1st Amended Complaint Sample From Other Atty

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Thomas Spielbauer, Esq.SBN 78281THE SPIELBAUER LAW OFFICE111 North Market Street, Suite 300San Jose, CA 95113Mail: P. O. Box 698Santa Clara, CA 95052(408)451-8499Fax: (610)[email protected]

Attorneys for Cornelio Pantoja, Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

CORNELIO PANTOJA,

Plaintiff.

v.s.

COUNTRYWIDE HOME LOANS,INC.; OLD REPUBLIC NATIONALTITLE COMPANY; OLD REPUBLICDEFAULT MANAGEMENTSERVICES,

Defendants.

No: 5:09-cv-1615 JW

Santa Clara County Superior CourtNo: 109CV138528

FIRST AMENDED COMPLAINTFOR DECLARATORYJUDGMENT PURSUANT TO CCP§1060, QUIET TITLE, FRAUD,UNFAIR BUSINESS PRACTICES,EQUITABLE ESTOPPEL, ANDFOR AN ACCOUNTING

JURY TRIAL REQUESTED

Plaintiff, Cornelia Pantoja, alleges:

PARTIES

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

resident of Santa Clara County, California.

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

COUNTRYWIDE) is a business entity with a principal place of business at 4500

Park Granada, Calabasas, California 91302. COUNTRYWIDE does business in

California and within the County of Santa Clara, California on a regular basis.

COUNTRYWIDE’s agent for the service of process in California is C. T.

Corporation System. COUNTRYWIDE is the alleged loan servicer in this matter.

Case5:09-cv-01615-JW Document39 Filed07/29/09 Page1 of 29

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As a loan servicer, COUNTRYWIDE acted as the agent for the alleged

beneficiary, and its authority as servicer comes exclusively from the authority

enjoyed by the beneficiary.

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

Old Republic National Title Insurance Company. Old Republic National Title

Insurance Company is the parent corporation of Old Republic Default

Management Services. As a result, Old Republic Title Insurance Company is

responsible for the actions of Old Republic Default Management Services. Both

are herein referred to collectively OLD REPUBLIC. OLD REPUBLIC is a

business entity with a principal place of business located at 400 Second Avenue

South, Minneapolis, MN 55401. OLD REPUBLIC is the foreclosure trustee of

an alleged first deed of Trust on the property 580 LaSabre Court, Morgan Hill,

CA 95037. As foreclosure trustee, OLD REPUBLIC acted as the agent for the

alleged beneficiary as well as of the servicer. OLD REPUBLIC regularly

conducts business in Santa Clara County, California. OLD REPUBLIC’s agent

for the service of process in California is R. Wayne Shupe, 555 12th Street, Suite

2150, Oakland, CA 94607-4046.

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

Defendant is and at all relevant times herein was, the agent, employee, alter-ego,

principal, employer, or co-conspirator of each of the remaining co-Defendants,

and in committing the acts herein alleged, was acting in the scope of their

authority as such agents, employees, principals, employers, alter-egos, or co-

conspirators and with the permission and consent of the remaining co-

Defendants.

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

business entity is alleged, the said allegation shall be deemed to mean and include

an allegation that the corporation or business entity acted or omitted to act

through its authorized officers, directors, agents, servants, and/or employees,


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acting within the course and scope of their duties, that the act or omission was

authorized by corporate managerial officers or directors, and that the act or

omission was ratified by the officers and directors of the corporation.

JURISDICTION

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

County of Santa Clara. On April 13, 2009, defendants removed the matter into

Federal District Court based on federal question jurisdiction. Plaintiff brought an

exparte motion to remand on April 15, 2009. This Court denied plaintiff’s motion

to remand on May 12, 2009. Almost two months later, on July 9, 2009, this Court

granted defendants’ motion to dismiss with leave to amend.

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

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

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

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

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

Morgan Hill, County of Santa Clara, State of California, described as follows: All

of Lot 25, as shown on that certain Map of Tract No. 5699, which Map was filed

for record in the Office of the Recorder of the County of Santa Clara, State of

California on July 01, 1976, in Book 374 of Maps, page(s) 9 and 10.

JOINT VENTURE

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

defendants COUNTRYWIDE and OLD REPUBLIC and any alleged claiming

entities as beneficiary to the alleged June 2006 promissory note were engaged in

a joint venture amongst themselves and with other unknown third parties. All

defendants came together for the purpose of enforcing an alleged secured

indebtedness upon the property of 580 LaSabre Court, Morgan Hill, CA 95037

and extracting money from plaintiff Cornelio Pantoja upon threat of seizing his

property. They formed this joint venture for this single mortgage and for the


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series of transactions necessary to enforce the extraction of money from Cornelio

Pantoja by the unlawful enforcement of this alleged June 2006 mortgage. Each

defendant financially benefitted, or intended to benefit from this mutual

undertaking. Each defendant complied with the requirements of the other

defendants in order to insure that the mutual goal of imposing this exploding

ARM was fulfilled and each defendant thereby profited from this transaction.

