Barry S. Fagan, Esq. (SBN 0 Law Office of Barry S. Fagan PO BOX Malibu, California 0 Telephone ( -0 Facsimile ( - pendinglawsuit@yahoo.com Attorney for Plaintiff SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, NORTH CENTRAL DISTRICT DAVID CAROZZA Plaintiff, vs. INDYMAC VENTURE, LLC A DELAWARE LIMITED LIABILTY COMPANY; INDYMAC MORTGAGE SERVICES, A DIVISION OF ONEWEST BANK, FSB; TD SERVICE COMPANY; A CALIFORNIA CORPORATION; ALL PERSONS UNKNOWN CLAIMING ANY LEGAL OR EQUITABLE RIGHT, TITLE, ESTATE, LIEN OR INTEREST IN THE PROPERTY DESCRIBED IN THE COMPLAINT ADVERSE TO PLAINTIFF S TITLE, OR ANY CLOUD ON PLAINTIFF S TITLE THERETO; AND DOES 1-, Defendants. Case No: EC00 FIRST AMENDED COMPLAINT FOR (1 BREACH OF ORAL CONTRACT; ( WRONGFUL FORECLOSURE; ( QUIET TITLE; ( SLANDER OF TITLE; ( CANCELLATION OF INSTRUMENTS; ( PROMISSORY ESTOPPEL; ( UNFAIR BUSINESS PRACTICES UNDER B&P CODE 0 ET SEQ.; AND ( DECLARATORY RELIEF REQUEST FOR JURY TRIAL follows: Plaintiff, DAVID CAROZZA, an individual, hereby demand a jury trial and alleges as 1
INTRODUCTION This lawsuit arises from, among other things: (i the deception in inducing Plaintiff to enter into and continue paying money and consideration on loans and mortgages1 from approximately 0 through 0 and which were acquired and/or were serviced by Defendants; (ii the fraudulent and illegal use of Mortgage Backed Securities (MBS in connection with those loans and mortgages; (iii Defendants breach of Plaintiff s statutorily protected rights; (iv Defendants breach and willful violation of numerous consumer and homeowner protection statutes, and willful violations of unfair business practices statues, by, among other things, processing money from unknown sources, in contravention of numerous laws; (v accepting money, transferring alleged assets and foreclosing upon alleged assets in instances where the alleged assets do not exist, and which these Defendants have no right, title, or interest upon which they can act; and (vi Defendants continuing tortuous conduct intended to deprive Plaintiff of his rights and remedies for the foregoing acts, described below. Defendants, among other things, violated laws, breached contracts, and repeatedly and intentionally failed to honor its agreements with borrowers. Statement of Jurisdiction This Court has proper jurisdiction over the within action because the underlying transactions occurred, and the subject real property is situated, within this North Central Judicial District of the County of Los Angeles, California. Plaintiff allege: PARTIES 1. Plaintiff David Carozza ( Plaintiff is a resident of Whipple Street, Toluca Lake, Los Angeles County, California 0. ( hereinafter Property. Plaintiff is informed and believes and based thereon alleges that Defendant INDYMAC VENTURE LLC (hereinafter, INDYMAC, is a Delaware Limited Liability Company organized under the laws of the United States.
. Plaintiff is informed and believes and based thereon alleges that Defendant INDYMAC Mortgage Services is a division of ONEWEST BANK, FSB and is a wholly-owned subsidiary of OneWest Bank, FSB. FDIC SALE OF INDYMAC [LOANS OWNED] AND [SERVICING RIGHTS] The sale on March, 0 by the FDIC of Indymac Federal Bank FSB successor in interest to Indymac Bank FSB assets consisted of two separate and distinct sales. One was a sale of all servicing rights which included the servicing rights to the existing MBS and the servicing to existing loans owned and held by Indymac Bank FSB (hereinafter INDY SERVICING. The second was the INDY LOANS, which were an asset of the failed Indymac Bank FSB and the taken over bank Indymac Federal Bank FSB. The sale of Indymac Bank FSB servicing rights to Onewest Bank FSB on March, 0 were included in a specific asset purchase agreement. Plaintiff has recently received information from a FORENSIC DOCUMENT EXAMINER that the purported Corporate Assignment of Deed of Trust is not substantiated, and in fact the Notary Signature of J Garrett Anderson is a FORGERY. Plaintiff s loan was not sold to Onewest or IndyMac Ventures. (See Exhibit A Declaration of Dr. Laurie Hoeltzel This is material and lends support to the forensic analysis done by Plaintiff which documented the loan to be in a mortgage backed security trust. This question of material fact would require the Courts adjudication. Only the servicing of the loan was transferred to OneWest Bank FSB. The Federal Deposit Insurance Corporation (hereinafter FDIC acting in the capacity of AS RECEIVER FOR INDYMAC BANK, FSB and located at 0 th Street, NW, Washington, D.C. had allegedly by way of a Omnibus Assignment dated June, 0 transferred all