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Faith Lynn Brashear
1095 Lowry Ranch Road
Corona, California 92881
Tel: 951-268-4042
Fax: 855-204-0859
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Plaintiff in pro se
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SUPERIOR COURT OF CALIFORNIA
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COUNTY OF RIVERSIDE – Historic Courthouse
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FAITH LYNN BRASHEAR, an individual,
Case No.: ___________________________
Assigned to Hon. ______________, presiding
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Plaintiff
Verified COMPLAINT
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vs.
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HONG KONG AND SHANGHAI BANKING
CORPORATION DBA HSBC BANK USA,
NATIONAL ASSOCIATION, as Trustee of
the Holders of the Deutsche Alt-A Securities,
Inc., Mortgage Loan Trust, Mortgage PassThrough Certificates Series 2007-OA4;
THE MORTGAGE LAW FIRM, PLC, as
Trustee and Agent of a Beneficiary; as agent
for Wells Fargo Bank, N.A.; RYAN
REMINGTON, an agent of The Mortgage Law
Firm, PLC; SPECIALIZED LOAN
SERVICING LLC, as servicer for HSBC Bank
USA, National Association, as Trustee for the
Holders of the Deutsche Alt-A Securities, Inc.,
Mortgage loan Trust, Mortgage Pass-Through
Certificates Series 22007 –OA4; AMI
MCKERNAN, an officer and agent of
Specialized Loan Servicing LLC, and All
persons and entities claiming any right to real
property located at 1095 Lowry Ranch Road
Corona, California 92881 and Does 1-20,
inclusively,
Defendants
1. Temporary Restraining Order and OSC re
Preliminary Injunction
(CCP §525-529; §2924.12);
2. For Money Damages for Statutory
Violations of Civil Code Sections:
2923.55 (borrower outreach and
declaration of contact or due diligence),
2923.7 (single point of contact), 2924.9
(notice to a borrower that has not applied
for a loan modification), 2924.10 (loan
modification review process), and
2924.17 (review of foreclosure
documents), et al.;
3. Rescission under Truth in Lending Act;
4. Restitution of Tendered Money under
Truth in Lending Act, et al.
Filed with Ex Parte Application for TRO and
OSC re: Preliminary Injunction and OSC
(C.C.P. §525-529, et al.)
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Verified Complaint
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BASHEAR V. HSBC, et al.
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Comes now the Plaintiff Faith Lynn Brashear for causes of action as follows:
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TO ALL PARTIES AND THEIR COUNSEL OF RECORD, Plaintiff Faith Lynn
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Brashear, hereby moves this Court Ex Parte upon 24 hour Notice as required under California
Rules of Court 3.1150 and C.C.P. 527(c)(2)(A) for a Temporary Restraining Order and
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Preliminary Injunction for the purpose of issuance of a writ of mandamus [to maintain status
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quo], the effect of which restrains defendants HSBC BANK USA, NATIONAL
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ASSOCIATION, as Trustee of the Holders of the Deutsche Alt-A Securities, Inc.,
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Mortgage Loan Trust, Mortgage Pass-Through Certificates Series 2007-OA4; THE
MORTGAGE LAW FIRM, PLC, as Trustee and Agent of a Beneficiary; as agent for
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Wells Fargo Bank, N.A.; RYAN REMINGTON, an agent of The Mortgage Law Firm,
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PLC; SPECIALIZED LOAN SERVICING LLC, as servicer for HSBC Bank USA,
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National Association, as Trustee for the Holders of the Deutsche Alt-A Securities, Inc.,
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Mortgage loan Trust, Mortgage Pass-Through Certificates Series 22007 –OA4; as
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foreclosing entities and trustees and all other involved defendants and each of them, from
auctioning by an improper non-judicial foreclosure of his primary residence, a single family
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residence known as 1095 Lowry Ranch Road, Corona, California 92881 which is facing an
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illegal foreclosure auction sale with a specific date* pending as of the filing of this action but
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who has received a recorded Notice of Default that is faulty, premature and unenforceable as a
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prefatory tool leading to a non-judicial foreclosure which must be stopped.
The facts will show by extremely convincing evidence the bank has no reason or right
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to foreclose since no foreclosing defendant has complied with the statutory requirements of
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California law. This is a foreclosure action that commenced prior January 1, 2013, the Perata
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Act of 2008 then, applies. However to the extent that any foreclosure sale is to be performed
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AFTER January 1, 2013, the provisions of the Foreclosure Protection Act of 2012 apply. In
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EITHER event, violations of both codes are evident justifying immediate issuance of a TRO
and PI.
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*URGENCY - SALE DATE PENDING
3. Plaintiff advises the court that a "SALE DATE" for the property is scheduled for July 20,
2015, Exhibit #1 - Notice of Trustee's Sale.
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Verified Complaint
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EXHIBITS IN SUPPORT OF TRO
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In support of this Application for writ of prohibition the court will find these Exhibits:
1. Promissory Note
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2. Deed of Trust associated with the real property
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3. Grant Deed showing plaintiff's ownership
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4. Non-compliant Notice of Default date recorded December 22, 2014,
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without a proper Declaration of Due Diligence mandatory under
Civil Code § 2923.5. [Declaration of Plaintiff Faith Lynn Brashear
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[hereafter “Brashear”] confirms no "contact" was
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effected by the foreclosing defendant WFM, as trustee] Moreover, under
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CC § 2923.55, et al, no contact with plaintiff was made nor notice given
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prior to the recordation of the operative Notice of Default. Injunctive
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relief is permitted under the authorities cited, specifically, Civil Code §
2924.19.
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5. . *Notice of Trustee's Sale dated 4/01/2015
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VENUE AND JURISDICTION
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Venue is proper in this Court pursuant to California Code of Civil Procedure Section
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395 (a) because Defendants reside and do business in this County in California, which is
also where they committed the unlawful acts alleged herein that affected Plaintiff.
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PARTIES
4. Defendants are as appears on the caption and are in some manner responsible for the
wrongful and illegal acts complained of herein. Defendants and each of them are national
banks, lenders and capital providers of purchase money loans to the public, their agents,
officers, managing agents, assignees, successors in interest, appraisers, notaries, actual
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trustees, substitute trustees, and holding company or pooling servicing agreement
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authorized trustees and on information and belief are business entities, LLC's and
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corporations, organized and existed under the laws of the State of California and other
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jurisdictions, yet unknown who have contacts and are doing business in California.
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Verified Complaint
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5. Defendants HSBC BANK USA, NATIONAL ASSOCIATION, as Trustee of the Holders
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of the Deutsche Alt-A Securities, Inc., Mortgage Loan Trust, Mortgage Pass-Through
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Certificates Series 2007-OA4; THE MORTGAGE LAW FIRM, PLC, as Trustee and
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Agent of a Beneficiary; as agent for Wells Fargo Bank, N.A.; RYAN REMINGTON, an
agent of The Mortgage Law Firm, PLC; SPECIALIZED LOAN SERVICING LLC, as
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servicer for HSBC Bank USA, National Association, as Trustee for the Holders of the
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Deutsche Alt-A Securities, Inc., Mortgage loan Trust, Mortgage Pass-Through Certificates
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Series 22007–OA4; AMI MCKERNAN, an officer and agent of Specialized Loan
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Servicing LLC, and All persons and entities claiming any right to real property located at
1095 Lowry Ranch Road Corona, California 92881 and Does 1-20, inclusively, and Does
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1-20, inclusively and each of them are and at all times herein mentioned was, a business
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entity or individual agent or assignee or successor in interest doing business in Riverside
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County, California.
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6. Defendant NON-ENTITIES ARE INDIVIDUALS with principal places of business within
this county.
7. Mortgage Electronic Registration Systems, Inc. (“MERS”), is a Delaware corporation with
its principal place of business alleged to be in the State of Virginia who may have acted as
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a holder of a deed of trust [DOT, hereafter] as a “nominee” of the beneficiary loan
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originator with no power to act without directed instructions from beneficiary, trustee or
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loan servicer. Its purpose is the register assignments of DOTs to avoid the burden and fees
charged by Counties in the US customarily charged for such recordation of assignments.
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MERS by its national banking affiliation and activities does business in this county.
8. “All Persons Unknown, Claiming Any Legal Or Equitable Right, Title, Estate, Lien, Or
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Interest In The Property Described In The Complaint Adverse To Plaintiffs’ Title, Or Any
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Cloud On Plaintiffs’ Title Thereto” are sued herein pursuant to California Code of Civil
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Procedure Section 762.020(a).
9. Plaintiff is an individual and owner of property the subject premises of this action known
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as 1095 Lowry Ranch Road, Corona, California 92881.
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10. Plaintiffs do not know the true names and capacities of the defendants sued herein as
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DOES 1 through 20 (“DOE Defendants”), inclusive, and therefore sues said DOE
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Defendants by fictitious names. Plaintiffs are informed and believe and based on such
information and belief aver that each of the DOE Defendants is contractually, strictly,
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negligently, intentionally, vicariously liable and or otherwise legally responsible in some
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manner for the acts and omissions described herein. Plaintiffs will amend this Complaint
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to set forth the true names and capacities of each DOE Defendant when same are
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ascertained.
11. Plaintiffs are informed and believe and based on such information and belief aver that
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Defendants and DOE Defendants 1 through 10, inclusive, and each of them, are and at all
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material times have been, the agents, servants or employees of each other, purporting to act
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within the scope of said agency, service or employment in performing the acts and
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omitting to act as averred herein.
12. Each of the Defendants named herein are believed to, and are alleged to have been acting
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in concert with, as employee, agent, co-conspirator or member of a joint venture of, each of
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the other Defendants, and are therefore alleged to be jointly and severally liable for the
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claims set forth herein, except as otherwise alleged.
