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 [Plaintiff Name] [Plaintiff Street Address] [Plaintiff City, State, Zip] [Plaintiff Phone] [Plaintiff Fax] Fax Plaintiff, Pro Per IN THE SUPERIOR COURT OF CALIFORNIA IN AND FOR [PROPERTY COUNTY] COUNTY [PLAINTIFF NAME] Plaintiff, v. [LENDER ON DEED] [CURRENT TRUSTEE] [SERVICER] and Does 1 through 50 inclusive. Defendant. CASE NO.: 1. BREACH OF COVENANT OF GOOD FAITH AND FAIR DEALING 2. CONCEALMENT 3. UNJUST ENRICHMENT 4. WRONGFUL FORECLOSURE 5. VIOLATION OF CALIFORNIA CODE § 1788.17 6. MISREPRESENTATION/FRAUD 7. BREACH OF CONTRACT 8. DECLATORY RELIEF MEMORANDUM IN SUPPORT OF DECLARATORY JUDGMENT: MOTION TO ORDER A PRELIMINARY INJUNCTION BARRING SALE: PLAINTIFF [PLAINTIFF NAME], (hereinafter "Plaintiff"), and complains against [LENDER ON DEED] (hereinafter “[LENDER ON DEED]"), 1
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[Plaintiff Name]
[Plaintiff Street Address]
[Plaintiff City, State, Zip]
[Plaintiff Phone]
[Plaintiff Fax] Fax
Plaintiff, Pro Per
IN THE SUPERIOR COURT OF CALIFORNIA
IN AND FOR [PROPERTY COUNTY] COUNTY
[PLAINTIFF NAME]
Plaintiff,
v.
[LENDER ON DEED]
[CURRENT TRUSTEE]
[SERVICER]
and Does 1 through 50 inclusive.
Defendant.
CASE NO.:
1. BREACH OF COVENANT OF GOOD
FAITH AND FAIR DEALING
2. CONCEALMENT
3. UNJUST ENRICHMENT
4. WRONGFUL FORECLOSURE
5. VIOLATION OF CALIFORNIA CODE §
1788.17
6. MISREPRESENTATION/FRAUD
7. BREACH OF CONTRACT
8. DECLATORY RELIEF
MEMORANDUM IN SUPPORT
OF DECLARATORY JUDGMENT:
MOTION TO ORDER A PRELIMINARY
INJUNCTION BARRING SALE:
PLAINTIFF [PLAINTIFF NAME], (hereinafter "Plaintiff"), and
complains against [LENDER ON DEED] (hereinafter “[LENDER ON DEED]"),
[SERVICER]. (hereinafter "[SERVICER]"), [CURRENT TRUSTEE], and DOES 1-50.
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JURISDICTION
Venue is proper since the transaction and the real property in question is located within
[Property County] County, the State of California.
PARTIES
Plaintiff [PLAINTIFF NAME] (hereinafter “Plaintiff") is an adult individual, whose
residence is [Plaintiff Street Address], [Plaintiff City, State, Zip].
Defendant, [LENDER ON DEED], (hereinafter, “Defendant” [LENDER ON DEED]”) is listed as
the original lender on the Deed of Trust as executed on [Date DOT Executed]
Defendant, [LENDER ON DEED] lists their address as [LENDER ON DOT Complete Address]
Defendant, [CURRENT TRUSTEE], (hereinafter "Trustee") lists their address as [CURRENT
TRUSTEE Complete Address].
Defendant, [SERVICER], (hereinafter "Servicer") lists their address as [SERVICER Complete
Address], upon information and belief of Plaintiff is the successor in interest to Defendant
[LENDER ON DEED].
Defendants, JOHN and JANE DOE l-50 (hereinaiter "Defendants’ Doe"), l-50, are "persons’
who Plaintiff believes, following Discovery, are likely to be named as additional Defendant(s).
NOTE: The terms Note(s) and Security Instrument are interchangeable and to be construed to be
synonymous.
FIRST CAUSE OF ACTION
(BREACH OF COVENANT OF GOOD FAITH AND FAIR DEALING)
Against ALL DEFENDANTS
Plaintiff hereby incorporate all preceding paragraphs as if they are set forth at
length herein.
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A-1. AS APPLIED T0 [LENDER ON DEED] — PREDATORY LENDING
1. Plaintiff was approved for the loan in question by “stated income" rather than a
detailed analysis of income, assets, existing debt, or any other factors, therefore, [LENDER ON
DEED] approved this loan without concern, without analysis, and without advice on Plaintiff’s
ability to afford the monthly payment.
2. For the [Month and Year of Loan Origination] the average 30 year fixed rate was
[30yr Fixed Rate] and the average 15-year ARM was [15yr Fixed Rate]. Plaintiffs average FICO
scores were over [Plaintiffs Fico Score]. Therefore, the loan in question at [Final Interest Rate] was
a key element of predatory lending. (See Exhibit A)
3. The debt to income ratio of Plaintiff DTI was far higher than the 35% of household
income considered acceptable to be set aside for mortgage/rental expenses.
4. Inducing home purchaser into teaser rates, then telling [him/[his/her]] that [he/she]
could refinance at a later date, known as loan flipping, is common predatory lending practice.
Plaintiff was encouraged by [LENDER ON DEED] to refinance within a few years for a lower rate,
another predatory loan tactic.
5. Plaintiff was told by [his/her] mortgage broker that [he/she] was fortunate to be able
to obtain this loan, which further induced Plaintiff into signing a contract that was based on
cognovit clauses, concealment, absence of bargaining power for Plaintiff, and privity of contract
issues, all in bad faith.
6. This loan falls under the category of predatory lending in that it was doomed to fail
from the beginning, and designed; to result in default and foreclosure.
7. Plaintiff, inexperienced and unschooled in home loan contracts, was harmed by
being intentionally deceived by [LENDER ON DEED] in regards to the approval process which
caused [his/her] harm by inducing [his/her] into a predatory loan with a confession of
judgment/cognovit contract which was doomed to fail, breaching the covenant of good faith and
fair dealing.
8. As a matter of law the agreement is void and unenforceable, and Plaintiff is entitled
to relief.
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A-2. AS APPLIED T0 [LENDER ON DEED] — BREACH AT CLOSING
9. On the Plaintiffs Deed of Trust dated [Date DOT Executed] and Promissory Note for the
amount of [Amount of Promissory Note], [LENDER ON DEED] is named as the purported Lender.
10. The Deed of Trust contained cognovit clauses which were never explained such as
“irrevocable”, “seising", "seised", ”power of sale", "presentment", or "waive" which caused
Plaintiff to waive [his/her] rights in a confession of judgment.
