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Brian P. Ballo, Esq. #134892 Law Office of Brian P. Ballo 120 Vantis, Suite 300 Aliso Viejo, CA 92656 P: (949) 690-4100 F: (949) 315-3100 ballolaw@gmail.com Attorney for Plaintiffs Bruce Hochman, an individual, and Bruce Hochman, Trustee of the Bruce Hochman 2010 Trust

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER BRUCE HOCHMAN, an individual; ) and BRUCE HOCHMAN, Trustee of ) the BRUCE HOCHMAN 2010 TRUST ) ) Plaintiffs, ) vs. ) ) ) GMAC MORTGAGE, LLC, a ) Delaware limited liability ) company, f/k/a GMAC MORTGAGE ) CORPORATION, a wholly owned ) subsidiary of ALLY FINANCIAL, ) INC., a Delaware corporation, ) authorized to do business in ) California; MORTGAGE ) ELECTRONIC REGISTRATION ) SYSTEMS, INC., a Delaware ) corporation, authorized to do ) business in California; ETS ) SERVICES, LLC, a Delaware ) limited liability company, ) authorized to do business in ) California; and, Does 1 through ) 10, Defendants. _______________________________________ THE PARTIES AND VENUE Plaintiffs Bruce Hochman (Hochman) and Bruce Hochman, Trustee of the Bruce Hochman 2010 Trust (Trust) ("collectively, Plaintiffs") respectfully -1COMPLAINT FOR DAMAGES, INJUNCTION, DECLARATORY RELIEF (Hochman v. GMAC, et. al.)

CASE NO. VERIFIED COMPLAINT FOR:

1.

2. 3. 4. 5.

VIOLATION OF 15 U.S.C., SEC. 1641, AND CIVIL CODE, SEC. 2924 VIOLATION OF CIVIL CODE, SECTION 2923.5 BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING VIOLATION OF THE DODDFRANK ACT 15 U.S.C., Sec. 1482(a) DECLARATORY RELIEF

For Damages and Injunctive Relief Notice of Default: February 23, 2011

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allege and submit this Complaint for Damages, Injunctive and Declaratory Relief, and Demand for Jury Trial as follows: 1. Plaintiffs Hochman is, and at all times relevant to this action was, a resident of the County of Orange, State of California, and the Trustee of the Bruce Hochman 2010 Trust, the owner of a residential home, commonly known as 30402 Marbella Vista, San Juan Capistrano, CA 92675, A.P.N. 650604-23, (hereinafter, the Property). 2. Plaintiffs Trust, is and at all times relevant to this action and is, the current owner of the Property. 3. Plaintiffs are informed and believe, and based thereon, allege that Defendant, GMAC MORTGAGE, LLC, (GMAC), is a Delaware limited liability company, f/k/a GMAC MORTGAGE CORPORATION, and the current

Beneficiary pursuant to an Assignment of Deed of Trust recorded February 22, 2011, against the Property, securing a loan to Hochman in the principal amount of $1,600,000, Loan GMAC Loan No. 0359342748, (Loan). 4. Plaintiffs are informed and believe, and based thereon, allege that MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., is a Delaware corporation, and authorized to do business in California (MERS), and the Nominal Beneficiary under the original Deed of Trust recorded on or about September 21, 2006 against the Property, securing the Loan, originally made to Hochman by Residential Mortgage Capital (ResCap), which went out of business in 2008. 5. Plaintiffs are informed and believe, and based thereon, allege that

Defendant ETS SERVICES, LLC, is a Delaware limited liability company, -2COMPLAINT FOR DAMAGES, INJUNCTION, DECLARATORY RELIEF (Hochman v. GMAC, et. al.)

