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[Plaintiff Name] [Plaintiff Street Address] [Plaintiff City, State, Zip] [Plaintiff Phone] [Plaintiff Fax] Fax Plaintiff, Pro Per

111IN THE SUPERIOR COURT OF CALIFORNIA IN AND FOR [PROPERTY COUNTY] COUNTY

[PLAINTIFF NAME] Plaintiff, v. [LENDER ON DEED]

CASE NO.: 1. BREACH OF COVENANT OF GOOD FAITH AND FAIR DEALING 2. CONCEALMENT 3. UNJUST ENRICHMENT

[CURRENT TRUSTEE]

4. WRONGFUL FORECLOSURE
5.

VIOLATION OF CALIFORNIA CODE 1788.17

[SERVICER]

6. MISREPRESENTATION/FRAUD and Does 1 through 50 inclusive. Defendant. 7. BREACH OF CONTRACT

8.

DECLATORY RELIEF

MEMORANDUM IN SUPPORT OF DECLARATORY JUDGMENT: MOTION TO ORDER A PRELIMINARY INJUNCTION BARRING SALE:

PLAINTIFF [PLAINTIFF NAME], (hereinafter "Plaintiff"), and complains against [LENDER ON DEED] (hereinafter [LENDER ON DEED]"), [SERVICER]. (hereinafter "[SERVICER]"), [CURRENT TRUSTEE], and DOES 1-50.
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JURISDICTION Venue is proper since the transaction and the real property in question is located within [Property County] County, the State of California.

PARTIES Plaintiff [PLAINTIFF NAME] (hereinafter Plaintiff") is an adult individual, whose residence is [Plaintiff Street Address], [Plaintiff City, State, Zip].

Defendant, [LENDER ON DEED], (hereinafter, Defendant [LENDER ON DEED]) is listed as the original lender on the Deed of Trust as executed on [Date DOT Executed] Defendant, [LENDER ON DEED] lists their address as [LENDER ON DOT Complete Address] Defendant, [CURRENT TRUSTEE], (hereinafter "Trustee") lists their address as [CURRENT TRUSTEE Complete Address]. Defendant, [SERVICER], (hereinafter "Servicer") lists their address as [SERVICER Complete Address], upon information and belief of Plaintiff is the successor in interest to Defendant [LENDER ON DEED]. Defendants, JOHN and JANE DOE l-50 (hereinaiter "Defendants Doe"), l-50, are "persons who Plaintiff believes, following Discovery, are likely to be named as additional Defendant(s). NOTE: The terms Note(s) and Security Instrument are interchangeable and to be construed to be synonymous.

FIRST CAUSE OF ACTION (BREACH OF COVENANT OF GOOD FAITH AND FAIR DEALING) Against ALL DEFENDANTS

Plaintiff hereby incorporate all preceding paragraphs as if they are set forth at length herein.

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A-1. AS APPLIED T0 [LENDER ON DEED] PREDATORY LENDING

1.

Plaintiff was approved for the loan in question by stated income" rather than a

detailed analysis of income, assets, existing debt, or any other factors, therefore, [LENDER ON DEED] approved this loan without concern, without analysis, and without advice on Plaintiffs ability to afford the monthly payment.
2.

For the [Month and Year of Loan Origination] the average 30 year fixed rate was

[30yr Fixed Rate] and the average 15-year ARM was [15yr Fixed Rate]. Plaintiffs average FICO scores were over [Plaintiffs Fico Score]. Therefore, the loan in question at [Final Interest Rate] was a key element of predatory lending. (See Exhibit A)
3.

The debt to income ratio of Plaintiff DTI was far higher than the 35% of household

income considered acceptable to be set aside for mortgage/rental expenses.

4.

Inducing home purchaser into teaser rates, then telling [him/[his/her]] that [he/she]

could refinance at a later date, known as loan flipping, is common predatory lending practice. Plaintiff was encouraged by [LENDER ON DEED] to refinance within a few years for a lower rate, another predatory loan tactic.
5.

Plaintiff was told by [his/her] mortgage broker that [he/she] was fortunate to be able

to obtain this loan, which further induced Plaintiff into signing a contract that was based on cognovit clauses, concealment, absence of bargaining power for Plaintiff, and privity of contract issues, all in bad faith. 6. This loan falls under the category of predatory lending in that it was doomed to fail

from the beginning, and designed; to result in default and foreclosure.

7.

Plaintiff, inexperienced and unschooled in home loan contracts, was harmed by being

intentionally deceived by [LENDER ON DEED] in regards to the approval process which caused [his/her] harm by inducing [his/her] into a predatory loan with a confession of judgment/cognovit contract which was doomed to fail, breaching the covenant of good faith and fair dealing.
8.

As a matter of law the agreement is void and unenforceable, and Plaintiff is entitled to

relief.

A-2. AS APPLIED T0 [LENDER ON DEED] BREACH AT CLOSING

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9.

On the Plaintiffs Deed of Trust dated [Date DOT Executed] and Promissory Note for the amount of [Amount of Promissory Note], [LENDER ON DEED] is named as the purported Lender.

10.

The Deed of Trust contained cognovit clauses which were never explained such as irrevocable, seising", "seised", power of sale", "presentment", or "waive" which caused Plaintiff to waive [his/her] rights in a confession of judgment.

11.

The statement contained within the deed of trust which says Borrower irrevocably grants and conveys to Trustee, in trust, with a power of sale, the following described property located in the county of [Property County] . . ." which was not explained to Plaintiff, constitutes a cognovit note and/or confession of judgment by requiring the Plaintiff to waive [his/her] rights to ownership and without recourse allow the Trustee to invoke power of sale without restriction.

12.

The statement contained within the Deed of Trust which says BORROWER COVENANTS that Borrower is lawfully seised of the estate, hereby conveyed and has the right to grant and convey the Property and that the Property is unencumbered, except for encumbrances of record. Borrower warrants and will defend generally the title to the Property against all claims and demands, subject to any encumbrances of record", was not explained to Plaintiff. (emphasis added)

13.

Any reasonable person, if informed of the meaning of "lawfully seised", if informed about [his/her] right to grant and convey the Property, if informed that [he/she] were to defend the title, would have to conclude that [he/she] was in he position of absolute ownership of the property.

14.

The cumulative effect of the Deed of Trust presented by [LENDER ON DEED] containing small and hidden cognovit/confession of judgment provisions withholding material facts pertinent to Plaintiffs absolute ownership of the property which was not explained, caused Plaintiff to unknowingly waive [his/her] rights to possession of property, and accept adverse judgment against [his/her] without legal recourse against the power of sale, and without requisite consideration for the waiving of [his/her] rights, caused said Deed of Trust to operate as an illegal Cognovit Note.

15.

At the closing there was only a notary as representative from [LENDER ON DEED] present who is listed as Trustee on the Deed of Trust.

16.

The agent of [LENDER ON DEED] failed to explain anything to Plaintiff, only urging Plaintiff to hurriedly sign the documents.
4

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17. 18.

