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Case 2:10-cv-02821-FCD-KJN Document 9 Filed 11/16/10 Page 1 of 22

Joseph W. Creed (SBN 232129)


1 Creed & Elliott, LLP
2 19200 Von Karman Ave, Suite 600
Irvine, CA 92612
3 Tel: 800-679-4202
Fax: 714-439-2121
4
Attorneys for Plaintiff Mimi Ash
5

6
UNITED STATES DISTRICT COURT
7
EASTERN DISTRICT OF CALIFORNIA
8
MIMI ASH and ) CASE NO: 2:10-cv-02821-FCD-KJN
9 ROBERT T. ASH, ) FIRST AMENDED COMPLAINT FOR
) DAMAGES WITH DEMAND FOR JURY
10 PLAINTIFFS, ) TRIAL
11 )
vs. ) (1) TRESPASS;
12 ) (2) CONVERSION;
BANK OF AMERICA CORP. as Successor ) (3) NEGLIGENCE;
13 in Interest to Countrywide Financial Corp.; ) (4) NEGLIGENT INFLICTION OF
and DOES 1-20, INCLUSIVE, ) EMOTIONAL DISTRESS;
14 ) (5) INTENTIONAL INFLICTION OF
15 DEFENDANTS. ) EMOTIONAL DISTRESS;
) (6) VIOLATION OF CALIFORNIA
16 ) BUSINESS AND PROFESSIONS CODE
) SECTIONS 17200 ET SEQ;
17 ) (7)INVASION OF PRIVACY;
) (8) FRAUD
18 ) (9) BREACH OF CONTRACT;
19 ) (10) BREACH OF THE IMPLIED
) COVENANT OF GOOD FAITH AND
20 ) FAIR DEALING; AND
) (11) UNJUST ENRICHMENT
21

22
COMES NOW the Plaintiffs, by and through their attorneys of record, and state and allege
23
against the above-named Defendants as follows:
24

25

26
27

28

PLAINTIFF'S COMPLAINT
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Case 2:10-cv-02821-FCD-KJN Document 9 Filed 11/16/10 Page 2 of 22

INTRODUCTION
1

2 1. Plaintiff, MIMI ASH is the widow and beneficiary of her late husband, Robert L.

3 Ash's estate. Plaintiff, ROBERT T. ASH is the only son of Robert L. Ash. While he was alive,

4 both Mr. and Mrs. Ash ran complimentary businesses and owned various pieces of real property
5 in their individual names. One of those properties was a property at 13405 Ski Slope Way,
6
Truckee, California. Their properties were all financed with mortgages from Countrywide
7
Financial Corp., the predecessor in interest to the Defendant, BANK OF AMERICA, CORP.
8
After Mr. Ash passed away, MRS. ASH stopped paying the mortgage on Ski Slope Way
9
10 because it was in Mr. Ash's individual name and was in his probate estate. Within months of Mr.

11 Ash's death, though, MRS. ASH began to actively work with Countrywide to reach loan

12 workouts on the mortgages including the Ski Slope Way mortgage. On May 2, 2008, the
13
Trustee under the Deed of Trust for the Ski Slope Way property wrongfully foreclosed and
14
conducted a foreclosure sale. Even though MRS. ASH had been in constant contact with
15
Countrywide, it had failed to give her notice of the foreclosure sale. That foreclosure sale was
16
later rescinded due to the Trustee's failure to timely communicate with MRS. ASH. Despite this,
17

18 in late October or early November 2008, Countrywide unlawfully seized the Ski Slope Way

19 home, broke into the house, removed the Plaintiffs' personal property which included all of
20 MRS. ASH's deceased husband's personal items and changed the locks. MRS. ASH was given
21
absolutely no prior notice and Countrywide performed these activities without any judicial
22
process. To remedy the damage caused by the Defendants, the Plaintiffs bring this action and
23
make the following claims: 1) trespass; 2) conversion; 3) negligence; 4) negligent infliction of
24

25 emotional distress; 5) intentional infliction of emotional distress; 6) violations of California’s

26 Business and Professions Code; 7) invasion of privacy; 8) fraud; 9) breach of contract; 10)

27 breach of implied covenant of good faith and fair dealing; and, 11) unjust enrichment.
28

PLAINTIFF'S COMPLAINT
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Case 2:10-cv-02821-FCD-KJN Document 9 Filed 11/16/10 Page 3 of 22

2 PARTIES & JURISDICTION

3 2. The Plaintiff, MIMI ASH is an individual who resides in Granite Bay, California.

