TIMOTHY L. MCCANDLESS, ESQ.

SBN 147715
1
LAW OFFICES OF TIMOTHY L. MCCANDLESS
2 13240 Amargosa Road
Victorville, California 92392
3 (760) 951-3663 Telephone
(909) 382-9956 Facsimile
4

5 Attorney for Plaintiffs

ERIC SHOCKLEY and CHARLES FETTERS
6

7
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
IN AND FOR COUNTY OF CONTRA COSTA
8 WAKEFIELD TAYLOR COURTHOUSE
9
ERIC SHOCKLEY and CHARLES
10 CASE NO:
FETTERS,
11 Plaintiffs,
FIRST AMENDED COMPLAINT FOR:
12 DAMAGES, INJUNCTIVE RELIEF AND
V. DECLARATORY RELIEF
13
NDEX WEST LLC, LLC; CHASE HOME 1. VIOLATION OF CALIFORNIA CIVIL
14 CODES §2923.6;
FINANCE LLC; LIME FINANCIAL
15 SERVICES LTD., a corporation;
2. INTENTIONAL MISREPRESENTATION;
MORTGAGE ELECTRONIC
16 REGISTRATION SYTEMS; JP MORGAN 3. FRAUD;
CHASE BANK N.A. As Attorney in Fact for
17
U.S. BANK NATIONAL ASSOCIATION, 4. INJUNCTIVE RELIEF;
18 AS TRUSTEE FOR CITIGROUP
MORTGAGE LOAN TRUST INC., ASSET-
19 BACKED PASS-THROUGH 5. VIOLATION OF BUSINESS AND
PROFESSIONS CODE §17200.
CERTIFICATES, SERIES 2006-HE3;LONG
20
BEACH MORTGAGE COMPANY; NEW
21 CENTURY TITLE COMPANY; U.S. BANK 6. DECLARATORY RELIEF;
NATIONAL ASSOCIATION, AS TRUSTEE
22 FOR CITIGROUP MORTGAGE LOAN
TRUST INC., ASSET-BACKED PASS
23
THROUGH CERTIFICATES, SERIES 2006-
24 HE3 and DOES 1 through 50 inclusive,

25 Defendants.
26

27
Plaintiffs, ERIC SHOCKLEY and CHARLES FETTERS , (Hereinafter referred as
28
“Plaintiffs”) allege herein as follows:

1
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FIRST AMENDED COMPLAINT
 GENERAL ALLEGATIONS
1

2 1. Plaintiffs, ERIC SHOCKLEY and CHARLES FETTERS at all times relevant have

3 been residents of the County of Contra Costa, State of California and are the owners of Real
4
Property, including but not limited to the property at issue herein, 203 S. 13th Street, Richmond,
5
CA 94084. The Legal descriptions are as follows:
6

7
APN: 544120002

8 NYSTROMS ADD N LOTS 34 TO 37 BLK 7 (hereinafter “Subject Property”).

9 2. Defendant, NDEX WEST LLC, as Agent and Beneficiary hereinafter “NDEX”) at all
10
times herein mentioned was doing business in the County of Los Angeles, State of California and
11
processed the Notice of Default for the above named Real Property. NDEX was substituted in as a
12

13 trustee as reflected on the Substitution of Trustee dated July 22, 2009. NDEX is the

14 servicer/creditor authorized to collect the debt as reflected on the Deed of Trust for this subject
15
property.
16
3. Defendant CHASE HOME FINANCE LLC, at all times herein was doing business in
17
the County of Los Angeles.
18

19 4. Defendant, LIME FINANCIAL SERVICES LTD. (hereinafter “LIME”) at all times

20 herein mentioned was doing business in Irvine, California and was the original Lender for
21
Plaintiff’s Trust Deed and Note dated June 13, 2006.
22
5. Mortgage Electronic Registration Systems Inc., (hereinafter “MERS”) at all times
23

24
herein mentioned was presumed to being doing business in the City of Pleasant Hill, State of

25 California and alleged to be the Beneficiary regarding Plaintiffs’ Real Property as described above
26 and as Situated in Contra Costa County – Richmond, California. MERS was the original
27
beneficiary on the Deed of Trust dated June 13, 2006.MERS was also the Nominee for defendant
28

2
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FIRST AMENDED COMPLAINT
 LIME FINANCIAL SERVICES, the lender, as stated on the Assignment Deed of Trust dated July
1

2 10, 2009.

3 6. Defendant JP MORGAN CHASE BANK N.A. As Attorney in Fact for U.S. BANK
4
NATIONAL ASSOCIATION, AS TRUSTEE FOR CITIGROUP MORTGAGE LOAN TRUST
5
INC., ASSET-BACKED PASS-THROUGH CERTIFICATES, SERIES 2006-HE3 (hereinafter
6

7
“JP MORGAN”) at all times herein mentioned was presumed to be doing business in Los

8 Angeles, California and is named on the Substitution of Trustee as are attorney in fact for
9 defendant U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR CITIGROUP
10
MORTGAGE LOAN TRUST INC., ASSET-BACKED PASS THROUGH CERTIFICATES,
11
SERIES 2006-HE3.
12

13 7. Defendant LONG BEACH MORTGAGE COMPANY, was and is, engaged in ongoing

14 business in the County of Los Angeles, State of California.

15
8. Defendant NEW CENTURY TITLE COMPANY (hereinafter “NEW CENTURY”) at
16
all times herein mentioned was presumed to be doing business in Irvine, California was the
17
original Trustee on the Deed of Trust dated June 13, 2006. NEW CENTURY was the trustee of
18

19 the Deed of Trust dated June 13, 2006.

20 9. Defendant U.S. BANK, NATIONAL ASSOCIATION, AS TRUSTEE FOR

21
CITIGROUP MORTGAGE LOAN TRUST INC., ASSET-BACKED PASS THROUGH
22
CERTIFICATES, SERIES 2006-HE3 (hereinafter “U.S. BANK”) at all times herein mentioned
23

24
was doing business in Los Angeles, California and is named in the Substitution of Trustee dated

25 July 22, 2009. NDEX was hired to collect the debt that is purportedly owed by
26 U.S. BANK through the Deed of Trust connected with this subject property.
27
10. Plaintiffs are ignorant of the true names and capacities of defendants sued herein as
28

3
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FIRST AMENDED COMPLAINT
 DOES 1 through 50, inclusive, and therefore sues these defendants by such fictitious names and
1

2 all persons unknown claiming any legal or equitable right, title, estate, lien, or interest in the

3 property described in the complaint adverse to plaintiff(s title, or any cloud on Plaintiffs title
4
thereto. Plaintiff will amend this complaint to allege their true names and capacities when
5
ascertained.
6

