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Timothy L. McCandless, Esq., SBN 147715 LAW OFFICES OF TIMOTHY L. MCCANDLESS 820 Main Street, Ste. 1 Martinez, CA 94553 (925) 957-9797 Telephone (925) 957-9799 Facsimile
tmvictorvillelaw@gmail.com or legal@prodefenders.com

Attorney for Plaintiffs(s): Victor D. Johnson; Frances M. Fabillaran-Johnson SUPERIOR COURT OF THE STATE OF CALIFORNIA Victor D. Johnson; Frances M. Fabillaran-Johnson , Plaintiffs(s), VS. COUNTRYWIDE HOME LOANS, INC.; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; RECONTRUST COMPANY, N.A.; BAC HOME LOANS SERVICING, LP; BANK OF AMERICA, NATIONAL ASSOCIATION; and DOES 1 through 50, Inclusive, Defendant( s). CASE NO: VERIFIED COMPLAINT PROMISSORY ESTOPPEL QUIET TITLE DEMAND FOR ACCOUNTING FRADULENT INDUCEMENT, FRAUD and BREACH OF CONTRACT 5) CANCEL DEED OF TRUST 6) VIOLATION OF CAL. CIVIL CODES 2923.5 and 2924 7) FRADULENT and NEGLIGENT MISREPRESENTATION 8) VIOLATION OF California Business and Professions Code Section 17200 9) UNJUST ENRICHMENT 10)INJUNCTIVE RELIEF 1) 2) 3) 4)

IN AND FOR THE COUNTY OF SOLANO

I.
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INTRODUCTION
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COMES NOW, Victor D. Johnson and Frances M. Fabillaran-Johnson

[hereinafter PLAINTIFFSS], by and through their attorney of record, and

files this Complaint seeking an emergency and immediate declaratory and injunctive relief and actual damages, statutory damages, fees for the costs of this action against the Defendants and challenge the failure of Defendant, BAC Home Loans Servicing, LP, a subsidiary of Bank of America, N.A. (BAC) to honor its agreements with borrowers to modify mortgages and prevent foreclosures under the United States Treasurys Home Affordable Modification Program (HAMP). Plaintiffs claims are simple when a large financial institution promises to modify an eligible loan to prevent foreclosure, homeowners who live up to their end of the bargain expect that promise to be kept. This is especially true when the financial institution is acting under the aegis of a federal program that is specifically targeted at preventing foreclosure. Thus, this lawsuit arises from Defendants COUNTRYWIDE, BAC and BANK OF AMERICAs deception in inducing plaintiffs to enter into mortgages from 2003 through 2007 with Countrywide, violation of foreclosure laws and defendants continuing tortuous conduct intended to deprive plaintiffs of their rights and remedies for the foregoing acts as described below. Plaintiffs file this complaint against defendants COUNTRYWIDE HOME LOANS, INC.; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; RECONTRUST COMPANY, N.A.; BAC HOME LOANS SERVICING, LP; BANK OF AMERICA, NATIONAL ASSOCIATION; and DOES 1 through 50, Inclusive, to vacate foreclosure process, reimburse loan closing cost, reimburse interest paid, rescind current loans as per the violations of

California laws, and pay any and all damages in an amount unknown at
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this time. Mortgage fraud is known as the intentional misstatement, misrepresentation, or omission by an applicant or other interested parties, relied on by a lender or underwater to provide funding for, to purchase, or to insure a mortgage loan. Combating mortgage fraud effective requires the cooperation of law enforcement and industry entities. This is a predatory lending case involving deceptive, unlawful, fraudulent, and unfair residential real estate lending and credit reporting practices by Defendants. With this Complaint, Plaintiffs seeks rescission of
their predatory loan, monetary and statutory damages for Defendants violation state mortgage lending laws, monetary damages for Defendants fraud, equitable and restitutionary relief for Defendants violation of California Business and Professions Code Section 17200, statutory and contractual attorneys fees, and an order quieting fee simple title of Plaintiffs property that includes declaratory relief. Plaintiffs also seek to restrain Defendants and all parties acting in concert with them in the nonjudicial foreclosure on her property.

II. NATURE OF THE ACTION Since early 2007 more than 7.5 million homes have entered the foreclosure process, 4.8 million borrowers are at risk of foreclosure now, and the crisis continues and sadly, more homeowners are afflicted into the danger zone every day. Default and foreclosure rates are many times higher than they have been at any time since the great depression, and the damage has impacted every corner of our country, including urban and rural areas, and families of every kind. The millions of foreclosures are devastating for families that lose their homes, but also for
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neighborhoods afflicted with vacancy and blight, towns and cities losing
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property taxes, and for our whole economy. Compounding the harm to working families, small investors and pension funds have lost billions of dollars on investments in mortgage-backed securities that were sold deceptively and built on loans that were destined to fail. In this particular case, COUNTRYWIDE is the perpetrator, along with its successors in interest defendant BANK OF AMERICA and BAC HOME LOANS. Abuse, fraud, conflicts of interest, and lawlessness have been endemic at every stage of the mortgage origination, pooling, securitization, and servicing and foreclosure process. This chain of misconduct by many of the nations largest financial companies is at the root of the foreclosure avalanche, of the failure of existing programs to resolve the problem, and a fundamental cause of the broader economic crisis that has cost millions of jobs and is compounding the foreclosure problem now. In turn, failure to resolve the foreclosure crisis is worsening our economic situation, and making it harder to create jobs. Plaintiffs are informed and believe, and upon such information and belief, allege that defendants Loan Modification program is a nothing more than a ruse designed to circumvent California State Bill 11371 and to lead Plaintiffs and other similarly situated borrowers to early default and foreclosure. Thus, this case arises out of Defendants egregious and ongoing and far reaching fraudulent schemes for improper use of Plaintiffs identity, fraud in the inducement, fraud in the execution, usury, and breaches of contractual and fiduciary obligations as Mortgagee or Trustee on the
Close examination of SB 1137 shows that there are significant loop holes for mortgage companies insofar and they do not have to follow SB 1137 if they are offering modifications to homeowner that meet certain criteria. All that a lender needs to do is offer a deferment of some of the principal due until the end of the loan and a minimal interest rate decrease to qualify under the new law. The lender does not necessarily have to modify any loan, only offer. Once a modification is offered, the lender can apply for a certificate of exemption and continue to foreclose regardless of this law.
1

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Deed of Trust, Mortgage Brokers, Loan Originators, Loan Seller,

