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Ash v Bank of America

Ash v Bank of America

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Lawsuit alleging illegal home break-in by foreclosing lender.
Lawsuit alleging illegal home break-in by foreclosing lender.

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Published by: richdebt on Dec 22, 2010
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Case 2:10-cv-02821-FCD-KJN Document 9 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 ) ) ) ) PLAINTIFFS, ) ) vs. ) BANK OF AMERICA CORP. as Successor ) in Interest to Countrywide Financial Corp.

; ) ) and DOES 1-20, INCLUSIVE, ) ) DEFENDANTS. ) ) ) ) ) ) ) ) ) ) MIMI ASH and ROBERT T. ASH, Attorneys for Plaintiff Mimi Ash Joseph W. Creed (SBN 232129) Creed & Elliott, LLP 19200 Von Karman Ave, Suite 600 Irvine, CA 92612 Tel: 800-679-4202 Fax: 714-439-2121

Filed 11/16/10 Page 1 of 22

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA CASE NO: 2:10-cv-02821-FCD-KJN FIRST AMENDED COMPLAINT FOR DAMAGES WITH DEMAND FOR JURY TRIAL (1) TRESPASS; (2) CONVERSION; (3) NEGLIGENCE; (4) NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS; (5) INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS; (6) VIOLATION OF CALIFORNIA BUSINESS AND PROFESSIONS CODE SECTIONS 17200 ET SEQ; (7)INVASION OF PRIVACY; (8) FRAUD (9) BREACH OF CONTRACT; (10) BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING; AND (11) UNJUST ENRICHMENT

COMES NOW the Plaintiffs, by and through their attorneys of record, and state and allege against the above-named Defendants as follows:

PLAINTIFF'S COMPLAINT 1

Case 2:10-cv-02821-FCD-KJN Document 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 1.

Filed 11/16/10 Page 2 of 22

INTRODUCTION Plaintiff, MIMI ASH is the widow and beneficiary of her late husband, Robert L.

Ash's estate. Plaintiff, ROBERT T. ASH is the only son of Robert L. Ash. While he was alive, both Mr. and Mrs. Ash ran complimentary businesses and owned various pieces of real property in their individual names. One of those properties was a property at 13405 Ski Slope Way, Truckee, California. Their properties were all financed with mortgages from Countrywide Financial Corp., the predecessor in interest to the Defendant, BANK OF AMERICA, CORP. After Mr. Ash passed away, MRS. ASH stopped paying the mortgage on Ski Slope Way because it was in Mr. Ash's individual name and was in his probate estate. Within months of Mr. Ash's death, though, MRS. ASH began to actively work with Countrywide to reach loan workouts on the mortgages including the Ski Slope Way mortgage. On May 2, 2008, the Trustee under the Deed of Trust for the Ski Slope Way property wrongfully foreclosed and conducted a foreclosure sale. Even though MRS. ASH had been in constant contact with

15 16 17 18 19 20 21 22 process. To remedy the damage caused by the Defendants, the Plaintiffs bring this action and 23 24 25 26 27 28
PLAINTIFF'S COMPLAINT 2

Countrywide, it had failed to give her notice of the foreclosure sale. That foreclosure sale was later rescinded due to the Trustee's failure to timely communicate with MRS. ASH. Despite this, in late October or early November 2008, Countrywide unlawfully seized the Ski Slope Way home, broke into the house, removed the Plaintiffs' personal property which included all of MRS. ASH's deceased husband's personal items and changed the locks. MRS. ASH was given absolutely no prior notice and Countrywide performed these activities without any judicial

make the following claims: 1) trespass; 2) conversion; 3) negligence; 4) negligent infliction of emotional distress; 5) intentional infliction of emotional distress; 6) violations of California’s Business and Professions Code; 7) invasion of privacy; 8) fraud; 9) breach of contract; 10) breach of implied covenant of good faith and fair dealing; and, 11) unjust enrichment.

Case 2:10-cv-02821-FCD-KJN Document 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 subject to personal jurisdiction in this District. 15 16 17 18 19 20 21 22 4. 2.

Filed 11/16/10 Page 3 of 22

PARTIES & JURISDICTION The Plaintiff, MIMI ASH is an individual who resides in Granite Bay, California.

