kelly warren, esq., sbn 98670 law offices of kelly …
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KELLY WARREN, ESQ., SBN 98670LAW OFFICES OF KELLY WARREN155 W. BADILLO STREETCOVINA, CA 91723Telephone (626) 859-1030Facsimile (626) 859-1034
Attorney for Plaintiffs
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES, CENTRAL DISTRICT
DUANE VAN DYKE, asIndividual, and JOHN VANDYKE, as Trustee of The DuaneVan Dyke Irrevocable Trust
PLAINTIFFS,
vs.
HERMANN MUENNICHOW, HERMANN MUENNICHOWCPA, MUENNICHOW ANDASSOCIATES LLP, 12814RIVERSIDE DR. LLC,HELAYNE MUENNICHOW,and DOES 1 through 100inclusive,
DEFENDANTS.
________________________________
)))))))))))))))))))))))))
CASE NO. BC 526 185
Action filed: October 30, 2013Assigned to Dept. 14Hon. J. Terry A. Green
[PROPOSED] VERIFIED FIRSTAMENDED COMPLAINT FOR:1. BREACH OF WRITTEN
AGREEMENT;2. FORECLOSURE OF
SECURITY INTEREST(PERSONAL PROPERTY);
3. JUDICIAL FORECLOSUREOF REAL PROPERTY;
4. ESTABLISHMENT OF ARESULTING TRUST
5. IMPOSITION OF ACONSTRUCTIVE TRUSTAND/OR EQUITABLE LIEN
6. IMPOSITION OF ARESULTING TRUST
7. CONSTRUCTIVE TRUSTAND/OR EQUITABLE LIEN
8. CONVERSION9. FINANCIAL ELDER ABUSE10. CONSTRUCTIVE FRAUD
Plaintiff hereby alleges:
1. Plaintiff Duane Van Dyke is an individual, at all times mentioned herein
whose age was over 70 and who resided in the City of Covina, County of Los Angeles,
State of California. For purposes of identification, said plaintiff shall hereinafter be
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referred to as DUANE VAN DYKE.
2. On or about November 8, 2012, DUANE VAN DYKE created the Duane
Van Dyke Irrevocable Trust in which he designated John Van Dyke as the Trustee. John
Van Dyke is an individual who manages and operates the Duane Van Dyke Irrevocable
Trust. The principal assets and place of operation of the Duane Van Dyke Irrevocable
Trust dated November 8, 2012 is in the city of Covina, County of Los Angeles, State of
California. John Van Dyke brings this action in his capacity as the individual designated
and acting trustee of the Duane Van Dyke Irrevocable Trust. For reference purposes, he
shall be referred to as the VAN DYKE TRUST within this complaint when allegations
and references are being made to him in his capacity as said trustee.
3. Defendant Hermann Muennichow is an individual operating various
business entities with a principal operation base in the city of North Hollywood, County
of Los Angeles, State of California. For reference purposes, said individual defendant
shall hereinafter be referred to as HERMANN MUENNICHOW.
4. Defendant Hermann Muennichow, CPA is a business entity of unknown
form, believed to be the alter ego or dba of Hermann Muennichow, with its principal
place of business in the city of North Hollywood, County of Los Angeles, State of
California. For reference purposes, said defendant shall hereinafter be referred to as
MUENNICHOW CPA.
5. Defendant Muennichow and Associates LLP is a California limited liability
and partnership with its principal place of business in the city of North Hollywood,
County of Los Angeles, State of California. For reference purposes, said defendant shall
hereinafter be referred to as MUENNICHOW LLP.
6. Defendant 12814 Riverside Dr. LLC is a California limited liability
company with its principal assets located in the city of North Hollywood, County of Los
Angeles, State of California. For reference purposes, said defendant shall hereinafter be
referred to as RIVERSIDE DRIVE LLC.
///
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7. Defendant Helayne Muennichow is an individual residing in the county of
Riverside. For reference purposes, said defendant shall hereinafter be referred to as
Helayne Muennichow. Helayne Muennichow is designated as a defendant in this action
for the purpose of determining whether plaintiff's rights to property are superior to rights
she may claim in the same property. For reference purposes, said individual defendant
shall hereinafter be referred to as HELAYNE MUENNICHOW
8. The causes of action stated in this complaint arise from conduct of the
parties occurring primarily in Los Angeles County and/or arise from contracts and
agreements entered into and expected to be performed primarily within Los Angeles
County. The Superior Court for the County of Los Angeles, State of California is the
court of proper Jurisdiction and Venue.
GENERAL FACTUAL ALLEGATIONS
9. During the 30 years prior to filing this complaint, DUANE VAN DYKE
was an individual business entrepreneur involved in various business and other financial
transactions.
10. During the 30 years prior to filing this complaint, HERMAN
MUENNICHOW was a CPA providing accounting services to the general public
primarily in North Hollywood California.
11. During the 30 years prior to filing this complaint, DUANE VAN DYKE is
informed and believes, and thereon alleges, that HERMAN MUENNICHOW served as
his certified public accountant for all of his personal and business transactions.
12. In performing accounting services for DUANE VAN DYKE, among other
services provided, HERMAN MUENNICHOW prepared Federal, State and other
governmentally required income tax returns; was fully advised and aware of DUANE
VAN DYKE’s financial assets and affairs, personal and business holdings, various bank
and investment accounts, and circumstances; and regularly provided advice and counsel
to DUANE VAN DYKE in making decisions for the management of his personal and
business assets.
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13. Plaintiff alleges that a fiduciary relationship existed between DUANE VAN
DYKE and HERMANN MUENNICHOW in which HERMANN MUENNICHOW owed
a duty of upmost care and confidence, and not to realize personal gain from information
and conduct of the parties while such fiduciary capacity was in effect.
14. In 2005, DUANE VAN DYKE owned a certain parcel of real property
which was leased to the entity which conducted the business operated thereon known as
the Badillo Convalescent Hospital. The leases associated with this real property
generated monthly gross rents in excess of $20,000 per month.
15. In 2005, DUANE VAN DYKE had concerns over his financial privacy,
possible invasion of his rental accounts and fears of identity theft and the possibility of
theft from his rental and other bank accounts. These concerns were justified in that an
entity alleging to be a creditor accessed his accounts and withdrew money from his
accounts without his permission. DUANE VAN DYKE consulted with HERMANN
MUENNICHOW in his capacity as his by fiduciary agent and accountant to discuss his
options in handling the rents being received by DUANE VAN DYKE. On or about June
1, 2005, the parties orally agreed the rents being paid to DUANE VAN DYKE would be
thereafter be paid to HERMANN MUENNICHOW, that HERMANN MUENNICHOW
would establish and create a business entity to act as a separate holding company so as to
avoid public knowledge associated with the title to this real property and the rents
generated therefrom, HERMANN MUENNICHOW would thereafter manage this
holding company by receiving and depositing these rents as a segregated asset and from
these rents pay the leasehold related expenses, and deliver any excess funds in the account
to DUANE VAN DYKE upon demand.
