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James Alan Bush 1211 East Santa Clara Avenue #4 San Jose, CA 95116 (408) 217-8282 Plaintiff in pro per

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 I. CONSPIRACY TO DEPRIVE PLAINTIFF OF PROPERTY AN ALLEGATION OF CONSPIRACY TO COMMIT A CIVIL WRONG IS SUFFICIENT TO STATE A CAUSE OF ACTION AGAINST ALL OF THE ALLEGED CONSPIRATORS IF THE ALLEGATIONS IN THE COMPLAINT SHOW THAT EACH OF THEM PARTICIPATED IN THE CONSPIRACY AND THAT ONE OR MORE OF THEM COMMITTED A CIVIL WRONG PURSUANT TO THE CONSPIRACY CAUSING PLAINTIFF ACTUAL DAMAGES. COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 1 ) ) Plaintiff, ) ) v. ) ) ) ) Sunnyvale Department of Public ) Safety, et al., ) ) Defendants. ) __________________________________ ) James Alan Bush, COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF FOR DEPRIVATION OF PROPERTY UNDER COLOR OF LAW [Title 42 U.S.C.S. § 1983] [U.S. Const., amend. XIV, § 1, cl. 1., Cal. Const., art. I, § 7(a)] SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA CIVIL DIVISION

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A.

Conditions for Liability for Conspiracy. Civil liability for conspiracy to commit a civil wrong exists where a conspiracy has been formed and operated to accomplish by concerted action a criminal or unlawful purpose or a lawful purpose by criminal or unlawful means which results in actual damage (Taylor v. S & M Lamp Co. (1961) 190 Cal. App. 2d 700, 706, 12 Cal. Rptr. 323; Clark v. Lesher (1951) 106 Cal. App. 2d 403, 409, 235 P.2d 71].

B.

Liability of Co-conspirators. In an action for damages arising from a civil conspiracy, the major significance of the conspiracy lies in the fact that it renders each participant in the wrongful act responsible as a joint tortfeasor for all damages ensuing from the wrong, irrespective of whether or not he/she was a direct actor and regardless of the degree of his/ her activity (Unruh v. Truck Ins. Exch. (1972) 7 Cal. 3d 616, 631, 102 Cal. Rptr. 815, 498 P.2d 1063]

C.

Act of One During Conspiracy Is Act of All. The act of one conspirators during a conspiracy is the act of all of the conspirator if done in furtherance of the conspiracy (de Vries v. Brumback (1960) 53 Cal. 2d 643, 648, 2 Cal. Rptr. 764, 349 P.2d 532).

D.

Liability of One Who Committed No Overt Act and Gained No Benefit. Since the act of one during a conspiracy is the act of all if done in furtherance thereof, defendants who are charged with participation in a conspiracy may be held liable who in fact committed no overt act whatsoever and gained no benefit therefrom (Wetherton v. Growers Farm Labor Ass’n (1969) 275

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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 II. TEXT A.

Cal. App. 2d 168, 176, 79 Cal. Rptr. 543, disapproved on other grounds, Applied Equip. Corp. v. Utton Saudi Arabia Ltd. (1994) 7 Cal. 4th 503, 52 1 n. 10, 28 Cal. Rptr. 2d 475, 869 P.2d 454). E. Proposition 81 Did Not Change Rule of Joint and Several Liability Among Conspirators. Despite the passage of the Fair Responsibility Act of 1986 (Proposition § 1), joint and several liability for noneconomic damages is still the rule in a case of civil conspiracy, because liability in a case of conspiracy is not allocated based on comparative fault, but is premised on the concerted action of all tortfeasors acting as one in causing a single indivisible injury (Kesmodel v. Rand (2004) 1 19 Cal. App. 4th 1 128, 1 143, 15 Cal. Rptr. 3d 1 18; see Civ. Code 8 1431.2).

Acts which would be lawful if done by one are often illegal if done in pursuance of a conspiracy. Carew v. Rutherford, 106 Mass. 10, 8 Am. Rep. 287; Sherry v. Perkins, 147 Mass. 214, 17 N. E. 307; Vegelahn v. Guntner, 167 Mass. 97, 35 L. R. A. 722, 44 N. E. 1077; Cooke, Trade & Labor Combinations, § 4, p. 14, note 2; Temperton v. Russell, 62 L. J. Q. B. N. S. 412; Doremus v. Hennessy, 2 Ill. App. 391; Barr v. Essex Trades Council, 53 N. J. Eq. 101, 30 Atl. 881; State v. Glidden, 55 Conn. 46, 8 Atl. 890.

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INTERFERENCE WITH CONTRACTUAL RELATIONSHIP Supreme Court held that interference with a contractual relationship by lawful but unjustified means is actionable [Imperial Ice Co. v. Rossier (1941) 18 Cal. 2d 33, 35, 37-39, 112 P.2d 631]. Inducement of breach of contract is merely one type of broader tort of interference with prospective economic advantage [Environmental Planning & Info. Council v. Superior Court (1984) 36 Cal. 3d 188, 193, 203 Cal. Rptr. 127, 680 P.2d 1086; Buckaloo v. Johnson (1975) 14 Cal. 3d 815, 823, 122 Cal. Rptr. 745, 537 P.2d 865]. Interference with income, obstruction of mail, interception of communications (where intent is to prevent or hinder ability to pay bills) actionable under § 1983 per case law. The right of a party not to have a state impair its obligations of contract is protected by U.S. Const., art. I, § 10, cl. 1 [So. Cal. Gas Co. v. City of Santa Ana (9th Cir. 2003) 336 F.3d 885, 887]. Intentional interference by third person with contractual relationship, either by unlawful means or by means otherwise lawful if there is lack of sufficient justification, is actionable in tort. [Herron v. State Farm Mut. Ins. Co. (1961) 56 Cal. 2d 202, 205, 14 Cal. Rptr. 294, 363 P.2d 310; Wise v. Southern Pac. Co. (1963) 223 Cal. App. 2d 50, 65, 35 Cal. Rptr. 652] Action arising from conspiracy to interfere with real estate broker’s contractual relationship was stated by general allegation of formation of conspiracy, defendant’s wrongful acts, and damage to plaintiff by breach. [Allen v. Powell (1967) 248 Cal. App. 2d 502, 508-509, 56 Cal. Rptr. 715] COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 4

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 B. I.

CASE LAW DEFENDANTS DANIEL CORTEZ AND LAURENE REBER ARE LIABLE FOR THEIR INTENTIONAL INTERFERENCE WITH PLAINTIFF’S CONTRACTUAL RELATIONSHIP WITH DEFENDANT ADVANTAGE HOMES BECAUSE PLAINTIFF HAD A VALID AND EXISTING CONTRACT, DEFENDANTS KNEW OF THIS CONTRACT AND COMMITTED INTENTIONAL ACTS DESIGNED TO INDUCE A DISRUPTION OF THE CONTRACT WITH, OR A BREACH OF CONTRACT BY, DEFENDANT ADVANTAGE HOMES, AND THEIR ACTS DID CAUSE ACTUAL DISRUPTION OF THE CONTRACT, RESULTING IN DAMAGES TO PLAINTIFF. A. Elements of Intentional Interference With Contractual Relationship. To plead an actionable wrong for interference with a contractual relationship, the plaintiff must allege that (1) he had a valid and existing contract with a third party; (2) defendant had knowledge of this contract; (3) defendant committed intentional and unjustified acts designed to interfere with or disrupt the contract; (4) actual interference with or disruption of the relationship occurred; and (5) damages were suffered as a result (Quelimane Co. v. Stewart Title Guar. Co. (1998) 19 Cal. 4th 26, 55, 77 Cal. Rptr. 2d 709, 960 P.2d 513; Savage v. Pacific Gas & Elec. Co. (1993) 21 Cal. App. 4th 434, 448, 26 Cal. Rptr. 2d 305).

Intent May Be Inferred From Conduct Substantially Certain to Interfere With Relationship. A party’s intent to interfere with a contract may be established by inference as well as by direct proof and may be inferred from conduct that is substantially certain to interfere with the relationship (Savage v. Pacific Gas

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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 C.

