Tam Thi Duy Le

1 4628 Hill Top View Lane

2 San Jose, California 95138
Telephone:
3 Facsimile:
Email:
4
Plaintiff, Pro Se
5

6 SUPERIOR COURT OF THE STATE OF CALIFORNIA

7 FOR THE COUNTY OF SANTA CLARA

8 TAM THI DUY LE,

) PLAINTIFFS’ COMPLAINT FOR
9 PLAINTIFF, )
) (1) FRAUD;
10
vs. ) (3) CANCELLATION OF A
11 ) VOIDABLE CONTRACT UNDER
EXPRESS CAPITAL LENDING; ) REV & TAX CODE §§ 23304.1,
12 1MORTGAGE ELECTRONIC ) 23305A AND VIOLATION OF CAL.
REGISTRATION SYSTEMS, INC; GMAC ) CORP. CODE §§ 191(C)(7);
13 MORTGAGE, LLC; IMPAC MORTGAGE ) (3) TO SET ASIDE TRUSTEE’S
HOLDINGS, INC. ; AND ETS SERVICES, ) SALE;
14
LLC., ) (4) TO VOID OR CANCEL
15 ) TRUSTEE’S DEED UPON SALE;
DEFENDANTS. ) (5) TO VOID OR CANCEL
16 ) ASSIGNMENT OF DEED OF
) TRUST;
17 ) (6) WRONGFUL FORECLOSURE;
18 ) (7) BREACH OF THE IMPLIED
) COVENANT OF GOOD FAITH AND
19 ) FAIR DEALING;
) (8) UNJUST ENRICHMENT;
20 ) (9) VIOLATION OF CALIFORNIA
) BUSINESS AND PROFESSIONS CODE
21 ) SECTIONS 17200 ET SEQ.;
22 (10) QUIET TITLE; AND
(11) SLANDER OF TITLE
23

24

25 TO THIS HONORABLE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD

26 HEREIN:

27 Plaintiff hereby alleges as follows:

28
PLAINTIFFS’ COMPLAINT
1
 PARTIES
1

2 1. Plaintiff Tam Thi Duy Le is a natural person residing in Santa Clara County,

3 California and is otherwise sui juris.

4 2. All acts complained of occurred in Santa Clara, County, California.

5
3. Defendant Express Capital Lending (hereinafter referred to as “Express”) is, and
6
at all times herein mentioned, was a foreign corporation doing business in Santa Clara County,
7
California.
8
4. Defendant Mortgage Electronic Registration Systems, Inc. (hereinafter referred to
9

10 as “MERS”) is, and at all times material herein mentioned, was a foreign corporation doing

11 business in Santa Clara County, California.

12 5. Defendant GMAC Mortgage, LLC (hereinafter referred to as “GMAC”) is, a
13
foreign limited liability company doing business in Santa Clara County, California.
14
6. Defendant IMPAC Mortgage Holdings, Inc. (hereinafter referred to as “IMPAC”)
15
is, and at all times material herein mentioned, was a California corporation doing business in
16

17 Santa Clara County, California.

18 7. Defendant ETS Services, LLC (hereinafter referred to as “ETS”) is, and at all

19 times material herein mentioned, was a California Limited Liability Company doing business in
20 Santa Clara County, California.
21
8. Plaintiff is informed and believe and based on such information and belief aver
22
that Defendants Express Capital Lending; Mortgage Electronic Registration Services, Inc.;
23
GMAC Mortgage, LLC; IMPAC Mortgage Holdings, Inc. and ETS Services, LLC, and each of
24

25 them, are and at all material times have been, the agents, servants or employees of each other,

26 purporting to act within the scope of said agency, service or employment in performing the acts

27 and omitting to act as averred herein. Said Defendants Express; MERS; GMAC; IMPAC and
28
PLAINTIFFS’ COMPLAINT
2
 ETS, inclusive, are hereinafter collectively referred to as the “Foreclosing Defendants.”
1

2 9. Each of the Defendants named herein are believed to, and are alleged to have

3 been acting in concert with, as employee, agent, co-conspirator or member of a joint venture of,

4 each of the other Defendants, and are therefore alleged to be jointly and severally liable for the
5
claims set forth herein, except as otherwise alleged.
6
GENERAL ALLEGATIONS
7
10. On or about April 25, 2005 Plaintiff purchased certain real property commonly
8
known as 4628 Hill Top View Lane, San Jose, CA 95138 (the “Subject Property”).
9

10 11. The mortgage loan transaction contained numerous violations of State and

11 Federal law, including the violations contained in the following paragraphs.

12 12. The assignment of the Deed of Trust from Express to MERS to GMAC is and
13
was illegal for the reasons set forth below.
14
13. MERS does not own any note and cannot enforce any note, and has no rights in
15
any mortgage, including the note and mortgage involved in this case, and therefore cannot assign
16

17 any such rights to any assignee.

