Free Amended Complaint - District Court of California - California

Case 3:08-cv-01134-L-LSP

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JANIS L. TURNER (Cal Bar No. 079217) JANIS L TURNER ALC 2515 Camino Del Rio South Ste. 242B San Diego CA 92108 (619)718-4800 (voice) (619)718-4815 (fax) [email protected] Attorney for Plaintiff RICHARD A. CONNORS

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ) ) Plaintiff ) ) vs. ) ) HOME LOAN CORP. dba EXPANDED ) MORTGAGE CREDIT, a Texas Corp. ) MORTGAGE ELECTRONIC ) REGISTRATION SYSTEMS (MERS) a ) Delaware Corp., U.S. BANK NATIONAL ) ASSOCIATION as Trustee for CREDIT ) SUISSE FIRST BOSTON HEAT-2005-2 ) AMERICA'S SERVICING COMPANY ) CAL WESTERN RECONVEYANCE ) CORP., a California Corp. ) ) Defendants ) ___________________________________ ) RICHARD A. CONNORS, an individual Case No 08 CV 1134 L LSP 1st AMENDED COMPLAINT (VERIFIED) VIOLATION OF 15 USCA 1611 ET SEQ. VIOLATION OF 26 USCA 2605 ET SEQ. VIOLATION OF 15 USCA 1602 ET SEQ. VIOLATION OF 15 USCA 1692 ET SEQ And Cal Civil Code § 1788 5 BREACH OF FIDUCIARY DUTY 6 . BREACH OF COVENANT 7. QUIET TITLE 8 . DECLARATORY RELIEF Jury is Demanded 1. 2. 3. 4.

Comes now Plaintiff RICHARD CONNORS who alleges as follows: JURISDICTION 1. Jurisdiction within this court is predicated upon various Federal questions arising under the United States Code including but not limited to 15 USCA § 1640 et seq. Commonly know as the Truth in Lending Act (TILA): 12 USCA § 2605 the Real Estate Settlement Procedures Act (RESPA) and 15 USCA § 1602 et seq. commonly known as the Homeowners Equity Protection Act, as well as 15 USCA §1692 Commonly know as the Fair Debt Collection Practices Act 2. 1 st Amended Complaint - CONNORS 1

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Plaintiff further pleads jurisdiction pursuant to the doctrine of pendente jurisdiction as to various related State Law causes of action. VENUE Plaintiff pleads venue within this district. He is a resident within said district, and as the Defendants in each of them have or are doing business within the district and further as the pendente causes of action pursuant to California law concern real property within the County of San Diego. PARTIES Plaintiff RICHARD A. CONNORS is an individual and at all times relevant hereto was a resident in the city of Escondido, County of San Diego State of California. Defendant HOME LOAN CORPORATION dba EXPANDED MORTGAGE CREDIT, (HOME LOAN) is a Texas Corporation at all times relevant hereto doing business as a financial institution providing mortgages on real property. Defendant MORTGAGE ELECTRONIC REGISTRATION SYSTEMS (MERS) is a Delaware Corporation at all times relevant hereto in the business all of an acting as nominee for the lender within the mortgage herein. Defendant U.S. BANK NATIONAL ASSOCIATION (US BANK)is a Corporation designating itself as trustee for CREDIT SUISSE FIRST BOSTON HEAT-2005-2 . Defendant AMERICA' S SERVICING COMPANY (ASC) is a business entity form unknown with its principal offices located in Des Moines Iowa. Defendant CAL WESTERN RECONVEYANCE CORPORATION ( CAL-WESTERN) is a California Corporation with its principal place of business located at 525 E. Main St. El Cajon California. Plaintiff respectfully requests of the court leave to add new or further Defendants by leave of Court when and if such shall become known. COMMON ALLEGATIONS On or about November 7, 2003, Plaintiff RICHARD A. CONNORS (hereinafter CONNORS) purchased certain real property commonly known as 402 Paso del Norte, 1 st Amended Complaint - CONNORS 2

