Verified Complaint HOLLIDAY 06 24 10 PDF

8/8/2019 Verified Complaint HOLLIDAY 06 24 10 PDF

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Ramon M. Gonzalez, Esq. (State Bar No.: 220891)The Gonzalez Law Firm, P.C.9401 Wilshire Blvd., Ste. 840Beverly Hills, CA 90212Office: (310) 592-0245

Fax: (323) 421-9381

Attorneys for Plaintiff KRISTIE LAUREL HOLLIDAY

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES (UNLIMITED CIVIL)

Comes now Plaintiff, and demanding trial by jury, complains and alleges as follows:

KRISTIE LAUREL HOLLIDAY,

Plaintiff,

vs.

AURORA LOAN SERVICES, LLC, aLimited Liability Company; and Does 1 to20, Inclusive,

Defendants.

)))))))))))

)

Case No.: ____________

VERIFIED COMPLAINT FOR:

1. BREACH OF CONTRACT;2. BREACH OF CONTRACT;3. BREACH OF CONTRACT;4. BREACH OF IMPLIED

COVENANT OF GOOD FAITH

AND FAIR DEALING;5. JUDGMENT TO SET ASIDE

TRUSTEES SALE;6. JUDGMENT TO CANCEL

TRUSTEES DEED;7. QUIET TITLE;8. PRELIMINARY AND

PERMANENT INJUNCTION;9. DECLARATORY RELIEF;10.FRAUDULENT

MISREPRESENTATION

(DEMAND FOR JURY TRIAL)


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PARTIES

1. Plaintiff KRISTIE LAUREL HOLLIDAY, now, and at all times relevant to thiscomplaint, is an individual residing in the County of Los Angeles, and the former owner and

resident of real property commonly known as 17552 Index Street, Granada Hills, CA 91344

(the subject property) (A.P.N.# 2711-007-026) and legally described in Exhibit A.

2. Defendant AURORA LOAN SERVICES, LLC (AURORA), and at all timesmentioned and relevant herein, a Limited Liability Company conducting business in the County

ofLos Angeles, State of California (AURORA), and is the subsidiary of Lehman Brothers

Bank, FSB.

3. The true names and capacities, whether individual, corporate, associate, orotherwise, of Defendants DOES 1 through 20, inclusive, are unknown to Plaintiff, who

therefore sues said Defendants by such fictitious names. Plaintiff is informed and believes, and

on that basis allege, that each of the Defendants designated herein as a DOE is responsible in

some manner, way, form and to some extent for the events and occurrences referred to herein,

and for the damages resulting to Plaintiff. At such times as Plaintiff learns the true name and

capacity of any Defendant named as a DOE herein, Plaintiff will seek leave of court to amend

his complaint to identify said Defendant, and include accompanying charging allegations.

JURISDICTION AND VENUE

4. Jurisdiction and venue are proper in this Court because damages sought exceedthe jurisdictional limit and all parties reside and/or conduct business in the County of Los

Angeles, and the subject property and unlawful conduct that gave rise to these claims occurred

within said county.

FACTUAL ALLEGATIONS

5. On October 17, 2003, plaintiff and her former husband, Peter A. Holiday(Peter), purchased the subject property at 17552 Index Street, Granada Hills, CA 91344

with a first mortgage from Long Beach Mortgage Company in the amount of $384,000.


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6. On or about January 30, 2006, plaintiff and Peter refinanced the subject propertywith a first mortgage from Lehman Brothers Bank, FSB (parent company of defendant Aurora

Loan Services, LLC) in the amount of $620,000 (loan #: 0037448164). The Deed of Trust

(instrument no. 100025440002972542) was recorded on February 1, 2006. Exhibit B.

7. On February 23, 2008, plaintiff and Peter separated. Peter moved out of thehouse while plaintiff remained in the house with their three minor children.

8. During 2008, the Hollidays business experienced a significant decline inincome because of the downturn in the economy. By Nov. 2008, they were having difficulty

making their mortgage payments.

9. On or about March 4, 2009, the United States Department of Treasury issued agovernment program (hereinafter, the Program) setting forth certain guidelines known as the

Home Affordable Modification Program (HAMP).

