compl., wrong. frclse., alej. ramirez, ca

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Alejandro M. Ramirez689 34th StreetOakland, California 94609-2941Telephone:Facsimile:Email:

Plaintiff, Pro Se

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF ALEMEDA

ALEJANDRO M. RAMIREZ,

PLAINTIFF,

vs.

RIGHT-AWAY MORTGAGE, INC. ;MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC; THE BANK OF NEW YORK MELLON ASSUCCESSOR INDENTURE TRUSTEEUNDER NOVASTAR MORTGAGE FUNDING TRUST, SERIES 2006-1 BY SAXON MORTGAGE SERVICES, INC.;AS ATTORNEY IN FACT; NOVASTAR MORTGAGE, INC.; SAXON MORTGAGE SERVICES, INC. AND JOHN DOES 1-100, DEFENDANTS.

)))))))))))))))))))))))))

PLAINTIFFS’ COMPLAINT FOR

(1) FRAUD;(2) CANCELLATION OF A VOIDABLE CONTRACT UNDER REV & TAX CODE §§ 23304.1, 23305A AND VIOLATION OF CAL. CORP. CODE §§ 191(C)(7);(3) TO SET ASIDE TRUSTEE’S SALE;(4) TO VOID OR CANCEL TRUSTEE’S DEED UPON SALE;(5) TO VOID OR CANCEL ASSIGNMENT OF DEED OF TRUST;(6) WRONGFUL FORECLOSURE;(7) BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING;(8) UNJUST ENRICHMENT; (9) VIOLATION OF CALIFORNIA BUSINESS AND PROFESSIONS CODE SECTIONS 17200 ET SEQ.;(10) QUIET TITLE; AND (11) SLANDER OF TITLE

TO THIS HONORABLE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD

HEREIN:

Plaintiff hereby alleges as follows:

PLAINTIFFS’ COMPLAINT1

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PARTIES

1. Plaintiff Alejandro M. Ramirez is a natural person residing in Alameda County,

California and is otherwise sui juris.

2. All acts complained of occurred in Alameda, County, California.

3. Defendant Right-Away Mortgage, Inc. is a Texas Corporation and at all times

herein mentioned, was a foreign corporation doing business in Alameda County, California.

4. Defendant Mortgage Electronic Registration Systems, Inc. is a Delaware

Corporation and at all times material herein mentioned, was doing business in Alameda County,

California.

5. Defendant The Bank of New York Mellon as Successor Indenture Trustee under

NovaStar Mortgage Funding Trust, Series 2006-1 By Saxon Mortgage Services, Inc. as Attorney

in Fact is a business entity of unknown origin doing business in Alameda County, California.

6. Defendant NovaStar Mortgage, Inc. is a Corporation doing business in Alameda

County, California.

7. Defendant Saxon Mortgage Services, Inc. is a Corporation doing business in

Alameda County, California.

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

herein as DOES 1 through 100 (“DOE Defendants”), inclusive, and therefore sues said DOE

Defendants by fictitious names. Plaintiffs are informed and believe and based on such

information and belief aver 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. Plaintiffs will amend this Complaint to set forth the

true names and capacities of each DOE Defendant when same are ascertained.

9. Plaintiff is informed and believes, and based on such information and belief aver


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that Defendants Mortgage Electronic Registration Systems, Inc; The Bank of New York Mellon

as successor Indenture Trustee Under NovaStar Mortgage Funding Trust, Series 2006-1 By

Saxon Mortgage Services, Inc., as Attorney In Fact 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 and omitting to act as

averred herein. The Bank of New York Mellon as Successor Indenture Trustee Under NovaStar

Mortgage Funding Trust, Series 2006-1 By Saxon Mortgage Services, Inc. as Attorney In Fact,

MERS and DOE Defendants 1-100, inclusive, are hereinafter collectively referred to as the

“Foreclosing Defendants.”

10. 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.

GENERAL ALLEGATIONS

11. On or about November 2, 2005 Plaintiff purchased certain real property

commonly known as 689 34th Street, Oakland, California 94609 (the “Subject Property”).