4 Ms. Ash is the beneficiary of her deceased husband's estate which included the real property
5 located at 13405 Ski Slope Way, Truckee, California. The Plaintiff, ROBERT T. ASH is an
6
individual who also resides in Granite Bay, California. ROBERT T. ASH is also the beneficiary
7
of his deceased father's estate which included many of the personal items and property in the
8
real property located at 13405 Ski Slope Way, Truckee, California.
9
10 3. The defendant, BANK OF AMERICA CORP. is the successor-in-interest to

11 Countrywide Financial Corp. (collectively "Countrywide" and/or "BANK OF AMERICA") and

12 is a corporation headquartered at Bank of America Corporate Center, 100 North Tryon Street,
13
Charlotte, North Carolina. This defendant transacts business in the State of California and is
14
subject to personal jurisdiction in this District.
15
4. Plaintiff does not know the true names and capacities of the defendants sued
16

17 herein as DOES 1 through 20 (“DOE Defendants”), inclusive, and therefore sues said DOE

18 Defendants by fictitious names. Plaintiff is informed and believes and based on such

19 information and belief avers that each of the DOE Defendants is contractually, strictly,
20 negligently, intentionally, vicariously liable and or otherwise legally responsible in some manner
21
for the acts and omissions described herein. Plaintiff will amend this Complaint to set forth the
22
true names and capacities of each DOE Defendant when same are ascertained.
23
5. Plaintiff is informed and believes and based on such information and belief avers
24

25 that Defendants BANK OF AMERICA and DOE Defendants 1 through 20, inclusive, and each

26 of them, are and at all material times have been, the agents, servants or employees of each other,

27 purporting to act within the scope of said agency, service or employment in performing the acts
28

PLAINTIFF'S COMPLAINT
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Case 2:10-cv-02821-FCD-KJN Document 9 Filed 11/16/10 Page 4 of 22

and omitting to act as averred herein.


1

2 6. Each of the Defendants named herein are believed to, and are alleged to have

3 been acting in concert with, as employee, agent, co-conspirator or member of a joint venture of,

4 each of the other Defendants, and are therefore alleged to be jointly and severally liable for the
5 claims set forth herein, except as otherwise alleged.
6
7. This court has jurisdiction pursuant to 28 U.S.C.S. '1332(a)(1) as there exists
7
diversity of all parties and the amount in controversy exceeds $75,000. The Defendant has
8
sufficient minimum contacts with California to subject it to jurisdiction in this judicial district
9
10 because it has a substantial number of bank branches in the State, enters into numerous loans

11 and agreements in California, and the facts and circumstances giving rise to the Plaintiff's
12 complaint all occurred within the State.
13
8. Venue is proper because the Defendants do business in this jurisdiction or
14
otherwise has substantial contacts within this jurisdiction.
15
FACTS
16

17 9. On July 3, 2003, Robert L. Ash executed a Deed of Trust for his home at 13405

18 Ski Slope Way, Truckee, California. At the time, Mr.Ash was married to the Plaintiff, MIMI

19 ASH and the property was intended as a second home for the couple and their son, ROBERT T.
20 ASH.
21
10. Recontrust Company, N.A. acted as the agent for the Beneficiary under the Deed
22
of Trust which was Mortgage Electronic Registration System. At all relevant times,
23
Countrywide claimed to be the servicer of Mr. Ash's note and deed of trust.
24

25 11. All payments on the mortgage loan were made to Countrywide as the loan

26 servicer.

27 12. While Mr. Ash was alive, both he and MIMI ASH operated complimentary
28

PLAINTIFF'S COMPLAINT
4
Case 2:10-cv-02821-FCD-KJN Document 9 Filed 11/16/10 Page 5 of 22

businesses in the real estate field and had an ongoing business relationship with Countrywide in
1

2 which they wrote other mortgage loans with Countrywide.

3 13. Mr. Ash died suddenly on August 17, 2005. After his death, MRS. ASH stopped

4 making payments on the Ski Slope Way mortgage because the property was part of his probate
5 estate. MRS. ASH had two other mortgages with Countrywide at the time and continued making
6
payments on those loans.
7
14. MRS. ASH was appointed executrix of Mr. Ash's estate. Mr. Ash died intestate.
8
The Plaintiffs were both beneficiaries of the estate.
9
10 15. In late 2005 or early 2006, Countrywide contacted the lawyer representing Mr.

11 Ash's estate and asked whether MRS. ASH would be interested in assuming the loan on the Ski

12 Slope Way property. MRS. ASH was interested and the estate lawyer petitioned the Probate
13
Court to allow the real estate to be conveyed to MRS. ASH. The petition was ultimately
14
allowed.
15
16. In October 2006, Countrywide represented that the assumption of the mortgage
16
by MRS. ASH would be in a three step process: first, she would need to bring the loan current;
17

18 second, she would need to apply for a loan modification and have it approved; third, assumption

19 papers would have to be signed by her. The assumption was approved pending the loan being
20 brought current.
21
17. In reliance on Countrywide's representations, in October 2006, MRS. ASH sent
22
Countrywide certified funds to bring the loan current. Countrywide accepted the funds.
23
18. After receiving the funds, Countrywide gave MRS. ASH a special forbearance
24

25 agreement on the Ski Slope Way loan as well as her other two loans that was good through

