SoaiadsaH ee 12 13 14 15 16 17 18 19 20 21 2 23 24 26 27 28 CALE. BURTON 6709 LaTijera Boulevard conronmmn copy Los Angeles, CA 90045 See Telephone: (310) 787-8077 east Mi a Plaintiff in Pro Per at 1 2018 She R Car Excuine ear By: Judt Lara, Deputy SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES BC 582130 CALE. BURTON, an individual, Case Now VERIFIED COMPLAINT FOR : Plaintiff, oat 7 v. 1.’ VIOLATION OF HOMEOWNER BILL OF RIGHTS AND GREEN TREE SERVICING, a California CALIFORNIA CIVIL CODE; limited liability company; MTC FINANCIAL’ C2? VIOLATION OF THE UNRUH INC., a California corporation dba TRUSTEE CIVIL RIGHTS ACT CORPS; THE BANK OF NEW YORK 3? INTENTIONAL INFLICTION OF MELLON FKA THE BANK OF NEW YORK __) EMOTIONAL DISTRESS AS TRUSTEE FOR THE CERTIFICATE 4k HOLDERS OF THE CWABS, INC. ASSET- BACKED CERTIFICATES, SERIES 2005-13 /elo MTC FINANCIAL INC. dba TRUSTEE CORPS; BANK OF AMERICA, N.A., a nationally chartered banking association; TRUSTEE CORPS, a business entity; and DOES 1-50, inclusive; JURY TRIAL DEMANDED Defendants. COMES NOW Plaintiff, who hereby alleges as follows: PARTIES 1, Atall times relevant herein, Plaintiff CAL E. BURTON ("Plaintiff), a former COMPLAINT - 1wear anwe ene BRRRBRBRBBRPBSREIABESERE S television news broadcaster and producer, is and was a resident of Los Angeles County, California. Plaintiff is a fifty percent (50%) owner of the residential real property commonly known as 1511 W. 22st Street, Torrance, CA. 90501-4029 ("Subject Property"). Plaintiff's ownership interest is based upon his Quitclaim Deed, a true copy of which is attached hereto, ‘marked as Exhibit 1, and incorporated by reference as part of this complaint. The Subject Property is alternately referred to as being located in the City of Los Angeles on some public documents. The Subject Property has the legal description of : LOT 38 AND 39 OF TRACT NO, 4529, IN THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES, STATE OF ACLIFORNIA, AS PER MAP RECORDED IN BOOK 50 PAGES 64 TO 66 INCLUSIVE OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. Assessor's Parcel No.: 346012020 2. _Letofia Yoshida, an individual (“Yoshida”), holds the other fifty percent (50%) interest in the Subject Property. Yoshida is the borrower/trustor on a Deed of Trust (“DOT”) dated as of October 7, 2005, purportedly securing a Promissory Note in the amount of $470,000.00 in favor of America’s Wholesale Lender (the original lender). According to that DOT, the trustee is Recon Trust Company, N.A. and Mortgage Electronic Registration Systems, Ine. (“MERS”) is the beneficiary. Yoshida is not a party to this lawsuit. Exhibit 2 attached hereto is a true and correct copy of this DOT and it is incorporated by reference as part of this ‘complaint. 3. Defendant GREEN TREE SERVICING ("GREEN TREE") is a California limited liability company, which, at all times relevant to this complaint, was authorized to conduct business in the State of California, At all times relevant to this complaint, GREEN TREE conducted business in California and within the County of Los Angeles on a regular basis. According to a September 30, COMPLAINT - 2Com r anew ne v MRRP eB ee Pee Be & BRYRPRBRPBRBBPEBSSIAGTEBEHRES 2014 letter to Yoshida, GREEN TREE took over the servicing of the loan secured by the DOT. ‘According to that letter, GREEN TREE took over the servicing of the loan from Bank of America effective as of September 16, 2014, Exhibit 3 attached hereto is a true and correct copy of that letter and it is incorporated by reference as part of this complaint. 4, Defendant MTC FINANCIAL, INC. (“MITC”) is a California corporation doing business as TRUSTEE CORPS, At all times relevant to this complaint, MIC FINANCIAL was authorized to conduct business in the State of California. At all times relevant to this complaint, MTC FINANCIAL conducted business in California and within the County of Los Angeles. 5. Defendant BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK AS TRUSTEE FOR THE CERTIFICATE HOLDERS OF THE CWABS, INC. ASSET- BACKED CERTIFICATES, SERIES 2005-13 c/o MTC FINANCIAL INC. dba TRUSTEE CORPS (“BONYM”) is a New York banking corporation. At all times relevant to this complaint, BONYM conducted business in California and within the County of Los Angeles. 