TIMOTHY L. MCCANDLESS, ESQ.

SBN 147715
1
LAW OFFICES OF TIMOTHY L. MCCANDLESS
2 13240 Amargosa Road
Victorville, California 92392
3
(760) 951-3663 Telephone
4
(909) 382-9956 Facsimile
5

6 Attorney for Plaintiff(s)

7
(Plantiff Name(s)

8
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
9
IN AND FOR COUNTY OF «County»
10

11 PLAINTIFF(s)
CASE NO:
12 Plaintiff,

13 V. COMPLAINT FOR:
14
(1) DECLARATORY RELIEF
15 (2) CANCELLATION OF DEED
DEFENDANTS (3) DAMAGES ARISING FROM:
16
(4) BREACH OF FIDUCIARY DUTY
17 and DOES 1 through 50 inclusive (5) BREACH OF COVENANT OF
GOOD FAITH AND FAIR
18 Defendants. DEALING
(6) INJUNCTIVE RELIEF
19
(7) FRAUD
20 (8) DAMAGES ARISING FROM:

21 VIOLATION OF [15 U.S.C. § 1611 et

seq.]; VIOLATION OF [26 U.S.C. § 2605
22
et sq.]; VIOLATION OF [15 U.S.C. §
23 1602 et seq.]; VIOLATION OF [15
U.S.C. § 1692];
24

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

26
complains and alleges as follows:
27
ALLEGATIONS COMMON TO ALL COUNTS
28

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

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

3 ADDRESS and more particularly described as: «Property_Description» APN:

4
«APN_Number»
5
2. Defendant ON DEED OF TRUST (hereinafter referred to as “SHORT NAME”.
6

7
3. Defendant ON DEFAULT (hereinafter referred to as “SHORT NAME”.

8 4. The true names of Defendants named herein as DOES 1 through 50, whether
9 individual, corporate, associate or otherwise, are presently unknown to Plaintiff(s)
10
who therefore, sues said Defendants by such fictitious names; Plaintiff(s) are
11
informed and believes and thereon alleges that each of the Defendants so
12

13 designated herein proximately caused and contributed to the damages herein

14 alleged, and Plaintiff(s) will ask leave of Court to amend this Complaint to insert
15
the true names and capacity of DOES 1 through 50 when the same have been
16
ascertained and to join such Defendants in this action.
17
5. Plaintiff(s) are informed and believes and thereon alleges that, at all times herein
18

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

20 an interest in was the agent and employee of each of the remaining defendants
21
thereof and at all times was acting within the purpose and scope of such agency and
22
employment.
23

24
6. On or about DATE OF DEED, Plaintiff(s) executed an “Adjustable Rate Note”

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

26 DEED? 1ST DEED? 2ND DEED? by monthly payment.
27
7. The Adjustable Rate Note was based upon a six-month adjustable rate.
28

2
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Complaint
 8. Plaintiff(s) allege that Defendants and each of them neither explained the workings
1

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

3 9. Further, on information and belief, Plaintiff(s) allege that the Defendants charged
4
and obtained improper fees for the placement of his loan as “sub-prime” when he
5
qualified for a prime rate mortgage which would have generated less in fees and
6

7
interest.

8 10. On information and belief, Plaintiff(s) allege that the service of the purported note
9 was, without his knowledge, by some means transferred from or by Defendant,
10
either completely or by association or other means to DOE 1 who unknown to
11
Plaintiff provided services in various forms to be determined to others which were
12

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

14 U.S.C. § 2605.
15
11. In the course of this consumer transaction, Defendants violated 15 U.S.C. §
16
1635(a) and Regulation Z, § 226, by failing to deliver to Plaintiffs two copies of a
17
notice to rescind (DO WE HAVE ONE? IF NOT, REMOVE) that: Attached her as
18

19 Exhibit “???”

20 12. Also on DATE OF DEED Plaintiff(s) executed a “Deed of Trust” which cited the
21
lender as LENDER Attached her as Exhibit “???”
22
13. On or about DATE OF DEED, PLAINTIFF(s) NAME transferred the deed of trust
23

24
to DEFENDANT.

