Complaint to Set Aside Sale

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Ricky Cox & Donna Cox713 Albemarle AvenueRio Linfu CA95673

Plaintiffs ln Propria Persona

SUPERIOR COURT OF T}IE STATE OF CALIFORNIA

COUNTY OF SACRAMENTO

V.

Rickv Cox & Donna Cox,

Plaintiffs,

Deutsche BankNational Trust Company as

Trustee under the Pooling and Servicing

Agreement Dated February 1,2005,

GSAMP Trust 2005-NC1; Quality Loan

Service Cotp.; Litton Loan Servicing LP;

Marti Norieg4 First United Home Loans;

Tom Delkash; and Does l-50

COMPLAINT FOR:

1. Intentional Misrepresentation ofFact/Fraud

2. Negligence Per Se (Violations of B & PCode $17200 et seq.

3. Negligence Per Se (Violations of CCC

92923.5,92924 and $2329.6 supra

4. SlanderofTitle

5. Wrongful Foreclosure

Defendants.

Plaintiffs RICKY & DONNA COX, allege;

PARTIES

1. PlainLiff, RICKY COX, is an j-ndividual residing in theCounty of Sacramento, State of California.

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COMPLAINT TO SET ASIDE TRUSTEE'S SALE

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2. Plaintiff, DONNA COX, is an individual resi-dlng in theCounty of Sacramento, State of California.

3. Pl-aintiffs, RICKY & DONNA COX (*COXES" or 'PLAfNTIFFS"),are and were the lawful owners of the Property located at 713

Albemarl-e Avenue, Rio Linda, CA 95613. This property i-s a one tofour unit residence located in the County of Sacramento, Stateof California. A copy of the grant deed conferring title to them

on November L3,2004 is attached as Exhibit \r1/' to thisComplaint.

4. Defendant, FIRST UNITED HOME LOANS (*FIRST UNITBD"),'

is,/was a business entity with a princlple place of business

Iocated at 70l. S. Parker St., Suite 1600, Orange, CA 92868.

FIRST UNITED regularly conducted financial transactions in theCounty of Sacramento, State of California. PLAINTIFFS are

informed and bel-ieve that FIRST UNITED, was the "Lender" and

"Beneficiary" named on the loan as evidenced by the Deed ofTrust, executed on November 1-3, 20A4, whlch is attached as

Exhibit "2".5. Defendant, TOM DELKASH (*DELKASH"), is an individual,

employed or formerly employed by FIRST UNfTED as a loan officer.PLAINTIFFS are informed and believe that DELKASH was the l-oan

officer that solicited and processed their loan documents as

evidenced by his name and si-gnature on the Uniform ResidentialLoan Application, Loan Servicing Disclosure Statement, and

Interim Servicing Notification (attached as Exhibit "4", "6" , &

"1") .

6. Defendant, LITTON LOAN SERVICING L.P. (*LITTON") is a

business entity with a princj-ple place of business located at4828 Loop Central Drive, Houston, TX 11 081. LITTON regularlydoes business within the State of California and specificallywithin the County of Sacramento, State of Californi-a. PLAINTfFFS

are informed and believe that LITTON is the entitv which acted

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as a servicer on behalf of the alleged beneficlaries. As

servicer, DOES 1-50 ordered the foreclosure sale of 7l-3

Albemarle Avenue, Rio Linda, CA 95613, which occurred on orabout November 9, 2009.

7. Defendant, MARTf NORIEGA (*NORIEGA"), is an individual who

resides in Texas. PLAINTIFFS are informed and believe thatNORIEGA was the individual who signed the Assignment of Deed ofTrust (attached as Exhibj-t "14") .

8. Defendant, QUALfTY LOAN SERVfCB CORP. ('QUALITY") is a

Business entity, wi-th a principle place of business located at2741 5tb Avenue, San Diego, CA 92tOL. QUALfTY was the foreclosingtrustee of an alleged Deed of Trust on 713 Albemarle Avenue, Rio

Linda, CA 95673. QUAIITY regularly conducts business within theState of California and specifi-ca11y within the County ofSacramento, State of California.

9. Defendants, DEUTSCHE BANK NATIONAL TRUST AS TRUSTEE UNDER

THE POOLING AND SERVICING AGRBEMENT DATBD FEBRUARY 1, 2005,

GSAMP TRUST 2005-NC1 (*DEUTSCHE"), i-s a corporation, form

unknown, that conducted financial transactions in the County ofSacramento, State of California. The Assignment of Deed of Trustwas recorded on February 3'o, 2OOg whereby MERS grants, assignsand transfers beneficial interest in the subject property to*DEUTSCHE BANK NATIONAL TRUST COMPANY as trustee under thePooling and Servicing Agreement dated as of February 1, 2005,

GSAMP Trust 2005-NC1."

10. Defendants, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS,

INC. ('MERS"), is a Delaware corporation engaged in the businessof holding title to mortgages. It conducts business in the Stateof California as evidenced by the inclusion of its name on theAssignment of Deed of Trust from MERS to DEUTSCHE recorded on

February 3, 2049 in the Sacramento County Recorder's Office.11. PLAINTIFFS are informed and believe and thereon a1leqe

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that at all times herein mentioned, each of the Defendants were

the agents and/or the employees of their co-defendants, and j-n

doing the thi-ngs hereinafter alleged were acting within thecourse and scope of their authority as such agents, servants and

employees, and with the permission and the consent of their co-defendants.L2. PLAINTIFFS are ignorant of the true names and capacities

of the Defendants sued herein under the fictitious names DOBS 1-

50, i-nclusive, and PLAfNTIFFS pray for leave to amend thisComplaint to allege such names and capacj-ties as soon as theyare ascertained. Each of said fictitiously named Defendants isresponsJ-b1e in some manner for the wrongful acts complained ofherein.13. Defendants, and each of them, at all relevant times hereln

were and still are agents for one another, and acting under thecourse and scope thereof, with knowledge and consent of each

other.