6. Defendant BANK OF AMERICA, N.A. (“B of A”) is a federally chartered national banking association headquartered in Charlotte, North Carolina. At all times relevant to this complaint, it was doing business in California and within the County of Los Angeles. 7. On January 28, 2013, B of A sent a three-page letter to Yoshida notifying her, inter alia, that B of A was the servicer of the mortgage loan on the Subject Property, that she signed and executed a promissory note secured by the DOT, that B of A intended to initiate foreclosure action on the Subject Property, and that the foreclosure would be conducted in the name of BONYM. Exhibit 4 attached hereto is a true copy of this letter and it is incorporated by reference as part of this complaint. 8. Defendant TRUSTEE CORPS is a business entity, dba, subsidiary, and alter ego of MTC. Atall times relevant to this complaint, it was duly licensed and doing business in the COMPLAINT - 3sau e Ow 10 ul 12 13 14 15 16 7 18 19 20 2 22 23 4 25 26 27 28 County of Los Angeles, State of California. The nature of its business is processing foreclosures, and conducting trustee sales. 9. The Defendants named herein AS “all persons unknown, claiming any legal or equitable right, ttle estate, lien or interest in the property described in this Complaint adverse to Plaintiffs title thereto and as DOES 1-50” (hereinafter sometimes referred to as "the unknown Defendants”) are unknown to Plaintiff. These unknown Defendants, and each of them, claim some right, title, estate, lien or interest in the Subject Property hereinafter described adverse to Plaintiffs’ title and their claims, and each of them, constitute a cloud on Plaintiffs’ title to the Subject Property. PlaintifS are informed and believe, and on that basis allege that each fictitiously named herein as a DOE is responsible for the events and happenings hereinafter referred to, and thereby proximately caused the injuries and damages to Plaintiffs as hereinafter alleged. Upon information and belief Does 1-50 claim to have become successors in interest to the Subject Mortgage by virtue of Yoshida’s loan having been made a part of a securitization process wherein certain residential mortgages and the promissory notes based thereon were securitized by aggregating a large number of promissory notes into a mortgage loan pool, then selling security interests in that pool of mortgages to investors by way of items called “Secondary Vehicles.” Plaintiffs will seek leave of the Court to amend this Complaint to allege the true names and capacities of said fictitiously named Defendants when ascertained. 10. Plaintiff is informed and believes, and on that basis alleges that at all times mentioned herein, the unknown Defendants, are individuals and/or business entities whose forms| are unknown and were agents, principals, employees, employers, and co-conspirators of each and} every other named or unnamed Defendant in this Complaint. Plaintiff is informed and believes, and on that basis alleges that each of such Defendants are, and at all relevant times herein, were COMPLAINT - 4ee eee ee) 10 soy 12 13 14 15 16 7 18 19 20 au 2 2B 24 25 26 27 28 acting within the scope of their authority as such agents, employees, or alter-egos with permission and consent of the remaining named and unnamed Defendants. 11. Whenever in this Complaint an act or omission of a corporation or business entity is alleged, the said allegation shall be deemed to mean and include an allegation that the corporation or business entity acted or omitted to act through its authorized officers, directors, ‘agents, servants, and/or employees, acting within the course and scope of their duties, that the act or omission was authorized by corporate managerial officers or directors, and that the act or omission was ratified by the officers and directors of the corporation or business entity. JURISDICTION AND VENUE 12. This Court has jurisdiction over the causes of actions set forth based on the common law and the statutory laws of the State of California 13. Venue is proper in the Superior Court of the State of California, County of Los ‘Angeles, Central Division pursuant to California Code of Civil Procedure 392. All parts of the injury that is subject of the actions are situated within the County of Los Angeles. DEMAND FOR JURY TRIAL 14. Plaintiff demands a jury trial on all issues presented in this complaint. GENERAL ALLEGATIONS 15. Plaintiff repeats, realleges, and incorporates by reference all preceding, paragraphs as though fully set forth herein. 