star & alans corrected 1st amended complaint law suit
TRANSCRIPT
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Alan Gjurovich; Star: Hills,
temporary mailing location:CARE OF : [ PO BOX 71537, Bakersfield, California 93387][non domestic without the U.S.]
SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF KERN
CASE#: S-1500-CV-271292-SPC
1st AMENDED Alan Gjurovich; Star: Hills, VERIFIED COMPLAINT FOR ENFORCEMENT OF RESCISSION OF ALLEGED MORTGAGE Plaintiffs, CONTRACT; FRAUD; CONSTRUCTIVE FRAUD
DECEIT; CIVIL DAMAGES FOR CRIMINAL -VS- TORTS OF FRAUD FORGERY; PERJURY; FALSIFYING DOCUMENTS TRESPASSING;MERS; MERS PRESIDENT TERRORIST THREATS;BREACH OF FIDUCIARY& CEO BILL BECKMANN; INVOLUNTARY TRUST;BREACH OF TRUST;GMAC MORTGAGE LLC; GMAC WRONGFUL CONVERSION OF REALMORTGAGE LLC PRESIDENT PROPERTY; EQUITABLE, DECLARATORY &NICK CANALE Jr.; GMAC INJUNCTIVE RELIEF; QUIET TITLE; ABUSEMORTGAGE LLC VICE OF PROCESS; GENERAL NEGLIGENCE;PRESIDENT & LOAN SERVICER, INTENTIONAL NEGLIGENCE, ETC., Charles R. Hoecker;GMAC OF Alan Gjurovich & Star: Hills. MORTGAGE, LLC; ETS SERVICES LLC PRESIDENT JOHN DOE 2, ETS SERVICES LLC; ETS SERVICES LLC SALES TRUSTEE Omar Solorzano; ETSSERVICES LLC MANAGERSJOSEPH A. PENSABENA; MARK E. LAHIFF; Adam Leppo ETS SERVICES LLC TRUSTEE SALE OFFICER; John Does 3-99, Defendants._________________________________
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COMES NOW Alan Gjurovich & Star: Hills (hereafter Alan & Star) WITH THEIR
VERIFIED CIVIL COMPLAINT FOR ENFORCEMENT OF RESCISSION OF
ALLEGED MORTGAGE CONTRACT; QUIET TITLE; EQUITABLE, INJUNCTIVE, &
DECLARATORY RELIEF; FRAUD; PROMISSORY FRAUD; FRAUDULENT
INDUCEMENT; CONSTRUCTIVE FRAUD, DECEIT; NEGLIGENCE, CIVIL DAMAGES
FOR CRIMINAL TORTS OF FRAUD, FORGERY, PERJURY, FALSIFYING
DOCUMENTS, TRESPASSING, TERRORIST THREATS, BREACH OF TRUST;
BREACH OF FIDUCIARY; WRONGFUL CONVERSION OF REAL PROPERTY;
INVOLUNTARY TRUST, BREACH OF TRUST, GENERAL NEGLIGENCE &
INTENTIONAL NEGLIGENCE, ETC., AS FOLLOWS:
FACTS & ALLEGATIONS
PARTIES & RELATIONSHIPS
1. Alan Gjurovich (hereafter Alan) is a sovereign man of God living on the land in the De-
Jure Country called California Republic, WHO OBTAINED A FIFTY (50 %)
PERCENT OWNERSHIP INTEREST IN THE “REAL PROPERTY” COMMONLY REFERRED TO AS BEING LOCATED AT “ [3018 LINDEN AVENUE, BAKERSFIELD CALIFORNIA] ” ON OCTOBER 5, 2009 BY WAY OF A QUIT CLAIM DEED EXECUTED BY THE OWNER OF THE SAID PROPERTY Star:Hills,THE LEGAL DESCRIPTION OF THE SAID PROPERTY IS:
ONE HALF OF Lot 17 in Block 26 of Skyline Park Subdivision No. 2 according to the map thereof filed on August 13, 1923, and recorded in Book 3, pages 88 to 93, inclusive, of Maps, in the Office of the County Recorder of said County. APN: 123-330-06.” COMMONLY REFERRED TO AS [ “3018 LINDEN
AVENUE, BAKERSFIELD, CALIFORNIA”] .