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GENERAL ALLEGATIONS
13. Plaintiff alleges that plaintiff is the current legal owner of the subject premises by Grant
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Deed. See Exhibit #4
14. Plaintiff is the owner of the Residence located at 1095 Lowry Ranch Rd, Corona CA
92881. The subject of this action and for which funds were apparently paid for purchasing
said home at the subject location which is plaintiff’s PRIMARY RESIDENCE for
purposes of Civil Code § 2923-2924 and 2923.55, et seq is the promissory note dated on
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or about 5/14/2007 This action is subject to the provisions of the Foreclosure Protection
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Act of 2013 and the Perata Act of 2008. Plaintiff is uncertain of exactly who is the
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equitable owner under any existing Note or deed of trust associated with the note, thus
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disputing ownership of the rights. Equitable ownership of the Note or pursuant to a Deed
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of Trust in California is not an irrebutable presumption nor factual inference and is placed
in issue in these pleadings.
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15. Plaintiff 's loan including the promissory note, deed of trust, assignments all are subject to
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the Civil Code governing non-judicial foreclosures in California and the requirements are
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binding upon any beneficiaries, loan servicers and trustees associated with the underlying
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promissory note.
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16. By judicial notice to all statutes and case law applicable, any material violations of the
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codes designed to protect consumers from improperly effected foreclosure proceedings are
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subject to injunction and restraining orders, concomitantly.
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17. Plaintiff alleges [and re-alleges in the co-filed Ex Parte Application for TRO and
preliminary injunction that all defendants violated one or more of the Civil Code
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provisions, inter alia, especially the strict requirement of Civil Code § 2923.55, [i.e., there
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was no contact by the proper beneficiary, loan servicer or their trustee prior to recording a
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notice of default and no declaration of due diligence endorsed by anyone with personal
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knowledge of the truth of such assertion] sufficiently egregious to warrant injunction
against foreclosure of this property under CC § 2924.12, 2924.18, et al.
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18. Plaintiff alleges the content of any terms contained in the Note or DOT [deed of trust] are
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fully subordinate to the Civil Code provisions references and in the event of a breach of the
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code, the code provisions govern.
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19. Plaintiff alleges that foreclosing parties have breached contracts promising to reduce the
monthly payments and agreement not to foreclose, damages plaintiff’s credit, failed
properly account for and credit payments, was overcharged on his note from the time of the
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closing of escrow to the present resulting in charges not owed, but demanded by
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defendants, and placed other illegal charges against plaintiffs loan account illegally. This
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demonstrates a pattern and practice of illegal foreclosure activity and corruption causing
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plaintiff damages and economic injury.
20. Plaintiffs asserts the following; (a) that the down payment and closing costs Plaintiff
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invested are injuries; (b) the pass through funds issued from both national and international
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investors to the alleged “creditor” that created Collateralized Debt Obligations (CDO’s)
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which profited from Plaintiffs signatures are injuries. (c) the mortgage payments made to
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the Servicers on pre-bifurcated promissory notes on any securitized instrument of MERS
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are injuries. (d) the value loss and hardship loss of money and/or the ability to pay off any
notes are injuries. (e) the loss of a good credit rating are injuries. (f) the falsely inflated
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value of the home vs the actual value of the property are injuries.
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BACKGROUND
21. This complaint concerns a home loan that was brokered to Plaintiff through granted
privilege of a now non-party “COUNTRYWIDE HOME LOANS”, INC; originated by the
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now non-party COUNTRYWIDE BANK, FSB 1st and 2nd purchase combination loan, and
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through plaintiffs broker granted privilege on 3/06/2006 refinanced through
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COUNTRYWIDE BANK.FSB
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22. Plaintiff was both a consumer and a wholesale broker to COUNTRYWIDE BANK, FSB
for this refinance transaction. 5/14/2007.
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23. Plaintiff was unaware at that time that COUNTRYWIDE BANK, FSB was acting as the
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Originator on behalf of the THE DEUTSCHE ALT-A SECURITIES INC MORTGAGE
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PASSTHROUGH CERTIFICATE SERIES 2007-OA4 herein called the REMIC
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CONDUIT TRUST.
24. Plaintiff was unaware of the pass through loan reflected upon the Deed of Trust was not
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the lenders own funds at that time.
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25. The MERS Member Identification Number, herein referred to as MIN, identifies the
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“Trusts” Originator through the first series of numbers as MERS Member 1001337.
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Plaintiff was not aware of the MIN# function at that time.
26. COUNTRYWIDE BANK, FSB is MERS Member 1001337
27. The MERS MIN identifies the second series of numbers as the loan being tendered as
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0002108190.
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28. Plaintiffs loan number disclosed to her by COUNTRYWIDE BANK, FSB was 165368264
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29. The Investors Interests pass through funds that tendered the note and bifurcated the Deed
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of Trust was 0002108190
30. Plaintiff was unaware at that time that through the MERS system the following occurred to
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tender the loan. See Visual aid - Transaction Structure of the “Trusts” Prospectus
Supplement to the Trust page S-19. Exhibit #14
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1) COUNTRYWIDE BANK, FSB originated loan on 5/14/2007, on behalf of the
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REMIC conduit pass through Trust. Countrywide’s Role as the Trust’s
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Originator for the Trust is summarized in the Prospectus Supplement to the Trust
page S-81. See Exhibit #14
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2) Investor interests were passed through defendant HSBC as the Trustee of the
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“Trust” to undisclosed Investors and/or Investors. Investors Interest.
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3) The pass through funds were then filtered though Deutsch Bank
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Securities, the Underwriter of the REMIC Conduit Trust.
4) The pass through funds were then filtered through ACE SECURITIES CORP.
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the REMIC Conduits Depositor who deposited the pass through funds with the
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REMIC Conduit Trust Sponsor DB STRUCTURED PRODUCTS, Inc
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5) The pass through funds were then filtered through the MERS Member
Originator COUNTRYWIDE BANK, FSB who in turn used these pass
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through funds to fund Plaintiffs home refinance.
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6) The instrument was immediately bifurcated upon tender and
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COUNTRYWIDE BANK, FSB maintained the Deed of Trust without transfer.
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See: Kemp v Countrywide Case 08-02448-JHW Doc 25
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31. The Transaction Summary further details the Servicer who collected payments from
Plaintiffs were directed back to the Wells Fargo, the Master Servicer assigned to the
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REMIC Conduit Trust through which Plaintiffs payments where pass-through as follows…
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1) The Master servicer of the REMIC Trust passed through Plaintiffs
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payments into the REMIC Conduit Trust.
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2) The REMIC Conduit Trust would filter these funds to the
Depositor.
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32. The actual securitization of the instruments Deed of Trust never took place. Instead the
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following occurred.
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1) the promissory note was passed-through to DB STRUCTURED PRODUCTS,
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Inc.
2) the promissory note was passed-through to ACE SECURITIES CORP.
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3) The promissory note was further passed-through to HSBC BANK, NA AS
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TRUSTEE FOR THE CERTIFICATE HOLDERS OF DEUTSCHE ALT- A
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SECURITIES MORTGAGE LOAN TRUST 2007-OA4.
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33. The formation of DEUTSCHE ALT-A SECURITIES MORTGAGE LOAN TRUST 2007-
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OA4 was subject to the Pooling and Servicing Agreements (PSA) cut off dates, dated June
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1st 2007.
34. The DEUTSCHE ALT-A SECURITIES MORTGAGE LOAN TRUST 2007-OA4 had a
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Prospectus outlining credit enhancement for certificates that provided excess interest,
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overcollateralization, and subordination offerings to public investors on the One-Month
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LIBOR Index.
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35. Arrest fore the Manipulation of the LIBOR index took place in and around December
2012.
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36. No re-conveyance of the loan was filed on the refinanced Countrywide loan per line 23 of
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the Deed of Trust after this loan was paid through the securitization process from
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COUNTRYWIDE BANK, FSB to DB STRUCTURED PRODUCTS, Inc.
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37. No re-conveyance of the loan was filed when this same loan was further sold to ACE
SECURITIES CORP.
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38. No re-conveyance of the loan was filed when the same loan was further sold to US BANK,
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NA AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF DEUTSCHE ALT- A
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SECURITIES MORTGAGE LOAN TRUST 2007-OA4.
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39. No re-conveyance of the loan was filed after the loan was again paid by investors who
purchased the certificates through the trust.
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40. Line 23 upon the Promissory note states as follows “Upon payment of all sums secured by
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this Security Instrument, Lender shall request Trustee to Reconvey the Property and shall
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surrender this Security Instrument and all notes evidencing debt secured by this Security
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Instrument to Trustee.
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41. Plaintiff alleges the MERS Members assigned to and/or acting on behald of the Deutsche
Alt-A Securities, Inc., Mortgage Loan Trust, Mortgage Pass-Through Certificates Series
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2007-OA4of this REMIC did so Ultra Vires.
42. Dicoveries of actual TILA violations by plaintiff took place in and around 2009 during
Plaintiffs time as a volunteer Federal Witness for Mortgage Crimes in the Inland Empire.
43. On and around 2009 Plaintiff worked at Countrywide as a loan officer during the
transition from Countrywide to BAC Financial. Plaintiff was later transferred as a loan
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officer to BANK OF AMERICA later in 2009.
44. On or about 03/2009 Plaintiff performed a Mortgage Loan Audit review by REA(Real
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Estate Attorney Support Services) that was completed on 3/25/2009 The audit noted the
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following:
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A) The Annual Percentage Rate (APR) was under disclosed by 1.48900.
B) The finance charge was under disclosed $662,502.47.
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C) The amount financed was under disclosed $6,586.16 for a total of
$669,088.63.
D) The loan did not have the proper signed documentation of the Plaintiffs right
cancel, violating Regulation Z 226.5(a)(1) and 226.17 (a) (1),
15 USC 226.15 (b) and 226.23
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45. Plaintiff immediately rescinded the loan and requested the transaction be reversed to avoid
foreclosure. Bank of America ignored the request.
46. Plaintiff went insolvant and filed chapter 7 6:08-bk-25762-PC. The loan in question was
fully discharged in bankruptcy proceedings.