16. Defendants, and their agents, officers, employees, and affiliated or associated parties have engaged in and contine to engage in a pattern of unlawful, fraudulent or unfair practices causing victims of their actions, including Plaintiff herein, to lose or be in jeopardy of losing their homes through the foreclosure process. The Court should not only be disturbed but COMPLAINT - 5wane 12 13 4 15 16 "7 18 19 20 2 2 23 4 25 26 Dy 28 also appalled by the increasing reports of the rampant, widespread, and irresponsible practices of document fraud and forgery by "foreclosure mills" and "robo-signers" (such as the named defendants in this case and their known and unknown agents). These actions have not only been alleged for years but have now been brought to light by admissions from Defendants themselves in numerous depositions and tacit admissions in statements made concerning postponing foreclosures due to questionable documents and affidavits presented in Court. The illegal foreclosures taking place represent the largest seizure of private property ever attempted by banks. ‘Through the so-called “securitization process” Notes and Deeds of Trusts were converted! from illiquid thirty (30) year mortgages to immediately liquid certificates, bonds and/or stock. ‘That process severed the authority of the holders in due course to take steps to avoid losses and the right of foreclosure. The securitization process converted holders in due course into owners ofthe right to collect contract payments without holding any legal or equitable interest in any of the securitized mortgages, stocks, bonds or other derivatives. They have not realized any loss or damages resulting from the purported default. The structure of the securitization provided that insurance and also the servicer pay the monthly cash flow to the investor in the event of a default, and there is no investor or holder in due course in Plaintiff's case to claim that the ‘mortgage is in default. Since the Defendants are not holders in due course and their foreclosure does not conform to the strict mandates of Civil Code section 2924, etc, (as well as the provisions and amendments thereto added by the enactment of the California Homeowner Bill o Rights), they do not have the legal authority or standing to foreclose. In this case, Defendants and their agents and employees are attempting the non-judicial foreclosure of the Plaintiff's home pursuant to a purported default of a loan that they do not rightfully own. Taking someone's home and leaving behind a clouded title is not something to be taken lightly. COMPLAINT - 617, Plaintiff and Yoshida purchased the Subject Property in 2003 and refinanced it in 2005, Although Yoshida was the named borrower, Plaintiff has been making significant contributions in paying the mortgage on a monthly basis since the inception of the loan. Exhibit 5 attached hereto is a true and correct copy of that Interest Only Adjustable Rate Note (“Note”) in the amount of $470,000.00. The lender was America’s Wholesale Lender. 18 OnMarch 6, 2015, Trustee Corps and MTC recorded a Notice of Default NOD") related to the Subject Property. According to the NOD, the aecount was in default as March 4, 2015 in the amount of $136,756.39. The NOD was recorded in the official records of Los Angeles County as document no, 20150245212. Exhibit 6 attached hereto is a true and correct copy of that NOD and itis incorporated by reference as part ofthis complaint. 19. According to the NOD, MTC is the original Trustee, duly appointed Substituted Trustee, or acting as Agent for the Trustee and MERS is the original beneficiary. 20. According to the NOD, to find out the amount they must pay, or to arrange payment to stop the foreclosure, or if the property is in foreclosure for any other reason, Yoshida and Plaintiff are to contact BONYM c/o MTC dba Trustee Corps. 21, Between October 7, 2005, when Yoshida signed the Note and DOT, and March 6, 2015, when Trustee Corps and MTC recorded the NOD, the Note and DOT were never legally transferred to BONYM or any other entity. 