origination of the Loan for the subject property wlth facts to prove the following elements: 1. Misrepresentations made by the defendant; 2. Yorgery;
3. Scienter; 4. An intent to induce Plaintiffs' reliance on the misrepresentation; 5. Causation; 6. Justifiable reliance by Pl-aintiffs on the misrepresentation; 7. Damages.

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49. Plaintiffs are informed and believe and thereon allege ll
COMPLAINT TO SET ASIDE TRUSTEE'S SALE

that, dt all times herein mentioned, Defendant TOM DBLKASH was v2 the agent and/or employee of Defendant FIRST UNITED HOME LOANS, and in doing the things herein allege was acting within the 3 course and scope of such agency and employment and with the 4 permission of FfRST UNITED. 5 50, On or about November L2, 2004, Defendant TOM DELKASH made 6 the following representations to Plaintiffs: 7 (a) That Plaintiffs' income to debt ratio would not be a 8 consideration in the loan process when it was obvious that the I COXES eould not qualify for the loan based on standard 10 underwriting guidelines; (b) That Plaintiffs would be getting a 30 year fixed rate 11 l-oan, not an adjustable rate loan with a prepayment penalty; 12 (c) That Plaintiffs did have adequate documentation to support 13
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1008 financlng,'

(d) That DELKASH himself would not be available at the time of
urYrrrrrY,

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cicninn.

hrr.i- thp noferv he hired to come to our home with the pve f

documents

to be sigined, would take care of everything; (e) That the loan was to be serviced by FIRST UNITED with no intention of se1l1nq the loan on the secondary market at that

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time.

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51. The representations made by the Defendant were in fact false. The true facts werel (a) The income to debt rati-o is generally used as part of the standard underwriting Guidelines; (b) Plaintiffs' loan was not a 30 year fixed rate loan with fixed monthly payments; (c) Plaintiffs did not have adequate documenlation to support such a loan. (d) Defendant knew or should have known that his presence at the time of the signing of the loan documents was a necessity so as to ensure that the Plaintiffs were j-nformed
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of what they were signing and to answer any and all questi-ons that the COXES may have had j-n regards to the v2 terms of the loan; 3 (e) Defendant had no intention of servlcing the loan and 4 every i-ntention of selling it on the secondary market. 5 52. Defendant, FIRST UNITED, through its employee, TOl,l 6 DELKASH, stands in such a fiduciary relationship as would call 7 for a duty of disclosure. 8 53. Defendant FfRST UNITED deceived Plaintiffs, and as such, I TOM DELKASH was under a duty to inform Plaintiffs of the true 10 facts. 5{. When DELKASH made these representations, Defendant FIRSST 11 UNITED knew them to be false and made these representations with 't2 the i-ntention to deceive and defraud the Plaintiffs and to 13 induce the Plaintiffs to act in reliance on these 14 representations in the manner hereafter alleged' or with the -1s expectation that Plaintiffs would so act. v 16 55. Plaintiffs, at the time these representations were made by 17 defendant and at the time Plaintiffs took the actions herein 18 a11eged, were igrnorant of the falsity of defendants 19 representations and believed them to be true. 56. In reliance on these representations' Plaintiffs were 20 induced to and did accept the loan that is the subiect of, this 21 litigation. 22 57. Had Plaintj-ffs knovrn the actual facts, they would not have 23 taken such action. 24 58. Plaintiffs reliance on Defendant's representations were 25 just.ified because Plaintiffs are unsophisticated in real- estate 26 matters and that there was no reason to believe that t.he 27 defendant was deceiving them. 59. As a proximate result of the fraudulent conduct of 28
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COMPLAINT TO SET ASIDE TRUSTEE'S SALE

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Defendants as herein alleged, Plaintiffs were duped and subject to onerous foreclosure proceedings and the possibility of loss of their family's home of forty years, by reason of which Plaintiffs have been damaged in the sum of $103,2"79.77. 60. The aforementioned conduct of defendant (s) was an rntentional 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 Plaintiffs of property or lega1 rights or otherwise causing injury, and was despicable esnduet that subjected the Plaintiffs to a cruel and unjust hardship in conscious disregard of Plaintiffs' rights, so as to justify an award of exemplary and punitive damages.