12. The mortgage loan transaction contained numerous violations of State and

Federal law, including the violations contained in the following paragraphs.

13. The Assignment of the deed of Trust from MERS to The Bank of New York as

Successor Indenture Trustee Under NovaStar Mortgage Funding Trust, Series 2006-1 By Saxon

Mortgage Services, Inc. as Attorney In Fact was illegal for the reasons set forth below.

14. MERS does not own any note and cannot enforce any note, and has no rights in

any mortgage, including the note and mortgage involved in this case, and therefore cannot assign

any such rights to any assignee.


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15. Since MERS does not own the underlying note, MERS had no interest it could

transfer to The Bank of New York Mellon as Successor Indenture Trustee Under NovaStar

Mortgage Funding Trust, Series 2006-1 By Saxon Mortgage Services, Inc. as Attorney in Fact.

As the assignment was and is invalid, any resulting foreclosure by these foreclosing Defendants

was and is likewise illegal and constitutes a wrongful foreclosure, as any attempt to transfer the

beneficial interest of the Deed of Trust without the ownership of the underlying note is void

under California law.

16. The subject loan was securitized. As a result of the securitizing process, the

following legal violations occurred, as set forth below.

17. Defendants’ home, encumbered by a mortgage and promissory note made with

the originator named as mortgagee, Right-Away Mortgage, Inc. is the property at issue in this

foreclosure action. Defendant trust entity also known as a Special Purpose Vehicle became an

alleged successor in interest to the originator and issued securities collateralized by the mortgage

under a master pooling and servicing agreement by which all legal and equitable interest was

transferred to the certificate holders. Plaintiff trustee is acting in the capacity of the alleged

representative for and nominee of the certificate holders for the purposes of foreclosure of the

property because the loan is allegedly in default. Defendant bank is not the holder or owner of

the note.

18. Because the mortgage was securitized, the mortgage was rendered

unenforceable. Securitization of the mortgage created restrictions upon modification of the

mortgage which had not been approved by the mortgagor. Securitization also converted the

mortgage note from an alienable, transferable instrument which was and could be sold into a

instrument which cannot be sold, transferred or alienated, without amending the terms and

conditions of the mortgage. In either case, the action renders the mortgage unenforceable as a


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matter of law. Defendants lack standing because plaintiff does not own or hold the note and

cannot have the power and authority to represent the actual owners of the note, as a matter of

law.

Improper Restrictions19. The mortgage is a security agreement between the creditor and debtor to secure

repayment of the loan by encumbering collateral for the benefit of the creditor.

20. Both parties agree that the security agreement may not be modified or amended

by one party without the prior written consent of the other.

21. The master pooling and servicing agreement which is the organic document

creating mortgage backed securities changes the terms and conditions of the mortgage.

22. The changes are made unilaterally by the holder of the mortgage as a successor to

the original mortgagee named in the mortgage. The changes are made without the consent of the

mortgagor.

23. When the parties executed the mortgage, the mortgagor was neither obligated to

agree to an alternate dispute resolution in the event of a default nor restricted from entering an

alternate dispute resolution. When signing the mortgage, the mortgagor neither knew nor had

reason to know that a successor in interest to the mortgagee would subsequently self impose

restrictions upon modification of the mortgage and create liability for itself by modifying the

loan.

24. The master pooling and servicing agreement creates restrictions upon modification of

the promissory note by:

(a) Imposing the restriction needed on mortgage modification to qualify for pass through tax

treatment under IRS regulations.

(b) Imposing restrictions upon the number of mortgages in the pool which may be modified.


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(c) Providing a procedure for foreclosure but no procedure to modify the loan as an alternate

dispute resolution.

(d) Creating securities with classes of ownership (“tranches”) with adverse and opposing

financial interests resulting in so called “tranche warfare” so that a modification which

favors one tranche may work a detriment upon another.

(e) Restricting the ability to lower interest payments on the note.

(f) Restricting the ability to increase the number of payments to be made.

