Complaint Sample

1 CATARINA M.
BENITEZ SBN 256518

LAW OFFICES OF CATARINA M. BENITEZ
2 2014 Tulare Street, Suite 400

2014 TULARE STREET, SUITE 400
Fresno, California 93721

3 Telephone: (559) 472-7337
Facsimile: (559) 579-1100
FRESNO, CA 93721
4
5 Attorney for Plaintiff,
6
7
8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 IN AND FOR THE COUNTY OF FRESNO
10 UNLIMITED CIVIL DIVISION
11
, an individual, Case No.
12
Plaintiff,
13 COMPLAINT FOR
v. 1. FRAUD
14 2. QUIET TITLE
BANK OF AMERICA NATIONAL 3. DECLARATORY RELIEF
15 TRUST AND SAVINGS ASSOCIATION, 4. BREACH OF COVENANT OF
BANK OF AMERICA HOME LOANS, a GOOD FAITH AND FAIR
16 limited partnership; RECONTRUST DEALING
COMPANY; and DOES 1 through 150, 5. PROMISSORY ESTOPPEL
17 inclusive, 6. WRONGFUL
FORECLOSURE
18 Defendants. 7. INJUNCTIVE RELIEF
8. SET ASIDE ILLEGAL
19 TRUSTEE’S SALE
9. CANCELLATION OF
20 TRUSTEE’S DEED
10. UNFAIR BUSINESS
21 PRACTICES
22 JURY TRIAL REQUESTED
23
Plaintiff, (hereinafter referred to as “Plaintiff”) hereby brings a Complaint against
24
Defendants BANK OF AMERICA NATIONAL TRUST AND SAVINGS COMPANY
25
(hereinafter referred to as “BANK”), BANK OF AMERICA HOME LOANS (hereinafter
26
referred to as “BAC”)RECONTRUST COMPANY (hereinafter referred to as “RECON”),
27
and DOES 1 through 150, inclusive, for causes of action alleged as follows:
28
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1 ///
2 PARTIES
3 1. On information and belief, Defendant BANK is a subsidiary of Bank of

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4 America, N.A. Plaintiff believes and hereby alleges that BANK was the original holder of
5 Plaintiff’s note. Plaintiff believes and hereby alleges that Bank of America N.A. is
6 incorporated in the jurisdiction of the United States in the state of North Carolina and
7 registered with the California Secretary of State as Corporation # C2551762 doing business
8 in the state of California. The agent for service of process is CT Corporation System and is
9 located at 818 West Seventh Street, Los Angeles, CA 90017. Plaintiff is of the belief that
10 BANK is the alleged beneficiary in this matter.
11 2. On information and belief, Defendant BAC is a limited partnership and is a
12 subsidiary of Bank of America, N.A. Plaintiff believes and hereby alleges that BAC was the
13 loan servicer for Plaintiff’s loan. Plaintiff believes and hereby alleges that Bank of America
14 N.A. is incorporated in the jurisdiction of the United States in the state of North Carolina and
15 registered with the California Secretary of State as Corporation # C2551762 doing business
16 in the state of California. The agent for service of process is CT Corporation System and is
17 located at 818 West Seventh Street, Los Angeles, CA 90017. Plaintiff is of the belief that
18 BAC is the alleged servicer in this matter.
19 3. On information and belief, Defendant RECON is a corporation, although at
20 this time its entity status is unknown. Plaintiff believes and hereby alleges that its corporate
21 office serves as its agent for service of process which is located at 1800 Tapo Canyon Rd.,
22 CA6-914-01-04 Simi Valley, CA 93063. Plaintiff is of the belief that RECON is the alleged
23 trustee in this matter.
24 4. Plaintiff is ignorant of the true names and capacities of the Defendants sued
25 herein as DOES 1 through 150 inclusive, and therefore sues these Defendants by such
26 fictitious names. Plaintiff will amend this complaint to allege their true names and capacities
27 when ascertained.
28 5. Plaintiff is informed and believes and thereon alleges that, at all times herein
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1 mentioned, each of defendants sued herein was the agent, employee, assignee, predecessor or
2 successor in interest of each of the remaining defendants and was at all times acting within
3 the purpose and scope of such agency and/or employment.

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4 6. Whenever in this Complaint an act or omission of a corporation or business
5 entity is alleged, the said allegation shall be deemed to mean and include an allegation that
6 the corporation or business entity acted or omitted to act through its authorized officers,
7 directors, agents, servants, and/or employees, acting within the course and scope of their
8 duties, that the act or omission was authorized by corporate managerial officers or directors,
9 and that the act or omission was ratified by the officers and directors of the corporation.
10 JURISDICTION AND VENUE
11 7. At all times herein mentioned Plaintiff was, and now is a natural person,
12 residing in the city of California.
13 8. Jurisdiction of the subject matter in this Court is proper because the cause of
14 action herein arose in Fresno County, California by virtue of a mortgage loan and which
15 concerns the Plaintiff’s primary residential real estate which is located at ___(hereinafter
16 referred to as “the Property”).
17 9. Venue of this action is proper within this Court as at least one named
18 Defendant is subject to suit within this Court, and thus all Defendants are properly sued in
19 this Court.
20 10. The transactions and events which are the subject matter of this Complaint all
21 occurred in the County of Fresno, State of California.
22 JURY TRIAL DEMAND
23 11. Plaintiff requests a jury trial on all issues in this matter.
24 NATURE OF THE ACTION
25 12. This case arises out of Defendants’ breaches of their obligations as Mortgagee
26 or “Trustee” on the Deed of Trust and Defendants’ bad faith negotiations prior to the
27 purported Trustees sale of Plaintiff’s property on June 2, 2010.
28 13. In addition to seeking compensatory, consequential and other damages,