& ASSUMED ONE HALF OF THE ALLEGED LIEN ON THE PROPERTY
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CLAIMED BY DEFENDANT GMAC MORTGAGE LLC VIA ALLEGED
MORTGAGE RE FINANCE LOAN #: 40824789, WHICH IS RECORDED IN
THE KERN COUNTY RECORDERS OFFICE, & THUS IS AN INTERESTED
PARTY TO SAID ALLEGED LOAN, WHOSE RIGHTS IN SAID PROPERTY
ARE PRESENTLY DETRIMENTALLY AFFECTED BY SAID ALLEGEDLY
CLAIMED LIEN. SEE: CERTIFIED COPY OF ALLEGED QUIT CLAIM DEED
RECORDED IN KERN COUNTY RECORDERS OFFICE, DOCUMENT NUMBER
#: 0209147487, ATTACHED TO THE PRIOR COMPLAINT AS AN EXHIBIT &
IS HEREBY INCORPORATED INTO THIS COMPLAINT BY REFERENCE AS
IF FULLY SET FORTH & IS HEREBY MADE A PART OF THIS COMPLAINT
Alan Gjurovich IS SUING TO QUIET TITLE ON THE FOR MENTIONED
PROPERTY FOR A COURT DETERMINATION THAT HE IS THE LAWFUL
OWNER OF HALF RIGHTS & INTERESTS TO THE SAID PROPERTY
PURSUANT TO THE SAID QUIT CLAIM DEED EXECUTED BY Star: Hills IN
October of 2009 as set forth herein, a copy of said quit claim deed is attached to
the prior complaint as exhibit which is hereby incorporated into this complaint as if
fully set forth and is made a part of this complaint, which Mandatory Judicial
Notice is hereby Requested of the Court pursuant to the express provisions of
California Evidence Code Section 451-453 Et Sequiter, AGAINST THE ADVERSE
CLAIMS OF DEFENDANT GMAC MORTGAGE LLC, TO LEGAL TITLE BY
WAY OF PURCHASE AT AN ALLEGED PUBLIC SALE OF THE SAID
PROPERTY PURSUANT TO AN ALLEGED FORECLOSURE AGAINST Star:
Hills WHO IS ALSO SUING DEFENDANTS IN THIS ACTION FOR QUIET
TITLE ON HER HALF OWNERSHIP INTEREST AGAINST THE SAME
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ADVERSE CLAIM OF THE SAME DEFENDANT GMAC MORTGAGE LLC.
DEFENDANT. Alan Gjurovich ALSO SEEKS A DECLARATORY JUDGMENT
THAT THE ALLEGED MORTGAGE, PROMISSORY NOTE, & DEED OF TRUST
CLAIMED BY SAID DEFENDANT WAS RESCINDED PRIOR TO THE
ALLEGED PUBLIC SALE OF THE PROPERTY IN QUESTION BY Star: Hills
& THAT THE ALLEGED DEED UPON SALE CLAIMED BY THE SAID
DEFENDANT WAS & IS VOID AB INITIO AS A MATTER OF CALIFORNIA