Ms. Ash is the beneficiary of her deceased husband's estate which included the real property located at 13405 Ski Slope Way, Truckee, California. The Plaintiff, ROBERT T. ASH is an individual who also resides in Granite Bay, California. ROBERT T. ASH is also the beneficiary of his deceased father's estate which included many of the personal items and property in the real property located at 13405 Ski Slope Way, Truckee, California. 3. The defendant, BANK OF AMERICA CORP. is the successor-in-interest to

Countrywide Financial Corp. (collectively "Countrywide" and/or "BANK OF AMERICA") and is a corporation headquartered at Bank of America Corporate Center, 100 North Tryon Street, Charlotte, North Carolina. This defendant transacts business in the State of California and is

Plaintiff does not know the true names and capacities of the defendants sued

herein as DOES 1 through 20 (“DOE Defendants”), inclusive, and therefore sues said DOE Defendants by fictitious names. Plaintiff is informed and believes and based on such information and belief avers that each of the DOE Defendants is contractually, strictly, negligently, intentionally, vicariously liable and or otherwise legally responsible in some manner for the acts and omissions described herein. Plaintiff will amend this Complaint to set forth the true names and capacities of each DOE Defendant when same are ascertained.

23 24 25 26 27 28
PLAINTIFF'S COMPLAINT 3

5.

Plaintiff is informed and believes and based on such information and belief avers

that Defendants BANK OF AMERICA and DOE Defendants 1 through 20, inclusive, and each of them, are and at all material times have been, the agents, servants or employees of each other, purporting to act within the scope of said agency, service or employment in performing the acts

Case 2:10-cv-02821-FCD-KJN Document 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 and omitting to act as averred herein. 6.

Filed 11/16/10 Page 4 of 22

Each of the Defendants named herein are believed to, and are alleged to have

been acting in concert with, as employee, agent, co-conspirator or member of a joint venture of, each of the other Defendants, and are therefore alleged to be jointly and severally liable for the claims set forth herein, except as otherwise alleged. 7. This court has jurisdiction pursuant to 28 U.S.C.S. '1332(a)(1) as there exists

diversity of all parties and the amount in controversy exceeds $75,000. The Defendant has sufficient minimum contacts with California to subject it to jurisdiction in this judicial district because it has a substantial number of bank branches in the State, enters into numerous loans and agreements in California, and the facts and circumstances giving rise to the Plaintiff's complaint all occurred within the State. 8. Venue is proper because the Defendants do business in this jurisdiction or

otherwise has substantial contacts within this jurisdiction. 15 16 17 18 19 20 21 22 of Trust which was Mortgage Electronic Registration System. At all relevant times, 23 24 25 26 27 28
PLAINTIFF'S COMPLAINT 4

FACTS 9. On July 3, 2003, Robert L. Ash executed a Deed of Trust for his home at 13405

Ski Slope Way, Truckee, California. At the time, Mr.Ash was married to the Plaintiff, MIMI ASH and the property was intended as a second home for the couple and their son, ROBERT T. ASH. 10. Recontrust Company, N.A. acted as the agent for the Beneficiary under the Deed

Countrywide claimed to be the servicer of Mr. Ash's note and deed of trust. 11. servicer. 12. While Mr. Ash was alive, both he and MIMI ASH operated complimentary All payments on the mortgage loan were made to Countrywide as the loan

Case 2:10-cv-02821-FCD-KJN Document 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 allowed. 15 16 17 18 19 20 21 22 16. 14.

Filed 11/16/10 Page 5 of 22

businesses in the real estate field and had an ongoing business relationship with Countrywide in which they wrote other mortgage loans with Countrywide. 13. Mr. Ash died suddenly on August 17, 2005. After his death, MRS. ASH stopped

making payments on the Ski Slope Way mortgage because the property was part of his probate estate. MRS. ASH had two other mortgages with Countrywide at the time and continued making payments on those loans. MRS. ASH was appointed executrix of Mr. Ash's estate. Mr. Ash died intestate.

The Plaintiffs were both beneficiaries of the estate. 15. In late 2005 or early 2006, Countrywide contacted the lawyer representing Mr.

Ash's estate and asked whether MRS. ASH would be interested in assuming the loan on the Ski Slope Way property. MRS. ASH was interested and the estate lawyer petitioned the Probate Court to allow the real estate to be conveyed to MRS. ASH. The petition was ultimately

In October 2006, Countrywide represented that the assumption of the mortgage

by MRS. ASH would be in a three step process: first, she would need to bring the loan current; second, she would need to apply for a loan modification and have it approved; third, assumption papers would have to be signed by her. The assumption was approved pending the loan being brought current. 17. In reliance on Countrywide's representations, in October 2006, MRS. ASH sent

Countrywide certified funds to bring the loan current. Countrywide accepted the funds. 23 24 25 26 27 28
PLAINTIFF'S COMPLAINT 5

18.

After receiving the funds, Countrywide gave MRS. ASH a special forbearance

agreement on the Ski Slope Way loan as well as her other two loans that was good through February 2007. The customer service representative was to contact MRS. ASH after the forbearance period was up. The representative never did. MRS. ASH continued her efforts to

Case 2:10-cv-02821-FCD-KJN Document 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 22. 15 16 17 18 19 20 21 22 24. 23 24 25 26 27 28 three of them. 21.