18 14. Since MERS does not own the underlying note, MERS had no interest it could

19 transfer to GMAC. As the assignment was and is invalid, any resulting foreclosure by these
20 foreclosing Defendants was and is likewise illegal and constitutes a wrongful foreclosure, as any
21
attempt to transfer the beneficial interest of the Deed of Trust without the ownership of the
22
underlying note is void under California law.
23
15. Other grounds are as set forth below.
24

25 16. Plaintiffs’ home, encumbered by a mortgage and promissory note made with the

26 originator named as mortgagee, is the property at issue in this foreclosure action. Foreclosing

27 Defendants are not the holder or owner of the note.

28
PLAINTIFFS’ COMPLAINT
3
 17. The mortgage was rendered unenforceable because securitization of the
1

2 mortgage created restrictions upon modification of the mortgage which had not been approved
3
by the mortgagor. Securitization also converted the mortgage note from an alienable,
4
transferable instrument which was and could be sold into a instrument which cannot be sold,
5
transferred or alienated, without amending the terms and conditions of the mortgage. In either
6

7 case, the action renders the mortgage unenforceable as a matter of law. Foreclosing Defendants

8 lack standing because foreclosing Defendant GMAC does not own or hold the note and cannot

9 have the power and authority to represent the actual owners of the note, as a matter of law.
10
Improper Restrictions
11

12 18. The mortgage is a security agreement between the creditor and debtor to secure

13
repayment of the loan by encumbering collateral for the benefit of the creditor.
14

15 19. Both parties agree that the security agreement may not be modified or amended

16
by one party without the prior written consent of the other.
17

18 20. The master pooling and servicing agreement which is the organic document
19 creating mortgage backed securities changes the terms and conditions of the mortgage.
20

21 21. The changes are made unilaterally by the holder of the mortgage as a successor to

22 the original mortgagee named in the mortgage. The changes are made without the consent of the

23 mortgagor.
24
22. When the parties executed the mortgage, the mortgagor was neither obligated to
25

26 agree to an alternate dispute resolution in the event of a default nor restricted from entering an

27 alternate dispute resolution. When signing the mortgage, the mortgagor neither knew nor had

28 reason to know that a successor in interest to the mortgagee would subsequently self impose
PLAINTIFFS’ COMPLAINT
4
 restrictions upon modification of the mortgage and create liability for itself by modifying the
1

2 loan.

3
23. The master pooling and servicing agreement creates restrictions upon modification of
4

5 the promissory note by:

6
(a) Imposing the restriction needed on mortgage modification to qualify for pass through tax
7
treatment under IRS regulations.
8

9 (b) Imposing restrictions upon the number of mortgages in the pool which may be modified.
10

11 (c) Providing a procedure for foreclosure but no procedure to modifying the loan as an

12 alternate dispute resolution.

13
(d) Creating securities with classes of ownership (“tranches”) with adverse and opposing
14
financial interests resulting in so called “tranche warfare” so that a modification which
15

16 favors one tranche may work a detriment upon another.

17
(e) Restricting the ability to lower interest payments on the note.
18

19 (f) Restricting the ability to increase the number of payments to be made.

20
(g) Restricting the ability to defer payments.
21

22 (h) Restricting the ability to extend the term of the mortgage.

23
(i) Restricting the ability to impose a temporary moratorium on payments.
24

25 (j) Restricting the ability to accept “short sales”.

26

27 24. Declaratory relief or invalidation of the restrictions created by the master pooling

28
PLAINTIFFS’ COMPLAINT
5
 and servicing agreement will not remedy the problem. Given the potential liability of the issuer
1

2 and securitizer of the note to certificate holders, the holder will not modify the mortgage even if

3 the restrictions on modification of the mortgage are nullified.

4
Improper Conversion
5

6 25. The securitization of the mortgage constitutes a conversion of the asset

7
rendering
8
it null, void and unenforceable. The holder of the note of a pass through
9
trust has no legal or equitable interest in the securitized mortgages. The
10
holder profits from the fees collected from foreclosure. The certificate
11

12 holders, guarantors and mortgage insurers bear the losses. Foreclosure

13 avoids litigation from disgruntled certificate holders who could claim a

14 mortgage modification improperly resulted in a financial loss. By separating
15
the incidence of loss from the authority to foreclose, the original note has
16
been altered resulting to a change to the mortgage without the consent of
17
the mortgagor. The conversion of the mortgage to mortgage backed
18

19 securities renders the mortgage unenforceable.

