1st Amended Complaint Sample From Other Atty

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1 Thomas Spielbauer, Esq.

SBN 78281

2 THE SPIELBAUER LAW OFFICE

111 North Market Street, Suite 300

3 San Jose, CA 95113

Mail: P. O. Box 698

4 Santa Clara, CA 95052

(408)451-8499

5 Fax: (610)423-1395 6 7

[email protected] Attorneys for Cornelio Pantoja, Plaintiff IN THE UNITED STATES DISTRICT COURT

8

FOR THE NORTHERN DISTRICT OF CALIFORNIA

9 10

CORNELIO PANTOJA,

No: 5:09-cv-1615 JW Plaintiff.

11

Santa Clara County Superior Court No: 109CV138528

12 13

v.s.

14 15 16 17 18

COUNTRYWIDE HOME LOANS, INC.; OLD REPUBLIC NATIONAL TITLE COMPANY; OLD REPUBLIC DEFAULT MANAGEMENT SERVICES, Defendants.

FIRST AMENDED COMPLAINT FOR DECLARATORY JUDGMENT PURSUANT TO CCP §1060, QUIET TITLE, FRAUD, UNFAIR BUSINESS PRACTICES, EQUITABLE ESTOPPEL, AND FOR AN ACCOUNTING JURY TRIAL REQUESTED

19 Plaintiff, Cornelia Pantoja, alleges: 20 21

PARTIES 1. Plaintiff Cornelio Pantoja is and at all times herein mentioned was a

22 resident of Santa Clara County, California. 23

2. Defendant Countrywide Home Loans, Inc. (herein after referred to as

24 COUNTRYWIDE) is a business entity with a principal place of business at 4500 25 Park Granada, Calabasas, California 91302. COUNTRYWIDE does business in 26 California and within the County of Santa Clara, California on a regular basis. 27 COUNTRYWIDE’s agent for the service of process in California is C. T. 28 Corporation System. COUNTRYWIDE is the alleged loan servicer in this matter. -1-

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1 As a loan servicer, COUNTRYWIDE acted as the agent for the alleged 2 beneficiary, and its authority as servicer comes exclusively from the authority 3 enjoyed by the beneficiary. 4

3. Defendant Old Republic Default Management Services is a subsidiary of

5 Old Republic National Title Insurance Company. Old Republic National Title 6 Insurance Company is the parent corporation of Old Republic Default 7 Management Services. As a result, Old Republic Title Insurance Company is 8 responsible for the actions of Old Republic Default Management Services. Both 9 are herein referred to collectively OLD REPUBLIC. OLD REPUBLIC is a 10 business entity with a principal place of business located at 400 Second Avenue 11 South, Minneapolis, MN 55401. OLD REPUBLIC is the foreclosure trustee of 12 an alleged first deed of Trust on the property 580 LaSabre Court, Morgan Hill, 13 CA 95037. As foreclosure trustee, OLD REPUBLIC acted as the agent for the 14 alleged beneficiary as well as of the servicer. OLD REPUBLIC regularly 15 conducts business in Santa Clara County, California. OLD REPUBLIC’s agent 16 for the service of process in California is R. Wayne Shupe, 555 12th Street, Suite 17 2150, Oakland, CA 94607-4046. 18

4. Plaintiff is informed and believes, and thereon alleges, that each

19 Defendant is and at all relevant times herein was, the agent, employee, alter-ego, 20 principal, employer, or co-conspirator of each of the remaining co-Defendants, 21 and in committing the acts herein alleged, was acting in the scope of their 22 authority as such agents, employees, principals, employers, alter-egos, or co23 conspirators and with the permission and consent of the remaining co24 Defendants. 25

5. Whenever in this Complaint an act or omission of a corporation or

26 business entity is alleged, the said allegation shall be deemed to mean and include 27 an allegation that the corporation or business entity acted or omitted to act 28 through its authorized officers, directors, agents, servants, and/or employees, -2-

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1 acting within the course and scope of their duties, that the act or omission was 2 authorized by corporate managerial officers or directors, and that the act or 3 omission was ratified by the officers and directors of the corporation. 4 5

JURISDICTION On March 30, 2009, Plaintiff filed his complaint in California State Court,

6 County of Santa Clara. On April 13, 2009, defendants removed the matter into 7 Federal District Court based on federal question jurisdiction. Plaintiff brought an 8 exparte motion to remand on April 15, 2009. This Court denied plaintiff’s motion 9 to remand on May 12, 2009. Almost two months later, on July 9, 2009, this Court 10 granted defendants’ motion to dismiss with leave to amend. 11

6. The transactions and events which are the subject matter of this

12 complaint all occurred within the County of Santa Clara, State of California. 13

7. The property located at 580 La Sabre Court, Morgan Hill, California

14 95037 is located in the County of Santa Clara, California. 15

8. The Legal description is: All that certain real property in the City of

16 Morgan Hill, County of Santa Clara, State of California, described as follows: All 17 of Lot 25, as shown on that certain Map of Tract No. 5699, which Map was filed 18 for record in the Office of the Recorder of the County of Santa Clara, State of 19 California on July 01, 1976, in Book 374 of Maps, page(s) 9 and 10. 20 21

JOINT VENTURE 9. At all times during the periods complained of in this complaint,

22 defendants COUNTRYWIDE and OLD REPUBLIC and any alleged claiming 23 entities as beneficiary to the alleged June 2006 promissory note were engaged in 24 a joint venture amongst themselves and with other unknown third parties. All 25 defendants came together for the purpose of enforcing an alleged secured 26 indebtedness upon the property of 580 LaSabre Court, Morgan Hill, CA 95037 27 and extracting money from plaintiff Cornelio Pantoja upon threat of seizing his 28 property. They formed this joint venture for this single mortgage and for the -3-

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1 series of transactions necessary to enforce the extraction of money from Cornelio 2 Pantoja by the unlawful enforcement of this alleged June 2006 mortgage. Each 3 defendant financially benefitted, or intended to benefit from this mutual 4 undertaking. Each defendant complied with the requirements of the other 5 defendants in order to insure that the mutual goal of imposing this exploding 6 ARM was fulfilled and each defendant thereby profited from this transaction.