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SECOND CA_USE OF

AEIION

I{EGI,IGENCE PER SE

(VIOLAETON OF BUS & PROF CODE 517200

et.

Seq.)

(ell.
61. Plaintiffs

DEE:EtgDAlrrs)

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refer to paragraphs 1 through 60 of this Complaint; and hereby incorporates the same as if fully set forth hereln. 62. Plaintif fs al-l-eqe that Defendant's business practi-ces are
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m.i al eacl thJ tlr-LDrccr\.r Lrre

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a fraudulent business act of practice within Business and Professional Conduct 517200 et.seq, 63. Our Cal-ifornia Appellate Court Second District in 2003 i-s j-nstructive in enunciating a legal test for unfairness in consumer actions under the Business and Professions Code 517200 et.seq." The courts of appeal has suggested that a practice is unfair if it offends an estabJ-ished public policy or is i-moral,
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COMPLAINT TO SET ASIDE TRUSTEE'S SALE

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uneth5.cal, oppressive, unscrupu1oue or substantial.J.y injurious to consr:ner, and t}at unfairneEs is determined by weighing the

of the practi.ce against the gravity of the harn to consruner. (see Kunert v. Missj-on Fj-nanclal Servlces Corp. 110 4 Cal.Ap. 4th 242 and Walker v. Homes Servicing, Inc 2002, 98 5 eal.Ap. 4th 1158) 6 64. In the case at bar the Defendant lenders' conduct and 7 practices werc clearly unethical, oppressive, unscrupulous and 8 substantially injurious to consumers as outllned supra. I 65. In fact, the utility of the practices did not only cause 10 grave harm to Plaintiff but also most likely caused qrave harm to other consumers of these lenders, aqents, services, or 11 assigned beneficiaries . 12 66. Defendants, as Lender, Trustee, and/or assiqnees, owed 13 Plaintiffs certain specific statutory duties as set forth within 14 California Business & Professj-ons Code S17200 et.seq. 67. Plaintiffs are within that class of persons to be v -15 16 protected by said statutes. 17 68. Those duties required Defendant lenders, agents, trustees 18 or servicers DEUTSCHE, LfTTON. QUALfTY and FIRST UNfTED to 19 refrain from any practice that is unfair if it offends an established public policy or is immoral, unethical, oppressive, 20 unscrupulous or substantially injurious to a consumer 21 utility
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(PLAINTIFFS).

69. Each of the Defendants breached their said statutory duties because they violated the duties enumerated above in the
foll-owing parti-culars
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Firgt as ].ender: 70. Defendant DELKASH as agent/employee of FfRST UNITED, was not present to answer any and all questions that the plaintiffs may have had at the time of the signing of the loan documents.
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COMPI-AINT TO SET ASIDE TRUSTEE'S SALE

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Instead, he had arranged for a Notary from Santa Clara County, CA to come to the COXES' home wi-th the loan documents for them to sign. The Notary, Robert Cleaves, was compensated $450.00 according to the Truth in Lending Statement. 7L. The COXES should have signed the Note themselves had they so ehose to aecept an offer for an adjustable interest rate. But, Defendant DELKASH had already been told by the COXES that they were looking for a fixed rate loan and therefore he knew that the COXES would not sisn such a Note so he forqed their
sigrnatures.
Second as Trustee, Lender, Ageat and,/or Servicer: 12. Defendants DEUTSCHE, QUALITY, and LITTON, as previously

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mentioned j-n this complaint, did not duly perfect the

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assignment/transfer of beaeficial' interest of the subject loan before the foreclosure process was initiated. 73. As of L?ILO/2OOB, Under the Deed of Trust recorded on LL/3O/2OO4, RICKY and DON!{A COX, husband and wife as joint tenants are named as "Borrowets" i FIRST UNITED EOME LOAIIS {CfL#603 8682) was named as "I€Dder"; ffCOR TIELE COMPAIII was named as "Trustee". Please note that this was the dav before the Notice of Default was filed. 74- However, the Notice of Default was filed on L2/1-1,/2008 by QUALfTY as the foreclosing trustee even though at that time Ticor Title Company was the trustee under the Deed of Trust. ?5. The Substitution of Trustee, is the document a beneficiarl' uses to substitute a new trustee in place of the one named on the Deed of Trust. 76. The Substitutj-on of Trustee in question transferred the duti-es of Trustee from Ticor Title Company to QUALITY and was dated 12/L0/2A08 by DENISE BATLEY, Assistant Secretary, LITTON
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COMPLAINT TO SET ASIDE TRUSTEE'S SALE