22, Plaintiff alleges that neither MTC nor Trustee Corps are duly appointed success trustees of Recon Trust Company, N.A. and there was never a Substitution of Trustee recorded in} atimely manner (or ever at all) whereby they were designated as a successor trustee. COMPLAINT - 723, Plaintiff alleges that no Substitution of Trustee has been filed whereby either MTC or Trustee Corps was substituted as Trustee of the DOT in place of Recon Trust Company, /N.A., the original Trustee pursuant to the DOT. 24, Plaintiff alleges that Amy Lewis, who signed the NOD, was never authorized to sign the NOD, did not know what she was signing, and was, infact, a Rob—Signer. She signed that NOD without reviewing the complete loan file to confirm the exact total of delinquent payments any amount was in default. She signed the NOD without confirming whether or not the mortgage, in fact, was even in default. 25, California Civil Code section 2924 and 2924c (b) (1) require that the Notice of Default contain an accurate statement that a breach of the secured obligation has occurred and specification of the nature ofthe default, Plaintiff alleges that the NOD amounts consisting of foreclosure fees and other fees and charges which Defendants have and are demanding from Plaintiff and his co-owner are erroneous and fraudulent, a fact which defendants and each of them knew and should have reasonably known. 26, Plaintiff alleges that Defendants have falsely states in their Notice of Default that Plaintiff failed to make timely mortgage payments in the amounts legally due, thereby incurring additional charges and fees. ‘These statements, allegations and insinuations are and were untrue: 27, ‘The Home Affordable Modification Program (“HAMP”) is a federal program of the United States, set up to help eligible home owners with loan modifications on their home mortgage debt. It is being set up in the context ofthe ongoing subprime mortgage crisis in the debt markets, continuing from 2008. Under HAMP any foreclosure action will be temporarily suspended during the trial period, or while borrowers are considered for alternative foreclosure prevention options. Inthe event that the HAMP or alternative foreclosure prevention options fal COMPLAINT - 8awe ene Seen ul 12 B 14 15 16 7 18 19 20 2 22 23 24 25 26 27 28 the foreclosure action may be resumed. Furthermore, if a borrower is found ineligible for HAMP, a foreclosure sale cannot be scheduled sooner than 30 days after the date of a Non- [Approved Notice so that the borrower has a chance to respond. Plaintiff alleges that he has not received a non- approval notice. 28, The California Declaration of Compliance attached to the NOD is a false document because the mortgage servicer has not exercised due diligence to contact the borrower pursuant to Califomia Civil Code section 2923.55(f) to assess the borrower's financial situation and explore options for the borrower to avoid foreclosure at least thirty (30) days prior to recording the NOD. Bryan Jones, who signed the California Declaration of Compliance attached to the NOD (who signed the document as “Collections Supervisor”), is a Robo-Signer, who had no knowledge of whether the Defendants (or any of them) complied with California Civil Code Section 2923.55(c). FIRST CAUSE OF ACTION VIOLATIONS OF THE HOMEOWNER BILL OF RIGHTS AND CALIFORNIA CIVIL CODE (AGAINST ALL DEFENDANTS) 29. Plaintiff, repeats, realleges, and incorporates by reference all preceding paragraphs as though fully set forth herein. 30. Under California law, a borrower may bring an action for injunctive relief to exjoin material violations of Cal Civil Code sections 2923.5, 2923.55, 2923.6, 2923.7, 2924.11, 2924.12 2924.17. Additionally under the revently enacted California Homeowner Bill of Rights HBR”), a mortgage servicer/bank may not record a notice of default until it complies with numerous specific conditions set forth inthe statute at Cal. Civil Code section 2924.18 ‘Additionally, the HBOR specifically restricts the bank from dual tracking practices while homeowners are attempting to obtain a loan workout program. COMPLAINT - 9Bee oad a gee tenet eerste 10 ul 12 13 14 15 16 7 18 19 20 2 23 24 25 26 27 28 31, The HBR was enacted January 1, 2013, and it grants homeowners greater protection from foreclosure and provides that the banks and loan servicers must give & homeowner meaningful opportunity to be considered for foreclosure prevention alternatives. The] HBR gives rights to borrowers who have defaulted on these loans and need help with foreclosure prevention. Here, Plaintiff defaulted on his loan and needed prevention assistance, 32, Under the HBR, after a trustee’s