22871246 federal complaint plaintiff or s

1_________________________________________________

Complaint

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

TIMOTHY L. MCCANDLESS, ESQ. SBN 147715LAW OFFICES OF TIMOTHY L. MCCANDLESS13240 Amargosa RoadVictorville, California 92392

(760) 951-3663 Telephone(909) 382-9956 Facsimile

Attorney for Plaintiff(s)(Plantiff Name(s)

SUPERIOR COURT FOR THE STATE OF CALIFORNIA

IN AND FOR COUNTY OF County

PLAINTIFF(s)

Plaintiff,

V.

DEFENDANTS

and DOES 1 through 50 inclusive

Defendants.

CASE NO:

COMPLAINT FOR:

(1) DECLARATORY RELIEF(2) CANCELLATION OF DEED(3) DAMAGES ARISING FROM:(4) BREACH OF FIDUCIARY DUTY(5) BREACH OF COVENANT OF

GOOD FAITH AND FAIR DEALING

(6) INJUNCTIVE RELIEF(7) FRAUD(8) DAMAGES ARISING FROM:

VIOLATION OF [15 U.S.C. 1611 et seq.]; VIOLATION OF [26 U.S.C. 2605 et sq.]; VIOLATION OF [15 U.S.C. 1602 et seq.]; VIOLATION OF [15 U.S.C. 1692];

COMES NOW, Plaintiff(s) PLANTIF(s) NAME, hereby

complains and alleges as follows:

ALLEGATIONS COMMON TO ALL COUNTS

2_________________________________________________

Complaint

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1. Plaintiff(s), PLAINTIFF(s) NAME is a resident of the County of County and the

owner of certain real property (hereinafter referred to as the Property) located at

ADDRESS and more particularly described as: Property_Description APN:

APN_Number

2. Defendant ON DEED OF TRUST (hereinafter referred to as SHORT NAME.

3. Defendant ON DEFAULT (hereinafter referred to as SHORT NAME.

4. The true names of Defendants named herein as DOES 1 through 50, whether

individual, corporate, associate or otherwise, are presently unknown to Plaintiff(s)

who therefore, sues said Defendants by such fictitious names; Plaintiff(s) are

informed and believes and thereon alleges that each of the Defendants so

designated herein proximately caused and contributed to the damages herein

alleged, and Plaintiff(s) will ask leave of Court to amend this Complaint to insert

the true names and capacity of DOES 1 through 50 when the same have been

ascertained and to join such Defendants in this action.

5. Plaintiff(s) are informed and believes and thereon alleges that, at all times herein

mentioned each of the defendants sued herein in relation to the property they claim

an interest in was the agent and employee of each of the remaining defendants

thereof and at all times was acting within the purpose and scope of such agency and

employment.

6. On or about DATE OF DEED, Plaintiff(s) executed an Adjustable Rate Note

promising to pay PLAINTIFF(s) NAME the sum LOAN AMOUNT FROM

DEED? 1ST DEED? 2ND DEED? by monthly payment.

7. The Adjustable Rate Note was based upon a six-month adjustable rate.

3_________________________________________________

Complaint

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

8. Plaintiff(s) allege that Defendants and each of them neither explained the workings

of the rate, how it is computed nor its inherent volatility.

9. Further, on information and belief, Plaintiff(s) allege that the Defendants charged

and obtained improper fees for the placement of his loan as sub-prime when he

qualified for a prime rate mortgage which would have generated less in fees and

interest.

10. On information and belief, Plaintiff(s) allege that the service of the purported note

was, without his knowledge, by some means transferred from or by Defendant,

either completely or by association or other means to DOE 1 who unknown to

Plaintiff provided services in various forms to be determined to others which were

of such a nature to render them a Servicer within the definition found within 26

U.S.C. 2605.

11. In the course of this consumer transaction, Defendants violated 15 U.S.C.

1635(a) and Regulation Z, 226, by failing to deliver to Plaintiffs two copies of a

notice to rescind (DO WE HAVE ONE? IF NOT, REMOVE) that: Attached her as

Exhibit ???