11. The statement contained within the deed of trust which says ‘Borrower irrevocably grants
and conveys to Trustee, in trust, with a power of sale, the following described property located in
the county of [Property County] . . ." which was not explained to Plaintiff, constitutes a cognovit
note and/or confession of judgment by requiring the Plaintiff to waive [his/her] rights to ownership
and without recourse allow the Trustee to invoke power of sale without restriction.
12. The statement contained within the Deed of Trust which says “BORROWER
COVENANTS that Borrower is lawfully seised of the estate, hereby conveyed and has the right
to grant and convey the Property and that the Property is unencumbered, except for
encumbrances of record. Borrower warrants and will defend generally the title to the Property
against all claims and demands, subject to any encumbrances of record", was not explained to
Plaintiff. (emphasis added)
13. Any reasonable person, if informed of the meaning of "lawfully seised", if informed about
[his/her] right to grant and convey the Property, if informed that [he/she] were to defend the title,
would have to conclude that [he/she] was in he position of absolute ownership of the property.
14. The cumulative effect of the Deed of Trust presented by [LENDER ON DEED] containing
small and hidden cognovit/confession of judgment provisions withholding material facts pertinent
to Plaintiffs absolute ownership of the property which was not explained, caused Plaintiff to
unknowingly waive [his/her] rights to possession of property, and accept adverse judgment against
[his/her] without legal recourse against the power of sale, and without requisite consideration for
the waiving of [his/her] rights, caused said Deed of Trust to operate as an illegal Cognovit Note.
15. At the closing there was only a notary as representative from [LENDER ON DEED] present
who is listed as Trustee on the Deed of Trust.
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16. The agent of [LENDER ON DEED] failed to explain anything to Plaintiff, only urging
Plaintiff to hurriedly sign the documents.
17. Plaintiff, like the average public, was unschooled in contract law.
18. For a cognovit note to be legal there must be clear and unambiguous warning that one is
waiving [his/her] rights, and any cognovit/confession of judgment clauses must be disclosed and
explained by a competent attorney. [LENDER ON DEED]’s failure to provide an attorney to
explain the waiving of rights through confession of judgment and financial amounts at risk, then
provide a certificate pursuant to Cal. Civ. Code § ll32(b) and 1133, when [LENDER ON DEED]
knew or should have known they had a duty to do so, constitutes a material breach of California
Law and breach of the covenant.
19. [LENDER ON DEED]’s failure to provide adequate time at closing and failure to instruct
their agent to reveal and explain clauses hidden within the Deed of Trust affecting Plaintiffs control
and ownership of [his/her] property by directing [his/her] to such clauses, when Plaintiff relied on
[LENDER ON DEED] to act in good faith in contract, constitutes a material breach of the
covenant.
20. Aside from Plaintiffs required signature, the Deed contains no other indication whatsoever
as to signify Plaintiffs acknowledgement or understanding of the cognovit/ confession of judgment
phrases.
21. For a cognovit contract to be legal there must be extra consideration for agreeing to waive
one’s rights such as reduction in installment payments or reduction in interest rates. There was no
extra consideration given by [LENDER ON DEED] to Plaintiff.
22. Failure to disclose the cognovit/confession of judgment phrases in the Deed of Trust and
failure to provide Plaintiff extra consideration for the waiving of [his/her] rights renders the entire
agreement illegal, void, and is in breach of the covenant.
23. A contract that causes any party to waive fundamental rights through the use of confession
of judgment/cognovit phrases in the Deed of Trust, when it is claimed or appears to the court that
the contract or any clause thereof may be unconscionable and unenforceable, the parties shall be
afforded a reasonable opportunity to present evidence as to its commercial setting, purpose, and
effect to aid the court in making the determination per Cal. Civ. Code § l670.5(b).
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24. Without the ramifications of the above-mentioned cognovit phrases being explained in the
Loan Documents which required [his/her] signature, Plaintiff was unconscionably disadvantaged
by being deceived into waiving [his/her] rights to an equitable agreement and fair treatment,
thereby making a "meeting of the minds" and thereby an acceptance of terms and conditions
impossible.1
25. Without a "meeting of the minds" and an understanding and acceptance of terms and
conditions, a contract is void and unenforceable.
26. [LENDER ON DEED]’s failure to thoroughly explain or provide clear and unambiguous
warning disclosing the waiver of Plaintiff’s rights and the forfeiture of control and ownership of
said property resulted in unconscionably depriving the unknowing Plaintiff of [his/her]
fundamental rights to due process and redress by appeal.
27. [LENDER ON DEED]’s failure to provide adequate disclosure on the cognovit
clauses/confession of judgment within the Deed of Trust rendered the entire contract illegal and
made any waiver of Plaintiff’s ability to dispute a foreclosure null and void.
28. Plaintiff would never have signed such an agreement had [he/she] known and understood it
was a confession of judgment and [he/she] was owed extra consideration.
29. Plaintiff was harmed by [LENDER ON DEED] by being induced into an unconscionable
contract with illegal cognovit clauses and confession of judgment, which caused [his/her] to
unknowingly and unwillingly waive [his/her] rights relative to possession of [his/her] property, and
attempting to deprive [his/her] of the right to take actions to protect [his/her] property against
foreclosure.
30. Since Plaintiff was unschooled in contract law and unknowingly was induced into signing
Loan Documents with illegal cognovit clauses, [he/she] were harmed by the concealed intent of
[LENDER ON DEED] to securitize Plaintiffs Security Instruments without due consideration, was
harmed by foreclosure of [his/her] property by a third party.
31. The fact that Plaintiff was unknowingly misled and rushed into signing an illegal cognovit
note forfeiting ownership of [his/her] property to [his/her] grave detriment, resulting in being
1 "Under California law, where a party in a position of unequal bargaining power is presented with an offending clause without the opportunity for meaningful negotiation, oppression and, therefore, procedural unconscionably, are present." See Ferguson v. Countrywide Credit Industries, Inc., C.A.9 (Cal.) 2002, 298 F.3d 778.
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deprived of [his/her] rights under Article 3 of the California Constitution, and Fifth and Fourteenth
Amendment Rights saying no person shall "be deprived of life, liberty, or property, without due
process of law".
32. Due to deception, fraud, false pretense, misrepresentation, concealment, suppression or
omission of material facts with intent that Plaintiff relied upon these elements, [LENDER ON
DEED] has breached the covenant of faith good and fair dealing, and UCC § 2-302 which states:
"If the court as a matter of law Ends the contract or any clause of the contract to have been
unconscionable at the time it was made the court may refuse to enforce the contract, or it may
enforce the remainder of the contract without the unconscionable clause, or it may so limit the
application of any unconscionable clause as to avoid any unconscionable result"
33. By reason of nondisclosure of the cognovit clauses in the alleged contract making the
contract illegal, the covenant of good faith and fair dealing has been breached rendering the
contract void, unenforceable, entitling Plaintiff to the setting aside of the scheduled foreclosure sale
and damages in excess of the sum of [$972,000] which is to be determined at trial.