rights, title and interest in and to the loan originally made by IndyMac Bank, FSB to IndyMac Venture, LLC A Delaware Limited Liability Company. The FDIC was merely the RECEIVER for IndyMac Bank, FSB and as such could not legally assign any rights or obligations that IndyMac Bank, FSB did not have. The FDIC acting as Receiver auctioned off loans without endorsements and as such IndyMac Venture, LLC cannot prove their legal standing. Therefore, IndyMac Venture, LLC is not a real party in interest in this wrongful foreclosure and is not the beneficiary of the note and has no standing.. Plaintiff is informed and believes and based thereon alleges that the original lender INDYMAC BANK, FSB placed Plaintiff s July, 0 construction loan into an
Asset Backed Securities Trust. Plaintiff is informed and believes and therefore alleges that INDYMAC BANK, FSB had turned plaintiff s construction loan into a stock thus permanently bifurcating the note from the deed of trust. INDYMAC BANK, FSB was taken over by the FDIC in 0.. Plaintiff is informed and believes and based thereon alleges that the Trust Based on the above, the substitute Trustee T.D. Service Company on the deed of trust had a duty to cease any proceedings. The substitution of trustee was, as indicated above, most likely executed by a party with no interest, beneficial or otherwise, in the obligation, note or mortgage. See David Carozza s Securitization Audit as prepared by Certified Forensic Loan Auditors indicating that Plaintiff s loan was placed into INDYMAC RESIDENTIAL MORTGAGE-BACKED TRUST, Series 0-L Issuing Entity and therefore Indymac Venture, LLC could not have possibly received any interest from which to both declare a default and execute a Substitution of Trustee. (ATTACHED HERETO AND MADE A PART HEREOF AS Exhibit 1 The corpus of the Trust allegedly consists of a pool of residential mortgage notes allegedly secured by liens on residential real estate. Plaintiff is informed and believes and therefore alleges that the Trust has no officers or directors and no continuing duties other than to hold assets and to issue the series of certificates of investment. A detailed description of the categories of mortgage loans is included in the Prospectus ( the Prospectus duly filed with the Securities and Exchange Commission.. Plaintiff alleges that one purpose of the PSA is to document that in the regular course of business the Defendants originate and acquire mortgage loans and desire by the PSA to confirm the terms and conditions under which the Trust will acquire the mortgage loans so originated.. Plaintiff is informed and believes, and thereon alleges, that at all times hereto relevant Defendant T.D. Service Company, is a private California Corporation in the business
of conducting non-judicial foreclosures in the State of California, and the City and County of Los Angeles as alleged substituted Trustee for the Property dated December,, and May,.. The defendants herein named as all persons unknown, claiming any legal or equitable right, title, estate, lien, or interest in the property described in the complaint adverse to plaintiff s title or any cloud on plaintiff s title thereto are hereinafter sometimes referred to as the unknown defendants and are unknown to Plaintiff. These unknown defendants and each of them claim or appear to claim some right, title, estate, lien, or interest in the property described in Paragraph herein, adverse to Plaintiff s title. Their claims, and each of them, constitute a cloud on Plaintiff s title to the property.. Plaintiff is ignorant of the true names and capacities of defendants sued herein as DOES 1 through, inclusive, and therefore sues these defendants by such fictitious names and all persons unknown claiming any legal or equitable right, title, estate, lien, or interest in the property described in this complaint adverse to Plaintiff s title, or any cloud on Plaintiff s title thereto. Plaintiff will amend this complaint to allege their true names and capacities when ascertained.. Defendants sued herein as DOES 1 through are contractually, strictly, negligently, intentionally, vicariously liable and or otherwise legally responsible in some manner for each and every act, omission, obligation, event or happening set forth in this Complaint, and that each of said fictitiously named Defendants is indebted to Plaintiff as hereinafter alleged.. The use of the term Defendants in any of the allegations in this Complaint, unless specifically otherwise set forth, is intended to include and charge both jointly and severely, not only named Defendants, but all Defendants designated as well.