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authorized to do business in California, (ETS), and is the current Trustee under the Deed of Trust securing the Loan. 6. The true names and capacities of Does 1-10, inclusive, whether

individual, corporate, partnership, associate or otherwise, are presently unknown to Plaintiffs, who therefore sues said Defendants by such fictitious names. Plaintiffs allege on information and belief that each fictitiously named Defendant is responsible in some manner for the events described herein and is liable to Plaintiffs for the damages they have incurred. Plaintiffs will amend this Complaint to show the true names and capacities of the Doe Defendants when they have been ascertained. 7. Whenever reference is made in this Complaint to any act of any Defendant(s), that allegation shall mean that each Defendant acted individually and jointly with the other Defendants. 8. Any allegation about acts of any corporate or other business

Defendant means that the corporation or other business did the acts alleged through its officers, directors, employees, agents, brokers and/or

representatives while they were acting within the actual or ostensible scope of their authority. The exact terms and conditions of the agency, representation, or employment relationships are presently unknown to Plaintiffs, but when the information is ascertained, leave of court will be sought to insert appropriate allegations. 9. At all relevant times, each Defendant committed the acts, caused or directed others to commit the acts, or permitted others to commit the acts alleged in this Complaint. Additionally, some or all of the Defendants acted -3COMPLAINT FOR DAMAGES, INJUNCTION, DECLARATORY RELIEF (Hochman v. GMAC, et. al.)

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as the agent or the assignee or the substitute of other Defendants, and all of Defendants acted within the scope of their agency if acting as an agent, the assignee or the substitute of another. 10. At all relevant times, each Defendant knew or realized that the other Defendants were engaging in or planned to engage in the violations of law alleged in this Complaint. Knowing or realizing that other Defendants were engaging in or planning to engage in unlawful conduct, each Defendant nevertheless facilitated the commission of those unlawful acts. Each Defendant intended to and did encourage, facilitate, or assist in the commission of the unlawful acts, and thereby aided and abetted the other Defendants in the unlawful conduct. 11. At all relevant times, Defendants have engaged in conspiracy, common enterprise, and common course of conduct, the purpose of which is and was to engage in the violations of law alleged in this Complaint. This conspiracy, common enterprise, and common course of conduct, continues to the present. 12. Venue is proper in this Court, as the subject Property is located within its' jurisdiction. The violations of law alleged in this Complaint occurred in San Juan Capistrano, California, and elsewhere throughout Orange County, California. LOAN ORIGINATION AND HARDSHIP FACTS 13. In January 2005, Hochman acquired the Property with a purchase money loan from Countrywide, America's Wholesale Lender in the amount of $1,137,500. -4COMPLAINT FOR DAMAGES, INJUNCTION, DECLARATORY RELIEF (Hochman v. GMAC, et. al.)

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14. In September 2006, Hochman refinanced the Property acquisition with a Loan from ResCap, in the original principal amount of $1,600,000, structured as an adjustable 5/1 Adjustable Rate Mortgage of 8.12%, calling for 30 year amortized payments of principal and interest of $5,521.92 per month for 5 years, secured by a Deed of Trust to MERS, as Nominal Beneficiary for ResCap, recorded on September 21, 2006, in priority position against the Property. 15. Plaintiffs are informed and believe, and based thereon, allege that at some time ResCap sold and assigned its beneficial interest under the Loan to GMAC. 16. On June 28, 2010, Hochman transferred title of the Property to the Bruce Hochman 2010 Trust via an Intrafamily Deed of Trust that was recorded. 17. Beginning in January 2008, Hochman began suffering the following financial hardships, which caused him to become delinquent on monthly payments due on the Loan: (a) Hochman is an Art Broker specializing in the sale of Salvador Dali art work, of which is his primary source of income, and his second source of income is social security benefits, however, as a result of the Great Recession of 2007 - 2010, specialty art sales were impacted severely causing Hochmans personal income to significantly decrease. By year end 2010, Hochmans adjusted gross income declined to a level of half of his 2008 adjusted gross income level. Hochmans current income is insufficient to

support the current Loan repayment terms. -5COMPLAINT FOR DAMAGES, INJUNCTION, DECLARATORY RELIEF (Hochman v. GMAC, et. al.)