16. Based upon the oral agreement mentioned in the preceding paragraph,
Plaintiffs are informed and believe, and on those grounds allege, HERMAN
MUENNICHOW opened a personal bank account in which he deposited all rents
received pursuant to this oral agreement. Commencing on or about June 1, 2004, the
rents from the Badillo Convalescent Hospital were thereafter paid to HERMAN
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MUENNICHOW instead of to DUANE VAN DYKE to be held and managed in
accordance with the terms of this aforementioned oral agreement.
17. DUANE VAN DYKE believed part of their agreement included
HERMANN MUENNICHOW, in his capacity as his personal accountant and financial
advisor, to secure all rents paid to him in a segregated account, to keep track of all sums
paid to him in such capacity, to collect rents, maintain records of all income and/or
interest generated from these proceeds, to maintain records of any disbursements made
from the account for leasehold related expenses and all other disbursements to or on
behalf of DUANE VAN DYKE, and to keep secure and protected any balance of all sums
on hand. Based on the aforementioned oral agreement, DUANE VAN DYKE allowed
HERMAN MUENNICHOW to collect all rents from the period of July 1, 2005, until the
November 1, 2012.
18. From the time proceeds were given to HERMANN MUENNICHOW by
DUANE VAN DYKE as stated herein above until November 1, 2012, pursuant to the oral
agreement between the parties DUANE VAN DYKE would often request cash
disbursements be made to him from the proceeds held by HERMANN MUENNICHOW
on his behalf, or payments to third parties be made on behalf of DUANE VAN DYKE
from these proceeds. Every time such a request was made, the funds were issued and
distributed as requested and HERMANN MUENNICHOW never delay nor indicated
there were not funds on hand or what the source of payment was.
19. Prior to November 1, 2012, DUANE VAN DYKE reposed great trust and
confidence in HERMAN MUENNICHOW. He had never requested any type of formal
and complete accounting from HERMANN MUENNICHOW based upon the trust and
confidence reposed in him as his fiduciary agent.
20. On November 1, 2012, DUANE VAN DYKE was in the process and the
final stages of completing the creation of the Duane Van Dyke Irrevocable Trust. It was
the purpose and intent of DUANE VAN DYKE to designate his son John Van Dyke as
the trustee of the Duane Van Dyke Irrevocable Trust and to transfer ownership of all of
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his assets, titles, entitlements, and other personal choses or causes an action to the Duane
Van Dyke Irrevocable Trust. In furtherance thereof demand was made by DUANE VAN
DYKE upon HERMANN MUENNICHOW to provide and turn over all of the
aforementioned rents which had been transferred to HERMANN MUENNICHOW
pursuant to the aforementioned oral agreement by the parties.
21. HERMANN MUENNICHOW responded to this demand by indicating he
did not have the funds on hand and had used them for other purposes.
22. At no time prior to or subsequent to being advised by HERMANN
MUENNICHOW that his funds had been used for other purposes did DUANE VAN
DYKE consent or authorize said use of his funds.
23. Subsequent thereto, demand was made upon HERMANN MUENNICHOW
to obtain money in order to pay over the balance of rents on hand he held by HERMANN
MUENNICHOW on behalf of DUANE VAN DYKE to the VAN DYKE TRUST.
Initially, HERMANN MUENNICHOW executed a promissory note for $1 million
payable to DUANE VAN DYKE. A true and correct copy of this promissory note is
attached to this complaint as Exhibit A and incorporated herein by reference as though
fully stated.
24. Subsequent to the execution of the promissory note described in the
preceding paragraph, John Van Dyke in his capacity as the trustee of the Duane Van Dyke
Irrevocable Trust contacted HERMANN MUENNICHOW and conducted multiple
discussions and negotiations regarding these funds entrusted to HERMANN
MUENNICHOW . The parties entered into a series of agreements in which promises to
repay an agreed-upon sum were made. The agreements entered into by the parties are
stated herein below.
25. HERMANN MUENNICHOW on his own behalf entered into an agreement
entitled Replacement and Restatement of Promissory Note Secured by Deeds of Trust and
Guarantees on February 23, 2013. A true and correct copy of this agreement is attached to
this complaint as Exhibit B and incorporated herein by reference as though fully stated.
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The salient terms of this written agreement provided that it replaced the promissory note
attached to this complaint as Exhibit A, the sum to be paid would be a total of $800,000,
that certain monthly payments would be made with the next payment due of $100,000 on
March 1, 2013, and provided for certain deeds of trusts and guarantees from other
entities. Terms of the agreement reserved the rights of plaintiff to seek further amounts
due.
26. In furtherance of the aforementioned promissory note obligation, to
MUENNICHOW CPA and MUENNICHOW LLP jointly and severally agreed to
guarantee the obligations of HERMANN MUENNICHOW under said promissory note. A
true and correct copy of this guaranty agreement is attached to this complaint as Exhibit C
and incorporated herein as though fully stated. The terms of this guarantee included
provisions that these defendants as guarantors would also grant a security interest in their
business assets fully stated herein below.
27. On or about February 23, 2013 in furtherance of the guarantee provided
plaintiffs under the guarantee agreement for the benefit of HERMANN MUENNICHOW,
MUENNICHOW CPA and MUENNICHOW LLP, by its authorized officer HERMANN
MUENNICHOW and, executed a Security Agreement to secure the obligations contained
in the promissory notes executed by HERMANN MUENNICHOW which are attached to
this complaint as Exhibits A and B. A true and correct copy of this Security Agreement is
attached hereto as Exhibit D and incorporated herein as though fully stated.
28. On February 27, 2013, the same parties who executed the aforementioned
Security Agreement attached as Exhibit D, executed an Amendment to Security
Agreement by which each of the aforementioned defendant parties granted a security
interest in the following assets owned or here after acquired by said defendants: “all
assets of the Guarantors, whether presently existing or hereafter created or acquired, and
wherever located, including but not limited to: (a) all Accounts, Chattel Paper (including
tangible and electronic chattel paper), Deposit Accounts, Documents, client records,
Equipment, General Intangibles (including payment intangibles, goodwill and software),
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Instruments and letters of credit, Inventory (including all goods held for sale or lease to be
furnished under a contract of service, and including returns and repossessions),
Investment Property (including securities and security entitlements), all money, cash and
cash equivalent; all contracts; and all of Guarantors’ books and records with respect to
any of the foregoing, and the computers and equipment containing said books and
records; and (b) any and all cash proceeds and/or noncash proceeds thereof, including,
without limitation, insurance proceeds, and all supporting obligations and the security
therefore or for any right to payment.” A true and correct copy of this Amendment to
Security Agreement is attached hereto as Exhibit E and incorporated herein as though
fully stated.