.I(IRISDICTfON

L4. The transactions and events, which are the subject matterof this Complaint all occurred withln the County of Sacramento,

State of California.15. The property located at 713 Albemarle Avenue, Rio Linda,

CA 95673 is located in the County of Sacramento, State ofCalifornia. The APN i-s 206-0294-003-0000-

16. The legal description of the property is Lot 23, as shown

on the plat of Jefferson Park, recorded in the office of theRecorder of Sacramento County, December 18, 1959, in book 58 ofmaps, map no. 18.

REQLEST FOR in Ry TRIAT

L7. The COXES request a jury trial on all issues .i-n thismatter.

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EACTT'AI.. BACKGROI'IID

18. This action arises out of a loan related activity to theproperty of which the PLAINTIFFS are the rightful owners.

19. Beginning in 1998, and such facts are so well known as tobe Judicially Noticeable under California Evidence Code 5451 and

5452, lenders, thej-r agents, employees, and related servicers,including Defendants, developed a scheme to rapidly infusecapital into the home mortgage lending system by selli-ngmortgages on the secondary market, normally three to fj-ve times,to create a bankruptcy remote transaction. The lenders, theiragents, employees, and related servicers, includj-ng Defendants,

then pooled these mortgages into large trusts, securitizing thepool and selling these securities on WaIl Street as mortgage

backed securities, bonds, derivatives and insurances, often fortwenty or thi-rt.y ti-mes the ori-ginal mortgage.

20. In "sellLng" these mortgage notes on the secondary market,

Defendants falled to follow the basic legal requirements for thetransfer of a negotiable instrument and an interest in realproperty. While lenders could have simply gone to Congress toamend existing law so that it would allow for their envj"sioned

transfers, they did not. Inst.ead the Defendants simply ignoredthe legal requirements.2L. In factr ro interest in the Mortgage Note, Deed of Trust

or Property was ever 1egal1y transferred to any of theDefendants, and that the Defendants are in effect straw men, and

parties without any standing before this court to assert 1egal

rights with respect to this contractual transaction.22. Further, as this process became more and more profitable,

the underwriting requirements were repeatedly reduced to ensure

more and more unsuspecting borrowers. As the lenders reduced theunderwriting requi-rements, they introduced the concept of

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"churning" loans involving a calculated plan to repeatedlyrefinance borrowers' 1oans, taking as much equity as possi-ble,

and artificially driving up housi-ng prices.23. Lenders, Defendant FfRST UNITED HOME LOANS included,

regularly trained, directed, authorized andlor participated withmortgage brokers to implement this scheme, giving them monetary

incentives to violate the borrowers' trust.24. In 7961 Lorenzia & Ruby Cox, parents of Plaintiff RICKY

COX, purchased the property located at 713 Al-bemarle Avenue, Rio

Linda, CA 95673 where they raised their famj-ly, including theplalntiff Ricky Cox.

25. Lorenzia Cox passed away in December 1-985 leaving Ruby Cox

wi-th the property.26. Ruby Cox passed away in May 2004 leaving the property to

her son, Plaintiff Ricky Cox and hls wife Plaintiff, Donna Cox

who moved 1n to the home in August 2004.

27. In or about November 2004, Defendant TOM DELKASH

approached PLAINTIFFS, telling them that he was a loan officerfor Defendant FIRST UNITED HOME LOANS, and solicited them toref j-nance their mortgage.

28. Defendant DELKASH advi-sed t.he COXES that he could get them

the "best deal" and the "best interest rates" available on themarket. Defendant DELKASH knew or should have known t.hat theseassurances were false and misleading.29. Defendant DELKASH advised the COXBS that he could get them

100% financing for their Mortgage, that their loan would be a

fixed rate loan with low interest for 30 years. However,

Defendant DBLKASH actually sold the PLAINTfFFS a loan with an

adjustable rate rider that would negatively amortize.30. PLAfNTIFFS advised Defendant DELKASH that they did not

want a prepayment penalty attached to their loan. Defendant

DELKASH assured the COXES that no prepayment penalty would be

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attached to thej-r loan, a representation Defendant DELKASH knew

or should have known was false and Defendant DELKASH knew orshould have knorsn was designed to induce PLAINTfFFS to acceptthis loan to their detriment. Unfortunately, PLAINTIFFS have

since di-scovered that the loan sol-d to them contained aprovision for a 2 year prepayment penalty.31. On November 13, 2004, the COXES secured a loan of

