MICHAEL KASHAN

1711 STOCKTON HILL ROAD # 180

KINGMAN, AZ. 86401
Phone: (800) 917-7009
E-mail: legalremedy@juno.com
IN PRO SE

UNITED STATES DISTRICT COURT FOR THE

CENTRAL DISTRICT OF CALIFORNIA, EASTERN DIVISION

MICHAEL KASHAN; ) CASE NO.: CV 06-7907-ABC (SSx)

)
Plai ntiff, )
) PLAINTIFF’S OPPOSITION TO
vs. ) DEFENDANTS MOTION TO
) DISMISS FOR FAILURE TO STATE
ARG ENT MORTGAGE COMPANY, LLC; AMC ) A CLAIM FOR RELIEF;
MORTG AGE SERVICES, INC.; SPECI ALIZED ) MEMORANDUM OF POINTS AND
)
LOAN SERVICING , LLC; CA-WESTERN AUTHORITIES; PROPOSED
)
RECONVEYANCE CORP.; DEUTSCH E BANK ) ORDER; PROOF OF SERVICE
NATIONAL TRUST CO.; and DOES 1 TO 10, )
incl usi ve, )
)
Defendants. )
TO: Defendants Argent Mortgage Company, LLC (“Argent”) and AMC Mortgage
Services, Inc. (“AMC”) and their attorneys of records:
PLAINTIFF MICHEAL KASHAN (hereinafter “Plaintiff” or “Kashan”) hereby
opposes Defendants Argent and AMC’s Motion to Dismiss for Failure to State a
Claim pursuant to [F.R.C.P. 12(b)(6)], filed concurrently with Memorandum of
Points and Authorities; Proposed Judgment; and Proof of Service.
Date: January 27, 2007

_________________________
Michael Kashan
Plaintiff in Pro Se
1 711 Stockton Hill Road #180
Kingman, AZ. 86401
Phone: (800) 917-7009
Fax: (928) 436-2288
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383 TABLE OF CONTENTS

Page(s)
394
TABLE OF AUTHORITIES .…………………………………………………………………………………
405
ii
416
I. STATEMENT OF FACTS ……………………………………………………………………………………..1
427
II. MEMORANDUM OF POINTS AND AUTHORITIES ……………………………………………………..3
438 III. The Federal Rules of Civil Procedures only Require That a Complaint Contains a Short
and
449 Plain Statement of the Claim Showing a Right to Relief.
…………………………………………..3
10
45
IV. Defendant May Not Deny Allegation in the Complaint on the Basis of Information and
11
46 Belief if the Information is Within the Actual Knowledge of the Defendants.
……………………4
12
47
V. At the Motion to Dismiss Stage, the Facts Pleaded in the Complaint are Taken as True.
13
48 ……….4
14
49 VI. Facts Which Must be Taken as True in Ruling on Defendants’ Rule 12(b)(6) Motion.
…………5
15
50

16
51 1. ARGUMENTS

17
52 ……………………………………………………………………………….5

18 2. FUNDEMENTAL OF DISPUTED CAUSES OF ACTIONS

19 …………………………….8
3. Plaintiff Has Standing to Seek Prospective Injunctive Relief.
20 ……………….8
4. There is absolutely a Private Right of Action Under the FTC Act. .
21 ………..10
5. The Second through Fifth Causes of Action are not Fraud per se, But
22 Elements of Negligence
………………………………………………………...11
23 6. Kashan Can Assert RESPA Violations .………………………………………
15
24 7. Defendants Are Debt Collectors Pursuant to FDCPA …...
………………….16
25 8. Defendants Possessed Plaintiff’s Money, Therefore They are Obligated
To an Accounting ………………………………………………………….
26 ……19
9. The Claims of Extortion and Duress are clear from the face of the
27 Complaint
………………………………………………………………………21
28 10. Kashan is Entitled to Leave to Amend Complaint as a Matter of Law
In Case of Deficiencies …………………………………………………………
29 24
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I. CONCLUSION ...….
394
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48
TABLE OF AUTHORITIES
14
49 Federal Cases Page(s)
15
500 West 174 St. v. Vasquez
50
67 Misc.2d 993, 325 N.Y.S.2d 256, 258 ………………………………………………………17
16
51
Amco Chemical Corp. v. Hill
Del.Super., 318 A.2d 614, 617
17
52 ………………………………………………………………...13
18
American Nurses’ Ass’n v. State of Illinois
783 F.2d 716 (7th Cir. 1986) ...
19 …………………………………………………………………..4
Bartholomew v. Librandi
20 737 F. Supp. 22 (E.D. Pa.), aff’d 919, F.2d 113 (3 d Cir. 1990) ..…………………….
21
………...5
Balistreri
22 901 F.2d at 701 ………………………………………………………………………………...24
Bischoff v. Osceola County of Florida
23
54 kb html, 110 kb pdf, 222 F.3d 874, 878 (2d Cir. {11 th Cir.} 2000 …….
24 …………………..4
Breier v. Northern California Bowling Proprietors’ Ass’n
25 316 F.2d 787, 790 (9th Cir. 1963) …………………………………………….…………….
….24
26
Briggs v. Eden Council for Hope & Opportunity
27 (1999) 19 Cal.4th 1106, 1115 ……………………………………………………………………7
Briggs v. Spaulding
28 141 U.S. 132, 11 S.Ct. 924, 35 L.Ed. 662
……………………………………………………..13
29
Broughton c. Cutter Laboratories
30 622 F.2d 458, 460 (9th Cir. 1980) …………………………………………….
………………..25
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383 Burke v. Compania Mexicana De Aviacion S.A.

433 F.2d 1031 (9th Cir 1970) ……………………………………………………………………...10
394 California Physicians' Service v. Garrison
28 Cal.2d 790, 172 P.2d 4, 167 A.L.R. 306 …………………………………………………..19
405
Carlson v. Coca-Cola Co.
416 (9th Cir. 1973) 483 F.2d 279, 280 ……………………………………………………………..10
Claunch v. Bennett
427 Tex.Civ.App., 396 S.W.2d 719, 724 ………………………………………………………….14
Coley v. Hecker
438
206 Cal. 22 [272 P. 1045]
449 ……………………………………………………………………...21
Columbia Pictures Corp. v. DeToth (1945)
10
45 26 Cal.2d 753 [161 P.2d 217, 162 A.L.R. 747]……………………………………………12,
11 19
46
Conley v. Gibson
12
47 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)
………………………………………….3
13
48 Connecticut Casualty co. v. Coastal Savings Bank
14 997 F.2d 734 (1992) ……………………………………………………………………………
49
12
15
50 Davis v. Hearst
160 Cal. 143 [116 P. 530]
16
51 ……………………………………………………………………...23
17
52
Dioguard v. Durning
139 F.2d 774 (2d Cir. 1944) ….…………………………………………………………………
18 3
Doe
19
58 F.3d at 497 ………………………………………………………………………………….24
20

21 Federal Cases Page(s)

22
Ellis v. Ellis
748 S.W.2d at 427 ………………………………………………………………………………7
23 Evans v. United State
504 U.S. 255 (1992) ……………………………………………………………………………20
24 Foman v. Davis
25
371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) .……………………………..
……….24
26 Forsher v. Bugliosi
(1980) 26 Cal.3d 792, 803, 163 Cal.Rptr. 628, 608 p.2d 716 ………………………………..23
27 Franklin v. Murphy
28
745 F.2d 1221, 1228 n.9 (9th Cir. 1984) ………………………………………………..……..25
Friends of the Earth v. Laidlaw Enviromental Services
29 528 U.S. 167, 180-181 (1999) ….………………………………………………………...
……...9
30 Fuhrman v. California Satellite Systems
31
(1986) 179 Cal.App.3d 408, 425-28 …………………………………………………………..20

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383 General of America Ins. Co. v. Lilly

(1968) 258 Cal.App.2d 465, 470 ……………………………………………………………….9
394 Glaab v. Caudill
Fla.App. 236 So.2d 180, 182, 183, 185
405
………………………………………………………..13
416 Hall v. City of Santa Barbara
833 F.2d 1270, 1274 (9th Cir. 1986) ………………………………………………………….3,
427 8
Henderson v, Oroville-Wyandotte Irr. Dist.
438
207 Cal. 215, 277 P. 487
449 ……………………………………………………………………….19
Herron v. Smith Bros.
10
45 2 P.2d 1012, 1013; 116 Cal.App. 518 …………………………………………………………
11 14
46
Hishon v. Knig & Spalding
12
47 467 U.S. 69, 73 ……………………………………………………………………………...
…...3
13
48 Information Control Corp. v. Genesis One Computer Corp.
14 (9th Cir. 1980) 611 F.2d 781, 783
49
……………………………………………………………...23
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50 Ingraham v. Lyon
(1894) 105 Cal.254, 257 ……………………………………………………………………….23
16
51 J.J. Case v. Borak
17
52
377 U.S. 426, 84 S.Ct. 1555,12 L.Ed.2d 423 (1964)
………………………………………………..10
18 Jacobson v. Hughes Aircraft Co.
(9th Cir. 1997) 105 F.3d 1288, 1292
19
………………………………………………………….....5
20 Johnson v. Clark
7 Cal.2d 529, 536, 61 P.2d 767
21 ……………………………………………………………......19
Jones v. Jones
22
597, S.W.2d 886, 887 (Tenn. 1979)
23 …………………………………………………………….7
Kajima Engineering & Construction, Inc. v. City of Los Angeles
24 (2002) 95 Cal.App.4th 921, 929 …………………………………………………………………7
Karim-Panahi v. Los Angeles Police Dept.
25
839 F.2d 621 (9th Cir. 1988)
26 …………………………………………………………………...25
Kehr Packages, Inc. v. Fidelcor, Inc.
27 926 F.2d 1406, 1409 (3rd Cir. 1991) ……………………………………………………………5
28
Federal Cases Page(s)
29 Kessloff v. Pearson
37 Cal.2d 609, 233 R2d 899, CAL. 1951 …………………………………………………18, 19
30 Kronmuller v. West End Fire Co. No. 3
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383 123 F.R.D. 170, 172 (E.D. Pa. 1998)

