Embed Size (px)
Citation preview
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
Cynthia White Ebenstein427 Peach Grove LaneSanta Barbara, CA 93103A Plaintiff, In Pro Per
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA BARBARA
“ANACAPA” DIVISION
1COMPLAINT
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
Cynthia White Ebenstein, an individual, and signatory for CINDY M. WHITE
Plaintiff, vs.
CHASE BANK, N.A. a Successor in Interest to WASHINGTON MUTUAL BANK, N.A.; Successor in Interest to MORTGAGEIT; WELLS FARGO BANK, N.A.; THE BANK OF NEW YORK as trustee for securitized trust STRUCTURED ASSET MORTGAGE INVESTMENTS II TRUST 2006-AR8; CALIFORNIA RECONVEYENCE COMPANY; MORTGAGE ELECTRONIC REGISTRATION SYSTEM, aka “MERS” and DOES 1 THROUGH 100, INCLUSIVE
Defendants.
)))))))))))))))))))))))))))))))
Case No.
COMPLAINT FOR:
1. LACK OF STANDING TO FORECLOSE; WRONGFUL FORECLOSURE
2. FRAUD IN THE CONCEALMENT3. FRAUD IN THE INDUCEMENT
4. INTENTIONAL INFLICTION OFEMOTIONAL DISTRESS
5. QUIET TITLE
6. SLANDER OF TITLE
7. DECLARATORY RELIEF
8. VIOLATIONS OF CALIFORNIACIVIL CODE SECTION 2932.5
9. VIOLATION OF BUSINESS AND PROFESSIONS CODE SECTION 17200 ET SEQ
10. RESCISSION
TABLE OF CONTENTS
Attached Exhibits:
(all documents sent certified Post, or registered mail, have cert. #’s on the documents)
A. Notice Of Mistake, sent to CHASE
2COMPLAINT
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
B. Notice of Claim, sent to TITLE CO.,
C. Cease and Desist, Final Opportunity To Cure, sent to CHASE
D. Notice Of Intent To Preserve An Interest, sent to CHASE
E. Legally Recorded Notice Of Intent To Preserve An Interest including:
Grantor’s Affidavit Of Cancellation For Cause: Fraud
Verified Bonded Durable Notice Of Interest
Verified Claim/Complaint with Affidavit of facts, all as one doc. sent to CHASE.
F. Notice Of Default to CHASE / Invoice, sent to Attorney for CHASE
G. CHASE’S UD Action / Results
H. Level 3 Bloomberg Securitization Audit
I. Forensic Audit
J. Declaration in Support of Complaint
COMES NOW the Plaintiff, Cynthia White Ebenstein, affiant and signatory for CINDY M.
WHITE (“Plaintiff’), complaining of the Defendants, and each of them, as follows:
INTRODUCTION
1. This is an action brought by Plaintiff for declaratory judgment, injunctive and
equitable relief, and for compensatory, special, general, and punitive damages.
3COMPLAINT
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
2. Plaintiff, a homeowner, disputes the Title and Ownership of the real property in
question located at: 427 Peach Grove Lane, Santa Barbara, CA 93103, (the
“Property”), which is the subject of this action.
3. Plaintiff alleges that there is a Breach of Contract because Defendants, and each
of them, never signed any origination documents to create a binding, two party
signature contract, validating a loan.
4. Plaintiff alleges that Defendants, and each of them, never loaned funds from their
own actual accounts, but loaned credit, the Plaintiff’s credit, whereas National
Association Banks cannot loan credit.
5. Plaintiff alleges that the originating mortgage lender, and other parties alleged to
have ownership, have unlawfully sold, assigned, and/or transferred their ownership and
security interest in a Promissory Note and Deed of Trust related to the Property, and,
thus, do not have lawful ownership, or any security interest in Plaintiff’s Property.
6. Defendants, and each of them, cannot show proof of possession, nor the
measures of legal acquisition, receipt, transfer, negotiations, assignment, and true
ownership of the borrower’s original Promissory Note and joined Deed of Trust, which
has resulted in imperfect security interests and claims.
7. Plaintiff’s research found at least fourteen possible acts of fraud. Plaintiff
produced many certified letters, attached as exhibits herein, alleging the discovered
fraud, including demanding a QWR, (titled Notice Of Mistake), and others, and
recorded a Notice of Intent To Preserve An Interest, and recorded a legal Cancellation
for Cause: Fraud, with the Santa Barbara County Recorder’s Office. With many
opportunities to cure, Defendants, and each of them ignored all administrative process,
and cancellation, and did not produce documents demanded by law, and did with malice
and forewarning, unlawfully foreclose upon Plaintiff’s property, on April 18th, 2011.
8. Defendant, (then Plaintiff, CHASE), sued for Unlawful Detainer. Plaintiff (then
Defendant, Cindy M. White) answered with eleven affirmative defenses of fraud for
Defendant (then Plaintiff CHASE) to address, with some or all of the herein attached
letters and recorded cancellation, and requested jury trial. Defendant (then Plaintiff
CHASE) dismissed CHASE’s entire UD action, without prejudice, prior to attending a
4COMPLAINT
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
mandatory readiness and settlement mediation meeting, and filed dismissal on June
29th, 2011. CHASE has not contacted Plaintiff ever again.
9. Plaintiff alleges that an actual controversy has arisen and now exists between the
Plaintiff and Defendants, and each of them. Plaintiff desires a judicial determination
and declaration of her rights with regard to the Property.
10. Plaintiff also seeks redress from Defendants identified herein for damages, for
injunctive relief, and seeks rescission/reconveyance of Title, Quiet Title, based upon:
a. Defendant’s invalid and unperfected security interest in Plaintiff’s Home
hereinafter described;
b. Void “True Sale(s)” violating New York law and express terms of the Pooling
and Servicing Agreement (“PSA”) governing the securitization of Plaintiff’s
mortgage, which is a Trust Agreement required to be filed under penalty of
perjury with the United States Securities and Exchange Commission (“SEC”)
and which, along with another document, the Mortgage Loan Purchase
Agreement (“MLPA”), is the operative securitization document created by the
finance and securitization industry to memorialize securitization transactions
(see attached exhibit: Bloomberg Securitization Audit, with affidavit);
c. An incomplete and ineffectual perfection of a security interest in Plaintiff’s
Home;
d. Violations of California Business and Professions Code §17200, Unfair
Business Practices (see attached exhibit: Forensic Audit Report).
e. A void or voidable Deed of Trust due to improper securitization, for which there
is a reasonable apprehension that, if left outstanding, may cause a serious injury.