12. Also on DATE OF DEED Plaintiff(s) executed a Deed of Trust which cited the

lender as LENDER Attached her as Exhibit ???

13. On or about DATE OF DEED, PLAINTIFF(s) NAME transferred the deed of trust

to DEFENDANT.

14. Also on DATE OF DEED, Plaintiff(s) executed a Deed of Trust which cited the

lender as LENDER and stating in the definition section that:

(E) MERS is Mortgage Electronic Registration Systems, Inc. MERS is a

4_________________________________________________

Complaint

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

separate corporation that is acting solely as a nominee for Lender and Lenders

successors and assigns. MERS is the beneficiary under this Security Instrument.

15. On or about DATE OF DEED, the Deed of Trust was recorded with the

County County Recorder and DEFENDANT was named as Trustee of the

Deed of Trust.

16. On or about Transfer_Date, Plaintiff(s) received a Mortgage Loan Statement

from DEFENDANT ON MORTGAGE LOAN for the property address:

ADDRESS for loan number.

17. The Mortgage Loan Statement included a coupon for payment with a mailing

address for DEFENDANT ON MORTGAGE LOAN.

18. On or about DEFAULT DATE an unknown employee of DEFENDANT ON

DEFAULT executed on behalf of the alleged Beneficiary a Notice of Breach

and Default and of Election to Cause Sale of Real Property Under Deed of Trust

(hereinafter referred to as Notice of Breach) stating that the payments were due

to Mortgage Electronic Registration Systems as Beneficiary. Attached here as

Exhibit ???.

19. On the Notice of Breach, it stated, in part, that Plaintiff(s) as Trustor, to secure

certain obligations in favor of Mortgage Electronic Registration Systems, as

beneficiary.

20. It further states that:

That by reason thereof of the present Beneficiary under such

deed of Trust has executed and delivered to said duly appointed

Trustee a written Declaration of Default and Demand for Sale and

5_________________________________________________

Complaint

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

has deposited with said duly appointed Trustee such Deed of Trust

and all documents evidencing obligations secured thereby and has

declared and does hereby declared all sums secured thereby

immediately due and payable and has elected and does hereby elect

to cause the trust property to be sold to satisfy the obligations served

thereby.

The Notice of Breach also states:

You may have the right to cure the default hereon and reinstate the

one obligation secured by such Deed of Trust above described.

Section permits certain defaults to be cured upon the Payment of

the amounts required by that statutory section without requiring

payment of that portion of principal and interest which would not be

due had no default occurred. Where reinstatement is possible, if the

default is not cured within 35 days following the recording and

mailing of this Notice to Trustor or Trustors successor in interest,

the right of reinstatement will terminate and the property may

thereafter be sold.

22. Plaintiff(s) are informed and believe and thereupon allege that the NOTE was

invalid and unenforceable due to the intentional and willful violations including but,

not limited to: provisions contained in the Truth In Lending Act 15 U.S.C. '' 1601,

1640 etc. et seq.; Regulation Z ' 226 etc. et seq. by failing and/or refusing to provide

6_________________________________________________

Complaint

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

plaintiff with two copies of the Notice to Cancel ; California Civil Code ' 2924b etc.

et seq., California Civil Code 2924b(a), 2924b(d), 2924b(e) by failing and/or

refusing to mail the Notice of Default within ten business days to Plaintiffs, by failing

and/or refusing to post and mail the Notice of Default; by failing and/or refusing to

mail Plaintiffs the Notice of Default within one month pursuant to California Civil

Code 2924b (c)(1), (2); by failing and/or refusing to properly set the sale date

pursuant to California Civil Code 2924f(b); by failing and/or refusing to publish the

Notice of Sale twenty days prior to the date set for sale pursuant to California Civil

Code 2924f(b); by failing and/or refusing to record the Notice of Sale pursuant to

California Civil Code 2924g(d).