(g) Restricting the ability to defer payments.

(h) Restricting the ability to extend the term of the mortgage.

(i) Restricting the ability to impose a temporary moratorium on payments.

(j) Restricting the ability to accept “short sales”.

25. Declaratory relief or invalidation of the restrictions created by the master pooling

and servicing agreement will not remedy the problem. Given the potential liability of the issuer

and securitizer of the note to certificate holders, the holder will not modify the mortgage even if

the restrictions on modification of the mortgage are nullified.

Improper Conversion

26. The securitization of the mortgage constitutes a conversion of the asset rendering

it null, void and unenforceable. The holder of the note of a pass through trust has no legal or

equitable interest in the securitized mortgages. The holder profits from the fees collected from

foreclosure. The certificate holders, guarantors and mortgage insurers bear the losses.

Foreclosure avoids litigation from disgruntled certificate holders who could claim a mortgage

modification improperly resulted in a financial loss. By separating the incidence of loss from the

authority to foreclose, the original note has been altered resulting to a change to the mortgage


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without the consent of the mortgagor. The conversion of the mortgage to mortgage backed

securities renders the mortgage unenforceable.

27. The interests of the defendants as mortgagor are adversely and materially

affected by these changes.

28. Further, with regard to the entire loan origination and closing process of this

loan, the following Non-Compliance with State and Federal Law occurred, to wit:

29. There were substantial violations of the law and the lender and other parties

involved in the closing did not comply with the Federal Truth in Lending Act (TILA); the

Federal Real Estate Settlement and Procedures Act (RESPA); and other state and federal

consumer protection laws. These acts of non-compliance include, but are not necessarily limited

to the following:

a. Under California Law, a broker is required to execute a Mortgage Loan Origination Agreement with the borrower. No such Agreement was ever received by affiant, the borrower herein. Only after the execution of a fully completed document can actual work on procuring a loan begin. The loan violated California Law, Section 50700-50706-50701 from the beginning of this transaction. It is also an Unfair and Deceptive Act and Practice under California Competition Law, CA Business & Professions Code 17200.

b. Failed to give borrower signed copies of the closing documents. c. Failed to respond to a Qualified Written Request for documents under

RESPA. d. Charged fees in excess of the Good Faith Estimate in violation of California

Business & Professions Code 10241, 10240-10248 and California UnfairCompetition Law, CA Business & Professions Code 17200.

e. Charged a yield spread premium and failed to disclose same in a proper manner.

f. Failed to make disclosures in compliance with disclosure requirements as documents in the file are dated the same day as the loan closing, not three days after the loan application was submitted.

g. As to underwriting decisions, the lender ignored prudent standards of underwriting, knowing full well the loan would be securitized and any default would be the concern of another party. No consideration of the ability of the borrower to repay this loan with a realistic means test was made. Failure to adequately underwrite the loan is a violation of California Unfair Competition Law, CA Business & Professions Code 17200.


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h. There was no determination of the ability of the borrower to repay the loan, with complete disregard for the Guidelines Letters issued by Federal Agencies and even Federal and State Law and in violation of California Unfair Competition Law, CA Business & Professions Code 17200.

i. Lender committed Fraud for false income by the broker. j. Aiding and abetting by the lender for allowing the fraudulent income loan. k. Lack of due diligence by the lender in approving the Lender l. Lack of Good Faith and Fair Dealings by the Lender. m. Breach of Fiduciary Duty by the broker for doing a loan where it could lead

to default. n. Unconscionability by the lender for doing the loan. o. The Fees on the Good Faith Estimate and the Truth in Lending Statement are

not consistent. p. Failure to provide truthful and accurate disclosures are Unfair and Deceptive

Act and Practice under the California Unfair Competition Law, CA Business & Professions Code 17200.

q. Broker violated his Fiduciary Responsibility to the borrower by placing the borrower into his current loan product without regard for other products that might have suited the borrower better; placing the borrower into a loan whereby it was likely the borrower would default or incur bankruptcy as a result of the loan and it was reasonable foreseeable that such would occur, placing the borrower into a loan without a realistic test of the ability of the borrower to repay the loan, failing to provide correct initial disclosure, and placing the borrower into a loan with a prepayment penalty.

r. The loan was unconscionable; lender breached its duty of good faith and fair dealing under the UCC and common law. Lender committed Fraud by placing the borrower into a high debt ratio loan; lender violated the Unfair and Deceptive Acts and Practices At, CA Business & Professions 17200.