…………………………………………………………...5
394 Langford v. Langford
421 S.W.2d 632, 634 (Tenn. 1967)
405
……………………………………………………………..7
416 Longsworth v. Curson
56 Cal.App. 489, 497 [206 P. 779]
427 …………………………………………………………….21
Lord v. Garland
438
27 CaL2d 840, 852-853,168 P.2d 5 ……………………………………………………….......19
449 Lujan v. Defenders of Wildlife
504, U.S. 555, 561 (1992) …………….…………………………………………………………4
10
45 Lujan v. National Wildlife Fed’n
11 497 U.S. 871, 889 (1990) ………………………………………………………………………..4
46
Maguire v. Hilbernia Savings & Loan Soc.
12
47 23 Cal.2d 719, 733-734,146 P.2d 673,151 A.L.R. 1062 ……………………………………...19
Maryland Casualty Co. v. Pacific Coal & Oil Co.
13
48 312 U.S. 270, 273 (1941) ………………………………………………………………………12
14 MacLeod v. Tribune Publishing Co.
49
(1959) 52 Cal.2d 536, 546, 343, p.2d 36
15
50 ……………………………………………………....22
Merluzzi v. Larson, 96 Nev.
16
51 409, 610 Pl.2d 739, 741 ………………………………………………………………………..13
17 Mondelli v. Howard
52
780 S.W.2d 769, 774 (Tenn. App. 1989)
18 ……………………………………………………….7
Moore v. City of Costa Mesa
19
886 F.2d 260, 262 (9th Cir. 1989)
20 ……………………………………………………………….3
Mortensen v. First Fed. Savings and Loans Ass’n
21 549 F. 2d 884, 891 (3d Cir. 1977) ………………………………………………………………
5
22
NE Hub Partners, L.P. v. CNG Transmission Corp.
23 89 kb txt, 89 kb txt, 161 kb pdf, 239 F.3d 333, 341 (3 rd Cir. 2001)
…………………………..4
24 Nelson v. Abraham,
29 Cal.2d 745, 177 P.2d 931 …………………………………………………………………..19
25
Noll v. Carlson
26 809 F.2d 1446, 1449 (9th Cir. 1987)
…………………………………………………………...25
27 Orion Tire Corp. v. Goodyear Tire & Rubber Co.
28
(9th Cir. 2001) 268 F.3d 1133, 1137
…………………………………………………………….5
29 Painter v. Hersch-berger
340 Mo. 347, 100 S.W.2d 532, 535
30 ……………………………………………………………..8
31
Pegram v. Herdrich

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383 (2000) 530 U.S. 211, 230 ……………………..,………………………………………………...5

Radeschi v. Commonwealth of Pennsylvania
394 846 F. Supp. 416, 419 (W.D. Pa. 1993) ……………………………..
………………………….5
405
Reitmeisler v. Reitmeister
416 162 F,2d 691 (2d Cir. 1947)
………………………………………………………………………..10
427
Federal Cases Page(s)
438
San Carlos
449 193, Ariz. At 200, 972 P.2d at 184 ……………………………………………………………..8
Schlosser v. Fairbanks Capital Credit Corporation
10
45 2003 U.S. App. Lexis 5488 (7th Cir. 2003) …………………………………………………..16
11 Shell petroleum Corporation v. Magnolia Pipe Line Co.
46
Tex.Civ.App., 85 S.W.2d 829, 832 ………………………………………………........………
12
47 17
Simon v. Eastern Kentucky Welfare Rights Org.
13
48 426 U.S. 26, 38, 41 (1976) .……………………………………………………………………...6
14 Sloane v. Southern California Ry. Co.
49

15 (1896) 111 Cal. 668, 680 [44 P. 320, 32 A.L.R. 193]

50

16 ……………………………………………..24
51
Steel Co. v. Citizens for a Better Enviromental
17
52 523 U.S. 83, 104 (1988) ..……………….……………………………………………………….4
Texas & Pacific Ry. v. Rigsby
18
241 US, 33, 36 S, Ct 4S2, 60 L.Ed. 874 (1916)
19 …………………………………………………….10
Taylor v. Lewis
20 132 Cal.App. 381 [22 PaCal.2d 569] …………………………………………………………21
Thomas v. First Nat. Bank of Scranton
21
101 A.2d 910, 911, 376 p 181
22 ………………………………………………………………….12
Tunstall v. Brotherhood of Locomotive Firemen & Enginemen
23 323 U.S. 210, 65 S.Ct 235, 89 L,Ed. 187 (1944)
24
…………………………………………………….10
Turicentro, S.A. v. American Airlines Inc.
25 49 kb txt, 66 kb txt, 66 kb pdf, 303 F.3d 293, 300 (3 d Cir. 2002)
…………………………….4
26 Tyndall v. Rippon
27
5 Del.Super. 458, 61 A.2d 422
………………………………………………………………...14
28 US. v. Ohio Barge Lines, Inc.
607 F.2d 624, 632 ……………………………………………………………………………...13
29 United States v. City of Redwood City
30
640 F.2d 963, 966 (9th Cir. 1981) ..…………………………………………………………...3,
5
31

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383 Wills v. Trans World Airlines, Inc.

200 F.Supp. 360 (S.D.Cal. 1961)
394 …………………………………………………………………..10
Winstead v. J.C. Penney co. Inc.
405
933 F.2d 576, 579 (7th Cir. 1991) ……………………………………………………………..14
416 Wisniewski v. Great Atlantic & Pac. Tea Co.
226 Ps.Super. 574, 323 A.2d 744, 748
427 ………………………………………………………...14
Wolters v. Venhaus
438
350 Ill.App. 322, 112 N.E.2d 747 ……………………………………………………………..14
449 Wyandotte Trans Co. v. United States
389 U.S. 191, 202, 88 S.Ct. 379, 386, 16 L.Ed.2d 407 (1967)
10
45 ………………………………..11
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Federal Statutes
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50 Page(s)
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51 15 U.S.C. § 23 …………………………………………………………………………………………...8
15 U.S.C. §78aa ………………………………………………………………………………………..10
17
52 15 U.S.C. §78(n) ……………………………………………………………………………………….10
18 28 U.S.C. § 1692(a) ……………………………………………………………………………………16
28 U.S.C. §1337 ………………………………………………………………………………………..11
19 Article III …..………………………………………………………………………………………..
…..9
20
FRCP 15(a) ..
21 …………………………………………………………………………………………...24
Federal rules of Civil procedure
22 Rule 8(b) ………………………………………………………………………………………...4
Federal rules of Civil procedure 11 …………………………………………………………………...4
23
Internal Revenue Code §201(c)(3) …………………………………………………………………...15
24 Rule 8(a)(2) ...
…………………………………………………………………………………………....5
25 Rule 12(b) ……………………………………………………………………………………………….4
26
Rule 12(b)(1) ..…………………………………………………………………………………………..4
Rule 12(b)(6) ……………………………………………………………………………………… ……
27 5
Section 5 of the Trade Act
28 …………………………………………………………………………….10
29
Section 14(a) of the Security Exchange Act of 1934
………………………………………………...10
30 Securities and Exchange Act of 1934 ……………………………………………………………………...10
Title VII of the ADEA ………………………………………………………………………………….3
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State Statutes Page(s)
405 8 Cal.Jur. § 34 …………………………………………………………………………………………24
California Civil Code Section 2924b ……………………………………………..…..2
416 California Code of Civil Procedure Section 1060. .………………………………19
Civil Code §47(b) ……………………………………………………………………….21
427
Civil Code §47(c) ..………………………………………………………………………21
438 Tenn. Code Ann. §36-4-121(b)(1)B(1991 Repl.) .…………………………………………………….7