47. Plaintiff attempted to restructure under a chapter 11 but was unable to continue due to her
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husbands cancer condition per the trustee’s request
48. Plaintiff attempted to restructure again in 2011 but was told Bank of America was not
modifying Jumbo loans.
49. In and around 2012 Plaintiff found out that the Master Servicer assigned to the REMIC
conduit Trust – Wells Fargo - was designated as the party providing relif through
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assurnaces to California Attorney General for significate price reductions on jumbo loans.
No such relief was granted to Plaintiff. See Exhibit R
50. In May 2012 1st Plaintiff’s husband was qualified for a Mortgage in the same payment
amount that a restructure under the said home would allow under HAMP.
51. Under California Civil Code Section 2923.6 1st Plaintiff in fact was able to qualify her
husband under HAMP under an investor-approved reduction.
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52. Plaintiff in and around June of 2012 agreed to short sale under assurances BofA would not
foreclosue.
53. The discovery upon Bank of America’s attempt to foreclose in 7/2012 without Plaintiffs
awareness, that the note and the deed were bifurcated by more than 5 years surfaced.
Plaintiff immediately demanded QWR
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54. Plaintiff further obtained a loan approval to show ability to restructure in and around this
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time. Bank of America gave assurances they would modify, then preceded to lose
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Plaintiffs information.
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55. In and around November 2012, Plaintiff began working for a Fraud investigation company
where she dicovered further frauds committed by Countrywide and Bank of America.
56. Plaintiff became aware of robo-signing, fraudulent deed assignments and came to the
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realization that the investigations she had volunteered for, were loans used to perpetuate
fruads on the SEC.
57. Plaintiff filed Chapter 13 BK with the intention bringing this information forth and to seek
the modification Bank of America had promised.
58. Defendant HSBC attorney representative kick Plaintiff out of bankruptcy resturcture.
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59. Plaintiff asserts that Defendant HSBC acted with the awareness that the REMIC Couduit
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trust in which they were acting on behalf of, was suspended/terminated on the SEC in
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2008.
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60. Plaintiff again attempted to modify with Bank of America’s assurances while her state
appeal case was starting up early 2013. Bank of America comitted dual tracking.
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61. In and around late 2013 Plaintiff’s case was dismissed through court technicalities.
Plaintiff retained legal council and appealed the case.
62. Plaintiff again was conveyed assurances that DEFENDANTS would not take any
foreclosure actions until the determination of the appeals hearing at Plaintiff’s State Case.
See Exhibit #8- email from Bank of America’s legal council to Plantiffs Attorny-retracted.
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63. In and around 2014 Bank of America transferred Plaintiffs loan to SLS during a
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Government Ban imposed upon Bank of America to not transfer Countrywide loans.
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Article -3 §203 transfers cannot be made if the transferee engaged in fraud or illegality
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affecting the instrument.
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64. Over the course of the following year Plaintff documented Defendant SLS violating
muliple laws further cocumented through the Consumer Financial Protection Bureau
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referenced as CFBP Case numbers: 140221-002071, Case number: 140508-001150,
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140515-000623, 140515-000636, 140509-000318, 140515-000623, 140930-000635,
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140508-001150, 140606-001215, 140609-000800, 140922-000297, 140922-000193,
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140922-000207, 140922-000191, 140922-000211, 140922-000208, 141001-000235,
141001-000324, 141001-000306, 141001-000286, 141001-000356, 140922-000043,
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141001-000379, 141215-000178, 141215-000144, 150102-000468, 150105-000714,
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150102-000468, 150312-000857, 150318-000451, 150318-001551, 150318-001601,
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150318-001560, 150318-001536, 150318-001585, 150324-000657, 150324-001726,
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150318-001536, 150401-001922, and 150331-001704. Including but not limited to
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1- Failure to notify Plaintiff of servicer transfer. 12 CFR § 1024.39.(8) Failure to
transfer accurately and timely information relating to the servicing of a
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borrower's mortgage loan account to a transferee servicer.
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2 – Laying false claims the “had the wrong address” when the last
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know address was attached to the 2nd Amended compalint directly
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served to Bank of America.
3- Failure to comply with requests made under 15 USC 1692g. Sec 809 (b)
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4- Failure to provide accurate information to a borrower regarding loss
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mitigation options and foreclosure, as required by 12 CFR § 1024.39.
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5-Failure to provide an accurate payoff balance amount upon a borrower's
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request in violation of section 12 CFR 1026.36(c)(3)
6- Failure to produce a statement of Claim
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7- Faitlure to acknowlege a recission through multiple notice of errors,
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conveyance of the court appeal and exhibits to the case. Conveyance of
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awareness of the Government ban of Countrywide identified loans.
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8- 12 CFR § 1024.39 (10) Moving for foreclosure judgment or order of
sale, or conducting a foreclosure sale in violation of § 1024.41(g) under
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which U.S. Code › Title 12 › Chapter 27 › § 2605 12 U.S. Code § 2605 (e)
Duty of loan servicer to respond to borrower inquiries.
65. In March 2015 Plaintiff Discovered that REMIC Conduit Trust was Termination and
or/suspended in 2008 on the SEC. (see attached Certification and Notice of Termination of
Registration under Section 12(g) of the Securities Exchange Act of 1934)
66. Plaintiff asserts evidence of a 10k report filed for larger entities over 300 persons existed
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after the termination or suspension. This evidences recordation of a Termination of
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Registration” under Section 12(g) of the Securities Exchange Act of 1934, per 17 CFR
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240.12g-4 (b) If the suspension resulted from the issuer's merger into, or consolidation
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with, another issuer or issuers, the certification shall be filed by the successor issuer.
67. Plaintiff asserts once these trusts were suspended/ terminated; the notes would have had to
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return to its Predecessor of interest to be legally enforceable. The Transfer of the Deed of
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Trust recorded on Title 5 years after the fact evidences transfer to the “holders” of the
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“terminated” Trust. This evidence shows the courts that the note never left the trust.
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Exhibit #8
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68. Plaintiff asserts a terminated/swapped out trust nullifies the transaction, extinguished the
note, and forever disables the ability to fully consummate a legal transaction. Thus the SEC
23
cannot enforce the “tender” Rule pursuant to 14d-10 under the Securities Exchange Act
24
1934. See: Lerro v. Quaker Oats Co., 84 F. 3d 239(7th Cir. 1996).
25
26
69. Plaintiff asserts that these 10k report filings intents are identified in the pooling and
servicing agreement as Certificate Swap Out Agreement Schedule
27
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Verified Complaint
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BASHEAR V. HSBC, et al.
1
V2.6-23
70. The Certificate Swap Agreement, dated as of June 29, 2007,was between HSBC Bank
2
USA, National Association, as trustee, as trustee on behalf of the Supplemental Interest
3
Trust, and the Certificate Swap Provider.
4
71. The underlying facts were not fully discovered until March 2015 after the State appeal was
initiated therefor it was impossible for Plaintiff to bring forth actionable injury until she
5
could fully comprehend the extent to which damage had been done to her. (Tella 1&2).
6
FIRST CAUSE OF ACTION FOR TEMPORARY RESTRAINING
7
8
ORDER AND PRELIMINARY INJUNCTION TO ENJOIN FORECLOSURE
SALE OF SUBJECT PROPERTY [Violation of Foreclosure Protection Acts including
9
the Failure of any Defendant to Comply with Pre-foreclosure and Pre-Non-Judicial
10
Foreclosure Requirements Permitting Injunction of Foreclosure] CCP §§ 526-529 (by
11
verified Complaint)
12
13
72. Plaintiffs incorporate herein by reference the allegations made in all preceding paragraphs
and causes of action inclusive, as though fully set forth herein.
73. Plaintiff hereby incorporates the content of the entire Application for TRO and Preliminary
14
Injunction as though filly set forth including the Prayer for relief as though fully set forth
15
hereafter. Good cause exists for multiple violations of the California Civil Code formerly,
16
aka the Perata Act of 2008, under CC § 2923.5(b), 2923.55, et al., and recently the
17
Foreclosure Protection Act of 2013, and its interpretive case of Mabry v. Superior Court,
and the added provisions mandating injunction of foreclosure proceedings where the
18
enumerated grounds are shown. Under this strict statutory scheme any violation of the
19
requirements by a foreclosing defendant or third party must be enjoined. The core facts and
20
elements are set forth in the Ex Parte Application for TRO and Preliminary Injunction to
21
be filed.
22
23
74. In this case at bar, undeniable evidence exists that defendants have violated Civil Code
sections including those supporting the issuance of a preliminary injunction [see below] –
including those defendants sued in the first cause of action for Negligence, and their
24
successors in interest, assignees, agents and other Does 1-20 acting on their behalf violated
25
CC§ 2923.5(b). 2923.6 and the new 2013 enacted laws including CC § 2924.17 and thus,
26
no foreclosure is permitted under Mabry interpreting the code and for violation of the duty
27
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Verified Complaint
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BASHEAR V. HSBC, et al.
1
2
3
4
V2.6-23
to exercise "due diligence" by "contacting" the plaintiff to work out foreclosure
alternatives.
75. Plaintiff is entitled to injunctive relief to stop all conveyance of his subject property for
reasons stated. See Ex Parte Application if co-filed asserting grounds and good cause for
issuance of a TRO and OSC re preliminary injunction, hereafter.
5
6
7
8
76. The content of this verified complaint are sufficient to satisfy the requirements of CCP §
525-529, et seq to support the injunctive relief so sought.
77. As alleged in the co-filed Ex Parte Application for TRO and Preliminary Injunction,
plaintiff alleges that each defendant has engaged in conduct sufficient to warrant the relief
so sought and without which plaintiff will forever lose a valuable unique asset, plaintiff's
9
10
11
12
primary residence and single family home on which plaintiff was not deficiently late in
paying on a note as pled inter alia. [See TRO and Declaration of plaintiff in support]
78. Plaintiff seeks relief consistent with fairness and equity and will suffer irreparable harm
without an injunctive order by writ being issued.