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Public Notary, Mortgage Aggregator, Trustee of Pooled Assets, Trustee or officers of Structured Investment Vehicle, Investment Banker, Trustee of Special Purpose Vehicle/Issuer of Certificates of Asset-backed Certificates, Seller of Asset-Backed Certificates (shares or bonds), Special Servicer and Trustee, respectively, of certain mortgage loans pooled together in a trust fund. The participants in the securitization scheme described herein have devised business plans to reap millions of dollars in profits at the expense of Plaintiffs [in this instance, paid $27000 in an attempt to get his loan reinstated] and other investors in certain trust funds. In addition to seeking compensatory, consequential and other damages, Plaintiffs seeks declaratory relief as to what (if any) party, entity or individual or group thereof is the owner of the promissory note executed at the time of the loan closing, and whether the Deed of Trust (Mortgage) secures any obligation of the Plaintiffs, and a Mandatory Injunction requiring reconveyance of the subject property to the Plaintiffs or, in the alternative a Final Judgment granting Plaintiffs Quiet Title in the subject property. III. THE SUBJECT PROPERTY 1. Plaintiffs at all times relevant have been a residents of the County

of Solano, State of California and are the owners of Real Property, including but not limited to the property at issue herein,5043 Campbell Court, Fairfield, CA 94533. The Legal descriptions are as follows: Lot 319, as shown on the Map of Gold Ridge, Unit No. 6, filed April 11, in Book 75 of Maps, page7 2, Solano County Records (hereinafter referred to as Subject Property). IV.
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PARTIES
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Victor D. Johnson and Frances M. Fabillaran-Johnson (hereinafter

referred to as Plaintiffs) at all times relevant has been resident of the County of Solano, State of California and is owner of Real Property that is the subject in this complaint. 3. Defendant, Defendant, COUNTRYWIDE HOME LOANS, INC, (hereinafter referred to as COUNTRYWIDE) at all times herein mentioned was doing business in the County of Solano, State of California and was listed on the Deed of Trust and is the original Lender for the Deed of Trust Deed and Note [see Exhibit A]. COUNTRYWIDE is no longer in business and there is no mystery about as to why. The fraud perpetrated by COUNTRYWIDE from 2003 through 2007, including defendant B OF A starting no later than 2007, was willful and pervasive. The greedy Countrywide founder and CEO Angelo Mizilo discovered that countrywide could not sustain its business, unless it utilizes its market share in California to systematically create false and inflated property appraisals throughout California. COUNTRYWIDE was the original lender on plaintiffs Deed of Trust which was recorded at Solano on February 8, 2006. Countrywide then used these inflated valuations to induce plaintiffs and other borrowers into even larger loans on increasingly risky terms. Thus, Mr. Mozilo knew in 2004 that these loans were unsustainable for countrywide and the borrowers and it would definitely result in a crash that would destroy the equity invested by Plaintiffs. Plaintiffs contend this is financial fraud perpetrated by the defendants on a scale never before seen. This scheme led directly to a mortgage meltdown in California. From 2008 to the present, it is common knowledge that California homes would decrease dramatically as a direct and proximately result of
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Countrywides scheme set forth herein. The brokers/agents and

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Countrywide knew that their scheme would be a disaster yet they still induced homeowners like the plaintiffs into their scheme without telling them. 4. MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., (hereinafter

referred to as MERS ) at all times herein mentioned was presumed to being doing business in the County of Solano, State of California and alleged to be the Beneficiary regarding Plaintiffs Real Property as described above and as Situated in Solano County California. MERS was listed on the Deed of Trust [DOT] dated July 8, 2006 [See Exhibit A]
and stating in the definition section that: (E) MERS is a Mortgage Electronic Registration Systems, Inc., MERS is a separate corporation that is acting solely as a nominee for Lender and successors and assigns. MERS is the beneficiary under this Lenders

Security Instrument.

In this case, MERS is the beneficiary on the Plaintiffs Deed of Trust and considered itself a separate corporation that is acting solely as a nominee for Lender [COUNTRYWIDE] and Lenders successors and assigns. However, MERS is named in excess of a million recorded documents in this State and all over the country. Defendants recorded or caused to be recorded deeds of trust and other documents which identified MERS as the beneficiary, which MERS is not, or the nominee of the lender and lenders successors and assigns, which MERS never was, and as holding legal title, when MERS did not, thereby naming appointing and/or characterizing MERS in any of those capacities in documents recorded throughout the State over the last ten years. Consumer advocates argue that MERS records arent a legal substitute for traditional documents, prompting some courts to throw out foreclosures. Merscorp said on Feb. 16, 2011 it will propose a rule
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change to stop members from foreclosing in its name. Its owned by

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Bloomberg News: BofA, Citigroup Say Mortgage Database Draws Scrutiny in Foreclosure Probe: By Laura Marcinek dated March 2, 2011
2

Fannie Mae and Freddie Mac, the government-owned mortgage companies that have received $151 billion in government aid since 2008, and financial firms including Bank of America [defendant in this action] according to the MERS website. Foreclosure practices in addition to those related to MERS are the subject of investigations. Attorneys general of all 50 states are jointly investigating whether banks and loan servicers used false documents and signatures to justify hundreds of thousands of foreclosures. Defendant Bank of America, JPMorgan were among lenders that temporarily halted or delayed foreclosures to review practices.2 5. Defendant, RECONTRUST COMPANY, N.A., (hereinafter referred to as

RECONTRUST) at all times herein mentioned is doing business in the County of Solano, State of California and was listed on the Notice of Default recorded on August 19, 2011. RECONTRUST claims to be the beneficiary on this Notice of Default [NOD] (See Exhibit B). but MERS was listed as the beneficiary as indicated on paragraph 4 of this Complaint. 6. Defendant, BAC HOME LOANS SERVICING, LP, (hereinafter referred to as BAC) at all times herein mentioned is doing business in the County of Solano, State of California and was listed on the California Declaration attached to the NOD by Pomona Townsend an employee of the BOFA NA, for the above named Real Property. Plaintiffs believes that the Defendant BAC is servicing agent for the Defendant B OF A NA who unknown to Plaintiffs provided services in various forms to be determined to others which were of such a nature to render them a Servicer.

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7.
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Defendant BANK OF AMERICA, NATIONAL ASSOCIATION, (hereinafter

referred to as BOFA N.A.) at all times herein mentioned is doing business in the County of Los Angeles, State of California. Plaintiffs are informed and believe that BAC is subsidiary of BOFA N.A. In 2007, BOFA N.A. negotiated in acquiring Countrywide. By late 2007, BOFA NA began merging its operations with countrywide and adopting some of Countrywides practices. From and after its acquisition of Countrywide in July 2008 and continuing today, both as a successor in interest to Countrywide and as a principal B OF A NA has engaged in and continued the wrongful conduct complained of herein. For purposes of this Complaint, then all references to BAC shall be deemed to refer to the acts and omissions of BOFA N.A. Plaintiffs believes that the Defendant BAC is servicing agent for the Defendant B OF A NA, who unknown to Plaintiffs provided services in various forms to be determined to others which were of such a nature to render them a Servicer. On September 19, 2011 RECONTRUST recorded the Corporation Assignment Deed of Trust [CDOT] wherein MERS, the alleged beneficiary, assigned and granted to BOFA NA the subject DOT. [See Exhibit C]. 8. Plaintiffs is ignorant of the true names and capacities of Defendants