25 14. Also on DATE OF DEED, Plaintiff(s) executed a “Deed of Trust” which cited the
26 lender as LENDER and stating in the definition section that:
27
(E) “MERS” is Mortgage Electronic Registration Systems, Inc. MERS is a
28

3
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Complaint
 separate corporation that is acting solely as a nominee for Lender and Lender’s
1

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

3 15. On or about DATE OF DEED, the Deed of Trust was recorded with the
4
«County» County Recorder and DEFENDANT was named as Trustee of the
5
Deed of Trust.
6

7
16. On or about «Transfer_Date», Plaintiff(s) received a “Mortgage Loan Statement”

8 from DEFENDANT ON MORTGAGE LOAN for the property address:

9 ADDRESS for loan number.
10
17. The Mortgage Loan Statement included a coupon for payment with a mailing
11
address for DEFENDANT ON MORTGAGE LOAN.
12

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

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

15
and Default and of Election to Cause Sale of Real Property Under Deed of Trust”
16
(hereinafter referred to as “Notice of Breach”) stating that the payments were due
17
to Mortgage Electronic Registration Systems as Beneficiary. Attached here as
18

19 Exhibit “???”.

20 19. On the Notice of Breach, it stated, in part, that Plaintiff(s) as Trustor, to secure
21
certain obligations in favor of Mortgage Electronic Registration Systems, as
22
beneficiary.
23

24
20. It further states that:

25 That by reason thereof of the present Beneficiary under such

26 deed of Trust has executed and delivered to said duly appointed
27
Trustee a written Declaration of Default and Demand for Sale and
28

4
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Complaint
 has deposited with said duly appointed Trustee such Deed of Trust
1

2 and all documents evidencing obligations secured thereby and has

3 declared and does hereby declared all sums secured thereby

4
immediately due and payable and has elected and does hereby elect
5
to cause the trust property to be sold to satisfy the obligations served
6

7
thereby.

9 The Notice of Breach also states:

10
You may have the right to cure the default hereon and reinstate the
11
one obligation secured by such Deed of Trust above described.
12

13 Section … permits certain defaults to be cured upon the Payment of

14 the amounts required by that statutory section without requiring

15
payment of that portion of principal and interest which would not be
16
due had no default occurred. Where reinstatement is possible, if the
17
default is not cured within 35 days following the recording and
18

19 mailing of this Notice to Trustor or Trustor’s successor in interest,

20 the right of reinstatement will terminate and the property may

21
thereafter be sold.
22

23

24
22. Plaintiff(s) are informed and believe and thereupon allege that the NOTE was

25 invalid and unenforceable due to the intentional and willful violations including but,
26 not limited to: provisions contained in the Truth In Lending Act 15 U.S.C. '' 1601,
27
1640 etc. et seq.; Regulation Z ' 226 etc. et seq. by failing and/or refusing to provide
28

5
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Complaint
 plaintiff with two copies of the “Notice to Cancel” ; California Civil Code ' 2924b etc.
1

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

3 refusing to mail the Notice of Default within ten business days to Plaintiffs, by failing
4
and/or refusing to post and mail the Notice of Default; by failing and/or refusing to
5
mail Plaintiffs the Notice of Default within one month pursuant to California Civil
6

7
Code § 2924b (c)(1), (2); by failing and/or refusing to properly set the sale date

8 pursuant to California Civil Code § 2924f(b); by failing and/or refusing to publish the
9 Notice of Sale twenty days prior to the date set for sale pursuant to California Civil
10
Code § 2924f(b); by failing and/or refusing to record the Notice of Sale pursuant to
11
California Civil Code § 2924g(d).
12

13

14 FIRST CAUSE OF ACTION

15
(Violation of 15 U.S.C. § 1611 et seq.)
16
Against all Defendants
17

18

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

20 herein.
21
24. On information and belief, Plaintiff(s) allege that Defendants and each of them are
22
directly or indirectly agents or employees or persons actively involved in the extension of
23

24
credit as the term is defined under the Truth in Lending Statute (TILA).