LAW DUE TO SAID RESCISSION WHICH OCCURRED PRIOR TO THE
ALLEGED SALE OF 11 / 13 / 2008, & ALSO A DECLARATORY JUDGMENT
AS TO THE OTHER CAUSES SET FORTH HEREIN THAT Alan CONTENDS
RENDERED THE ALLEGED MORTGAGE & FORECLOSURE VOID AB INITIO
AS A MATTER OF CALIFORNIA LAW AS SET FORTH HEREAFTER IN
THIS COMPLAINT. THE SAID JUDGMENTS ARE REQUESTED AS TO THE
DATE OF THE SERVICE OF THE SAID NOTICE OF RESCISSION ON 1 /7/2008,
UP TO THE PRESENT DATE OF THE SUIT, & AS TO THE DATE OF ANY
EVENT ALLEGED HEREIN THIS COMPLAINT AS VOIDING THE ALLEGED
SALE & DEED UPON SALE, & AN ALLEGED JUDGMENT FOR POSSESSION
IN CASE #:S-1500-CL-237061 KCT ON NOVEMBER 19, OF 2009. THESE QUIET
TITLE DETERMINATIONS & DECLARATIONS ARE NEEDED DUE TO THE
FAILURE OF THE SAID DEFENDANT GMAC MORTGAGE LLC & ETS
SERVICES LLC TO ACKNOWLEDGE THE VALIDITY OF THE NOTICE
OF RESCISSION SERVED ON THEM PRIOR TO THE ALLEGED SALE &
PURCHASE OF THE HOME & PROPERTY IN QUESTION. IN CONJUNCTION
WITH THESE ACTIONS Alan Gjurovich SEEKS A JUDGMENT FOR
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EQUITABLE RELIEF TO SET ASIDE THE ALLEGED PUBLIC SALE OF
SAID HOME & PROPERTY ON 11 /13/ 2008 BASED UPON THE PRIOR
RESCISSION & THE ONGOING FRAUD OF THE SAID PLAINTIFF GMAC
MORTGAGE LLC, AND SEEKS OTHER SPECIFIED RELIEF SET FORTH
HEREAFTER. THESE ISSUES HAVE NEVER BEEN PREVIOUSLY
LITIGATED IN ANY COURT PROCEEDING & CAN BE FULLY LITIGATED
IN THIS ACTION. ALL DOCUMENTS & RECORDS IN EXHIBITS
ATTACHED TO PLAINTIFFS FIRST VERIFIED COMPLAINT ARE HEREBY
INCORPORATED BY REFERENCE AS IF FULLY SET FORTH HEREIN &
ARE MADE A PART OF THIS COMPLAINT. WHICH IS HEREBY
INCORPORATED HEREIN THIS COMPLAINT AS IF FULLY SET FORTH, &
IS HEREBY MADE A PART OF THIS COMPLAINT WHICH THIS COURT
IS HEREBY REQUESTED TO TAKE MANDATORY JUDICIAL NOTICE OF
PURSUANT TO CALIFORNIA EVIDENCE CODE SECTIONS 451-453 ET
SEQUITER. THERE IS PRESENTLY A DISPUTE & CONTROVERSY OVER
THE LAWFUL TITLE TO SAID “REAL PROPERTY” FORMING THE BASIS
FOR A DECLARATORY JUDGMENT & QUIETING OF TITLE OF SAID
“REAL PROPERTY”, AS WELL AS EQUITABLE & INJUNCTIVE RELIEF.