sued herein as DOES 1 through 50, Inclusive, and therefore sues these Defendants by such fictitious names and all persons unknown claiming any legal or equitable right, title, estate, lien, or interest in the property described in the complaint adverse to Plaintiffs title, or any cloud on Plaintiffs title thereto. Plaintiffs will amend this complaint to allege their true names and capacities when ascertained. 9. Plaintiffs are informed and believes and thereon alleges that, at all times herein mentioned each of the Defendants sued herein was the agent and employee of each of the remaining Defendants. Plaintiffs allege that each
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and every Defendant alleged herein ratified the conduct of each and
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every other defendant. Plaintiffs further allege that at all times said Defendants were acting within the purpose and scope of such agency and employment. JURY TRIAL DEMAND Plaintiffs demand a jury trial on all issues. THE TENDER RULE The rationale underlying the tender rule does not apply in this case. As one California appellate court has explained, the rationale behind the rule is that if plaintiffs could not have redeemed the property had the sale procedures been proper, any irregularities in the sale did not result in damages to the plaintiffs. Essentially, requiring tender of the amount of the secured indebtedness was proper because otherwise invalidating the foreclosure sale would be a useless act. Voiding a foreclosure for violation of Section 2923.5 is not inherently a useless act absent tender. The whole purpose of this section is to allow a homeowner an opportunity to at least discuss with the lender the possibility of loan modification. Where such communication does result in loan modification, the homeowner can avoid foreclosure even if he or she would not otherwise be in a position to fully redeem the property at a foreclosure sale. In situations like this, a requirement that the homeowner tender the entire amount of the secured indebtedness would actually defeat the purpose of the statute. PRIVATE RIGHT OF ACTION . It is expected that defendants will state that section 2923.5 does

not afford a private right of action. There is not a consensus among the courts who have considered this issue with Mabry v. Superior Court, 185 Cal.App.4th 208, 217 (2010) (in order to have its obvious goal of forcing
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parties to communicate (the statutory words are assess and explore)

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about a borrowers situation and the options to avoid foreclosure, section 2923.5 necessarily confers an individual right). This case does provide for what Mabry decision mandated that is an injunction till such time the issues of "explore" and "evaluate" are done before the lender has the right to properly foreclose. The lender could legitimately file and record a notice of default now given the efforts of the Plaintiff at this point in time. In September of 2009 the lender had not complied with civil code 2923.5 (agreeing that California legislature would not have enacted this urgency legislation, intended to curb high foreclosure rates in the state, without any accompanying enforcement mechanism). Plus, Section 2923.5 does create a private right of action. The purpose of Senate Bill 1137 was to address the crisis in residential mortgage defaults and foreclosures by protecting litigants like Plaintiff. Whether express language conferring a private remedy is stated, the bill was aimed at providing a remedy for mortgagors in financial straits regarding their loans like Plaintiff. They are the proper party to litigate this cause of action. V. GENERAL ALLEGATIONS/ STATEMENT OF FACTS 11. Plaintiffs, the Johnsons, unknowingly signed the DOT on June 6,

2006 and this was recorded on July 8, 2006 at the Solano County Recorders office [See Exhibit A]. 12. The loan amount of $608,000.00 was based on the appraisal conducted by an agent of COUNTRYWIDE. They were told that the comps at that time around their neighbourhood were in the $780K figure. Plaintiffs were induced in this low interest loan, no money down and were not fully explained the consequences of an ARM mortgage.

They relied on broker Tonda Herndon and unknowingly signed, to their

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detriment, the loan documents. 13. The interest changed and rose dramatically. That was when the Plaintiffs started to thoroughly look at their loan documents and were aghast to discover that their income was inflated it showed that they were making $22,000.00 per month. In realty, the Johnsons were only making $6,000 to $7000.00 per month! Plaintiffs allege that the numbers were forged including the inflated appraisal so that they could obtain this $608,000.00 loan. 14. Plaintiffs attempted to pay the inflated monthly mortgage but just were not able to financially. Therefore, from 2010 to present they were the ones that took the initiative and contacted BOFA NA themselves and were always stonewalled by BAC and BOF A NA. 15. They contacted their previous broker, Tonda Herndon, who assisted in obtaining a loan modification. The Johnsons started to pay their new loan modification payments. However, this was only a trial loan modification. It is known that the major lenders implemented President Obamas Making Home Affordable Loan Modification Program (HAMP). The Johnsons were given this option and the 3-month trial loan mod started. Thus, after this trial period was over, the Johnsons expected a permanent loan modification. This is where the problem comes in, which also, affects many homeowners that are n this HAMP program. 16. Because of their desire to obtain a permanent loan modification and also to obtain a fixed reasonable interest rate, the Johnsons paid approximately $30,000.00 to reinstate their loan and/or to lower the principal. Later on, they discovered that the trial loan modification only lowered the monthly payment but not the interest rate. They ewer informed by their broker that they could not lower the principal due to the comps in their area, which is untrue.
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17.
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Because a final loan modification amount could not be generated.

Plaintiffs believe and thereon allege that if B OF A NA and BAC did not have the intent to provide a loan modification at all they are just trying to obtain additional loan payments from them and ultimately time released the foreclose of the property onto the marketplace. And, in essence, it appears that this is true. The Notice of Default was recorded on August 19, 2011. The defendants are obviously setting the grounds for foreclosure. 18. Plaintiffs wanted a permanent loan modification and they have started this before April 13, 2011. Their case was on appeal months before this date. Plaintiffs supplied BAC and B OF A NA with all documents required, timely. Before April 13, 2011, plaintiffs noticed that every time they would call for status, the agent either would no longer be employed, or that they never heard of that person or that person could not be reached. Plaintiffs were extremely concerned because they have not made payments and their loan documents were in limbo due to the stonewalling as described in this paragraph. Plaintiff called so many times that they soon discovered, that the Agents Badge Number was actually a telephone extension. 19. Therefore, plaintiff started documenting his attempts [see Exhibit D] on April 13, 2011. Plaintiff submitted their appeal for a loan modification in 2010. This log notes that from April 2011 to August 2011 they were always told to wait on this appeal. As of August 2, 2011 they were informed by Oscar #8520 that their loan is in regular status. However, RECONTRUST recorded the NOD on August 19, 2011 and on August 25, 2011, plaintiffs were informed by Terrence #2683 that their property was in foreclosure. What is perplexing about this was that just on September 1, 2011 after the NOD was filed, Courtney

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#2808 informed plaintiffs that their financials were updated in

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June and July. 20. What the media has displayed to the public of lenders atrocious actions in truly not providing a loan modification, but merely by offering led plaintiffs to hire counsel in order to expedite a permanent loan modification and to substantiate where his $30,000 went to. Plaintiffs are now again resubmitting their documents with the hopes of obtaining a permanent loan modification. 21. With regard to the NOD, plaintiffs contend that they were NOT contacted by Pomona Townsend as indicated on her Declaration of Due Diligence. It was plaintiff who kept contacting the bank even BEFORE the NOD was recorded on August 19, 2011 [See Exhibit D]. Ms. Townsend signed this Due Diligence again, this is one of the many robo-signing instances BOFA NA is known for. There were no letter, there were no telephone calls, there was no offer to modify or offer alternatives as mandated by Civil Code 2923.5. Thus, the NOD itself is void. 22. In a nutshell, plaintiffs were induced into a loan the Deed of Trust they signed this contract, they relied on their broker who did not explain what a no money down ARM loan would entail, plaintiffs relied, to their detriment as this loan was destined to fail. Not only were their incomes inflated, so was the appraisal. Moreover, their trial loan modification merely lowered the payments and not the interest rate. 23. As a result thereof, plaintiffs have been damaged plaintiffs reasonably believed that defendants after accepting the trial modification payments and that fact that they paid approximately $30,000 against the loan that they would get a permanent modification. Instead, they have been damaged in the costs associated with bringing this action to enjoin Defendants and each of them from unlawfully depriving Plaintiff from ownership of the subject property.
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GENERAL FACTS
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The common facts herein include those facts set forth above in the prior sections of this Complaint. Under California Civil Code 1709 it is unlawful to willfully deceive another with intent to induce him to alter his position to his injury or risk. Under California Civil Code 1710, it a deceit to do any one or more of the following: (1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true; (2) the assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true; (3) the suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact; or, (4) a promise, made without any intention of performing it. Under California Civil Code 1572, the party to a contract further engages in fraud by committing any other act fitted to deceive. In this instance, defendant COUNTRYWIDE was obligated to disclosed that to induce plaintiffs to enter into the mortgage, they caused the appraised value of plaintiffs homes to be overstated. Moreover, they also inflated their income. COUNTRYWIDE had to disclose that to disguise the inflated value of plaintiffs home, Countrywide was orchestrating the over-valuations of homes throughout plaintiffs community. COUNTRYWIDE planned to sell the mortgage together with other mortgages as to which it also intended not to disclose the true financial condition of the borrowers of the true value of their homes or mortgages. Plaintiffs were caught into this trap. They were induced and blinded by the no money down scheme. COUNTRYWIDE affirmatively misrepresented its underwriting processes, the value of its mortgages and they intended the plaintiffs to rely upon its mispresentation and
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made those misrepresentations to create false confidence with their

