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Federal Form Complaint

March 30, 2014

TIMOTHY L. MCCANDLESS, ESQ. SBN 147715
LAW OFFICES OF TIMOTHY L. MCCANDLESS

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

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

PLAINTIFF(s)
Plaintiff,
V.

DEFENDANTS
and DOES 1 through 50 inclusive
Defendants.

CASE NO:

COMPLAINT FOR:
1. DECLARATORY RELIEF
2. CANCELLATION OF DEED
3. DAMAGES ARISING FROM:
4. BREACH OF FIDUCIARY DUTY
5. BREACH OF COVENANT OF GOOD FAITH AND FAIR DEALING
6. INJUNCTIVE RELIEF
7. FRAUD
8. DAMAGES ARISING FROM:
VIOLATION OF [15 U.S.C. § 1611 et seq.]; VIOLATION OF [26 U.S.C. § 2605 et sq.]; VIOLATION OF [15 U.S.C. § 1602 et seq.]; VIOLATION OF [15 U.S.C. § 1692];

COMES NOW, Plaintiff(s) PLANTIF(s) NAME, hereby complains and alleges as follows:

ALLEGATIONS COMMON TO ALL COUNTS

1. Plaintiff(s), PLAINTIFF(s) NAME is a resident of the County of«County» and the owner of certain real property (hereinafter referred to as "the Property") located at ADDRESS and more particularly described as: «Property_Description»
APN: «APN_Number»

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

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

4. The true names of Defendants named herein as DOES 1 through 50, whether individual, corporate, associate or otherwise, are presently unknown to Plaintiff(s) who therefore, sues said Defendants by such fictitious names; Plaintiff(s) are informed and believes and thereon alleges that each of the Defendants so designated herein proximately caused and contributed to the damages herein alleged, and Plaintiff(s) will ask leave of Court to amend this Complaint to insert the true names and capacity of DOES 1 through 50 when the same have been ascertained and to join such Defendants in this action.

5. Plaintiff(s) are informed and believes and thereon alleges that, at all times herein mentioned each of the defendants sued herein in relation to the property they claim an interest in was the agent and employee of each of the remaining defendants thereof and at all times was acting within the purpose and scope of such agency and employment.

6. On or about DATE OF DEED, Plaintiff(s) executed an "Adjustable Rate Note" promising to pay PLAINTIFF(s) NAME the sum LOAN AMOUNT FROM DEED? 1ST DEED? 2ND DEED? by monthly payment.

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

8. Plaintiff(s) allege that Defendants and each of them neither explained the workings of the rate, how it is computed nor its inherent volatility.

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

10. On information and belief, Plaintiff(s) allege that the service of the purported note was, without his knowledge, by some means transferred from or by Defendant, either completely or by association or other means to DOE 1 who unknown to Plaintiff provided services in various forms to be determined to others which were of such a nature to render them a "Servicer" within the definition found within 26 U.S.C. § 2605.

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

12. Also on DATE OF DEED Plaintiff(s) executed a "Deed of Trust" which cited the lender as LENDER Attached her as Exhibit "???"

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

14. Also on DATE OF DEED, Plaintiff(s) executed a "Deed of Trust" which cited the lender as LENDER and stating in the definition section that:
(E) "MERS" is Mortgage Electronic Registration Systems, Inc. MERS is a separate corporation that is acting solely as a nominee for Lender and Lender's successors and assigns. MERS is the beneficiary under this Security Instrument.

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

2. On or about «Transfer_Date», Plaintiff(s) received a "Mortgage Loan Statement" from DEFENDANT ON MORTGAGE LOAN for the property address: ADDRESS for loan number.

3. The Mortgage Loan Statement included a coupon for payment with a mailing address for DEFENDANT ON MORTGAGE LOAN.

4. On or about DEFAULT DATE an unknown employee ofDEFENDANT ON DEFAULT executed on behalf of the alleged Beneficiary a "Notice of Breach and Default and of Election to Cause Sale of Real Property Under Deed of Trust" (hereinafter referred to as "Notice of Breach") stating that the payments were due to Mortgage Electronic Registration Systems as Beneficiary. Attached here as Exhibit "???".

5. On the Notice of Breach, it stated, in part, that Plaintiff(s) asTrustor, to secure certain obligations in favor of Mortgage Electronic Registration Systems, as beneficiary.

6. It further states that:
That by reason thereof of the present Beneficiary under such deed of Trust has executed and delivered to said duly appointed Trustee a written Declaration of Default and Demand for Sale and has deposited with said duly appointed Trustee such Deed of Trust and all documents evidencing obligations secured thereby and has declared and does hereby declared all sums secured thereby immediately due and payable and has elected and does hereby elect to cause the trust property to be sold to satisfy the obligations served thereby.

The Notice of Breach also states:
You may have the right to cure the default hereon and reinstate the one obligation secured by such Deed of Trust above described. Section … permits certain defaults to be cured upon the Payment of the amounts required by that statutory section without requiring payment of that portion of principal and interest which would not be due had no default occurred. Where reinstatement is possible, if the default is not cured within 35 days following the recording and mailing of this Notice to Trustor or Trustor's successor in interest, the right of reinstatement will terminate and the property may thereafter be sold.

1. Plaintiff(s) are informed and believe and thereupon allege that the NOTE was invalid and unenforceable due to the intentional and willful violations including but, not limited to: provisions contained in the Truth In Lending Act 15 U.S.C. '' 1601, 1640 etc. et seq.; Regulation Z ' 226 etc. et seq. by failing and/or refusing to provide plaintiff with two copies of the "Notice to Cancel" ; California Civil Code ' 2924b etc. et seq., California Civil Code §§§ 2924b(a), 2924b(d), 2924b(e) by failing and/or refusing to mail the Notice of Default within ten business days to Plaintiffs, by failing and/or refusing to post and mail the Notice of Default; by failing and/or refusing to mail Plaintiffs the Notice of Default within one month pursuant to California Civil Code § 2924b (c)(1), (2); by failing and/or refusing to properly set the sale date pursuant to California Civil Code § 2924f(b); by failing and/or refusing to publish the Notice of Sale twenty days prior to the date set for sale pursuant to California Civil Code § 2924f(b); by failing and/or refusing to record the Notice of Sale pursuant to California Civil Code § 2924g(d).