7
11. Plaintiffs are informed and believe and thereon allege that, at all times herein

8 mentioned each of the defendants sued herein was the agent and employee of each of the
9 remaining defendants. Plaintiffs allege that each and every defendant alleged herein ratified the
10
conduct of each and every other defendant. Plaintiffs further allege that at all times said defendants
11
were was acting within the purpose and scope of such agency and employment.
12

13 12. Plaintiffs purchased the foregoing Real Property and on or about June 7, 2006

14 financed their purchase through LIME FINANCIAL by virtue of a Trust Deed and Notes securing
15
the Loans.
16
13. Plaintiffs are informed and believe that directly after LIME caused Mortgage
17
Electronic Registration Systems (“MERS”) to go on title as the “Nominee Beneficiary” this is
18

19 routinely done in order to hide the true identity of the successive Beneficiaries when and as the

20 loan was sold. MERS, however, acted as if they were the actual beneficiary although a Nominee
21
is an entity in whose name a security is registered through true ownership is held by another party,
22
in other words MERS is not the Beneficiary but is used to hide the true identity of the Beneficiary.
23

24
Based on this failure to disclose, and the lack of consideration paid by MERS, Plaintiffs allege that

25 the Deed of Trust were never perfected and are a nullity as the MERS recording separates the Debt
26 from the Lien, and this is more so especially upon a sale of the Note and Trust Deed.
27
14. Plaintiffs allege that MERS acts as a Nominee for more than one principal,
28

4
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FIRST AMENDED COMPLAINT
 and conceals their identity therefore if a Nominee is the same as an agent MERS cannot act as an
1

2 agent for multiple Banks, insurance and title companies and Mortgage Companies because of a

3 serious Conflict of interest. In addition Plaintiff allege that a Deed of Trust cannot lawfully be
4
held by a Nominee who has no financial interest in the instrument without disclosing the identity
5
of the actual Beneficiary, and that if a party with no interest in the Note records it in their name the
6

7
recorded deed is Nullity.

8 15 Plaintiffs allege that MERS failure to record the alleged assignment further
9 renders the Deed an instrument which is unenforceable under the mandates of California Civil
10
Code section 2924 et seq.
11
16. Plaintiffs allege that on or about June 15, 2009, Defendants NDEX and CHASE
12

13 HOME FINANCE falsely alleged that Plaintiffs were in default of their obligations under the

14 terms of their loan. However, plaintiffs fully performed all of the lawfully enforceable terms and
15
conditions of the loan, Furthermore, Plaintiffs were not in default because of the prior breach of
16
the terms of the notes by Defendants, and each of them, and therefore, the performance of
17
Plaintiffs was excused. In addition, the Declaration of Due Diligence attached to the Notice of
18

19 Default is void because the required “penalty of perjury” and signature of a person with actual

20 knowledge is missing which will be discussed later in the complaint. [See Exhibit “1” attached
21
hereto and incorporated herein.
22
17. Plaintiffs allege that the loan contract was procedurally and substantively
23

24
unconscionable because while the Plaintiffs’ stated income at the time of making the loan was

25 unknown to plaintiff, whereas, the payment on the loan exceeded the Plaintiffs’ entire spendable
26 income, the employees and/or agents of LIME nor MERS, NEW CENTURY TITLE or LONG
27

28

5
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FIRST AMENDED COMPLAINT
 BEACH did not disclose to Plaintiffs the terms and conditions of the repayment, and Plaintiffs
1

2 executed documents without any explanation whatsoever.

3 18. Plaintiffs allege that the employees and/or agents of LIME represented that said
4
employees and/or agents could work-around the fact that Plaintiffs’ credit was not in good
5
standing and could get Plaintiffs approved for the loan. Defendants did not disclose at any time to
6

7
Plaintiffs that the initial loan payment would exceed their entire income. Plaintiffs allege that the

8 loan contract, deed of trust and accompanying documents were offered to Plaintiffs on a take it or
9 leave it basis.
10
19. Further, on information and belief, Plaintiffs allege that the Defendants charged and
11
obtained improper fees for the placement of their loan as “sub-prime” when they qualified for a
12

13 prime rate mortgage which would have generated less in fees and interest.

14 20. Plaintiffs are informed and believe and on that basis allege that the service of the
15
purported note was, without their knowledge, by some means transferred from or by Defendant
16
LIME, or NEW CENTURY TITLE either completely or by association or other means to MERS
17
who unknown to Plaintiffs provided services in various forms to be determined to others which
18

19 were of such a nature to render them a “Servicer.”

20 21. Also on June 7, 2006 Plaintiffs executed a “Deed of Trust” which cited the lenders
21
INSERT ORIG LENDER/DEFENDANTS and stating in the definition section that:
22
(E) “MERS” is a Mortgage Electronic Registration Systems, Inc., MERS is a separate
23

24
corporation that is acting solely as a nominee for Lender and Lender’s successors and

25 assigns. MERS is the beneficiary under this Security Instrument. Additionally, on the
26 Substitution of Trustee dated July 22, 2009, NEW CENTURY TITLE claimed to be
27
the original trustee and MERS the original beneficiary.
28

6
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FIRST AMENDED COMPLAINT
 22. Plaintiff alleges that Defendant LIME and LONG BEACH MORTGAGE had
1

2 superior bargaining strength over Plaintiff, and that Plaintiffs was relegated only the opportunity

3 to adhere to the contract or reject it, that LIME drafted all of the documents related to the loan,
4
that no negotiations were possible between Plaintiffs and NEW CENTURY, U.S. BANK
5
NATIONAL, CHASE HOME FINANCE, and MERS, and that the contract was a contract of
6

7
adhesion.