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38 I. STATEMENT OF FACTS
39 This is an action arising out of single family home located at 5457 Maricopa Drive, Simi
40 Valley, California 93063, (hereinafter “Subject Property”). On or about July 20, 2006,
41 plaintiff purchased the Subject Property in the name of his friend and colleague Rojeh
42 Barseghian, (hereinafter “Barseghian”).
43 In the course of purchasing the Subject Property plaintiff through his agent and real estate
44 broker Pinnacle Estate Properties (“Pinnacle”) negotiated the terms, conditions and price of
45 the Subject Property. Upon fully executed contract between the seller and Kashan, for total
46 consideration of $735,000.00; plaintiff in good faith deposited the sum of $5,000.00 of his
47 own money as the earnest money with the Pinnacle Estate Properties, Escrow Division
48 (“Escrow Co.”).
49 During the course of obtaining financing, through Argent’s agent and broker, Homeowners
50 Financial Plus, Inc. (“HFP”) defendant Argent demanded that plaintiff appraises the Subject
51 Property for which plaintiff spent $500.00 of his own money (“Appraisal”). Additionally,
52 plaintiff again spent the sum of $355.00 toward the inspection of the Subject Property
(“Inspection”).
Defendant Argent in the course of underwriting used copy of the Appraisal and the
Inspection reports to make a final determination in granting credit to Barseghian. Argent
benefited from the money plaintiff spent toward Appraisal and Inspection reports. Subsequent
to final approval of the financing, Argent demanded that the sum of $2,749.05 to be paid to
Argent for various fees and charges. Plaintiff paid these fees to the Escrow Co. out of his own
money for which Argent benefited.
Subsequent to final approval of the financing, Argent demanded that the sum of $724.40 to
be paid on its behalf to other third party company. Plaintiff paid these fees out of his own
money for which Argent benefited. Moreover, in the course of obtaining financing to
purchase the Subject Property, plaintiff suffered additional expenses and fees totaling
$23,359.25 out of his own money for which Argent benefited.
 From June 15, 2006 to July 20, 2006, plaintiff suffered the total of sum of $32,687.70
toward the fees and expenses of obtaining financing toward the purchase of the Subject
Property out of his own money for which Argent and its agents and brokers benefited.
Thereafter, Argent granted Barseghian two loans in the amount of $588,000.00 and
$147,000.00 recorded in the Ventura County Recorder office as first deed of trust (“First
Mortgage Loan”) and second deed of trust (“Second Mortgage Loan”). Hereinafter, First
Mortgage Loan and Second Mortgage Loan are collectively referred to as the “Subject
Loans”.
From August 1, 2006 to November 30, 2006, for the period of 4 month, plaintiff spent
approximately $83,000.00 out of his own money renovating, remodeling and modernizing the
Subject Property for which Argent benefited.
From September 1, 2006 to December 1, 2006, plaintiff made monthly mortgage payments
to defendants Argent and AMC in the amount of $4,165.00 toward the First Mortgage Loan
and $1,489.47 toward the Second Mortgage Loan a total of $22,617.88 out of plaintiff’s
money for which Argent and AMC benefited. At an unknown date, Argent transferred,
assigned or sold the servicing of the Subject Loans to AMC. Thereafter, at an unknown date,
AMC transferred, assigned or sold the servicing of the Subject Loans to co-defendant
Specialized Loan Servicing, Inc. (hereinafter “SLS”).
Shortly thereafter, again at a period unknown to plaintiff or Barseghian, SLS re-transferred,
re-assigned or re-sold the Subject Property to Argent or AMC. The Subject Property had been
transferred, assigned or sold three times in less than 4 months from August 1, 2006, to
November 1, 2006.
On or about November 27, 2006, plaintiff received a “Notice of Default” recorded on
November 13, 2006, with Ventura County Recorder Office being instrument number
20061116-00242420-0 registered trough defendant AMC; and co-defendants Cal-Western;
and Deutsch; attempting to foreclose the Subject Property in accordance with California Civil
Code §2924b.
 Effective November 13, 2006, defendants, AMC; SLS; Cal-Western and Deutsch have filed
Notice of Default attempting to foreclose on the Subject Property without legal authority.
From October 1, 2006 to present, AMC and SLS have attempted to collect payments toward
the Subject Loans by contacting plaintiff on his unlisted cell telephone number 818-331-4594
at the rate of 7-9 times per day. Plaintiff has special interest in the Subject Property because
plaintiff has invested the sum of $133,305.58 of his own money for which defendants Argent;
AMC; and SLS have benefited. Since the benefits are acquired with the fruit of the wage
earner’s labor, the wage earner must benefit the fruit!
II. MEMORANDUM OF POINTS AND AUTHORITIES
a. The Federal Rules of Civil Procedures Only Require That a Complaint
Contains a Short and Plain Statement of the Claim Showing a Right to
Relief.
Under the Federal Rules of Civil Procedure, the complaint is only required to contain enough
information to put the other party on notice of the complaint against him, Dioguardi v. Durning,
139 F. 2d 774 (2d Cir. 1944). Here, Plaintiff, did state in his complaint causes of actions and facts
sufficient to put Defendants on notice of what Plaintiff’s claim were and the grounds on which they
rested. The complaint should not be judged on the quality of the pleading, but on the required
notice being given. The federal rules are an attempt to get away from the rigid, formal requirements
of code pleading. Under the federal rules, all that is required is that the complaint is entitled to
relief. Since the challenge to the complaint went only to the face of the complaint and not to any of
the evidence, the court should be careful not to deny a person his day in court because of the form
of his complaint, Dioguardi v. Durning, 139 F.2d 774 (2d Cir. 1944). Federal Rules of Civil
Procedure 8(g) require that all pleadings should be so construed as to do substantial justice.
Motions to dismiss are viewed with disfavor and are rarely granted thus a federal complaint should
not be dismissed unless it appears that the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69, 73. Petitioner's
complaint easily satisfies Rule 8(a)'s requirements because it gives respondent fair notice of the
basis for his claims and the grounds upon which they rest. In addition, it states claims upon which
 relief could be granted under Title VII of the ADEA. Thus, the complaint is sufficient to survive
defendants' motion to dismiss.
A complaint cannot be dismissed for failure to state a claim, Hall v. City of Santa Barbara, 833
F.2d 1270, 1274 (9th Cir. 1986); United States v. City of Redwood City, 640 F.2d 963, 966 (9th
Cir.1981) since Federal Rules of Civil Procedures, as interpreted in case law such as, Conley v.
Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Moore v. City of Costa Mesa, 886
F.2d 260, 262 (9th Cir. 1989) which allows a claim to proceed “unless it appears beyond doubt the
plaintiff can prove no set of facts upon which would entitle him to relief.
In this case, Plaintiff has many actionable causes of actions, facts and evidence which could prove
his case. The complaint, taken as a whole, could be interpreted as stating claim for those causes of
actions. In American Nurses’ Ass’n v. State of Illinois, 783 F.2d 716 (7th Cir. 1986), the court
held that even if the complaint is not drafted so as to require an interpretation that the sole basis for
relief was comparable worth. As a result, the recognized rule requires an interpretation which
would allow the action to go forward because an interpretation is available upon which relief could
be granted.
b. Defendant May Not Deny Allegation in the Complaint on the Basis of Information and Belief
if the Information is Within the Actual Knowledge of the Defendants

Pursuant to Oliver v. Swiss Club Tell, Cal Ct. App., 222 Cal. App. 2d 528 (1963), if the
Defendants have the information to answer the complaint and that information is in their
possession, their denial of the complaint on the grounds of lack of information and believe would
be consider defective. Per Oliver v. Swiss and Federal Rules of Civil Procedure 8(b), which state
that if the defendants are without knowledge or information sufficient to form a belief as to the
truth of an averment of the complaint, they shall so state and this has the effect of a denial. Federal
Rules of Civil Procedure 11 requires that the attorney sign the pleading and the signature
constitutes a certificate by him that he has read the pleading and that, to the best of his knowledge,
information and belief, there is good ground to support it. The attorney is required to act in good
faith in making such denials.
c. At the Motion to Dismiss Stage, the Facts Pleaded in the Complaint are Taken as True.
The United States Supreme Court has stated that when matters come before it “on appeal from a
Rule 12(b) motion to dismiss on the pleadings ... we must presume that the general allegations in
the complaint encompass the specific facts necessary to support those allegations.” Steel Co. v.
Citizens for a Better Environment, 523 U.S. 83, 104 (1988) (citing Lujan v. National Wildlife
Fed’n, 497 U.S. 871, 889 (1990)). See also Lujan v. Defenders of Wildlife , 504 U.S. 555, 561
(1992).
Following this directive, the Third Circuit has stated that where “defendants move to dismiss a
complaint under Rule 12(b)(1) for failure to allege subject matter jurisdiction we treat the
allegations of the complaint as true and afford the plaintiff the favorable inferences to be drawn
from the complaint.” NE Hub Partners, L.P., v. CNG Transmission Corp. 239 F.3d 333, 341 (3d
Cir. 2001); see also Turicentro, S.A. v. American Airlines Inc. 303 F.3d 293, 300 (3d Cir. 2002);
Bischoff v. Osceola County of Florida, 222 F.3d 874, 878 (2d Cir. {sic: 11th Cir.} 2000) (“[W]hen
standing becomes an issue on a motion to dismiss, general factual allegations of injury resulting
from the defendants’ conduct may be sufficient to show standing.”). Pursuant to this guidance, a
district court within this circuit responding to a 12(b) motion alleging a lack of subject matter
jurisdiction stated:
If jurisdiction is based on a federal question, the pleader claiming federal jurisdiction simply must
show that the federal claim is not frivolous. Radeschi v. Commonwealth of Pennsylvania, 846 F.
Supp. 416, 419 (W.D. Pa. 1993), citing Bartholomew v. Librandi, 737 F. Supp. 22 (E.D. Pa), aff’d,
919 F.2d 113 (3d Cir. 1990). Only if it appears to a certainty that the pleader will not be able to
assert a colorable claim of subject matter jurisdiction may the complaint be dismissed. Kronmuller
v. West End Fire Co. No. 3, 123 F.R.D. 170, 172 (E.D. Pa. 1998). See also Mortensen v. First Fed.
Savings and Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977).
d. FACTS WHICH MUST BE TAKEN AS TRUE IN RULING
ON DEFENDANTS’ RULE 12(b)(6) MOTION
A ruling that plaintiff has failed to state a claim under 12(b)(6) may be granted only in
extraordinary circumstances. United States v. City of Redwood City, 640 F.2d 963, 966 (9th Cir.
1981). Rule 8(a)(2) requires "a short and plain statement of the claim showing that the pleader is
entitled to relief".  The party bringing a 12(b)(6) motion has the burden to show that Rule 8(a)(2)
has not been met.  Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3rd Cir. 1991). The
court's role at the 12(b)(6) stage is not to evaluate the strength or weakness of claims.  Jacobson v.
Hughes Aircraft Co. (9th Cir. 1997) 105 F.3d 1288, 1292.  A Plaintiff's brief may always be used
"to clarify allegations in her complaint whose meaning is unclear."  Pegram v. Herdrich (2000) 530
U.S. 211, 230. "New" facts in Plaintiff's opposition must be considered to determine if to grant
leave to amend or to dismiss with or without prejudice. Orion Tire Corp. v. Goodyear Tire &
Rubber Co. (9th Cir. 2001) 268 F.3d 1133, 1137.
e. ARGUMENTS
Defendants in their (“Motion”) to Dismiss profoundly and erroneously rely on two theories: (i)
“Kashan lacks standing to bring these claims and/or claims are barred on their face” (page 1, line
26 of defendants’ Motion); and (ii) “None of these claims have any merit and all of them have been
brought by Kashan in bad faith and for improper purpose. In fact, even if there were any merit to
them, Kashan would not be the appropriate person to bring them” (page 2, line 3 of defendants’
Motion).
In the course of analyzing defendants’ manifestation of their fallacious and presumptuous theories,
we can indisputably conclude that defendants cannot deny any of the allegations charged against
them in the plaintiff’s complaint.
(i) For standing, a litigant must show: [1] that he personally has suffered some actual or threatened
injury as a result of the putatively illegal conduct of the Defendants . . .[2] that the injury "fairly
can be traced to the challenged action" and [3] [that the injury] "is likely to be redressed by a
favorable decision."  Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41 (1976).
Plaintiff asserts multiple discrete injuries, caused by defendants’ unethical and illegal business
practices.