FIRST CAUSE OF ACTION
(Violation of 15 U.S.C. § 1611 et seq.)
Against all Defendants

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

2. On information and belief, Plaintiff(s) allege that Defendants and each of them are directly or indirectly agents or employees or persons actively involved in the extension of credit as the term is defined under the Truth in Lending Statute (TILA).

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

A. They have refused and continued to refuse to validate or otherwise make a full accounting and the required disclosures as to the true finance charges and fees;

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

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

1. Plaintiff(s) further alleges that these violations are such as to require rescission or cancellation of the loan herein and return of all funds received by Defendants from Plaintiff.

2. Plaintiff(s) further alleges that he is entitled to compensatory damages in an amount to be determined at trial.

3. Plaintiff(s) further alleges that he is entitled to attorneys fees according to statute in the event that he retains counsel.

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

SECOND CAUSE OF ACTION
(Violation of 26 U.S.C. § 2605 et seq.)
Against all Defendants

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

2. Based upon information and belief, and on that basis Plaintiff(s) allege that Defendants and each of them are such that they fall within the requirements of the Real Estate Settlement Procedures Act (RESPA).

3. Based upon information and belief, and on that basis Plaintiff(s) allege that Defendants and each of them, placed loans for the purpose of unlawfully increasing or otherwise obtaining yield spread fees and sums in excess of what would have been lawfully earned.

4. Based upon information and belief, and on that basis Plaintiff(s) allege that Defendants DEFENDANTS NAMES and DOE 1 either individually or jointly as "Servicers" as that term is used with the RESPA act and either individually or jointly violated the requirements of 26 U.S.C. § 2605(B) in that the servicing contract or duties thereunder were transferred or hypothecated without the required notice.

5. Plaintiff(s) allegesthat these violations require rescission or cancellation of the loan and a return of all funds received by Defendants from Plaintiff.

6. Plaintiff(s) further allege that he is entitled to compensatory damages in an amount to be determined at trial.

7. Plaintiff(s) further allege that he is entitled to attorneys fees according to statute in the event that they retain counsel.

THIRD CAUSE OF ACTION
(Violation of 15 U.S.C. § 1602 et seq.)
Against all Defendants.

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

2. Based upon information and belief, and on that basis Plaintiff(s) alleges that the mortgage obtained by her through Defendants, by means unknown obtained and enforced by other Defendants herein falls within the purview of 15 U.S.C. § 1602 et seq., commonly known as the "Home Ownership and Equity Protection Act of 1994 (HOEPA).

3. Based upon information and belief, and on that basis Plaintiff(s) alleges that the loan was placed in violation of the HOEPA act as it was placed and administered and otherwise utilized without regard to Plaintiff's income or cash flow and with the intention of inducing a default.

4. Plaintiff(s) became aware of this upon the discovery of Defendants' intent to wrongfully foreclose and sell his property.

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

FOURTH CAUSE OF ACTION
(Violation of 15 U.S.C. § 1692)
Against all Defendants

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

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

3. Plaintiff(s) alleges that he duly and properly on more than one occasion requested validation of the "debt" under 15 U.S.C. § 1692, the Fair Debt Collection Practices Act (FDCPA).

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

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

FIFTH CAUSE OF ACTION
(Breach of Fiduciary Duty)
Against all Defendants

1. Plaintiff(s) repeats and realleges Paragraphs 1 through 39 as though fully set forth herein.

2. At all times relevant, Defendants created, accepted and acted in a fiduciary relationship of great trust and acted for and were the processors of property for the benefit of Plaintiff(s).

3. Defendants further placed themselves in a position of trust by virtue of the expertise represented by and through his employees.

4. Defendants breached his fiduciary duties owed to Plaintiff(s) as they have acted and continue to act for his own benefit and to the detriment of Plaintiff(s).

5. Among other things, they have placed and negotiated loans without due care to the best interests of Plaintiff(s) or for the protection of his rights.

6. As a direct and proximate result of the breach of the fiduciary duties, Plaintiff(s) have suffered economic damages and loss of funds and payment of fees improperly incurred in an amount to be proved at trial.

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

SIXTH CAUSE OF ACTION
(Breach of Covenant of Good Faith and Fair Dealing)
Against all Defendants

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

2. Plaintiff alleges that at all times there existed an implied covenant of good faith and fair dealing requiring Defendants, and each of them, to safeguard, protect, or otherwise care for the assets and rights of Plaintiff(s). Said covenant prohibited Defendants from activities interfering with or contrary to the rights of Plaintiff(s).

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

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

SEVENTH CAUSE OF ACTION
(Injunctive Relief)
Against all Defendants

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

2. Plaintiff seeks a determination as to the legal status of the parties to the Adjustable Rate Note and the Deed of Trust.

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

4. It also states, "Lender or anyone who takes this Note by transfer and who is entitled to receive payment under this Note is called the "Note Holder."

5. DEFENDANT TRUSTEE SALE DATE? sent to Plaintiff(s) a statement dated on or around «Transfer_Date»(trustee date)

 

------------------------------------
Nancy Duffy McCarron, CBN 164780
Attorney, Real Estate Broker, BBB Arbitrator, CA Notary Public
Certified Forensic Loan Auditor, Property Manager

 

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