1

2 3 ,, . 4 5
6 7 8 9

Lenore L. Albert, Esq. SBN 210876 LAW OFFICES OF LENORE ALBERT 7755 Center Avenue, Suite #1100 Huntington Beach, CA 92647 Telephone (714) 372-2264 Facsimile (419) 831-3376 Email: lenorealbert@msn.com Attorney for Plaintiff __

SUPERIOR

COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE

10
11 __

an individual, Plaintiffs,

ASE NO. 30-2011_ ssigned to the: onorable Kirk J. Nakamura Dept C8

12
13

vs.

14
15

16

17
18

19
20

21 22
23

BACHOME LOANS SERVICING, L.P., a FIRST AMENDED VERIFIED COMPLAINT subsidiary of Bank of America, N.A; L Negligence RECONTRUSTCOMPANY.N.A, Trustee; 2. Breach of Contract FEDERAL HOME LOAN MORTGAGE; 3. Violation of the Perrata Act HAND K ACQUISITIONS, LLC; ALL 4. Fraud PERSONS UNKNOWN CLAIMING ANY 5. UnlawfullUnfair Acts §17200 LEGAL OR EQUITABLE RIGHT, TITLE, ESTATE, LIEN OR INTEREST IN THE [DEMAND FOR JURy TRIAL] PROPERTY DESCRIBED IN TIIE COMPLAINT ADVERSE TO PLAINTIFFS' TITLE, OR ANY CLOUD ON PLAINTIFFS' TITLE THERETO; and DOES 1 through. 100, inclusive, Defendants. Plaint~_ ("plaintiff' or "plaintiffs"), by and through. his attorney, brings

24 25 26
27-

this action against defendants BAC HOME LOANS SERVICING, L.P., a subsidiary of Bank of America, N.A (fka Countrywide Home Loans Servicing, L.P.); RECONTRUST COMPANY. N.A.,

Trustee; FEDERAL HOME LOAN MORTGAGE; HAND K ACQUISITIONS, LLC; ALL PERSONS UNKNOWN CLAIMlNG ANY LEGAL OREQUIT ABLE RIGHT, TITLE, ESTATE, LIEN OR INTEREST IN THE PROPERTY DESCRIBED IN THE COMPLAINT ADVERSE TO PLAINTIFFS' TITLE, ORANYCLOUD ON PLAINTIFFS' 1 TITLE THERETO; and Does 1

28

FIRST AMENDED VERIFIED COMPLAINT

,_

v RAe Home Loan Servicing, L.P.

1

through 1DO, inclusive (''Defendants'')

and alleges the following on information and belief, except as

2
3 4 5
6 7

to those allegations which pertain to the Plaintiffs: 1. The Court has personal jurisdiction over the defendants in this action by the fact that

the Defendants are business entities conducting business in the state of California, County of Orange.

2.

Venue is proper in this Court because the action involves real property located in

Orange County, California and a substantial part of the events or omissions on which the claims are based occurred in this District.

8
9

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

4.
5. 6.

3.

Plaintiffs, __

at all times mentioned herein relevant to this Rancho Santa Margarita,

complaint was the owner of real property commonly known as_

Defendant, BAC HOME WANS SERVICING, L.P., ("Bank of America" or which has its principal place of business at 101 S. Tyron Street, Charlotte, North

''Defendant'')

Carolina 28255, and regularly conducts business in the State of California. Defendant, RECONTRUST COMPANY. N.A, Trustee C'RECON
II ),

has its principal

place of business at 1800 Tapo Canyon Road, Simi Valley, CA 93063, and regularly conducts business in the State of California, and is authorized to conduct business in the State of California. Defendant, FEDERAL HOME LOAN MORTGAGE ("FANNIE MAE
II ),

has its

principal place of business at 6041 Bristol Parkway, Suite 100, Culver City, CA 90230, and regularly conducts business in the State of California, and is authorized to conduct business in the State of California. 7. Defendant, HAND K ACQUISITIONS, LLC

CUH AND

K

II

),

has its principal place of

business at 32451 Golden Lantern., Suite 205, Laguna Niguel, CA 92677, and regular conducts business in the State of California, and is authorized to conduct business in the State of California. 8. Plaintiffs do not know the true names and capacities of Defend ants designated as ALL

22
23

PERSONS UNKNOWN CLAIMING ANY LEGAL OR EQUITABLE RIGHT, TITLE, ESTATE, LIEN OR INTEREST IN TIffi PROPERTY DESCRIBED IN THE COMPLAINT ADVERSE TO PLAINTIFFS' TITLE, OR ANY CLOUD ON PLAINTIFFS' TITLE TIffiRETO. Plaintiffs will

24 25
26
27

amend the complaint to state the true names and capacities of the said defendant(s) when such information is ascertained.

28
2

FmSTAMENDEDVERTInEDCOMP~T _ v RAe Home Loan Servicing, LP.

1

9.