$93,000.00 from FIRST UNITED HOME LOANS. The loan was a 2 yeax

fixed rate mortgage. The loan was secured by a Deed of Trust on

the property located at 713 Albemarle Avenue, Rio Linda, CA

95673 that was recorded on November 30, 2004 in the Sacramento

Count.y Recorder's Office in the County of Sacramento, State ofCalifornia.32. The promissory note securing the property whj-ch was

alleged1y executed on November 13, 2004 was, in fact, not even

truly si-gned by the COXES at all. The signatures on theAdjustable Rate Note were, in fact, forgied by either DELKASH oranother employee,/agent of FfRST UNITED. This is evidenced by thesignatures on the Note compared to various samples of the COXES

signatures from other loan related documents, all of which areattached herein.33. This fraudulent instrument promised to the COXES an

interest rate of 6.5t for 24 months. The note call-ed for thefirst palment to conrmence on January 1, 2005. Thereafter, terms

of the promissory note were conflicting and confusing. The

promissory note called for a ceiling cap of 72.52. The

promissory note also stated that the interest rate could cl1mb

28 points per year. The Truth in Lending Disclosure (attached as

Exhibit \\5") revealed something entirely different. The Truth inLending Disclosure reflected an Annual Percentage Rate (APR) of8.013%. The Truth in Lending Disclosure reflected an approximate

$60 increase after the first 24 months, to reach a ceiling of

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$655.22 on July I, 2001. Thereafter, JuIy 1, 2001 the monthlymortgage payment was to be $655.22 for 329 months,

34. Defendants FfRST UNITED and DELKASH, as authorized agent

for FIRST UNITED, Provided the Loan Servicing Dj-sclosureStatement, which Defendant DELKASH placed l\xx" in the space

provided next to the option "We are able to service your loanand presently intend to do so" in the section titled "ServicingTransfer Estimated by Lender" that the loan would not be so1d,

transferred, or asslgned to another servicer. The disclosurestatement was signed on November !2, 2404 and j-s attached as

Exhibit "6",35. The day that the COXES si-gned the loan documents,

Defendant.s FIRST UNITED and/or DELKASH, as an authorized agent

for Defendant FIRST UNITED, notified the COXES by wrlttennotice, whi-ch is attached as Exhibit "8", that effective the day

the loan was scheduled to close, the servicing of our loan isbeing assigned, so1d, or transferred from our lender toDefendant THE PROVIDENT BANK OF CINCINNATTI, OH.

36. PLAINTIFFS also received a notice re: transfer,/sale ofloan which states that upon the closing of our loan, with thefirst mortgage payment. not even due for still at least another30 days, notifying us that our loan had indeed been sold.Defendants FIRST UNITED, and DELI(ASH knew or should have known

that this was contradict.ory to the representation made

previously as evidenced by Loan Servicing Discl-osure Statement.

37. Soon thereafter, FIRST UNITED pooled this defective note

and trust deed with other similar loans that were sold toinvestors as GSAMP Trust 2005-NC1. However, theassignrnent/transfer of beneficial interest from FIRST UNITED toDEUTSCHE BANK NATTONAL TRUST COMPANY did not occur untilFebruary 3, 2A09 when it was recorded in the Sacramento County

Recorder's office.


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38. Once the COXES loan was pooled with others to form GSAMP

TRUST 2005-NC1, then LfTTON, also owned by Goldman Sacs, became

the servicer of the loan and have remained so ever since then.39. Throughout the past fer+ years since LfTTON had been

servicing the COXES 1oan, the COXES had from time to time been

l-ate on their payments and received Notices of Default, whj-ch

they always managed to cure before their time ran out. However,

those Notices of Default were always issued through QUALfTY as aforeclosi-ng trustee. Not through TICOR, as the Deed of Trustnames TICOR as trustee.40. The first time the COXES ever saw the Adjustable Rate Note

was when it was received with the letter from LITTON dated June

24, 2008. Upon review of the document, the COXBS immediatelyrealized that they had not signed the document themselves. As

evidenced specifically by the si-gnature of RfCKY COX compared toother samples of his signature (attached as Exhibit *3").

4L. The COXES are informed and believe that the notices ofassignments of the note and trust deed were not provided to them

by the subsequent beneficiaries and assignees.

42. fn or about April 2008, the COXES contracted the servicesof JOSEPH BISOGNO, Sr. Vice President, LOAN COMPLIANCE ADVISORY

GROUP. MR. BISOGNO performed an audit of the loan documents and

as authorized by the COXES, sent an official written requestwith attached complaint and exhibits to LITTON and FTRST UNITED

on April 30, 2008 (attached as exhibit "9"). Under Section 6 ofRESPA, they were required to acknowledge the request within 20

business days and must try to resolve the issue within 60

business days.

43. However, LITTON failed to respond within the allottedtimeframe. They did not respond until- June when BISOGNO receiveda letter dated June 24,2008 (attached as Exhibit *10"). In thisresponse, signed by DAPHNE MOSELEY of the Legal Department at

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LITTON, states in the third paragraph that the servj-cing of theloan was transferred to LITTON in April 2005 and that at theti-me of the response, the Beneficial Holder was DEUTSCHE BANK

NATIONAL TRUST COMPANY AS TRUSTEE UNDER THE POOLING AND

SERVTCfNG AGREEMBNT DATED FEBRUARY 1, 200s-NCl- with the address

being 4828 Loop Central Drive, Houston, TX 77081.

The address referenced above is the same address as theprinciple place of business for LITTON.