JURY TRIAL DEMAND

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

FACTUAL ALLEGATIONS

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

from Greenpont Mortgage Lending, Inc. (hereinafter referred to as

GREENPOINT).

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

the financing was used to purchase the home. The loan in the amount of

$514,400 from GREENPOINT. GREENPOINT was the beneficiary.

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

representing plaintiff) arranged financing through an associate, Karen Wigmore.

Plaintiff was promised a monthly mortgage payments $3,054 per month with an

additional promise that he would be refinanced after six months into a lower

monthly mortgage payment. If worse came to worse, he was told, the payments

would remain $3,054 for 30 years, and the interest rate would remain the same for

these 30 years.

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

the date of the signing of the loan documents.

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

amount of $514,000. The note initially granted to Mr. Pantoja a 7.125% interest

rate, calling for a $3,054.25 monthly mortgage payment for the first three years.

However, after the first three years, the interest rate could shoot up five (5)


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percentage points, from 7.125% to 12.125%. Six months later, the interest rate

could cap at 13.125%. The note did not carry a prepayment penalty.

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

Alliance Title in Morgan Hill, California. Copies of some, but not all, of the loan

documents were furnished to Cornelio Pantoja for the first time at the signing.

None of the disclosures had been provided on prior to the signing. As a result,

Cornelio Pantoja relied on the representations and statements of his real estate

agent, his mortgage arranger, and the title officer who was acting as the signing

agent.

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

discussions occurred concerning the loan itself. All the explanations centered on

zoning and pest reports. Nothing was explained nor discussed about the terms of

the loan. Cornelio Pantoja was provided the opportunity of reviewing the loan

documents only after their execution, and only after he had left the title company

premises. The other persons at the signing were the title officer telling plaintiff

where he was to initial and sign and Ms. Wigmore. Cornelio Pantoja was not

permitted the opportunity of reading and understanding any of the documents he

was signing at the time of their execution and thus did not know nor understand

what he was signing. Instead was forced to rely on the oral representations of

Ms. Wigmore and the title officer.

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

he became delinquent.

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

appraised at $650k at the time of purchase, it now has a market value in mid-

$400,000's. It has lost at least $200,000 in value.

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

COUNTRYWIDE notified Cornelio Pantoja that the servicing of his mortgage

had been assigned to COUNTRYWIDE. COUNTRYWIDE merely advised that


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the GREENPOINT had been the initial servicer, but that the servicing rights had

been transferred to COUNTRYWIDE.

21. COUNTRYWIDE provided no information concerning the current

ownership, i.e., who was the beneficiary, of the promissory note nor the deed of

trust, which had been executed on or about June 27, 2006.

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

Default upon the property of 580 La Sabre Court in Morgan Hill, CA. This

Notice of Default is Exhibit 1 to this complaint.

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

appointed trustee was Marin Conveyancing Corporation and failed to provide any

information any kind as to how the plaintiff was to make contact with Marin

Conveyancing Corporation. In fact, Old Republic Default Management was the

entity acting as trustee not only for this notice of default but for the subsequent

notice of Trustee Sale. This misrepresentation in the Notice of Default was a

direct violation of California Civil Code§2924c(b)(1). This Notice of Default

effectively indicated two separate and distinct trustees, Marin Conveyancing

Company and Old Republic Default Management. This code section requires that

the Notice of Default set forth the name, address and telephone number of the

trustee.

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

listed the original lender and beneficiary, GREENPOINT. It immediately

thereafter listed MERS as the separate and distinct beneficiary. This

misrepresentation in the Notice of Default was a direct violation of California

Civil Code§2924c(b)(1). MERS continued in this beneficial capacity, and

GREENPOINT disappeared, in the subsequent Notice of Trustee Sale.

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

Section 2923.5 prohibits the filing of a Notice of Default until its provisions are

fulfilled. California Civil Code §2923.5(a)(2) sets forth the requirement that a


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declarant set forth his efforts to “assess the borrower's financial situation and

explore options for the borrower to avoid foreclosure” among other requirements.

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

entity set forth its efforts to comply with §2923.5(a)(2) in a declaration based on

personal knowledge in the event that a Notice of Default is recorded.

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

good faith efforts assess Cornelio Pantoja’s financial situation and nor to explore

options for the plaintiff to avoid foreclosure.