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original lender and to further its fraud on borrowers and investors. VI. FIRST CAUSE OF ACTION PROMISSORY ESTOPPEL [against BANK OF AMERICA, BAC HOME LOANS and COUNTRYWIDE] Plaintiffs re-allege and incorporate by reference the allegations On June 6, 2006, plaintiffs signed the DOT and were recorded on

24. 25.

contained in paragraph 1-23. July 8, 2006. Defendant COUNTRYWIDE induced plaintiffs into signing this contract with a no money down, no interest ARM loan. Plaintiffs income was inflated and when the interest rage started to hit, they could not afford the monthly mortgage payments. 26. In 2010, plaintiffs on their own contacted BOFA NA and BAC through their broker, who worked on their DOT. Defendants promised, assured and represented to plaintiffs that they could and would modify this mortgage but only if they were in default in order to qualify. Plaintiffs had no choice. In their minds, this was unconscionable that they had to be in default. There was absence of meaningful choice. Absence of meaningful choice occurs when a party to a bargain has little choice but to accept the terms stated by the other party. Hidden Terms in an agreement may qualify to show absence of meaningful terms. See A & M Produce Co. v. FMC Corp. 135 Cal.App.3d 473, 486 (1982). 27. In doing so, Defendants knew, or should have known that Plaintiff would be reasonably induced to rely on defendants promise, assurance and representation to modify their loan by participating in Defendants Loan Modification Program and not seek alternative financial remedies to rescue the property. 28. Plaintiffs reasonably relied on Defendants promise, assurance and representing by entering in this program. Plaintiffs discovered, after their _______________________ 16__________________________ COMPLAINT

trial loan payments ended, that BAC and BOFA NA only lowered the
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monthly payments and not the interest rate.. They sought for a permanent loan modification and paid approximately $30,000 to the banks with the hopes of lowering their monthly payment. Their documents have been in the appeal process since the beginning of 2011 and now, defendants recorded the NOD [See Exhibit B.] The elements of a promissory estoppels claim are (1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) [the] reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppels must be injured by his reliance.. (Advance Choices, Inc., v. State Dept. of health Services (2010) 182 Cal.App.4th 1661, 1672.) 29 Plaintiffs do not know where they stand with respect to their loan modification [see Exhibit D]. They were promised an appeal to obtain a final loan modification, yet a Notice was Default was recorded in August 2011. They were told that their home is in foreclosure yet on September 1, 2011 they were told that their financials were updated. They defaulted on their loan based on the promise that was provided by defendants; they relied on BAC and BOFA that they would obtain a permanent loan modification but the appeal is still in process. The fact that they recorded the NOD only means that the next step would be a Trustee Sale. Plaintiffs are already injured by this reliance the fact that they paid approximately $30,000 to the bank yet still, defendants have not come up with a final monthly loan amount. Plaintiffs will also be irreparably harmed if a Notice of Trustee Sale will be posted, it is just a matter of time. 30. Thus, the question here is simple. Did BAC and/or their entities and agents made and kept a promise to negotiate with the Plaintiffs or whether or not the bank promised to make a loan or more precisely, modify a loan. Plaintiffs promissory estoppels claim is not based on a
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promise to make a unilateral offer but on a promise to negotiate in an

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attempt to reach a mutually agreeable loan modification.

31.

Injustice can be avoided by enforcing Defendants promise,

assurance and representation completely. WHEREFORE, plaintiffs pray judgment against Defendants and each of them as hereinafter set forth. SECOND CAUSE OF ACTION QUIET TITLE As to All Defendants and Does 1-XX 32. 33. Plaintiffs reallege and incorporate paragraphs 1 to 31 as though Plaintiffs seek to quiet title against the claims of Defendants and all fully set forth herein. persons claiming any legal or equitable right, title, estate, lien or adverse interest in the property as of the date the Complaint was filed. (Cal. Code Civil Procedure Section 760.20). 34. Plaintiffs are the owners of the subject property and are entitled to possession and control of the real property and improvements located at this property. 35. Plaintiffs obtained a secured loan from COUNTRYWIDE on July 8, 2006 [recordation date]. In order to secure the loan, they executed a promissory note and secured that note with a trust deed on the subject property. 36. On or about August 19, 2011, defendants recorded a notice of
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default upon the property. .

37.
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This Notice of Default, Exhibit B to this complaint, listed two

separate and distinct beneficiaries. It listed the original lender and beneficiary, COUNTRYWIDE [now it stated BOFA NA as successor to Countrywide]. It immediately thereafter listed RECONTRUST as the separate and distinct beneficiary. This misrepresentation in the Notice of Default was a direct violation of California Civil Code2924c(b)(1). 38. MERS is always a nominee and never the actual holder or owner of a promissory note, or deed of trust for that matter. It is never an actual beneficiary. MERS is essentially a sophisticated electronic bulletin board for the recording of mortgage information. MERS never is the actual assignee of the promissory note or trust deed. 39. In order to initiate a foreclosure proceeding, a beneficiary must have a legal or equitable right, title or interest in the promissory note. The current holder and owner of the note and is always a proper party to initiate a non-judicial foreclosure proceeding. In order to invoke the rights under California nonjudicial foreclosure law, a beneficiary must establish an unbroken chain of transfers from prior note holders when challenged to establish its right to foreclose. 40. Plaintiffs have never been advised as to any transfers concerning the alleged beneficiary of this alleged mortgage note. 41. These defendants did not have the legal right initiate foreclosure proceedings upon plaintiffs property. 42 Plaintiffs therefore seek a judicial declaration that the title to the subject property is vested solely in Plaintiffs and that defendants have no right, title, estate, lien or interest in the property and that defendants and each of them be forever enjoined from asserting any right, title, estate, lien or interest in the property adverse to plaintiffs. THIRD CAUSE OF ACTION DEMAND FOR ACCONTING [As to B OF A AND BAC HOME LOANS]
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

43.

