wrongful foreclosure xyz abc

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Xyz Abc

Plaintiff, In Propria Persona

SUPERIOR COURT OF CALIFORNIACOUNTY OF LOS ANGELES, –Central District Stanley Mosk

Xyz Abc,

Plaintiff

vs.

BANK OF AMERICA HOME LOANS SERVICING, LP (BOA) f/k/a

COUNTRYWIDE HOME LOANS SERVICING LP., INC.(CHL);

MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.

(MERS) as Beneficiary;

RECONTRUST (ReCon);

FIRST LOS ANGELES MORTGAGE (1st LAM);

MICHAEL S. MAGNESS;

JANE/JOHN DOES 1-100,

Defendants

__________________________________

Case No.:_

FIRST AMENDED VERIFIED COMPLAINT

1. DECLARATORY RELIEF

2. FRAUD & CONSPIRACY TO COMMIT FRAUD;

3. TORTIOUS VIOLATION OF STATUTE;

4. CONVERSION;

5. REFORMATION (NOTE);

6. VIOLATION OF BUSINESS & PROFESSIONS CODE §17200

7. VIOLATION OF CA CIV. CODE §2923.6, 1788.17, 1572;

8. INJUNCTIVE RELIEF;

SPECIFIC PERFORMANCE

9. BREACH GOOD FAITH &FAIRNESS

JURY TRIAL DEMANDED

COMES NOW, Plaintiff Xyz Abcs, proceeding in propia persona, and files

Plaintiff’s First Amended Verified Complaint - 1

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Plaintiff’s First Amended Verified Complaint.

Plaintiff requests that his Pro se status be recognized, and treated by the Court

as The United States Supreme Court, and US District Courts have held such status be

recognized and treated. “A pro se litigant's pleadings are to be construed liberally and

held to a less stringent standard than formal pleadings drafted by lawyers”. Haines v.

Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); see also Estelle v.

Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976); Gillihan v.

Shillinger, 872 F.2d 935, 938 (10th Cir.1989). “We hold pro se pleadings to a less

stringent standard than pleadings drafted by attorneys and construe them liberally”.

Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (per curiam)

THE PARTIES

1. This action concerns certain real property, of which, Plaintiff, Xyz Abc,

an individual residing in the State of California, County of Los Angeles, and inter alia,

is the purchaser of the real property, located at 123 Four Five Six, and claims an

equitable and beneficial right of title to the real property described herein at all times

relevant from and after April 4, 2006., Xyz Abc owns, and where he currently resides.

The certain real property is located at 123 Four Five Six, identified as Assessor’s

Parcel Nos. 01, 02, 03 in the County of Los Angeles, State of California (“the

property” or “property”) and is more particularly, legally described as:

Lot 111, 222, 333 of Tract No. 5555, in the City of Los Angeles, County of Los Angeles, State of California, as per Map recorded in Book00 pages 00 to 00 inclusive of Maps, in the Office of the County


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Recorder of said County.

2. Defendant BANK OF AMERICA HOME LOAN SERVICING, INC.

(“BOA”) formerly known as Countrywide Home Loans Servicing (“CHL”), is a

member of a National Banking Association, and are lenders and servicers, which

regularly engage in business in the State of California, and who regularly provide

mortgage loans and related services to residents in the State of California. BOA

named Mortgage Electronic Registration Systems “MERS” as nominee and who is

either assigned or nominated as beneficiary of the certain Deeds of Trust recorded at

the County Recorder. CHL was a New York corporation duly licensed to do business

in the State of California, with its principal place of business in the state of California

located at 4500 Park Granada, Calabasas, California 91302, and was the issuer of two

separate mortgages taken out by defendant Magness on or about April 4, 2007, and

secured by certain Deeds of Trust recorded as Document Nos. 06-0763938 and 06-

0763939 in the Office of the County Recorder of the County of Los Angeles, State of

California. Plaintiff is informed and believes, therefore alleges that by virtue of said

mortgages, BOA claims some right, title, estate, lien, or interest in the property,

adverse to Plaintiff’s title.

3. Defendant MORTGAGE ELECTRONIC REGISTRATION

SYSTEMS, INC. (“MERS”) is a corporation duly organized and existing under the

laws of the State of Delaware, with an address and telephone number of: Post Office

Box 2026, Flint, Michigan, 48501-2026. MERS is an electronic registration system,

that was created by the real estate industry to electronically register properties in order


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for the properties to be sold into securitization; and keep the costs down by cheating

the States and Counties out of the taxes associated with Registering the properties after

each such sale. Plaintiff is informed and believes that Defendant MERS is the

nominee of Defendant BOA and the beneficiary of those certain Deeds of Trust

recorded as Document Nos. 06-0763938 and 06-076939 in the Office of the County

Recorder of the County of Los Angeles, State of California, and is sued herein on that

basis and only in said Defendant’s capacity as the named Beneficiary for such Deeds

of Trust and for any part they had in the unlawful Sale Under Power performed by the

rest of the defendants.

4. Defendant RECONTRUST (“ReCon”) is “Headquartered in Thousand

Oaks, CA, ReconTrust is a member of the Bank of America family of companies.”1

“Our offerings include: •Foreclosure services in non-judicial states: We currently offer

foreclosure trustee services in Alaska, Arizona, Arkansas, California, Hawaii, Idaho,

Mississippi, Montana, Nevada, Nebraska, Oregon, Tennessee, Texas, Utah, Virginia,

and Washington with plans for expansion into additional non-judicial jurisdictions.”2

5. Defendant MR. MICHAEL S. MAGNESS3 (“Mr. Magness”, or

“Magness”) is an individual residing in the State of California, County of Los

1 http://www.recontrustco.com/about_us.aspx2 http://www.recontrustco.com/default_services.aspx ReCon states several places throughout their website “non-judicial foreclosures”, which causes suspicion.3 Plaintiff and Magness had been friends since late childhood, and over the course of their friendship, Plaintiff was aware that Magness was employed as a mortgage broker in the County of Los Angeles, State of California. Magness had informed Plaintiff that there were problems with Plaintiff’s credit that would complicate his efforts to obtain financing.