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

the servicers (COUNTRYWIDE) attached a declaration or based on personal

knowledge discussing or detailing their efforts to avoid foreclosure. The alleged

statement included with the Notice of Default was an unfounded, summary,

conclusory, and hearsay statement by a Tina Jones, presumably with OLD

REPUBLIC, an entity under no obligation to conduct loan modification

discussions. Even this statement, viewed on its face, did not fulfil the

requirements of California Civil Code §2923.5(a) and (b). It further appeared to

have been an edited statement of one intended to be used prior to the notice

requirements of Senate Bill 1137. This Notice of Default directly violates

California Civil Code §2923.5(a) and (b).

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

against the property of 580 La Sabre Court, Morgan Hill, CA 95037, by Old

Republic Default Management. This Notice of Trustee Sale initially set the date

of February 26, 2009 at 10:00 a.m. as the date of the sale. This trustee sale date

was postponed to April 1, 2009.

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

mortgage and the promissory note was MERS (Mortgage Electronic Registration

Systems, Inc.). A copy of this Notice of Trustee Sale is attached to this complaint

as Exhibit 2. By this time, Marin Conveyancing Corporation as Trustee and


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Greenpoint Mortgage as Beneficiary disappeared.

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

promissory note or deed of trust. It is never an actual beneficiary. MERS is

essentially a sophisticated electronic bulletin board for the recording of mortgage

information. MERS never is the actual assignee of the promissory note or trust

deed.

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

Notice did not provide the name, address, and telephone number of this

beneficiary.

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

fees and expenses as of the time of the recording of Notice of Trustee Sale was

$560,801.38. The Trustee was listed as Old Republic Default Management

Services.

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

by California Civil Code §2923.5. It simply stated that the declaration as

required by this code section was fulfilled when the Notice of Default was

recorded on October 17, 2008. The Notice of Default not did contain the

mandatory declaration nor details required by 2923.5(c).

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

attorney fee provision whereby the losing party would be required to pay the

losing party’s attorney fees in the event of litigation.

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

concerning the alleged beneficiary of this alleged mortgage note.

36. The initial beneficiary was Greenpoint Mortgage Lending.

Subsequently claiming to be the beneficiary in the Notice of Default and the

Notice of Trustee Sale, without a chain of evidence of its right to do so, has been

MERS.

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


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Cornelio Pantoja, listing MERS as beneficiary, when it does not have the legal

right to do so.

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

Cornelio Pantoja, listing MERS as beneficiary, when neither MERS nor

COUNTRYWIDE nor apparently anyone do not have possession of the original

promissory note with proper chain of endorsements from Greenpoint Mortgage

Lending. COUNTRYWIDE has made no reasonable effort to insure that it is

acting under the authority of a lawful beneficiary.

39. COUNTRYWIDE and Old Republic Management now is attempting to

foreclose upon the home of Cornelio Pantoja when they have not complied with

the requirements of California non-judicial foreclosure law.

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

and a Notice of Trustee sale require the existence of a valid security, such as a

trust deed securing a valid promissory note, before non-judicial foreclosure

proceedings can be initiated. No such valid security and no such valid

promissory note existed in favor of the defendants at the time they commenced

non-judicial foreclosure proceedings.

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

possession the original of the promissory note with endorsements establishing the

foreclosing beneficiary as the rightful of the owner of the note, and must have the

original of the deed of trust with recorded assignments establishing that it is the

rightful owner and beneficiary of this deed of trust.

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

and trust deed to a subsequent assignee was Cornelio Pantoja ever provided

documentation establishing that the alleged foreclosing beneficiary was in fact

that rightful and lawful owner of the promissory note and the deed of trust.

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

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


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

44. Furthermore, Cornelio Pantoja is informed and believes that

COUNTRYWIDE performed the duties a servicer of the loan and in fact is not

the not the lawful beneficiary nor owner of the June 27, 2006 promissory note and

trust deed.

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

identified in the Notice of Default. The beneficiary that was identified as

beneficiary in the Notice of Default was GREENPOINT. MERS was then

identified as the beneficiary in the Notice of Trustee Sale. COUNTRYWIDE has

never held itself out to be the beneficiary of this June 27, 2006 loan transaction.

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

of the promissory note, has prejudiced Cornelio Pantoja. It is prevented him from

readily identifying the legal owner of the note, has prevented him from obtaining

proof that payments are being made to the correct entity, has prevented him from

directly conducting loan modification discussions with the beneficiary of the

note, have prevented Cornelio Pantoja from insuring that the purpose of

California Civil Code §2923.6 is fulfilled, and has been a substantial factor in

causing the foreclosure sale date to be set.

