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Lenore L. Albert, Esq. SBN 210876 LAW OFFICES OF LENORE ALBERT 7755 Center Avenue, Suite #1100 Huntington Beach, CA 92647 Telephone (714) 372-2264 Facsimile (419) 831-3376 Email: lenorealbert@msn.com Attorney for plaintiff JOHNNIS AN INDIVIDUAL AND AS TRUSTEE OF THE MILLER FAMILY TRUST

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES JOHNNIS an individual and as Trustee CASE NO. of the Miller Family Trust Assigned for all purposes to the: Plaintiffs, Honorable Elizabeth Allen White vs. BANK OF AMERICA, N.A. a business entity FIRST AMENDED COMPLAINT type unknown, ALL PERSONS UNKNOWN 1. WRONGFUL FORECLOSURE 2. VIOLATION OF CALIFORNIA BUSINESS CLAIMING ANY LEGAL OR EQUITABLE AND PROFESSIONS CODE SECTIONS 17200 RIGHT, TITLE, ESTATE, LIEN OR ET SEQ INTEREST IN THE PROPERTY DESCRIBED IN THE COMPLAINT [Demand for Jury Trial] ADVERSE TO PLAINTIFFS TITLE, OR ANY CLOUD ON PLAINTIFFS TITLE THERETO and DOES 1 through 10, inclusive, Defendants.

Plaintiff JOHNNIS an individual and as Trustee of the Miller Family Trust, by and through her attorney, dismisses her first, second, fourth, seventh and eighth claim in this action against Defendant, BANK OF AMERICA, N.A. and amends her complaint in conformity with the courts ruling on the demurrer on November 17, 2011 and alleges the following on information and belief, except as to those allegations which pertain to the Plaintiff:

FIRST AMENDED COMPLAINT v . Bank of America, N.A.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. Plaintiff JOHNNIS 1.

INTRODUCTION Defendant BANK OF AMERICA, N.A. erroneously foreclosed on a James Miller,

deceased and Gloria Miller, deceased then defendant BANK OF AMERICA, N.A. obtained a Lock Out Order after the Superior Court of California granted default judgment against the deceased couple, causing the wrongful foreclosure and (impending) lock out of JOHNNIS PARTIES AN INDIVIDUAL AND AS TRUSTEE OF THE MILLER

FAMILY TRUST (Plaintiff) is an individual residing in Los Angeles, California. This action concerns property owned by Plaintiff located at 1502 S. Ave., Los Angeles, California the legal description of which is attached hereto as Exhibit A (the Subject Property). 3. Defendant BANK OF AMERICA, N.A. (BofA), is a federal bank with its principal The defendants herein named as all persons unknown, claiming any legal or equitable

place of business in Texas. It has been the loan servicer on the Subject Property for several years. 4. right, title, estate, lien, or interest in the property described in the complaint adverse to plaintiffs title or any cloud on plaintiffs title thereto are hereinafter sometimes referred to as the unknown defendants and are unknown to Plaintiffs. These unknown defendants and each of them claim or appear to claim some right, title, estate, lien, or interest in the property described in Exhibit A, adverse to Plaintiffs title. Their claims, and each of them, constitute a cloud on Plaintiffs title to the property. 5. Plaintiffs are ignorant of the true names and capacities of defendants sued herein as

DOES 1-5 and therefore sue these defendants by such fictitious names. Plaintiffs will amend this complaint to allege their true names and capacities when ascertained. Plaintiffs are informed and believe and thereon alleges that each of these fictitiously named unknown defendants claim some right, title, estate, lien or interest in the Subject Property, adverse to Plaintiffs title and their claims, and each of them, constitute a cloud on plaintiffs title to that property. 6. Defendants sued herein as DOES 6 through 10 are contractually, strictly, negligently,

intentionally, vicariously liable and or otherwise legally responsible in some manner for each and every act, omission, obligation, event or happening set forth in this Complaint, and that each of said fictitiously named Defendants is indebted to Plaintiffs as here and after alleged. 7. The use of the term Defendants in any of the allegations in this Complaint, unless

specifically otherwise set forth, is intended to include and charge both jointly and severely, not only named Defendants, but all Defendants designated as DOES 1 through 10 as well. FIRST AMENDED COMPLAINT v . Bank of America, N.A. 2

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8.