Filed 11/16/10 Page 6 of 22

reach the representative who was continually unavailable until April 2007. 19. MRS. ASH then completed three separate loan modification applications (one for

Ski Slope Way and one for each other property) and submitted them to Countrywide in October 2006. At the same time, MRS. ASH completed the paperwork for the Ski Slope Way loan assumption, but retained the original form until the loan modifications were approved. 20. Despite its receipt of the loan modification applications, Countrywide lost all

What ensued was a four year odyssey for MRS. ASH of endless communications

with Countrywide to resolve her loan modification requests. During the two years following MRS. ASH's submission of her loan modification applications, she constantly contacted representatives of Countrywide via telephone and email to try and reach workout solutions for each of the loans. Despite MRS. ASH's attempts, Countrywide's representatives did not return

desperate phone messages and email communications left by MRS. ASH to try and save the properties all secured by loans. 23. In particular, even though MRS. ASH was actively in workout negotiations,

Countrywide issued a Notice of Default on the Ski Slope Way loan on April 24, 2007 and recorded it in the Office of the Recorder for Nevada County. MRS. ASH never received notice of the Notice of Default because Countrywide had mailed it to the wrong address. After later learning of the Notice of Default, MRS. ASH continued her efforts to

reach a workout of the loan. Representatives of Countrywide gave MRS. ASH assurances that any foreclosure sale of the Ski Slope Way home were being postponed while the workout was pending. 25. Despite these assurances, on May 2, 2008, a foreclosure sale was conducted by

PLAINTIFF'S COMPLAINT 6

Case 2:10-cv-02821-FCD-KJN Document 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 to rescind the wrongful foreclosure sale. 15 16 17 18 19 20 21 22 30. 23 24 25 26 27 28 28.

Filed 11/16/10 Page 7 of 22

the Trustee of the deed of trust. Proper statutory notice, though, was never given to MRS. ASH prior to the foreclosure sale and she did not learn about it until sometime after it had happened. 26. At the time of the foreclosure sale, the Ski Slope Way home was fully furnished

and many of the Plaintiffs' personal possessions, including all of MRS. ASH'S deceased husband's personal possessions, were in the Ski Slope Way home. This included such cherished items as Mr. Ash's fishing gear and golf clubs and even precious photos and videos of the couple and the family. Most importantly, an urn containing the ashes of Mr. Ash that the Plaintiffs intended on taking to Tibet was also in the home. 27. During the summer of 2008, MRS. ASH made numerous visits to the Ski Slope

Way home and during one of those visits she learned of the foreclosure sale that had taken place. When she learned of the wrongful foreclosure sale, she immediately contacted Countrywide to have them rectify the mistake. Countrywide representatives assured her that they were working

In late October 2008, she visited the home and all was in order as she had last left

it from the prior visit. 29. In or about the last week of October 2008 or the first week of November 2008, an

agent acting for Countrywide unlawfully and forcibly entered the Ski Slope Way home, removed or auctioned off all of the furnishings and personal belongings, changed the locks on the doors, and then on or about November 6, 2008 winterized the property. When MRS. ASH returned to the property on January 5, 2009, she discovered

that the locks and deadbolt on her door had been changed and she could not gain access to her own property. She looked in a nearby window and saw personal items missing and papers strewn about the house. 31. MRS. ASH called the local police, but she was told that it was a "civil matter."

PLAINTIFF'S COMPLAINT 7

Case 2:10-cv-02821-FCD-KJN Document 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 property had been seized. 32.

Filed 11/16/10 Page 8 of 22

She then contacted Countrywide representatives to try and determine why her home had been invaded and why she was locked out while she was in workout negotiations with Countrywide. In fact, MRS. ASH has written proof in the form of email communications from the last week of October 2008 with a Countrywide representative showing that she had been providing them with documentation that they were requesting to complete the workout arrangements on Ski Slope Way. MRS. ASH did not receive an answer from Countrywide at this time about why the

During the ensuing month, MRS. ASH continued her efforts to try and speak with

someone at Countrywide about why she had been locked out and why she could not be given access to her property. No one would provide her with an answer. For example, in an email communication to Countrywide on February 3, 2009, MRS. ASH again requested an answer about why she had been wrongfully locked out, why she was not being given access to her property, and why her workout negotiations remained ongoing. No one from Countrywide

15 16 17 18 19 20 21 22 own locksmith and gained entry to her property. When she entered the home she was dismayed 23 24 25 26 27 28
PLAINTIFF'S COMPLAINT 8

responded. 33. During the month of March, MRS. ASH continued to try and get answers from

Countrywide but none were forthcoming. In another email communication of March 31, 2009, she demanded information about why she had been locked out and why she continued to be denied access to her property. 34. Finally, after being given no answers by Countrywide, MRS. ASH employed her

to discover that all the contents of her home, including all of the precious items that belonged to her deceased husband were missing - this included the urn containing her husband's ashes. 35. In the coming months, MRS. ASH continued to try and find answers from

Countrywide about the travesty. She obtained limited information that Countrywide had

Case 2:10-cv-02821-FCD-KJN Document 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 38. 36.