34. The contract presented by [LENDER ON DEED] was one of adhesion, which willfully put
the Plaintiff in a position of disparity and disadvantage due to the overwhelming advantage and
bargaining power held by them as purported Lender.2
35. At no time did [LENDER ON DEED] or its agents before or during closing inform Plaintiff
of [his/her] inability to negotiate or request different terms, making the contract a "take it or leave
it" offer.
36. An illegal cognovit note and contract of adhesion presented by [LENDER ON DEED]
willfully put the Plaintiff in a position of disparity and disadvantage due to the overwhelming
superior advantage in bargaining power held by them as purported Lenders.3
2 "The deed of trust is a typical contract of adhesion; therefore, when interpreting the trust deed any ambiguities are interpreted against the beneficiary who prepared the form."( Wilson v. San Francisco Federal Savings & Loan Assn, 62 Cal. App. 3d l, 7, 132 Cal. Rptr. 903-lst District 1976; Lomanto v. Bank of America 22 Cal. App. 3d 663, 668, 99 Cal. Rptr. 442-l4th district.
3 A contract may be procedurally unconscionable under California law when the party with substantially greater bargaining power presents a take-it-or-leave it contract to a customer, even if the customer has a meaningii.11 choice as to service providers.
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37. The combination of hidden cognovit clauses being undisclosed, the "take it or leave it"
nature of the offer, the grossly unequal bargaining power, and rushed closing where Plaintiff who is
unschooled in law and relied upon [LENDER ON DEED], was induced to hurriedly sign the
documents, constitutes both procedural and substantive unconscionably as a matter of law.
38. Plaintiff was in a position of reliance on [LENDER ON DEED] to act in good faith, without
concealment or misrepresentation, without unfair advantage, without undue surprise, expecting to
sign a contract based on equal bargaining power, and expecting to arrive at a full and mutual
meeting of the minds. With the numerous breaches of the covenant of good faith and fair dealing,
Plaintiff’s reliance on [LENDER ON DEED] was to [his/her] detriment.
39. Inducing Plaintiff, with an illegal cognovit/confession of judgment contract of adhesion
amounts to overwhelming and compelling grounds to warrant presentation of this case to a jury.
40. Absent certification by an attorney who explained the cognovit/confession of judgment
phrases, absent clear and unambiguous warning of the phrases, absent consideration for the waiving
of Plaintiff’s rights, and affording Plaintiff the opportunity to bargain on [his/her] behalf; the
cognovit note and contract of adhesion in the form of the Loan Documents are illegal and/or void.
41. Plaintiff is entitled to relief including but not limited to the setting aside of the wrongful
foreclosure.
A-3. AS APPLIED TO [LENDER ON DEED] — PRIVITY OF CONTRACT
42. At no time prior to or during the execution of the Deed of Trust and Note was Plaintiff
specifically made aware by [LENDER ON DEED] or its agents that by executing said Loan
Documents, [he/she] may be subject to subsequent assignment that could result in securitization of
said documents for further profit, in violation of Plaintiff’s right to Privity of Contract.
43. Plaintiff had no dealings with [SERVICER].
44. Without knowing another party would convert [his/her] Note into a negotiable instrument
and security for undisclosed profits without due consideration, Plaintiff had no opportunity to make
an informed choice about the agreement.
Shroyer v. New Cingular Wireless Services, Inc., CA.9 (Ca1.)2007, 498 F.3d 976.
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45. Had Plaintiff known [his/her] Note would be converted into a negotiable instrument and
security for profits that [LENDER ON DEED] or any of its successors or assigns would benefit
from without giving Plaintiff due consideration, [he/she] would have never agreed to such a
contract.
46. [LENDER ON DEED] breached the covenant of good faith and fair dealing by violating
privity of contract and harmed Plaintiff by depriving [his/her] of choice and due consideration from
profits derived from converting and securitizing [his/her] Note.
B. AS APPLIED TO [SERVICER]
47. A title examination reveals that no Substitution of Trustee exists, and that no Substitution of
Trustee was ever recorded, there is a break in the chain of title.
48. [SERVICER] fraudulently relied on a Notice of Default and Election to Sell Under Deed of
and commencing a wrongful foreclosure of [his/her] property, to which [he/she] is entitled relief.
THIRD CAUSE OF ACTION I
(UNJUST ENRICHMENT)
Against [LENDER ON DEED] & DOES 1-50
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64. Plaintiff hereby incorporates all preceding paragraphs as if they are set forth at length
herein.
65. Selling Plaintiff’s Note to a securitized trust to be traded on Wall St. with profits collected
by multiple entities such as the originator, master servicer, depositor, CDO manager, document
custodian, trustee, underwriter, securities administrator, and certificate holders constitutes unjust
enrichment.
66. The genuine Security Instruments in this matter have been purposely destroyed or altered
and securitized to be held in a separate and distinct Trust account since on or near the time the
original Deed(s) of Trust and Note(s) were signed by Plaintiff.
67. [LENDER ON DEED] never provided disclosure to Plaintiff through the Deed of Trust or
any other documentation that [his/her] Security Instruments would be securitized for extended
profits.
68. Plaintiff never intended, nor knowingly granted or delegated authority to any other party to
use the underlying real estate as collateral and the use of [his/her] credit to change the character of
[his/her] Note by creating a new negotiable security designed for extended and hidden profits from
the use of [his/her] collateral and Security Instruments with no extra consideration to [his/her].
69. Plaintiff was never presented with documentation evidencing pooling and servicing
agreements, Specialized Purpose Vehicle and Collateralized Debt Obligation information, and
certificates to investors, nor were such transactions designed for extended profits knowingly stated,
approved., or authorized by the Plaintiff in the Deed of Trust.
70. Defendant’s, including any JOHN DOES, never offered Plaintiff due consideration for the
sale of Plaintiffs Security Instruments into the stream of mortgage~ backed asset pools sold to
investors, which amounted to unjust enrichment which harmed Plaintiff.
71. Converting Real Property by [LENDER ON DEED] or any other entity from its true owner
without true owner’s knowledge and consent is an act of "conversion through fraudulent means"
and "Direct Conversion."4
4 Conversion is defined as: "An unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of their condition or the exclusion of the owner's rights. Any unauthorized act which deprives and owner of his property permanently or for an indefinite time. Unauthorized and wrongful exercise of dominion and control over another's personal property, to exclusion or inconsistent with the rights of owner". BLACK'S LAW DICTIONARY, 5th ed.,
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72. [LENDER ON DEED] earning extra profits beyond the disclosures within the Loan
Documents, without Plaintiffs knowledge or consent, and without due consideration, constitutes
unjust enrichment on the part of [LENDER ON DEED].
73. [LENDER ON DEED] and any subsequent parties involved in securitization of Plaintiffs
Loan Documents had at duty to disclose how they were being used and what profits were being
made.