LOAN SBRVfCING

LP, Attorney-in-fact for

DEUTSCHB BANK NATIONAL

TRUST COMPANY AS TRUSTEE UNDER THE POOLING AND SERVICING
AGREEMENT DATED FEBRUARY

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t, 2005, GSAMP TRUST NC1, but notarized by Melissa Bel1 on I/5/2009 and recorded on I/22/2009 in the office of the Sacramento County Recorder. 71, ealifornia Civil Code 52932.5 states: "Where a power to sell real property is given to a mortgagee, or other encumbrancer, in an i-nst.rument intended to secure the payment of money, the power is part of the security and vests in any person who by assignment becomes entitled to payment of the money secured by the instrument. Ihe porer of sale nay be exercised by the assigmee if the assigmment is
duJ,y acknowledged and recorded. " 78. The Assignment of Deed of Trust which

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transfers the

beneficial interest in the subject loan to DEUTSCHE was not recorded until 2/312009; therefore, DEUTSCHE was not the O,U beneflciary at the time they filed and recorded the Substitution 16 of Trustee on I/22/09. 17 79. Further, The Assignment of Deed of Trust in question was 18 from MERS to DEUTSCHE and signed by MARTI NORIEGA as Assistant 19 Vice President for MERS as Nominee for FIRST UNITED HOME LOANS. But, in all truth, MARTI NORIEGA is employed by LITTON LOAN 20 SERVICING LP, not MERS or FIRST UNITED21 80. This means that FIRST UNITED never lawfully assigned their 22 beneficial interest in the subject loan to anybody. 23 81. This demonstrates the maliclous intent of the defendants, 24 and each of them, to defraud the 1ega1 system as well as the 25 plaintiffs and unlawfully obtain the tltle to the property 8 located at 713 Albemarle Avenue, Rio Linda, CA 95673. 27 82. In a rush to foreclose on thousands of homes they
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COMPLAINT TO SET ASIDE TRUSTEE'S SALE

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neglected their duties by filing documents that were inaccurate to allow the non-judicial foreclosure process to initiate, and they did not care the damages that they caused. 83. Specifj-cal-1y, FIRST UNITED never lawfully assigned/transferred benefi-cj-al interest in the property to DEUTSCHE or any other entity. 84. In December 2008, LITTON, through QUALITY, not the original t.rustee under the Deed of Trust, issued the defective Notice of Default which named MERS as nominee for FfRST UNITED as beneficiary under the Deed of Trust. Never before this had MERS appeared on anythlng related to the subject 1oan. 85- As a direct and proxirnate result of the negligence per se of the lender, agents, and/or servicer Defendants, and each of them, the Plaintiffs have suffered foreclosure of the family home/ monetary damages, emotional distress, and the indirect costs j-n 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 ci-rcumstances. 86. Business and Professions Code S17200 et.seq. states: "The court shall i-mpose a civil penalty for each violation of

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this chapter. In assessj-ng the amount of the civil penalty. the court shall consider any one 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, Lhe number of violations, the persistence of the misconduct, the length of time over which the misconduct occurred, the willfulness of the defendants' and neL misconduct, and the defendants' assets, llabilities
worth. "
TETRD CEUSE OF ACTION
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COMPLAINT TO SET ASIDE TRUSTEE'S SALE

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(NegJ-igence Per Se) VIOLATION OF CA CIVIL CODE 52923.5, 52924 (52329.6 supra)
(9UAI,IT! r.oAlr
VTOI.ATTON OE. CA CTVTL CODE
SERVTCE CORP. )

5

52923.5 A REQI'IRB'{ETflT PRIOR

TO

6

FIIING A

NO{TICE OF DEETT'&T CA

CIVIL

CODE 52924

refer to paragraphs 1 through 96 of this Complaint, and hereby incorporates the same as if fully set I forth herein. 10 88. The j-ntent of the legislature when passing and forming 11 California Civil Code 52923.5 was clear: Protect boneorners 87.
PLAINTIFFS
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and

slow foreclosures.