10. Due to financial hardship caused by the economic recession, they were unable tomake the payment to Aurora Loan Services due April 1, 2009.

11. The May, June, July and August 2009 payments to Aurora Loan Services werenot made. Being a homemaker and in the middle of a divorce, plaintiff did not have the money

to catch up on the delinquent payments.

12. On July 13, 2009, AURORA recorded a Notice Of Default (noting arrearagesof $17,391.35 as of 07-10-09) (instrument no. 20091046127; trustees sale no. CA-09-298832-

CL) against the subject property. Exhibit C. At no time prior to this did Aurora or any

other representatives or agents of defendant attempt to contact Plaintiff or Peter to

explore alternatives to foreclosure pursuant to Cal. Civ. Code section 2923.5(b).

13. On Aug. 24, 2009, plaintiff called Aurora Loan Services Loss MitigationDepartment and spoke with Loretta about her options. Plaintiff was told the Notice of Default

was filed on July 13, 2009 and that the projected Trustees Sale Date was Nov. 4, 2009. Of the

options available, plaintiff was told she would possibly qualify for either a loan modification or

a short sale. Plaintiff told her she was interested in a loan modification and specifically

requested HAMP.


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14. Over the next three weeks, plaintiff gave AURORA financial figures, faxedthem the required documents, and made several calls to them.

15. On Sept. 8, 2009, plaintiff spoke worked with AJ Kahn (Kahn) from AmericanNational Home Litigation Services to help her get the loan modification. Kahn started working

with Aurora Loan Services on the loan modification. See Kahn Declaration.

16. On September 23, 2009, Kahn faxed AURORA the necessary 3rd partyauthorization form. See Kahn Declaration.

17. On October 15, 2009, AURORA recorded a Notice Of Trustee's Sale(instrument no. 20091563414), noting a sale date of November 4th and an unpaid balance of

$646,195.55. Exhibit D.

18. That same day, October 15th, Kahn learned from Aurora that plaintiff hadbeen approved for a HAMP loan modification ($2,637.35 including PITI per month) and

that the new loan paperwork would be sent soon and thus there would be a temporary

hold on the sale. (The paperwork never arrived.)

19. According to the terms presented to plaintiff, the first 3 months of the newpayment would be the trial period, and that after Aurora received those three

payments, Aurora would make the modification permanent and send her the terms in

writing regarding her new loan. Auroras representative stated Aurora would not

foreclose on her property while she was in active review, and so long as she provided all

requested information and documentation, and made all the requisite payments in a

timely manner.

20. That same day, October 15th, Plaintiff personally called Aurora and wastold all of the information. She was also told that the trial period payments had to be in

the form of certified funds, i.e. a cashiers check. Plaintiff orally accepted this trial period

agreement.

21. Because of plaintiffs loan modification, Aurora informed Plaintiff that hertrustees sale would not go forward on November 4

th.


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22. On Oct. 30, 2009, plaintiff sent her first payment of $2,637.35 via certified checkwas sent to: Aurora Loan Services, Attn: Cashiering Dept., 10350 Park Meadows Drive,

Littleton, CO 80124. Exhibit E (copies of all cashiers checks).

23. On November 10, 2009, Tamika at AURORA informed Kahn that the paymentwas received on November 6, 2009 and the modification documents were sent out on November

5, 2009. Plaintiff never received the modification documents.

24. On November 12, 2009, Mary Ann at AURORA informed Kahn thatPlaintiffs payments for the loan modification must be made on the first of each month, the first

payment already made on November 1, 2009.

25. On Nov. 23, 2009, plaintiff sent the second modification payment (due Dec. 1,2009) of $2,637.35 via certified check to Cashiering Dept. at same address as above.Id.

26. Around that time, plaintiff called Aurora to ask about the details of themodification, since she hadnt received the promised packet. She was told that Aurora would

send her the details after receipt of the three trial payments and thereafter make the modification

permanent.

27. On Dec. 2, 2009, plaintiff sent the third modification payment (due Jan. 1, 2010)of $2,637.35 via certified check to Cashiering Dept. at same address as above. Id.

