Ash v Bank of America

PLAINTIFF'S COMPLAINT

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Joseph W. Creed (SBN 232129)

Creed & Elliott, LLP

19200 Von Karman Ave, Suite 600

Irvine, CA 92612

Tel: 800-679-4202

Fax: 714-439-2121

Attorneys for Plaintiff Mimi Ash

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA MIMI ASH and

ROBERT T. ASH,

PLAINTIFFS,

vs.

BANK OF AMERICA CORP. as Successor

in Interest to Countrywide Financial Corp.;

and DOES 1-20, INCLUSIVE,

DEFENDANTS.

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CASE NO: 2:10-cv-02821-FCD-KJN

FIRST AMENDED COMPLAINT FOR

DAMAGES WITH DEMAND FOR JURY

TRIAL

(1) TRESPASS;

(2) CONVERSION;

(3) NEGLIGENCE;

(4) NEGLIGENT INFLICTION OF

EMOTIONAL DISTRESS;

(5) INTENTIONAL INFLICTION OF

EMOTIONAL DISTRESS;

(6) VIOLATION OF CALIFORNIA

BUSINESS AND PROFESSIONS CODE

SECTIONS 17200 ET SEQ;

(7)INVASION OF PRIVACY;

(8) FRAUD

(9) BREACH OF CONTRACT;

(10) BREACH OF THE IMPLIED

COVENANT OF GOOD FAITH AND

FAIR DEALING; AND

(11) UNJUST ENRICHMENT

COMES NOW the Plaintiffs, by and through their attorneys of record, and state and allege

against the above-named Defendants as follows:

Case 2:10-cv-02821-FCD-KJN Document 9 Filed 11/16/10 Page 1 of 22


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INTRODUCTION

1. Plaintiff, MIMI ASH is the widow and beneficiary of her late husband, Robert L.

Ash's estate. Plaintiff, ROBERT T. ASH is the only son of Robert L. Ash. While he was alive,

both Mr. and Mrs. Ash ran complimentary businesses and owned various pieces of real property

in their individual names. One of those properties was a property at 13405 Ski Slope Way,

Truckee, California. Their properties were all financed with mortgages from Countrywide

Financial Corp., the predecessor in interest to the Defendant, BANK OF AMERICA, CORP.

After Mr. Ash passed away, MRS. ASH stopped paying the mortgage on Ski Slope Way

because it was in Mr. Ash's individual name and was in his probate estate. Within months of Mr.

Ash's death, though, MRS. ASH began to actively work with Countrywide to reach loan

workouts on the mortgages including the Ski Slope Way mortgage. On May 2, 2008, the

Trustee under the Deed of Trust for the Ski Slope Way property wrongfully foreclosed and

conducted a foreclosure sale. Even though MRS. ASH had been in constant contact with

Countrywide, it had failed to give her notice of the foreclosure sale. That foreclosure sale was

later rescinded due to the Trustee's failure to timely communicate with MRS. ASH. Despite this,

in late October or early November 2008, Countrywide unlawfully seized the Ski Slope Way

home, broke into the house, removed the Plaintiffs' personal property which included all of

MRS. ASH's deceased husband's personal items and changed the locks. MRS. ASH was given

absolutely no prior notice and Countrywide performed these activities without any judicial

process. To remedy the damage caused by the Defendants, the Plaintiffs bring this action and

make the following claims: 1) trespass; 2) conversion; 3) negligence; 4) negligent infliction of

emotional distress; 5) intentional infliction of emotional distress; 6) violations of California’s

Business and Professions Code; 7) invasion of privacy; 8) fraud; 9) breach of contract; 10)

breach of implied covenant of good faith and fair dealing; and, 11) unjust enrichment.