29. On or about March 7, 2013 plaintiffs cause to be filed a UCC-1 Financing
Statement which was logged in by the California Secretary of State on said date as
instrument number 13-735-149-1367. A true and correct copy of this filed financing
statement is attached hereto as Exhibit F and incorporated herein by reference as though
fully stated. The purpose of this UCC-1 financing statement was and is to perfect
plaintiffs’ claim of security to the assets described therein.
30. Defendant RIVERSIDE DRIVE LLC also agreed to guarantee the
obligations of HERMANN MUENNICHOW as referenced in the promissory note
obligation which is the subject matter of this Complaint. In furtherance of this agreement
RIVERSIDE DRIVE LLC executed a document entitled Guaranty Secured Against Real
Estate on March 2, 2013. A true and correct copy of this agreement is attached to this
Complaint as Exhibit G and incorporated herein as though fully stated. Pursuant to the
terms of this Guaranty Agreement RIVERSIDE DRIVE LLC agreed to provide as
additional collateral for the obligations of the promissory note its legal right title and
interest to the real property at 12814 Riverside Dr., North Hollywood, CA., more
particularly described as “The West 65 feet of the North half of the East half of Lot 2 of
Tract No. 2590, in the City of Los Angeles, County of Los Angeles, State of California,
as per map recorded in Book 26 Page 57 of Maps in the office of the county recorder of
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said county. Excepting therefrom that portion thereof conveyed to the State of California
by Deed recorded January 10, 1957, as instrument No. 1769, in Book 53326, Page 260
Official records, APN 2367-033-020.
31. In furtherance of the aforementioned agreements, and as additional
collateral for the performance of the obligations under the promissory note which is the
subject matter of this action, on or about February 23, 2013, HERMANN
MUENNICHOW, manager of the RIVERSIDE DRIVE LLC executed a document
entitled Short Form Deed of Trust and Assignment of rents to the real property at 12814
Riverside Dr., North Hollywood, CA 91607. A true and correct copy of this Deed of Trust
is attached hereto as Exhibit H and incorporated herein as though fully stated. Pursuant to
the terms of said deed of trust, RIVERSIDE DRIVE LLC conveyed to R Rosser Cole, a
Law Corporation as trustee its legal right title and interest in the following described real
property to be held for the benefit of the VAN DYKE TRUST.
32. In furtherance of the aforementioned agreements, and as additional
collateral for the performance of the obligations under the promissory note which is the
subject matter of this action, HERMANN MUENNICHOW agreed to obtain and provide
a deed of trust conveyance for the joint interests held by HERMANN MUENNICHOW
and HELAYNE MUENNICHOW in the real property at 29000 Indian Court Ridge Agora
Hills, CA 91301, more particularly described as Lot 163 of Tract 33402 in the City of
Agoura Hills, in the County of Los Angeles, State of California, as per map recorded in
Book 906, pate 1-14, inclusive of maps in the office of the County Recorder of said
County, APN 2051-002-035.
33. Notwithstanding the aforementioned agreement, HERMANN
MUENNICHOW only provided a Deed of Trust executed by him on February 23, 2013
but which was not executed by HELAYNE MUENNICHOW . A true and correct copy of
this Deed of Trust is attached to this complaint as Exhibit I and incorporated herein as
though fully stated. Plaintiff VAN DYKE TRUST asserts it has a claim to the legal and
equitable titles to this real property as security for the agreements mentioned herein.
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34. In furtherance of the aforementioned agreements, and as additional
collateral for the performance of the obligations under the promissory note which is the
subject matter of this action, HERMANN MUENNICHOW agreed to obtain and provide
a deed of trust conveyance for the joint interests held by HERMANN MUENNICHOW
and HELAYNE MUENNICHOW in the real property at 38685 Calle Del Lobo, Murrieta,
CA 92562, more particularly described as: Beginning at the centerline intersection of
Calle De Lobo and Calle De Campanero as shown on aforementioned parcel map 10970;
thence along the centerline of Calle De Lobo, North 72E 48' 22" East a distance of 478.20
feet, to a tangent curve, concave northwesterly, having a radius of 1800 feet; thence along
said curve, northeasterly, having a central angle of 12E 05' 59" and an arc length of
380.12 feet; thence leaving said centerline along the northeasterly line of aforementioned
parcel 3, North 42E 30' 37" West a distance of 376.38 feet, to the corner of parcel 3 and 4,
parcel map 10970; thence North 84E 51' 18" West a distance of 218.92 feet, to an angle
point; thence South 47E 56' 11" West a distance of 175 feet, to an angle point; thence
South 37E 03' 49" East a distance of 117 feet, to a point on the northwesterly line of said
parcel 4, parcel map 10970; thence South 35E 56' 11" West a distance of 466.33 feet, to
the point of beginning, APN 929-090-019.
35. Notwithstanding the aforementioned agreement, HERMANN
MUENNICHOW only provided a Deed of Trust executed by him on February 23, 2013
but which was not executed by HELAYNE MUENNICHOW . A true and correct copy of
this Deed of Trust is attached to this complaint as Exhibit J and incorporated herein as
though fully stated. Plaintiff VAN DYKE TRUST asserts it has a claim to the legal and
equitable titles to this real property as security for the agreements mentioned herein.
36. Plaintiffs are informed and believe, and on those grounds allege, although
HELAYNE MUENNICHOW did not enter into any of the aforementioned agreements, at
all times in which they were in effect she was lawfully married to and living with
HERMANN MUENNICHOW. Plaintiffs are informed and believe, and on those grounds
further allege, the money obtained by HERMANN MUENNICHOW was used for
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purchase and maintenance of housing and other necessaries of life, and that HELAYNE
MUENNICHOW received the use and benefit of these monies. As such, Plaintiffs allege
that HELAYNE MUENNICHOW is personally liable for these debts and obligations.
FIRST CAUSE OF ACTION–BREACH OF WRITTEN CONTRACT
AS TO DEFENDANTS HERMANN MUENNICHOW, MUENNICHOW CPA,
MUENNICHOW LLP, and RIVERSIDE DRIVE LLC
37. Plaintiffs repeat and reallge the allegations of paragraphs 1 through 36 and
repeat the same as though fully set out herein.
38. By the terms of the promissory note, HERMANN MUENNICHOW agreed
to pay monthly installments of $40,000 on January 30, 2013, then $100,000 per month
commencing March 1, 2013 and each month thereafter for three additional months, then
one payment of $80,000 on July 15, 2013, then five payments of $40,000 per months
commencing on August 15, 2013 and each month thereafter for four additional months,
then one final payment of $80,000 on January 15, 2014.
39. HERMANN MUENNICHOW only made the first payment of $40,000 due
on January 30, 2013 and has not made any further payments under the promissory note.