Plaintiffs do not know the true names and capacities ofthe defendants DOES 1

2
3 4

through 100, inclusive, and, as such, names said defendants by such fictitious names. Plaintiffs will amend the complaint to state the true name and capacity ofthe DOE defendant(s) when such information is ascertained. 10. Plaintiffs are informed and believe, and allege thereon, that each defendant is

5
6 7 8 9

responsible in some manner for the occurrences alleged in this complaint, and that plaintiffs' damages were proximately caused by the defendants at all times mentioned in this complaint. 11. Plaintiffs are further informed and believe, and allege thereon, that each defendant

was the agent, servant, representative, andlor employee of their co-defendants, and in doing the things hereinafter alleged were acting in the scope of their authority as agents, servants, representatives, family members andlor employees, and with the permission and consent of their codefendants. 12. Additionally, plaintiffs are informed and believe, and allege thereon, that each

10 11

12 13 14 15 16
17 18 19

defendant assisted, aided and abetted, adopted, ratified, approved, or condoned the actions of every other defendant and that each corporate defendant, if any, was acting as the alter ego of the other in the acts alleged herein. 13. On March 19, 2007, plaintiff, __ refinanced his home for

from Gateway Business Bank (which was transferred for loan servicing to Countrywide) on a 30-year note to purchase the single-family residence more particularly known as _ Rancho Santa Margarita, CA _ which he at all times mentioned herein occupied.

His payments were initially $1965.10. 14. Plaintiff, as trustor, executed and delivered a deed of trust, conveying the real property

20 21 22
23

described herein to secure payment of the principal sum and interest as provided in the note and as part of the same transaction to Gateway Business Bank which was then "nominated" MERS as "nominee for Lender. .. [and] beneficiary under this Security Instrument." 15. Said deed of trust was recorded against the subject property in the Official Records in

24 25
26 27 28

Orange County, California, a true and correct copy of which is attached as Exhibit A and incorporated by reference herein.

3

~TAMENDEDVERWmDCOMPLUNT _ v BAC Home Loan Servicing, LP.

1

16.

2
3 4 5 6 7 8 9

crisis due to the destabilization of the banks drastically decreased the demand of his services of his contracting business. 17. position. 18. As a result of Mr. Luera's financial hardship, he requested a loan modification under To add to the financial stress, Mr. _ wife was laid offfrom her paralegal

Mr._

dutifully made his payments of$1965.10

on his loan until the financial

the HAMP program. 19. On March 4,2009, President Obama signed into law the Making Home Affordable It is in two parts: the Home

Plan as part of the Emergency Economic Stabilization Act of2008.

Affordable Refinance program ("HARP") and the Home Affordable Modification program

10 11

("RAMP").
20. Under these programs, the U. S. Department of the Treasury directed the large national bank servicers to take corrective action by providing loan modifications that produced more sustainable loan payments. 21. In 2009, FANNIE MAE also instituted the FANNIE MAE HOMESA VER

12
13

14
15 16

FORBEARANCETM program which was available to investors and others who could not qualify for RAMP modifications on their homes. The program was supposed to lead to a permanent plan so that the borrower could "save" their home and in the interim offer the owner a 6 month plan reducing the monthly payment by 30% to 50% less than the current mortgage payment. 22. On April 21, 2009 Michael A Quill, Senior Vice President, Single-Family Risk Officer

17
18

19
20

of Fannie Mae published Announcement 09-05R which represented "HomeSaver Forbearance is a new loss mitigation option available to borrowers that are either in default or for whom default is imminent and who do not qualify for the RAMP. A servicer should offer a HomeSaver Forbearance if such borrowers have a willingness and ability to make reduced monthly payments of at least onehalf oftheir contractual monthly payment. The plan should reduce the borrower's payments to an amount the borrower can afford, but no less than 50 percent of the borrower's contractual monthly payment, including taxes and insurance and any other escrow items at the time the forbearance is implemented. During the six month period of forbearance, the servicer should work with the borrower to identify the feasibility of, and implement, a more permanent foreclosure prevention alternative. The servicer should evaluate and identify a permanent solution during the first three
4 FIRST AMENDED VERIFIED COMPLAINT

21 22 23 24 25 26
27 28

_

v BAe Home Loan Servicing, LP.

30-2011_

1 2 3
4

months of the forbearance period and should implement the alternative by the end of the sixth month." 23. property. 24. Nevertheless, Bank of America apparently offered Mr. _ the Forbearance The home at issue in the Complaint was owner occupied and not an investment

5
6

program instead of the RAMP program. 25. Plaintiffs were under the belief that they were offered the "FANNIE MAE

7
8 9

HD:MESA VER FORBEARANCETM program" by BANK OF AMERICA on or about August 16,
2009 as advertised and promoted by Fannie Mae and the federal government because they received a letter from Bank of America dated August 17, 2009 that stated "You are eligible for a reduced mortgage payment for up to six months ... The enclosed document, the Forbearance Agreement, provides you detailed information on how the program works." (Exhibit E) 26. The following page was titled "Home'Saver PAYMENT FORBEARANCE

10 11

12
13

AGREEI\.1ENT" and requested reduced payments of approximately 30% ($1,101.46 per month) starting September 28,2009. 27. As a result,

14 15
16

:Mr._

signed the agreement on August 28,2009 entering into what he

believed to be the "FANNIE MAE HOMESAVER FORBEARANC_ETM program" with BANK OF

17
18 19 20

AMERICA
28. Neither Fannie Mae nor Bank of America worked with Mr. _ to identify the feasibility 0:( and implement, a more permanent foreclosure prevention alternative. 29. Neither Fannie Mae nor Bank of America evaluated and identifid a permanent solution

during the first three months of the forbearance period. 30. Niether Fannie Mae nor Bank of America implemented a permanent solution by the home.

21
22 23

end of the sixth month in order to save Mr. _ 31.

Plaintiff made all requested payments and submitted all required information to verify

24
25 26 27 28

he qualified and was eligible under RAMP, but after the plan terminated Bank of America failed to inform Mr._ whether or not he qualified for a modification of his mortgage and he was not

transferred into the new program. 32. Plaintiffs kept making the monthly payment of$I,101.16 for that entire period and

beyond for four more months. Bank of America accepted and cash these checks.
5 FIRST AMENDED VERIFIED COMPLAINT

_

v BAe Home Loan Servicing, L.P.