2. Star: Hills (hereafter referred to as Star) is a sovereign woman of God living on the
land in the De-Jure Country called California Republic, WHO IS PRESENTLY HALF
OWNER OF “THE REAL PROPERTY” COMMONLY REFERRED TO AS BEING
LOCATED AT OR NEAR “[3018 Linden avenue, Bakersfield, California]”, WHOSE
SAID PROPERTY RIGHTS ARE NOW PRESENTLY DETRIMENTALLY
AFFECTED BY THE ALLEGED CLAIMED LIEN UNDER ALLEGED
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MORTGAGE REFINANCE LOAN #: 40824789, WHICH IS DOCUMENT
NUMBER #: 0207122159, ALLEGED “ DEED OF TRUST ” DATED MAY 17,
2007, RECORDED IN THE KERN COUNTY RECORDERS OFFICE. AND AN
ALLEGED JUDGMENT IN AN “UNLAWFUL DETAINER ACTION IN KERN
COUNTY CIVIL LIMITED CASE #: S-1500-CL- 237061-LHB SAID ALLEGED
“DOCUMENTS” WERE ALL LAWFULLY RESCINDED BY Star: Hills PRIOR
TO THE DATE & TIME OF THE ALLEGED PUBLIC SALE OF THE SAID
HOME & PROPERTY DESCRIBED IN THE KERN COUNTY RECORDERS
OFFICE AS: “All of Lot 17 in Block 26 of Skyline Park Subdivision No. 2 according
to the map thereof filed on August 13, 1923, and recorded in Book 3, pages 88 to 93,
inclusive, of Maps, in the Office of the County Recorder of said County. APN: 123-330-
06.” WHICH LAWFUL RESCISSION WAS DUE TO PROMISSORY FRAUD, &
FRAUD, AMONG OTHER CAUSES WHICH MAKE THE ALLEGED MORTGAGE
REFINANCE TRANSACTION & ALL DOCUMENTS CONNECTED THERETO
VOID AB INITIO, & RENDER THE ALLEGED SALE VOID AB INITIO SEE:
QUIT CLAIM DEED RECORDED IN KERN COUNTY RECORDERS OFFICE
DOCUMENT #: 0203014911, NOTICE OF RESCISSION OF ALLEGED
MORTGAGE REFINANCE CONTRACT; ACCEPTANCE FOR VALUE
NOVATION; NOTICE OF PUBLIC STATUS, DEFAULT; OFFER TO CURE;
FINAL NOTICE;NOTICE & DEMAND;CLAIM OF RIGHT;NOTICE OF TITLE 18
USC VIOLATIONS,OF Star ATTACHED TO THE FIRST VERIFIED COMPLAINT
IN EXHIBITS: 3,4,5 All of which are hereby incorporated hereinto this complaint by
reference as if fully set forth, and are hereby made a part of this complaint, which Star
hereby requests the above named Court to take Judicial Notice of pursuant to
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California Evidence Code Section 451-453, Et Sequiter.
3. Named Defendants are Licensed Corporate Entities, Artificial bodies ORGANIZED
FOR PROFIT & WHO REGULARLY COMMIT FRAUD UPON THE PUBLIC, AS
A MATTER OF POLICY, CUSTOM, HABIT, PATTERN & PRACTICE, & their
Officers, & Employees, or Contractors, WHO FALSELY & FRAUDULENTLY
CLAIM ( ETS SERVICES, LLC & ALLEGED “TRUSTEE SALES OFFICER”
OMAR SOLORZANO ) TO HAVE SOLD & PURCHASED ( GMAC MORTGAGE
LLC ) THE HOME & LAND OF Star & Alan UNDER A CERTAIN ALLEGED
“DEED OF TRUST” CLAIMED AS A SECURITY INSTRUMENT FOR THE
SAID ALLEGED MORTGAGE REFINANCE LOAN #: 40824789.
DEFENDANTS MERS; MERS PRESIDENT & CEO BILL BECKMANN;
THE ALLEGED DEED OF TRUST STATES THAT MERS (MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS INC.), WAS THE “BENEFICIARY”
OF SAID DEED OF TRUST. HOWEVER AT THE TIME OF THE ALLEGED
CREATION OR EXECUTION OF THE ALLEGED DEED OF TRUST THE SAID
“MERS” WAS NOT THE BENEFICIARY OF THE ALLEGED MORTGAGE
REFINANCE LOAN. THE BENEFICIARY OF THE ALLEGED MORTGAGE
REFINANCE LOAN WAS THE ALLEGED “LENDER” “MORTGAGEIT INC.”,
& NEITHER “MERS” OR THEIR PRESIDENT & CEO BILL BECKMANN
WERE EVER AN AGENT AUTHORIZED TO EXECUTE THE MORTGAGE
PROVISIONS REGARDING THE SECURITY INSTRUMENT AGREEMENT IN
THE DEED OF TRUST FOR SAID ALLEGED BENEFICIARY “MORTGAGEIT
INC. AS NEITHER SAID PARTY EVER RECORDED A POWER OF ATTORNEY
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WITH KERN COUNTY RECORDERS OFFICE AS REQUIRED BY EXPRESS
CALIFORNIA LAW UNDER CALIFORNIA CIVIL CODE SECTION 2933, WHICH
MANDATES:
“A power of attorney to execute a mortgage must be in writing, subscribed, acknowledged or proved, certified, and recorded in like manner as powers of attorney for grants of real property.”