. Plaintiff is informed and believe and thereon alleges that, at all times mentioned herein, Defendants were agents, servants, employees, alter egos, superiors, successors in interest, joint venturers and/ or co-conspirators of each of their co-defendants and in doing the things herein after mentioned, or acting within the course and scope of their authority of such agents, servants, employees, alter egos, superiors, successors in interest, joint venturers and/ or co-conspirators with the permission and consent of their co-defendants and, consequently, each Defendant named herein, and those Defendants named herein as DOES 1 through, inclusive, are jointly and severally liable to Plaintiff for the damages and harm sustained as a result of their wrongful conduct.. Defendants, and each of them, aided and abetted, encouraged, and rendered substantial assistance to the other Defendants in breaching their obligations to Plaintiff, as alleged herein. In taking action, as alleged herein, to aid and abet and substantially assist the commissions of these wrongful acts and other wrongdoings complained of, each of the Defendants acted with an awareness of its primary wrongdoing and realized that its conduct would substantially assist the accomplishment of the wrongful conduct, wrongful goals, and wrongdoing.. Defendants, and each of them, knowingly and willfully conspired, engaged in a common enterprise, and engaged in a common course of conduct to accomplish the wrongs complained of herein. The purpose and effect of the conspiracy, common enterprise, and common course of conduct complained of was, inter alia, to financially benefit Defendants at the expense of Plaintiff by engaging in fraudulent activities. Defendants accomplished their conspiracy, common enterprise, and common course of conduct by misrepresenting and concealing material information regarding the servicing of loans, and by taking steps and making statements in furtherance of their wrongdoing as specified herein. Each Defendant
was a direct, necessary and substantial participant in the conspiracy, common enterprise and common course of conduct complained of herein, and was aware of its overall contribution to and furtherance thereof. Defendants wrongful acts include, inter alia, all of the acts that each of them are alleged to have committed in furtherance of the wrongful conduct of complained of herein.. Any applicable statutes of limitations have been tolled by the Defendants continuing, knowing, and active concealment of the facts alleged herein. Despite exercising reasonable diligence, Plaintiff could not have discovered, did not discover, and was prevented from discovering, the wrongdoing complained of herein.. In the alternative, Defendants should be estopped from relying on any statutes of limitations. Defendants have been under a continuing duty to disclose the true character, nature, and quality of their financial services and debt collection practices. Defendants owed Plaintiff an affirmative duty of full and fair disclosure, but knowingly failed to honor and discharge such duty. TENDER At all times prior to the foreclosure sale, and after the foreclosure sale, Plaintiff has always been ready, willing, and able to tender the full amount necessary to halt the foreclosure. Defendants knew that plaintiff had the means necessary to halt the foreclosure sale and purposely deceived Plaintiff so that Plaintiff was unable to take the necessary steps to tender the amount due in order to halt the foreclosure sale. Plaintiff has the proof necessary to prove his ability to tender and counsel for all defendants have seen said proof (subject to a stipulated protective order since the illegal foreclosure has taken place. Defendants prevented and/or rejected Plaintiff s tender. GENERAL ALLEGATIONS
. On or about July, 0, Plaintiff entered into a construction loan transaction with Defendant IndyMac Bank, FSB (the Loan to construct the home located at Whipple Street, Toluca Lake, CA 0 and described as APN -0-00, Lot, of Tract No. 0, in the County of Los Angeles, State of California, as per map recorded in Book, Pages 00 inclusive of Maps in the Office of the County Recorder of the County of Los Angeles, California (the Subject Property. Plaintiff executed a Promissory Note ( Note as part of the Loan transaction. Additionally, based upon information and belief, in connection with the Loan transaction, INDYMAC BANK, FSB took a security interest in the Subject Property in the form of a Deed of Trust recorded with the Los Angeles Recorder s Office on or about July, 0 ( DOT as instrument number 0. A true and correct copy of the DOT is attached hereto as Exhibit B and incorporated herein by reference.. Plaintiff is informed and believes and based thereon alleges that, on or about June, 0, INDYMAC BANK, FSB s received the from the FDIC which assigned all of INDYMAC BANK, FSB s rights concerning Plaintiff s loan and deed of trust to INDYMAC VENTURE LLC c/o INDYMAC MORTGAGE SERVICES, a division of ONEWEST BANK, FSB and as a result of that assignment ONEWEST BANK, FSB became the servicer of Plaintiff s Loan. A true and correct copy of the FDIC ASSIGNMENT is attached hereto as Exhibit A and incorporated herein by reference, along with Dr. Hoeltzel s Declaration.. Plaintiff is informed and believes and based thereon alleges that, on or about December,, TD Service Company caused a Notice of Default to be recorded, listed INDYMAC VENTURE LLC as the entity for Plaintiff to contact and declared, not under penalty of perjury, that the requirements of Section. of the California Civil Code had been met. The Default Declaration WAS NOT attached to the Notice of Default and is false.
That notice of default and election to sell was void and ineffective for each of the following reasons: (i that notice of default was signed only by defendant T.D. Service Company as agent for the current beneficiary without identifying that beneficiary by name, and at a time when the current record beneficiary of the deed of trust, was not the holder of the Note nor any obligations secured by the deed of trust, and thus had no right under applicable law to record or serve that notice of default; (ii when the notice of default was recorded and served upon Plaintiff, Defendant T.D. Service Company was not the official trustee of record under that deed of trust. Defendant T.D. Service Company is not the trustee of record under the deed of trust dated July, 0 and recorded on July, 0. It s important that the mailing of the Substitution Of Trustee be mailed to the current trustee BEFORE (emphasis added the NOTICE OF DEFAULT (NOD is recorded. If the "notice of default" names the new trustee, that trustee is acting without power because (under Section a of the California Civil Code it is the filing of the "substitution of trustee" that provides authority to the new trustee. When a "substitution of trustee" is required in connection with non-judicial foreclosures in California, a servicer should make sure that the trustees it uses have the "substitution of trustee" recorded before the "notice of default" is recorded. The two documents can be submitted for recordation on the same day, as long as the trustee requests that the "substitution of trustee" be recorded immediately before the "notice of default". Further arguments to support that the Trustee was unlawful is that when the Notice of Default was recorded on December,, the Substitution of Trustee must be sent to required persons at that time. In this case the Substitution Of Trustee was mailed on January,. If the Trustee is changed after the Notice of Default, then it needs to be sent prior to the Notice of Trustee Sale.