JURY TRIAL DEMAND

7 8

10. Cornelio Pantoja requests a jury trial on all issues in this matter. FACTUAL ALLEGATIONS

9 10

11. On June 27, 2006, Cornelio Pantoja securing a first deed of trust loan

11 from Greenpont Mortgage Lending, Inc. (hereinafter referred to as 12 GREENPOINT). 13

12. This loan of June 27, 2006 was a purchase money mortgage whereby

14 the financing was used to purchase the home. The loan in the amount of 15 $514,400 from GREENPOINT. GREENPOINT was the beneficiary. 16

13. At the time of the financing, the selling real estate agent (the one

17 representing plaintiff) arranged financing through an associate, Karen Wigmore. 18 Plaintiff was promised a monthly mortgage payments $3,054 per month with an 19 additional promise that he would be refinanced after six months into a lower 20 monthly mortgage payment. If worse came to worse, he was told, the payments 21 would remain $3,054 for 30 years, and the interest rate would remain the same for 22 these 30 years. 23

14. No disclosures of any kind were provided to Cornelio Pantoja prior to

24 the date of the signing of the loan documents. 25

15. The true terms of the loan were as follows. The loan was in the

26 amount of $514,000. The note initially granted to Mr. Pantoja a 7.125% interest 27 rate, calling for a $3,054.25 monthly mortgage payment for the first three years. 28 However, after the first three years, the interest rate could shoot up five (5) -4-

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1 percentage points, from 7.125% to 12.125%. Six months later, the interest rate 2 could cap at 13.125%. The note did not carry a prepayment penalty. 3

16. On the date of the signing, June 27, 2006, Cornelio Pantoja went to

4 Alliance Title in Morgan Hill, California. Copies of some, but not all, of the loan 5 documents were furnished to Cornelio Pantoja for the first time at the signing. 6 None of the disclosures had been provided on prior to the signing. As a result, 7 Cornelio Pantoja relied on the representations and statements of his real estate 8 agent, his mortgage arranger, and the title officer who was acting as the signing 9 agent. 10

17. The signing took a total of about 40 minutes. No explanations nor

11 discussions occurred concerning the loan itself. All the explanations centered on 12 zoning and pest reports. Nothing was explained nor discussed about the terms of 13 the loan. Cornelio Pantoja was provided the opportunity of reviewing the loan 14 documents only after their execution, and only after he had left the title company 15 premises. The other persons at the signing were the title officer telling plaintiff 16 where he was to initial and sign and Ms. Wigmore. Cornelio Pantoja was not 17 permitted the opportunity of reading and understanding any of the documents he 18 was signing at the time of their execution and thus did not know nor understand 19 what he was signing. Instead was forced to rely on the oral representations of 20 Ms. Wigmore and the title officer. 21

18. Plaintiff faithfully made his mortgage payments until June 2008 when

22 he became delinquent. 23

19. While the value of 580 La Sabre Court in Morgan Hill, CA was

24 appraised at $650k at the time of purchase, it now has a market value in mid25 $400,000's. It has lost at least $200,000 in value. 26

20. Two and a half years later, on or about December 9, 2008,

27 COUNTRYWIDE notified Cornelio Pantoja that the servicing of his mortgage 28 had been assigned to COUNTRYWIDE. COUNTRYWIDE merely advised that -5-

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1 the GREENPOINT had been the initial servicer, but that the servicing rights had 2 been transferred to COUNTRYWIDE. 3

21. COUNTRYWIDE provided no information concerning the current

4 ownership, i.e., who was the beneficiary, of the promissory note nor the deed of 5 trust, which had been executed on or about June 27, 2006. 6

22. On or about October 16, 2008, OLD REPUBLIC recorded a Notice of

7 Default upon the property of 580 La Sabre Court in Morgan Hill, CA. This 8 Notice of Default is Exhibit 1 to this complaint. 9

23. This Notice of Default was a mess. It purported to state that the duly

10 appointed trustee was Marin Conveyancing Corporation and failed to provide any 11 information any kind as to how the plaintiff was to make contact with Marin 12 Conveyancing Corporation. In fact, Old Republic Default Management was the 13 entity acting as trustee not only for this notice of default but for the subsequent 14 notice of Trustee Sale. This misrepresentation in the Notice of Default was a 15 direct violation of California Civil Code§2924c(b)(1). This Notice of Default 16 effectively indicated two separate and distinct trustees, Marin Conveyancing 17 Company and Old Republic Default Management. This code section requires that 18 the Notice of Default set forth the name, address and telephone number of the 19 trustee. 20

24. This notice of Default listed two separate and distinct beneficiaries. It

21 listed the original lender and beneficiary, GREENPOINT. It immediately 22 thereafter listed MERS as the separate and distinct beneficiary. This 23 misrepresentation in the Notice of Default was a direct violation of California 24 Civil Code§2924c(b)(1). MERS continued in this beneficial capacity, and 25 GREENPOINT disappeared, in the subsequent Notice of Trustee Sale. 26

25. This Notice of Default violated California Civil Code §2923.5.

27 Section 2923.5 prohibits the filing of a Notice of Default until its provisions are 28 fulfilled. California Civil Code §2923.5(a)(2) sets forth the requirement that a -6-

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1 declarant set forth his efforts to “assess the borrower's financial situation and 2 explore options for the borrower to avoid foreclosure” among other requirements. 3

California Civil Code §2923.5(b) sets forth the requirement that the contacting

4 entity set forth its efforts to comply with §2923.5(a)(2) in a declaration based on 5 personal knowledge in the event that a Notice of Default is recorded. 6

26. This declaration was deficient in that Countrywide did not undertake

7 good faith efforts assess Cornelio Pantoja’s financial situation and nor to explore 8 options for the plaintiff to avoid foreclosure. 9

27. None of the itemized beneficiaries (GREENPOINT or MERS) or even

10 the servicers (COUNTRYWIDE) attached a declaration or based on personal 11 knowledge discussing or detailing their efforts to avoid foreclosure. The alleged 12 statement included with the Notice of Default was an unfounded, summary, 13 conclusory, and hearsay statement by a Tina Jones, presumably with OLD 14 REPUBLIC, an entity under no obligation to conduct loan modification 15 discussions. Even this statement, viewed on its face, did not fulfil the 16 requirements of California Civil Code §2923.5(a) and (b). It further appeared to 17 have been an edited statement of one intended to be used prior to the notice 18 requirements of Senate Bill 1137. This Notice of Default directly violates 19 California Civil Code §2923.5(a) and (b). 20

28. On or about January 30, 2009, a Notice of Trustee Sale was recorded

21 against the property of 580 La Sabre Court, Morgan Hill, CA 95037, by Old 22 Republic Default Management. This Notice of Trustee Sale initially set the date 23 of February 26, 2009 at 10:00 a.m. as the date of the sale. This trustee sale date 24 was postponed to April 1, 2009. 25