deed upon sale has been recorded, a mortgage servicer, mortgagee, trustee, beneficiary, or other authorized agent shall be liable to a porrower/homeowner for actual economic damages pursuant to Cal. Civil code section 3281 where such damages resulted from a material violation of Cal. Civil Code seetions 2923.5, 2923.55, 2923.6, 2923.7, 2924 (a) (5), 2924.9, 2924.10, 2924.11 2924.12, andor 2924.17. Plaintiff has already received flyers from real estate brokers at his and in his mailbox which state} that the Subject Property is a projected to be sold at a trustee’s sale on July 4, 2015: 33, _ Also, under the HBR, the Court may award a prevailing homeowner attomey’s fees and costs in an action brought to enjoin foreclosure, pursuant to these sections of the Cal. Civil Code, supra, and should the bank go ahead and foreclose the statutory minimum for damages that can be awarded to a Plaintiff is $50,000.00 or treble damages —whichever is greater. 34, In this case, Plaintiff was informed by B of A that due to his contributions over tne years tothe purchase money and the monthly mortgage payments that B of A considered him to be a “borrower” on the loan, Plaintiff earnestly worked to get some sort of meaningful foreclosure prevention assistance from Defendants. His efforts started before the HBR became Jaw, but once 2013 started and the HBR was law, Plaintiff asked for Defendants to comply with the HBR during his never -ending process of applying for loan modification. However, Defendants failed to establish a single point of contact, nor did Defendants provide one or more direct means of communication with a single point of contract. The single point of contact is supposed to be responsible for numerous obligations as set forth in the statute per Cal. Civ. Code} 2313.7. In fact, Plaintiff spoke to a different agent for Defendants every time he called them. “This is a willful and direct violation of the HBR’s single point of contact rule per Cal. Civ. Code COMPLAINT - 10ecorwaner wD 10 12 13 14 15 16 17 18 19 20 2 22 23 24 28 26 2 28 section 2923.7. 35, During the loan modification process, Defendants made multiple and unjustified requests for re-sending in documents and re-applications for loan modification. Defendants barely ran through the motions and failed to provide meaningful assistance to prevent foreclosure; it did not live up to its obligation to communicate regarding the status of the loan modification; it did not provide written notice of the appeal process for loan modification review, stnot send timely written notices of denial, if at al; it did not send timely written notice of postponement of the recording ofthe NOD while dual tracking Plaintiff's home in foreclosure B recording the NOD. These were all violations of the HBR. 36, Additionally, pursuant to Cal. Civil Code section 2923.5, subdivision (a)(1), a mortgagee, trustee, beneficiary, or authorized agent may not file a Notice of Default pursuant Civil Code section 2924 until thirty (0) days after the borrower is contacted as required by subdivision (a)(2) in order to explore options to avoid foreclosure. Ifthe borrower eannot be contacted, a notice of default may not be filed until thirty (30) days after satisfying the due diligence requirement of (g). Cal. Civil Code section 2923.5, subdivision (b) states, in pertinent part, as follows: “4 notice of default filed pursuant to section 2924 shall include a declaration from the mortgagee, beneficiary, or authorized ‘agent that it has contacted the Borrower, tried with due diligence to contact the borrower as required by this Section, or the Borrower hhas surrendered the property to the mortgagee, trustee, Beneficiary, or authorized agent.” 37, Although Defendants may claim they have complied with the procedure of the statute by filling out the NOD and checking a box, Plaintiff alleges that Defendants failed to substantively comply with the requirements of subdivision (b), which the Plaintiff believes is required by the HBR (meaning it’s not good enough to run through the motions, Defendants ust do a good job too and not lie), by not only failing to offer meaningful assistance to Plaintiff but rather also failing to include a truthful declaration. The declaration merely attests to the servicer’s shoddy efforts at contacting Plaintiff to explore alternatives to foreclosure. Infact, it COMPLAINT - 11Cow anak 10 12 13 4 15 16 7 18 19 20 a 23 24 25 26 bof 28 -vas just the opposite here; Plaintiff was the one who was making all the effort while Defendants consistently avoided offering anything meaningful by way of help. Thus, the NOD is not proper to be subject to judicial notice. 