Professional Documents
Culture Documents
SBN 147715
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LAW OFFICES OF TIMOTHY L. MCCANDLESS
2 13240 Amargosa Road
Victorville, California 92392
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(760) 951-3663 Telephone
4 (909) 382-9956 Facsimile
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Attorney for Plaintiff,
6 Claudia M. Cardoza
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SUPERIOR COURT FOR THE STATE OF CALIFORNIA
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IN AND FOR COUNTY OF LOS ANGELES
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10 EDWIN LAUS,
CASE NO:
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Plaintiff, COMPLAINT FOR:
12 MONETARY DAMAGES
V. STATUTORY DAMAGES, PUNITIVE
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DAMAGES, INJUNCTIVE RELIEF AND
DECLARATORY RELIEF
14 AMERICAN BROKERS CONDUIT;
DEFAULT RESOLUTION NETWORK; 1. VIOLATION OF CALIFORNIA CIVIL
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FIDELITY NATIONAL TITLE COMPANY, CODE §2923.5;
16 and DOES 1 through 50 inclusive 2. FRAUD;
3. INTENTIONAL
17 Defendants. MISREPRESENTATION;
4. VIOLATION OF CALIFORNIA CIVIL
18 CODE §2923.6;
5. VIOLATION OF CALIFORNIA CIVIL
19 CODE §1572;
6. VIOLATION OF BUSINESS AND
20 PROFESSIONS CODE §17200.
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Plaintiff, CLAUDIA M. CARDOZA, (Hereinafter referred as “Plaintiff”) alleges herein as
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follows:
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28 1
COMPLAINT
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3 GENERAL ALLEGATIONS
4 1. Plaintiff CLAUDIA M. CARDOZA at all times relevant has been a resident of the
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County of Los Angeles, State of California and the owner of Real Property, including
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but not limited to the property at issue herein, 6101 Simpson Avenue, North
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Hollywood, California 91606. The Legal descriptions are as follows:
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9 APN: 2334-013-845
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3. Defendant THE SECOND DEFENDANT IS ON THE “NOTICE OF DEFAULT”
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28 2
COMPLAINT
THAT IS THE CASE THE COPY AND PASTE “THE NOTICE OF TRUSTEE
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9 listed on the Notice of Trustee’s Sale for the above named Real Property.
10 5. Plaintiff is ignorant of the true names and capacities of defendants sued herein as
11 DOES 1 through 50, inclusive, and therefore sues these defendants by such fictitious
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names and all persons unknown claiming any legal or equitable right, title, estate, lien,
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or interest in the property described in the complaint adverse to plaintiff’s title, or any
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cloud on Plaintiff’s title thereto. Plaintiff will amend this complaint to allege their true
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17 6. Plaintiff is informed and believes and thereon alleges that, at all times herein
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mentioned each of the defendants sued herein was the agent and employee of each of
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the remaining defendants. Plaintiff alleges that each and every defendant alleged herein
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ratified the conduct of each and every other defendant. Plaintiff further alleges that at
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all times said defendants were was acting within the purpose and scope of such agency
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23 and employment.
24 7. Plaintiff purchased the foregoing Real Property and on or about THIS DATE CANE
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BE FOUND ON THE “DEED OF TRUST” April 18, 2006 and financed his
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purchase through DEFANDANT ON THE “DEED OF TRUST”AMERICAN
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COMPLAINT
BROKERS CONDUIT by virtue of a Trust Deed and Notes securing the Loans. (See
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2 Exhibit “A”)
3 8. Plaintiffs further allege that on or about THIS DATE CAN BE FOUND ON THE
4 “NOTICE OF DEFAULT”March 4, 2009, Defendants allege that Plaintiffs became
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in default of their loan. (See Exhibit “B”) However the Declaration of Due Diligence
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that is required to be attached to the IS THE DECLARATION MISSING ALL
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TOGETHER, IF SO, LEAVE THIS WORDING THE SAME, IF NOT, CHANGE
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24 11. Plaintiff alleges that Defendants, and each of them, are engaged in and continue to
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engage in violations of California law including but, not limited to: California Civil
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Code §2924, §2923.5 and §2923.6, and unless restrained will continue to engage in
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28 4
COMPLAINT
such misconduct, and that a public benefit necessitates that Defendants be restrained
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3 I.