20
26. The interests of the defendants as mortgagor are adversely and
21 materially
22

23
affected by these changes.
24

25
27. Further, with regard to the entire loan origination and closing
26 process of this
27

28
PLAINTIFFS’ COMPLAINT
6
 loan, the following Non-Compliance with State and Federal Law occurred, to
1
wit:
2

3
28. There were substantial violations of the law and the lender and other parties
4

5
involved in the closing did not comply with the Federal Truth in Lending Act (TILA); the
6

7
Federal Real Estate Settlement and Procedures Act (RESPA); and other state and federal
8

9
consumer protection laws. These acts of non-compliance include, but are not necessarily limited
10

11
to the following:
12

13
a. Under California Law, a broker is required to execute a Mortgage Loan
14 Origination Agreement with the borrower. No such Agreement was ever
received by affiant, the borrower herein. Only after the execution of a fully
15 completed document can actual work on procuring a loan begin. The loan
violated California Law, Section 50700-50706-50701 from the beginning of
16
this transaction. It is also an Unfair and Deceptive Act and Practice under
17 California Competition Law, CA Business & Professions Code 17200.
b. Failed to give borrower signed copies of the closing documents.
18 c. Failed to respond to a Qualified Written Request for documents under
RESPA.
19 d. Charged fees in excess of the Good Faith Estimate in violation of California
Business & Professions Code 10241, 10240-10248 and California Unfair
20
Competition Law, CA Business & Professions Code 17200.
21
e. Charged a yield spread premium and failed to disclose same in a proper
22
manner.
23 f. Failed to make disclosures in compliance with disclosure requirements as
documents in the file are dated the same day as the loan closing, not three
24 days after the loan application was submitted.
g. As to underwriting decisions, the lender ignored prudent standards of
25 underwriting, knowing full well the loan would be securitized and any default
would be the concern of another party. No consideration of the ability of the
26
borrower to repay this loan with a realistic means test was made. Failure to
27 adequately underwrite the loan is a violation of California Unfair Competition
Law, CA Business & Professions Code 17200.
28
PLAINTIFFS’ COMPLAINT
7
 h. There was no determination of the ability of the borrower to repay the loan,
1 with complete disregard for the Guidelines Letters issued by Federal
2 Agencies and even Federal and State Law and in violation of California
Unfair Competition Law, CA Business & Professions Code 17200.
3 i. Lender committed Fraud for false income by the broker.
j. Aiding and abetting by the lender for allowing the fraudulent income loan.
4 k. Lack of due diligence by the lender in approving the Lender
l. Lack of Good Faith and Fair Dealings by the Lender.
5
m. Breach of Fiduciary Duty by the broker for doing a loan where it could lead
6 to default.
n. Unconscionability by the lender for doing the loan.
7 o. The Fees on the Good Faith Estimate and the Truth in Lending Statement are
not consistent.
8 p. Failure to provide truthful and accurate disclosures are Unfair and Deceptive
Act and Practice under the California Unfair Competition Law, CA Business
9
& Professions Code 17200.
10 q. Broker violated his Fiduciary Responsibility to the borrower by placing the
borrower into her current loan product without regard for other products that
11 might have suited the borrower better; placing the borrower into a loan
whereby it was likely the borrower would default or incur bankruptcy as a
12 result of the loan and it was reasonable foreseeable that such would occur,
placing the borrower into a loan without a realistic test of the ability of the
13
borrower to repay the loan, failing to provide correct initial disclosure, and
14 placing the borrower into a loan with a prepayment penalty.
r. The loan was unconscionable, lender breached its duty of good faith and fair
15 dealing under the UCC and common law. Lender committed Fraud by placing
the borrower into a high debt ratio loan, lender violated the Unfair and
16 Deceptive Acts and Practices At, CA Business & Professions 17200.
17

18 29. The parties involved committing these acts of non-compliance include all

19 parties listed as Defendants.

20 30. That the undersigned affiant has alleged fraud in the court case referenced
21
above, as more fully set forth in this complaint.
22

23
31. None of the foregoing was disclosed to Plaintiff at any time before, during or
24

25

26 after the closing of the subject transaction.

27 32. Based upon information and belief, on an unknown date, prior to the foreclosure

28 of the Subject Property but after the Notice of Default, MERS (acting as beneficiary) assigned
PLAINTIFFS’ COMPLAINT
8
 the Deed of Trust to GMAC. The Assignment was recorded. The Assignment by MERS was
1

2 improper because MERS never had a beneficial interest in the Subject Property and was merely

3 a “nominee” under the Deed of Trust. Therefore, the Assignment was invalid and void.