44. In the Substitution of Trustee, recorded in the office ofthe Sacramento County Recorder on January 22, 2A49, DEUTSCHE,

who at that time had no lawful beneficial interest in thesubject property, substitutes QUALITY in place of Ticor as

Trustee under the Deed of Trust. The Substitution of Trustee isattached as Bxhibit 1113" and though it is dated December 10,

2008 by DENISE BAILEY, Assistant Secretary , Lj-tton Loan

Servicing LP, Attorney-in-fact for DEUTSCHE, it was not

notarized by Mel-issa Bell until January 5, 2009. The

Substitution of Trustee still was not recorded in the office ofthe Recorder of Sacramento County for an additi-onal seventeen

days on January 22, 2009. Thj-s raises the questionz If it was

dated on the same day as the Notrce of Default, why was inneither recorded nor mailed to the COXES at the same time as theNotice of Default?45. An assignment of Deed of Trust, attached as Exhibit "L4",

was not recorded in the office of the Recorder of Sacramento

County until February 3, 2009 in which the Deed of Trust was

transferred to DEUTSCHE from MORTGAGE ELECTRONIC REGISTRATION

sysrEMS, rNc. AS NOMINEE FOR FIRST UNTTED HOME T.OANS. MERS

authorized agent, MARTI NORfEGA, Assj-stant Vice President,signed the document which was dated Saturday December 6, 2008;

however, was not notartzed by Brenda McKinzy until January 21,

2009 which was forty six days later and coincidentally the dayl0


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before the Recordj-ng of the Substitution of Trustee. This raisesthe question: If the Assigrunent of Deed of Trust was dated fourdays before the Notice of DefauJt and the Substitution ofTrustee, what wouid cause such a deTay in the notarization as

well as the recording of the document? Another importantquesLion is: Why were all three documents recorded in backwards

order if they were rea77y prepared jn the correct order?46. Prior to the recording of the Assignment of Deed of Trust,

there was no notice of any lawful assignment or transfer of any

benefieial interest in the subject propertlz to DEUTSCHE.

FIRST cjAUSE OF ACTION

IIi|:TEIflTIONAT MISREPRESSNTATION OF I.ACT/I'RAI'D

(TS,t DETfijLSE r FrRSr UNTEED BOME LOAITS)

47. Plaintiffs RICKY & DONNA COX reallege and incorporate, ds

though fully set forth herein paragraphs 1 through 46,

inclusive.48. Plaintlffs allege intentj-onal misrepresentation, fraud and

deceit in the origination of the Loan for the subject propertywlth facts to prove the following elements:

1. Misrepresentations made by the defendant;2. Yorgery;3. Scienter;4. An intent to induce Plaintiffs' reliance on the

misrepresentation;5. Causation;6. Justifiable reliance by Pl-aintiffs on the misrepresentation;7. Damages.

49. Plaintiffs are informed and believe and thereon allege

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that, dt all times herein mentioned, Defendant TOM DBLKASH was

the agent and/or employee of Defendant FIRST UNITED HOME LOANS,

and in doing the things herein allege was acting within thecourse and scope of such agency and employment and with thepermission of FfRST UNITED.

50, On or about November L2, 2004, Defendant TOM DELKASH made

the following representations to Plaintiffs:(a) That Plaintiffs' income to debt ratio would not be aconsideration in the loan process when it was obvious that the

COXES eould not qualify for the loan based on standardunderwriting guidelines;(b) That Plaintiffs would be getting a 30 year fixed ratel-oan, not an adjustable rate loan with a prepayment penalty;(c) That Plaintiffs did have adequate documentation to support1008 financlng,'(d) That DELKASH himself would not be available at the time ofcicninn. hrr.i- thp noferv he hired to come to our home with theurYrrrrrY, pve f

documents to be sigined, would take care of everything;(e) That the loan was to be serviced by FIRST UNITED with no

intention of se1l1nq the loan on the secondary market at thattime.51. The representations made by the Defendant were in factfalse. The true facts werel

(a) The income to debt rati-o is generally used as part ofthe standard underwriting Guidelines;(b) Plaintiffs' loan was not a 30 year fixed rate loan

with fixed monthly payments;

(c) Plaintiffs did not have adequate documenlation tosupport such a loan.(d) Defendant knew or should have known that his presence

at the time of the signing of the loan documents was a

necessity so as to ensure that the Plaintiffs were j-nformed

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of what they were signing and to answer any and allquesti-ons that the COXES may have had j-n regards to theterms of the loan;(e) Defendant had no intention of servlcing the loan and

every i-ntention of selling it on the secondary market.

52. Defendant, FIRST UNITED, through its employee, TOl,l

DELKASH, stands in such a fiduciary relationship as would callfor a duty of disclosure.53. Defendant FfRST UNITED deceived Plaintiffs, and as such,

TOM DELKASH was under a duty to inform Plaintiffs of the truefacts.5{. When DELKASH made these representations, Defendant FIRSST

UNITED knew them to be false and made these representations withthe i-ntention to deceive and defraud the Plaintiffs and toinduce the Plaintiffs to act in reliance on these

representations in the manner hereafter alleged' or with the

expectation that Plaintiffs would so act.55. Plaintiffs, at the time these representations were made by

defendant and at the time Plaintiffs took the actions hereina11eged, were igrnorant of the falsity of defendants

representations and believed them to be true.56. In reliance on these representations' Plaintiffs were

induced to and did accept the loan that is the subiect of, thislitigation.57. Had Plaintj-ffs knovrn the actual facts, they would not have

taken such action.58. Plaintiffs reliance on Defendant's representations were

just.ified because Plaintiffs are unsophisticated in real- estatematters and that there was no reason to believe that t.he

defendant was deceiving them.