& AS REQUIRED BY THE DEED OF TRUST WHICH REQUIRES
COMPLIANCE WITH ALL FEDERAL & LOCAL LAWS. CALIFORNIA CIVIL
CODE SECTION 2933, WHICH MANDATES:
“A power of attorney to execute a mortgage must be in writing, subscribed, acknowledged or proved,certified,and recorded in like manner as powers of attorney for grants of real property.”
SEE DEED OF TRUST IN EXHIBIT #: 2 WHICH WAS ATTACHED TO THE
FIRST VERIFIED COMPLAINT & IS HEREBY INCORPORATED HEREIN BY
REFERENCE AS IF FULLY SET FORTH & IS HEREBY MADE A PART OF
THIS COMPLAINT, WHICH THE COURT IS REQUIRED TO TAKE
MANDATORY JUDICIAL NOTICE OF UNDER CALIFORNIA EVIDENCE
CODE SECTION 451-459. FURTHERMORE THE ALLEGED LENDER
MORTGAGEIT INC. DID NOT PARTICIPATE IN THE ALLEGED LOAN
OFFER OR NEGOTIATIONS, & THEREFOR COULD NOT HAVE BEEN A
KNOWING CONTRACTOR WITH Star: Hills IN THE ALLEGED TRANSACTION
WHICH RENDERS ALLEGED TRANSACTION VOID AB INITIO. THE SAID
DEFENDANTS HAVE COMMITTED & ARE NOW COMMITTING ABUSE OF
PROCESS; FRAUD; DECEIT; & OTHER TORTS & CRIMINAL VIOLATIONS
IN THE COURTS AGAINST BOTH Star & Alan. Said Defendants are subject to
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the laws of the De-Facto State of California, and the Jurisdiction of this Court.
4. Defendant NICK CANALE Jr WAS AT ALL TIMES MENTIONED IN THIS
COMPLAINT the President of GMAC MORTGAGE LLC , WHO KNOWINGLY
WILLINGLY PERPETRATED A FRAUD UPON THE PUBLIC, UPON Star, &
UPON THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, IN AND
FOR THE COUNTY OF KERN, BY PURPORTING TO HOLD A PUBLIC SALE
OF THE HOME & LAND IN QUESTION, AFTER HE RECEIVED NOTICE OF
LAWFUL RESCISSION OF THE WHOLE ALLEGED TRANSACTION DAYS
PRIOR TO THE DATE OF THE PLANNED “PUBLIC SALE” OF THE SAID
PROPERTY, WHICH ACT OF “SALE” AFTER LAWFUL RESCISSION WAS
WRONGFUL CONVERSION OF REAL PROPERTY, THEFT OF REAL
PROPERTY, FRAUD, CONSTRUCTIVE FRAUD, DECEIT, ALL WITH THE
INTENT TO CAUS E HARM, INJURY & DAMAGE TO Star. Said Defendant
thereafter knowingly, willingly, intentionally FILED a Fraudulent Law suit against
Star VIA THEIR AGENT THE “David Endres Law firm” for a Falsely &
Fraudulently alleged Unlawful Detainer, KERN COUNTY SUPERIOR COURT CASE
S-1500-CL-236547-SMK WHICH AMOUNTED TO ABUSE OF PROCESS, FRAUD
UPON THE PUBLIC, FRAUD UPON THE COURT, FRAUD UPON Star, only after
Star first filed & served on the said President of GMAC MORTGAGE LLC her
own law suit to enforce the Rescission of the whole alleged Mortgage re-Finance
Loan Contract, for Fraud, & for other causes. Said President, Vice President, & other
Corporate Officers Acting on behalf of GMAC MORTGAGE LLC, REFUSED &