74. Defendants [LENDER ON DEED] and DOES must prove what party within the chain of
transactions involving securitization of Plaintiffs Security Instruments has a beneficial interest, and
have possession of Plaintiffs Security Instruments, proving standing to collect payments and/or
standing to foreclose on [his/her] property.
75. Upon information and belief Defendants [LENDER ON DEED] and DOES have not
reported Plaintiff’s Security Instruments to the S.E.C. and I.R.S. as required under securities law.
76. It was not the intention of the Plaintiff to enter into an agreement in which the security
instruments would be converted and then securitized, rending the agreement void.
77. The damage to Plaintiff cannot be measured because the use of a person’s credit can be only
limited by the amount of credit that is available to the party whose credit has been used.
78. Failure to disclose securitization and provide extra consideration damaged Plaintiff
financially. Plaintiff is entitled to restitution to be determined by a forensic accounting of all
transactions and profits earned without [his/her] knowledge and consent through the use of [his/her]
Security Instruments.
79. Defendants responsible for undisclosed and unauthorized securitization resulting in unjust
enrichment must return profits to Plaintiff.
FOURTH CAUSE OF ACTION
(WRONGFUL FORECLOSURE)
Against [SERVICER] & DOES 1-50
at 300. Direct Conversion is "The act of actually appropriating the property of another to his own beneficial use... or that of a third person, or altering its nature, or wrongfully assuming title in himself" Id. at 300. This act of conversion is further clarified: "It is an essentially tortuous act, an unlawful act, an act which cannot be justified or excused in law." BALLENTlNE'S LAW DICTIONARY, 3rd ed., at 269, quoting 18, AmIur2nd, Conversion, §l...
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80. Plaintiff hereby incorporates all preceding paragraphs as if they are set forth at length
herein.
81. Plaintiff is not bound by the tender rule in this action when the Plaintiff can properly
demonstrate that the irregularities to the Trustee’s Sale subjecting the Plaintiff to inequitable
actions by the Defendants and thereby preclude [his/her] from owing any amount due to the actions
by Plaintiff causing the break in chain of title and wrongful foreclosure. When the sale is totally
void, a tender cannot be required.
82. Through transfer or assignment, the Note was separated from the Deed, rendering the Deed
a nullity.
83. The Deed of Trust itself states, "This Security Instrument secures to Lender: (a) the
repayment of the debt evidenced by the Note", therefore the Deed without Note is inconsequential.
[SERVICER] never possessed the Note, again falsely representing beneficial interest.
84. By transferring or assigning the Note and separating it from the Deed, [SERVICER] took
part in a chain of actions which led to wrongful foreclosure, thereby damaging Plaintiff and
depriving [his/her] of beneficial use of [his/her] property.
85. Plaintiff is not bound by the tender rule in this action when the Plaintiff’s properly
demonstrate that the irregularities to a Trustee’s Sale will subject them to inequitable actions by the
Defendants giving Plaintiff grounds to deny any amount [SERVICER] claims is owed to them
under the rule.
86. Tender cannot be required under a void condition. With abundant proof of void condition of
the contract and actions by [LENDER ON DEED], the wrongful foreclosure sale is totally void,
rendering any requirement for tender invalid.
87. Only the actual holder of the genuine Security Instruments who can verify and validate a
default has the authority to enforce the security instruments and initiate the “trigger" to foreclose
under Cal, Civ. Code § 2924.In order to legally effectuate the sale of Plaintiffs property, all sections
of Cal. Civ. Code § 2924 must be strictly complied with per Assembly Bill 2624, which did not
occur as is evidenced within this Adversarial Pleading with Exhibits.
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88. "Proper assignment is crucial, after a note has been transferred, the assignment of the
mortgage has been recorded, the debtor is no longer protected in paying to the original
creditor.”(Rodgcrs v. Peckham (1898) 120 C 238, 242, 52 P 483). Pursuant to Cal. Civ. Code §
2932.5, the assignment to [SERVICER] was defective, rendering [SERVICER] devoid of any
beneficial interest and/or power of sale.
89. According to the Notice of Trustee’s Sale dated December 20, 2011 and allegedly executed
by “S/[Authorized Signature”], of [CURRENT TRUSTEE], the sale of Plaintiffs property could
only be held by a "duly appointed Trustee".
90. Plaintiff’s rights were violated by [CURRENT TRUSTEE], acting on behalf of
[SERVICER], who wrongfully executed a Notice of Default and Election to Sell dated [NOD
Execution Date], the same day as execution of the Substitution of Trustee, since [CURRENT
TRUSTEE] still had not been properly authorized by a valid beneficiary to initiate a Trustee’s Sale
in accordance with the Deed of Trust which is required per Cal. Civ. Code § 2924.
91. Defendant’s Notice of Trustee Sale fails to declare that:
"The Beneficiary or its designated agent declares that it has contacted the borrower, tried with due
diligence as required by California Civil Code 2923.5, or the borrower surrendered the property to the
beneficiary or authorized agent, or is otherwise exempt from the requirements of 2923.5."
92. This same declaration was supposed to list any attempts that were made to contact Plaintiff
in violation of Cal. Civ. Code 2923.5 or 2924(f).
93. This failure by [SERVICER] to abide by Civ. Code § 2923.5 and 2924(f) is contrary to fair
and just business practices, the Attorney Code of Ethics, is in bad faith, and is grounds for
overturning Defendant’s 's foreclosure action.
94. On behalf of [SERVICER], Trustee [CURRENT TRUSTEE] should have had in their
possession, all the genuine Security Instruments originally executed by Plaintiff.
95. Neither [SERVICER] nor Trustee [CURRENT TRUSTEE] have shown evidence of their
possession of the Security Instruments entitling them to enforce the Note.
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96. The foreclosure on Plaintiff’s property is wrong because at all material times l antecedent to
their actions, [SERVICER] knew or should have known, as the servicer they were never in actual
possession of the requisite legally valid instruments or had the authority of a party with such
authority.
97. According to In Re Walker, [SERVICER] which was the servicer could not be deemed to
be a “holder in due course" or owner with power to enforce the Note in the foreclosure of
Plaintiff’s property absent ownership of both, Security Instruments, or authority to enforce the
Note. (See Exhibit A.)
98. Plaintiff has a right to see both of the original Notes, and to have fully and properly
addressed who, if any, of the Defendants or their agents or assigns actually is/was in possession of
the original Note at all material times of Defendants’ actions, individually and/or collectively.
99. Absent [SERVICER]’s actual possession of the genuine security instruments or authority of
ownership, at all material times relevant to their actions, deprives them and any representatives
Defendants, including any agents or DOES, also lacking possession of said security instruments, of
legitimate standing by which to effectuate sale of Plaintiffs Property·
100. There is no GAAP—Compliant Ledger showing assets and liabilities which provide
evidence that [SERVICER] is a Creditor of Plaintiffs Security instruments.