4 Moreover, the recording of the Notice of Default was invalid and void.
5
33. Based upon information and belief, there was no assignment of the Note with the
6
Deed of Trust, none of the Foreclosing Defendants are the holder of the Note in due course, and
7
none of the Foreclosing Defendants were assigned the Note by MERS. Accordingly, none of the
8
Foreclosing Defendants were ever entitled to enforce the Note.
9

10 34. Any Trustee’s Deed Upon Sale is also invalid and void because it was based on

11 an invalid and void assignment. As such the Trustee’s foreclosure sale should be set aside and
12 vacated.
13
FIRST CAUSE OF ACTION FOR
14
FRAUD
15
(AGAINST THE FORECLOSING DEFENDANTS)
16

17 35. Plaintiff incorporates herein by reference the allegations made in paragraphs 1

18 through 34, inclusive, as though fully set forth herein.

19 36. The Foreclosing Defendants engaged in a pattern and practice of defrauding

20 Plaintiff in that, during the life of the mortgage loan, the Foreclosing Defendants failed to
21
properly disclose material facts regarding the subject loan transaction, including but not limited
22
to the fact that the loan was securitized, that other third parties were involved in the transaction,
23
that the loan was being placed in a pool of securitized mortgages to be used to sell asset-backed
24

25 pass-through certificates to investors, that the fraudulent securitization scheme involved an

26 Illegal, null and void assignment of Deed of Trust and other misrepresentations of material facts

27 as more fully set forth in Plaintiff’s General Allegations.

28
PLAINTIFFS’ COMPLAINT
9
 37. Additionally, the Foreclosing Defendants concealed material facts known to them
1

2 but not to Plaintiff regarding payments, notices, assignments, transfers, late fees and charges

3 with the intent to defraud Plaintiff.

4 38.. The Foreclosing Defendants made the above-referenced false representations,

5
concealments and non-disclosures with knowledge of the misrepresentations, intending to
6
induce Plaintiffs' reliance, which the unsuspecting Plaintiff justifiably relied upon, resulting in
7
damage to their credit standing, costs and loss of her property. Plaintiff was unaware of the true
8
facts. Had Plaintiff known the true facts, Plaintiff, among other things, would not have
9

10 maintained the Foreclosing Defendants as their lender, servicer and trustee (and their alleged

11 agents) and/or would have taken legal action immediately to save her house.
12 39. As a result of the Foreclosing Defendants’ fraudulent conduct, Plaintiff has
13
suffered compensatory, general and special damages in an amount to proof. Additionally, the
14
Foreclosing Defendants acted with malice, fraud and/or oppression and, thus, Plaintiff is entitled
15
to an award of punitive damages.
16

17 SECOND CAUSE OF ACTION FOR

18 CANCELLATION OF A VOIDABLE CONTRACT UNDER REV & TAX CODE §§

19 23304.1, 23305A AND VIOLATION OF CAL. CORP. CODE §§ 191(C)(7)

20 (AGAINST THE FORECLOSING DEFENDANTS)
21
40. Plaintiff incorporates herein by reference the allegations made in paragraphs 1
22
through 39, inclusive, as though fully set forth herein.
23
41. MERS operates as a record-keeping database company in which MERS contracts
24

25 with lenders to track security instruments in return for an annual fee.

26

27

28
PLAINTIFFS’ COMPLAINT
10
 42. Based upon information and belief, MERS was at all times herein operating in
1

2 the State of California without registering as a foreign corporation to avoid paying taxes to the

3 state.

4 43. As a result of MERS’s failure to comply with the California franchise tax laws,
5
the Deed of Trust alleged herein is voidable by Plaintiff pursuant to Rev & Tax Code §§
6
23304.1, 23304.1(b), and 23305a.
7
44. Moreover, MERS is not in the business of creating evidences, and it is not a
8
foreign lending institution. It does not originate loans, never had any true interest in the subject
9

10 loan or Deed of Trust, and thereby does not meet any legal exceptions to the registration

11 requirement for foreign corporations.

12 45. MERS conducted business in California when it was not registered with the
13
Secretary of State. Specifically, it prepared and/or executed a Substitution of Trustee and
14
assignment of the Deed of Trust. The substitution allowed the new Trustee, to record a Notice
15
of Default on the Subject Property.
16

17 46. At all relevant times herein, MERS was not registered in California and could not

18 prepare or execute the Assignment of Deed of Trust. MERS had no legal authority to take such

19 action. Deeds of Trust are contractual in nature. A contract made by a corporation doing
20 business in California while that corporation has failed to perform its franchise tax obligations is
21
voidable at the option of any party to the contract, other than the [delinquent] taxpayer. Thus,
22
MERS did not have the legal capacity to enter into a contract with Plaintiff or anyone else, and
23
Plaintiffs have the option of voiding the contract. Therefore, any action that MERS took with
24

25 regard to assigning the within deed of trust and substituting the trustee would be ultra vires and

26 void.