So, given that the Substitution of Trustee was not sent with the Notice of Default, then the indication is that the Substitution Procedure was unlawful. (iii because the notice of default falsely identified the obligations secured by the NOTE in favor of an unknown Beneficiary that referred to a Declaration of Default that was not attached to the Notice of Default when no such obligation in favor of alleged defendant exists, nor ever existed. The substitution is illegal because the real party in interest didn't make the substitution, then the trustee is not only acting ultra vires, they are also in breach of fiduciary duty as a trustee. Moreover, the declaration is void as it does not set forth which necessary requirement was met by the alleged beneficiary which was never named in the document. Thus, the declaration fails to establish compliance with Section.. The Notice expressly identifies Defendant T. D. SERVICES as an agent of the beneficiary, rather than as a trustee, whereas the liability shield provided by Civil Code subd. (b is specifically limited to acts of a trustee, only, without reference to agency, and only in respect to reliance on information provided by the beneficiary, and not by some third party. That the person or entity which authorized Defendant T. D. SERVICES to hold itself out as either agent or trustee was other than the lawful beneficiary of the subject Deed of Trust, rendering such appointment invalid and all acts and instruments under such appointment void or voidable. A true and correct copy of the Notice of Default with the Default Declaration attached is attached hereto as Exhibit C and incorporated herein by reference.. Plaintiff is informed and believes and based thereon alleges that on December,, INDYMAC VENTURE LLC, through its alleged employee Jeanie Caldwell (no title executed a Substitution of Trustee ( SOT naming TD SERVICE COMPANY as Trustee. A true and correct copy of the SOT is attached hereto as Exhibit D and incorporated herein by
reference. The SOT was not recorded until one month later and therefore is void under Section a of the California Civil Code. Plaintiff is informed and believes and based thereon alleges that after TD SERVICE COMPANY recorded the NOS on May, Plaintiff began to stay in constant contact with TD Service Company by calling them for updates on the impending sale. Plaintiff forwent seeking other remedies in reliance on the Defendant s promises and assurances. If TD Service Company had not purported to engage in delaying the trustee sale process, Plaintiff would have focused his time on seeking alternatives to foreclosure other than loan modification, such as reorganization under Bankruptcy law. Attached hereto is a true and correct copy of the Plaintiff s phone records showing constant contact with Defendant TD Service Company at - -, -0-0 and 00-- between May 1, and June, as Exhibit F and incorporated herein by reference.. Despite the ongoing negotiations between TD Service Company and Plaintiff, on or approximately May 1,, TD Service Company caused a Notice of Trustee s Sale Under Deed of Trust with a sale date of June 1, ( First NOS to be delayed. Attached hereto is a true and correct copy of the First NOS as Exhibit E and incorporated herein by reference.. Plaintiff is informed and believes and based thereon alleges that after TD SERVICE COMPANY delayed the first NOS date of June 1,, Plaintiff received unwritten notice that the next sale would be June th and than that date was delayed until June th,. So given the history of two previous delays, Plaintiff did not find it unusual to be told on June, when he called TD Service Company once again to inquire of the sale date and spoke to someone by the name of Mary that his sale date was delayed again until July,. When Plaintiff contacted TD Service Company on June,, Plaintiff was blindsided when he was told that his home did indeed go to public auction. Plaintiff had been relying to his
detriment on TD Service Company s previous delay announcements and promises of another delay. Plaintiff would have initiated an immediate alternative remedy if he had not been given this false delay information by TD Service Company. This action arises out of one of the thousands of "surprise" foreclosures in California which result from horribly one-sided California foreclosure laws. Specifically, in California, personal notice of a trustee's sale is only required for the first scheduled sale. No further notice is required for any continued or postponed sales dates thereafter (except for a verbal announcement at the scheduled sale date that the sale has been postponed. Thus, banks always continue the first sale date so they never have to give notice again. Thereafter, they, or the trustee tell the borrower not to worry as nothing will happen as they can just lie about more and more delays. The next event is the knock on the door by the new owner.. Furthermore, the Defendants failed to conduct the foreclosure sale of the Subject Property in accordance with the requirements of California Civil Code Sections. and., and Commercial Code Sections 01, et seq. Had Defendants complied with CC., they would have discovered that the plaintiff was attempting to tender all past due arrearages. Consequently, the Defendants failed to comply with the strict requirements of California Civil Code Sections et seq., which renders the foreclosure sale of the Subject Property void ab initio as a matter of law.. Plaintiff alleges that Defendants, and each of them, are engaged in and continue to engage in violations of California law, including, but not limited to, Business and Professions Code Section 0 et seq., Civil Code Sections 0, et seq and. et seq., and unless restrained will continue to engage in such misconduct, and that a public benefit warrants that Defendants be restrained from such conduct in the future. In particular, B&P Code 0 provides, in relevant part: It is unlawful for any person, firm, corporation, or association, or