FIRST CAUSE OF ACTION

(Violation of 15 U.S.C. 1611 et seq.)

Against all Defendants

23. Plaintiff(s) repeats and realleges Paragraphs 1 through 22 as though fully set forth

herein.

24. On information and belief, Plaintiff(s) allege that Defendants and each of them are

directly or indirectly agents or employees or persons actively involved in the extension of

credit as the term is defined under the Truth in Lending Statute (TILA).

25. On information and belief, Plaintiff(s) allege that Defendants and each of them are

subject to the requirements of the Truth in Lending Statute (TILA) and have violated the

requirements of the act in that among other things:

7_________________________________________________

Complaint

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

A. They have refused and continued to refuse to validate or otherwise make a

full accounting and the required disclosures as to the true finance charges and fees;

B. They have improperly retained funds belonging to Plaintiff in amounts to be

determined;

C. To disclose the status of the ownership of the loans.

26. Plaintiff(s) further alleges that these violations are such as to require rescission or

cancellation of the loan herein and return of all funds received by Defendants from

Plaintiff.

27. Plaintiff(s) further alleges that he is entitled to compensatory damages in an amount

to be determined at trial.

28. Plaintiff(s) further alleges that he is entitled to attorneys fees according to statute in

the event that he retains counsel.

29. On information and belief, Plaintiff(s) allege that Defendants have acted in

violation of the TILA act, willfully, maliciously, oppressively and fraudulently and in

conscious disregard for the rights of Plaintiff and as such, Plaintiff is entitled to punitive

damages.

SECOND CAUSE OF ACTION




herein.

8_________________________________________________

Complaint

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

31. Based upon information and belief, and on that basis Plaintiff(s) allege that

Defendants and each of them are such that they fall within the requirements of the Real

Estate Settlement Procedures Act (RESPA).


Defendants and each of them, placed loans for the purpose of unlawfully increasing or

otherwise obtaining yield spread fees and sums in excess of what would have been

lawfully earned.


Defendants DEFENDANTS NAMES and DOE 1 either individually or jointly as

Servicers as that term is used with the RESPA act and either individually or jointly

violated the requirements of 26 U.S.C. 2605(B) in that the servicing contract or duties

thereunder were transferred or hypothecated without the required notice.

34. Plaintiff(s) allegesthat these violations require rescission or cancellation of the loan

and a return of all funds received by Defendants from Plaintiff.

35. Plaintiff(s) further allege that he is entitled to compensatory damages in an amount

to be determined at trial.

36. Plaintiff(s) further allege that he is entitled to attorneys fees according to statute in

the event that they retain counsel.

THIRD CAUSE OF ACTION


Against all Defendants.


9_________________________________________________

Complaint

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

herein.

31. Based upon information and belief, and on that basis Plaintiff(s) alleges that the

mortgage obtained by her through Defendants, by means unknown obtained and enforced

by other Defendants herein falls within the purview of 15 U.S.C. 1602 et seq.,

commonly known as the Home Ownership and Equity Protection Act of 1994 (HOEPA).

32. Based upon information and belief, and on that basis Plaintiff(s) alleges that the

loan was placed in violation of the HOEPA act as it was placed and administered and

otherwise utilized without regard to Plaintiffs income or cash flow and with the intention

of inducing a default.

33. Plaintiff(s) became aware of this upon the discovery of Defendants intent to

wrongfully foreclose and sell his property.

34. As a direct and a legal consequence of the above actions, Plaintiff(s) have been

damaged in a sum to be proven at trial.

FOURTH CAUSE OF ACTION

(Violation of 15 U.S.C. 1692)



herein.


Defendants and each of them are debt collectors either directly or through agents as

that term is used in the United States Code.

10_________________________________________________

Complaint

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

37. Plaintiff(s) alleges that he duly and properly on more than one occasion requested

validation of the debt under 15 U.S.C. 1692, the Fair Debt Collection Practices Act

(FDCPA).