101. In order to claim that [SERVICER] or any of its agents or assigns have lost or destroyed the
Note(s), they must comply with U.C.C. §3-309 saying: (1) you were in possession at the time it was
lost; (2) you have the right of enforcement of the note; (3) you have to show that the obligor on the
note is indemnified by you against any future claims; 4) the loss was not due to a transfer. (the
bond) Only by inspecting the original Note can Plaintiff determine who the actual creditor is and
who is authorized to collect payment. Plaintiff has been clearly harmed by such deceptive and
improper actions related to real party in interest status, which has resulted in wrongful foreclosure
and the potential loss of [his/her] property. [SERVICER] is not a bona tide person, but a
corporation that purchases and resells homes. [SERVICER] is currently participating in a wrongful
foreclosure of Plaintiffs property. If the wrongful foreclosure is upheld for any reason,
[SERVICER] or any DOES must return Plaintiffs certified original Security Instruments for
[his/her] possession with Note marked (now) satisfied. Otherwise, they will wantonly leave the
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Security Instruments at issue in the open stream of commerce, thereby subjecting Plaintiff to
double jeopardy, vulnerable to further harm in the future by another debt collection action by
unknown parties for a debt that has already been paid for and received by [SERVICER], in
violation of Plaintiff’s rights. [SERVICER] or any DOES cannot legally have possession of
Plaintiffs property and simultaneously maintain possession of the Security Instruments.
[SERVICER] or any DOES would be committing constructive fraud by failure to return to Plaintiff
the original certified Security Instruments with indication they are now paid and satisfied for
[his/her] possession.
102. In order to claim that [SERVICER] or any DOES have lost or destroyed the Note(s), they
must comply with U.C.C. §3-309 saying: (1) you were in possession at the time it was lost; (2) you
have the right of enforcement of the note; (3) you have to show that the obligor on the note is
indemnified by you against any future claims; 4) the loss was not due to a transfer.5
103. Without the return of Resp0ndent’s Security Instruments, [he/she] has been put at risk and
has been harmed, and is entitled to relief.
FIFTH CAUSE OF ACTION
AGAINST DEFENDANT [SERVICER]
104. On [NOD Recording Date] a Notice of Default and Election to Sell under a Deed of Trust
(NOD) was recorded by "S/[Authorized Signature]", as authorized agent for [SERVICER]. This
document was recorded on [NOD Recording Date]. This document indicates that YOU ARE IN
DEFAULT UNDER A DEED OF TRUST DATED [Date DOT Executed]. UNLESS YOU TAKE
ACTION TO PROTECT YOUR PROPERTY, IT MAY BE SOLD AT A PUBLIC SALE.
a. The Defendant violated California Civil Code § 1788.17 by engaging in conduct, the
natural consequence of which is to harass, oppress, and abuse persons in connection with
the collection of the alleged debt;
5 "—corporate surety bond, and not merely personal indemnity of the note’s holder, is required to comply with UCC Article 3 lost note provisions? See Huckell v. Mantranga, 99 Ca1.App.3d 471-Cal: Court of Appeals, 4th District.
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b. The Defendants violated California Civil Code § 1788.17 by using unfair or unconscionable
means to collect or attempt to collect a debt; and
c. The Defendant violated California Civil Code § 1788.17 by using deceptive means to
collect or attempt to collect a debt from the Plaintiff.
105. The forgoing acts by [SERVICER] were willful and knowing violations of Title 1.6C of the
California Civil Code (FRDCPA), are sole and separate violations under California Civil Code §
1788.30(b), and trigger multiple $1,000.00 penalties.
106. Plaintiff was harmed by [SERVICER] failures to comply with California Civil Code §
1788.17 which led to wrongful foreclosure, and is entitled to relief.
107. [SERVICER] failed to properly execute the terms of the Deed of Trust, and violated key
terms, which was a breach of contract.
108. [SERVICER] improperly allowed an unauthorized debt collector and third party to cause a
recording of an NOD without verification or validation of an existing debt.
SIXTH CAUSE OF ACTION
(MISREPRESENTATION/FRAUD)
Against [LENDER ON DEED], & [SERVICER]
109. Plaintiff hereby incorporates all preceding paragraphs as if they are set forth at length
herein.
110. Within the context of fraud, reliance means that Plaintiff would not have taken the
particular action which underlies the fraud action (e.g., would not have entered into a contract with
the Defendant), had the Defendant not made the representation, promise or created the false
impression, even if the representation, promise, or false impression was not the only reason for
Plaintiffs action.
AS APPLIED T0 [LENDER ON DEED]
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111. [LENDER ON DEED] had superior knowledge of the law and home loan contracts, and
thereby possessed an unconscionable advantage of Plaintiff who lacked legal experience and
knowledge of home loan contracts.
112. Due to misrepresentation of terms and conditions in the Deed of Trust, there could not have
been a full awareness of terms and conditions, and there could not have been equal bargaining
power.
113. [LENDER ON DEED] misled Plaintiff into believing [he/she] was qualified for the subject
loan, when in actuality it was inappropriate for [his/her].
114. [LENDER ON DEED] committed fraud by failing in their legal and moral duty to fully
disclose terms and conditions, and cognovit clauses required for full understanding of the contract.6
It made misrepresentations regarding terms and conditions of the Note and Deed, obviously
intended that Plaintiff rely on their misrepresentation, which Plaintiff did to [his/her] detriment.
115. [LENDER ON DEED] committed misrepresentation and fraud by failing in their legal
obligation to comply with Cal. Civ. Code l132(b) requiring full disclosure by an attorney of
confession of judgment, accompanied by a certification.
116. [LENDER ON DEED] committed misrepresentation and fraud by failing in their legal
obligation to comply with Cal. Civ. Code 1132(b) requiring full disclosure by an attorney of the an
accurate accounting of the sums Plaintiff was expected to pay, accompanied by a certification.
117. [LENDER ON DEED] committed misrepresentation by failing to disclose it would
securitize Plaintiff’s Note and engage in unjust enrichment.
B. AS APPLIED TO [SERVICER]
118. [LENDER ON DEED] failed to assign to [SERVICER] the security instruments.
119. [SERVICER] committed fraud by misrepresenting itself as a beneficiary, and violating The
Deed of Trust at ¶ 20 that "the Note or partial interest in the Note (together with this Security
Instrument) can be sold one or more times without prior notice to Borrower when [SERVICER]
itself has delivered sworn testimony in cases cited by this Adversarial Pleading that [SERVICER]
6 US. v. Prudden, 424 F.2d. 1021; U.S. v. Tweel, 550 F. 2d. 297, 299, 300 (1977) "Silence can only be equated with fraud when there is a legal and moral duty to speak or when an inquiry left unanswered would be intentionally misleading. We cannot condone this shocking conduct".