25 25. On information and belief, Plaintiff(s) allege that Defendants and each of them are
26 subject to the requirements of the Truth in Lending Statute (TILA) and have violated the
27
requirements of the act in that among other things:
28

6
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Complaint
 A. They have refused and continued to refuse to validate or otherwise make a
1

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

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

4
determined;
5
C. To disclose the status of the ownership of the loans.
6

7
26. Plaintiff(s) further alleges that these violations are such as to require rescission or

8 cancellation of the loan herein and return of all funds received by Defendants from
9 Plaintiff.
10
27. Plaintiff(s) further alleges that he is entitled to compensatory damages in an amount
11
to be determined at trial.
12

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

14 the event that he retains counsel.

15
29. On information and belief, Plaintiff(s) allege that Defendants have acted in
16
violation of the TILA act, willfully, maliciously, oppressively and fraudulently and in
17
conscious disregard for the rights of Plaintiff and as such, Plaintiff is entitled to punitive
18

19 damages.

20

21
SECOND CAUSE OF ACTION
22
(Violation of 26 U.S.C. § 2605 et seq.)
23

24
Against all Defendants

25

26 30. Plaintiff(s) repeats and realleges Paragraphs 1 through 29 as though fully set forth
27
herein.
28

7
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Complaint
 31. Based upon information and belief, and on that basis Plaintiff(s) allege that
1

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

3 Estate Settlement Procedures Act (RESPA).

4
32. Based upon information and belief, and on that basis Plaintiff(s) allege that
5
Defendants and each of them, placed loans for the purpose of unlawfully increasing or
6

7
otherwise obtaining yield spread fees and sums in excess of what would have been

8 lawfully earned.
9 33. Based upon information and belief, and on that basis Plaintiff(s) allege that
10
Defendants DEFENDANTS NAMES and DOE 1 either individually or jointly as
11
“Servicers” as that term is used with the RESPA act and either individually or jointly
12

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

14 thereunder were transferred or hypothecated without the required notice.

15
34. Plaintiff(s) allegesthat these violations require rescission or cancellation of the loan
16
and a return of all funds received by Defendants from Plaintiff.
17
35. Plaintiff(s) further allege that he is entitled to compensatory damages in an amount
18

19 to be determined at trial.

20 36. Plaintiff(s) further allege that he is entitled to attorneys fees according to statute in
21
the event that they retain counsel.
22
THIRD CAUSE OF ACTION
23

24
(Violation of 15 U.S.C. § 1602 et seq.)

25 Against all Defendants.

26

27
30. Plaintiff(s) repeats and realleges Paragraphs 1 through 29 as though fully set forth
28

8
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Complaint
 herein.
1

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

3 mortgage obtained by her through Defendants, by means unknown obtained and enforced
4
by other Defendants herein falls within the purview of 15 U.S.C. § 1602 et seq.,
5
commonly known as the “Home Ownership and Equity Protection Act of 1994 (HOEPA).
6

7
32. Based upon information and belief, and on that basis Plaintiff(s) alleges that the

8 loan was placed in violation of the HOEPA act as it was placed and administered and
9 otherwise utilized without regard to Plaintiff’s income or cash flow and with the intention
10
of inducing a default.
11
33. Plaintiff(s) became aware of this upon the discovery of Defendants’ intent to
12

13 wrongfully foreclose and sell his property.

14 34. As a direct and a legal consequence of the above actions, Plaintiff(s) have been
15
damaged in a sum to be proven at trial.
16

17
FOURTH CAUSE OF ACTION
18

19 (Violation of 15 U.S.C. § 1692)

20 Against all Defendants

21

22
35. Plaintiff(s) repeats and realleges Paragraphs 1 through 34 as though fully set forth
23

24
herein.