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(b) Hochman, due to the financial stress involved in potentially losing his home, developed Bells Palsy, which causes him to suffer on a daily basis with facial paralysis, drooling, droopy eyelid and headaches, which may or may not become a permanent condition, and he also experiences difficulty eating and drinking. LOAN MODIFICATION AND FORECLOSURE STATUS 18. In May 2010, Plaintiffs submitted an Application for a Loan

Modification. On July 16, 2010, GMAC sent a letter informing Plaintiffs that they were denied under the HAMP program, however, would be considered under "another workout" program. 19. On August 9, 2010, GMAC sent a letter informing Plaintiffs that

"[w]e service your loan on behalf of an investor or group of investors that has not given us authority to modify your loan under the program requested." 20. On December 7, 2010, GMAC sent a letter informing Plaintiffs that "[w]e service your loan on behalf of an investor or group of investors that has not given us authority to modify your loan under the program requested," and that "HAMP program denied. another workout." 21. In January 2011, Hochman telephoned GMAC and inquired whether GMAC or another entity was the true investor under the Loan, and was told that Wells Fargo was the investor. When Hochman asked to speak to Account is in review for

someone at Wells Fargo, he was told that he cannot speak to Wells Fargo regarding the Loan. Moreover, Hochmans inquiries through his attorneys, -6COMPLAINT FOR DAMAGES, INJUNCTION, DECLARATORY RELIEF (Hochman v. GMAC, et. al.)

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with a title company, do not indicate that Wells Fargo has any interest whatsoever in the Loan or the Property. 22. On February 22, 2011, MERS transferred all of its nominal

beneficiary interest in the Property to GMAC, pursuant to an Assignment of Deed of Trust recorded with the Orange County Recorders Office. A true and correct copy of this Assignment of Deed of Trust is attached hereto as Exhibit A, and incorporated herein by this reference. 23. On February 23, 2011, Defendant ETS, Trustee and agent for Defendants GMAC and Wells Fargo under the Deed of Trust securing the Loan, filed a Notice of Default with the Orange County Recorder's Office, which included an Election to Sell the Property, as well as a declaration that the beneficiary or its authorized agent has declared, that they have complied with California Civil Code Section 2923.5 by making contact with the borrower or tried with due diligence to contact the borrower as required by California Civil Code Section 2923.5. A true and correct copy of this Notice of Default is attached hereto as Exhibit B. 24. Plaintiffs are determined to keep the Property, which is Hochman's home, and he does not want to lose the Property in a foreclosure sale. However, Defendants claim that as of February 23, 2011, approximately $31,633.98 in past due arrearages are now due. Hochman believes that he is able to pay, and in fact, qualifies for, a loan modification under appropriate loan modification program guidelines. However, any such loan modification must involve forgiving or capitalizing the past due arrearages, plus involve other interest rate and monthly payment reductions. -7COMPLAINT FOR DAMAGES, INJUNCTION, DECLARATORY RELIEF (Hochman v. GMAC, et. al.)

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FIRST CAUSE OF ACTION FOR VIOLATION OF 15 U.S.C., SEC. 1641, AND CIVIL CODE, SEC. 2924 25. On May 29, 2009, President Obama signed into law the Helping Families Save Their Homes Act of 2009 ("2009 Act"). Section 404(a) of the 2009 Act, amended Section 131 of the Truth-in-Lending Act, U.S.C., Section 1641, requiring, among other things, that the purchaser or assignee of a mortgage loan, to notify and disclose to the borrower consumer, no later than 30 days after the date on which it acquired the loan, the identity of the new creditor, and how to reach the new creditor. 26. On September 24, 2010, the Final Rules published by the Board of Governors of the Federal Reserve System, implementing Section 131(g) of the Truth-in-Lending Act (TILA), which were enacted as Section 404(a) of the 2009 Act, as make clear that the purpose of the 2009 Act is to ensure that consumers receive meaningful information in a timely manner regarding who owns their loan. 27. Here, when ResCap sold the Loan to GMAC, and when MERS

