1st amended complaint sample from other atty
TRANSCRIPT
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Thomas Spielbauer, Esq.SBN 78281THE SPIELBAUER LAW OFFICE111 North Market Street, Suite 300San Jose, CA 95113Mail: P. O. Box 698Santa Clara, CA 95052(408)451-8499Fax: (610)[email protected]
Attorneys for Cornelio Pantoja, Plaintiff
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
CORNELIO PANTOJA,
Plaintiff.
v.s.
COUNTRYWIDE HOME LOANS,INC.; OLD REPUBLIC NATIONALTITLE COMPANY; OLD REPUBLICDEFAULT MANAGEMENTSERVICES,
Defendants.
No: 5:09-cv-1615 JW
Santa Clara County Superior CourtNo: 109CV138528
FIRST AMENDED COMPLAINTFOR DECLARATORYJUDGMENT PURSUANT TO CCP§1060, QUIET TITLE, FRAUD,UNFAIR BUSINESS PRACTICES,EQUITABLE ESTOPPEL, ANDFOR AN ACCOUNTING
JURY TRIAL REQUESTED
Plaintiff, Cornelia Pantoja, alleges:
PARTIES
1. Plaintiff Cornelio Pantoja is and at all times herein mentioned was a
resident of Santa Clara County, California.
2. Defendant Countrywide Home Loans, Inc. (herein after referred to as
COUNTRYWIDE) is a business entity with a principal place of business at 4500
Park Granada, Calabasas, California 91302. COUNTRYWIDE does business in
California and within the County of Santa Clara, California on a regular basis.
COUNTRYWIDE’s agent for the service of process in California is C. T.
Corporation System. COUNTRYWIDE is the alleged loan servicer in this matter.
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As a loan servicer, COUNTRYWIDE acted as the agent for the alleged
beneficiary, and its authority as servicer comes exclusively from the authority
enjoyed by the beneficiary.
3. Defendant Old Republic Default Management Services is a subsidiary of
Old Republic National Title Insurance Company. Old Republic National Title
Insurance Company is the parent corporation of Old Republic Default
Management Services. As a result, Old Republic Title Insurance Company is
responsible for the actions of Old Republic Default Management Services. Both
are herein referred to collectively OLD REPUBLIC. OLD REPUBLIC is a
business entity with a principal place of business located at 400 Second Avenue
South, Minneapolis, MN 55401. OLD REPUBLIC is the foreclosure trustee of
an alleged first deed of Trust on the property 580 LaSabre Court, Morgan Hill,
CA 95037. As foreclosure trustee, OLD REPUBLIC acted as the agent for the
alleged beneficiary as well as of the servicer. OLD REPUBLIC regularly
conducts business in Santa Clara County, California. OLD REPUBLIC’s agent
for the service of process in California is R. Wayne Shupe, 555 12th Street, Suite
2150, Oakland, CA 94607-4046.
4. Plaintiff is informed and believes, and thereon alleges, that each
Defendant is and at all relevant times herein was, the agent, employee, alter-ego,
principal, employer, or co-conspirator of each of the remaining co-Defendants,
and in committing the acts herein alleged, was acting in the scope of their
authority as such agents, employees, principals, employers, alter-egos, or co-
conspirators and with the permission and consent of the remaining co-
Defendants.
5. Whenever in this Complaint an act or omission of a corporation or
business entity is alleged, the said allegation shall be deemed to mean and include
an allegation that the corporation or business entity acted or omitted to act
through its authorized officers, directors, agents, servants, and/or employees,
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acting within the course and scope of their duties, that the act or omission was
authorized by corporate managerial officers or directors, and that the act or
omission was ratified by the officers and directors of the corporation.
JURISDICTION
On March 30, 2009, Plaintiff filed his complaint in California State Court,
County of Santa Clara. On April 13, 2009, defendants removed the matter into
Federal District Court based on federal question jurisdiction. Plaintiff brought an
exparte motion to remand on April 15, 2009. This Court denied plaintiff’s motion
to remand on May 12, 2009. Almost two months later, on July 9, 2009, this Court
granted defendants’ motion to dismiss with leave to amend.
6. The transactions and events which are the subject matter of this
complaint all occurred within the County of Santa Clara, State of California.
7. The property located at 580 La Sabre Court, Morgan Hill, California
95037 is located in the County of Santa Clara, California.
8. The Legal description is: All that certain real property in the City of
Morgan Hill, County of Santa Clara, State of California, described as follows: All
of Lot 25, as shown on that certain Map of Tract No. 5699, which Map was filed
for record in the Office of the Recorder of the County of Santa Clara, State of
California on July 01, 1976, in Book 374 of Maps, page(s) 9 and 10.
JOINT VENTURE
9. At all times during the periods complained of in this complaint,
defendants COUNTRYWIDE and OLD REPUBLIC and any alleged claiming
entities as beneficiary to the alleged June 2006 promissory note were engaged in
a joint venture amongst themselves and with other unknown third parties. All
defendants came together for the purpose of enforcing an alleged secured
indebtedness upon the property of 580 LaSabre Court, Morgan Hill, CA 95037
and extracting money from plaintiff Cornelio Pantoja upon threat of seizing his
property. They formed this joint venture for this single mortgage and for the
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series of transactions necessary to enforce the extraction of money from Cornelio
Pantoja by the unlawful enforcement of this alleged June 2006 mortgage. Each
defendant financially benefitted, or intended to benefit from this mutual
undertaking. Each defendant complied with the requirements of the other
defendants in order to insure that the mutual goal of imposing this exploding
ARM was fulfilled and each defendant thereby profited from this transaction.
JURY TRIAL DEMAND
10. Cornelio Pantoja requests a jury trial on all issues in this matter.
FACTUAL ALLEGATIONS
11. On June 27, 2006, Cornelio Pantoja securing a first deed of trust loan
from Greenpont Mortgage Lending, Inc. (hereinafter referred to as
GREENPOINT).