First, plaintiff entered into an agreement with the sellers to purchase the Subject Property for the
cash consideration of $735,000.00. Thereafter, plaintiff invested in excess of $37,000.00 in cost
and fees of obtaining financing for the benefit of defendants. Additionally, plaintiff suffered in
excess of $83,000.00 renovating and remodeling the Subject Property. Furthermore, plaintiff made
monthly payments in excess of $5,600.00 toward the mortgage of the Subject Property. Defendants
are now attempting to foreclose the Subject Property in a public auction scheduled for March 11,
2007. Irrefutably, upon the successful foreclosure of plaintiff’s property, Kashan has and will
personally suffere actual and threatened injury in excess of $133,000.00 as a result of the putatively
illegal conducts and business practices of the defendants.
Second, plaintiff in the course of investing on the Subject Property gave defendants the benefit of
the doubts that if plaintiff makes his monthly payments in accordance with the agreement, plaintiff
will continue the quiet enjoyment of his property. Shortly after, Argent transferred, assigned or sold
the servicing of the Subject Loans to AMC at an unknown time without first notifying plaintiff or
Barseghian as judicially required by the RESPA regulations. Thereafter, AMC transferred, assigned
or sold the Subject Loans to co-defendant SLS, again without first notifying plaintiff or Barseghian.
Subsequently, SLS re-transferred, re-assigned or re-sold the Subject Loans to Argent or AMC
without first notifying plaintiff or Barseghian in accordance with RESPA regulations. In less than
four months, the Subject Loans were transferred, assigned or sold three times by defendants back
and forth.
Plaintiff without having actual knowledge of the transfer of the servicing of the Subject Loans
continued making monthly mortgage payments to Argent who either misplaced or misused the
monies received from plaintiff. Thereafter, Argent and AMC declared the loans as default and
proceeded with foreclosure process without legal authority. Indisputably, present damages in excess
of $133,000.00 and future injuries of plaintiff can be traced to unethical and deceptive conducts and
business practices of Argent, AMC and SLS individually and collectively.
And finally, plaintiff is confident that based on the information and evidence his injuries would
likely be redressed by a favorable decision.
(ii) Defendants claim that “if there were any claim to the action, Kashan would not the
appropriate person to bring them”. It is well established that filing a lawsuit is an exercise of a
party's constitutional right of petition. (Briggs v. Eden Council for Hope & Opportunity (1999) 19
Cal.4th 1106, 1115; Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95
Cal.App.4th 921, 929.)
 If this action was entitled Barseghian vs. Argent and AMC, would that make the defendants
perform their obligations any better? Would they have refuted the allegations in the Kashan’s
complaint? It would not have been difficult for plaintiff to replace Barseghian’s name instead of
Kashan when plaintiff prepared and drafted his complaint. The reality still remains the same;
Defendants have violated certain state, and federal laws in association with the Subject Property.
The fact that no title or other legal interest has been conveyed to the non-owner spouse is irrelevant.
For the purposes of property division in a divorce, “[i]n the final analysis, the status of property
depends not on the state of its record title, but on the conduct of the parties.” Mondelli v. Howard,
780 S.W.2d 769, 774 (Tenn. App. 1989) (citing Jones v. Jones, 597 S.W.2d 886, 887 (Tenn. 1979)
& Langford v. Langford, 421 S.W.2d 632, 634 (Tenn. 1967)). Now, Kashan is not proposing to be
spouse of Barseghian, just friend and colleague who has contributed in excess of $133,000.00 of his
own money toward the Subject Property for which defendants exceptionally benefited.
The Tennessee Appellate Court in Ellis v. Ellis, 748 S.W.2d at 427; Tenn. Code Ann. § 36-4-
121(b)(1)(B)(1991 Repl.) stated: “Under our state law, equity in separate property that accrues
during the marriage is subject to division as marital property if the non-owner spouse makes a
substantial contribution to the increase in the value. The two prerequisites which must be met
before a non-owner spouse may claim an interest in the increased equity on separate property are
clearly set out in the statute. First, the increase in equity must have occurred during the marriage.
Second, the non-owner spouse must have made a substantial contribution to the increase”. Plaintiff
initiated the purchasing of the Subject Property. Plaintiff used his own money to pay for fees and
expenses associated with the Subject Property. Plaintiff spent his money and his time renovating
and remodeling the property. All of these substantial contributions have been done before, during
and after Barseghian obtained the Subject Loans from defendant, Argent. A property right “vests”
when every event has occurred which needs to occur to make the implementation of the right a
certainty. See Hall, 149 Ariz. at 138, 717 P.2d at 442. A vested property right is a right which is
“actually assertable as a legal cause of action or defense or is so substantially relied upon that
retroactive divestiture would be manifestly unjust.” San Carlos, 193 Ariz. at 200, 972 P.2d at 184.
Whether Kashan or Barseghian is the owner of the Subject Property is not material. Kashan brought
this action because Kashan is the individual who contributed all the monies as enumerated
hereinabove in respect to the Subject Property. If arguably Kashan is not the property owner,
Kashan has indisputably vested interest in the Subject Property for which defendants have
substantially benefited and for which they are attempting to foreclose without probable cause and
without legal authority. It is not unfeasible for Barseghian to retain a licensed attorney to represent
Barseghian on his behalf and all others similarly situated pursuant to 15 U.S.C. §23 of Federal
Rules of Civil Procedure against defendants and co-defendants. Kashan brings this action on his
own behalf because Kashan suffered in excess of $133,000.00 of his money and therefore, plaintiff
has vested interest in the Subject Property. A future interest not dependant on an uncertain period
or event, or a fixed present right of future enjoyment; when a person has a right to immediate
possession on determination of preceding or particular estate. One in which there is a present fixed
right, either of present enjoyment or of future enjoyment. Painter v. Hersch-berger, 340 Mo. 347,
100 S.W.2d 532, 535 is said to have a vested interest.
f. FUNDAMENTAL OF DISPUTED CAUSES OF ACTIONS
III. Plaintiff Has Standing to Seek Prospective Injunctive Relief.
Defendants in their Motion page 3, line 10, state: “The First Claim for relief is entitled
“Declaratory and Injunctive Relief.” Quite simply, there is no cause of action for injunctive
relief.”
In Friends of the Earth v. Laidlaw Environmental Services, 528 U.S. 167, 180-181 (1999), the
Supreme Court affirmed a litigant’s entitlement to injunctive relief, stating:
to satisfy Article III’s standing requirements, a plaintiff must show (1) it has suffered an “injury
in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3)
it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable
decision. This is identical with finding at Simon v. Eastern, supra; plaintiff extensively argued
the three elements for standing which entitles plaintiff to injunctive relief.
Focusing on the “declaratory relief” portion of the claim, as the defendants characterizes in their
Motion, page 3, line 14; “generally, an action in declaratory relief will not lie to determine an
issue which is already the subject of an existing claim.” It is not cleared what the contention of