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PARTIES & JURISDICTION

2. The Plaintiff, MIMI ASH is an individual who resides in Granite Bay, California.

Ms. Ash is the beneficiary of her deceased husband's estate which included the real property

located at 13405 Ski Slope Way, Truckee, California. The Plaintiff, ROBERT T. ASH is an

individual who also resides in Granite Bay, California. ROBERT T. ASH is also the beneficiary

of his deceased father's estate which included many of the personal items and property in the

real property located at 13405 Ski Slope Way, Truckee, California.

3. The defendant, BANK OF AMERICA CORP. is the successor-in-interest to

Countrywide Financial Corp. (collectively "Countrywide" and/or "BANK OF AMERICA") and

is a corporation headquartered at Bank of America Corporate Center, 100 North Tryon Street,

Charlotte, North Carolina. This defendant transacts business in the State of California and is

subject to personal jurisdiction in this District.

4. Plaintiff does not know the true names and capacities of the defendants sued

herein as DOES 1 through 20 (“DOE Defendants”), inclusive, and therefore sues said DOE

Defendants by fictitious names. Plaintiff is informed and believes and based on such

information and belief avers that each of the DOE Defendants is contractually, strictly,

negligently, intentionally, vicariously liable and or otherwise legally responsible in some manner

for the acts and omissions described herein. Plaintiff will amend this Complaint to set forth the

true names and capacities of each DOE Defendant when same are ascertained.

5. Plaintiff is informed and believes and based on such information and belief avers

that Defendants BANK OF AMERICA and DOE Defendants 1 through 20, inclusive, and each

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

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



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and omitting to act as averred herein.

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

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

each of the other Defendants, and are therefore alleged to be jointly and severally liable for the

claims set forth herein, except as otherwise alleged.

7. This court has jurisdiction pursuant to 28 U.S.C.S. '1332(a)(1) as there exists

diversity of all parties and the amount in controversy exceeds $75,000. The Defendant has

sufficient minimum contacts with California to subject it to jurisdiction in this judicial district

because it has a substantial number of bank branches in the State, enters into numerous loans

and agreements in California, and the facts and circumstances giving rise to the Plaintiff's

complaint all occurred within the State.

8. Venue is proper because the Defendants do business in this jurisdiction or

otherwise has substantial contacts within this jurisdiction.

FACTS

9. On July 3, 2003, Robert L. Ash executed a Deed of Trust for his home at 13405

Ski Slope Way, Truckee, California. At the time, Mr.Ash was married to the Plaintiff, MIMI

ASH and the property was intended as a second home for the couple and their son, ROBERT T.

ASH.

10. Recontrust Company, N.A. acted as the agent for the Beneficiary under the Deed

of Trust which was Mortgage Electronic Registration System. At all relevant times,

Countrywide claimed to be the servicer of Mr. Ash's note and deed of trust.

11. All payments on the mortgage loan were made to Countrywide as the loan

servicer.

12. While Mr. Ash was alive, both he and MIMI ASH operated complimentary



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businesses in the real estate field and had an ongoing business relationship with Countrywide in

which they wrote other mortgage loans with Countrywide.

13. Mr. Ash died suddenly on August 17, 2005. After his death, MRS. ASH stopped

making payments on the Ski Slope Way mortgage because the property was part of his probate

estate. MRS. ASH had two other mortgages with Countrywide at the time and continued making

payments on those loans.

14. MRS. ASH was appointed executrix of Mr. Ash's estate. Mr. Ash died intestate.

The Plaintiffs were both beneficiaries of the estate.

15. In late 2005 or early 2006, Countrywide contacted the lawyer representing Mr.

Ash's estate and asked whether MRS. ASH would be interested in assuming the loan on the Ski

Slope Way property. MRS. ASH was interested and the estate lawyer petitioned the Probate

Court to allow the real estate to be conveyed to MRS. ASH. The petition was ultimately

allowed.

16. In October 2006, Countrywide represented that the assumption of the mortgage

by MRS. ASH would be in a three step process: first, she would need to bring the loan current;

second, she would need to apply for a loan modification and have it approved; third, assumption

papers would have to be signed by her. The assumption was approved pending the loan being

brought current.

