UNITED STATES BANKRUPTCY COURT DISTRICT OF DELAWARE CASE # ADVERSARY # 7001(2)

Transcription

1 0 0 RONI ROTHOLZ, ESQ. (CA SBN 0) 0 Olympic Blvd, Suite 0 Walnut Creek, CA Telephone: () -0 Facsimile: () - rrotholz@aol.com FRANCISCO WENCE, VS. PLAINTIFF WASHINGTON MUTUAL, BANK OF AMERICA, DOES I- XX, INCLUSIVE, DEFENDANTS UNITED STATES BANKRUPTCY COURT DISTRICT OF DELAWARE CASE # 0- ADVERSARY # VALIDITY, PRIORITY OR EXTENT OF LIEN FRBP 00() COMPLAINT FOR DAMAGES VIOLATION OF THE AUTOMATIC STAY U.S.C. (h); COMPLAINT FOR DAMAGES CONSPIRACY TO VIOLATE THE AUTOMATIC STAY. WRONGFUL FORECLOSURE; QUIET TITLE TO REAL PROPERTY; INJUNCTIVE RELIEF COMPLAINT TO DETERMINE VALIDITY, PRIORITY OR EXTENTOF LIEN FRBP 00()

2 0 0 This a complaint brought under (b) or of the Code, Rule 0, or Rule 00, () to determine the validity, priority, or extent of a lien or other interest in property by Defendants. NATURE OF ACTION Violation of the AUTOMATIC STAY, JURISDICTION AND VENUE This Court has jurisdiction over the subject matter of this Adversary Complaint pursuant to U.S.C. and.. Venue is proper in this district under U.S.C. 0.. This adversary proceeding is a core proceeding pursuant to U.S.C. (b)()(a),(h) and (O). INTRODUCTORY STATEMENT. On September, 00, Defendant WASHINGTON MUTUAL filed a voluntary petition for relief under Chapter of the United States Bankruptcy Code (the "Bankruptcy Code"). The two cases (the "Bankruptcy Cases") WMI Investment Cor., Case # 0- and Washington Mutual, Inc, both being jointly administered under Washington Mutual, Inc., Case No. 0- and are currently pending before The Honorable Mary F. Walrath in the United States Bankruptcy Court for the District of Delaware.

3 0 0 Upon filing for Bankruptcy protection the AUTOMATIC STAY was imposed consistent with U.S.C.. THE AUTOMATIC STAY Section (a) contains a long list of actions that are stayed by the filing of a bankruptcy petition. There are prohibited actions which prevent the creditor from taking certain actions. The automatic stay precludes creditors from enforcing pre-petition judgments against the debtor, perfecting or enforcing liens granted pre-petition, foreclosing on collateral, terminating contracts on account of pre-petition defaults, or taking any number of other actions against the debtor or its property DISCUSSION Under section (a) of the Bankruptcy Code, the filing of a petition creates a broad automatic stay. This provision has been described as one of the fundamental debtor protections provided by the bankruptcy laws. Midlantic Nat l Bank v. New Jersey Dep t of Envtl. Protection, U.S., 0, 0-- S. Ct., L.Ed.d () WILLFUL VIOLATION OF THE AUTOMATIC DAMAGES Where an individual debtor is damaged by a willful violation of the stay, section (h) provides for a recovery of damages, costs and attorney s fees. In an appropriate case, the individual may also recover punitive damages. See U.S.C. (h).

4 0 FIRST CAUSE OF ACTION PLAINTIFF S COMPLAINT TO RECOVER POSSESSION OF REAL PROPERTY QUIET TITLE AS TO WASHINGTON MUTUAL AND BANK OF AMERICA At all times herein relevant, Plaintiff was a resident of the State of California, County of Contra Costa, within this judicial district. II Defendant WASHINGTON MUTUAL is, and at all times herein mentioned was a Foreign Corporation based either in the State of Washington or the State of Delaware, and not a California based corporation. 0 III Defendant BANK OF AMERICA is, and at all times herein mentioned was a Foreign Corporation based in the State of North Carolina, and not a California based corporation. IV Plaintiff is ignorant of the true names and capacities of defendants sued herein as DOES I through X, inclusive, and therefore sue these defendants by such fictitious names. Plaintiff will amend this complaint to allege their true names and capacities when ascertained.