THE PARTIES
7. Plaintiff is now, and at all times relevant to this action, a resident of the County
of SANTA BARBARA, State of California.
8. Defendant, CHASE BANK N.A. a Successor in Interest to WASHINGTON
MUTUAL BANK, N.A., (herein collectively as “CHASE”) is a National Banking
Association, doing business in the County of SANTA BARBARA, State of California.
5COMPLAINT
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
Plaintiff is further informed and believes, and thereon alleges, that CHASE, is the
purported participant in the imperfect securitization of the Note (incorporated by
reference herein) and/or Deed of Trust, (incorporated by reference herein), as more
particularly described in this Complaint. Plaintiff is further informed and believes that
CHASE is a participant in fraud in the inducement, fraud in the concealment,
constructive fraud, done in conspiracy with malice and forethought on the Plaintiff.
9. Defendant, MORTGAGEIT, N.A., (herein collectively as “CHASE”) is a
National Banking Association, doing business in the County of SANTA BARBARA,
State of California. Plaintiff is further informed and believes, and thereon alleges, that
MORTGAGEIT is the Originator of the loan and/or the is the purported participant in
the imperfect securitization of the Note (incorporated by reference herein) and/or Deed
of Trust, (incorporated by reference herein), as more particularly described in this
Complaint.
10. Defendant, CALIFORNIA RECONVEYANCE CORPORATION (“CAL
RECON”) is a Corporation doing business in the County of SANTA BARBARA, State
of California. Plaintiff is further informed and believes, and thereon alleges, that CAL
RECON was the foreclosing Trustee of the loan and/or purported participant in the
imperfect securitization of the Note (incorporated by reference herein) and/or Deed of
Trust, (incorporated by reference herein), and wrongful foreclosure, as more
particularly described in this Complaint. Plaintiff is further informed and believes that
CAL RECON is a participant in fraud in the inducement, fraud in the concealment,
constructive fraud, done in conspiracy, with malice and forethought on the Plaintiff.
11. Defendant, WELLS FARGO BANK, N.A. (“WELLS FARGO”) is a National
Banking Association, doing business in the County of SANTA BARBARA, State of
California. Plaintiff is further informed and believes, and thereon alleges, that WELLS
FARGO is the present purported Master Servicer of the mortgage herein and/or is a
purported participant in the imperfect securitization of the Note (incorporated by
reference herein) and/or the Deed of Trust, (incorporated by reference herein), as more
particularly described in this Complaint.
6COMPLAINT
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
12. Defendant, THE BANK OF NEW YORK, (“BANK OF NEW YORK”), is
Trustee for the securitized trust, STRUCTURED ASSET MORTGAGE
INVESTMENTS II TRUST 2006-AR8 (hereinafter referred to as “SERIES 2006-
AR8”). Plaintiff is informed and believes, and thereon alleges that, BANK OF NEW
YORK is a National banking Association, doing business in the County of SANTA
BARBARA, State of California, and is the purported Trustee for the Trust and/or a
purported participant in the imperfect securitization of the Note and/or the Deed of
Trust as more particularly described in this Complaint.
13. Defendant, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.,
is also known as MERS (“MERS”). Plaintiff is informed and believes, and thereon
alleges, MERS is a corporation duly organized and existing under the laws of Delaware,
whose last known address is: 1818 Library Street, Suite 300, Reston, Virginia 20190;
website: http://www.mersinc.org. MERS is doing business in the County of SANTA
BARBARA, State of California. Plaintiff is further informed and believes, and thereon
alleges, that Defendant MERS is the purported Beneficiary under the Deed of Trust
and/or is a purported participant in the imperfect securitization of the Note and/or the
Deed of Trust, as more particularly described in this Complaint.
14. At all times relevant to this action, Plaintiff has owned the Property located at
427 Peach Grove, Santa Barbara, CA 93103 (the “Property”).
15. Plaintiff does not know the true names, capacities, or basis for liability of
Defendants sued herein as Does 1 through 100, inclusive, as each fictitiously named
Defendant is in some manner liable to Plaintiff, or claims some right, title, or interest in
the Property. Plaintiff will amend this Complaint to allege their true names and
capacities when ascertained. Plaintiff is informed and believes, and therefore alleges,
that at all relevant times mentioned in this Complaint, each of the fictitiously named
Defendants are responsible in some manner for the injuries and damages to Plaintiff so
alleged, and that such injuries and damages were proximately caused by such
Defendants, and each of them.
16. Plaintiff is informed and believes, and thereon alleges, that at all times herein
mentioned, each of the Defendants were the agents, employees, servants and/or the
7COMPLAINT
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
joint-venturers of the remaining Defendants, and each of them, and in doing the things
alleged herein below, were acting within the course and scope of such agency,
employment and/or joint venture.
JURISDICTION
17. The transactions and events which are the subject matter of this Complaint all
occurred within the County of SANTA BARBARA, State of California.
18. The Property is located within the County of SANTA BARBARA, State of
California.
FACTUAL ALLEGATIONS
19. Plaintiff executed a series of documents, including but not limited to a Note and
Deed of Trust, securing the Property in the amount of the Note under the guise of a
contract where no fraud occurred, and where all material facts were disclosed to
Plaintiff. The original beneficiary and nominee under the Deed of Trust was MERS.
20. Plaintiff is informed and believes, and thereon alleges, that no Loan exists due
to no proof of a two party signature contract, verifying a loan. Thus, for clarification,
all references to a/the “Loan(s) or loan(s)” herein shall mean “alleged loan(s)”. Any
inequities, or discrepancies in language shall NOT excuse Defendents, or each of them,
from each and every violation of the law, as defined in detail, herein, to be determined
in a court of law.
21. Plaintiff is informed and believes, and thereon alleges, that the Loan was then
securitized, with the Note not being properly transferred to Defendant, BANK OF
NEW YORK, acting as the Trustee for the Securitized Trust. As set forth herein above,
the Securitized Trust was formed by execution of the PSA.
22. Plaintiff is informed and believes, and thereon alleges, that the purchase
mortgage on the Property, the debt or obligation evidenced by the Note and the Deed of
Trust executed by Plaintiff in favor of the original lender and other Defendants,
regarding the Property, was not properly assigned and transferred to Defendants
operating the pooled mortgage funds or trusts in accordance with the Pooling and
8COMPLAINT
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
Servicing Agreement, (herein referred to as “PSA”) of the entities making and
receiving the purported assignments to this trust.
