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A TIORNEY OR PARTY WITHOUT A TIORNEY (Name, Stale Bar number, snd address):

Jonathan Fried, SBN 257631 700 Montgomery Street

San Francisco, CA 94111

TELEPHONE NO: (415) 986-7000 E-MAIL ADDRESS (OptiDflaO:

ATTORNEY FOR (Name):

FAX NO. (0pI/tInaJ):

SUPERIOR COURT OF STREET ADDRESS; 725 Court Street

MAILING ADDRESS;

CITY AND ZIP COOE: Martinez CA 94553

PLAINTIFF:

DEFENDANT: GMAC. ETS Services. LLC

WDOES1 TO 10

WCOMPLAINT

CONTRACT

o AMENDED COMPLAINT (Number):

D CROSS-COMPLAINT D AMENDED CROSS-COMPLAINT (Number):

l,," __ ' __

CASE NUMBER:

Jurisdiction (check all that apply):

o ACTION IS A UMJTED CIVIL CASE

Amount demanded 0 does not exceed $10,000

D exceeds $10,000 but does not exceed $25,000 WACTION IS AN UNLIMITED CIVIL CASE (excHds $25.000)

D ACTION IS RECLASSIFIED by this amended complaint or cross-complaint

o from limited to unlimited

D from unlimited to IImHed

1. Iff" s):

- .. : I :. • ; I. _

eg gainst defendant" (name or names):

GMAC. ETS Services, LLC

2. This pleading, including attachments and exhibits, consists of the following number of pages:

3. a. Each plaintiff named above is a competent adult

o except plaintiff (name):

(1) Da corporation qualified to do business In Carlfornia (2) CJan unincorporated entity (describe):

(3) D other (specify):

b. D Plaintiff (name):

a. 0 has complied wHh the fictitious business name laws and is doing business under the fictitious name (specify):

b. D has complied with all licensing requirements as a licensed (specify):

c. 0 Information about additional plaintiffs who are not competent adults is shown in Attachment 30.

4. a. Each defendant named above is a natural person

[L] except defendant (name): 6 fL'\~ "'"

(1) [ZJ a business organization, form unknown (2) 0 a corporation

(3) 0 an unincorporated entity (describe):

[ZJexcept defendant (name): ETS Services, LLC (1) m a business organization. form unknown (2) 0 a corporation

(3) 0 an unincorporated entity (describe):

(4) D a pubrrc entity (describe): (5) 0 other (specify):

(4) 0 a public entity (describe):

(5) CJ other (specify):

"1f1l115 ftmn is UII!Id a8 a ~Int, plaintiff me8118 crass-complalnant IIml dSfendanl means crnlllHlafendant.

PIIglI1of2

FOIm Approved fur Optional use Judicial COImcl1 of Caifomla PLD-C-001 (Re>'. Janulltv 1, 2007]

COMPLAINT-Contract

Code of CIvil Procedure, § 425.12 American LegalNet. Inc. www.Fcrmslolobrldlow.com

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PLD·C·001

. GMAC, ETS Services, LLC

CASE NUMBER:

4. (Continued)

b. The true names of defendants sued as Does are unlmown to plaintiff.

(1) [ZJ Doe defendants (specify Doe numbers): ] -5 were the agents or employees of the named

defendants and acted within the scope of that agency or employment.

(2) CZJ Doe defendants (specify Doe numbers): 6-10 are persons whose capacities are unknown to

plaintiff.

c. D Information about additional defendants who are not natural persons is contained in Attachment 4c.

d. D Defendants who are joined under Code of eMI Procedure section 382 are (names):

5. [l] Plaintiff is required to comply with a claims statute, and

a. [Z] has complied with applicable claims statutes, or

b. 0 is excused from complying because (specify):

6. D This action is subject to [l] Civfl Code section 1812.10 D Civil Code section 2984.4.

7. This court is the proper court because

a. 0 a defendant entered into the contract here.

b. 0 a defendant lived here when the contract was entered into.

c. D a defendant lives here now.

d. D the contract was to be performed here.

e. 0 a defendant is a corporation or unincorporated association and its principal place of business is here.

f. [l] real property that is the subject of this action is located here.

g. 0 other (specify): .

