Professional Documents
Culture Documents
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EARL A. DANCY, ) No. C10-02602 SBA
11 )
Plaintiff, )
12 ) FIRST AMENDED COMPLAINT
vs. )
13 )
AURORA LOAN SERVICES, LLC; )
14 MORTGAGE ELECTRONIC )
REGISTRATION SYSTEMS, INC.; )
15 and DOES 1-20, )
)
16 Defendants. )
______________________________)
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20 State of California and was the true owner of the real property
1 under the laws of the State of Delaware, and having its principal
6 thousand dollars.
16 of and/or does not know the true names of DOE defendants 1-20.
17 All defendants were agents of one another with regard to the acts
21 Note. MERS did not execute the Note. AURORA was not mentioned
22 in the Note. AURORA did not execute the Note. The parties to
13 agreement with the parties being (1) plaintiff, (2) the lender,
20 payments of the money secured by the Deed of Trust. MERS was not
21 a party to the Note and did not sign the Note. Nor was MERS a
22 party to the Deed of Trust. MERS did not sign the Deed of Trust.
23
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A mortgage is a mere security for the debt, and it cannot pass without
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a transfer of the debt. [Johnson v. Razey (1919) 181 Cal. 342, citing Civil
Code § 2936] The assignment of a debt secured by mortgage carries with it the
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security. [Civil Code § 2936] The term “mortgage” in Civil Code § 2936
encompasses “deeds of trust.” [Seidell v. Tuxedo Land Co. (1932) 216 Cal. 165,
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166; Domarad v. Fisher & Burke, Inc. (1969) 270 Cal.App.2d 543, 554]
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The purported assignment of a mortgage without an assignment of the debt
secured is a legal nullity. [Kelley v. Upshaw (1952) 39 Cal.2d 179, 192]
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1 10. Within the first six months of when the subject loan was
3 third party was not AURORA or MERS. The Note has since been
6 MERS. When the Note was conveyed to the third party, whatever
9 knew or should have known the facts alleged in this paragraph and
12 of the Note as those terms are defined under California law. Nor
14 Deed of Trust. AURORA was not a party to the Note and did not
15 sign the Note. Nor was AURORA a party to the Deed of Trust.
16 AURORA did not sign the Deed of Trust. Plaintiff never borrowed
18 contract with AURORA or MERS. Now, AURORA and MERS falsely claim
20 12. At no time did MERS have the legal right to transfer any
24 of Trust ever existed and none was ever recorded at the Marin
26 between the original lender and MERS. If there had been an agency
28 when the Note was transferred to the third party, described above
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10 was never the beneficiary. The document was issued by MERS “as
15 power to issue it, and under Civil Code § 1095 because the name
19 void, Quality was never the trustee. Quality never had legal
22 the Deed of Trust. All acts by Quality with regard to the subject
26 was issued and on March 13, 2008 it was recorded with the Marin
13 time during March 2008 did MERS or AURORA have authority to elect
15 power of sale under the Deed of Trust. The Notice of Default was
16 void when issued because Quality was never the Trustee and lacked
18 MERS and Quality all lacked the authority to elect to conduct the
23 not the trustee and had no other legal authority to issue it. The
6 ab initio:
9 0019429;
14 and,
18 void and neither AURORA nor MERS holds any interest in the
19 subject property.
21 not result from mere irregularities with the conduct of the sale.
27 agents of AURORA and MERS had actual knowledge that MERS and
28 AURORA had no interest under the Deed of Trust and that Quality
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2 any other actions regarding the subject property under Civil Code
4 and MERS knew at every stage of the process such conduct was
12 23. Since the purported trustee sale AURORA and it’s agents
21 agents of AURORA and MERS actually knew AURORA and MERS had no
22 true legal authority with regard to the Deed of Trust and the
25 malice.
5 damages include but are not limited to: those damages described
16 of Trust, the Notice of Trustee Sale and the Trustee’s Deed Upon
17 Sale.
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39. Plaintiff incorporates in this cause of action the
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allegations of paragraphs 1 through 27, above.
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40. Since approximately late December 2008 or early January
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2009 AURORA has falsely claimed title to the subject property
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under the Trustee’s Deed Upon Sale, recorded on January 7, 2009.
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41. Plaintiff seeks a determination that as of the date of
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filing this action that plaintiff owns title to the subject
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property in fee simple absolute, free of any interest by AURORA.
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Fifth Cause of Action
24 UNFAIR BUSINESS PRACTICES
(against AURORA and MERS)
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42. Plaintiff incorporateS in this cause of action the
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allegations of paragraphs 6 through 31, above.
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43. Plaintiff bringS this action under Business and
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21 1. General damages,
22 2. Special damages,
23 3. Punitive damages,
26 6. Costs,
2 0019429;
7 and,
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16 Respectfully submitted,
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