25 36. Based upon information and belief, and on that basis Plaintiff(s) allege that
26 Defendants and each of them are “debt collectors” either directly or through agents as
27
that term is used in the United States Code.
28

9
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Complaint
 37. Plaintiff(s) alleges that he duly and properly on more than one occasion requested
1

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

3 (FDCPA).
4
38. Plaintiff(s) further allege that Defendants did not respond to his demands in such a
5
ways as to meet the requirements of the act.
6

7
39. Plaintiff(s) are entitled to statutory damages under the FDCPA.

9 FIFTH CAUSE OF ACTION

10
(Breach of Fiduciary Duty)
11
Against all Defendants
12

13

14 40. Plaintiff(s) repeats and realleges Paragraphs 1 through 39 as though fully set forth
15
herein.
16
41. At all times relevant, Defendants created, accepted and acted in a fiduciary
17
relationship of great trust and acted for and were the processors of property for the
18

19 benefit of Plaintiff(s).

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

21
expertise represented by and through his employees.
22
43. Defendants breached his fiduciary duties owed to Plaintiff(s) as they have acted and
23

24
continue to act for his own benefit and to the detriment of Plaintiff(s).

25 44. Among other things, they have placed and negotiated loans without due care to the
26 best interests of Plaintiff(s) or for the protection of his rights.
27
45. As a direct and proximate result of the breach of the fiduciary duties, Plaintiff(s)
28

10
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Complaint
 have suffered economic damages and loss of funds and payment of fees improperly
1

2 incurred in an amount to be proved at trial.

3 46. On information and belief, Plaintiff(s) alleges that Defendants have acted willfully,
4
maliciously, oppressively and fraudulently and in conscious disregard for the rights of
5
Plaintiff(s) and as such, Plaintiff(s) are entitled to punitive damages.
6

8 SIXTH CAUSE OF ACTION

9 (Breach of Covenant of Good Faith and Fair Dealing)
10
Against all Defendants
11

12

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

14 herein.
15
48. Plaintiff alleges that at all times there existed an implied covenant of good faith and
16
fair dealing requiring Defendants, and each of them, to safeguard, protect, or otherwise
17
care for the assets and rights of Plaintiff(s). Said covenant prohibited Defendants from
18

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

20 49. Plaintiff alleges that the commencement of foreclosure proceedings upon the
21
property lawfully belonging to Plaintiff without the production of documents
22
demonstrating the lawful rights for the foreclosure constitutes a breach of the covenant.
23

24
50. As a direct and proximate result, Plaintiff has been damaged in a sum to be proven

25 at trial.
26

27

28

11
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Complaint
1

2 SEVENTH CAUSE OF ACTION

3 (Injunctive Relief)
4
Against all Defendants
5

7
51. Plaintiff(s) repeats and realleges Paragraphs 1 through 50 as though fully set forth

8 herein.
9 52. Plaintiff seeks a determination as to the legal status of the parties to the Adjustable
10
Rate Note and the Deed of Trust.
11
53. The Adjustable Rate Note states that the Lender is LENDER NAME.
12

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

14 to receive payment under this Note is called the “Note Holder.”

15
55. DEFENDANT TRUSTEE SALE DATE? sent to Plaintiff(s) a statement dated on
16
or around «Transfer_Date»(trustee date) with a coupon asking for payment.
17
56. The Notice of Breach signed on or about DATE and states that MERS is the
18

19 Beneficiary.

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

21
58. The deed of trust “states that “Mortgage Electronic Registration Systems” is the
22
beneficiary.
23

24
59. There is a controversy to be decided by this Honorable Court as on or about DATE

25 OF DEED Plaintiff(s) received a Deed of Trust stating that the money is owed to
26 Mortgage Electronic Registration Systems, but on or about DATE OF TRUSTEE
27
SALE? DEED? Plaintiff(s) received notice that the payments were due to Defendants
28

12
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Complaint
 and on NOITCE OF DEFAULT the Notice of Breach states that MERS is the
1

2 Beneficiary.

3 60. Additionally, based upon information and belief, Mortgage Electronic Registration
4
Systems has not qualified to do business in the State of California and therefore, would
5
not have standing to seek non-judicial remedies as well as judicial remedies.
6