1 2

33.

During this period of time, Bank of America never explored any foreclosure

alternatives with 34.

3
4

While waiting for the bank's determination, on or about October 19,2010,

Mr._

Mr._

was served with a Notice of Default by Trustee, RECONTRUST

COMPANY, stating plaintiff's loan

5
6 7

was in default in the total amount of $64,424.98. Attached hereto and fully incorporated herein as Exhibit B is a true and correct copy of the Notice of Default by Trustee. 35. It was not until the Notice of Default was recorded that Bank of America began to

explore foreclosure alternatives with 36.

8
9

From about this time forward, plaintiffs enlisted the assistance of the California

Mr._

Attorney General's office which monitored and assisted with the loan modification process on behalf of the plaintiffs. 37. Plaintiff is informed and believes and alleges thereon that as a result of defendants'

10
11

12 13

settlement with the AG's office, the AG agreed to monitor the modification process. 38. In December of201O, plaintiffs requested a loan modification package from FANNJE

14
15 16 17 18 19

MAE, who ultimately sent a package to complete including aIJ of their financial documentation. 39. On January 7, 2011, plaintiffs returned the entire package, including over 100 pages

of documentation, to FANNIE MAE, who also sent a copy of this package onto Bank of America for their review and consideration. 40. Next, on February 1, 2011, plaintiffs were served with a Trustee's Notice of Sale

scheduling their horne to be sold on February 22, 2011 at the Santa Ana Branch of the Orange County Superior Court. Attached hereto and fully incorporated herein as Exhibit C is a true and correct copy of the Trustee's Notice of Sale. 41. During the modification process, Bank of America continued to reset the Trustee's

20
21 22

Sale four times 2/22/11, 3/2/11, 411111, and 5/4111. 42. Many months passed and there was sti1l no response from Bank of America as to

23 24
25 26 27 28

approval or denial of the application for modification submitted by plaintiffs. 43. Bank of America eventually determined that the plaintiffs were eligible for a loan

modification and made an oral offer to modify the loan. Plaintiffs accepted this offer. 44. On May 5, 2011, Bank of America sent plaintiffs a letter stating that they were not

eligible for the HA1v.1P program. Plaintiffs immediately contacted Nancy Whitaker at Bank of
6 FIRST AMENDED VERIFIED COMPLAINT

_

v BAC Home Loan Servicing, L.P.

1
2

America who advised plaintiffs that that letter was sent by a third party "home retention" vendor and was an error. Ms. Whitaker further advised that plaintiffs were put into a program that was already approved and that the payments would be $1903.84 for four years whereby reducing their interest to 2% for that period of time. She just needed Fannie Mae's approval. 45. On May 6 2011 Bank of America sent plaintiffs a letter thanking them for their
7

3
4

5
6 7 8 9

interest in the loan modification program and acknowledging the bank's receipt oftheir financial documents. This letter promised plaintiffs would receive one of3 different possible responses Attached hereto and fully incorporated herein as Exhibit D is a true and

directly from the bank

correct copy of the Bank of America May 6, 2011 letter. 46. Plaintiffs immediately contacted Bank of America to ask about this May 6 letter.

10 11 12 13

Plaintiffs were informed this letter was sent in error as plaintiffs had already "been approved" by the bank. Nancy Whitaker of Bank of America advised that the scheduled Trustee's Sale of May 18 would be reset, pending approval ofF ANNIE MAE. 47. Plaintiffs made further and continued numerous contacts during May of2011 with

14
15 16 17 18

FANNIE MAE, Bank of America and also involved the office of the California Attorney General to look into their loan handling. No response was ever received stating why the foreclosure was proceeding. -48. Plaintiffs never received any oral or written response from Bank of America stating

they were not eligible for the loan modification program. Likewise, plaintiffs never received a written notification of their approval. 49. FANNIE MAE never sent any oral or written response that they had denied a loan

19
20 21 22 23

modification to the plaintiffs in this case either. 50. Moreover, MHA guidelines require the servicerto wait 30 days prior to foreclosure on

all loans that were denied a HAMP modification so that the homeowner could appeal and escalate the determination by the servicer. 51. Yet, On May 18, 2011 minutes before the actual sale, plaintiffs were informed by the

24
25 26
27

California Attorney General's office that the May 18, 2011 sale was going through without explanation. 52. Bank of America and Fannie Mae did not wait 30 days from the written denial or

verbal denial of modification as required.
7 FIRST AMENDED VERIFIED COMPLAINT

28

_

v BAe Home Loan Servicing, LP.

1 2
3 4

53.

Plaintiffs were shocked and surprised their home was being sold. Bank of America

was dual-tracking their home loan -- on the one hand, promising plaintiffs modification assistance and on the other, proceeding with the foreclosure process in spite of their pending approval for modification. Plaintiffs were even more upset since they were informed they received a permanent

5 6
7

modification and that Bank of America and FANNIE MAE were just working out the details of whether plaintiffs would be required to enter another trial payment period or just be given a permanent modification on the basis that plaintiffs had already made all of the payments required under the terms of the Forebearance Program. 54. After the auction, plaintiffs started receiving letters fromH AND K stating it had

8
·9

bought their hom e. FIRST CAUSE OF ACTION Damages for Negligence (Against Bank of America, FANNIE MAE, RECONTRUST 55. CO:MPANY, N.A.)