5 0 0 Plaintiff is informed and believe and thereon allege that, at all times herein mentioned, each of the defendants sued herein was the agent and employee of each of the remaining defendants and was at all times acting within the purpose and scope of such agency and employment V Plaintiff is and at all times herein mentioned were owners and/or entitled to possession of the property located at 0 MAHUA WAY, ANTIOCH, CALIFORNIA 0, within this judicial district. VI Plaintiff is informed and believes and thereupon allege that each of the Defendants claim an interest in the property adverse to Plaintiff herein. However, the claim of said Defendants is without any right whatsoever, and said Defendants have no legal or equitable right, claim, or interest in said property. VIII Plaintiff therefore seeks a declaration that the title to the subject property is vested in Plaintiff alone and that the defendant herein, and each of them, be declared to have no estate, right, title or interest in the subject property and that said defendants and each of them be forever enjoined from asserting any estate, right, title or interest in the subject property adverse to Plaintiff herein.

6 0 0 IX Plaintiff believes and hereby alleges that there was an irregularity in the sale which involved possible collusion between these Defendants to act in violation of the automatic stay. Plaintiff was in active negotiations with Defendant WASHINGTON MUTUAL for a loan modification of his home loan, and lured by Defendant WASHINGTON MUTUAL into believing that there was a deal re the modification of his home loan in place, but, all the while, Defendant WASHINGTON MUTUAL intended to foreclose on Plaintiff's residence in violation of the automatic stay. X On or about JUNE 0 Defendants and each of them did willfully violated the automatic stay by foreclosing on Plaintiff s residence, as direct and proximate result of the act of these Defendants, Plaintiff was damaged in an amount according to proof. SECOND CAUSE OF ACTION WRONGFUL FORECLOSURE XI As a second and apart cause of action, Plaintiff re-alleges the above cause of action and incorporate same as if fully set-out herein.

7 0 X Sometime around November 0 Plaintiff became engaged with Defendant WASHINGTON MUTUAL in an effort to negotiate a modification of his loan with Defendant. XII Defendant WASHINGTON MUTUAL requested information re Plaintiff's income, and a hardship letter which Plaintiff provided. Defendant requested the resubmission of the documents repeatedly as a delaying tactic, which Plaintiff provided to Defendant. This tactic caused delays in Plaintiff's effort to modify the loan, as a result of which, Plaintiff was placed in a precarious position to his detriment as a direct and proximate result of Defendants willful and malicious effort to foreclose on Plaintiff's residence. 0 XIII Plaintiff requested that Defendant WASHINGTON Mutual provide a full accounting on all payments made regarding their home loan with and the fees consistent with CC, Defendant promised but failed to provide Plaintiff with information re the accounting and fees, in violation of CC b. XIV Plaintiff further alleges that the foreclosure sale was defective in that the sale did not meet the statutory requirement established by the legislature and case law in California. A

8 0 0 properly conducted foreclosure sale must be conducted free from internal defects such as fraud and misrepresentation on the part of Defendant XV Plaintiff further allege that a foreclosure sale that is not free of internal defects is constitutes an irregularity in the sale, and, as such, the sale is voided and must be set aside. As a proximate result of these breaches, Plaintiff has been damaged in an amount which will be proven at trial. XVI THIRD CAUSE OF ACTION CONSPIRACY As a separate and apart cause of action, Plaintiff re-alleges all of the prior causes of action and incorporates same by this reference as if set out fully herein. XVI Plaintiff is informed and believes and thereon alleges that Defendants, and each of them, conspired to participate in a fraudulent scheme to foreclose on Plaintiffs residence in violation of the automatic stay.

9 0 0 XVII WASHINGTON MUTUAL and BANK OF AMERICA by engaging in the conduct herein alleged, did so knowingly and with reckless disregard for law, and said conspiracy was perpetrated as a willful violation of the automatic stay. XVIII As a proximate result of these breaches, Plaintiff has been damaged in an amount which will be proven at trial. XIX In taking these actions, Defendants acted with fraud and malice, thereby entitling Plaintiff to exemplary damages. WHEREFORE, Plaintiff prays relief as follows:. For declaration that the title to the subject property is vested in Plaintiff alone;. For an order declaring the foreclosure sale void;. For exemplary damages;. For punitive damages. For actual damages in an amount to be shown according to proof;. For such other and further relief as the Court deems just and proper. Dated: December, 00 Respectfully Submitted, /S/RONI ROTHOLZ Attorney for Plaintiff ** END OF COMPLAINT **

10 COURT SERVICE LIST 0 Bank of America Corporate Center 00 North Tryon Street Charlotte, North Carolina Washington Mutual 0 Second Avenue Seattle, WA 0 0 0