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89. fn particular, Defendants QUALITY failed to "Stri-ctly Comply" with CA Civil Code 52923.5 and 52924 in recordlng the Notice of Default on December tl-, 2008. 90. A Trustee has a duty requirement t.o fo1low 52923.5. "strict Compliance Rules prevents the iender from relying on such default as a basis for any subsequent Trustee Sale". (See System fnv. Corp. v. Union Bank (1,971)2L CA3d 137) Such failure to comply voids the Notice of Defaul-t. 91. PLAINTIFFS are within the class of persons to be protected by said statute 52923.5. Once this foreclosure train start.s down the hill there is littl-e to stop it and protect those who may be caught by dishonesty. 92. CA Civil Code was passed as Senate Bill 7737 effective September 2008 and applies to loans made for prlmary home residential property between January L, 2003 and December 31,
2008.

93. PLAINTIFFS' l-oan was made primary residence.

November 2004.

It is their

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COMPLAINT TO SET ASIDE TRUSTEE'S SALE

94. The intent of the legislation is clear , and QUALITY chose to ignore it and was negligent. 95. The Defendants', QUALITY, unfair, unlawful, and fraudulent business practlces including, but not limited to ttre patently fa1se and misJ'eading declaration by LfTfOlf and the errors in fiJ.ing the l{otice of Defau3.t oa Deeeolter 11, 2008 in violatioa
of, 52923.5 and 52924.

96. QUALITY failed to attach a declaration to the faulty Notice of Default on December 17,2008 in violation of 52923.5
and 52924.

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97. When DEUTSCHE filed an Unlawful Detainer action against the Plaintiffs, they attempted to lodge a fraudulent declaration 't1 as *'NOL L" (attached as Exhibit "L2"). But Plaintiffs promptly 12 caught on to this and purchased a certifi-ed copy of the Notice 13 of Default (attached as Exhibit \r11//) which proves that the decl-aration was not filed properly as required by 52923.5. The Legislature enacted this statute to slow the foreclosure process and this attempt by the defendants demonstrates the malicious 17 j-ntent to defraud not only the Plaintiffs but the court as well. 18 98. fn a rush to put people out of their homes, Defendants, DEUTSCHE, LITTON and QUALITY harmed Plaintiffs and harmed many others who just gave up. 99, A11 of these three have made more money by rapidly ?1 Pushing people out of their homes, This, done aggressively with negligence and when confronted chose to ignore and push harder 23 to eject Plaintiffs and other homeowners. This is negligence 24 with malice. They lost money when modifications were done. Thie was presented to Congress as an interim report: 100. trCurrent exXrreTy high J'eweJ,s of defanalts ane.d forecTosu.res ffi 27 among resideatial rcrtgages z.etr>resents the iaterim report to Congress by the Sec.retalry, of tbe Departaeat of Eousing ar'd Urbaa Mwel-ogrcnt (EIID) prer'sraa''t to Seetion 7577 of tbe
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COMPI/.INT TO SET ASIDE TRUSTEE'S SALE

Eoasiag
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3

aled

EcoaaLe

Recowezar

Act

(EERA)

of 2008 (P.L. 770-

289)

ia &e wrXgage aazket are routiaely referr.ed to ae a "foreclosrrre czisis" because tbe level of defaaTts aad forec.Tosrar.es gireatly exeeed previoras peak J'eveJ,s ia tbe gmet-vaz eg'a aad., aE a res-rgJ-t, bave dravn erytarj,eone to tbe J.eveJ,s of ,r; ctr.ess e:qrerienced :La T-he GreaL
pEobT@,s

'. rrhe

DgJrregsioe. o
s
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Regulation errors were made and harmed many innocent homeowners who simply qave up. These people should be ashamed of what they continue to propagate. LO2. The United Trustee Association wrote: "The new requirements of 52923.5 are not protected by 52924L non monetary protection. "However, relying on the beneficiary or their servicer as to the validity of the decl-arati-on, any authorized agent should review their power of attorney or agency documents and may wish to consult their legal counsel regardj-ng indemnification" . LfTTON and QUALITY knew that there was no declaration 103. signed and attached to the Notice of Default on December 11, 2008 and fraudulently signed and backdated the declaration for DEUTSCHE to lodge as "NOL 1" in the Unlawfuf Detainer action asai-nst the Plaintiff s. Defendants, DEUTSCHE, LfTTON and QUALITY knew that 104. the requirements of 52923.5 and 52924 needed to be followed. 105. As a result of the actj-ons of the Defendants,

101.

