1

Ricky Cox & Donna Cox

713 Albemarle Avenue
2
Rio Linfu CA95673
3
Plaintiffs ln Propria Persona
4

6 SUPERIOR COURT OF T}IE STATE OF CALIFORNIA

7
COUNTY OF SACRAMENTO
8

I
10
Rickv Cox & Donna Cox,

11
Plaintiffs, COMPLAINT FOR:

12 V. 1. Intentional Misrepresentation of
Fact/Fraud
13

14 Deutsche BankNational Trust Company as 2. Negligence Per Se (Violations of B & P

Code $17200 et seq.
Trustee under the Pooling and Servicing
o'u
16 Agreement Dated February 1,2005,
3. Negligence Per Se (Violations of CCC
92923.5,92924 and $2329.6 supra
17 GSAMP Trust 2005-NC1; Quality Loan
4. SlanderofTitle
18 Service Cotp.; Litton Loan Servicing LP;

19 Marti Norieg4 First United Home Loans; 5. Wrongful Foreclosure

2A Tom Delkash; and Does l-50

21 Defendants.
22

23

24

25 Plaintiffs RICKY & DONNA COX, allege;

26

27 PARTIES
28 1. PlainLiff, RICKY COX, is an j-ndividual residing in the
County of Sacramento, State of California.
1

COMPLAINT TO SET ASIDE TRUSTEE'S SALE

 2. Plaintiff, DONNA COX, is an individual resi-dlng in the
County of Sacramento, State of California.
3. Pl-aintiffs, RICKY & DONNA COX (*COXES" or 'PLAfNTIFFS"),
are and were the lawful owners of the Property located at 713
Albemarl-e Avenue, Rio Linda, CA 95613. This property i-s a one to
four unit residence located in the County of Sacramento, State
of California. A copy of the grant deed conferring title to them
on November L3,2004 is attached as Exhibit \r1/' to this
Complaint.
4. Defendant, FIRST UNITED HOME LOANS (*FIRST UNITBD"),'
10 is,/was a business entity with a princlple place of business
11 Iocated at 70l. S. Parker St., Suite 1600, Orange, CA 92868.
12 FIRST UNITED regularly conducted financial transactions in the

13
County of Sacramento, State of California. PLAINTIFFS are
informed and bel-ieve that FIRST UNITED, was the "Lender" and
14
"Beneficiary" named on the loan as evidenced by the Deed of
o,'u Trust, executed on November 1-3, 20A4, whlch is attached as
16
Exhibit "2".
17
5. Defendant, TOM DELKASH (*DELKASH"), is an individual,
18 employed or formerly employed by FIRST UNfTED as a loan officer.
19 PLAINTIFFS are informed and believe that DELKASH was the l-oan
officer that solicited and processed their loan documents as
21
evidenced by his name and si-gnature on the Uniform Residential
22
Loan Application, Loan Servicing Disclosure Statement, and
Interim Servicing Notification (attached as Exhibit "4", "6" , &
23
"1") .
24
6. Defendant, LITTON LOAN SERVICING L.P. (*LITTON") is a
25
business entity with a princj-ple place of business located at
26 4828 Loop Central Drive, Houston, TX 11 081. LITTON regularly
27 does business within the State of California and specifically
28 within the County of Sacramento, State of Californi-a. PLAINTfFFS
are informed and believe that LITTON is the entitv which acted

COMPLAINT TO SET ASIDE TRUSTEE'S SALE

 as a servicer on behalf of the alleged beneficlaries. As
servicer, DOES 1-50 ordered the foreclosure sale of 7l-3
Albemarle Avenue, Rio Linda, CA 95613, which occurred on or
4
about November 9, 2009.
5
7. Defendant, MARTf NORIEGA (*NORIEGA"), is an individual who
resides in Texas. PLAINTIFFS are informed and believe that
NORIEGA was the individual who signed the Assignment of Deed of
Trust (attached as Exhibj-t "14") .
8. Defendant, QUALfTY LOAN SERVfCB CORP. ('QUALITY") is a
Business entity, wi-th a principle place of business located at
10 2741 5tb Avenue, San Diego, CA 92tOL. QUALfTY was the foreclosing
11 trustee of an alleged Deed of Trust on 713 Albemarle Avenue, Rio
12 Linda, CA 95673. QUAIITY regularly conducts business within the
13
State of California and specifi-ca11y within the County of
Sacramento, State of California.
14
9. Defendants, DEUTSCHE BANK NATIONAL TRUST AS TRUSTEE UNDER
o'u
16
THE POOLING AND SERVICING AGRBEMENT DATBD FEBRUARY 1, 2005,
GSAMP TRUST 2005-NC1 (*DEUTSCHE"), i-s a corporation, form
17
unknown, that conducted financial transactions in the County of
18 Sacramento, State of California. The Assignment of Deed of Trust
19 was recorded on February 3'o, 2OOg whereby MERS grants, assigns
20 and transfers beneficial interest in the subject property to
*DEUTSCHE BANK NATIONAL TRUST COMPANY as trustee under the
21

22
Pooling and Servicing Agreement dated as of February 1, 2005,
GSAMP Trust 2005-NC1."
23
10. Defendants, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS,
INC. ('MERS"), is a Delaware corporation engaged in the business
of holding title to mortgages. It conducts business in the State
26 of California as evidenced by the inclusion of its name on the
Assignment of Deed of Trust from MERS to DEUTSCHE recorded on
28 February 3, 2049 in the Sacramento County Recorder's Office.
11. PLAINTIFFS are informed and believe and thereon a1leqe