26 February 2007. The customer service representative was to contact MRS. ASH after the

27 forbearance period was up. The representative never did. MRS. ASH continued her efforts to
28

PLAINTIFF'S COMPLAINT
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Case 2:10-cv-02821-FCD-KJN Document 9 Filed 11/16/10 Page 6 of 22

reach the representative who was continually unavailable until April 2007.
1

2 19. MRS. ASH then completed three separate loan modification applications (one for

3 Ski Slope Way and one for each other property) and submitted them to Countrywide in October

4 2006. At the same time, MRS. ASH completed the paperwork for the Ski Slope Way loan
5 assumption, but retained the original form until the loan modifications were approved.
6
20. Despite its receipt of the loan modification applications, Countrywide lost all
7
three of them.
8
21. What ensued was a four year odyssey for MRS. ASH of endless communications
9
10 with Countrywide to resolve her loan modification requests. During the two years following

11 MRS. ASH's submission of her loan modification applications, she constantly contacted

12 representatives of Countrywide via telephone and email to try and reach workout solutions for
13
each of the loans.
14
22. Despite MRS. ASH's attempts, Countrywide's representatives did not return
15
desperate phone messages and email communications left by MRS. ASH to try and save the
16
properties all secured by loans.
17

18 23. In particular, even though MRS. ASH was actively in workout negotiations,

19 Countrywide issued a Notice of Default on the Ski Slope Way loan on April 24, 2007 and
20 recorded it in the Office of the Recorder for Nevada County. MRS. ASH never received notice
21
of the Notice of Default because Countrywide had mailed it to the wrong address.
22
24. After later learning of the Notice of Default, MRS. ASH continued her efforts to
23
reach a workout of the loan. Representatives of Countrywide gave MRS. ASH assurances that
24

25 any foreclosure sale of the Ski Slope Way home were being postponed while the workout was

26 pending.

27 25. Despite these assurances, on May 2, 2008, a foreclosure sale was conducted by
28

PLAINTIFF'S COMPLAINT
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Case 2:10-cv-02821-FCD-KJN Document 9 Filed 11/16/10 Page 7 of 22

the Trustee of the deed of trust. Proper statutory notice, though, was never given to MRS. ASH
1

2 prior to the foreclosure sale and she did not learn about it until sometime after it had happened.

3 26. At the time of the foreclosure sale, the Ski Slope Way home was fully furnished

4 and many of the Plaintiffs' personal possessions, including all of MRS. ASH'S deceased
5 husband's personal possessions, were in the Ski Slope Way home. This included such cherished
6
items as Mr. Ash's fishing gear and golf clubs and even precious photos and videos of the couple
7
and the family. Most importantly, an urn containing the ashes of Mr. Ash that the Plaintiffs
8
intended on taking to Tibet was also in the home.
9
10 27. During the summer of 2008, MRS. ASH made numerous visits to the Ski Slope

11 Way home and during one of those visits she learned of the foreclosure sale that had taken place.

12 When she learned of the wrongful foreclosure sale, she immediately contacted Countrywide to
13
have them rectify the mistake. Countrywide representatives assured her that they were working
14
to rescind the wrongful foreclosure sale.
15
28. In late October 2008, she visited the home and all was in order as she had last left
16
it from the prior visit.
17

18 29. In or about the last week of October 2008 or the first week of November 2008, an

19 agent acting for Countrywide unlawfully and forcibly entered the Ski Slope Way home,
20 removed or auctioned off all of the furnishings and personal belongings, changed the locks on
21
the doors, and then on or about November 6, 2008 winterized the property.
22
30. When MRS. ASH returned to the property on January 5, 2009, she discovered
23
that the locks and deadbolt on her door had been changed and she could not gain access to her
24

25 own property. She looked in a nearby window and saw personal items missing and papers

26 strewn about the house.

27 31. MRS. ASH called the local police, but she was told that it was a "civil matter."
28

PLAINTIFF'S COMPLAINT
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She then contacted Countrywide representatives to try and determine why her home had been
1

2 invaded and why she was locked out while she was in workout negotiations with Countrywide.

3 In fact, MRS. ASH has written proof in the form of email communications from the last week of

4 October 2008 with a Countrywide representative showing that she had been providing them with
5 documentation that they were requesting to complete the workout arrangements on Ski Slope
6
Way. MRS. ASH did not receive an answer from Countrywide at this time about why the
7
property had been seized.
8
32. During the ensuing month, MRS. ASH continued her efforts to try and speak with
9
10 someone at Countrywide about why she had been locked out and why she could not be given

11 access to her property. No one would provide her with an answer. For example, in an email

12 communication to Countrywide on February 3, 2009, MRS. ASH again requested an answer


13
about why she had been wrongfully locked out, why she was not being given access to her
14
property, and why her workout negotiations remained ongoing. No one from Countrywide
15
responded.
16
33. During the month of March, MRS. ASH continued to try and get answers from
17

18 Countrywide but none were forthcoming. In another email communication of March 31, 2009,

19 she demanded information about why she had been locked out and why she continued to be
20 denied access to her property.
21
34. Finally, after being given no answers by Countrywide, MRS. ASH employed her
22
own locksmith and gained entry to her property. When she entered the home she was dismayed
23
to discover that all the contents of her home, including all of the precious items that belonged to
24

25 her deceased husband were missing - this included the urn containing her husband's ashes.