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Angeles. Plaintiff is informed and believes and on the basis of such information and

belief, holds that Defendant Magness claims an interest in the Property, due to having

illegally put the loan and deed of the property into his name rather than the name of

Plaintiff. Mr. Magness, at all times relevant, has been/was licensed as a salesperson

employed by 1stLAM with the Department of Real Estate, and also was working part-

time as a mortgage broker/salesman with Countrywide Home Loans, Inc. (“CHL”),

who became Bank of America.

6. Plaintiff is informed and believes that Jane/John Does 1 thru 100

(“Does”) are liable for some acts, omissions and wrongs committed against Plaintiff,

but Plaintiff at present, is uncertain as to the correct names and capacities of said

unnamed defendants.

7. Plaintiff hereby sues such DOES, and reserves the right under Cal. Civ.

Code 474, et al., to amend the names and capacities of such DOES when ascertained.

GENERAL ALLEGATIONS

8. Mr. Magness committed fraud by knowingly, willingly, wantonly,

maliciously, and in bad faith, took out loans for the property that Plaintiff was

purchasing in his own name.

9. Mr. Magness’ fraudulent, and deceitful acts in bad faith, resulted in great

monetary enrichment for Mr. Magness.

10. Mr. Magness continued to prevent Plaintiff’s loan and property from

being placed into Plaintiff’s name, with the actual knowledge of Magness’ employers

CHL and 1stLAM.


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11. Defendant 1stLAM knowingly, willingly, wantonly, maliciously, and

intentionally, submitted the loan package, from which key documents, such as the

sales contract, were missing.

12. Defendant 1stLAM’s Mr. John Pianalto knowingly, willingly, wantonly,

maliciously, and with the intent to defraud Plaintiff, had actual knowledge that

Plaintiff was the true purchaser of the property, and was aware of Mr. Magness’s

illegal acts; as stated in Sworn testimony, Mr. Pianalto “knew” what was going on, he

“didn’t care”, and he only wanted “to get paid”.

13. All defendants are business entities unless otherwise stated, they do

business and have residency and business contacts within the County of Los Angeles,

California

14. The Defendants,4 and each of them, were the agents, employees,

representatives, partners, officers, principals and/or joint venturers of each of the

remaining defendants, and in doing the things hereinafter alleged, were acting within

the scope, course and purpose of such agency, employment or position, or within the

apparent scope, course and purpose of such agency, employment or position and with

permission and consent of each of the remaining defendants

15. Defendants had actual knowledge that Plaintiff had previously sought,

and was being approved for a loan elsewhere and defendants led Plaintiff to believe

that he would get a much better deal with them.

4 Whenever appearing in this complaint, each and every reference to Defendants or to any of them, is intended to be and shall be a reference to all Defendants hereto, and to each of them, unless said reference is specifically qualified.


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16. Plaintiff is informed, believes, and has a transcript of Mr. Magness

stating that he had taken money in the amount of $150,000.00 from Plaintiff that he

was to secure a loan for the Plaintiff’s property, in Plaintiff’s name.

17. Plaintiff is informed and believes that after the loan was originated and

funded, it was transferred to defendant Mr. Magness.

18. Mr. Magness, in fact obtained the loan in his own name, and later took a

second loan against the property without Plaintiff’s knowledge or permission.

19. Mr. John Pianalto, employed with 1stLAM, in sworn, Oral testimony,

stated that they had actual knowledge of Mr.Magness’ acts, and did nothing to rectify

the problem, thereby becoming as guilty as Mr. Magness for the act.

20. After Plaintiff learned that the loan and deed were not in his name,

Plaintiff was able to have the TITLE ordered5 into his name, and although Plaintiff

diligently attempted to have the loan transferred into his own name, Plaintiff could not

have the loan associated with the property transferred.

21. Mr. Magness, while under Oath, during Oral testimony, admitted that he

had taken out a second loan against the Plaintiff’s property, and that Mr. Magness had

spent the money on “various expenses” not associated with the Plaintiff’s property.

22. Plaintiff, while attempting to have the loan put into the proper name, was

told by CHL and later BOA, that they would no longer accept payment from him, due

to his name not being on the loan documents.

5 Superior Court of Los Angeles for the County of Los Angeles, Civil Action #: BC3333333


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23. Mr. Magness failed to make payments, and Plaintiff was forbidden to

make payments, causing the loan to go into default.

24. BOA, and ReCon unlawfully foreclosed on Plaintiff’s property, with

actual knowledge that Plaintiff had been a victim of fraudulent acts of defendants Mr.

Magness and 1stLAM.

25. Plaintiff, further, is informed and believes, that the documents show

without doubt that defendants who performed the unlawful foreclosure of his property,

lacked standing to perform such foreclosure.

26. Plaintiff alleges that the foreclosure sale of the property was not

executed in accordance with the requirements of California Civil Code §§ 1624, 2924

et seq.

27. BOA and/or ReCon, who were allegedly acting as the agent of the

principal, failed to have written authorization to act for the principal and under Cal.

Civ. Code §1624 the agency relationship must also be in written form.

28. The notices and foreclosure failed to conform with the provisions of Cal.

Civ. Code §§1624, 2932.5 et seq., and Commercial Code § 3302 et seq.