28. On Feb. 1, 2010, plaintiff called Aurora to make a payment by phone (since shewas no longer in the trial period). She was told that the payment still had to be made via

certified funds because the modification was still in the Loss Mitigation Department and that

that department was a little behind. Plaintiff explained she hadnt been aware of that, and that

she had been told it was just the first 3 payments. Plaintiff was told that its fine, just get a

certified check and send it overnight delivery. She was told her loan modification would not

be negatively affected. The representative she spoke to stated that the loan modification was

noted in the file as being in place.

29. The next day, February 2nd, Plaintiff got a certified check of $2,637.35 and sent itUSPS overnight delivery to the Cashiering Department in Littleton, CO. Id.


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30. On March 1, 2010, plaintiff called Aurora and was told once again that the fundshad to be certified, and that Aurora could not yet accept a payment over the phone. She asked

the representative if this was a permanent condition, or would she eventually be able to make a

payment via the phone or non-certified check. She was assured that this was just temporary

until AURORA did the final paperwork on the loan modification. She was told that AURORA

was a little behind, but not to worry. She got the certified check and sent it USPS overnight

delivery to the Cashiering Department in Littleton, CO. This was the fifth trial plan payment

she made. Id.

31. On March 25, 2010, plaintiff received a letter dated March 18th from AuroraLoan Services. Despite the fact that plaintiff had already made five timely payments (two more

than she was required to complete her modification), the letter stated that we are unable to

offer you a loan modification at this time for the following reasons: Your financial information

indicates inability to afford the modified payments. Exhibit F. The letter went on to state that

there are other options available to avoid foreclosure. Please contact [Aurora] immediately to

explore her options.

32. On or around March 26, 2010, Plaintiff informed Kahn that she received a letterfrom Aurora denying her loan modification. Kahn called AURORA and spoke to Antonio

who informed me that the reason for Plaintiffs denial was due to a negative cash flow of

$3,500.00. Kahn recommended that since her divorce was finalized, plaintiff should resubmit

new financials in her name only. Kahn immediately faxed AURORA a new updated financial

package with Plaintiffs divorce decree.

33. On March 26, 2010, Kahn called Aurora and was told that because plaintiff wasnow divorced, she could resubmit her financial information to try for a new modification.

Plaintiff gathered the information and documentation he needed to resubmit to Aurora. Kahn

immediately faxed them to AURORA. Aurora failed to review Plaintiff for a HAMP

modification based on this final submission.

34. On March 29, 2010, without any warning or notice whatsoever, AURORAattempted to sell the subject property at a Trustees Sale. No third party purchased it and,


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therefore, AURORA purchased the subject property as an REO (real estate-owned)

property and took title for $662,550.84. A Trustees Deed Upon Sale was recorded on April 5,

2010 (instrument no. 20100458327). Exhibit G.

35. On March 30, 2010, plaintiff came home in the afternoon to a notice on her doorfrom Paul Hargraves with Remax that stated her home was now bank-owned.

36. Kahn immediately called AURORA and was told by Jim that the house hadbeen sold in a trustee sale that day, one business day after AURORA had told Kahn to resubmit

the Plaintiffs modification paperwork. The representative said that no notice was mailed out to

the Plaintiff and he did not know why Antonio had not mentioned that the sale date was

approaching. Jim informed Kahn that the matter was now in the attorneys office with Quality

Loan Services. Kahn had no notice or warning of the trustees sale.

37. Other than the letter dated March 18th, plaintiff never received any notificationthat things were not working out and that AURORA was going to sell her house on March 29th.

She had been paying the loan modification, on time, for 5 months.

38. On April 12, 2010, Aurora filed an Unlawful Detainer action against Plaintiff(case no. 10H00988). Exhibit H.

CALIFORNIA CIVIL CODE 2923.5 VIOLATIONS

39. California Civil Code 2923.5 (operative on July 8, 2008) sets forth very specificrequirements that lenders must follow prior to filing a Notice of Default for loans made from

January 1, 2003, to December 31, 2007. The spirit of the bill is to promote work-outs between

the borrower and the lender in lieu of foreclosure. In the present case, California Civil Code

2923.5 applies as the subject loan was made on or around January 30, 2006. The Notice of

Default was recorded on July 13, 2009. In its 2923.5 declaration, Keli Tune of Quality Loan

Servicing Company, as agent for beneficiary, states the following:

The Beneficiary or its designated agent declares that it has contacted the

borrower, tried with due diligence to contact the borrower as required by

California Civil Code 2923.5 or the borrower has surrendered the property to


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the beneficiary or authorized agent, or is otherwise exempt from the

requirements of California Civil Code 2923.5.