any employee or agent therefor, to make or disseminate any statement or assertion of fact in a newspaper, circular, circular or form letter, or other publication published or circulated, including over the Internet, in any language in this state, concerning the extent, location, ownership, title, or other characteristic, quality, or attribute of any real estate located in this state or elsewhere, which is known to be untrue and which is made or disseminated with the intention of misleading. [B&P 0]. It is essential to the economic health of California for the state to ameliorate the deleterious effects on the state economy and local economies and the California housing market that will result from the continued foreclosures of residential properties in unprecedented numbers by modifying the foreclosure process to require mortgagees, beneficiaries, or authorized agents to contact borrowers and explore options that could avoid foreclosure. These changes in accessing the state's foreclosure process are essential to ensure that the process does not exacerbate the current crisis by adding more foreclosures to the glut of foreclosed properties already on the market when a foreclosure could have been avoided. Those additional foreclosures will further destabilize the housing market with significant, corresponding deleterious effects on the local and state economy.. The gravamen of Plaintiff s complaint is that Defendants conducted a foreclosure sale of the Subject Property without any legal authority or standing to do so, and in violation of State laws which were specifically enacted to protect consumers such as Plaintiff from the type of abusive, deceptive, and unfair conduct in which Defendants engaged which are detailed herein by failing to follow the procedure prescribed by such laws to foreclose property. Additionally, the Defendants foreclosure was wrongful as they purported to engage in negotiations with Plaintiff to delay the trustee s sale and Plaintiff relied on such negotiations and/or promises of further delay and as a result Plaintiff forwent seeking relief under
Bankruptcy law, among other things, but Defendants surreptitiously (i.e., without providing adequate notice sold the Subject Property at a foreclosure sale even though they had promised two previous delays before lying about the third promised delay to July,. The Defendants have caused Plaintiff damages as well as severe emotional distress. See phone records Exhibit F. FIRST CAUSE OF ACTION (Breach of Oral Contract (Against Defendants IndyMac Venture LLC, TD Service Company and DOES 1-. Plaintiff incorporates herein by reference the allegations made in paragraphs 1 through, inclusive, as though fully set forth herein.. IndyMac through TD Service Company s representatives reiterated and assured Plaintiff that they would not proceed or continue with the foreclosure process with regard to the Subject Property while they were reviewing Plaintiff s request for Trustee Sale Protocol and Procedures. The oral contract was an agreement to continue the specific date of the trustee s sale on the Subject Property as Plaintiff was aware that a date had been originally set for the trustee s sale on June 1,. IndyMac and TD Service Company had informed the Plaintiff of two Trustee sale delays during the month of June but when Plaintiff called about the status of the third scheduled Trustee sale of June,, TD Service Company actually informed Plaintiff of a third delay scheduled for July, but never disclosed to Plaintiff that the Subject Property was set for actual sale as scheduled on June, until after the sale had actually occurred. Plaintiff relied on these assurances of further delay just as he had relied the two previous times, but this time TD Service Company and IndyMac purposely mislead Plaintiff so that he was unable to protect his interest in the subject property.
0. Accordingly, IndyMac and TD Service Company breached the oral agreement it entered into with Plaintiff not to proceed with the foreclosure process while it was reviewing Plaintiff s request for review of TD Service s foreclosure protocol and procedures due to Plaintiff stating that IndyMac Ventures LLC could not have received a beneficial interest from the FDIC because IndyMac Bank, FSB had already sold the note through the securitization process. 1. As a proximate result of IndyMac and TD Service Company s breaches, Plaintiff has suffered, and will continue to suffer, consequential damages in an amount according to proof at trial, but not less than $1,000,000. SECOND CAUSE OF ACTION (Wrongful Foreclosure (Against All Defendants and Does 1-. Plaintiff incorporates herein by reference the allegations made in paragraphs 1 through 1, inclusive, as though fully set forth herein.. Plaintiff is informed and believes and thereon alleges that after the origination and funding of his Loan, it was sold or transferred to investors or other entities and that IndyMac Ventures LLC and DOES 1 through did not own the loans or the corresponding notes at the time of the foreclosure sale. Moreover, TD Service Company was not lawfully appointed as trustee by IndyMac Ventures LLC, and DOES 1 through. Accordingly, none of the Defendants in this action had the right to declare default, cause notices of default to be issued or recorded, or foreclose on Plaintiff s interest in the Subject Property. None of the Defendants in this action was the note holder or a beneficiary of Plaintiff s Loan at the time of foreclosure. Plaintiff is informed and believes, and on that basis alleges, that Plaintiff contends that IndyMac Venture LLC lacks the requisite standing to declare a Default and to initiate foreclosure, it
goes without saying that T.D.SERVICE COMPANY had no legal authority to record a Notice of Default or execute a Substitution of Trustee. The substitution is illegal because the real party in interest didn't make the substitution, then the trustee is not only acting ultra vires, they are also in breach of fiduciary duty as a trustee. As a result of the fraudulently altered Deed of Trust, all documents flowing from that Deed of Trust (Notice of Default and Substitution of Trustee shall be considered the fruit of the poisonous tree and must also be considered void. See Ex. A. Plaintiff further alleges on information and belief that none of the Defendants in this action were beneficiaries or representatives of the beneficiary. That is, none of them were assigned the Note and/or DOT executed by Plaintiff. Moreover, none of the signatories to the NOD, SOT, First NOS, Second NOS, Assignment of DOT, and TDUS had the authority to execute said documents. None of said documents properly disclosed the principals that the individual was signing for. Moreover, the NOD was invalid and void as it was executed by an individual at TD Service Company prior to the date that it was allegedly substituted in as trustee. Consequently, all documents upon which the NOD was based were invalid and void as well.. IndyMac Ventures LLC, OneWest Bank FSB, TD Service Company and DOES 1 through breached its obligation to Plaintiff to further delay the foreclosure of the Subject Property when they had all agreed to do so. Defendants further breached the provisions of Civil Code Section g(c(1 which requires postponement of a foreclosure sale by mutual agreement, whether oral or in writing, of any trustor and any beneficiary. Here, Plaintiff had an oral agreement not to proceed with a foreclosure of the Subject Property. IndyMac, OneWest Bank, TD Service Company, and DOES 1 through breached it. Furthermore, IndyMac, OneWest Bank, TD Service Company and DOES 1 through breached Sections f and g by not providing proper notice of the postponement of the trustee s sale on June 1,, and not providing notice pursuant to the strict requirements of said code sections.