8. The following causes of action are attached and the statements above apply to each (each complaint must have one or more causes of action attached):

[2] Breach of Contract

D Common Counts

m Other (specify):

Negligence, Fraud, 17200 Deceptive Practices

9. [l] other allegations:

Violation of the California Foreclosure Prevention Act

10. Plaintiff praya for judgment for costs of suit; for such relief as is fair I just, and equitable; and for

a. ill damages of: $ 500,000

b. ill interest on the damages (1)!ZJ according to proof

(2) D at the rate of (specify): percent per year from (date):

c. m attorney's fees

(1)0 of: $

(2) m according to proof. d. m other (specify):

Declaratory relief either that the loan is absolved or a court order loan modification.

11. 0 The paragraphs of this pleading alleged on infonnation and belief are as (specify n.cIr.!iallrmh

Date:

Jonathan Fried

PL[).C·Q01 [Rev. JrmulllY 1. 2007]

Pag"Z OfZ

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PLD-C-001

v. GMAC, ETS Services, LLC

CASE NUMBER:

CAUSE OF ACTION-Breach of Contract

(number)

ATTACHMENT TO W Complaint 0 Cross ~ Complaint (Uses separate cause of action form for each cause of action.)

I~ .- ••••• II. U-'I\

c. I ••

alleges that on or about (date); continuing

a 0 written D oral [Z] other (specify); implied agreement was made between (name parties to agreement):

GMAC. ETS Services, LLC, Does 1-10

D A copy of the agreement is attached as Exhibit A, or

D The essential terms of the agreement 0 are stated in Attachment BC-1 [Z] are as follows (specify):

e good faith and reasonable efforts to modify the mortgage on including: providing information, disseminating that u· nrormanon ,"HU~jL~ th care, act honestly and truthfully, and to act in a timely manner for the purpose of modifying a home loan.

BC-2. On or about (dates): August 2009

defendant breached the agreement by 0 the acts specified in Attachment BC-2 [Z] the following acts (specify);

Failing to provide information to homeowner regarding status of their loan, improper handling and calculating income for purposes of modifying the loan, delaying in the modification process for purposes of foreclosing.

BC-3. Plaintiff has perfonned all obligations to defendant except those obligations plaintiff was prevented or excused from performing.

BC-4. Plaintiff suffered damages legally (proximately) caused by defendant's breach ofthe agreement D as stated in Attachment BC-4 W as follows (specify):

Homeowner did not seek alternatives to modification; such as, refinancing or selling. Lowered credit score, lowered value of their home, and having to suffer the foreclosure proceedings.

8C~5. I2J Plaintiff is entitled to attorney fees by an agreement or a statute o of$

m aCCOrding to proof.

BC-6. D Other:

Page _

Form Appl'lMld for Optional use Judicial CounCil Of California PLO·C.oo1(1) fRev. January 1. 2007]

Pau,,1of1

CAUSE OF ACTION-Breach of Contract

Code of Civil Procedure. § 425.12 WII'W.ro~nfo.C!I.110V

I American LegalNeI. Inc. I WNWcFormsWor/d1ow.r:om

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PLD~PI·001 (3)

CASE NUMBER

GMAC~ ETS Services, LLC

Two

CAUSE OF ACTION-Intentional Tort

Page

(number)

ATIACHMENT TO W Complaint D Cross - Complaint

(Use a sepamte cause of action form for each cause of action.)

IT -1, Plaintiff (name): aUeges that defendant (name): GMAC, ETS Services, LLC

m Does I

",;;.",.----

to 10

-----

was the legal (proximate) cause of damages to plaintiff, By the following acts or omissions to act, defendant intentionally caused the damage to plaintiff

on (date)continuing

at (place):

(description of reasons for liability):

GMAC; ETS Services, LLC, its Trustees and Servicers, falsely told the plaintiff that a loan modification was available to them. The defendants did not have authority nor the capability to modify the loan, which was unknown to plaintiff. The defendants lack standing to foreclose on the property since they do not have an original of the note. Defendants are attempting to convert its false, imperfect, or fraudulent title through foreclosure proceedings where a Trustee Sale allows for the presumption of marketable title.