40. Defendants failed to abide by the requirements set forth in California Civil Code.Specifically, Defendants made no attempts whatsoever to contact Plaintiff to explore alternative

to foreclosure prior to recording the Notice of Default on July 13, 2009. Plaintiff received no

documentation from Aurora or its agents regarding said alternatives. Further, Plaintiff received

no phone calls from Aurora regarding the same. Aurora has Plaintiffs home phone number and

cell phone number as contact numbers. Plaintiffs home number and cell phone number are

connected to an answering machine and voicemail service, respectively, that capture all calls 24

hours a day in the event Plaintiff is not home or does not answer her cell phone. Plaintiff never

received any such messages from defendants on her answering machine or cell phone voice

mail prior to July 13, 2009. Nor was any contact made in person by defendant regarding said

alternatives.

41. Plaintiff has not surrendered the subject property and did not work with any thirdparty in regards to her loan until Sept. 8, 2009, or almost two months after the Notice of Default

was recorded. Plaintiff has not filed for bankruptcy. Aurora is not otherwise exempt from the

requirements of California Civil Code 2923.5.

42. Thus, defendants ambiguous, contradictory and blanket "due diligence"statement completely fails to satisfy the superficial requirements of California

Civil Code 2923.5(b) and (g)(l)(2)(A)(B)(C)(3)(4)(5), as well as failing to satisfy the

legislative intent behind 2923.5.

43. California Civil Code 2923.5(b) dictates that every notice of default "shallinclude a declaration from the mortgagee, beneficiary, or authorized agent that it has contacted

the borrower, tried with due diligence to contact the borrower as required by this section or the

borrower has surrendered the property to the mortgagee, trustee, beneficiary, or authorized

agent." The Notice of Default declaration fails to show any compliance with the specific contact

requirements. First, it is utterly unclear as to who did what. Was it the mortgagee, beneficiary

or some authorized agent who attempted contact? Was it by mail or telephone or both? Which


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authorized agent? It is also unclear what if any correspondence was supposedly sent to Plaintiff,

and what was the substance of that correspondence, if any? What was the result of the "due

diligence?" There is no way to determine from the statement whether said attempts were made

at least thirty days prior to recording the Notice of Default. Making what looks to be a standard

blanket statement does not satisfy the declaration requirement in Civil Code 2923.5(b).

44. The suspect statement also fails to demonstrate the requisite due diligence that isclearly detailed in Civil Code 2923.5(g)(l)(2)(A)(B)(C) (5)(A)(B)(C)(D). The statement does

not specify whether Defendants satisfied the due diligence requirements to:

1- send a first-class letter including the toll free telephone number for HUD; then

following the mailing of the letter;

2- attempt to contact Plaintiff at least three times at different hours and on

different days;

3- use an automated system to dial Plaintiff; and

4-post a prominent link on the homepage of Defendants' Internet Web site.

45. The 2923.5(b) statement also fails to satisfy California Code of Civil Procedure2015.5, which states in pertinent part:

"Whenever, under any law of this state or under any rule, regulation, order or

requirement made pursuant to the law of this state, any matter is required or permitted to

be supported, evidenced, established, or proved by the sworn statement, declaration,

verification, certificate, oath, or affidavit, in writing of the person making the same, such

may with like force and effect to be supported, evidenced, established or proved by the

unsworn statement, declaration, verification, or certificate, in writing of such person

which recites that it is certified or declared by him or her to be true under penalty of

perjury, is subscribed by him or her, and (1), if executed within this state, states the

date and place of execution, or (2), if executed at any place, within or without this state,

states the date of execution and that it is so certified or declared under the laws of the

State of California." (Emphasis added.)


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Here, the 2923.5(b) statement fails to state the place of execution and, therefore, voids the

Notice of Default.