7
61. Defendants should be required to provide the original note with the appropriate

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

9 accordance with the California Revised Statutes, who owns the right to receive
10
payments on loan number and exercises the rights relating to said ownership.
11
62. Only the Note Holder is authorized to collect payments and, in the event of a
12

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

14 Trustee.
15
63. Until Defendants are able to provide Plaintiff(s) and this Honorable Court the
16
aforementioned documents, this Honorable Court should order that Plaintiff(s) are not
17
required to make any further payments on the Adjustable Rate Note and enjoin any
18

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

20 date a Notice of Trustee’s sale may be filed and served.

21

22
EIGHTH CAUSE OF ACTION
23

24
(Injunctive Relief)

25 Against all Defendants

26

27
64. Plaintiff repeats and realleges Paragraphs 1 through 70 as though fully set forth
28

13
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Complaint
 herein.
1

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

3 and more particularly described as:«Property_Description» APN: «APN_Number»

4
66. Plaintiff(s) received the fee simple title by virtue of the Grant, Bargain, Sale Deed
5
recorded in the Office of the County Recorder, «County» County, California.
6

7
67. Defendants ALL DEFENDANTS claim an interest or estate in the Plaintiff (s)

8 property disputing or denying Plaintiff’s rights to ownership and by contending that his
9 ownership is or will be with Defendants by means of a Trustee’s sale.
10
68. Plaintiff alleges that Defendants, ALL DEFENDANT have no such right, title or
11
interest in the estate of the Property in that the Trustee’s sale proposed will be
12

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

14 Defendants.
15
69. Defendants have wrongfully interfered with or threaten to interfere with Plaintiff’s
16
use and enjoyment of the Property in that they threaten to dispossess them.
17
70. Defendants’ threats to dispossess Plaintiff(s) of his home will continue unless and
18

19 until enjoined or restrained by this Honorable Court.

20 71. Failure to enjoin or restrain Defendants will cause Plaintiff(s) grave and irreparable
21
harm as they will be deprived of the use and enjoyment of unique property.
22
72. Plaintiff(s) have no adequate remedy at law for the threatened and continuing
23

24
conduct of the impending Trustee’s sale. The sale of Plaintiff’s home will not be

25 properly compensated by an award of money damages.

26 73. Plaintiff(s) further allege that the conduct herein described is of such a nature and
27
character to give them title to the Property
28

14
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Complaint
1

2 NINTH CAUSE OF ACTION

3 (For Declaratory Relief)

4
Against all Defendants
5

7
74. Plaintiff(s) repeats and realleges Paragraphs 1 through 80 as though fully set forth

8 herein.
9 75. A dispute has arisen between and among Plaintiff(s) and Defendants and each of
10
them as to the duties and obligations of the respective parties with regard to the loan or
11
the foreclosure.
12

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

14 of the commencement of the foreclosure process.

15
77. As to these issues, Plaintiff(s) are required to seek this relief.
16
78. Plaintiff(s) further alleges that a declaration of rights and duties of the parties
17
herein are essential to determine the actual status and validity of the loan, deed of trust,
18

19 nominated beneficiaries, actual beneficiaries, loan servicers, trustees instituting

20 foreclosure proceedings and related matters.

21

22
TENTH CAUSE OF ACTION
23

24
(Fraud)

25 Against all Defendants

26

27
79. Plaintiff(s) repeats and realleges Paragraphs 1 through 85 as though fully set forth
28

15
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Complaint
 herein.
1

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

3 Trust states that “MERS is a separate corporation that is acting as Beneficiary for
4
Lender’s successors and assigns.”
5
81. Based upon information and belief and on that basis, Plaintiff alleges that MERS
6

7
did not pay any consideration for the Adjustable Rate Note and in fact was paid a fee

8 by LENDER to act solely as Beneficiary as lender.