8 23. Plaintiffs allege that the loan was unconscionable in that the repayment terms were
9 unfair and unduly oppressive, because the payments exceeded Plaintiffs entire combined income
10
and as such, Defendants, and each of them, cannot enforce the terms and conditions of the loan
11
against Plaintiffs, and any non-judicial foreclosure arising there from is void.
12

13 24. Plaintiffs are informed and believes and thereupon alleges that Defendants, and each

14 of them, entered into a fraudulent scheme, the purpose of which was to make a loan to
15
Plaintiffs, which Defendants, and each of them, were keenly aware that Plaintiffs could not afford,
16
at a cost way above the then prevailing market rate, made loans to Plaintiffs and falsely
17
represented to Plaintiffs that they could not qualify for any other financing, that Plaintiffs could
18

19 not qualify under any reasonably underwriting guidelines, that such scheme was devised to extract

20 illegal and undisclosed compensation from Plaintiff by virtue of an undisclosed yield spread
21
premium and which Defendants, and each of them, shared in some presently unknown percentage.
22
(See Exhibit “2” – letter of CHASE HOME to plaintiffs.)
23

24
25. Plaintiffs are informed and believes and therefore alleges that their loans after they

25 were originated and funded were sold on multiple occasions, bundled into a group of Trust Deeds
26 and subsequently sold to investors as a Derivative, “Mortgage Backed Security”, and that
27
therefore none of these defendants, and each of them, owned this loan, or Note and cannot be and
28

7
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FIRST AMENDED COMPLAINT
 are not the Beneficiary, or lawfully appointed trustee, and have no right to declare a default, to
1

2 cause notices of default to issue or to be recorded, or to foreclose on Plaintiffs interest in the

3 subject property, Defendants, and each of them, were not the note Holder or the Note holder in
4
due course or any Beneficiary at any time in regards to this loan.
5
26. That none of these Defendants, and each of them, were ever disclosed as the
6

7
beneficiary in accordance with California Code of Civil Procedure section 2924 et seq.

8 This law is effective immediately and extends on to January 1, 2013. This law
9 impacts owner-occupied primary residences only and only loans made on January 1, 2003 and
10
December 3, 2007.
11
27. Plaintiffs further allege on information and belief that none of these alleged
12

13 beneficiaries or representatives of the Beneficiary have the original note to prove that they are in

14 fact the party authorized to conduct the foreclosure.

15
28. Plaintiffs further allege that the foreclosure sale of the Subject Property was not
16
executed in accordance with the requirements of California Civil Code Sections 2923.5, 2932.5
17
and Commercial Code section 3302 et seq.
18

19 29. That the notices and foreclosure failed to conform with the provisions of California

20 Civil Code Sections 2923.5, 2932.5 et seq., because the Declaration did not set forth any facts how
21
it complied with the relevant section, but, merely concluded that it complied and Commercial
22
Code section 3302 et seq. Plaintiff further alleges that the Notice of Default did not have a
23

24
sufficient penalty of perjury disclosure, and that the agent lacks personal knowledge rendering the

25 Declaration as invalid.
26 30. Plaintiffs further allege that California Civil Code section 2924 et seq. and its subparts
27

28

8
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FIRST AMENDED COMPLAINT
 are being applied to Plaintiffs in a manner that is unlawful, because at least in part the party acting
1

2 as the Trustee proceeded with the foreclosure of Plaintiffs Subject Property notwithstanding the

3 fact that the Trustee was not in possession of the original Note, that the Note when it was assigned,
4
the assignment by LIME, MERS, NEW CENTURY and U.S. BANK NATIONAL and its assigns,
5
did not covey the power of sale because it violated the terms of California Civil Code section
6

7
2932.5, that the assignment when it was made, that the Note executed by Plaintiff was no longer a

8 negotiable instrument because the assignment was not physically applied to the Note pursuant to
9 the holding of Pribus v. Bush, (1981) 118 Cal.App.3d 1003, 173 Cal.Rptr. 747, although there
10
was sufficient room on the back of the Note to complete the assignment, and as such the
11
foreclosure of Plaintiff’s subject property did not conform to the strict mandates of Civil Code
12

13 section 2924.76.

14 31. Plaintiffs allege that the employees and/or agents of LIME represented that said
15
employees and/or agents could work-around the fact that Plaintiffs’ credit was not in good
16
standing and could get Plaintiffs approved for the loan. Defendants did not disclose at any time to
17
Plaintiffs that the initial loan payment would exceed their entire income.
18

19 32. Plaintiffs allege that the loan contract, deed of trust and accompanying documents

20 were offered to Plaintiffs on a take it or leave it basis.

21
33. That by virtue of the method and manner of Defendants carrying out Civil Code
22
section 2924 et seq., the foreclosure of the Subject Property is void ab initio as a matter of law.
23

24
34. Plaintiffs allege that Defendants, and each of them, are engaged in and continue to

25 engage in violations of California law including but, not limited to: Civil Code section 2924 et
26 seq. and 2932.5 et seq., and unless restrained will continue to engage in such misconduct, and that
27
a public benefit necessitates that Defendants be restrained from such conduct in the future.
28

9
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FIRST AMENDED COMPLAINT
 35. Plaintiffs have no experience beyond basic financial matters.
1

2 36. Plaintiff was never explained the full terms of their loan, including but not limited to

3 the rate of interest how the interest rate would be calculated, what the payment schedule should be,
4
the risks and disadvantages of the loan, the prepay penalties, the maximum amount the loan
5
payment could arise to.
6

7
37. Certain fees in obtaining the loan, were also not explained to the Plaintiffs, including

8 but not limited to "underwriting fees," "MERS registration fee," "appraisal fees," "broker fees”,
9 “loan tie in fees," etc.
10
38. A determination of whether Plaintiffs would be able to make the payments as specified
11
in the loan was never truly made.
12

13 39. Plaintiffs were rushed when signing the documents; the closing process provided no

14 time for review and took minutes to accomplish.

15
40. Plaintiffs could not understand any of the documents and signed them based on
16
representations and the trust and confidence the Plaintiff placed in Defendants’ predecessors.
17
41. Plaintiffs are informed and believes that Defendants and/or Defendants' predecessors
18

19 established and implemented the policy of failing to disclose material facts about the Loan, failing

20 to verify Plaintiff's income, falsifying Plaintiff's income, agreeing to accept a Yield Spread
21
Premium, and causing Plaintiff's Loan to include a penalty for early payment.
22
42. Plaintiffs are informed and believes that Defendants and/or Defendants’ predecessors
23

24
established such policy so as to profit, knowing that Plaintiff would be unable to perform future

25 terms of the Loan.

26 43. Plaintiffs were lured into the fraud of Defendants, and each of them, since the
27

28

10
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FIRST AMENDED COMPLAINT
 forgoing misrepresentations caused them to obtain the home loan, without accurately realizing, the
1

2 risks, duties, or obligations incurred.

3 44. The Promissory Note contains sufficient space on the note itself for endorsement
4
whereby any assignment by alonge is ineffective pursuant to Pribus v. Bush, 118 Cal. App. 3d
5
1003 (May 12, 1981).
6

7
45. Defendants are not holders in due course due to Fraud in Factum and ineffective

8 endorsement.
9 46. Defendants have no standing to enforce a non-judicial foreclosure.
10
47. Defendants are strangers to this transaction, and have no authority to go forward with
11
the foreclosure and Trustee's Sale.
12

13 48. Plaintiff executed a Promissory Note (hereinafter the “Note”) and a Deed of Trust to

14 LIME.
15
49. LIME is the Lender and only party entitled to enforce the Note and any security
16
interest with it.
17
50. Plaintiffs allege that CHASE, U.S. BANK, NEW CENTURY are not listed anywhere
18

19 in the Deed of Trust or Promissory Note.