Plaintiff, like the average public, was unschooled in contract law. For a cognovit note to be legal there must be clear and unambiguous warning that one is waiving [his/her] rights, and any cognovit/confession of judgment clauses must be disclosed and explained by a competent attorney. [LENDER ON DEED]s failure to provide an attorney to explain the waiving of rights through confession of judgment and financial amounts at risk, then provide a certificate pursuant to Cal. Civ. Code ll32(b) and 1133, when [LENDER ON DEED] knew or should have known they had a duty to do so, constitutes a material breach of California Law and breach of the covenant.

19.

[LENDER ON DEED]s failure to provide adequate time at closing and failure to instruct their agent to reveal and explain clauses hidden within the Deed of Trust affecting Plaintiffs control and ownership of [his/her] property by directing [his/her] to such clauses, when Plaintiff relied on [LENDER ON DEED] to act in good faith in contract, constitutes a material breach of the covenant.

20.

Aside from Plaintiffs required signature, the Deed contains no other indication whatsoever as to signify Plaintiffs acknowledgement or understanding of the cognovit/ confession of judgment phrases.

21.

For a cognovit contract to be legal there must be extra consideration for agreeing to waive ones rights such as reduction in installment payments or reduction in interest rates. There was no extra consideration given by [LENDER ON DEED] to Plaintiff.

22.

Failure to disclose the cognovit/confession of judgment phrases in the Deed of Trust and failure to provide Plaintiff extra consideration for the waiving of [his/her] rights renders the entire agreement illegal, void, and is in breach of the covenant.

23.

A contract that causes any party to waive fundamental rights through the use of confession of judgment/cognovit phrases in the Deed of Trust, when it is claimed or appears to the court that the contract or any clause thereof may be unconscionable and unenforceable, the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose, and effect to aid the court in making the determination per Cal. Civ. Code l670.5(b).

24.

Without the ramifications of the above-mentioned cognovit phrases being explained in the Loan Documents which required [his/her] signature, Plaintiff was unconscionably disadvantaged
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1

by being deceived into waiving [his/her] rights to an equitable agreement and fair treatment, thereby making a "meeting of the minds" and thereby an acceptance of terms and conditions impossible.1
25.

Without a "meeting of the minds" and an understanding and acceptance of terms and conditions, a contract is void and unenforceable.

26.

[LENDER ON DEED]s failure to thoroughly explain or provide clear and unambiguous warning disclosing the waiver of Plaintiffs rights and the forfeiture of control and ownership of said property resulted in unconscionably depriving the unknowing Plaintiff of [his/her] fundamental rights to due process and redress by appeal.

27.

[LENDER ON DEED]s failure to provide adequate disclosure on the cognovit clauses/confession of judgment within the Deed of Trust rendered the entire contract illegal and made any waiver of Plaintiffs ability to dispute a foreclosure null and void.

28.

Plaintiff would never have signed such an agreement had [he/she] known and understood it was a confession of judgment and [he/she] was owed extra consideration.

29.

Plaintiff was harmed by [LENDER ON DEED] by being induced into an unconscionable contract with illegal cognovit clauses and confession of judgment, which caused [his/her] to unknowingly and unwillingly waive [his/her] rights relative to possession of [his/her] property, and attempting to deprive [his/her] of the right to take actions to protect [his/her] property against foreclosure.

30.

Since Plaintiff was unschooled in contract law and unknowingly was induced into signing Loan Documents with illegal cognovit clauses, [he/she] were harmed by the concealed intent of [LENDER ON DEED] to securitize Plaintiffs Security Instruments without due consideration, was harmed by foreclosure of [his/her] property by a third party.

31.

The fact that Plaintiff was unknowingly misled and rushed into signing an illegal cognovit note forfeiting ownership of [his/her] property to [his/her] grave detriment, resulting in being deprived of [his/her] rights under Article 3 of the California Constitution, and Fifth and Fourteenth Amendment Rights saying no person shall "be deprived of life, liberty, or property, without due process of law".

"Under California law, where a party in a position of unequal bargaining power is presented with an offending clause without the opportunity for meaningful negotiation, oppression and, therefore, procedural unconscionably, are present." See Ferguson v. Countrywide Credit Industries, Inc., C.A.9 (Cal.) 2002, 298 F.3d 778. 6

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3 2

32.

Due to deception, fraud, false pretense, misrepresentation, concealment, suppression or omission of material facts with intent that Plaintiff relied upon these elements, [LENDER ON DEED] has breached the covenant of faith good and fair dealing, and UCC 2-302 which states: "If the court as a matter of law Ends 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"

33.

By reason of nondisclosure of the cognovit clauses in the alleged contract making the contract illegal, the covenant of good faith and fair dealing has been breached rendering the contract void, unenforceable, entitling Plaintiff to the setting aside of the scheduled foreclosure sale and damages in excess of the sum of [$972,000] which is to be determined at trial.

34.

The contract presented by [LENDER ON DEED] was one of adhesion, which willfully put the Plaintiff in a position of disparity and disadvantage due to the overwhelming advantage and bargaining power held by them as purported Lender.2

35.

At no time did [LENDER ON DEED] or its agents before or during closing inform Plaintiff of [his/her] inability to negotiate or request different terms, making the contract a "take it or leave it" offer.

36.

An illegal cognovit note and contract of adhesion presented by [LENDER ON DEED] willfully put the Plaintiff in a position of disparity and disadvantage due to the overwhelming superior advantage in bargaining power held by them as purported Lenders.3

37.

The combination of hidden cognovit clauses being undisclosed, the "take it or leave it" nature of the offer, the grossly unequal bargaining power, and rushed closing where Plaintiff who

"The deed of trust is a typical contract of adhesion; therefore, when interpreting the trust deed any ambiguities are interpreted against the beneficiary who prepared the form."( Wilson v. San Francisco Federal Savings & Loan Assn, 62 Cal. App. 3d l, 7, 132 Cal. Rptr. 903-lst District 1976; Lomanto v. Bank of America 22 Cal. App. 3d 663, 668, 99 Cal. Rptr. 442-l4th district.

A contract may be procedurally unconscionable under California law when the party with substantially greater bargaining power presents a take-it-or-leave it contract to a customer, even if the customer has a meaningii.11 choice as to service providers. Shroyer v. New Cingular Wireless Services, Inc., CA.9 (Ca1.)2007, 498 F.3d 976. 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 45. 43. 44. 41. 40. 39. 38.

is unschooled in law and relied upon [LENDER ON DEED], was induced to hurriedly sign the documents, constitutes both procedural and substantive unconscionably as a matter of law. Plaintiff was in a position of reliance on [LENDER ON DEED] to act in good faith, without concealment or misrepresentation, without unfair advantage, without undue surprise, expecting to sign a contract based on equal bargaining power, and expecting to arrive at a full and mutual meeting of the minds. With the numerous breaches of the covenant of good faith and fair dealing, Plaintiffs reliance on [LENDER ON DEED] was to [his/her] detriment. Inducing Plaintiff, with an illegal cognovit/confession of judgment contract of adhesion amounts to overwhelming and compelling grounds to warrant presentation of this case to a jury. Absent certification by an attorney who explained the cognovit/confession of judgment phrases, absent clear and unambiguous warning of the phrases, absent consideration for the waiving of Plaintiffs rights, and affording Plaintiff the opportunity to bargain on [his/her] behalf; the cognovit note and contract of adhesion in the form of the Loan Documents are illegal and/or void. Plaintiff is entitled to relief including but not limited to the setting aside of the wrongful foreclosure.