38. Plaintiff(s) further allege that Defendants did not respond to his demands in such a

ways as to meet the requirements of the act.

39. Plaintiff(s) are entitled to statutory damages under the FDCPA.

FIFTH CAUSE OF ACTION

(Breach of Fiduciary Duty)



herein.

41. At all times relevant, Defendants created, accepted and acted in a fiduciary

relationship of great trust and acted for and were the processors of property for the

benefit of Plaintiff(s).

42. Defendants further placed themselves in a position of trust by virtue of the

expertise represented by and through his employees.

43. Defendants breached his fiduciary duties owed to Plaintiff(s) as they have acted and

continue to act for his own benefit and to the detriment of Plaintiff(s).

44. Among other things, they have placed and negotiated loans without due care to the

best interests of Plaintiff(s) or for the protection of his rights.

45. As a direct and proximate result of the breach of the fiduciary duties, Plaintiff(s)

11_________________________________________________

Complaint

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

have suffered economic damages and loss of funds and payment of fees improperly

incurred in an amount to be proved at trial.

46. On information and belief, Plaintiff(s) alleges that Defendants have acted willfully,

maliciously, oppressively and fraudulently and in conscious disregard for the rights of

Plaintiff(s) and as such, Plaintiff(s) are entitled to punitive damages.

SIXTH CAUSE OF ACTION

(Breach of Covenant of Good Faith and Fair Dealing)


47. Plaintiff repeats and realleges Paragraphs 1 through 46 as though fully set forth

herein.

48. Plaintiff alleges that at all times there existed an implied covenant of good faith and

fair dealing requiring Defendants, and each of them, to safeguard, protect, or otherwise

care for the assets and rights of Plaintiff(s). Said covenant prohibited Defendants from

activities interfering with or contrary to the rights of Plaintiff(s).

49. Plaintiff alleges that the commencement of foreclosure proceedings upon the

property lawfully belonging to Plaintiff without the production of documents

demonstrating the lawful rights for the foreclosure constitutes a breach of the covenant.

50. As a direct and proximate result, Plaintiff has been damaged in a sum to be proven

at trial.

12_________________________________________________

Complaint

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

SEVENTH CAUSE OF ACTION

(Injunctive Relief)



herein.

52. Plaintiff seeks a determination as to the legal status of the parties to the Adjustable

Rate Note and the Deed of Trust.

53. The Adjustable Rate Note states that the Lender is LENDER NAME.

54. It also states, Lender or anyone who takes this Note by transfer and who is entitled

to receive payment under this Note is called the Note Holder.

55. DEFENDANT TRUSTEE SALE DATE? sent to Plaintiff(s) a statement dated on

or around Transfer_Date(trustee date) with a coupon asking for payment.

56. The Notice of Breach signed on or about DATE and states that MERS is the

Beneficiary.

57. Plaintiff(s) say they are entitled to the money

58. The deed of trust states that Mortgage Electronic Registration Systems is the

beneficiary.

59. There is a controversy to be decided by this Honorable Court as on or about DATE

OF DEED Plaintiff(s) received a Deed of Trust stating that the money is owed to

Mortgage Electronic Registration Systems, but on or about DATE OF TRUSTEE

SALE? DEED? Plaintiff(s) received notice that the payments were due to Defendants

13_________________________________________________

Complaint

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

and on NOITCE OF DEFAULT the Notice of Breach states that MERS is the

Beneficiary.

60. Additionally, based upon information and belief, Mortgage Electronic Registration

Systems has not qualified to do business in the State of California and therefore, would

not have standing to seek non-judicial remedies as well as judicial remedies.

61. Defendants should be required to provide the original note with the appropriate

endorsements thereon to Plaintiff(s) or this Honorable Court so that it may determine in

accordance with the California Revised Statutes, who owns the right to receive

payments on loan number and exercises the rights relating to said ownership.

62. Only the Note Holder is authorized to collect payments and, in the event of a

default, commence foreclosure proceedings, including authorizing the substitution of a

Trustee.