40. Pursuant to the terms of the written contract between the parties plaintiffs
may elect to accelerate the balance due upon default. By filing this Complaint, plaintiffs
notify defendants, and each of them and, that they are exercising their right to accelerate
the balance and declared the whole sum due.
41. Plaintiffs are entitled to prejudgment interest on the sum of $760,000 at the
rate of 10% per annum from the date of March 1, 2013 until the date of entry of
judgment.
42. MUENNICHOW CPA has personally guaranteed the obligations of
HERMANN MUENNICHOW as previously set forth. MUENNICHOW CPA is also
liable for damages in the sum of $760,000 plus interest as set forth in the preceding
paragraph.
43. MUENNICHOW LLP has personally guaranteed the obligations of
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HERMANN MUENNICHOW as previously set forth. MUENNICHOW LLP is also
liable for damages in the sum of $760,000 plus interest as set forth in the preceding
paragraph.
44. RIVERSIDE DRIVE LLC has personally guaranteed the obligations of
HERMANN MUENNICHOW as previously set forth. RIVERSIDE DRIVE LLC is also
liable for damages in the sum of $760,000 plus interest as set forth in the preceding
paragraph.
45. Pursuant to the terms of the written agreements by and between the parties,
in the event legal action be brought plaintiffs are entitled to recover a reasonable sum as
in and for attorneys fees incurred in enforcing these proceedings. Plaintiffs have retained
the services of Kelly Warren, an attorney duly licensed by the State Bar of California and,
who has 30+ years experience in civil litigation proceedings. Plaintiffs have agreed to pay
said attorney an hourly rate of $300 per hour for legal services rendered in furtherance of
these proceedings. In addition to the actual damages paid for, plaintiffs are entitled to a
reasonable sum as and for attorneys fees incurred pursuant to the terms of the written
contract.
SECOND CAUSE OF ACTION–FORECLOSE COLLATERAL UNDER
SECURITY INTEREST
AS TO DEFENDANTS HERMANN MUENNICHOW, MUENNICHOW CPA, and
MUENNICHOW LLP
46. Plaintiff repeats and re-alleges the allegations of paragraphs 1 through 43
and paragraph 45 of the Complaint as though the same were fully set out herein.
47. By reason of the aforementioned promissory note, security agreement, and
amendments to security agreement, and guarantees, plaintiffs allege they hold a security
interest and the assets described in paragraph 28 of the Complaint.
48. HERMANN MUENNICHOW is in breach of the underlying promissory
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note.
49. By reason of the foregoing breach of HERMANN MUENNICHOW,
plaintiffs are entitled to enforce the security interest created by the security agreement and
amendment to security agreement attached to this complaint as Exhibits D and E.
50. Although pursuant to the agreement HERMANN MUENNICHOW,
MUENNICHOW CPA, and MUENNICHOW LLP have remained to the present time in
possession of the collateral described in Exhibit E to which plaintiffs maintain an interest,
as a further result of the defendants default plaintiff is entitled to re-force this security
interest by judicial foreclosure of all of defendant's rights in the property through public
sale thereof by proper judicial officer. Upon sale, the proceeds shall be applied first to pay
all costs associated with the sale, next as paid to plaintiff for damages sustained by them
by reason of defendant's breach and if said liability is fully satisfied at times shall be
distributed jointly to HERMANN MUENNICHOW, MUENNICHOW CPA, and
MUENNICHOW LLP.
51. Plaintiffs are entitled to recover reasonable attorney's fees and costs
incurred in enforcing this security agreement pursuant to the written terms of the
agreements by and between the parties and attached to this Complaint.
THIRD CAUSE OF ACTION–JUDICIAL FORECLOSE OF REAL ESTATE
COLLATERAL UNDER SECURITY INTEREST
AS TO DEFENDANTS HERMANN MUENNICHOW and RIVERSIDE DRIVE, LLC
52. Plaintiff repeats and re-alleges the allegations of paragraphs 1 through 41
and paragraphs 44 and 45 of the Complaint as though the same were fully set out herein.
53. By reason of the aforementioned promissory note, guaranty (Exhibit G) and
deed of trust (Exhibit H) to the real property described in paragraph 30, and amendments
to security agreement, plaintiffs allege they hold a security interest in the real property
described in paragraph 30 of this Complaint.
54. RIVERSIDE DRIVE, LLC is the record owner of the property described in
paragraph 30 of this complaint.
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55. The VAN DYKE TRUST is, and all times mentioned herein, the lawful
owner and holder of the underlying promissory note and amendments thereto that are
attached to this Complaint as Exhibits A and B, all rights which are personally guaranteed
by the Guaranty Secured Against Real Estate that is attached to this complaint as Exhibit
G, and all rights granted under the Deed of Trust attached to this Complaint as Exhibit H.
56. The trust deed provides that, should a default occur in the payment of any
debt secured by the trust deed, all sums secured by the trust deed shall, at the election of
the beneficiary, become immediately due and payable.
57. On March 2, 2013, RIVERSIDE DRIVE, LLC personally guaranteed
(Exhibit G) the obligations evidenced by the promissory note (Exhibits A and B).
FOURTH CAUSE OF ACTION–JUDICIAL FORECLOSE OF REAL ESTATE
COLLATERAL UNDER SECURITY INTEREST
AS TO DEFENDANTS HERMANN MUENNICHOW and HELAYNE
MUENNICHOW
58. Plaintiff repeats and re-alleges the allegations of paragraphs 1 through 41
and paragraph 45 of the Complaint as though the same were fully set out herein.
59. By reason of the aforementioned promissory note (Exhibits A and B) and
deed of trust (Exhibit I) to the real property described in paragraph 32, plaintiffs allege
they hold a security interest in the real property described in paragraph 32 of this
Complaint.
60. HERMANN MUENNICHOW and HELAYNE MUENNICHOW are the
record owners of the property described in paragraph 32 of this Complaint.
61. The VAN DYKE TRUST is, and all times mentioned herein, the lawful
owner and holder of the underlying promissory note and amendments thereto that are
attached to this Complaint as Exhibits A and B, and all rights granted under the Deed of
Trust attached to this Complaint as Exhibit I.
62. The trust deed provides that, should a default occur in the payment of any
debt secured by the trust deed, all sums secured by the trust deed shall, at the election of
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the beneficiary, become immediately due and payable.
FIFTH CAUSE OF ACTION–JUDICIAL FORECLOSE OF REAL ESTATE
COLLATERAL UNDER SECURITY INTEREST
AS TO DEFENDANTS HERMANN MUENNICHOW and HELAYNE
MUENNICHOW
63. Plaintiff repeats and re-alleges the allegations of paragraphs 1 through 41
and paragraph 45 of the Complaint as though the same were fully set out herein.