A-3. AS APPLIED TO [LENDER ON DEED] PRIVITY OF CONTRACT

42.

At no time prior to or during the execution of the Deed of Trust and Note was Plaintiff specifically made aware by [LENDER ON DEED] or its agents that by executing said Loan Documents, [he/she] may be subject to subsequent assignment that could result in securitization of said documents for further profit, in violation of Plaintiffs right to Privity of Contract. Plaintiff had no dealings with [SERVICER]. Without knowing another party would convert [his/her] Note into a negotiable instrument and security for undisclosed profits without due consideration, Plaintiff had no opportunity to make an informed choice about the agreement. Had Plaintiff known [his/her] Note would be converted into a negotiable instrument and security for profits that [LENDER ON DEED] or any of its successors or assigns would benefit from without giving Plaintiff due consideration, [he/she] would have never agreed to such a contract.
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46.

[LENDER ON DEED] breached the covenant of good faith and fair dealing by violating privity of contract and harmed Plaintiff by depriving [his/her] of choice and due consideration from profits derived from converting and securitizing [his/her] Note.

B. AS APPLIED TO [SERVICER]
47.

A title examination reveals that no Substitution of Trustee exists, and that no Substitution of Trustee was ever recorded, there is a break in the chain of title.

48.

[SERVICER] fraudulently relied on a Notice of Default and Election to Sell Under Deed of Trust (NOD), executed on [NOD Execution Date], instrument # [NOD Instrument number]. Plaintiff was behind in [his/her] payments in the amount of $79,511.31. [SERVICER] appointed trustee for mortgagee elects to sell, or to cause to be sold, the trust property to satisfy that obligation was executed by S/[Signatory of Trustee]" dated [NOD Execution Date], of [CURRENT TRUSTEE], AS TRUSTEE FOR BENEFICIARY.

49.

The NOD states NOTICE IS HEREBY GIVEN"; That the undersigned is either the original trustee, the duly appointed substituted trustee, or acting as agent for the trustee or beneficiary under a Deed of Trust recorded [DOT Recording Date]. . ." None of these are true because [CURRENT TRUSTEE] was not the original trustee, [CURRENT TRUSTEE] could not be "duly" appointed substituted trustee because [SERVICER] had no authority to do so. [SERVICER] was never duly assigned any rights; therefore [CURRENT TRUSTEE] could not act as agent for trustee.

50.

The fact that [CURRENT TRUSTEE] could not lawfully execute the NOD because of the break in the chain of title, is evidence that [SERVICER] had no capacity to trigger non-judicial foreclosure under Cal. Civ. Code 2924, which was a material breach of the covenant of good faith.

51.

Nothing in evidence shows servicer [SERVICER] gave consideration of a loan, was properly assigned in the chain of title, can show proof of injury, or proof of creditor status with standing to foreclose or that [SERVICER] had authority to enforce the Note for a party who does have these elements.

52. 53.

Therefore, [SERVICER] has no standing to foreclose. Without having standing, [SERVICER] violates the covenant of good faith and fair dealing by relying on an invalid Substitution of Trustee and Notice of Default to trigger Cal. Civ.
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 58. 57. 56. 55. 54.

Code 2924, therefore [SERVICER] will conduct a wrongful foreclosure and take title which it had no right to. The purpose of Cal. Civ. Code 2923.5 is to seek remedies to lessen the high rate of foreclosures in California. [SERVICER] is required by this statute to correspond with Plaintiff for the purpose of assessing [his/her] financial condition and explore options to avoid foreclosure, which [SERVICER] has failed to do and is in breach of the covenant. This failure by [SERVICER] to abide by Civ. Code 2923.5 is evidence that [SERVICER] has no interest in providing relief and recourse from foreclosure, which prejudiced and harmed Plaintiff, and breached the covenant of good faith and fair dealing. This false statement is contrary to fair and just business practices, the Attorney Code of Ethics, is in bad faith, and is grounds for overturning Defendant's foreclosure action. [SERVICER] as successor of the subject loan through acquisition of [LENDER ON DEED] must make restitution and cannot benefit from the breach of the covenant committed upon Plaintiff by [LENDER ON DEED].

SECOND CAUSE OF ACTION (CONCEALMENT) Against ALL DEFENDANTS Plaintiff hereby incorporates all preceding paragraphs as if they are set forth at length herein.

AS APPLIED TO [LENDER ON DEED]

59.

Plaintiff hereby realleges all paragraphs from 1 through [Last in First COA] under the First Cause of Action: Breach of Covenant of Good Faith and Fair Dealing which address the issue of the Note and Deed being a confession of judgment/cognovit contract, and violation of privity of contract, all constituting concealment.

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60.

[LENDER ON DEED] concealed the fact that they would illegally convert the unregulated use of Plaintiffs credit to secretly and unjustly enrich themselves and securitize Plaintiffs Security Instruments for compounded profits without consideration, which defrauded [his/her].

61.

[LENDER ON DEED]s concealment financially damaged Plaintiff and resulted in the wrongful foreclosure of [his/her] property, deprived [his/her] of fundamental rights to property, and put [his/her] in a position of suffering irreparable harm., to which [he/she] is entitled relief

B. AS APPLIED TO [SERVICER]
62.

Plaintiff realleges all paragraphs in Section C under the First Cause of Action: Breach of Covenant of Good Faith and Fair Dealing as applied to [SERVICER].

63.

As evidenced by the attached title search, there was a significant break the chain of title which [SERVICER] concealed, which is material proof that [SERVICER] had no right or standing to initiate foreclosure under Cal. Civ. Code 2924 and has broken the law. [SERVICER] must have had possession of the Note and Deed at time they initiated the Notice of Default, or authority to enforce it on behalf of a party with standing in order to initiate foreclosure under Cal. Civ. Code 2924. [SERVICER] has never proven possession of the original Note and Deed, or authority to enforce, therefore, [SERVICER] has concealed that it had no standing to foreclose. By [SERVICER] concealing that it was not in compliance with the prerequisite conditions allowing for valid foreclosure pursuant to Cal. Civ. Code 2924, [SERVICER] financially damaged Plaintiff and commencing a wrongful foreclosure of [his/her] property, to which [he/she] is entitled relief.

THIRD CAUSE OF ACTION I (UNJUST ENRICHMENT) Against [LENDER ON DEED] & DOES 1-50
64.

Plaintiff hereby incorporates all preceding paragraphs as if they are set forth at length herein.

65.

Selling Plaintiffs Note to a securitized trust to be traded on Wall St. with profits collected by multiple entities such as the originator, master servicer, depositor, CDO manager,

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4

document custodian, trustee, underwriter, securities administrator, and certificate holders constitutes unjust enrichment.
66.