COMPLAINT TO SET ASIDE TRUSTEE'S SALE

 that at all times herein mentioned, each of the Defendants were
the agents and/or the employees of their co-defendants, and j-n
doing the thi-ngs hereinafter alleged were acting within the
course and scope of their authority as such agents, servants and
employees, and with the permission and the consent of their co-
defendants.
L2. PLAINTIFFS are ignorant of the true names and capacities
of the Defendants sued herein under the fictitious names DOBS 1-
50, i-nclusive, and PLAfNTIFFS pray for leave to amend this
I Complaint to allege such names and capacj-ties as soon as they
10 are ascertained. Each of said fictitiously named Defendants is
11 responsJ-b1e in some manner for the wrongful acts complained of
12 herein.
13
13. Defendants, and each of them, at all relevant times hereln
were and still are agents for one another, and acting under the
14
course and scope thereof, with knowledge and consent of each
O'u other.
16

17 .I(IRISDICTfON
18 L4. The transactions and events, which are the subject matter
19 of this Complaint all occurred withln the County of Sacramento,
20 State of California.
21
15. The property located at 713 Albemarle Avenue, Rio Linda,
CA 95673 is located in the County of Sacramento, State of
?2
California. The APN i-s 206-0294-003-0000-
23
16. The legal description of the property is Lot 23, as shown
24
on the plat of Jefferson Park, recorded in the office of the
Recorder of Sacramento County, December 18, 1959, in book 58 of
?6 maps, map no. 18.
27 REQLEST FOR in Ry TRIAT
28 L7. The COXES request a jury trial on all issues .i-n this
matter.

COMPLAINT TO SET ASIDE TRUSTEE'S SALE

 EACTT'AI.. BACKGROI'IID
z 18. This action arises out of a loan related activity to the
3 property of which the PLAINTIFFS are the rightful owners.
19. Beginning in 1998, and such facts are so well known as to
be Judicially Noticeable under California Evidence Code 5451 and
5452, lenders, thej-r agents, employees, and related servicers,
including Defendants, developed a scheme to rapidly infuse
capital into the home mortgage lending system by selli-ng
mortgages on the secondary market, normally three to fj-ve times,
I
to create a bankruptcy remote transaction. The lenders, their
10
agents, employees, and related servicers, includj-ng Defendants,
11 then pooled these mortgages into large trusts, securitizing the
12 pool and selling these securities on WaIl Street as mortgage
13 backed securities, bonds, derivatives and insurances, often for
14
twenty or thi-rt.y ti-mes the ori-ginal mortgage.
20. In "sellLng" these mortgage notes on the secondary market,
O,U Defendants falled to follow the basic legal requirements for the
16
transfer of a negotiable instrument and an interest in real
17
property. While lenders could have simply gone to Congress to
18
amend existing law so that it would allow for their envj"sioned
19 transfers, they did not. Inst.ead the Defendants simply ignored
20 the legal requirements.
21 2L. In factr ro interest in the Mortgage Note, Deed of Trust
22 or Property was ever 1egal1y transferred to any of the
23
Defendants, and that the Defendants are in effect straw men, and
parties without any standing before this court to assert 1egal
24
rights with respect to this contractual transaction.
25
22. Further, as this process became more and more profitable,
m
the underwriting requirements were repeatedly reduced to ensure
27
more and more unsuspecting borrowers. As the lenders reduced the
28 underwriting requi-rements, they introduced the concept of

COMPLAINT TO SET ASIDE TRUSTEE'S SALE

 "churning" loans involving a calculated plan to repeatedly
refinance borrowers' 1oans, taking as much equity as possi-ble,
and artificially driving up housi-ng prices.
23. Lenders, Defendant FfRST UNITED HOME LOANS included,
regularly trained, directed, authorized andlor participated with
mortgage brokers to implement this scheme, giving them monetary
6
incentives to violate the borrowers' trust.
7
24. In 7961 Lorenzia & Ruby Cox, parents of Plaintiff RICKY
COX, purchased the property located at 713 Al-bemarle Avenue, Rio
Linda, CA 95673 where they raised their famj-ly, including the
10 plalntiff Ricky Cox.
11 25. Lorenzia Cox passed away in December 1-985 leaving Ruby Cox
12 wi-th the property.
13
26. Ruby Cox passed away in May 2004 leaving the property to
her son, Plaintiff Ricky Cox and hls wife Plaintiff, Donna Cox
who moved 1n to the home in August 2004.
o15
16
27. In or about November 2004, Defendant TOM DELKASH
approached PLAINTIFFS, telling them that he was a loan officer
17
for Defendant FIRST UNITED HOME LOANS, and solicited them to
18 ref j-nance their mortgage.
19 28. Defendant DELKASH advi-sed t.he COXES that he could get them
20 the "best deal" and the "best interest rates" available on the
21
market. Defendant DELKASH knew or should have known t.hat these
22
assurances were false and misleading.
29. Defendant DELKASH advised the COXBS that he could get them
100% financing for their Mortgage, that their loan would be a
24
fixed rate loan with low interest for 30 years. However,
25
Defendant DBLKASH actually sold the PLAINTfFFS a loan with an
26 adjustable rate rider that would negatively amortize.
27 30. PLAfNTIFFS advised Defendant DELKASH that they did not
28 want a prepayment penalty attached to their loan. Defendant
DELKASH assured the COXES that no prepayment penalty would be