FAILED to inform the Endres Law Firm, whom they hired & caused to file the
Unlawful Detainer Action against Star in Case #: S-1500-CL-236547-SMK, that Star
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had filed a law suit against GMAC MORTGAGE LLC, to enforce the prior
Rescission & for Fraud, Etc., which was at that time ongoing & affected the ability
of GMAC MORTGAGE LLC TO PROSECUTE AN UNLAWFUL DETAINER
ACTION WHILE THERE WAS AN ACTION OVER THE TITLE TO THE
PROPERTY BEING PROSECUTED BY Star. The said failure to inform their
Counsel the Endres Law Firm that they, GMAC MORTGAGE LLC WERE BEING
SUED IN A PRIOR FILED LAW SUIT BY Star: Hills TO ENFORCE THE
PRIOR RESCISSION OF THE WHOLE ALLEGED MORTGAGE TRANSACTION
WAS A FRAUD BY GMAC MORTGAGE LLC, & THEIR OFFICERS PRESIDENT
NICK CANALE Jr, & VICE PRESIDENT Charles R. Hoecker, & FURTHER ABUSE
OF PROCESS. AFTER a copy of the law suit filed by Star against GMAC MORT.
LLC, KERN COUNTY SUPERIOR COURT #: S-1500-CV-265552 WDP was mailed
to the Endres Law firm by Star, the Endres Law firm quickly Dismissed that
Unlawful Detainer Law suit and Removed them selves as Counsel of Record . (there
are published cases where Courts have Ruled that where there is litigation over
the Title to real property an unlawful detainer action does not lie in the same
Court, where the real issue before the Court is Title to the Property.) Shortly
after the Dismissal of the first Unlawful Detainer Action said Defendant NICK
CANALE Jr, President of GMAC MORTGAGE LLC, FILED yet another Unlawful
Detainer against Star, this time VIA HIS AGENT Ruzicka & Wallace, LLP, Case
#:S-1500-CL237061-LHB in March of 2009, though he had received the Notice of
Rescission of the whole Transaction, & he also knew that a law suit had been
filed prior to the alleged sale of the Property & Home of Star & prior to the
unlawful detainer Action to enforce the Rescission and was ongoing at that time
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WHICH PRECLUDED THE FILING OF THE SAID UNLAWFUL DETAINER
UNDER C.C.P. SECTION 1161a AS NO TITLE COULD BE PERFECTED AS
LONG AS THE PRIOR FILED ACTION OVER TITLE WAS ON GOING; A DULY
PERFECTED TITLE IS AN EXPRESS PRE-REQUISITE THAT MUST BE
ACCOMPLISHED BY ANY PLAINTIFF IN AN UNLAWFUL DETAINER SUIT
PRIOR TO THE FILING OF SUCH AN ACTION IN COURT; THE FILING OF
SAID UNLAWFUL DETAINER ACTION BY SAID DEFENDANT WAS AN
ABUSE OF PROCESS by said President NICK CANALE Jr & GMAC MORT. LLC,
as well as the Vice President Charles R. Hoecker who was the Man in Charge of
Loan Servicing, & was the “Servicer” of the alleged Mortgage Refinance Loan.