27

28
PLAINTIFFS’ COMPLAINT
11
 47. Plaintiff hereby expressly requests an adjudication to the effect that the
1

2 assignment of the deed of trust and substitution of trustee by MERS are void.

3 THIRD CAUSE OF ACTION

4 TO SET ASIDE TRUSTEE’S SALE

5
(AGAINST THE FORECLOSING DEFENDANTS)
6
48. Plaintiff incorporates herein by reference the allegations made in paragraphs 1
7
through 47, inclusive, as though fully set forth herein.
8
49. The Foreclosing Defendants never had the legal authority to foreclose, i.e., the
9

10 authority to exercise the power of sale as an assignee of the Note and Deed of Trust, because the

11 Foreclosing Defendants’ interest was never properly acknowledged and recorded in violation of
12 Civil Code § 2932.5, resulting in the non-judicial foreclosure sale being void ab initio.
13
50. Moreover, the Foreclosing Defendants never had the legal authority to foreclose
14
because the instrument (Deed of Trust), which permitted foreclosure if the borrower was in
15
default, is void as it was improperly assigned and/or transferred to the Foreclosing Defendants
16

17 from Defendant MERS. Therefore, the Deed of Trust could not provide a basis for a

18 foreclosure, and the non-judicial foreclosure is void ab initio.

19 51. Accordingly, Plaintiff hereby requests an order of this Court that the Trustee’s
20 Sale was irregular in that it was legally void and conducted without any right or privilege by the
21
Foreclosing Defendants.
22
FOURTH CAUSE OF ACTION
23
TO VOID OR CANCEL TRUSTEE’S DEED UPON SALE
24

25 (AGAINST THE FORECLOSING DEFENDANTS)

26 52. Plaintiff incorporates herein by reference the allegations made in paragraphs 1

27 through 51, inclusive, as though fully set forth herein.

28
PLAINTIFFS’ COMPLAINT
12
 53. Although any trustee’s deed upon sale appears valid on its face, it is invalid, and
1

2 of no force and effect, for the reasons set forth above including, inter alia, the fact the Deed of

3 Trust which purportedly secured the Note, which served as the basis for a claim to have the right

4 to conduct a non-judicial foreclosure was at all times void due to the wrongful and improper
5
assignment to the Foreclosing Defendants.
6
54. Plaintiff is therefore entitled to an order that any Trustee’s Deed Upon Sale is
7
void ab initio and cancelling such Trustee’s Deed.
8
FIFTH CAUSE OF ACTION
9

10 TO VOID OR CANCEL ASSIGNMENT OF DEED OF TRUST

11 (AGAINST THE FORECLOSING DEFENDANTS)

12 55. Plaintiff incorporates herein by reference the allegations made in paragraphs 1
13
through 54, inclusive, as though fully set forth herein.
14
56. The assignment of the deed of trust is invalid, and of no force and effect, for the
15
reasons set forth above including, inter alia, the fact the MERS did not have standing or the legal
16

17 authority to assign the deed of trust which purportedly secured the Note, and which served as the

18 basis for a claim to have the right to conduct a non-judicial foreclosure. Thus, the assignment of

19 the deed of trust was at all times void.

20 57. Plaintiff is therefore entitled to an order that the Assignment of the Deed of Trust
21
is void ab initio and cancelling such Assignment.
22
SIXTH CAUSE OF ACTION
23
WRONGFUL FORECLOSURE
24

25 (AGAINST THE FORECLOSING DEFENDANTS)

26 58. Plaintiff incorporates herein by reference the allegations made in paragraphs 1

27 through 57, inclusive, as though fully set forth herein.

28
PLAINTIFFS’ COMPLAINT
13
 59. Plaintiff is informed and believes and thereon allege that after the origination and
1

2 funding of their loan, it was sold to investors as a “mortgage backed security” and that none of

3 the Foreclosing Defendants in this action owned this loan, or the corresponding note. Moreover,

4 none of the Foreclosing Defendants in this action were lawfully appointed as trustee or had the
5
original note assigned to them. Accordingly, none of the Foreclosing Defendants in this action
6
had the right to declare default, cause notices of default to be issued or recorded, or foreclose on
7
Plaintiffs’ interest in the Subject Property. The Foreclosing Defendants were not the note holder
8
or a beneficiary at any time with regard to Plaintiffs’ loan.
9

10 60. Plaintiff further alleges on information and belief that none of the Foreclosing

11 Defendants in this action are beneficiaries or representatives of the beneficiary and, if the
12 Foreclosing Defendants allege otherwise, they do not have the original note to prove that they
13
are in fact the party authorized to conduct the foreclosure.
14
61. Plaintiff further alleges on information and belief that the loan was sold or
15
transferred without notifying the Plaintiffs in writing. Therefore, the loan is void of legal rights
16

17 to enforce it.