defendants are by fallaciously addressing these issues. Are defendants referring to plaintiff’s
First Cause of Action, “Declaratory and Injunctive Relief”; or are they referring to Fifteenth
Causes of Action, “Declaratory Relief and Accounting”; or are they referring to another
pending suit filed by plaintiff? Defendants suggest that the declaratory relief action should be
dismissed as premature and duplicative. And to support their vague arguments defendants cite
General of America Ins. Co. v. Lilly, (1968) 258 Cal.App.2d 465, 470, (defendant’s Motion,
page 3, line 21). In that case, the trial court properly exercised its discretion to deny declaratory
relief to an insurance carrier where the coverage issue to be decided -- permissive use of a
motor vehicle -- was identical to an issue that would necessarily be resolved in a separate
lawsuit filed by the third party claimant. (Id. at pp. 470-471.) Here, by contrast, the issues
raised by plaintiff requiring an accounting of the monthly payments made to Argent toward the
Subject Loans along with other violations committed by defendants. These issues will not be
resolved in another forum, because there is no other suit pending in any other courts. A
declaratory relief action is appropriate in the circumstances of this case; plaintiff has an absolute
right to seek judicial resolution of the dispute. Defendants contend a “The declaratory relief
statute should not be used for the purpose of anticipating and determining issues which can be
determined in the main action” (see defendants’ Motion page 3, line 17). Defendants must be
either confused or wrongfully portray this plaintiff with another one.
IV. T h e r e i s A b s o l u t e l y a P r i v a t e R i g h t o f A c t i o n U n d er t h e F T C A c t .
Page 3, line 28, of the Motion, defendants contend: “The fundamental flaw with these
claims is that there in no private right of action under the FTC Act.” And to support their
representation they cite Carlson v. Coca-Cola Co. (9th Cir. 1973) 483 F.2d 279, 280. In that
case Justice SOLOMON, Senior District Judge of the high court states as follows:
'"The Coca-Cola Company conducted a national sales-promotion contest, Big Name
Bingo, in which each contestant received a game card with ten questions. The answers
were printed on the inside of soft drink cartons and bottle caps. Coca-Cola promised each
winner $100. The Official Rules said that one answer might be correct for more than one
question and that for some of the questions none of the answers provided were correct.
The Rules did not mention that any question had or required more than one correct
answer. Appellants submitted entries with one correct answer to each question. At the end
of the contest, Coca-Cola announced that some questions required more than one correct
answer and Coca-Cola refused to pay appellants the $100 prizes. Appellants allege that
about 1,500,000 people entered the contest and that almost all of them gave one, and only
one, correct answer to each question.
Appellants do not seek to expand the coverage of Section 5. The sole issue
here is
whether aggrieved parties can redress violations of this section even though it does not
include an express private right of action. Numerous cases permit a private right of action
in similar situations. See J.1. Case v. Borak, 377 U.S. 426, 84 S.Ct. 1555,12 L.Ed.2d 423
(1964)
[Securities and Exchange Act of 1934]- Tunstall v. Brotherhood of Locomotive Firemen
&
Enginemen, 323 U.S. 210, 65 S.Ct 235, 89 L,Ed. 187 (1944J [Railway Labor Act]; Texas
&
Pacific Ry. v. Rigsby, 241 US, 33, 36 S, Ct 4S2, 60 L.Ed. 874 (1916) [Safety Appliance
Act];
Burke v. Compania Mexicana De Aviacion S.A., 433 F.2d 1031 (9th Cir 1970) [Railway
Labor Act]- Reitmeisler v. Reitmeister, 162 F,2d 691 (2d Cir. 1947) [Federal
Communications Act]; Wills v. Trans World Airlines, Inc., 200 F.Supp. 360 (S.D.Cal.
1961) [Civil Aeronautics Act].
In J. I. Case v. Borak; supra, the Supreme Court allowed an aggrieved investor to
recover damages resulting from a false proxy statement that violated Section 14(a) of the
Securities and Exchange Act of 1934; 15 U.S.C. § 78n(a) [the Securities Act]. The
Securities
Act authorizes the Securities and Exchange Commission (SEC) to enforce Section 14(a),
but it does not expressly provide a private right of action for an investor. Because the SEC
has been unable to enforce Section 14(a) effectively, the Supreme Court found that
private actions are necessary "to make effective the congressional purpose [of protecting
investors]." 377 U.S. at 433,843 S.Ct. at 1560. Section 5 of the Trade Act is intended to
protect the public from "unfair or deceptive acts or practices in commerce." The Trade Act
expressly grants authority to the Federal Trade Commission (the FTC) to enforce Section
5, but it does not mention private actions by aggrieved consumers.
The FTC has been ineffective in its role as a consumer protection agency. The
prohibitions against unfair and deceptive trade practices have been flaunted since their
enactment in 1938. Report of the American Bar Association Commission on the Federal
Trade Commission, Sept. 15, 1959. The sole enforcement weapon available to the FTC to
police most consumer frauds is the cease-and-desist order, which has proved inadequate.
“A cease-and-desist order is not enough to create the kind of deterrent that one needs so
that… business will police itself, because no agency, State or Federal, can police
violations of the law.
What you depend on is for the community to police itself. But in order for a community to
police itself, you have to have effective sanctions …." S.Rep. No.91 -1124, 91st Cong., 2d
Sess. 4-5 (emphasis added).
 Critics have also complained that the FTC is undermanned and that it has befriended
business at the expense of the consumer. Historically, the SEC has been more aggressive
and effective than the FTC in pursuing its congressional mandate. Nevertheless, the Court
in J. I Case v. Borak, supra, found persuasive the practical limitations resulting from a
limited SEC staff which was confronted with the task of examining 2,000 proxy statements
a year. A private right of action was implied because the SEC could not, within its
personnel limitations, protect investors against the fraud from which Congress intended to
protect them.
"The FTC's ability to protect consumers is even more severely circumscribed. In 1972, the
FTC received 9,000 "applications for a complaint" each month. At that time there were
only 27 attorneys in the Commission's Division of Food and Drug Advertising. With this
disparity between need and resources, only a few consumer complaints could be
considered and even fewer complaints issued. In fiscal 1971, the Commission's Division
of Food and Drug Advertising issued only twelve complaints under Section 5 of the Trade
Act. Four of these cases were contested and eight were settled by consent decrees,
I do not believe the protection of Section 5 can be a reality without private actions, such
as appellants, brought under 28 U.S. C. § 1337 without regard to jurisdictional amount.
Coca-Cola contends that J. I Case v. Borak, supra, is not applicable here because the
Trade Act does not have a jurisdictional provision like the one in the Securities Act,
which gives the district courts jurisdiction over all actions "brought to enforce any liability
or duty” created by the Act. 15 U.S.C. § 78aa, The Borak decision does not rest on that
provision. The Supreme Court interpreted Borak to mean that a private party can
maintain an action if his interest falls "within the class that [a] statute [is] intended to
protect, and [if] the harm that occurred [is] of the type that the statute [is] intended to
forestall." Wyandotte Trans. Co. v. United States, 389 U.S. 191, 202, 88 S.Ct. 379, 386,
19 L.Ed.2d 407 (1967).
V. The Second through Fifth Causes of Action are not Fraud per se, But Elements of Negligence