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1 Plaintiff seeks declaratory relief as to what (if any) party, entity or individual or group
2 thereof is the owner of the promissory note executed at the time of purported Trustees Sale,
3 and whether the Deed of Trust (Mortgage) secures any obligation of the Plaintiff, and a
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4 mandatory Injunction requiring re-conveyance of the subject property to the Plaintiff or, in
5 the alternative, a Final Judgment granting Plaintiff Quiet Title in the subject property.
6 FORECLOSURE PROCEDURAL HISTORY
7 14. In July, 2008, the California Legislature enacted Senate Bill 1137, impacting
8 residential mortgage lenders, foreclosure procedures and eviction procedures. The law was
9 enacted as an emergency measure designed to address the adverse effects of the state’s high
10 foreclosure rate.
11 15. The law has three pertinent parts. It amends California Code of Civil
12 Procedure Section 1161(b) regarding notice of an eviction, it adds a provision strengthening
13 the right of local governments to adopt “blight” ordinances, and, moreover, it modifies the
14 non-judicial foreclosure procedures set forth in California Civil Code Section 2924. The
15 legislature recognized the need for such legislation by stating as follows:
16
“…It is essential to the economic health of California for the state to
17 ameliorate the deleterious effects on the state economy and local
economies and the California housing market that will result from the
18 continued foreclosures of residential properties in unprecedented numbers
19 by modifying the foreclosures process to require mortgagees,
beneficiaries, or authorized agents to contact borrowers and explore
20 options that could avoid foreclosure…”
21 16. This law is effective immediately and extends on to January 1, 2013. This law
22 impacts owner-occupied primary residences only and only loans made between January 1,
23 2003 and December 3, 2007. California Civil Code Section 2924 states in part:
24 The primary purpose for the Statute is foreclosure procedures and imposes
an unprecedented duty upon lenders relating to contact with borrowers.
25
The Statute amends provisions of the non-judicial foreclosure procedures
26 found in California Code of Civil Procedure §2924, by adding
requirements for meetings, due diligence, and notification of counseling.
27 Some of the more important provisions include all of the following:
28 17. The contact by the lender or authorized agent requires that the borrower’s
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1 financial situation be assessed and requires that the borrower and lender explore options for
2 the borrower to avoid foreclosure. This was not done by the lender.
3 18. The Statute requires the lender or their authorized agent to advise the
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4 borrower that the borrower has the right to a subsequent meeting within fourteen (14) days of
5 the initial contact. This was not done by the lender.
6 19. The borrower is to be provided a toll free telephone number available at HUD
7 for certified housing counseling agencies. This was not done by the lender.
8 20. The borrower may designate an authorized agent, such as a counseling
9 service, REALTOR® or attorney, to act as their authorized agent but must expressly approve
10 any workout agreement reached by that agent.
11 21. The Notice of Default must include a declaration indicating that the lender has
12 made the contact or made a diligent effort to make the contact and will not apply in the event
13 of surrender of the property.
14 LOAN MODIFICATION PROCEDURAL HISTORY
15 22. Between September and December, 2009, the United States Treasury
16 Department created guidelines under the Making Home Affordable Plan (“HAMP”) to assist
17 eligible homeowners with making their monthly mortgage payments.
18 23. The first set of guidelines was created on or about October
19 24. The guidelines created on or about November 3, 2009, are referred to as
20 Supplemental Directive 09-08, and became effective January 1, 2010. Excerpts from
21 Supplemental Directive 09-08 are as follows:
22 1) A servicer must send a Borrower Notice to every borrower that has been
23 evaluated for HAMP but is not offered a Trial Period Plan, is not offered an
24 official HAMP modification, or is at risk of losing eligibility for HAMP because
25 they have failed to provide required financial documentation. The written notices
26 must comply with all laws, rules and regulations including but not limited to, the
27 Equal Credit Opportunity Act, when applicable to the transaction.
28 2) Evaluation for HAMP. Supplemental Directive 09-06 announced additional data

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1 reporting requirements that are triggered when a mortgage loan is evaluated for
2 HAMP. It provided that a mortgage is evaluated for HAMP when one of the
3 following events has occurred:

FRESNO, CA 93721
4 a. A borrower has submitted a written request (either hardcopy or electronic
5 submission) for consideration for a HAMP modification that includes, at a
6 minimum, current borrower income and a reason for default or
7 explanation of hardship, as applicable; or
8 b. A borrower has verbally provided sufficient financial and other data to
9 allow the servicer to complete a Net Present Value (NPV) analysis; or
10 c. A borrower has been offered a Trial Period Plan.
11 3) When a borrower is evaluated for HAMP and the borrower is not offered a Trial
12 Period Plan or official HAMP modification, servicers are required to provide data
13 specified in Schedule IV of Supplemental Directive 09-06 (Schedule IV) to Fannie
14 Mae as Treasury’s program administrator. The data reporting requirements in
15 Schedule IV are designed to document the disposition of borrowers evaluated for
16 HAMP.
17 4) Whenever a servicer is required to provide data specified in Schedule IV, the
18 servicer must also comply with the requirements in this Supplemental Directive
19 and send the appropriate Borrower Notice. With the exception of the Notice of
20 Incomplete Information, all Borrower Notices must be mailed no later than 10
21 business days following the date of the servicer’s determination that a Trial Period
22 Plan or official HAMP modification will not be offered. Borrower Notices may be
23 sent electronically only if the borrower has previously agreed to exchange

correspondence relating to the modification with the Servicer electronically.
24
5) Content of Borrower Notices. The content of the Borrower Notices will vary
25
depending on the information intended to be conveyed or the determination made
26
by the servicer. All Borrower Notices must be written in clear, non-technical
27
language, with acronyms and industry terms such as “NPV” explained in a
28
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1 manner that is easily understandable. The explanation(s) should relate to one or
2 more of the Not Approved/Not Accepted reason codes specified in Schedule IV.
3 Model clauses for reasons that relate to the codes in Schedule IV are attached as
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4 Exhibit A. Use of the model clauses is optional; however, they illustrate a level of
5 specificity that is deemed to be in compliance with the language requirements of
6 this Supplemental Directive.
7 a. Non-Approval – for borrowers not approved for a Trial Period Plan or
8 official HAMP modification, this notice must provide the primary reason
9 or reasons for the non-approval. The notice must also describe other
10 foreclosure alternatives for which the borrower may be eligible, if any,
11 including but not limited to other modification programs, short sale and/or
12 deed in lieu or forbearance, and identify the steps the borrower must take
13 in order to be considered for those options. If the servicer has already
14 approved the borrower for another foreclosure alternative, information
15 necessary to participate in or complete the alternative should be included.
16 Whenever a non-government foreclosure prevention option is discussed,
17 the notice should be clear that the borrower was considered for but is not
18 eligible for HAMP.
19 b. When the borrower is not approved for a HAMP modification because the
20 transaction is NPV negative, the notice must, in addition to an explanation
21 of NPV, include a list of certain input fields that are considered in the
22 NPV decision and a statement that the borrower may, within 30 calendar
23 days of the date of the notice, request the date the NPV calculation was
completed and the values used to populate the NPV input fields defined in
24
Exhibit A. The purpose of providing this information is to allow the
25
borrower the opportunity to correct values that may impact the analysis of
26
the borrower’s eligibility.
27
6) If the borrower, or the borrower’s authorized representative, requests the specific
28
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1 NPV values orally or in writing within 30 calendar days from the date of the
2 notice, the servicer must provide them to the borrower within 10 calendar days of
3 the request. If the loan is scheduled for foreclosure sale when the borrower
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4 requests the NPV values, the servicer may not complete the foreclosure sale until
5 30 calendar days after the servicer delivers the NPV values to the borrower. This
6 will allow the borrower time to make a request to correct any values that may
7 have been inaccurate.
8 FACTS
9 25. In or about 1995, Plaintiff purchased the property as his primary residence.
10 26. In or about 2004, Plaintiff was laid off from his place of employment, where
11 he had been working as an industrial painter.
12 27. From 2004 through 2009, Plaintiff struggled to make ends meet and used his
13 retirement to make his monthly mortgage payments.
14 28. In or about May, 2009, Plaintiff started falling behind on his monthly
15 mortgage payments on the property.
16 29. On or May 7, 2010, Plaintiff received a Notice of Trustee’s Sale.
17 30. On the day Plaintiff received the Notice of Trustee’s Sale, he spoke to a
18 person by the name of Jason at BAC regarding the loan modification program. Upon inquiry,
19 Plaintiff was asked to prepare all of his monthly bill statements, and was told that he would
20 receive documents through Federal Express within ten days of the phone call.
21 31. On or about May 17, 2010, Plaintiff called BAC again and spoke with Mary.
22 Plaintiff notified Mary that he did not receive the documents he was assured he would
23 receive from Jason. At that point, Mary, the representative from BAC, notified Plaintiff that
24 he had been approved for a loan modification on May 16, 2010. Plaintiff was instructed to
25 call on May 28, 2010 to let BAC know if he had received the loan modification
26 documentation. Plaintiff was notified that BAC needed the signed documents returned to
27 them at least seventy-two (72) hours before BAC could postpone the sale date. Plaintiff also
28 notified BANK that he received a “Letter of Reinstatement” but was told that he did not need
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1 to worry about that letter, as the modification was going through. Therefore, Plaintiff
2 believed the modification was approved.