13
SUMMARY
14
79. First, not only is a TRO justified, but a preliminary injunction after OSC must be granted.
15
This application is not the typical financially distressed homeowner's last minute disparate
16
effort to stave off foreclosure that is justified. This is the opposite and brought by a
17
financially responsible employed businesswoman, well educated, and a student of law,
who has acted responsibly and with integrity only to be rebuffed by her lender beneficiary
18
defendant HSBC Bank USA, National Association, as Trustee for the Holders of the
19
Deutsche Alt-A Securities, Inc., Mortgage loan Trust, Mortgage Pass-Through Certificates
20
Series 22007 –OA4 who now, without good cause, wants to illegally auction her home.
21
80. Secondly, as the Exhibits and Declaration will tell, the existing statutory scheme under the
22
Homeowner’s Bill of Rights of 2008, 2009 and 2012 protecting homeowners "must be
followed" and no foreclosures are allowed unless the scheme is followed. Plaintiff will
23
24
25
26
present evidence that the "shall" language of the statute was violated grossly defeating the
alleged beneficiary's right to foreclose.
81. The foreclosing parties cannot conduct a sale because they violated the predicate
requirements stated in the Civil Code, to wit: they failed to contact Brashear prior to
recording a NOD, failed to attach a conforming Declaration of contact, declared the Note
27
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28
Verified Complaint
-
BASHEAR V. HSBC, et al.
1
V2.6-23
to be in “default” when it was not, and failed to follow the terms of a new Novation
2
arrangement being negotiated between the beneficiary bank Bank of America and Brashear
3
on or about 2013 and then intentionally denied the new novation terms existed which
artificially inflated her payments making it look as though she defaulted which she did not.
4
See Dec. of Brashear. Civil Code Sections 2923.55 and 2924.12.
5
Injunction must be granted if any deficiency exists as a matter of law.
6
82. Lastly as a matter of law, no substitution of trustee actually exists for any Defendant, as per
7
2934a(1)(A) The substitution has been signed pursuant to subparagraph (B) of paragraph
8
(1). or (B) the holders of more than 50 percent of the record beneficial interest of a series
9
of notes secured by the same real property or of undivided interests in a note secured by
10
real property equivalent to a series transaction, exclusive of any notes or interests of a
11
licensed real estate broker that is the issuer or servicer of the notes or interests or of any
12
affiliate of that licensed real estate broker.
13
EXTREME URGENCY AND NECESSITY FOR EX PARTE APPLICATION
14
83. This emergency application is made as a method of last recourse after no other reasonable
15
effort by letter or telephone between plaintiff and defendants nor available remedy at law
16
exists to stop this improper non-judicial foreclosure sale. . [See Declaration of Brashear
and Points and Authorities]
17
84. The immediate urgency of this petition is that if no injunction is issued by temporary
18
restraining order and then successive preliminary injunction a grave injustice and prejudice
19
will attach as plaintiff will lose her home to an illegal foreclosure. As the evidence will
20
show, the foreclosing defendant parties have violated multiple provision of the
21
prerequisites embodied within the California law governing such acts; to wit, most
critically, the Civil Code §§ 2923.5, and 2923.55, et al. and crucial interpretive case cite,
22
Mabry v. Superior Court. 1
23
24
. (Mabry v. Superior Court (2010) 185 Cal.App.4th 208.) Relevant here, the court held, “ . . . If section 2923.5 is
not complied with, then there is no valid notice of default and, without a valid notice of default, a foreclosure sale
cannot proceed. The available, existing remedy is found in the ability of a court in section 2924g,
subdivision(c)(1)(A), to postpone the sale until there has been compliance with section 2923.5. Reading section
2923.5 together with section 2924g, subdivision (c)(1)(A) gives section 2923.5 real effect.” (Id. at p. 223.)
1
25
26
27
- 15
28
Verified Complaint
-
BASHEAR V. HSBC, et al.
1
V2.6-23
85. In short, NO FORECLOSURE is permitted without compliance, see Mabry, fn 1. Plaintiff
2
will show clearly in his affidavit that clear violations occurred violating Mabry justifying
3
the basis for this application; the reason –
1- No ‘contact’ was attempted prior to filing a Notice of Default.
4
2- A Declaration of due diligence was not properly recorded, an error that cannot be
5
ignored by this honorable court to allow foreclosure. BOTH code sections suggest the
same duties. §2923.5 is cited. 2 § 2923.55, is cited. 3
6
7
2923.5. (a) (1) A mortgage servicer, mortgagee, trustee,
beneficiary, or authorized agent may not record a notice of default
pursuant to Section 2924 until both of the following:
(A) Either 30 days after initial contact is made as required by
paragraph (2)* or 30 days after satisfying the due diligence
requirements as described in subdivision (e).
*(B) The mortgage servicer complies with subdivision (a) of Section
2924.11, if the borrower has provided a complete application as
defined in subdivision (f) of Section 2924.11.
(2) A mortgage servicer shall contact the borrower in person or by
telephone in order to assess the borrower's financial situation and
explore options for the borrower to avoid foreclosure. During the
initial contact, the mortgage servicer shall advise the borrower that
he or she has the right to request a subsequent meeting and, if
requested, the mortgage servicer shall schedule the meeting to occur
within 14 days. The assessment of the borrower's financial situation
and discussion of options may occur during the first contact, or at
the subsequent meeting scheduled for that purpose. In either case,
the borrower shall be provided the toll-free telephone number made
available by the United States Department of Housing and Urban
Development (HUD) to find a HUD-certified housing counseling agency.
Any meeting may occur telephonically.
(b) A notice of default recorded pursuant to Section 2924 shall
include a declaration that the mortgage servicer has contacted the
borrower, has tried with due diligence to contact the borrower as
required by this section, or that no contact was required because the
individual did not meet the definition of "borrower" pursuant to
subdivision (c) of Section 2920.5.
2
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
3
2923.55. (New-2013) (a) A mortgage servicer, mortgagee, trustee, beneficiary,
or authorized agent may not record a notice of default pursuant to
Section 2924 until all of the following:
(1) The mortgage servicer has satisfied the requirements of
paragraph (1) of subdivision (b).
(2) Either 30 days after initial contact is made as required by
paragraph (2) of subdivision (b) or 30 days after satisfying the due
diligence requirements as described in subdivision (f).
(3) The mortgage servicer complies with subdivision (c) of Section
2923.6, if the borrower has provided a complete application as
defined in subdivision (h) of Section 2923.6.
(b) (1) As specified in subdivision (a), a mortgage servicer shall
send the following information in writing to the borrower:
(A) ………Redacted. [ Plaintiff is not a servicemember.]
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Verified Complaint
-
BASHEAR V. HSBC, et al.
1
V2.6-23
3- Contact was NOT made in a timely manner in accordance to 2923.5. (a) (e) (2)
2
or(4) nor did the servicer posted a predominant link in compliance with 2923.5. (a)
3
(e) (5) (A-H) located at www.SLS.net.
4
86. Defendant SLS has not posted a prominent link on the homepage of its
Internet Web site, to the following information:
5
(A) Options that may be available to borrowers who are unable to afford their
6
mortgage payments and who wish to avoid foreclosure, and instructions to
7
borrowers advising them on steps to take to explore those options
8
(B) A list of financial documents borrowers should collect and be prepared to
present to the mortgage servicer when discussing options for avoiding
9
10
foreclosure.
(C) A toll-free telephone number for borrowers who wish to discuss options for
11
avoiding foreclosure with their mortgage servicer.
12
(D) The toll-free telephone number made available by HUD to find a HUD-
13
certified housing counseling agency
Points and Authorities in Support of TRO
14
87. Citing in large part Code of Civil Procedure §§525-529, et al. delineated within Witkin, as
15
follows examining first, the statutory and governing statutes then, the procedural
16
requirements , then the OSC and Preliminary Injunctive Order of Ex Parte Application,
17
infra.
I. (a) Statutory Framework.
(1) [§289] Conditions.
18
(1) Governing Statutes. The current statutory scheme governing
19
injunctions was originally enacted in 1872. Preventive relief is granted by
20
injunction, provisional or final (see C.C. 3420 et seq.). (C.C. 3420.)
21
Provisional injunctions are governed by the Code of Civil Procedure (see
22
23
24
25
26
27
(B) A statement that the borrower may request the following:
(i) A copy of the borrower's promissory note or other evidence of
indebtedness.
(ii) A copy of the borrower's deed of trust or mortgage.
(iii) A copy of any assignment, if applicable, of the borrower's
mortgage or deed of trust required to demonstrate the right of the
mortgage servicer to foreclose.
(iv) A copy of the borrower's payment history since the borrower
was last less than 60 days past due.
(b) (2) A mortgage servicer shall contact the borrower in person or by
telephone in order to assess the borrower's financial situation and
explore options for the borrower to avoid foreclosure.
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Verified Complaint
-
BASHEAR V. HSBC, et al.
1
V2.6-23
C.C.P. 525 et seq.). (C.C. 3421.)
2
(2) Permanent and Preliminary Injunctions. A permanent injunction
3
may be granted under any of the following circumstances, and an
injunction may be granted as a provisional remedy under the same
4
conditions:
5
(a) Pecuniary compensation would be inadequate. (C.C. 3422(1);
6
C.C.P. 526(a)(4); see infra, §294.)
7
(b) The proper pecuniary compensation would be extremely difficult
to ascertain. (C.C. 3422(2); C.C.P. 526(a)(5); see infra, §294.)
8
(c) The injunction is necessary to prevent multiple judicial
9
proceedings. (C.C. 3422(3); C.C.P. 526(a)(6); see infra, §296.)
10
(d) The obligation arises from a trust. (C.C. 3422(4); C.C.P. 526(a)(7);
11
see infra, §309.)
88. Preliminary Injunctions. An injunction may be granted as a provisional remedy under these
12
additional conditions:
13
(a) The complaint shows that the plaintiff is entitled to the requested relief, and
14
that relief consists in restraining the act complained of. (C.C.P. 526(a)(1).)