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does not act as the holder of the Deed of Trust which indicates it had no capacity to act as a
beneficiary, since it was never authorized to enforce the security instruments.
120. [LENDER ON DEED] committed misrepresentation and fraud because they never delivered
the Note and the Deed of Trust together to [SERVICER], because they did not hold the instruments
together.
C. AS APPLIED TO [SERVICER]
121. Defendant [SERVICER] cannot plausibly make an argument that it is authorized as a holder
of the Note or Deed of Trust to foreclose because it did not hold the instruments l together, and it
could not legally function as a beneficiary with authority to assign or substitute, leaving
[SERVICER] without a believable argument that it had standing to foreclose.
122. [SERVICER] , which is a servicer without any indication of being a holder, real party in
interest, or having authority from a creditor, committed fraud by misrepresenting that they had
standing to foreclose when they didn’t.
SEVENTH CAUSE OF ACTION
(BREACH OF CONTRACT)
Against [LENDER ON DEED], & [SERVICER]
123. Plaintiff hereby incorporates all preceding paragraphs as if they are set forth at length
herein.
124. Failure to follow the proper procedure for substitution of trustee as presented in ¶ 24 of the
Deed of Trust was a breach of contract by [SERVICER], since it had no beneficial interest and
capability to duly acknowledge and record such substitution.
125. Failure to execute and record valid assignments resulting in break in chain of title as
evidenced by the attached forensic loan audit represents a breach of contract by [LENDER ON
DEED]
126. The fact that Plaintiffs property is to be sold when there was an invalid Substitution of
Trustee, with no clear possession of the Security Instruments, leaving [SERVICER] and any
DOES` without standing to foreclose, amounts to breach of contract from said Defendants.
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127. Breaches of contract rendered it void and unenforceable, and led to wrongful foreclosure
banning Plaintiff is entitled to relief.
EIGHTH CAUSE OF ACTION
(DECLARATORY RELIEF)
Against ALL DEFENDANTS
128. Plaintiff is entitled to Declaratory Judgments because: (1) An actual controversy exists, (2)
irreparable harm and injury is imminent and inevitable, (3) Plaintiff has a direct, substantial and
present interest, and (4) the declaration sought will be of practical help in ending the controversy.
129. An actual controversy exists as to whether Plaintiff was unknowingly stripped of [his/her]
due process rights in execution of the Deed of Trust, due to the fact said Deed of Trust performed
as an illegal cognovit note.
130. An actual controversy exists between Plaintiff and Defendants, both individually and
severally, in that Defendants have tacitly alleged they held the original, genuine Security
Instruments, and had the authority to act under them.
131. Pursuant to the Declaratory Judgment Act, this Honorable Court may enter a Declaratory
Judgment, determining the rights of the Plaintiff with regards to the various Defendants, due to the
controversy arising as it relates to the Genuine Deed of Trust, Genuine Promissory Note, and any
genuine notes obligating Plaintiff to Defendants, and any and all subsequent documents,
correspondence, and alike, Plaintiff has detailed rights and duties relative to thc claims as presented
herein.
132. A Declaratory Judgment is necessary in the present matter, as to speedily determine the
rights, status, and relationship between Plaintiff and Defendants, regarding the location,
presentment, and, subsequent authentication of the genuine Promissory Note and/or Deed of Trust,
upon which, absent any authority to act under the Deed of Trust, said Deed is wholly incidental and
without effect, absent Defendants possession of the essential Promissory Note or Title.
133. A Declaratory Judgment is necessary in the present matter, as it pertains to the Deed of
Trust, in relation to the due process rights of the Plaintiff, and [LENDER ON DEED]’s application
of hidden confession of judgment cognovit clauses contained therein, executed without
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explanation, or warning, and without special consideration being given to Plaintiff, and that
Plaintiff was damaged and [his/her] rights were abrogated, failing in its obligation to abide by the
covenant of good faith and fair dealing.
134. A Declaratory Judgment is necessary as Plaintiff once again reiterates that [he/she] was
never made aware of any confession of judgment/cognovit clauses at the time of [his/her] entering
into the contract with [LENDER ON DEED] and/or their representatives or that Plaintiff ever
knowingly, or intentionally waived any of [his/her] constitutionally-guaranteed rights. [LENDER
ON DEED] never spent any time on this subject with Plaintiff, but instead, quickly raced through
the closing process, shuffling "papers" in front of Plaintiff to sign, as a ‘“take it or leave it offer",
without any explanation as to the contents thereof other than where to sign. These elements qualify
the agreement as unconscionable and unenforceable.
135. A Declaratory Judgment is necessary with regards to Privity of Contract, as Plaintiff was
never properly noticed that Defendants may securitize the Promissory Note(s) for which all action
as it relates to the Deed(s) of Trust, by necessity, must rely.
136. A Declaratory Judgment is necessary because averments made by the aforesaid Defendants
in their own documentation(s) are sufficient to raise beyond the mere speculative level, who, if
anyone, actually is and/or was in possession of the original note, at all times material to the actions
individually and severally undertaken by said Defendants.
137. Without clear status that [SERVICER] had standing to foreclose, they could not have
legally triggered foreclosure under Cal. Civ. Code § 2924, therefore, wrongfully they took title
when it had no right.
138. A Declaratory Judgment is necessary because Defendants Note, or Credit Agreement(s),
without saying they possess both the promise to pay and deed specifying the security, as well as
where they are located. They must show proper recording, including chain of custody as required
by Rules of Evidence which they have failed to provide. Since Defendants have indicated these
genuine Security Documents are in their possession, they must produce both together in order to
prove standing to have foreclosed on Plaintiffs property to prove they were not bifurcated.
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139. A Declaratory Judgment is necessary because the original Security Instruments must be
produced to determine if the signatures are indeed authentic, which Plaintiff has reason to believe is
not the case.
140. A Declaratory Judgment is necessary because the debt that Defendants have alleged
Plaintiff is liable for has been converted and securitized into a mortgage-backed asset without
Plaintiffs knowledge or consent resulting in unjust enrichment to Defendants and subsequent
unknown parties as investors in the security. Furthermore, for the security to be legal, there must be
possession of the Note pursuant to the UCC Article 3, the Security Instruments must be registered
as such with the SEC, with reporting to the IRS, of which there is no evidence of, and there must be
proper recording of any servicing and pool agreements, in order to have the right to execute the
power of sale to foreclose.
141. Declaratory relief is necessary because Defendants have committed fraud upon this
Honorable Court by misrepresenting that Defendants are the proper owner and holder in due course
of the debt with the right of power of sale, when in actuality it is the owners of the mortgage-
backed asset who are the proper owners. Now the proper owners must be identified. Whether they
have the power of sale is yet to be determined depending on proof of ownership and right of
subrogation.