Defendants are categorizing the Second through Fifth Causes of Action as Fraud.
Although defendants are not again denying the allegations in the complaint, they are attacking
them for improper purpose. Even though the language of the causes of actions 2-5 are clear on
their face, they are not in the context of a fraud rather negligence.
The Subject Loans according to defendants “appear to have gone into default effective
November 13, 2006 as a Notice of Default was recorded against the Subject Property on that
date and AMC commenced collection activities on one or both of these loans on or before
October 1, 2006.” (Page 1, line 20 of Motion) If the Subject Loans went into default on
November 13, 2006, why was defendant AMC commencing collection on or before October 1,
2006? Shouldn’t the collection effort have commenced after the alleged default? Since
defendant Argent transferred, assigned or sold the Subject Loans so many times, they are not
clear about their own records. Plaintiff brought this action because defendants initiated illegal
foreclosure proceeding without probable cause and without legal authority. Plaintiff contends
that he made monthly payments to Argent. Argent is not disputing that contention instead
Argent claims it doesn’t know where these payments are. Defendants’ only and only outcry is
the fact that Kashan is not the “borrower” in these transactions. Defendants should not be given
the easy way out of their responsibilities because Kashan is not the borrower in these
transactions. The challenges that defendants cannot defeat is reality that they misplaced or
misuse the payments that Kashan made to defendants. These issues cannot simply be
determined by a frivolous Motion to Dismiss. Filing a Motion to Dismiss legitimate and
justifiable claims is not a proper method to get out of judicial obligations. the Supreme Court in
Columbia Pictures Corp. v. DeToth (1945) 26 Cal.2d 753 [161 P.2d 217, 162 A.L.R. 747],
stated at page 762: "Where, therefore, a case is properly before the trial court, under a
complaint which is legally sufficient to set forth facts and circumstances showing that a
declaratory adjudication is entirely appropriate, the trial court may not properly refuse to
assume jurisdiction; and if it does enter a dismissal, it will be directed by an appellate tribunal
to entertain the action. Declaratory relief must be granted when the facts justifying that course
are sufficiently alleged." Furthermore, The Supreme Court test for whether a case or
controversy exists in a declaratory judgment action is “[W]hether the facts alleged, under all
circumstances, show that there is a substantial controversy between parties having adverse legal
interests, of sufficient immediacy and reality to warrant the issuance of a declaratory
judgment…. The difference between an abstract question and a ‘case or controversy’ is
necessarily one of degree and must be determined by a review of the facts presented in each
case.” Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941). The Second
Circuit has adopted the similar rule. See Connecticut Casualty Co. c. Coastal Savings Bank, 977
F.2d 734 (1992).
From August 1, 2006 to November 1, 2006, in less than four month, Defendants assigned,
transferred and sold the Subject loans so many times that they don’t even know who, how,
where and when these payments got misplaced.
Negligence is failure to observe, for protection of interests of another person, that degree of
care, protection, and vigilance which circumstance justly demand, whereby such other person
suffers injury. Thomas v. First Nat. Bank of Scranton, 101 A.2d 910, 911, 376 p 181.
Negligence is the omission to do something which is reasonable man, guided by those ordinary
considerations which ordinarily regulate human affairs, would do, or the doing of something
which a reasonable and prudent man would not do. Negligence is the failure to use such care as
a reasonably prudent and careful person would use under similar circumstance or failure to do
what a person of ordinary prudence would have done under similar circumstances. Amco
Chemical Corp. v. Hill, Del.Super., 318 A.2d 614, 617.
Ordinary negligence is defined as the omission of that care which a person of common
prudence usually takes of his own concerns. Failure to exercise care of an ordinarily prudent
person in same situation. A want of that care and prudence that the great majority of mankind
exercises under the same or similar circumstances. Briggs v. Spaulding, 141 U.S. 132, 11 S.Ct.
924, 35 L.Ed. 662. Conduct which falls below the standard established by law for the protection
of others against unreasonable risk of harm; it is a departure from the conduct expectable of a
reasonably prudent person under like circumstances US. v. Ohio Barge Lines, Inc., 607 F.2d
624, 632. One must conform to legal standard of reasonable conduct in light of apparent risk.
Merluzzi v. Larson, 96 Nev. 409, 610 Pl.2d 739, 741.
Gross negligence is the intentional failure to perform a manifest in reckless disregard of the
consequences as affecting the life or property of another. It is materially more want of care
than constitutes simple inadvertence. It is an act or omission respecting legal duty of an
aggravated character as distinguished from a mere failure to exercise ordinary care. It amounts
to indifference to present legal duty ad to utter forgetfulness of legal obligations so far as other
persons may be affected. It is a heedless and palpable violation of legal duty respecting the
rights of others. The element of culpability which characterized all negligence is in gross
negligence magnified to a high degree as compared with that present in ordinary negligence.
Gross negligence is a manifestly smaller amount of watchfulness and circumspection than the
circumstances require of a person of ordinary prudence. Gross negligence consists of conscious
and voluntary act or omission which is likely to result in grave injury when in face of clear and
present danger of which alleged tortfeasor is aware. Glaab v. Caudill, Fla.App. 236 So.2d 180,
182, 183, 185.
That entire want of care which would raise belief that act or omission complaint of was result of
conscious indifference to rights and welfare of persons affected by it. Indifference to present
legal duty and utter forgetfulness of legal obligations, so far as other persons may be affected,
and a manifestly smaller amount of watchfulness and circumstances require of a Peron of
ordinary prudence. Claunch v. Bennett, Tex.Civ.App., 396 S.W.2d 719, 724.
Willful, wanton or reckless negligence, these terms are customarily treated as meaning
essentially the same thing. The usual meaning assigned to “willful,” “wanton”, or “reckless,”
according to taste as to the word used, is that the actor has intentionally done an act of an
unreasonable character in disregard of a risk probable that harm would follow. It usually is
accompanied by a conscious indifference to the consequences, amounting almost to willingness
that they shall follow; and it has been said that this is indispensable. See Tyndall v. Rippon, 5
Del.Super. 458, 61 A.2d 422; Wolters v. Venhaus, 350 Ill.App. 322, 112 N.E.2d 747.
Proximate cause is that in a natural and continuous sequence, unbroken by any efficient
intervening cause, produces injury, and without which the result would not have occurred.
Wisniewski v. Great Atlantic & Pac. Tea Co., 226 Ps.Super. 574, 323 A.2d 744, 748.; Herron
v. Smith Bros., 2 P.2d 1012, 1013; 116 Cal.App. 518. Actual cause, is the “but for” test. Test
used in determining tort liability by applying the causative criterion as to whether the plaintiff
would not have suffered the worn “but for the action of defendant’.
VI. Kashan Can Assert RESPA Violations
Defendants on page 5, line 10 of their Motion, raise three issues in respect to RESPA; in
part they claim:
1. RESPA does not apply because neither of the Subject Loans were federally related loans;
2. Kashan purchased the Subject Property as part of his business of real estate investment and
resale;
3. And Kashan is not the borrower in these transactions.
This is probably not a case of the first impression, but if it is, then plaintiff is entitled to a legal
interpretation of certain statutes in respect to RESPA regulations.
First, according to its website AMC has been operating as a division of Ameriquest Mortgage
Company for over 20 years. Ameriquest is one of the United States's leading wholesale sub-prime
lenders. It is a private company, owned by Roland Arnall, founded in 1979, in Orange County,
California, as a bank, Long Beach Savings & Loan. The bank moved to Orange County in 1991
and was converted to a pure mortgage lender in 1994, renamed Long Beach Mortgage Co. In 1997,
the wholesale part of the business (funding loans made by independent brokers) was spun off as a
publicly traded company, called Long Beach Mortgage; the retail part of the business was renamed
Ameriquest Capital and remained private. (In 1999, Washington Mutual purchased Long Beach
Mortgage.) Ameriquest is best known for its subsidiary, Ameriquest Mortgage Company, which
makes direct loans to customers. Its Argent Mortgage Company affiliate works with independent
brokers. It has offices nationwide, and more than 12,000 employees. Other subsidiaries are
Ameriquest Mortgage Securities, Long Beach Acceptance Corp., and Town & Country Credit.
Ameriquest and its subsidiaries, Argent and AMC are banks that are governed by federal regulatory
agencies for which they use federal funds and safety and protection of federal deposit insurace.
Defendant, Argent, in its website claims to comply with all Federal Laws and Regulations, which
governs the making of mortgage loans, including but not limited to:
4. The Equal Credit Opportunity Act (“ECOA”);
5. The Truth in Lending Act (“TILA”);
6. Real Estate Settlement Procedure Act (“RESPA);
7. Fair Credit Reporting Act (“FCRA”).
Since Defendants are governed by the RESPA regulations then the requirements pursuant to 12
U.S.C. §2605 are mandatory not discretionary. Since the claim of the defendants that the Subject
Loans are not “federally related loans” is a hoax!
Second, pursuant to Internal Revenue Code §501(c)(3) for the purpose of taxation, a commercial
property is defined as buildings and structures used as commercial ventures, which building and
structures contain four or more separate living quarters intended for human habitation. The Subject
Property is only a single family resident with only one separate living quarter; therefore, it would
not fall under definition of a commercial property as proposed by the defendants. As a result, this
ruse presumption is short of factual reasoning and thus is moot.
Third, relying on Ellis v. Ellis, supra, defendant is vested interest in the Subject Property. When
Kashan paid fees in excess of $2,700.00 in respect to Argent’s application process, Argent did not
claim Kashan was not a borrower. Thereafter, plaintiff continued his contribution toward the
purchase of the Subject Property; Argent again did not raise the issue that plaintiff was not the
borrower. In fact, Argent through its agent and affiliate broker, HFP, accepted Kashan participation
in purchasing the property. At this stage of litigation, defendants cannot use ignorance as a defense.
Therefore, the term “borrower” does not apply to plaintiff and thus is moot.
VII. Defendants Are debt collectors pursuant to FDCPA
Again in their cynical and derisive conclusions defendants rely on three fatally speculative
theories that:
1. Argent as the lender and AMC as Loan Servicing agent would not have liability for seeking
to collect on their own debt;
2. The Subject Loans do not appear to have been “primarily for personal, family, or household
purposes”; and
3. Plaintiff needs to have been a “consumer” to have standing to assert any violation of
FDCPA.
First, the term "debt collector" means any person who uses any instrumentality of interstate
commerce or the mails in any business the principal purpose of which is the collection of any
debts, or who regularly collects or attempts to collect, directly, or indirectly, debts owed or due
or asserted to be owed or due another. (15USC1692a) Defendant, Argent as the original lender
transferred, assigned or sold the Subject Loans to AMC without first notifying plaintiff or
Barseghian. Thereafter, AMC transferred, assigned, or sold the Subject Loans to SLS at an
unknown date. Mysteriously SLS re-transferred, re-assigned or re-sold the Subject Loans to