Filed 11/16/10 Page 9 of 22

conducted a foreclosure sale without giving her proper statutory notice and that an auction company, Green River Auctions had conducted the auction. Beyond this sparse information, MRS. ASH was not told anything else about why the home had been entered and why her belongings had been taken without any notice to her - especially given the fact that Countrywide had been in contact with her and knew how to get in touch with her during the months leading up to late October and early November 2008. Recognizing that it had wrongfully foreclosed and auctioned off the Ski Slope

Way home, Countrywide executed a Notice of Rescission of the Trustee's Deed of Sale on March 6, 2009. The Notice was recorded on March 10, 2009. 37. Despite MRS. ASH's ongoing demands to address her losses, Countrywide

continued to ignore her. FIRST CAUSE OF ACTION FOR TRESPASS AGAINST ALL DEFENDANTS Plaintiffs incorporate herein by reference the allegations made in paragraphs 1

through 37, inclusive, as though fully set forth herein. 39. The Defendants, its agents, contractors and/or employees entered the Plaintiffs'

property and house without permission or authorization and without giving any prior notice to 19 20 21 22 23 24 25 26 42. 27 28
PLAINTIFF'S COMPLAINT 9

the Plaintiffs. 40. The Defendants, its agents, contractors and/or employees were on notice that they

had no right or authority to enter onto the Plaintiffs' property, break into their home, seize their home and property and remove possessions in the home and on the property. 41. The actions of the Defendants, its agents, contractors and/or employees were

done intentionally and/or with gross disregard for the Plaintiffs' rights. The Plaintiffs were damaged as a direct and proximate result of the actions of the

Case 2:10-cv-02821-FCD-KJN Document 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 47. 19 20 21 22 23 24 25 26 27 28 48. the Plaintiffs. 45. 43.

Filed 11/16/10 Page 10 of 22

Defendants, its agents, contractors and/or employees. As a result of the Defendants' fraudulent conduct, Plaintiffs have suffered compensatory, general and special damages in an amount according to proof. Additionally, the Defendants acted with malice, fraud and/or oppression and, thus, Plaintiffs are entitled to an award of punitive damages SECOND CAUSE OF ACTION CONVERSION AGAINST ALL DEFENDANTS Plaintiffs incorporate herein by reference the allegations made in paragraphs 1

through 42, inclusive, as though fully set forth herein. 44. The Defendants, its agents, contractors and/or employees entered the Plaintiffs'

property and house without permission or authorization and without giving any prior notice to

The Defendants, its agents, contractors and/or employees removed and disposed

of numerous and valuable personal possessions of the Plaintiffs and their deceased husband/father. 46. The actions of the Defendants, its agents, contractors and/or employees were

done intentionally and/or with gross disregard of the Plaintiffs' rights. The Plaintiffs have been damaged as a direct and proximate result of the actions

of the Defendant, its agents, contractors and/or employees. As a result of the Defendants' fraudulent conduct, Plaintiffs have suffered compensatory, general and special damages in an amount according to proof. Additionally, the Defendants acted with malice, fraud and/or oppression and, thus, Plaintiffs are entitled to an award of punitive damages THIRD CAUSE OF ACTION NEGLIGENCE AGAINST ALL DEFENDANTS Plaintiffs incorporate herein by reference the allegations made in paragraphs 1

through 47, inclusive, as though fully set forth herein.

PLAINTIFF'S COMPLAINT 10

Case 2:10-cv-02821-FCD-KJN Document 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 49.