4 FIRST CAUSE OF ACTION
VIOLATION OF CALIFORNIA CIVIL CODE §2923.5
5 (Against all Defendants)
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7 12. Plaintiff repeats and reallege Paragraphs 1 through 11 as though fully set forth
8 herein.
9 13. Defendants cannot prove that the nonjudicial foreclosure which has commenced,
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strictly complied with the tenets of California Civil Code §2923.5 and §2924 in order
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to maintain an action for possession.
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14. The California Legislature passed Senate Bill 1137, impacting residential mortgage
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15 immediately and extends on to January 1, 2013. The Statute amends provisions of the
16 non-judicial foreclosure procedures found in California Code of Civil Procedure
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§2924, by adding requirements for meetings, due diligence, and notification of
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counseling. The primary purpose for the Statute is foreclosure procedures and imposes
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an unprecedented duty upon lenders relating to contact with borrowers.
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22 15. As of IS THE NOTICE OF DEFAULT DATE BEFORE THIS DATE, IF SO, TAKE
23 FILE TO MONA FOR FURTHER ASSISTANCE WITH THE
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COMPLAINTSeptember 6, 2008, California Civil Code §2923.5 applies to loans
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made from January 1, 2003, to December 31, 2007, and loans secured by residential
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real property that are for owner-occupied residences. For purposes of California Civil
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COMPLAINT
Code §2923.5, “owner-occupied” means that the residence is the principal residence of
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2 the borrower. Prior to filing a Notice of Default, California Civil Code §2923.5
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in order to avoid foreclosure. Plaintiff would have requested a meeting at their home
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(b) A notice of default filed pursuant to Section 2924 shall include a declaration
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from the mortgagee, beneficiary, or authorized agent that it has contacted the
19 borrower, tried with due diligence to contact the borrower as required by this
section, or the borrower has surrendered the property to the mortgagee,
20 trustee, beneficiary, or authorized agent.
The required declaration is missing/improper. THERE IS NORMALLY NEVER A
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PENALTY OF PERJURY, IN THE CASE THAT THERE IS, STOP AND ASK
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COMPLAINT
1 (c) If a mortgagee, trustee, beneficiary, or authorized agent had already filed the
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notice of default prior to the enactment of this section and did not subsequently
file a notice of rescission, then the mortgagee, trustee, beneficiary, or
3 authorized agent shall, as
part of the notice of sale filed pursuant to Section 2924f, include a declaration
4 that
either:
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(1) States that the borrower was contacted to assess the borrower's financial
6 situation and to explore options for the borrower to avoid foreclosure.
(2) Lists the efforts made, if any, to contact the borrower in the
7 event no contact was made.
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16. Furthermore California Civil Code §2923.5(g) provides that a borrower not contacted
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by a mortgagee, beneficiary, or authorized agent despite “due diligence” shall mean all
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of the following:
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(1) A mortgagee, beneficiary, or authorized agent shall first attempt to contact
a borrower by sending a first-class letter that includes the toll-free telephone
13 number made available by HUD to find a HUD-certified housing counseling
agency.
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(2) (A) After the letter has been sent, the mortgagee, beneficiary, or
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authorized agent shall attempt to contact the borrower by telephone at least
16 three times at different hours and on different days. Telephone calls shall be
made to the primary telephone number on file.
17 (B) A mortgagee, beneficiary, or authorized agent may attempt to contact
a borrower using an automated system to dial borrowers, provided that, if the
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telephone call is answered, the call is connected to a live representative of the
19 mortgagee, beneficiary, or authorized agent.
(C) A mortgagee, beneficiary, or authorized agent satisfies the telephone
20 contact requirements of this paragraph if it determines, after attempting contact
pursuant to this paragraph, that the borrower's primary telephone number and
21 secondary telephone number or numbers on file, if any, have been
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disconnected.
23 (3) If the borrower does not respond within two weeks after the telephone call
requirements of paragraph (2) have been satisfied, the mortgagee, beneficiary,
24 or authorized agent shall then send a certified letter, with return receipt
requested.
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COMPLAINT
number that will provide access to a live representative during business hours.
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The mortgagee, beneficiary, or authorized agent never complied with the provisions
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of §2923.5(g) of California Civil Code in its entirety as proscribed.