63. Until Defendants are able to provide Plaintiff(s) and this Honorable Court the

aforementioned documents, this Honorable Court should order that Plaintiff(s) are not

required to make any further payments on the Adjustable Rate Note and enjoin any

further collection activity on the Note, including staying the count down towards the

date a Notice of Trustees sale may be filed and served.

EIGHTH CAUSE OF ACTION

(Injunctive Relief)


64. Plaintiff repeats and realleges Paragraphs 1 through 70 as though fully set forth

14_________________________________________________

Complaint

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

herein.

65. Plaintiff(s) are the owner in fee simple of the real property located at ADDRESS

and more particularly described as:Property_Description APN: APN_Number

66. Plaintiff(s) received the fee simple title by virtue of the Grant, Bargain, Sale Deed

recorded in the Office of the County Recorder, County County, California.

67. Defendants ALL DEFENDANTS claim an interest or estate in the Plaintiff (s)

property disputing or denying Plaintiffs rights to ownership and by contending that his

ownership is or will be with Defendants by means of a Trustees sale.

68. Plaintiff alleges that Defendants, ALL DEFENDANT have no such right, title or

interest in the estate of the Property in that the Trustees sale proposed will be

fraudulent or otherwise in violation of federal and state law and transfer no rights to

Defendants.

69. Defendants have wrongfully interfered with or threaten to interfere with Plaintiffs

use and enjoyment of the Property in that they threaten to dispossess them.

70. Defendants threats to dispossess Plaintiff(s) of his home will continue unless and

until enjoined or restrained by this Honorable Court.

71. Failure to enjoin or restrain Defendants will cause Plaintiff(s) grave and irreparable

harm as they will be deprived of the use and enjoyment of unique property.

72. Plaintiff(s) have no adequate remedy at law for the threatened and continuing

conduct of the impending Trustees sale. The sale of Plaintiffs home will not be

properly compensated by an award of money damages.

73. Plaintiff(s) further allege that the conduct herein described is of such a nature and

character to give them title to the Property

15_________________________________________________

Complaint

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

NINTH CAUSE OF ACTION

(For Declaratory Relief)



herein.

75. A dispute has arisen between and among Plaintiff(s) and Defendants and each of

them as to the duties and obligations of the respective parties with regard to the loan or

the foreclosure.

76. These disputes concern but are not limited to the ownership rights and the validity

of the commencement of the foreclosure process.

77. As to these issues, Plaintiff(s) are required to seek this relief.

78. Plaintiff(s) further alleges that a declaration of rights and duties of the parties

herein are essential to determine the actual status and validity of the loan, deed of trust,

nominated beneficiaries, actual beneficiaries, loan servicers, trustees instituting

foreclosure proceedings and related matters.

TENTH CAUSE OF ACTION

(Fraud)


79.Plaintiff(s) repeats and realleges Paragraphs 1 through 85 as though fully set forth

16_________________________________________________

Complaint

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

herein.

80.Plaintiff(s) seek a determination as to the legal status of MERS as the Deed of

Trust states that MERS is a separate corporation that is acting as Beneficiary for

Lenders successors and assigns.

81.Based upon information and belief and on that basis, Plaintiff alleges that MERS

did not pay any consideration for the Adjustable Rate Note and in fact was paid a fee

by LENDER to act solely as Beneficiary as lender.

82.Based upon information and belief, and on that basis Plaintiff(s) alleges that MERS

will only notate on its internal record keeping system the name of the beneficiary of

the deeds of trust and will never tell the trustors the name of the true beneficiary.

83. As a result, the loan may be transferred from company to company, or

bundled together with other loans, pledged to quasi-governmental agencies and then

sold as securities on the stock exchange.

84.This practice allows the beneficiary to allegedly be changed without the necessity

of completing an assignment of deed of trust, obtaining the appropriate signatures,

and recording the assignment with the County County Recorder and otherwise

notifying Plaintiff(s) of a change in his beneficiary.