10 11

12 13
14

Plaintiffs incorporate herein by reference the allegations made in paragraphs above, as

though fully set forth herein. 56. Defendants owed a general duty of care to Mr._

15
16

way to prevent foreclosure and forfeiture of his property because the transaction was intended to affect the plaintiff, the harm to was certainly foreseeable, there was a substantial degree of

17
18 19

certainty that the plaintiffs would suffer and injury by forfeiting their home. 57. Defendant's conduct was closely connected ~o Mr. _ being thrown into

Mr._

in handling his loan in such a

foreclosure without defendant actually exploring foreclosure alternatives with them when they ran into a financial hardship. 58. There was no reason in this case for the defendant to refuse to modify the_ did have a sustainable income to keep their home under modified loan

20 21
22

on the grounds that the_

23
24

terms rather than the home being auctioned off at foreclosure. 59. Defendants conduct was closely related to the injury suffered by

:rvrr._

25

26
27 28

_

60.

Defendants conduct was contrary to the state and national policy of sustaining

homeownership, savings and retirement and was contrary to preventing said future harm to the

61.

As a consequence, defendant owed the plaintiffs a general duty of care. 8

FmSTAMENDEDVERrnmDCOMP~T

v BAC Home Loan Servicing, LP.

1

62.

Additionally, Congress enacted 15 USC § 1639 mandating that all banks servicing

2 3 4 5
6

home loans were under a duty to act within an industry standard of care as promulgated in various regulations and guidelines. 63. Those guidelines required defendant to comply with state consumer protection laws,

use consistent methods to determine modification approvals, explore and offer foreclosure alternatives with prior to default and to exercise reasonable care and skill in timely and

:rvrr._

7
8 9

accurately responding to customer requests and inquiries, record proper land records, properly service the loan, and ensure chain of title prior to foreclosing and to stop all foreclosure sales that are unlawful. 64. member. 65. As alleged above, Bank: of America failed to apply consistent methods in determining These guidelines were aimed at protecting a class of persons, which plaintiff is a

10
11

12 13 14 15 16

a modification, offer foreclosure alternatives or even follow through on their own agreements. 66. Bank of America sent a letter as late as May 16, 2011 stating it would offer

an alternative in 10 days, but then sold Mr. _ expired. 67.

home at foreclosure before that 10 day period had

M-._

Bank of America's Vice President Nancy Whittaker stated that the letter wasn't really

17
18 19 20 21 22 23

sent by Bank of America and was sent by mistake, in that a permanent modification had been achieved. 68. Yet,

sold at foreclosure. 69.

Mr._

received notice just minutes before the sale that his home was being

As a proximate result, Defendants breached their duty owed to plaintiffs as generally

described above by failing to timely and accurately respond to customer requests and inquiries causing emotional distress. 70. From 2009 forward

24
25
26

follow up and see whether his application was received and being processed.

Mr._

called or caused Bank of America to be called to However, he was

getting multiple customer service representatives who did not know what was going on and could not answer his questions. 71. Plaintiffs are informed and believe and allege thereon that the defendants are treating

27 28

them unfairly, with prejudice or bias.
9

IDRSTAMENDEDVERWmDCO~~T

_

v RAe Home Loan Servicing, LP.

.1

72.

As a proximate result, Defendants breached their duty owed to plaintiffs as generally

2 3
4

described above by failing to comply with state consumer protection laws, properly service the loan, and use consistent methods to determine modification approvals. 73.

As described more particularly above, there were irregularities in the nonjudicial

5
6

foreclosure process. Yet defendants continued to use the nonjudicial foreclosure process to foreclose on the Chin home. 74. As a proximate result, Defendants breached their duty owed to plaintiffs as generally

7
8 9

described above by failing to comply with the consumer protection laws, record proper land records, properly service the loan, and ensure chain of title prior to foreclosing and to stop all foreclosure sales that are unlawful. 75. Additionally, the defendants never explored foreclosure alternatives with Mr. _

10
11

prior to the default in violation of Cal Civ Code § 2923.5. 76. As a proximate result, Defendants breached their duty owed to plaintiffs as generally

12 13 14 15 16

described above by failing to comply with the consumer protection laws, record proper land records, properly service the loan, explore and offer foreclosure alternatives with the Chins prior to default, and ensure chain of title prior to foreclosing and to stop all foreclosure sales that are unlawful. 77. The defendants' actions and each of them are against the stated public policy of

17
18 19 20 21 22 23 24 25

preserving homeownership, personal savings and retirement. 78. As a proximate result, the plaintiffs suffered general emotional stress of trying to work

with the defendants over the past two years in order to save their horne; credit damage; potential property loss; and economic loss of the costs of complying with the defendants demands for paperwork and attorney fees. 79. suffered with worry, anxiety, sleeplessness, nausea and headaches as a

result of the emotional distress. 80. The plaintiff was injured emotionally in an amount to be proven at trial.

Mr._

SECOND CAUSE OF ACTION Breach of Contract (Against Bank of America, FANNIE MAE and Does 1 through 25)
81. Plaintiffs incorporate in this cause of action all of the allegations in paragraphs 1 through 80, as though set forth in full herein. 10
FIRST AMENDED VERIFIED COMPLAINT

26
27 28

_

v BAG Home Loan Servicing, LP.

1 2

82.

California Civil Code Section 1550 provides that "fiJt is essential to the existence of a

contract that there should be: 1) Parties capable of contracting; 2) Their consent; 3) A lawful object; and, 4) A sufficient cause or consideration." 83. As described above, Me _ executed a Deed of Trust. Bank of America has

3
4 5 6

asserted it is a party to that contract. 84. Plaintiff is informed and believes and alleges thereon that Bank of America set the home at $329,000 representing the amount Mr. _ owed on the deed

7
8 9

auction price of

Mr. _

of trust and note. The home sold at auction for $342,000.

to

10
11

Mr._
85. 86. 87.