transferred its nominal beneficial interests to GMAC, all such parties violated Section 131 of the Truth-in-Lending Act, 15 U.S.C., Section 1641, by failing give the required notice to the Plaintiffs within 30 days after such Loan transfers. 28. The failure of such Defendants to comply with this statute, meant that the Plaintiffs did not know when they received the Notice of Default that all past due amounts were actually owed to Wells Fargo. Plaintiffs also

contend that this failure to notify also resulted in non-compliance with Civil -8COMPLAINT FOR DAMAGES, INJUNCTION, DECLARATORY RELIEF (Hochman v. GMAC, et. al.)

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Code, Section 2924, governing the proper conducting of foreclosure proceedings. 29. Pursuant to 15 U.S.C., Section 1640(a), an assignee that violates this notice requirement is subject to civil penalties of up to $4,000, which can be pursued via a private right of action under Section 130(a) of TILA. Moreover, such statutory violation has caused the Plaintiffs to suffer damages in excess of the minimum jurisdiction of this court, as measured by the diminution in value of their Property, caused by the improper recording of a Notice of Default, and the costs of enjoining the foreclosure now proceeding against their Property. SECOND CAUSE OF ACTION VIOLATION OF CIVIL CODE SECTION 2923.5 30. Plaintiffs reallege and incorporate by reference each and every allegation above as though fully set forth herein. 31. Civil Code Section 2923.5(a)(2) absolutely requires, that before a Notice of Default may be recorded with the County Recorders Office: "A mortgagee, beneficiary, or 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. The assessment of the borrower's financial situation and discussion of options may occur during the first contact, or at the subsequent meeting scheduled for that purpose. In either case, the borrower shall be provided the toll-free telephone number made available by the United States Department of Housing and Urban Development (HUD) to find a HUD-certified housing counseling agency. Any meeting may occur telephonically. -9COMPLAINT FOR DAMAGES, INJUNCTION, DECLARATORY RELIEF (Hochman v. GMAC, et. al.)

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32. Further, Civil Code Section 2923.5(b) provides that: (b) A notice of default filed pursuant to Section 2924 shall include a declaration that the mortgagee, beneficiary, or authorized agent has contacted the borrower, has tried with due diligence to contact the borrower as required by this section, or that no contact was required pursuant to subdivision (h). 33. Here, in violation of Section 2923.5(a)(2), no contact was made by

Defendants with Hochman to assess his financial situation, nor did Defendants explore options for the borrower to avoid foreclosure. In violation of Section 2923.5(b), no declaration is attached to the Notice of Default, as an examination of Exhibit "B" reveals. 34. As such, the Notice of Default did not comply with Section 2923.5, and the foreclosure process was defectively commenced by Defendants, and is being improperly pursued by Defendants. 35. As clarified in Mabry v. Superior Court (2010) 185 Cal.App.4th 208, the remedy for a lenders violation of Civil Code, Section 2923.5, is for the Court to require that the lender demonstrate substantial compliance with Civil Code, Section 2923.5, before the lender files a new Notice of Default. 36. Accordingly, this Court should enjoin Defendants from proceeding to foreclose against the Property, and further order that no foreclosure can occur until Defendants repeat the entire Notice of Default and foreclosure process.

THIRD CAUSE OF ACTION BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING -10COMPLAINT FOR DAMAGES, INJUNCTION, DECLARATORY RELIEF (Hochman v. GMAC, et. al.)