Filed 11/16/10 Page 11 of 22

The Defendants owed a duty to the Plaintiffs to act as a reasonable and prudent

loan servicer, which included the obligation to notify the Plaintiffs of its reasonable reasons to enter onto the property and seize it and had a duty to notify the Plaintiffs in writing before entering onto and into the property. 50. The Defendants, its agents, contractors and/or employees breached its duty of

care when they wrongfully entered the Plaintiffs' property and house without permission or authorization, without giving prior written notice with reasonable reasons for entering onto and into the property, and by failing to reasonably determine whether the property had actually been abandoned by the Plaintiffs. 51. The Defendants breached the duty they owed to the Plaintiffs by wrongfully

seizing the Plaintiffs' property and by taking the Plaintiffs' possessions. 52. The Plaintiffs were damaged as a direct and proximate result of the actions of the

Defendants, its agents, contractors and/or employees. 15 16 17 18 19 20 21 22 enter onto the property and seize it and had a duty to notify the Plaintiffs in writing before 23 24 25 26 27 28
PLAINTIFF'S COMPLAINT 11

FOURTH CAUSE OF ACTION NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS AGAINST ALL DEFENDANTS 53. Plaintiffs incorporate herein by reference the allegations made in paragraphs 1

through 52, inclusive, as though fully set forth herein. 54. The Defendants owed a duty to the Plaintiffs to act as a reasonable and prudent

loan servicer, which included the obligation to notify the Plaintiffs of its reasonable reasons to

entering onto and into the property. 55. The Defendants, its agents, contractors and/or employees entered the Plaintiffs'

property and house without permission or authorization. 56. The Defendants, its agents, contractors and/or employees breached its duty of

Case 2:10-cv-02821-FCD-KJN Document 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 57.

Filed 11/16/10 Page 12 of 22

care when they wrongfully entered the Plaintiffs' property and house without permission or authorization, without giving prior written notice with reasonable reasons for entering onto and into the property, and by failing to reasonably determine whether the property had actually been abandoned by the Plaintiffs. The Defendants' actions were taken with a gross disregard for the Plaintiffs' rights and were so severe and outrageous so as to shock the conscience and cause the Plaintiffs severe emotional distress, embarrassment and ridicule. The Plaintiffs were damaged as a direct and proximate result of the actions of the

Defendants, its agents, contractors and/or employees. The Plaintiffs' emotional distress includes, but is not limited to, extreme humiliation, anxiety and a loss of sleep. FIFTH CAUSE OF ACTION INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AGAINST ALL DEFENDANTS 58. Plaintiffs incorporate herein by reference the allegations made in paragraphs 1

through 57, inclusive, as though fully set forth herein. 15 16 17 18 19 20 21 22 includes, but is not limited to, extreme humiliation, anxiety and a loss of sleep. As a result of 23 24 25 26 27 28
PLAINTIFF'S COMPLAINT 12

59.

The Defendants, its agents, contractors and/or employees entered the Plaintiffs'

property and house without permission or authorization. 60. The Defendants' acts and/or omissions were done intentionally and/or with gross

indifference to the Plaintiffs' rights. 61. The Plaintiffs were damaged as a direct and proximate result of the actions of the

Defendants, its agents, contractors and/or employees. The Plaintiffs' emotional distress

the Defendants' fraudulent conduct, Plaintiffs have suffered compensatory, general and special damages in an amount according to proof. Additionally, the Defendants acted with malice, fraud and/or oppression and, thus, Plaintiffs are entitled to an award of punitive damages.

Case 2:10-cv-02821-FCD-KJN Document 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 64.

Filed 11/16/10 Page 13 of 22

SIXTH CAUSE OF ACTION VIOLATION OF CALIFORNIA BUSINESS AND PROFESSIONS CODE SECTIONS 17200 ET SEQ AGAINST ALL DEFENDANTS 62. Plaintiffs incorporate herein by reference the allegations made in paragraphs 1

through 61, inclusive, as though fully set forth herein. 63. California Business & Professions Code Section 17200, 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 17200. At all times material herein, the Defendants were conducting trade and commerce

as that term is defined in the Unfair Business Practices and Consumer Protection Act (the Act) in the State of California 65. 66. The Plaintiffs are persons as that term is defined in the Act. As more fully described above, the Foreclosing Defendants’ acts and practices

are likely to deceive, constituting a fraudulent business act or practice. This conduct is ongoing 15 16 17 18 19 20 21 22 delinquent status to generate unwarranted fees; 23 24 25 26 27 28
PLAINTIFF'S COMPLAINT 13

and continues to this date. 67. Specifically, the Foreclosing 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 a. Assessing improper or excessive late fees; b. Improperly characterizing customers’ accounts as being in default or

c. Instituting improper or premature foreclosure proceedings to generate unwarranted fees; d. Misapplying or failing to apply customer payments; e. Failing to provide adequate monthly statement information to customers

Case 2:10-cv-02821-FCD-KJN Document 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 j. Ignoring grace periods; 15 16 17 18 19 20 21 22 68.