20 51. In California, California Civil Code § 2932.5 governs the Power of sale under an
21
assigned mortgage, and provides that the power of sale can only vest in a person entitled to money
22
payments.
23

24
52. Plaintiff alleges that LIME has never assigned its rights under the Note.

25 53. The power of sale may not be exercised by any of the Defendants since there was
26 never an acknowledged and recorded assignment pursuant to California Civil Code § 2932.5.
27
54. Since the Defendants did not comply with California Civil Code§2932.5, the Notice
28

11
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FIRST AMENDED COMPLAINT
 of Default provisions of California Civil Code § 2924 were likewise never complied with.
1

2 55. NDEX and CHASE HOME never complied with the Notice of Default provisions of

3 California Civil Code §2924.

4
56. NDEX and CHASE HOME never complied with the Notice of Default provisions of
5
California Civil Code §2924.
6

7
57. A promissory note is personal property and the deed of trust securing a note is a mere

8 incident of the debt it secures, with no separable ascertainable market value.

9 58. Plaintiffs allege that by virtue of the foregoing that none of the Defendants are present
10
holders in due course of the instrument.
11
59. None of the Defendants are entitled to enforce the instrument pursuant to section
12

13 Commercial Code section 3309.

14 60. Defendants have no enforceable rights under California Commercial Code 3301(a) to
15
enforce the negotiable instrument.
16
61. Since there is no right to enforce the negotiable instrument, the Notice of Default
17
provisions of California Civil Code § 2924 and Notice of Sale provisions of California Civil Code
18

19 § 2924(f) were likewise never complied with, and there is no subsequent incidental right to enforce

20 any deed of trust and conduct a non-judicial foreclosure.

21
62. MERS was not and never has been a Beneficiary of this loan or any other. MERS
22
is solely a registration service for tracking these Trust Deeds and mortgages and also the Notes.
23

24
MERS records these Trust Deeds in their name as a “nominee”, with no actual ownership interest

25 in these Loans, the purpose is allegedly to allow the sale and transfer of these instruments without
26 the need for further recordation, however what actually occurs is that the real Beneficiary remains
27
obscured, and unknown. In addition, MERS is not a trustee and has no right to collect any
28

12
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FIRST AMENDED COMPLAINT
 payments on the Note, neither does MERS have any right to enforce the notes or to be a party in
1

2 any Foreclosure proceedings. Yet, MERS has represented itself under oath in this case to be the

3 beneficiary and in that “stated” but “false” capacity has unlawfully nominated a successive trustee.
4
63. Plaintiffs allege that while MERS remain on title as a “nominee” for the Trust Deed
5
and Note both are sold on several occasions afterward and ultimately bundled as a security and
6

7
sold to a final investor. MERS actually helps to conceal the real beneficiary which is in violation

8 of California statutory law, Cal. Civ. Code Sec. 2924 et. Seq. The Beneficiary is completely
9 shielded and not disclosed as required. Also the forms that they used to give Notices are
10
defective.
11
FIRST CAUSE OF ACTION
12
VIOLATION OF CALIFORNIA CIVIL CODE §2923.6
13
(As Against All Defendants)
14

15
64. Plaintiffs incorporate by reference Paragraphs 1 through 63 of the General Allegations
16
as though such have been fully set forth herein.
17

18 65. Defendants’ Pooling and Servicing Agreement (hereinafter “PSA”) contains a duty to

19 maximize net present value to its investors and related parties.

20
66. Plaintiffs allege that California Civil Code 2923.6 broadens and extends this PSA duty
21
by requiring servicers to accept loan modifications with borrowers.
22
67. Pursuant to California Civil Code 2923.6(a), a servicer acts in the best interest of all
23

24 parties if it agrees to or implements a loan modification where the (1) loan is in payment default,

25 and (2) anticipated recovery under the loan modification or workout plan exceeds the anticipated
26
recovery through foreclosure on a net present value basis.
27
68. California Civil Code section 2923.6(b) now provides that the mortgagee, beneficiary,
28

13
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FIRST AMENDED COMPLAINT
 or authorized agent offer the borrower a loan modification or workout plan if such a modification
1

2 or plan is consistent with its contractual or other authority.

3 a. Plaintiffs’ loan is presently in an uncertain state.

4
b. Plaintiffs are willing, able, and ready to execute a modification of their loan on a
5
reasonable basis
6

7 (a) New Loan Amount: $233,000.00

8 (b) New Interest Rate: 4%
9 (c) New Loan Length: 30 years
10 (d) New Payment: $ 1112.38
11

12
c. The present fair market value of the property is $310,000.00 The Joint Economic

13 Committee of Congress estimated in June, 2007, that the average foreclosure results in $77,
14 935.00 in costs to the homeowner, lender, local government, and neighbors.
15
d. Of the $77,935.00 in foreclosure costs, the Joint Economic Committee of Congress
16
estimates that the lender will suffer $50,000.00 in costs in conducting a non-judicial foreclosure on
17

18 the property, maintaining, rehabilitating, insuring, and reselling the property to a third party.

19 Freddie Mac places this loss higher at $58,759.00.

20
e. Pursuant to California Civil Code section §2823.6, Defendants are now contractually
21
bound to accept the loan modification as provided above and tender is deemed made pursuant to
22
Defendants’ Pooling and Service Agreement, California Civil Code 2923.6(a), and California
23

24 Civil Code 2923.6(b), taken individually or entirely. Plaintiffs invoke the remedies embodied in

25 the aforementioned agreement and/or codes with a willingness to execute a modification of their
26
loan.
27
f. Alternatively, Plaintiffs allege that tender, if any, is excused by obstruction or
28

14
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FIRST AMENDED COMPLAINT
 prevention or imposition of unwarranted conditions by the person or corporate entity to whom it
1

2 was to be made.