64. By reason of the aforementioned promissory note (Exhibits A and B) and deed
of trust (Exhibit J) to the real property described in paragraph 34, plaintiffs allege they hold
a security interest in the real property described in paragraph 34 of this Complaint.
65. HERMANN MUENNICHOW and HELAYNE MUENNICHOW are the
record owners of the property described in paragraph 34 of this Complaint.
66. The VAN DYKE TRUST is, and all times mentioned herein, the lawful owner
and holder of the underlying promissory note and amendments thereto that are attached to
this Complaint as Exhibits A and B, and all rights granted under the Deed of Trust attached
to this Complaint as Exhibit J.
67. The trust deed provides that, should a default occur in the payment of any debt
secured by the trust deed, all sums secured by the trust deed shall, at the election of the
beneficiary, become immediately due and payable.
SIXTH CAUSE OF ACTION–IMPOSITION OF RESULTING TRUST
AS TO DEFENDANTS HERMANN MUENNICHOW and HELAYNE
MUENNICHOW
68. Plaintiff repeats and re-alleges the allegations of paragraphs 1 through 5 and
paragraphs 7 through 22 of the Complaint as though the same were fully set out herein.
69. In or about the year 2007, DUANE VAN DYKE became embroiled in a series
of business and personal disputes and transactions in which both he believed he had claims
to receive certain sums from other third parties, while these parties and others asserted rights
to recover damages from DUANE VAN DYKE.
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70. In or about the year 2007, DUANE VAN DYKE entered into a settlement
agreement for one of the claims he believed was owing to him under which he was to
receive, and thereafter did receive, a sum of approximately $61,000. Initially, when this
money was paid to him, he deposited into several different bank accounts.
71. At this same time, DUANE VAN DYKE still had the same concerns over his
financial privacy and unauthorized access to his accounts. He advised HERMANN
MUENNICHOW about these settlements and his concerns. HERMANN MUENNICHOW
and DUANE VAN DYKE again orally agreed that DUANE VAN DYKE would deliver
these funds to HERMANN MUENNICHOW and that HERMANN MUENNICHOW would
hold this funds in a similar fiduciary capacity for the use and benefit of DUANE VAN
DYKE as he had allegedly been holding the rents from the aforementioned Badillo real
property. HERMANN MUENNICHOW instructed and advised DUANE VAN DYKE to
deliver the funds to him in the form of cashier’s checks totaling $510,000 made payable to
HERMANN MUENNICHOW and two additional cashier’s checks made payable to the
United States Treasury for the sum of $50,000 each. DUANE VAN DYKE believed the two
checks made payable to the United States Treasury were necessary in order to pay tax
obligations owing by him resulting from his receipt of these settlements.
72. In or about the year 2007, DUANE VAN DYKE transferred the sum of
$610,000 to HERMANN MUENNICHOW pursuant to the terms of their oral agreements for
HERMANN MUENNICHOW to hold these funds for the use and benefit of DUANE VAN
DYKE, or transmit them to the United States Treasury in order to be applied to the income
tax obligations owing by DUANE VAN DYKE.
73. DUANE VAN DYKE is informed and believes, and on those grounds alleges,
that HERMANN MUENNICHOW set up and established a business entity known as ESN
Partners, LLC. This was done without advance notice nor consultation nor consent with
DUANE VAN DYKE.
74. DUANE VAN DYKE is informed and believes, and on those grounds alleges,
that HERMANN MUENNICHOW deposited $510,000 of the settlement sums delivered to
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him as described in paragraph 72 of this Complaint into bank accounts set up in the name of
ESN Partners, LLC., and delivered the balance of $100,000 payable to the United States
Treasury to that entity on behalf of DUANE VAN DYKE.
75. DUANE VAN DYKE is informed and believes, and on those grounds alleges,
that the two checks payable to the United States Treasury were not delivered to that entity
on his own behalf, but instead were delivered to that entity to discharge income tax
obligations owing by HERMANN MUENNICHOW. If this was done, it was done without
the permission nor consent of DUANE VAN DYKE. DUANE VAN DYKE did not learn
of this event until after November 1, 2012.
76. In addition to the foregoing settlement sums, in the year 2008, DUANE VAN
DYKE became entitled to receive additional sums from a claim filed in certain bankruptcy
proceedings in the approximate sum of $98,000. Operating under the belief at that time that
HERMANN MUENNICHOW was still honorable and trustworthy, DUANE VAN DYKE
delivered this additional sum of approximately $98,000 to HERMANN MUENNICHOW to
be held by him in the same fashion as the other funds delivered to him as described above.
77. In addition to these foregoing sums delivered to HERMANN
MUENNICHOW, DUANE VAN DYKE also negotiated payment of a claim owing to him
by a third party to be paid in monthly payments of $1,667 commencing in or about the year
2008. Once again, operating under the belief at that time that HERMANN MUENNICHOW
was still honorable and trustworthy, DUANE VAN DYKE authorized these monthly
payments to be paid to and held by HERMANN MUENNICHOW to be held by him in the
same fashion as the other funds delivered to him as described above.
78. On or about November 1, 2012, DUANE VAN DYKE was in the process of
creating the Duane Van Dyke Irrevocable Trust as described in paragraph 20 of this
Complaint. His demand for turn over of the funds as stated in paragraph 20 was met with
the same response as set out in paragraph 21 of this Complaint. As stated in paragraph 22
of this Complaint, at no time did DUANE VAN DYKE authorize any of these funds to be
used by HERMANN MUENNICHOW or his spouse HELAYNE MUENNICHOW for any
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purposes whatsoever.
79. By reason of the foregoing arrangements, plaintiffs are informed and believe,
and on those grounds allege, that a resulting trust pursuant to California Civil Code Sections
2223 and 2224.
80. Being that DUANE VAN DYKE and HERMANN MUENNICHOW agreed
that HERMANN MUENNICHOW would hold these monies in trust and for the benefit of
DUANE VAN DYKE, and therefore the creation of a resulting trust, plaintiffs allege that all
funds held by HERMANN MUENNICHOW in any capacity were held as a trustee for the
benefit of DUANE VAN DYKE and as such a fiduciary relationship was owed to DUANE
VAN DYKE by HERMANN MUENNICHOW.
81. Plaintiff is informed and believes, and on those grounds alleges, that
HERMANN MUENNICHOW used the proceeds held in trust by him not only to pay
personal income tax obligations owing by him which are also to be obligations of HELAYNE
MUENNICHOW, but also HERMANN MUENNICHOW used these proceeds to purchase
and acquire the real property the real property at 38685 Calle Del Lobo Murrieta, CA 92652,
more particularly described in paragraph 34 of this Complaint. This real property was
acquired in the name of HERMANN MUENNICHOW and HELAYNE MUENNICHOW
as legal holders of title. Plaintiffs are informed and believe, and on those grounds allege, that
HERMANN MUENNICHOW and HELAYNE MUENNICHOW hold title to the property
at 38685 Calle Del Lobo, Murrieta, California as trustees and in trust for the exclusive
benefit of DUANE VAN DYKE and the VAN DYKE TRUST to which these property
interests have been assigned.