Plaintiffs are informed and believe and thereon allege that, at all times mentioned herein,

Defendants were agents, servants, employees, alter egos, superiors, successors in interest, joint venturers and/ or co-conspirators of each of their co-defendants and in doing the things herein after mentioned, or acting within the course and scope of their authority of such agents, servants, employees, alter egos, superiors, successors in interest, joint venturers and/ or co-conspirators with the permission and consent of their co-defendants and, consequently, each Defendant named herein, and those Defendants named herein as DOES 1 through 10, inclusive, are jointly and severely liable to the Plaintiffs for the damages and harm sustained as a result of their wrongful conduct. 9. Defendants, and each of them, aided and abetted, encouraged, and rendered substantial

assistance to the other Defendants in breaching their obligations to Plaintiffs, as alleged herein. In taking action, as alleged herein, to aid and abet and substantially assist the commissions of these wrongful acts and other wrongdoings complained of, each of the Defendants acted with an awareness of its primary wrongdoing and realized that its conduct would substantially assist the accomplishment of the wrongful conduct, wrongful goals, and wrongdoing. 10. Defendants, and each of them, knowingly and willfully conspired, engaged in a common

enterprise, and engaged in a common course of conduct to accomplish the wrongs complained of herein The purpose and effect of the conspiracy, common enterprise, and common course of conduct complained of was, inter alia, to financially benefit Defendants at the expense of Plaintiffs by engaging in fraudulent activities. Defendants accomplished their conspiracy, common enterprise, and common course of conduct by misrepresenting and concealing material information regarding the servicing of loans, and by taking steps and making statements in furtherance of their wrongdoing as specified herein. Each Defendant was a direct, necessary and substantial participant in the conspiracy, common enterprise and common course of conduct complained of herein, and was aware of its overall contribution to and furtherance thereof. Defendants wrongful acts include, inter alia, all of the acts that each of them are alleged to have committed in furtherance of the wrongful conduct of complained of herein. 11. The names and identities of DOES 1 through 10 are unknown at this time. Plaintiffs will

amend this complaint when their identities become known. 12. Any applicable statutes of limitations have been tolled by the Defendants continuing,

knowing, and active concealment of the facts alleged herein. Despite exercising reasonable diligence,

FIRST AMENDED COMPLAINT v . Bank of America, N.A.

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Plaintiffs could not have discovered, did not discover, and were prevented from discovering, the wrongdoing complained of herein. 13. In the alternative, Defendants should be stopped from relying on any statutes of

limitations. Defendants have been under a continuing duty to disclose the true character, nature, and quality of their financial services and debt collection practices. Defendants owed Plaintiffs an affirmative duty of full and fair disclosure, but knowingly failed to honor and discharge such duty. 14. All of said parties have done business in Los Angeles County, California at all times

pertinent hereto. ALLEGATIONS SPEFICIC TO MS. 15. foreclosure. 16. anyway. 17. 18. James E. Miller and Gloria Miller, both deceased, created the Miller Family Trust. After creating the Miller Family Trust the trust applied for and received a reverse money The reverse money mortgage (HEMIC) coined as a SimpleEquity deed of trust However, BofA had no legal power, right or authority to conduct the sale but did so On or about some date after Aug 9, 2010 defendant BofA took the Subject Property at

mortgage on the Subject Property which was already properly placed in the trust. 19.

promised that on July 24, 2007 Countrywide Bank, FSB would advance up to $1,280,000.00 to the Millers as trustees of the Miller Trust in equity on the home. 20. trustee. 21. Plaintiff is informed and believes and alleges thereon that Countrywide Bank, FSB had The SimpleEquity deed of trust was signed by plaintiff Johnnis as Gloria Millers attorney in fact borrower, James E. Miller borrower, James E. Miller trustee, and Gloria L. Miller

not advanced more than approximately $100,000.00 under the reverse money mortgage. The Millers only had the credit line for a short time before they deceased. During that short time, they did not take any lavish trips, buy any luxury items or live a lavish life style. First Mr. Miller became ill and then Mrs. Miller became ill and within a short 1 year time frame, they both were gone. 22. When James E. Miller and Gloria Miller passed away, plaintiff Johnnis became the

successor trustee and beneficiary of the Miller Family Trust. 23. The purpose of a reverse mortgage HEMIC is that upon the event of death of the

borrowers, the estate can choose to either repay the mortgage or put the home up for sale. FIRST AMENDED COMPLAINT v . Bank of America, N.A. 4

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24.