3 32. On or about May 28, 2010, Plaintiff called BAC. This time, he was told that
FRESNO, CA 93721
4 the loan documentation was sent from BAC to RECON, and Plaintiff was instructed to call
5 back on June 1, 2010.
6 33. On or about June 1, 2010, Plaintiff called BAC to inquire about his
7 modification. On that day, for the first time, Plaintiff was notified that he had been denied for
8 the modification. Plaintiff then inquired as to why he had been denied for the modification
9 even though he was told he had been approved in May. Plaintiff was not provided with a
10 reason for BAC’S denial of his modification. During the entire day of June 1, 2010, Plaintiff
11 made several phone calls to BANK and RECON to find out ways to save his home. He was
12 not provided with a response from either BAC or RECON.
13 34. On or about June 2, 2010, at 7:00 AM, Plaintiff called RECON to determine
14 if any of the paperwork had been received from BAC and was told that paperwork had not
15 been received. Plaintiff then called BAC and spoke to a party by the name of Alex or Eric in
16 their foreclosure department to receive assistance. At that time, Plaintiff was notified that he
17 had to send $8,892.70 via overnight mail to BAC to save his home and cure the default.
18 Plaintiff was ready, willing, and able to pay the amount in arrears that morning. That
19 afternoon, at approximately 2:00 PM, Plaintiff spoke with a representative from BAC by the
20 name of Elian. At that time, Plaintiff was notified that sending the $8,892.70 originally
21 requested would not serve as a guarantee or protection against his home selling at the
22 Trustee’s Sale.
23 35. Also on June 2, 2010, Plaintiff once again called RECON to determine if any
24 paperwork had been received from BAC. At that point, Plaintiff was informed that his house
25 was sold at 10:30 AM that day for approximately $77,000. At that time, Plaintiff’s home’s
26 value was estimated at $130,000.00. Plaintiff’s balance on his mortgage was approximately
27 $56,000.00
28
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1 36. At this time, Plaintiff is of the belief that BAC is now conducting an internal
2 investigation as to whether the Trustee’s Sale was valid and is in the process of considering
3 rescinding the sale. However, there is no guarantee that the sale would be rescinded, and it is
FRESNO, CA 93721
4 possible that the Trustee’s Deed Upon Sale will be recorded.

5 FIRST CAUSE OF ACTION
6 (Fraud - Against Defendant BAC and DOES 1 through 25)
7 37. Plaintiff hereby incorporates Paragraphs 1 through 29 as if the same were
8 fully set forth herein.
9 38. Fraud occurs where: there is an affirmative misrepresentation, concealment of
10 a known fact, or a “half-truth”, or suppression of a fact by a party obligated to disclose such
11 information which information is likely to mislead the party receiving the information.
12 39. Fraud also occurs where a defendant makes an untrue representation of a
13 material fact without a reasonable ground for its truth or in a manner not warranted by the
14 available information. Such representation must be made with the intent that Plaintiff would
15 rely and does rely, and where such reliance causes Plaintiff’s harm.
16 40. BAC, as their role as the true beneficiary, failed to provide Plaintiff with
17 adequate notice regarding the Trustee’s Sale, and lead him to believe that the sale of his
18 home would be placed on hold until a loan modification was evaluated.
19 41. At the time BAC made the above-mentioned misrepresentations, they knew
20 them not to be true, and did not intend to keep the promises that were made, and intended at
21 all relevant times to proceed with the foreclosure sale of the Property, and to deny any
22 request made by Plaintiff to obtain a loan modification.
23 42. Plaintiff is of the belief and therefore contends that the representations made
24 by BAC were done to provide Plaintiff with a false sense of hope that his home could
25 actually be saved.
26 43. Plaintiff, in obtaining the information from Defendants, reasonably relied on
27 such information, and continued attempting to obtain a loan modification, with the hope that
28 the loan modification would go through before the projected sale date of June 2, 2010.
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1 44. As a direct and proximate cause of Defendants’ material omissions and
2 misrepresentations, Plaintiff has suffered damages.

3 SECOND CAUSE OF ACTION

FRESNO, CA 93721
4 (Quiet Title – Against Defendants BAC and DOES 26 through 49)
5 45. Plaintiff hereby incorporates Paragraphs 1 through 44 as if the same were
6 fully set forth herein.
7 46. Plaintiff is and at all times mention was, entitled to possession of the property
8 located at , , California APN ---- .
9 47. From the time Plaintiff first inquired about a loan modification, until the time
10 it was sold, agents and/or employees of Defendants, and each of them, made false
11 representations to Plaintiff in order to fund a loan, in which the Plaintiff’s personal residence
12 was to be security therefore. Defendants also made false representations which lead Plaintiff
13 into believing that a loan modification would be obtained for his property. Plaintiff alleges
14 that based upon the representations made by Defendants, and each of them, Plaintiff
15 reasonably placed his trust in Defendants’ representations and disclosed his personal
16 financial information to Defendants so Plaintiff could obtain a loan which matched his
17 financial needs and limitations.
18 48. Plaintiff is informed and believes, and upon such belief alleges that
19 defendants, and each of them, claim an interest in the property adverse to plaintiff herein.
20 However, the claim of said Defendants is without any right whatsoever, and these Defendants
21 do not have a legal or equitable right, claim, or interest in said property.
22 49. Plaintiff alleges that due to the fraud of Defendants, and each of them, title to
23 the subject property has been rendered unmarketable in that these Defendants, and their
24 assigns, have caused to be recorded as against the subject property documents which have
25 clouded Plaintiff’s title thereto.
26 50. Plaintiff therefore seeks a declaration that the title to the subject property is
27 vested in plaintiff alone and that the defendants, and each of them, herein be declared to have
28 no estate, right, title or interest in the subject property and that said defendant, and each of
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1 them, be enjoined forever from asserting any estate, right, title or interest in the subject
2 property adverse to plaintiff herein.