15
(b) The complaint or affidavits show that the commission or continuance of an
16
act during the litigation would cause waste, or great or irreparable injury, to a
party. (C.C.P. 526(a)(2); see infra, §295.)
17
(c) During the action it appears that a party is doing or about to do, threatening,
18
procuring, or allowing an act that violates the rights of another party
19
regarding the subject of the action, and that tends to render the judgment
20
ineffective. (C.C.P. 526(a)(3); see infra, §§297, 298.) 4
Citing Witkin:
21
II. Procedure for Obtaining Provisional Remedy.
22
1. Temporary Restraining Order
23
(a) [§363] Ex Parte Issuance.
24
25
26
(1) Verified Complaint or Affidavits. A temporary restraining order may not be
4
CALIFORNIA PROCEDURE 5TH\VI Provisional Remedies\IV. INJUNCTION\B. Right to Injunction.\1.
Factors Determining Right.\(a) Statutory Framework.\(1) [§289] Conditions. [6 Witkin, Cal. Procedure (5th ed.,
2008) Provisional Remedies, §289, p.229.]
27
- 18
28
Verified Complaint
-
BASHEAR V. HSBC, et al.
1
V2.6-23
granted without notice to the opposing party, unless it appears from facts shown
2
by affidavit or by the verified complaint that great or irreparable injury will
3
result to the applicant before the matter can be heard on notice. (C.C.P.
4
527(c)(1); see Brewster v. Southern Pac. Trans. Co. (1991) 235 C.A.3d 701, 714,
1 C.R.2d 89 [failure to notify defendant without adequate grounds for lack of
5
notice rendered application meritless].) Under this provision, a temporary
6
restraining order may be issued ex parte, in the judge's discretion, if the verified
7
complaint or affidavit makes a showing that irreparable injury would result
8
before the hearing on a preliminary injunction could be had. For this purpose, a
``complaint'' includes a cross-complaint. (C.C.P. 527(h)(1).) (See C.J.E.R.,
9
Judges Benchbook, Civil Proceedings: Before Trial 2d, §14.17 et seq.;
10
(2) Notice to Party. The applicant or the applicant's attorney must certify, under
11
oath, one of the following:
12
13
(a) Within a reasonable time prior to the application the applicant
informed the opposing party or the party's attorney of the time and place
the application would be made. (C.C.P. 527(c)(2)(A).)
14
(b) The applicant in good faith attempted to inform the opposing party or
15
the party's attorney of the time and place the application would be made,
16
but was unable to do so, specifying the efforts made. (C.C.P.
17
527(c)(2)(B).)
(c) For reasons specified the applicant should not be required to inform
18
19
the opposing party or the opposing party's attorney of the time and place
the application would be made. (C.C.P. 527(c)(2)(C).)
20
(3) Reserved.
21
(4) Summary Seizure of Property. In Skinner v. Superior Court (1977)
22
69 C.A.3d 183, 188, 189, 137 C.R. 851, 7 Summary (10th),
Constitutional Law, §656, temporary restraining orders issued ex parte,
23
which authorized seizure of defendants' allegedly obscene films and other
24
personal property, were held void as a denial of due process and a
25
deprivation of Fourth Amendment rights.[*pg.315] {Here, seizure of real
26
property as a "unique asset" must be considered.
27
- 19
28
Verified Complaint
-
BASHEAR V. HSBC, et al.
1
V2.6-23
III. Order To Show Cause and Restraining Order.
2
(1) In General. The matter must be made returnable on an order requiring that cause be
3
shown why a preliminary injunction should not be granted. (C.C.P. 527(d)(1).) Thus, there
4
are actually two orders, a restraining order effective at once and an order to show cause
why a preliminary injunction should not be granted. However, both orders are usually
5
included in one document. (See Biasca v. Superior Court (1924) 194 C. 366, 228 P. 861.)
6
Applications for temporary restraining orders and preliminary injunctions (see infra, §368)
7
are governed by C.R.C., Rule 3.1150:
8
(2) Form of Temporary Restraining Order (TRO) and Order To Show Cause (OSC). The
TRO and OSC must be stated separately, OSC first. The restraining language must be
9
separately stated in both the OSC and the TRO. The OSC must describe the injunction to
10
be sought at the hearing, and the TRO must describe the activities to be enjoined pending
11
the hearing. A proposed OSC must contain blanks for the time and manner of service on
12
responding parties, the date on which the proof of service must be delivered to the court
13
hearing the OSC, a briefing schedule, and, if applicable, the expiration date of the TRO.
(C.R.C., Rule 3.1150(c).) The applicant should prepare a form of each order. (See Cal.
14
Civil Practice, 2A Procedure, §16:137 et seq.; C.E.B., 2 Civil Proc. Before Trial 4th,
15
§32.46; 14A Am.Jur. P.P. Forms (2002 ed.), Injunctions, §§37, 56 et seq.; on orders in
16
domestic relations cases, see C.R.C., Rule 5.118; 11 Summary (10th), Husband and Wife,
17
§87.) These papers are presented to the judge for signature.
(3) Filing of Complaint. If the action is initiated the same day a TRO or an OSC is sought,
18
the complaint must be filed first. (C.R.C., Rule 3.1150(b).)
19
(4) Availability of File at Hearing. If an application for a TRO or an OSC is made in an
20
existing case, the moving party must request that the court file be made available to the
21
judge hearing the application. (C.R.C., Rule 3.1150(b).)
22
(5) Attendance at Hearing. A TRO will not be granted unless the moving party or counsel
is personally present when the request for a TRO is made. (C.R.C., Rule 3.1150(d).)
23
(6) Statement of Previous Applications. An application for a TRO or an OSC must state the
24
fact and result of any previous application for similar relief. (C.R.C., Rule
25
3.1150(e).)[*pg.316]
26
(7) Effect of Order. The issuance of the temporary restraining order does not determine the
merits of the controversy. The order merely maintains the status quo until the hearing on
27
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28
Verified Complaint
-
BASHEAR V. HSBC, et al.
1
V2.6-23
the application for the preliminary injunction. (Landmark Holding Group v. Superior Court
(1987) 193 C.A.3d 525, 529, 238 C.R. 475.) 5
2
89. Additional Authorities: FAULTY NOTICES OF DEFAULT DEFEAT
3
FORECLOSURE In line with injunctive protocol is In Castillo v. Skoba, Vice President
4
of Aurora Loan Services, LLC2010 WL 3986953 (N.D.Cal., November 30, 2010), the
5
United States District Court in San Diego held (in granting an injunction to halt a
6
foreclosure sale):
90. “The Court also concludes that Plaintiff is likely to succeed on the merits of his claim
7
that neither Aurora nor Cal-Western had authority to initiate the foreclosure sale at
8
the time the Notice of Default was recorded. Under Cal. Civ.Code § 2924(a)(1), “the
9
trustee, mortgagee, or beneficiary, or any of their authorized agents” are authorized to file a
10
notice of default. Documents do not support a finding that either Cal-Western was the
11
trustee or Aurora was the beneficiary on May 20, 2010 when the Notice of Default was
12
recorded. [Case decided well prior [2010] to the Foreclosure Prevention Act [see Fn 1,
supra] which adds multiple additional requirements of “standing” in non-judicial
13
foreclosures occurring after January 1, 2013.]
14
91. On a document dated May 17, 2010, MERS substituted Cal-Western as a trustee under the
15
deed of trust. (Exh. 4) If Cal-Western had been trustee at this time, it would have had
16
authority to conduct the foreclosure process. See Cal. Civ.Code § 2924(a)(1). However,
this document was notarized on June 7, 2010, (id.), and thus it appears likely that Plaintiff
17
can succeed on a claim that the substitution occurred no earlier than June 7.
18
92. The power of sale in a non-judicial foreclosure may only be exercised when a proper
19
notice of default has first been recorded. See Cal Civ Code § 2924; see also 5-123
20
California Real Estate Law & Practice § 123.01. In Castillo, the Notice of Default
21
appears to be void ab initio. Therefore, any foreclosure sale based on a void notice of
default is also void. Accordingly, the Court GRANTS Plaintiff’s motion and enjoins a
22
foreclosure sale based on Defendants’ noncompliance with prerequisites to engage in a
23
foreclosure sale set forth in Cal. Civ.Code § 2924."
24
PRAYER FOR RELIEF BY TRO
25
26
27
5
CALIFORNIA PROCEDURE 5TH\VI Provisional Remedies\IV. INJUNCTION\C. Procedure for Obtaining Provisional
Remedy.\1. Temporary Restraining Order.\(a) [§363] Ex Parte Issuance. [6 Witkin, Cal. Procedure (5th ed., 2008) Provisional
Remedies, §363, Factors Determining Right
- 21
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Verified Complaint
-
BASHEAR V. HSBC, et al.
1
V2.6-23
93. That the defendants HSBC BANK USA, NATIONAL ASSOCIATION, as Trustee of the
2
Holders of the Deutsche Alt-A Securities, Inc., Mortgage Loan Trust, Mortgage Pass-
3
Through Certificates Series 2007-OA4; THE MORTGAGE LAW FIRM, PLC, as Trustee
4
and Agent of a Beneficiary, as agent for Wells Fargo Bank, N.A.; RYAN REMINGTON,
an agent of The Mortgage Law Firm, PLC; SPECIALIZED LOAN SERVICING LLC, as
5
servicer for HSBC Bank USA, National Association, as Trustee for the Holders of the
6
Deutsche Alt-A Securities, Inc., Mortgage loan Trust, Mortgage Pass-Through Certificates
7
Series 22007 –OA4; AMI MCKERNAN, an officer and agent of Specialized Loan
8
Servicing LLC, and All persons and entities claiming any right to real property located at
1095 Lowry Ranch Road Corona, California 92881 and Does 1-20, inclusively; and all
9
acting on their behalf be ENJOINED from taking any foreclosure actions pending hearing
10
on this matter by way of OSC re: Preliminary Injunction or until further order of this
11
court;
12
13
94. That Service of Process upon the defendants named in ¶ 1of the above prayer and all
individuals and entities with knowledge of this Order and all trustees and any successors
in interest with knowledge of this Order, TRO Applications, Summons and Complaint
14
15
16
17
shall be completed by no later than the date ORDERED.