Bank of America breached the Deed of Trust by failing and refusing to tender $13,000 upon sale of the home pursuant to Cal Civ Code §2924k-j. Second, as described above, and Bank of America entered into an

Mr._

Agreement whereby called a «ROMESA VER" Payment Forbearance Agreement. The Agreement constitutes a valid .enforceable contract under California Civil Code

12
13 14 15 16 17 18 19 20

Section 1550, as all the elements ofa valid contract are present and there are no defenses to its enforcement. 88. a. The agreement stated that: "On or before each of the following due dates, I will pay the Servicer the amount set forth below (''Deferral Period Payment"). b. "During the period (the "Deferral Period") commencing on the date of this Agreement and ending on the earlier of: (i) 6 months from the execution date by Servicer; (ii) execution of an agreement with Servicer for another resolution of may default under my Loan Documents, for example, a modification, pre-foreclosure sale or deed in lieu of foreclosure, or (iii) my defauI t under the terms of the Agreement." 89. Plaintiff performed all of his obligations under the Agreement and patiently endured

21 22
23 24 25 26 27 28

Defendants' ongoing delinquency and evasiveness. 90. Bank of America breached this agreement by terminating the "Deferral Period"

although the Servicer (i) never executed the Agreement, (ii) never offered another resolution of any default such as a modification, pre-foreclosure _ under default under the program. sale or deed in lieu of foreclosure, or (iii) found Mr.

11
FIRST AMENDED VERIFIED COMPLAINT

_

v BAC Home Loan Servicing, LP.

1

91. informed

2
3
4

the 6th month; (3) disclosed the amount his loan was in arrears on the 6th month when no other form of relief was forthcoming from Bank of America, NA; and (4) by commencing or resuming the foreclosure process by filing a Notice of Default and setting an auction date without providing the HomeSaver resolution Bank of America was required to identify and provide. 92. Plaintiff is informed and believes and alleges thereon that the reduction of payment

Mr._

Bank: of America never offered another resolution of Mr. _

default; (2)

ifhe was approved or denied a loan modification as he requested at the end of

5 6

7 8
9

terms did not and could not result in a default on the Deed of Trust and any such default was excused or waived as technical and a forfeiture there under would be an unenforceable penalty in violation of California law. 93. California Civil Code section 3300 provides that "[fJorthe breach ofan obligation

10
11

arising from contract, the measure of damages ... is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom." 94. As a result of Defendants' breach of duties under the Agreement, Plaintiff"Mr._

12
13

14 15 16
17 18 19 20

has sustained damages in the sum of at least $25,000, representing monies collected by Defendants during the "special forbearance' time period and on the sale plus the amount of late fees and charges

incurred on the loan as a result of Defendants' breach, costs, interest and attorney fees. Wherefore plaintiff demands judgment against defendants as set forth below.

THIRD CAUSE OF ACTION Violation of the Perrata Act (Against Bank of America, Recontrust Company, N.A. and Does 1 through 25)
95. Plaintiffs repeat and re-allege every allegation in the paragraphs above, as though set forth in full herein. 96. As more particularly described above, Bank of America sent Mr. _ a HomeSaver

21 22 23
24

plan then never followed through. 97. Bank of America simply did not initiate exploration of foreclosure alternatives with the

25
26

plaintiff until after a Notice of Default was recorded on the property placing the plaintiff in imminent foreclosure.

27
28

12 FrnSTAMENDEDVERWmDCOMPL~ _ v RAe Home Loan Sen1icing, LP.

1 2 3
4

98.

Bank of America or their duly authorized agent on Bank of America's behalf failed to

comply with California Civil Code §2923.5 by failing, prior to recording a Notice of Default, to:

a.

Inform plaintiff of his options to avoid foreclosure, Inform plaintiff of his right to conduct a meeting to review their financial information, Inform plaintiff of his right to appoint an authorized agent to appear at this meeting, and File the appropriate declaration with the County Clerk Recorder's office that accurately

h.
c. d.
99. home. 100.

5
6 7 8 9

described the true facts as to Bank of America's lack of due diligence. As a result of defendant's violation, defendant prematurely foreclosed on the plaintiffs

Plaintiff has been damaged by defendant's failure to comply with California Civil Code

10 11 12 13

§ 2923.5 and seek the remedy as provided by statute, including attorney's fees and costs. Wherefore plaintiff demands judgment against defendants as set forth below.

FOURTH CAUSE OF ACTION (FraudlMisrepresentation
101. herein. 102. Bank of America and Fannie Mae led plaintiffs to believe that their home would not be

of Material Fact)

14 15
16 17 18 19 20 21 22 23

(Against Bank of America, FANNIE MAE and Does 1 through 100)
Plaintiffs incorporate by reference the allegations made above, as though fully set out

sold in May 2011 and that 'it wanted to help plaintiffs maintain ownership of their home. 103. Bank of America represented it wanted to help plaintiffs maintain ownership of their

home through the language of the agreement which states "Under the HomeSaver Forbearance program, we are working with Fannie Mae, a government sponsored enterprise, to reduce your mortgage payment by up to 50% for up to 6 months while we work with you to find a long-term solution. This is not a permanent payment reduction, but it will allow you to stay in your home as we work together to find a solution." 104. The Agreement reinforced the representation that Bank of America and Fannie Mae to find «a long term solution" on the second page where it stated the

24
25

would work with Mr. _

26 27
28

Deferral Period would continue until «execution of an agreement with Servicer for another resolution of my default..".