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Escondido, County of San Diego, State of California. Said property bearing the Assessors Parcel Number (APN) 187 ­ 500 ­ 21, and more fully described in the grant deed and legal description appended hereto and incorporated by reference as (Exhibit A). Thereafter, on or about November 19, 2004, Plaintiff CONNORS refinanced the property with a loan through Defendant HOME LOAN by means of an Adjustable Rate Promissory Note appended hereto and incorporated as (Exhibit B). Said Adjustable Rate Note was based upon the LIBOR six-month adjustable rate. Plaintiff alleges that Defendants and each of them neither explained the workings of all of the rate, how it is computed nor its inherent volatility. Further, on information and belief Plaintiff alleges that the Defendants charged and obtained improper fees for the placement of his loan as "sub-prime" when he qualified for a prime rate mortgage which would have generated less in fees and interest. The loan was thereafter secured by a deed of trust to Defendant HOME LOAN and MERS as a beneficiary (Exhibit C). On information and belief and by means unknown, that debt was thereafter securitized and fractionalized and converted into securities traded across duly authorized public markets. On information and belief Plaintiff alleges that the service of the purported Mortgage was without his knowledge in some means transferred from or by defendant AMERICA'S SERVICING COMPANY either completely or by association or other means unknown to defendant U.S. BANK NATIONAL ASSOCIATION who unknown to CONNORS provided services in various forms to be determined to others which were of such a nature as to render them a "Servicer" within the definition found within 26 USCA § 2605 Plaintiff CONNORS is, as he informed all of those involved in this mortgage, selfemployed and as a result he experienced some cash flow problems in early 2008. As he had experienced cash flow problems and had begun to receive letters and other communications concerning collection of his mortgage. Plaintiff therefore began to send communications to AMERICA'S SERVICING COMPANY the service for the mortgage 1 st Amended Complaint - CONNORS 3

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he sought to obtain information concerning the actual ownership and status of the mortgage. A copy of those letters is appended hereto as (Exhibit D). Plaintiff has received no satisfactory response and further was not informed that all or a substantial portion of the servicing functions had been in some form transferred to defendant U.S. BANK, On or about March 11, 2008, Plaintiff received a Notice of Default executed by Defendant CAL WESTERN RECONVEYANCE CORPORATION (CAL WESTERN) appended hereto and incorporated by reference as (Exhibit E). Immediately after the receipt of the Notice of Default Plaintiff CONNORS duly sent to all Defendants a duly executed demand for validation demanding information including but not necessarily limited to production of all documents relative to the purported mortgage including the loan documents as well as all documents evidencing all purchases, sales, alienation or other transfers the purported mortgage, On information and belief he alleges that he received not documents which were responsive to these demands. He did receive various letters but none were, on information and belief properly responsive. Thereafter, on or about June 12, 2008, Defendant CAL WESTERN caused to be filed a notice of trustees sale to take place on July 3, 2008. Said notice is incorporated by reference and appended hereto as (Exhibit F). FIRST CAUSE OF ACTION VIOLATION OF 15 USCA 1611 ET SEQ. (ALL DEFENDANTS EXCEPT CAL-WESTERN) Plaintiff repeats and realleges each and every allegation contained in paragraphs 1 through 25 inclusive and incorporates same as though set forth at length. On information and belief Plaintiff alleges that the Defendants and each of them is directly or though agents or employees entities or persons actively involved in the extension of credit as said term is defined under the Truth in Lending Statute (TILA). 1 st Amended Complaint - CONNORS 4

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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 35. 34. 33. 31. 32. 30. 29. c. b. 28. On information and believe Plaintiff alleges that Defendants and each of them being subject to the requirements of the Truth in Lending Act have violated the requirements of the said act in that among other things: a. They have refused and continued to refuse to validate and otherwise make a full accounting and required disclosures as to the true finance charges and fees. They have improperly retained funds belonging to Plaintiff in amounts to be determined. To disclose the status of the ownership of said loans.

Plaintiff further alleges that these violations are such as to require rescission and or cancellation of the loan herein and return of all funds received by Defendants from Plaintiff. Plaintiff further alleges that he is entitled to compensatory damages and an amount to be determined at trial. Plaintiff further alleges that they are also entitled to attorney fees according to statute. On information and belief Plaintiff alleges that the Defendants acted in violation of the act, willfully, maliciously, oppressively and fraudulently and in conscious disregard for the rights of Plaintiff and as such Plaintiff is entitled to punitive damages. SECOND CAUSE VIOLATION OF 26 USCA 2605 ET SEQ. (ALL DEFENDANTS EXCEPT CAL WESTERN) Plaintiff repeats and realleges each and every allegation contained in paragraphs 1 through 32 inclusive and incorporates same as though set forth at length. On information and belief Plaintiff alleges that Defendants and each of them are such as to fall within the requirements of the Real Estate Settlement Procedures Act (RESPA). On information and belief Plaintiff alleges that the Defendants and each of them placed loans for the purpose of unlawfully increasing and otherwise obtaining yield spread fees and amounts in excess of what would have been lawfully earned.