The genuine Security Instruments in this matter have been purposely destroyed or altered and securitized to be held in a separate and distinct Trust account since on or near the time the original Deed(s) of Trust and Note(s) were signed by Plaintiff.

67.

[LENDER ON DEED] never provided disclosure to Plaintiff through the Deed of Trust or any other documentation that [his/her] Security Instruments would be securitized for extended profits.

68.

Plaintiff never intended, nor knowingly granted or delegated authority to any other party to use the underlying real estate as collateral and the use of [his/her] credit to change the character of [his/her] Note by creating a new negotiable security designed for extended and hidden profits from the use of [his/her] collateral and Security Instruments with no extra consideration to [his/her].

69.

Plaintiff was never presented with documentation evidencing pooling and servicing agreements, Specialized Purpose Vehicle and Collateralized Debt Obligation information, and certificates to investors, nor were such transactions designed for extended profits knowingly stated, approved., or authorized by the Plaintiff in the Deed of Trust.

70.

Defendants, including any JOHN DOES, never offered Plaintiff due consideration for the sale of Plaintiffs Security Instruments into the stream of mortgage~ backed asset pools sold to investors, which amounted to unjust enrichment which harmed Plaintiff.

71.

Converting Real Property by [LENDER ON DEED] or any other entity from its true owner without true owners knowledge and consent is an act of "conversion through fraudulent means" and "Direct Conversion."4

Conversion is defined as: "An unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of their condition or the exclusion of the owner's rights. Any unauthorized act which deprives and owner of his property permanently or for an indefinite time. Unauthorized and wrongful exercise of dominion and control over another's personal property, to exclusion or inconsistent with the rights of owner". BLACK'S LAW DICTIONARY, 5th ed., at 300. Direct Conversion is "The act of actually appropriating the property of another to his own beneficial use... or that of a third person, or altering its nature, or wrongfully assuming title in himself" Id. at 300. This act of conversion is further clarified: "It is an essentially tortuous act, an unlawful act, an act which cannot be justified or excused in law." BALLENTlNE'S LAW DICTIONARY, 3rd ed., at 269, quoting 18, AmIur2nd, Conversion, l... 12

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72.

[LENDER ON DEED] earning extra profits beyond the disclosures within the Loan Documents, without Plaintiffs knowledge or consent, and without due consideration, constitutes unjust enrichment on the part of [LENDER ON DEED].

73.

[LENDER ON DEED] and any subsequent parties involved in securitization of Plaintiffs Loan Documents had at duty to disclose how they were being used and what profits were being made.

74.

Defendants [LENDER ON DEED] and DOES must prove what party within the chain of transactions involving securitization of Plaintiffs Security Instruments has a beneficial interest, and have possession of Plaintiffs Security Instruments, proving standing to collect payments and/or standing to foreclose on [his/her] property.

75.

Upon information and belief Defendants [LENDER ON DEED] and DOES have not reported Plaintiffs Security Instruments to the S.E.C. and I.R.S. as required under securities law.

76.

It was not the intention of the Plaintiff to enter into an agreement in which the security instruments would be converted and then securitized, rending the agreement void.

77.

The damage to Plaintiff cannot be measured because the use of a persons credit can be only limited by the amount of credit that is available to the party whose credit has been used.

78.

Failure to disclose securitization and provide extra consideration damaged Plaintiff financially. Plaintiff is entitled to restitution to be determined by a forensic accounting of all transactions and profits earned without [his/her] knowledge and consent through the use of [his/her] Security Instruments.

79.

Defendants responsible for undisclosed and unauthorized securitization resulting in unjust enrichment must return profits to Plaintiff.

FOURTH CAUSE OF ACTION (WRONGFUL FORECLOSURE) Against [SERVICER] & DOES 1-50

80.

Plaintiff hereby incorporates all preceding paragraphs as if they are set forth at length herein.
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81.

Plaintiff is not bound by the tender rule in this action when the Plaintiff can properly demonstrate that the irregularities to the Trustees Sale subjecting the Plaintiff to inequitable actions by the Defendants and thereby preclude [his/her] from owing any amount due to the actions by Plaintiff causing the break in chain of title and wrongful foreclosure. When the sale is totally void, a tender cannot be required.

82.

Through transfer or assignment, the Note was separated from the Deed, rendering the Deed a nullity.

83.

The Deed of Trust itself states, "This Security Instrument secures to Lender: (a) the repayment of the debt evidenced by the Note", therefore the Deed without Note is inconsequential. [SERVICER] never possessed the Note, again falsely representing beneficial interest.

84.

By transferring or assigning the Note and separating it from the Deed, [SERVICER] took part in a chain of actions which led to wrongful foreclosure, thereby damaging Plaintiff and depriving [his/her] of beneficial use of [his/her] property.

85.

Plaintiff is not bound by the tender rule in this action when the Plaintiffs properly demonstrate that the irregularities to a Trustees Sale will subject them to inequitable actions by the Defendants giving Plaintiff grounds to deny any amount [SERVICER] claims is owed to them under the rule.

86.

Tender cannot be required under a void condition. With abundant proof of void condition of the contract and actions by [LENDER ON DEED], the wrongful foreclosure sale is totally void, rendering any requirement for tender invalid.

87.

Only the actual holder of the genuine Security Instruments who can verify and validate a default has the authority to enforce the security instruments and initiate the trigger" to foreclose under Cal, Civ. Code 2924.In order to legally effectuate the sale of Plaintiffs property, all sections of Cal. Civ. Code 2924 must be strictly complied with per Assembly Bill 2624, which did not occur as is evidenced within this Adversarial Pleading with Exhibits.

88.

"Proper assignment is crucial, after a note has been transferred, the assignment of the mortgage has been recorded, the debtor is no longer protected in paying to the original creditor.(Rodgcrs v. Peckham (1898) 120 C 238, 242, 52 P 483). Pursuant to Cal. Civ. Code

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 96. 95. 94. 93. 92. 91. 90. 89.

2932.5, the assignment to [SERVICER] was defective, rendering [SERVICER] devoid of any beneficial interest and/or power of sale. According to the Notice of Trustees Sale dated December 20, 2011 and allegedly executed by S/[Authorized Signature], of [CURRENT TRUSTEE], the sale of Plaintiffs property could only be held by a "duly appointed Trustee". Plaintiffs rights were violated by [CURRENT TRUSTEE], acting on behalf of [SERVICER], who wrongfully executed a Notice of Default and Election to Sell dated [NOD Execution Date], the same day as execution of the Substitution of Trustee, since [CURRENT TRUSTEE] still had not been properly authorized by a valid beneficiary to initiate a Trustees Sale in accordance with the Deed of Trust which is required per Cal. Civ. Code 2924. Defendants Notice of Trustee Sale fails to declare that:

"The Beneficiary or its designated agent declares that it has contacted the borrower, tried with due diligence as required by California Civil Code 2923.5, or the borrower surrendered the property to the beneficiary or authorized agent, or is otherwise exempt from the requirements of 2923.5."