3 THIRD CAUSE OF ACTION

FRESNO, CA 93721
4 (Declaratory Relief – Against All Defendants)
5 51. Plaintiff hereby incorporates by reference paragraphs 1 through 50 and
6 paragraphs as if the same were fully set forth herein.
7 52. The allegations by Plaintiff herein establish that a real and present controversy
8 exist as to the respective rights of the parties to this matter.
9 53. That by virtue of the method and manner of Defendants’ carrying out the
10 foreclosure without meeting the due diligence requirements or meeting the requirements of
11 any of the federal supplemental directives violates RESPA.
12 54. Plaintiff further alleges that the foreclosure sale of the Subject Property was
13 not executed in accordance with the requirements of California Civil Code Sections 2923.5
14 and 2923.6.
15 55. Plaintiff also alleges that Defendants, and each of them, wrongfully and
16 without privilege, caused a Notice of Default and Notice of Trustee’s Sale to be recorded
17 against the property. Plaintiff seeks a declaratory relief stating that none of the named
18 defendants, at the time of the recordation of Notice of Default and subsequent Notice of
19 Trustee’s Sale, had or has any right to interest in the Note, Deed or the Property which
20 authorized them to record such instrument, thus making the foreclosure of the Subject
21 Property is void ab initio as a matter of law.
22 56. Accordingly, a judicial declaration is necessary and appropriate at this time
23 and under these circumstances in order that Plaintiff may ascertain his rights and duties and
24 avoid a Trustee’s Deed Upon Sale from being recorded against his home and further avoid a
25 wrongful eviction from his home. Such recordation of the trustee’s deed and eviction will
26 cause Plaintiff to lose his property without establishing a lawful right of the defendants to
27 conduct such actions.
28 57.
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1 FOURTH CAUSE OF ACTION
2 (Breach of the Covenant of Good Faith and Fair Dealing – Against Defendants BAC
3 and DOES 50-100)

FRESNO, CA 93721
6 59. Plaintiff and BAC entered into the Agreement by which BAC promised to halt
7 the foreclosure pending the approval or denial of a loan modification. Plaintiff was ready,
8 willing, and able to tender the delinquent sums in full, but was notified that doing so would
9 not necessarily halt the trustee’s sale of his home. Thus, Plaintiff performed according to the
10 Agreement until BAC repudiated the Agreement by selling Plaintiff’s home on or about June
11 2, 2010.
12 60. BAC had a superior bargaining position and superior knowledge in making
13 the Agreement and was able to dictate its terms.
14 61. Implied in the Agreement between Plaintiff and BAC was a covenant of good
15 faith and fair dealing by which BAC covenanted not to do anything which would deprive
16 Plaintiff of the benefits of the agreement.
17 62. PLAINTIFF detrimentally relied on the Agreement in that he withheld the
18 sums of money he could have tendered to bring his loan current pursuant to the agreement
19 made between himself and BAC.
20 63. BAC engaged in a conduct evidencing an intent to frustrate PLAINTIFF’s
21 enjoyment of his rights under the Agreement.
22 64. BAC breached the implied covenant of good faith and fair dealing when they
23 proceeded with the foreclosure of the Property by repudiating the Agreement and selling
24 Plaintiff’s property on or about June 2, 2010.
25 65. As a result of BAC’S breach of the covenant, Plaintiff’s estate and Plaintiff
26 have suffered damages including the loss of his home, money damages, severe emotional
27 distress, and other incidental and consequential foreseeable damages in an amount to be
28 proven at trial.
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1 FIFTH CAUSE OF ACTION
2 (Promissory Estoppel – Against All Defendants)