COMPLAINT TO SET ASIDE TRUSTEE'S SALE

 attached to thej-r loan, a representation Defendant DELKASH knew
2 or should have known was false and Defendant DELKASH knew or
3 should have knorsn was designed to induce PLAINTfFFS to accept
this loan to their detriment. Unfortunately, PLAINTIFFS have
5
since di-scovered that the loan sol-d to them contained a
provision for a 2 year prepayment penalty.
6
31. On November 13, 2004, the COXES secured a loan of
$93,000.00 from FIRST UNITED HOME LOANS. The loan was a 2 yeax
fixed rate mortgage. The loan was secured by a Deed of Trust on
I the property located at 713 Albemarle Avenue, Rio Linda, CA
10 95673 that was recorded on November 30, 2004 in the Sacramento
11 Count.y Recorder's Office in the County of Sacramento, State of
12 California.
13
32. The promissory note securing the property whj-ch was
alleged1y executed on November 13, 2004 was, in fact, not even
14
truly si-gned by the COXES at all. The signatures on the
o'u
16
Adjustable Rate Note were, in fact, forgied by either DELKASH or
another employee,/agent of FfRST UNITED. This is evidenced by the
17
signatures on the Note compared to various samples of the COXES
18 signatures from other loan related documents, all of which are
19 attached herein.
20 33. This fraudulent instrument promised to the COXES an
21
interest rate of 6.5t for 24 months. The note call-ed for the
22
first palment to conrmence on January 1, 2005. Thereafter, terms
of the promissory note were conflicting and confusing. The
23
promissory note called for a ceiling cap of 72.52. The
24
promissory note also stated that the interest rate could cl1mb
28 points per year. The Truth in Lending Disclosure (attached as
26 Exhibit \\5") revealed something entirely different. The Truth in
27 Lending Disclosure reflected an Annual Percentage Rate (APR) of
28 8.013%. The Truth in Lending Disclosure reflected an approximate
$60 increase after the first 24 months, to reach a ceiling of

COMPLAINT TO SET ASIDE TRUSTEE'S SALE

 1
$655.22 on July I, 2001. Thereafter, JuIy 1, 2001 the monthly
v2 mortgage payment was to be $655.22 for 329 months,
3 34. Defendants FfRST UNITED and DELKASH, as authorized agent
4
for FIRST UNITED, Provided the Loan Servicing Dj-sclosure
5
Statement, which Defendant DELKASH placed l\xx" in the space
provided next to the option "We are able to service your loan
6
and presently intend to do so" in the section titled "Servicing
7
Transfer Estimated by Lender" that the loan would not be so1d,
I transferred, or asslgned to another servicer. The disclosure
I statement was signed on November !2, 2404 and j-s attached as
10 Exhibit "6",
11 35. The day that the COXES si-gned the loan documents,
't2 Defendant.s FIRST UNITED and/or DELKASH, as an authorized agent
13
for Defendant FIRST UNITED, notified the COXES by wrltten
14
notice, whi-ch is attached as Exhibit "8", that effective the day
the loan was scheduled to close, the servicing of our loan is
Irs
being assigned, so1d, or transferred from our lender to
- 16
Defendant THE PROVIDENT BANK OF CINCINNATTI, OH.
17
36. PLAINTIFFS also received a notice re: transfer,/sale of
18 loan which states that upon the closing of our loan, with the
19 first mortgage payment. not even due for still at least another
20 30 days, notifying us that our loan had indeed been sold.
21
Defendants FIRST UNITED, and DELI(ASH knew or should have known
22
that this was contradict.ory to the representation made
previously as evidenced by Loan Servicing Discl-osure Statement.
23
37. Soon thereafter, FIRST UNITED pooled this defective note
24
and trust deed with other similar loans that were sold to
25
investors as GSAMP Trust 2005-NC1. However, the
26 assignrnent/transfer of beneficial interest from FIRST UNITED to
27 DEUTSCHE BANK NATTONAL TRUST COMPANY did not occur until
28 February 3, 2A09 when it was recorded in the Sacramento County
Recorder's office.

COMPLAINT TO SET ASIDE TRUSTEE'S SALE

 38. Once the COXESloan was pooled with others to form GSAMP
TRUST 2005-NC1, then LfTTON, also owned by Goldman Sacs, became
the servicer of the loan and have remained so ever since then.
4
39. Throughout the past fer+ years since LfTTON had been
5
servicing the COXES 1oan, the COXES had from time to time been
l-ate on their payments and received Notices of Default, whj-ch
they always managed to cure before their time ran out. However,
those Notices of Default were always issued through QUALfTY as a
foreclosi-ng trustee. Not through TICOR, as the Deed of Trust
names TICOR as trustee.
10 40. The first time the COXES ever saw the Adjustable Rate Note
11 was when it was received with the letter from LITTON dated June
12 24, 2008. Upon review of the document, the COXBS immediately
13
realized that they had not signed the document themselves. As
evidenced specifically by the si-gnature of RfCKY COX compared to
14
other samples of his signature (attached as Exhibit *3").
O,U 4L. The COXES are informed and believe that the notices of
16
assignments of the note and trust deed were not provided to them
17
by the subsequent beneficiaries and assignees.
18 42. fn or about April 2008, the COXES contracted the services
19 of JOSEPH BISOGNO, Sr. Vice President, LOAN COMPLIANCE ADVISORY
20 GROUP. MR. BISOGNO performed an audit of the loan documents and

21
as authorized by the COXES, sent an official written request
22
with attached complaint and exhibits to LITTON and FTRST UNITED
on April 30, 2008 (attached as exhibit "9"). Under Section 6 of
23
RESPA, they were required to acknowledge the request within 20
24
business days and must try to resolve the issue within 60
business days.
26 43. However, failed to respond within the allotted
LITTON
27 timeframe. They did not respond until- June when BISOGNO received
28 a letter dated June 24,2008 (attached as Exhibit *10"). In this
response, signed by DAPHNE MOSELEY of the Legal Department at