17. In reliance on Countrywide's representations, in October 2006, MRS. ASH sent

Countrywide certified funds to bring the loan current. Countrywide accepted the funds.

18. After receiving the funds, Countrywide gave MRS. ASH a special forbearance

agreement on the Ski Slope Way loan as well as her other two loans that was good through

February 2007. The customer service representative was to contact MRS. ASH after the

forbearance period was up. The representative never did. MRS. ASH continued her efforts to



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reach the representative who was continually unavailable until April 2007.

19. MRS. ASH then completed three separate loan modification applications (one for

Ski Slope Way and one for each other property) and submitted them to Countrywide in October

2006. At the same time, MRS. ASH completed the paperwork for the Ski Slope Way loan

assumption, but retained the original form until the loan modifications were approved.

20. Despite its receipt of the loan modification applications, Countrywide lost all

three of them.

21. What ensued was a four year odyssey for MRS. ASH of endless communications

with Countrywide to resolve her loan modification requests. During the two years following

MRS. ASH's submission of her loan modification applications, she constantly contacted

representatives of Countrywide via telephone and email to try and reach workout solutions for

each of the loans.

22. Despite MRS. ASH's attempts, Countrywide's representatives did not return

desperate phone messages and email communications left by MRS. ASH to try and save the

properties all secured by loans.

23. In particular, even though MRS. ASH was actively in workout negotiations,

Countrywide issued a Notice of Default on the Ski Slope Way loan on April 24, 2007 and

recorded it in the Office of the Recorder for Nevada County. MRS. ASH never received notice

of the Notice of Default because Countrywide had mailed it to the wrong address.

24. After later learning of the Notice of Default, MRS. ASH continued her efforts to

reach a workout of the loan. Representatives of Countrywide gave MRS. ASH assurances that

any foreclosure sale of the Ski Slope Way home were being postponed while the workout was

pending.

25. Despite these assurances, on May 2, 2008, a foreclosure sale was conducted by



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the Trustee of the deed of trust. Proper statutory notice, though, was never given to MRS. ASH

prior to the foreclosure sale and she did not learn about it until sometime after it had happened.

26. At the time of the foreclosure sale, the Ski Slope Way home was fully furnished

and many of the Plaintiffs' personal possessions, including all of MRS. ASH'S deceased

husband's personal possessions, were in the Ski Slope Way home. This included such cherished

items as Mr. Ash's fishing gear and golf clubs and even precious photos and videos of the couple

and the family. Most importantly, an urn containing the ashes of Mr. Ash that the Plaintiffs

intended on taking to Tibet was also in the home.

27. During the summer of 2008, MRS. ASH made numerous visits to the Ski Slope

Way home and during one of those visits she learned of the foreclosure sale that had taken place.

When she learned of the wrongful foreclosure sale, she immediately contacted Countrywide to

have them rectify the mistake. Countrywide representatives assured her that they were working

to rescind the wrongful foreclosure sale.

28. In late October 2008, she visited the home and all was in order as she had last left

it from the prior visit.

29. In or about the last week of October 2008 or the first week of November 2008, an

agent acting for Countrywide unlawfully and forcibly entered the Ski Slope Way home,

removed or auctioned off all of the furnishings and personal belongings, changed the locks on

the doors, and then on or about November 6, 2008 winterized the property.

30. When MRS. ASH returned to the property on January 5, 2009, she discovered

that the locks and deadbolt on her door had been changed and she could not gain access to her

own property. She looked in a nearby window and saw personal items missing and papers

strewn about the house.

31. MRS. ASH called the local police, but she was told that it was a "civil matter."



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She then contacted Countrywide representatives to try and determine why her home had been

invaded and why she was locked out while she was in workout negotiations with Countrywide.