FRESNO, CA 93721
5 67. Plaintiff and BAC entered into the Agreement.
6 68. BANK knew or had reason to know that such an agreement was entered into
7 between the parties.
8 69. BAC through and by its agents, Jason, and Mary, made clear and
9 unambiguous promises to PLAINTIFF that by executing the Agreement that was to be
10 delivered to him and RECON, the proceedings to foreclose the Property would be halted.
11 70. BAC’S agents intended that their statements be acted upon.
12 71. BAC’S agents made these promises to PLAINTIFF and intended to make
13 these representations to PLAINTIFF.
14 72. BAC is estopped from claiming that PLAINTIFF was not acting in good faith
15 when these promises were made to her.
16 73. PLAINTIFF believed that he should act upon the above-mentioned promises,
17 and was ignorant of the true state of facts.
18 74. PLAINTIFF reasonably and foreseeably relied on these promises and
19 unknowingly and involuntarily waived the statutory right to cure the default and prevent the
20 foreclosure sale of the property.
21 75. PLAINTIFF was ready, willing, and able to make the required payments to
22 bring his loan current.
23 76. Had PLAINTIFF knew that BAC did not intend to keep its promises, he
24 would have paid the $8892.70 to cure the default.
25 77. Injustice would result if the court will not enforce BAC’S promises, in that
26 PLAINTIFF will lose and will be permanently evicted from his family home.
27 ///
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1 SIXTH CAUSE OF ACTION
2 (Wrongful Foreclosure: Violation of Civil Code Section 2923.5 –

3 Against BAC and DOES 100-150)

FRESNO, CA 93721
4 78. Plaintiff hereby incorporates by reference each and every one of the preceding
6 79. California Civil Code §2923.5 prohibits the filing of a Notice of Default until
7 its provisions are fulfilled.
8 80. By virtue of the method and manner of Defendants carrying out Civil Code
9 Section 2923.5, Defendants’ act of foreclosing on the Subject Property was done in violation
10 of said statute, which required a declaration from the mortgagee, beneficiary, or authorized
11 agent that it has contacted the borrower, tried with due diligence to contact the borrower as
12 required by this section, or the borrower has surrendered the property to the mortgagee,
13 trustee, beneficiary, or authorized agent.
14 81. Plaintiff is informed and believes, and upon such belief alleges that a notice of
15 default was provided to Plaintiff, but such notice did not include a declaration under penalty
16 of perjury, as required by Civil Code Section 2923.5.
17 82. None of the itemized beneficiaries or servicers (BANK, BAC or RECON)
18 attached a declaration that indicated, based on personal knowledge, that efforts were
19 discussed to assist Plaintiff in avoiding foreclosure. There was also no detailed account of the
20 efforts that were made.
21 83. In addition, California Civil Code §2923.5 requires that the mortgagee,
22 beneficiary, or authorized agent must contact Plaintiff with due diligence prior to recording a
23 Notice of Default. Plaintiff is informed and believes and upon such belief alleges that he was
24 such due diligence efforts were not followed.
25 84. Furthermore, in viewing this statements on its face, there is no indication that
26 the requirements of Civil Code §2923.5 were fulfilled. Based on the language set forth in the
27 Declaration, it appears to be an edited statement of one intended to be used prior to the notice
28
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1 requirements set forth by SB 1137. This Notice of Default directly violates Civil Code
2 §2923.5.
3 85. Plaintiff hereby agrees to tender payment in the amount owing on the
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4 mortgage on the date of the wrongful foreclosure, provided the sums required to tender are
5 the proper amount due and owing at the time the foreclosure sale was conducted.
6 86. Thus, due to Defendants’ failure to act with due diligence, Plaintiff has
7 suffered damages.
8 SEVENTH CAUSE OF ACTION
9 (Injunctive Relief – Against All Defendants)
12 88. Defendants, and each of them, are responsible for claims of, or claim to have
13 an interest in, the Property. BAC has, without privilege, recorded a notice of default and
14 RECON, without privilege, has caused a notice of trustee’s sale to be recorded against the
15 Property.
16 89. Defendants, and each of them, lack standing and do not have the right to
17 enforce the note and any incidental right to collateral so as to foreclose on Plaintiffs’ Home.
18 90. Defendants, and each of them, have also committed a wrongful act by
19 wrongfully foreclosing on Plaintiff’s property.
20 91. Plaintiff is also threatened with immediate, irreparable harm if any defendant
21 is permitted to continue to lay claim to Plaintiff’s property and finalize their action to deprive
22 Plaintiff of title and possession of his rightful Property, by selling Plaintiff’s Property to a
23 bona fide purchaser. Plaintiff therefore needs an injunction preventing defendants from
24 taking possession of the Property until such time as this matter can be properly heard and
25 resolved.
26 92. Any such action would result in new causes of action against each defendant,
27 cause irreparable harm to Plaintiffs, and will cause pecuniary compensation which will not
28 afford adequate relief because Plaintiffs’ Home is unique.