59. As a proximate result of the fraudulent conduct of

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Defendants as herein alleged, Plaintiffs were duped and subjectto onerous foreclosure proceedings and the possibility of lossof their family's home of forty years, by reason of which

Plaintiffs have been damaged in the sum of $103,2"79.77.

60. The aforementioned conduct of defendant (s) was an

rntentional misrepresentation, deceit, or concealment of a

material fact known to the defendant (s) with the intention on

the part of the defendant (s) of thereby depriving Plaintiffs ofproperty or lega1 rights or otherwise causing injury, and was

despicable esnduet that subjected the Plaintiffs to a cruel and

unjust hardship in conscious disregard of Plaintiffs' rights, so

as to justify an award of exemplary and punitive damages.

SECOND CA_USE OF AEIION

I{EGI,IGENCE PER SE

(VIOLAETON OF BUS & PROF CODE 517200 et. Seq.)(ell. DEE:EtgDAlrrs)

61. Plaintiffs refer to paragraphs 1 through 60 of thisComplaint; and hereby incorporates the same as if fully setforth hereln.62. Plaintif fs al-l-eqe that Defendant's business practi-ces are

'l i La'l tr +. a m.i al eacl thJ o*a,"r=t n,.1-''l j ^ --d tf,"r*tarr". COnStitUteIIJLery L\,) tlr-LDrccr\.r Lrre \JerrEl.clr }JLrLr-Lrur crrlLr Lrlcr-El-\J!Y, (

a fraudulent business act of practice within Business and

Professional Conduct 517200 et.seq,63. Our Cal-ifornia Appellate Court Second District in 2003 i-s

j-nstructive in enunciating a legal test for unfairness inconsumer actions under the Business and Professions Code 517200

et.seq." The courts of appeal has suggested that a practice isunfair if it offends an estabJ-ished public policy or is i-moral,

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uneth5.cal, oppressive, unscrupu1oue or substantial.J.y injuriousto consr:ner, and t}at unfairneEs is determined by weighing theutility of the practi.ce against the gravity of the harn toconsruner. (see Kunert v. Missj-on Fj-nanclal Servlces Corp. 110

Cal.Ap. 4th 242 and Walker v. Homes Servicing, Inc 2002, 98

eal.Ap. 4th 1158)

64. In the case at bar the Defendant lenders' conduct and

practices werc clearly unethical, oppressive, unscrupulous and

substantially injurious to consumers as outllned supra.

65. In fact, the utility of the practices did not only cause

grave harm to Plaintiff but also most likely caused qrave harm

to other consumers of these lenders, aqents, services, orassigned beneficiaries .

66. Defendants, as Lender, Trustee, and/or assiqnees, owed

Plaintiffs certain specific statutory duties as set forth withinCalifornia Business & Professj-ons Code S17200 et.seq.67. Plaintiffs are within that class of persons to be

protected by said statutes.68. Those duties required Defendant lenders, agents, trustees

or servicers DEUTSCHE, LfTTON. QUALfTY and FIRST UNfTED torefrain from any practice that is unfair if it offends an

established public policy or is immoral, unethical, oppressive,unscrupulous or substantially injurious to a consumer

(PLAINTIFFS).

69. Each of the Defendants breached their said statutoryduties because they violated the duties enumerated above in thefoll-owing parti-culars :

Firgt as ].ender:

70. Defendant DELKASH as agent/employee of FfRST UNITED, was

not present to answer any and all questions that the plaintiffsmay have had at the time of the signing of the loan documents.

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COMPI-AINT TO SET ASIDE TRUSTEE'S SALE

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Instead, he had arranged for a Notary from Santa Clara County,

CA to come to the COXES' home wi-th the loan documents for them

to sign. The Notary, Robert Cleaves, was compensated $450.00

according to the Truth in Lending Statement.

7L. The COXES should have signed the Note themselves had they

so ehose to aecept an offer for an adjustable interest rate.But, Defendant DELKASH had already been told by the COXES thatthey were looking for a fixed rate loan and therefore he knew

that the COXES would not sisn such a Note so he forqed theirsigrnatures.

Second as Trustee, Lender, Ageat and,/or Servicer:12. Defendants DEUTSCHE, QUALITY, and LITTON, as previously

mentioned j-n this complaint, did not duly perfect theassignment/transfer of beaeficial' interest of the subject loan

before the foreclosure process was initiated.73. As of L?ILO/2OOB, Under the Deed of Trust recorded on

LL/3O/2OO4, RICKY and DON!{A COX, husband and wife as jointtenants are named as "Borrowets" i FIRST UNITED EOME LOAIIS

{CfL#603 8682) was named as "I€Dder"; ffCOR TIELE COMPAIII was

named as "Trustee". Please note that this was the dav before the

Notice of Default was filed.74- However, the Notice of Default was filed on

L2/1-1,/2008 by QUALfTY as the foreclosing trustee even though atthat time Ticor Title Company was the trustee under the Deed ofTrust.?5. The Substitution of Trustee, is the document a beneficiarl'

uses to substitute a new trustee in place of the one named on

the Deed of Trust.76. The Substitutj-on of Trustee in question transferred the

duti-es of Trustee from Ticor Title Company to QUALITY and was

dated 12/L0/2A08 by DENISE BATLEY, Assistant Secretary, LITTON

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LOAN SBRVfCING LP, Attorney-in-fact for DEUTSCHB BANK NATIONAL

TRUST COMPANY AS TRUSTEE UNDER THE POOLING AND SERVICING

AGREEMENT DATED FEBRUARY t, 2005, GSAMP TRUST NC1, but notarizedby Melissa Bel1 on I/5/2009 and recorded on I/22/2009 in the

office of the Sacramento County Recorder.