29. Plaintiff further alleges that Cal. Civ. Code § 2924 and its subparts are

being/have been applied to Plaintiff in a manner that is unlawful, because at least in

part BOA and ReCon had proceeded with the foreclosure of Plaintiff’s property

notwithstanding the following facts and circumstances:

a. Plaintiff tendered an amount of One Hundred Fifty-Two ,Four

Hundred Thirty-Three Dollars ($152,433.00), as more particularly alleged in


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herein;

b. Plaintiff is informed and believes that neither BOA, nor ReCon

were in possession of the original Note, that the Note when it was assigned to

MERS did not convey the power of sale because it violated the terms of Cal.

Civ. Code §2932.5, and/or that the Note executed was no longer a negotiable

instrument because the assignment was not physically applied to the Note, and

as such the foreclosure of Plaintiff’s subject property did not conform with the

strict mandates of Cal. Civ. Code § 2924.

30. Plaintiff is informed and believes that BOA and ReCon were acting as

the agent of the agent of the agent of the Beneficiary for Plaintiff’s Note and the

notices therein.

31. By virtue of the method and manner of defendants’ carrying out of Cal.

Civ. Code §2924, Defendants proceeded with the foreclosure of the property were

acting in violation of said statute.

32. April, 2007, Plaintiff filed a civil action to quiet title, which Quiet Title

was Granted in Plaintiff’s favor.

33. April, 2010 Plaintiff had to file Bankruptcy due to the actions/inactions

of the defendants.

34. On or about July 2008, and October 2009, Plaintiff served by letter on

Defendants BOA, Notice of Dispute & Request for Accounting, Notice Pursuant to

Real Estate Settlement Procedures Act (RESPA) a Qualified Written Request.

35. In violation of RESPA, 12 U.S.C. §2607, said defendants have failed to


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respond to said notice by plaintiffs and have substantially failed to respond to all other

communications and inquiries by plaintiffs. Attached and incorporated by this

reference as “Exhibit A”.

36. Plaintiff further contends:

(a) that Plaintiff tendered the full amount owing as of the date of tender

as more particularly alleged herein;

(b) that failing to comply with RESPA as more particularly alleged

herein, defendants were not entitled to proceed with the foreclosure until

such compliance occurred; and

(c) on information and belief, that defendants were not otherwise

entitled to continue with said foreclosure because of the lack of proper

statutory execution of the deed of trust as more fully alleged herein;

(d) Although Plaintiff, at the time, did not know the Defendants had

actual knowledge that the loan was never in Plaintiff’s name, took

payments from Plaintiff, until he managed to get the Deed transferred

into his name, then defendants refused payment from him, claiming that

the loan is not in Plaintiff’s name.

37. Plaintiff, having been tricked and deceived, through fraud, to think that

he had applied for, and was approved for a loan in his own name, and having paid a

down payment of One Hundred Ten Thousand Dollars ($110,000.00), believed that

said loan had been approved, and that the loan and Deed were in Plaintiff’s name the

entire time.


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I.

FIRST CAUSE OF ACTIONFOR DECLARATORY RELIEF AGAINST

(As Against All Defendants)

38. Plaintiff incorporates Paragraphs one (1) through Thirty-Seven (37) of

this Amended Complaint, all paragraphs of general allegations, and any unnumbered

paragraphs, as though they have been fully restated and set forth herein.

39. An actual controversy exists in which the parties must ascertain their

rights, duties and right to title in the Subject Property.

40. A judicial determination is necessary that the parties may ascertain their

rights, duties and right to title in the Subject Property.

41. The Plaintiff desires the court make a judicial determination as to the

party’s rights, and duties concerning Plaintiff’s Real Property.

42. An actual controversy has arisen and now exists between Plaintiff and

Defendants, and each of them, concerning their respective rights, obligations and

duties as it relates to the Subject Property. In particular, on one hand, Plaintiff

contends:

(a) that Plaintiff tendered the full amount owing as of the date of tender

as more particularly alleged herein;

(b) that failing to comply with R.E.S.P.A. as more particularly alleged

herein, defendants were not entitled to proceed with the foreclosure until

such compliance occurred; and

(c) on information and belief, that defendants were not otherwise

entitled to continue with said foreclosure because of the lack of proper


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statutory execution of the deed of trust as more fully alleged herein;

(d) Although Plaintiff, at the time, did not know the Defendants had

actual knowledge that the loan was never in Plaintiff’s name, took

payments from Plaintiff, until he managed to get the Deed transferred

into his name, then defendants refused payment from him, claiming that

the loan is not in Plaintiff’s name.

43. Plaintiff, having been tricked and deceived, through fraud, to think that

he had applied for, and was approved for a loan in his own name, and having paid a

down payment of One Hundred Ten Thousand Dollars ($110,000.00), and an

additional Forty-One Thousand, Seven Hundred Dollars in payments; believed that

said loan had been approved, and that the loan and Deed were in Plaintiff’s name the

entire time.

WHEREFORE Plaintiff Moves for the following Relief:

(a)Plaintiff desires a judicial determination of Plaintiff’s Rights, and of

Defendants obligations and duties, and a declaration as to who is responsible for

payment of the loan;

(b). For an Order, requiring Defendant to have a loan reflecting only the

Plaintiff to coincide with the Deed in Plaintiff’s name, and a restraining

order/injunction preventing Defendants and/or their/its agents, employees,

officers, attorneys, and representatives in the future from engaging in or

performing any of the following acts: (i) offering, or advertising this property

for sale and (ii) attempting to transfer title to this property and or (iii) holding


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any auction thereof;

(c) For costs of suit incurred herein;

(d) For reasonable attorney’s fees provided by contract or statute; and

(e) For such other and further relief as the court may deem just and proper.

II.