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Complaint
1 93. Even if the named defendants can somehow at some point prove that they are
2 holders in due course of the Note, or that there was no fraud in the execution of the Note and
3 Deed of Trust, any injuries they might suffer in the interim would be substantially less than
FRESNO, CA 93721
4 what Plaintiff will suffer absent injunctive relief from this court.
5 94. Due to Defendants’ wrongful acts of foreclosing on Plaintiff’s property and
6 causing a Notice of Default and Notice of Trustee’s Sale to be recorded against the property,
7 Plaintiff seeks relief preventing the defendants from commencing any action to further their
8 unlawful claims to an interest in the property.
9 EIGHTH CAUSE OF ACTION
10 (Set Aside Illegal Trustee’s Sale – Against All Defendants)
13 96. Defendants are prevented from foreclosing on the subject property, as they
14 failed to properly conduct a valid foreclosure sale.
15 97. Defendant BAC failed to satisfy the requirements of the Supplemental
16 Directive governing the provisions of the Home Affordable Modification Plan, particularly,
17 portions of Section 09-08 which state that a loan servicer may not complete the foreclosure
18 sale until 30 calendar days after the servicer delivers the NPV values to the borrower. The
19 NPV is also known as the Net Present Value test which provides a detailed statement of the
20 figures used to deny a loan modification. Although Plaintiff requested reasons for the denial
21 of his loan modification orally, the reasons for the denial were never provided, nor was the
22 foreclosure sale halted to provide Plaintiff with the reasons for the denial.
23 98. As a direct and proximate result of the actions of the Defendants, Plaintiff has
24 and continues to suffer damages.
25 ///
26 ///
27 ///
28 ///
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Complaint
1 NINTH CAUSE OF ACTION
2 (Cancellation of the Trustee’s Deed – Against All Defendants)

FRESNO, CA 93721
5 100. Plaintiff and BAC entered into an oral agreement on behalf of BAC and on
6 her behalf, pursuant to which the defendant BAC promised to halt the foreclosure
7 proceedings initiated by the notice of default, and waive the right to foreclose for the period
8 of the Agreement, as long as Plaintiff submitted the loan modification documents at least
9 seventy-two (72) hours prior to the sale date.
10 101. Plaintiff was prevented from performing due to the breach of BAC’S
11 obligation: to send the loan modification documents to Plaintiff. The breach of BAC thereby
12 excused Plaintiff’s continued performance.
13 102. BAC lead Plaintiff to believe that the trustee’s sale would not be completed on
14 or about June 2, 2010, thereby leading Plaintiff to waive his right to cure the default and
15 prevent the foreclosure of the property when they made the fraudulent statements as alleged
16 above.
17 103. RECON further acted by selling the home at a trustee’s sale on June 2, 2010,
18 even though they knew or had reason to know that BAC was acting as though it intended to
19 stop the sale. Prior to the sale, RECON had the authority to stop the sale, but did not do so.
20 104. In engaging in the above-mentioned acts, the representatives, officers, and
21 agents of BAC and RECON were acting did the above acts with the authorization and
22 consent of BAC and RECON’S officers, directors and managerial agents.
23 105. The Trustee’s Sale held June 2, 2010, was therefore a result of fraud and
24 violations of the statutes for non judicial foreclosure designed to protect the homeowners,
25 and is therefore unconscionable and void and should be cancelled.
26 106. If left outstanding, the Trustee’s Deed Upon Sale will be caused to be
27 recorded and would continue to cause serious injury to Plaintiff, who will lose the property
28 and the family home.
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Complaint
1 TENTH CAUSE OF ACTION
2 (Unfair Business Practices – Against All Defendants)

3 107. Plaintiffs reaffirm and reallege paragraphs above herein as if specifically set
FRESNO, CA 93721
4 forth more fully herein below.
5 108. California Business and Professions Code § 17200 et seq. prohibits any
6 unlawful, unfair, or fraudulent business act or practice and unfair, deceptive, untrue or
7 misleading advertising and any act prohibited by Business and Professions Code § 172500 et
8 seq.
9 109. California Business and Professions Code § 172500 et seq. prohibits the
10 making of a false statement or a publication or a declaration concerning any circumstance or
11 matter of fact connected with the proposed performance or disposition of real or personal
12 property, which pronouncements is untrue or misleading, and which is known or which by
13 the exercise of reasonable care should be known, to be true or misleading.
14 110. Defendants, and each of them, violated Business and Professions Code §§
15 17200 and 172500 et seq. through the following actions and by aiding and abetting each
16 other in the completion and continued perpetration of the following actions: By failing to
17 engage in loan modification or workout discussions in good faith as required by California
18 Civil Code §2923.6; by attempting to go to sale without insuring that the beneficiary had in
19 its possession the original promissory note with endorsements.
20 111. By committing the acts described herein Defendants, and each of them, have
21 engaged in unfair business practices, causing injury and damages to plaintiff, and therefore
22 violated California Business and Professions code section 17200, all of which entitle Plaintiff
23 to seek damages.
24 WHEREFORE, Plaintiff prays as follows:
25 1. For preliminary and permanent injunctive relief, enjoining
26 BANK, BAC, RECON, and its agents from proceeding with the recording of the Trustee’s
27 Deed Upon Sale;
28
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Complaint
1 2. For preliminary and permanent injunctive relief, enjoining
2 BANK, BAC, RECON, and its agents from selling, transferring, negotiating, or in any
3 manner encumbering the property at , , California and from proceeding

FRESNO, CA 93721
4 with an Unlawful Detainer action against Plaintiff and the property;