71, ealifornia Civil Code 52932.5 states:"Where a power to sell real property is given to a mortgagee,

or other encumbrancer, in an i-nst.rument intended to secure

the payment of money, the power is part of the security and

vests in any person who by assignment becomes entitled topayment of the money secured by the instrument. Ihe porer ofsale nay be exercised by the assigmee if the assigmment isduJ,y acknowledged and recorded. "

78. The Assignment of Deed of Trust which transfers the

beneficial interest in the subject loan to DEUTSCHE was not

recorded until 2/312009; therefore, DEUTSCHE was not the

beneflciary at the time they filed and recorded the Substitutionof Trustee on I/22/09.79. Further, The Assignment of Deed of Trust in question was

from MERS to DEUTSCHE and signed by MARTI NORIEGA as AssistantVice President for MERS as Nominee for FIRST UNITED HOME LOANS.

But, in all truth, MARTI NORIEGA is employed by LITTON LOAN

SERVICING LP, not MERS or FIRST UNITED-

80. This means that FIRST UNITED never lawfully assigned theirbeneficial interest in the subject loan to anybody.

81. This demonstrates the maliclous intent of the defendants,

and each of them, to defraud the 1ega1 system as well as theplaintiffs and unlawfully obtain the tltle to the propertylocated at 713 Albemarle Avenue, Rio Linda, CA 95673.

82. In a rush to foreclose on thousands of homes they

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neglected their duties by filing documents that were inaccurateto allow the non-judicial foreclosure process to initiate, and

they did not care the damages that they caused.

83. Specifj-cal-1y, FIRST UNITED never lawfullyassigned/transferred benefi-cj-al interest in the property toDEUTSCHE or any other entity.84. In December 2008, LITTON, through QUALITY, not the

original t.rustee under the Deed of Trust, issued the defectiveNotice of Default which named MERS as nominee for FfRST UNITED

as beneficiary under the Deed of Trust. Never before this had

MERS appeared on anythlng related to the subject 1oan.

85- As a direct and proxirnate result of the negligence per se

of the lender, agents, and/or servicer Defendants, and each ofthem, the Plaintiffs have suffered foreclosure of the familyhome/ monetary damages, emotional distress, and the indirectcosts j-n an amount currently incalculable, but according toproof at trial together with such other and further relief as

the court may deem reasonable and just under the ci-rcumstances.

86. Business and Professions Code S17200 et.seq. states:"The court shall i-mpose a civil penalty for each violation ofthis chapter. In assessj-ng the amount of the civil penalty. thecourt shall consider any one or more of the relevantcircumstances presented by any of the parties to the case,

including, but not limited to the following: the nature and

seriousness of the misconduct, Lhe number of violations, thepersistence of the misconduct, the length of time over which themisconduct occurred, the willfulness of the defendants'misconduct, and the defendants' assets, llabilities and neL

worth. "

TETRD CEUSE OF ACTION

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(NegJ-igence Per Se)

VIOLATION OF CA CIVIL CODE 52923.5, 52924 (52329.6 supra)(9UAI,IT! r.oAlr SERVTCE CORP. )

VTOI.ATTON OE. CA CTVTL CODE 52923.5 A REQI'IRB'{ETflT PRIOR TO

FIIING A NO{TICE OF DEETT'&T CA CIVIL CODE 52924

87. PLAINTIFFS refer to paragraphs 1 through 96 of thisComplaint, and hereby incorporates the same as if fully setforth herein.88. The j-ntent of the legislature when passing and forming

California Civil Code 52923.5 was clear: Protect boneorners and

slow foreclosures.89. fn particular, Defendants QUALITY failed to

"Stri-ctly Comply" with CA Civil Code 52923.5 and 52924 inrecordlng the Notice of Default on December tl-, 2008.

90. A Trustee has a duty requirement t.o fo1low 52923.5.

"strict Compliance Rules prevents the iender from relying on

such default as a basis for any subsequent Trustee Sale".(See System fnv. Corp. v. Union Bank (1,971)2L CA3d 137) Such

failure to comply voids the Notice of Defaul-t.

91. PLAINTIFFS are within the class of persons to be protectedby said statute 52923.5. Once this foreclosure train start.s down

the hill there is littl-e to stop it and protect those who may be

caught by dishonesty.92. CA Civil Code was passed as Senate Bill 7737 effective

September 2008 and applies to loans made for prlmary home

residential property between January L, 2003 and December 31,

2008.

93. PLAINTIFFS' l-oan was made November 2004. It is theirprimary residence.

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94. The intent of the legislation is clear , and QUALITY chose

to ignore it and was negligent.95. The Defendants', QUALITY, unfair, unlawful, and fraudulent

business practlces including, but not limited to ttre patentlyfa1se and misJ'eading declaration by LfTfOlf and the errors infiJ.ing the l{otice of Defau3.t oa Deeeolter 11, 2008 in violatioaof, 52923.5 and 52924.