12. This loan of June 27, 2006 was a purchase money mortgage whereby
the financing was used to purchase the home. The loan in the amount of
$514,400 from GREENPOINT. GREENPOINT was the beneficiary.
13. At the time of the financing, the selling real estate agent (the one
representing plaintiff) arranged financing through an associate, Karen Wigmore.
Plaintiff was promised a monthly mortgage payments $3,054 per month with an
additional promise that he would be refinanced after six months into a lower
monthly mortgage payment. If worse came to worse, he was told, the payments
would remain $3,054 for 30 years, and the interest rate would remain the same for
these 30 years.
14. No disclosures of any kind were provided to Cornelio Pantoja prior to
the date of the signing of the loan documents.
15. The true terms of the loan were as follows. The loan was in the
amount of $514,000. The note initially granted to Mr. Pantoja a 7.125% interest
rate, calling for a $3,054.25 monthly mortgage payment for the first three years.
However, after the first three years, the interest rate could shoot up five (5)
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percentage points, from 7.125% to 12.125%. Six months later, the interest rate
could cap at 13.125%. The note did not carry a prepayment penalty.
16. On the date of the signing, June 27, 2006, Cornelio Pantoja went to
Alliance Title in Morgan Hill, California. Copies of some, but not all, of the loan
documents were furnished to Cornelio Pantoja for the first time at the signing.
None of the disclosures had been provided on prior to the signing. As a result,
Cornelio Pantoja relied on the representations and statements of his real estate
agent, his mortgage arranger, and the title officer who was acting as the signing
agent.
17. The signing took a total of about 40 minutes. No explanations nor
discussions occurred concerning the loan itself. All the explanations centered on
zoning and pest reports. Nothing was explained nor discussed about the terms of
the loan. Cornelio Pantoja was provided the opportunity of reviewing the loan
documents only after their execution, and only after he had left the title company
premises. The other persons at the signing were the title officer telling plaintiff
where he was to initial and sign and Ms. Wigmore. Cornelio Pantoja was not
permitted the opportunity of reading and understanding any of the documents he
was signing at the time of their execution and thus did not know nor understand
what he was signing. Instead was forced to rely on the oral representations of
Ms. Wigmore and the title officer.
18. Plaintiff faithfully made his mortgage payments until June 2008 when
he became delinquent.
19. While the value of 580 La Sabre Court in Morgan Hill, CA was
appraised at $650k at the time of purchase, it now has a market value in mid-
$400,000's. It has lost at least $200,000 in value.
20. Two and a half years later, on or about December 9, 2008,
COUNTRYWIDE notified Cornelio Pantoja that the servicing of his mortgage
had been assigned to COUNTRYWIDE. COUNTRYWIDE merely advised that
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the GREENPOINT had been the initial servicer, but that the servicing rights had
been transferred to COUNTRYWIDE.
21. COUNTRYWIDE provided no information concerning the current
ownership, i.e., who was the beneficiary, of the promissory note nor the deed of
trust, which had been executed on or about June 27, 2006.
22. On or about October 16, 2008, OLD REPUBLIC recorded a Notice of
Default upon the property of 580 La Sabre Court in Morgan Hill, CA. This
Notice of Default is Exhibit 1 to this complaint.
23. This Notice of Default was a mess. It purported to state that the duly
appointed trustee was Marin Conveyancing Corporation and failed to provide any
information any kind as to how the plaintiff was to make contact with Marin
Conveyancing Corporation. In fact, Old Republic Default Management was the
entity acting as trustee not only for this notice of default but for the subsequent
notice of Trustee Sale. This misrepresentation in the Notice of Default was a
direct violation of California Civil Code§2924c(b)(1). This Notice of Default
effectively indicated two separate and distinct trustees, Marin Conveyancing
Company and Old Republic Default Management. This code section requires that
the Notice of Default set forth the name, address and telephone number of the
trustee.
24. This notice of Default listed two separate and distinct beneficiaries. It
listed the original lender and beneficiary, GREENPOINT. It immediately
thereafter listed MERS as the separate and distinct beneficiary. This
misrepresentation in the Notice of Default was a direct violation of California
Civil Code§2924c(b)(1). MERS continued in this beneficial capacity, and
GREENPOINT disappeared, in the subsequent Notice of Trustee Sale.
25. This Notice of Default violated California Civil Code §2923.5.
Section 2923.5 prohibits the filing of a Notice of Default until its provisions are
fulfilled. California Civil Code §2923.5(a)(2) sets forth the requirement that a
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declarant set forth his efforts to “assess the borrower's financial situation and
explore options for the borrower to avoid foreclosure” among other requirements.
California Civil Code §2923.5(b) sets forth the requirement that the contacting
entity set forth its efforts to comply with §2923.5(a)(2) in a declaration based on
personal knowledge in the event that a Notice of Default is recorded.
26. This declaration was deficient in that Countrywide did not undertake
good faith efforts assess Cornelio Pantoja’s financial situation and nor to explore
options for the plaintiff to avoid foreclosure.
27. None of the itemized beneficiaries (GREENPOINT or MERS) or even
the servicers (COUNTRYWIDE) attached a declaration or based on personal
knowledge discussing or detailing their efforts to avoid foreclosure. The alleged
statement included with the Notice of Default was an unfounded, summary,
conclusory, and hearsay statement by a Tina Jones, presumably with OLD
REPUBLIC, an entity under no obligation to conduct loan modification
discussions. Even this statement, viewed on its face, did not fulfil the
requirements of California Civil Code §2923.5(a) and (b). It further appeared to
have been an edited statement of one intended to be used prior to the notice
requirements of Senate Bill 1137. This Notice of Default directly violates
California Civil Code §2923.5(a) and (b).
28. On or about January 30, 2009, a Notice of Trustee Sale was recorded
against the property of 580 La Sabre Court, Morgan Hill, CA 95037, by Old
Republic Default Management. This Notice of Trustee Sale initially set the date
of February 26, 2009 at 10:00 a.m. as the date of the sale. This trustee sale date
was postponed to April 1, 2009.