. Among other things, Defendants agreed to postpone any sale to July,, but nevertheless sold the Subject Property at a sale conducted without notice to Plaintiff. Any notice previously provided was rendered ineffective by all Defendants acts and omissions.. Also, Defendants violated California Civil Code.(a, which requires a mortgagee, beneficiary or authorized agent to contact the borrower or person by telephone in order to assess the borrower s financial situation and explore options for the borrower to avoid foreclosure. Section.(b requires a default notice to include a declaration from the mortgagee, beneficiary, or authorized agent of compliance with section., including attempt with due diligence to contact the borrower as required by this section. None of the Defendants assessed Plaintiff s financial situation correctly or in good faith prior to filing the Notices of Default against the Subject Property in this action. Also, the declaration did not satisfy the requirements of Section.. Accordingly, the Defendants did not fulfill their legal obligation to Plaintiff prior to filing of the Notices of Default and, therefore, any acts based on the Notice of Default taken thereafter were invalid and void.. Alternatively, as a result of IndyMac Venture LLC, OneWest Bank, and DOES 1 through, no longer had a security interest in the Subject Property at the time of foreclosure. Accordingly, Defendants were prohibited from invoking the power of sale provision in the DOT as the Subject Property no longer secured the debt allegedly owed to IndyMac Ventures LLC, OneWest Bank, FSB and/or DOES 1 through.. As previously alleged, plaintiff was always ready, willing and able to tender all amounts due, but was prevented from doing so by the Defendants. Consequently, Defendants engaged in a fraudulent and wrongful foreclosure of the Subject Property in that Defendants did not have the legal authority to foreclose on the Subject Property and, alternatively, if they had the legal authority, they failed to comply with Civil Code Sections..
0. As a result of the above-described breaches and wrongful conduct by Defendants, Plaintiff has suffered general and special damages in an amount according to proof at trial, but not less than $1,000,000. THIRD CAUSE OF ACTION (Quiet Title (Against Defendants IndyMac Venture LLC, OneWest Bank, FSB and All Persons Unknown, Claiming Any Legal Or Equitable Right, Title, Estate, Lien, Or Interest In The Property Described In The Complaint Adverse To Plaintiff s Title Or Any Cloud On Plaintiff s Title Thereto and DOES 1 through 1. Plaintiff incorporates herein by reference the allegations made in paragraphs 1 through 0, inclusive, as though fully set forth herein.. Plaintiff is the legal owner of the property that is commonly known as APN -0-00, Lot, of Tract No. 0, in the County of Los Angeles, State of California, as per map recorded in Book, Pages 00 inclusive of Maps in the Office of the County Recorder of the County of Los Angeles, California (the Subject Property.. Plaintiff seeks to quiet title against the claims of IndyMac Ventures LLC, OneWest Bank, FSB and anyone else claiming interest in the property. IndyMac Ventures LLC, OneWest Bank, FSB and any successors or assignees have no right to title or interest in the property and no right to entertain any rights of ownership including rights of possession.. Plaintiff seeks to quiet title as of December,. Plaintiff seeks a judicial declaration that the title to the Subject Property is vested in Plaintiff alone and that Defendants and each of them be declared to have no interest estate, right, title or interest in the Subject Property and that Defendants, their agents and assigns, be forever enjoined from asserting any estate, right title or interest in the Subject Property.