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

legislation on July 8, 2008. Since it was emergency legislation, the sections of

law went into effect on that same date. Two notice provisions, however, went

into effect on September 5, 2008.

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

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

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

unprecedented threat to its state economy and local economies because of

skyrocketing residential property foreclosure rates in California.” If found that,

“It is essential to the economic health of California for the state to ameliorate the


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deleterious effects on the state economy and local economies and the California

housing market that will result from the continued foreclosures of residential

properties in unprecedented numbers by modifying the foreclosure process to

require ... options that could avoid foreclosure.” If further found that, “This act is

necessary to avoid unnecessary foreclosures of residential properties ....”

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

beneficiaries, COUNTRYWIDE, and OLD REPUBLIC declare in their notice of

default and their notice of trustee sale their efforts to contact Cornelio Pantoja and

engage in foreclosure/loss mitigation.

51. Defendants COUNTRYWIDE, OLD REPUBLIC, and any alleged

claimant as the beneficiary to the June 2006 promissory note and deed of trust

wilfully and intentionally did not comply with California Civil Code §§2923.5(a)-

(c). Their Notice of Default (Exhibit 1) and their Notice of Trustee Sale recorded

(Exhibit 2) do not contain the required declarations based on personal knowledge

in the manner mandated by California Civil Code §§2923.5(b) and (c).

52. Defendants COUNTRYWIDE, OLD REPUBLIC, and claiming

beneficiary filed their Notice of Default without the mandated declaration of

California Civil Code §2923.5(b).

53. Defendants COUNTRYWIDE, OLD REPUBLIC, and claiming

beneficiary filed their Notice of Trustee Sale without the mandated declaration of

California Civil Code §2923.5(c).

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

pursued a loan modification in good faith prior to the recording of a notice of

default or trustee sale.

55. Plaintiff Cornelio Pantoja contacted COUNTRYWIDE during mid

February 2009. He submitted to COUNTRYWIDE the documents which

COUNTRYWIDE was requesting of him during March 2009. Nevertheless,

COUNTRYWIDE refused to postpone the foreclosure sale set for April 1, 2009


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

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

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

provision enacted into law California Civil Code §§2923.52, 2923.53, 2923.54,

and 2923.55.

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

1137 in July 2008. Seven months, and many foreclosures later, the California

Legislature found, “California is facing an unprecedented threat to its state and

local economies due to skyrocketing residential property foreclosure rates in

California. Those high foreclosure rates have adversely affected property values

in California, and will have even greater adverse consequences as foreclosure

rates continue to rise.”

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

health of California for the state to ameliorate the deleterious effects that will

result from the continued high rate of foreclosure of residential properties by

modifying the foreclosure process .... This change in accessing the state's

foreclosure process is essential to ensure that the process does not exacerbate the

current crisis by adding more foreclosures to the glut of foreclosed properties

already on the market if the foreclosure may be avoided through a loan

modification. Those additional foreclosures could further destabilize the housing

market with significant, corresponding deleterious effects on the state and local

economies.”

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

notice of default period specified in California Civil Code §2924(a)(2) “if the

loan at issue is the first mortgage or deed of trust that the property secures, the

borrower occupied the property as his or her principal residence at the time the

loan became delinquent, and the notice of default has been filed.” Thus, a total

period of six months must pass before a notice of trustee sale can be recorded.


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

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

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

UNCONSCIONABLENESS

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

this complaint.

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 theremainder of the contract without the unconscionable clause, or itmay so limit the application of any unconscionable clause as to avoidany unconscionable result.

64. The mortgage agreement which plaintiff entered into with

GREENPOINT, the manner in which it was entered into, and a loan now

serviced by COUNTRYWIDE is unconscionable. The unconscionability of the

contract has been detailed in this complaint.

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

agreement. He was told that the loan would call, at the worse, for mortgage

payments of $3,054 for the duration of the loan. The fact that the loan was an

exploding ARM with much higher payments was concealed from him. He was

not permitted the opportunity of reviewing the loan documents until after their

execution, and then not all of the loan documents were provided to him. No loan

disclosures were provided to him prior to the execution of the loan. Cornelio

Pantoja’s primary language is Spanish, with English as a second language. The

language of the promissory note and deed of trust, being filled with legalese,

would have been nearly incomprehensible to a person for whom English was a

primary language, let along with someone who has a limited education, and let

alone someone who would have been permitted time to peruse all of the loan

documents.


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

as reflected in their billings for the mortgage, their notice of default, and their

notice of trustee sale. If plaintiff did not pay these fees, or agree to pay them,

defendants would seize his property through a non-judicial foreclosure sale,

which they are now attempting to do. Defendants, and each of them, sought to

impose upon plaintiff a mortgage agreement which carried excessive interest,

charges and fees and whose true nature were and are still concealed from

plaintiff.