18 62. Additionally, The Foreclosing Defendants violated California Civil Code

19 §2923.5(a), which requires a “mortgagee, beneficiary or authorized agent” to “contact the

20 borrower or person by telephone in order to assess the borrower’s financial situation and explore
21
options for the borrower to avoid foreclosure. “Section 2923.5(b) requires a default notice to
22
include a declaration “from the mortgagee, beneficiary, or authorized agent” of compliance with
23
section 2923.5, including attempt “with due diligence to contact the borrower as required by this
24

25 section.”

26 63. None of the Foreclosing Defendants contacted Plaintiff to discuss her financial

27 situation. Moreover, none of the Foreclosing Defendants explored options with Plaintiff to
28
PLAINTIFFS’ COMPLAINT
14
 avoid foreclosure. Additionally, none of the Foreclosing Defendants informed Plaintiffs of the
1

2 right to have a meeting within 14 days of said contact. Accordingly, the Foreclosing Defendants

3 did not fulfill their legal obligation to Plaintiff.

4 64. Thus, the Foreclosing Defendants engaged in a fraudulent foreclosure of the

5
Subject Property in that the Foreclosing Defendants did not have the legal authority to foreclose
6
on the Subject Property and, alternatively, if they had the legal authority, they failed to comply
7
with Civil Code Section 2923.5 and 2923.6.
8
65. As a result of the above alleged wrongs, Plaintiff has suffered general and special
9

10 damages in an amount to be determined at trial.

11 SEVENTH CAUSE OF ACTION FOR

12 BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING
13
(AGAINST THE FORECLOSING DEFENDANTS)
14
66. Plaintiff incorporates herein by reference the allegations made in paragraphs 1
15
through 65, inclusive, as though fully set forth herein.
16

17 67. Every contract imposes upon each party a duty of good faith and fair dealing in

18 its performance and its enforcement. This implied covenant of good faith and fair dealing

19 requires that no party will do anything that will have the effect of impairing, destroying, or
20 injuring the rights of the other party to receive the benefits of their agreement. The covenant
21
implies that in all contracts each party will do all things reasonably contemplated by the terms of
22
the contract to accomplish its purpose. This covenant protects the benefits of the contract that
23
the parties reasonably contemplated when they entered into the agreement.
24

25 68. Alternatively, if the note and deed of trust was validly and properly assigned to

26 the Foreclosing Defendants, the Foreclosing Defendants did not act in good faith and did not

27 deal fairly with Plaintiff in connection with the note and deed of trust.
28
PLAINTIFFS’ COMPLAINT
15
 69. The Foreclosing Defendants enjoyed substantial discretionary power affecting the
1

2 rights of Plaintiff during the events alleged in this Complaint. They were required to exercise

3 such power in good faith.

4 70. The Foreclosing Defendants engaged in such conduct to drive Plaintiff into
5
foreclosure so that they could acquire the Subject Property with its equity at a bargain basement
6
price. These actions were a bad faith breach of the contract between Plaintiff and the
7
Foreclosing Defendants which show that they had no intention of performing the contract,
8
consisting of the original note and deed of trust, in good faith.
9

10 71. MERS willfully breached their implied covenant of good faith and fair dealing

11 with Plaintiff when MERS allowed their alleged agent to execute the Assignment of the Deed of
12 Trust in order to appoint a new Trustee to begin foreclosure on the Subject Property.
13
72. As a result of the Foreclosing Defendants’ breaches of this covenant, Plaintiff has
14
suffered general and special damages in an amount to be determined at trial.
15
EIGHTH CAUSE OF ACTION FOR
16

17 UNJUST ENRICHMENT

18 (AGAINST THE FORECLOSING DEFENDANTS)

19 73. Plaintiff incorporates herein by reference the allegations made in paragraphs 1

20 through 72, inclusive, as though fully set forth herein.
21
74. By their wrongful acts and omissions, the Foreclosing Defendants have been
22
unjustly enriched at the expense of Plaintiff, and thus Plaintiff has been unjustly deprived.
23
75. By reason of the foregoing, Plaintiff seeks restitution from the Foreclosing
24

25 Defendants, and an order of this Court disgorging all profits, benefits, and other compensation

26 obtained by the Foreclosing Defendants from their wrongful conduct.

27 NINTH CAUSE OF ACTION FOR

28
PLAINTIFFS’ COMPLAINT
16
 VIOLATION OF CALIFORNIA BUSINESS AND PROFESSIONS CODE SECTIONS
1

2 17200 ET SEQ.