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17.Plaintiff is informed and believes and thereupon alleges that the Notice of Default was
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invalid and unenforceable due to the intentional and willful violations including but,
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not limited to failing and/or refusing to mail the Notice of Default within ten business
9 days to Plaintiffs, to post and mail the Notice of Default within one month, to properly
10 set the sale date, to publish the Notice of Sale twenty days prior to the date set for sale,
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and to record the Notice of Sale as required by California Civil Code §2924.
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18. Defendants did not fully comply with California Civil Code §2923.5 and therefore the
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Notice of Default is VOID. Thus if the property is sold in a nonjudicial foreclosure,
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the procedure is void.
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and are made in good faith. (In re Marriage of Reese & Guy, 73 Cal. App. 4th 1214, 87
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COMPLAINT
Whenever, under any law of this state or under any rule, regulation, order or
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requirement made pursuant to the law of this state, any matter is required or
2 permitted to be supported, evidenced, established, or proved by the sworn
statement, declaration, verification, certificate, oath, or affidavit, in writing of
3 the person making the same, such matter may with like force and effect be
supported, evidenced, established or proved by the unsworn statement,
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declaration, verification, or certificate, in writing of such person which recites
5 that is certified or declared by him or her to be true under penalty of
perjury, is subscribed by him or her, and (1), if executed within this state,
6 states the date and place of execution; (2) if executed at any place, within or
without this state, states the date of execution and that is so certified or
7 declared under the laws of the State of California. The certification or
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declaration must be in substantially the following form:
(a) If executed within this state:
9 “I certify (or declare) under penalty of perjury that the foregoing is true and
correct”:
10 __________________ _______________________
(Date and Place) (Signature)
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For our purposes we need not look any farther than the Notice of Default to
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find the IF THE DECLARATION IS NOT ATTACHED TO THE “NOTICE OF
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DEFAULT” LEAVE THE WORDING THE SAME, IF IT IS, REPLACE THE
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LACK OF PERSONAL KNOWLEDGE OF DECLARANT
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COMPLAINT
Notice of Default by the agent does not state if the agent has personal knowledge and
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3 2. The proper function of an affidavit is to state facts, not conclusions, and affidavits that
4 merely state conclusions rather than facts are insufficient. An affidavit must set forth
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facts and show affirmatively how the affiant obtained personal knowledge of those
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facts. The Notice of Default does not have the required agent’s personal knowledge of
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facts and if the Plaintiff borrower was affirmatively contacted in person or by
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9 telephone to assess the Plaintiff’s financial situation and explore options for the
10 Plaintiff to avoid foreclosure. Simply put, the declaration was missing all together.
11 3. Plaintiff alleges that Defendants, and each of them, willfully, wrongfully and without
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justification, and without privilege commenced an invalid foreclosure sale against the
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Plaintiff’s SUBJECT PROPERTY, thereby, slandering Plaintiff’s title thereto.
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4. Furthermore, The California Foreclosure Prevention Act, which became effective June
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16 15, 2009, delays the non-judicial foreclosure process by requiring an addition 90-day
17 delay (beyond the current three-month period) between recording a notice of default
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and a notice of stay for certain residential properties. The law applies to:
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1. Loans recorded between January 1, 2003 and January 1, 2008, inclusive,
20 2. The borrower occupies the property as his/her principal residence and occupied it
at the time the loan became delinquent;
21 3. A notice of default has been recorded on the property; and
4. The loan is secured by a first lien on residential property that is located in
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California.
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5. In this case, Plaintiff’s property was his principal place of residence and his deed was
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dated on THIS DATE CANE BE FOUND ON THE “DEED OF TRUST”April 18,
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26 2006. Therefore, the California Foreclosure Prevention Action applies and they should
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COMPLAINT
be allowed an additional 90 days (plus the three-month period already) after Notice of
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2 Default is recorded. Therefore, the Notice of Trustee’s Sale recorded on THIS DATE
6 II.
SECOND CAUSE OF ACTION
7 FOR FRAUD
(Against all Defendants)
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6. Plaintiff repeats and realleges Paragraphs 1 through 25 as though fully set forth
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herein.
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7. On or about THIS DATE CANE BE FOUND ON THE “DEED OF TRUST”àMarch
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8. Plaintiffs have recently learned that Defendants DEFENDANT ON THE “NOTICE OF
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COMPLAINT
9. The Note executed by Plaintiff was no longer a negotiable instrument because the
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2 assignment was not physically applied to the Note pursuant to the holding of Pribus v.