23. Plaintiff alleges that the PSA requires that each Note or Deed of Trust had to be
endorsed and assigned, respectively, to the Trust, and executed by multiple intervening
parties before it reached the Trust. Here, neither the Note nor the Deed of Trust was
assigned to the Securitized Trust by the closing date. Therefore, under the PSA, any
assignments of the Deed of Trust beyond the specified closing date for the Trust are
void.
24. Plaintiff further alleges that even if the Deed of Trust had been transferred into
the Trust by the closing date, the transaction is still void as the Note would not have
been transferred according to the requirements of the PSA, since the PSA requires a
complete and unbroken chain of transfers and assignments to and from each intervening
party. Documents filed with the Securities Exchange Commission (herein referred to as
“SEC”), by the securitization participants allegedly claim that the Note and Deed of
Trust at issue in this case were sold, transferred, and securitized by Defendants, with
other loans and mortgages with an aggregate principal balance of approximately
$1,718,595,000 into the SERIES 2006-AR8, which is a Common Law Trust formed
pursuant to New York law. A copy of the Prospectus Supplement can be found at the
site indicated below.
25. Plaintiff is informed and believes, and thereon alleges, that the SERIES 2006-
AR8 had no officers or directors, and no continuing duties other than to hold assets and
to issue the series of certificates of investment as described in the Prospectus identified
herein below. A detailed description of the mortgage loans which form the SERIES
2006-AR8 is included in Form 424B5 (“the Prospectus”), which has been duly filed
with the SEC, and which can be accessed through the below mentioned footnote.1
26. Plaintiff also alleges that the Note was secured by the Deed of Trust. Plaintiff
alleges that as of the date of the filing of this Complaint, the Deed of Trust had not been
legally assigned to any other party or entity.
1 http://www.sec.gov/Archives/edgar/data/815018/000116231807000567/m0565424b5.htm
9COMPLAINT
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
27. Plaintiff is informed and believes that Defendant, BANK OF NEW YORK,
alleges that it is the “holder and owner” of the Note, and the beneficiary of the Deed of
Trust. However, the Note and Deed of Trust identify the mortgagee and Note holder as
the original lending institution or Mortgage Originator. Documents state that the
original lender allegedly sold the mortgage loan to SERIES 2006-AR8.
28. Plaintiff further alleges that no documents or records can be produced that
demonstrate that prior to the closing date for SERIES 2006-AR8, the Note was duly
endorsed, transferred and delivered to SERIES 2006-AR8, including all intervening
transfers, nor can any documents or records be produced that demonstrate that prior to
the closing date, the Deed of Trust was duly assigned, transferred and delivered to
SERIES 2006-AR8, including all intervening assignments.
29. Plaintiff further alleges that any documents that purport to transfer any interest
in the Note to SERIES 2006-AR8 the Trust closing date are void as a matter of law,
pursuant to New York trust law and relevant portions of the PSA.
30. The link to the SEC and the various documents filed with the SEC regarding the
Note are here: SEC Website: http://www.sec.gov.
31. Plaintiff is further informed and believes, and thereon alleges, that the purported
assignments and transfers of Plaintiff’s alleged debt or obligation, did not comply with
New York law and/or other laws and statutes, and thus, do not constitute valid and
enforceable “True Sales.” Any security interest in the Property was, thus, never
perfected. The alleged holder of the Note is not the beneficiary of the Deed of Trust.
The alleged beneficiary of Plaintiff’s Deed of Trust does not have the requisite title,
perfected security interest, or standing to proceed; and/or is not the real party in interest
with regard to any action taken, or to be taken against the Property.
32. Plaintiff is also informed and believes, and thereon alleges, that at all times
herein mentioned, any assignment of a Deed of Trust without proper transfer of the
obligation that it secures is a legal nullity.
33. As set forth herein above, Defendants, and each of them, violated the express
terms of the PSA which is a Trust Agreement, and which, along with another
document, the Mortgage Loan Purchase Agreement, is the operative securitization
10COMPLAINT
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
document created by the finance and securitization industry to memorialize a particular
securitization transaction. The PSA specifies the rights and obligations of each party to
the securitization transaction to each other, and is a public document on file with the
SEC. More specifically, the PSA requires strict compliance with its procedures and
timelines in order for the parties to achieve their specific objectives.
34. Securitization is the process whereby mortgage Loans are turned into securities,
or bonds, and sold to investors by Wall Street and other firms. The purpose is to
provide a large supply of money to lenders for originating Loans, and to provide
investments to bond holders which were expected to be relatively safe. The reason
procedure for selling the Loans was to create a situation whereby certain tax laws
known as the Real Estate Mortgage Investment Conduit Act (hereinafter “REMIC”)
were observed, whereby the Issuing Entities and the Lenders would be protected from
either entity going into bankruptcy. In order to achieve the desired “bankruptcy
remoteness,” two “True Sales” of the Loans had to occur, in which loans were sold and
transferred to the different parties in the securitization.
35. A “True Sale” of the Loan would be a circumstance whereby one party owned
the Note and then sold it to another party. An offer would be made, accepted, and
compensation given to the “seller” in return for the Note. The Notes would be
transferred, and the Deeds of Trust assigned to the buyers of the Note, with an
Assignment made every step of the way. Furthermore, each Note would be endorsed to
the next party by the previous assignee of record.
36. In order for the Trustee of the Securitized Trust to have a valid and enforceable
secured claim against Plaintiff’s Home, the Trustee must prove and certify to all parties
that, among other things required under the PSA:
a. There was a complete and unbroken chain of endorsements and transfers of the
Note from and to each party to the securitization transaction (which should be
from the (A) Mortgage Originator, to the (B) Sponsor, to the (C) Depositor, to
the (D) Trust, and that all of these endorsements and transfers were completed
prior to the Trust closing dates (see discussion below); and
11COMPLAINT
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
b. The Trustee of the Securitized Trust had actual physical possession of the Note
at that point in time, when all endorsements and assignments had been
completed. Absent such proof, Plaintiff alleges that the Trust cannot
demonstrate that it had perfected its security interest in Plaintiff’s Home, which
is the subject of this action. Therefore, if the Defendants, and each of them, did
not hold and possess the Note on or before the closing date of the Trust herein,
they are estopped and precluded from asserting any secured or unsecured claim
in this case.