26 35. In the coming months, MRS. ASH continued to try and find answers from

27 Countrywide about the travesty. She obtained limited information that Countrywide had
28

PLAINTIFF'S COMPLAINT
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Case 2:10-cv-02821-FCD-KJN Document 9 Filed 11/16/10 Page 9 of 22

conducted a foreclosure sale without giving her proper statutory notice and that an auction
1

2 company, Green River Auctions had conducted the auction. Beyond this sparse information,

3 MRS. ASH was not told anything else about why the home had been entered and why her

4 belongings had been taken without any notice to her - especially given the fact that Countrywide
5 had been in contact with her and knew how to get in touch with her during the months leading
6
up to late October and early November 2008.
7
36. Recognizing that it had wrongfully foreclosed and auctioned off the Ski Slope
8
Way home, Countrywide executed a Notice of Rescission of the Trustee's Deed of Sale on
9
10 March 6, 2009. The Notice was recorded on March 10, 2009.

11 37. Despite MRS. ASH's ongoing demands to address her losses, Countrywide

12 continued to ignore her.


13
FIRST CAUSE OF ACTION FOR
14 TRESPASS AGAINST ALL DEFENDANTS

15 38. Plaintiffs incorporate herein by reference the allegations made in paragraphs 1


16 through 37, inclusive, as though fully set forth herein.
17
39. The Defendants, its agents, contractors and/or employees entered the Plaintiffs'
18
property and house without permission or authorization and without giving any prior notice to
19
the Plaintiffs.
20

21 40. The Defendants, its agents, contractors and/or employees were on notice that they

22 had no right or authority to enter onto the Plaintiffs' property, break into their home, seize their

23 home and property and remove possessions in the home and on the property.
24 41. The actions of the Defendants, its agents, contractors and/or employees were
25
done intentionally and/or with gross disregard for the Plaintiffs' rights.
26
42. The Plaintiffs were damaged as a direct and proximate result of the actions of the
27

28

PLAINTIFF'S COMPLAINT
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Defendants, its agents, contractors and/or employees. As a result of the Defendants' fraudulent
1

2 conduct, Plaintiffs have suffered compensatory, general and special damages in an amount

3 according to proof. Additionally, the Defendants acted with malice, fraud and/or oppression

4 and, thus, Plaintiffs are entitled to an award of punitive damages


5
SECOND CAUSE OF ACTION
6 CONVERSION AGAINST ALL DEFENDANTS

7 43. Plaintiffs incorporate herein by reference the allegations made in paragraphs 1

8 through 42, inclusive, as though fully set forth herein.


9
44. The Defendants, its agents, contractors and/or employees entered the Plaintiffs'
10
property and house without permission or authorization and without giving any prior notice to
11
the Plaintiffs.
12
45. The Defendants, its agents, contractors and/or employees removed and disposed
13

14 of numerous and valuable personal possessions of the Plaintiffs and their deceased

15 husband/father.
16 46. The actions of the Defendants, its agents, contractors and/or employees were
17
done intentionally and/or with gross disregard of the Plaintiffs' rights.
18
47. The Plaintiffs have been damaged as a direct and proximate result of the actions
19
of the Defendant, its agents, contractors and/or employees. As a result of the Defendants'
20

21 fraudulent conduct, Plaintiffs have suffered compensatory, general and special damages in an

22 amount according to proof. Additionally, the Defendants acted with malice, fraud and/or

23 oppression and, thus, Plaintiffs are entitled to an award of punitive damages


24 THIRD CAUSE OF ACTION
25 NEGLIGENCE AGAINST ALL DEFENDANTS

26 48. Plaintiffs incorporate herein by reference the allegations made in paragraphs 1

27 through 47, inclusive, as though fully set forth herein.


28

PLAINTIFF'S COMPLAINT
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Case 2:10-cv-02821-FCD-KJN Document 9 Filed 11/16/10 Page 11 of 22

49. The Defendants owed a duty to the Plaintiffs to act as a reasonable and prudent
1

2 loan servicer, which included the obligation to notify the Plaintiffs of its reasonable reasons to

3 enter onto the property and seize it and had a duty to notify the Plaintiffs in writing before

4 entering onto and into the property.


5 50. The Defendants, its agents, contractors and/or employees breached its duty of
6
care when they wrongfully entered the Plaintiffs' property and house without permission or
7
authorization, without giving prior written notice with reasonable reasons for entering onto and
8
into the property, and by failing to reasonably determine whether the property had actually been
9
10 abandoned by the Plaintiffs.