. As Defendants did not have any legal ownership or interest in the Subject Property on the date of foreclosure, allegedly obtained the Subject Property through fraud and wrongful conduct, and failed to adhere to the strict statutory requirements to effectuate the foreclosure sale of the Subject Property, the foreclosure sale was void and invalid. Therefore, the Subject Property is still Plaintiff s property.. Accordingly, the Court should rule that the Subject Property remains Plaintiff s property and award consequential damages as proven at trial, but not less than $1,000,000. FOURTH CAUSE OF ACTION (Slander of Title (Against All Defendants. Plaintiff incorporates herein by reference the allegations made in paragraphs 1 through, inclusive, as though fully set forth herein.. TD Service Company, purportedly but falsely acting as either the trustee or the agent of the beneficiary of the Deed of Trust, wrongfully and without privilege, caused a Notice of Default, Substitution of Trustee to be recorded against the Subject Property.. Thereafter, TD Service Company, again purportedly but falsely acting as either the trustee or the agent of the beneficiary of the Deed of Trust, wrongfully and without privilege, caused a Notice of Trustee s Sales to be recorded against the Subject Property. 0. Finally, TD Service Company, again purportedly but falsely acting as either the trustee or the agent of the beneficiary of the Deed of Trust, wrongfully and without privilege, caused a Trustee s Deed Upon Sale to be recorded against the Subject Property. 1. None of the Defendants, whether jointly or severally, is a trustee, beneficiary or assignee of any beneficiary of any Deed of Trust recorded against the Subject Property. Accordingly, they wrongfully caused the recording of the Notice of Default, Substitution of
Trustee, Notices of Trustee s Sales and Trustee s Deed Upon Sale against the Subject Property.. By doing the acts described above, Defendants slandered Plaintiff s title to the Subject Property.. In that the conduct and acts of Defendants violated, among others, California Civil Code section (a(1(c, such conduct and acts were not privileged.. The wrongful conduct of Defendants caused Plaintiff to suffer damages in an amount to be proven at trial, but not less than $1,000,000. FIFTH CAUSE OF ACTION (Cancellation of Instrument(s Corporation Assignment of Deed of Trust (June, 0, SOT, NOD, NOTS and TDUS (Against All Defendants. Plaintiff incorporates herein by reference the allegations made in paragraphs 1 through, inclusive, as though fully set forth herein.. If the wrongfully recorded SOT, NOD, Assignment of June, 0 DOT, NOTS and TDUS instruments are left outstanding, Plaintiff will continue to suffer loss and damages. (See Exhibit A Declaration of Dr. Laurie Hoeltzel concerning Forgery of the DOT. Plaintiff therefore seeks cancellation of the following recorded instruments, a the SOT; b the NOD; c the NOTS; d the TDUS, e Corporation Assignment of DOT (//0.. Plaintiff is informed and believes, and therefore alleges, that and DOES 1 through acted willfully and with a conscious disregard for Plaintiff s rights and with a specific intent to defraud and injure Plaintiff, by causing the SOT, the NOD, the NOTS, and the TDUS instruments to be prepared and recorded without a factual or legal basis for doing so.. Upon information and belief, these acts by Defendants constitute fraud, oppression and malice under Cal. Civil Code. Defendants acted with a conscious
disregard for the requirements to conduct a non-judicial foreclosure sale under civil code et sec. knowing they had taken a calculated risk that Plaintiff would not contest. 0. By virtue of Defendants willful and wrongful conduct as herein alleged above, Plaintiff is entitled to general and special damages according to proof at trial, but not less than $1,000,000, as well as punitive and exemplary damages as determined by this Court. SIXTH CAUSE OF ACTION (Promissory Estoppel (Against ALL Defendants and DOES 1 through TD SERVICE COMPANYS DEMURRER TO THIS CAUSE OF ACTION HAS ALREADY BEEN OVERRULED 1. Plaintiff incorporates herein by reference the allegations made in paragraphs 1 through 0, inclusive, as though fully set forth herein.. Defendants, and DOES 1 through made a promise, through oral representations, that they would not foreclosure on the Subject Property for the third time while Plaintiff s challenge to the Trustee s protocols and procedures along with Plaintiff s challenge to Defendant s standing to even declare a default was still under review.. Defendants, and DOES 1 through should have reasonably expected that Plaintiff would rely on such promise;. Plaintiff did in fact justifiably rely on that promise by not pursuing alternate measures to avoid the foreclosure sale including, but not limited to, the filing of bankruptcy petition. Additionally, Plaintiff could have explored the possibility of refinancing or marketing and selling the Subject Property, either of which would have been an option for the Plaintiff. Accordingly, Defendants and DOES 1 through were estopped from taking any action that was contrary to the written and oral promises made by it to Plaintiff.