SECOND CAUSE OF ACTIONFRAUD AND CONSPIRACY TO COMMIT FRAUD

(As against Defendants)

44. Plaintiff incorporates Paragraphs one (1) through Forty-Three (43) of



45. Plaintiff alleges that the defendants, each of the separately and together

discussed Plaintiff’s finances and his intent on purchasing the property where he now

resides; defendants conspired, reached an agreement to defraud Plaintiff out of his

property, and they put their scheme into play.

46. Plaintiff alleges that Defendants, and each of them, were also engaged in

an illegal scheme the purpose of which was to execute loans secured by real property

in order to make commissions, kick-backs, illegal undisclosed yield spread premiums,

and undisclosed profits by the sale of any instruments arising out of the transaction.

47. Plaintiff alleges that Defendants, each of them, had represented to

plaintiff, and to third parties, that they were the owner of the Trust Deed and Note as

either the Trustee, or the Beneficiary regarding Plaintiff’s real property.


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48. Based upon the foregoing representations, of the Defendants, Plaintiff

did in fact repose his trust in the representations of Defendants, and that such trust was

reasonable.

49. Defendants, presented a loan to Plaintiff whereby they represented that

he did qualify for underwriting, and that the loan was within Plaintiff’s personal

financial needs and limitations given the amount of down-payment, and the

confidential financial information that Plaintiff shared with Defendants.

50. Plaintiff believed that his down-payment had been applied to the loan,

that his name was on the loan, and the Deed in his name.

51. Defendants had a duty to disclose their true acts, and true intentions

concerning the loan, the amount of down payment paid, and the true name the loan and

deed were in.

52. Plaintiff acquired the foregoing property by virtue of the said funding

based on the representations of Defendants, that the loan was the best they could

obtain, and that the loan was well within Plaintiff’s financial needs and limitations.

53. Plaintiff is informed and believes that Defendants, represented to

Plaintiff that they were working for the benefit of Plaintiff and in his particular best

interest, to obtain for him the best loan, and at the best rates available.

54. At the time Defendants, with actual knowledge that the foregoing false

representations to Plaintiff, were untrue and the representations were material

representations, that Plaintiff would rely and depend upon.

55. The foregoing representations were made in order to induce Plaintiff to


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act on and take the said loan(s) in order for defendants to make a substantial amount of

money thereby and there from.

56. Plaintiff was induced to believe, and did in fact believe that he had taken

out the loan, as his own, based on the said representations

57. Plaintiff was induced to rely and did rely on the mis-representations of

defendants through deception, and his reliance was justified as he believed that

Defendants were working for him, and in his best interest.

58. Defendants had made Plaintiff numerous verbal promises, one of which

was that the loan and deed would be, and in fact, were secured in Plaintiff’s name,

while defendants had actual knowledge that they were misleading Plaintiff and that

Plaintiff was relying on that false representation..

59. After Plaintiff’s payments were rejected, and based upon the defendants’

prior misrepresentations, the defendants caused a Notice of Default to be issued and

recorded without disclosing their true role, and thereafter a notice of intent to foreclose

and finally foreclosure was completed, permanently affecting Plaintiffs right, title and

interest in the Subject Property.

60. Now, by virtue of Plaintiff’s reliance and the lack of payments accepted

toward the property, Plaintiff has been damaged in the loss of his credit, loss through

foreclosures, and loss from being involved in litigation that Plaintiff had not bargained

for, causing him further harm, damage and injury.

61. Plaintiff relied on defendants’ false representations, and because of this

reliance, had made various moves to avoid the foreclosure, all to no avail, while


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defendants knew all the time that they were deceiving Plaintiff.

62. Plaintiff’s reliance was justified based upon cremin falsi, and

representations of Defendants, Plaintiff had no reason to believe that a party

representing a bank would go to such lengths to deceive and to assist others in

converting Plaintiff’s property.

63. Defendants knowingly, willingly, wantonly, and maliciously with the

intent to defraud, made the misrepresentations to Plaintiff, and defendants knew at

the time that they were attempting to foreclose on Plaintiff’s Trust Deed and note that

they had no right to do so, but continued anyway.

64. Defendants, by and through said conspiracy, and fraudulent scheme,

knowingly, willingly, wantonly, intentionally, fraudulently, and with malicious intent,

aimed to keep Plaintiff’s right, title and interest to the property, and all equity therein.

65. Plaintiff’s trust and reliance on Defendants’ mis-representations has

caused Plaintiff harm, and injury; he has been damaged in an amount that currently

exceeds $300,000 and will suffer substantially from additional costs of moving from

the property, and the costs to relocate back to the subject Property.

66. Additionally, Plaintiff has been made to suffer deep and severe

emotional distress, mortification, anxiety, embarrassment, and humiliation, due to the

defendants’ acts, in an amount the totality of which has not yet been fully ascertained.

67. In fact, Plaintiff alleges that the promissory note which Plaintiff thought

was executed by, and for himself, and which initially formed a basis of a security

interest in the subject property, was in fact put into the name of Mr. Magness.


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68. Mr. Magness was allowed to borrow even more money against the

Plaintiff’s property, when Mr. Magness decided that he wanted a Forty Thousand

Dollar ($40,000.00) swimming pool at Mr. Magness’ own home.

69. Further, through Defendants’ acts of conspiracy and fraud, therefrom

resulted in a promissory note which had been rendered as non-negotiable and no

power of sale was conveyed with the note at the time of the assignment, therefore,

Defendants, each of them, had no lawful security interest in the subject property.

70. Defendants Mr. Magness, and 1stLAM (partners/brokers) as a ‘partner

broker’ of CHL, had a superior bargaining strength over Plaintiff, and Plaintiff was

relegated only the opportunity to adhere to what he was led to believe about the

contract or reject it; CHL/1stLAM drafted all of the documents related to the loan, and

no negotiations were possible between Plaintiff and 1stLAM/CHL and that the

contract was a contract of adhesion.