& Elec. Co. (1993) 21 Cal. App. 4th 434, 449, 26 Cal. Rptr. 2d 305). Wrongfulness Independent of Interference With Contract is Not Element of Intentional Interference With Contractual Relationship. Because intentionally inducing or causing a breach of an existing contract is wrongful in and of itself, plaintiff in an action for intentional interference with an existing contractual relationship is not required to plead or prove that defendant’s conduct is wrongful apart from the interference with the contract itself (Quelimane Co. v. Stewart Title Guar. Co. (1998) 19 Cal. 4th 26, 55-56, 77 Cal. Rptr. 2d 709, 960 P.2d 513). II. DEFENDANTS ARE LIABLE FOR THEIR INTENTIONAL INTERFERENCE WITH PLAINTIFF’S CONTRACTUAL RELATIONSHIP WITH DEFENDANTS STEVE DOE AND ADVANTAGE HOMES, NOTWITHSTANDING THE FACT THAT THE DISRUPTED CONTRACT IS TERMINABLE AT WILL. A. Interference With Terminable-at-Will Contract Actionable. An action may lie for interference when defendant has unjustifiably interfered with a terminable-at-will contract to which plaintiff is a party (Speegle v. Board of Fire Underwriters (1946) 29 Cal. 2d 34, 39-40, 172 P.2d 867; Savage v. Pacific Gas & Elec. Co. (1993) 21 Cal. App. 4th 434, 448, 26 Cal. Rptr. 2d 305; Kozlowsky v. Westminster Nat’l Bank (1970) 6 Cal. App. 3d 593, 598, 86 Cal. Rptr. 52). III. THE FACT THAT PLAINTIFF HAS OBTAINED A DECREE OF SPECIFIC PERFORMANCE IN HIS CONTRACT ACTION AGAINST DEFENDANTS STEVE DOE AND ADVANTAGE HOMES DOES NOT PRECLUDE HIM FROM RECOVERING DAMAGES COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 6

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 V.

FOR DEFENDANTS’ INTENTIONAL INTERFERENCE WITH THE CONTRACT BETWEEN PLAINTIFF AND DEFENDANTS STEVE DOE AND ADVANTAGE HOMES A. Specific Performance Not a Bar to Damages. When a third party has interfered with the performance of a contract, a plaintiff may bring an action for damages against the interferor, regardless of the availability of specific performance against the breaching contractual party (Owens v. Palos Verdes Monaco (1983) 142 Cal. App. 3d 885, 872, 191 Cal. Rptr. 381; Duff v. Engelberg (1965) 237 Cal. App. 2d 505, 507-509, 47 Cal. Rptr. 114). IV. PLAINTIFF IS ENTITLED TO AN AWARD OF PUNITIVE DAMAGES AGAINST DEFENDANTS DANIEL CORTEZ AND LAURENE WEBER BECAUSE DEFENDANTS’ INTENTIONAL INTERFERENCE WITH PLAINTIFF’S ECONOMIC RELATIONSHIP WITH DEFENDANT ADVANTAGE HOMES WAS MALICIOUS. A. Punitive Damages May Be Awarded for Malicious Intentional Interference. Punitive damages are available in an action for intentional interference with economic relations when the plaintiff demonstrates that the acts of the defendant were malicious (Duff v. Engelberg (1965) 237 Cal. App. 2d 505, 509, 47 Cal. Rptr. 114; Guillory v. Godfrey (1955) 134 Cal. App. 2d 628, 633, 286 P.2d 474). PLAINTIFF HAS ALLEGED FACTS SUFFICIENT TO STATE A CAUSE OF ACTION FOR CONSPIRACY TO INTERFERE WITH ECONOMIC RELATIONS BETWEEN PLAINTIFF AND DEFENDANT ADVANTAGE HOMES BECAUSE PLAINTIFF HAS ALLEGED THE FORMATION AND OPERATION OF A CONSPIRACY, ACTS DONE PURSUANT THERETO, AND DAMAGES ARISING THEREFROM. COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 7

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A.

Elements of Conspiracy to Interfere. To plead an actionable wrong for conspiracy to interfere with economic relations, the plaintiff must allege (1) the formation and operation of a conspiracy, (2) wrongful acts done pursuant to the conspiracy, and (3) damages arising from the conspiracy (Olivet v. Frischling (1980) 104 Cal. App. 3d 831, 837, 164 Cal. Rptr. 87; Wise v. Southern Pac. Co. (1963) 223 Cal. App. 2d 50, 64, 35 Cal. Rptr. 652).

VI. DEFENDANTS SYLVANA HEALY, STEVE DOE AND TODD SU ARE LIABLE TO PLAINTIFF FOR THEIR NEGLIGENT PERFORMANCE OF THEIR CONTRACT WITH PLAINTIFF BECAUSE THIS PERFORMANCE CREATED A FORESEEABLE AND UNREASONABLE RISK OF ECONOMIC HARM TO PLAINTIFF AND CAUSED DAMAGE TO PLAINTIFF. A. Criteria for Determining Duty of Care. The existence of a duty of care in an action for negligent interference with economic relations depends on six criteria: (1) the extent to which the transaction was intended to affect the plaintiff, (2) the foreseeability of harm to the plaintiff, (3) the degree of certainty that the plaintiff suffered injury, (4) the closeness of the connection between the defendant’s conduct and the injury suffered, (5) the moral blame attached to the defendant’s conduct and (6) the policy of preventing future harm (J’Aire Corp. v. Gregory (1979) 24 Cal. 3d 799, 804, 157 Cal. Rptr. 407, 598 P.2d 60). VII. UNLESS THE INTERFERING CONDUCT IS SHOWN TO BE PRIVILEGED OR JUSTIFIED, AN OWNER, OFFICER, OR DIRECTOR OF A COMPANY MAY BE COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 8

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LIABLE FOR INTERFERING WITH A CONTRACT TO WHICH THE COMPANY WAS A PARTY. A. Owner, Officer, or Director of Company Not Shielded From Liability. Unless the defendants can show that the conduct was privileged or justified, a claim for interference with an economic relationship founded in contract may be brought against an owner, officer, or director of a company whose contract was the subject of the litigation [Woods v. Fox Broad. Sub., Inc. (2005) 129 Cal. App. 4th 344, 356, 28 Cal. Rptr. 463)]. B. Tort Liability May Be Imposed Under Alter Ego Doctrine. When a defendant’s conduct is not otherwise privileged, the alter ego doctrine cannot be used as a shield to prevent imposition of tort liability for intentional interference with an economic relationship on an owner, director, or manager who caused a corporation to breach its contract [Shapoff v. Scull (1990) 222 Cal. App. 3d 1457, 1471-1473, 272 Cal. Rptr. 480]. C. Plaintiff’s Election. Although it would be inconsistent to impose liability on an alter ego for both breach of the corporation’s contract and for the tort of interference, after a judgment has been rendered on both claims, the plaintiff is entitled to elect whether to proceed on the contract claim or on the tort claim [Shapoff v. Scull (1990) 222 Cal. App. 3d 1457, 1462, 1473, 272 Cal. Rptr. 480]. IIX. DEFENDANT IS LIABLE TO PLAINTIFF FOR HIS/HER NEGLIGENT PERFORMANCE OF HIS/HER CONTRACT WITH PLAINTIFF BECAUSE THIS PERFORMANCE CREATED COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 9

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A FORESEEABLE AND UNREASONABLE RISK OF ECONOMIC HARM TO PLAINTIFF AND CAUSED DAMAGED TO PLAINTIFF]. A. Criteria for Determining Duty of Care. The existence of a duty of care in an action for negligent interference with economic relations depends on six criteria: (1) the extent to which the transaction was intended to affect the plaintiff, (2) the foreseeability of harm to the plaintiff, (3) the degree of certainty that the plaintiff suffered injury, (4) the closeness of the connection between the defendant’s conduct and the injury suffered, (5) the moral blame attached to the defendant’s conduct and (6) the policy of preventing future harm [J’Aire Corp. v. Gregory (1979) 24 Cal. 3d 799, 804, 157 Cal. Rptr. 407, 598 P.2d 60]. B. Negligent Performance of Contract as Basis for Action. When the negligent performance of a contract creates an unreasonable and foreseeable risk of interference with a third party’s economic relations and the negligent performance does in fact proximately cause injury to the third party’s economic relations, the negligent party may be liable to the third party in tort [J’Aire Corp. v. Gregory (1979) 24 Cal. 3d 799, 804808, 157 Cal. Rptr. 407, 598 P.2d 60; Chameleon Eng’g Corp. v. Air Dynamics Inc. (1980) 101 Cal. App. 3d 418, 420-423, 161 Cal. Rptr. 463].