29. This Notice of Trustee Sale purported that the beneficiary of the

26 mortgage and the promissory note was MERS (Mortgage Electronic Registration 27 Systems, Inc.). A copy of this Notice of Trustee Sale is attached to this complaint 28 as Exhibit 2. By this time, Marin Conveyancing Corporation as Trustee and -7-

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1 Greenpoint Mortgage as Beneficiary disappeared. 2

30. MERS is always a nominee and never the actual holder or owner of a

3 promissory note or deed of trust. It is never an actual beneficiary. MERS is 4 essentially a sophisticated electronic bulletin board for the recording of mortgage 5 information. MERS never is the actual assignee of the promissory note or trust 6 deed. 7

31. While the Notice of Trustee Sale listed MERS as the beneficiary, the

8 Notice did not provide the name, address, and telephone number of this 9 beneficiary. 10

32. This Notice of Trustee Sale further stated that the estimated charges,

11 fees and expenses as of the time of the recording of Notice of Trustee Sale was 12 $560,801.38. The Trustee was listed as Old Republic Default Management 13 Services. 14

33. This Notice of Trustee Sale did not contain a declaration as mandated

15 by California Civil Code §2923.5. It simply stated that the declaration as 16 required by this code section was fulfilled when the Notice of Default was 17 recorded on October 17, 2008. The Notice of Default not did contain the 18 mandatory declaration nor details required by 2923.5(c). 19

34. The June 27, 2006 promissory note and deed of trust contains an

20 attorney fee provision whereby the losing party would be required to pay the 21 losing party’s attorney fees in the event of litigation. 22

35. Plaintiff Cornelio Pantoja has never been advised as to any transfers

23 concerning the alleged beneficiary of this alleged mortgage note. 24

36. The initial beneficiary was Greenpoint Mortgage Lending.

25 Subsequently claiming to be the beneficiary in the Notice of Default and the 26 Notice of Trustee Sale, without a chain of evidence of its right to do so, has been 27 MERS. 28

37. COUNTRYWIDE now is attempting to foreclose upon the home of -8-

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1 Cornelio Pantoja, listing MERS as beneficiary, when it does not have the legal 2 right to do so. 3

38. COUNTRYWIDE now is attempting to foreclose upon the home of

4 Cornelio Pantoja, listing MERS as beneficiary, when neither MERS nor 5 COUNTRYWIDE nor apparently anyone do not have possession of the original 6 promissory note with proper chain of endorsements from Greenpoint Mortgage 7 Lending. COUNTRYWIDE has made no reasonable effort to insure that it is 8 acting under the authority of a lawful beneficiary. 9

39. COUNTRYWIDE and Old Republic Management now is attempting to

10 foreclose upon the home of Cornelio Pantoja when they have not complied with 11 the requirements of California non-judicial foreclosure law. 12

40. California Civil Code §2924 et seq. mandates that a Notice of Default

13 and a Notice of Trustee sale require the existence of a valid security, such as a 14 trust deed securing a valid promissory note, before non-judicial foreclosure 15 proceedings can be initiated. No such valid security and no such valid 16 promissory note existed in favor of the defendants at the time they commenced 17 non-judicial foreclosure proceedings. 18

41. In order to conduct a valid foreclosure, the beneficiary must have in its

19 possession the original of the promissory note with endorsements establishing the 20 foreclosing beneficiary as the rightful of the owner of the note, and must have the 21 original of the deed of trust with recorded assignments establishing that it is the 22 rightful owner and beneficiary of this deed of trust. 23

42. At no time after GREENPONT may have allegedly transferred the note

24 and trust deed to a subsequent assignee was Cornelio Pantoja ever provided 25 documentation establishing that the alleged foreclosing beneficiary was in fact 26 that rightful and lawful owner of the promissory note and the deed of trust. 27

43. OLD REPUBLIC is acting as the foreclosure trustee in this matter.

28 Cornelio Pantoja is informed and believes that OLD REPUBLIC is not the lawful -9-

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1 beneficiary nor owner of the June 2006 promissory note and trust deed. 2

44. Furthermore, Cornelio Pantoja is informed and believes that

3 COUNTRYWIDE performed the duties a servicer of the loan and in fact is not 4 the not the lawful beneficiary nor owner of the June 27, 2006 promissory note and 5 trust deed. 6

45. California Civil Code §§2924c(b)(1) requires that the beneficiary be

7 identified in the Notice of Default. The beneficiary that was identified as 8 beneficiary in the Notice of Default was GREENPOINT. MERS was then 9 identified as the beneficiary in the Notice of Trustee Sale. COUNTRYWIDE has 10 never held itself out to be the beneficiary of this June 27, 2006 loan transaction. 11

46. This failure to identify the true beneficiary, i.e., the holder and owner

12 of the promissory note, has prejudiced Cornelio Pantoja. It is prevented him from 13 readily identifying the legal owner of the note, has prevented him from obtaining 14 proof that payments are being made to the correct entity, has prevented him from 15 directly conducting loan modification discussions with the beneficiary of the 16 note, have prevented Cornelio Pantoja from insuring that the purpose of 17 California Civil Code §2923.6 is fulfilled, and has been a substantial factor in 18 causing the foreclosure sale date to be set. 19

47. California Senate Bill 1137 was signed into law as emergency

20 legislation on July 8, 2008. Since it was emergency legislation, the sections of 21 law went into effect on that same date. Two notice provisions, however, went 22 into effect on September 5, 2008. 23

48. California Senate Bill 1137 enacted California Civil Code §§2923.5,

24 2923.6, 2924.8 and 2929.3 and California Code of Civil Procedure 1161b. 25

49. California Senate Bill 1137 found that, “California is facing an

26 unprecedented threat to its state economy and local economies because of 27 skyrocketing residential property foreclosure rates in California.” If found that, 28 “It is essential to the economic health of California for the state to ameliorate the -10-

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1 deleterious effects on the state economy and local economies and the California 2 housing market that will result from the continued foreclosures of residential 3 properties in unprecedented numbers by modifying the foreclosure process to 4 require ... options that could avoid foreclosure.” If further found that, “This act is 5 necessary to avoid unnecessary foreclosures of residential properties ....” 6

50. California Civil Code §§2923.5(a)-(c) requires that the current

7 beneficiaries, COUNTRYWIDE, and OLD REPUBLIC declare in their notice of 8 default and their notice of trustee sale their efforts to contact Cornelio Pantoja and 9 engage in foreclosure/loss mitigation. 10