9 82. Based upon information and belief, and on that basis Plaintiff(s) alleges that MERS
10
will only notate on its internal record keeping system the name of the beneficiary of
11
the deeds of trust and will never tell the trustors the name of the true beneficiary.
12

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

14 bundled together with other loans, pledged to quasi-governmental agencies and then
15
sold as securities on the stock exchange.
16
84. This practice allows the beneficiary to allegedly be changed without the necessity
17
of completing an “assignment of deed of trust”, obtaining the appropriate signatures,
18

19 and recording the assignment with the «County» County Recorder and otherwise

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

21
85. Courts across the United States have held that MERS, named as a nominee
22
or Beneficiary, does not have the standing of the beneficiary to enforce the Deed of
23

24
Trust through the foreclosure process.

25 86. Defendants DEFENDANT NAMES and MERS, and each of them, made a
26 representation to Plaintiff on DATE OF DEED that MERS had the rights and standing
27
of a beneficiary under California law.
28

16
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Complaint
 87. This statement was made on the Deed of Trust and presented to Plaintiff(s) at the
1

2 offices of the Title Company on DATE OF DEED.

3 88. When Defendants and MERS, and each of them made the representation
4
that MERS was the beneficiary under the Deed of Trust, they both knew that the
5
statement was false when made.
6
89. The statement was made to have Plaintiff(s) rely on the misrepresentation by
7

8 executing the Deed of Trust and Plaintiff did actually rely on the misrepresentation by
9 his signatures affixed to the Deed of Trust on DEED OF TRUST DATE.
10
90. Plaintiff(s) have been damaged as a result of said reliance as they have had the title
11
to the Property slandered as a result of the filing of the Notice of Breach.
12

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

14 intervention to prevent the foreclosure of the Property.

15
92. On information and belief, Plaintiff(s) alleges that Defendants and MERS have
16
acted willfully, maliciously, oppressively and fraudulently and in conscious disregard
17
for the rights of Plaintiff and as such, Plaintiff are entitled to punitive damages.
18

19 ELEVENTH CAUSE OF ACTION

20 (For Fraud)
21
Against ALL DEFENDANTS
22
93. Plaintiff(s) repeats and realleges Paragraphs 1 through 99 as though fully set forth
23

24
herein.

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

26 DEFAULT executed on behalf the alleged Beneficiary, DEFENDANT ON
27
DEFAULT, a “Notice of Default” which stated that the payments were due to MERS
28

17
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Complaint
 as Beneficiary. “Notice of Breach and Default and of Election to Cause Sale of Real
1

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

3 95. On the Notice of Breach, it stated, in part, that Plaintiff(s) as Trustor, to secure
4
certain obligations in favor of MERS, as beneficiary.
5
96. It further states that: That by reason thereof of the present Beneficiary under such
6

7
deed of Trust has executed and delivered to said duly appointed Trustee a written

8 Declaration of Default and Demand for Sale and has deposited with said duly
9 appointed Trustee such Deed of Trust and all documents evidencing obligations
10
secured thereby and has declared and does hereby declared all sums secured thereby
11
immediately due and payable and has elected and does hereby elect to cause the trust
12

13 property to be sold to satisfy the obligations served thereby.

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

15
reliance by Plaintiff(s).
16
99. Plaintiff(s) did rely on these representations and because of his reliance his
17
property has advanced in the foreclosure stage to a sale and Plaintiff’s reliance was
18

19 justified.

20 100. Plaintiff(s) is informed and believes that the representation as stated on the
21
Notice of Default were a false representation in the following particular(s)
22
A. Documents were not provided to the trustee that showed that either MERS or any of the
23

24
Defendants Identified as Does 1-10, were the Beneficiary and entitled to the payments.

25 B. At the time Defendants made the representations they knew they were false and were made
26 for the sole purpose of inducing reliance.
27
102. Plaintiff(s) has been damaged in having his home wrongfully placed in
28

18
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Complaint
 foreclosure and a slander of his title, and being required to become involved in this
1

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

3 the time of trial.