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37. Plaintiffs reallege and incorporate by reference each and every allegation above as though fully set forth herein. 38. Based on the lender-borrower relationship and loan agreements and documents between Hochman and, GMAC, as Agent for the Investor, is obligated by contract and common law to act in good faith and to deal fairly with Hochman. The purpose of this covenant is to guarantee that the parties remain faithful to the intended and agreed expectations of the parties in their performance under the Loan documents. 39. Defendant GMAC breached this duty towards Plaintiffs by: (a) failing to exercise due diligence to make direct contact with Hochman, who is not difficult to reach, to discuss his financial status, loan modification options and other alternatives for saving the Property as required by California Civil Code, Section 2923.5; (b) misleading Hochman by sending him form letters describing the Home Affordable Modification Program, for which Hochman does so qualify, since his loan amount exceeds the eligibility guidelines, and failing to properly underwrite Hochman under other available loan modification programs, all while proceeding to foreclose against Hochmans Property; (c) misleading Hochman by telling him that Wells Fargo was an

investor, or has some interest in the Loan, when, as far as Hochman can determine, Wells Fargo has no interest whatsoever in the Loan. 40. As a direct and proximate result of Defendant GMACs breach of the implied covenant or good faith and fair dealing, Plaintiffs have been damaged in an amount in excess of the minimum jurisdiction of this court, as -11COMPLAINT FOR DAMAGES, INJUNCTION, DECLARATORY RELIEF (Hochman v. GMAC, et. al.)

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will be proven at time of trial. FIFTH CAUSE OF ACTION AGAINST ALL DEFENDANTS FOR VIOLATION OF THE DODD-FRANK ACT 15.U.S.C. Sec. 1482 41. On February 1, 2011, the U.S. Congress enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act). DoddFrank Act requires HAMP servicers, including Defendant GMAC Bank to implement the changes brought into existence by 15 U.S.C., Section 1482(a), which requires HAMP servicers, when denying an Application for a Loan Modification, to provide a Non-Approval Notice setting forth: (a) the reasons the borrower was not approved, (b) whether the Net Present Value (NPV) test was performed and whether the result of it was negative, and (c) producing the NPV Data Input Fields and Values Chart, such that the borrower is afforded a fair opportunity to submit evidence that the information used by the HAMP servicer in underwriting the borrower's Application was inaccurate. 42. When GMAC failed to approve Plaintiffs for a permanent loan modification in 2010, GMAC failed to provide Plaintiffs with a Non-Approval Notice in compliance with the Dodd-Frank Act. 43. As a direct and proximate result of Defendants statutory violation, Plaintiffs have suffered damaged in an amount in excess of the minimum jurisdiction of this court, as will be proven at time of trial. FIFTH CAUSE OF ACTION AGAINST ALL DEFENDANTS FOR DECLARATORY RELIEF 44. Plaintiffs reallege and incorporate by reference the above

paragraphs as set forth fully herein. -12COMPLAINT FOR DAMAGES, INJUNCTION, DECLARATORY RELIEF (Hochman v. GMAC, et. al.)

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45.

Whether Defendants failed to comply with Civil Code, Section

2923.5, such that a new Notice of Default and new Notice of Trustees Sale must be recorded before any foreclosure sale can take place under the Loan, Deed of Trust and related documents, raises an actual controversy. Defendants contend that they complied with Section 2923.5, and can proceed to foreclose, whereas Plaintiffs contend that there was not compliance with Section 2923.5, such that any foreclosure is wrongful. 46. In addition, in light of Defendants failure to notify Plaintiffs that the Loan had been sold and transferred from GMAC to Wells Fargo, an actual controversy exists concerning the role and rights of the Defendants under the Deed of Trust. Defendants contends they are properly acting in under the Deed of Trust in taking steps to pursue a foreclosure sale against the Property, whereas Plaintiffs contend they are not. 47. In addition, an actual controversy exists concerning the role and rights of the ETS as Trustee under the Deed of Trust. The Defendant

contends it is properly acting in its principal capacity on behalf of the beneficiary under the Deed of Trust in taking steps to pursue a foreclosure sale against the Property, whereas Plaintiffs contend they are not. 48. Accordingly, Plaintiffs seek a declaratory judgment interpreting the Loan documents, the Deed of Trust recorded against the Property, and the Notice of Default, as well as who, if any one, has the power to initiate any foreclosure proceedings.