30. The parties involved committing these acts of non-compliance include all

parties listed as Defendants.

31. That the undersigned affiant has alleged fraud in the court case referenced

above, as more fully set forth in this complaint.

32. None of the foregoing was disclosed to Plaintiff at any time before, during or

after the closing of the subject transaction.


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33. Based upon information and belief, in or around March 31, 2009, prior to the

foreclosure of the Subject Property but after the Notice of Default, MERS (acting as beneficiary)

assigned the Deed of Trust to The Bank of New York Mellon f/k/a the Bank of New York as

successor to JP Morgan Chase Bank, N.A. as Trustee for the Ownit Mortgage Loan Asset-

Backed Certificates, Series 2006-1. The Assignment was recorded. The Assignment by MERS

was improper because MERS never had a beneficial interest in the Subject Property and was

merely a “nominee” under the Deed of Trust. Therefore, the Assignment was invalid and void.

Moreover, the recording of the Notice of Default was invalid and void.

34. Based upon information and belief, there was no assignment of the Note with the

Deed of Trust, none of the Foreclosing Defendants are the holder of the Note in due course, and

none of the Foreclosing Defendants were assigned the Note by MERS. Accordingly, none of the

Foreclosing Defendants were ever entitled to enforce the Note.

35. Any Trustee’s Deed Upon Sale is also invalid and void because it was based on

an invalid and void assignment.

FIRST CAUSE OF ACTION FOR

FRAUD

(AGAINST THE FORECLOSING DEFENDANTS)

36. Plaintiff incorporates herein by reference the allegations made in paragraphs 1

through 34, inclusive, as though fully set forth herein.

37. The Foreclosing Defendants engaged in a pattern and practice of defrauding

Plaintiffs in that, during the life of the mortgage loan, the Foreclosing Defendants failed to

properly disclose material facts regarding the subject loan transaction, including but not limited

to the fact that the loan was securitized, that other third parties were involved in the transaction,


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that the loan was being placed in a pool of securitized mortgages to be used to sell asset-backed

pass-through certificates to investors, that the fraudulent securitization scheme involved an

Illegal, null and void Assignment of Deed of Trust and other misrepresentations of material facts

as more fully set forth in Plaintiff’s General Allegations.

38. Additionally, the Foreclosing Defendants concealed material facts known to them

but not to Plaintiffs regarding payments, notices, assignments, transfers, late fees and charges

with the intent to defraud Plaintiff.

39. The Foreclosing Defendants made the above-referenced false representations,

concealments and non-disclosures with knowledge of the misrepresentations, intending to

induce Plaintiffs' reliance, which the unsuspecting Plaintiff justifiably relied upon, resulting in

damage to their credit standing, costs and loss of her property. Plaintiff was unaware of the true

facts. Had Plaintiff known the true facts, Plaintiff, among other things, would not have

maintained the Foreclosing Defendants as his lender, servicer and trustee (and their alleged

agents) and/or would have taken legal action immediately to save their house.

40. As a result of the Foreclosing Defendants’ fraudulent conduct, Plaintiff has

suffered compensatory, general and special damages in an amount to proof. Additionally, the

Foreclosing Defendants acted with malice, fraud and/or oppression and, thus, Plaintiff is entitled

to an award of punitive damages.

SECOND CAUSE OF ACTION FOR

CANCELLATION OF A VOIDABLE CONTRACT UNDER REV & TAX CODE §§

23304.1, 23305A AND VIOLATION OF CAL. CORP. CODE §§ 191(C)(7)





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42. MERS operates as a record-keeping database company in which MERS contracts

with lenders to track security instruments in return for an annual fee.