142. Declaratory relief is necessary because Plaintiff has incurred significant damage including
the conversion of [his/her] Note and failure to give consideration from profits realized by
securitization, wrongful foreclosure, and failure to return the Security Instruments marked paid and
satisfied.
143. Declaratory relief is necessary because each party has committed fraud against Plaintiff,
which has been alleged with specificity.
144. Declaratory relief is necessary because evidence required to prove Real-Part-In-Interest
with right to collect monies and enforce the Note must comply with the Federal Rules of Evidence.
Furthermore, at least one competent fact witness from the Defendant(s) with first-hand knowledge
who Plaintiff can cross-examine should be allowed to testify. The attorney, not having first-hand
knowledge, cannot make assertions or render opinions.
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145. Declaratory relief is necessary to require [SERVICER] to produce an accounting in the
form of a GAAP-compliant ledger, which all banks are required by statute to maintain, proving
they paid lawful money (U.S. currency) for Plaintiff’s property.
146. Declaratory relief is necessary to establish that tender cannot be required when the
underlying action is based in fraud, the agreement is void, and the foreclosure was wrongful.
147. Delay in granting the requested Declaratory Judgment will result in additional, and
irreparable harm to Plaintiff, as Plaintiff has been subjected to having [his/her] property unlawfully
foreclosed upon, and is exposed to having [his/her] property sold in the consumer market should
this Honorable Court fail to intervene.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for judgment against Defendants, and each of them, as
follows:
For The First Cause of Action: Breach Of Covenant Of Good Faith & Fair Dealing
1. Compensatory damages in excess of the sum of $[972,000] to be determined at trial;
2. For interest at the rate of seven percent (7%) per annum from date of foreclosure on
subject property on the sum of $[972,000];
For The Second Cause Of Action: Concealment
l. Compensatory damages in excess of the sum of $[972,000] to be determined at trial;
2. For interest at the rate of seven percent (7%) per annum from date of foreclosure on
subject property on the sum of $[972,000];
For The Third Cause Of Action: Unjust Enrichment
l. An accounting of profits gained from use of Plaintiffs Security Instruments from
conversion and securitization of [his/her] Note;
2. Return of such profits to Plaintiff that were gained by breach of contract, without
[his/her] knowledge, consent, or due consideration.
For The Fourth Cause Of Action: Wrongful Foreclosure
1. Compensatory damages in excess of the sum of $[972,000] to be determined at trial.
2. For interest at the rate of seven percent (7%) per annum from date of foreclosure on
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subject property on the sum of $[972,000];
3. For an order to set aside the pending wrongful foreclosure sale by [SERVICER];
4. For an order compelling [SERVICER] and each of its assigns to transfer
fee simple legal title and any claim of the subject property to Plaintiff;
5. For a declaration and determination that Plaintiff is the rightful holder of title to
the property and Defendant herein, and each of them be declared to have no estate, right,
title or interest in said property;
6. For a judgment forever enjoining said Defendants, and each of them, from claiming any
estate, right, title or interest in the subject property.
For The Fifth Cause Of Action: VIOLATION OF CALIFORNIA CODE § 1788.17
1. Compensatory damages in excess of the sum of $[972,000] to be determined at trial;
2. For interest at the rate of seven percent (7%) per annum from date of foreclosure on
subject property on the sum of $[972,000];
For The Sixth Cause Of Action: Misrepresentation/Fraud
1. Compensatory damages in excess of the sum of $[972,000] to be determined at trial;
2. For interest at the rate of seven percent (7%) per annum from date of purchase of
subject property on the sum of $[972,000];
For The Seventh Cause Of Action: Breach of Contract
l. Compensatory damages in excess of the sum of $[972,000] to be determined at trial;
2. For interest at the rate of seven percent (7%) per annum from date of foreclosure on
subject property on the sum of $[972,000];
For The Eighth Cause of Action: Quiet Title
1. For an order compelling [SERVICER] and each of its assigns to transfer legal title and
any claim of the subject property to Plaintiff;
2. For a declaration and determination that Plaintiff is the rightful holder of title to the
property and Defendant herein, and each of them be declared to have no estate, right,
title or interest in said property;
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3. For a judgment forever enjoining said Defendants, and each of them, from claiming any
estate, right, title or interest in the subject property.
For The Ninth Cause of Action: Declaratory Relief
1. For declaration that Defendants deceived Plaintiff into signing a confession of
judgment/cognovit note without an attorney present in violation of Cal. Civ. Code
§1l32(b) and 1133;
2. Declaration that the securitization of the Note severed the chain of title and bifurcation
proves no Defendant could execute the power of sale and has standing to foreclose.
3. Declaration that the alleged contract is void;
4. Declaration ordering the returning of title to subject property to the Plaintiff;
5. Declaration ordering the Defendants to return all monies paid to Defendants by the
Plaintiff;
6. Declaration that the foreclosure sale was wrongful and must be set aside; said land and
homestead;
7. Declaration that the party with possession must return the genuine, wet-inked
signature Promissory Note (the undersigned’s asset via his signature) with indication
it is paid and satisfied. It was not the undersigned’s intent that Defendant(s) should keep
the Promissory Note after full payment or foreclosure, but for it to be returned in its
original condition as presented/issued; because the Promissory Note is negotiable, the
Promissory Note must be surrendered in a foreclosure proceeding so that it does not
remain in the stream of commerce;
8. Declaration that the party with possession must (A) return the genuine, wet—inked
signature Deed of Trust, and (B) cancel the Trustee’s Deed;
9. Declaration that Defendants who profited unjustly and in breach of contract must return:
(1) the face value of the Promissory Note with interest; (2) all escrowed monies with
interest; and, (3 Q) all profits including but not limited to derivatives and interest
created from all bonds and security instruments created off of the Loan Documents in
which the Loan Documents have been securitized in an amount according to proof at
trial or pursuant to the Court’s discretion;
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10. Declaration Plaintiff is entitled to just compensation for [his/her] equity expended in or
on the subject property since [Beginning Date of Equity Claim]. [SERVICER] must
return the equity in form of legal tender that Plaintiff put into the subject property for a
preliminary value of and in sum set certain of $[80,000.00], together with interest
thereon at the rate of seven percent (7%) per annum from date of foreclosure on subject
property, which constitutes labor, services, and materials furnished by Plaintiff and/or
others, since date of purchase of subject property, on and for the homestead, land,
improvements therein and thereon, for labor, materials, and services for the upkeep and
maintenance, payments, interest, taxes, fees, assessments, new construction, all repairs
and replacements, and any and all improvements thereon and therein, for said land and
homestead;
11. Declaration that the foregoing Items in [“7” through “10”] above MUST be provided to
the undersigned in order for [SERVICER] to legally finalized a foreclosure sale
foreclosure and possess clear title. Defendants must forward the undersigned the
foregoing items in "7" through "l0" above to legally effectuate the transfer of title of the
subject property in a valid foreclosure sale;
12. Declaration that if [SERVICER] fails to oppose/answer the demand in [“7” through
“10”] above, with lawful/legal authority in support, shall be [SERVICER]’s tacit
agreement that (A) IT IS NOT ENTITLED to foreclose on the Promissory Note unless it
returns Items in [“7” through “10”] above to the undersigned; (B) that THEY ARE NOT
ENTITLED to retain the original, unaltered Note and all monies noted in herein; and
(C) that [SERVICER] must return Items in "7" through "I0" above to the undersigned IF
THEY ARE TO POSSESS RIGHT TO ENFORCE THE NOTE AND VALIDLY
TRANSFER TITLE IN THIS MATTER, since Defendants cannot keep both the money
(the Notes, the bond/security derivatives of the Notes, and Plaintiff’s equity) and the
subject property or the sale proceeds. Defendant [SERVICER] must choose either the
money from sale proceeds or the subject property, not both.