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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. 42. 41. 40. 39. 38. 37. 36. On information and belief Plaintiff further alleges that in addition to the requirements of RESPA Defendants ASC and US BANK acted either individually or jointly as "Servicers as that term is used within the act and either individually or jointly violated the requirements of 26 USCA § 2605 (b) in that the servicing contract or duties thereunder were transferred or hypothecated with out required notice Plaintiff further alleges that these violations are such as to require rescission and/or cancellation of the loan herein on and return of all funds received by Defendants from Plaintiff. Plaintiff further alleges that he is entitled to compensatory damages at an amount to be determined at trial. Plaintiff further alleges that they are also entitled to attorney fees according to statute. THIRD CAUSE OF ACTION VIOLATION OF 15 USCA 1602 et seq. (ALL DEFENDANTS EXCEPT CAL WESTERN) Plaintiff repeats and realleges each and every allegation contained in paragraphs 1 through 39 inclusive and incorporates same as though set forth at length. On information and belief Plaintiff alleges that the mortgage obtained by him through Defendant HOME LOAN and thereafter by means unknown obtained and enforced by other Defendants herein falls within the purview 1602 et sec. commonly known as the Home Ownership and Equity Protection Act of 1994. On information and belief Plaintiff further alleges that the within loan was placed in violation of the above act in that it was placed and administered and otherwise utilized without regard to Plaintiff's income or cash flow and with the intention of inducing default. Plaintiff became aware of this extension upon discovery of the intent to wrongfully foreclose upon and sell his property. 1 st Amended Complaint - CONNORS 6

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44.

As a direct and legal consequence of the above conduct, Plaintiff has been damaged in amounts according to proof at time of trial. FOURTH CAUSE OF ACTION VIOLATION OF 15 USCA § 1692 and CALIFORNIA CIVIL CODE § 1788 (DEFENDANTS U.S. BANK, ASC and CAL-WESTERN)

45.

Plaintiff repeats and realleges each and every allegation contained in paragraphs 1 through 44 inclusive and incorporates same as though set forth at length.

46.

On information and belief Plaintiff alleges that the above defendants are "debt collectors" either directly or through agents as that term is used in both the United State Code and the California Civil Code at § 1788 et seq.

47.

Plaintiff alleges that he duly and properly on more than one occasion requested validation of the "debt" herein under both codes.

48.

He further alleges that Defendants did not respond to his demands in such a way as to meet the requirements of the act.

49.

He alleges that as such he is entitled to statutory damages under both acts. FIFTH CAUSE OF ACTION BREACH OF FIDUCIARY DUTY (ALL DEFENDANTS EXCEPT CAL WESTERN)

50.

Plaintiff repeats and realleges each and every allegation contained in paragraphs 1 through 49 inclusive and incorporates same as though set forth at length.

51.

At all times relevant hereto Defendants created, accepted and acted in a fiduciary relationship of great trust and acted for and were the processors of property for the benefit of Plaintiff.

52.

Defendant further placed himself in a position of great trust by virtue of expertise represented by and through its employees.

53.

On information and belief Plaintiff alleges that Defendant breached the fiduciary duty owed to the Plaintiff. They have acted and continue to act for their own benefit and to the

detriment of Plaintiff. 1 st Amended Complaint - CONNORS

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54.

Among other things they have placed and negotiated loans without due care to the best interest of Plaintiff or for the protection of his rights thereunder.

55.

As a direct and legal result of said breach of fiduciary duty Plaintiff has suffered economic damage and loss of funds and payment of fees improperly incurred in an amount according to proof at time of trial.

56.

Defendant acted willfully and maliciously oppressively and fraudulently and in conscious disregard of the rights of Plaintiff and as such Plaintiff is entitled to punitive damage. SIXTH CAUSE OF ACTION BREACH OF COVENANT (ALL DEFENDANTS EXCEPT CAL WESTERN)

57.

Plaintiff repeats and realleges each and every allegation contained in paragraphs 1 through 56 inclusive and incorporates same as though set forth at length.

58.

On information and belief Plaintiff alleges that at all times mentioned herein there existed between Plaintiff and Defendants either a direct or implied contractual covenant of good faith and fair dealing requiring Defendants and each of them to safeguard protect or otherwise care for the assets and/or rights of Plaintiff. Said covenant prohibited them from activities interfering with or contrary to the rights of Plaintiff.

59.