29. This Notice of Trustee Sale purported that the beneficiary of the
mortgage and the promissory note was MERS (Mortgage Electronic Registration
Systems, Inc.). A copy of this Notice of Trustee Sale is attached to this complaint
as Exhibit 2. By this time, Marin Conveyancing Corporation as Trustee and
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Greenpoint Mortgage as Beneficiary disappeared.
30. MERS is always a nominee and never the actual holder or owner of a
promissory note or deed of trust. It is never an actual beneficiary. MERS is
essentially a sophisticated electronic bulletin board for the recording of mortgage
information. MERS never is the actual assignee of the promissory note or trust
deed.
31. While the Notice of Trustee Sale listed MERS as the beneficiary, the
Notice did not provide the name, address, and telephone number of this
beneficiary.
32. This Notice of Trustee Sale further stated that the estimated charges,
fees and expenses as of the time of the recording of Notice of Trustee Sale was
$560,801.38. The Trustee was listed as Old Republic Default Management
Services.
33. This Notice of Trustee Sale did not contain a declaration as mandated
by California Civil Code §2923.5. It simply stated that the declaration as
required by this code section was fulfilled when the Notice of Default was
recorded on October 17, 2008. The Notice of Default not did contain the
mandatory declaration nor details required by 2923.5(c).
34. The June 27, 2006 promissory note and deed of trust contains an
attorney fee provision whereby the losing party would be required to pay the
losing party’s attorney fees in the event of litigation.
35. Plaintiff Cornelio Pantoja has never been advised as to any transfers
concerning the alleged beneficiary of this alleged mortgage note.
36. The initial beneficiary was Greenpoint Mortgage Lending.
Subsequently claiming to be the beneficiary in the Notice of Default and the
Notice of Trustee Sale, without a chain of evidence of its right to do so, has been
MERS.
37. COUNTRYWIDE now is attempting to foreclose upon the home of
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Cornelio Pantoja, listing MERS as beneficiary, when it does not have the legal
right to do so.
38. COUNTRYWIDE now is attempting to foreclose upon the home of
Cornelio Pantoja, listing MERS as beneficiary, when neither MERS nor
COUNTRYWIDE nor apparently anyone do not have possession of the original
promissory note with proper chain of endorsements from Greenpoint Mortgage
Lending. COUNTRYWIDE has made no reasonable effort to insure that it is
acting under the authority of a lawful beneficiary.
39. COUNTRYWIDE and Old Republic Management now is attempting to
foreclose upon the home of Cornelio Pantoja when they have not complied with
the requirements of California non-judicial foreclosure law.
40. California Civil Code §2924 et seq. mandates that a Notice of Default
and a Notice of Trustee sale require the existence of a valid security, such as a
trust deed securing a valid promissory note, before non-judicial foreclosure
proceedings can be initiated. No such valid security and no such valid
promissory note existed in favor of the defendants at the time they commenced
non-judicial foreclosure proceedings.
41. In order to conduct a valid foreclosure, the beneficiary must have in its
possession the original of the promissory note with endorsements establishing the
foreclosing beneficiary as the rightful of the owner of the note, and must have the
original of the deed of trust with recorded assignments establishing that it is the
rightful owner and beneficiary of this deed of trust.
42. At no time after GREENPONT may have allegedly transferred the note
and trust deed to a subsequent assignee was Cornelio Pantoja ever provided
documentation establishing that the alleged foreclosing beneficiary was in fact
that rightful and lawful owner of the promissory note and the deed of trust.
43. OLD REPUBLIC is acting as the foreclosure trustee in this matter.
Cornelio Pantoja is informed and believes that OLD REPUBLIC is not the lawful
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beneficiary nor owner of the June 2006 promissory note and trust deed.
44. Furthermore, Cornelio Pantoja is informed and believes that
COUNTRYWIDE performed the duties a servicer of the loan and in fact is not
the not the lawful beneficiary nor owner of the June 27, 2006 promissory note and
trust deed.
45. California Civil Code §§2924c(b)(1) requires that the beneficiary be
identified in the Notice of Default. The beneficiary that was identified as
beneficiary in the Notice of Default was GREENPOINT. MERS was then
identified as the beneficiary in the Notice of Trustee Sale. COUNTRYWIDE has
never held itself out to be the beneficiary of this June 27, 2006 loan transaction.
46. This failure to identify the true beneficiary, i.e., the holder and owner
of the promissory note, has prejudiced Cornelio Pantoja. It is prevented him from
readily identifying the legal owner of the note, has prevented him from obtaining
proof that payments are being made to the correct entity, has prevented him from
directly conducting loan modification discussions with the beneficiary of the
note, have prevented Cornelio Pantoja from insuring that the purpose of
California Civil Code §2923.6 is fulfilled, and has been a substantial factor in
causing the foreclosure sale date to be set.
47. California Senate Bill 1137 was signed into law as emergency
legislation on July 8, 2008. Since it was emergency legislation, the sections of
law went into effect on that same date. Two notice provisions, however, went
into effect on September 5, 2008.
48. California Senate Bill 1137 enacted California Civil Code §§2923.5,
2923.6, 2924.8 and 2929.3 and California Code of Civil Procedure 1161b.
49. California Senate Bill 1137 found that, “California is facing an
unprecedented threat to its state economy and local economies because of
skyrocketing residential property foreclosure rates in California.” If found that,
“It is essential to the economic health of California for the state to ameliorate the
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deleterious effects on the state economy and local economies and the California
housing market that will result from the continued foreclosures of residential
properties in unprecedented numbers by modifying the foreclosure process to
require ... options that could avoid foreclosure.” If further found that, “This act is
necessary to avoid unnecessary foreclosures of residential properties ....”
50. California Civil Code §§2923.5(a)-(c) requires that the current
beneficiaries, COUNTRYWIDE, and OLD REPUBLIC declare in their notice of
default and their notice of trustee sale their efforts to contact Cornelio Pantoja and
engage in foreclosure/loss mitigation.