46. Regardless, even assuming for arguments sake that defendants did in factcontact Plaintiff prior to July 13, 2009 (when the Notice of Default was recorded) to explore

options to avoid foreclosure, defendants nevertheless violated that statute because they fail to

show in their declaration that the Notice of Default was after the requisite 30-day waiting

period following said contacts. Specifically, 2923.5(a) states that:

(1) A mortgagee, trustee, beneficiary, or authorized agent may not file a notice of default

pursuant to Section 2924 until 30 days after contact is made as required by paragraph (2) or 30

days after satisfying the due diligence requirements as described in subdivision(g).

Because of the blanket statement in said declaration, there is no way to determine whether

defendants did in fact wait 30 days after the requisite contact to record the Notice of Default.

47. Further, the statement entirely fails to preserve the spirit of California Civil Code2923.5. In enacting 2923.5, California Legislature noted "it is essential to the economic

health of California for the state to ameliorate the deleterious effects on the state economy and

local economies and the California housing market that will result from the continued

foreclosures of residential properties in unprecedented numbers by modifying the foreclosure

process to require mortgagees, beneficiaries, or authorized agents to contact borrowers and

explore options that could avoid foreclosure." See Historical and Statutory Notes to California

Civil Code 2923.5, Section 1(d). This intent, together with the strict contact requirements of

2923.5, reveals a due diligence mandate, imposed on mortgagees and beneficiaries, to actively

contact the borrower for the purpose of exploring alternatives to foreclosure, including a

modification of the mortgage loan terms.

48. As a result, the Notice of Default, Notice of Trustees Sale, the Trustees Saleitself, and the Deed Upon Trustees Sale are all void.

HOME AFFORDABLE MODIFICATION PROGRAM (HAMP)

49. On or about March 4, 2009, the United States Department of Treasury issued agovernment program (hereinafter, the Program) setting forth certain guidelines known as the


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Home Affordable Modification Program (HAMP), which provides incentives to servicers,

lenders and investors to modify first lien home loans that originated before January 1, 2009, that

do not exceed $729,750, and that are owner-occupied (hereinafter, the Guidelines).

According to its website, Aurora is a participating servicer/lender in the HAMP program:

https://www.myauroraloan.com/docs/Aurora_HAMP_Package.pdf.

50. Plaintiff is a borrower who meets the minimum criteria to be considered for thefederally-funded Home Affordable Modification Program (HAMP): (a) she defaulted on her

mortgage due to financial hardship; (b) the mortgaged property is her primary residence; (c) her

mortgage originated before January 2009; (d) the balance owed on her mortgage does not

exceed the limits set forth by HAMP; and (e) her monthly payments on her mortgage for

principal, interest, property taxes, and insurance exceed 31% of her gross monthly income.

Plaintiff is therefore entitled to have her mortgage reviewed for modification by defendants.

51. Aurora is a participating lender in HAMP and has entered into an actual contractwith the United States Treasury Department binding AURORA to the Program Guidelines. As

such, AURORA is subject to the U.S. Treasurys modification program guidelines for HAMP.

Said guidelines promulgated on March 4, 2009 clearly require any foreclosure action be

temporarily suspended during the trial period, or while the borrowers are considered for

alternative foreclosure prevention options. Home Affordable Modification Program

Guidelines, March 4, 2009,

https://www.treas.gov/press/releases/reports/modification_program_guidelines.pdf (last visited

December 07, 2009).

52. Absent HAMP modification, Plaintiff faces foreclosure, the very result for whichHAMP was created to prevent. Notwithstanding AURORAs contractual obligations under

HAMP, AURORA has breached the agreement in a number of ways. Among other things,

AURORA has wrongfully denied Plaintiff access to the benefits of HAMP by (1) refusing to

evaluate her loan for a HAMP modification in good faith, even when Plaintiff approached

AURORA with specific requests to be considered for HAMP, and (2) initiated, failed to

suspend or threatened to institute foreclosure proceedings against Plaintiff even after she asked


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to be considered for HAMP. Therefore, Plaintiff seeks, among other things, an order from the

Court that any future sale of Plaintiffs home by AURORA or its agents be postponed

indefinitely until AURORA determines Plaintiffs eligibility for HAMP.