71. The issues Plaintiff later learned about the loan, were unconscionable in

that the loan was never in Plaintiff’s name, the payments were rejected, making

repayment impossible; Plaintiff learned the truth that neither the loan, nor the title was

in his name.

72. Defendants, and each of them, could not enforce the terms and

conditions of the loan against Plaintiff, and any non-judicial foreclosure arising there

from is void.

73. Through no fault of the Plaintiff, the loan associated with Plaintiff’s

property went into default; Plaintiff had faithfully, in good faith, paid and had intended


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to continue paying the loan; the default was occasioned by the rejection of proper

tender.

74. Plaintiff actually was not in default because of the prior fraudulent acts

of defendants, and their breach of the terms of the notes, any claimed default, had to be

excused.

75. BOA and ReCon, acting as the agent of the Principal failed to have

written authorization to act for the principal and under California Civil Code §1624 the

agency relationship must also be in written form.

76. Notices, and foreclosure failed to conform with the provisions of

California Civil Code §§ 1624, 2923.5, 2932.5 et seq., and Commercial Code Section

3302

77. The loan contract, deed of trust, and accompanying documents were

offered to Plaintiff on a take it or leave it basis, and Plaintiff had already provided One

Hundred Fifty Thousand Dollars ($150,000.00) toward the loan.

78. BOA and Recon acted as agents of the Beneficiary and signed

documents as the agent, of the agent, of the agent of the Beneficiary for Plaintiff’s

Note and the notices therein, notwithstanding the fact that the Note was not negotiable

prior to the sale of the Subject Property.

79. By virtue of the method and manner of Defendants’ carrying out Cal.

Civil Code § 2924 et seq., the foreclosure of the Subject Property is void ab initio as a

matter of law.

80. Defendants, and each of them, are and have, engaged in, and will


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continue to engage in, violations of California law, including but, not limited to: Cal.

Civil Code §§ 2924 et seq., 2932.5 et seq., and unless restrained, will continue to

engage in such misconduct; a public benefit necessitates that Defendants be restrained

from such conduct currently being practiced, and that conduct which will be conducted

in the future.


(a) For compensatory damages according to proof at time of trial;

(b) For special damages according to proof at time of trial;


(d) For punitive damages subject to proof at time of trial;

(e) For costs of suit incurred herein;

(f) For reasonable attorney’s fees provided by contract or statute; and

(g) For such other and further relief as the court may deem just and proper.

III.

THIRD CAUSE OF ACTION

Tortious Violation of StatuteReal Estate Settlement Procedures Act

12 USC section 2607 (b) (As Against Defendants All Defendants)

81. Plaintiff incorporates Paragraphs one (1) through Eighty (80) of this

Amended Complaint, all paragraphs of general allegations, and any unnumbered


82. Plaintiff alleges that The Congress by implementing Title 12 U.S.C.


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§2601 stated the following Congressional findings and purpose:

(a) The Congress finds that significant reforms in the real estate settlement process are needed to insure that consumers throughout the Nation are provided with greater and more timely information on the nature and costs of the settlement process and are protected from unnecessarily high settlement charges caused by certain abusive practices that have developed in some areas of the country. The Congress also finds that it has been over two years since the Secretary of Housing and Urban Development and the Administrator of Veterans' Affairs submitted their joint report to the Congress on ``Mortgage Settlement Costs'' and that the time has come for the recommendations for Federal legislative action made in that report to be implemented.

(b) It is the purpose of this chapter to effect certain changes in the settlement process for residential real estate that will result--

(1) in more effective advance disclosure to home buyers and sellers of settlement costs;

(2) in the elimination of kickbacks or referral fees that tend to increase unnecessarily the costs of certain settlement services;

(3) in a reduction in the amounts home buyers are required to place in escrow accounts established to insure the payment of real estate taxes and insurance; and

(4) in significant reform and modernization of local recordkeeping of land title information.

83. Plaintiff alleges that Defendants, and each of them, as set forth herein

violated both the terms and spirit of sections 12 U.S.C. §2601, etc. et seq.

84. Plaintiff alleges that he was in the group of persons for whom 12 U.S.C.

§2601, etc. et seq. was intended to protect and that Plaintiff suffered damages which

were actually and proximately caused by Defendants’ violations thereof.

85. Plaintiff alleges that section 12 U.S.C. §2607(d)(5) provides for a private


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right of action to recover damages and treble damages for violations therein. Said

section provides both civil and criminal penalties for violations thereof.

86. That the failure to respond to plaintiff’s RESPA requests constitutes a

violation of 12 USC §2607(b) and that therefore as provided by statute, he is entitled

to and seek treble damages therefore in a sum subject to proof at time of trial.

87. Plaintiff alleges that his’ claims regarding fees and penalties are not time

barred as the purpose of these fees were not explained to Plaintiff.

88. Plaintiff has suffered damages actually and proximately caused by

Defendants’ violation of the within statute in an amount the totality of which has not

yet been fully ascertained but, in no event less than the jurisdictional requirements of

this court.


(a) For damages as provided by statute;

(b) For costs of suit incurred herein;

(c) For reasonable attorney’s fees as provided by contract or statute; and

(d) For such other and further relief as the court may deem just and proper

IV.

FOURTH CAUSE OF ACTION

Conversion

89. Plaintiff incorporates Paragraphs one (1) through Eighty-eight (88) of




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90. Conversion is an intentional tort that evolved to protect against

interference with possessory and ownership interests in personal property.

91. Plaintiff has shown that his claims meet the criteria, the three elements

required to establish a cause of action for conversion: (1) plaintiff's ownership or right

to possession of the property at the time of the alleged conversion; (2) defendant's

conversion by a wrongful act or disposition of plaintiff's property rights; and (3)

damages.