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ABUSE OF PROCESS Attorney who assisted a party in carrying out the misuse of legal process [Barquis v. Merchants Collection Ass’n (1972) 7 C3d 94, 97 n1, 101 CR 745]. An attorney who actively participated with a client in misusing the system to promote a client’s wrongful objective might even be named as a co-conspirator [Weisenburg v. Molina (1976) 58 CA3d 478, 489, 129 CR 813; Anno, 97 ALR3d 688 (1980) (attorney liability for abuse of process)]. Compensatory damages. Mental suffering [Spellens v. Spellens (1957) 49 C2d 210, 233, 317 P2d 613, 627] and for loss of the use and enjoyment of property seized [White Lighting Co. v. Wolfson (1968) 68 C2d 336, 347, 66 CR 697, 703; Christensen v. Younger (1975) 47 CA3d 613, 618, 120 CR 923 (one who misuses legal process is liable

14 for “pecuniary loss caused thereby”)]. 15 16 17 18 19 20 21 22 23 24 25 26 • • Proving malice. Inferences to be drawn from evidence as lying in sound discretion of trial judge acting as trier of fact; intention with which party did act as permissibly inferred from evidence of party’s subsequent conduct [Tranchina v. Arcinas (1947) 78 Cal. App. 2d 522, 524, 178 P.2d 65]. Supreme Court held that the tort of intentional interference with prospective economic advantage applies when the defendant interferes with a business or economic relationship not subject to a legally binding agreement; but, nonetheless, containing a probable future economic benefit to the plaintiff [Buckaloo v. Johnson (1975) 14 Cal. 3d 815, 822-823, 827, 122 Cal. Rptr. 745, 537 P.2d 865]. COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 11

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 7. 6. 5. 4. 1. 2. 3.

CONSTRUCTIVE FRAUD AND BREACH OF FIDUCIARY DUTY Requirements for action for constructive fraud. [Civ. Code § 157] Horning v. Shilberg (2005) 130 CA4th 197, 203, 29 CR3d 717, 723. Broker’s relationship with principal is fiduciary, and he must disclose all facts within his knowledge that are cogent to sale and which might affect principal’s willingness to sell. [Earle v. Lambert, 23 Cal. Rptr. 79, 205 Cal. App. 2d 452] With broker status comes fiduciary duties, which include obligation of acting with utmost good faith and honesty toward seller, and preclude broker from assuming a position adverse to seller without seller’s consent; there also flows a duty to disclose to seller all facts within broker’s knowledge which are material to the sale. [Gray v. Fox, 198 Cal.Rptr. 720, 151 Cal.App.3d 482] Broker’s duty of good faith precludes broker from assuming a position adverse to that of his principal unless the principal consents and it places upon broker the legal obligation to disclose to his principle all facts within his knowledge which are material to matter in connection with which he is employed. [Timmsen v. Forest E. Olsen, Inc., 86 Cal. Rptr. 359, 6 Cal. App. 3d 860] Under California law, real estate broker has fiduciary duty to investigate material facts of transaction, and cannot accept information received from others as being true, and transmit it to principal, without either verifying information or disclosing to principal that information has not been verified. [In re King Street Investments, Inc., 219 B.R. 848] Presumption of negligence from violation of statute, ordinance, or PAGE 12

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regulation. Evid. Code §§ 601, 606, 660, 669. Broker who violates his duty to use reasonable care, skill and diligence will be liable to principal for any losses which principal sustains as result of broker’s negligence or breach of duty. [Timmsen v. Forest E. Olsen, Inc., 86 Cal. Rptr. 359, 6 Cal. App. 3d 860] Breach of real estate agent’s fiduciary duty to his or her client may constitute negligence or fraud, depending on the circumstances of case. [Assilzadeh v. California Federal Bank, 98 Cal. Rptr. 2d 176, 82 Cal. App. 4th 399] 10. A real estate agent, as a fiduciary, is liable to his principal for constructive fraud even though his conduct is not actually fraudulent. Assilzadeh, supra. 11. It is unlawful to cause any person to suffer any loss by reason of any fraud or deceit practiced on them in the sale of a manufactured home. [Health & Safety Code § 18060.5(c)] 12. Fail to exercise reasonable supervision over the activities of employees who negotiate or promote the sale of manufactured homes. [Health & Safety Code § 18060.5(h)]

UNLAWFUL FORECLOSURE The California Trustee’s Sale. It is common practice in California for a debtor, particularly the purchaser of real property, to secure his obligation by a deed of trust under which the property purchased is given as security for payment of the debt. The deed of trust includes a power of sale which empowers the trustee to sell the property in the COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 13

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event of default by the trustor (the debtor) and apply the proceeds of the sale to the obligation. The trustee acts on the instructions of the beneficiary of the deed of trust (the creditor), and the relationship between them is not a fiduciary one. Legal title to the property rests in the trustee, the deed of trust is recorded, and no court action is required for the trustee to convey valid title to a third party The conduct of a sale under the power in a deed of trust is regulated in California by Civil Code §§ 2924-2924h. If the debtor argues that the sale was wrongful and in violation of the underlying contract, he may seek the intervention of the courts either to restrain the sale or have it set aside after it is held. 1. Standing to challenge sale. Generally, only parties with an interest in the secured loan or in the real property security itself have standing to challenge or attempt to set aside a nonjudcial foreclosure sale. [Royal Thrift & Loan Co. v. County Escrow, Inc. (2004) 123 CA4th 24, 33, 20 CR3d 37, 44] 2. Setting aside a trustee’s sale. To set aside a trustee’s sale requires substantial evidence of a failure to comply with the procedural requirements to the challenging party’s prejudice. [6 Angels, Inc. v. Stuart-Wright Mortgage, Inc., supra, 85 CA4th at 1284, 102 CR2d at 714; Knapp v. Doherty (2004) 123 CA4th 76, 86, 20 CR3d 1, 8, fn. 4; see Residential Capital, LLC v. Cal-Western Reconveyance Corp. (2003) 108 CA4th 807, 822, 134 CR2d 162, 173 (only a properly conducted foreclosure sale, free of substantial defects in procedure, creates rights in the high bidder at the sale)] 3. Fraud or deceit. Fraud or deceit in the foreclosure process is PAGE 14

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likewise ground to set aside the sale. [South Bay Bldg. Enterprises, Inc. v. Riviera Lend-Lease, Inc. (1999) 72 CA4th 1111, 1121, 85 CR2d 647, 652; Lo v. Jensen (2001) 88 CA4th 1093, 1095-1096, 106 CR2d 443, 444-445 (two competitive bidders joined together in violation of Civ. Code § 2924h(g) and in restraint of competition, resulting in artificially low price). Additionally, the trustee’s or beneficiary’s fraudulent conduct during foreclosure proceedings can give rise to tort damages. [South Bay Bldg. Enterprises, Inc. v. Riviera LendLease, Inc., supra, 72 CA4th at 1121-1122, 85 CR2d at 652 (trustee and senior creditor fraudulently conspired to prevent others from bidding in order to buy property at low price, thereby causing junior lienholder to lose its security interest); see also CC § 2924h(g) (criminalizing acts operating as fraud or deceit on any beneficiary or junior lienholder)]. Mistake. A foreclosure sale may also be set aside where there has been a mistake of such magnitude “that to allow it to stand would be inequitable to purchaser and parties.” [see Bank of America Nat’l Trust & Sav. Ass’n v. Reidy (1940) 15 C2d 243, 248,101 P2d 77, 80] Presumption of negligence from violation of statute. Negligence is inferred where attorney’s fault is clear (expert testimony not required) and prevailing standard and requisite skill are matters of general knowledge. [Evid. Code §§ 601, 606, 660, 669] Inadequate sale price coupled with procedural irregularity. An inadequate sale price coupled with a procedural irregularity may warrant a set-aside of a completed foreclosure sale just as it may be a basis for aborting a sale not yet completed. [Knapp v. Doherty COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 15