FIRST CAUSE OF ACTIONBREACH OF CONTRACT

(Against All Defendants)

53. Plaintiff realleges and incorporates by this reference all the allegations of thepreceding paragraphs of this complaint as though fully set forth herein.

54. As alleged hereinabove, AURORA entered into a contract with the U.S. TreasuryDepartment which obligates AURORA to modify qualifying loans under HAMP. Plaintiff is an

intended third-party beneficiary to these contracts and therefore has standing to bring this

action. Because Plaintiff qualifies for HAMP, AURORAs refusal to consider Plaintiff for a

HAMP loan modification constitutes a breach of said contract.

55. Had defendants performed a good faith review of Plaintiffs loan (includingfollowing her final submission one business day prior to the trustees sale) under the HAMP

guidelines, defendants would have determined that Plaintiff qualified under said program and

modify her loan under said terms. Plaintiff would have thereby been able to afford the loan and

thereby avoid foreclosure.

56. As a proximate result of defendants breach, Plaintiff faces the permanent lossof and eviction from her home and will thereby suffer economic loss in an amount to be

determined at trial.

SECOND CAUSE OF ACTIONBREACH OF CONTRACT



58. On October 15, 2009, plaintiff learned from Aurora that she had been approvedfor a HAMP loan modification ($2,637.35 including PITI per month) and that the new loan


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paperwork would be sent soon and thus there would be a temporary hold on the sale. (The

paperwork never arrived.)

59. According to the terms presented to plaintiff, the first 3 months of the newpayment would be the trial period, and that after Aurora received those three

payments, Aurora would make the modification permanent and send her the terms in

writing regarding her new loan. Auroras representative stated Aurora would not

foreclose on her property while she was in active review, and so long as she provided all

requested information and documentation, and made all the requisite payments in a

timely manner. Plaintiff was also told that the trial period payments had to be in the

form of certified funds, i.e. a cashiers check.

60. Plaintiff orally accepted this trial period agreement (the Agreement) and inreliance thereon, she made five monthly payments (two more than was required by the

Agreement) via certified funds in the correct amount and in a timely manner. (Exhibit E.)

Specifically, these payments were made on October 30, November 23 and December 2, 2009,

and February 2, 2010. Id. Thus, Plaintiff honored her end of the oral contract.

61. On March 29, 2010, without any warning or notice to plaintiff whatsoever,AURORA attempted to sell the subject property at a Trustees Sale. No third party purchased it

and, therefore, AURORA purchased the subject property as an REO (real estate-owned)

property and took title for $662,550.84. A Trustees Deed Upon Sale was recorded on April 5,

2010 (instrument no. 20100458327). Exhibit G.

62. As a result, AURORA breached its oral contract with Plaintiff by proceedingwith the trustees sale despite the fact that Plaintiff had made all the required payments under

the Agreement in a timely manner.

63. As a proximate result of defendants breach, Plaintiff faces the permanent lossof and eviction from her home and will thereby suffer economic loss in an amount to be


///


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THIRD CAUSE OF ACTIONBREACH OF CONTRACT



65. Based on the foregoing, the parties entered into a valid, binding oral contractwherein defendant agreed not to foreclose on the subject property if Plaintiff provided all the

requested documentation and information, and made all the requisite payments in a timely

manner. By doing all of these, Plaintiff honored her end of the contract.

66. In justifiable reliance on this Agreement, plaintiff did not hire an attorney, filefor bankruptcy or take any legal action to prevent her home from being foreclosed upon by

defendant.

67. Defendant breached this contract by foreclosing on Plaintiffs property.68. As a proximate result of defendants breach, Plaintiff faces the permanent loss

of and eviction from her home and will thereby suffer economic loss in an amount to be


FOURTH CAUSE OF ACTIONBREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING



70. Defendants represented to the U.S. Treasury Department that it would honor theterms of its HAMP contract. Upon information and belief, defendants had no intention of doing

so. As such, defendants breached the implied covenant and good faith and fair dealing.