11 51. The Defendants breached the duty they owed to the Plaintiffs by wrongfully

12 seizing the Plaintiffs' property and by taking the Plaintiffs' possessions.


13
52. The Plaintiffs were damaged as a direct and proximate result of the actions of the
14
Defendants, its agents, contractors and/or employees.
15
FOURTH CAUSE OF ACTION
16 NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS AGAINST ALL
17 DEFENDANTS

18 53. Plaintiffs incorporate herein by reference the allegations made in paragraphs 1

19 through 52, inclusive, as though fully set forth herein.


20 54. The Defendants owed a duty to the Plaintiffs to act as a reasonable and prudent
21
loan servicer, which included the obligation to notify the Plaintiffs of its reasonable reasons to
22
enter onto the property and seize it and had a duty to notify the Plaintiffs in writing before
23
entering onto and into the property.
24

25 55. The Defendants, its agents, contractors and/or employees entered the Plaintiffs'

26 property and house without permission or authorization.

27 56. The Defendants, its agents, contractors and/or employees breached its duty of
28

PLAINTIFF'S COMPLAINT
11
Case 2:10-cv-02821-FCD-KJN Document 9 Filed 11/16/10 Page 12 of 22

care when they wrongfully entered the Plaintiffs' property and house without permission or
1

2 authorization, without giving prior written notice with reasonable reasons for entering onto and

3 into the property, and by failing to reasonably determine whether the property had actually been

4 abandoned by the Plaintiffs. The Defendants' actions were taken with a gross disregard for the
5 Plaintiffs' rights and were so severe and outrageous so as to shock the conscience and cause the
6
Plaintiffs severe emotional distress, embarrassment and ridicule.
7
57. The Plaintiffs were damaged as a direct and proximate result of the actions of the
8
Defendants, its agents, contractors and/or employees. The Plaintiffs' emotional distress includes,
9
10 but is not limited to, extreme humiliation, anxiety and a loss of sleep.

11 FIFTH CAUSE OF ACTION


INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AGAINST ALL
12 DEFENDANTS
13
58. Plaintiffs incorporate herein by reference the allegations made in paragraphs 1
14
through 57, inclusive, as though fully set forth herein.
15
59. The Defendants, its agents, contractors and/or employees entered the Plaintiffs'
16
property and house without permission or authorization.
17

18 60. The Defendants' acts and/or omissions were done intentionally and/or with gross

19 indifference to the Plaintiffs' rights.


20 61. The Plaintiffs were damaged as a direct and proximate result of the actions of the
21
Defendants, its agents, contractors and/or employees. The Plaintiffs' emotional distress
22
includes, but is not limited to, extreme humiliation, anxiety and a loss of sleep. As a result of
23
the Defendants' fraudulent conduct, Plaintiffs have suffered compensatory, general and special
24

25 damages in an amount according to proof. Additionally, the Defendants acted with malice,

26 fraud and/or oppression and, thus, Plaintiffs are entitled to an award of punitive damages.

27

28

PLAINTIFF'S COMPLAINT
12
Case 2:10-cv-02821-FCD-KJN Document 9 Filed 11/16/10 Page 13 of 22

SIXTH CAUSE OF ACTION


1 VIOLATION OF CALIFORNIA BUSINESS AND PROFESSIONS CODE SECTIONS
2 17200 ET SEQ AGAINST ALL DEFENDANTS

3 62. Plaintiffs incorporate herein by reference the allegations made in paragraphs 1

4 through 61, inclusive, as though fully set forth herein.


5 63. California Business & Professions Code Section 17200, et seq., prohibits acts of
6
unfair competition, which means and includes any “fraudulent business act or practice . . .” and
7
conduct which is “likely to deceive” and is “fraudulent” within the meaning of Section 17200.
8
64. At all times material herein, the Defendants were conducting trade and commerce
9
10 as that term is defined in the Unfair Business Practices and Consumer Protection Act (the Act)

11 in the State of California

12 65. The Plaintiffs are persons as that term is defined in the Act.
13
66. As more fully described above, the Foreclosing Defendants’ acts and practices
14
are likely to deceive, constituting a fraudulent business act or practice. This conduct is ongoing
15
and continues to this date.
16
67. Specifically, the Foreclosing Defendants engage in deceptive business practices
17

18 with respect to mortgage loan servicing, assignments of notes and deeds of trust, foreclosure of

19 residential properties and related matters by


20 a. Assessing improper or excessive late fees;
21
b. Improperly characterizing customers’ accounts as being in default or
22
delinquent status to generate unwarranted fees;
23
c. Instituting improper or premature foreclosure proceedings to generate
24

25 unwarranted fees;

26 d. Misapplying or failing to apply customer payments;

27 e. Failing to provide adequate monthly statement information to customers


28

PLAINTIFF'S COMPLAINT
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regarding the status of their accounts, payments owed, and/or basis for fees
1

2 assessed;