3 g. Alternatively, Plaintiffs allege that obstruction or imposition of unwarranted conditions

4
by defendants occurred when defendants evaded the plaintiffs’ attempts to provide tender as
5
specified and encouraged by defendants’ pooling agreement, California Civil Code 2923.6(a), and
6

7
California Civil Code 2923.6(b).

8 h. Alternatively, Plaintiffs further allege that obstruction or imposition of unwarranted

9 conditions by defendants occurred when defendants manifested to the Plaintiffs that tender, if
10
made, will not be accepted, the Plaintiffs are excused from making tender as it would be a futile
11
gesture, and the law will not require the doing of a useless act. Alternatively, Plaintiffs further
12

13 allege that obstruction or imposition of unwarranted conditions by defendants occurred when

14 defendants’ objection for want of actual tender of money is waived by defendants’ refusal to
15
receive the money if produced.
16
69. As such, plaintiffs allege that Defendants, and each of them, have violated
17
California Civil Code section 1923.6, and the non-judicial foreclosure should not go forward.
18

19 SECOND CAUSE OF ACTION

20 FOR INTENTIONAL MISREPRESENTATION
21 (Against all Defendants)

22 70. Plaintiffs reincorporate Paragraphs 1 through 63 of the General Allegations and

23
Paragraphs 64 through 69 of the First Cause of Action as though fully set forth herein.
24
71. Plaintiffs are informed and believe that the representation as stated on the Notice of
25

26
Default and each of them were a false representation in the following particulars(s): (A)

27 Documents were not provided to the trustee that showed that any of the Defendants was the
28 Beneficiary and entitled to the payments. (B) At the time Defendants made the representations

15
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FIRST AMENDED COMPLAINT
 they knew they were false and were made for the sole purpose of inducing reliance and confusing
1

2 Plaintiffs.

3 72. There is in existence a certain written instrument which purports to be a Notice of

4
Default that is in the possession of Defendants, and each of them. (See Exhibit “B”)
5
73. The written instrument alleged in “Exhibit B" was procured as follows:
6

7
Defendants cannot prove that the nonjudicial foreclosure which occurred, strictly complied with

8 the tenets of California Civil Code Sections 2923.5 and 2924 in order to maintain an action for
9 possession pursuant to California Code of Civil Procedure section 1161. As of September 6,
10
2008, California Civil Code Section 2923.5 applies to loans made from January 1, 2003, to
11
December 31, 2007, and loans secured by residential real property that are for owner-occupied
12

13 residences. For purposes of Section 2923.5, “owner-occupied” means that the residence is the

14 principal residence of the borrower. Prior to filing a Notice of Default, Section 2923.5 of the
15
California Civil Code provides in pertinent part:
16
(1) A trustee may not file a notice of default pursuant to Section 2924 until 30 days after
17
contact is made as required by paragraph (2) or 30 days after satisfying the due
18

19 diligence requirements as described in subdivision (g).

20 (2) An authorized agent shall contact the borrower in person or by telephone in order to
21
assess the borrower’s financial situation and explore options for the borrower to
22
avoid foreclosure. During the initial contact, the mortgagee, beneficiary, or authorized
23

24
agent shall advise the borrower that he or she has the right to request a subsequent

25 meeting and, if requested, the mortgagee, beneficiary, or authorized agent shall

26 schedule the meeting to occur within 14 days.
27

28

16
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FIRST AMENDED COMPLAINT
 (3) A notice of default filed pursuant to Section 2924 shall include a declaration from
1

2 the mortgagee, beneficiary, or authorized agent that it has contacted the borrower,

3 tried with due diligence to contact the borrower as required by this section, or the
4
borrower has surrendered the property to the mortgagee, trustee, beneficiary, or
5
authorized agent.
6

7
74. Plaintiffs allege that the purpose of permitting a declaration under penalty of perjury, in

8 lieu of a sworn statement, is to help ensure that declarations contain a truthful factual
9 representation and are made in good faith. The written instrument alleged in Exhibit “B” was also
10
procured as follows: By an invalid sale conducted on the part of Defendants, and each of them, in
11
violation of statutes including, but not limited to: Plaintiff is informed and believes and thereupon
12

13 alleges that the NOTE was invalid and unenforceable due to the intentional and willful violations

14 including but, not limited to: California Civil Code 2924b etc. et seq., California Civil Code §§§
15
2924b(a), 2924b(d), 2924b(e) by failing and/or refusing to mail the Notice of Default within ten
16
business days to Plaintiffs, by failing and/or refusing to post and mail the Notice of Default; by
17
failing and/or refusing to mail Plaintiffs the Notice of Trustee’s Sale.
18

19 75. Notice of Default within one month pursuant to California Civil Code § 2924b (c (1),

20 (2); by failing and/or refusing to properly set the sale date pursuant to California Civil Code §
21
2924f(b); by failing and/or refusing to publish the Notice of Sale twenty days prior to the date set
22
for sale pursuant to California Civil Code § 2924f(b); by failing and/or refusing to record the
23

24
Notice of Sale pursuant to California Civil Code § 2924g(d);

25 76. Since the enumerated law was effective as of September 06, 2008 the sale of the
26 property at issue is invalid pursuant to California Civil Code Sections 2923.5 and 2924,
27
and thus the Defendants’ claim of title and allegation thereto is erroneous.
28

17
________________________________________________________________________________________
FIRST AMENDED COMPLAINT
 77.. Plaintiff alleges that Defendants, and each of them, willfully, wrongfully and
1

2 without justification, and without privilege conducted an invalid foreclosure sale against the

3 Plaintiff’s SUBJECT PROPERTY, thereby, slandering Plaintiff’s title thereto.

4
78. Furthermore, The California Foreclosure Prevention Act, states the following:
5
The California Foreclosure Prevention Action became effective June 15, 2009. This new law
6

7
delays the non-judicial foreclosure process by requiring an addition 90-day delay (beyond the

8 current three-month period) between recording a notice of default and a notice of stay for certain
9 residential properties. The law applies to:
10
1. Loans recorded between January 1, 2003 and January 1, 2008, inclusive,
11
2. The borrower occupies the property as his/her principal residence and occupied it
12

13 at the time the loan became delinquent;

14 3. A notice of default has been recorded on the property; and

15
4. The loan is secured by a first lien on residential property that is located in
16
California.
17
79. Plaintiffs allege that their loan comes within the definition of affected loans under
18

19 California Civil Code 2923.5.

20 80. Plaintiffs allege that the subject property was their principal place of residence and
21
that their deed was dated on June 6, 2007. Therefore, the California Foreclosure Prevention Action
22
applies and they should be allowed an additional 90 days (plus the three-month period already)
23

24
after Notice of Default is recorded.