71. Plaintiff is an intended third-party beneficiary of that contract and therefore hasstanding to sue for that claim.

72. Similarly, defendants represented to Plaintiff that it would honor the terms of theSpecial Forbearance Agreement.

73. Upon information and belief, defendants had no intention of doing so.


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74. Finally, in regards to the Loan Modification Agreement, defendants representedto plaintiff that they would not foreclose on her house so long as she provided all the requisite

information and documentation and made all required payments, which she did in a timely

manner.

75. Upon information and belief, defendants had no intention of honoring thisagreement to refrain from foreclosing on her home.

76. As a proximate result of the aforementioned actions by defendants, Plaintifffaces the permanent loss of and eviction from her home and will thereby suffer economic loss in

an amount to be determined at trial.

FIFTH CAUSE OF ACTIONJUDGMENT TO SET ASIDE TRUSTEES SALE



78. For the reasons stated hereinabove, Plaintiff is informed and believes and thereonalleges that the trustees sale of March 29, 2010 was not conducted in compliance with the

requirements of Civil Code section 2923.5 which became effective prior to, and apply to, said

trustees sale.

79. Plaintiff is informed and believes and thereon alleges that the trustees sale wasimproperly held and the trustees deed wrongfully executed, delivered, and recorded in that the

trustees sale was conducted with invalid and improper presale procedures, in violation of the

terms and conditions of the promissory note and deed of trust and in violation of the duties and

obligations of defendant beneficiary to Plaintiff, including but not limited to those obligations

set forth in Civil Code section 2923.5, all to Plaintiffs loss and damage in that Plaintiff has

been wrongfully deprived of the beneficial use and enjoyment of the real property and has beendeprived of legal title by forfeiture.

80. Further, based on defendants breach of the Agreement identified hereinabove,defendants unlawfully foreclosed on the subject property.


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81. Plaintiff offers to tender to defendants all amounts due and owing so that theclaimed default may be cured and Plaintiff may be reinstated to all former rights and privileges

under the promissory note and deed of trust. Plaintiff is ready, willing, and able to tender those

sums, if any, that the Court finds due and owing.

SIXTH CAUSE OF ACTIONJUDGMENT TO CANCEL TRUSTEES DEED



83. Defendants claim an estate or interest in the subject property describedhereinabove adverse to that of Plaintiff, but Defendants claims are without any right because

defendants have no estate, right, title, or interest in the real property.

84. The claims of defendants are based on the trustees deed described hereinabove,and purporting to convey the property to defendants.

85. Although the trustees deed appears valid on its face, it is invalid and void orvoidable and of no force or effect regarding Plaintiffs interest in the subject property for the

reasons set forth hereinabove.

86. The estate or interest in the subject property claimed by defendants, purportedlybased upon a trustees deed, strips Plaintiffs title, interest and equity in the subject property,

restricts Plaintiffs full use and enjoyment of the real property, and hinders Plaintiffs right to

unrestricted alienation of it. If the trustees deed is not delivered and canceled, there is a

absolute certainty that Plaintiff will suffer serious and irreparable injury.

SEVENTH CAUSE OF ACTION

QUIET TITLE(Against All Defendants)



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88. Plaintiff seeks to quiet title against the ownership claim of defendants aspurported by the trustees deed upon the sale because defendants claim is without any right and

defendants have no right, title, estate, lien, or interest in the subject property.

89. Plaintiff names as defendants in this action all persons unknown claiming (a) anylegal or equitable right, title, estate, lien, or interest in the subject property adverse to Plaintiffs

title, or (b) any cloud on Plaintiffs title to the property. The claims of each unknown defendant

are without any right, and these defendants have no right, title, estate, lien, or interest in the

subject property.

90. Plaintiff desires and is entitled to a judicial declaration quieting title in Plaintiffsfavor as of March 28, 2010, the day before the Trustees Sale, and restoring possession to

Plaintiff.

EIGHTH CAUSE OF ACTIONPRELIMINARY AND PERMANENT INJUNCTION



92. As stated above, defendants wrongfully and unlawfully instituted and prosecuteda foreclosure against Plaintiffs home and now seek to evict Plaintiff from her home.