3 f. Seeking to collect, and collecting, various improper fees, costs and charges,

4 that are either not legally due under the mortgage contract or California law,
5 or that are in excess of amounts legally due;
6
g. Mishandling borrowers’ mortgage payments and failing to timely or properly
7
credit payments received, resulting in late charges, delinquencies or default;
8
h. Treating borrowers as in default on their loans even though the borrowers
9
10 have tendered timely and sufficient payments or have otherwise complied

11 with mortgage requirements or California law;

12 i. Failing to disclose the fees, costs and charges allowable under the mortgage
13
contract;
14
j. Ignoring grace periods;
15
k. Executing and recording false and misleading documents; and
16
l. Acting as beneficiaries and trustees without the legal authority to do so.
17

18 68. The Foreclosing Defendants fail to act in good faith as they take fees for services

19 but do not render them competently and in compliance with applicable law.
20 69. Moreover, the Foreclosing Defendants engage in a uniform pattern and practice
21
of unfair and overly-aggressive servicing that result in the assessment of unwarranted and unfair
22
fees against California consumers, and premature default often resulting in unfair and illegal
23
foreclosure proceedings. The scheme implemented by the Foreclosing Defendants is designed
24

25 to defraud California consumers and enrich the Foreclosing Defendants.

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

27 consumers.
28

PLAINTIFF'S COMPLAINT
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71. As the code specifically relates to Plaintiffs, at all times material herein, the
1

2 Plaintiffs had a right of privacy in their home and property and a right to possess the property

3 free from unlawful intrusions by others.

4 72. After admittedly wrongfully foreclosing on the Plaintiffs' home, the Defendants,
5 its agents, contractors and/or employees wrongfully broke into and entered into the Plaintiffs'
6
home without reasonable justification, trespassed on her property and disposed of the Plaintiffs'
7
possessions that were on the property and in the home. In addition, as part of the invasion of the
8
Plaintiffs' home by the Defendants, its agents, contractors and/or employees, said Defendants, its
9
10 agents, contractors and/or employees took total possession of the home by changing the locks

11 and winterizing the property. These acts were all taken to dispossess the Plaintiffs of their

12 ownership interest and other rights they had in their home and property.
13
73. The Defendant, Countrywide, violated the terms of its workout arrangements
14
with the Plaintiffs by wrongfully ordering its agents, contractors and/or employees onto the
15
property, to seize the property, and to winterize without reasonable reasons, without giving any
16
notice to the Plaintiffs, and without having reasonable justification.
17

18 74. The Defendants' conduct is an unfair and deceptive act and practice that occurred

19 in the conduct of trade and commerce in the State of California.


20 75. The actions of the Defendants, its agents, contractors and/or employees were
21
done with gross disregard for the Plaintiffs' rights and constituted unfair and deceptive acts and
22
practices in the course of conduct of trade and commerce in violation of the Act.
23
76. The Defendants’ acts and/or omissions described herein are a matter of sufficient
24

25 public interest and pattern of deceptive and/or unfair acts as that phrase is defined by the Act.

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

27 practices of the Foreclosing Defendants, Plaintiffs and California consumers have suffered and
28

PLAINTIFF'S COMPLAINT
15
Case 2:10-cv-02821-FCD-KJN Document 9 Filed 11/16/10 Page 16 of 22

will continue to suffer damages in the form of unfair and unwarranted late fees and other
1

2 improper fees and charges.

3 78. By reason of the foregoing, the Foreclosing Defendants have been unjustly

4 enriched and should be required to disgorge their illicit profits and/or make restitution to
5 Plaintiffs and other California consumers who have been harmed, and/or be enjoined from
6
continuing in such practices pursuant to California Business & Professions Code Sections 17203
7
and 17204. Additionally, Plaintiffs are therefore entitled to injunctive relief and attorney’s fees
8
as available under California Business and Professions Code Sec. 17200 and related sections.
9
10 SEVENTH CAUSE OF ACTION
INVASION OF PRIVACY AGAINST ALL DEFENDANTS
11
79. Plaintiffs incorporate herein by reference the allegations made in paragraphs 1
12
through 78, inclusive, as though fully set forth herein.
13

14 80. The Plaintiffs owned the property and home located at 13405 Ski Slope Way,

15 Truckee, California. The Plaintiffs had the sole possessory interest in the home and property
16 located at this address. At all times material herein, the Plaintiffs had personal property and
17
belongings in the house and on the property and never abandoned the home.
18
81. The Plaintiffs, as the owners of the property had a right to privacy in their
19
property and house. The Plaintiffs had the right to be free from unlawful intrusion onto their
20

21 property and into their home and also from the unauthorized viewing, taking, seizure and

22 destruction of their personal property within their home and on their property.