25 81 The Trustee's Deed Upon Sale obtained after the sale is false and causes a doubt
26 to be cast on Plaintiff’s title to the property described above.
27
82. The aforementioned Instrument directly impairs Plaintiffs’ right to possession
28

18
________________________________________________________________________________________
FIRST AMENDED COMPLAINT
 and ownership of the Subject Property.
1

2 83. Furthermore, the aforementioned acts of Defendants, and each of them, were

3 motivated by oppression, fraud, malice in that Defendants, and each of them, by their respective
4
acts, omissions, nonfeasance, misfeasance and/or malfeasance executed an invalid foreclosure sale
5
of the Plaintiffs’ SUBJECT PROPERTY, in order to deny Plaintiffs of their rights of possession
6

7
and ownership, whereupon, the Foreclosure was defective as such the Property must be restored to

8 Plaintiff or Plaintiff is entitled to the value of thereof.

9
THIRD CAUSE OF ACTION
10
FOR FRAUD
11 (Against All Defendants)
12
84. Plaintiff reincorporates Paragraphs 1 through 63 of the General Allegations,
13
Paragraphs 65 through 69, and Paragraphs 71 through 83 of the First and Second Causes of Action
14

15 as though fully set forth herein.

16 85. An unknown employee of MERS executed on behalf the alleged Beneficiary a

17
“Notice of Default” which stated that the payments were due to MERS and CHASE HOME AND
18
NDEX as Beneficiary. “Notice of Breach and Default and of Election to Cause Sale of Real
19
Property Under Deed of Trust” (See Exhibit “1”)
20

21 86. On the Notice of Breach, it stated, in part, that Plaintiffs as Trustor, to secure certain

22 obligations in favor of Defendants, as beneficiary.

23
87. This representation was made by these defendants in order to induce reliance by
24
Plaintiffs.
25

26
88. Plaintiffs did rely on these representations and because of their reliance their

27 property will be foreclosed and Plaintiffs reliance was justified.

28 89. Plaintiffs is informed and believes that the representation as stated on the Notice of

19
________________________________________________________________________________________
FIRST AMENDED COMPLAINT
 Default were a false representation in the following particular(s) Documents were not provided to
1

2 the trustee that showed that NEW CENTURY and NDEX or MERS was the Beneficiary and

3 entitled to the payments. At the time LIME made the representations they knew they were false
4
and were made for the sole purpose of inducing reliance.
5
90. Plaintiffs allege that Defendants, and each of them, were engaged in an illegal scheme
6

7
the purpose of which was to execute loans secured by real property in order to make commissions,

8 kick-backs, illegal undisclosed yield spread premiums, and undisclosed profits by the sale of any
9 instruments arising out of the transaction and to make loans to borrowers that they could not
10
afford to repay given their stated financial situation. Plaintiffs allege that Defendants, and each of
11
them, have represented to plaintiffs and to third parties that they were the owner of the Trust Deed
12

13 and Note as either the Trustee or the Beneficiary regarding Plaintiffs real property. Based on this

14 representation they caused a Notice of Default to be issued and recorded without disclosing their
15
true role, and thereafter a notice of intent to foreclose and finally they executed a foreclosure,
16
which was completed, permanently affecting Plaintiffs right, title and interest in the Subject
17
Property. In fact, Plaintiffs allege that the promissory notes which was executed by Plaintiffs and
18

19 which initially formed a basis of a security interest in the subject property, was assigned in

20 violation of Civil Code section 2932.5 et seq. because the assignment was not recorded, and as
21
such the promissory note was rendered as non-negotiable and no power of sale was conveyed with
22
the note at the time of the assignment, and therefore, Defendants, and each of them, had no lawful
23

24
security interest in the subject property.

25 91. On or about June 6, 2007 representatives, agents and/or employees of Defendants, and
26 each of them, made false representations to Plaintiffs in order to fund a loan, in which the
27
Plaintiffs’ personal residence was to be security therefore. Plaintiffs allege that Defendants, and
28

20
________________________________________________________________________________________
FIRST AMENDED COMPLAINT
 each of them, made certain representations regarding their honesty, that they were experts in
1

2 obtaining loans which borrower’s could afford and that they would only offer Plaintiffs a loan

3 which was in their best interests given their credit history and financial needs and limitations and
4
that Plaintiffs could trust the representations of Defendants, and each of them. Plaintiffs allege
5
that based upon the representations made by Defendants, and each of them, Plaintiffs reasonably
6

7
reposed their trust in Defendants’ representations and disclosed their private financial information

8 to Defendants, in order that Defendants could in keeping with their representations, find a loan
9 which was in the best interests of Plaintiffs given their financial needs and limitations. More
10
particularly, Defendants, and each of them, represented that they would not make a loan to
11
Plaintiffs unless he could afford the loan, and that they would not make the loan unless and until
12

13 he had passed the underwriting guidelines of the lender, which further assured that the loan being

14 offered to Plaintiffs were in fact in the Plaintiff’s best interests, and that the loan was within
15
Plaintiffs’ financial needs and limitations.
16
92. Plaintiffs allege that the loans provided by Defendants, and each of them, contained a
17
repayment schedule, whereas, exceeded Plaintiffs’ total spendable income, and that the loan
18

19 contained excessive financing was approved to allow closing costs to be financed, that Defendants

20 failed to utilize adequate due diligence regarding Plaintiffs’ ability to repay the loan, Defendants’
21
as part of their continuing scheme intentionally placed Plaintiffs’ in a sub-prime loan to the benefit
22
of the Defendants with excessively high interest rates, Defendants failed to provide Plaintiffs
23

24
mandated disclosures, and Defendants repeatedly employed coercive tactics in order to force

25 Plaintiffs to sign the loan documents.

26 93. Plaintiffs are informed and believe and thereupon allege that defendants NEW
27
CENTURY, U.S. BANK JP MORGAN CHASE BANK, LIME and MERS, engaged in some
28

21
________________________________________________________________________________________
FIRST AMENDED COMPLAINT
 degree in making the loan to Plaintiffs including, but not limited to: made the loan to Plaintiffs by
1

2 "marketing and extending adjustable-rate mortgage ("ARM") products to Plaintiffs in an unsafe

3 and unsound manner that greatly increases the risk that Plaintiffs would default on the loan,
4
because the initial payments on the loan exceeded Plaintiffs’ established retirement income, and
5
the loan terms offered to Plaintiffs included ARM products with one or more of the following
6

7
characteristics: without to utilize an adequate analysis of the Plaintiffs ability to repay the debt at

8 the fully-indexed rate; approving Plaintiffs without considering appropriate documentation and/or
9 verification of their income; including substantial prepayment penalties and/or prepayment
10
penalties that extend beyond the initial interest rate adjustment period; providing Plaintiffs with
11
inadequate and/or confusing information relative to product choices, material loan terms and
12

13 product risks, prepayment penalties, and the Plaintiffs’ obligations for property taxes and

14 insurance; approving Plaintiffs for a loan with inadequate debt-to-income analyses that did not
15
properly consider the Plaintiffs’ ability to meet his overall level indebtedness and common
16
housing expenses; and/or approving Plaintiffs for loan arrangements with loan-to-value ratios
17
approaching or exceeding 100 percent of the value of the collateral;" and making Plaintiffs a
18

19 mortgage loan without adequately considering the Plaintiffs’ ability to repay the mortgage

20 according to its terms.