QUALITY, LITTON, and DBUTSCHE,
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the Plaintiffs have suffered a loss in the Unlawful Detainer action against them and have until June 9, 20L0 to ei-ther buy the home back or move out with the judgrment against them. The Plaintiffs have suffered and continue to suffer 106.
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COMPLAINT TO SET ASIDE TRUSTEE'S SALE

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great emotional dj-stress and humility from the negligence of the defendants, and the fraud to cover it up.
FOT'RTE CAUSE OF ACTION
SI.A}IDER OF

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TITIE
2005-bfC1)

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(DEIIISCEE BjANK NArrOltAI. fRUST COMPAIIY as

Trustee for

GSAIIIP

Trust

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107. Plaintiffs refer to paragraphs 1-105 of this complaint, and hereby incorporates the same as if fully set forth herein. 108. Plaintiffs are the l-awful owners of the property located at 713 Albemarle Avenue, Rio Linda, CA 95673. 109. Plaintiffs inherited the property from RICKY COX'S mother, Ruby Cox who became deceased in May 2004. 110. On or about November 9, 2009, Defendants, and each of Them, conducted an unlawful non-judicial- foreclosure sale upon 713 Al-bemarle Avenue, Rio Linda, CA 95673. 111. The defendants, DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE FOR GSAMP TRUST 2005 NC1, did not obtain the title by proper assignment, and therefore, do not have any legal right to foreclose on the COXS' home as beneficlary under the deed of trust. LLz. California Civil Code 52932.5 states: "Where a power to sell real property is given to a mortgag€€, or other encumbrancer, in an instrument intended to secure the payment of money, the power is part of the security and vests in any person who by assigrrnent becornes entitled to palrment of the money secured by the instrument. The power of sal.e nay be exereisd, by the assignee if the assiginment is duly acknorledged and recorded. "
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COMPLAINT TO SET ASIDE TRUSTEE'S SALE

113.

The Defendants,

DEUTSCHE BANK NATIONAL TRUST COMPANY

AS TRUSTEE FOR GSAl"lP TRUST 2005 NCI- knew that their interest in the PLAINTIFFS' property was not duly assigned and perfected and that there was at l-east a slight chance that questions would be

o,u

point before the COXES would give up and walk away from their family's home of over forty years. 114. That is why they suddenly registered the PLAINTIFFS' loan on the MERS system to attempt to falsely assign thernselves as the beneficiary under the deed of trust. This is evidenced by the first appearance of the MERS name on the COXS' Notice of 10 Default (exhibit \\11") dated 12/I0/2008 and recorded in the office of the recorder of Sacramento County on 12llT/2008, the 11 Substitution of Trustee (exhibit \\13") also dated t2/IA/2008 but 12 not notarized until 7/5/2A09 and finally recorded on 7/22/7A09, 13 as well as the Assignment of Deed of Trust (exhibit \\LAt/) which 14 was dated 72/6/2008 but not notarized until I/27/2009 and finally recorded on 2/3/2009. 16 115. The Assignment of Deed of Trust was signed by MARTI 17 NORIEGA, Vlce President, MERS. However, MARTI NORIEGA is/was an 18 employee of LITTON, not MERS or FIRST UNfTED. 19 116. Defendant. MARTI NORIEGAT is not an aut.horized agent of FIRST UNITED and had no legal right to assign the Deed of Trust to DEUTSCHE or anyone else. LL7. PLAINTfFFS are the lawful owners of the real property 22 located at 713 Albemarle Avenue, Rio Linda, CA 95673. 23 118. Defendants, DEUTSCHE, have done a poor job as trustee 24 for GSAMP Trust 2005 NC1 by pooling l-oans that were made under 25 the poorest of underwriting standards. There are many f .l-aws in 8 most of the l-oans j-n the pool, not just the PLAINTIFFS'. Now 27 they are trying to gain possession of these properties before borrowers challenge their claims, leaving them and their 28 investors with nothi-nq. raised at
some
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COMPLAINT TO SET ASIDE TRUSTEE'S SALE