82. Plaintiffs allege they are entitled to an accounting for all monies delivered to
HERMANN MUENNICHOW from the various settlement set forth in this Sixth Cause of
Action to determine the exact amount of money delivered to HERMANN MUENNICHOW,
all appropriate and authorized disbursements from these sums, and all property, investments
or other assets acquired with the use of these funds which plaintiffs allege are held for the
exclusive use and benefit of DUANE VAN DYKE.
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83. Plaintiffs further seek a determination and court order that HERMANN
MUENNICHOW and HELAYNE MUENNICHOW be found to hold any interest they have
in the real property at 38685 Calle Del Lobo, Murrieta, California, in trust for plaintiffs and
order HERMANN MUENNICHOW and HELAYNE MUENNICHOW to immediately and
forthwith convey all legal and equitable rights they have in said property to plaintiffs.
SEVENTH CAUSE OF ACTION
CONSTRUCTIVE TRUST AND/OR EQUITABLE LIEN
AS TO DEFENDANTS HERMANN MUENNICHOW and HELAYNE
MUENNICHOW
84. Plaintiff repeats and re-alleges the allegations of paragraphs 1 through 5,
paragraphs 7 through 22 and paragraphs, and paragraphs 69 through 83 of the Complaint as
though the same were fully set out herein.
85. Plaintiffs are informed and believe, and on those grounds allege, that
Defendants HERMANN MUENNICHOW and HELAYNE MUENNICHOW used Plaintiffs’
funds without the consent of Plaintiff to purchase and acquire the real property located at
38685 Calle Del Lobo, Murrieta, CA 92562, which is more particularly described in
paragraph 34 of this Complaint.
86. By wrongfully detaining and obtaining Plaintiff’s property by violation of trust
and HERMANN MUENNICHOW’s other wrongful conduct, Defendants HERMANN
MUENNICHOW and HELAYNE MUENNICHOW have been unjust enriched by diversion
of Plaintiffs’ funds used for the purchase of the real property at 29000 Indian Court Ridge
Agora Hills, CA 91301. Additionally, Defendants HERMANN MUENNICHOW and
HELAYNE MUENNICHOW have received the exclusive use and benefit of said real
property and any rents or income generated therefrom.
87. Plaintiffs request that the court exercise its equitable powers to hold that
Defendants HERMANN MUENNICHOW and HELAYNE MUENNICHOW are
constructive trustees who hold title to said real property and any income derived from said
real property, for Plaintiffs.
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88. Plaintiffs also request the court impose an equitable lien on said real property
and any income derived from said real property.
89. Imposition of the above requested constructive trust and/or equitable lien is
important to prevent Defendants HERMANN MUENNICHOW and HELAYNE
MUENNICHOW from unconscionably and inequitable benefitting from the wrongful, unjust
and fraudulent conduct of HERMANN MUENNICHOW.
EIGHTH CAUSE OF ACTION - CONVERSION
AS TO DEFENDANTS HERMANN MUENNICHOW
90. Plaintiffs repeat and re-allege the allegations of paragraphs 1 through 5 and
paragraphs 7 through 22.
91. Beginning as early as June 1, 2005, and continuing to the present time,
HERMANN MUENNICHOW wrongfully exercised dominion and control over monies and
property belonging to Plaintiffs, without Plaintiffs’ lawful consent, ay acting in the manner
described above.
92. Plaintiffs are informed and believe, and on those grounds allege, that
HERMANN MUENNICHOW has used Plaintiffs’ funds to support his lifestyle, purchase
assets and pay his bills, thereby depriving and preventing Plaintiffs from accessing these
monies and property, and Plaintiffs have been harmed as a consequence thereof.
93. As a direct and proximate result of HERMANN MUENNICHOW’s conduct
described above, Plaintiffs have been damaged. Pursuant to Civil Code section 3336,
Plaintiffs are entitled to the recovery of the amount of their damages, with prejudgment
interest at the legal rate from that time, which amount Plaintiffs are informed and believe
exceed $500,000.
94. Through the acts and omissions described above, including but not limited to
misappropriating money entrusted to HERMANN MUENNICHOW, deceiving Plaintiffs as
to his true intentions and actions, lying to Plaintiffs about the use of these funds and treating
the money as his own, HERMANN MUENNICHOW has acted with fraud, oppression, and
malice in the commission of this conversion within the meaning of Civil Code section 3294.
As such, Plaintiffs are entitled to recover punitive damages. ___________________________________________________________________________________
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NINTH CAUSE OF ACTION - FINANCIAL ELDER ABUSE
AS TO DEFENDANTS HERMANN MUENNICHOW,
HERMANN MUENNICHOW CPA and HELAYNE MUENNICHOW
95. Plaintiffs repeat and re-allege the allegations of paragraphs 1 through 5 and
paragraphs 7 through 22.
96. Beginning as early as June 1, 2005, and continuing to the present time,
HERMANN MUENNICHOW violated the Elder Abuse and Dependent Adult Civil
Protection Act by taking financial advantage of Plaintiffs and is liable for punitive and
exemplary damages, Plaintiffs’ attorney fees incurred pursuant to the California Welfare and
Institutions Code §§ 15610.07(a), 15610.70, 15657.5, 15657.6 and also for treble damages
pursuant to Civil Code § 3345.
97. HERMANN MUENNICHOW wrongfully appropriated approximately
$800,000.00 of Plaintiff’s money which MUENNICHOW knew or should have known was
being set aside for Plaintiffs retirement and personal care and maintenance and that these
assets were essential to the health and welfare of a senior citizen.
98. HERMANN MUENNICHOW knew or should have known that Plaintiff was
65 years of age or older at the time of HERMANN MUENNICHOW’s conduct and that
therefore Plaintiff placed a high expectation of trust in HERMANN MUENNICHOW as
Plaintiffs’ fiduciary and certified public accountant.
99. HERMANN MUENNICHOW abused his position of trust when he
appropriated Plaintiff’s $800,000 for a wrongful use,
100. Plaintiff DUANE VAN DYKE was harmed and placed in substantial danger,
distress and anxiety due to Plaintiffs status as a senior citizen; and
101. HERMANN MUENNICHOW’s conduct was a substantial factor in causing
Plaintiffs’ harm.
102. Plaintiffs’ can prove that HERMANN MUENNICHOW appropriated the
$800,000 by proving both of the following:
103. Plaintiff had the right to have the property made readily available to him and,
104. HERMANN MUENNICHOW should have known that DUANE VAN DYKE___________________________________________________________________________________
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had this right.
105. HERMANN MUENNICHOW should have known that Plaintiff had this right
because it would have been obvious to a reasonable person that Plaintiff had the right to have
the property made readily available to him.