23 82. The Defendants, through its agents, contractors and/or employees entered the
24 Plaintiffs' property and house without permission or authorization and viewed, took and
25
destroyed their personal property and possessions. Moreover, the Defendants, through its
26
agents, contractors and/or employees locked the Plaintiffs out of their own home and denied
27

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PLAINTIFF'S COMPLAINT
16
Case 2:10-cv-02821-FCD-KJN Document 9 Filed 11/16/10 Page 17 of 22

them access for months.


1

2 83. The acts of the Defendants, through its agents, contractors and/or employees were

3 an unreasonable, substantial and/or serious interference with the Plaintiffs' privacy.

4 84. The actions of the Defendants, through its agents, contractors and/or employees
5 were done intentionally and/or with gross disregard for the rights of the Plaintiffs and
6
constituted an invasion of the Plaintiffs' right to privacy.
7
85. In addition, the Defendants, through its agents, contractors and/or employees held
8
the Plaintiff, MIMI ASH out to the public in a false light by representing through its words and
9
10 actions that she had not paid the mortgage and that her home was subject to foreclosure. All of

11 these direct or implied representations about the Plaintiff, MIMI ASH, were false and

12 constituted an invasion of her privacy. These acts were an unreasonable, substantial and/or
13
serious interference with the Plaintiff's privacy.
14
86. The Plaintiffs were damaged as a direct and proximate result of the acts and
15
omissions of the Defendants, through its agents, contractors and/or employees.
16

17 EIGHTH CAUSE OF ACTION FOR


FRAUD AGAINST ALL DEFENDANTS
18
87. Plaintiffs incorporate herein by reference the allegations made in paragraphs 1
19
through 86, inclusive, as though fully set forth herein.
20

21 88. The Defendants engaged in a pattern and practice of defrauding Plaintiff, MIMI

22 ASH, in that, during the life of the mortgage loan, the Defendants failed to properly complete

23 any of the multiple loan modification agreements they agreed to enter with Plaintiff, MIMI
24 ASH, while accepting her payments towards those loan modification agreements and foreclosed
25
on the Subject Property based on Plaintiff’s alleged failure to provide documentation which on
26
each and every occasion was provided to Defendants by Plaintiff and which the Defendants
27

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Case 2:10-cv-02821-FCD-KJN Document 9 Filed 11/16/10 Page 18 of 22

knew to be false.
1

2 89. The Defendants had actual knowledge that the Plaintiff, MIMI ASH’s account

3 was not accurate but that the Defendants could use the inaccuracy to foreclose on the Subject

4 Property. Plaintiff furnished the required documentation and made required payments under the
5 loan modification agreements and provided proof of the receipt of documentation and proof of
6
the payments made based on the improper, inaccurate, and fraudulent representations as to her
7
account.
8
90. Additionally, the Defendants concealed material facts known to them but not to
9
10 Plaintiff, MIMI ASH, regarding payments, notices, assignments, transfers, late fees and charges

11 with the intent to defraud Plaintiff.

12 91. The Defendants made the above-referenced false representations, concealments


13
and non-disclosures with knowledge of the misrepresentations, intending to induce Plaintiff’s
14
reliance, which the unsuspecting Plaintiff justifiably relied upon, resulting in damage to her
15
credit standing, costs and loss of both Plaintiffs property. Plaintiff was unaware of the true facts.
16
Had Plaintiff known the true facts, Plaintiff, among other things, would not have maintained the
17

18 Defendants as her lender, servicer and trustee (and their alleged agents) and/or would have taken

19 legal action immediately to save her house from being wrongfully foreclosed and protected her
20 personal property from being wrongfully taken by Defendants, it agents, contractors and/or
21
employees.
22
92. As a result of the Defendants' fraudulent conduct, Plaintiff, MIMI ASH, has
23
suffered compensatory, general and special damages in an amount according to proof.
24

25 Additionally, the Defendants acted with malice, fraud and/or oppression and, thus, Plaintiff is

26 entitled to an award of punitive damages.

27

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PLAINTIFF'S COMPLAINT
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Case 2:10-cv-02821-FCD-KJN Document 9 Filed 11/16/10 Page 19 of 22

NINTH CAUSE OF ACTION FOR


1 BREACH OF CONTRACT AGAINST ALL DEFENDANTS
2
93. Plaintiffs incorporate herein by reference the allegations made in paragraphs 1
3
through 92, inclusive, as though fully set forth herein.
4
94. Defendants voluntarily entered into a forbearance agreement with Plaintiff, MIMI
5

6 ASH, whereby Defendants agreed to accept a sum to bring the Ski Slope Way loan current from

7 Plaintiff in exchange for not foreclosing on Plaintiff’s home while Defendants worked out a loan

8 modification with Plaintiff on the note secured by a deed of trust on Plaintiff’s home.
9
95. The Defendants breached this forbearance agreement with Plaintiff by:
10
a. Agreeing to modify the loan for Plaintiff, MIMI ASH, on several
11
occasions and thereafter accepting payments towards this loan modification agreement,
12
but then failing each time to properly route the requested documentation supplied by
13

14 Plaintiff to them; and

15 b. Failing to honor the forbearance agreement with Plaintiff the result of


16 which led to the Defendants' admittedly wrongful foreclosure on the Plaintiff’s home
17
which resulted in the conversion of both Plaintiffs personal property by Defendants, its
18
agents, contractors and/or employees.
19
96. As a proximate result of Defendants' breaches, Plaintiffs have suffered
20

21 compensatory damages in an amount to be proven at trial.