3 (AGAINST THE FORECLOSING DEFENDANTS)

4 76. Plaintiff incorporates herein by reference the allegations made in paragraphs 1

5
through 75, inclusive, as though fully set forth herein.
6
77. California Business & Professions Code Section 17200, et seq., prohibits acts of
7
unfair competition, which means and includes any “fraudulent business act or practice . . .” and
8
conduct which is “likely to deceive” and is “fraudulent” within the meaning of Section 17200.
9

10 78. As more fully described above, the Foreclosing Defendants’ acts and practices

11 are likely to deceive, constituting a fraudulent business act or practice. This conduct is ongoing
12 and continues to this date.
13
79. Specifically, the Foreclosing Defendants engage in deceptive business practices
14
with respect to mortgage loan servicing, assignments of notes and deeds of trust, foreclosure of
15
residential properties and related matters.
16

17 80. The Foreclosing Defendants fail to act in good faith as they take fees for services

18 but do not render them competently and in compliance with applicable law.

19 81. Moreover, the Foreclosing Defendants engage in a uniform pattern and practice
20 of unfair and overly-aggressive servicing that result in the assessment of unwarranted and unfair
21
fees against California consumers, and premature default often resulting in unfair and illegal
22
foreclosure proceedings. The scheme implemented by the Foreclosing Defendants is designed
23
to defraud California consumers and enrich the Foreclosing Defendants.
24

25 82. The foregoing acts and practices have caused substantial harm to California

26 consumers.

27

28
PLAINTIFFS’ COMPLAINT
17
 83. As a direct and proximate cause of the unlawful, unfair and fraudulent acts and
1

2 practices of the Foreclosing Defendants, Plaintiff and California consumers have suffered and

3 will continue to suffer damages in the form of unfair and unwarranted late fees and other

4 improper fees and charges.

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84. By reason of the foregoing, the Foreclosing Defendants have been unjustly
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enriched and should be required to disgorge their illicit profits and/or make restitution to
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Plaintiff and other California consumers who have been harmed, and/or be enjoined from
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continuing in such practices pursuant to California Business & Professions Code Sections 17203
9

10 and 17204. Additionally, Plaintiff is therefore entitled to injunctive relief and attorney’s fees as

11 available under California Business and Professions Code Sec. 17200 and related sections.
12 TENTH CAUSE OF ACTION FOR
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QUIET TITLE
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(AS TO DEFENDANTS FORECLOSING DEFENDANTS; ALL PERSONS UNKNOWN,
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CLAIMING ANY LEGAL OR EQUITABLE RIGHT, TITLE, ESTATE, LIEN, OR
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17 INTEREST IN THE PROPERTY DESCRIBED IN THE COMPLAINT ADVERSE TO

18 PLAINTIFFS’ TITLE, OR ANY CLOUD ON PLAINTIFFS’ TITLE THERETO)

19 85. Plaintiff incorporates herein by reference the allegations made in paragraphs 1

20 through 106, inclusive, as though fully set forth herein.
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86. Plaintiff is the equitable owners of the Subject Property which has the following
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legal description:
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REAL PROPERTY IN THE CITY OF SAN JOSE, COUNTY OF
24 SAN JOSE, COUNTY OF SANTA CLARA, STATE OF CALIFORNIA
25 DESCRIBED AS FOLLOWS: ALL OF PARCEL B AS SHOWN ON
THAT CERTAIN LOT LINE ADJUSTMENT RECORDED DECEMBER
26 9, 2003 AS DOCUMENT NO. 17520200, OFFICAL RECORDS.
PORTOFINO AT THE RANCH OF SILVER CREEK/PH.5
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APN#:679-36-035
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PLAINTIFFS’ COMPLAINT
18
 1 Also known as 4628 Hill Top View Lane, San Jose, CA 95138
2

3 87. Plaintiff seeks to quiet title against the claims of all Defendants ; ALL PERSONS

4 UNKNOWN, CLAIMING ANY LEGAL OR EQUITABLE RIGHT, TITLE, ESTATE, LIEN,

5
OR INTEREST IN THE PROPERTY DESCRIBED IN THE COMPLAINT ADVERSE TO
6
PLAINTIFF’S TITLE, OR ANY CLOUD ON PLAINTIFF’S TITLE THERETO; (collectively
7
referred to herein as the “Title Defendants”) as the Title Defendants hold themselves out as
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entitled to fee simple ownership of the Subject Property by and through their purchase of the
9

10 property at any trustee’s sale. In fact, the Title Defendants had no right to title or interest in the

11 Subject Property and no right to entertain any rights of ownership including the right to
12 foreclosure, offering the Subject Property for sale at any trustee’s sale, demanding possession or
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filing cases for unlawful detainer. Nevertheless, the Title Defendants proceeded with a non-
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judicial foreclosure sale, through Defendant GMAC and Defendant ETS as alleged trustee,
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illegally and with unclean hands. Plaintiff is willing to tender the amount received subject to
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17 equitable adjustment for the damage caused to the Plaintiff by the Title Defendants’ activities.