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(2004) 123 CA4th 76, 94-97, 20 CR3d 1, 14-17 (inadequate price coupled with premature notice of trustee’s sale, in effect giving too much notice of sale, not ground for set-aside)] Statutorily-deficient notice. A completed trustee’s sale based on a statutorily deficient notice of default and/or notice of sale is invalid and may be set aside. [Miller v. Cote (1982) 127 CA3d 888, 894, 179 CR 753, 756-757 (notice of default premature and thus specified default was no default); System Invest. Corp. v. Union Bank (1971) 21 CA3d 137, 152-153, 98 CR 735, 744-745 (failure to state in notice of default nature of payment due—whether interest, principal or otherwise); compare Knapp v. Doherty (2004) 123 CA4th 76, 97-99, 20 CR3d 1, 17-19 (where no evidence presented that notice of default did not properly state nature or amount of default, inaccuracy regarding default date immaterial and not basis for set-aside)] Recordation of Notice of Default. A nonjudicial foreclosure is commenced by the trustee recording a “notice of default” in the office of the county recorder for each county where the secured real property (or any part thereof) is located. [Civ. Code § 2924(a)(1) (trustee’s power of shall be exercised until trustee first records notice of default); see also Knapp v. Doherty (2004) 123 CA4th 76, 99, 20 CR3d 1, 18 (one of the signal purposes of the notice of default is to advise the trustor of the amount required to cure the default)]. Copies of notice mailed to trustor and certain interested parties. The trustee must also mail a copy of the recorded notice of default to the trustor (at his or her “last known address,” if different COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 16

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from that specified in the deed of trust), parties holding an interest of record in the secured property who would be affected by the foreclosure, and all parties who have duly recorded a request for copy of the notice and notice of sale (pursuant to Civ. Code § 2924b(a)). [Civ. Code § 2924b(b)(1),(c) & (e)] 10. Notice of trustee’s sale. If the trustor does not “reinstate” the secured obligation (i.e., cure the default) within three months after the date of recordation of the notice of default, the trustee may proceed to give a “notice of sale.” [CC § 2924(a)(2), (3) & 2924f; Knapp v. Doherty, supra, 123 CA4th at 90-92, 20 CR3d at 11-13 (trustee must wait 3 calendar months before proceeding with sale; but, sale not invalidated by slightly premature notice of sale that was serviced on borrowers more than requisite 20 days before initial sale date] 11. To whom notice given; 20-day presale deadline. The trustee’s notice of sale must be sent by registered or certified mail, postage prepaid, at least 20 days before the date of sale, to the trustor, all other parties to whom the notice of default was required to be given, plus any state taxing agency that has recorded a notice of tax lien on the property. [Civ. Code § 2924b(b)(2), (c)(3) & (e)] 12. Posting, publication and recordation also required. In addition to the requisite mailed notice, written notice of the sale must be: (i) posted (at least 20 days before the date of sale) in a public place in the city (or judicial district) where the property is to be sold and in a “conspicuous place” on the property to be sold; (ii) published once a week for three consecutive calendar weeks (the COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 17

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first publication to be at least 20 days before the date of sale) in a newspaper of general circulation in the city (or judicial district or county) where the property is located; and (iii) recorded with the county recorder of the county where the property (or any part thereof) is located at least 14 days before the date of sale. [Civ. Code § 2924f(b)(1)] 13. Trustor’s interim right of reinstatement; five-day presale deadline. Notwithstanding the trustee’s recordation of a notice of default and notice of sale, the trustor has the right to reinstate the secured obligation by paying all amounts in default (plus the trustee’s costs and expenses, see CC § 2924c(c) & (d)) no later than five business days before the date of sale set forth in the initial recorded notice of sale. [CC § 2924c(e) (nothing contained herein shall give rise to a right of reinstatement during the period of five business days prior to the date of sale); see Hicks v. E.T. Legg & Assocs. (2001) 89 CA4th 496, 504, 108 CR2d 10, 16] Thus, even though the lender has accelerated the loan and declared all sums due by the recorded notice of default, the statutory right of reinstatement enables the trustor to avoid foreclosure by paying only the nonaccelerated amounts actually in default (plus trustee’s fees). 14. Distribution of sale proceeds. Proceeds from the trustee’s foreclosure sale are applied (i) first, to pay the trustee’s fees and expenses in exercising the power of sale and conducting the sale; (ii) next, to satisfy the debt to the beneficiary (lender); (iii) next, to the payment of junior creditors in the order of COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 18

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their priority; and (iv) the balance, if any, to the trustor (or its successor in interest). [Civ. Code § 2924k(a); Caito v. United Calif. Bank (1978) 20 C3d 694, 701, 144 CR 751, 754; South Bay Bldf. Enterprises, Inc. v. Riviera Lend-Lease, Inc. (1999) 72 CA4th 1111, 1118, 85 CR2d 647, 651, fn.6] 15. Irregularity in postponement procedure. A trustee’s sale may be avoided for noncompliance with the statutory sale postponement requirements [Residential Capital, LLC v. Cal-Western Reconveyance Corp. (2003) 108 CA4th 807, 823, 134 CR2d 162, 174]; however, the postponement irregularity must arise from the foreclosure proceeding itself, e.g., in connection with any statutorily required notices or the bidding process at the sale. [Nguyen v. Calhoun (2003) 105 CA4th 428, 445, 129 CR2d 436, 450 (alleged nonreceipt of fax regarding sale postponment did not constitute irregularity in foreclosure proceeding itself)] 16. Breach of lender’s promise to postpone sale. A trusteee’s sale may be aborted where the foreclosure sale is conducted in violation of the lender’s oral promise to ponstpone it, so long as the promise is supported by “good consideration.” [Raedeke v. Gibraltar Sav. & Loan Ass’n (1974) 10 C3d 665, 673, 111 CR 693, 697-698 (borrowers had cognizable cause of action to avoid sale where they procured responsible prospective purchaser in reliance on lender’s promise to postpone sale); compare Nguyen v. Calhoun, supra, 105 CA4th at 444-445, 129 CR2d at 450 (borrowers had no basis for avoiding sale where they failed to notify lender in timely and accurate manner that prospective purchaser had funding to pay off their defaulted COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 19

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loan)] 17. Liability of attorney to party from whom he receives no compensation. The fact that attorney is receiving all his compensation from one party to a transaction does not prevent the relationship of attorney and client from existing with respect to the other; an attorney who voluntarily undertakes to record for the mortgagee a mortgage executed by the attorney’s client is acting for the mortgagee as well, and would be liable to the latter if he negligently delayed the recording and another encumbrance slipped in ahead of it [Lawall v. Groman, 180 Pa 532, 37 A 98]. To the effect that reliance need not be shown to establish proximate cause [Ishmael v. Millington, 241 Cal. App. 2d 520, 50 Cal. Rptr. 592]. 18. To be actionable, the attorney’s negligence need not be the sole cause of the client’s loss [Ishmael v. Millington, 241 Cal. App. 2d 520, 50 Cal. Rptr. 592]; it is sufficient if the attorney’s negligence is a cause in fact [Starr v. Mooslin, 14 Cal. App. 3d 988, 92 Cal. Rptr. 583].

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CALIFORNIA CIVIL CODE SECTION 2923.5 (a) (1) A mortgagee, trustee, beneficiary, or authorized agent 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) 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. (b) A notice of default filed pursuant to Section 2924 shall include a declaration from the mortgagee, beneficiary, or authorized agent that it has contacted the borrower, tried with due diligence to contact the borrower as required by this section, or the borrower has surrendered the property to the mortgagee, trustee, beneficiary, COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 21

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or authorized agent. (c) If a mortgagee, trustee, beneficiary, or authorized agent had already filed the notice of default prior to the enactment of this section and did not subsequently file a notice of rescission, then the mortgagee, trustee, beneficiary, or authorized agent shall, as part of the notice of sale filed pursuant to Section 2924f, include a declaration that either: (1) States that the borrower was contacted to assess the borrower’s financial situation and to explore options for the borrower to avoid foreclosure. (2) Lists the efforts made, if any, to contact the borrower in the event no contact was made. (d) A mortgagee’s, beneficiary’s, or authorized agent’s loss mitigation personnel may participate by telephone during any contact required by this section. (e) For purposes of this section, a “borrower” shall include a mortgagor or trustor. (f) A borrower may designate a HUD-certified housing counseling agency, attorney, or other advisor to discuss with the mortgagee, beneficiary, or authorized agent, on the borrower’s behalf, options for the borrower to avoid foreclosure. That contact made at the direction of the borrower shall satisfy the contact requirements of paragraph (2) of subdivision (a). Any loan modification or workout plan offered at the meeting by the mortgagee, beneficiary, or authorized agent is subject to approval by the borrower. (g) A notice of default may be filed pursuant to Section 2924 when a COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 22