Plaintiffs hereby incorporate by reference each and every one of

the preceding paragraphs as if the same were fully set forth herein. 44. Plaintiffs assert that as a result of the aforementioned conduct of defendants, and each of them, these defendants have received proceeds while plaintiffs were undergoing their trial modification and again paid more money to lower the monthly payments and to obtain a final modification. 45. The amount of money due from Defendants, and each of them, to plaintiff is unknown to plaintiffs at this time and cannot be ascertained without an accounting of the proceeds after the sale of the subject property. Plaintiffs are informed and believe and thereon allege that the amount due to plaintiff exceeds jurisdiction of this court. 46. Plaintiff demanded his statements and an accounting of the amortization schedule and calculated interest for the aforementioned loan modification from defendant B OF A. Defendant has failed and refused and continues to fail and refuse to render such an accounting. 47. Generally, there is no fiduciary duty between a lender and borrower. Perlas v. GMAC Mortg.,LLC, 187 Cal. App. 4th 429, 436 (2010). Any other duty to provide an accounting only arises when a written request for one is made prior to the Notice of Trustee being recorded. CCC 2943(c). In this instance, that was the first thing plaintiff requested was where his payment of approximately $30,000.00 went to when they attempted to get a final loan modification. They also noticed that was owed, based on the Notice of Default [Exhibit B] was $102,209.39. Therefore, what happened with the $30,000? Plaintiff also demanded where their previous payments went to before this appeal process began or if there even was an appeal. To date, the only thing plaintiff received was that telephone call made on September 1, 2011
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[See Exhibit D] that their documents/financials were current in June and

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July. 48. WHEREFORE, plaintiff prays judgment against Defendants and each FOURTH CAUSE OF ACTION FRADULENT INDUCEMENT, FRAUD and BREACH OF CONTRACT [As to Countrywide, Bank of America, BAC and Does 1 to XX] of them as hereinafter set forth.

49.

Plaintiffs hereby incorporate by reference each and every one of the

preceding paragraphs as if the same were fully set forth herein. Fraudulent Inducement 50. Plaintiffs were induced into signing the contract DOT to their

detriment. They were enticed by the fact that there was no money down, no interest ARM mortgage. They were not fully disclosed of the upcoming interest rate charges. More alarming, was that their incomes were grossly inflated their financial stated that they were making 422,000.00 per month where in reality, the Johnsons were only making $6000$7000.00 per month. 51. Plaintiffs still relied on the same broker to obtain a loan modification. Though they were given lower monthly payments, the interest rates did not change. On top of that, after the trial loan modification was over and plaintiffs paid approximately $30,000.00 to have the final monthly payment lowered, they were denied and are now appealing this process. 52. Defendants represented that after this trial program, that they would have the opportunity to cure default [where they forced to] through reinstatement, payoff, permanent loan modification or some other workout.
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53.
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At the time defendants made these representations, defendants

knew t this was not true. They had no intention to provide an opportunity to cure prior to start foreclosure on plaintiffs home. Defendants made these representations with the purpose of persuading plaintiffs to enter into this modification. 54. Plaintiffs reasonably relied on these representations. The elements of fraud are: (1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity; (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damages. Lazar v. Superior Court, 12 Cal. 4th 631, 638, 49 Cal. Rptr. 2d 377 (1996).BANK OF AMERICA and BAC HOME had no intention of providing plaintiffs a permanent loan modification. They knew they would benefit by getting monthly payments from their trial loan modification which they have known all along that the Johnsons would not get a permanent loan modification. And, BAC and B OF A received almost $30,000.00 from the plaintiffs because plaintiffs relied on this premise that this may lower their future monthly payments. They induced reliance on the plaintiffs to their detriment. Plaintiffs are now facing damages losing their home. Plaintiffs request that the court order BOFA NA and BAC allow specific performance of what they promised as a remedy provide an accounting, obtain a reasonable permanent loan modification and/or reinstate their loan. Breach of Contract 55. When Plaintiffs signed the DOT, they knew they were signing a

binding contract. They paid their monthly mortgage as agreed upon and immediately contacted their broker and lender when they could not afford the monthly mortgage when the interest rates started to hit because they were not given full disclosure of the consequences of what will occur with a no money down, ARM loan. Defendants breached the contract in _______________________ 22__________________________ COMPLAINT

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

1) [See Exhibit A] Paragraph 24 of the DOT: Substitute Trustee Lender, at its option, from time to time appoint a successors trustee to any trustee appointed hereunder by an instrument executed and acknowledged by Lender and recorded in the office of the Recorder of the county in which the property is located..Paragraph 24 of the DOT: Lender shall give notice to borrower prior to acceleration following borrowers breach of any covenant.the notice shall specify (a) the default; (b) the action required to cure the default.. BAC, RECONTRUST did not comply with Civil Code 2924 et seq in that the Corporate Assignment Deed of Trust was not recorded until September 19, 2011 AFTER the NOD was recorded on August 19, 2011. Therefore, BAC, RECONTRUST and BOFA NA did not have the authority to record the NOD. Thus, the NOD is voidable. They also breached by not complying with Paragraph 24 of the DOT. They were not given the opportunity to cure the default it was plaintiffs themselves who initiated the loan modification process. The Loan Modification Process Plaintiffs followed, as agreed upon, the terms of the loan modification. They paid the monthly payments and realized that the lenders only lowered the monthly payment but not the interest rate. Since the end of last year to this present day, plaintiffs are still being stonewalled by BAC and BOFA [See Exhibit D]. Moreover, they were coerced into defaulting their loan because they were told they could not qualify for a loan modification unless they defaulted, to their detriment. BAC and B OF A breached the contract because they did not perform as promised in that they recorded a Notice of Default and at the same time plaintiffs were told that their financials were updated and again, at the same time were told that their home is in foreclosure! FIFTH CAUSE OF ACTION TO CANCEL DEED OF TRUST (Against all Defendants)

_______________________ 23__________________________ COMPLAINT

56.
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Plaintiffs reallege and incorporate by reference the allegations in all The Deed of Trust is voidable. Plaintiffs were fraudulently induced

paragraphs above as though fully set forth at this place. 57. into entering a loan that was set up to fail. Their incomes were inflated. They were not given full disclosure the terms of the DOT. Pursuant to California Civil Code Section 3412, this trust should be cancelled. 59. 3412. SIXTH CAUSE OF ACTION WRONGFUL FORECLOSURE Violation of Cal. Civil Codes 2923.5 and 2924 (As to all RECONTRUST, MERS, B OF A, BAC HOME LOANS) 60. 61. Plaintiffs reallege and incorporate by reference the allegations in Plaintiffs allege that at all times mentioned herein the Subject Plaintiffs are therefore entitled to have the Deed of Trust adjudged void or voidable and cancelled, pursuant to California Civil Code Section

all paragraphs above as though fully set forth at this place. Property was their owner-occupied residence and that Plaintiffs were member of the class of persons protected under Civil Code 2923.5 and 2924. Plaintiffs allege further that all times mentioned herein Defendants had a duty to comply with the foreclosure avoidance and workout plan requirements of Civil Code 2923.5, the recording requirements of Civil Code Section 2932.5. Section 2923.5 affects any entity seeking to foreclose on owner-occupied, residential real property in connection with loans made from January 1, 2003 through December 31, 2007, inclusive. In California, Civil Code Section 2923.5 is a private right of action and there is no tender requirement. Mabry v. Superior Court (2010) WL 2180530 (Cal.App. 4 Dist.) According to the Court in Mabry it would "defeat the purpose of the statute to require the borrower to tender the