43. Based upon information and belief, MERS was at all times herein operating in

the State of California without registering as a foreign corporation to avoid paying taxes to the

state.

44. As a result of MERS’s failure to comply with the California franchise tax laws,

the Deed of Trust alleged herein is voidable by Plaintiff pursuant to Rev & Tax Code §§

23304.1, 23304.1(b), and 23305a.

45. Moreover, MERS is not in the business of creating evidences, and it is not a

foreign lending institution. It does not originate loans, never had any true interest in the subject

loan or Deed of Trust, and thereby does not meet any legal exceptions to the registration

requirement for foreign corporations.

46. MERS conducted business in California when it was not registered with the

Secretary of State. Specifically, it prepared and/or executed a Substitution of Trustee and

Assignment of Deed of Trust in March, 2009. The substitution allowed the new Trustee, to

record a Notice of Default on the Subject Property.

47. At all relevant times herein, MERS was not registered in California and could not

prepare or execute the Assignment of Deed of Trust. MERS had no legal authority to take such

action. Deeds of Trust are contractual in nature. A contract made by a corporation doing

business in California while that corporation has failed to perform its franchise tax obligations is

voidable at the option of any party to the contract, other than the [delinquent] taxpayer. Thus,

MERS did not have the legal capacity to enter into a contract with Plaintiff or anyone else, and

Plaintiffs have the option of voiding the contract. Therefore, any action that MERS took with


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regard to assigning the within deed of trust and substituting the trustee would be ultra vires and

void.

48. Plaintiff hereby expressly requests an adjudication to the effect that the

assignment of the deed of trust and substitution of trustee by MERS are void.

THIRD CAUSE OF ACTION

TO SET ASIDE TRUSTEE’S SALE




50. The Foreclosing Defendants never had the legal authority to foreclose, i.e., the

authority to exercise the power of sale as an assignee of the Note and Deed of Trust, because the

Foreclosing Defendants’ interest was never properly acknowledged and recorded in violation of

Civil Code § 2932.5, resulting in the non-judicial foreclosure sale being void ab initio.

51. Moreover, the Foreclosing Defendants never had the legal authority to foreclose

because the instrument (Deed of Trust), which permitted foreclosure if the borrower was in

default, is void as it was improperly assigned and/or transferred to the Foreclosing Defendants

from Defendant MERS. Therefore, the Deed of Trust could not provide a basis for a

foreclosure, and the non-judicial foreclosure is void ab initio.

52. Accordingly, Plaintiff hereby requests an order of this Court that the Trustee’s

Sale was irregular in that it was legally void and conducted without any right or privilege by the

Foreclosing Defendants.

FOURTH CAUSE OF ACTION

TO VOID OR CANCEL TRUSTEE’S DEED UPON SALE



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54. Although any trustee’s deed upon sale appears valid on its face, it is invalid, and

of no force and effect, for the reasons set forth above including, inter alia, the fact the Deed of

Trust which purportedly secured the Note, which served as the basis for a claim to have the right

to conduct a non-judicial foreclosure was at all times void due to the wrongful and improper

assignment to the Foreclosing Defendants.

55. Plaintiffs are therefore entitled to an order that any Trustee’s Deed Upon Sale is

void ab initio and cancelling such Trustee’s Deed.

FIFTH CAUSE OF ACTION

TO VOID OR CANCEL ASSIGNMENT OF DEED OF TRUST




57. The assignment of the deed of trust is invalid, and of no force and effect, for the

reasons set forth above including, inter alia, the fact the MERS did not have standing or the legal

authority to assign the deed of trust which purportedly secured the Note, and which served as the

basis for a claim to have the right to conduct a non-judicial foreclosure. Thus, the assignment of

the deed of trust was at all times void.

58. Plaintiff is therefore entitled to an order that the Assignment of the Deed of Trust

is void ab initio and cancelling such Assignment.