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mortgagee, beneficiary, or authorized agent has not contacted a borrower as required by paragraph (2) of subdivision (a) provided that the failure to contact the borrower occurred despite the due diligence of the mortgagee, beneficiary, or authorized agent. For purposes of this section, “due diligence” shall require and mean all of the following: (1) 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 HUDcertified housing counseling agency. (2) (A) 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. (B) 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. (C) A mortgagee, beneficiary, or authorized agent satisfies the telephone contact requirements of this paragraph if it determines, after attempting contact pursuant to this paragraph, that the borrower’s primary telephone number and secondary telephone number or numbers on file, if any, have been disconnected. (3) If the borrower does not respond within two weeks after the COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 23

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telephone call requirements of paragraph (2) have been satisfied, the mortgagee, beneficiary, or authorized agent shall then send a certified letter, with return receipt requested. (4) 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. (5) The mortgagee, beneficiary, or authorized agent has posted a prominent link on the homepage of its Internet Web site, if any, to the following information: (A) Options that may be available to borrowers who are unable to afford their mortgage payments and who wish to avoid foreclosure, and instructions to borrowers advising them on steps to take to explore those options. (B) A list of financial documents borrowers should collect and be prepared to present to the mortgagee, beneficiary, or authorized agent when discussing options for avoiding foreclosure. (C) A toll-free telephone number for borrowers who wish to discuss options for avoiding foreclosure with their mortgagee, beneficiary, or authorized agent. (D) The toll-free telephone number made available by HUD to find a HUDcertified housing counseling agency. (h) Subdivisions (a), (c), and (g) shall not apply if any of the following occurs: (1) The borrower has surrendered the property as evidenced by either a letter confirming the surrender or delivery of the keys to the COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 24

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property to the mortgagee, trustee, beneficiary, or authorized agent. (2) The borrower has contracted with an organization, person, or entity whose primary business is advising people who have decided to leave their homes on how to extend the foreclosure process and avoid their contractual obligations to mortgagees or beneficiaries. (3) The borrower has filed for bankruptcy, and the proceedings have not been finalized. (i) This section shall apply only to loans made from January 1, 2003, to December 31, 2007, inclusive, that are secured by residential real property and are for owner-occupied residences. For purposes of this subdivision, “owner-occupied” means that the residence is the principal residence of the borrower. (j) This section shall remain in effect only until January 1, 2013, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2013, deletes or extends that date.

CALIFORNIA CIVIL CODE SECTION 2923.6 (a) The Legislature finds and declares that any duty servicers may have to maximize net present value under their pooling and servicing agreements is owed to all parties in a loan pool, not to any particular parties, and that a servicer acts in the best interests of all parties if it agrees to or implements a loan modification or workout plan for which both of the following apply: (1) The loan is in payment default, or payment default is reasonably foreseeable. (2) Anticipated recovery under the loan modification or workout plan COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 25

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exceeds the anticipated recovery through foreclosure on a net present value basis. (b) It is the intent of the Legislature that the mortgagee, beneficiary, or authorized agent offer the borrower a loan modification or workout plan if such a modification or plan is consistent with its contractual or other authority. (c) This section shall remain in effect only until January 1, 2013, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2013, deletes or extends that date.

CALIFORNIA CIVIL CODE SECTION 2924 (a) Every transfer of an interest in property, other than in trust, made only as a security for the performance of another act, is to be deemed a mortgage, except when in the case of personal property it is accompanied by actual change of possession, in which case it is to be deemed a pledge. Where, by a mortgage created after July 27, 1917, of any estate in real property, other than an estate at will or for years, less than two, or in any transfer in trust made after July 27, 1917, of a like estate to secure the performance of an obligation, a power of sale is conferred upon the mortgagee, trustee, or any other person, to be exercised after a breach of the obligation for which that mortgage or transfer is a security, the power shall not be exercised except where the mortgage or transfer is made pursuant to an order, judgment, or decree of a court of record, or to secure the payment of bonds or other evidences of indebtedness authorized or permitted to be issued by COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 26

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the Commissioner of Corporations, or is made by a public utility subject to the provisions of the Public Utilities Act, until all of the following apply: (1) The trustee, mortgagee, or beneficiary, or any of their authorized agents shall first file for record, in the office of the recorder of each county wherein the mortgaged or trust property or some part or parcel thereof is situated, a notice of default. That notice of default shall include all of the following: (A) A statement identifying the mortgage or deed of trust by stating the name or names of the trustor or trustors and giving the book and page, or instrument number, if applicable, where the mortgage or deed of trust is recorded or a description of the mortgaged or trust property. (B) A statement that a breach of the obligation for which the mortgage or transfer in trust is security has occurred. (C) A statement setting forth the nature of each breach actually known to the beneficiary and of his or her election to sell or cause to be sold the property to satisfy that obligation and any other obligation secured by the deed of trust or mortgage that is in default. (D) If the default is curable pursuant to Section 2924c, the statement specified in paragraph (1) of subdivision (b) of Section 2924c. (2) Not less than three months shall elapse from the filing of the notice of default. (3) After the lapse of the three months described in paragraph COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 27

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(2), the mortgagee, trustee or other person authorized to take the sale shall give notice of sale, stating the time and place thereof, in the manner and for a time not less than that set forth in Section 2924f. (b) In performing acts required by this article, the trustee shall incur no liability for any good faith error resulting from reliance on information provided in good faith by the beneficiary regarding the nature and the amount of the default under the secured obligation, deed of trust, or mortgage. In performing the acts required by this article, a trustee shall not be subject to Title 1.6c (commencing with Section 1788) of Part 4. (c) A recital in the deed executed pursuant to the power of sale of compliance with all requirements of law regarding the mailing of copies of notices or the publication of a copy of the notice of default or the personal delivery of the copy of the notice of default or the posting of copies of the notice of sale or the publication of a copy thereof shall constitute prima facie evidence of compliance with these requirements and conclusive evidence thereof in favor of bona fide purchasers and encumbrancers for value and without notice. (d) All of the following shall constitute privileged communications pursuant to Section 47: (1) The mailing, publication, and delivery of notices as required by this section. (2) Performance of the procedures set forth in this article. (3) Performance of the functions and procedures set forth in this COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 28

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article if those functions and procedures are necessary to carry out the duties described in Sections 729.040, 729.050, and 729.080 of the Code of Civil Procedure. (e) There is a rebuttable presumption that the beneficiary actually knew of all unpaid loan payments on the obligation owed to the beneficiary and secured by the deed of trust or mortgage subject to the notice of default. However, the failure to include an actually

known default shall not invalidate the notice of sale and the beneficiary shall not be precluded from asserting a claim to this omitted default or defaults in a separate notice of default.

CALIFORNIA CIVIL CODE SECTION 2924.3 (a) Except as provided in subdivisions (b) and (c), a person who has undertaken as an agent of a mortgagee, beneficiary, or owner of a promissory note secured directly or collaterally by a mortgage or deed of trust on real property or an estate for years therein, to make collections of payments from an obligor under the note, shall mail the following notices, postage prepaid, to each mortgagee, beneficiary or owner for whom the agent has agreed to make collections from the obligor under the note: (1) A copy of the notice of default filed in the office of the county recorder pursuant to Section 2924 on account of a breach of obligation under the promissory note on which the agent has agreed to make collections of payments, within 15 days after recordation. (2) Notice that a notice of default has been recorded pursuant to Section 2924 on account of a breach of an obligation secured by a COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 29

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mortgage or deed of trust against the same property or estate for years therein having priority over the mortgage or deed of trust securing the obligation described in paragraph (1), within 15 days after recordation or within three business days after the agent receives the information, whichever is later. (3) Notice of the time and place scheduled for the sale of the real property or estate for years therein pursuant to Section 2924f under a power of sale in a mortgage or deed of trust securing an obligation described in paragraphs (1) or (2), not less than 15 days before the scheduled date of the sale or not later than the next business day after the agent receives the information, whichever is later. (b) An agent who has undertaken to make collections on behalf of mortgagees, beneficiaries or owners of promissory notes secured by mortgages or deeds of trust on real property or an estate for years therein shall not be required to comply with the provisions of subdivision (a) with respect to a mortgagee, beneficiary or owner who is entitled to receive notice pursuant to subdivision (c) of Section 2924b or for whom a request for notice has been recorded pursuant to subdivision (b) of Section 2924b if the agent reasonably believes that the address of the mortgagee, beneficiary, or owner described in Section 2924b is the current business or residence address of that person. (c) An agent who has undertaken to make collections on behalf of mortgagees, beneficiaries or owners of promissory notes secured by mortgages or deeds of trust on real property or an estate for COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 30

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years therein shall not be required to comply with the provisions of paragraph (1) or (2) of subdivision (a) if the agent knows or reasonably believes that the default has already been cured by or on behalf of the obligor. (d) Any failure to comply with the provisions of this section shall not affect the validity of a sale in favor of a bona fide purchaser or the rights of an encumbrancer for value and without notice.