21
94. Plaintiffs allege that based upon the foregoing representations of Defendants, and each
22
of them, plaintiffs did in fact repose their trust in the representations of Defendants, and each of
23

24
them, and that such trust was reasonable.

25 95. Plaintiffs alleges that Defendants, and each of them, presented a loan to Plaintiffs
26 whereby Defendants represented that they did qualify for ordinary underwriting, and that the loan
27
was within Plaintiffs’ personal financial needs and limitations given the confidential financial
28

22
________________________________________________________________________________________
FIRST AMENDED COMPLAINT
 information that Plaintiffs shared with Defendants, however, the true is that the loan payments
1

2 exceeded Plaintiffs’ established retirement income.

3 96. Plaintiffs allege that Defendants, and each of them, had a duty to disclose the true cost
4
of the loan which was made to Plaintiffs, and the fact that Plaintiffs could not afford the loan in
5
the first instance. Defendants, and each of them, provided Plaintiff a loan through Defendant
6

7
LIME, NEW CENTURY, U.S. BANK and Defendants, and each of them, were secretly

8 compensated, however, they did not disclose for this loan that they were by being paid for its
9 services, and in a spread of the yield of an amount which has not yet been fully ascertained as a
10
Yield Spread Premium paid-outside and after the close of escrow.
11
97. Plaintiffs are informed and believes and thereupon allege that after the close of escrow
12

13 Defendant LIME, NEW CENTURY, U.S. BANK paid the other Defendants herein fees above and

14 beyond the value of the services actually performed and an illegal kickback and added that
15
additional amount to the total amount being financed, however such amount was never disclosed
16
to Plaintiffs.
17
98. Plaintiffs acquire the foregoing property by virtue of the said funding through LIME
18

19 based on the representations of Defendants, and each of them, that the loan was the best they could

20 obtain for him, and that the loan was well within Plaintiffs’ financial needs and limitations.
21
99. Plaintiffs ARE informed and believe and thereupon alleges that Defendants, and each
22
of them, represented to Plaintiffs that Defendants, and each of them, were working for the benefit
23

24
of Plaintiffs and in their particular best interest to obtain for him the best loan and at the best rates

25 available.
26 100. That at the time Defendants, and each of them, made the foregoing false
27
representations to Plaintiffs they knew that they were untrue and that these representations were
28

23
________________________________________________________________________________________
FIRST AMENDED COMPLAINT
 material representations, and that no basis in fact existed to support such fraudulent
1

2 representations.

3 101. That the foregoing representations were made in order to induce Plaintiff to act on and
4
take the said loan(s) in order for both defendants to make a substantial amount of money thereby
5
and there from.
6

7
102. Plaintiffs were in fact induced to and did take these loans based on the said

8 fraudulent representations.
9 103. That Plaintiffs were induced to rely and did rely on the representations of these
10
defendants through deception and their reliance was justified as they believed that Defendants, and
11
each of them, were working for their and in his best interests.
12

13 104. That by virtue of Plaintiff’s reasonable reliance and the increased interest they were

14 made to pay, they have been damaged in the loss of their good credit and a higher payment and are
15
now being involved in litigation that they did not bargain for, all to their damage and injury.
16
105. Plaintiffs have relied on the representations of Defendant, and each of them, and
17
because of this reliance have made various moves to avoid foreclosure all to no avail, while
18

19 defendants knew all the time that they were deceiving Plaintiffs.

20 106. Plaintiff’s reliance was justified based upon the false representations of Defendants,
21
and each of them, and had no reason to believe that a party representing a bank would go to such
22
lengths to deceive and to convert Plaintiffs’ property by utilizing such a fraud and artifice.
23

24
107. Plaintiffs are informed and believe that Defendants, and each of them, at the time of

25 execution of the Deed of Trust and Note maintained an interest in the Subject Property, however at
26 the time the Note and Deed of Trust were assigned to Defendant LIME, the Note was no longer
27
negotiable and the power of sale was not conveyed during the assignment, notwithstanding the
28

24
________________________________________________________________________________________
FIRST AMENDED COMPLAINT
 foregoing, Defendants, and each of them, foreclosed on Plaintiffs’ Trust Deed, in concert with
1

2 their scheme to defraud Plaintiff out of their property.

3 108. Plaintiffs have recently learned that Defendants, and each of them, are not the legal
4
owners of the Note and TRUST DEED and will not be at the time they will issue the notices and
5
commenced the foreclosure process, notwithstanding the fact that the note was not negotiable and
6

7
did not contain a valid power of sale.

8 109. Plaintiffs allege that Defendants, and each of them, knew at the time they made these
9 representations to Plaintiffs that they were untrue, and defendants know at the time that they were
10
attempting to foreclose on Plaintiffs’ Trust Deeds and notes that they had no right to do so.
11
110. Plaintiffs allege Defendants, and each of them, intentionally and fraudulently
12

13 converted Plaintiffs’ right, title and interest to his property, and any equity therein.

14 111. Plaintiffs allege that due to their reliance on Defendants representations he has been
15
damaged in an amount that currently exceeds $25,000.00 and additionally costs of moving out of
16
Plaintiffs’ property and the costs to relocate back to the subject Property.
17
112. Defendants’ conduct as set forth above was intentional, oppressive fraudulent and
18

19 malicious so as to justify an award of punitive damages in an amount sufficient that such conduct

20 will not be repeated.

21
113. Plaintiffs will be damaged in having their home wrongfully foreclosed and a slander
22
of their title, and being required to become involved in this litigation all to their damages and
23

24
injuries the amount of which is subject to proof at the time of trial.

25 114. The actions of Defendants and each of them were fraudulent oppressive and malicious
26 so as to warrant the imposition of exemplary damages, and that by virtue of Defendants conduct as
27
set forth herein Plaintiff is entitled to exemplary damages.
28

25
________________________________________________________________________________________
FIRST AMENDED COMPLAINT
1

2 FOURTH CAUSE OF ACTION

3 INJUNCTIVE RELIEF
4 (Against all Defendants)
5
115. Plaintiffs reincorporate Paragraphs 1 through 63 of the General Allegations,
6

7 Paragraphs 65 through 69, Paragraphs 71 through 83, and Paragraphs 84 through 114, of the First,

8 Second and Third Causes of Action as though fully set forth herein.
9
116. Plaintiffs will suffer irreparable injury unless the court enjoins Defendants from
10
taking any further action which affects the Plaintiffs rights to title and possession of the subject
11

12
property. The Adjustable Rate Note states that the Lender is LIME.