93. Said foreclosure is based on the above referenced contracts which defendantsbreached in bad faith.

94. By reason of the wrongful and unlawful foreclosure, Plaintiff will sustain greatand irreparable injury because she will permanently lose her home of many years, and it will be

impossible for Plaintiff to obtain adequate relief by way of money damages because of the

unique nature of real property and, therefore, is without an adequate remedy at law.

95.

Plaintiff will have sustained damages in excess of the jurisdictional limit of thisCourt, and, if the trustees sale is not set aside and the trustees deed upon sale cancelled, will

sustain further damages in an amount to be determined. Plaintiff will, therefore, seek leave of

the Court to amend his Complaint to state the amounts thereof when the same have been

ascertained.


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NINTH CAUSE OF ACTIONDECLARATORY RELIEF



97. An actual controversy has arisen and now exists between Plaintiff andDefendants regarding their respective rights and duties under the contracts identified

hereinabove and Defendants authority to conduct a foreclosure sale against the subject

property.

98. Plaintiff contends that Defendants had an obligation strictly follow the above-described statutory foreclosure procedures, including but not limited to attempting to findalternatives to foreclosure under Civil Code 2923.5 and failing to record the Notice of Default

after the requisite 30-day waiting period pursuant to Civil Code 2923.5(a); and that

Defendants failed to do all of the above. Defendants are expected to claim that they were

entitled to foreclose based on a Plaintiffs failure to make the subject loan payments and that

they followed all statutory procedures.

99. Plaintiff therefore desires a judicial determination of the parties rights andduties, and a declaration as to whether Defendants had a duty to suspend the subject foreclosure

sale.

100. A judicial determination is needed because Defendants are attempting to sell thesubject property which will permanently deprive Plaintiff of the equity, title and use and

enjoyment of her home.

TENTH CAUSE OF ACTIONFRAUDULENT MISREPRESENTATION



102. Defendants, through their agents, have made the following fraudulentmisrepresentations: (1) that they would suspend foreclosure proceedings while Plaintiffs file

was in active review and so long as she provided all the requested documentation and


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information; (2) that they would suspend foreclosure proceedings so long as she made the

required payments under the Agreement; and (3) that Plaintiff would receive a written contract

memorializing the terms of the Agreement;

103. When Defendants made said representations, they knew them to be false andmade them with the intention to deceive Plaintiff and induce her to act (or not act) in reliance

thereon.

104. At the time these representations were made by Defendants, Plaintiff wasignorant of the falsity of Defendants representations and believed them to be true. Based on

said representations, Plaintiff was lulled to her detriment to adhere from taking legal action to

prevent said foreclosure by consulting an attorney, filing a lawsuit and/or filing bankruptcy,

actions which Plaintiff would have otherwise taken (and which would have stopped said sale)

had she known the truth.

105. As a proximate result of the fraudulent conduct of Defendants, Defendants intendto evict Plaintiff from her property and sell it to a third party, thereby depriving Plaintiff of the

beneficial use and enjoyment thereof.

106. As a proximate result of the aforementioned actions by defendants, Plaintifffaces the permanent loss of and eviction from her home and will thereby suffer economic loss in

an amount to be determined at trial.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for judgment against Defendants as follows:

a. For actual damages according to proof;

b. For compensatory damages as permitted by law;

c. For consequential damages as permitted by law;

d. For statutory damages as permitted by law;

e. For equitable relief, including restitution;

f. For interest as permitted by law;

g. For reasonable attorneys' fees and costs; and


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h. For such other and further relief as this Court deems just and proper.

Respectfully submitted.

Dated: June __, 2010 The Gonzalez Law Firm, P.C.

By:______________________________Ramon M. Gonzalez, Esq.

Attorneys for Plaintiff


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VERIFICATION

I, KRISTIE LAUREL HOLLIDAY, am the plaintiff in this action. I have read the

complaint and the facts and allegations contained therein are true to the best of my knowledge,

except as to those matters stated on information or belief and, as to those matters, I believe them

also to be true.

I declare under penalty of perjury that the foregoing is true and correct.

Executed at the City of ___________________, CA, on June __, 2010.

_____________________________________

Documents

Verified Complaint HOLLIDAY 06 24 10 PDF