CALIFORNIA CIVIL CODE SECTION 2924.5 No clause in any deed of trust or mortgage on property containing four or fewer residential units or on which four or fewer residential units are to be constructed or in any obligation secured by any deed of trust or mortgage on property containing four or fewer residential units or on which four or fewer residential units are to be constructed that provides for the acceleration of the due date of the obligation upon the sale, conveyance, alienation, lease, succession, assignment or other transfer of the property subject to the deed of trust or mortgage shall be valid unless the clause is set forth, in its entirety in both the body of the deed of trust or mortgage and the promissory note or other document evidencing the secured obligation. This section shall apply to all such deeds of

trust, mortgages, and obligations secured thereby executed on or after July 1, 1972.

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CALIFORNIA CIVIL CODE SECTION 2924.6 (a) An obligee may not accelerate the maturity date of the principal and accrued interest on any loan secured by a mortgage or deed of trust on residential real property solely by reason of any one or more of the following transfers in the title to the real property: (1) A transfer resulting from the death of an obligor where the transfer is to the spouse who is also an obligor. (2) A transfer by an obligor where the spouse becomes a coowner of the property. (3) A transfer resulting from a decree of dissolution of the marriage or legal separation or from a property settlement agreement incidental to such a decree which requires the obligor to continue to make the loan payments by which a spouse who is an obligor becomes the sole owner of the property. (4) A transfer by an obligor or obligors into an inter vivos trust in which the obligor or obligors are beneficiaries. (5) Such real property or any portion thereof is made subject to a junior encumbrance or lien. (b) Any waiver of the provisions of this section by an obligor is void and unenforceable and is contrary to public policy. (c) For the purposes of this section, “residential real property” means any real property which contains at least one but not more than four housing units. (d) This act applies only to loans executed or refinanced on or after January 1, 1976.

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CALIFORNIA CIVIL CODE SECTION 2924.7 (a) The provisions of any deed of trust or mortgage on real property which authorize any beneficiary, trustee, mortgagee, or his or her agent or successor in interest, to accelerate the maturity date of the principal and interest on any loan secured thereby or to exercise any power of sale or other remedy contained therein upon the failure of the trustor or mortgagor to pay, at the times provided for under the terms of the deed of trust or mortgage, any taxes, rents, assessments, or insurance premiums with respect to the property or the loan, or any advances made by the beneficiary, mortgagee, or his or her agent or successor in interest shall be enforceable whether or not impairment of the security interest in the property has resulted from the failure of the trustor or mortgagor to pay the taxes, rents, assessments, insurance premiums, or advances. (b) The provisions of any deed of trust or mortgage on real property which authorize any beneficiary, trustee, mortgagee, or his or her agent or successor in interest, to receive and control the disbursement of the proceeds of any policy of fire, flood, or other hazard insurance respecting the property shall be enforceable whether or not impairment of the security interest in the property has resulted from the event that caused the proceeds of the insurance policy to become payable.

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CALIFORNIA CIVIL CODE SECTION 2924.8 (a) Upon posting a notice of sale pursuant to Section 2924f, a trustee or authorized agent shall also post the following notice, in the manner required for posting the notice of sale on the property to be sold, and a mortgagee, trustee, beneficiary, or authorized agent shall mail, at the same time in an envelope addressed to the “Resident of property subject to foreclosure sale” the following notice in English and the languages described in Section 1632: “Foreclosure process has begun on this property, which may affect your right to continue to live in this property. Twenty days or more after the date of this notice, this property may be sold at foreclosure. If you are renting this property, the new property owner may either give you a new lease or rental agreement or provide you with a 60-day eviction notice. However, other laws may prohibit an eviction in this circumstance or provide you with a longer notice before eviction. You may wish to contact a lawyer or your local legal aid or housing counseling agency to discuss any rights you may have.” (b) It shall be an infraction to tear down the notice described in subdivision (a) within 72 hours of posting. Violators shall be subject to a fine of one hundred dollars ($100). (c) A state government entity shall make available translations of the notice described in subdivision (a) which may be used by a mortgagee, trustee, beneficiary, or authorized agent to satisfy the requirements of this section. (d) This section shall only apply to loans secured by residential COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 34

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real property, and if the billing address for the mortgage note is different than the property address. (e) This section shall remain in effect only until January 1, 2013, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2013, deletes or extends that date.

CALIFORNIA CIVIL CODE SECTION 2924A If, by the terms of any trust or deed of trust a power of sale is conferred upon the trustee, the attorney for the trustee, or any duly authorized agent, may conduct the sale and act in the sale as the auctioneer for the trustee.

CALIFORNIA CIVIL CODE SECTION 2924B (a) Any person desiring a copy of any notice of default and of any notice of sale under any deed of trust or mortgage with power of sale upon real property or an estate for years therein, as to which deed of trust or mortgage the power of sale cannot be exercised until these notices are given for the time and in the manner provided in Section 2924 may, at any time subsequent to recordation of the deed of trust or mortgage and prior to recordation of notice of default thereunder, cause to be filed for record in the office of the recorder of any county in which any part or parcel of the real property is situated, a duly acknowledged request for a copy of the notice of default and of sale. This request shall be signed and acknowledged by the person making the request, specifying the COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 35

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name and address of the person to whom the notice is to be mailed, shall identify the deed of trust or mortgage by stating the names of the parties thereto, the date of recordation thereof, and the book and page where the deed of trust or mortgage is recorded or the recorder’s number, and shall be in substantially the following form: “In accordance with Section 2924b, Civil Code, request is hereby made that a copy of any notice of default and a copy of any notice of sale under the deed of trust (or mortgage) recorded _ _ _ _ _ _ , _ _ _ _ , in Book _ _ _ _ _ page _ _ _ _ records of _ _ _ _ County, (or filed for record with recorder’s serial number _ _ _ _ , _ _ _ _ _ _ _ County) California, executed by _ _ _ _ as trustor (or mortgagor) in which _ _ _ _ _ _ _ _ is named as beneficiary

(or mortgagee) and _ _ _ _ _ _ _ _ _ _ _ _ _ _ as trustee be mailed to _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ at _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _. Name Address

NOTICE: A copy of any notice of default and of any notice of sale will be sent only to the address contained in this recorded request. If your address changes, a new request must be recorded.

Signature _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ” Upon the filing for record of the request, the recorder shall index in the general index of grantors the names of the trustors (or mortgagor) recited therein and the names of persons requesting copies. COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 36

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(b) The mortgagee, trustee, or other person authorized to record the notice of default or the notice of sale shall do each of the following: (1) Within 10 business days following recordation of the notice of default, deposit or cause to be deposited in the United States mail an envelope, sent by registered or certified mail with postage prepaid, containing a copy of the notice with the recording date shown thereon, addressed to each person whose name and address are set forth in a duly recorded request therefor, directed to the address designated in the request and to each trustor or mortgagor at his or her last known address if different than the address specified in the deed of trust or mortgage with power of sale. (2) At least 20 days before the date of sale, deposit or cause to be deposited in the United States mail an envelope, sent by registered or certified mail with postage prepaid, containing a copy of the notice of the time and place of sale, addressed to each person whose name and address are set forth in a duly recorded request therefor, directed to the address designated in the request and to each trustor or mortgagor at his or her last known address if different than the address specified in the deed of trust or mortgage with power of sale. (3) As used in paragraphs (1) and (2), the “last known address” of each trustor or mortgagor means the last business or residence physical address actually known by the mortgagee, beneficiary, trustee, or other person authorized to record the notice of default. For the purposes of this subdivision, an address is “actually known” if COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 37