92. Defendants BOA, ReCon, Mr. Magness, and possibly the Does

committed acts that resulted in foreclosure and were of such nature to cause an actual

interference with Plaintiff’s ownership or right to possess the subject property.

93. The fraudulent acts associated with the loan and deed, show an intention

or purpose to convert the property, so that the defendants could exercise ownership

over it, and/or to remove the property from Plaintiff’s ownership.

94. Defendants knowingly, willingly, wantonly, and with malicious intent,

kept the loan from Plaintiff’s name, refused payments from Plaintiff, and thereby

intended to convert the property by taking possession of it.

95. Further, because the property is of “peculiar interest” to the Plaintiff, and

the acts of defendants were willful, both Civ. Code 3355, as well as Civ. Code §3365

apply.

96. Because the conversion involved malice, fraud, and/or oppression,

exemplary or punitive damages can be properly awarded; the detriment caused by the

wrongful conversion of property is further, presumed to include fair compensation for


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time and money properly expended in pursuit of the converted property.


(a) For an award of exemplary/punitive damages in the amount of Two

Million Dollars ($2,000,000.00), which will include all of the damages to

the Plaintiff and the property for the conversion count, only.

(b) Grant attorney’s fees, which, although Plaintiff currently does not have

legal representation, he continues to seek competent legal representation.

(c) All court costs, and costs associated with pursuing a remedy of the illegal

acts of the defendants.

(d) Any other relief that Plaintiff fails to realize, and/or that this Court deems

fair and just under the circumstances.

V.

FIFTH CAUSE OF ACTION

Reformation (Note) as Against BOA, ReCon, 1 st LAM, and Does

97. Plaintiff realleges and incorporates Paragraphs One (1) through Ninety-

Six (96) of this Amended Complaint, all paragraphs of general allegations, and any

unnumbered paragraphs, as though they have been fully restated and set forth herein.

98. Plaintiff alleges that BOA, 1stLAM, and Mr. Magness committed a fraud

against Plaintiff in that BOA, 1stLAM, employees and/or agents intentionally

misrepresented to Plaintiffs that BOA, 1stLAM would only make a loan that Plaintiff

could afford to pay, said Defendants did not disclose the terms and conditions for

repayment, interest, annual percentage rate, or that the loan and deed would not be in


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Plaintiff’s name.

99. Plaintiff alleges that pursuant to Civil Code §3399, that the loan

documents which were executed did not truly express the intention of Plaintiff, more

particularly that the loan would have a repayment schedule that Plaintiff could afford,

as well as that the loan and deed would not be in Plaintiff’s name.

100. Plaintiff alleges that utilization of any reasonable underwriting

guidelines, Plaintiffs had no hope whatsoever of repaying the loan, especially after Mr.

Magness added another Forty Thousand ($40,000.00) to the balance of the loan.

101. Employees and/or agents of BOA and/or 1stLAM represented that said

employees and/or agents could work-around the fact that Plaintiff’s credit was not in

good standing and could get Plaintiff approved for the loan. Defendants did not

disclose at any time to Plaintiff that the loan and deed would never be in Plaintiff’s

name.

102. Plaintiff alleges that the loan contract, deed of trust and accompanying

documents were offered to Plaintiff on a take it or leave it basis, and Plaintiff had

already at that time, provided One Hundred Ten Thousand Dollars ($110,000.00),

which had been applied as down payment for the loan.

103. Plaintiff alleges that Defendants BOA and 1stLAM had a superior

bargaining strength over Plaintiff, and that Plaintiff was relegated only the

opportunity to adhere to the contract or reject it, that defendants BOA, and/or 1stLAM,

and/or Mr. Magness had drafted all of the documents related to the loan, that no

negotiations were possible between Plaintiff and lender, and that the contract was a


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contract of adhesion.

104. Plaintiff alleges that the loan was unconscionable in that the repayment

terms were unfair and unduly oppressive, the loan was not, and it was never intended

to be in Plaintiff’s name, and Defendants, each of them, could not legally enforce the

terms and conditions of the loan against Plaintiff, and any non-judicial foreclosure

arising there from is void.

105. Plaintiff is informed and believe that all Defendants, entered into a

fraudulent scheme, the purpose of which was to make a loan to Plaintiff, which each of

the defendants were keenly aware were never to be placed into Plaintiff’s name;

thereby Plaintiff’s payments would be denied.

106. Further, BOA, 1stLAM, and Mr. Magness falsely represented to Plaintiff

that he would not qualify for any other financing, that Plaintiffs could not qualify

under any reasonably underwriting guidelines, that such scheme was devised to extract

illegal and undisclosed compensation from Plaintiff by virtue of an undisclosed yield

spread premium and which Defendants, shared in some presently unknown percentage.

107. The court has by and through its inherent power and discretion, and

further under the purview of Civil Code §3399, the power to reform the terms of the

loan to meet the Plaintiff’s expectations of the loan, its terms, the principal amount of

the loan, interest, and that the court place fair market value of the property of

approximately $150,000.00, for purposes of reforming the terms and conditions of the

loan.

108. Since Defendants proceeded with the invalid Foreclosure sale the sale be


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set aside, and that equity should confer upon said defendants a right of equitable

indemnification as against defendants, for their fraud.


(a) For general damages subject to proof at time of trial;


(c) For reasonable attorney’s fees subject to proof at time of trial; and

(d) For such other and further relief as the court may deem just and proper.

VI.