_______________________ 24__________________________ COMPLAINT

full amount of the indebtedness prior to any enforcement of the right to

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _______________________ 25__________________________ COMPLAINT

be contacted prior to the Notice Default." Moreover, the Perata Mortgage Relief Act, Senate Bill 1137, codified as California Civil Code Section 2923.5, and related statutory provisions, govern the disposition of this action. The crux of the statute is that lenders and servicers with loans originated in California are required to make good faith efforts to effectuate alternatives to the draconian remedy of foreclosure, such as loan modifications, prior to the right to take any action to foreclose on a loan. The recorded documents filed at the Solano County Recorder prove that defendants failed to comply with California Civil Code 2923.5:

August 19, 2011 date Notice of Default was recorded September 19, 2011 date MERS assigned to BAC and B OF A

This code specifically states that the trustee MAY NOT file the Notice of Default until 30 days after contact is made to the borrower. Plaintiffs were still communicating with BAC and B OF A [See Exhibit D]. Just on September 1, 2011 they were informed that their financials were updated yet the NOD was filed on August 19, 2011. Moreover, there was NO contact to the plaintiffs. They were the ones calling the bank. Thus, BAC HOME, BANK OF AMERICA, MERS and RECONTRUST failed to comply with this section therefore the Notice of Default is VOIDABLE as a matter of law. 62. BAC HOME stated on their Declaration [Exhibit B] that they tried with due diligence to contact the borrower under California Civil Code Section 2923.5. This was a robo-signer who signed this declaration. There was no assessment of financial situations nor were they given any measures to avoid foreclosure. Defendants failed to advise Plaintiffs of their options to avoid foreclosure. Because of these failures to comply

with Section 2923.5, any Notice of Default allegedly underlying any Notice
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of Trustees Sale was voidable. 63. As to other related statutory provisions, Defendants failed to offer Plaintiffs a loan modification plan. One was already in the works and on appeal but the fact is that before or after August 19, 2011, no attempt was made to contact the plaintiffs. Thus, any purported Notice of Default and/or Notice of Trustees Sale would be not in compliance with Civil Code Section 2923.6, subdivisions (a)(b)(c). VIOLATION OF CALIFORNIA CIVIL
CODE 2923.6

Pursuant to Civil Code 2923.6 (a), "The Legislature finds and declares that any duty servicers may have to maximize net present value under their pooling and servicing agreements is owed to all parties in a loan pool, not to any particular parties, and that it servicer acts in the best interests of all parties if it agrees to or implements a loan modification or workout plan for which both of the following apply: (I) The loan is in payment default, or payment default is reasonably foreseeable, and (2) The anticipated recovery under the loan modification or workout plan exceeds the anticipated recovery through foreclosure on a net present value basis." 64. Defendants failed to file a Notice of Default as regarding the loan

secured by the subject property, as per Civil Code Section 2924(a), subdivisions (1) (A), (B), (C), (D), precluding Plaintiffs from taking steps to avoid a Trustees Sale of the subject property. They believe one will be forthcoming. _______________________ 26__________________________ COMPLAINT

65.
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Plaintiffs further allege that RECONTRUST, as purported foreclosing

trustee, was at all times herein an agent to both Plaintiffs and defendants BAC HOME fka COUNTRYWIDE and MERS and that RECONTRUST had a duty to plaintiffs to ensure that foreclosure on the Subject Property was conducted fairly and according to prescribed statutory procedures, including those contained in Civil Code 2923.5 and 2924. While defendants MERS AND BAC and QUALITY, owed plaintiff a duty not to conceal material facts concerning the assignments of both the deed of trust and promissory note; advise plaintiff the true identity of the true lender; not to take money from plaintiff on a debt to which they have no rights and; not to make false representations regarding the loan modification. 66. Plaintiff maintains on information and belief that there has been numerous improprieties in the assignment, transfer and exercise of the power of sale contained in the Deed of Trust, and that the alleged trustee, RECONTRUST, is not properly appointed or authorized to foreclose upon the Subject Property and neither or MERS because the assignment of the security instrument only i.e., DOT did not transfer the debt or obligation of plaintiffs to pay. Plaintiffs further alleges upon information and belief that (1) RECONTRUST, BAC HOME and MERS are not assignees who possesses ownership of Plaintiffs original debt under their promissory note executed in favor of the original lender, COUNTRYWIDE [now BAC]; (2) that any purported assignment of Plaintiffs debt or the Deed of Trust securing this debt to RECONTRSUT, MERS AND BAC and DOES 2 to 250, have not been properly assigned, acknowledged and recorded as required under Civil Code 2932.5; (3) that RECONTRUST and BAC cannot lawfully exercise the power of sale appurtenant to the loan and Deed of Trust absent such assignment, acknowledgement and recording of the note, Kelly v. Upshaw (1952) 39 Cal.2, 171, 192; (4) and that these Defendants are therefore
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not entitled to foreclose on the Subject Property pursuant to Code Civil

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Procedure 1084, 2932.5 and 2936. See e.g., Cockerell v. Title Ins. & Trust Co. (1954) 42 Cal.2d 284, 287-293; Neptune Society Corp. v. Longanecker (1987) 194 Cal.App.3d 1233, 1241-1243. 67. See also Civil Code 2936 ("The assignment of a debt secured by mortgage carries with it the security."). RECONTRUST and/or BAC cannot contend that it ever received or recorded a purported assignment of Plaintiffs note from COUNTRYWIDE/BAC. Under Civil Code 2932.5, such assignment and recordation was required prior to RECONTRUST, MERS and BAC the exercise of the Deed of Trust's power of sale. Also, though there is a Declaration of Due Diligence on the recorded NOD, the required declaration under penalty of perjury is not there, thus, making the NOD voidable. How do we really know that they contacted the plaintiffs? 68. As to the factual effect of these deficiencies in the foreclosure process initiated by Defendants, Plaintiffs state that there are damages in the amount of at least $400,000.00, proof to be adduced at trial. Further, contrary to Defendants contention, Plaintiffs do not assert that Section 2923.5 mandates that a loan modification occur. Rather, Plaintiffs takes issue with the egregious conduct perpetrated by Defendants in abnegating their duties under that statutory provision to attempt to avert foreclosure. Additionally, Section 2923.5 does create a private right of action. The purpose of Senate Bill 1137 was to address the crisis in residential mortgage defaults and foreclosures by protecting litigants like Plaintiffs. Whether express language conferring a private remedy is stated, the bill was aimed at providing a remedy for mortgagors in financial straits regarding their loans like Plaintiffs. They are the proper party to litigate this cause of action. 69. Plaintiffs believe and thereon alleges the recorded documents regarding this foreclosure is that they were wrongfully executed,
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delivered, and recorded in that there were improper foreclosure