Argent or AMC.
Lender who purchased a debt identified as in default, and treated it as such, although it was not
in default, is a debt collector – Schlosser v. Fairbanks Capital Credit Corporation, 2003 U.S.
App. Lexis 5488 (7th Cir. 2003).
Argent; AMC; and SLS based on their respectful positions are in relation of vicarious
liability to one another since the imposition of liability on one person for the actionable
conduct of another, based solely on a relationship between the two persons. Under the
doctrine of vicarious liability defendants owe duties to plaintiff undeniably. If
hypothetically, Jack of ABC Corporation hands Jill, his secretary, the bullet and the gun
that kills George, can we blame the bullet as the cause of the killing or Jack and Jill for
pulling the trigger and plotting the murder? This is the same where Argent gives its co-
conspirator, AMC and SLS the authority to collect a debt on its behalf. Therefore, in
accordance with Respondeat Superior Act, Argent is liable to plaintiff for the conducts of
AMC and SLS during the collection of its debts. Under this doctrine master is responsible
for want of care on servant’s part toward those to whom master owes duty to use care,
provided failure of servant to use such care occurred in course of his employment. Shell
petroleum Corporation v. Magnolia Pipe Line Co., Tex.Civ.App., 85 S.W.2d 829, 832.
Defendant, AMC and SLS are debt collectors, because they fall under definition since they
use the intrastate and interstate by means of telephone and mail to collect the alleged debts
on behalf of their agent, Argent. In their daily operations, defendants, AMC and SLS have
a “collection department” that regularly contacts homeowners who are presumably late or
in default of their mortgage loans. When AMC or SLS’s representatives on regular and
daily bases contacted plaintiff on his unlisted cell phone, they would advise plaintiff that
“they were attempting to collect a debt and any information obtained would be used for
that purpose”.
If defendant AMC concedes that it is not a debt collector, it sure likes to use the benefits and
protection of one. AMC's improper conduct by abusing its position as collection agency and as a
mortgage servicer for its own ulterior and ill purpose which has demonstrated malice and bad
intent on its part. Even after knowing that Plaintiff had communicated with defendant that
plaintiff disputes the validity of defendant's claim, AMC still disregarded plaintiff’s position by
taking extrajudicial collection and enforcement of the debts that were never in default. A
malicious abuse of legal process occurs where the party employs it for some unlawful object,
not the purpose which it is intended by the law to effect; in other words, a perversion of it. 500
West 174 St. v. Vasquez, 67 Misc.2d 993, 325 N.Y.S.2d 256, 258.
Second, defendants continuously characterize the Subject Property as a commercial property
rather than a residential dwelling. If we accept the charade interpretation of the defendants, then
every time a homeowner sells his or her family home, that person engages in commercial
business activity. That conclusion is farce and unsounded. Again, as plaintiff previously
described that under Internal Revenue Code §501(c)(3) for the purpose of taxation, a
commercial property is defined as buildings and structures used as commercial ventures, which
building and structures contain four or more separate living quarters intended for human
habitation. The Subject Property is only a single family resident with only one separate living
quarter therefore, would not fall under definition of a commercial property as proposed by the
defendants. Therefore, this hoax presumption is short of factual reasoning and thus is moot.
Third, defendants throughout their 14 pages of unsubstantiated and malignant Motion to
Dismiss and erroneous founding and interpretation of laws and statutes have concluded that
plaintiff is neither a “borrower” nor a “consumer”. If for the sake of the arguments, we support
defendants’ contentions, then we have allowed defendants to walk away with the fruit of the
wage earner’s labor; and we have allowed the defendants to abuse the process by harassing
plaintiff at unusual time and place by demanding money for a debt he did not owe.
From the outcry of the defendants, it is apparent that defendants are creating meritless and
profound defenses for each cause of action based on an improper conclusion of law. On one
hand they claim plaintiff is not a borrower therefore he has no standing to bring a suit. On the
other, they claim defendants have every judicial authority to use unfair or unconscionable means
to collect or attempt to collect a debt that plaintiff did not owe. In one instant they deny Kashan
is the lawful owner of the Subject Property, on another instant their representatives, employees
or agents contacted plaintiff at unusual times and place by calling him on his unlisted cell
 telephone either at home or at place of his employment, to collect a debt that plaintiff did not
owe! This court cannot allow these defendants to use whatever means they choose to justify
their contemptuous actions and their unwarranted Motion.
VIII. Defendants Possessed Plaintiff’s Money, Therefore, They are Obligated to an Accounting.
Plaintiff applied for financing through defendant’s agent and broker HFP. At the time
HFP was aware that plaintiff was the owner and the buyer of the Subject Property. Plaintiff
spent in excess of $37,000.00 toward fees; expenses and financing of the property. Defendants
through its agent and broker HFP took plaintiff’s money for their benefit and therefore they are
obligated for an accounting to plaintiff. Plaintiff statutorily is entitled to the determination of an
accounting of funds collected by Argents and its agents. In the case Kessloff v. Pearson, 37
Cal.2d 609, 233 R2d 899, CAL. 1951; Justice Shenk states:
"Upon the termination of a written contract of employment the plaintiff
commenced an action for declaratory relief and an accounting. After issue
joined the trial court sustained an objection to the introduction of evidence on
the ground that the complaint did not state a cause of action for declaratory
relief. The plaintiff appealed from a judgment dismissing the action.
The discretion to be exercised pursuant to section 1061 is not unlimited. It is a
legal or judicial discretion subject to appellate review, and declaratory relief
must be granted where the facts justifying that course are sufficiently alleged.
Columbia Pictures Corp. v, DeToth, 26 Cal.2d. 753, 762, 161 P.2d 217, 162
A.L.R. 747. Refusal is limited to cases where a declaration of rights and
obligations would be unnecessary or improper at the time under all the
circumstances. The determination rests on the facts in each case.
The code sections provide for declaratory relief in advance of violation. This
salutary relief is procurable so that parties may know their rights and
obligations where a controversy arises before a violation occurs. For such cases
see Henderson v, Oroville-Wyandotte Irr. Dist., 207 Cal. 215, 277 P. 487;
Maguire v. Hilbernia Savings & Loan Soc., 23 Cal.2d 719, 733-734,146 P.2d
673,151 A.L.R. 1062; California Physicians' Service v. Garrison, 28 Cal.2d
790, 172 P.2d 4, 167 A.L.R. 306.
It is true that under the circumstances here disclosed a breach of the alleged
contract has occurred and the plaintiff may be entitled to an accounting and to a
money judgment. The judgment which he may recover could therefore be
afforded in an action for an accounting where questions as to the terms and
construction of the contract would become triable issues. Nelson v. Abraham,
29 Cal.2d 745, 177 P.2d 931, Therefore it may be said that the trial court was
correct in concluding that all the relief sought could be had in an action for an
accounting. But the court was in error in dismissing the action on the general
ground of insufficiency of the complaint. This is so for the reason that the
complaint in any event states a cause of action against the defendants for an
accounting pursuant to the alleged contract and for a money judgment. In this
 latter connection if it appears that the plaintiff has mistitled the action as in
declaratory relief for the sole purpose of obtaining a preference on the
calendar, the court has the power to prevent the accomplishment of that
purpose by appropriate order or procedure. In Columbia Pictures Corp. v.
DeToth, supra, 26 Cal.2d at page 761, 161 P.2d at page 221, it was recognized
that the plaintiff’s right to proceed was not foreclosed by the fact that the
contract had been breached and that other remedies were available. It was not
suggested that if the alternative relief was sought and was procurable in the
action before it the court could entirely refuse to entertain the cause In
reversing a judgment of dismissal on sustaining the demurrer in Lord v.
Garland, 27 CaL2d 840, 852-853,168 P.2d 5, we said that a general demurrer
should be overruled if, upon any theory, the complaint slated a cause of action.
See also Johnson v. Clark, 7 Cal.2d 529, 536, 61 P.2d 767.
The foregoing sufficiently demonstrates, without extending the review or
multiplying citations, that the plaintiff was and is entitled to a trial and a
judgment on the issues framed by the pleadings.KESSLOFF v. PEARSON; 37
Cal.2d 609, 233 P.2d 899"
Code of Civil Procedure section 1060
"Any person interested under a deed, will or other written instrument, or under a contract, or
who desires a declaration of his rights and duties with respect to another, or in respect to, in,
over or upon property, or with respect to the location of the natural channel of a watercourse,
may, in cases of actual controversy relating to the legal rights and duties of the respective
parties, bring an original action in the superior court or file a cross-complaint in a pending
action in the superior, municipal or justice court for a declaration of his rights and duties in the
premises, including a determination of any question of construction or validity arising under
such instrument or contract. He may ask for a declaration of rights or duties, either alone or
with other relief; and the court may make a binding declaration of such rights or duties, whether
or not further relief is or could be claimed at the time. The declaration may be either affirmative
or negative in form and effect, and such declaration shall have the force of a final judgment.
Such declaration may be had before there has been any breach of the obligation in respect to
which said declaration is sought."
IX. The claims of Extortion and Duress are clear from the face of the Complaint
On Page 12, line 7 of their Motion, defendants describe “it is essential that a plaintiff asserting
such a claim allege that he was forced to do some act (emphasis added) he would not otherwise
have done as a result of the extortion or duress.” To support their contention defendants site
Fuhrman v. California Satellite Systems (1986) 179 Cal.App.3d 408, 425-28. To authenticate
their argument they misquote plaintiff that” Kashan has made it abundantly clear that he has
thus far consistently refused to pay what he claims were improper and illegal fees and late
charges,…”. Under the Fuhrman definition the California Appellate Court mandates a plaintiff
to claim he was forced to do some act he would not otherwise have done as a result of extortion
and duress. The definition of Fuhrman was later challenged by the opinion of Supreme Court in
1992 in the matter Evans v. United State, 504 U.S. 255 (1992) in which Justice Thomas with
whom Chief Justice concurs, convey as follows:
Extortion is one of the oldest crimes in Anglo American jurisprudence. See
3 E. Coke, Institutes 541. Hawkins provides the classic common law
definition: "[I]t is said, that Extortion in a large Sense signifies any
Oppression under Colour of Right; but that in a strict Sense it signifies the
Taking of Money by any Officer, by Colour of his Office, either where
none at all is due, or not so much is due, or where it is not yet due." 1
W. Hawkins, Pleas of the Crown 170 (2d ed. 1724) (emphasis added).
Blackstone echoed that definition: "[E]xtortion is an abuse of public
justice, which consists in any officer's unlawfully taking, by colour of his
office, from any man, any money or thing of value, that is not due to
him, or more than is due, or before it is due." 4 W. Blackstone,
Commentaries on the Laws of England 141 (1769) (emphasis added).