106. HERMANN MUENNICHOW’s conduct was intentionally malicious,
oppressive and fraudulent and subject to an award for punitive and exemplary damages.
107. The Code sections relating to Elder Abuse provide that, in the event of finding
of elder abuse, Plaintiffs’ are entitled to attorney’s fees incurred. Plaintiffs’ have been
obligated to incur attorneys fees to prosecute this action in an amount to be proven at the time
of trial.
108. Plaintiff is also therefore entitled to an affirmative finding of an award which
is up to three times greater than the court would impose in the absence of that affirmative
finding that defendant knew or should have known that his conduct was directed to a senior
citizen, and that defendant’s conduct caused a senior citizen to suffer loss or encumbrance
of a source of income, substantia loss of property set aside for retirement, or for personal
care, or assets essential to the health or welfare of a senior citizen.
TENTH CAUSE OF ACTION - CONSTRUCTIVE FRAUD
AS TO DEFENDANTS HERMANN MUENNICHOW,
HERMANN MUENNICHOW CPA, MUENNICHOW LLP
and HELAYNE MUENNICHOW
109. Plaintiffs repeat and re-allege the allegations of paragraphs 1 through 5 and
paragraphs 7 through 22.
110. Beginning as early as June 1, 2005, and continuing to the present time,
HERMANN MUENNICHOW, HERMANN MUENNICHOW CPA and MUENNICHOW
LLP held in trust funds belonging to Plaintiff and breached his fiduciary duty as Plaintiff’s
certified public accountant, without Plaintiffs’ lawful consent, by acting in the manner
described above pursuant to California Civil Code § 1573.
111. Plaintiffs placed a high degree of trust and confidence in the fidelity and
integrity of HERMAN MUENNICHOW CPA are informed and believe, and on those___________________________________________________________________________________
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grounds allege, that HERMANN MUENNICHOW CPA has misled Plaintiffs to their
prejudice and breached his fiduciary duty and that Plaintiffs have been harmed as a
consequence thereof.
112. As a direct and proximate result of HERMANN MUENNICHOW’s conduct
described above, Plaintiffs have been damaged. Pursuant to Civil Code § 1573, Plaintiffs are
entitled to the recovery of the amount of their damages, with prejudgment interest at the legal
rate from that time, which amount Plaintiffs are informed and believe exceeds $800,000.
113. Through the acts and omissions described above, including but not limited to
misappropriating money entrusted to HERMANN MUENNICHOW CPA, by breaching his
fiduciary duty and misrepresenting that Plaintiffs rent money was being deposited into the
bank accounts created by HERMANN MUENNICHOW CPA.
114. HERMANN MUENNICHOW CPA remained silent when a duty existed to
inform Plaintiffs that HERMANN MUENNICHOW CPA was not depositing Plaintiffs
lawsuit settlement and rent money into the bank accounts and instead HERMANN
MUENNICHOW CPA was appropriating Plaintiffs rent money as if it were its’ own.
115. Plaintiffs’ relied on HERMANN MUENNICHOW CPA’s representations that
the money was being deposited into Plaintiffs’ bank accounts.
116. Plaintiffs were injured as a proximate cause of this reliance thereof; and
117. HERMANN MUENNICHOW CPA gained an advantage by his conduct at the
expense of Plaintiffs.
118. HERMAN MUENNICHOW CPA’s conduct was intentionally malicious and
despicable that subjected Plaintiff to such a cruel and unjust hardship as to justify an award
of punitive and exemplary damages.
PRAYER FOR RELIEF
WHEREFORE, plaintiff prays judgment as follows:
FIRST CAUSE OF ACTION–BREACH OF WRITTEN CONTRACT
AS TO DEFENDANTS HERMANN MUENNICHOW, MUENNICHOW CPA,
MUENNICHOW LLP, and RIVERSIDE DRIVE LLC
1. Against Hermann Muennichow, Muennichow CPA, Muennichow LLP, and___________________________________________________________________________________
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Riverside Drive LLC for the total sum of $760,000, principal and interest, together with
interest at the rate of 10% per annum from March 1, 2013 to the date of entry of
judgment;
2. Against Hermann Muennichow, Muennichow CPA, Muennichow LLP, and
Riverside Drive LLC for attorney’s fees in an amount that the court adjudges reasonable;
SECOND CAUSE OF ACTION–FORECLOSE COLLATERAL UNDER
SECURITY INTEREST
AS TO DEFENDANTS HERMANN MUENNICHOW, MUENNICHOW CPA, and
MUENNICHOW LLP
3. Against Hermann Muennichow, Muennichow CPA, Muennichow LLP, for the
total sum of $760,000, principal and interest, together with interest at the rate of 10% per
annum from March 1, 2013 to the date of entry of judgment;
4. For an order directing public sale of the property herein described to foreclose
all of these Defendants’ rights therein and to apply the proceeds, in the following order:
a. To the costs of taking, holding, and selling the property and, to the
extent provided for by agreement and not prohibited by law, reasonable
attorney’s fees and legal expenses incurred by the secured party in
doing so;
b. To the cots of suit herein, as may be awarded by the court;
c. To the satisfaction of damages and interest thereon under the
agreement;
THIRD CAUSE OF ACTION–JUDICIAL FORECLOSE OF REAL ESTATE
COLLATERAL UNDER SECURITY INTEREST
AS TO DEFENDANTS HERMANN MUENNICHOW and RIVERSIDE DRIVE, LLC
5. Adjudging that the trust deed be foreclosed, that the property described in
paragraph 30 be sold according to law by a levying officer to be appointed by the court, that
the proceeds of the sale be applied in payment of the amounts due to plaintiff, that Riverside
LLC and Hermann Muennichow and all persons claiming under Riverside LLC and Hermann
Muennichow, after execution of plaintiff’s trust deed, whether as lien claimant, judgment___________________________________________________________________________________
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creditor, claimant under a junior trust deed, purchaser, lienholder, or otherwise, be barred and
foreclosed from all rights, claims, interests, or equity of redemption in the property and every
part fo the property when time for redemption has elapsed;
6. Adjudging that Riverside LLC and Hermann Muennichow are personally
liable for payment of the obligation secured by the trust deed, and that a deficiency judgment
may be ordered following proceedings prescribed by law;
7. Permitting plaintiffs to become purchasers at the foreclosure sale;
8. Directing the levying officer, after the time for redemption has elapsed to
execute a deed to the purchaser of the property at the sale, and directing that the purchaser
be let into possession of the property on production of the levying officer’s deed;
FOURTH CAUSE OF ACTION–JUDICIAL FORECLOSE OF REAL ESTATE
COLLATERAL UNDER SECURITY INTEREST
AS TO DEFENDANTS HERMANN MUENNICHOW and HELAYNE MUENNICHOW
9. Adjudging that the trust deed be foreclosed, that the property described in
paragraph 32 be sold according to law by a levying officer to be appointed by the court, that
the proceeds of the sale be applied in payment of the amounts due to plaintiff, that Hermann
Muennichow and Helayne Muennichow and all persons claiming under Hermann