13 117. Plaintiffs allege that the subject property is unique and that their legal remedies are
14 inadequate.
15
118. Plaintiffs seek an Order enjoining Defendants, and each of them, from asserting any
16
right to title or possession pending a full resolution of this matter.
17

18 FIFTH CAUSE OF ACTION

19 (VIOLATION OF BUSINESS AND PROFESSIONS CODE §17200
20 (As Against All Defendants)
21

22 119. Plaintiffs reincorporate Paragraphs 1 through 63 of the General Allegations,

23
Paragraphs 64 through 69, Paragraphs 71 through 83, and Paragraphs 85 through 114 of the First,
24
Second and Third Causes of Action as though set forth at length herein again.
25
120. Beginning in June 7, 2006 and continuing to the present time, Defendants committed
26
acts of unfair competition as defined by Business and Professions Code § 17200, by engaging in
27
the following practices:
28

26
________________________________________________________________________________________
FIRST AMENDED COMPLAINT
1 121. These acts and practices, as described in the previous paragraphs, violate Business
2 and Professions Code § 17200 because their policies and practices described above violate all the
3 statutes as previously listed and California Civil Code § 1709, and consequently, constitute and
4
unlawful business act of practice within the meaning of Business and Professions Code § 17200.
5 122. The harm to Plaintiffs and to members of the general public outweighs the utility of

6 Defendants’ policy and practices, consequently, constitute an unlawful business act of practice
7
within the meaning of Business and Professions Code §17200.
8
123. Further, the foregoing conduct threatens an incipient violation of a consumer law,
9

10
including, or violates the policy or spirit of such law or otherwise significantly threatens or harms

11 competition. Defendants’ practices described above are likely to mislead the general public, and
12 therefore, constitute a fraudulent business act of practice within the meaning of Business and
13
Professions Code §17200. The Defendants’ unfair, unlawful, and fraudulent business practices and
14
false and misleading advertising present a continuing threat to members of public in that other
15

16 consumers will be defrauded into closing on similar fraudulent loans. Plaintiffs and other members

17 of the general public have no other adequate remedy of law.

18
124. As a result of the aforementioned acts, Plaintiffs have lost money or property and
19
suffered injury in fact. Defendants received and continue to hold Plaintiffs’ money and other
20
members of the public who fell victim to Defendants’ scheme.
21

22
///
23
///
24
///
25

26

27

28

27
________________________________________________________________________________________
FIRST AMENDED COMPLAINT
1 SIXTH CAUSE OF ACTION
2 FOR DECLARATORY RELIEF
(Against all Defendants)
3

4
125. Plaintiffs reincorporate Paragraphs 1 through 63 of the General Allegations,
5
Paragraphs 64 through 69, Paragraphs 71 through 83, and Paragraphs 85 through 114 of the First,
6
Second and Third Causes of Action as though set forth herein.
7
126. A dispute has arisen between and among Plaintiffs and Defendants and each of them
8
as to the duties and obligations of the respective parties with regard to the loan or the foreclosure.
9
127. These disputes concern but are not limited to the ownership rights and the validity of
10
the commencement of the foreclosure process.
11
128 As to these issues, Plaintiff(s) are required to seek this relief.
12
129 Plaintiffs further alleges that a declaration of rights and duties of the parties herein
13
are essential to determine the actual status and validity of the loan, deed of trust, nominated
14
beneficiaries, actual beneficiaries, loan servicers, trustees instituting foreclosure proceedings and
15
related matter.
16

17 WHEREFORE, Plaintiffs respectfully pray for judgment as follows:

18 FOR THE FIRST CAUSE OF ACTION:

19
1. For an Order that Defendants violated Civil Code section 2923.5, and as such
20
that the Notice of Default is invalid;
21

22
2. For costs incurred herein;

23 3. Reasonable attorney’s fees as provided by statute or contract;

24 4. For such other and further relief as the court may deem just and proper.
25
FOR THE SECOND AND THIRD CAUSES OF ACTION:
26
1. For general damages subject to proof at time of trial;
27

28 2. For special damages subject to proof at time of trial;

28
________________________________________________________________________________________
FIRST AMENDED COMPLAINT
 3. For punitive damages subject to proof at time of trial;
1

2 4. For costs incurred herein;

3 5. For such other and further relief as the court may deem just and proper.
4
FOR THE FOURTH CAUSE OF ACTION:
5
1. For an Order enjoining Defendants, and each of them, from proceeding with the
6

7
non-judicial foreclosure of the subject property, without prior written approval by

8 the court;
9 2. For costs incurred herein:
10
3. For reasonable attorney’s fees as provided by statute or contract;
11
4. For such other and further relief as the court may deem just and proper.
12

13 FOR THE FIFTH CAUSE OF ACTION:

14 1. For a judicial determination that Defendants, and each of them, engaged in a course
15
of conduct whereby Defendants lured Plaintiffs into a loan which was not proper
16
for the Plaintiff’s financial circumstances, that Defendants, and each of them, made
17
material misrepresentations of fact regarding the terms of the loan, that Defendants,
18

19 and each of them, intentionally failed to disclose the true terms and conditions set

20 forth in the loan and that the loan in unenforceable;

21
2. For costs incurred herein:
22
3. For such other and further relief as the court may deem just and proper.
23

24 Dated: November 18, 2009 LAW OFFICES OF TIMOTHY MCCANDLESS

25

26
______________________________________________
Timothy L. McCandless, Esq.,
27 Attorney for Plaintiffs
ERIC SHOCKLEY and CHARLES FETTERS
28

29
________________________________________________________________________________________
FIRST AMENDED COMPLAINT
1 VERIFICATION
2
I, TIMOTHY L. MCCANDLESS, am an attorney at law admitted to practice before all
3
courts of the State of California and have my office in San Bernardino County, California, and am
4

5
the attorney for the Plaintiff in this action, that all of the officers of the Plaintiff are unable to make

6 the verification because they are absent from said County and for that reason affiant makes this
7
verification on the Plaintiff’s behalf; that I have read the foregoing document and know its
8
contents. I am informed and believe and on that ground allege that matters stated herein are true.
9
Executed November 18, 2009, at Victorville, California.
10

11 I declare under penalty of perjury that under the laws of the State of California that the foregoing

12 is true and correct.

13

14 DATED: November 18, 2009

15 ___________________________________
TIMOTHY L. MCCANDLESS, ESQ
16

17

18

19

20

21

22

23

24

25

26

27

28

30
________________________________________________________________________________________
FIRST AMENDED COMPLAINT