Form Approved for Optional USI!I Juaicial Council of Callfomlll PLD-PI-lXl1(3) [Rev. January 1, 20D71

Pagot 1 ot1

CAUSE OF ACTION-Intentional Tort

Code of CM! ProcedUlll, § <125. 1 2 www.mortmi.l:l.CII.gov

American LegatNe!, Inc. www.FormsWor1!f1l)w.com

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PLD-c..o01 (3)

v. GMAC, ETS Services, LLC

I "'''' <OM'"

Three

CAUSE OF ACTION-Fraud

(number)

ATIACHMENTTO m Complaint 0 Cross-Complaint (Use a separate cause of action form for each cause of action.)

FR- 1. Plaintiff (name): alleges that defendant (name): GMAC, ETS Services. LLC

on or about (date): 2009 continuing

defrauded plaintiff as follows:

FR-2. m Intentional or Negligent Misrepresentation

a. Defendant made representations of material fact, 0 as stated in Attachment FR-2.a m as follows:

as to the authority to modify the loan and standing to foreclose on the property.

b. These representations were in fael false. The truth was 0 as stated in Attachment FR-2.b m as follows: defendant lacks authority to modify the loan, ability to process a loan modification program, and they lack standing to foreclose on the property.

c. VVhen defendant made the representations, [ZJ defendant knew they were false, or

o defendant had no reasonable ground for believing the representations were true.

d. Defendant made the representations with the intent to defraud and induce plaintiff to act as described in Item FIR-5. At the time plaintiff aded, plaintiff did not know the representations were false and believed they were true. Plaintiff acted in justifiable reliance upon the truth of the representations.

FR-3. m Concealment

a. Defendant concealed or suppressed material facts CJ as stated inAttachment FR-3.a W as follows:

that the defendants lack authority to modify the loan and are not the holders of the note.

b. Defendant ooncealed or suppressed material facts o defendant was bound to disclose.

m by telling plaintiff other facts to mislead plaintiff and prevent plaintiff from discovering the concealed or suppressed facts.

c. Defendant concealed or suppressed these facts with the intent to defraud and induce plaintiff to act

as described in Hem IFI R-5. At the time plaintiff acted, plaintiff was unaware of the concealed or suppressed facts and would not have taken the action if plaintiff had known the facts.

Page

----

Form Approved for Optional Use Judicial Council of Ce!Wornia PW·C.OO1 (3) [Rev. January 1, 2007]

CAUSE OF ACTION-Fraud

Code ofCiuil Proc:adUI'e, § 425.12 www.COUrllnfo.ca.gov

American l.egaINet, Inc. WWW.FormsWanrrTow.1:Om

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PLD-C-001 (3)

.. ~

. GMAC, ETS Services, LLC

I ""NC ..... '

Three

CAUSE OF ACTION-Fraud

(numbar)

FR-4. m Promise Without Intent to Perform

a. Defendant made a promise about a material matter wtthout any intention of performing it 0 as stated in Attachment FR-4.a m as follows:

that efforts would be madeto modify the home loan regarding

b. Defendant's promise without any Intention of performance was made with the intent to defraud and induce plaintiff to rely upon it and to act as described in Item FR-5, At the time plaintiff acted, plaintiff was unaware of defendant's intention not to perform the promise, Plaintiff acted in justifiable reliance upon the promise,

FR·5. In justifiable reliance upon defendant's conduct, plaintiff was induced to act D as stated in Attachment FR-5 m as follows:

did not attempt to obtain other means to avoid foreclosure. conveyed personal and confidential information, allocated a substantial amount oftime towards the modification process.

FR..s. Because of plaintiff's rellance upon defendant's conduct, plaintiff has bean damaged D as stated tn Attachment FR· 6 m as follows:

eminent trustee sale on home, lowered. credit score, and lowered value on the house.

FIR~ 7, Other:

Page

PLD·C-001(3) [Rev" Janual)l 1,2007

CAUSE OF ACTION-Fraud

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PLD-PI-001

. GMAC, ETS Services, LLC

CASE NUMBER:

Four

CAUSE OF ACTION-General Negligence

Page _

(number)

ATTACHMENT TO [ZJ Complaint 0 Cross - Complaint (Use a separate C'ause of action form for each cause of action.)