22 TENTH CAUSE OF ACTION FOR


BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING
23 AGAINST ALL DEFENDANTS
24 97. Plaintiffs incorporate herein by reference the allegations made in paragraphs 1
25
through 96, inclusive, as though fully set forth herein.
26
98. Every contract imposes upon each party a duty of good faith and fair dealing in
27

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PLAINTIFF'S COMPLAINT
19
Case 2:10-cv-02821-FCD-KJN Document 9 Filed 11/16/10 Page 20 of 22

its performance and its enforcement. This implied covenant of good faith and fair dealing
1

2 requires that no party will do anything that will have the effect of impairing, destroying, or

3 injuring the rights of the other party to receive the benefits of their agreement. The covenant

4 implies that in all contracts each party will do all things reasonably contemplated by the terms of
5 the contract to accomplish its purpose. This covenant protects the benefits of the contract that
6
the parties reasonably contemplated when they entered into the agreement.
7
99. The Defendants enjoyed substantial discretionary power affecting the rights of
8
Plaintiff during the events alleged in this Complaint. They were required to exercise such power
9
10 in good faith.

11 100. The Defendants engaged in such conduct as described above to drive Plaintiff

12 into foreclosure so that they could acquire the Plaintiffs' home and Plaintiffs' valuable contents
13
at a bargain basement price. These actions were a bad faith breach of the contract between
14
Plaintiff and the Defendants which shows that Defendants had no intention of performing the
15
contracts, consisting of the original note and deed of trust and the subsequently executed
16
forbearance agreement, in good faith.
17

18 101. As a result of the Defendants' breaches of this covenant, Plaintiffs have suffered

19 damages in an amount to be determined at trial.


20 ELEVENTH CAUSE OF ACTION FOR
21 UNJUST ENRICHMENT AGAINST ALL DEFENDANTS

22 102. Plaintiffs incorporate herein by reference the allegations made in paragraphs 1

23 through 101, inclusive, as though fully set forth herein.


24 103. By their wrongful acts and omissions, the Defendants have been unjustly
25
enriched at the expense of Plaintiffs, and thus Plaintiffs have been unjustly deprived.
26
104. By reason of the foregoing, Plaintiffs seek restitution from the Defendants, and
27

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PLAINTIFF'S COMPLAINT
20
Case 2:10-cv-02821-FCD-KJN Document 9 Filed 11/16/10 Page 21 of 22

an order of this Court disgorging all profits, benefits, and other compensation obtained by the
1

2 Defendants from their wrongful conduct.

3 PRAYER FOR RELIEF

4 Wherefore, Plaintiffs pray for judgment against the Defendants and each of them, jointly
5 and severally, as follows:
6
1. For all damages sustained by the Plaintiffs in an amount proven at trial, including
7
past and future economic and compensatory damages, damage to property, past and future special
8
and non-economic damages, punitive and/or exemplary damages, and other damages.
9
10 2. Interest calculated at the maximum amount allowable by law, including pre- and

11 post-judgment interest.

12 3. Reasonable attorney's fee as allowed by law.


13
4. Pursuant to Business and Professions Code § 17203, that all Defendants, their
14
successors, agents, representatives, employees, and all persons who act in concert with them be
15
permanently enjoined from committing any acts of unfair competition in violation of § 17200,
16
including, but not limited to, the violations alleged herein.
17

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

19 attorney's fees according to proof.


20 6. For reasonable costs of suit and such other and further relief as the Court deems
21
proper.
22

23
DATED: November 16, 2010 CREED & ELLIOTT, LLP
24

25

26 By: /s/ Joseph W. Creed_______________________


Joseph W. Creed
27 Attorney for Plaintiffs
28

PLAINTIFF'S COMPLAINT
21
Case 2:10-cv-02821-FCD-KJN Document 9 Filed 11/16/10 Page 22 of 22

1 And by the following attorneys (via anticipated pro hac vice admission):
2

3 Andrew J. Garcia (MA BBO#559084) Joseph F. deMello (MA BBO# 546017)


Carlin J. Phillips (MA BBO# 561916) LAW OFFICE OF
4 PHILLIPS & GARCIA, P.C. JOSEPH F. deMELLO, P.C.
13 Ventura Drive 71 Main Street
5
N. Dartmouth, MA 02747 Taunton, MA 02747
6 (508) 998-0800 508-824-9112
(508) 998-0919 (fax) 508-824-5917 (fax)
7 agarcia@phillipsgarcia.com josephdemellolaw@verizon.net

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