In fact, MRS. ASH has written proof in the form of email communications from the last week of

October 2008 with a Countrywide representative showing that she had been providing them with

documentation that they were requesting to complete the workout arrangements on Ski Slope

Way. MRS. ASH did not receive an answer from Countrywide at this time about why the

property had been seized.

32. During the ensuing month, MRS. ASH continued her efforts to try and speak with

someone at Countrywide about why she had been locked out and why she could not be given

access to her property. No one would provide her with an answer. For example, in an email

communication to Countrywide on February 3, 2009, MRS. ASH again requested an answer

about why she had been wrongfully locked out, why she was not being given access to her

property, and why her workout negotiations remained ongoing. No one from Countrywide

responded.

33. During the month of March, MRS. ASH continued to try and get answers from

Countrywide but none were forthcoming. In another email communication of March 31, 2009,

she demanded information about why she had been locked out and why she continued to be

denied access to her property.

34. Finally, after being given no answers by Countrywide, MRS. ASH employed her

own locksmith and gained entry to her property. When she entered the home she was dismayed

to discover that all the contents of her home, including all of the precious items that belonged to

her deceased husband were missing - this included the urn containing her husband's ashes.

35. In the coming months, MRS. ASH continued to try and find answers from

Countrywide about the travesty. She obtained limited information that Countrywide had



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conducted a foreclosure sale without giving her proper statutory notice and that an auction

company, Green River Auctions had conducted the auction. Beyond this sparse information,

MRS. ASH was not told anything else about why the home had been entered and why her

belongings had been taken without any notice to her - especially given the fact that Countrywide

had been in contact with her and knew how to get in touch with her during the months leading

up to late October and early November 2008.

36. Recognizing that it had wrongfully foreclosed and auctioned off the Ski Slope

Way home, Countrywide executed a Notice of Rescission of the Trustee's Deed of Sale on

March 6, 2009. The Notice was recorded on March 10, 2009.

37. Despite MRS. ASH's ongoing demands to address her losses, Countrywide

continued to ignore her.

FIRST CAUSE OF ACTION FOR

TRESPASS AGAINST ALL DEFENDANTS

38. Plaintiffs incorporate herein by reference the allegations made in paragraphs 1

through 37, inclusive, as though fully set forth herein.

39. The Defendants, its agents, contractors and/or employees entered the Plaintiffs'

property and house without permission or authorization and without giving any prior notice to

the Plaintiffs.

40. The Defendants, its agents, contractors and/or employees were on notice that they

had no right or authority to enter onto the Plaintiffs' property, break into their home, seize their

home and property and remove possessions in the home and on the property.

41. The actions of the Defendants, its agents, contractors and/or employees were

done intentionally and/or with gross disregard for the Plaintiffs' rights.

42. The Plaintiffs were damaged as a direct and proximate result of the actions of the



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Defendants, its agents, contractors and/or employees. As a result of the Defendants' fraudulent

conduct, Plaintiffs have suffered compensatory, general and special damages in an amount

according to proof. Additionally, the Defendants acted with malice, fraud and/or oppression

and, thus, Plaintiffs are entitled to an award of punitive damages

SECOND CAUSE OF ACTION

CONVERSION AGAINST ALL DEFENDANTS




property and house without permission or authorization and without giving any prior notice to

the Plaintiffs.

45. The Defendants, its agents, contractors and/or employees removed and disposed

of numerous and valuable personal possessions of the Plaintiffs and their deceased

husband/father.


done intentionally and/or with gross disregard of the Plaintiffs' rights.

47. The Plaintiffs have been damaged as a direct and proximate result of the actions

of the Defendant, its agents, contractors and/or employees. As a result of the Defendants'

fraudulent conduct, Plaintiffs have suffered compensatory, general and special damages in an

amount according to proof. Additionally, the Defendants acted with malice, fraud and/or

oppression and, thus, Plaintiffs are entitled to an award of punitive damages

THIRD CAUSE OF ACTION

NEGLIGENCE AGAINST ALL DEFENDANTS





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49. The Defendants owed a duty to the Plaintiffs to act as a reasonable and prudent

loan servicer, which included the obligation to notify the Plaintiffs of its reasonable reasons to

enter onto the property and seize it and had a duty to notify the Plaintiffs in writing before

entering onto and into the property.