51. Defendants COUNTRYWIDE, OLD REPUBLIC, and any alleged
claimant as the beneficiary to the June 2006 promissory note and deed of trust
wilfully and intentionally did not comply with California Civil Code §§2923.5(a)-
(c). Their Notice of Default (Exhibit 1) and their Notice of Trustee Sale recorded
(Exhibit 2) do not contain the required declarations based on personal knowledge
in the manner mandated by California Civil Code §§2923.5(b) and (c).
52. Defendants COUNTRYWIDE, OLD REPUBLIC, and claiming
beneficiary filed their Notice of Default without the mandated declaration of
California Civil Code §2923.5(b).
53. Defendants COUNTRYWIDE, OLD REPUBLIC, and claiming
beneficiary filed their Notice of Trustee Sale without the mandated declaration of
California Civil Code §2923.5(c).
54. California Civil Code §2923.6 requires that the defendants have
pursued a loan modification in good faith prior to the recording of a notice of
default or trustee sale.
55. Plaintiff Cornelio Pantoja contacted COUNTRYWIDE during mid
February 2009. He submitted to COUNTRYWIDE the documents which
COUNTRYWIDE was requesting of him during March 2009. Nevertheless,
COUNTRYWIDE refused to postpone the foreclosure sale set for April 1, 2009
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so that a viable loan modification agreement or workout plan could be arrived at.
56. Defendants did not comply with California Civil Code §2923.6.
57. On February 20, 2009, Assembly Bill X2-7 was signed into law. This
provision enacted into law California Civil Code §§2923.52, 2923.53, 2923.54,
and 2923.55.
58. Assembly Bill X2-7 reiterated the concerns expressed in Senate Bill
1137 in July 2008. Seven months, and many foreclosures later, the California
Legislature found, “California is facing an unprecedented threat to its state and
local economies due to skyrocketing residential property foreclosure rates in
California. Those high foreclosure rates have adversely affected property values
in California, and will have even greater adverse consequences as foreclosure
rates continue to rise.”
59. Assembly Bill X2-7 also declared that, “It is essential to the economic
health of California for the state to ameliorate the deleterious effects that will
result from the continued high rate of foreclosure of residential properties by
modifying the foreclosure process .... This change in accessing the state's
foreclosure process is essential to ensure that the process does not exacerbate the
current crisis by adding more foreclosures to the glut of foreclosed properties
already on the market if the foreclosure may be avoided through a loan
modification. Those additional foreclosures could further destabilize the housing
market with significant, corresponding deleterious effects on the state and local
economies.”
60. California Civil Code §2923.52 adds an additional three months to the
notice of default period specified in California Civil Code §2924(a)(2) “if the
loan at issue is the first mortgage or deed of trust that the property secures, the
borrower occupied the property as his or her principal residence at the time the
loan became delinquent, and the notice of default has been filed.” Thus, a total
period of six months must pass before a notice of trustee sale can be recorded.
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Less than six months have passed since the Notice of Default was recorded.
61. The alleged note of June 27, 2006 is a first deed of trust and the
property of 580 La Sabre Court in Morgan Hill is plaintiff’s home.
UNCONSCIONABLENESS
62. Plaintiff realleges and incorporates by reference paragraphs 1 to 61 of
this complaint.
63. Civil Coded §1670.5(a) states:If the court as a matter of law finds 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 theremainder of the contract without the unconscionable clause, or itmay so limit the application of any unconscionable clause as to avoidany unconscionable result.
64. The mortgage agreement which plaintiff entered into with
GREENPOINT, the manner in which it was entered into, and a loan now
serviced by COUNTRYWIDE is unconscionable. The unconscionability of the
contract has been detailed in this complaint.
65. Plaintiff Cornelio Pantoja was misled as to the terms of the loan
agreement. He was told that the loan would call, at the worse, for mortgage
payments of $3,054 for the duration of the loan. The fact that the loan was an
exploding ARM with much higher payments was concealed from him. He was
not permitted the opportunity of reviewing the loan documents until after their
execution, and then not all of the loan documents were provided to him. No loan
disclosures were provided to him prior to the execution of the loan. Cornelio
Pantoja’s primary language is Spanish, with English as a second language. The
language of the promissory note and deed of trust, being filled with legalese,
would have been nearly incomprehensible to a person for whom English was a
primary language, let along with someone who has a limited education, and let
alone someone who would have been permitted time to peruse all of the loan
documents.
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66. Defendants then sought the charge plaintiff inflated and unlawful fees,
as reflected in their billings for the mortgage, their notice of default, and their
notice of trustee sale. If plaintiff did not pay these fees, or agree to pay them,
defendants would seize his property through a non-judicial foreclosure sale,
which they are now attempting to do. Defendants, and each of them, sought to
impose upon plaintiff a mortgage agreement which carried excessive interest,
charges and fees and whose true nature were and are still concealed from
plaintiff.
67. The defendants, their agents and employees, and their successors have
misled the plaintiff and thereby sought to financially profit from its terms, and
have done so wilfully and maliciously.
FIRST CAUSE OF ACTIONREQUEST FOR DECLARATORY JUDGMENT
(All Defendants)
68. Plaintiff Cornelio Pantoja realleges and incorporates by reference
paragraphs 1 to 67 of this complaint.
69. An actual controversy has arisen and now exists between plaintiff and
defendants concerning their respective rights and duties. Plaintiff desires a
judicial determination of his rights and duties
70. A valid foreclosure by the private power of sale requires strict
compliance with the requirements of California Civil Code §2924 et seq..
71. Defendants have scheduled a trustee sale despite the fact that they do
not have a valid security in plaintiff’s residence of 580 La Sabre Court in Morgan
Hill, CA, and there is no known beneficiary who has. Defendants intend to
proceed forward with an unlawful and invalid trustee sale based on the non-
existent security and the invalid notices based on this security.
72. Defendants have scheduled a trustee sale and intend to proceed with
the sale on April 1, 2009 despite their violations of California Non-Judicial
Foreclosure Law, California Civil Code §2924 et seq..