SIXTH CAUSE OF ACTION

VIOLATION of BUSINESS and PROFESSIONS CODE §17200

As Against BOA, and 1 ST LAM, Mr. Magness, and Does Inclusive

109. Plaintiff realleges and incorporates Paragraphs One (1) through One

hundred eight (108) of this Amended Complaint, all paragraphs of general allegations,

and any unnumbered paragraphs, as though they have been fully restated and set forth

herein

A. Plaintiff Suffered Damages As A Result of Defendants’ Conduct:

110. As a direct result of Defendants’ acts, Plaintiff has incurred actual

damages consisting of mental and emotional distress, nervousness, grief,

embarrassment, loss of sleep, anxiety, worry, mortification, shock, humiliation,

indignity, pain and suffering, and other injuries.

111. Plaintiff has incurred out of pocket monetary damages.

112. Plaintiff continue to incur monetary damages.


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113. Plaintiffs will incur the loss of his personal residence if the defendants

are allowed to prevail.

114. Each of Defendants harassing acts were so willful, vexatious,

outrageous, oppressive, and maliciously calculated enough, so as to warrant statutory

penalties and punitive damages.


(a) For an Order enjoining Defendants from continuing to violate the

statutes alleged herein;


(c) For reasonable attorneys fees subject to proof and as available by

contract or statute; and


VII.

SEVENTH CAUSE OF ACTION

Violation Of California Civil Code 2923.6


hundred fourteen (114) of this Amended Complaint, all paragraphs of general

allegations, and any unnumbered paragraphs, as though they have been fully restated

and set forth herein

116. Defendants’ Pooling and Servicing Agreement ( “PSA”) contains a duty

to maximize net present value to its investors and related parties.

117. California Civil Code §2923.6 broadens and extends this PSA duty by


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requiring servicers to accept loan modifications with borrowers.

118. Pursuant to California Civil Code §2923.6(a), a servicer acts in the best

interest of all parties if it agrees to or implements a loan modification where the (1)

loan is in payment default, and (2) anticipated recovery under the loan modification or

workout plan exceeds the anticipated recovery through foreclosure on a net present

value basis.

119. California Civil Code §2923.6(b) now provides that the mortgagee,

beneficiary, or authorized agent offer the borrower a loan modification or workout

plan if such a modification or plan is consistent with its contractual or other authority.

120. Defendants refused to consider such modification with Plaintiff.


(a) For an Order requiring Defendants to modify the existing loan as set forth

herein;

(b) For costs of suite incurred herein;

(c) For reasonable attorneys fees subject to proof and as available by contract

or statute; and


VIII.

EIGHTH CAUSE OF ACTION:

Violation Of § 1788.17 Of The RFDCPA


hundred twenty (120) of this Amended Complaint, all paragraphs of general


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122. California Civil Code §1788.17 requires that Defendants comply with

the provisions of 15 U.S.C. § 1692, through their acts including but not limited to, the

following:

(a) The Defendants violated California Civil Code §1788.17 by engaging in conduct, the natural consequence of which is to harass, oppress, and abuse persons in connection with the collection of the alleged debt, a violations of 15 U.S.C. § 1692(d);

(b) The Defendants violated California Civil Code §1788.17 by misrepresenting the status of the debt, a violations of 15 U.S.C. § 1692(e)(s)(A);

(c) The Defendants violated California Civil Code §1788.17 by using unfair or unconscionable means to collect or attempt to collect a debt, a violation 15 U.S.C. § 1692(f); and

(d) The Defendants violated California Civil Code §1788.17 by using deceptive means to collect or attempt to collect a debt from the Plaintiff, a violation of 15 U.S.C. § 1692e(10).

123. The foregoing violations of 15 U.S.C. §1692 by Defendants result in

separate violations of California Civil Code §1788.17

124. The forgoing acts by Defendants were willful and knowing violations of

Title 1.6C of the California Civil Code (FRDCPA), are sole and separate violations

under California Civil Code §1788.30(b), and trigger multiple $1,000.00 penalties.

125. California Civil Code §1788.17 provides that Defendants are subject to

the remedies of 15 U.S.C. §1692(k), for failing to comply with the provisions of 15

U.S.C. §1692(b)(6) and §1692(c)c.


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126. The foregoing acts by Defendants were intentional persistent, frequent,

and devious violations of 15 U.S.C. §1692, which trigger additional damages of

$1,000.00 under 15 U.S.C. §1692(k)(a)(2)(A).


(a) For an Order enjoining Defendants from continuing to violate the statutes

alleged herein;


(c) For reasonable attorneys fees subject to proof and as available by contract

or statute; and


IX.

NINTH CAUSE OF ACTION:

Violation Of Civil Code §1572


hundred twenty-six (126) of this Amended Complaint, all paragraphs of general



128. The misrepresentations by Defendants’ and/or Defendants’ predecessors,

failures to disclose, and failure to investigate as described above were made with the

intent to induce Plaintiff to obligate himself on the Loan in reliance on the integrity of

Defendants and/or Defendants’ predecessors.

129. Plaintiff is an unsophisticated customer, whose reliance upon Defendants


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and/or Defendants’ predecessors was reasonable and consistent with the Congressional

intent and purpose of California Civil Code §1572 enacted in 1872 and designed to

assist and protect consumers similarly situated as Plaintiff in this action.

130. As an unsophisticated customer, Plaintiff could not have discovered the

true nature of the material facts on his own.

131. The accuracy by Defendants and/or Defendants’ predecessors of

representation is important in enabling a consumer, such as the Plaintiff to compare

market lenders in order to make informed decisions regarding lending transactions

such as a loan.

132. Plaintiff was ignorant of the facts which Defendants and/or Defendants’

predecessors misrepresented and failed to disclose.

133. Plaintiff’s reliance on Defendants and/or Defendants’ predecessors was a

substantial factor in causing him harm.

134. Had the truth about the Loan been accurately represented and disclosed

by Defendants and/or Defendants’ predecessors, Plaintiff would not have accepted the

Loan nor been harmed.