50. The Defendants, its agents, contractors and/or employees breached its duty of

care when they wrongfully entered the Plaintiffs' property and house without permission or

authorization, without giving prior written notice with reasonable reasons for entering onto and

into the property, and by failing to reasonably determine whether the property had actually been

abandoned by the Plaintiffs.

51. The Defendants breached the duty they owed to the Plaintiffs by wrongfully

seizing the Plaintiffs' property and by taking the Plaintiffs' possessions.


Defendants, its agents, contractors and/or employees.

FOURTH CAUSE OF ACTION

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS AGAINST ALL

DEFENDANTS



54. The Defendants owed a duty to the Plaintiffs to act as a reasonable and prudent

loan servicer, which included the obligation to notify the Plaintiffs of its reasonable reasons to

enter onto the property and seize it and had a duty to notify the Plaintiffs in writing before

entering onto and into the property.


property and house without permission or authorization.

56. The Defendants, its agents, contractors and/or employees breached its duty of



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care when they wrongfully entered the Plaintiffs' property and house without permission or

authorization, without giving prior written notice with reasonable reasons for entering onto and

into the property, and by failing to reasonably determine whether the property had actually been

abandoned by the Plaintiffs. The Defendants' actions were taken with a gross disregard for the

Plaintiffs' rights and were so severe and outrageous so as to shock the conscience and cause the

Plaintiffs severe emotional distress, embarrassment and ridicule.


Defendants, its agents, contractors and/or employees. The Plaintiffs' emotional distress includes,

but is not limited to, extreme humiliation, anxiety and a loss of sleep.

FIFTH CAUSE OF ACTION

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AGAINST ALL

DEFENDANTS




property and house without permission or authorization.

60. The Defendants' acts and/or omissions were done intentionally and/or with gross

indifference to the Plaintiffs' rights.


Defendants, its agents, contractors and/or employees. The Plaintiffs' emotional distress

includes, but is not limited to, extreme humiliation, anxiety and a loss of sleep. As a result of

the Defendants' fraudulent conduct, Plaintiffs have suffered compensatory, general and special

damages in an amount according to proof. Additionally, the Defendants acted with malice,

fraud and/or oppression and, thus, Plaintiffs are entitled to an award of punitive damages.



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SIXTH CAUSE OF ACTION

VIOLATION OF CALIFORNIA BUSINESS AND PROFESSIONS CODE SECTIONS

17200 ET SEQ AGAINST ALL DEFENDANTS



63. California Business & Professions Code Section 17200, et seq., prohibits acts of

unfair competition, which means and includes any “fraudulent business act or practice . . .” and

conduct which is “likely to deceive” and is “fraudulent” within the meaning of Section 17200.

64. At all times material herein, the Defendants were conducting trade and commerce

as that term is defined in the Unfair Business Practices and Consumer Protection Act (the Act)

in the State of California

65. The Plaintiffs are persons as that term is defined in the Act.

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

are likely to deceive, constituting a fraudulent business act or practice. This conduct is ongoing

and continues to this date.