51. Defendants COUNTRYWIDE, OLD REPUBLIC, and any alleged

11 claimant as the beneficiary to the June 2006 promissory note and deed of trust 12 wilfully and intentionally did not comply with California Civil Code §§2923.5(a)13 (c). Their Notice of Default (Exhibit 1) and their Notice of Trustee Sale recorded 14 (Exhibit 2) do not contain the required declarations based on personal knowledge 15 in the manner mandated by California Civil Code §§2923.5(b) and (c). 16

52. Defendants COUNTRYWIDE, OLD REPUBLIC, and claiming

17 beneficiary filed their Notice of Default without the mandated declaration of 18 California Civil Code §2923.5(b). 19

53. Defendants COUNTRYWIDE, OLD REPUBLIC, and claiming

20 beneficiary filed their Notice of Trustee Sale without the mandated declaration of 21 California Civil Code §2923.5(c). 22

54. California Civil Code §2923.6 requires that the defendants have

23 pursued a loan modification in good faith prior to the recording of a notice of 24 default or trustee sale. 25

55. Plaintiff Cornelio Pantoja contacted COUNTRYWIDE during mid

26 February 2009. He submitted to COUNTRYWIDE the documents which 27 COUNTRYWIDE was requesting of him during March 2009. Nevertheless, 28 COUNTRYWIDE refused to postpone the foreclosure sale set for April 1, 2009 -11-

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1 so that a viable loan modification agreement or workout plan could be arrived at. 2

56. Defendants did not comply with California Civil Code §2923.6.

3

57. On February 20, 2009, Assembly Bill X2-7 was signed into law. This

4 provision enacted into law California Civil Code §§2923.52, 2923.53, 2923.54, 5 and 2923.55. 6

58. Assembly Bill X2-7 reiterated the concerns expressed in Senate Bill

7 1137 in July 2008. Seven months, and many foreclosures later, the California 8 Legislature found, “California is facing an unprecedented threat to its state and 9 local economies due to skyrocketing residential property foreclosure rates in 10 California. Those high foreclosure rates have adversely affected property values 11 in California, and will have even greater adverse consequences as foreclosure 12 rates continue to rise.” 13

59. Assembly Bill X2-7 also declared that, “It is essential to the economic

14 health of California for the state to ameliorate the deleterious effects that will 15 result from the continued high rate of foreclosure of residential properties by 16 modifying the foreclosure process .... This change in accessing the state's 17 foreclosure process is essential to ensure that the process does not exacerbate the 18 current crisis by adding more foreclosures to the glut of foreclosed properties 19 already on the market if the foreclosure may be avoided through a loan 20 modification. Those additional foreclosures could further destabilize the housing 21 market with significant, corresponding deleterious effects on the state and local 22 economies.” 23

60. California Civil Code §2923.52 adds an additional three months to the

24 notice of default period specified in California Civil Code §2924(a)(2) “if the 25 loan at issue is the first mortgage or deed of trust that the property secures, the 26 borrower occupied the property as his or her principal residence at the time the 27 loan became delinquent, and the notice of default has been filed.” Thus, a total 28 period of six months must pass before a notice of trustee sale can be recorded. -12-

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1 Less than six months have passed since the Notice of Default was recorded. 2

61. The alleged note of June 27, 2006 is a first deed of trust and the

3 property of 580 La Sabre Court in Morgan Hill is plaintiff’s home.

UNCONSCIONABLENESS

4 5

62. Plaintiff realleges and incorporates by reference paragraphs 1 to 61 of

6 this complaint. 7 8 9 10

63. Civil Coded §1670.5(a) states: If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made, the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.

11 12

64. The mortgage agreement which plaintiff entered into with

13 GREENPOINT, the manner in which it was entered into, and a loan now 14 serviced by COUNTRYWIDE is unconscionable. The unconscionability of the 15 contract has been detailed in this complaint. 16

65. Plaintiff Cornelio Pantoja was misled as to the terms of the loan

17 agreement. He was told that the loan would call, at the worse, for mortgage 18 payments of $3,054 for the duration of the loan. The fact that the loan was an 19 exploding ARM with much higher payments was concealed from him. He was 20 not permitted the opportunity of reviewing the loan documents until after their 21 execution, and then not all of the loan documents were provided to him. No loan 22 disclosures were provided to him prior to the execution of the loan. Cornelio 23 Pantoja’s primary language is Spanish, with English as a second language. The 24 language of the promissory note and deed of trust, being filled with legalese, 25 would have been nearly incomprehensible to a person for whom English was a 26 primary language, let along with someone who has a limited education, and let 27 alone someone who would have been permitted time to peruse all of the loan 28 documents. -13-

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66. Defendants then sought the charge plaintiff inflated and unlawful fees,

2 as reflected in their billings for the mortgage, their notice of default, and their 3 notice of trustee sale. If plaintiff did not pay these fees, or agree to pay them, 4 defendants would seize his property through a non-judicial foreclosure sale, 5 which they are now attempting to do. Defendants, and each of them, sought to 6 impose upon plaintiff a mortgage agreement which carried excessive interest, 7 charges and fees and whose true nature were and are still concealed from 8 plaintiff. 9

67. The defendants, their agents and employees, and their successors have

10 misled the plaintiff and thereby sought to financially profit from its terms, and 11 have done so wilfully and maliciously.

13

FIRST CAUSE OF ACTION REQUEST FOR DECLARATORY JUDGMENT (All Defendants)

14

68. Plaintiff Cornelio Pantoja realleges and incorporates by reference

12

15 paragraphs 1 to 67 of this complaint. 16

69. An actual controversy has arisen and now exists between plaintiff and

17 defendants concerning their respective rights and duties. Plaintiff desires a 18 judicial determination of his rights and duties 19

70. A valid foreclosure by the private power of sale requires strict

20 compliance with the requirements of California Civil Code §2924 et seq.. 21

71. Defendants have scheduled a trustee sale despite the fact that they do

22 not have a valid security in plaintiff’s residence of 580 La Sabre Court in Morgan 23 Hill, CA, and there is no known beneficiary who has. Defendants intend to 24 proceed forward with an unlawful and invalid trustee sale based on the non25 existent security and the invalid notices based on this security. 26

72. Defendants have scheduled a trustee sale and intend to proceed with

27 the sale on April 1, 2009 despite their violations of California Non-Judicial 28 Foreclosure Law, California Civil Code §2924 et seq.. -14-