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73. Cornelio Pantoja requests that this Court issue a judgment that the
notice of trustee sale and the notice of default are invalid; that before the
defendants proceed forward with any other action against plaintiff’s home, that
they be required to prove by properly admissible evidence that the beneficiary has
in it’s possession the original of the promissory note with indorsements
establishing it as the rightful owner of the note;
74. Cornelio Pantoja requests that this Court issue a declaration finding:
that defendants have failed to properly identify the beneficiary in the notice of
default, as required by California Civil Code §2924c(b)(1); that defendants have
failed to properly identify the beneficiary in the notice of trustee sale; that
defendants have failed to provide a proper California Civil Code §2923.5
declaration in the notice of default; that defendants have failed to provide a
proper California Civil Code §2923.5 declaration in the notice of trustee sale; that
defendants have failed to engage in loan modification or workout discussions in
good faith as required by California Civil Code §2923.6; that defendants have
failed to postpone the trustee sale despite the 90 day postponement requirement
of California Civil Code §2923.52; that defendants should be estopped from
foreclosing on the home of plaintiff; that GREENPOINT loan of June 2006, and
the manner in which it was executed, is and was unconscionable.
75. A judicial declaration is necessary and appropriate at this time and
under these circumstances in order that plaintiff may ascertain his rights and
duties and avoid the specter of a foreclosure sale and the loss of his home. Such
trustee’s sale, absent a judicial determination negating the Notice of Trustee Sale,
is scheduled to occur in August 2009, or at a time thereafter in the event of
postponement. Such a trustee’s sale will cause Cornelio Pantoja to lose a
property without out establishing a lawful right of the defendants to conduct such
a sale or fully comply with California foreclosure law. Such a trustee’s sale
would for surely cause Cornelio Pantoja the unjust loss of his home.
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76. A foreclosure sale of plaintiff’s home is currently scheduled but has not
yet occurred. Plaintiff homeowner is not required to tender the amounts
demanded by defendants as a condition of bringing this action as any “tender
rule” is a rule that the most would apply post-foreclosure sale.
77. Defendants’ actions in this matter have been wilful and knowing.
SECOND CAUSE OF ACTION UNLAWFUL AND ATTEMPTED FORECLOSURE
(All Defendants)78. Plaintiff realleges and incorporate by reference paragraphs 1 to 77 of
this complaint.
79. Plaintiff Cornelio Pantoja is the lawful owner of the property located at
580 La Sabre Court in Morgan Hill, CA.
80. On or about January 30, 2009, Defendants recorded a Notice of Trustee
sale upon the property of 580 LaSabre Court, Morgan Hill, CA 95037. This is
the final required notice for the defendants to conduct a foreclosure sale of
plaintiff’s home.
81. As of the date of the filing of this amended complaint, a non-judicial
foreclosure sale of plaintiff’s home has not yet occurred but is currently
scheduled to occur.
82. Defendants engaged in unlawful foreclosure in the following ways: by
attempting to foreclosure upon plaintiff’s home when they and the unknown
beneficiary did not have the right to do so; by failing to demonstrate that the
beneficiary, whomever that may be, has in its possession the original of the
promissory note with indorsements establishing it as the rightful owner of the
note; by failing to properly identify the beneficiary in the notice of default, as
required by California Civil Code §2924c(b)(1); by failing to properly identify
the beneficiary in the notice of trustee sale even after being requested to do so; by
failing to provide a proper 2923.5 declaration in the notice of of default; by
failing to provide a proper 2923.5 declaration in the notice of trustee sale; by
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failing to engage in loan modification or workout discussions in good faith as
required by California Civil Code §2923.6; by recording a notice of trustee sale
on or about January 30, 2009; by attempting to go to trustee sale despite the 90
day postponement requirement of California Civil Code §2923.52; by attempting
to go to sale without insuring that the beneficiary for whom the servicer and
trustee worked had in its possession and was the owner of original of the
promissory note with endorsements; by attempting to enforce an unconscionable
loan of June 2006.
83. These defendants did not have the legal right to foreclose upon
plaintiff’s property.
84. A foreclosure sale of plaintiff’s home is currently scheduled but has not
yet occurred. Plaintiff homeowner is not required to tender the amounts
demanded by defendants as a condition of bringing this action as any “tender
rule” is a rule that at the most would apply post-foreclosure sale.
85. Defendants’ actions have been intentional, wilful and malicious.
86. As a result of defendants’ actions, plaintiff has suffered harm. Among
the harm, he has incurred substantial attorney fees in order to vindicate his lawful
rights. He has suffered the slander of his reputation in that a foreclosure sale has
been reported against him to credit reporting agencies.
THIRD CAUSE OF ACTIONQUIET TITLE(All Defendants)
87. Cornelio Panotoja incorporates herein by reference paragraphs 1
through 86 of this amended complaint.
88. Cornelio Pantoja is the owner in fee simple of the property, his home,
located at 580 LaSabre Court, Morgan Hill, CA 95037. Cornelio Pantoja is
entitled to possession and control of the real property, and improvements, located
at this address.
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89. Cornelio Pantoja obtained a secured loan from GREENPOINT on or
about June 27, 2006. In order to secure the loan, Cornelio Pantoja executed a
promissory note and secured that note with a trust deed on the property of 580 La
Sabre Court in Morgan Hill, CA.
90. On or about October 16, 2008, defendants recorded a notice of default
upon the property of 580 LaSabre Court, Morgan Hill, CA. On or about January
30, 2009, Defendants recorded a Notice of Trustee sale upon the property of 580
LaSabre Court, Morgan Hill, CA 95037.
91. This Notice of Default, Exhibit 1 to this amended complaint, listed two
separate and distinct beneficiaries. It listed the original lender and beneficiary,
GREENPOINT. It immediately thereafter listed MERS as the separate and
distinct beneficiary. This misrepresentation in the Notice of Default was a direct
violation of California Civil Code§2924c(b)(1). MERS continued in this
beneficial capacity, and GREENPOINT disappeared, in the subsequent Notice of
Trustee Sale.