37. Plaintiff is informed and believes, and thereon alleges, that pursuant to the terms
of the PSA, the Mortgage Originator (i.e., the original lender herein) agreed to transfer
and endorse to the Trustee for the Securitized Trust, without recourse, including all
intervening transfers and assignments, all of its right, title, and interest in and to the
mortgage loan (Note) of Plaintiff’s herein, and all other mortgage loans identified in the
PSA.
38. Plaintiff is further informed and believes, and thereon alleges, that the PSA
provides that the transfers and assignments are absolute, were made for valuable
consideration, to wit, in exchange for the certificates described in the PSA, and were
intended by the parties to be a bona fide or “True Sale.” Since, as alleged herein below,
True Sales did not actually occur, Plaintiff alleges that the Defendant Trustees are
estopped and precluded from asserting any secured or unsecured claim in this case.
39. Plaintiff is further informed and believes, and thereon alleges, that as a result of
the PSA and other documents signed under oath in relation thereto, the Mortgage
Originator, sponsor and Depositor2 are estopped from claiming any interest in the Note
that is allegedly secured by the Deed of Trust on Plaintiff’s Home herein.
40. Plaintiff is informed and believes, and thereon alleges, that the Note in this case
and the other mortgage loans identified in the PSA were never actually transferred and
delivered by the Mortgage Originator to the Sponsor, or to the Depositor, nor from the
Depositor to the Trustee for the Securitized Trust. Plaintiff further alleges, on
2 The Originator is the lender who originally funded the loan; the Sponsor “collects” or “buys” the loans from different lenders, combines them, and then “sells” them to the Depositor; the Depositor “deposits” the loans into the Issuing Entity Trusts, and then, various bonds and certificates are sold; the Issuing Entity would be the “legal owner” of the Notes, though the actual documents would be held by Custodians.
12COMPLAINT
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
information and belief, that the PSA herein provides that the Mortgage Files of the
Mortgages were to be delivered to SERIES 2006- AR8, which Mortgage Files include
the original Deeds of Trust, herein.
41. Based upon the foregoing, Plaintiff is further informed and believes, and
thereon alleges, that the following deficiencies exist, in the “True Sale” and
securitization process as to this Deed of Trust which renders invalid any security
interest in the Plaintiff’s mortgage, including, but not limited to:
a. The splitting or separation of title, ownership and interest in Plaintiff’s Note, and
Deed of Trust of which the original lender is the holder, owner and beneficiary
of Plaintiff’s Deed of Trust;
b. When the loan was sold to each intervening entity, there were no Assignments
of the Deed of Trust to or from any intervening entity at the time of the sale.
Therefore, “True Sales” could not and did not occur;
c. The failure to assign and transfer the beneficial interest in Plaintiff’s Deed of
Trust to BANK OF NEW YORK, in accordance with the PSA of the
Defendants, as Securitization Participants;
d. The failure to endorse, assign, and transfer Plaintiff’s Note and/or mortgage to
Defendant BANK OF NEW YORK, as Trustee for SERIES 2006-AR8, in
accordance with the PSA;
e. No Assignments of Beneficiary or Endorsements of the Note to each of the
intervening entities in the transaction ever occurred, which is conclusive proof
that no true sales occurred as required under the PSA filed with the SEC; and
f. Defendants, and each of them, violated the pertinent terms of the PSA.
42. Plaintiff, therefore, alleges, upon information and belief, that none of the parties
to neither the securitization transaction, nor any of the Defendants in this case, hold a
perfected and secured claim in the Property; and that all Defendants are estopped and
precluded from asserting an unsecured claim against Plaintiff’s estate.
FIRST CAUSE OF ACTION
LACK OF STANDING
13COMPLAINT
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
(AGAINST ALL DEFENDANTS)
43. Plaintiff re-alleges and incorporates by reference all preceding paragraphs as
though fully set forth herein.
44. An actual controversy has arisen and now exists between Plaintiff and
Defendants specified herein above, regarding their respective rights and duties, in that
Plaintiff contends that Defendants, and each of them, did not have the right to foreclose
on the Property, in violation of, including but not limited to, §
45. Defendants, and each of them, unlawfully foreclosed on an unsecured instrument
because the alleged loan was an adjustible rate mortgage, or “ARM”. Only fixed rate
loans are negotiable instruments qualifying for foreclosure under district 3. ARM’s
must foreclose under district 9, which includes proof of perfection of chain of title.
Defendants, and each of them have failed to perfect any security interest in the
Property. Thus, the purported power of sale by the above specified Defendants, and
each of them, no longer applies. Plaintiff further contends that the above specified
Defendants, and each of them, did not have the right to foreclose on the Property
because said Defendants, and each of them, did not properly comply with the terms of
Defendants’ own securitization requirements, and falsely or fraudulently prepared
documents required for Defendants, and each of them, to foreclose as a calculated and
fraudulent business practice.
46. Plaintiff is informed and believes, and there upon alleges, that the only
individuals who may have standing to foreclose are the collective holders of the Note,
because they have a beneficial interest. The only individuals who are the holder of the
Note are the certificate holders of the securitized trust because they are the end users
and pay taxes on their interest gains. Furthermore, all of the banks in the middle were
PAID IN FULL.
47. Plaintiff requests that this Court find that the purported power of sale contained
in the Note and Deed of Trust has no force and effect at this time, because Defendants’
actions in the processing, handling, and attempted foreclosure of this loan, involved
numerous fraudulent, false, deceptive, and misleading practices including but not
limited to; violations of State Laws designed to protect borrowers. This has directly
14COMPLAINT
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
caused Plaintiff to be at an equitable disadvantage to Defendants, and each of them.
Plaintiff further requests that Title to the Property be rescinded and/or reconveyed back
into Plaintiff’s name, Cynthia White Ebenstein, with Deed of Trust remaining in
beneficiaries’ name during the pendency of this litigation, and deem that any further
attempted sale of the Property to be stayed, deemed “unlawful and void”.
DEFENDANT MERS CANNOT BE A REAL PARTY OF INTEREST
IN A SECURITIZED MORTGAGE
48. Since the creation of Plaintiff’s Note herein and Deed of Trust, Defendant
MERS was named the “beneficiary” of the Deed of Trust.
49. Plaintiff is informed and believes, and thereon alleges, that Defendant MERS
lacks the authority under its corporate charter to foreclose a mortgage, or to own or
transfer an interest in a securitized mortgage because MERS’ charter limits MERS’
powers and duties to functioning as an electronic registration system of certain types of
securities.
50. Plaintiff is informed and believes, and thereon alleges, that in order to conduct a
foreclosure action, a person or entity must have standing.