SIXTH CAUSE OF ACTION

WRONGFUL FORECLOSURE



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60. Plaintiff is informed and believes and thereon alleges that after the origination

and funding of his loan, it was sold to investors as a “mortgage backed security” and that none

of the Foreclosing Defendants in this action owned this loan, or the corresponding note.

Moreover, none of the Foreclosing Defendants in this action were lawfully appointed as trustee

or had the original note assigned to them. Accordingly, none of the Foreclosing Defendants in

this action had the right to declare default, cause notices of default to be issued or recorded, or

foreclose on Plaintiffs’ interest in the Subject Property. The Foreclosing Defendants were not

the note holder or a beneficiary at any time with regard to Plaintiffs’ loan.

61. Plaintiff further alleges on information and belief that none of the Foreclosing

Defendants in this action are beneficiaries or representatives of the beneficiary and, if the

Foreclosing Defendants allege otherwise, they do not have the original note to prove that they

are in fact the party authorized to conduct the foreclosure.

62. Plaintiff further alleges on information and belief that the loan was sold or

transferred without notifying the Plaintiffs in writing. Therefore, the loan is void of legal rights

to enforce it.

63. Additionally, The Foreclosing Defendants violated California Civil Code

§2923.5(a), which requires a “mortgagee, beneficiary or authorized agent” to “contact the

borrower or person by telephone in order to assess the borrower’s financial situation and explore

options for the borrower to avoid foreclosure. “Section 2923.5(b) requires a default notice to

include a declaration “from the mortgagee, beneficiary, or authorized agent” of compliance with

section 2923.5, including attempt “with due diligence to contact the borrower as required by this

section.”


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64. None of the Foreclosing Defendants contacted Plaintiff to discuss his financial

situation. Moreover, none of the Foreclosing Defendants explored options with Plaintiff to

avoid foreclosure. Additionally, none of the Foreclosing Defendants informed Plaintiffs of the

right to have a meeting within 14 days of said contact. Accordingly, the Foreclosing Defendants

did not fulfill their legal obligation to Plaintiff.

65. Thus, the Foreclosing Defendants engaged in a fraudulent foreclosure of the

Subject Property in that the Foreclosing Defendants did not have the legal authority to foreclose

on the Subject Property and, alternatively, if they had the legal authority, they failed to comply

with Civil Code Section 2923.5 and 2923.6.

66. As a result of the above alleged wrongs, Plaintiff has suffered general and special

damages in an amount to be determined at trial.

SEVENTH CAUSE OF ACTION FOR

BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING




68. Every contract imposes upon each party a duty of good faith and fair dealing in

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.


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69. Alternatively, if the note and deed of trust was validly and properly assigned to

the Foreclosing Defendants, the Foreclosing Defendants did not act in good faith and did not

deal fairly with Plaintiff in connection with the note and deed of trust.

70. The Foreclosing 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.

71. The Foreclosing Defendants engaged in such conduct to drive Plaintiff into

foreclosure so that they could acquire the Subject Property with its equity at a bargain basement

price. These actions were a bad faith breach of the contract between Plaintiff and the

Foreclosing Defendants which show that they had no intention of performing the contract,

consisting of the original note and deed of trust, in good faith.

72. MERS willfully breached their implied covenant of good faith and fair dealing

with Plaintiff when MERS allowed their alleged agent to execute the Assignment of the Deed of

Trust in order to appoint a new Trustee to begin foreclosure on the Subject Property.

73. As a result of the Foreclosing Defendants’ breaches of this covenant, Plaintiff has

suffered general and special damages in an amount to be determined at trial.

EIGHTH CAUSE OF ACTION FOR

UNJUST ENRICHMENT




75. By their wrongful acts and omissions, the Foreclosing Defendants have been

unjustly enriched at the expense of Plaintiff, and thus Plaintiff has been unjustly deprived.


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76. By reason of the foregoing, Plaintiff seeks restitution from the Foreclosing

Defendants, and an order of this Court disgorging all profits, benefits, and other compensation

obtained by the Foreclosing Defendants from their wrongful conduct.