Filed 11/16/10 Page 14 of 22

regarding the status of their accounts, payments owed, and/or basis for fees assessed; f. Seeking to collect, and collecting, various improper fees, costs and charges, that are either not legally due under the mortgage contract or California law, or that are in excess of amounts legally due; g. Mishandling borrowers’ mortgage payments and failing to timely or properly credit payments received, resulting in late charges, delinquencies or default; h. Treating borrowers as in default on their loans even though the borrowers have tendered timely and sufficient payments or have otherwise complied with mortgage requirements or California law; i. Failing to disclose the fees, costs and charges allowable under the mortgage contract;

k. Executing and recording false and misleading documents; and l. Acting as beneficiaries and trustees without the legal authority to do so. The Foreclosing Defendants fail to act in good faith as they take fees for services

but do not render them competently and in compliance with applicable law. 69. Moreover, the Foreclosing Defendants engage in a uniform pattern and practice

of unfair and overly-aggressive servicing that result in the assessment of unwarranted and unfair fees against California consumers, and premature default often resulting in unfair and illegal

23 24 25 26 27 28
PLAINTIFF'S COMPLAINT 14

foreclosure proceedings. The scheme implemented by the Foreclosing Defendants is designed to defraud California consumers and enrich the Foreclosing Defendants. 70. consumers. The foregoing acts and practices have caused substantial harm to California

Case 2:10-cv-02821-FCD-KJN Document 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 71.

Filed 11/16/10 Page 15 of 22

As the code specifically relates to Plaintiffs, at all times material herein, the

Plaintiffs had a right of privacy in their home and property and a right to possess the property free from unlawful intrusions by others. 72. After admittedly wrongfully foreclosing on the Plaintiffs' home, the Defendants,

its agents, contractors and/or employees wrongfully broke into and entered into the Plaintiffs' home without reasonable justification, trespassed on her property and disposed of the Plaintiffs' possessions that were on the property and in the home. In addition, as part of the invasion of the Plaintiffs' home by the Defendants, its agents, contractors and/or employees, said Defendants, its agents, contractors and/or employees took total possession of the home by changing the locks and winterizing the property. These acts were all taken to dispossess the Plaintiffs of their ownership interest and other rights they had in their home and property. 73. The Defendant, Countrywide, violated the terms of its workout arrangements

with the Plaintiffs by wrongfully ordering its agents, contractors and/or employees onto the 15 16 17 18 19 20 21 22 practices in the course of conduct of trade and commerce in violation of the Act. 23 24 25 26 27 28
PLAINTIFF'S COMPLAINT 15

property, to seize the property, and to winterize without reasonable reasons, without giving any notice to the Plaintiffs, and without having reasonable justification. 74. The Defendants' conduct is an unfair and deceptive act and practice that occurred

in the conduct of trade and commerce in the State of California. 75. The actions of the Defendants, its agents, contractors and/or employees were

done with gross disregard for the Plaintiffs' rights and constituted unfair and deceptive acts and

76.

The Defendants’ acts and/or omissions described herein are a matter of sufficient

public interest and pattern of deceptive and/or unfair acts as that phrase is defined by the Act. 77. As a direct and proximate cause of the unlawful, unfair and fraudulent acts and

practices of the Foreclosing Defendants, Plaintiffs and California consumers have suffered and

Case 2:10-cv-02821-FCD-KJN Document 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 81. 19 20 21 22 23 24 25 26 79.

Filed 11/16/10 Page 16 of 22

will continue to suffer damages in the form of unfair and unwarranted late fees and other improper fees and charges. 78. By reason of the foregoing, the Foreclosing Defendants have been unjustly

enriched and should be required to disgorge their illicit profits and/or make restitution to Plaintiffs and other California consumers who have been harmed, and/or be enjoined from continuing in such practices pursuant to California Business & Professions Code Sections 17203 and 17204. Additionally, Plaintiffs are therefore entitled to injunctive relief and attorney’s fees as available under California Business and Professions Code Sec. 17200 and related sections. SEVENTH CAUSE OF ACTION INVASION OF PRIVACY AGAINST ALL DEFENDANTS Plaintiffs incorporate herein by reference the allegations made in paragraphs 1

through 78, inclusive, as though fully set forth herein. 80. The Plaintiffs owned the property and home located at 13405 Ski Slope Way,

Truckee, California. The Plaintiffs had the sole possessory interest in the home and property located at this address. At all times material herein, the Plaintiffs had personal property and belongings in the house and on the property and never abandoned the home. The Plaintiffs, as the owners of the property had a right to privacy in their

property and house. The Plaintiffs had the right to be free from unlawful intrusion onto their property and into their home and also from the unauthorized viewing, taking, seizure and destruction of their personal property within their home and on their property. 82. The Defendants, through its agents, contractors and/or employees entered the

Plaintiffs' property and house without permission or authorization and viewed, took and destroyed their personal property and possessions. Moreover, the Defendants, through its agents, contractors and/or employees locked the Plaintiffs out of their own home and denied

27 28
PLAINTIFF'S COMPLAINT 16

Case 2:10-cv-02821-FCD-KJN Document 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 86. 15 16 17 18 87. 19 20 21 22 23 24 25 26 85. them access for months. 83.