COMPLAINT TO SET ASIDE TRUSTEE'S SALE

 1 LITTON, states in the third paragraph that the servj-cing of the
v2 loan was transferred to LITTON in April 2005 and that at the
3 ti-me of the response, the Beneficial Holder was DEUTSCHE BANK
4
NATIONAL TRUST COMPANY AS TRUSTEE UNDER THE POOLING AND
SERVTCfNG AGREEMBNT DATED FEBRUARY 1, 200s-NCl- with the address
5
being 4828 Loop Central Drive, Houston, TX 77081.
6
The address referenced above is the same address as the
7
principle place of business for LITTON.
8
44. In the Substitution of Trustee, recorded in the office of
I the Sacramento County Recorder on January 22, 2A49, DEUTSCHE,
10 who at that time had no lawful beneficial interest in the
11 subject property, substitutes QUALITY in place of Ticor as
12 Trustee under the Deed of Trust. The Substitution of Trustee is
13
attached as Bxhibit 1113" and though it is dated December 10,
2008 by DENISE BAILEY, Assistant Secretary , Lj-tton Loan
14
Servicing LP, Attorney-in-fact for DEUTSCHE, it was not
Its
notarized by Mel-issa Bell until January 5, 2009. The
- 16 Substitution of Trustee still was not recorded in the office of
17
the Recorder of Sacramento County for an additi-onal seventeen
18 days on January 22, 2009. Thj-s raises the questionz If it was
19 dated on the same day as the Notrce of Default, why was in
20 neither recorded nor mailed to the COXES at the same time as the
21
Notice of Default?
22
45. An assignment of Deed of Trust, attached as Exhibit "L4",
was not recorded in the office of the Recorder of Sacramento
23
County until February 3, 2009 in which the Deed of Trust was
24
transferred to DEUTSCHE from MORTGAGE ELECTRONIC REGISTRATION
25
sysrEMS, rNc. AS NOMINEE FOR FIRST UNTTED HOME T.OANS. MERS
26 authorized agent, MARTI NORfEGA, Assj-stant Vice President,
27 signed the document which was dated Saturday December 6, 2008;
28 however, was not notartzed by Brenda McKinzy until January 21,
2009 which was forty six days later and coincidentally the day
l0

COMPLAINT TO SET ASIDE TRUSTEE'S SALE

 1 before the Recordj-ng of the Substitution of Trustee. This raises
2 the question: If the Assigrunent of Deed of Trust was dated four
3 days before the Notice of DefauJt and the Substitution of
4
Trustee, what wouid cause such a deTay in the notarization as
b
well as the recording of the document? Another important
quesLion is: Why were all three documents recorded in backwards
6
order if they were rea77y prepared jn the correct order?
I
46. Prior to the recording of the Assignment of Deed of Trust,
8
there was no notice of any lawful assignment or transfer of any
I benefieial interest in the subject propertlz to DEUTSCHE.
10

11 FIRST cjAUSE OF ACTION

12 IIi|:TEIflTIONAT MISREPRESSNTATION OF I.ACT/I'RAI'D
13 (TS,t DETfijLSE r FrRSr UNTEED BOME LOAITS)

14

15 47. Plaintiffs RICKY & DONNA COX reallege and incorporate, ds

16
though fully set forth herein paragraphs 1 through 46,
inclusive.
17
48. Plaintlffs allege intentj-onal misrepresentation, fraud and
18
deceit in the origination of the Loan for the subject property
19
wlth facts to prove the following elements:
20
1. Misrepresentations made by the defendant;
21 2. Yorgery;
22 3. Scienter;
23 4. An intent to induce Plaintiffs' reliance on the
24
misrepresentation;
25
5. Causation;
6. Justifiable reliance by Pl-aintiffs on the misrepresentation;
ffi
7. Damages.
27

28
49. Plaintiffs are informed and believe and thereon allege
ll
COMPLAINT TO SET ASIDE TRUSTEE'S SALE
 that, dt all times herein mentioned, Defendant TOM DBLKASH was
1

v2 the agent and/or employee of Defendant FIRST UNITED HOME LOANS,

3 and in doing the things herein allege was acting within the
4
course and scope of such agency and employment and with the
permission of FfRST UNITED.
5
50, On or about November L2, 2004, Defendant TOM DELKASH made
6
the following representations to Plaintiffs:
7
(a) That Plaintiffs' income to debt ratio would not be a
8
consideration in the loan process when it was obvious that the
I COXES eould not qualify for the loan based on standard
10 underwriting guidelines;
11 (b) That Plaintiffs would be getting a 30 year fixed rate
12 l-oan, not an adjustable rate loan with a prepayment penalty;
13
(c) That Plaintiffs did have adequate documentation to support
1008 financlng,'
14
(d) That DELKASH himself would not be available at the time of
-1s
v cicninn.
urYrrrrrY, hrr.i-
pve f
thp noferv he hired to come to our home with the
16
documents to be sigined, would take care of everything;
17
(e) That the loan was to be serviced by FIRST UNITED with no
18 intention of se1l1nq the loan on the secondary market at that
19 time.
20 51. The representations made by the Defendant were in fact
21
false. The true facts werel
22
(a) The income to debt rati-o is generally used as part of
the standard underwriting Guidelines;
23
(b) Plaintiffs' loan was not a 30 year fixed rate loan
24
with fixed monthly payments;
25
(c) Plaintiffs did not have adequate documenlation to
8 support such a loan.
27 (d) Defendant knew or should have known that his presence
28 at the time of the signing of the loan documents was a
necessity so as to ensure that the Plaintiffs were j-nformed
t2

COMPLAINT TO SET ASIDE TRUSTEE'S SALE

 1 of what they were signing and to answer any and all
v2 questi-ons that the COXES may have had j-n regards to the
3 terms of the loan;
4
(e) Defendant had no intention of servlcing the loan and
5
every i-ntention of selling it on the secondary market.
52. Defendant, FIRST UNITED, through its employee, TOl,l
6
DELKASH, stands in such a fiduciary relationship as would call
7
for a duty of disclosure.
8
53. Defendant FfRST UNITED deceived Plaintiffs, and as such,
I TOM DELKASH was under a duty to inform Plaintiffs of the true
10 facts.
11 5{. When DELKASH made these representations, Defendant FIRSST
't2 UNITED knew them to be false and made these representations with

13
the i-ntention to deceive and defraud the Plaintiffs and to
induce the Plaintiffs to act in reliance on these
14
representations in the manner hereafter alleged' or with the
-1s
v expectation that Plaintiffs would so act.
16
55. Plaintiffs, at the time these representations were made by
17
defendant and at the time Plaintiffs took the actions herein
18 a11eged, were igrnorant of the falsity of defendants
19 representations and believed them to be true.
20 56. In reliance on these representations' Plaintiffs were
21
induced to and did accept the loan that is the subiect of, this
22
litigation.
57. Had Plaintj-ffs knovrn the actual facts, they would not have
23
taken such action.
24
58. Plaintiffs reliance on Defendant's representations were
25
just.ified because Plaintiffs are unsophisticated in real- estate
26 matters and that there was no reason to believe that t.he
27 defendant was deceiving them.
28 59. As a proximate result of the fraudulent conduct of