13
FIRST AMENDED VERIFIED COMPLAINT

_

v BAe Home Loan Servicing, LP.

1 2 _

105.

Then on May 5,2011 Bank of America sent another letter stating it would contact Mr.

in 10 days to explore alternatives to foreclosure. A true and correct copy is attached as
106. Bank of America led plaintiff to believe that defendants were going to work with them

3
4

Exhibit F.
so they could stay in their home so long as they made the requested payments. 107. Bank of America concealed the fact that it was not going to identify a long term home froni foreclosure.

5
6 7

solution in order to "save" 108.

Bank of America made the first two representations in writing on or about August 17,

Mr._

8
9

2010 in writing by Jill Balentine. Senior Vice President Home Retention Division BAC Home Loans Servicing, LP on Bank of America letterhead. (Exhibits E) 109. Bank of America made the third representation in writing on or about May 5, 2011 as

10 11 12

signed and executed in Exhibit F. 110. _ These statements were false. Before 10 days had lapsed, Bank of America sold Mr.

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

home at foreclosure auction and did not explore or offer any alternative to foreclosure. Ill. Bank of America failed and refused to identity any resolution to Mr. _ default in

2009 while he was making payments under the "Homes aver" plan. 112.

rill Balentine was acting as Bank of America's authorized agent or representative

when these representations were made and either knew of the representation, authorized it, consented to it, ratified it, adopted it, or acquiesced in the representation so made. 113. Bank of America was acting as Fannie Mae's authorized agent or representative when

these representations were made. 114. Bank of America further led plaintiff to believe that it had already made a preliminary eligible for a modification or other

review of the information plaintiff sent and verified plaintiffwas

long term solution if they supplied the necessary information and continued to make their payments to defendant. lIS. Plaintiff reasonably relied on defendants' representations which led Plaintiffs to

continue to make the payments, take the time and take on the extra burden and expense of compiling and providing the information requested which plaintiffs' had a right to privacy to but for attempting a modification of their loan under the belief that such acts would lead to modification or some other

14
FIRST AMENDED VERIFIED COMPLAINT

v BAe Home Loan Servicing, LP.

1 2 3
4 5

"resolution" ofM:r._ program. 116.

default so that his home would be "SAVED" under the HomeSaver

At the time that Bank of America made these representations, Bank of America knew,

or should have known, that they were not true. 117. Plaintiffs reasonably relied on defendants' representations which led Plaintiffs to

6
7

believe that a long-term solution to keep them in their home was being worked on. Plaintiffs also were led to believe their home would not be sold in May 2011. 118. Plaintiffs reasonably relied on these representations and continued to make the

8
9

payments, take the time and take on the extra burden and expense of compiling and providing the information requested which plaintiffs' had a right to privacy to but for attempting a modification of their loan at:" other "resolution" and long term solution. 119. Plaintiffs would not have spent their valuable money, time and efforts in attempting to

10 11 12 13

modify their loan with Bank of America prior to default, if they had known that they would not have
had a genuine opportunity to modify. 120. As a proximate result of defendants' conduct, plaintiffs have been financially injured

14
15 16 17 18 19 20 21 22 23

in an amount to be proven at trial and their credit has been damaged. 121. The aforementioned conduct of defendant(s) was an intentional misrepresentation,
\

deceit, or concealment of a material fact known to the defendant( s) with the intention on the part of the defendant(s) of thereby depriving plaintiffofproperty or legal rights or otherwise causing injury,

and was despicable conduct that subjected plaintiff to a cruel and unjust hardship in conscious disregard of plaintiff's rights, so as to justify an award of exemplary and punitive damages. Wherefore plaintiff demands judgment against defendants as set forth below. FIFTH CAUSE OF ACTION Unfair and Unlawful Practices (Against Bank of America, FANNIE MEA and Does 10 through 100) 122. Plaintiffs incorporate in this cause of action all of the allegations above as though set

24
25·

forth in full herein. 123. California's Unfair Competition Law (VCL) defines unfair competition to include any

26 27 28

"unlawful, unfair, or fraudulent" business act or practice. California Business & Professions Code §17200, et seq. 15
FIRST AMENDED VERIFIED COMPLAINT

_

v BAe Home Loan Servicing, LP.

1

124.

By its terms, the statute is broad in scope. "It governs 'anti-competitive business

2
3
4

practices! as well as injuries to consumers, and has as a major purpose "the preservation of fair business competition." [Citations.]" (Cel-Tech Communications; Inc. v. Los Angeles Cellular

Telephone Co. (1999) 20 CalAth 163, 180.) "By defining unfair competition to include any 'unlawful ... business act or practice' [citation], the UCL permits violations of other laws to be treated as unfair competition that is independently actionable. [Citation.]" (Kasky v. Nike, Inc. (2002) 27 CaL4th 939, 949.) In addition, under the UeL,
«

5
6

7
8

Fapractice may be deemed unfair even if

not specifically proscribed by some other law.' [Citation.]" (Korea Supply Co. v. LockheedMartin Corp. (2003) 29 Cal. 4th 1134, 1143.) The remedies available under the UCL are "cumulative ... to the remedies or penalties available under all other laws of this state." (Business & Professions Code,

9

10 11 12 13

§ 17205.) Arce v Kaiser Foundations Health Plan, Inc. (2010)
125. Defendants have violated Cal Business & Professions Code § 17200, et seq., with the conduct as alleged above 126. As more fuIIy described above, Defendants' acts and practices are likely to deceive,