3 Bush, (1981) 118 Cal.App.3d 1003, 173 Cal.Rptr. 747, although there was sufficient
4 room on the back of the Note to complete the assignment, and as such the foreclosure
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of Plaintiff’s subject property was void.
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10. In addition, California Civil Code §2932.5 governs the Power of sale under an assigned
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mortgage, and provides that the power of sale can only vest in a person entitled to
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9 money payments:
17 strangers to this transaction, and have no authority to go forward with the foreclosure
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and Trustee's Sale because an assignment was not acknowledge or recorded.
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12. Uniform Commercial Code §3-301 states that the “person entitled to enforce an
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instrument” is either the holder of the instrument or a nonholder in possession of the
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instrument who has the rights of a holder. Furthermore, §3-302 states that a “holder in
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23 due course” is not a person who acquired rights of an instrument by legal process or by
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COMPLAINT
“A”). DEFANDANT ON THE “DEED OF TRUST”AMERICAN BROKERS is the
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2 Lender and only party entitled to enforce the Note and any security interest with it.
9 TRUST”AMERICAN BROKERS.
10 16. As a result, the power of sale may not be exercised by any of the Defendants since
11 there was never an acknowledged and recorded assignment pursuant to California
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Civil Code §2932.5. Furthermore, Defendants DEFENDANT ON THE “NOTICE OF
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DEFAULT”DEFAULT RESOLUTION and FIDELITY have no lawful security
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interest in the subject property.
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16 17. Plaintiffs allege that Defendants, and each of them, falsely misrepresented that the
17 Notice of Default was validly executed, that they intended to induce Plaintiffs into
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relying on the misrepresentation, that they knew at the time they made these
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representations to Plaintiffs that they were untrue, and defendants know at the time that
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they were attempting to foreclose on Plaintiffs’ Trust Deeds and notes that they had no
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right to do so.
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23 18. Plaintiffs allege that due to their reliance on Defendants representations he has been
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COMPLAINT
DEFAULT”DEFAULT RESOLUTIONS and FIDELITY intentionally and
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2 fraudulently converted Plaintiffs’ right, title and interest to his property, and any equity
3 therein. Defendants willful deceit was with intent to induce Plaintiff into believing
4 they had authority to start the foreclosure process by recording a false document. (See
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infra)
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20. Defendants’ conduct as set forth above was intentional, oppressive fraudulent and
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malicious so as to justify an award of punitive damages in an amount sufficient that
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14 However, Defendants do not have the original promissory note, nor do they provide
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any documents evidencing obligations secured thereby.
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22. Furthermore, according to California Penal Code §115 in pertinent part:
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(a) Every person who knowingly procures or offers any false or forged instrument
to be filed, registered, or recorded in any public office within this state, which
20 instrument, if genuine, might be filed, registered, or recorded under any law of this
state or of the United States, is guilty of a felony.
21 (b) Each instrument which is procured or offered to be filed, registered, or recorded
in violation of subdivision (a) shall constitute a separate violation of this section.
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COMPLAINT
Here, as stated above the Declaration of Due Diligence as required by Section
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2 2923.5 of the California Civil Code is missing and/or improper for the Notice of
9 23. Furthermore, This defendant did not adhere to the mandates laid out by congress
10 before a foreclosure can be considered duly perfected. The Notice of Default states:
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“That by reason thereof, the present beneficiary under such deed of trust, has
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executed and delivered to said agent, a written Declaration of Default and
Demand for same, and has deposited with said agent such Deed of Trust
13 and all documents evidencing obligations secured thereby, and has
declared and does hereby declare all sums secured thereby immediately due
14 and payable and has elected and does hereby elect to cause the trust property
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to be sold to satisfy the obligations secured thereby.”
16 However, Defendants do not have the Deed of Trust, nor do they provide any
17 documents evidencing obligations secured thereby. For the aforementioned reasons, the
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Notice of Default will be void as a matter of law and Defendants recorded a false
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document.
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III.
THIRD CAUSE OF ACTION
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FOR INTENTIONAL MISREPRESENTATION
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(Against all Defendants)
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24. Plaintiffs repeat and realleges Paragraphs 1 through 43 as though fully set forth herein.
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25. Plaintiffs are informed and believe that the representation on the Deed of Trust and
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COMPLAINT
Notice of Default was a false intentional representation in the following particulars:
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10 Default they knew the required Declaration of Due Diligence was false and for the
11 sole purpose of inducing reliance and confusing Plaintiffs. Defendants also recorded a
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document they knew was false.