13

COMPLAINT TO SET ASIDE TRUSTEE'S SALE

 Defendants as herein alleged, Plaintiffs were duped and subject
to onerous foreclosure proceedings and the possibility of loss
of their family's home of forty years, by reason of which
Plaintiffs have been damaged in the sum of $103,2"79.77.
60. The aforementioned conduct of defendant (s) was an
rntentional misrepresentation, deceit, or concealment of a
material fact known to the defendant (s) with the intention on
the part of the defendant (s) of thereby depriving Plaintiffs of
property or lega1 rights or otherwise causing injury, and was
despicable esnduet that subjected the Plaintiffs to a cruel and
10 unjust hardship in conscious disregard of Plaintiffs' rights, so
11 as to justify an award of exemplary and punitive damages.
12

13

14 SECOND CA_USE OF AEIION

15 I{EGI,IGENCE PER SE
16 (VIOLAETON OF BUS & PROF CODE 517200 et. Seq.)
17 (ell. DEE:EtgDAlrrs)
18

19 refer to paragraphs 1 through 60 of this

61. Plaintiffs
20 Complaint; and hereby incorporates the same as if fully set
21
forth hereln.
62. Plaintif fs al-l-eqe that Defendant's business practi-ces are
'l i La'l
IIJLery tr +.L\,)
a m.i al eacl thJ
tlr-LDrccr\.r Lrre o*a,"r=t
\JerrEl.clr n,.1-''l ^ j --d
crrlLr tf,"r*tarr".
Lrlcr-El-\J!Y, COnStitUte
(
}JLrLr-Lrur
23
a fraudulent business act of practice within Business and
24
Professional Conduct 517200 et.seq,
25
63. Our Cal-ifornia Appellate Court Second District in 2003 i-s
j-nstructive in enunciating a legal test for unfairness in
27 consumer actions under the Business and Professions Code 517200
28 et.seq." The courts of appeal has suggested that a practice is
unfair if it offends an estabJ-ished public policy or is i-moral,
l4

COMPLAINT TO SET ASIDE TRUSTEE'S SALE

 1 uneth5.cal, oppressive, unscrupu1oue or substantial.J.y injurious
v2 to consr:ner, and t}at unfairneEs is determined by weighing the
3 of the practi.ce against the gravity of the harn to
utility
4
consruner. (see Kunert v. Missj-on Fj-nanclal Servlces Corp. 110
5
Cal.Ap. 4th 242 and Walker v. Homes Servicing, Inc 2002, 98
eal.Ap. 4th 1158)
6
64. In the case at bar the Defendant lenders' conduct and
7
practices werc clearly unethical, oppressive, unscrupulous and
8
substantially injurious to consumers as outllned supra.
I 65. In fact, the utility of the practices did not only cause
10 grave harm to Plaintiff but also most likely caused qrave harm
11 to other consumers of these lenders, aqents, services, or
12 assigned beneficiaries .
13
66. Defendants, as Lender, Trustee, and/or assiqnees, owed
14
Plaintiffs certain specific statutory duties as set forth within
California Business & Professj-ons Code S17200 et.seq.
v
-15 67. Plaintiffs are within that class of persons to be
16
protected by said statutes.
17
68. Those duties required Defendant lenders, agents, trustees
18 or servicers DEUTSCHE, LfTTON. QUALfTY and FIRST UNfTED to
19 refrain from any practice that is unfair if it offends an
20 established public policy or is immoral, unethical, oppressive,
21
unscrupulous or substantially injurious to a consumer
(PLAINTIFFS).
22
69. Each of the Defendants breached their said statutory
23
duties because they violated the duties enumerated above in the
24
foll-owing parti-culars :
25

26 Firgt as ].ender:
27 70. Defendant DELKASH as agent/employee of FfRST UNITED, was
28 not present to answer any and all questions that the plaintiffs
may have had at the time of the signing of the loan documents.
15

COMPI-AINT TO SET ASIDE TRUSTEE'S SALE

 Instead, he had arranged for a Notary from Santa Clara County,
2 CA to come to the COXES' home wi-th the loan documents for them
3 to sign. The Notary, Robert Cleaves, was compensated $450.00
according to the Truth in Lending Statement.
7L. The COXES should have signed the Note themselves had they
so ehose to aecept an offer for an adjustable interest rate.
But, Defendant DELKASH had already been told by the COXES that
they were looking for a fixed rate loan and therefore he knew
that the COXES would not sisn such a Note so he forqed their
I sigrnatures.
10

11 Second as Trustee, Lender, Ageat and,/or Servicer:

12 12. Defendants DEUTSCHE, QUALITY, and LITTON, as previously
13
mentioned j-n this complaint, did not duly perfect the
assignment/transfer of beaeficial' interest of the subject loan
14
before the foreclosure process was initiated.
15
73. As of L?ILO/2OOB, Under the Deed of Trust recorded on
LL/3O/2OO4, RICKY and DON!{A COX, husband and wife as joint
16

17
tenants are named as "Borrowets" i FIRST UNITED EOME LOAIIS
18 {CfL#603 8682) was named as "I€Dder"; ffCOR TIELE COMPAIII was
19 named as "Trustee". Please note that this was the dav before the
20 Notice of Default was filed.
21
74- However, the Notice of Default was filed on
22
L2/1-1,/2008 by QUALfTY as the foreclosing trustee even though at
that time Ticor Title Company was the trustee under the Deed of
23
Trust.
24
?5. The Substitution of Trustee, is the document a beneficiarl'
uses to substitute a new trustee in place of the one named on
m the Deed of Trust.
27 76. The Substitutj-on of Trustee in question transferred the
28 duti-es of Trustee from Ticor Title Company to QUALITY and was
dated 12/L0/2A08 by DENISE BATLEY, Assistant Secretary, LITTON
I6