14
15

constituting a fraudulent business act or practice. This conduct is ongoing and 'continues to this date. 127. Specifically, Defendants engage in deceptive business practices with respect to

16 17
18 19 20 21

mortgage loan servicing, foreclosure of residential properties and related matters by: a. Refusing to offer a "resolution" .of the default after leading plaintiff to believe that the "HomeS aver" agreement would lead to another agreement that would Cure the Arrearages (which they never disclosed in amount) by creating a plan of decreased monthly payments that resulted in a payback of approximately $9,910.44; b. Selling the home at foreclosure within 30 days of receiving the written denial of modification in violation of the Making Home Affordable Guidelines; c. Failing to stop the foreclosure process when Fannie Mae and Bank: of America agreed to permanently modify Mr. _ that prohibit dual tracking; d. Failing to explore foreclosure alternatives with loan in May 2011 in violation of federal regulations

22
23

24 25
26

27
28

Default in violation of Civ Code §2923.5 and the HomeSaver plan guidelines as quoted above; 16
FIRST AMENDED VERIFIED COMPLAINT

Mr._

prior to filing the Notice of

_

v RAe Home Loan Servicing, L.P.

1 2 3 4
5

e. Inserting deceitful language in the forbearance plan using phrases such as "HomeSaver" "long term solution: and "resolution of my default" leading the public and the_ to believe that they were going to be offered some type of permanent

solution so that they could save their home if they signed the agreement, supplied the information requested and made all of the payments on time. f. Failing to make a determination or identify a permanent solution so that the public like the_ could save their home by the third month of the plan in violation of the

6
7

HomeSaver Guidelines quoted above in breach of industry standards set by 15 USC 1639a. g. Falsely representing that the_ fact the_ did not qualify for RAMP modification when, in

8
9

10
11 12

did qualify for a HAMP modification in breach of industry standards

set by 15 USC 1639a. h. Auctioning off the home for less than the amount owed, yet refusing to reduce the principal which would have resulted in a positive NPV in breach of industry standards set by 15 USC 1639a. i. Representing in the May 16, 2011 letter by Bank of America to Mr. _ that "once

13 14 15
16

we have finished reviewing your information, we will contact you within 10 days to let you know what other options are available to you and the next steps you need to take" then selling the home within 10 days at foreclosure auction without contacting Mr. _ 1639a. 128. Defendants Bank of America and Recontrust Company, N.A. were unfair, unlawful and providing other options in breach of industry standards set by 15 USC

17
18

19 20
21 22 23 24

and/or fraudulent by defaulting plaintiff before allowing them to pursue foreclosure alternatives in violation of Cal Civ Code Proc §2923.5 and then further deceptive by purporting Bank of America was in compliance with the statute when in fact it was continuing to review the plaintiff for modifications while its authorized agent executed the Notices of Sale and Notice of Default. 129. Defendants failed to act in good faith and respond to borrower's communications and

25
26

requests in compliance with applicable law. 130. Defendants Bank of America and Fannie Mae engaged in «fraudulent," "unfair" or

27 28

"unlawful" acts by offering modified loan terms that did not result in a reduction of monthly

17
FIRST AMENDED VERIFIED COMPLAINT

_

v BAe Home Loan Servicing, LP.

1

payments, longer pay offterrns or reduction of principal after plaintiffs performed over the past year in good faith by entering into defendants' 'HomeSaver' agreement and taking on the burden of

2 3
4 5 6 7 8 9

providing all of the information repeatedly requested by defendants. 131. Defendants engaged in a uniform pattern and practice of unfairly using the loss

mitigation process as a collection and foreclosure activity that resulted in causing emotional duress of distressed homeowners and unwarranted payments. The scheme implemented by Defendants is designed to defraud California consumers and enrich Defendants. 132. Plaintiffs are further informed and believe and allege thereon that defendants'

unlawful, unfair and fraudulent business practices are likely to deceive the public and are likely to continue to induce members of the public into relying to their detriment on statements and agreements made by Bank of America including Bank of America's statements indicating or leading the public to believe that they will receive a loan modification or other "resolution" or "permanent" "solution" as a "HomeSaver" with letters like those sent in August 2009. 133. consumers. 134. As a direct and proximate cause of the unlawful, unfair and fraudulent acts and The foregoing acts and practices have caused substantial harm to California

10 11 12 13

14
15 16 17 18 19 20 21 22 23 24 25 26 27 28

practices of Defend ants, Plaintiffs and California consumers have suffered and will continue to suffer financial losses such as those described by this plaintiff 135. By reason of the foregoing, Defendants have been unjustly enriched and should be

required to pay for all damages caused by their conduct, remediate all credit damage created thereby, and make restitution to Plaintiffs and other California consumers who have been harmed, and/or be enjoined from continuing in such practices pursuant to California Business & Professions Code Sections 17203 and 17204. Additionally, Plaintiffs are therefore entitled to injunctive relief and attorney's fees as available under California Business and Professions Code Sec. 17200 and related sections. Wherefore plaintiff demands judgment against defendants as set forth below.

SIXm CAUSE OF ACTION Quiet Title .(Against All Defendants)

18 ~TAMENDEDVERWmDCOMPLMNT _ v RAe Home Loan Servicing, L.P.

1 2 3
4

136.