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

misled the plaintiff and thereby sought to financially profit from its terms, and

have done so wilfully and maliciously.

FIRST CAUSE OF ACTIONREQUEST FOR DECLARATORY JUDGMENT

(All Defendants)

68. Plaintiff Cornelio Pantoja realleges and incorporates by reference

paragraphs 1 to 67 of this complaint.

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

defendants concerning their respective rights and duties. Plaintiff desires a

judicial determination of his rights and duties

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

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

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

not have a valid security in plaintiff’s residence of 580 La Sabre Court in Morgan

Hill, CA, and there is no known beneficiary who has. Defendants intend to

proceed forward with an unlawful and invalid trustee sale based on the non-

existent security and the invalid notices based on this security.

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

the sale on April 1, 2009 despite their violations of California Non-Judicial

Foreclosure Law, California Civil Code §2924 et seq..


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

notice of trustee sale and the notice of default are invalid; that before the

defendants proceed forward with any other action against plaintiff’s home, that

they be required to prove by properly admissible evidence that the beneficiary has

in it’s possession the original of the promissory note with indorsements

establishing it as the rightful owner of the note;

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

that defendants have failed to properly identify the beneficiary in the notice of

default, as required by California Civil Code §2924c(b)(1); that defendants have

failed to properly identify the beneficiary in the notice of trustee sale; that

defendants have failed to provide a proper California Civil Code §2923.5

declaration in the notice of default; that defendants have failed to provide a

proper California Civil Code §2923.5 declaration in the notice of trustee sale; that

defendants have failed to engage in loan modification or workout discussions in

good faith as required by California Civil Code §2923.6; that defendants have

failed to postpone the trustee sale despite the 90 day postponement requirement

of California Civil Code §2923.52; that defendants should be estopped from

foreclosing on the home of plaintiff; that GREENPOINT loan of June 2006, and

the manner in which it was executed, is and was unconscionable.

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

under these circumstances in order that plaintiff may ascertain his rights and

duties and avoid the specter of a foreclosure sale and the loss of his home. Such

trustee’s sale, absent a judicial determination negating the Notice of Trustee Sale,

is scheduled to occur in August 2009, or at a time thereafter in the event of

postponement. Such a trustee’s sale will cause Cornelio Pantoja to lose a

property without out establishing a lawful right of the defendants to conduct such

a sale or fully comply with California foreclosure law. Such a trustee’s sale

would for surely cause Cornelio Pantoja the unjust loss of his home.


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

yet occurred. Plaintiff homeowner is not required to tender the amounts

demanded by defendants as a condition of bringing this action as any “tender

rule” is a rule that the most would apply post-foreclosure sale.

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

SECOND CAUSE OF ACTION UNLAWFUL AND ATTEMPTED FORECLOSURE

(All Defendants)78. Plaintiff realleges and incorporate by reference paragraphs 1 to 77 of

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


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failing to engage in loan modification or workout discussions in good faith as

required by California Civil Code §2923.6; by recording a notice of trustee sale

on or about January 30, 2009; by attempting to go to trustee sale despite the 90

day postponement requirement of California Civil Code §2923.52; by attempting

to go to sale without insuring that the beneficiary for whom the servicer and

trustee worked had in its possession and was the owner of original of the

promissory note with endorsements; by attempting to enforce an unconscionable

loan of June 2006.

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

plaintiff’s property.

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

yet occurred. Plaintiff homeowner is not required to tender the amounts


rule” is a rule that at the most would apply post-foreclosure sale.

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

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

the harm, he has incurred substantial attorney fees in order to vindicate his lawful

rights. He has suffered the slander of his reputation in that a foreclosure sale has

been reported against him to credit reporting agencies.

THIRD CAUSE OF ACTIONQUIET TITLE(All Defendants)

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.


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

about June 27, 2006. In order to secure the loan, Cornelio Pantoja executed a

promissory note and secured that note with a trust deed on the property of 580 La

Sabre Court in Morgan Hill, CA.

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

upon the property of 580 LaSabre Court, Morgan Hill, CA. On or about January

30, 2009, Defendants recorded a Notice of Trustee sale upon the property of 580

LaSabre Court, Morgan Hill, CA 95037.

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

separate and distinct beneficiaries. It listed the original lender and beneficiary,

GREENPOINT. It immediately thereafter listed MERS as the separate and

distinct beneficiary. This misrepresentation in the Notice of Default was a direct

violation of California Civil Code§2924c(b)(1). MERS continued in this

beneficial capacity, and GREENPOINT disappeared, in the subsequent Notice of

Trustee Sale.