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73. Cornelio Pantoja requests that this Court issue a judgment that the

2 notice of trustee sale and the notice of default are invalid; that before the 3 defendants proceed forward with any other action against plaintiff’s home, that 4 they be required to prove by properly admissible evidence that the beneficiary has 5 in it’s possession the original of the promissory note with indorsements 6 establishing it as the rightful owner of the note; 7

74. Cornelio Pantoja requests that this Court issue a declaration finding:

8 that defendants have failed to properly identify the beneficiary in the notice of 9 default, as required by California Civil Code §2924c(b)(1); that defendants have 10 failed to properly identify the beneficiary in the notice of trustee sale; that 11 defendants have failed to provide a proper California Civil Code §2923.5 12 declaration in the notice of default; that defendants have failed to provide a 13 proper California Civil Code §2923.5 declaration in the notice of trustee sale; that 14 defendants have failed to engage in loan modification or workout discussions in 15 good faith as required by California Civil Code §2923.6; that defendants have 16 failed to postpone the trustee sale despite the 90 day postponement requirement 17 of California Civil Code §2923.52; that defendants should be estopped from 18 foreclosing on the home of plaintiff; that GREENPOINT loan of June 2006, and 19 the manner in which it was executed, is and was unconscionable. 20

75. A judicial declaration is necessary and appropriate at this time and

21 under these circumstances in order that plaintiff may ascertain his rights and 22 duties and avoid the specter of a foreclosure sale and the loss of his home. Such 23 trustee’s sale, absent a judicial determination negating the Notice of Trustee Sale, 24 is scheduled to occur in August 2009, or at a time thereafter in the event of 25 postponement. Such a trustee’s sale will cause Cornelio Pantoja to lose a 26 property without out establishing a lawful right of the defendants to conduct such 27 a sale or fully comply with California foreclosure law. Such a trustee’s sale 28 would for surely cause Cornelio Pantoja the unjust loss of his home. -15-

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76. A foreclosure sale of plaintiff’s home is currently scheduled but has not

2 yet occurred. Plaintiff homeowner is not required to tender the amounts 3 demanded by defendants as a condition of bringing this action as any “tender 4 rule” is a rule that the most would apply post-foreclosure sale. 5

77. Defendants’ actions in this matter have been wilful and knowing.

6

SECOND CAUSE OF ACTION UNLAWFUL AND ATTEMPTED FORECLOSURE (All Defendants) 78. Plaintiff realleges and incorporate by reference paragraphs 1 to 77 of

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27

this complaint. 79. Plaintiff Cornelio Pantoja is the lawful owner of the property located at 580 La Sabre Court in Morgan Hill, CA. 80. On or about January 30, 2009, Defendants recorded a Notice of Trustee sale upon the property of 580 LaSabre Court, Morgan Hill, CA 95037. This is the final required notice for the defendants to conduct a foreclosure sale of plaintiff’s home. 81. As of the date of the filing of this amended complaint, a non-judicial foreclosure sale of plaintiff’s home has not yet occurred but is currently scheduled to occur. 82. Defendants engaged in unlawful foreclosure in the following ways: by attempting to foreclosure upon plaintiff’s home when they and the unknown beneficiary did not have the right to do so; by failing to demonstrate that the beneficiary, whomever that may be, has in its possession the original of the promissory note with indorsements establishing it as the rightful owner of the note; by failing to properly identify the beneficiary in the notice of default, as required by California Civil Code §2924c(b)(1); by failing to properly identify the beneficiary in the notice of trustee sale even after being requested to do so; by failing to provide a proper 2923.5 declaration in the notice of of default; by failing to provide a proper 2923.5 declaration in the notice of trustee sale; by

28 -16-

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1 failing to engage in loan modification or workout discussions in good faith as 2 required by California Civil Code §2923.6; by recording a notice of trustee sale 3 on or about January 30, 2009; by attempting to go to trustee sale despite the 90 4 day postponement requirement of California Civil Code §2923.52; by attempting 5 to go to sale without insuring that the beneficiary for whom the servicer and 6 trustee worked had in its possession and was the owner of original of the 7 promissory note with endorsements; by attempting to enforce an unconscionable 8 loan of June 2006. 9

83. These defendants did not have the legal right to foreclose upon

10 plaintiff’s property. 11

84. A foreclosure sale of plaintiff’s home is currently scheduled but has not

12 yet occurred. Plaintiff homeowner is not required to tender the amounts 13 demanded by defendants as a condition of bringing this action as any “tender 14 rule” is a rule that at the most would apply post-foreclosure sale. 15

85. Defendants’ actions have been intentional, wilful and malicious.

16

86. As a result of defendants’ actions, plaintiff has suffered harm. Among

17 the harm, he has incurred substantial attorney fees in order to vindicate his lawful 18 rights. He has suffered the slander of his reputation in that a foreclosure sale has 19 been reported against him to credit reporting agencies.

THIRD CAUSE OF ACTION QUIET TITLE (All Defendants)

20 21 22 23 24 25 26 27

87. Cornelio Panotoja incorporates herein by reference paragraphs 1 through 86 of this amended complaint. 88. Cornelio Pantoja is the owner in fee simple of the property, his home, located at 580 LaSabre Court, Morgan Hill, CA 95037. Cornelio Pantoja is entitled to possession and control of the real property, and improvements, located at this address.

28 -17-

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89. Cornelio Pantoja obtained a secured loan from GREENPOINT on or

2 about June 27, 2006. In order to secure the loan, Cornelio Pantoja executed a 3 promissory note and secured that note with a trust deed on the property of 580 La 4 Sabre Court in Morgan Hill, CA. 5

90. On or about October 16, 2008, defendants recorded a notice of default

6 upon the property of 580 LaSabre Court, Morgan Hill, CA. On or about January 7 30, 2009, Defendants recorded a Notice of Trustee sale upon the property of 580 8 LaSabre Court, Morgan Hill, CA 95037. 9

91. This Notice of Default, Exhibit 1 to this amended complaint, listed two

10 separate and distinct beneficiaries. It listed the original lender and beneficiary, 11 GREENPOINT. It immediately thereafter listed MERS as the separate and 12 distinct beneficiary. This misrepresentation in the Notice of Default was a direct 13 violation of California Civil Code§2924c(b)(1). MERS continued in this 14 beneficial capacity, and GREENPOINT disappeared, in the subsequent Notice of 15 Trustee Sale. 16