COMPLAINT TO SET ASIDE TRUSTEE'S SALE

 LOAN SBRVfCING LP, Attorney-in-fact for DEUTSCHB BANK NATIONAL
TRUST COMPANY AS TRUSTEE UNDER THE POOLING AND SERVICING
AGREEMENT DATED FEBRUARY t, 2005, GSAMP TRUST NC1, but notarized
by Melissa Bel1 on I/5/2009 and recorded on I/22/2009 in the
office of the Sacramento County Recorder.
71, ealifornia Civil Code 52932.5 states:
"Where a power to sell real property is given to a mortgagee,
or other encumbrancer, in an i-nst.rument intended to secure
the payment of money, the power is part of the security and
vests in any person who by assignment becomes entitled to
10 payment of the money secured by the instrument. Ihe porer of
11 sale nay be exercised by the assigmee if the assigmment is
12 duJ,y acknowledged and recorded. "

13
78. The Assignment of Deed of Trust which transfers the
14
beneficial interest in the subject loan to DEUTSCHE was not
recorded until 2/312009; therefore, DEUTSCHE was not the
O,U beneflciary at the time they filed and recorded the Substitution
16
of Trustee on I/22/09.
17
79. Further, The Assignment of Deed of Trust in question was
18 from MERS to DEUTSCHE and signed by MARTI NORIEGA as Assistant
19 Vice President for MERS as Nominee for FIRST UNITED HOME LOANS.
20 But, in all truth, MARTI NORIEGA is employed by LITTON LOAN
21
SERVICING LP, not MERS or FIRST UNITED-

22
80. This means that FIRST UNITED never lawfully assigned their
beneficial interest in the subject loan to anybody.
23
81. This demonstrates the maliclous intent of the defendants,
24
and each of them, to defraud the 1ega1 system as well as the
25
plaintiffs and unlawfully obtain the tltle to the property
8 located at 713 Albemarle Avenue, Rio Linda, CA 95673.
27 82. In a rush to foreclose on thousands of homes they
28

t7

COMPLAINT TO SET ASIDE TRUSTEE'S SALE

 neglected their duties by filing documents that were inaccurate
to allow the non-judicial foreclosure process to initiate, and
they did not care the damages that they caused.
83. Specifj-cal-1y, FIRST UNITED never lawfully
assigned/transferred benefi-cj-al interest in the property to
DEUTSCHE or any other entity.
84. In December 2008, LITTON, through QUALITY, not the
original t.rustee under the Deed of Trust, issued the defective
Notice of Default which named MERS as nominee for FfRST UNITED
as beneficiary under the Deed of Trust. Never before this had
10 MERS appeared on anythlng related to the subject 1oan.
11 85- As a direct and proxirnate result of the negligence per se
12 of the lender, agents, and/or servicer Defendants, and each of
13
them, the Plaintiffs have suffered foreclosure of the family
home/ monetary damages, emotional distress, and the indirect
14
costs j-n an amount currently incalculable, but according to
o'u proof at trial together with such other and further relief as
16
the court may deem reasonable and just under the ci-rcumstances.
17
86. Business and Professions Code S17200 et.seq. states:
18 "The court shall i-mpose a civil penalty for each violation of
19 this chapter. In assessj-ng the amount of the civil penalty. the
20 court shall consider any one or more of the relevant
21
circumstances presented by any of the parties to the case,
22
including, but not limited to the following: the nature and
seriousness of the misconduct, Lhe number of violations, the
23
persistence of the misconduct, the length of time over which the
24
misconduct occurred, the willfulness of the defendants'
25
misconduct, and the defendants' assets, llabilities and neL
m worth. "
27

28 TETRD CEUSE OF ACTION

l8

COMPLAINT TO SET ASIDE TRUSTEE'S SALE

 (NegJ-igence Per Se)
VIOLATION OF CA CIVIL CODE 52923.5, 52924 (52329.6 supra)
(9UAI,IT! r.oAlr SERVTCE CORP. )

5
VTOI.ATTON OE. CA CTVTL CODE 52923.5 A REQI'IRB'{ETflT PRIOR TO

6
FIIING A NO{TICE OF DEETT'&T CA CIVIL CODE 52924

87. refer to paragraphs 1 through 96 of this

PLAINTIFFS
8
Complaint, and hereby incorporates the same as if fully set
I forth herein.
10
88. The j-ntent of the legislature when passing and forming
11 California Civil Code 52923.5 was clear: Protect boneorners and
12 slow foreclosures.
13 89. fn particular, Defendants QUALITY failed to
14 "Stri-ctly Comply" with CA Civil Code 52923.5 and 52924 in
recordlng the Notice of Default on December tl-, 2008.
-1s 90. A Trustee has a duty requirement t.o fo1low 52923.5.
- 16
"strict Compliance Rules prevents the iender from relying on
17
such default as a basis for any subsequent Trustee Sale".
18
(See System fnv. Corp. v. Union Bank (1,971)2L CA3d 137) Such
19 failure to comply voids the Notice of Defaul-t.
20 91. PLAINTIFFS are within the class of persons to be protected
21 by said statute 52923.5. Once this foreclosure train start.s down
22 the hill there is littl-e to stop it and protect those who may be
23
caught by dishonesty.
24
92. CA Civil Code was passed as Senate Bill 7737 effective
September 2008 and applies to loans made for prlmary home
25
residential property between January L, 2003 and December 31,
6 2008.
27
93. PLAINTIFFS' l-oan was made November 2004. It is their
28 primary residence.