Filed 11/16/10 Page 17 of 22

The acts of the Defendants, through its agents, contractors and/or employees were

an unreasonable, substantial and/or serious interference with the Plaintiffs' privacy. 84. The actions of the Defendants, through its agents, contractors and/or employees

were done intentionally and/or with gross disregard for the rights of the Plaintiffs and constituted an invasion of the Plaintiffs' right to privacy. In addition, the Defendants, through its agents, contractors and/or employees held

the Plaintiff, MIMI ASH out to the public in a false light by representing through its words and actions that she had not paid the mortgage and that her home was subject to foreclosure. All of these direct or implied representations about the Plaintiff, MIMI ASH, were false and constituted an invasion of her privacy. These acts were an unreasonable, substantial and/or serious interference with the Plaintiff's privacy. The Plaintiffs were damaged as a direct and proximate result of the acts and

omissions of the Defendants, through its agents, contractors and/or employees. EIGHTH CAUSE OF ACTION FOR FRAUD AGAINST ALL DEFENDANTS Plaintiffs incorporate herein by reference the allegations made in paragraphs 1

through 86, inclusive, as though fully set forth herein. 88. The Defendants engaged in a pattern and practice of defrauding Plaintiff, MIMI

ASH, in that, during the life of the mortgage loan, the Defendants failed to properly complete any of the multiple loan modification agreements they agreed to enter with Plaintiff, MIMI ASH, while accepting her payments towards those loan modification agreements and foreclosed on the Subject Property based on Plaintiff’s alleged failure to provide documentation which on each and every occasion was provided to Defendants by Plaintiff and which the Defendants

27 28
PLAINTIFF'S COMPLAINT 17

Case 2:10-cv-02821-FCD-KJN Document 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 account. 90. knew to be false. 89.

Filed 11/16/10 Page 18 of 22

The Defendants had actual knowledge that the Plaintiff, MIMI ASH’s account

was not accurate but that the Defendants could use the inaccuracy to foreclose on the Subject Property. Plaintiff furnished the required documentation and made required payments under the loan modification agreements and provided proof of the receipt of documentation and proof of the payments made based on the improper, inaccurate, and fraudulent representations as to her

Additionally, the Defendants concealed material facts known to them but not to

Plaintiff, MIMI ASH, regarding payments, notices, assignments, transfers, late fees and charges with the intent to defraud Plaintiff. 91. The Defendants made the above-referenced false representations, concealments

and non-disclosures with knowledge of the misrepresentations, intending to induce Plaintiff’s reliance, which the unsuspecting Plaintiff justifiably relied upon, resulting in damage to her

15 16 17 18 19 20 21 22 92. 23 24 25 26 27 28
PLAINTIFF'S COMPLAINT 18

credit standing, costs and loss of both Plaintiffs property. Plaintiff was unaware of the true facts. Had Plaintiff known the true facts, Plaintiff, among other things, would not have maintained the Defendants as her lender, servicer and trustee (and their alleged agents) and/or would have taken legal action immediately to save her house from being wrongfully foreclosed and protected her personal property from being wrongfully taken by Defendants, it agents, contractors and/or employees. As a result of the Defendants' fraudulent conduct, Plaintiff, MIMI ASH, has

suffered compensatory, general and special damages in an amount according to proof. Additionally, the Defendants acted with malice, fraud and/or oppression and, thus, Plaintiff is entitled to an award of punitive damages.

Case 2:10-cv-02821-FCD-KJN Document 9 1 2 3 93.

Filed 11/16/10 Page 19 of 22

NINTH CAUSE OF ACTION FOR BREACH OF CONTRACT AGAINST ALL DEFENDANTS Plaintiffs incorporate herein by reference the allegations made in paragraphs 1

through 92, inclusive, as though fully set forth herein. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 agents, contractors and/or employees. 19 20 21 22 23 24 25 26 98. 27 28
PLAINTIFF'S COMPLAINT 19

94.

Defendants voluntarily entered into a forbearance agreement with Plaintiff, MIMI

ASH, whereby Defendants agreed to accept a sum to bring the Ski Slope Way loan current from Plaintiff in exchange for not foreclosing on Plaintiff’s home while Defendants worked out a loan modification with Plaintiff on the note secured by a deed of trust on Plaintiff’s home. 95. The Defendants breached this forbearance agreement with Plaintiff by: a. Agreeing to modify the loan for Plaintiff, MIMI ASH, on several

occasions and thereafter accepting payments towards this loan modification agreement, but then failing each time to properly route the requested documentation supplied by Plaintiff to them; and b. Failing to honor the forbearance agreement with Plaintiff the result of

which led to the Defendants' admittedly wrongful foreclosure on the Plaintiff’s home which resulted in the conversion of both Plaintiffs personal property by Defendants, its

96.