92. This Notice of Trustee Sale purported that the beneficiary of the
mortgage and the promissory note was MERS (Mortgage Electronic Registration
Systems, Inc.). A copy of this Notice of Trustee Sale is attached to this complaint
as Exhibit 2. By this time, Marin Conveyancing Corporation as Trustee and
Greenpoint Mortgage as Beneficiary disappeared.
93. MERS is always a nominee and never the actual holder or owner of a
promissory note, or deed of trust for that matter. It is never an actual beneficiary.
MERS is essentially a sophisticated electronic bulletin board for the recording of
mortgage information. MERS never is the actual assignee of the promissory note
or trust deed.
94. In order to initiate a foreclosure proceeding, a beneficiary must have a
legal or equitable right, title or interest in the promissory note. The current holder
and owner of the note and is always a proper party to initiate a non-judicial
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foreclosure proceeding. In order to invoke the rights under California non-
judicial foreclosure law, a beneficiary must establish an unbroken chain of
transfers from prior note holders when challenged to establish its right to
foreclose.
95. A servicer’s right, in this case Countrywide, to conduct a non-judicial
foreclosure is entirely dependent and derivative from the rights of the holder and
owner of the promissory note and deed of trust. These rights do not exist
independent of nor greater than the rights of the owner and holder of the note.
96. A servicer and a foreclosure trustee may not conduct a non-judicial
foreclosure without disclosing the correct identity of the beneficiary of the note
and deed of trust when requested to do so.
97. A servicer and a foreclosure trustee may not conduct a non-judicial
foreclosure without undertaking a good faith effort to confirm the existence of the
original of the promissory note with indorsements to the current beneficiary when
requested to do so.
98. None of the defendants are the owners nor holders of the promissory
note executed by Cornelio Pantoja in June 2006.
99. None of the defendants are owners nor holders of the deed of trust
executed by Cornelio Pantoja in June 2006.
100. A trust deed separated from a promissory note becomes a nullity. A
promissory note separated from the securing trust deed becomes a unsecured
debt.
101. Plaintiff Cornelio Pantoja has never been advised as to any transfers
concerning the alleged beneficiary of this alleged mortgage note.
102. There is no identifiable and lawful beneficiary of these mortgage
agreements of June 2006, to whom indorsements of the promissory note have
been made and to whom assignments of the deed of trust have been properly
made.
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103. Defendants Countrywide and Old Republic do not have the lawful
right to conduct a non-judicial foreclosure sale of Cornelio Pantoja’s home until
the legal right of the beneficiary to engage in this sale has been established. This
is accomplished, when requested by the plaintiff, by the production of the original
of the promissory note with indorsements and the production of the assignment of
the deed of trust in favor of the current beneficiary.
104. Cornelio Pantoja is informed and believes that no such lawful and
documented beneficiary exists.
105. These defendants did not have the legal right to foreclose upon
plaintiff’s property.
106. Defendants’ actions have been intentional, wilful and malicious.
107. As a result of defendants’ actions, plaintiff has suffered harm. Among
the harm, he has incurred substantial attorney fees in order to vindicate his lawful
rights. He has suffered the slander of his reputation in that a foreclosure sale has
been reported against him to credit reporting agencies.
108. A foreclosure sale of plaintiff’s home is currently scheduled but has
not yet occurred. Plaintiff homeowner is not required to tender the amounts
demanded by defendants as a condition of bringing this action as any “tender
rule” is a rule that at the most would apply post-foreclosure sale.
109. Plaintiff Cornelio Pantoja seeks a determination of fee simple title in
this action as of the date on which this claim was filed.
FOURTH CAUSE OF ACTIONFRAUD
(COUNTRYWIDE ONLY)
110. Plaintiff realleges and incorporates by reference paragraphs 1 to 109
of this complaint.
111. Fraud occurs under any of the following circumstances: When there is
an affirmative misrepresentation — the suggestion, as a fact, of that which is not
true by one who does not believe it to be true; a concealment or half truth — the
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suppression of a fact, by one who is bound to disclose it or who gives information
of other facts which are likely to mislead for want of communication of that fact;
or a false promise — a promise made without any intention of performing it.
112. Fraud also occurs when a defendant makes an untrue representation of
a material fact without a reasonable ground for its truth or in a manner not
warranted by the available information. Such a representation must be made with
the intent that the plaintiff would and did rely on it, to his detriment and harm.
113. In this matter, COUNTRYWIDE misrepresented material facts,
knowing that its representations were false and by making their representations
without reasonable grounds, with the intent that Cornelio Pantoja would rely on
their misrepresentations, all to Cornelio Pantoja’s harm.
114. These misrepresentations were made by COUNTRYWIDE through its
employees and agents and through OLD REPUBLIC as foreclosure trustee. Its
misrepresentations were made by heretofore unidentified employees and agents of
COUNTRYWIDE whose identities and specific capacities will be established by
the discovery to be conducted in this case.
115. COUNTRYWIDE perpetrated its fraud in actions which included but
were not limited to the following activities, and as described with specificity in
the factual allegations of this claim:
116. By attempting to collect an unenforceable and alleged debt from
Cornelio Pantoaja; by attempting to enforce an unconscionable loan and claiming
that it was legal and proper; By misrepresenting the debt of June 2006 as a
secured debt when in fact it was an unsecured debt at best; By failing to advise
Cornelio Pantoja as to any transfers of the promissory note to any alleged
beneficiary; by failing to properly identify and insure the identification of the
beneficiary in the notice of default, as required by California Civil Code
§2924c(b)(1); by failing to properly identify and insure the identification of the
beneficiary in the notice of trustee sale; by failing to provide and insure the
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providing of a proper 2923.5 declaration in the notice of default; by failing to
provide and insure the providing of a proper 2923.5 declaration in the notice of
trustee sale; by failing to engage in loan modification or workout discussions in
good faith as required by California Civil Code §2923.6; by recording a notice of
trustee sale on or about January 30, 2009; by attempting to go to trustee sale
despite the 90 day postponement requirement of California Civil Code §2923.52;
By attempting to go to sale without insuring that the beneficiary for whom the
servicer and trustee worked had in its possession and was the owner of original of
the promissory note with endorsements.