Plaintiffs incorporate herein by reference the allegations made in paragraphs above, as

though fully set forth herein. 137. Plaintiffs request that the court quiet all claims to the Subject Property as a result of

the fraudulent foreclosure of said property by Defendants or their agents. The claims of Defendants are without any right whatever and such defendants have no right or interest in the Subject Property of Plaintiffs. 138. Plaintiff, __ held and now hold an interest in the Subject Property

5

6
7

as the true owner. The basis of'Plaintiff' s title is a deed that was recorded in his favor and his continuing interest as the person in possession of Subject Property. A true and correct copy of the Deed is attached hereto as Exhibit G. 139. Plaintiffs are seeking to quiet title against the claims of any and all defendants who

8
9

10 11

claim to have or formerly had an interest in the Subject Property. 140. Plaintiffs request that the court quiet all claims to the Subject Property as a result of

12 13 14 15 16 17 18 19
20

the fraudulent foreclosure of said property by defendants or their agents. The claims of defendants are without any right whatever and such defendants have no right or interest in the Subject Property of Plaintiffs. 14L Plaintiffs seek to quiet title against all defendants, and each of them, as of the date this

action is filed (declaratory and injunctive relief). 142. Defendants' claims are without any right, and defendants' have no right, title, estate,

lien or interest in the Property or any part of it. 143. The claims of the defendant are contingent or unknown in that

loan from Countrywide who is not attempting and did not foreclose 144. According to the AG Settlement,

Mr._ obtained on Mr. _ loan.

his

21 22 23
24
25

Mr._

was a potential beneficiary whose loan

was supposed to be modified, not accelerated and foreclosed upon. 145. Defendants lacked standing to nonjudicially foreclose, making the Notice of Default,

Notice of Sale and subsequent sale legally void (not merely voidable) wherein no tender is required. 146. 147. Alternatively, it would inequitable to require plaintiff to tender payment in this case. The claim of defendants is uncertain in that on or about May 2011 the Subject Property

26
27 28

was sold in violation of Cali fomi a and/or federal law thereby making the sale a legal nullity.

19

~TAMENDEDvEmwmDCOMP~T _ v BAe Home Loan Servicing, LP.

1

148.

Furthermore, on April 13,2011 the Office of Thrift Supervision found Bank: of

2 3
4

America "engaged in the following unsafe or unsound practices: (a) filed or caused to be filed in state and federal courts numerous affidavits executed by its employees or employees of third-party service providers making various assertions, such as ownership of the mortgage note and mortgage, the amount of the principal and interest due, and the fees and expenses chargeable to the borrower, in which the affiant represented that the assertions in the affidavit were made based on personal knowledge or based on a review by the affiant of the relevant books and records, when, in many cases, they were not based on such personal knowledge or review of the relevant books and records;

5 6
7 8 9

(b) filed or caused to be filed in state and federal courts, or in local land records offices, numerous
affidavits or other mortgage-related documents that were not properly notarized, specifically that were not signed or affirmed in the presence of a notary; (c) litigated foreclosure and bankruptcy proceedings and initiated non-judicial foreclosure proceedings without always ensuring that the promissory note and mortgage document were properly endorsed' or assigned ... "

10
11

12 13

149.

MERS received a similar Order on April 13,2011 from the Office of Comptroller of
Wherefore plaintiff demands judgment against defendants as set forth below.

14
15 16 17 18 19 20 21 22 23 24 25
26

Currency (OCC).

PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for judgment against defendants, and each of them, as
follows:

A. Enjoin the Defendants from evicting Plaintiff and prohibit Defendant from initiating
unlawful detainer actions. B. To quiet title in favor of Plaintiff and against All Defendants;

C. For issuance of an Order canceling all Notice of Defaults, Notice of Sale, and Trustee's Dee
Upon Sale; D. To vacate the Trustee's Deed Upon Sale or any Writ of Possession thereafter and declare them a legal nullity;

E. For a declaration of the rights and duties of the parties, specifically that the foreclosure ofth
Subject Property was wrongful; F. To vacate and set aside the trustee's sale;

27 28

G. Compensatory, Special and General Damages as proven at trial;
20
FIRST AMENDED VERIFIED COMPLAINT

_

v RAe Home Loan Servicing, LP.

1 2

H. Statutory damages and civil penalties; I. Pursuant to Business and Professions Code § 17203, that all Defendants, their successors,
agents, representatives, employees, and aU persons who act in concert with them be permanently enjoined from committing any acts of unfair competition in violation of §

3
4

5
6 7

17200, including, but not limited to, the violations alleged herem. J. Disgorgement of profits;
K. Costs of this action, including the fees and costs of experts; L. Attorneys' fees; M. Prejudgment interest at the statutory rate; N. Post-judgment interest;

8
9

19
11

O. Exemplary and Punitive Damages; and P. Such other and further relief as this Court finds necessary and proper.
Dated: November 4, 2011 Respectfully Submitted, LAW OFFICES OF LENORE ALBERT

12
13

14 15
16

Is/Lenore AJbe~~&t

LENOREL. AL T, Q. Attorney for Plaintiffs, __ DEMAND FOR JURy TRIAL Plaintiffs hereby demand a jury tria1. Dated: November 4, 2011 RespectfuU y Submitted, LAW OFFICES OF LENORE ALBERT

17
18 19· 20

21 22
23

lsi Lenore A1be~~ LENOREL. AL E

,E Q.

.

24 25
26 27

Attorney for Plaintiff, __

VERIFICATION 21
FIRST AMENDED VERIFIED COMPLAINT

28

_

v BAe Home Loan Servicing, L.P.

Sign up to vote on this title
UsefulNot useful

Master Your Semester with Scribd & The New York Times

Special offer for students: Only $4.99/month.

Master Your Semester with a Special Offer from Scribd & The New York Times

Cancel anytime.