NINTH CAUSE OF ACTION FOR

VIOLATION OF CALIFORNIA BUSINESS AND PROFESSIONS CODE SECTIONS

17200 ET SEQ.




78. 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.

79. 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

and continues to this date.

80. 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.

81. 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.

82. 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


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foreclosure proceedings. The scheme implemented by the Foreclosing Defendants is designed

to defraud California consumers and enrich the Foreclosing Defendants.

83. The foregoing acts and practices have caused substantial harm to California

consumers.

84. As a direct and proximate cause of the unlawful, unfair and fraudulent acts and

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

will continue to suffer damages in the form of unfair and unwarranted late fees and other

improper fees and charges.

85. 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

Plaintiff and other California consumers who have been harmed, and/or be enjoined from

continuing in such practices pursuant to California Business & Professions Code Sections 17203

and 17204. Additionally, Plaintiff is therefore entitled to injunctive relief and attorney’s fees as

available under California Business and Professions Code Sec. 17200 and related sections.

TENTH CAUSE OF ACTION FOR

QUIET TITLE

(AS TO DEFENDANTS FORECLOSING DEFENDANTS; ALL PERSONS UNKNOWN,

CLAIMING ANY LEGAL OR EQUITABLE RIGHT, TITLE, ESTATE, LIEN, OR

INTEREST IN THE PROPERTY DESCRIBED IN THE COMPLAINT ADVERSE TO

PLAINTIFFS’ TITLE, OR ANY CLOUD ON PLAINTIFFS’ TITLE THERETO; AND

DOES 1 THROUGH 100)




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87. Plaintiff is the equitable owner of the Subject Property which has the following

legal description:

Being Lot 11 and portion of Lot 10, Block “E”, “Map of the property ofthe Central Land Company, “filed November 25, 1873, Map Book 2, Page 26,Alameda County Records, described as follows: BEGINNING at a point on the Southern line of 34th Street, formerly Brown Street, distant thereon 416 feetEasterly from the point of intersection thereof with the Eastern line of West Street, as said streets are shown on the map herein referred to; thence EasterlyAlong said line of 34th Street 50 feet; thence Southerly parallel with West Street100 feet; thence Westerly parallel with 34th Street 54 feet; thence Northerly in a direct line 100 feet, more or less, to the point of beginning.

Also known as 689 34th Street, Oakland, California 94609.

88. Plaintiff seeks to quiet title against the claims of all Defendants ; ALL PERSONS

UNKNOWN, CLAIMING ANY LEGAL OR EQUITABLE RIGHT, TITLE, ESTATE, LIEN,

OR INTEREST IN THE PROPERTY DESCRIBED IN THE COMPLAINT ADVERSE TO

PLAINTIFF’S TITLE, OR ANY CLOUD ON PLAINTIFF’S TITLE THERETO; and DOES 1

through 100 (collectively referred to herein as the “Title Defendants”) as the Title Defendants

hold themselves out as entitled to fee simple ownership of the Subject Property by and through

their purchase of the property at any trustee’s sale. In fact, the Title Defendants had no right to

title or interest in the Subject Property and no right to entertain any rights of ownership

including the right to foreclosure, offering the Subject Property for sale at any trustee’s sale,

demanding possession or filing cases for unlawful detainer. Nevertheless, the Title Defendants

proceeded with a non-judicial foreclosure sale, through Defendant The Bank of New York

Mellon as Successor Indenture Trustee Under NovaStar Mortgage Funding Trust, Series 2006-1,

By Saxon Mortgage Services, Inc. as Attorney In Fact, as alleged trustee, illegally and with

unclean hands. Plaintiff is willing to tender the amount received subject to equitable adjustment

for the damage caused to the Plaintiff by the Title Defendants’ activities.


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89. Additionally, the trustee’s sale is void because the requirements of Civil

Code Section 2923.5 were not complied with by any of the Foreclosing Defendants.