FIETE CAUSE OF ACTION TIRONGE T'I FORECLOST'RE
(ALL DEEEIIDA]ITS]

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O1s
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reallege and incorporate by reference paragraphs 1 to 118 of this complaint. L2O. PLAINTIFFS, RICKY AND DONNA COX, are the rightful owners of the property located at 713 Albemarle Avenue, Rio Linda, CA 956'13. L2L. On or about I7/9/2AA9, DEFENDANTS, and each of them, conducted an unlawful- non-judicial foreclosure sale upon 713 Albemarle Avenue, Rio Linda, CA 95673. L22. They conducted this unlawful foreclosure auction in violation of the notice provisions for the Notice of Default by failing to provj-de the declaration as required by California Civil Code 52923.5 and 52924, and by failing Lo have proof of necessary Iega1 ownership of the indebtedness j-n it.s possession, those being the original promissory note, with endorsements and the origlnal trust deed, with assi-gnments, prior to initiating the non-judicial foreclosure. L23. PLAINTIFFS are informed and believe that even to this day, the alleged beneficiary and the rest of the DEFENDANTS do not have these documents in their possession. L24. Thus, they did not have the legal right to foreclose 119.
PLAINTIFFS

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upon PL.AINTIFFS' property. 125. As a result of DEFENDANTS' actions, PLAINTIFFS have

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COMPLAINT TO SET ASIDE TRUSTEE'S SALE

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suffered harm. Among the harm, he has suffered the slander of his reputation in that a foreclosure sale has been reported
:ar i nqt sYqrrrr h'i m f n r.rodi J- !vyv! rarrnrie i nrr :rronni sYvirvf aq vs.

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5

L26. PLAINTIFF realleges and incorporates paragraphs 1 to 725 of this complaint. I L27. PLAINTIFPS al1ege that Defendants, and each of them, I are guilty of malice, fraud and oppression as defined by CA 10 Civil Code S3294, and that the COXES should recover, in addition 11 to actual damages, damages to make an example of and to punish 12 all DEFENDANTS.
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FOR PI'NITIVE DEMAEES AGAINST AI,L DEFEIIDANTS

PRAYER
WHEREFORE, PLAINTIFFS

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pray judgment as follows: 1. For a declaration that the Notice of Trustee's Sa1e, fil-ed on or abouL March 13, 2049 and attached as exhibit ttIstt, is invali-d, unlawful, and does not provide the necessary foundation for the conduct of a Trustee's Sale, as described in CA Civil Code 52924 et seq. 2. For a declaration that the Notice of Default previously recorded on this property J-s invalid, unlawful, and does not provi-de the necessary foundation for a California non-judicial foreclosure. { For a declaration that the Trustee's Sale conducted on or about LI/9/2009 is null and void. 4. For a declaration and order restoring the title to the property located at 713 Albemar1e Avenue, Rio Li-nda, CA 95573 to Plaintiffs RICKY AND DONNA COX i-n fee simple.
T

That Defendants

and DOES 1-50, and their suceessors and assj-9os, be permanently enjoined
DEUTSCHE, LITTON, QUALITY,
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COMPLAINT TO SET ASIDE TRUSTEE'S SAL.E

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from conducting a non-judicial foreclosure sale upon the property located at 713 Albemarle Avenue, Rio Linda, CA
95673.

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6. For a judgment ordering Defendants DEUTSCHE, LITTON, QUALfTY, FIRST UNITED, and DOES 1-50 to produce the original of the promissory note of LL/L3/20Q4, with endorsements to DEUTSCHE and/or the current beneficiarv of this promissory note. 7. That Plaintiffs RICKY and DONNA COX be decl-ared to be the prevailing party. 8. For general and special damages. 9. For punitive damages agai-nst all DEFENDANTS. 10. For such and further relief as the Court may deem
proper.

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COMPLAINT TO SET ASIDE TRUSTEE'S SALE

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