51. Plaintiff is informed and believes, and thereon alleges, that pursuant to
California law, to perfect the transfer of mortgage paper as collateral, the owner should
physically deliver the Note to the transferee. Without physical transfer, the sale of the
Note is invalid as a fraudulent conveyance, or as unperfected.
52. The Note in this action identifies the entity to whom it was payable, the original
lender. Therefore, the Note herein cannot be transferred unless it is endorsed; the
attachments to the notice of default do not establish that endorsements were made, nor
are there any other notices which establish that the original lender endorsed and sold
the Note to another party.
53. Furthermore, insofar as the parties to the securitization of Plaintiff’s Note and
Deed of Trust base their claim that the Note was transferred or assigned to Defendant
WELLS FARGO, the Trustee of the Securitized Mortgage herein, by the original
lender, it is well established State Law that the assignment of a Deed of Trust does not
15COMPLAINT
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
automatically assign the underlying promissory Note and right to be paid, and the
security interest is incident of the debt.
54. Pursuant to State Law, to perfect the transfer of mortgage papers as collateral
for a debt, the owner should physically deliver the Note to the transferee. Without
physical transfer, the sale of the Note is invalid as a fraudulent conveyance, or as
unperfected. The Note herein specifically identifies the party to whom it was payable
to. The Note, therefore, cannot be transferred unless it is endorsed.
55. Defendants, and each of them, cannot produce any evidence that the Promissory
Note has been transferred; therefore, Defendant MERS could only transfer whatever
interest it had in the Deed of Trust herein. The Promissory Note and Deed of Trust are
inseparable: an assignment of the Note carries the mortgage (ie, Deed of Trust) with it,
while an assignment of the Deed of Trust alone is a nullity. Therefore, if one party
receives the Note and another party receives the Deed of Trust (as in this case), the
holder of the Note prevails regardless of the order in which the interests were
transferred.
56. Defendants MERS has failed to submit documents authorizing MERS, as
nominee for the original lender, to assign the subject mortgage. Hence, MERS lacked
authority as mere nominee to assign Plaintiff’s mortgage, making the assignment
defective.
57. In the instant action, MERS, as the nominee not only lacks authority to assign
the mortgage, but cannot demonstrate the Trustee’s knowledge or assent to the
assignment by MERS.
58. Any attempt to transfer the beneficial interest of a Trust Deed without actual
ownership of the underlying Note, is void under Law. Therefore, Defendant, MERS,
cannot establish that it is entitled to assert a claim in this case. For this reason, as well
as the other reasons set forth herein below, MERS cannot transfer an interest in real
property, and cannot recover anything from Plaintiff.
59. Defendants, and each of them, through the actions alleged above, have illegally
commenced foreclosure under the Note on the Property via a foreclosure action
supported by false or fraudulent documents. Said unlawful foreclosure action has
16COMPLAINT
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
caused and continues to cause Plaintiff’s great and irreparable injury in that real
property is unique.
60. The wrongful conduct of the above specified Defendants, and each of them,
unless restrained and enjoined by an Order of the Court, will continue to cause great
and irreparable harm to Plaintiff. Plaintiff will not have the beneficial use and
enjoyment of her Home, and will lose the Property unlawfully.
61. Plaintiff has no other plain, speedy, or adequate remedy, and the injunctive
relief prayed for below is necessary and appropriate at this time to prevent irreparable
loss to Plaintiff. Plaintiff has suffered and will continue to suffer in the future unless
Defendants’ wrongful conduct is restrained and enjoined because real property is
inherently unique, and it will be impossible for Plaintiff to determine the precise
amount of damage she will suffer.
SECOND CAUSE OF ACTION
FRAUD IN THE CONCEALMENT
(Against All Defendants and Does 1-15)
62. Plaintiff re-alleges and incorporates by reference all preceding paragraphs as
though fully set forth herein.
63. Defendants concealed the fact that the Loans were securitized, as well as the
terms of the Securitization Agreements, including, inter alia: (1) Financial Incentives
paid; (2) existence of Credit Enhancement Agreements, and (3) existence of
Acquisition Provisions. By concealing the securitization, Defendants concealed the
fact that Borrower's loan changed in character inasmuch as no single party would hold
the Note, but rather the Notes would be included in a pool with other Notes, split into
tranches, and multiple investors would effectively buy shares of the income stream
from the loans. Changing the character of the loan in this way had a materially
negative effect on Plaintiff that was known by Defendants, but was not disclosed and
thus unknown to Plaintiff.
64. Defendants never disclosed that in the Deeds of Trust, Plaintiff was surrendering
her position as “Owner” to be a “Renter”, thus giving these rights of Ownership away
17COMPLAINT
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
unknowingly, to the Defendants. Defendants knew or should have known that had the
truth been disclosed, Plaintiff would not have entered into the alleged Loan agreements.
65. Defendants intended to induce Plaintiff based on these misrepresentations and
improper disclosures.
63. Plaintiff’s reasonable reliance upon the misrepresentations was detrimental. But
were it not for failure to disclose the true and material terms of the transaction, Plaintiff could
have been alerted to issues of concern. Plaintiff would have known of Defendants true
intentions and profits from the proposed risky loan. Plaintiff would have known that the
actions of Defendant would have an adverse effect on the value of Plaintiff’s property.
64. Defendants’ failure to disclose the material terms of the transaction induced
Plaintiff to enter into the loans and accept the Services as alleged herein.
65. Defendants were aware of the misrepresentations and profited from them.
66. As a direct and proximate result of the misrepresentations and concealment,
Defendants are guilty of malice, fraud, and/or oppression. Defendants' actions were malicious
and done willfully in conscious disregard of the rights and safety of Plaintiff in that the actions
were calculated to injure Plaintiff and to exclusively benefit Defendants, and each of them. As
such, Plaintiff is entitled to recover, in addition to actual damages, punitive damages to punish
Defendants and to deter them from engaging in the outrageous disregard to laws govern their
actions. Due to wide open and apparent knowledge within the news, punitive measures are
reasonable and warranted for the safety of millions who stand to suffer, if not affected.
THIRD CAUSE OF ACTION
FRAUD IN THE INDUCEMENT
(Against All Defendants and unknown Does)
67. Plaintiff re-alleges and incorporated by reference all preceding paragraphs as
though fully set forth herein.
68. Defendants, intentionally misrepresented to Plaintiff those Defendants were
entitled to exercise the power of sale provision contained in the Deed of Trust. In fact,
Defendants were not entitled to do so, and have no legal, equitable, or actual beneficial
interest whatsoever in the Property.