SEVENTH CAUSE OF ACTION (Unfair Practices under California Business & Professions Code Section 0, et seq. (Against All Defendants. Plaintiff incorporates herein by reference the allegations made in paragraphs 1 through, inclusive, as though fully set forth herein.. California Business & Professions Code Section 0, et seq., prohibits acts of unfair competition, which means and includes any fraudulent business act or practice... and conduct which is likely to deceive and is fraudulent within the meaning of Section 0.. As more fully described above, Defendants acts and practices are likely to deceive, constituting a fraudulent business act or practice. This conduct is ongoing and continues to this date.. Specifically, as fully set forth above, Defendants engage in deceptive business practices with respect to mortgage loan servicing, assignments of notes and deeds of trust, foreclosure of residential properties and related matters by, among other things, (a Instituting improper or premature foreclosure proceedings to generate unwarranted fees; (b Executing and recording false and misleading documents; (c Executing and recording documents without the legal authority to do so; (d Failing to disclose the principal for which documents were being executed and recorded in violation of California Civil Code Section ; (e Demanding and accepting payments for debts that were non-existent; (f Acting as beneficiaries and trustees without the legal authority to do so; (g Failing to give proper notice of a trustee s sale and the postponement of the sale pursuant to California Civil Code Sections g and h;
(h Failing to comply with California Civil Code Section.; (i Misrepresenting the foreclosure status of properties to borrowers; and (j Other deceptive business practices.. Plaintiff alleges that by engaging in the above described acts and/or practices as alleged herein, Defendants have violated several California laws and regulations and said predicate acts are therefore per se violations of California Business and Professions Code Section 0, et seq. 0. Plaintiff alleges that Defendants misconduct, as alleged herein, gave, and have given, Defendants an unfair competitive advantage over their competitors. The scheme implemented by Defendants is designed to defraud California consumers and enrich the Defendants. 1. The foregoing acts and practices have caused substantial harm to California consumers.. Plaintiff alleges that as direct and proximate result of the aforementioned acts, Defendants have prospered and benefitted from Plaintiff by collecting mortgage payments and fees for foreclosure related services, and have been unjustly enriched from their act of foreclosing on Plaintiff s home when they had agreed not to do so and/or to do so in compliance with applicable laws.. By reason of the foregoing, Defendants have been unjustly enriched and should be required to disgorge their illicit profits and/or make restitution to Plaintiff and other California consumers who have been harmed, and/or be enjoined from continuing in such practices pursuant to California Business & Professions Code Sections and. Moreover, as a result of the aforementioned acts and conduct, Plaintiff has lost money and
property and suffered injury in fact, and other members of the public falling victim to Defendants schemes are likely to be injured.. The harm to Plaintiff and to members of the general public outweighs the utility of Defendants policy and practices. Consequently, their policy and practices constitute an unlawful business act or practice within the meaning of Business and Professions Code 0. Further, the foregoing conduct threatens an incipient violation of a consumer law, or violates the policy or spirit of such law or otherwise significantly threatens or harms competition.. Defendants practices described above are likely to mislead the general public, and therefore, constitute a fraudulent business act of practice within the meaning of Business and Professions Code 0. The Defendants unfair, unlawful, and fraudulent business practices and false and misleading advertising present a continuing threat to members of public in that other consumers will be defrauded into having their property improperly sold at foreclosure. Plaintiff and other members of the general public have no other adequate remedy of law.. Plaintiff is therefore entitled to injunctive relief and attorney s fees as available under California Business and Professions Code Sec. 0 and related sections. These acts and practices, as described in the previous paragraphs, are unfair and violate Business and Professions Code 0 because their policies and practices described above violate all the statutes previously listed as well as California Civil Code 0, and consequently, constitute and unlawful business act of practice within the meaning of Business and Professions Code 0. Declaratory Relief (Against All Defendants. Plaintiffs incorporate herein by reference the allegations made in paragraphs 1 through, inclusive, as though fully set forth herein.
. Said Defendants and DOES 1 through have taken actions in violation of their statutory, legal and contractual duties. Said actions have resulted in the wrongful foreclosure of the Subject Property. An actual dispute exists between Plaintiff and IndyMac Ventures LLC, OneWest Bank, FSB and DOES 1 through as to the ownership of the Subject Property, and the validity, if any, and amount, if any, of the liens that were on the Subject Property prior to foreclosure.. Due to the dispute as to the rights and interests of the parties to the Subject Property, Plaintiff requests that the Court declare the rights of the parties in this matter. Plaintiff requests that the Court enforce these rights with the issuance of injunctions or restraining orders as may be necessary to place the parties in their proper position with respect to their interests, if any, in the Subject Property. PRAYER FOR RELIEF Wherefore, Plaintiff prays for judgment against the Defendants and each of them, jointly and severally, as follows: 1. For a declaration of the rights and duties of the parties, specifically that the foreclosure of the Subject Property was wrongful.. For a declaration that Plaintiff is the true and rightful owner of the Subject Property.. For issuance of an Order canceling the SOT, NOD, Corporation Assignment of DOT, NOS, and TDUS.. To vacate the TDUS.. To vacate and set aside the foreclosure sale.. To quiet title in favor of Plaintiff and against Defendants.
. For compensatory, special and general damages in an amount according to proof at trial, but not less than $1,000,000, against all Defendants.. For punitive damages in an amount to be determined by the Court against all Defendants.. Pursuant to Business and Professions Code, that all Defendants, their successors, agents, representatives, employees, and all persons who act in concert with them be permanently enjoined from committing any acts of unfair competition in violation of 0, including, but not limited to, the violations alleged herein.. For civil penalties pursuant to statute, restitution, injunctive relief and reasonable attorney s fees according to proof.. For reasonable attorney s fees and costs.. For reasonable costs of suit and such other and further relief as the Court deems proper.. For preliminary and permanent injunction prohibiting Defendants from removing plaintiff from the property and disturbing his peaceful ownership of the property. DATED: November, LAW OFFICES OF BARRY S. FAGAN By: /s/barryfagan Barry S. Fagan Attorney for Plaintiff JURY DEMAND Plaintiff demands a jury trial for all causes of action set forth herein. DATED: November, LAW OFFICES OF BARRY S. FAGAN By: /s/barryfagan Barry S. Fagan Attorney for Plaintiff