5 3. For an Order setting aside the foreclosure sale of the property of
6 June 2, 2010.
7 4. A Declaration of the respective rights and responsibilities of the
8 plaintiffs and defendants with respect to the Forbearance/Stipulation Agreement, Trustee
9 Deed Upon Sale, and the property at ,;
10 5. An order compelling BANK, BAC and RECON to convey the
11 title to the property the property at , to plaintiffs;
12 6. An order declaring that BANK, BAC, RECON, and/or the DOE
13 defendants, holds all monies derived from the Trustee Deed Upon Sale, if recorded, in trust
14 for plaintiffs;
15 7. For actual and general damages according to proof at trial;
16 8. For punitive damages according to proof;
17 9. For interest at the legal rate according to proof;
18 10. For costs of suit herein incurred;
19 11. For all other such relief as the Court deems proper.
20 Dated: June 21, 2010 LAW OFFICES OF
CATARINA M. BENITEZ
21
22
_______________________________
23 CATARINA M. BENITEZ,
24 Attorney for Plaintiff,
PLAINTIFF _____
25
26
27
28
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Complaint
1
2
3
FRESNO, CA 93721
4
VERIFICATION
5
6
I, PLAINTIFF _____, am the Plaintiff in the above entitled action. I have read the
7
foregoing complaint and know the contents thereof. The same is true of my own knowledge,
8
expect as to those matters which are therein alleged on information and belief, and as to those
9
matters, I believe it to be true.
10
I declare under penalty of perjury, under the laws of the State of California, that the
11
foregoing true and correct and that this declaration was executed in Fresno, Fresno County,
12
State of California.
13
14
15
Dated: June _____, 2010
16
17
__________________________
18 PLAINTIFF _____,
19 Plaintiff
20
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22
23
24
25
26
27
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________________________________________________________________________________
Complaint

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1 CATARINA M.

BENITEZ SBN 256518

2 2014 Tulare Street, Suite 400

Fresno, California 93721

9 IN AND FOR THE COUNTY OF FRESNO

10 UNLIMITED CIVIL DIVISION

22 JURY TRIAL REQUESTED

3 1. On information and belief, Defendant BANK is a subsidiary of Bank of

10 BANK is the alleged beneficiary in this matter.

11 2. On information and belief, Defendant BAC is a limited partnership and is a

18 BAC is the alleged servicer in this matter.

19 3. On information and belief, Defendant RECON is a corporation, although at

23 trustee in this matter.

3 the purpose and scope of such agency and/or employment.

4 6. Whenever in this Complaint an act or omission of a corporation or business

10 JURISDICTION AND VENUE

12 residing in the city of California.

16 referred to as “the Property”).

21 occurred in the County of Fresno, State of California.

22 JURY TRIAL DEMAND

23 11. Plaintiff requests a jury trial on all issues in this matter.

24 NATURE OF THE ACTION

27 purported Trustees sale of Plaintiff’s property on June 2, 2010.

28 13. In addition to seeking compensatory, consequential and other damages,

6 FORECLOSURE PROCEDURAL HISTORY

12 Procedure Section 1161(b) regarding notice of an eviction, it adds a provision strengthening

15 legislature recognized the need for such legislation by stating as follows:

17 eligible homeowners with making their monthly mortgage payments.

18 23. The first set of guidelines was created on or about October

19 24. The guidelines created on or about November 3, 2009, are referred to as

21 Supplemental Directive 09-08 are as follows:

24 official HAMP modification, or is at risk of losing eligibility for HAMP because

27 Equal Credit Opportunity Act, when applicable to the transaction.

28 2) Evaluation for HAMP. Supplemental Directive 09-06 announced additional data

3 following events has occurred:

4 a. A borrower has submitted a written request (either hardcopy or electronic

5 submission) for consideration for a HAMP modification that includes, at a

6 minimum, current borrower income and a reason for default or

7 explanation of hardship, as applicable; or

8 b. A borrower has verbally provided sufficient financial and other data to

9 allow the servicer to complete a Net Present Value (NPV) analysis; or

10 c. A borrower has been offered a Trial Period Plan.

13 specified in Schedule IV of Supplemental Directive 09-06 (Schedule IV) to Fannie

14 Mae as Treasury’s program administrator. The data reporting requirements in

15 Schedule IV are designed to document the disposition of borrowers evaluated for

17 4) Whenever a servicer is required to provide data specified in Schedule IV, the

20 Incomplete Information, all Borrower Notices must be mailed no later than 10

23 sent electronically only if the borrower has previously agreed to exchange

5 specificity that is deemed to be in compliance with the language requirements of

6 this Supplemental Directive.

7 a. Non-Approval – for borrowers not approved for a Trial Period Plan or

10 foreclosure alternatives for which the borrower may be eligible, if any,

13 in order to be considered for those options. If the servicer has already

14 approved the borrower for another foreclosure alternative, information

15 necessary to participate in or complete the alternative should be included.

16 Whenever a non-government foreclosure prevention option is discussed,

18 eligible for HAMP.

20 transaction is NPV negative, the notice must, in addition to an explanation

7 have been inaccurate.

11 he had been working as an industrial painter.

13 retirement to make his monthly mortgage payments.

15 mortgage payments on the property.

16 29. On or May 7, 2010, Plaintiff received a Notice of Trustee’s Sale.