85. Courts across the United States have held that MERS, named as a nominee

or Beneficiary, does not have the standing of the beneficiary to enforce the Deed of

Trust through the foreclosure process.

86.Defendants DEFENDANT NAMES and MERS, and each of them, made a

representation to Plaintiff on DATE OF DEED that MERS had the rights and standing

of a beneficiary under California law.

17_________________________________________________

Complaint

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

87.This statement was made on the Deed of Trust and presented to Plaintiff(s) at the

offices of the Title Company on DATE OF DEED.

88. When Defendants and MERS, and each of them made the representation

that MERS was the beneficiary under the Deed of Trust, they both knew that the

statement was false when made.

89.The statement was made to have Plaintiff(s) rely on the misrepresentation by

executing the Deed of Trust and Plaintiff did actually rely on the misrepresentation by

his signatures affixed to the Deed of Trust on DEED OF TRUST DATE.

90.Plaintiff(s) have been damaged as a result of said reliance as they have had the title

to the Property slandered as a result of the filing of the Notice of Breach.

91.Plaintiff(s) have been further damaged by the necessity of seeking judicial

intervention to prevent the foreclosure of the Property.

92.On information and belief, Plaintiff(s) alleges that Defendants and MERS have

acted willfully, maliciously, oppressively and fraudulently and in conscious disregard

for the rights of Plaintiff and as such, Plaintiff are entitled to punitive damages.

ELEVENTH CAUSE OF ACTION

(For Fraud)

Against ALL DEFENDANTS

93.Plaintiff(s) repeats and realleges Paragraphs 1 through 99 as though fully set forth

herein.

94.On or about NOTICE OF DEFAULT an unknown employee of DEFENDANT ON

DEFAULT executed on behalf the alleged Beneficiary, DEFENDANT ON

DEFAULT, a Notice of Default which stated that the payments were due to MERS

18_________________________________________________

Complaint

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

as Beneficiary. Notice of Breach and Default and of Election to Cause Sale of Real

Property Under Deed of Trust (hereinafter referred to as Notice of Breach).

95.On the Notice of Breach, it stated, in part, that Plaintiff(s) as Trustor, to secure

certain obligations in favor of MERS, as beneficiary.

96.It further states that: That by reason thereof of the present Beneficiary under such

deed of Trust has executed and delivered to said duly appointed Trustee a written

Declaration of Default and Demand for Sale and has deposited with said duly

appointed Trustee such Deed of Trust and all documents evidencing obligations

secured thereby and has declared and does hereby declared all sums secured thereby

immediately due and payable and has elected and does hereby elect to cause the trust

property to be sold to satisfy the obligations served thereby.

97. This representation was made by these defendants in order to induce

reliance by Plaintiff(s).

99. Plaintiff(s) did rely on these representations and because of his reliance his

property has advanced in the foreclosure stage to a sale and Plaintiffs reliance was

justified.

100. Plaintiff(s) is informed and believes that the representation as stated on the

Notice of Default were a false representation in the following particular(s)

A. Documents were not provided to the trustee that showed that either MERS or any of the

Defendants Identified as Does 1-10, were the Beneficiary and entitled to the payments.

B. At the time Defendants made the representations they knew they were false and were made

for the sole purpose of inducing reliance.

102. Plaintiff(s) has been damaged in having his home wrongfully placed in

19_________________________________________________

Complaint

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

foreclosure and a slander of his title, and being required to become involved in this

litigation all to his damages and injuries the amount of which are subject to proof at

the time of trial.

103. That TRUSTEE ON DEED was aware of the false representations of

LENDER and remained silent thereby aiding TRUSTEE ON DEED OR BUYER in

its misrepresentation.

104. That the actions of these defendants were willful, oppressive and fraudulent

so as to justify an award of Exemplary damages.

III.

TWELVETH CAUSE OF ACTION

VIOLATION OF CALIFORNIA CIVIL CODE 2923.6

(As Against All Defendants)

105. Plaintiff(s) reallege and incorporate by reference the above paragraphs 1 through

103 as though set forth fully herein.