18COMPLAINT
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
69. Defendants misrepresented that they are the “holder and owner” of the Note and
the beneficiary of the Deed of Trust. However, this was not true and was a
misrepresentation of material fact. Documents state that the original lender allegedly
sold the mortgage loan to SERIES 2006-AR8. Defendants were attempting to collect
on a debt to which they have no legal, equitable, or pecuniary interest in. Defendants
are fraudulently foreclosing on the Property in which they have no monetary or
pecuniary interest. This type of conduct is outrageous.
70. Defendant's failure to disclose the material terms of the transaction induced
Plaintiff to enter into the loans and accept the Services as alleged herein.
71. The material misrepresentations were made by Defendants with the intent to
cause Plaintiff to reasonably rely on these misrepresentations, and in order foreclosure
on the Property. This material misrepresentation was made with the purpose of
initiating the securitization process as illustrated above, in order to profit from the sale
of the Property by selling the Note to sponsors who then pool the Note and sell it to
investors on Wall Street.
72. Defendants were aware of the misrepresentations and profited from them.
73. As a direct and proximate result of the misrepresentations and
concealment
Plaintiff was damaged in an amount to be proven at trial, including but not limited to costs of
Loan, damage to Plaintiff’s financial security, emotional distress, and Plaintiff’s incurred costs
and legal fees. Defendants are guilty of malice, fraud, and/or oppression. Defendants' actions
were malicious and done willfully in conscious disregard of the rights and safety of Plaintiff in
that the actions were calculated to injure Plaintiff. As such Plaintiff is entitled to recover, in
addition to actual damages, punitive damages, to punish Defendants and to deter them from
engaging in future misconduct, and harming millions of innocent and trusting Americans.
FOURTH CAUSE OF ACTION
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
(Against All Defendants and unknown Does)
19COMPLAINT
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
74. Plaintiff re-alleges and incorporates by reference all preceding paragraphs as though
fully set forth herein.
1. The actions of Defendants, as set forth herein, have resulted in the Plaintiff
being threatened with the loss of the Property.
2. This outcome has been created without any right or privilege on the part of the
Defendants, and, as such, their actions constitute outrageous or reckless conduct
on the part of Defendants.
3. Defendants intentionally, knowingly, and recklessly misrepresented to the
Plaintiff that Defendants were entitled to exercise the power of sale provision
contained in the Deed of Trust. In fact, Defendants were not entitled to do so,
and have no legal, equitable, or actual beneficial interest whatsoever in the
Property.
4. Defendants’ conduct–Doing business as a massive, country-wide fraudulently
foreclosing enterprise, taking properties and rendering families homeless,
properties in which they have no right, title, or interest–is so outrageous and
extreme that it exceeds all bounds which is usually tolerated in a civilized
community.
5. Such conduct was undertaken with the specific intent of inflicting emotional
distress on the Plaintiff, such that Plaintiff would be so emotionally distressed
and debilitated that she would be unable to exercise legal rights to her Property;
the right to Title of her Property, the right to cure the alleged default, the right to
verify the alleged debt that Defendants are attempting to collect, and right to
clear Title to the Property such that said Title will regain its marketability and
value.
6. At the time Defendants began their fraudulent foreclosure proceedings,
Defendants were not acting in good faith while attempting to collect on the
subject debt. Defendants, and each of them, committed the acts set forth above
with complete; utter and reckless disregard of the probability of causing Plaintiff
to suffer severe emotional distress, including but not limited to: loss of
hundreds of thousands of actual monies invested into the property, loss of the
20COMPLAINT
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
financial and actual efforts from upgrading the property, loss of safety, loss of
credit, loss of good standing within the community, and loss of health.
7. As an actual and proximate cause of Defendants’ attempt to fraudulently
foreclose on Plaintiff’s home, the Plaintiff has suffered severe emotional
distress, including but not limited to: lack of sleep, anxiety, depression,
paranoia, hypertension, fatigue, and repeated panic attacks. Plaintiff cannot
answer her telephone without stress.
8. Plaintiff did not default in the manner stated in the Notice of Default. Yet
because of Defendants’ outrageous conduct, Plaintiff has been living under the
constant emotional nightmare of losing her Property.
9. As a proximate cause of Defendants’ conduct, Plaintiff has experienced many
sleepless nights, severe depression, appetite swings, and loss of productivity at
her place of employment. Plaintiff is a medical massage therapist, and she must
be in a relaxed, balanced state to benefit her clients. Therefore Defendants’
outrageous conduct has severely interfered with Plaintiff ‘s ability to work
effectively.
10. The conduct of Defendants, and each of them, as herein described, was so vile,
base, contemptible, miserable, wretched, and loathsome that it would be looked
down upon and despised by virtually all ordinary people. Plaintiff is therefore
entitled to punitive damages in an amount appropriate to punish Defendants, and
to deter their predatory so-called lending enterprise from engaging in similar
conduct.
FIFTH CAUSE OF ACTION
SLANDER OF TITLE
(Against All Defendants and unknown Does)
86. Plaintiff re-alleges and incorporates by reference all preceding paragraphs as
though fully set forth herein.
87. Defendants, and each of them, disparaged Plaintiff's exclusive valid title by and
through the preparing, posting, publishing, and recording of the documents previously
21COMPLAINT
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
described herein, including, but not limited to, the Notice of Default, Notice of Trustee's Sale,
and Trustee's Deed Upon Sale.
88. Said Defendants knew or should have known that such documents were
improper in that at the time of the execution and delivery of said documents, Defendants had no
right, title, or interest in the Property. These documents were naturally and commonly to be
interpreted as denying, disparaging, and casting doubt upon Plaintiff's legal title to the Property.
By posting, publishing, and recording said documents, Defendants' disparagement of Plaintiff's
legal title was made to the world at large.
89. As a direct and proximate result of Defendants' conduct in publishing these
documents, Plaintiff’s title to the Property has been disparaged and slandered, and there is a
cloud on Plaintiff's Title, and thus, Plaintiff has suffered, and continues to suffer damages in an
amount to be proven at trial.
90. As a further proximate result of Defendants' conduct, Plaintiff has incurred
expenses in order to clear Title to the Property. Moreover, these expenses are continuing, and
Plaintiff will incur additional charges for such purpose until the cloud on Plaintiff's Title to the
property has been removed. The amounts of future expenses and damages are not ascertainable
at this time.