4
103. That TRUSTEE ON DEED was aware of the false representations of
5
LENDER and remained silent thereby aiding TRUSTEE ON DEED OR BUYER in
6

7
its misrepresentation.

8 104. That the actions of these defendants were willful, oppressive and fraudulent
9 so as to justify an award of Exemplary damages.
10

11
III.
12

13 TWELVETH CAUSE OF ACTION

14 VIOLATION OF CALIFORNIA CIVIL CODE §2923.6
15 (As Against All Defendants)
16

17

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

19 103 as though set forth fully herein.

20
106. Defendants’ Pooling and Servicing Agreement (hereinafter “PSA”) contains a
21
duty to maximize net present value to its investors and related parties.
22
107. California Civil Code 2923.6 broadens and extends this PSA duty by requiring
23

24 servicers to accept loan modifications with borrowers.

25 108. Pursuant to California Civil Code 2923.6(a), a servicer acts in the best interest of
26
all parties if it agrees to or implements a loan modification where the (1) loan is in
27

28

19
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Complaint
 payment default, and (2) anticipated recovery under the loan modification or workout plan
1

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

3 109. California Civil Code 2923.6(b) now provides that the mortgagee, beneficiary, or
4
authorized agent offer the borrower a loan modification or workout plan if such a
5
modification or plan is consistent with its contractual or other authority.
6

7
110. Plaintiff(s) loan is presently in an uncertain state.

8 111. Plaintiffs(s) are willing, able, and ready to execute a modification of their loan on
9 a reasonable basis
10
(a) New Loan Amount: $INSERT LOAN AMOUNT
11
(b) New Interest Rate: 4%
12
(c) New Loan Length: 30 years
13
(d) New Payment: $ INSERT NEW PAYMENT
14

15
112. The present fair market value of the property is INPUT FAIR MARKET VALUE
16
OF HOME.
17

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

19 average foreclosure results in $77, 935.00 in costs to the homeowner, lender, local
20
government, and neighbors.
21
114. Of the $77,935.00 in foreclosure costs, the Joint Economic Committee of
22
Congress estimates that the lender will suffer $50,000.00 in costs in conducting a non-
23

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

25 property to a third party. Freddie Mac places this loss higher at $58,759.00.
26
115. Pursuant to California Civil Code §2823.6, Defendants are now contractually
27
bound to accept the loan modification as provided above and tender is deemed made
28

20
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Complaint
 pursuant to Defendants’ Pooling and Service Agreement, California Civil Code 2923.6(a),
1

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

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

4
execute a modification of their loan.
5
116. Alternatively, Plaintiff(s) allege that tender, if any, is excused by obstruction or
6

7
prevention or imposition of unwarranted conditions by the person or corporate entity to

8 whom it was to be made.

9 117. Alternatively, Plaintiff(s) allege that obstruction or imposition of unwarranted
10
conditions by defendants occurred when defendants evaded the plaintiffs’ attempts to
11
provide tender as specified and encouraged by defendants’ pooling agreement, California
12

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

14 392, 165 So. 227 (1936); Loftis v. Alexander, 139 Ga. 346, 77 S.E. 169 (1913); Kennedy
15
v. Neil, 333 Ill. 629, 165 N.E. 148 (1929); Borden v. Borden, 5 Mass. 67, 1809 WL 989
16
(1809); Loughney v. Quigley, 279 Pa. 396, 123 A. 84 (1924); Montague Corp. v. E.P.
17
Burton Lumber Co., 136 S.C. 40, 134 S.E. 147 (1926); Stansbury V. Embrey, 128 Tenn.
18

19 103, 158 S.W. 991 (1913); Loehr v. Dickson, 141 Wis. 332, 124 N.W. 293 (1910)]

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

21
conditions by defendants occurred when defendants manifested to the Plaintiffs that
22
tender, if made, will not be accepted, the Plaintiffs are excused from making tender as it
23

24
would be a futile gesture, and the law will not require the doing of a useless act.