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13. Declaration that if Defendants are unable to return Items in [“7” through “10”] above to
the undersigned, Plaintiff moves the court to issue an Order declaring that Defendants
must forever release their claim and lien to the subject property.
14. Declaration that, due to the overwhelming evidence of wrongful foreclosure action,
[SERVICER] must be prevented from selling Plaintiffs property pending the outcome of
[his/her] case. Declaration that A COURT ORDER is warranted stipulating that
Defendants discharge or close out and zero out any and all Trust Accounts in this matter
(court case and mortgage trusts), pursuant to PUBLIC POLICY regarding the
discharging of commercial obligations, via the undersigned’s Exemption Account,
concerning any outstanding derivative obligations attached to said accounts unknown to
the undersigned, and to eliminate all said records;
and For any additional declaration stating Plaintiff’s rights as the facts warrant in the
furtherance and interest of justice.
JUDICIAL NOTICE
The Plaintiff wishes to point out to the Court that [he/she] is NOT an individual schooled in
the law, but an individual exercising [his/her] rights under law for the proper action of the Court
from the unacceptable actions on the part of the Defendants in question. As such, the Plaintiff ask
the court to look to the substance of [his/her] pleadings rather than the form and asks the court to
take judicial notice pursuant to Section 32 of the Judiciary Act of 1789 (1 Stat. 73) which specifies
that “courts respectively shall proceed and give judgment according as the right of the cause and
matter in law shall appear unto them, without regarding any imperfections, defects, or want of
form." The Plaintiff further asks the court to take judicial notice pursuant to Rule 201 of the
Federal Rules of Evidence of the enunciation of principles stated in King v. Knoll (No. 04-
04149-JAR), 1/Wzimey v. Slate of New Mexico (113 F.3d 1170), and Haines v. Kerner (404 U.S.
519), wherein the courts directed that those who are unschooled in law making complaints/
pleadings shall have the court look to the substance of the complaint pleadings rather than the
form and hereby makes the following pleadings/notices in the above referenced matter
WITHOUT waiver of any recourse to relief of claims.
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Plaintiff notices the Court that [he/she] has presented specific claims, supported by
evidence, law and case law authorities showing plausible argument far above the speculative level
and more than sufficient to show they are entitled to relief Defendants notice the court that "All
pleadings shall be so construed as to do substantial justice" Dioguardi Vs. Durning, 2 Cir., (1944)
139 F2d 7'74” and "Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain
statement of the claim showing that the pleader is entitled to re1ief," in order to "give the
Defendant fair notice of what the claim is and the grounds upon which it rests," Conley v. Gibson,
355 U. S. 41". lt should be clear that enough fact has been presented to raise a reasonable
expectation that discovery will reveal even further evidence in support of this Adversarial Pleading.
Therefore, Plaintiff has presented clear and compelling claims upon which relief can be granted and
dismissal would be contrary to rules of civil procedure and major court decisions. Plaintiff hereby
invokes the Full Faith and Credit Clause —— Article IV, Section 1, of the U.S. Constitution —
which provides that the various states must recognize legislative acts, public records, and judicial
decisions of the other states within the United States. The Full Faith and Credit Clause ensures that
judicial decisions rendered by the courts in one state are recognized and honored in every other
state.
Plaintiff hereby invokes the Supremacy Clause. Under the Supremacy Clause,
everyone must follow federal law in the face of conflicting state law. It has long been established
that "a state statute is void to the extent that it actually conflicts with a valid federal statute" and
that a conflict will be found either where compliance with both federal and state law is
impossible or where the state law stands as an obstacle to the accomplishment and execution of
the full purposes and objectives of Congress. Edgar v. Mite Corp., 45 7 U.S. 624, 631 (1982).
Similarly, we have held that "otherwise valid state laws or court orders cannot stand in the way
of a federal court's remedial scheme if the action is essential to enforce the scheme." Stone v.
City and County of San Francisco, 968 F2:} 850, 862 (9th Cir. I992), Cert. denied, 113 S, Cl.
1 050 (1 993).
Plaintiff hereby notices the court that herein lays evidence of egregious statutory
violations, breach of covenant of good faith and fair dealing, fraudulent contract, concealment,
conversion, and misrepresentation! fraud resulting in irreparable harm, violating [his/her] right to
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liberty, property and due process under Article 3 of the California Constitution, and Fifth and
Fourteen Amendments of the U.S. Constitution. Plaintiff specifically requests declaratory and
injunctive relief to prevent any further sale of [his/her] real property, and to protect [his/her] due
process right granting an evidentiary hearing and discovery. Plaintiff seeks documents through
discovery that determine the extent of violations and breaches described herein. Such documents in
possession of Defendants evidence unscrupulous lending practices and fraudulent foreclosure. This
court has no discretion but must grant Plaintiffs requests lest it be a party to misprision of felony.7
Date: [Date]
_________________________________________________
[PLAINTIFF NAME]
7 MISPRISION OF FELONY: U.S. CODE, TITLE 13, PART l,CHAPTER l, SECTION 4 stipulates: ‘Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some Judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both?In Stump v. Sparkman, 435 US. 349 at 360 (1978), the Supreme Court confirmed that a judge would be immune from suit only if he did not act outside of his judicial capacity and! or was not performing any act expressly prohibited by statute. See Block. Stump v Sparkman and the History of Judicial Immunity, 4980 Duke Ll 879 (l980).
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VERIFICATION
I, [PLAINTIFF NAME], am the Plaintiff in the above—entitled action. I have read the
foregoing complaint for wrongful foreclosure and know the contents thereof. The facts and
allegations contained therein are true and correct of my own knowledge, except as to those
matters which are therein alleged on information and belief, and as to those matters, I believe
them to be true.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct and that this declaration was executed at [Property County],