96. QUALITY failed to attach a declaration to the faultyNotice of Default on December 17,2008 in violation of 52923.5

and 52924.

97. When DEUTSCHE filed an Unlawful Detainer action againstthe Plaintiffs, they attempted to lodge a fraudulent declarationas *'NOL L" (attached as Exhibit "L2"). But Plaintiffs promptly

caught on to this and purchased a certifi-ed copy of the Notice

of Default (attached as Exhibit \r11//) which proves that the

decl-aration was not filed properly as required by 52923.5. The

Legislature enacted this statute to slow the foreclosure process

and this attempt by the defendants demonstrates the maliciousj-ntent to defraud not only the Plaintiffs but the court as well.98. fn a rush to put people out of their homes, Defendants,

DEUTSCHE, LITTON and QUALITY harmed Plaintiffs and harmed many

others who just gave up.

99, A11 of these three have made more money by rapidlyPushing people out of their homes, This, done aggressively withnegligence and when confronted chose to ignore and push harder

to eject Plaintiffs and other homeowners. This is negligence

with malice. They lost money when modifications were done.

100. Thie was presented to Congress as an interim report:trCurrent exXrreTy high J'eweJ,s of defanalts ane.d forecTosu.res

among resideatial rcrtgages z.etr>resents the iaterim report toCongress by the Sec.retalry, of tbe Departaeat of Eousing ar'd

Urbaa Mwel-ogrcnt (EIID) prer'sraa''t to Seetion 7577 of tbe2A

COMPI/.INT TO SET ASIDE TRUSTEE'S SALE

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28o 106.


Eoasiag aled EcoaaLe Recowezar Act (EERA) of 2008 (P.L. 770-

289) '.rrhe pEobT@,s ia &e wrXgage aazket are routiaely

referr.ed to ae a "foreclosrrre czisis" because tbe level ofdefaaTts aad forec.Tosrar.es gireatly exeeed previoras peak J'eveJ,s

ia tbe gmet-vaz eg'a aad., aE a res-rgJ-t, bave dravn erytarj,eoneto tbe J.eveJ,s of ,r; ctr.ess e:qrerienced :La T-he GreaL

DgJrregsioe. o

101. Regulation errors were made and harmed many innocenthomeowners who simply qave up. These people should be ashamed ofwhat they continue to propagate.

LO2. The United Trustee Association wrote:"The new requirements of 52923.5 are not protected by

52924L non monetary protection."However, relying on the beneficiary or their servicer as

to the validity of the decl-arati-on, any authorized agent

should review their power of attorney or agency documents and

may wish to consult their legal counsel regardj-ng

indemnification" .

103. LfTTON and QUALITY knew that there was no declarationsigned and attached to the Notice of Default on December 11,

2008 and fraudulently signed and backdated the declaration forDEUTSCHE to lodge as "NOL 1" in the Unlawfuf Detainer actionasai-nst the Plaintiff s.

104. Defendants, DEUTSCHE, LfTTON and QUALITY knew thatthe requirements of 52923.5 and 52924 needed to be followed.

105. As a result of the actj-ons of the Defendants,

QUALITY, LITTON, and DBUTSCHE, the Plaintiffs have suffered a

loss in the Unlawful Detainer action against them and have untilJune 9, 20L0 to ei-ther buy the home back or move out with thejudgrment against them.

The Plaintiffs have suffered and continue to suffer2l

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great emotional dj-stress and humility from the negligence of thedefendants, and the fraud to cover it up.

FOT'RTE CAUSE OF ACTION

SI.A}IDER OF TITIE(DEIIISCEE BjANK NArrOltAI. fRUST COMPAIIY as

Trustee for GSAIIIP Trust 2005-bfC1)

107. Plaintiffs refer to paragraphs 1-105 of thiscomplaint, and hereby incorporates the same as if fully setforth herein.

108. Plaintiffs are the l-awful owners of the propertylocated at 713 Albemarle Avenue, Rio Linda, CA 95673.

109. Plaintiffs inherited the property from RICKY COX'S

mother, Ruby Cox who became deceased in May 2004.

110. On or about November 9, 2009, Defendants, and each ofThem, conducted an unlawful non-judicial- foreclosure sale upon

713 Al-bemarle Avenue, Rio Linda, CA 95673.

111. The defendants, DEUTSCHE BANK NATIONAL TRUST COMPANY

AS TRUSTEE FOR GSAMP TRUST 2005 NC1, did not obtain the title by

proper assignment, and therefore, do not have any legal right toforeclose on the COXS' home as beneficlary under the deed oftrust.

LLz. California Civil Code 52932.5 states:"Where a power to sell real property is given to a mortgag€€,

or other encumbrancer, in an instrument intended to secure

the payment of money, the power is part of the security and

vests in any person who by assigrrnent becornes entitled topalrment of the money secured by the instrument. The power ofsal.e nay be exereisd, by the assignee if the assiginment isduly acknorledged and recorded. "

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113. The Defendants, DEUTSCHE BANK NATIONAL TRUST COMPANY

AS TRUSTEE FOR GSAl"lP TRUST 2005 NCI- knew that their interest inthe PLAINTIFFS' property was not duly assigned and perfected and

that there was at l-east a slight chance that questions would be

raised at some point before the COXES would give up and walk

away from their family's home of over forty years.