11 FORM 0 (0/0) ADVERSARY PROCEEDING COVER SHEET (Instructions on Reverse) PLAINTIFFS DEFENDANTS ADVERSARY PROCEEDING NUMBER (Court Use Only) ATTORNEYS (Firm Name, Address, and Telephone No.) ATTORNEYS (If Known) PARTY (Check One Box Only) PARTY (Check One Box Only) Debtor U.S. Trustee/Bankruptcy Admin Debtor U.S. Trustee/Bankruptcy Admin Creditor Other Creditor Other Trustee Trustee CAUSE OF ACTION (WRITE A BRIEF STATEMENT OF CAUSE OF ACTION, INCLUDING ALL U.S. STATUTES INVOLVED) NATURE OF SUIT (Number up to five () boxes starting with lead cause of action as, first alternative cause as, second alternative cause as, etc.) FRBP 00() - Recovery of Money/Property -Recovery of money/property - turnover of property -Recovery of money/property - preference -Recovery of money/property - fraudulent transfer -Recovery of money/property - other FRBP 00() - Validity, Priority or Extent of Lien -Validity, priority or extent of lien or other interest in property FRBP 00() - Approval of Sale of Property -Approval of sale of property of estate and of a co-owner - (h) FRBP 00() - Objection/Revocation of Discharge -Objection / revocation of discharge - (c),(d),(e) FRBP 00() - Revocation of Confirmation -Revocation of confirmation FRBP 00() - Dischargeability FRBP 00() - Dischargeability (continued) -Dischargeability - (a)(), domestic support -Dischargeability - (a)(), willful and malicious injury -Dischargeability - (a)(), student loan -Dischargeability - (a)(), divorce or separation obligation (other than domestic support) -Dischargeability - other FRBP 00() - Injunctive Relief -Injunctive relief - reinstatement of stay -Injunctive relief - other FRBP 00() Subordination of Claim or Interest -Subordination of claim or interest FRBP 00() Declaratory Judgment -Declaratory judgment FRBP 00(0) Determination of Removed Action -Dischargeability - (a)(),(),(a) priority tax claims -Dischargeability - (a)(), false pretenses, false representation, actual fraud -Dischargeability - (a)(), fraud as fiduciary, embezzlement, larceny (continued next column) Check if a jury trial is demanded in complaint Demand $ Other Relief Sought 0-Determination of removed claim or cause Other SS-SIPA Case - U.S.C. aaa et.seq. 0-Other (e.g. other actions that would have been brought in state court if unrelated to bankruptcy case) Check if this case involves a substantive issue of state law Check if this is asserted to be a class action under FRCP

12 FORM 0 (0/0), Page BANKRUPTCY CASE IN WHICH THIS ADVERSARY PROCEEDING ARISES NAME OF DEBTOR BANKRUPTCY CASE NO. DISTRICT IN WHICH CASE IS PENDING DIVISIONAL OFFICE NAME OF JUDGE RELATED ADVERSARY PROCEEDING (IF ANY) PLAINTIFF DEFENDANT ADVERSARY PROCEEDING NO. DISTRICT IN WHICH ADVERSARY IS PENDING DIVISIONAL OFFICE NAME OF JUDGE SIGNATURE OF ATTORNEY (OR PLAINTIFF) DATE PRINT NAME OF ATTORNEY (OR PLAINTIFF) INSTRUCTIONS The filing of a bankruptcy case creates an "estate" under the jurisdiction of the bankruptcy court which consists of all of the property of the debtor, wherever that property is located. Because the bankruptcy estate is so extensive and the jurisdiction of the court so broad, there may be lawsuits over the property or property rights of the estate. There also may be lawsuits concerning the debtor's discharge. If such a lawsuit is filed in a bankruptcy court, it is called an adversary proceeding. A party filing an adversary proceeding must also complete and file Form 0, the Adversary Proceeding Cover Sheet, if it is required by the court. In some courts, the cover sheet is not required when the adversary proceeding is filed electronically through the court's Case Management/Electronic Case Files (CM/ECF) system. (CM/ECF captures the information on Form 0 as part of the filing process.) When completed, the cover sheet summarizes basic information on the adversary proceeding. The clerk of court needs the information to process the adversary proceeding and prepare required statistical reports on court activity. The cover sheet and the information contained on it do not replace or supplement the filing and service of pleadings or other papers as required by law, the Bankruptcy Rules, or the local rules of court. The cover sheet, which is largely self-explanatory, must be completed by the plaintiff's attorney (or by the plaintiff if the plaintiff is not represented by an attorney). A separate cover sheet must be submitted to the clerk for each complaint filed. Plaintiffs and Defendants. Give the names of the plaintiffs and the defendants exactly as they appear on the complaint. Attorneys. Give the names and addresses of the attorneys, if known. Party. Check the most appropriate box in the first column for the plaintiffs and in the second column for the defendants. Demand. Enter the dollar amount being demanded in the complaint. Signature. This cover sheet must be signed by the attorney of record in the box on the second page of the form. If the plaintiff is represented by a law firm, a member of the firm must sign. If the plaintiff is pro se, that is, not represented by an attorney, the plaintiff must sign.