95. Proof of Services of the Order after Hearing and all filed documents including Summons
and Complaint shall be filed in this department no later than as ORDERED.
96. Should any defendant wish to appear and be heard, they shall file their Opposition and
serve all parties not later than as ORDERED, by hand delivery or fax service is permitted.
18
97. Should any Reply be desired, such shall be filed by as ORDERED.
19
98. Reply shall be hand delivered or by fax.
20
99. Order after Hearing to be served not later than as ORDERED.
21
100. OSC to Issue upon submission of the proposed Order.
22
101. That discovery be permitted on shortened time, with any depositions being allowed on 3
days notice by fax or personal delivery to establish good cause for any relief at the OSC re
23
Preliminary Injunction.
24
25
26
Dated:__________________
______________________________
Respectfully submitted,
Faith Lynn Brashear, in pro se
27
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Verified Complaint
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BASHEAR V. HSBC, et al.
1
2
3
4
V2.6-23
SECOND CAUSE OF ACTION FOR DAMAGES FOR STATUTORY
VIOLATIONS OF CIVIL CODE SECTIONS [against all Defendants]
102. Plaintiff repeats the content of the above complaint as though fully restated hereafter.
103. As a matter of Judicial Notice under Ev. C. § 452(c), et al., On July 11, 2012, Governor
Edmund G. Brown Jr. signed into law foreclosure reform legislation known as the
5
California Foreclosure Reduction Act (“Foreclosure Reduction Act,” AB 268 (Ch. 86,
6
Stats. 2012) and SB 900 (Ch. 87, Stats. 2012)). The Foreclosure Reduction Act reforms
7
California’s non-judicial foreclosure process so that borrowers have greater protection
8
from wrongful foreclosures, and a meaningful opportunity to be considered for, and obtain,
a loan modification or other alternative to foreclosure. Additionally, Residential lenders
9
and servicers licensed and regulated by the Department of Corporations under the
10
California Residential Mortgage Lending Act (“CRMLA”) and the California Finance
11
Lenders Law (“CFLL”), will be impacted by the new law.
12
13
104. The Foreclosure Reduction Act will be effective January 1, 2013. However, many
provisions in the Foreclosure Reduction Act will sunset in five years, while other
provisions will become operative in five years, on January 1, 2018. Additionally, many
14
provisions only apply to mortgage servicers that have foreclosed on more than 175homes
15
during the preceding year. Most provisions apply solely to first lien mortgages or deeds of
16
trust secured by owner-occupied property.
17
105. The below citations provide a summary of key provisions in the Foreclosure Reduction
Act that apply to mortgage servicers above and below the 175 threshold and summarizes
18
key provisions that will become operative on January 1, 2018, which will apply to all
19
mortgage servicers, regardless of foreclosure volume. Additionally, this DOC Release
20
provides a summary of the key elements of other foreclosure laws enacted in 2012.
21
RELEASE NO. 65-FS.
22
106. CRMLA and CFLL licensees will be responsible for maintaining evidence of
compliance with all of the new requirements. Such evidence includes, but not be limited to,
23
phone conversation logs, copies of correspondence, notices, declarations, and operations
24
manuals that establish a mortgage servicer’s policies and procedures. A licensee’s books
25
and records should establish that required correspondence and notices occur within the
26
time periods set forth in the law.
I. Mortgage Servicers with 175 or Fewer Foreclosures
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1. Foreclosure Communication Requirements (Civil Code §2923.5 (Section 4))
2
The sunset date for pre-foreclosure borrower outreach requirements imposed by
3
SB 1137 (Perata, Ch. 69, Stats. 2008) has been removed.
4
107. A mortgage servicer is required to contact or attempt to contact a borrower before
commencing the foreclosure process, and to record a declaration of compliance with
5
the Notice of Default (“NOD”). After January 1, 2013, the borrower outreach
6
requirements apply to all loans, regardless of when those loans were first recorded.
7
8
108. This provision will sunset on January 1, 2018. However, new requirements will be
imposed. Please see, “III. Provisions Operative on January 1, 2018” below for further
information.
9
10
109. Plaintiff alleges the foreclosing defendants all failed to comply with this provision prior
to recording a Notice of Default, thus the recordation of the NOD was void ab initio.
11
110. Review of Foreclosure Documents (Civil Code §2924.17)
12
111. Before commencing foreclosure, a mortgage servicer is required to review competent
13
14
15
16
17
and reliable evidence to substantiate the borrower’s default and its right to foreclose. In
addition, every recorded declaration, affidavit, NOD, Notice of Sale (“NOS”), assignment,
and substitution of trustee must be accurate and complete, and supported by competent and
reliable evidence. This provision does not sunset.
112. Plaintiff alleges the foreclosing defendants all failed to comply with this provision prior
to recording a Notice of Default, thus the recordation of the NOD was void ab initio.
113. Prohibition on Dual Tracking (Civil Code §2923.5 (Section 4) and §2924.18) A
18
mortgage servicer is prohibited from commencing or continuing the foreclosure process
19
(i.e. recording a NOD or NOS, or conducting a trustee’s sale) pending a completed
20
review of a loan modification application submitted by a borrower and until after the
21
borrower has been provided with a written decision about eligibility for a loan
22
modification.
114. A mortgage servicer is also prohibited from commencing or continuing the foreclosure
23
process if a borrower is in compliance with the terms of an approved foreclosure
24
prevention alterative, or if a foreclosure prevention alternative has been approved by all
25
parties and proof of financing has been provided to the mortgage servicer. This provision
26
will sunset on January 1, 2018. However, new requirements will be imposed.
115. Plaintiff alleges that this provision was violated making the NOD void ab initio.
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116. Damages (Civil Code §2924.19) Prior to a trustee’s sale, a borrower may bring an
2
injunctive action against a mortgage servicer for a material violation of Civil Code
3
Sections 2923.55 (borrower outreach and declaration of contact or due diligence), 2924.17
4
5
6
7
8
(review of foreclosure documents), or 2924.18 (dual track prohibition).
117. After a trustee’s deed upon sale has been recorded, a mortgage servicer may be liable to
a borrower for actual damages for material violation of the abovementioned Civil Code
sections.
118. Furthermore, a mortgage servicer may be liable for the greater of treble damages or
$50,000 if the material violation was intentional, reckless or resulted in willful
misconduct.
9
119. A borrower may be awarded reasonable attorney’s fees and costs. Plaintiff hs already
10
spent in upwards of $15,000 in legal consultation, attorneys fees, filing costs and
11
miscellaneous expenses. This provision will sunset on January 1, 2018. However, new
12
requirements will be imposed.
13
120. Plaintiff alleges violation of the requirements thus triggering the right to bring a civil
action to enjoin and for civil money damages was perpetrated and seeks the maximum
14
15
16
17
statutory relief as proven at trial.
121. Reporting Requirement If Mortgage Servicer Exceeds 175 Threshold (Civil Code
§2924.18(c)) A mortgage servicer is required to notify the Department of Corporations
within three months after close of the calendar year or annual reporting period when that
servicer has exceeded the 175 foreclosure threshold. The Department of Corporations has
18
determined that this notice may be included with the annual report required under the
19
licensee’s licensing law. The mortgage servicer becomes subject to the heightened
20
requirements for mortgage servicers with more than 175 foreclosures, six months after the
21
calendar year in which it exceeds the threshold. This provision will sunset on January 1,
22
23
2018. However, new requirements will be imposed. Please see, “III.
122. Provisions Operative on January 1, 2018” below for further information. Written Notice
of Postponement of Sale (Civil Code §2924(a)(5)) A mortgage servicer must notify a
24
borrower in writing, within 5 business days following the postponement, whenever a
25
foreclosure sale is postponed for at least 10 business days. This provision will sunset on
26
January 1, 2018.
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123. Plaintiff alleges this violation vitiates the recording of the NOD and raises factual bases
2
for civil damages as pled in a sum to be proven at trial. II. Mortgage Servicers with More
3
Than 175 Foreclosures Plaintiff alleges pandemically that the provisions of §II. Were
4
violated .
124. Foreclosure Communication Requirements (Civil Code §2923.55) The sunset date for
5
pre-foreclosure borrower outreach requirements imposed by SB 1137 (Perata, Ch. 69,
6
Stats. 2008) has been removed. A mortgage servicer is required to contact or attempt to
7
contact a borrower before commencing the foreclosure process, and to record a declaration
8
of compliance with the NOD. After January 1, 2013, the borrower outreach
requirements apply to all loans, regardless of when those loans were first recorded.
9
125. This provision will sunset on January 1, 2018. However, new requirements will be
10
imposed. Please see, “III. Provisions Operative on January 1, 2018” below forfurther
11
information. Plaintiff alleges this violation vitiates the recording of the NOD and raises
12
factual bases for civil damages as pled in a sum to be proven at trial.
13
126. Review of Foreclosure Documents (Civil Code §2924.17) Before commencing
foreclosure, a mortgage servicer is required to review competent and reliable evidence to
14
substantiate the borrower’s default and its right to foreclose. In addition, every recorded
15
declaration, affidavit, NOD, NOS, assignment, and substitution of trustee must be accurate
16
and complete, and supported by competent and reliable evidence. This provision does not
17
sunset.
127. Plaintiff alleges this violation vitiates the recording of the NOD and raises factual bases
18
19
for civil damages as pled in a sum to be proven at trial.
128. Prohibition on Dual Tracking (Civil Code §2923.55, §2923.6 (Section 7) and §2924.11
20
(Section 14)) A mortgage servicer is prohibited from commencing or continuing the
21
foreclosure process while a completed loan modification application submitted by a
22
borrower is pending, until
(1) the mortgage servicer makes a written determination that the borrower is not
23
24
25
26
eligible for a loan modification and any appeal period has expired;
(2) the borrower does not accept a loan modification offer within 14 days of the
offer; or
(3) the borrower accepts a loan modification offer, but defaults or breaches the
terms.