114. That is why they suddenly registered the PLAINTIFFS'

loan on the MERS system to attempt to falsely assign thernselves

as the beneficiary under the deed of trust. This is evidenced by

the first appearance of the MERS name on the COXS' Notice ofDefault (exhibit \\11") dated 12/I0/2008 and recorded in the

office of the recorder of Sacramento County on 12llT/2008, the

Substitution of Trustee (exhibit \\13") also dated t2/IA/2008 but

not notarized until 7/5/2A09 and finally recorded on 7/22/7A09,

as well as the Assignment of Deed of Trust (exhibit \\LAt/) which

was dated 72/6/2008 but not notarized until I/27/2009 and

finally recorded on 2/3/2009.115. The Assignment of Deed of Trust was signed by MARTI

NORIEGA, Vlce President, MERS. However, MARTI NORIEGA is/was an

employee of LITTON, not MERS or FIRST UNfTED.

116. Defendant. MARTI NORIEGAT is not an aut.horized agent

of FIRST UNITED and had no legal right to assign the Deed ofTrust to DEUTSCHE or anyone else.

LL7. PLAINTfFFS are the lawful owners of the real propertylocated at 713 Albemarle Avenue, Rio Linda, CA 95673.

118. Defendants, DEUTSCHE, have done a poor job as trusteefor GSAMP Trust 2005 NC1 by pooling l-oans that were made under

the poorest of underwriting standards. There are many f .l-aws inmost of the l-oans j-n the pool, not just the PLAINTIFFS'. Now

they are trying to gain possession of these properties before

borrowers challenge their claims, leaving them and theirinvestors with nothi-nq.

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FIETE CAUSE OF ACTION

TIRONGE T'I FORECLOST'RE

(ALL DEEEIIDA]ITS]

119. PLAINTIFFS reallege and incorporate by referenceparagraphs 1 to 118 of this complaint.

L2O. PLAINTIFFS, RICKY AND DONNA COX, are the rightfulowners of the property located at 713 Albemarle Avenue, Rio

Linda, CA 956'13.

L2L. On or about I7/9/2AA9, DEFENDANTS, and each of them,

conducted an unlawful- non-judicial foreclosure sale upon 713

Albemarle Avenue, Rio Linda, CA 95673.

L22. They conducted this unlawful foreclosure auction inviolation of the notice provisions for the Notice of Default by

failing to provj-de the declaration as required by CaliforniaCivil Code 52923.5 and 52924, and by failing Lo have proof ofnecessary Iega1 ownership of the indebtedness j-n it.s possession,

those being the original promissory note, with endorsements and

the origlnal trust deed, with assi-gnments, prior to initiatingthe non-judicial foreclosure.

L23. PLAINTIFFS are informed and believe that even to thisday, the alleged beneficiary and the rest of the DEFENDANTS do

not have these documents in their possession.

L24. Thus, they did not have the legal right to forecloseupon PL.AINTIFFS' property.

125. As a result of DEFENDANTS' actions, PLAINTIFFS have

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suffered harm. Among the harm, he has suffered the slander ofhis reputation in that a foreclosure sale has been reported:ar i nqt h'i m f n r.rodi J- rarrnri- i nrr :rronni aqsYqrrrr e !vyv! sYvirvf vs.

FOR PI'NITIVE DEMAEES AGAINST AI,L DEFEIIDANTS

L26. PLAINTIFF realleges and incorporates paragraphs 1 to725 of this complaint.

L27. PLAINTIFPS al1ege that Defendants, and each of them,

are guilty of malice, fraud and oppression as defined by CA

Civil Code S3294, and that the COXES should recover, in additionto actual damages, damages to make an example of and to punish

all DEFENDANTS.

PRAYER

WHEREFORE, PLAINTIFFS pray judgment as follows:1. For a declaration that the Notice of Trustee's Sa1e,

fil-ed on or abouL March 13, 2049 and attached as exhibitttIstt, is invali-d, unlawful, and does not provide thenecessary foundation for the conduct of a Trustee's Sale,

as described in CA Civil Code 52924 et seq.

For a declaration that the Notice of Default previouslyrecorded on this property J-s invalid, unlawful, and does

not provi-de the necessary foundation for a Californianon-judicial foreclosure.For a declaration that the Trustee's Sale conducted on orabout LI/9/2009 is null and void.For a declaration and order restoring the title to theproperty located at 713 Albemar1e Avenue, Rio Li-nda, CA

95573 to Plaintiffs RICKY AND DONNA COX i-n fee simple.That Defendants DEUTSCHE, LITTON, QUALITY, and DOES 1-50,

and their suceessors and assj-9os, be permanently enjoined

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COMPLAINT TO SET ASIDE TRUSTEE'S SAL.E

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from conducting a non-judicial foreclosure sale upon theproperty located at 713 Albemarle Avenue, Rio Linda, CA

95673.

6. For a judgment ordering Defendants DEUTSCHE, LITTON,

QUALfTY, FIRST UNITED, and DOES 1-50 to produce theoriginal of the promissory note of LL/L3/20Q4, withendorsements to DEUTSCHE and/or the current beneficiarvof this promissory note.

7. That Plaintiffs RICKY and DONNA COX be decl-ared to be theprevailing party.

8. For general and special damages.

9. For punitive damages agai-nst all DEFENDANTS.

10. For such and further relief as the Court may deem

proper.

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Documents

Complaint to Set Aside Sale