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[C] DEFENDANT ON THE “NOTICE OF DEFAULT”DEFAULT
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RESOLUTION and FIDELITY were not entitled to the payments and authorized to
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25 IV.
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COMPLAINT
(As Against All Defendants)
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26. Plaintiffs reallege and incorporate by reference the above paragraphs 1 through 45 as
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though set forth fully herein.
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27. Defendants’ Pooling and Servicing Agreement (hereinafter “PSA”) contains a duty to
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maximize net present value to its investors and related parties.
7 28. California Civil Code §2923.6 broadens and extends this PSA duty by providing that
8 the mortgagee, beneficiary, or authorized agent offer the borrower a loan modification
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or workout plan if such a modification or plan is consistent with its contractual or other
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authority.
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29. Pursuant to California Civil Code §2923.6(a), a servicer acts in the best interest of all
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parties if it agrees to or implements a loan modification where the (1) loan is in
14 payment default, and (2) anticipated recovery under the loan modification or workout
15 plan exceeds the anticipated recovery through foreclosure on a net present value basis.
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30. Plaintiffs’ loan is presently in an uncertain state and The Joint Economic Committee of
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Congress estimated in June 2007 that the average foreclosure results in $77, 935.00 in
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costs to the homeowner, lender, local government, and neighbors.
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31. Of the $77,935.00 in foreclosure costs, the Joint Economic Committee of Congress
21 estimates that the lender will suffer $50,000.00 in costs in conducting a non-judicial
22 foreclosure on the property, maintaining, rehabilitating, insuring, and reselling the
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property to a third party. Freddie Mac places this loss higher at $58,759.00.
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32. Plaintiffs are willing, able, and ready to execute a modification of their loan on a
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reasonable basis GO TO GOOGLE, SEARCH “ZILLOW” ENTER ADRESS,
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COMPLAINT
GET THE “ZILOMATE” TAKE 10% OFF THE TOP, GOOGLE
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3 ENTER THE AMOUNT WITH THE 10% OFF THE TOP WITH A 4%
4 INTEREST RATE AND THEN CALCULATE AND FILL IN
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(a) New Loan Amount (Fair Market Value – 10%): $526,050.00
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(b) New Interest Rate: 4%
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(c) New Loan Length: 30 years
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(d) New Payment: $2,418.42
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33. The present fair market value of the property is $584,500.00.
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34. Pursuant to California Civil Code §2823.6, Plaintiffs invoke the remedies embodied in
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the aforementioned agreement and/or codes with a willingness to execute a
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14 modification of their loan. This option was not explored with the Plaintiffs.
15 35. Furthermore, according to Anthony E. Dimock v. Emerald Properties, LLC. et al. (81
16 Cal.App.4th 868, 97 Cal.Rptr.2d 255), Plaintiff was not required to rely upon equity in
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attacking the deed and therefore he was not required to meet any of the burdens
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imposed when, as a matter of equity, a party wishes to set aside a voidable deed. (See
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Little v. CFS Service Corp., supra, 188 Cal.App.3d at p. 1359.) In particular, Plaintiff
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21 is not required to tender any of the amounts due under the note.
22 36. Also in Scott v. Security Title Ins. & Guar. Co. (1937) 9 Cal.2d 606, 610-611, the court
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stated that “It is true that if the sale had been totally void their tender obligation would
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have been excused.” A “void sale” according to 12 Thompson on Real Estate, Thomas
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Editions §101.0(c)(2)(i) can be set aside even though the property passed into the
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hands of a bona fide purchaser. Furthermore, the section states that most of the cases
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COMPLAINT
in which a sale to a bona fide purchaser was set aside involved sales by trustees or
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3 37. Plaintiffs are suing for a legal remedy and therefore, there is no requirement of tender.
4 In addition the lack of power of sale rendered the sale void which would excuse
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Plaintiff’s tender obligation.
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V.
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FIFTH CAUSE OF ACTION
8 VIOLATION OF CALIFORNIA CIVIL CODE §1572
(As to All Defendants)
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10 38. Plaintiff realleges and incorporates by reference the above paragraphs 1 through 57 as
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though set forth fully herein.