Contrary to misrepresentation of defendants, Kashan in his sixteenth causes

of action alleges:
“……..Argent; AMC; SLS; and Cal-Western with their
ulterior motives and the knowledge of the falsity of their claims
herein set forth above, are attempting (emphasis added) to extort
additional monies from plaintiff and unless it is paid they will
proceed with foreclosure of the plaintiff’s property.” (Please see ¶145
of plaintiff’s complaint)

Nothing short of plaintiff’s salutary relief as in Evans case, Kashan’s Extortion and Duress
cause of action will survive defendants’ Motion. Additionally, defendants raise the issue of
“privileged communications” pursuant to Civil Code §47(b) and (c) in arguing plaintiff’s
Sixteenth and Seventeenth causes of action. Thereby defendants declare that Kashan “to assert
a claim for slander of title, he must allege that the defendants published a matter that was
untrue and disparaging to Kasha’s land, chattels or intangible things under circumstances that
would lead reasonable third parties to believe that Kashan does not hold the title thereto.”
(Please see Motion, page 13, line 6). They further argue that “plaintiff would need to allege
actual malice directed to him, not mere conclusions that such malice exists.”(Motion, page 13,
footnote 5)
In addressing defendants’ fallacy of conclusions of law, Kashan counters the thrust by
challenging both Sixteenth and Seventeenth Causes of Action concurrently since the
defendants’ arguments rise out of the same erroneous conclusion. Ordinarily the question of
privilege is a matter of defense. (Taylor v. Lewis, 132 Cal.App. 381 [22 PaCal.2d 569].) The
burden is on the defendant to allege and prove, primarily, the privileged character of the
publication, including the absence of malice. (Taylor v. Lewis, supra; Longsworth v. Curson,
56 Cal.App. 489, 497 [206 P. 779].) In the instance of a false and unprivileged utterance,
which is libelous per se, malice is presumed; and the plaintiff need neither allege nor prove it.
But where the publication is claimed to be privileged, no malice is presumed; but it is
incumbent on the defendant, as a part of the privilege, to show the absence of malice. This he
may do by demurrer, if it appears on the face of the complaint, or by answer and proof, if it
does not. But filing a Motion to Dismiss would not survive this hurdle. It has been held that the
recording of a document making a false claim to real property may constitute the publication of
the disparaging matter in the tort in question; naturally the document could not in fact or law
constitute a meritorious legal claim to the property. Coley v. Hecker, 206 Cal. 22 [272 P. 1045].
The defendants contend that the Notice of Default was absolutely “privileged” under
subdivision 2 of section 47 of the Civil Code, which reads, "In any (1) legislative or (2) judicial
proceeding, or (3) in any other official proceeding authorized by law," or if not so privileged, at
least qualifiedly privileged under subdivision 3 of said section, which reads, "In a
communication, without malice, to a person interested therein ... by one who is also interested.
"Obviously the publication was not had in a legislative or judicial proceeding. Nonetheless,
defendants declare that “a Notice of Default is a mandatory initial step to non-judicial
foreclosure……” leading up to a judicial proceeding (see Motion page 12, line 23). In order for
Section 47 to support a privilege immunity the publication must be performed in a judicial
proceeding. This brings us then to a consideration of whether or not there was a privilege or
justification, or whether there was actual malice which would affect the privilege. Defendants
contend that the Notice of Foreclosure was absolutely privileged as being an act in the due
course of a non-judicial proceeding. The Notice of Foreclosure is not an act in the course of a
non- judicial proceeding. It is merely an endeavor rendered it in the judicial proceeding, and the
acts of its publisher involved is purely ministerial. In Coley v. Hecker, supra, the court stated
that the wrongful recording of an abstract of judgment was not a malicious abuse of process,
but rather was a slander of the owner's title in the same category as a forged deed. A false and
unprivileged publication by writing or printing which exposes a person to hatred, contempt or
obloquy, or which has a tendency to injure him in his occupation is libelous.
Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed
representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy,
or which causes him to be shunned or avoided, or which has a tendency to injure him in his
occupation. Whether or not writing is reasonably susceptible of a defamatory meaning is a
question for the court. (MacLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536, 546, 343,
p.2d 36.) In making that determination the courts look to what is explicitly stated as well as
what insinuation and implication can be reasonably drawn from the communication. To
constitute a libel it is not necessary that there be a direct and specific allegation of improper
conduct, The charge may be either expressly stated or implied; and in the latter case the
implication may be either apparent from the language used, or of such a character as to require
the statement and proof of extrinsic facts, (inducement, colloquium, and innuendo) to show its
meaning, (Forsher v. Bugliosi (1980) 26 Cal.3d 792, 803, 163 Cal.Rptr. 628, 608 p.2d 716.)
(see Information Control Corp. v. Genesis One Computer Corp. (9 th Cir. 1980) 611 F.2d 781,
783; Ingraham v. Lyon (1894) 105 Cal.254, 257.
The complaint here alleged that the defendant "did publish with malice, knowingly, false and
grossly libelous and representations with the intent and design to injure, disgrace and defame
plaintiff, etc." This would appear to be quite a definite allegation of actual malice. In Davis v.
Hearst, 160 Cal. 143 [116 P. 530], the subject of malice is extensively discussed; and actual
malice, as applied to the law of libel, is there defined as "a state of mind arising from hatred or
ill will, evidencing a willingness to vex, annoy, or injure another"; and " ... the motive and
willingness to vex, harass, annoy, or injure". The allegations above quoted fully respond to the
test of these definitions. Section 48 of the Civil Code states that malice is not inferred in the
cases where the privilege in question is involved. That privilege is a qualified or conditional
one. (16 Cal.Jur. 67.) Defendant claim that as of November 13, 2006 the Subject Loans went
into default. This is sufficient cause for defendants to be vexatious, hatred, and ill will. That
was sufficient evidence for defendants not to communicate with Barseghian and plaintiff as a
person interested. The recording of the Notice of Default was notice to all persons of a claim of
interest by defendants, Argent; AMC; and co-defendants SLS and Deutsche for the benefit of
defendants and co-defendants. Surely that would not be considered a communication to the
victim as a person interested within the meaning of the rule of privilege here in question,
although in a sense the victim would be interested in what the publication of the libel contained.
Subdivisions 2 and 3 and the above quoted portion of section 47 are likewise inapplicable
because they are predicated upon a communication to the person interested, the communicant
being one other than the person interested. Defendants’ publication of Notice to Foreclose was a
retaliatory thrust to punish Barseghian and plaintiff as person in interest and thereby a state of
mind arising from hatred or ill will, evidencing a willingness to vex, annoy, or injure another";
and " ... the motive and willingness to vex, harass, annoy, or injure". The allegations fully
surpasses the test of actual malice, therefore no privilege is tenable.
Defendants in their footnote number 6, page 13 of the Motion, claim “in order to
recover emotional distress damages, Kashan must allege that there was extreme and
outrageous conduct.” Whether Kashan’s name is on the title or not, is not important. The truth
of the matter is that Kashan spent in excess of $133,000.00 of his money toward purchasing and
construction of the Subject Property. Little be known, defendants’ conducts of publishing and
disseminating the libelous publication, has burden plaintiff with extreme difficulties to market
and sell his property. Effective December 1, 2006 since the completion of construction
renovating and remodeling the Subject Property, plaintiff has not been successful in selling his
property. The Notice of Foreclosure published by defendants has clouded the title of the
property giving the potential buyers the opportunity to postponed purchasing their dream home
 until such time, plaintiff’s property is foreclosed. Plaintiff is small business man who invested
in excess of $133,000.00 of his money in the course of obtaining financing and modernizing
and beatifying the Subject Property. Plaintiff is not in the luxury of collecting 100 % interest
free money from hard working homeowners. Plaintiff dedicates his time and money not to run
illegal business but to renovate and beautify someone’s dream home. Since January 1, 2007,
defendants who refused to accept mortgage payments, by returning plaintiff’s checks, validated
their intention in damaging plaintiff in his business and in his person. Plaintiff is in stage of
losing his home and his investment in excess of $133,000. Plaintiff neither has the money nor
the energy to play these games. Plaintiff is constantly losing his weight and his appetite.
Plaintiff lacks sleep; suffers constant pains. Plaintiff has suffered shame and humiliation in his
business, and he is in stage of filing for relief under chapter 7 bankruptcy. If these are not
mental suffering and sever emotional distress then what are they?
In California the law is settled that mental suffering constitutes an aggravation of damages
when it naturally ensues from the act complained of (Sloane v. Southern California Ry. Co.,
(1896) 111 Cal. 668, 680 [44 P. 320, 32 A.L.R. 193]) and in this connection mental suffering
includes fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation and
indignity, as well as physical pain (8 Cal.Jur. pp. 771, 772, § 34).
X. Kashan is Entitled to Leave to Amend Complaint as a matter of Law in Case of Deficiencies

Federal Rule of Civil Procedure 15(a) provides that a trial court shall grant leave to amend
freely "when justice so requires." The Supreme Court has stated that "this mandate is to be
heeded." Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). In addition,
we have repeatedly held that "a district court should grant leave to amend even if no request to
amend the pleading was made, unless it determines that the pleading could not possibly be
cured by the allegation of other facts." Doe, 58 F.3d at 497. "[l]eave to amend should be
granted 'if it appears at all possible that the plaintiff can correct the defect.' " Balistreri, 901
F.2d at 701 (quoting *1131 Breier v. Northern California Bowling Proprietors' Ass'n, 316 F.2d
787, 790 (9th Cir.1963)).
 The district court's action was also inconsistent with our precedent because Lopez was a pro se
plaintiff. We have noted frequently that the "rule favoring liberality in amendments to pleadings
is particularly important for the pro se litigant. Presumably unskilled in the law, the pro se
litigant is far more prone to making errors in pleading than the person who benefits from the
representation of counsel." Noll, 809 F.2d at 1448. We have held that when a court dismisses a
pro se complaint for failure to state a claim, the court should draft a few sentences explaining to
the plaintiff the deficiencies and allow the plaintiff to amend. Noll v. Carlson, 809 F.2d 1446,
1449 (9th Cir.1987); Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621 (9th Cir.1988).
Because pro se litigants are unskilled in the law, they are prone to pleading errors. Without
guidance, amendments by these litigants are made without an understanding of the deficiencies
and are usually insufficient to cure deficient pleadings. Thus, when instructing pro se litigants
to amend, district courts should briefly explain the complaints' deficiencies so that the pro se
plaintiffs will be better equipped to amend correctly. Noll, 809 F.2d at 1448. However, if it "is
absolutely clear that the deficiencies of the complaint could not be cured by amendment," the
district court may dismiss. Franklin v. Murphy, 745 F.2d 1221, 1228 n. 9 (9th Cir.1984)
(quoting Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir.1980)).

XI. CONCLUSION
For all of the foregoing reasons, the Court should deny the Defendants’ motion to dismiss the
complaint.
Respectfully submitted,
February 1, 2007
_________________________________________
Michael Kashan
Plaintiff in Pro Se