135. Had Defendants and/or Defendants’ predecessors investigated Plaintiff’s

financial capabilities, they would have been forced to deny Plaintiff on this particular

loan.

136. Defendants and/or Defendants’ predecessors conspired and agreed to

commit the above mentioned fraud.

137. As a proximate result of Defendants and or Defendants’ predecessors’


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fraud, Plaintiff has suffered damage in an amount to be determined at trial.

138. The conduct of Defendants and/or Defendants’ predecessors as

mentioned above was fraudulent within the meaning of California Civil Code

§3294(c)(3), and by virtue thereof Plaintiff is entitled to an award of punitive damages

in an amount sufficient to punish and make an example of the Defendants.


(a) For punitive damages subject to proof at time of trial;


(c) For reasonable attorney’s fees subject to proof and as available by



X.

TENTH CAUSE OF ACTION:

Injunctive Relief Against Defendants


hundred tthirty-eight (138) of this Amended Complaint, all paragraphs of general



140. Defendants did not have standing or enforceable right to enforce the note

and any incidental right to collateral so as to foreclose on Plaintiff’s Home, including

without limitation, conducting a Sale Under Power relative to that property.

141. Such action resulted in a cause of action for “wrongful foreclosure,” and


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caused irreparable harm to Plaintiff, and caused pecuniary compensation which will

not afford adequate relief because Plaintiff’s Home is unique.

142. Injunctive relief is necessary to enjoin Defendants from continuing to

harm Plaintiff and his Home since they lacked standing and any enforceable rights

under the Promissory Note.


(a) For an Order, requiring Defendant to reinstate Plaintiffs on title to

their Property, and or a restraining order preventing Defendants and

his, hers, or its agents, employees, officers, attorneys, and

representatives from engaging in or performing any of the following

acts: (i) offering, or advertising this property for sale and (ii)

attempting to transfer title to this property and or (iii) holding any

auction therefore;


(c) For reasonable attorney’s fees provided by contract or statute; and

(d) For such other and further relief as the court may deem just and

proper.

CONCLUSION AND PRAYER

Whereas the Plaintiff has shown that Defendants, from the very beginning,

showed bad faith, and knowingly, willingly, wantonly, maliciously, and with

fraudulent intent, conspired and defrauded Plaintiff in acts that encompassed several

years of Plaintiff’s life, thereby causing harm and injury to both himself and his


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property.

The defendants, showing such callous attitudes for the acts, have surely done

the same to others, and will continue to do the same to others, unless they are shown

that their behavior will not be tolerated. Many of their acts have been not only civil in

nature, but criminal as well, for which acts, the Plaintiff Moves the court to levy

criminal charges against the defendants.

WHEREFORE, Plaintiff prays judgment as follows:

The Court will levy criminal charges for the crimes committed against the

Plaintiff, and surely countless other unsuspecting individuals.

FOR THE FIRST CAUSE OF ACTION:

(a) For an Order, requiring Defendant to have a loan reflecting only the Plaintiff

to coincide with the Deed in Plaintiff’s name, and a restraining order/injunction

preventing Defendants and/or their/its agents, employees, officers, attorneys,

and representatives in the future from engaging in or performing any of the

following acts: (i) offering, or advertising this property for sale and (ii)

attempting to transfer title to this property and or (iii) holding any auction

thereof;




FOR THE SECOND CAUSE OF ACTION:

(a) For compensatory damages according to proof at time of trial;


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(b) For special damages according to proof at time of trial;


(d) For punitive damages subject to proof at time of trial;

(e) For costs of suit incurred herein;

(f) For reasonable attorney’s fees provided by contract or statute; and

(g) For such other and further relief as the court may deem just and proper.

FOR THE THIRD CAUSE OF ACTION:

(a) For damages as provided by statute;


(c) For reasonable attorney’s fees as provided by contract or statute; and

(d) For such other and further relief as the court may deem just and proper

FOR THE FOURTH CAUSE OF ACTION:

(a) For an award of exemplary/punitive damages in the amount of Two

Million Dollars ($2,000,000.00), which will include all of the damages to

the Plaintiff and the property for the conversion count, only.

(b) Grant attorney’s fees, which, although Plaintiff currently does not have

legal representation, he continues to seek competent legal representation.

(c) All court costs, and costs associated with pursuing a remedy of the illegal

acts of the defendants.

(d) (d) Any other relief that Plaintiff fails to realize, and/or that this

Court deems fair and just under the circumstances.

FOR THE FIFTH CAUSE OF ACTION:


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(a) For general damages subject to proof at time of trial;

(b) For special damages subject to proof at time of trial;

(c) For costs of suite incurred herein;

(d) For reasonable attorney’s fees subject to proof at time of trial; and

(e) For such other and further relief as the court may deem just and proper.

FOR THE SIXTH CAUSE OF ACTION:







FOR THE SEVENTH CAUSE OF ACTION:

(a) For an Order requiring Defendants to modify the existing loan as set

forth herein;





FOR THE EIGHTH CAUSE OF ACTION:




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FOR THE NINTH CAUSE OF ACTION:

(a) For punitive damages subject to proof at time of trial;


(c) For reasonable attorney’s fees subject to proof and as available by



FOR THE TENTH CAUSE OF ACTION:

(a) For an Order, requiring Defendant to reinstate Plaintiffs on title to their

Property, and or a restraining order preventing Defendants and his, hers, or its

agents, employees, officers, attorneys, and representatives from engaging in or

performing any of the following acts: (i) offering, or advertising this property

for sale and (ii) attempting to transfer title to this property and or (iii) holding

any auction therefore;




Respectfully submitted, this 27th day of November, 2010,

By: ____________________________


wrongful foreclosure xyz abc

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