FIFTH CAUSE OF ACTIONUNFAIR BUSINESS PRACTICES
(All Defendants)
117. Plaintiff realleges and incorporates by reference paragraphs 1 to 116
of this complaint.
118. California Business and Professions Code §17200 prohibits any
unlawful, unfair or fraudulent business act or practice and unfair, deceptive,
untrue or misleading advertising and any act prohibited by Business and
Professions Code §17500 et seq..
119. California Business and Professions Code §17500 et seq. prohibits the
making of a statement or a publication or a declaration concerning any
circumstance or matter of fact connected with the proposed performance or
disposition of real or personal property, which pronouncements is untrue or
misleading, and which is known, or which by the exercise of reasonable care
should be known, to be untrue or misleading.
120. Defendants, and each of them, violated Business and Professions
Code §17200 et seq. and 17500 et seq., through the following actions and by
aiding and abetting each other in the completion and continued perpetration of the
following actions: By failing to advise Cornelio Pantoja as to any transfers of the
promissory note to any alleged beneficiary; by failing to properly identify the
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beneficiary in the notice of default, as required by California Civil Code
§2924c(b)(1); by failing to properly identify the beneficiary in the notice of
trustee sale; by failing to provide a proper 2923.5 declaration in the notice of
default; by failing to provide a proper 2923.5 declaration in the notice of trustee
sale; by failing to engage in loan modification or workout discussions in good
faith as required by California Civil Code §2923.6; by recording a notice of
trustee sale on or about January 30, 2009; by attempting to go to trustee sale
despite the 90 day postponement requirement of California Civil Code §2923.52;
By attempting to go to sale without insuring that the beneficiary for whom the
servicer and trustee worked had in its possession and was the owner of original of
the promissory note with endorsements; by attempting to enforce an
unconscionable loan and claiming that it was legal and proper.
121. A foreclosure sale of plaintiff’s home is currently scheduled but has
not yet occurred. Plaintiff homeowner is not required to tender the amounts
demanded by defendants as a condition of bringing this action as any “tender
rule” is a rule that at the most would apply post-foreclosure sale.
SIXTH CAUSE OF ACTIONEQUITABLE ESTOPPEL
(All Defendants)
122. Plaintiff Cornelio Pantoja re-alleges and incorporates by reference
paragraphs 1 to 121 of this complaint.
123. The essence of an estoppel is that the party to be estopped has by
language or conduct led another to do that which he would not otherwise have
done and as a result thereof that he has suffered injury. A person or entity may
not deny the existence of a state of facts if he or she intentionally led another to
believe a particular circumstance to be true and to rely upon such belief to his or
her detriment.
124. The doctrine of "estoppel" refers less to a doctrine than to a
conceptual pattern, first articulated in the courts of equity, in which the court in
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effect closes its ears to a point—a fact, argument, claim, or defense—on the
ground that to permit its assertion would be intolerably unfair. “Estoppel” is an
equitable argument that deprives another his rights or defenses. The doctrine of
equitable estoppel is based on the foundation of conscience and fair dealing.
125. Defendants should be estopped from asserting any right to foreclose
upon the home of plaintiff Cornelio Pantoja for the following reasons:
126. No one has demonstrated that any alleged beneficiary has in its
possession the original of the promissory note with indorsements establishing it
as the rightful owner of the note. Neither and no one has the right nor standing to
foreclose on plaintiff’s home without these documents.
127. There are multiple other reasons for Equitable Estoppel to apply.
These have been discussed supra, but are included under the reasons as to why
Equitable Estoppel applies: by attempting to go to sale without insuring that the
beneficiary for whom the servicer and trustee worked had in its possession and
was the owner of original of the promissory note with endorsements; by failing to
advise Cornelio Pantoja as to any transfers of the promissory note to any alleged
beneficiary; by failing to properly identify the beneficiary in the notice of default,
as required by California Civil Code §2924c(b)(1); by failing to properly identify
the beneficiary in the notice of trustee sale; by failing to provide a proper 2923.5
declaration in the notice of default; by failing to provide a proper 2923.5
declaration in the notice of trustee sale; by failing to engage in loan modification
or workout discussions in good faith as required by California Civil Code
§2923.6; by recording a notice of trustee sale on or about January 30, 2009; by
attempting to go to trustee sale despite the 90 day postponement requirement of
California Civil Code §2923.52; by attempting to enforce an unconscionable loan
and claiming that it was legal and proper.
128. Defendants and their agents and employees knew that their authority
to proceed to sale comes from the right of the beneficiary to enforce the
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promissory note and deed of trust, and that their authority is subservient to and
not independent of this right. Additionally, the defendants and their agents and
employees knew of their obligations under California Civil Code §2924 et seq.
and 2923 et seq. but misled the plaintiff into believing that defendants had the
lawful right to foreclose and were in full compliance with California non-judicial
foreclosure law. All of these misrepresentations and deceptions caused plaintiff
harm.
129. A foreclosure sale of plaintiff’s home is currently scheduled but has
not yet occurred. Plaintiff homeowner is not required to tender the amounts
demanded by defendants as a condition of bringing this action as any “tender
rule” is a rule that at the most would apply post-foreclosure sale.
SEVENTH CAUSE OF ACTIONACCOUNTING(All Defendants)
130. Plaintiff realleges and incorporates by reference paragraphs 1 to 129
of this complaint.
131. There is and was a relationship between and among the defendants
and their agents and successors and plaintiff Cornelio Pantoja. In this
relationship, the defendants, and their agents and successors have demanded
mortgage payments from plaintiff and have stated a payoff amount due in their
notice of trustee sale. Additionally, California law permits plaintiff Cornelio
Pantoja the right to reinstate the loan five business days before, or pay it off prior
to the sale, assuming a valid indebtedness. The defendants, and their agents and
successors had and have a legal duty to accurately and timely account for any
payments and to properly apply any payments to the trust deed mortgage.