67. Specifically, the Foreclosing Defendants engage in deceptive business practices

with respect to mortgage loan servicing, assignments of notes and deeds of trust, foreclosure of

residential properties and related matters by

a. Assessing improper or excessive late fees;

b. Improperly characterizing customers’ accounts as being in default or

delinquent status to generate unwarranted fees;

c. Instituting improper or premature foreclosure proceedings to generate

unwarranted fees;

d. Misapplying or failing to apply customer payments;

e. Failing to provide adequate monthly statement information to customers



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regarding the status of their accounts, payments owed, and/or basis for fees

assessed;

f. Seeking to collect, and collecting, various improper fees, costs and charges,

that are either not legally due under the mortgage contract or California law,

or that are in excess of amounts legally due;

g. Mishandling borrowers’ mortgage payments and failing to timely or properly

credit payments received, resulting in late charges, delinquencies or default;

h. Treating borrowers as in default on their loans even though the borrowers

have tendered timely and sufficient payments or have otherwise complied

with mortgage requirements or California law;

i. Failing to disclose the fees, costs and charges allowable under the mortgage

contract;

j. Ignoring grace periods;

k. Executing and recording false and misleading documents; and

l. Acting as beneficiaries and trustees without the legal authority to do so.

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

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

69. Moreover, the Foreclosing Defendants engage in a uniform pattern and practice

of unfair and overly-aggressive servicing that result in the assessment of unwarranted and unfair

fees against California consumers, and premature default often resulting in unfair and illegal

foreclosure proceedings. The scheme implemented by the Foreclosing Defendants is designed

to defraud California consumers and enrich the Foreclosing Defendants.

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

consumers.



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71. As the code specifically relates to Plaintiffs, at all times material herein, the

Plaintiffs had a right of privacy in their home and property and a right to possess the property

free from unlawful intrusions by others.

72. After admittedly wrongfully foreclosing on the Plaintiffs' home, the Defendants,

its agents, contractors and/or employees wrongfully broke into and entered into the Plaintiffs'

home without reasonable justification, trespassed on her property and disposed of the Plaintiffs'

possessions that were on the property and in the home. In addition, as part of the invasion of the

Plaintiffs' home by the Defendants, its agents, contractors and/or employees, said Defendants, its

agents, contractors and/or employees took total possession of the home by changing the locks

and winterizing the property. These acts were all taken to dispossess the Plaintiffs of their

ownership interest and other rights they had in their home and property.

73. The Defendant, Countrywide, violated the terms of its workout arrangements

with the Plaintiffs by wrongfully ordering its agents, contractors and/or employees onto the

property, to seize the property, and to winterize without reasonable reasons, without giving any

notice to the Plaintiffs, and without having reasonable justification.

74. The Defendants' conduct is an unfair and deceptive act and practice that occurred

in the conduct of trade and commerce in the State of California.


done with gross disregard for the Plaintiffs' rights and constituted unfair and deceptive acts and

practices in the course of conduct of trade and commerce in violation of the Act.

76. The Defendants’ acts and/or omissions described herein are a matter of sufficient

public interest and pattern of deceptive and/or unfair acts as that phrase is defined by the Act.

77. As a direct and proximate cause of the unlawful, unfair and fraudulent acts and

practices of the Foreclosing Defendants, Plaintiffs and California consumers have suffered and



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

improper fees and charges.

78. By reason of the foregoing, the Foreclosing Defendants have been unjustly

enriched and should be required to disgorge their illicit profits and/or make restitution to

Plaintiffs and other California consumers who have been harmed, and/or be enjoined from

continuing in such practices pursuant to California Business & Professions Code Sections 17203

and 17204. Additionally, Plaintiffs are therefore entitled to injunctive relief and attorney’s fees

as available under California Business and Professions Code Sec. 17200 and related sections.

SEVENTH CAUSE OF ACTION

INVASION OF PRIVACY AGAINST ALL DEFENDANTS



80. The Plaintiffs owned the property and home located at 13405 Ski Slope Way,

Truckee, California. The Plaintiffs had the sole possessory interest in the home and property

located at this address. At all times material herein, the Plaintiffs had personal property and

belongings in the house and on the property and never abandoned the home.

81. The Plaintiffs, as the owners of the property had a right to privacy in their

property and house. The Plaintiffs had the right to be free from unlawful intrusion onto their

property and into their home and also from the unauthorized viewing, taking, seizure and

destruction of their personal property within their home and on their property.