38, Lastly, the so-called “Tender” requirement that is raised by servicers and banks in this case, and willbe raised by the servicers and banks in this case. Plaintiff alleges that the “-Tendex” defense will be raised by Defendants in this case but that this rae is archaic and will not be enforced in HBR cases because requiring Plaintiff to tender the entire obligation tothe any of the Defendants based on violations of Civil Code section 2923.5 would defeat the purpose of the statute (see Das v. WMV Mortgage Corp. ND Cal. Oct. 29, 2010, No. C10-0650 PVT). Further, the California legislature did not enact such a requirement in the HBR-calling for the homeowner to tender-and the entire purpose of the HBR would be undermined by applying such ule. Lastly, itis financially impossible for Plaintiff to come up with the money to tender the full amount owed to the bank and it would be inequitable to impose it. 39, Defendants and each of them, not only failed to offer any meaningful foreclosure prevention assistance to Plaintiff or his co-owner, but clearly engaged in dual tracking ‘conduct and various other willful violations of the HBR. 40. Plaintiff alleges that Defendants committed a felony when they recorded the NOD. California Penal Code section 115 subdivisions (a) and (b) state as follows: (@ “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 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.” (b) “Each instrument which is procured or offered to be filed registered, or recorded in violation af subdivision (a) shall constitute a separate violation of this section.” 41. By their conduct, Defendants, and each of them, have violated the express statutory requirements of the California Penal Code, the California Civil Code and the HBR, and’ COMPLAINT - 12Soo Am © Fw 10 12 13 14 15 16 7 18 19 at 2 23 24 25 27 28 therefore, Defendants, and each of them, may not foreclose, and are liable to Plaintiff for general damages, special damages, attorney fees and costs. SECOND CAUSE OF ACTION FOR VIOLATION OF THE UNRUH CIVIL RIGHTS ACT (AS AGAINST BANK OF AMERICA, N.A.) 42, Plaintiff repeats, realleges, and incorporates by reference all preceding paragraphs as though fully set forth herein. 43, On July 5,2014, Plaintiff was in the process of speaking to Aimee Gold, a senior executive negotiator and customer relations representative in the office of the President of B of in Glendale, California, Inthe process of discussing the possibility of a loan modification, Aime Gold stated to the Plaintifas follows: “Bank of America is in the business of making money, not welfare, which is what you African American people want.” Aimee Gold stated further that Bank of America investors who have notes on Bank of America mortgages do not approve loan modifications requested by African Americans because they are a bad credit risk to start with, Plaintiff informed Aimee Gold that he was an African American senior citizen and in the process} of trying to recover from a debilitating stroke. Aimee Gold replied that “Black people are just no our preferred customers” and that she was not going to spend much time reviewing any loan modification requests concerning the Subject Property because it was probably # waste of his time, Aimee Gold then asked Plaintiff whether Ms. Fia Yoshida was amale or female and whether she was a Black woman or “some kind of Asian.” Aimee Gold told Plaintiff that Plaintiff's health was not Bank of America’s problem. Aimee Gold closed the conversation by stating as follows: “I do not have any of your documents requesting any loan modification, and even if did, Bank of America is not approving any loan modifications submitted by Blacks. “This is because Black People are a financial risk. So if T were you I would not count on Bank of ‘America granting you a loan modification on your mortgage. Our investors are not interested in Black loans or loan modifications being granted to Blacks.” 44, During and after the phone conversation with Aimee Gold, Plaintiff experienced a tightening feeling in his chest and became dizzy and disoriented. He had to visit his doctor 10 COMPLAINT - 13,