106. Defendants Pooling and Servicing Agreement (hereinafter PSA) contains a

duty to maximize net present value to its investors and related parties.

107. California Civil Code 2923.6 broadens and extends this PSA duty by requiring

servicers to accept loan modifications with borrowers.

108. Pursuant to California Civil Code 2923.6(a), a servicer acts in the best interest of

all parties if it agrees to or implements a loan modification where the (1) loan is in

20_________________________________________________

Complaint

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

payment default, and (2) anticipated recovery under the loan modification or workout plan

exceeds the anticipated recovery through foreclosure on a net present value basis.

109. California Civil Code 2923.6(b) now provides 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.

110. Plaintiff(s) loan is presently in an uncertain state.

111. Plaintiffs(s) are willing, able, and ready to execute a modification of their loan on

a reasonable basis

(a) New Loan Amount: $INSERT LOAN AMOUNT

(b) New Interest Rate: 4%

(c) New Loan Length: 30 years

(d) New Payment: $ INSERT NEW PAYMENT

112. The present fair market value of the property is INPUT FAIR MARKET VALUE

OF HOME.

113. The Joint Economic Committee of Congress estimated in June, 2007, that the

average foreclosure results in $77, 935.00 in costs to the homeowner, lender, local

government, and neighbors.

114. Of the $77,935.00 in foreclosure costs, the Joint Economic Committee of

Congress estimates that the lender will suffer $50,000.00 in costs in conducting a non-

judicial foreclosure on the property, maintaining, rehabilitating, insuring, and reselling the

property to a third party. Freddie Mac places this loss higher at $58,759.00.

115. Pursuant to California Civil Code 2823.6, Defendants are now contractually

bound to accept the loan modification as provided above and tender is deemed made

21_________________________________________________

Complaint

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

pursuant to Defendants Pooling and Service Agreement, California Civil Code 2923.6(a),

and California Civil Code 2923.6(b), taken individually or entirely. Plaintiff(s) invoke the

remedies embodied in the aforementioned agreement and/or codes with a willingness to

execute a modification of their loan.

116. Alternatively, Plaintiff(s) allege that tender, if any, is excused by obstruction or

prevention or imposition of unwarranted conditions by the person or corporate entity to

whom it was to be made.

117. Alternatively, Plaintiff(s) allege that obstruction or imposition of unwarranted

conditions by defendants occurred when defendants evaded the plaintiffs attempts to

provide tender as specified and encouraged by defendants pooling agreement, California

Civil Code 2923.6(a), and California Civil Code 2923.6(b). [Hudson v. Morton, 231 Ala.

392, 165 So. 227 (1936); Loftis v. Alexander, 139 Ga. 346, 77 S.E. 169 (1913); Kennedy

v. Neil, 333 Ill. 629, 165 N.E. 148 (1929); Borden v. Borden, 5 Mass. 67, 1809 WL 989

(1809); Loughney v. Quigley, 279 Pa. 396, 123 A. 84 (1924); Montague Corp. v. E.P.

Burton Lumber Co., 136 S.C. 40, 134 S.E. 147 (1926); Stansbury V. Embrey, 128 Tenn.

103, 158 S.W. 991 (1913); Loehr v. Dickson, 141 Wis. 332, 124 N.W. 293 (1910)]

118. Alternatively, Plaintiffs further allege that obstruction or imposition of unwarranted

conditions by defendants occurred when defendants manifested to the Plaintiffs that

tender, if made, will not be accepted, the Plaintiffs are excused from making tender as it

would be a futile gesture, and the law will not require the doing of a useless act.

[Simmons v. Swan, 275 U.S. 113, 48 S. Ct. 52, 72 L. Ed. 190 (1927); Lee v. Joseph E.