This same declaration was supposed to list any attempts that were made to contact Plaintiff in violation of Cal. Civ. Code 2923.5 or 2924(f). This failure by [SERVICER] to abide by Civ. Code 2923.5 and 2924(f) is contrary to fair and just business practices, the Attorney Code of Ethics, is in bad faith, and is grounds for overturning Defendants 's foreclosure action. On behalf of [SERVICER], Trustee [CURRENT TRUSTEE] should have had in their possession, all the genuine Security Instruments originally executed by Plaintiff. Neither [SERVICER] nor Trustee [CURRENT TRUSTEE] have shown evidence of their possession of the Security Instruments entitling them to enforce the Note. The foreclosure on Plaintiffs property is wrong because at all material times l antecedent to their actions, [SERVICER] knew or should have known, as the servicer they were never in actual possession of the requisite legally valid instruments or had the authority of a party with such authority.
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97.

According to In Re Walker, [SERVICER] which was the servicer could not be deemed to be a holder in due course" or owner with power to enforce the Note in the foreclosure of Plaintiffs property absent ownership of both, Security Instruments, or authority to enforce the Note. (See Exhibit A.)

98.

Plaintiff has a right to see both of the original Notes, and to have fully and properly addressed who, if any, of the Defendants or their agents or assigns actually is/was in possession of the original Note at all material times of Defendants actions, individually and/or collectively.

99.

Absent [SERVICER]s actual possession of the genuine security instruments or authority of ownership, at all material times relevant to their actions, deprives them and any representatives Defendants, including any agents or DOES, also lacking possession of said security instruments, of legitimate standing by which to effectuate sale of Plaintiffs Property

100.

There is no GAAPCompliant Ledger showing assets and liabilities which provide evidence

that [SERVICER] is a Creditor of Plaintiffs Security instruments.

101.

In order to claim that [SERVICER] or any of its agents or assigns have lost or destroyed the

Note(s), they must comply with U.C.C. 3-309 saying: (1) you were in possession at the time it was lost; (2) you have the right of enforcement of the note; (3) you have to show that the obligor on the note is indemnified by you against any future claims; 4) the loss was not due to a transfer. (the bond) Only by inspecting the original Note can Plaintiff determine who the actual creditor is and who is authorized to collect payment. Plaintiff has been clearly harmed by such deceptive and improper actions related to real party in interest status, which has resulted in wrongful foreclosure and the potential loss of [his/her] property. [SERVICER] is not a bona tide person, but a corporation that purchases and resells homes. [SERVICER] is currently participating in a wrongful foreclosure of Plaintiffs property. If the wrongful foreclosure is upheld for any reason, [SERVICER] or any DOES must return Plaintiffs certified original Security Instruments for [his/her] possession with Note marked (now) satisfied. Otherwise, they will wantonly leave the Security Instruments at issue in the open stream of commerce, thereby subjecting Plaintiff to double jeopardy, vulnerable to further harm in the future by another debt collection action by unknown parties for a debt that has already been paid for and received by [SERVICER], in violation of Plaintiffs rights. [SERVICER] or any DOES cannot legally have possession of Plaintiffs property and simultaneously maintain possession of the
16

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5

Security Instruments. [SERVICER] or any DOES would be committing constructive fraud by failure to return to Plaintiff the original certified Security Instruments with indication they are now paid and satisfied for [his/her] possession.
102.

In order to claim that [SERVICER] or any DOES have lost or destroyed the Note(s), they

must comply with U.C.C. 3-309 saying: (1) you were in possession at the time it was lost; (2) you have the right of enforcement of the note; (3) you have to show that the obligor on the note is indemnified by you against any future claims; 4) the loss was not due to a transfer.5
103.

Without the return of Resp0ndents Security Instruments, [he/she] has been put at risk and has

been harmed, and is entitled to relief.

FIFTH CAUSE OF ACTION AGAINST DEFENDANT [SERVICER]

104.

On [NOD Recording Date] a Notice of Default and Election to Sell under a Deed of Trust

(NOD) was recorded by "S/[Authorized Signature]", as authorized agent for [SERVICER]. This document was recorded on [NOD Recording Date]. This document indicates that YOU ARE IN DEFAULT UNDER A DEED OF TRUST DATED [Date DOT Executed]. UNLESS YOU TAKE ACTION TO PROTECT YOUR PROPERTY, IT MAY BE SOLD AT A PUBLIC SALE.
a.

The Defendant violated California Civil Code 1788.17 by engaging in

conduct, the

natural consequence of which is to harass, oppress, and abuse persons in connection with the collection of the alleged debt;
b.

The Defendants violated California Civil Code 1788.17 by using unfair or unconscionable means to collect or attempt to collect a debt; and

c.

The Defendant violated California Civil Code 1788.17 by using deceptive means to collect or attempt to collect a debt from the Plaintiff.

"corporate surety bond, and not merely personal indemnity of the notes holder, is required to comply with UCC Article 3 lost note provisions? See Huckell v. Mantranga, 99 Ca1.App.3d 471-Cal: Court of Appeals, 4th District. 17

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105.

The forgoing acts by [SERVICER] were willful and knowing violations of Title 1.6C of the

California Civil Code (FRDCPA), are sole and separate violations under California Civil Code 1788.30(b), and trigger multiple $1,000.00 penalties.
106.

Plaintiff was harmed by [SERVICER] failures to comply with California Civil Code

1788.17 which led to wrongful foreclosure, and is entitled to relief.

107.

[SERVICER] failed to properly execute the terms of the Deed of Trust, and violated key

terms, which was a breach of contract.

108.

[SERVICER] improperly allowed an unauthorized debt collector and third party to cause a

recording of an NOD without verification or validation of an existing debt.

SIXTH CAUSE OF ACTION (MISREPRESENTATION/FRAUD) Against [LENDER ON DEED], & [SERVICER]

109. 110.

Plaintiff hereby incorporates all preceding paragraphs as if they are set forth at length herein. Within the context of fraud, reliance means that Plaintiff would not have taken the particular

action which underlies the fraud action (e.g., would not have entered into a contract with the Defendant), had the Defendant not made the representation, promise or created the false impression, even if the representation, promise, or false impression was not the only reason for Plaintiffs action.

AS APPLIED T0 [LENDER ON DEED]

111.

[LENDER ON DEED] had superior knowledge of the law and home loan contracts, and

thereby possessed an unconscionable advantage of Plaintiff who lacked legal experience and knowledge of home loan contracts.
112.

Due to misrepresentation of terms and conditions in the Deed of Trust, there could not have

been a full awareness of terms and conditions, and there could not have been equal bargaining power.
113.

[LENDER ON DEED] misled Plaintiff into believing [he/she] was qualified for the subject

loan, when in actuality it was inappropriate for [his/her].

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6

114.

[LENDER ON DEED] committed fraud by failing in their legal and moral duty to fully

disclose terms and conditions, and cognovit clauses required for full understanding of the contract.6 It made misrepresentations regarding terms and conditions of the Note and Deed, obviously intended that Plaintiff rely on their misrepresentation, which Plaintiff did to [his/her] detriment.
115.