82. The Defendants, through its agents, contractors and/or employees entered the

Plaintiffs' property and house without permission or authorization and viewed, took and

destroyed their personal property and possessions. Moreover, the Defendants, through its

agents, contractors and/or employees locked the Plaintiffs out of their own home and denied



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them access for months.

83. The acts of the Defendants, through its agents, contractors and/or employees were

an unreasonable, substantial and/or serious interference with the Plaintiffs' privacy.

84. The actions of the Defendants, through its agents, contractors and/or employees

were done intentionally and/or with gross disregard for the rights of the Plaintiffs and

constituted an invasion of the Plaintiffs' right to privacy.

85. In addition, the Defendants, through its agents, contractors and/or employees held

the Plaintiff, MIMI ASH out to the public in a false light by representing through its words and

actions that she had not paid the mortgage and that her home was subject to foreclosure. All of

these direct or implied representations about the Plaintiff, MIMI ASH, were false and

constituted an invasion of her privacy. These acts were an unreasonable, substantial and/or

serious interference with the Plaintiff's privacy.

86. The Plaintiffs were damaged as a direct and proximate result of the acts and

omissions of the Defendants, through its agents, contractors and/or employees.

EIGHTH CAUSE OF ACTION FOR

FRAUD AGAINST ALL DEFENDANTS



88. The Defendants engaged in a pattern and practice of defrauding Plaintiff, MIMI

ASH, in that, during the life of the mortgage loan, the Defendants failed to properly complete

any of the multiple loan modification agreements they agreed to enter with Plaintiff, MIMI

ASH, while accepting her payments towards those loan modification agreements and foreclosed

on the Subject Property based on Plaintiff’s alleged failure to provide documentation which on

each and every occasion was provided to Defendants by Plaintiff and which the Defendants



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knew to be false.

89. The Defendants had actual knowledge that the Plaintiff, MIMI ASH’s account

was not accurate but that the Defendants could use the inaccuracy to foreclose on the Subject

Property. Plaintiff furnished the required documentation and made required payments under the

loan modification agreements and provided proof of the receipt of documentation and proof of

the payments made based on the improper, inaccurate, and fraudulent representations as to her

account.

90. Additionally, the Defendants concealed material facts known to them but not to

Plaintiff, MIMI ASH, regarding payments, notices, assignments, transfers, late fees and charges

with the intent to defraud Plaintiff.

91. The Defendants made the above-referenced false representations, concealments

and non-disclosures with knowledge of the misrepresentations, intending to induce Plaintiff’s

reliance, which the unsuspecting Plaintiff justifiably relied upon, resulting in damage to her

credit standing, costs and loss of both Plaintiffs property. Plaintiff was unaware of the true facts.

Had Plaintiff known the true facts, Plaintiff, among other things, would not have maintained the

Defendants as her lender, servicer and trustee (and their alleged agents) and/or would have taken

legal action immediately to save her house from being wrongfully foreclosed and protected her

personal property from being wrongfully taken by Defendants, it agents, contractors and/or

employees.

92. As a result of the Defendants' fraudulent conduct, Plaintiff, MIMI ASH, has

suffered compensatory, general and special damages in an amount according to proof.

Additionally, the Defendants acted with malice, fraud and/or oppression and, thus, Plaintiff is

entitled to an award of punitive damages.



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NINTH CAUSE OF ACTION FOR

BREACH OF CONTRACT AGAINST ALL DEFENDANTS



94. Defendants voluntarily entered into a forbearance agreement with Plaintiff, MIMI

ASH, whereby Defendants agreed to accept a sum to bring the Ski Slope Way loan current from

Plaintiff in exchange for not foreclosing on Plaintiff’s home while Defendants worked out a loan

modification with Plaintiff on the note secured by a deed of trust on Plaintiff’s home.