PRAYER FOR RELIEF -13COMPLAINT FOR DAMAGES, INJUNCTION, DECLARATORY RELIEF (Hochman v. GMAC, et. al.)

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WHEREFORE, Plaintiffs pray for the entry of Judgment against Defendants for the following relief:

ON THE FIRST CAUSE OF ACTION As a direct and proximate result of Defendants violation of 15 U.S.C., Section 1640(a), the Plaintiffs have not only suffered statutory damages of $4,000, but, such statutory violation has also caused the Plaintiffs to suffer damages in excess of the minimum jurisdiction of this court, as measured by the diminution in value of their Property, caused by the improper recording of a Notice of Default, and costs of enjoining the foreclosure now proceeding against their Property. ON THE SECOND CAUSE OF ACTION For an Order requiring that Defendants and their agents, failed to demonstrate substantial compliance with Civil Code, Section 2923.5, and that Defendants and their agents, must demonstrate substantial compliance with Civil Code, Section 2923.5, before Defendants and their agents, file another Notice of Default. ON THE THIRD CAUSE OF ACTION As a direct and proximate result of Defendants breach of the implied covenant or good faith and fair dealing, Plaintiffs have been damaged in an amount in excess of the minimum jurisdiction of this court, as will be proven at trial. ON THE FOURTH CAUSE OF ACTION

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As a direct and proximate result of Defendants federal statutory violation, Plaintiffs have suffered damaged in an amount in excess of the minimum jurisdiction of this court, as will be proven at time of trial. ON THE FIFTH CAUSE OF ACTION Plaintiffs seeks a declaratory judgment with respect to the rights and duties of the parties under the Loan, Deeds of Trust, and Notice of Default recorded against the Property, as well as who, if any one, has the power to initiate any foreclosure proceedings. ON ALL CAUSES OF ACTION 1. Pursuant to Code Civ. Proc., Section 527(c), Plaintiffs request that this Court issue a Temporary Restraining Order preserving the status quo, by enjoining Defendants from foreclosing against the Property, and protecting Plaintiffs from suffering irreparable injury pending a hearing on Plaintiffs motion for a Preliminary Injunction. In addition, Plaintiffs request that this Court Order Defendants to Show Cause why a Preliminary Injunction should not issue, enjoining and restraining Defendants from foreclosing against the Property, until a final determination on the merits of the action. 2. For costs of suit incurred herein; 3. For recovery of attorneys fees; 4. proper. Law Office of Brian Ballo Dated: May ____, 2011 ____________________________ Brian P. Ballo, Esq. -15COMPLAINT FOR DAMAGES, INJUNCTION, DECLARATORY RELIEF (Hochman v. GMAC, et. al.)

For such other and further relief as the Court may deem just and

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the Bruce

Attorney for Plaintiffs Bruce Hochman, individually, and Bruce Hochman, Trustee of Hochman 2010 Trust

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VERIFICATION TO COMPLAINT I, Bruce Hochman, an individual, am a Plaintiff in the above-entitled action, and I am also Trustee of the Bruce Hochman 2010 Trust, also a Plaintiff in the above-entitled action. On behalf of myself and the Bruce Hochman 2010 Trust, I have read the foregoing Verified Complaint against GMAC Mortgage, LLC, etc., and know the contents thereof. The same is true of my own knowledge, except as to those matters which are therein alleged on information and belief, and as to those matters, I believe them to be true. I declare under penalty of perjury under the laws of the state of California that the foregoing is true and correct.

This Verification was executed at San Juan Capistrano, California on May ___, 2011.

___________________________ Bruce Hochman, individually

Bruce Hochman 2010 Trust ___________________________ by Bruce Hochman, Trustee

-17COMPLAINT FOR DAMAGES, INJUNCTION, DECLARATORY RELIEF (Hochman v. GMAC, et. al.)