92. This Notice of Trustee Sale purported that the beneficiary of the

17 mortgage and the promissory note was MERS (Mortgage Electronic Registration 18 Systems, Inc.). A copy of this Notice of Trustee Sale is attached to this complaint 19 as Exhibit 2. By this time, Marin Conveyancing Corporation as Trustee and 20 Greenpoint Mortgage as Beneficiary disappeared. 21

93. MERS is always a nominee and never the actual holder or owner of a

22 promissory note, or deed of trust for that matter. It is never an actual beneficiary. 23 MERS is essentially a sophisticated electronic bulletin board for the recording of 24 mortgage information. MERS never is the actual assignee of the promissory note 25 or trust deed. 26

94. In order to initiate a foreclosure proceeding, a beneficiary must have a

27 legal or equitable right, title or interest in the promissory note. The current holder 28 and owner of the note and is always a proper party to initiate a non-judicial -18-

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1 foreclosure proceeding. In order to invoke the rights under California non2 judicial foreclosure law, a beneficiary must establish an unbroken chain of 3 transfers from prior note holders when challenged to establish its right to 4 foreclose. 5

95. A servicer’s right, in this case Countrywide, to conduct a non-judicial

6 foreclosure is entirely dependent and derivative from the rights of the holder and 7 owner of the promissory note and deed of trust. These rights do not exist 8 independent of nor greater than the rights of the owner and holder of the note. 9

96. A servicer and a foreclosure trustee may not conduct a non-judicial

10 foreclosure without disclosing the correct identity of the beneficiary of the note 11 and deed of trust when requested to do so. 12

97. A servicer and a foreclosure trustee may not conduct a non-judicial

13 foreclosure without undertaking a good faith effort to confirm the existence of the 14 original of the promissory note with indorsements to the current beneficiary when 15 requested to do so. 16

98. None of the defendants are the owners nor holders of the promissory

17 note executed by Cornelio Pantoja in June 2006. 18

99. None of the defendants are owners nor holders of the deed of trust

19 executed by Cornelio Pantoja in June 2006. 20

100. A trust deed separated from a promissory note becomes a nullity. A

21 promissory note separated from the securing trust deed becomes a unsecured 22 debt. 23

101. Plaintiff Cornelio Pantoja has never been advised as to any transfers

24 concerning the alleged beneficiary of this alleged mortgage note. 25

102. There is no identifiable and lawful beneficiary of these mortgage

26 agreements of June 2006, to whom indorsements of the promissory note have 27 been made and to whom assignments of the deed of trust have been properly 28 made. -19-

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103. Defendants Countrywide and Old Republic do not have the lawful

2 right to conduct a non-judicial foreclosure sale of Cornelio Pantoja’s home until 3 the legal right of the beneficiary to engage in this sale has been established. This 4 is accomplished, when requested by the plaintiff, by the production of the original 5 of the promissory note with indorsements and the production of the assignment of 6 the deed of trust in favor of the current beneficiary. 7

104. Cornelio Pantoja is informed and believes that no such lawful and

8 documented beneficiary exists. 9

105. These defendants did not have the legal right to foreclose upon

10 plaintiff’s property. 11

106. Defendants’ actions have been intentional, wilful and malicious.

12

107. As a result of defendants’ actions, plaintiff has suffered harm. Among

13 the harm, he has incurred substantial attorney fees in order to vindicate his lawful 14 rights. He has suffered the slander of his reputation in that a foreclosure sale has 15 been reported against him to credit reporting agencies. 16

108. A foreclosure sale of plaintiff’s home is currently scheduled but has

17 not yet occurred. Plaintiff homeowner is not required to tender the amounts 18 demanded by defendants as a condition of bringing this action as any “tender 19 rule” is a rule that at the most would apply post-foreclosure sale. 20

109. Plaintiff Cornelio Pantoja seeks a determination of fee simple title in

21 this action as of the date on which this claim was filed.

FOURTH CAUSE OF ACTION FRAUD (COUNTRYWIDE ONLY)

22 23 24

110. Plaintiff realleges and incorporates by reference paragraphs 1 to 109

25 of this complaint. 26

111. Fraud occurs under any of the following circumstances: When there is

27 an affirmative misrepresentation — the suggestion, as a fact, of that which is not 28 true by one who does not believe it to be true; a concealment or half truth — the -20-

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1 suppression of a fact, by one who is bound to disclose it or who gives information 2 of other facts which are likely to mislead for want of communication of that fact; 3 or a false promise — a promise made without any intention of performing it. 4

112. Fraud also occurs when a defendant makes an untrue representation of

5 a material fact without a reasonable ground for its truth or in a manner not 6 warranted by the available information. Such a representation must be made with 7 the intent that the plaintiff would and did rely on it, to his detriment and harm. 8

113. In this matter, COUNTRYWIDE misrepresented material facts,

9 knowing that its representations were false and by making their representations 10 without reasonable grounds, with the intent that Cornelio Pantoja would rely on 11 their misrepresentations, all to Cornelio Pantoja’s harm. 12

114. These misrepresentations were made by COUNTRYWIDE through its

13 employees and agents and through OLD REPUBLIC as foreclosure trustee. Its 14 misrepresentations were made by heretofore unidentified employees and agents of 15 COUNTRYWIDE whose identities and specific capacities will be established by 16 the discovery to be conducted in this case. 17

115. COUNTRYWIDE perpetrated its fraud in actions which included but

18 were not limited to the following activities, and as described with specificity in 19 the factual allegations of this claim: 20

116. By attempting to collect an unenforceable and alleged debt from

21 Cornelio Pantoaja; by attempting to enforce an unconscionable loan and claiming 22 that it was legal and proper; By misrepresenting the debt of June 2006 as a 23 secured debt when in fact it was an unsecured debt at best; By failing to advise 24 Cornelio Pantoja as to any transfers of the promissory note to any alleged 25 beneficiary; by failing to properly identify and insure the identification of the 26 beneficiary in the notice of default, as required by California Civil Code 27 §2924c(b)(1); by failing to properly identify and insure the identification of the 28 beneficiary in the notice of trustee sale; by failing to provide and insure the -21-

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1 providing of a proper 2923.5 declaration in the notice of default; by failing to 2 provide and insure the providing of a proper 2923.5 declaration in the notice of 3 trustee sale; by failing to engage in loan modification or workout discussions in 4 good faith as required by California Civil Code §2923.6; by recording a notice of 5 trustee sale on or about January 30, 2009; by attempting to go to trustee sale 6 despite the 90 day postponement requirement of California Civil Code §2923.52; 7 By attempting to go to sale without insuring that the beneficiary for whom the 8 servicer and trustee worked had in its possession and was the owner of original of 9 the promissory note with endorsements.