As trustee Ms.

notified BofA of the succession, giving proof of being the successor

trustee and the death certificates. 25. As such, she was entitled to a full accounting and statement of her obligations pursuant

to California Civil Code 2943 so she could pay off the remaining lien visa vie the reverse mortgage sitting in the trust. 26. BofA failed to provide Ms. with a statement of her obligation within 21 days in

violation of California Civil Code 2943. 27. 28. BofA also failed to provide financing to Ms. BofA refused to deal with Ms. erroneously telling her that her credit was not good

enough for financing on the reverse money mortgage and foreclosed on the home. 29. A notice of default was recorded on January 7, 2010 by Bank of Americas, N.A., The notice of default stated There are currently no past due payments on this account. successor by merger to Countrywide Bank, FSB. 30.

This property is not in foreclosure because you are being in your payments. Rather, this property is in foreclosure because the borrower is deceased and the property is no longer the residence of at least one surviving borrower. (Anderson v Heart Fed. Sav., 208 Cal.App.3d 202 (1989)) 31. It also stated that If there is a failure to make future payments on the loan, pay taxes on the property, provide insurance on the property, or pay other obligationsthe beneficiary or mortgagee may require, as a condition of reinstatement, that reliable written evidence that all senior liens, property taxes, and hazard insurance premiums were paid be provided making the notice of default void. (Anderson v Heart Fed. Sav., 208 Cal.App.3d 202 (1989)) 32. The notice of default represented Upon your written request, the beneficiary or mortgagee with give you a written itemization of the entire amount you must pay. 33. Ms. requested a written itemization of the entire amount shc must pay in order to release BofAs lien. 34. 35. However, BofA never responded with a written itemization of the entire amount. A declaration stated that the bank contacted Ms. and the financial situation was

assessed and options to avoid foreclosure were discussed on January 6, 2009. 36. Ms. was in the middle of deep grieving over the loss of Gloria Miller who died on January 1, 2009 just five (5) days before this purported assessment exploration of options occurred. 37. Ms. alleges that the declaration is not true. 5

FIRST AMENDED COMPLAINT v . Bank of America, N.A.

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38.

The bank then caused a Notice of Sale to be recorded on July 12, 2010 which purported

that the remaining principal sum on the deed of trust was $1,280,000.00 and established $1,280,000.00 as the minimum bid. 39. Knowing that to be untrue, Ms. found a buyer who was ready, willing and able to

buy the Subject Property at market value. This buyer had stellar credit. 40. The potential buyer, Brian Edwards offered to purchase the property for $635,000.00

after he obtained an appraisal from a realtor named Angela Quinones. 41. Realtor Angela Quinones prepared the offer with Brian Edwards as the buyer and

submitted it to a Bank of America representative who denied the offer on the grounds that Johnnis had enough time to find a buyer for the property and the bank had waited long enough. 42. The offer to buy the home at market value was made before 5 days of the sale at

foreclosure, however BofA refused to allow the buyer to purchase the Subject Property. 43. Plaintiff is informed and believes and alleges thereon that BofA purchased the home at

foreclosure through a credit bid (no money offer) for $606,515.00. 44. BofA then filed an unlawful detainer solely against James E Miller and Gloria Miller

individually, who they were already notified as being deceased. 45. 46. 2011. 47. Ms. received the notice of the lock out order and date through the US Mail on May A default judgment was filed and writ of possession was issued. BofA served a lock out order on or about May 16, 2011 with a lock out date of May 21,

19, 2011, just two days prior to the lock out. 48. Ms. contacted BofA and again told them there was a buyer who was willing to pay

BofA what they bought the home for or make any other offer on the Subject Property in order to avoid the lockout but BofA stated that they could not sell the home and Ms. had to go through the listing

agent that was posted online at www.bankofamerica.reo.com. However, there was no listing agent or listing number posted online at www.bankofamerica.reo.com so a realtor had no one to bring an offer to. 49. The home is over 3,600 square feet and it is/was impossible for Ms. to move

everything out of the Subject Property which she had been residing in within 48 hours. 50. The estate of the Millers intended Johnnis to be the successor trustee, heir and

beneficiary of the Subject property. FIRST AMENDED COMPLAINT v . Bank of America, N.A. 6

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51.