GN-1. Plaintiff

alleges that defendant (name): GMAC, ETS Services, LLC

[L] Does 1

-'------

to 10

..;....;..----

was the legal (proximate) cause of damages to plaintiff. By the following acts or omissions to act, defendant negligently caused the damage to plaintiff

on (date): continuing

at (place):

(description of reasons for liability):

defendant had a duty to act in good faith and fair dealing. to maintain information, and calculate a modified payment. The standard of care for a bank in modifying a horne loan is described under standard waterfall processes in the California Foreclosure Prevention Act and Obama's Making Homes Affordable Plan. The bank breach that duty when it denied the homeowner a modification. That breach is the actual and proximate cause of the homeowner facing foreclosure. The homeowner has suffered a lowered credit score, the lost equity in the home, and is threatened with eminent foreclosure sale causing detrimental health affects.

Page 1 of1

FOITTl Approved for Optional Use JudiCial CounCIl Of California PL[).PI-D01(2) IRev. January 1. 2007]

CAUSE OF ACTION-General Negligence

Code of Civil Procedure 425.12 www.c:Jurtinfil.ca.gtlv

AmeriCan LegalNeI, Inc. www.FormsWorldlow.com

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16 17 18 19 20 21 22 23 24 25

27

5

Cause of Action Foreclosure Prevention Act

Case No. _

1 Jonathan Fried, SBN 257631 Law Office of Jonathan Fried 2 700 Montgomery Street

San Francisco, CA 94111

3 Telephone (650) 773-9395

4 Attorney for Plaintiffs Homeowner

6 7

SUPERIOR COURT OF CALIFORNIA, COUNTY OF CONTRA COSTA UNLIMITED CIVIL JURISDICTION

8 9 10

) Case No.

11 )

Plainti:ff(s),) Cause of Action Foreclosure Prevention Act

12 )

~ )

13 )

GMAC, ETS Services, LLC and DOES 1)

14 through 10, inclusive, ~

15 Defendants. )

---------------------------)

California Foreclosure Prevention Act

26

The legislature enacted a new bill to face what it states as: California is facing an unprecedented threat to its state and loea1 economies due to skyrocketing residential property foreclosure rates in California, Those high foreclosure rates have adversely affected property values in California, and will have even greater adverse consequences as foreclosure rates continue to rise. (HR ABX 27 Chaptered, California Foreclosure Prevention Act)

It is essential to the economic health of Ca1ifornia for the state to ameliorate the deleterious effects that will result from the continued high rate offoreclosure ofresidentiaI properties by modifying the foreclosure process to provide additional time for borrowers to work. out loan modifications while providing an exemption for mortgage loan servicers that have implemented a comprehensive Joan modification program. This change in accessing the state's

foreclosure process is essential to ensure that the process does not exacerbate the current crisis by 28

1

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1 adding more foreclosures to the glut of foreclosed properties already on the market if the

2 foreclosure may be avoided through a loan modification. Those additional foreclosures could

3 further destabilize the housing market with significant, corresponding deleterious effects on the 4 state and local economies.

5 The bill would provide that a person who violates these provisions is deemed to have

6 violated his or her license law. Notice of a Trustee sale shall not give notice of sale until at least 7 90 days after the lapse of three months as set forth in paragraph (2) of subdivision ( a) of Section 8 2924, in order to allow the parties to pursue a loan modification to prevent foreclosure, if all of 9 the following conditions exist:

10 (1) The loan was recorded during the period of January 1, 2003, to January 1, 2008,

r

11 inclusive, and is secured by residential real property.

12 (2) The loan at issue is the first mortgage or deed of trust that the property secures.

13 (3) The borrower occupied the property as the borrower's principal residence at the time

14 the loan became delinquent.

15 (4) The notice of default has been recorded on the property.

16 (b) This section does not apply to loans serviced by a mortgage loan servicer if that

17 mortgage loan servicer has obtained a temporary or final order of exemption pursuant to

18 Section 2923.53 that is current and valid at the time the notice of sale is given.

19 SEC. 4. Section 2923.53 is added to the Civil Code, to read: 2923.53. (a) A mortgage

20 loan servicer that has implemented a comprehensive loan modification program that meets the 21 requirements of this section shall have the loans that it services exempted from the provisions of 22 Section 2923.52, upon order of the commissioner. A comprehensive loan modification program 23 shall include all of the following features:

24 (1) The loan modification program is intended to keep borrowers whose principal residences are

25 homes located in California in those homes when the anticipated recovery under the loan

26 modification or workout plan exceeds the anticipated recovery through foreclosure on

27 a net present value basis.

28 (2) The loan modification program targets a ratio of the borrower's housing-related debt to the

2

Cause of Action Foreclosure Prevention Act

Case No. _