FIFTH CAUSE OF ACTION UNFAIR BUSINESS PRACTICES (All Defendants)

10 11 12

117. Plaintiff realleges and incorporates by reference paragraphs 1 to 116

13 of this complaint. 14

118. California Business and Professions Code §17200 prohibits any

15 unlawful, unfair or fraudulent business act or practice and unfair, deceptive, 16 untrue or misleading advertising and any act prohibited by Business and 17 Professions Code §17500 et seq.. 18

119. California Business and Professions Code §17500 et seq. prohibits the

19 making of a statement or a publication or a declaration concerning any 20 circumstance or matter of fact connected with the proposed performance or 21 disposition of real or personal property, which pronouncements is untrue or 22 misleading, and which is known, or which by the exercise of reasonable care 23 should be known, to be untrue or misleading. 24

120. Defendants, and each of them, violated Business and Professions

25 Code §17200 et seq. and 17500 et seq., through the following actions and by 26 aiding and abetting each other in the completion and continued perpetration of the 27 following actions: By failing to advise Cornelio Pantoja as to any transfers of the 28 promissory note to any alleged beneficiary; by failing to properly identify the -22-

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1 beneficiary in the notice of default, as required by California Civil Code 2 §2924c(b)(1); by failing to properly identify the beneficiary in the notice of 3 trustee sale; by failing to provide a proper 2923.5 declaration in the notice of 4 default; by failing to provide a proper 2923.5 declaration in the notice of trustee 5 sale; by failing to engage in loan modification or workout discussions in good 6 faith as required by California Civil Code §2923.6; by recording a notice of 7 trustee sale on or about January 30, 2009; by attempting to go to trustee sale 8 despite the 90 day postponement requirement of California Civil Code §2923.52; 9 By attempting to go to sale without insuring that the beneficiary for whom the 10 servicer and trustee worked had in its possession and was the owner of original of 11 the promissory note with endorsements; by attempting to enforce an 12 unconscionable loan and claiming that it was legal and proper. 13

121. A foreclosure sale of plaintiff’s home is currently scheduled but has

14 not yet occurred. Plaintiff homeowner is not required to tender the amounts 15 demanded by defendants as a condition of bringing this action as any “tender 16 rule” is a rule that at the most would apply post-foreclosure sale.

SIXTH CAUSE OF ACTION EQUITABLE ESTOPPEL (All Defendants)

17 18 19

122. Plaintiff Cornelio Pantoja re-alleges and incorporates by reference

20 paragraphs 1 to 121 of this complaint. 21

123. The essence of an estoppel is that the party to be estopped has by

22 language or conduct led another to do that which he would not otherwise have 23 done and as a result thereof that he has suffered injury. A person or entity may 24 not deny the existence of a state of facts if he or she intentionally led another to 25 believe a particular circumstance to be true and to rely upon such belief to his or 26 her detriment. 27

124. The doctrine of "estoppel" refers less to a doctrine than to a

28 conceptual pattern, first articulated in the courts of equity, in which the court in -23-

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1 effect closes its ears to a point—a fact, argument, claim, or defense—on the 2 ground that to permit its assertion would be intolerably unfair. “Estoppel” is an 3 equitable argument that deprives another his rights or defenses. The doctrine of 4 equitable estoppel is based on the foundation of conscience and fair dealing. 5

125. Defendants should be estopped from asserting any right to foreclose

6 upon the home of plaintiff Cornelio Pantoja for the following reasons: 7

126. No one has demonstrated that any alleged beneficiary has in its

8 possession the original of the promissory note with indorsements establishing it 9 as the rightful owner of the note. Neither and no one has the right nor standing to 10 foreclose on plaintiff’s home without these documents. 11

127. There are multiple other reasons for Equitable Estoppel to apply.

12 These have been discussed supra, but are included under the reasons as to why 13 Equitable Estoppel applies: by attempting to go to sale without insuring that the 14 beneficiary for whom the servicer and trustee worked had in its possession and 15 was the owner of original of the promissory note with endorsements; by failing to 16 advise Cornelio Pantoja as to any transfers of the promissory note to any alleged 17 beneficiary; by failing to properly identify the beneficiary in the notice of default, 18 as required by California Civil Code §2924c(b)(1); by failing to properly identify 19 the beneficiary in the notice of trustee sale; by failing to provide a proper 2923.5 20 declaration in the notice of default; by failing to provide a proper 2923.5 21 declaration in the notice of trustee sale; by failing to engage in loan modification 22 or workout discussions in good faith as required by California Civil Code 23 §2923.6; by recording a notice of trustee sale on or about January 30, 2009; by 24 attempting to go to trustee sale despite the 90 day postponement requirement of 25 California Civil Code §2923.52; by attempting to enforce an unconscionable loan 26 and claiming that it was legal and proper. 27

128. Defendants and their agents and employees knew that their authority

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1 promissory note and deed of trust, and that their authority is subservient to and 2 not independent of this right. Additionally, the defendants and their agents and 3 employees knew of their obligations under California Civil Code §2924 et seq. 4 and 2923 et seq. but misled the plaintiff into believing that defendants had the 5 lawful right to foreclose and were in full compliance with California non-judicial 6 foreclosure law. All of these misrepresentations and deceptions caused plaintiff 7 harm. 8

129. A foreclosure sale of plaintiff’s home is currently scheduled but has

9 not yet occurred. Plaintiff homeowner is not required to tender the amounts 10 demanded by defendants as a condition of bringing this action as any “tender 11 rule” is a rule that at the most would apply post-foreclosure sale.