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

mortgage and the promissory note was MERS (Mortgage Electronic Registration

Systems, Inc.). A copy of this Notice of Trustee Sale is attached to this complaint

as Exhibit 2. By this time, Marin Conveyancing Corporation as Trustee and

Greenpoint Mortgage as Beneficiary disappeared.

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

promissory note, or deed of trust for that matter. It is never an actual beneficiary.

MERS is essentially a sophisticated electronic bulletin board for the recording of

mortgage information. MERS never is the actual assignee of the promissory note

or trust deed.

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

legal or equitable right, title or interest in the promissory note. The current holder

and owner of the note and is always a proper party to initiate a non-judicial


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foreclosure proceeding. In order to invoke the rights under California non-

judicial foreclosure law, a beneficiary must establish an unbroken chain of

transfers from prior note holders when challenged to establish its right to

foreclose.

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

foreclosure is entirely dependent and derivative from the rights of the holder and

owner of the promissory note and deed of trust. These rights do not exist

independent of nor greater than the rights of the owner and holder of the note.

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

foreclosure without disclosing the correct identity of the beneficiary of the note

and deed of trust when requested to do so.

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

foreclosure without undertaking a good faith effort to confirm the existence of the

original of the promissory note with indorsements to the current beneficiary when

requested to do so.

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

note executed by Cornelio Pantoja in June 2006.

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

executed by Cornelio Pantoja in June 2006.

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

promissory note separated from the securing trust deed becomes a unsecured

debt.

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

concerning the alleged beneficiary of this alleged mortgage note.

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

agreements of June 2006, to whom indorsements of the promissory note have

been made and to whom assignments of the deed of trust have been properly

made.


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

right to conduct a non-judicial foreclosure sale of Cornelio Pantoja’s home until

the legal right of the beneficiary to engage in this sale has been established. This

is accomplished, when requested by the plaintiff, by the production of the original

of the promissory note with indorsements and the production of the assignment of

the deed of trust in favor of the current beneficiary.

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

documented beneficiary exists.

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

plaintiff’s property.

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

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

the harm, he has incurred substantial attorney fees in order to vindicate his lawful

rights. He has suffered the slander of his reputation in that a foreclosure sale has

been reported against him to credit reporting agencies.

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

not yet occurred. Plaintiff homeowner is not required to tender the amounts



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

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

FOURTH CAUSE OF ACTIONFRAUD

(COUNTRYWIDE ONLY)

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

of this complaint.

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

an affirmative misrepresentation — the suggestion, as a fact, of that which is not

true by one who does not believe it to be true; a concealment or half truth — the


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suppression of a fact, by one who is bound to disclose it or who gives information

of other facts which are likely to mislead for want of communication of that fact;

or a false promise — a promise made without any intention of performing it.

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

a material fact without a reasonable ground for its truth or in a manner not

warranted by the available information. Such a representation must be made with

the intent that the plaintiff would and did rely on it, to his detriment and harm.

113. In this matter, COUNTRYWIDE misrepresented material facts,

knowing that its representations were false and by making their representations

without reasonable grounds, with the intent that Cornelio Pantoja would rely on

their misrepresentations, all to Cornelio Pantoja’s harm.

114. These misrepresentations were made by COUNTRYWIDE through its

employees and agents and through OLD REPUBLIC as foreclosure trustee. Its

misrepresentations were made by heretofore unidentified employees and agents of

COUNTRYWIDE whose identities and specific capacities will be established by

the discovery to be conducted in this case.

115. COUNTRYWIDE perpetrated its fraud in actions which included but

were not limited to the following activities, and as described with specificity in

the factual allegations of this claim:

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

Cornelio Pantoaja; by attempting to enforce an unconscionable loan and claiming

that it was legal and proper; By misrepresenting the debt of June 2006 as a

secured debt when in fact it was an unsecured debt at best; By failing to advise

Cornelio Pantoja as to any transfers of the promissory note to any alleged

beneficiary; by failing to properly identify and insure the identification of the

beneficiary in the notice of default, as required by California Civil Code

§2924c(b)(1); by failing to properly identify and insure the identification of the

beneficiary in the notice of trustee sale; by failing to provide and insure the


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providing of a proper 2923.5 declaration in the notice of default; by failing to

provide and insure the providing of a proper 2923.5 declaration in the notice of

trustee sale; by failing to engage in loan modification or workout discussions in

good faith as required by California Civil Code §2923.6; by recording a notice of

trustee sale on or about January 30, 2009; by attempting to go to trustee sale

despite the 90 day postponement requirement of California Civil Code §2923.52;

By attempting to go to sale without insuring that the beneficiary for whom the

servicer and trustee worked had in its possession and was the owner of original of

the promissory note with endorsements.