Seagram & Sons, Inc., 552 F.2d 447 (2d Cir. 1977); Buckner v. Tweed, 157 F.2d 211

(App. D.C. 1946); Peterson v. Hudson Ins. Co., 41 Ariz. 31, 15 P.2d 249 (1932); Woods-

22_________________________________________________

Complaint

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Drury, Inc. v. Superior Court in and for City and County of San Francisco, 18 Cal. App.

2d 340, 63 P.2d 1184 (1st District 1936); Chesapeake Bay Distributing Co. v. Buck

Distributing Co., Inc. 60 Md. App. 210, 481 A.2d 1156 (1984); Issacs v. Caterpillar, Inc.,

765 F. Supp. 1359 (C.D. Ill. 1991); Platsis v. Diafokeris, 68 Md. App. 257, 511 A.2d 535

(1986)]

119. Alternatively, Plaintiff(s) further allege that obstruction or imposition of

unwarranted conditions by defendants occurred when defendants objection for want of

actual tender of money is waived by defendants refusal to receive the money if produced.

[Shaner v West Coast Life Ins. Co, 73F.2d 681 (C.C.A. 10th Cir. 1934); Buell v. White,

908 P.2d 1175 (Colo. Ct. App. 1995) (when party, who is willing and able to pay, offers

to pay another a sum of money and is advised that it will not be accepted, offer amounts

to tender even though money is not produced); Hall v. Norwalk Fire Ins. Co., 57 Conn.

105, 17 A. 356 (1888); Lamar v. Sheppard, 84 Ga. 561, 10 S.E. 10984 (1890); Ventres v.

Cobb, 105 Ill. 33, 1882 WL 10475 (1882); Metropolitan Credit Union v. Matthes, 46

Mass. App. Ct. 326, 706 N.E.2d 296 (1999)].

WHEREFORE, Plaintiff(s) prays for damages as follows:

1. For compensatory damages, amount to be determined.

2. For punitive damages in an amount to be determined.

3. For any statutory damages according to law;

4. For Injunctive Relief including the issuance of a restraining order and thereafter a

preliminary injunction to maintain the status quo pending final adjudication;

5. For attorneys fees in the event that counsel is retained;.

23_________________________________________________

Complaint

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

6. For a declaration of the rights of the parties relative to Plaintiffs Home, including

a declaration that Defendants have no enforceable lien against Plaintiffs Home;

7. For a preliminary injunction and permanent injunction enjoining all Defendants,

their agents, assigns, and all person acting under, for, or in concert with them, from

foreclosing on Plaintiffs Home or from conducting at trustees sale or causing a trustees

sale to be conducted relative to Plaintiffs Home.

8. Cancellation of the sale and restitution of the home to the Plaintiffs; and

9. For damages as provided by statute;

10. For an Order enjoining Defendants from continuing to violate the statutes alleged

herein;

11. For an Order, requiring Defendant to reinstate Plaintiff on title to his Property, and

or a restraining order preventing Defendants and his, hers, or its agents, employees,

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

following acts: (i) offering, or advertising this property for sale and (ii) attempting to

transfer title to this property and or (iii) holding any auction therefore;

12. For such other and further relief as the court may deem just and proper.

DATED November 21, 2009

LAW OFFICES OF TIMOTHY MCCANDLESS ESQ.

______________________________________________Timothy L. McCandless, Esq.,

Attorney for Plaintiff(s), NAME

24_________________________________________________

Complaint

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

VERIFICATION

I, TIMOTHY L. MCCANDLESS, am an attorney at law admitted to practice before all courts of

the State of California and have my office in San Bernardino County, California, and am the

attorney for the Plaintiff in this action, that all of the officers of the Plaintiff are unable to make the

verification because they are absent from said County and for that reason affiant makes this

verification on the Plaintiffs behalf; that I have read the foregoing document and know its

contents. I am informed and believe and on that ground allege that matters stated herein are true.

Executed July 15, 2009, at Victorville, Californa.

I declare under penalty of perjury that under the laws of the State of California that the foregoing

is true and correct.

DATED: July 15, 2009

___________________________________TIMOTHY L. MCCANDLESS, ESQ