On information and belief Plaintiff alleges that the attempt to foreclose upon property lawfully belonging to Plaintiff without production of documents demonstrating the lawful rights for said foreclosure constitutes a breach of the said covenant of good faith and fair dealing.

60.

As a direct and legal result of said acts by Defendants and each of them Plaintiff alleges that he has been damaged legally and proximately in amounts according to proof at time of trial.

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SEVENTH CAUSE OF ACTION QUIET TITLE (U.S. BANK AND ALL DEFENDANTS KNOWN OR UNKNOWN AND CLAIMING ANY INTEREST IN THE PROPERTY) Plaintiff repeats and realleges each and every allegation contained in paragraphs 1 through 60 inclusive and incorporates same as though set forth at length. Plaintiff is the owner in fee and is in possession and control of certain real property commonly known as 402 Paso del Norte, in the City of Escondido, County of San Diego, State of California and more fully described in the grant deed and legal description appended hereto as (Exhibit A) and incorporated by reference. Plaintiff obtained simple title to the above described real property by Grant Deed dated and/or recorded in the office of the Recorder of the County of San Diego as set forth in (Exhibit A). Defendant US BANK claims an interest or estate in Plaintiffs above described property disputing or denying Plaintiffs right to ownership and by contending that ownership is or will rest in them by means of a trustee's sale. Plaintiff alleges that Defendant has no such right of title or estate in said property in that sale proposed will be fraudulent or otherwise illegal and transfer no right to Defendants. Defendant has wrongfully interfered with or threaten to interfere with Plaintiff's use and enjoyment of the above described property in that they threaten to dispossess him. Defendant's threat to dispossess Plaintiff of his home unless and until enjoined or restrained by order of the court will cause grave and irreparable injury to Plaintiff in that he will be deprived of the use and enjoyment of unique property. Plaintiff has no adequate remedy at law for the threatened and continuing conduct in that he will have no home and will lose all he has put into said home. Said loss is not one which can be compensated by mere payment of damages. Plaintiff further alleges that the conduct herein is of such a character as to give hime title to the above described property in fee. 1 st Amended Complaint - CONNORS 9

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SEVENTH CAUSE OF ACTION DECLARATORY RELIEF (ALL DEFENDANTS) Plaintiff repeats and realleges each and every allegation contained in paragraphs 1 through 69 inclusive and incorporates same as though set forth at length. Pursuant to 28 USCA 2201 et seq. a dispute has arisen between and among the Plaintiff and the Defendants herein and each of them as to the duties and obligations of the respective parties with regard to the loan and/or foreclosure. These disputes concern but are not necessarily limited to the ownership and/or right of foreclosure. As these questions concern issues with regard to Plaintiff's home he is thus required to seek this relief. Plaintiff further alleges that a declaration of rights and duties of the parties herein by the court is essential to determine the actual status and validity of the loan and any rights duties and/or obligations as to the enforcement of it. WHEREFORE Plaintiff prays damages and other relief as follows: 1 2. 3 4. 5. Compensatory damages according to proof A judicial declaration of the rights duties and obligations of the parties hereto Statutory damages Punitive damages Injunctive relief including the immediate issuance of a temporary restraining order and thereafter a preliminary injunction to maintain the status quo pending adjudication. Attorneys' fees according to statute

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7. 8.

Costs of suit Such other and further relief as this court shall deem fair equitable and just

Dated: July 3, 2008

JANIS L. TURNER ALC

By_________/s/_______________ Janis L. Turner Esq. Counsel for Plaintiff RICHARD A. CONNORS VERIFICATION I am the Plaintiff in this action. I have read the foregoing Complaint and it is true of my own knowledge except as to those matters stated on information or belief and as to those matters, I believe it to be true. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed this ___3rd___ day of_July_2008, at Escondido County of San Diego State of California.

________/s/__________________ RICHARD CONNORS

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CERTIFICATE OF SERVICE IT IS HEREBY CERTIFIED that on July 3, 2008 the A First Amended Complaint of Plaintiff RICHARD CONNORS with exhibits, was filed electronically with the clerk of the court using the CM/ECF system which will automatically send email notice of filing to the following counsel of record.Additionally as no Defendant has yet appeared they were served with the documents via Knox attorney service and/or via DHL pursuant to the requirements for service of an initial pleading

Dated: July 3, 2008

Janis L. Turner ALC By_____-S-__________ Janis L. Turner, Esq. (Cal Bar No 079217) Attorney for Plaintiff RICHARD CONNORS