FIFTH CAUSE OF ACTIONUNFAIR BUSINESS PRACTICES

(All Defendants)


of this complaint.

118. California Business and Professions Code §17200 prohibits any

unlawful, unfair or fraudulent business act or practice and unfair, deceptive,

untrue or misleading advertising and any act prohibited by Business and

Professions Code §17500 et seq..

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

making of a statement or a publication or a declaration concerning any

circumstance or matter of fact connected with the proposed performance or

disposition of real or personal property, which pronouncements is untrue or

misleading, and which is known, or which by the exercise of reasonable care

should be known, to be untrue or misleading.

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

Code §17200 et seq. and 17500 et seq., through the following actions and by

aiding and abetting each other in the completion and continued perpetration of the

following actions: By failing to advise Cornelio Pantoja as to any transfers of the

promissory note to any alleged beneficiary; by failing to properly identify the


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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; by failing to provide a proper 2923.5 declaration in the notice of

default; by failing to provide a proper 2923.5 declaration in the notice of trustee

sale; by failing to engage in loan modification or workout discussions in good

faith as required by California Civil Code §2923.6; by recording a notice of

trustee sale on or about January 30, 2009; by attempting to go to trustee sale

despite the 90 day postponement requirement of California Civil Code §2923.52;

By attempting to go to sale without insuring that the beneficiary for whom the

servicer and trustee worked had in its possession and was the owner of original of

the promissory note with endorsements; by attempting to enforce an

unconscionable loan and claiming that it was legal and proper.





SIXTH CAUSE OF ACTIONEQUITABLE ESTOPPEL

(All Defendants)

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

paragraphs 1 to 121 of this complaint.

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

language or conduct led another to do that which he would not otherwise have

done and as a result thereof that he has suffered injury. A person or entity may

not deny the existence of a state of facts if he or she intentionally led another to

believe a particular circumstance to be true and to rely upon such belief to his or

her detriment.

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

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


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effect closes its ears to a point—a fact, argument, claim, or defense—on the

ground that to permit its assertion would be intolerably unfair. “Estoppel” is an

equitable argument that deprives another his rights or defenses. The doctrine of

equitable estoppel is based on the foundation of conscience and fair dealing.

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

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

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

possession the original of the promissory note with indorsements establishing it

as the rightful owner of the note. Neither and no one has the right nor standing to

foreclose on plaintiff’s home without these documents.

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

These have been discussed supra, but are included under the reasons as to why

Equitable Estoppel applies: by attempting to go to sale without insuring that the

beneficiary for whom the servicer and trustee worked had in its possession and

was the owner of original of the promissory note with endorsements; by failing to

advise Cornelio Pantoja as to any transfers of the promissory note to any alleged

beneficiary; 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; by failing to provide a proper 2923.5

declaration in the notice of default; by failing to provide a proper 2923.5

declaration in the notice of trustee sale; by failing to engage in loan modification

or workout discussions in good faith as required by California Civil Code

§2923.6; by recording a notice of trustee sale on or about January 30, 2009; by

attempting to go to trustee sale despite the 90 day postponement requirement of

California Civil Code §2923.52; by attempting to enforce an unconscionable loan

and claiming that it was legal and proper.

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

to proceed to sale comes from the right of the beneficiary to enforce the


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promissory note and deed of trust, and that their authority is subservient to and

not independent of this right. Additionally, the defendants and their agents and

employees knew of their obligations under California Civil Code §2924 et seq.

and 2923 et seq. but misled the plaintiff into believing that defendants had the

lawful right to foreclose and were in full compliance with California non-judicial

foreclosure law. All of these misrepresentations and deceptions caused plaintiff

harm.





SEVENTH CAUSE OF ACTIONACCOUNTING(All Defendants)


of this complaint.

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

and their agents and successors and plaintiff Cornelio Pantoja. In this

relationship, the defendants, and their agents and successors have demanded

mortgage payments from plaintiff and have stated a payoff amount due in their

notice of trustee sale. Additionally, California law permits plaintiff Cornelio

Pantoja the right to reinstate the loan five business days before, or pay it off prior

to the sale, assuming a valid indebtedness. The defendants, and their agents and

successors had and have a legal duty to accurately and timely account for any

payments and to properly apply any payments to the trust deed mortgage.

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

information as to what charges and fees and costs they added to the amounts they

are demanding from Cornelio Pantoja and the justification for these amounts.