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procedures not complying with Civil Code section 2923.5 in violation of the terms and conditions of the promissory note and deed of trust and in violation of the duties and obligations of Defendants-beneficiaries and Defendants-trustees to Plaintiffs, all to Plaintiffs loss and damage in that Plaintiffs have been wrongfully deprived of the beneficial use and enjoyment of the subject real property and has been deprived of legal title by forfeiture. SEVENTH CAUSE OF ACTION FRADULENT and NEGLIGENT MISREPRESENTATINO (As to Defendants MERS, RECONTRUST, BAC HOME LOANS) 70. Plaintiffs reallege and incorporate by reference the allegations in all paragraphs above as though fully set forth at this place. 71. In pursuing non-judicial foreclosure, including without limitation, recording the Notice of Default, and mailing said notices to Plaintiffs and others, Defendants, and each of them, falsely represented that they had the right to payment under a note executed by Plaintiffs in favor of the original lender COUNTRYWIDE, and further that they had the right to foreclose in the Deed of Trust on the Subject Property and to sell the Subject Property. 72. Plaintiffs are informed and believe, and based thereon alleges that the true facts are that Defendants are not, and were not in possession of a note secured by the Subject Property, nor are they holders of a note that substantiates their claim to an interest in the Subject Property, or non-holders of a note entitled to payment, as those terms are used in the Uniform Commercial Code 3301, 3309 and, therefore, the Defendants, and each of them, foreclosed non-judicially without a note secured by the Subject Property and, thus, without a right under the law. 73. Plaintiffs are informed and believe, and based thereon alleges that when Defendants, and each of them, misrepresented to Plaintiff and
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others that they had the right to foreclose on the Subject Property, they
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intended to either force Plaintiff to pay large sums of money to Defendants, and each of them (to which they were not entitled under the law) or to force Plaintiff to abandon the Subject Property to Defendants by not resisting the proposed foreclosure sale. 74. Plaintiffs are further informed and believe, and based thereon allege that in notices sent to Plaintiff after their first missed payment, Defendants, and each of them, falsely represented the payoff amount, if any, required to redeem the Subject Property from potential foreclosure by adding costs and charges to the payoff amount that was not justified and proper under the terms of the note, nor were such added costs and charges substantiated by their alleged claims to an interest in the Subject Property, or under applicable law. 75. Plaintiffs reasonably relied on Defendants MERS, BAC HOME LOANS and RECONTRUSTs representations regarding its right to foreclose. Plaintiff further relied to their detriment on Defendant BAC HOME LOANS representations regarding whether any money was owed to it and, if so, the amount due and owing. The elements of negligent misrepresentation are similar to intentional fraud except for knowledge that the representation is false. Charnay v. Cobert, 145 Cal. App. 4th 170, 184-85, 51 Cal. Rptr. 3d 471, 482 (2006). COUNTRYWIDE knew that this was a toxic loan and that plaintiffs had no capacity to pay this loan. Plaintiff was misprepresented in that they were induced to signing this loan because it was no money down, no interest. COUNTRYWIDE and its CEO [as discussed in the above general allegations] knew that these loans were going to fail. In a claim for negligent misrepresentation, the elements are: (1) the misrepresentation of a past or existing material fact; (2) without reasonable ground for believing it to be true; (3) with intent to induce anothers reliance on the fact misrepresented; (4)
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justifiable reliance on the misrepresentation; and (5) resulting damages.

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Id.; see also Alliance Mortgage Co. v. Rothwell, 10 Cal. 4th 1226, 1239, fn. 4, 44 Cal. Rptr. 2d 352 (1995) . What plaintiffs experienced is in synced with the above 1-5. 76. In misrepresenting and inflating the amounts owed and the costs and charges necessary to redeem the Subject Property prior to foreclosure, Defendants, and each of them, damaged Plaintiff in that they made it impossible for Plaintiff to determine the actual amounts due, if any, and thereby substantially decreased the likelihood that Plaintiff would be able to redeem the Subject Property, with the intent that the Subject Property would revert to Defendants, and each of them in the event it was sold at foreclosure. 77. Plaintiffs allege that the conduct of Defendants, and each of them, was in complete disregard for Plaintiffs legal and property rights, and not within the best interest of Plaintiff, or for that matter, the community or district as a whole in light of the vast amount of necessary or unnecessary foreclosures sweeping the community. 78. Plaintiffs reasonably relied on Defendant BAC HOME LOANS representations regarding its right to foreclose. Plaintiffs further relied to their detriment on Defendant RECONTRUST AND BAC HOME LOANSs representations [the fact that they paid the monthly trial payments and an additional $30,000] regarding whether any money was owed to it and, if so, the amount due and owing. 79. Plaintiffs pray that Defendants, and each of them, not be allowed to profit from their conduct in this matter, and that this Court enjoin Defendants from proceeding with the forced sale of the Subject Property. EIGHTH CAUSE OF ACTION FOR VIOLATION OF CALIFORNIA BUSINESS AND PROFESSIONS CODE SECTIONS 17200 ET SEQ.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

80. 81.

(AGAINST BAC, RECONTRUST, MERS AND BOFA ) Plaintiffs incorporate herein by reference the allegations made in California Business & Professions Code Section 17200, et seq.,

paragraphs 1 through 79, inclusive, as though fully set forth herein. prohibits acts of unfair competition, which means and includes any fraudulent business act or practice . . . and conducts which is likely to deceive and is fraudulent within the meaning of Section 17200. 82. As more fully described above, MERS, RECONTRUST, BAC and B OF As acts and practices are likely to deceive, constituting a fraudulent business act or practice. This conduct is ongoing and continues to this date. 83. Specifically, Defendants engage in deceptive business practices with respect to mortgage loan servicing, assignments of notes and deeds of trust, foreclosure of residential properties and related matters by (a) Assessing improper or excessive late fees; (b) Improperly characterizing customers accounts as being in default or delinquent status to generate unwarranted fees; (c) Instituting improper or premature foreclosure proceedings to generate unwarranted fees; (d) Misapplying or failing to apply customer payments; (e) Failing to provide adequate monthly statement information to customers regarding the status of their accounts, payments owed, and/or basis for fees assessed; (f) Seeking to collect, and collecting, various improper fees, costs and charges, that are either not legally due under the mortgage contract or California law, or that are in excess of amounts legally due; (g) Mishandling borrowers mortgage payments and failing to timely or properly credit payments received, resulting in late charges, delinquencies or default; (h) Treating borrowers as in default on their loans even though the borrowers have tendered timely and sufficient payments or have otherwise complied with mortgage requirements or California law; (i) Failing to disclose the fees, costs and charges allowable under the mortgage contract; (j) Ignoring grace periods; (k) Executing and recording false and misleading documents; and
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