91. As a further direct and proximate result of Defendants' conduct, Plaintiff has
suffered humiliation, mental anguish, anxiety, depression, and emotional and physical distress,
resulting in the loss of sleep, loss of work, and other injuries to her health and well-being, and
continues to suffer such injuries on an ongoing basis. The amount of such damages shall be
proven at trial.
92. At the time the false and disparaging documents were created and published by
the Defendants, Defendants knew the documents were false, and created and published them
with the malicious intent to injure Plaintiff and deprive her of her exclusive right, title, and
interest in the Property, and to obtain the Property for their own use and profit unlawfully.
93. The conduct of the Defendants in publishing the documents described above was
fraudulent, oppressive, and malicious. Therefore, Plaintiff is entitled to an award of punitive
damages in an amount sufficient to punish Defendants for their malicious conduct and to deter
such misconduct in the future.
22COMPLAINT
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
SIXTH CAUSE OF ACTION:
QUIET TITLE
(Against All Defendants, and unknown Does)
94. Plaintiff re-alleges and incorporates by reference all preceding paragraphs as
though fully set forth herein.
95. Therefore, Plaintiff is entitled to equitable relief by a judicial decree and order,
declaring Plaintiff to be the Title owner of record of the Property, and requests this
Honorable Court to quiet Plaintiff’s Title therein and thereto, subject only to such
legitimate liens and encumbrances as the Court may deem, and avoiding any liens or
encumbrances upon the Property created by Defendants, or by their putative
predecessors, or by any of them.
96. Therefore, Plaintiff desires and is entitled to a judicial declaration quieting Title
on Plaintiff as of the date on which Plaintiff was granted the Original Grant Deed;
October 21st, 2005.
SEVENTH CAUSE OF ACTION
DECLARATORY RELIEF
(Against All Defendants, and unknown Does)
97. Plaintiff re-alleges and incorporates by reference all preceding paragraphs as
though fully set forth herein.
98. An actual controversy has arisen and now exists between Plaintiff and
Defendants concerning their respective rights and duties regarding the Note and Trust
Deed.
99. Plaintiff contends that pursuant to any alleged Loans, Defendants did not have
authority to foreclose upon, and/or sell the Property.
100. Plaintiff is informed and believes, and upon that basis alleges that Defendants
dispute Plaintiff's contention, and instead contend that they may properly move forward
with a second Unlawful Detainer upon the Property.
23COMPLAINT
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
101. Plaintiff therefore requests a Temporary Restraining Order against Defendants,
against another Unlawful Detainer Action and/or Judgment, and as such, ex parte
measure is necessary and appropriate at this time under the circumstances, until all
parties may ascertain and know their rights, obligations and interests with regard to the
Property.
102. Plaintiff requests a determination of the validity of the Trust Deeds as of the date
the Notes were assigned, without a concurrent assignation of the underlying Trust
Deeds.
103. Plaintiff requests a determination of the validity of the Notice Of Default.
104. Plaintiff requests a determination of the validity of the Trust Deed Upon Sale.
105. Plaintiff requests a determination of Title and an extinguishment of all interest
and future interest in said property, with prejudice due to no contract, agency,
securitization, and being paid in full on a fraudulent Loan.
EIGHTH CAUSE OF ACTION
VIOLATION OF CALIFORNIA CIVIL CODE SECTION 2932.5
(Against all Defendants, and unknown Does)
106. Plaintiff re-allege and incorporates by reference all preceding paragraphs as
though fully set forth herein.
107. California Civil Code § 2932.5 provides:
Where a power to sell real property is given to a mortgagee, or other encumbrancer,
in an instrument intended to secure the payment of money, the power is part of the
security and vests in any person who by assignment becomes entitled to payment of
the money secured by the instrument. The power of sale may be exercised by the
assigned if the assignment is duly acknowledged and recorded.
Plaintiff is informed and believes, and thereon alleges that § 2932.5 requires the
recordation of an assignment of the beneficial interest in a Deed of Trust prior to
foreclosure. Defendants, and each of them, cannot show valid and recorded assign-
ments.
24COMPLAINT
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
108. As a proximate result of Defendants’ action, Plaintiff has been damaged in an
amount not yet ascertained, to be proven at trial.
109. WHEREFORE, Plaintiff prays for relief as set forth below.
NINTH CAUSE OF ACTION:
UNFAIR BUSINESS PRACTICES IN VIOLATION OF CA BUSINESS & PROFES-
SIONS CODE §17200 ET SEQ
(Against All Defendants, and unknown Does)
110. Plaintiff re-alleges and incorporates by reference all preceding paragraphs as
though fully set forth herein.
RECENT DEVELOPMENTS AND DOCUMENT FRAUD
111. On September 24, 2010, California Attorney General, Edmund G. Brown,
Jr. (aka Jerry Brown “AG”), directed ALLY Financial, Inc., which owns GMAC,
Mortgage LLC, to stop foreclosures in California until it proves it is complying with
State law.
112. On October 1, 2010, the AG similarly requested that a JPMorgan Chase Bank NA
stop foreclosures in California until it proves it is complying with State law.
113. Since then, Bank of America has halted foreclosures in 23 judicial foreclosure
States.
114. On or about October 11, 2010, BAC announced that it is temporarily halting
foreclosures nationwide.
115. The impetus of these necessary but drastic measures stems from allegations of
document fraud on the part of the banks and their Servicers. This epidemic is not
limited to the banks listed above, but is an industry-wide problem.
116. During the securitization era, Banks and the resulting Trusts in the rush to securitize
mortgages and sell them to investors, routinely ignored the critical steps of obtaining
mortgage assignments from the original lenders to the securities companies to the
trusts.
25COMPLAINT
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
117. Now, years later, when the companies “servicing” the Trusts want to foreclose,
they have no legal and lawful documents available to document a proper chain of Title,
because none were originally created. As a result, banks are “creating” the missing
documents, or outsourcing the documents to companies like Lender Processing
Services to “produce” the needed assignments. This practice was admitted by deposed
bank executives such as GMAC’s Jeffrey Stephen who admitted in sworn deposition
testimony to signing more than 500 documents a day, and up to 10,000 documents a
month related to foreclosures, without reviewing them.
118. Due to the strict timelines and guidelines to complete a foreclosure, banks are also
fabricating other documents to comply with California’s foreclosure guidelines.
119. The impact of these allegations is so cogent that Old Republic National Title
Company will no longer insure the Title on homes foreclosed by JPMorgan Chase, or
GMAC Mortgage LLC.