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it is contained in the original deed of trust or mortgage, or in any subsequent written notification of a change of physical address from the trustor or mortgagor pursuant to the deed of trust or mortgage. For the purposes of this subdivision, “physical address” does not include an e-mail or any form of electronic address for a trustor or mortgagor. The beneficiary shall inform the trustee of the trustor’s last address actually known by the beneficiary. However, the trustee shall incur no liability for failing to send any notice to the last address unless the trustee has actual knowledge of it. (4) A “person authorized to record the notice of default or the notice of sale” shall include an agent for the mortgagee or beneficiary, an agent of the named trustee, any person designated in an executed substitution of trustee, or an agent of that substituted trustee. (c) The mortgagee, trustee, or other person authorized to record the notice of default or the notice of sale shall do the following: (1) Within one month following recordation of the notice of default, deposit or cause to be deposited in the United States mail an envelope, sent by registered or certified mail with postage prepaid, containing a copy of the notice with the recording date shown thereon, addressed to each person set forth in paragraph (2), provided that the estate or interest of any person entitled to receive notice under this subdivision is acquired by an instrument sufficient to impart constructive notice of the estate or interest in the land or portion thereof which is subject to the deed of COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 38

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trust or mortgage being foreclosed, and provided the instrument is recorded in the office of the county recorder so as to impart that constructive notice prior to the recording date of the notice of default and provided the instrument as so recorded sets forth a mailing address which the county recorder shall use, as instructed within the instrument, for the return of the instrument after recording, and which address shall be the address used for the purposes of mailing notices herein. (2) The persons to whom notice shall be mailed under this subdivision are: (A) The successor in interest, as of the recording date of the notice of default, of the estate or interest or any portion thereof of the trustor or mortgagor of the deed of trust or mortgage being foreclosed. (B) The beneficiary or mortgagee of any deed of trust or mortgage recorded subsequent to the deed of trust or mortgage being foreclosed, or recorded prior to or concurrently with the deed of trust or mortgage being foreclosed but subject to a recorded agreement or a recorded statement of subordination to the deed of trust or mortgage being foreclosed. (C) The assignee of any interest of the beneficiary or mortgagee described in subparagraph (B), as of the recording date of the notice of default. (D) The vendee of any contract of sale, or the lessee of any lease, of the estate or interest being foreclosed which is recorded subsequent to the deed of trust or mortgage being foreclosed, COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 39

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or recorded prior to or concurrently with the deed of trust or mortgage being foreclosed but subject to a recorded agreement or statement of subordination to the deed of trust or mortgage being foreclosed. (E) The successor in interest to the vendee or lessee described in subparagraph (D), as of the recording date of the notice of default. (F) The office of the Controller, Sacramento, California, where, as of the recording date of the notice of default, a “Notice of Lien for Postponed Property Taxes” has been recorded against the real property to which the notice of default applies. (3) At least 20 days before the date of sale, deposit or cause to be deposited in the United States mail an envelope, sent by registered or certified mail with postage prepaid, containing a copy of the notice of the time and place of sale addressed to each person to whom a copy of the notice of default is to be mailed as provided in paragraphs (1) and (2), and addressed to the office of any state taxing agency, Sacramento, California, which has recorded, subsequent to the deed of trust or mortgage being foreclosed, a notice of tax lien prior to the recording date of the notice of default against the real property to which the notice of default applies. (4) Provide a copy of the notice of sale to the Internal Revenue Service, in accordance with Section 7425 of the Internal Revenue Code and any applicable federal regulation, if a “Notice of Federal Tax Lien under Internal Revenue Laws” has been recorded, subsequent COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 40

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to the deed of trust or mortgage being foreclosed, against the real property to which the notice of sale applies. The failure to provide the Internal Revenue Service with a copy of the notice of sale pursuant to this paragraph shall be sufficient cause to rescind the trustee’s sale and invalidate the trustee’s deed, at the option of either the successful bidder at the trustee’s sale or the trustee, and in either case with the consent of the beneficiary. Any option to rescind the trustee’s sale pursuant to this paragraph shall be exercised prior to any transfer of the property by the successful bidder to a bona fide purchaser for value. A recision of the trustee’s sale pursuant to this paragraph may be recorded in a notice of recision pursuant to Section 1058.5. (5) The mailing of notices in the manner set forth in paragraph (1) shall not impose upon any licensed attorney, agent, or employee of any person entitled to receive notices as herein set forth any duty to communicate the notice to the entitled person from the fact that the mailing address used by the county recorder is the address of the attorney, agent, or employee. (d) Any deed of trust or mortgage with power of sale hereafter executed upon real property or an estate for years therein may contain a request that a copy of any notice of default and a copy of any notice of sale thereunder shall be mailed to any person or party thereto at the address of the person given therein, and a copy of any notice of default and of any notice of sale shall be mailed to each of these at the same time and in the same manner required as though a separate request therefor had been COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 41

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filed by each of these persons as herein authorized. If any deed of trust or mortgage with power of sale executed after September 19, 1939, except a deed of trust or mortgage of any of the classes excepted from the provisions of Section 2924, does not contain a mailing address of the trustor or mortgagor therein named, and if no request for special notice by the trustor or mortgagor in substantially the form set forth in this section has subsequently been recorded, a copy of the notice of default shall be published once a week for at least four weeks in a newspaper of general circulation in the county in which the property is situated, the publication to commence within 10 business days after the filing of the notice of default. In lieu of publication, a copy of the notice of default may be delivered personally to the trustor or mortgagor within the 10 business days or at any time before publication is completed, or by posting the notice of default in a conspicuous place on the property and mailing the notice to the last known address of the trustor or mortgagor. (e) Any person required to mail a copy of a notice of default or notice of sale to each trustor or mortgagor pursuant to subdivision (b) or (c) by registered or certified mail shall simultaneously cause to be deposited in the United States mail, with postage prepaid and mailed by first-class mail, an envelope containing an additional copy of the required notice addressed to each trustor or mortgagor at the same address to which the notice is sent by registered or certified mail pursuant to subdivision (b) or (c). The person shall execute and retain an affidavit identifying the COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 42

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notice mailed, showing the name and residence or business address of that person, that he or she is over the age of 18 years, the date of deposit in the mail, the name and address of the trustor or mortgagor to whom sent, and that the envelope was sealed and deposited in the mail with postage fully prepaid. In the absence of fraud, the affidavit required by this subdivision shall establish a conclusive presumption of mailing. (f) No request for a copy of any notice filed for record pursuant to this section, no statement or allegation in the request, and no record thereof shall affect the title to real property or be deemed notice to any person that any person requesting copies of notice has or claims any right, title, or interest in, or lien or charge upon the property described in the deed of trust or mortgage referred to therein. (g) “Business day,” as used in this section, has the meaning specified in Section 9.

CALIFORNIA CIVIL CODE SECTION 2924C (a) (1) Whenever all or a portion of the principal sum of any obligation secured by deed of trust or mortgage on real property or an estate for years therein hereafter executed has, prior to the maturity date fixed in that obligation, become due or been declared due by reason of default in payment of interest or of any installment of principal, or by reason of failure of trustor or mortgagor to pay, in accordance with the terms of that obligation or of the deed of trust or mortgage, taxes, assessments, premiums for insurance, COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 43

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or advances made by beneficiary or mortgagee in accordance with the terms of that obligation or of the deed of trust or mortgage, the trustor or mortgagor or his or her successor in interest in the mortgaged or trust property or any part thereof, or any beneficiary under a subordinate deed of trust or any other person having a subordinate lien or encumbrance of record thereon, at any time within the period specified in subdivision (e), if the power of sale therein is to be exercised, or, otherwise at any time prior to entry of the decree of foreclosure, may pay to the beneficiary or the mortgagee or their successors in interest, respectively, the entire amount due, at the time payment is tendered, with respect to (A) all amounts of principal, interest, taxes, assessments, insurance premiums, or advances actually known by the beneficiary to be, and that are, in default and shown in the notice of default, under the terms of the deed of trust or mortgage and the obligation secured thereby, (B) all amounts in default on recurring obligations not shown in the notice of default, and (C) all reasonable costs and expenses, subject to subdivision (c), which are actually incurred in enforcing the terms of the obligation, deed of trust, or mortgage, and trustee’s or attorney’s fees, subject to subdivision (d), other than the portion of principal as would not then be due had no default occurred, and thereby cure the default theretofore existing, and thereupon, all proceedings theretofore had or instituted shall be dismissed or discontinued and the obligation and deed of trust or mortgage shall be reinstated and shall be and remain in force and effect, the COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 44

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same as if the acceleration had not occurred.