90. Plaintiff seeks to quiet title as of February 22, 2011. Plaintiff seeks a

judicial declaration that the title to the Subject Property is vested in Plaintiff alone and that the

Title Defendants and each of them be declared to have no interest estate, right, title or interest in

the subject property and that the Title Defendants, their agents and assigns, be forever enjoined

from asserting any estate, right title or interest in the Subject Property subject to Plaintiffs’

rights.

ELEVENTH CAUSE OF ACTION FOR

SLANDER OF TITLE


91. Plaintiff incorporates herein by reference the allegations made in

paragraphs 1 through 90, inclusive, as though fully set forth herein.

92. Pursuant to, among others, California Civil Code section 2924(a)(1)(C),

only the beneficiary of a Deed of Trust or a beneficiary’s assignee or the agent of a beneficiary

or its assignee may cause to be recorded against real property either a Notice of Default or a

Notice of Trustee’s Sale.

93. Defendant The Bank of New York Mellon, etc., purportedly but falsely

acting as either the trustee or the agent of the beneficiary of the Deed of Trust, wrongfully and

without privilege, caused a Notice of Default to be recorded against the Subject Property.

94. Later, The Bank of New York Mellon, again purportedly but falsely acting as

either the trustee or the agent of the beneficiary of the Deed of Trust wrongfully and without

privilege, caused a Notice of Trustee’s Sale to be recorded against the Subject Property.


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95. Finally, The Bank of New York Mellon, again purportedly but falsely

acting as either the trustee or the agent of the beneficiary of the Deed of Trust wrongfully and

without privilege, caused a Trustee’s Deed Upon Sale to be recorded against the Subject

Property.

96. None of the Foreclosing Defendants, whether jointly or severally, were

ever a trustee, beneficiary or assignee of any beneficiary of any Deed of Trust recorded against

the Subject Property. Accordingly, they wrongfully caused the recording of the Notice of

Default, Notice of Trustee’s Sale and Trustee’s Deed Upon Sale against the Subject Property.

97. The Bank of New York Mellon, wrongfully and without privilege, has

published matters or caused matters to be published that they are the current owners of the

Subject Property which is untrue and disparaging to Plaintiffs’ interest in the Subject Property.

98. By doing the acts described above, the Foreclosing Defendants have

slandered Plaintiffs’ title to the Subject Property.

99. In that the conduct and acts of the Foreclosing Defendants violated,

among others, California Civil Code section 2924(a)(1)(C), such conduct and acts were not

privileged.

100. The conduct of the Foreclosing Defendants caused Plaintiffs to suffer

general and special damages in an amount to be proven at trial.

PRAYER FOR RELIEF

Wherefore, Plaintiff prays for judgment against the Defendants and each of them, jointly

and severally, as follows:

1. For a declaration of the rights and duties of the parties, specifically that the

foreclosure of Plaintiffs’ residence was wrongful.

2. For issuance of an Order canceling all Trustee’s Deed Upon Sale.


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3. To vacate the Trustee’s Deed.

4. To vacate and set aside the foreclosure sale.

5. To quiet title in favor of Plaintiff and against Defendants.

6. For compensatory, special, general and punitive damages according to proof

against all Defendants.

7. 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

permanently enjoined from committing any acts of unfair competition in violation of § 17200,

including, but not limited to, the violations alleged herein.

8. For civil penalties pursuant to statute, restitution, injunctive relief and reasonable

attorneys fees according to proof.

9. For reasonable costs of suit and such other and further relief as the Court deems

proper.

DEMAND FOR JURY TRIAL

Plaintiff demands trial by jury on all issues so triable.

VERIFICATION

STATE OF CALIFORNIA ) :ss

COUNTY OF ALAMEDA )

BEFORE ME, the undersigned authority, duly authorized to administer oaths, personally

appeared Alejandro M. Ramirez, who after being duly sworn, deposes and says under penalty of

perjury, that the facts and allegations set forth in the foregoing Complaint are true and correct.

DATED: February 22, 2011 _____________________________________Alejandro M. Ramirez, Plaintiff Pro Se


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_____________________________Notary Public, State of California

My Comission Expires:


compl., wrong. frclse., alej. ramirez, ca

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