[LENDER ON DEED] committed misrepresentation and fraud by failing in their legal

obligation to comply with Cal. Civ. Code l132(b) requiring full disclosure by an attorney of confession of judgment, accompanied by a certification.
116.

[LENDER ON DEED] committed misrepresentation and fraud by failing in their legal

obligation to comply with Cal. Civ. Code 1132(b) requiring full disclosure by an attorney of the an accurate accounting of the sums Plaintiff was expected to pay, accompanied by a certification.
117.

[LENDER ON DEED] committed misrepresentation by failing to disclose it would securitize

Plaintiffs Note and engage in unjust enrichment.

B. AS APPLIED TO [SERVICER]
118. 119.

[LENDER ON DEED] failed to assign to [SERVICER] the security instruments. [SERVICER] committed fraud by misrepresenting itself as a beneficiary, and violating The

Deed of Trust at 20 that "the Note or partial interest in the Note (together with this Security Instrument) can be sold one or more times without prior notice to Borrower when [SERVICER] itself has delivered sworn testimony in cases cited by this Adversarial Pleading that [SERVICER] does not act as the holder of the Deed of Trust which indicates it had no capacity to act as a beneficiary, since it was never authorized to enforce the security instruments.
120.

[LENDER ON DEED] committed misrepresentation and fraud because they never delivered

the Note and the Deed of Trust together to [SERVICER], because they did not hold the instruments together.

C. AS APPLIED TO [SERVICER]

US. v. Prudden, 424 F.2d. 1021; U.S. v. Tweel, 550 F. 2d. 297, 299, 300 (1977) "Silence can only be equated with fraud when there is a legal and moral duty to speak or when an inquiry left unanswered would be intentionally misleading. We cannot condone this shocking conduct". 19

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121.

Defendant [SERVICER] cannot plausibly make an argument that it is authorized as a holder

of the Note or Deed of Trust to foreclose because it did not hold the instruments l together, and it could not legally function as a beneficiary with authority to assign or substitute, leaving [SERVICER] without a believable argument that it had standing to foreclose.
122.

[SERVICER] , which is a servicer without any indication of being a holder, real party in

interest, or having authority from a creditor, committed fraud by misrepresenting that they had standing to foreclose when they didnt.

SEVENTH CAUSE OF ACTION (BREACH OF CONTRACT) Against [LENDER ON DEED], & [SERVICER]
123. 124.

Plaintiff hereby incorporates all preceding paragraphs as if they are set forth at length herein. Failure to follow the proper procedure for substitution of trustee as presented in 24 of the

Deed of Trust was a breach of contract by [SERVICER], since it had no beneficial interest and capability to duly acknowledge and record such substitution.
125.

Failure to execute and record valid assignments resulting in break in chain of title as

evidenced by the attached forensic loan audit represents a breach of contract by [LENDER ON DEED]
126.

The fact that Plaintiffs property is to be sold when there was an invalid Substitution of

Trustee, with no clear possession of the Security Instruments, leaving [SERVICER] and any DOES` without standing to foreclose, amounts to breach of contract from said Defendants.
127.

Breaches of contract rendered it void and unenforceable, and led to wrongful foreclosure

banning Plaintiff is entitled to relief.

EIGHTH CAUSE OF ACTION (DECLARATORY RELIEF) Against ALL DEFENDANTS

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128.

Plaintiff is entitled to Declaratory Judgments because: (1) An actual controversy exists, (2)

irreparable harm and injury is imminent and inevitable, (3) Plaintiff has a direct, substantial and present interest, and (4) the declaration sought will be of practical help in ending the controversy.
129.

An actual controversy exists as to whether Plaintiff was unknowingly stripped of [his/her] due

process rights in execution of the Deed of Trust, due to the fact said Deed of Trust performed as an illegal cognovit note.
130.

An actual controversy exists between Plaintiff and Defendants, both individually and

severally, in that Defendants have tacitly alleged they held the original, genuine Security Instruments, and had the authority to act under them.
131.

Pursuant to the Declaratory Judgment Act, this Honorable Court may enter a Declaratory

Judgment, determining the rights of the Plaintiff with regards to the various Defendants, due to the controversy arising as it relates to the Genuine Deed of Trust, Genuine Promissory Note, and any genuine notes obligating Plaintiff to Defendants, and any and all subsequent documents, correspondence, and alike, Plaintiff has detailed rights and duties relative to thc claims as presented herein.
132.

A Declaratory Judgment is necessary in the present matter, as to speedily determine the

rights, status, and relationship between Plaintiff and Defendants, regarding the location, presentment, and, subsequent authentication of the genuine Promissory Note and/or Deed of Trust, upon which, absent any authority to act under the Deed of Trust, said Deed is wholly incidental and without effect, absent Defendants possession of the essential Promissory Note or Title.
133.

A Declaratory Judgment is necessary in the present matter, as it pertains to the Deed of Trust,

in relation to the due process rights of the Plaintiff, and [LENDER ON DEED]s application of hidden confession of judgment cognovit clauses contained therein, executed without explanation, or warning, and without special consideration being given to Plaintiff, and that Plaintiff was damaged and [his/her] rights were abrogated, failing in its obligation to abide by the covenant of good faith and fair dealing.
134.

A Declaratory Judgment is necessary as Plaintiff once again reiterates that [he/she] was never

made aware of any confession of judgment/cognovit clauses at the time of [his/her] entering into the contract with [LENDER ON DEED] and/or their representatives or that Plaintiff ever knowingly, or
21

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intentionally waived any of [his/her] constitutionally-guaranteed rights. [LENDER ON DEED] never spent any time on this subject with Plaintiff, but instead, quickly raced through the closing process, shuffling "papers" in front of Plaintiff to sign, as a take it or leave it offer", without any explanation as to the contents thereof other than where to sign. These elements qualify the agreement as unconscionable and unenforceable.
135.

A Declaratory Judgment is necessary with regards to Privity of Contract, as Plaintiff was

never properly noticed that Defendants may securitize the Promissory Note(s) for which all action as it relates to the Deed(s) of Trust, by necessity, must rely.
136.

A Declaratory Judgment is necessary because averments made by the aforesaid Defendants in

their own documentation(s) are sufficient to raise beyond the mere speculative level, who, if anyone, actually is and/or was in possession of the original note, at all times material to the actions individually and severally undertaken by said Defendants.
137.

Without clear status that [SERVICER] had standing to foreclose, they could not have legally

triggered foreclosure under Cal. Civ. Code 2924, therefore, wrongfully they took title when it had no right.
138.

A Declaratory Judgment is necessary because Defendants Note, or Credit Agreement(s),

without saying they possess both the promise to pay and deed specifying the security, as well as where they are located. They must show proper recording, including chain of custody as required by Rules of Evidence which they have failed to provide. Since Defendants have indicated these genuine Security Documents are in their possession, they must produce both together in order to prove standing to have foreclosed on Plaintiffs property to prove they were not bifurcated.
139.

A Declaratory Judgment is necessary because the original Security Instruments must be

produced to determine if the signatures are indeed authentic, which Plaintiff has reason to believe is not the case.
140.