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129. Additionally, a mortgage servicer is prohibited from commencing or continuing the
2
foreclosure process if a borrower is in compliance with the terms of an approved
3
foreclosure prevention alternative, or if a foreclosure prevention alternative has been
4
approved by all parties and proof of financing has been provided to the servicer. These
provisions will sunset on January 1, 2018. However, new requirements will be imposed.
5
6
7
8
Please see, “III. Provisions Operative on January 1, 2018” below for further information.
130. Plaintiff alleges this violation vitiates the recording of the NOD and raises factual bases
for civil damages as pled in a sum to be proven at trial131. Single Point of Contact (Civil Code §2923.7) A mortgage servicer is required to create a
“single point of contact” upon the request of a borrower. The single point of contact may
9
be an individual or a team that has the authority to perform specific responsibilities, has
10
knowledge of a borrower’s situation and current status, provides accurate information to a
11
borrower, and coordinates all documents associated with a borrower’s foreclosure
12
prevention alternative. This provision does not sunset.
13
132. Plaintiff alleges this violation vitiates the recording of the NOD and raises factual bases
for civil damages as pled in a sum to be proven at trial.
14
15
16
17
133. Notice to Borrower that has not Applied for a Loan Modification (Civil Code §2924.9)
Unless a borrower has previously exhausted the loan modification process, within five
business days after recording a NOD, a mortgage servicer is required to notify a borrower
who has not submitted an application for a loan modification five business days after
recording a NOD, a mortgage servicer is required to notify a borrower who has not
18
submitted an application for a loan modification that the borrower may qualify for a loan
19
modification or foreclosure prevention alternative, whether an application must be
20
submitted to be considered, and the process to obtain an application. This provision will
21
sunset on January 1, 2018.
22
134. Plaintiff alleges this violation vitiates the recording of the NOD and raises factual bases
for civil damages as pled in a sum to be proven at trial.
23
135. Loan Modification Review Process (Civil Code §2924.10) A mortgage servicer is
24
required to provide a borrower written acknowledgement of receipt within five business
25
days of receiving a completed loan modification application or any documents connected
26
to a loan modification application.
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136. The initial written acknowledgement of receipt of the loan modification application
2
must include a description of the loan modification process, including an estimate of
3
when a decision will be made and length of time a borrower will have to consider an offer;
4
any deadlines or expiration dates for submitting documents; and any deficiencies in the
application. In circumstances where a borrower was provided a fair opportunity to be
5
evaluated for a loan modification prior to January 1, 2013, a mortgage servicer is not
6
required to evaluate a loan modification application from a borrower unless there has been
7
a material, documented change in the borrower’s financial circumstances. This provision
8
will sunset on January 1, 2018.
137. Plaintiff alleges this provision may have been a violation vitiates the recording of the
9
10
NOD and raises factual bases for civil damages as pled in a sum to be proven at trial.
138. Loan Modification Application Denial and Appeal (Civil Code §2923.6(Section 7)) If a
11
loan modification application is denied.. Loan Modification Application Denial and Appeal
12
(Civil Code §2923.6 (Section 7)) If a loan modification application is denied, a mortgage
13
servicer is required to send a borrower written notice identifying the reasons for denial,
including (1) timing and instructions for requesting an appeal; (2) if applicable, reasons for
14
investor disallowance of the loan modification; (3) information related to the net present
15
value calculation, if the denial was based on this calculation; (4) if applicable, a finding of
16
a prior failed loan modification; and (5) a description of other foreclosure prevention
17
alternatives for which the borrower may be eligible. A mortgage servicer must provide a
borrower at least 30 days from the date of a written denial to appeal the denial and provide
18
evidence that the mortgage servicer’s determination was in error.
19
139. Plaintiff alleges this violation vitiates the recording of the NOD and raises factual bases
20
for civil damages as pled in a sum to be proven at trial. There was never a modification
21
request.
22
140. Prohibition on Fees (Civil Code §2924.11 (Section 14)) A mortgage servicer is
prohibited from charging application, processing and other fees for a loan modification or
23
other foreclosure prevention alternative. A mortgage servicer is also prohibited from
24
collecting late fees for the period when a loan modification application is under review,
25
when a denial is being appealed, when the borrower is making timely modification
26
payments, or when a foreclosure prevention alternative is being considered or exercised.
This provision will sunset on January 1, 2018.
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141. Plaintiff alleges this provision may have been violated which vitiates the recording of
the NOD and raises factual bases for civil damages as pled in a sum to be proven at trial.
142. Additional Notices (Civil Code §2923.55) [inapplicable in this action] A mortgage
servicer is prohibited from recording a NOD until after the servicer has provided the
borrower written notice with (1) a statement that if a borrower is a service member or
5
dependent of a service member, the borrower may be entitled to certain protections under
6
the federal Service members Civil Relief Act; and (2) a statement that the borrower may
7
request a copy of the promissory note, deed of trust, any assignment of the borrower’s
8
mortgage, and the borrower’s payment history. This provision will sunset on January 1,
2018.
9
143. Other Requirements (Civil Code §2924.11 (Section 14)) A mortgage servicer is
10
required to provide a borrower that has accepted a loan modification offer or foreclosure
11
prevention alternative a copy of the executed agreement. In addition, a mortgage servicer
12
is required to record a rescission of a NOD or cancel a pending trustee’s sale, if
13
14
15
16
17
applicable, upon a borrower executing a permanent foreclosure prevention
alternative. This provision will sunset on January 1, 2018 – The Previous Bank of
America NOD and Trustee sale were rescinded.
144. Damages (Civil Code §2924.12 (Section 16)) Prior to a trustee’s sale, a borrower may
bring an injunctive action against a mortgage servicer for a material violation of Civil
Code Sections 2923.55 (borrower outreach and declaration of contact or due diligence),
2923.6 (dual track prohibition and loan modification application denial and appeal), 2923.7
18
(single point of contact), 2924.9 (notice to a borrower that has not applied for a loan
19
modification), 2924.10 (loan modification review process), 2924.11 (dual track prohibition
20
and prohibition against application or late fees) or 2924.17 (review of foreclosure
21
documents).
22
145. After a trustee’s deed upon sale has been recorded, a mortgage servicer may be
liable to a borrower for actual damages for the above-mentioned Civil Code sections
23
where the violation was not corrected and remedied prior to the recordation.
24
Furthermore, a mortgage servicer may be liable for the greater of treble damages or
25
$50,000 if the material violation was intentional, reckless or resulted in willful
26
misconduct.
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146. A borrower may be awarded reasonable attorney’s fees and costs. This provision will
sunset on January 1, 2018. However, new requirements will be imposed.
147. Plaintiff alleges this violation vitiates the recording of the NOD and raises factual bases
for civil damages as pled in a sum to be proven at trial.
148. Written Notice of Postponement of Sale (Civil Code §2924(a)(5)) A mortgage servicer
5
is required to notify a borrower in writing within 5 business days following the
6
postponement of a foreclosure sale, whenever the sale is postponed for at least 10 business
7
days.
8
149. Plaintiff alleges this violation vitiates the recording of the NOD and raises factual bases
for civil damages as pled in a sum to be proven at trial.
9
10
THIRD CAUSE OF ACTION FOR RESCISSION OF THE NOTE UNDER THE
11
FEDERAL TRUTH IN LENDING ACT PROVISIONS OF TITLE 15 U.S.C. § 1635
12
[against all defendants]
13
150. Plaintiff repeats the above allegations as though fully restated herein below.
151. Plaintiff institutes this action for actual damages and equitable relief, statutory damages,
14
attorney’s fees, and the costs of this action against all named Defendants for multiple
15
violations of the Truth in Lending Act, 15 U.S.C. § 1635 et seq., (hereinafter TILA), and
16
Federal Reserve Board Regulation Z, 12 C.F.R. § 226.23 Promulgated pursuant thereto
17
and as pendent Claims and for Rescission under TILA,; Restitution of Assets.
152. Per statutes: Rescission effected per 15 U.S.C. 1635 (b) and Regulation Z, 12 C.F.R.
18
226.23(d)(1). Defendants did not protest or contest this rescission notice as required under
19
§ 226.23(d)(2)(3) therefore, the loan debt had been forfeited and forever released by
20
Defendants and any others involved by their failure to challenge within 20 days of tender
21
of the rescission of their obligations under 226.23(d)(2(3) by the end of the 20 day
22
performance period ending on 7/24/2009. Therefore, under the law there was no
enforceable Note or Deed of Trust to be made by Defendants or any other parties involved.
23
153. On or about March 14, 2007, plaintiff at that time believed she was executing a
24
promissory note and security agreement for a re-finance of a personal dwelling, which
25
transaction is a consumer credit transaction within the meaning of TILA, 15 U.S.C. § 1602
26
and Regulation Z § 226.2.6, a true and accurate copy of the combined Note and security
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agreement aka Deed of Trust is attached hereto as Exhibit #3 and is hereby incorporated by
reference.
154. The Deed of Trust lists as collateral the real property purchased with the proceeds of an
undisclosed lending source
155. On March 25, 2009, plaintiff hand carried into her place of employment being
5
transitioned from Countrywide Home Loans to Bank of America, and additionally sent by
6
mail within days afterwards, a Notice of Rescission to the lender and its agents and
7
assignees as required to call up the requirements to rescind under TILA. See Exhibit #6
8
156. At least 20 days passed from the rescission and receipt of notice without the past
servicer, the past “lender” or their agent or assign contesting the rescission in any manner
9
or by any means, judicially or non-judicially.