As a proximate result of Defendants' breaches, Plaintiffs have suffered

compensatory damages in an amount to be proven at trial. TENTH CAUSE OF ACTION FOR BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING AGAINST ALL DEFENDANTS 97. Plaintiffs incorporate herein by reference the allegations made in paragraphs 1

through 96, inclusive, as though fully set forth herein. Every contract imposes upon each party a duty of good faith and fair dealing in

Case 2:10-cv-02821-FCD-KJN Document 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 99.

Filed 11/16/10 Page 20 of 22

its performance and its enforcement. This implied covenant of good faith and fair dealing requires that no party will do anything that will have the effect of impairing, destroying, or injuring the rights of the other party to receive the benefits of their agreement. The covenant implies that in all contracts each party will do all things reasonably contemplated by the terms of the contract to accomplish its purpose. This covenant protects the benefits of the contract that the parties reasonably contemplated when they entered into the agreement. The Defendants enjoyed substantial discretionary power affecting the rights of

Plaintiff during the events alleged in this Complaint. They were required to exercise such power in good faith. 100. The Defendants engaged in such conduct as described above to drive Plaintiff

into foreclosure so that they could acquire the Plaintiffs' home and Plaintiffs' valuable contents at a bargain basement price. These actions were a bad faith breach of the contract between Plaintiff and the Defendants which shows that Defendants had no intention of performing the

15 16 17 18 19 20 21 22 23 24 25 26 104. 27 28
PLAINTIFF'S COMPLAINT 20

contracts, consisting of the original note and deed of trust and the subsequently executed forbearance agreement, in good faith. 101. As a result of the Defendants' breaches of this covenant, Plaintiffs have suffered

damages in an amount to be determined at trial. ELEVENTH CAUSE OF ACTION FOR UNJUST ENRICHMENT AGAINST ALL DEFENDANTS 102. Plaintiffs incorporate herein by reference the allegations made in paragraphs 1

through 101, inclusive, as though fully set forth herein. 103. By their wrongful acts and omissions, the Defendants have been unjustly

enriched at the expense of Plaintiffs, and thus Plaintiffs have been unjustly deprived. By reason of the foregoing, Plaintiffs seek restitution from the Defendants, and

Case 2:10-cv-02821-FCD-KJN Document 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14

Filed 11/16/10 Page 21 of 22

an order of this Court disgorging all profits, benefits, and other compensation obtained by the Defendants from their wrongful conduct. PRAYER FOR RELIEF Wherefore, Plaintiffs pray for judgment against the Defendants and each of them, jointly and severally, as follows: 1. For all damages sustained by the Plaintiffs in an amount proven at trial, including

past and future economic and compensatory damages, damage to property, past and future special and non-economic damages, punitive and/or exemplary damages, and other damages. 2. Interest calculated at the maximum amount allowable by law, including pre- and

post-judgment interest. 3. 4. Reasonable attorney's fee as allowed by law. Pursuant to Business and Professions Code § 17203, that all Defendants, their

successors, agents, representatives, employees, and all persons who act in concert with them be 15 16 17 18 19 20 21 22 23 24 25 26 27 28
PLAINTIFF'S COMPLAINT 21

permanently enjoined from committing any acts of unfair competition in violation of § 17200, including, but not limited to, the violations alleged herein. 5. For civil penalties pursuant to statute, restitution, injunctive relief and reasonable

attorney's fees according to proof. 6. proper. For reasonable costs of suit and such other and further relief as the Court deems

DATED: November 16, 2010

CREED & ELLIOTT, LLP

By:

/s/ Joseph W. Creed_______________________ Joseph W. Creed Attorney for Plaintiffs

Case 2:10-cv-02821-FCD-KJN Document 9 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 Andrew J. Garcia (MA BBO#559084) Carlin J. Phillips (MA BBO# 561916) PHILLIPS & GARCIA, P.C. 13 Ventura Drive N. Dartmouth, MA 02747 (508) 998-0800 (508) 998-0919 (fax) agarcia@phillipsgarcia.com

Filed 11/16/10 Page 22 of 22

And by the following attorneys (via anticipated pro hac vice admission):

Joseph F. deMello (MA BBO# 546017) LAW OFFICE OF JOSEPH F. deMELLO, P.C. 71 Main Street Taunton, MA 02747 508-824-9112 508-824-5917 (fax) josephdemellolaw@verizon.net

PLAINTIFF'S COMPLAINT 22

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