25 [Simmons v. Swan, 275 U.S. 113, 48 S. Ct. 52, 72 L. Ed. 190 (1927); Lee v. Joseph E.
26 Seagram & Sons, Inc., 552 F.2d 447 (2d Cir. 1977); Buckner v. Tweed, 157 F.2d 211
27
(App. D.C. 1946); Peterson v. Hudson Ins. Co., 41 Ariz. 31, 15 P.2d 249 (1932); Woods-
28

21
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Complaint
 Drury, Inc. v. Superior Court in and for City and County of San Francisco, 18 Cal. App.
1

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

3 Distributing Co., Inc. 60 Md. App. 210, 481 A.2d 1156 (1984); Issacs v. Caterpillar, Inc.,
4
765 F. Supp. 1359 (C.D. Ill. 1991); Platsis v. Diafokeris, 68 Md. App. 257, 511 A.2d 535
5
(1986)]
6

7
119. Alternatively, Plaintiff(s) further allege that obstruction or imposition of

8 unwarranted conditions by defendants occurred when defendants’ objection for want of

9 actual tender of money is waived by defendants’ refusal to receive the money if produced.
10
[Shaner v West Coast Life Ins. Co, 73F.2d 681 (C.C.A. 10th Cir. 1934); Buell v. White,
11
908 P.2d 1175 (Colo. Ct. App. 1995) (when party, who is willing and able to pay, offers
12

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

14 to tender even though money is not produced); Hall v. Norwalk Fire Ins. Co., 57 Conn.
15
105, 17 A. 356 (1888); Lamar v. Sheppard, 84 Ga. 561, 10 S.E. 10984 (1890); Ventres v.
16
Cobb, 105 Ill. 33, 1882 WL 10475 (1882); Metropolitan Credit Union v. Matthes, 46
17
Mass. App. Ct. 326, 706 N.E.2d 296 (1999)].
18

19

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

21
1. For compensatory damages, amount to be determined.
22
2. For punitive damages in an amount to be determined.
23

24
3. For any statutory damages according to law;

25 4. For Injunctive Relief including the issuance of a restraining order and thereafter a
26 preliminary injunction to maintain the status quo pending final adjudication;
27
5. For attorney’s fees in the event that counsel is retained;.
28

22
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Complaint
 6. For a declaration of the rights of the parties relative to Plaintiff’s Home, including
1

2 a declaration that Defendants have no enforceable lien against Plaintiff’s Home;

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

4
their agents, assigns, and all person acting under, for, or in concert with them, from
5
foreclosing on Plaintiff’s Home or from conducting at trustee’s sale or causing a trustee’s
6

7
sale to be conducted relative to Plaintiff’s Home.

8 8. Cancellation of the sale and restitution of the home to the Plaintiffs; and
9 9. For damages as provided by statute;
10
10. For an Order enjoining Defendants from continuing to violate the statutes alleged
11
herein;
12

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

14 or a restraining order preventing Defendants and his, hers, or its agents, employees,
15
officers, attorneys, and representatives from engaging in or performing any of the
16
following acts: (i) offering, or advertising this property for sale and (ii) attempting to
17
transfer title to this property and or (iii) holding any auction therefore;
18

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

20

21
DATED November 21, 2009
22

23 LAW OFFICES OF TIMOTHY MCCANDLESS ESQ.

24
______________________________________________
25 Timothy L. McCandless, Esq.,
26
Attorney for Plaintiff(s), NAME

27

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23
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Complaint
1
VERIFICATION
2
I, TIMOTHY L. MCCANDLESS, am an attorney at law admitted to practice before all courts of
3
the State of California and have my office in San Bernardino County, California, and am the
4

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

6 verification because they are absent from said County and for that reason affiant makes this
7
verification on the Plaintiff’s behalf; that I have read the foregoing document and know its
8
contents. I am informed and believe and on that ground allege that matters stated herein are true.
9
Executed July 15, 2009, at Victorville, Californa.
10

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

12 is true and correct.

13

14 DATED: July 15, 2009

15 ___________________________________
16
TIMOTHY L. MCCANDLESS, ESQ

17

18

19

20

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Complaint