Bank of America, N.A.s actions and failure to act have ensured that the intentions of the

deceased Millers could not be realized. 52. Defendants have engaged in a scheme of illegal, unfair, unlawful and deceptive business

practices that violate California law in the servicing of home-secured loan transactions and in the provision of certain related services, including foreclosure services. FIRST CAUSE OF ACTION FOR DAMAGES FOR WRONGFUL FORECLOSURE AS TO ALL DEFENDANTS 53. Plaintiffs incorporate herein by reference the allegations made in paragraphs 1 through

53, inclusive, as though fully set forth herein. 54. 55. At all times mentioned herein BofA owed plaintiff a fiduciary duty. Refusing to allow a person to buy a home during foreclosure for market value is a

violation of California law. 56. Taking the home that was in a Trust prior to the reverse mortgage by a federal agency Fourteenth Amendment Rights.

such as defendant Fannie Mae is a wrongful taking of property in violation of the Fifth Amendment of the U.S. Constitution and/or a violation of Ms. 57.

Defendants violated these rights, regulations, and laws by proceeding with the

foreclosure sale. 58. The property and the mortgage were at all times in the name of the Miller Trust.

However, the defendants foreclosed against James Miller and Gloria Miller who were both deceased. Therefore, the Trustee was void of legal rights to sell it. 59. By reason of the fraudulent foreclosure, plaintiff prays for relief as stated below. SECOND CAUSE OF ACTION FOR DAMAGES FOR VIOLATION OF CALIFORNIA BUSINESS AND PROFESSIONS CODE SECTIONS 17200 ET SEQ. AS TO ALL DEFENDANTS 60. Plaintiff incorporates herein by reference the allegations made in paragraphs 1 through

60, inclusive, as though fully set forth herein. 61. California Business & Professions Code Section 17200, et seq., prohibits acts of unfair competition, which means and includes any fraudulent business act or practice . . . and conduct which is likely to deceive and is fraudulent within the meaning of Section 17200. FIRST AMENDED COMPLAINT v . Bank of America, N.A. 7

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62.

As more fully described above, Defendants acts and practices are likely to deceive,

constituting a fraudulent business act or practice. This conduct is ongoing and continues to this date. 63. Specifically, Defendants engage in deceptive business practices with respect to mortgage

loan servicing, foreclosure of residential properties and related matters by a. Forfeiting the $70,000 advanced to the Trust on or about January 2009 prior to the death of Miller in violation of Civil Code 1923.2 which states in pertinent part (e) A lender who fails to make loan advances as required in the loan documents, and fails to cure an actual default after notice as specified in the loan documents, shall forfeit to the borrower treble the amount wrongfully withheld plus interest at the legal rate. b. Failing and refusing to deal with Ms. who was the successor trustee of the Miller

Family Trust and treating her as the owner-occupier of the property in violation of Cal Civ Code 1923.3 which states For the purposes of this chapter, a property shall be deemed to be owneroccupied, notwithstanding that the legal title to the property is held in the name of a trust, provided that the occupant of the property is a beneficiary of that trust. c. Defendants violated Cal. Welf. & I C Code 15610.30 constituting financial abuse by

taking, secreting, appropriating, obtaining, or retaining the real property of the Millers (or assisting therein) for a wrongful use or with intent to defraud, or should have known that this conduct was not conducive to the elderly persons intentions. d. Serving an unlawful detainer action by mail addressed to the deceased for which the US

mails will withhold said mail, with actual knowledge that both Mr. and Mrs. Miller were deceased. e. And failing to give Ms. the equity left remaining in the home after the foreclosure

sale that was in excess of the amount required to pay off the lien was a violation of California law. 64. Defendants fail to act in good faith and respond to borrowers communications and with a statement of her

requests in compliance with applicable law. BofA failed to provide Ms. obligation within 21 days in violation of California Civil Code 2943. 65.