(l) Acting as beneficiaries and trustees without the legal authority to do so. 84. Defendants fail to act in good faith as they take fees for services but

do not render them competently and in compliance with applicable law. [See Statement of Facts.] 85. Moreover, Defendants engage in a uniform pattern and practice of unfair and overly-aggressive servicing that result in the assessment of unwarranted and unfair fees against California consumers, and premature default often resulting in unfair and illegal foreclosure proceedings. The scheme implemented by the Foreclosing Defendants is designed to defraud California consumers and enrich the Foreclosing Defendants. 86. The foregoing acts and practices have caused substantial harm to California consumers which even our Attorney General is acting on in that it ordered Bank of America, Chase and other banks to halt foreclosures on October 10, 2010 and to correct their errors. At this time, it is only a matter of time that Bank of America, BAC to finalize a deal to pay $8.5 billion to settle with blue chip investors. The deal comes eight months after the group fired off a letter to Bank of America demanding that it repurchase $47 billion in mortgages that its Countrywide unit sold to them in the form of bonds. The investors have argued that Countrywide's practice of modifying loans found to have faulty paperwork or those written outside of normal underwriting standards breached signed agreements with the investors. By continuing to service bad loans rather than speeding up foreclosures, the group has claimed that Countrywide ran up servicing fees, enriching itself at the expense of investors. The New York Fed is involved because it took over assets held by American International Group Inc., which faltered under the weight of bad home loans that it insured. Bank of America, which paid $4 billion for Countrywide in 2008, has dismissed suggestions that its handling of loan modifications and other efforts to prevent foreclosure have violated the terms of the mortgage-backed securities that the _______________________ 33__________________________ COMPLAINT

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

investors hold. In November, CEO Brian Moynihan said he was in day-to-day "hand-to-hand combat" with investors' demands.3 87. As a direct and proximate cause of the unlawful, unfair and fraudulent acts and practices of Defendants, Plaintiffs and California consumers have suffered and will continue to suffer damages in the form of unfair and unwarranted late fees and other improper fees and charges. 88. By reason of the foregoing, Defendants have been unjustly enriched and should be required to disgorge their illicit profits and/or make restitution to Plaintiffs and other California consumers who have been harmed, and/or be enjoined from continuing in such practices pursuant to California Business & Professions Code Sections 17203 and 17204. Additionally, Plaintiffs are therefore entitled to injunctive relief and attorneys fees as available under California Business and Professions Code Sec. 17200 and related sections. 89. Furthermore, Defendants assessed and collected unlawful fees from

Plaintiff. Such practice was unlawful and unethical and Plaintiff is entitled to injunctive relief and equitable relief in the form of restitution of the fees. NINTH CAUSE OF ACTION UNJUST ENRICHMENT [As to BAC and BOFA] Plaintiffs repeat and re-allege every allegation above as if set forth As a result of the supposed Loan Modification, defendants extracted

90. 91.

herein in full. hundreds of dollars in payments from plaintiffs that they would not have been entitled to collect had they not engaged in the scheme as described herein. 92. Defendants are aware of its receipt of the above-described benefits.
3 Bank of America near $8.5B Mortgage Settlement June 29, 2011- (AP) LOS ANGELES

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93.
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Defendant received the above-described benefits [the trial loan mod Defendant received the above-described benefits to the detriment Defendant continues to retain the above-described benefits to the As a result of defendants unjust enrichment, plaintiffs have

payments and the $30,000 from plaintiffs]. 94. 95. 96. of Plaintiffs. detriment of the Plaintiffs. sustained damages in an amount to be determined at trial and seek full disgorgement and restitution of defendants enrichments, benefits and illgotten gains acquired as a result of the wrongful conduct above. TENTH CAUSE OF ACTION INJUNCTIVE RELIEF 97. Plaintiffs re-allege and incorporate herein as if set forth in full, each

and every allegation contained in paragraphs 1 through 96 inclusive and further allege: 98. Based upon the facts as herein alleged, that BAC and BOFA NA and COUNTRYWIDE failed to provide plaintiffs a loan modification; failed to follow normal underwriting guidelines, failed to disclose after plaintiffs request for accounting where the $30,000 went to, failed to provide plaintiffs with required disclosures,; that BAC, BOFA NA and COUNTRYWIDE misrepresented the type of loan they would be obtaining, namely a conventional mortgage versus a negatively amortized mortgage, plaintiffs have no adequate remedy at law to prevent a foreclosure on their property. 99. Plaintiffs were the obvious victims of predatory lending, in that COUNTRYWIDE and B OF A failed to adequately verify plaintiffs income at the inception of the negotiation of the DOT, during their trial loan modification, thus, fraudulently inducing plaintiffs to enter into the mortgage on the subject property. _______________________ 35__________________________ COMPLAINT

100. Plaintiffs have no adequate remedy at law. Monetary damages are

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inadequate to fully compensate plaintiffs if the subject property is sold at a foreclosure sale. 101. Plaintiffs will suffer irreparable damages if the subject property is sold by way of Trustees Sale, as the subject property is a unique property, warranting injunctive relief. 102. Plaintiffs seek a preliminary injunction, preventing BAC, BOFA, RECONTRUST and/or MERS from foreclosing on the subject property, until a complete judicial determination of the parties are determined in court. WHEREFORE, plaintiffs pray for judgment as more fully set forth herein. WHEREFORE, Plaintiffs pray: 1. that Defendants be prohibited from conducting any sale of the subject real property pending the outcome of this case and or determination of their loan modification; 2. that this Court award Plaintiff damages as against Defendants MERS, RECONTRUST, COUNTRYWIDE, BANK OF AMERICA, BAC HOME LOANS and each of them, jointly and severally, for their malicious and oppressive conduct, and their conscious disregard for Plaintiffs legal and property rights, according to proof at trial. 3. that Defendants BAC HOME LOANS, RECONTRUST and MERS and each of them, be permanently enjoined from any and all attempts to foreclose on the Subject Property unless and until it can present proof that it is entitled, under the law of negotiable instruments in force in California, to enforce the underlying Promissory Note described in the Deed of Trust that is identified in Exhibit A. 4. that Defendants BAC HOME LOANS, MERS, RECONTRUST, and each of them, be ordered to provide an accounting of the loan; 5. that Plaintiff be awarded monetary damages against all of the Defendants, and each of
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them, jointly and severally, in the sum or sums incurred by Plaintiff due to
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _______________________ 37__________________________ COMPLAINT

the need to bring this action, according to proof; 6. that Plaintiff be awarded statutory damages against Defendant RECONTRUST and BAC HOME LOANS a for Unfair Debt Collection practices under the federal and California statutes; 7. that attorney fees be awarded Plaintiffs as may be permitted by law; 8. that pre-judgment interest be awarded Plaintiffs as may be permitted by law; and 9. for a declaration that the NOD recorded at this county and attached as Exhibit B is invalid and does not provide the necessary foundation for the conduct of a trustee sale, as defined by California Civil Code 2924 et seq.; 10. For a declaration that defendants have violated California Civil Code 2924c(b)(1), California Civil Code 2924f, California Civil Code 2924b, California Civil Code 2923.6, and California Civil Code 2923.52. 11. 12. 13. 14. For general and special damages according to proof; For punitive title; For quiet title. for such other and further equitable relief, declaratory relief and

legal damages as may be permitted by law and as the court may consider just and proper. DATED: September MCCANDLESS , 2011 LAW OFFICES OF TIMOTHY L.

_____________________________________ Timothy L. McCandless, Esq. Attorney for Plaintiffs(s): VICTOR D. JOHNSON and FRANCES M. JOHNSON

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _______________________ 38__________________________ COMPLAINT _________________________ FRANCES M. JOHNSON _________________________ VICTOR D. JOHNSON

VERIFICATION
We are the plaintiff and are parties to this action. We have read the within pleading, and on information and belief, believe that the matters therein to be true and on that ground allege that the matters stated therein are true. The matters stated in the foregoing documents are true to our knowledge. We declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed in ________________, California DATED: 2/12/12