l9

COMPLAINT TO SET ASIDE TRUSTEE'S SALE

 94. The intent of the legislation is clear , and QUALITY chose
to ignore it and was negligent.
95. The Defendants', QUALITY, unfair, unlawful, and fraudulent
business practlces including, but not limited to ttre patently
fa1se and misJ'eading declaration by LfTfOlf and the errors in
fiJ.ing the l{otice of Defau3.t oa Deeeolter 11, 2008 in violatioa
of, 52923.5 and 52924.
96. QUALITY failed to attach a declaration to the faulty
Notice of Default on December 17,2008 in violation of 52923.5
and 52924.
97. When DEUTSCHE filed an Unlawful Detainer action against
't1 the Plaintiffs, they attempted to lodge a fraudulent declaration
12 as *'NOL L" (attached as Exhibit "L2"). But Plaintiffs promptly
13
caught on to this and purchased a certifi-ed copy of the Notice
of Default (attached as Exhibit \r11//) which proves that the
decl-aration was not filed properly as required by 52923.5. The
l,'u Legislature enacted this statute to slow the foreclosure process
and this attempt by the defendants demonstrates the malicious
17 j-ntent to defraud not only the Plaintiffs but the court as well.
18 98. fn a rush to put people out of their homes, Defendants,
DEUTSCHE, LITTON and QUALITY harmed Plaintiffs and harmed many
others who just gave up.
?1
99, A11 of these three have made more money by rapidly
Pushing people out of their homes, This, done aggressively with
negligence and when confronted chose to ignore and push harder
23
to eject Plaintiffs and other homeowners. This is negligence
24
with malice. They lost money when modifications were done.
100. Thie was presented to Congress as an interim report:
ffi trCurrent exXrreTy high J'eweJ,s of defanalts ane.d forecTosu.res
27 among resideatial rcrtgages z.etr>resents the iaterim report to
Congress by the Sec.retalry, of tbe Departaeat of Eousing ar'd
Urbaa Mwel-ogrcnt (EIID) prer'sraa''t to Seetion 7577 of tbe
2A

COMPI/.INT TO SET ASIDE TRUSTEE'S SALE

 Eoasiag aled EcoaaLe Recowezar Act (EERA) of 2008 (P.L. 770-
2 289) '.
3
rrhe ia &e wrXgage aazket are routiaely
pEobT@,s
referr.ed to ae a "foreclosrrre czisis" because tbe level of
defaaTts aad forec.Tosrar.es gireatly exeeed previoras peak J'eveJ,s
ia tbe gmet-vaz eg'a aad., aE a res-rgJ-t, bave dravn erytarj,eone
to tbe J.eveJ,s of ,r; ctr.ess e:qrerienced :La T-he GreaL
DgJrregsioe. o
101. Regulation errors were made and harmed many innocent
s homeowners who simply qave up. These people should be ashamed of
10 what they continue to propagate.
11 LO2. The United Trustee Association wrote:
12 "The new requirements of 52923.5 are not protected by
13
52924L non monetary protection.
"However, relying on the beneficiary or their servicer as
14
to the validity of the decl-arati-on, any authorized agent
15
should review their power of attorney or agency documents and
16
may wish to consult their legal counsel regardj-ng
17
indemnification" .
18 103. LfTTON and QUALITY knew that there was no declaration
19 signed and attached to the Notice of Default on December 11,
2008 and fraudulently signed and backdated the declaration for
21
DEUTSCHE to lodge as "NOL 1" in the Unlawfuf Detainer action

22
asai-nst the Plaintiff s.
104. Defendants, DEUTSCHE, LfTTON and QUALITY knew that
the requirements of 52923.5 and 52924 needed to be followed.
105. As a result of the actj-ons of the Defendants,
QUALITY, LITTON, and DBUTSCHE, the Plaintiffs have suffered a
loss in the Unlawful Detainer action against them and have until
27 June 9, 20L0 to ei-ther buy the home back or move out with the
28 judgrment against them.
o 106. The Plaintiffs have suffered and continue to suffer
2l

COMPLAINT TO SET ASIDE TRUSTEE'S SALE

 1 great emotional dj-stress and humility from the negligence of the
2 defendants, and the fraud to cover it up.
3

4 FOT'RTE CAUSE OF ACTION

5 SI.A}IDER OF TITIE
6 (DEIIISCEE BjANK NArrOltAI. fRUST COMPAIIY as
7 Trustee for GSAIIIP Trust 2005-bfC1)

I 107. Plaintiffs refer to paragraphs 1-105 of this

10
complaint, and hereby incorporates the same as if fully set
11
forth herein.
108. Plaintiffs are the l-awful owners of the property
12
located at 713 Albemarle Avenue, Rio Linda, CA 95673.
13
109. Plaintiffs inherited the property from RICKY COX'S
14
mother, Ruby Cox who became deceased in May 2004.
15 110. On or about November 9, 2009, Defendants, and each of
16 Them, conducted an unlawful non-judicial- foreclosure sale upon
17 713 Al-bemarle Avenue, Rio Linda, CA 95673.
18
111. The defendants, DEUTSCHE BANK NATIONAL TRUST COMPANY
19
AS TRUSTEE FOR GSAMP TRUST 2005 NC1, did not obtain the title by
proper assignment, and therefore, do not have any legal right to
20
foreclose on the COXS' home as beneficlary under the deed of
21
trust.
22
LLz. California Civil Code 52932.5 states:
23
"Where a power to sell real property is given to a mortgag€€,
24 or other encumbrancer, in an instrument intended to secure
25 the payment of money, the power is part of the security and
% vests in any person who by assigrrnent becornes entitled to
27
palrment of the money secured by the instrument. The power of
sal.e nay be exereisd, by the assignee if the assiginment is
28
duly acknorledged and recorded. "
22