Defendant violated California Civil Code 2924. The default was made solely on the

grounds that the borrower is deceased and the property is no longer the residence of at least one surviving borrower. (Anderson v Heart Fed. Sav., 208 Cal.App.3d 202 (1989)) 66. The procedure for foreclosing on security by a trustees sale pursuant to a deed of trust is

set forth in Civil Code section 2924 et seq. The statutory requirements must be strictly complied with, and a trustees sale based on statutorily deficient notice of default is invalid. (Miller v. Cote (1982) 127 FIRST AMENDED COMPLAINT v . Bank of America, N.A. 8

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Cal.App.3d 888,894, relying on System Inv. Corp. v Union Bank, supra, 21 Cal.App.3d at pp. 152-153; see also Sweatt v. Foreclosure Co. (1985) 166 Cal.App.3d 273, 278.) The beneficiary is bound by [its] notice of default[and] cannot insist upon any grounds of default other than those stated in that notice. (Tomczak v Ortega, supra, 240 Cal.App.2d at p. 904) If the Particular default notice is cured the deed of trust must be reinstated. (Ibid, italics in original.) Anderson v Heart Fed. Sav., 208 Cal.App.3d 202 (1989). 67. Ms. submitted the required documents in order to cure the deed of trust as the requested financing. When the bank

successor trustee. When the bank ignored the tender, Ms. refused to provide Ms. with financing, Ms.

found a buyer with stellar credit and had the

property appraised and tendered market value. The bank refused that offer too on the grounds that she had enough time. This was in violation of Civ. Code 2924 and 2923.5 which required BofA to fully explore and initiate contact to explore alternatives to foreclosure. 68. Defendants actions were unlawful. Not only did they violation Civ. Code 2924 and

2923.5 but plaintiff is informed and believes and alleges thereon that their authorized agent, Amber Matthews, falsely attested under penalty of perjury that 5 days after Gloria Miller died BofA complied with 2923.5 and assessed Ms. 69. financial situation and explored foreclosure alternatives. was emotionally distressed. She could not eat, sleep, felt

On January 6, 2009 Ms.

nausea and overwhelmed with the grief of losing Gloria Miller just five (5) days earlier. She does not even recall any conversation on that date. 70. Such an assessment and exploration cannot occur within the meaning of Civ. Code was experiencing at the

2923.5 during the middle of the grieving process such of the type Ms. time. 71. 72.

Corporations are not supposed to take advantage of the grieving. As a direct and proximate cause of the unlawful, unfair and fraudulent acts and practices

of Defendants, Plaintiff has suffered and will continue to suffer financial losses such as those described by this plaintiff. 73. The purpose of a reverse mortgage is to allow an elderly person enjoy the equity in their from either paying off the

home. Then after they are deceased, their beneficiaries can choose to either pay off the mortgage or sell the home for the remaining equity. Defendants acts prevented Ms.

mortgage or selling the home and taking the remaining equity as her inheritance.

FIRST AMENDED COMPLAINT v . Bank of America, N.A.

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74.

By reason of the foregoing, Defendants have been unjustly enriched and should be

required to pay for all damages caused by their conduct, remediate all credit damage created thereby, and make restitution to Plaintiffs and other California consumers who have been harmed, and/or be enjoined from continuing in such practices pursuant to California Business & Professions Code Sections 17203 and 17204. Additionally, Plaintiffs are therefore entitled to injunctive relief and attorneys fees as available under California Business and Professions Code Sec. 17200 and related sections. PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for judgment against defendants as follows: A. Injunctive relief; B. Compensatory, Special and General Damages as proven at trial; C. Statutory damages and civil penalties; D. Treble damages; E. Pursuant to Business and Professions Code 17203, that all Defendants, their successors, agents, representatives, employees, and all persons who act in concert with them be permanently enjoined from committing any acts of unfair competition in violation of 17200, including, but not limited to, the violations alleged herein. F. Disgorgement of profits; G. Costs of this action, including the fees and costs of experts; H. Attorneys fees; I. Prejudgment interest at the statutory rate; J. Post-judgment interest; K. Exemplary and Punitive Damages; and L. Such other and further relief as this Court finds necessary and proper. DEMAND FOR JURY TRIAL Plaintiffs hereby demand a jury trial. Dated: December 6, 2011 LAW OFFICES OF LENORE ALBERT

By:____________________________ LENORE ALBERT, ESQ. Attorney for plaintiff, JOHNNIS AN INDIVIDUAL AND AS TRUSTEE OF THE MILLER FAMILY TRUST FIRST AMENDED COMPLAINT v . Bank of America, N.A. 10