This section does

not apply to bonds or other evidences of indebtedness authorized or permitted to be issued by the Commissioner of Corporations or made by a public utility subject to the Public Utilities Code. For

the purposes of this subdivision, the term “recurring obligation” means all amounts of principal and interest on the loan, or rents, subject to the deed of trust or mortgage in default due after the notice of default is recorded; all amounts of principal and interest or rents advanced on senior liens or leaseholds which are advanced after the recordation of the notice of default; and payments of taxes, assessments, and hazard insurance advanced after recordation of the notice of default. Where the beneficiary or

mortgagee has made no advances on defaults which would constitute recurring obligations, the beneficiary or mortgagee may require the trustor or mortgagor to provide reliable written evidence that the amounts have been paid prior to reinstatement. (2) If the trustor, mortgagor, or other person authorized to cure the default pursuant to this subdivision does cure the default, the beneficiary or mortgagee or the agent for the beneficiary or mortgagee shall, within 21 days following the reinstatement, execute and deliver to the trustee a notice of rescission which rescinds the declaration of default and demand for sale and advises the trustee of the date of reinstatement. The trustee shall cause

the notice of rescission to be recorded within 30 days of receipt of the notice of rescission and of all allowable fees and costs. No charge, except for the recording fee, shall be made against COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 45

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the trustor or mortgagor for the execution and recordation of the notice which rescinds the declaration of default and demand for sale. (b) (1) The notice, of any default described in this section, recorded pursuant to Section 2924, and mailed to any person pursuant to Section 2924b, shall begin with the following statement, printed or typed thereon:

“IMPORTANT NOTICE (14-point boldface type if printed or in capital letters if typed)

IF YOUR PROPERTY IS IN FORECLOSURE BECAUSE YOU ARE BEHIND IN YOUR PAYMENTS, IT MAY BE SOLD WITHOUT ANY COURT ACTION, (14-point boldface type if printed or in capital letters if typed) and you may have the legal right to bring your account in good standing by paying all of your past due payments plus permitted costs and expenses within the time permitted by law for reinstatement of your account, which is normally five business days prior to the date set for the sale of your property. No sale date may be set until three

months from the date this notice of default may be recorded (which date of recordation appears on this notice).

This amount is _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ as of _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ (Date) and will increase until your account becomes current. COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 46

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 While your property is in foreclosure, you still must pay other obligations (such as insurance and taxes) required by your note and deed of trust or mortgage. If you fail to make future payments

on the loan, pay taxes on the property, provide insurance on the property, or pay other obligations as required in the note and deed of trust or mortgage, the beneficiary or mortgagee may insist that you do so in order to reinstate your account in good standing. addition, the beneficiary or mortgagee may require as a condition to reinstatement that you provide reliable written evidence that you paid all senior liens, property taxes, and hazard insurance premiums. Upon your written request, the beneficiary or mortgagee will give you a written itemization of the entire amount you must pay. You may In

not have to pay the entire unpaid portion of your account, even though full payment was demanded, but you must pay all amounts in default at the time payment is made. However, you and your

beneficiary or mortgagee may mutually agree in writing prior to the time the notice of sale is posted (which may not be earlier than the end of the three-month period stated above) to, among other things, (1) provide additional time in which to cure the default by transfer of the property or otherwise; or (2) establish a schedule of payments in order to cure your default; or both (1) and (2). Following the expiration of the time period referred to in the first paragraph of this notice, unless the obligation being foreclosed upon or a separate written agreement between you and your creditor COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 47

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permits a longer period, you have only the legal right to stop the sale of your property by paying the entire amount demanded by your creditor. To find out the amount you must pay, or to arrange for payment to stop the foreclosure, or if your property is in foreclosure for any other reason, contact:

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ (Name of beneficiary or mortgagee)

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ (Mailing address)

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ (Telephone)

If you have any questions, you should contact a lawyer or the governmental agency which may have insured your loan. Notwithstanding the fact that your property is in foreclosure, you may offer your property for sale, provided the sale is concluded prior to the conclusion of the foreclosure. Remember, YOU MAY LOSE LEGAL RIGHTS IF YOU DO NOT TAKE PROMPT COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 48

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ACTION. typed)”

(14-point boldface type if printed or in capital letters if

Unless otherwise specified, the notice, if printed, shall appear in at least 12-point boldface type. If the obligation secured by the deed of trust or mortgage is a contract or agreement described in paragraph (1) or (4) of subdivision (a) of Section 1632, the notice required herein shall be in Spanish if the trustor requested a Spanish language translation of the contract or agreement pursuant to Section 1632. If the

obligation secured by the deed of trust or mortgage is contained in a home improvement contract, as defined in Sections 7151.2 and 7159 of the Business and Professions Code, which is subject to Title 2 (commencing with Section 1801), the seller shall specify on the contract whether or not the contract was principally negotiated in Spanish and if the contract was principally negotiated in Spanish, the notice required herein shall be in Spanish. No assignee of the

contract or person authorized to record the notice of default shall incur any obligation or liability for failing to mail a notice in Spanish unless Spanish is specified in the contract or the assignee or person has actual knowledge that the secured obligation was principally negotiated in Spanish. Unless specified in writing to

the contrary, a copy of the notice required by subdivision (c) of Section 2924b shall be in English. (2) Any failure to comply with the provisions of this subdivision shall not affect the validity of a sale in favor of a bona fide purchaser or the rights of an encumbrancer for value and without COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 49

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notice. (c) Costs and expenses which may be charged pursuant to Sections 2924 to 2924i, inclusive, shall be limited to the costs incurred for recording, mailing, including certified and express mail charges, publishing, and posting notices required by Sections 2924 to 2924i, inclusive, postponement pursuant to Section 2924g not to exceed fifty dollars ($50) per postponement and a fee for a trustee’s sale guarantee or, in the event of judicial foreclosure, a litigation guarantee. For purposes of this subdivision, a trustee

or beneficiary may purchase a trustee’s sale guarantee at a rate meeting the standards contained in Sections 12401.1 and 12401.3 of the Insurance Code. (d) Trustee’s or attorney’s fees which may be charged pursuant to subdivision (a), or until the notice of sale is deposited in the mail to the trustor as provided in Section 2924b, if the sale is by power of sale contained in the deed of trust or mortgage, or, otherwise at any time prior to the decree of foreclosure, are hereby authorized to be in a base amount that does not exceed three hundred dollars ($300) if the unpaid principal sum secured is one hundred fifty thousand dollars ($150,000) or less, or two hundred fifty dollars ($250) if the unpaid principal sum secured exceeds one hundred fifty thousand dollars ($150,000), plus one-half of 1 percent of the unpaid principal sum secured exceeding fifty thousand dollars ($50,000) up to and including one hundred fifty thousand dollars ($150,000), plus one-quarter of 1 percent of any portion of the unpaid principal sum secured exceeding one hundred fifty thousand COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 50

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dollars ($150,000) up to and including five hundred thousand dollars ($500,000), plus one-eighth of 1 percent of any portion of the unpaid principal sum secured exceeding five hundred thousand dollars ($500,000). Any charge for trustee’s or attorney’s fees authorized

by this subdivision shall be conclusively presumed to be lawful and valid where the charge does not exceed the amounts authorized herein. For purposes of this subdivision, the unpaid principal sum

secured shall be determined as of the date the notice of default is recorded. (e) Reinstatement of a monetary default under the terms of an obligation secured by a deed of trust, or mortgage may be made at any time within the period commencing with the date of recordation of the notice of default until five business days prior to the date of sale set forth in the initial recorded notice of sale. In the event the sale does not take place on the date set forth in the initial recorded notice of sale or a subsequent recorded notice of sale is required to be given, the right of reinstatement shall be revived as of the date of recordation of the subsequent notice of sale, and shall continue from that date until five business days prior to the date of sale set forth in the subsequently recorded notice of sale. In the event the date of sale is postponed on the date of sale set forth in either an initial or any subsequent notice of sale, or is postponed on the date declared for sale at an immediately preceding postponement of sale, and, the postponement is for a period which exceeds five business days from the date set forth in the notice of COMPLAINT FOR DEPRIVATION OF CIVIL RIGHTS UNDER COLOR OF LAW PAGE 51

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