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39. Plaintiff is an unsophisticated customer whose reliance upon Defendants was
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reasonable and consistent with the Congressional intent and purpose of California
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15 Civil Code §1572 enacted in 1872 and designed to assist and protect consumers
23 42. Plaintiff was ignorant of the facts which Defendants misrepresented and failed to
24 disclose and their reliance was a substantial factor in causing their harm.
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43. As a proximate result of Defendants, Plaintiff has suffered damage in an amount to be
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determined at trial.
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COMPLAINT
44. The conduct of Defendants as mentioned above was fraudulent within the meaning of
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9 45. Plaintiffs reallege and incorporate by reference the allegations of paragraphs 1 through
10 64, inclusive, as though set forth fully herein.
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46. Plaintiffs allege that Defendants’ practices are likely to mislead the general public, and
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therefore, constitute a fraudulent business act of practice within the meaning of
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Business and Professions Code §17200. The Defendants’ unfair, unlawful, and
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15 fraudulent business practices and false and misleading declaration on the Notice of
16 Default present a continuing threat to members of public in that other consumers will
17 be defrauded into assuming this void Notice of Default is in fact valid. Plaintiffs and
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other members of the general public have no other adequate remedy of law.
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47. Plaintiffs allege that the employees and/or agents of DEFENDANT ON THE
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“NOTICE OF DEFAULT”àDEFAULT RESOLUTION and FIDELITY represented
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22 that said employees and/or agents had contacted Plaintiff to assess his situation.
23 Defendants recorded a false document known as the Notice of Default with an invalid
24 Declaration. Furthermore, there was IF THE ASSIGNMENT WAS NOT DIRECTLY
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FROM THE “LENDER” ON THE “DEED OF TRUST” IT IS INVALID,
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THEREFORE LEAVE THE WORDING THE SAMEnever an assignment from
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COMPLAINT
DEFENDANT ON THE “NOTICE OF DEFAULT”AMERICAN BROKERS to
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3 law.
4 48. The harm to Plaintiffs and to members of the general public outweighs the utility of
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Defendants’ policy and practices, consequently, constitute an unlawful business act of
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practice within the meaning of Business and Professions Code §17200.
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49. As a result of the aforementioned acts, Plaintiffs have lost money or property and
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9 suffered injury in fact. Defendants received and continue to hold Plaintiffs’ money and
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rights of possession and ownership, whereupon, the Foreclosure was defective as
18 discussed above due to the VOID Notice of Default and as such the Property must be
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WHEREFORE, Plaintiffs having set forth the claims for relief against Defendants,
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respectfully pray that this Court grant the following relief against the Defendants:
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1. Actual Economic and Non-Economic Damages;
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COMPLAINT
2. For a declaration of the rights and duties of the parties relative to Plaintiff’s Home
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2 to determine the actual status and validity of the loan, Deed of Trust, and Notice of
3 Default.
4 3. For a preliminary injunction and permanent injunction enjoining all Defendants,
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their agents, assigns, and all person acting under, for, or in concert with them, from
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foreclosing on Plaintiff’s Home or from conducting a trustee’s sale or causing a trustee’s
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sale to be conducted relative to Plaintiff’s Home;
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17 following acts: (i) offering, or advertising this property for sale and (ii) attempting to
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transfer title to this property and or (iii) holding any auction therefore;
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8. For punitive damages;
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9. Costs and reasonable attorney’s fees pursuant to California Civil Code §1717,
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§1788.30(b), §1788.30(c);
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23 10. For such other and further relief as the court may deem just and proper.
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COMPLAINT
Timothy L. McCandless, Esq.,
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Attorney for Plaintiff,
2
Claudia M. Cardoza
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COMPLAINT
VERIFICATION
1
2
I, TIMOTHY L. MCCANDLESS, am an attorney at law admitted to practice before all courts of
3 the State of California and have my office in San Bernardino County, California, and am the
4 attorney for the Plaintiff in this action, that all of the officers of the Plaintiff are unable to make the
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verification because they are absent from said County and for that reason affiant makes this
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verification on the Plaintiff’s behalf; that I have read the foregoing document and know its
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contents. I am informed and believe and on that ground allege that matters stated herein are true.
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Executed September 8, 2009, at Victorville, California.
10 I declare under penalty of perjury that under the laws of the State of California that the foregoing
11 is true and correct.
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DATED: September 8, 2009
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___________________________________
14 TIMOTHY L. McCANDLESS,
15 ESQ.
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COMPLAINT