133. Defendants claim that Cornelio Pantoja owes a minimum of


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Whann v. Doell (1923) 192 Cal. 680, 684.1

James Church v. Superior Court (1955) 135 Cal.App.2d 352, 359.2

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$560,801.38 according to their notice of trustee sale recorded on or about January

30, 2009. Plaintiff disputes the accuracy of this amount in light of the

misrepresentations which were made at the time this loan was extended. Plaintiff

is informed and believes that defendants have imposed unlawful and

unsubstantiated charges and fees to this notice of trustee sale amount.

Additionally, this amount demanded in the notice of trustee sale is $46,401 in

excess of the $514,400 principal of the June 2006 loan and does not give any

credit nor accounting for the 2 years of faithful payments that Cornelio Pantoja

made. This amount if $560,801.38 is grossly inaccurate and fraudulent.

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

allegedly owed to defendants, and their agents and successors can only be

determined by information in the possession of these defendants, and by a

detailed and itemized accounting. The amounts which the defendants are

charging Cornelio Pantoja in fees and charges is in the possession of the

defendants only. The amounts which Cornelio Pantoja owes is uncertain at this

time and cannot be determined without an accounting.

135. Whann v. Doell and James Church v. Superior Court authorize an1 2

accounting when there is an unknown amount due that cannot be determined

without an accounting.





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

matter so that he can know what is lawfully owed and what is not.


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PUNITIVE DAMAGES


of this complaint.

139. Plaintiff Cornelio Pantoja alleges that defendants COUNTRYWIDE is

guilty of malice, fraud and oppression as defined by California Civil Code §3294,

and that Cornelio Pantoja should recover, in addition to actual damages, damages

to make an example of and to punish defendants and each of them for their

actions.

PRAYER

WHEREFORE, plaintiff prays judgment as follows:

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

16, 2008 and attached as Exhibit 1 is invalid and does not provide the necessary

foundation for the conduct of a trustee sale, as described in California Civil Code

§2924 et seq..

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

January 30, 2009 and attached as Exhibit 2, and any previously issued notice of

default are invalid and do not provide the necessary foundation for the conduct of

a trustee sale, as described in California Civil Code §2924 et seq..

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

GREENPOINT is unconscionable.

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

enjoined from conducting a non-judicial foreclosure sale upon the property of 580

LaSabre Court, Morgan Hill, CA 95037.

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

LaSabre Court, Morgan Hill, CA 95037 in the name of Cornelio Pantoja, free

and clear of the alleged claims of defendant COUNTRYWIDE and OLD

REPUBLIC.

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


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each of them, to produce the original of the promissory note of June 27, 2006,

with endorsements to the current beneficiary of this promissory note.

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

§2924c(b)(1), California Civil Code §2924f, California Civil Code §2924b,

California Civil Code §2923.6, and California Civil Code §2923.52.

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

pursuant to California Civil Code §2923.53(h).

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

accounting reflecting the amounts they claim are past due, the principal, interest,

taxes, assessments, insurance premiums, or advances, and recurring obligations,

and particularly attorney and trustee fees. That they render proof of existence of

their alleged security interest on 580 LaSabre Court, Morgan Hill, CA 95037.

That defendants substantiate their accounting with detailed documentation.

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

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

California Code of Civil Procedure §1021.5.

12. For general and special damages according to proof.

13. For punitive damages.

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

SPIELBAUER LAW OFFICE

Thomas Spielbauer, Esq.Attorney for Plaintiff


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Thomas Spielbauer, Esq.SBN 78281THE SPIELBAUER LAW OFFICE111 North Market Street, Suite 300San Jose, CA 95113Mail: P. O. Box 698Santa Clara, CA 95052(408)451-8499Fax: (610)[email protected]

Attorneys for Cornelio Pantoja, Plaintiff

IN THE UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF CALIFORNIA

CORNELIO PANTOJA,

Plaintiff.

v.s.

COUNTRYWIDE HOME LOANS,INC.; OLD REPUBLIC NATIONALTITLE COMPANY; OLD REPUBLICDEFAULT MANAGEMENTSERVICES; DOES 1-20,

Defendants.

No: 5:09-cv-1615 JW

Santa Clara County Superior CourtNo: 109CV138528

EXHIBITS TO FIRST AMENDED COMPLAINT

Case5:09-cv-01615-JW Document39-1 Filed07/29/09 Page1 of 11

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TABLE OF EXHIBITS

Exhibit

Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Notice of Trustee Sale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2


Exhibit 1Notice of Default


Exhibit 2Notice of Trustee Sale


1st Amended Complaint Sample From Other Atty

Documents

Transcript of 1st Amended Complaint Sample From Other Atty