COMPLAINT TO SET ASIDE TRUSTEE'S SALE

 113. The Defendants, DEUTSCHE BANK NATIONAL TRUST COMPANY
AS TRUSTEE FOR GSAl"lP TRUST 2005 NCI- knew that their interest in
the PLAINTIFFS' property was not duly assigned and perfected and
that there was at l-east a slight chance that questions would be
raised at point before the COXES would give up and walk
some
away from their family's home of over forty years.
114. That is why they suddenly registered the PLAINTIFFS'
loan on the MERS system to attempt to falsely assign thernselves
as the beneficiary under the deed of trust. This is evidenced by
the first appearance of the MERS name on the COXS' Notice of
10 Default (exhibit \\11") dated 12/I0/2008 and recorded in the
11 office of the recorder of Sacramento County on 12llT/2008, the
12 Substitution of Trustee (exhibit \\13") also dated t2/IA/2008 but
13
not notarized until 7/5/2A09 and finally recorded on 7/22/7A09,
as well as the Assignment of Deed of Trust (exhibit \\LAt/) which
14
was dated 72/6/2008 but not notarized until I/27/2009 and
o,u finally recorded on 2/3/2009.
16
115. The Assignment of Deed of Trust was signed by MARTI
17
NORIEGA, Vlce President, MERS. However, MARTI NORIEGA is/was an
18 employee of LITTON, not MERS or FIRST UNfTED.
19 116. Defendant. MARTI NORIEGAT is not an aut.horized agent
of FIRST UNITED and had no legal right to assign the Deed of
Trust to DEUTSCHE or anyone else.
22
LL7. PLAINTfFFS are the lawful owners of the real property
located at 713 Albemarle Avenue, Rio Linda, CA 95673.
23
118. Defendants, DEUTSCHE, have done a poor job as trustee
24
for GSAMP Trust 2005 NC1 by pooling l-oans that were made under
25
the poorest of underwriting standards. There are many f .l-aws in
8 most of the l-oans j-n the pool, not just the PLAINTIFFS'. Now
27 they are trying to gain possession of these properties before
28 borrowers challenge their claims, leaving them and their
investors with nothi-nq.
23

COMPLAINT TO SET ASIDE TRUSTEE'S SALE

 FIETE CAUSE OF ACTION
TIRONGE T'I FORECLOST'RE
(ALL DEEEIIDA]ITS]

119. PLAINTIFFS reallege and incorporate by reference

paragraphs 1 to 118 of this complaint.
10
L2O. PLAINTIFFS, RICKY AND DONNA COX, are the rightful
owners of the property located at 713 Albemarle Avenue, Rio
11
Linda, CA 956'13.
12
L2L. On or about I7/9/2AA9, DEFENDANTS, and each of them,
13
conducted an unlawful- non-judicial foreclosure sale upon 713
14
Albemarle Avenue, Rio Linda, CA 95673.
O1s L22. They conducted this unlawful foreclosure auction in
16 violation of the notice provisions for the Notice of Default by
17 failing to provj-de the declaration as required by California
18
Civil Code 52923.5 and 52924, and by failing Lo have proof of
19
necessary Iega1 ownership of the indebtedness j-n it.s possession,
those being the original promissory note, with endorsements and
20
the origlnal trust deed, with assi-gnments, prior to initiating
21
the non-judicial foreclosure.
22
L23. PLAINTIFFS are informed and believe that even to this
23
day, the alleged beneficiary and the rest of the DEFENDANTS do
24 not have these documents in their possession.
25 L24. Thus, they did not have the legal right to foreclose
m upon PL.AINTIFFS' property.
27
125. As a result of DEFENDANTS' actions, PLAINTIFFS have
28

24

COMPLAINT TO SET ASIDE TRUSTEE'S SALE

 1 suffered harm. Among the harm, he has suffered the slander of
2 his reputation in that a foreclosure sale has been reported
3
:ar
sYqrrrr i nqt h'i m f n r.rodi J-
e rarrnri-
!vyv! i nrr :rronni
sYvirvf aq
vs.

5
FOR PI'NITIVE DEMAEES AGAINST AI,L DEFEIIDANTS
6
L26. PLAINTIFF realleges and incorporates paragraphs 1 to
7
725 of this complaint.
I
L27. PLAINTIFPS al1ege that Defendants, and each of them,
I are guilty of malice, fraud and oppression as defined by CA
10
Civil Code S3294, and that the COXES should recover, in addition
11 to actual damages, damages to make an example of and to punish
12 all DEFENDANTS.
13 PRAYER

14 WHEREFORE, PLAINTIFFS pray judgment as follows:

15 1. For a declaration that the Notice of Trustee's Sa1e,
16
fil-ed on or abouL March 13, 2049 and attached as exhibit
ttIstt, is invali-d, unlawful, and does not provide the
17
necessary foundation for the conduct of a Trustee's Sale,
18
as described in CA Civil Code 52924 et seq.
19
2. For a declaration that the Notice of Default previously
20
recorded on this property J-s invalid, unlawful, and does
21 not provi-de the necessary foundation for a California
22 non-judicial foreclosure.
23
{ For a declaration that the Trustee's Sale conducted on or

24
about LI/9/2009 is null and void.
4. For a declaration and order restoring the title to the
25
property located at 713 Albemar1e Avenue, Rio Li-nda, CA
28
95573 to Plaintiffs RICKY AND DONNA COX i-n fee simple.
27 T
That Defendants and DOES 1-50,
DEUTSCHE, LITTON, QUALITY,
28
and their suceessors and assj-9os, be permanently enjoined

25

COMPLAINT TO SET ASIDE TRUSTEE'S SAL.E

 1 from conducting a non-judicial foreclosure sale upon the
2 property located at 713 Albemarle Avenue, Rio Linda, CA
3 95673.

4
6. For a judgment ordering Defendants DEUTSCHE, LITTON,
5
QUALfTY, FIRST UNITED, and DOES 1-50 to produce the
original of the promissory note of LL/L3/20Q4, with
6
endorsements to DEUTSCHE and/or the current beneficiarv
7
of this promissory note.
8
7. That Plaintiffs RICKY and DONNA COX be decl-ared to be the
I prevailing party.
10 8. For general and special damages.
11 9. For punitive damages agai-nst all DEFENDANTS.
12 10. For such and further relief as the Court may deem
13
proper.

14

15

16

17

18

19

20

21

22

23

24

25

m
27

28

26

COMPLAINT TO SET ASIDE TRUSTEE'S SALE