120. As further proof of the unlawful business practices, other state legislatures have
taken steps to make the process more transparent (see Arizona State Senate Bill 1259,
requiring non-originating foreclosure lenders to produce full chain of title to verify
ownership).3
121. Other states have taken the lead to void foreclosure sales by parties who lack
standing to foreclose. See, e.g., BEVILACQUA v. RODRIGUEZ. In this case, the
Massachusetts Supreme Court held (among other things) that the recipient of “clouded”
title by a bogus foreclosure sale, could not then turn around and transfer “good title” to
anybody. The old law of England still applies: AN ASSIGNEE’S RIGHTS RISE NO
HIGHER THAN HIS ASSIGNOR. This case will have far reaching ramifications in the
quiet title arena as well as in the wrongful foreclosure area of law.
122. See, e.g. THE BANK OF NEW YORK Nat. Ass’n v. Ibanez
(2011) .941 N.E.2d 40. Most recently, an Alabama Circuit recognized the legal
ramifications regarding the failure of banks and their trustees to properly transfer Notes
and Deeds of Trusts. In Phyllis Horace v. La Salle Bank National
3http://www.azleg.gov/DocumentsForBill.asp?
Bill_Number=SB1259&Session_ID=102.
26COMPLAINT
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
Association, Et Al, 57-cv-2008-00362.00, the Alabama Circuit Court not only sided
with the homeowner on this exact issue; the court issued an order permanently
enjoining the defendant trust, LaSalle Bank National Association, from foreclosing on
the plaintiff's house because LaSalle failed under New York law and its own Pooling
and Servicing Agreement to properly transfer the plaintiff's mortgage Note on the
plaintiff's home.
123. In permanently forestalling any foreclosure on the home by defendant, the court
did not mince words: "First, the Court is surprised to the point of astonishment that the
defendant (LaSalle Bank National Association) did not comply with the terms of its
own Pooling and Servicing Agreement and further did not comply with New York Law
in attempting to obtain assignment of plaintiff Horace's note and mortgage. Second,
plaintiff Horace is a third party beneficiary of the Pooling and Servicing Agreement
created by the defendant trust (LaSalle Bank National Association). Indeed without
such Pooling and Servicing Agreements, Plaintiiff Horace and other mortgagors
similarly situated would never have been able to obtain financing."
124. Plaintiff is informed and believes, and therefore alleges, that Defendants, and each
of them, engaged in unlawful, unfair, or fraudulent business acts or practices and unfair,
deceptive, untrue or misleading advertising in violation, rising to unfair and deceptive
business practices, in violation of California Business and Professions Code §17200 and
the Unfair and Deceptive Acts and Practices statutes.
125. The above specified Defendants, and each of them, as part of their business
practices, fraudulently and knowingly procured or offered false or fraudulently prepared
documents to fabricate the missing gaps in the chain of title or to falsely demonstrate
compliance with the PSA, State Law, and Regulations related to non-judicial
foreclosure, and allowed these documents to be filed, registered, or recorded within this
jurisdiction. The members of the public are likely to be deceived by these unlawful,
oppressive and fraudulent business practices.
126. Plaintiff is informed and believes, and therefore alleges that Defendant MERS
lacked authority to execute an assignment of the Deed of Trust from the original
beneficiary to Defendant.
27COMPLAINT
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
127. Plaintiff is informed and believes, and thereon alleges that Defendant MERS at
all relevant times had knowledge that no such authority was ever bestowed upon it by
the original lender, yet MERS still caused to be recorded the false documents with the
county recorder. Further, the assignment recorded is signed by an individual purporting
to be the “Assistant Secretary” of MERS. Plaintiff believes and thereupon alleges that
this individual did not have the authority or capacity to sign on behalf of MERS to
cause such substitutions or assignments. As such, Plaintiff is informed and believes,
and thereon alleges that certain misrepresentations, including sworn statements, were
made to the Notary Public to cause the Notary Public to perform an improper notary act
on a document.
128. The business practices of the above specified Defendants, and each of them,
were unlawful, deceptive, misleading and fraudulent and violate California law as
alleged herein above. Further, the above specified Defendants, and each of them, knew
that their business practices were unlawful, deceptive, misleading and fraudulent at the
time they were so engaged.
129. Pursuant to Sections 17200 et seq. of the California Business and
Professions Code, unfair business practices include any unlawful, unfair,
misleading, or fraudulent business practice. The fraudulent and unlawful conduct of the
above specified Defendants, and each of them, as alleged herein, constituted unlawful,
unfair and/or fraudulent business practices within the provisions of §§17200 et seq of
the California Business and Professions Code.
130. As a direct and proximate result of the unfair business practices of the above
specified Defendants, and each of them, as herein alleged, Plaintiff has incurred
damages in that Plaintiff’s Home is now foreclosed at the hands of the above specified
Defendants, and each of them, all by reason of which Plaintiff has been damaged in at
least the sum of the jurisdictional amount of this Court, plus interest, attorney’s fees and
costs, and additional amounts, according to proof at the time of trial.
131. As a further direct and proximate result of the unfair business practices of the above
specified Defendants, and each of them, Plaintiff is entitled to an order or preliminary
28COMPLAINT
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
injunction prohibiting said Defendants, and each of them, from selling or attempting to
sell, or causing to be sold, any interest whatsoever in the Property to a third party.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff will ask for the following for each Cause of Action to be
awarded:
FIRST, FIFTH , SIXTH AND SEVENTH CAUSES OF ACTION
1. For Compensatory Damages in an amount to be determined by proof at trial;
2. For Special Damages in an amount to be determined by proof at trial;
3. For General Damages in an amount to be determined by proof at trial;
4. For Punitive Damages as allowed by law;
5. For Restitution as allowed by law;
6. For Legal Fees and Costs of this action;
7. For Declaratory Relief, including but not limited to the following Decrees of this Court
that:
a. Plaintiff is the prevailing party;
b. The Trustees of the Trusts, Sponsor, Depositor, and The Mortgage Originator all
have no enforceable secured or unsecured claim against the Property;
SECOND, THIRD, FOURTH, EIGHTH AND NINTH CAUSES OF ACTION
1. For Compensatory Damages in an amount to be determined by proof at trial;
2. For Special Damages in an amount to be determined by proof at trial;
3. For General Damages in an amount to be determined by proof at trial;
4. For Punitive Damages as allowed by law;
5. For Restitution as allowed by law;
Dated: _________________
29COMPLAINT
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
Cynthia White Ebenstein, A Plaintiff In Pro Per
30COMPLAINT