10
157. This assertion of this recession was within Plaintiffs state case.
11
158. Plaintiff conveyed this recession to Defendants.
12
159. Plaintiff asserts that the instruments themselves broke tolling laws.
13
160. TILA is clear. Section 1635 gives consumers the right to rescind a loan until midnight
14
of the third business day following (1) consummation (closing) of the transaction, (2)
15
delivery of the required rescission forms, and (3) delivery of the material TILA
16
17
disclosures, whichever is later. –
161. At least 20 days passed from the rescission and receipt of notice without the defendant
lender or their agent or assign contesting the rescission in any manner or by any means,
18
19
20
21
judicially or non-judicially.
162. As a result of silence of the defendants, the rescission is effected and fully enforced and
plaintiff is entitled to the benefits and reimbursements accorded under the TILA.
163. The disclosure statement issued in conjunction with this consumer credit transaction
violated the requirements of Truth in Lending and Reg. Z in the following and other
22
23
respects:
164. On March 14, 2007, Plaintiffs executed the alleged loan with the lenders Negative
24
Amortization Pay Option Arm Rate, the escrow closed shortly there after. March 14, 2007,
25
the Note was electronically transferred to the Trust. In 2008 the Trust was
26
suspended/Terminated on the SEC without the Deed. In 2012 the Deed was transferred to
27
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the Defendant HSBC, the “holder” of the trust. The security instrument Deed of Trust was
never transferred by assignment to the beneficiaries of the Trust.
165. At no time after the execution of the Note or Deed of Trust were closing documents
called “material disclosures” as described in TILA given to or made available to the
borrower debt obligors.
5
166. On March 25, 2009, within the 3 year limits of the provisions of TILA after the
6
execution of the alleged loan Plaintiff exercised the three (3) day extended Right to Cancel
7
the alleged loan and void the security instrument under 12 C.F.R. 226.23(f)(3)* as
8
provided and shown below:
*(3) The consumer may exercise the right to rescind until midnight of the third
9
business day following the occurrence described in paragraph (a)(1) of this
10
section that gave rise to the right of rescission, delivery of the notice required by
11
paragraph (b) of this section, or delivery of all material disclosures, whichever
12
occurs last. If the required notice and material disclosures are not delivered, the
13
14
15
16
17
right to rescind shall expire three years after the occurrence giving rise to the
right of rescission,… The issue of Plaintiff’s Right to rescind the alleged loan
and its cancellation as alleged herein, under 12 C.F.R. 226.23 (f) has been settled
by operation of law and a January, 2015 SCOTUS case, referenced herein below.
167. The Defendants in this action neither individually or jointly and severally nor their
agents or assigns by their non-performance of C.F.R. 226.23(d)(2) within the 20 day
performance period following tender of the Rescission as provided in 12 C.F.R.
18
226.23(d)(2) have as a matter of law waived any defense or claim which effects the loan
19
cancellation. Thus, the right of defendants to challenge the Rescission by plaintiffs is
20
legally barred by operation of the statute of limitation inherent in TILA which in pertinent
21
part states:
22
168. 12 CFR 226.23(d)(2) Within 20 calendar days after receipt of a notice of rescission, the
creditor shall return any money or property that has been given to anyone in connection
23
with the transaction and shall take any action necessary to reflect the termination of the
24
security interest. No return of funds has been effected by any defendant to date and the
25
sums remain unpaid in a sum of approximately $5,000.
26
169. The recent unanimous decision by the Supreme Court of the United States, Jesinoski v.
Countrywide Home Loans, Inc., No. 13-684 on January 13, 2015 states in pertinent part:
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“Section 1635(a) explains in unequivocal terms how the right to rescind is to be exercised:
2
It provides that a borrower ‘shall have the right to rescind…by notifying the creditor, in
3
accordance with regulations of the Board, of his intention to do so’ (emphasis added). The
4
language leaves no doubt that rescission is effected when the borrower notifies the creditor
of his intention to rescind. It follows that, so long as the borrower notifies within three
5
years after the transaction is consummated, his rescission is timely. The statute does not
6
also require him to sue within three years.” It adds: “It is also true that the Act disclaims
7
the common-law condition precedent to rescission at law that the borrower tender the
8
proceeds received under the transaction..” Ibid
170. Defendants unlawfully collected on a debt that was null and void that now must be
9
returned to Plaintiff in the sum of , $2,348,383.81 on April 1st, 2015 that was falsely
10
claimed due to Defendants with Defendant’s full knowledge that this loan had been voided
11
and cancelled by Plaintiff’s Notice of Rescission and delivered to the defendant
12
beneficiary. See Plaintiff’s Loan Rescission Notice mailed See Exhibit #6 and attached.
13
Defendants are bound to the agreement with the Federal Reserve Board and Regulation Z
that cancels the loan and voids the security interest Deed of Trust recorded in the Official
14
Records of Clark County on Riverside County as Doc. No 2007-0319880.
15
171. Plaintiff demands the Note be returned marked: “Cancelled” thereby, effectuating the
16
Nullification and Voiding of Note and entered in the Riverside County Records as such,
17
effective with the date 5/14/2007.
172. Plaintiff demands return of funds unlawfully taken out of Escrow, First American Title
18
Company, Inc., located at Riverside CA on 5/14/2007 and forwarded to one or more of the
19
beneficiary defendants, acting as servicer of alleged loan and then forwarded via wire
20
transfer to a subsequent assignee entity-Bank. The funds remain unaccounted for by any
21
defendant in spite of the clear lawfully implemented Rescission of the Note by plaintiffs.
22
173. 15 USC 1640 (3) in the case of any successful action to enforce the foregoing liability or
in any action in which a person is determined to have a right of rescission under section
23
24
25
26
1635 or 1638 (e)(7) of this title, the costs of the action, together with a reasonable
attorney’s fee as determined by the court are recoverable.
174. Plaintiffs may amend this complaint. Filing at this time is to preserve the time limit for
exercise of right 1635(f)(3)prescribed by TILA. (3) … upon the expiration of one year
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following the conclusion of the proceeding, or any judicial review or period for judicial
review thereof, whichever is later.
175. By reason of the aforesaid violations of the Act and Regulation Z, defendant is liable to
plaintiff in the amount of twice the finance charge, actual damages to be established at
trial, and attorney’s fees and costs in accordance with 15 U.S.C. § 1640.
FOURTH CAUSE OF ACTION – RESTITUTION
6
[against all defendants who received any compensation after escrow closed to the
7
present date]
8
176. Plaintiff alleges and incorporates by reference all preceding allegations.
177. Under the Truth in Lending Act, 15 U.S.C. 1635, et seq. and 12 C.F.R 226.23, et seq.
9
10
11
12
13
[hereafter TILA] plaintiff is entitled to rescind the promissory Note and Deed of Trust per
15 USC, 1635 as alleged, supra.
178. TILA allows a borrower to rescind a loan to three years form the date of closing of
escrow if the borrower received false, incomplete or no disclosures of either the loan’s
terms or Borrower’s right to rescind.
179. On or about March 25 2009, plaintiff properly and effectively exercised the right to
14
15
16
17
rescind by written notice was both hand carried into a branch office of said lender, AND
sent by U.S. Mail.
180. Plaintiff additionally drafted a recession she tried to record at the county recorders
office, only to find out that the county recorders do not allow recessions to be recorded.
These intents are evidenced by time stamped email dated in 3/26/2009 after delivery of the
18
recession was made attempting to draft a reconveyance to file for Plaintiffs WA property
19
and again one month later to make sure her agents and clients were aware of these frauds
20
upon the loans she had brokered. Bank of America was successor assigned full beneficiary
21
interest of that illegal foreclosure in 2013.
22
See Exhibit #8
181. Plaintiff alleges that original “lender” refused to acknowledge the rescission, continued
to act as if the rescission was never sent and defrauded plaintiff as a result by damaging her
23
ownership, credit and right to act in violation of the act and is entitled to damages and an
24
order confirming the rescission with restitution of all sums paid to lender and its agents as
25
a result in a sum of not less than $98,958 as outlined on pages 14-15 of the Ex-parte TRO
26
and for statutory assessments, attorney’s fee and costs associated in both damages, and
equitable relief TILA calls out.
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182. For associated Declaratory Relief that the Note and Deed of Trust are rescinded and
2
cancelled, that all assets plaintiff proves has been paid under the Note be restored forthwith
3
in the sum of $2,262,000 to plaintiff and all other declaratory relief that to the court seem
4
justified.
PRAYER FOR RELIEF:
5
Plaintiff respectfully prays that this Court:
6
1. Assume jurisdiction of this case;
7
2. Award economic and non-economic, statutory punitive and compensatory damages to
8
be established at trial and pursuant to 15 U.S.C. § 1640(a)(1) and pursuant to CAJI;
3. Award statutory damages in the amount of twice the finance charge not to exceed
9
$1000 per violation or the statutory maximum whichever is greater in accordance with
10
15 U.S.C. § 1640(a)(2);
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4. Award plaintiff costs and reasonable attorney’s fees in accordance with 15 U.S.C.§
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1640;
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5. For additional Declaratory Relief that the Note and Deed of Trust are Rescinded and
Cancelled, that all assets plaintiff proves has been paid under the Note be restored
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forthwith to plaintiff and all other declaratory relief that to the court seem justified.
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6. For of the Note and Deed of Trust and Restoration of moneys kept to which
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defendants are not entitled in the sum of $1,500,000 or as proved at the time of trial.
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7. For Restoration of escrow fees, costs and assessments that exceed the prayer, above
in an amount of $5,000 or as proved at the time of trial.
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8. For such other relief as the court deems appropriate
Dated:_____________, 2015
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By:
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Faith Lynn Brashear, Plaintiff in pro se
Verification of Complaint by Plaintiff
I, Faith Lynn Brashear, am the plaintiff in this action and have read the content of the facts as
alleged herein and verify under penalty of perjury that the foregoing facts, apart from any
arguments, are true and correct.
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2. Signed in Riverside, California on __________________, 20___.
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________________________________
Faith Lynn Brashear, Plaintiff in pro se
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Verified Complaint
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BASHEAR V. HSBC, et al.