SEVENTH CAUSE OF ACTION ACCOUNTING (All Defendants)

12 13 14

130. Plaintiff realleges and incorporates by reference paragraphs 1 to 129

15 of this complaint. 16

131. There is and was a relationship between and among the defendants

17 and their agents and successors and plaintiff Cornelio Pantoja. In this 18 relationship, the defendants, and their agents and successors have demanded 19 mortgage payments from plaintiff and have stated a payoff amount due in their 20 notice of trustee sale. Additionally, California law permits plaintiff Cornelio 21 Pantoja the right to reinstate the loan five business days before, or pay it off prior 22 to the sale, assuming a valid indebtedness. The defendants, and their agents and 23 successors had and have a legal duty to accurately and timely account for any 24 payments and to properly apply any payments to the trust deed mortgage. 25

132. Only the defendants, and their agents and successors have the

26 information as to what charges and fees and costs they added to the amounts they 27 are demanding from Cornelio Pantoja and the justification for these amounts. 28

133. Defendants claim that Cornelio Pantoja owes a minimum of -25-

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1 $560,801.38 according to their notice of trustee sale recorded on or about January 2 30, 2009. Plaintiff disputes the accuracy of this amount in light of the 3 misrepresentations which were made at the time this loan was extended. Plaintiff 4 is informed and believes that defendants have imposed unlawful and 5 unsubstantiated charges and fees to this notice of trustee sale amount. 6 Additionally, this amount demanded in the notice of trustee sale is $46,401 in 7 excess of the $514,400 principal of the June 2006 loan and does not give any 8 credit nor accounting for the 2 years of faithful payments that Cornelio Pantoja 9 made. This amount if $560,801.38 is grossly inaccurate and fraudulent.

134. An accurate amount that plaintiff Cornelio Pantoja allegedly owes and

10

11 allegedly owed to defendants, and their agents and successors can only be 12 determined by information in the possession of these defendants, and by a 13 detailed and itemized accounting. The amounts which the defendants are 14 charging Cornelio Pantoja in fees and charges is in the possession of the 15 defendants only. The amounts which Cornelio Pantoja owes is uncertain at this 16 time and cannot be determined without an accounting.

135. Whann v. Doell1 and James Church v. Superior Court2 authorize an

17

18 accounting when there is an unknown amount due that cannot be determined 19 without an accounting.

136. A foreclosure sale of plaintiff’s home is currently scheduled but has

20

21 not yet occurred. Plaintiff homeowner is not required to tender the amounts 22 demanded by defendants as a condition of bringing this action as any “tender 23 rule” is a rule that at the most would apply post-foreclosure sale.

137. Cornelio Pantoja requests an accounting from the defendants in this

24

25 matter so that he can know what is lawfully owed and what is not. 26 27 28

1

Whann v. Doell (1923) 192 Cal. 680, 684.

2

James Church v. Superior Court (1955) 135 Cal.App.2d 352, 359. -26-

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138. Plaintiff realleges and incorporates by reference paragraphs 1 to 137

3 of this complaint. 4

139. Plaintiff Cornelio Pantoja alleges that defendants COUNTRYWIDE is

5 guilty of malice, fraud and oppression as defined by California Civil Code §3294, 6 and that Cornelio Pantoja should recover, in addition to actual damages, damages 7 to make an example of and to punish defendants and each of them for their 8 actions.

PRAYER

9

10 WHEREFORE, plaintiff prays judgment as follows: 11

1. For a declaration that the Notice of Default recorded on or about October

12 16, 2008 and attached as Exhibit 1 is invalid and does not provide the necessary 13 foundation for the conduct of a trustee sale, as described in California Civil Code 14 §2924 et seq.. 15

2. For a declaration that the notice of Trustee Sale recorded on or about

16 January 30, 2009 and attached as Exhibit 2, and any previously issued notice of 17 default are invalid and do not provide the necessary foundation for the conduct of 18 a trustee sale, as described in California Civil Code §2924 et seq.. 19

3. For a declaration that the June 2006 loan agreement from

20 GREENPOINT is unconscionable. 21

4. That defendants and their successors and assigns, be permanently

22 enjoined from conducting a non-judicial foreclosure sale upon the property of 580 23 LaSabre Court, Morgan Hill, CA 95037. 24

5. For a declaration quieting title to the property of the property of 580

25 LaSabre Court, Morgan Hill, CA 95037 in the name of Cornelio Pantoja, free 26 and clear of the alleged claims of defendant COUNTRYWIDE and OLD 27 REPUBLIC. 28

6. For a judgment ordering defendants and any claiming beneficiary, and -27-

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1 each of them, to produce the original of the promissory note of June 27, 2006, 2 with endorsements to the current beneficiary of this promissory note. 3

7. For a declaration that defendants have violated California Civil Code

4 §2924c(b)(1), California Civil Code §2924f, California Civil Code §2924b, 5 California Civil Code §2923.6, and California Civil Code §2923.52. 6

8. For a declaration that the defendants have violated their license law

7 pursuant to California Civil Code §2923.53(h). 8

9. That Defendants render a full, complete, detailed, and itemized

9 accounting reflecting the amounts they claim are past due, the principal, interest, 10 taxes, assessments, insurance premiums, or advances, and recurring obligations, 11 and particularly attorney and trustee fees. That they render proof of existence of 12 their alleged security interest on 580 LaSabre Court, Morgan Hill, CA 95037. 13 That defendants substantiate their accounting with detailed documentation. 14

10. That Plaintiff Cornelio Pantoja be declared to be the prevailing party.

15

11. For attorney fees pursuant to California Civil Code §1717 and

16 California Code of Civil Procedure §1021.5. 17

12. For general and special damages according to proof.

18

13. For punitive damages.

19

14. For such other and further relief as the court may deem proper.

20 21 SPIELBAUER LAW OFFICE 22 23 24

Thomas Spielbauer, Esq. 25 Attorney for Plaintiff 26 27 28 -28-

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Case5:09-cv-01615-JW Document39-1

1 2 3 4 5 6 7

Thomas Spielbauer, Esq. SBN 78281 THE SPIELBAUER LAW OFFICE 111 North Market Street, Suite 300 San Jose, CA 95113 Mail: P. O. Box 698 Santa Clara, CA 95052 (408)451-8499 Fax: (610)423-1395 [email protected] Attorneys for Cornelio Pantoja, Plaintiff IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

8 9

CORNELIO PANTOJA,

10

No: 5:09-cv-1615 JW Plaintiff.

11 12

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Santa Clara County Superior Court No: 109CV138528

v.s.

13 14 15 16 17

COUNTRYWIDE HOME LOANS, INC.; OLD REPUBLIC NATIONAL TITLE COMPANY; OLD REPUBLIC DEFAULT MANAGEMENT SERVICES; DOES 1-20, Defendants.

18 19 20 21 22 23 24 25 26 27 28

EXHIBITS TO FIRST AMENDED COMPLAINT

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TABLE OF EXHIBITS

2 3

Exhibit

4 5 Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 6 7 Notice of Trustee Sale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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Exhibit 1 Notice of Default

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Exhibit 2 Notice of Trustee Sale

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