18 88. Additionally, the trustee’s sale is void because the requirements of Civil

19 Code Section 2923.5 were not complied with by any of the Foreclosing Defendants.
20 89. Plaintiff seeks to quiet title as of March 7, 2011. Plaintiff seeks a judicial
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declaration that the title to the Subject Property is vested in Plaintiff alone and that the Title
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Defendants and each of them be declared to have no interest estate, right, title or interest in the
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subject property and that the Title Defendants, their agents and assigns, be forever enjoined from
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25 asserting any estate, right title or interest in the Subject Property subject to Plaintiffs’ rights.

26 ELEVENTH CAUSE OF ACTION FOR

27 SLANDER OF TITLE
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PLAINTIFFS’ COMPLAINT
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 (AGAINST THE FORECLOSING DEFENDANTS)
1

2 90. Plaintiff incorporates herein by reference the allegations made in paragraphs 1

3 through 89, inclusive, as though fully set forth herein.

4 91. Pursuant to, among others, California Civil Code section 2924(a)(1)(C), only the
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beneficiary of a Deed of Trust or a beneficiary’s assignee or the agent of a beneficiary or its
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assignee may cause to be recorded against real property either a Notice of Default or a Notice of
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Trustee’s Sale.
8
92. Defendants GMAC and ETS purportedly but falsely acting as either the trustee or
9

10 the agent of the beneficiary of the Deed of Trust, wrongfully and without privilege, caused a

11 Notice of Default to be recorded against the Subject Property.

12 93. Later, GMAC and ETS, again purportedly but falsely acting as either the trustee
13
or the agent of the beneficiary of the Deed of Trust wrongfully and without privilege, caused a
14
Notice of Trustee’s Sale to be recorded against the Subject Property.
15
94. Finally, GMAC and ETS, again purportedly but falsely acting as either the trustee
16

17 or the agent of the beneficiary of the Deed of Trust wrongfully and without privilege, caused a

18 Trustee’s Deed Upon Sale to be recorded against the Subject Property.

19 95. None of the Foreclosing Defendants, whether jointly or severally, were ever a
20 trustee, beneficiary or assignee of any beneficiary of any Deed of Trust recorded against the
21
Subject Property. Accordingly, they wrongfully caused the recording of the Notice of Default,
22
Notice of Trustee’s Sale and Trustee’s Deed Upon Sale against the Subject Property.
23
96. GMAC and ETS, wrongfully and without privilege, has published matters or
24

25 caused matters to be published that they are the current owners of the Subject Property which is

26 untrue and disparaging to Plaintiffs’ interest in the Subject Property.

27

28
PLAINTIFFS’ COMPLAINT
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 97. By doing the acts described above, the Foreclosing Defendants have slandered
1

2 Plaintiffs’ title to the Subject Property.

3 98. In that the conduct and acts of the Foreclosing Defendants violated, among

4 others, California Civil Code section 2924(a)(1)(C), such conduct and acts were not privileged.
5
99. The conduct of the Foreclosing Defendants caused Plaintiff to suffer general and
6
special damages in an amount to be proven at trial.
7
PRAYER FOR RELIEF
8
Wherefore, Plaintiff prays for judgment against the Defendants and each of them, jointly
9

10 and severally, as follows:

11 1. For a declaration of the rights and duties of the parties, specifically that the
12 foreclosure of Plaintiffs’ residence was wrongful.
13
2. For issuance of an Order canceling all Trustee’s Deed Upon Sale.
14
3. To vacate the Trustee’s Deed.
15
4. To vacate and set aside the foreclosure sale.
16

17 5. To quiet title in favor of Plaintiff and against Defendants.

18 6. For compensatory, special, general and punitive damages according to proof

19 against all Defendants.

20 7. Pursuant to Business and Professions Code § 17203, that all Defendants, their
21
successors, agents, representatives, employees, and all persons who act in concert with them be
22
permanently enjoined from committing any acts of unfair competition in violation of § 17200,
23
including, but not limited to, the violations alleged herein.
24

25 8. For civil penalties pursuant to statute, restitution, injunctive relief and reasonable

26 attorneys fees according to proof.

27

28
PLAINTIFFS’ COMPLAINT
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 9. For reasonable costs of suit and such other and further relief as the Court deems
1

2 proper.

3 DEMAND FOR JURY TRIAL

4 Plaintiff demands trial by jury on all issues so triable.

5

6
DATED: March 7, 2011 _____________________________________
7 Tam Thi Duy Le, Plaintiff Pro Se

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PLAINTIFFS’ COMPLAINT
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