Muennichow and Helayne Muennichow, after execution of plaintiff’s trust deed, whether as
lien claimant, judgment creditor, claimant under a junior trust deed, purchaser, lienholder,
or otherwise, be barred and foreclosed from all rights, claims, interests, or equity of
redemption in the property and every part of the property when time for redemption has
elapsed;
10. Adjudging that Hermann Muennichow and Helayne Muennichow are
personally liable for payment of the obligation secured by the trust deed of the property
described in paragraph 32, and that a deficiency judgment may be ordered following
proceedings prescribed by law;
11. Permitting plaintiffs to become purchasers at the foreclosure sale;
12. Directing the levying officer, after the time for redemption has elapsed to
execute a deed to the purchaser of the property at the sale, and directing that the purchaser___________________________________________________________________________________
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be let into possession of the property on production of the levying officer’s deed;
FIFTH CAUSE OF ACTION–JUDICIAL FORECLOSE OF REAL ESTATE
COLLATERAL UNDER SECURITY INTEREST
AS TO DEFENDANTS HERMANN MUENNICHOW and HELAYNE MUENNICHOW
13. Adjudging that the trust deed be foreclosed, that the property described in
paragraph 34 be sold according to law by a levying officer to be appointed by the court, that
the proceeds of the sale be applied in payment of the amounts due to plaintiff, that Hermann
Muennichow and Helayne Muennichow and all persons claiming under Hermann
Muennichow and Helayne Muennichow, after execution of plaintiff’s trust deed, whether as
lien claimant, judgment creditor, claimant under a junior trust deed, purchaser, lienholder,
or otherwise, be barred and foreclosed from all rights, claims, interests, or equity of
redemption in the property and every part of the property when time for redemption has
elapsed;
14. Adjudging that Hermann Muennichow and Helayne Muennichow are
personally liable for payment of the obligation secured by the trust deed of the property
described in paragraph 34, and that a deficiency judgment may be ordered following
proceedings prescribed by law;
15. Permitting plaintiffs to become purchasers at the foreclosure sale;
16. Directing the levying officer, after the time for redemption has elapsed to
execute a deed to the purchaser of the property at the sale, and directing that the purchaser
be let into possession of the property on production of the levying officer’s deed;
SIXTH CAUSE OF ACTION–IMPOSITION OF RESULTING TRUST
AS TO DEFENDANTS HERMANN MUENNICHOW and HELAYNE MUENNICHOW
17. Declaring that Hermann Muennichow and Helayne Muennichow hold title to
the real property described in paragraph 34 of this complaint as a trustee of a resulting trust
for the benefit of plaintiffs, and that Hermann Muennichow and Helayne Muennichow have
no right, title nor interest in said real property;
18. Ordering that Hermann Muennichow and Helayne Muennichow convey to
plaintiffs forthwith all of the title to said real property;___________________________________________________________________________________
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SEVENTH CAUSE OF ACTION
CONSTRUCTIVE TRUST AND/OR EQUITABLE LIEN
AS TO DEFENDANTS HERMANN MUENNICHOW and HELAYNE MUENNICHOW
19. Declaring that Hermann Muennichow and Helayne Muennichow hold title to
the real property described in paragraph 34 of this complaint as constructive trustees for the
benefit of plaintiffs, and that Hermann Muennichow and Helayne Muennichow have no right,
title nor interest in said real property;
20. For a determination that Plaintiffs are entitled to and possess and equitable lien
against the real property described in paragraph 34 of this complaint for the amount of money
used by Hermann Muennichow and Helayne Muennichow for the purchase of said real
property plus interest at the legal rate of interest;
21. Ordering that Hermann Muennichow and Helayne Muennichow convey to
plaintiffs forthwith all of the title to said real property;
EIGHTH CAUSE OF ACTION–CONVERSION
AS TO DEFENDANTS HERMANN MUENNICHOW, MUENNICHOW CPA,
and MUENNICHOW LLP
22. Against Hermann Muennichow, Muennichow CPA, Muennichow LLP, for the
total sum of $760,000, principal and interest, together with interest at the rate of 10% per
annum from March 1, 2013 to the date of entry of judgment;
23. Ordering that Hermann Muennichow and Helayne Muennichow convey to
plaintiffs forthwith all of the title to said property;
NINTH CAUSE OF ACTION - FINANCIAL ELDER ABUSE
AS TO DEFENDANTS HERMANN MUENNICHOW,
HERMANN MUENNICHOW CPA and HELAYNE MUENNICHOW
24. Against Hermann Muennichow, Muennichow CPA, and Helayne Muennichow,
for an affirmative finding of an award up to three times greater than the total sum of
$760,000, principal and interest, together with interest at the rate of 10% per annum from
March 1, 2013 to the date of entry of judgment pursuant to California Civil Code § 3345.
25. For an award of punitive and exemplary damages in an amount to be___________________________________________________________________________________
Verified First Amended ComplaintPage 27
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determined by the court.
26. For an award of Plaintiffs’ attorneys fees incurred herein pursuant to Elder
Abuse statutes.
TENTH CAUSE OF ACTION - CONSTRUCTIVE FRAUD
AS TO DEFENDANTS HERMANN MUENNICHOW and
HERMANN MUENNICHOW CPA
27. Against Hermann Muennichow, Muennichow CPA, Muennichow LLP, and
Riverside Drive LLC for the total sum of $760,000, principal and interest, together with
interest at the rate of 10% per annum from March 1, 2013 to the date of entry of judgment;
28. For punitive and exemplary damages in an amount to be determined by the
court.
FOR ALL CAUSES OF ACTION
AS TO ALL DEFENDANTS
29. For attorney’s fees as provided for by statute or agreement.
30. For costs of suit herein incurred; and
31. For any other and further relief as the court may deem proper.
DATED: April 10, 2014 ___________________________KELLY WARREN, ESQ.Attorney for Plaintiffs
___________________________________________________________________________________ Verified First Amended Complaint
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VERIFICATION OF FIRST AMENDED COMPLAINT
I, Duane Van Dyke, hereby declare as follows:
I am one of the Plaintiffs in these proceedings and the person most involved and
knowledgeable with the events stated in this Complaint. All of the matters stated herein are
personally known to me and I believe them to be true, except those which are stated upon
information and belief, and those matters I believe to be true.
I declare under penalty of perjury that the foregoing is true and correct. Executed this
__th day of April 2015, at Covina, California.
_________________________________________DUANE VAN DYKE
___________________________________________________________________________________ Verified First Amended Complaint
Page 29
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