95. The Defendants breached this forbearance agreement with Plaintiff by:

a. Agreeing to modify the loan for Plaintiff, MIMI ASH, on several

occasions and thereafter accepting payments towards this loan modification agreement,

but then failing each time to properly route the requested documentation supplied by

Plaintiff to them; and

b. Failing to honor the forbearance agreement with Plaintiff the result of

which led to the Defendants' admittedly wrongful foreclosure on the Plaintiff’s home

which resulted in the conversion of both Plaintiffs personal property by Defendants, its

agents, contractors and/or employees.

96. As a proximate result of Defendants' breaches, Plaintiffs have suffered

compensatory damages in an amount to be proven at trial.

TENTH CAUSE OF ACTION FOR

BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING

AGAINST ALL DEFENDANTS



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



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

requires that no party will do anything that will have the effect of impairing, destroying, or

injuring the rights of the other party to receive the benefits of their agreement. The covenant

implies that in all contracts each party will do all things reasonably contemplated by the terms of

the contract to accomplish its purpose. This covenant protects the benefits of the contract that

the parties reasonably contemplated when they entered into the agreement.

99. The Defendants enjoyed substantial discretionary power affecting the rights of

Plaintiff during the events alleged in this Complaint. They were required to exercise such power

in good faith.

100. The Defendants engaged in such conduct as described above to drive Plaintiff

into foreclosure so that they could acquire the Plaintiffs' home and Plaintiffs' valuable contents

at a bargain basement price. These actions were a bad faith breach of the contract between

Plaintiff and the Defendants which shows that Defendants had no intention of performing the

contracts, consisting of the original note and deed of trust and the subsequently executed

forbearance agreement, in good faith.

101. As a result of the Defendants' breaches of this covenant, Plaintiffs have suffered

damages in an amount to be determined at trial.

ELEVENTH CAUSE OF ACTION FOR

UNJUST ENRICHMENT AGAINST ALL DEFENDANTS



103. By their wrongful acts and omissions, the Defendants have been unjustly

enriched at the expense of Plaintiffs, and thus Plaintiffs have been unjustly deprived.

104. By reason of the foregoing, Plaintiffs seek restitution from the Defendants, and



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an order of this Court disgorging all profits, benefits, and other compensation obtained by the

Defendants from their wrongful conduct.

PRAYER FOR RELIEF

Wherefore, Plaintiffs pray for judgment against the Defendants and each of them, jointly

and severally, as follows:

1. For all damages sustained by the Plaintiffs in an amount proven at trial, including

past and future economic and compensatory damages, damage to property, past and future special

and non-economic damages, punitive and/or exemplary damages, and other damages.

2. Interest calculated at the maximum amount allowable by law, including pre- and

post-judgment interest.

3. Reasonable attorney's fee as allowed by law.

4. Pursuant to Business and Professions Code § 17203, that all Defendants, their

successors, agents, representatives, employees, and all persons who act in concert with them be

permanently enjoined from committing any acts of unfair competition in violation of § 17200,

including, but not limited to, the violations alleged herein.

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

attorney's fees according to proof.

6. For reasonable costs of suit and such other and further relief as the Court deems

proper.

DATED: November 16, 2010 CREED & ELLIOTT, LLP

By: /s/ Joseph W. Creed_______________________

Joseph W. Creed

Attorney for Plaintiffs



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And by the following attorneys (via anticipated pro hac vice admission):

Andrew J. Garcia (MA BBO#559084)

Carlin J. Phillips (MA BBO# 561916)

PHILLIPS & GARCIA, P.C.

13 Ventura Drive

N. Dartmouth, MA 02747

(508) 998-0800

(508) 998-0919 (fax)

[email protected]

Joseph F. deMello (MA BBO# 546017)

LAW OFFICE OF

JOSEPH F. deMELLO, P.C.

71 Main Street

Taunton, MA 02747

508-824-9112

508-824-5917 (fax)

[email protected]


mailto:[email protected]

Date post:	04-Apr-2015
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Ash v Bank of America

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