A Declaratory Judgment is necessary because the debt that Defendants have alleged Plaintiff

is liable for has been converted and securitized into a mortgage-backed asset without Plaintiffs knowledge or consent resulting in unjust enrichment to Defendants and subsequent unknown parties as investors in the security. Furthermore, for the security to be legal, there must be possession of the Note pursuant to the UCC Article 3, the Security Instruments must be registered as such with the
22

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SEC, with reporting to the IRS, of which there is no evidence of, and there must be proper recording of any servicing and pool agreements, in order to have the right to execute the power of sale to foreclose.
141.

Declaratory relief is necessary because Defendants have committed fraud upon this

Honorable Court by misrepresenting that Defendants are the proper owner and holder in due course of the debt with the right of power of sale, when in actuality it is the owners of the mortgage-backed asset who are the proper owners. Now the proper owners must be identified. Whether they have the power of sale is yet to be determined depending on proof of ownership and right of subrogation.
142.

Declaratory relief is necessary because Plaintiff has incurred significant damage including the

conversion of [his/her] Note and failure to give consideration from profits realized by securitization, wrongful foreclosure, and failure to return the Security Instruments marked paid and satisfied.
143.

Declaratory relief is necessary because each party has committed fraud against Plaintiff,

which has been alleged with specificity.

144.

Declaratory relief is necessary because evidence required to prove Real-Part-In-Interest with

right to collect monies and enforce the Note must comply with the Federal Rules of Evidence. Furthermore, at least one competent fact witness from the Defendant(s) with first-hand knowledge who Plaintiff can cross-examine should be allowed to testify. The attorney, not having first-hand knowledge, cannot make assertions or render opinions.
145.

Declaratory relief is necessary to require [SERVICER] to produce an accounting in the form

of a GAAP-compliant ledger, which all banks are required by statute to maintain, proving they paid lawful money (U.S. currency) for Plaintiffs property.
146.

Declaratory relief is necessary to establish that tender cannot be required when the underlying

action is based in fraud, the agreement is void, and the foreclosure was wrongful.
147.

Delay in granting the requested Declaratory Judgment will result in additional, and irreparable

harm to Plaintiff, as Plaintiff has been subjected to having [his/her] property unlawfully foreclosed upon, and is exposed to having [his/her] property sold in the consumer market should this Honorable Court fail to intervene.

PRAYER FOR RELIEF

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WHEREFORE, Plaintiff prays for judgment against Defendants, and each of them, as follows: For The First Cause of Action: Breach Of Covenant Of Good Faith & Fair Dealing 1. Compensatory damages in excess of the sum of $[972,000] to be determined at trial; 2. For interest at the rate of seven percent (7%) per annum from date of foreclosure on subject property on the sum of $[972,000]; For The Second Cause Of Action: Concealment l. Compensatory damages in excess of the sum of $[972,000] to be determined at trial; 2. For interest at the rate of seven percent (7%) per annum from date of foreclosure on subject property on the sum of $[972,000]; For The Third Cause Of Action: Unjust Enrichment l. An accounting of profits gained from use of Plaintiffs Security Instruments from conversion and securitization of [his/her] Note; 2. Return of such profits to Plaintiff that were gained by breach of contract, without [his/her] knowledge, consent, or due consideration. For The Fourth Cause Of Action: Wrongful Foreclosure 1. Compensatory damages in excess of the sum of $[972,000] to be determined at trial. 2. For interest at the rate of seven percent (7%) per annum from date of foreclosure on subject property on the sum of $[972,000]; 3. For an order to set aside the pending wrongful foreclosure sale by [SERVICER]; 4. For an order compelling [SERVICER] and each of its assigns to transfer simple legal title and any claim of the subject property to Plaintiff; 5. For a declaration and determination that Plaintiff is the rightful holder of title to the property and Defendant herein, and each of them be declared to have no estate, right, title or interest in said property; 6. For a judgment forever enjoining said Defendants, and each of them, from claiming any estate, right, title or interest in the subject property. For The Fifth Cause Of Action: VIOLATION OF CALIFORNIA CODE 1788.17 1. Compensatory damages in excess of the sum of $[972,000] to be determined at trial;
24

fee

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

2. For interest at the rate of seven percent (7%) per annum from date of foreclosure on subject property on the sum of $[972,000]; For The Sixth Cause Of Action: Misrepresentation/Fraud 1. Compensatory damages in excess of the sum of $[972,000] to be determined at trial; 2. For interest at the rate of seven percent (7%) per annum from date of purchase of subject property on the sum of $[972,000];

For The Seventh Cause Of Action: Breach of Contract l. Compensatory damages in excess of the sum of $[972,000] to be determined at trial; 2. For interest at the rate of seven percent (7%) per annum from date of foreclosure on subject property on the sum of $[972,000]; For The Eighth Cause of Action: Quiet Title
1.

For an order compelling [SERVICER] and each of its assigns to transfer legal title and any claim of the subject property to Plaintiff;

2.

For a declaration and determination that Plaintiff is the rightful holder of title to the property and Defendant herein, and each of them be declared to have no estate, right, title or interest in said property;

3.

For a judgment forever enjoining said Defendants, and each of them, from claiming any estate, right, title or interest in the subject property. For The Ninth Cause of Action: Declaratory Relief

1.

For declaration that Defendants deceived Plaintiff into signing a confession of judgment/cognovit note without an attorney present in violation of Cal. Civ. Code 1l32(b) and 1133;

2.

Declaration that the securitization of the Note severed the chain of title and bifurcation proves no Defendant could execute the power of sale and has standing to foreclose.

3. Declaration that the alleged contract is void;

4. 5.

Declaration ordering the returning of title to subject property to the Plaintiff; Declaration ordering the Defendants to return all monies paid to Defendants by the Plaintiff;
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6.

Declaration that the foreclosure sale was wrongful and must be set aside; said land and homestead;

7. Declaration that the party with possession must return the genuine, wet-inked signature Promissory Note (the undersigneds asset via his signature) with indication it is paid and satisfied. It was not the undersigneds intent that Defendant(s) should keep the Promissory Note after full payment or foreclosure, but for it to be returned in its original condition as presented/issued; because the Promissory Note is negotiable, the Promissory Note must be surrendered in a foreclosure proceeding so that it does not remain in the stream of commerce; 8. Declaration that the party with possession must (A) return the genuine, wetinked signature Deed of Trust, and (B) cancel the Trustees Deed;
9.

Declaration that Defendants who profited unjustly and in breach of contract must return: (1) the face value of the Promissory Note with interest; (2) all escrowed monies with interest; and, (3 Q) all profits including but not limited to derivatives and interest created from all bonds and security instruments created off of the Loan Documents in which the Loan Documents have been securitized in an amount according to proof at trial or pursuant to the Courts discretion;

10.