132. Only the defendants, and their agents and successors have the
information as to what charges and fees and costs they added to the amounts they
are demanding from Cornelio Pantoja and the justification for these amounts.
133. Defendants claim that Cornelio Pantoja owes a minimum of
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Whann v. Doell (1923) 192 Cal. 680, 684.1
James Church v. Superior Court (1955) 135 Cal.App.2d 352, 359.2
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$560,801.38 according to their notice of trustee sale recorded on or about January
30, 2009. Plaintiff disputes the accuracy of this amount in light of the
misrepresentations which were made at the time this loan was extended. Plaintiff
is informed and believes that defendants have imposed unlawful and
unsubstantiated charges and fees to this notice of trustee sale amount.
Additionally, this amount demanded in the notice of trustee sale is $46,401 in
excess of the $514,400 principal of the June 2006 loan and does not give any
credit nor accounting for the 2 years of faithful payments that Cornelio Pantoja
made. This amount if $560,801.38 is grossly inaccurate and fraudulent.
134. An accurate amount that plaintiff Cornelio Pantoja allegedly owes and
allegedly owed to defendants, and their agents and successors can only be
determined by information in the possession of these defendants, and by a
detailed and itemized accounting. The amounts which the defendants are
charging Cornelio Pantoja in fees and charges is in the possession of the
defendants only. The amounts which Cornelio Pantoja owes is uncertain at this
time and cannot be determined without an accounting.
135. Whann v. Doell and James Church v. Superior Court authorize an1 2
accounting when there is an unknown amount due that cannot be determined
without an accounting.
136. A foreclosure sale of plaintiff’s home is currently scheduled but has
not yet occurred. Plaintiff homeowner is not required to tender the amounts
demanded by defendants as a condition of bringing this action as any “tender
rule” is a rule that at the most would apply post-foreclosure sale.
137. Cornelio Pantoja requests an accounting from the defendants in this
matter so that he can know what is lawfully owed and what is not.
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PUNITIVE DAMAGES
138. Plaintiff realleges and incorporates by reference paragraphs 1 to 137
of this complaint.
139. Plaintiff Cornelio Pantoja alleges that defendants COUNTRYWIDE is
guilty of malice, fraud and oppression as defined by California Civil Code §3294,
and that Cornelio Pantoja should recover, in addition to actual damages, damages
to make an example of and to punish defendants and each of them for their
actions.
PRAYER
WHEREFORE, plaintiff prays judgment as follows:
1. For a declaration that the Notice of Default recorded on or about October
16, 2008 and attached as Exhibit 1 is invalid and does not provide the necessary
foundation for the conduct of a trustee sale, as described in California Civil Code
§2924 et seq..
2. For a declaration that the notice of Trustee Sale recorded on or about
January 30, 2009 and attached as Exhibit 2, and any previously issued notice of
default are invalid and do not provide the necessary foundation for the conduct of
a trustee sale, as described in California Civil Code §2924 et seq..
3. For a declaration that the June 2006 loan agreement from
GREENPOINT is unconscionable.
4. That defendants and their successors and assigns, be permanently
enjoined from conducting a non-judicial foreclosure sale upon the property of 580
LaSabre Court, Morgan Hill, CA 95037.
5. For a declaration quieting title to the property of the property of 580
LaSabre Court, Morgan Hill, CA 95037 in the name of Cornelio Pantoja, free
and clear of the alleged claims of defendant COUNTRYWIDE and OLD
REPUBLIC.
6. For a judgment ordering defendants and any claiming beneficiary, and
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each of them, to produce the original of the promissory note of June 27, 2006,
with endorsements to the current beneficiary of this promissory note.
7. For a declaration that defendants have violated California Civil Code
§2924c(b)(1), California Civil Code §2924f, California Civil Code §2924b,
California Civil Code §2923.6, and California Civil Code §2923.52.
8. For a declaration that the defendants have violated their license law
pursuant to California Civil Code §2923.53(h).
9. That Defendants render a full, complete, detailed, and itemized
accounting reflecting the amounts they claim are past due, the principal, interest,
taxes, assessments, insurance premiums, or advances, and recurring obligations,
and particularly attorney and trustee fees. That they render proof of existence of
their alleged security interest on 580 LaSabre Court, Morgan Hill, CA 95037.
That defendants substantiate their accounting with detailed documentation.
10. That Plaintiff Cornelio Pantoja be declared to be the prevailing party.
11. For attorney fees pursuant to California Civil Code §1717 and
California Code of Civil Procedure §1021.5.
12. For general and special damages according to proof.
13. For punitive damages.
14. For such other and further relief as the court may deem proper.
SPIELBAUER LAW OFFICE
Thomas Spielbauer, Esq.Attorney for Plaintiff
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Thomas Spielbauer, Esq.SBN 78281THE SPIELBAUER LAW OFFICE111 North Market Street, Suite 300San Jose, CA 95113Mail: P. O. Box 698Santa Clara, CA 95052(408)451-8499Fax: (610)[email protected]
Attorneys for Cornelio Pantoja, Plaintiff
IN THE UNITED STATES DISTRICT COURTNORTHERN DISTRICT OF CALIFORNIA
CORNELIO PANTOJA,
Plaintiff.
v.s.
COUNTRYWIDE HOME LOANS,INC.; OLD REPUBLIC NATIONALTITLE COMPANY; OLD REPUBLICDEFAULT MANAGEMENTSERVICES; DOES 1-20,
Defendants.
No: 5:09-cv-1615 JW
Santa Clara County Superior CourtNo: 109CV138528
EXHIBITS TO FIRST AMENDED COMPLAINT
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TABLE OF EXHIBITS
Exhibit
Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Notice of Trustee Sale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
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Exhibit 1Notice of Default
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Exhibit 2Notice of Trustee Sale
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