Declaration Plaintiff is entitled to just compensation for [his/her] equity expended in or on the subject property since [Beginning Date of Equity Claim]. [SERVICER] must return the equity in form of legal tender that Plaintiff put into the subject property for a preliminary value of and in sum set certain of $[80,000.00], together with interest thereon at the rate of seven percent (7%) per annum from date of foreclosure on subject property, which constitutes labor, services, and materials furnished by Plaintiff and/or others, since date of purchase of subject property, on and for the homestead, land, improvements therein and thereon, for labor, materials, and services for the upkeep and maintenance, payments, interest, taxes, fees, assessments, new construction, all repairs and replacements, and any and all improvements thereon and therein, for said land and homestead;

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11.

Declaration that the foregoing Items in [7 through 10] above MUST be provided to the undersigned in order for [SERVICER] to legally finalized a foreclosure sale foreclosure and possess clear title. Defendants must forward the undersigned the foregoing items in "7" through "l0" above to legally effectuate the transfer of title of the subject property in a valid foreclosure sale;

12.

Declaration that if [SERVICER] fails to oppose/answer the demand in [7 through 10] above, with lawful/legal authority in support, shall be [SERVICER]s tacit agreement that (A) IT IS NOT ENTITLED to foreclose on the Promissory Note unless it returns Items in [7 through 10] above to the undersigned; (B) that THEY ARE NOT ENTITLED to retain the original, unaltered Note and all monies noted in herein; and (C) that [SERVICER] must return Items in "7" through "I0" above to the undersigned IF THEY ARE TO POSSESS RIGHT TO ENFORCE THE NOTE AND VALIDLY TRANSFER TITLE IN THIS MATTER, since Defendants cannot keep both the money (the Notes, the bond/security derivatives of the Notes, and Plaintiffs equity) and the subject property or the sale proceeds. Defendant [SERVICER] must choose either the money from sale proceeds or the subject property, not both.

13.

Declaration that if Defendants are unable to return Items in [7 through 10] above to the undersigned, Plaintiff moves the court to issue an Order declaring that Defendants must forever release their claim and lien to the subject property.

14.

Declaration that, due to the overwhelming evidence of wrongful foreclosure action, [SERVICER] must be prevented from selling Plaintiffs property pending the outcome of [his/her] case. Declaration that A COURT ORDER is warranted stipulating that Defendants discharge or close out and zero out any and all Trust Accounts in this matter (court case and mortgage trusts), pursuant to PUBLIC POLICY regarding the discharging of commercial obligations, via the undersigneds Exemption Account, concerning any outstanding derivative obligations attached to said accounts unknown to the undersigned, and to eliminate all said records; and For any additional declaration stating Plaintiffs rights as the facts warrant in the furtherance and interest of justice.
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JUDICIAL NOTICE The Plaintiff wishes to point out to the Court that [he/she] is NOT an individual schooled in the law, but an individual exercising [his/her] rights under law for the proper action of the Court from the unacceptable actions on the part of the Defendants in question. As such, the Plaintiff ask the court to look to the substance of [his/her] pleadings rather than the form and asks the court to take judicial notice pursuant to Section 32 of the Judiciary Act of 1789 (1 Stat. 73) which specifies that courts respectively shall proceed and give judgment according as the right of the cause and matter in law shall appear unto them, without regarding any imperfections, defects, or want of form." The Plaintiff further asks the court to take judicial notice pursuant to Rule 201 of the Federal Rules of Evidence of the enunciation of principles stated in King v. Knoll (No. 0404149-JAR), 1/Wzimey v. Slate of New Mexico (113 F.3d 1170), and Haines v. Kerner (404 U.S. 519), wherein the courts directed that those who are unschooled in law making complaints/ pleadings shall have the court look to the substance of the complaint pleadings rather than the form and hereby makes the following pleadings/notices in the above referenced matter WITHOUT waiver of any recourse to relief of claims. Plaintiff notices the Court that [he/she] has presented specific claims, supported by evidence, law and case law authorities showing plausible argument far above the speculative level and more than sufficient to show they are entitled to relief Defendants notice the court that "All pleadings shall be so construed as to do substantial justice" Dioguardi Vs. Durning, 2 Cir., (1944) 139 F2d 7'74 and "Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to re1ief," in order to "give the Defendant fair notice of what the claim is and the grounds upon which it rests," Conley v. Gibson, 355 U. S. 41". lt should be clear that enough fact has been presented to raise a reasonable expectation that discovery will reveal even further evidence in support of this Adversarial Pleading. Therefore, Plaintiff has presented clear and compelling claims upon which relief can be granted and dismissal would be contrary to rules of civil procedure and major court decisions. Plaintiff hereby invokes the Full Faith and Credit Clause Article IV, Section 1, of the U.S. Constitution which provides that the various states must recognize legislative acts, public records, and judicial decisions of the other states within the United
28

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7

States. The Full Faith and Credit Clause ensures that judicial decisions rendered by the courts in one state are recognized and honored in every other state. Plaintiff hereby invokes the Supremacy Clause. Under the Supremacy Clause, everyone must follow federal law in the face of conflicting state law. It has long been established that "a state statute is void to the extent that it actually conflicts with a valid federal statute" and that a conflict will be found either where compliance with both federal and state law is impossible or where the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Edgar v. Mite Corp., 45 7 U.S. 624, 631 (1982). Similarly, we have held that "otherwise valid state laws or court orders cannot stand in the way of a federal court's remedial scheme if the action is essential to enforce the scheme." Stone v. City and County of San Francisco, 968 F2:} 850, 862 (9th Cir. I992), Cert. denied, 113 S, Cl. 1 050 (1 993). Plaintiff hereby notices the court that herein lays evidence of egregious statutory violations, breach of covenant of good faith and fair dealing, fraudulent contract, concealment, conversion, and misrepresentation! fraud resulting in irreparable harm, violating [his/her] right to liberty, property and due process under Article 3 of the California Constitution, and Fifth and Fourteen Amendments of the U.S. Constitution. Plaintiff specifically requests declaratory and injunctive relief to prevent any further sale of [his/her] real property, and to protect [his/her] due process right granting an evidentiary hearing and discovery. Plaintiff seeks documents through discovery that determine the extent of violations and breaches described herein. Such documents in possession of Defendants evidence unscrupulous lending practices and fraudulent foreclosure. This court has no discretion but must grant Plaintiffs requests lest it be a party to misprision of felony.7

MISPRISION OF FELONY: U.S. CODE, TITLE 13, PART l, CHAPTER l, SECTION 4 stipulates: Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some Judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both? In Stump v. Sparkman, 435 US. 349 at 360 (1978), the Supreme Court confirmed that a judge would be immune from suit only if he did not act outside of his judicial capacity and! or was not performing any act expressly prohibited by statute. See Block. Stump v Sparkman and the History of Judicial Immunity, 4980 Duke Ll 879 (l980). 29

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Date: [Date]

_________________________________________________ [PLAINTIFF NAME]

VERIFICATION

I, [PLAINTIFF NAME], am the Plaintiff in the aboveentitled action. I have read the foregoing complaint for wrongful foreclosure and know the contents thereof. The facts and allegations contained therein are true and correct of my own knowledge, except as to those matters which are therein alleged on information and belief, and as to those matters, I believe them to be true. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed at [Property County], California.

Date: [Date]
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________________________________________ [PLAINTIFF NAME]

31