BOTH OF SAID DEFENDANTS had prior Personal Knowledge of the prior
Rescission of the whole Transaction, & WERE PRIVY TO THE FACTS OF THE
PRIOR FRAUDULENT INDUCEMENT, PROMISSORY FRAUD, DECIET, AND
CONSTRUCTIVE FRAUD, ETC., AGAINST Star WHICH ALSO CONSTITUTED
A VIOLATION OF THE CLEAN HANDS DOCTRINE, IN THAT THEY CAME
INTO BOTH PROCEEDINGS WITH UNCLEAN HANDS DUE TO THEIR BEING
PRIVY & COOPERATIVE IN THE SAID FRAUDULENT ACTIONS IN OBTAINING
THE ALLEGED MORTGAGE CONTRACT; & whose silence about the Prior Lawful
Rescission was Fraud as well . Said Defendant John Doe 1 & the ALLEGED “Lender”
“MORTGAGEIT INC.” failed to Execute any “POWER OF ATTORNEY” TO
EXECUTE THE PROVISIONS OF THE ALLEGED MORTGAGE CONTRACT &
RECORD THE SAME WITH THE KERN COUNTY RECORDERS OFFICE AS
EXPRESSLY REQUIRED BY CALIFORNIA LAW UNDER THE CALIFORNIA
CIVIL CODE, SECTIONS 23.2; 2400; 2933; 2295-2300; 2304-2326 ; 2330-2339; 2342-
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2345; 2349-2351; & CALIFORNIA PROBATE CODE SECTION 4026, RENDERING
ANY PURPORTED ACTIONS BY GMAC MORTGAGE LLC, THEIR PRESIDENT,
JOHN DOE 1, ETS SERVICES LLC, & Vice President Charles R. Hoecker THE
ALLEGED “LOAN SERVICER” & THEIR ALLEGED “SALES TRUSTEE, NAMED
DEFENDANT “OMAR SOLORZANO” ON BEHALF OF THE SAID ALLEGED
“LENDER” MORTGAGEIT INC.,AS AN “AGENT” OF SAID ALLEGED “LENDER”
VOID AB INITIO, ULTRA VIRES, & OF NO VALIDITY OR EFFECT UNDER THE
LAW, & RENDERING ALL SAID DEFENDANTS LIABLE FOR ALL SAID ACTS
WHICH WERE A FRAUD ON Star, ON THE “PUBLIC” & ON THE COURT,
& AN “ABUSE OF PROCESS” IN THEIR SUBSEQUENTLY FILED LAW SUITS
FOR “UNLAWFUL DETAINER”. DEFENDANT JOHN DOE 1, BECAME PRIVY
TO THE FRAUD, PROMISSORY FRAUD, & FRAUDULENT INDUCEMENT IN
THE ORIGINAL ALLEGED MORTGAGE CONTRACT WHEN THEY WERE
SERVED BY Star: Hills WITH HER NOTICE OF RESCISSION ON NOVEMBER
7, 2008, PRIOR TO THE ALLEGED PUBLIC SALE OF THE SAID HOME &
PROPERTY. The said Defendant NICK CANALE Jr OWED A DUTY TO
PLAINTIFFS TO NOT ENGAGE IN THE SAID FRAUD, & HE SHOULD HAVE
KNOWN, HE HAD A DUTY TO KNOW ,& DID KNOW THAT HE HAD A DUTY
TO NOT ENGAGE IN THE SAID FRAUD AGAINST PLAINTIFFS, & SAID
ACTS OF SAID DEFENDANT DIRECTLY & PROXIMATELY CAUSED THE
INJURY & DAMAGE TO PLAINTIFFS HEREIN, FOR WHICH HE IS LIABLE
TO PLAINTIFFS. ENGAGING IN SAID ACTS & ACTIONS AGAINST PLAINTIFFS
WAS GENERAL NEGLIGENCE & OR INTENTIONAL NEGLIGENCE FOR
WHICH THEY ARE LIABLE TO PLAINTIFFS.
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5. Defendant John Doe 2 IS THE PRESIDENT OF DEFENDANT ETS SERVICES, LLC, WHO WAS RESPONSIBLE FOR THE ACTIONS OF ETS SERVICES LLC, & ALL OFFICERS Agents, Employees of said Entity, INCLUDING MANAGERS JOSEPH
A.PENSABENA; MARK E. LAHIFF; Adam Leppo ETS SERVICES LLC TRUSTEE
SALE OFFICER; & including the named Sales Officer OMAR SOLORZANO WHO
PURPORTED TO SELL THE PLAINTIFFS HOME & PROPERTY AT AN
ALLEGED PUBLIC SALE AFTER ETS SERVICES LLC, & OMAR SOLORZANO
WERE BOTH SERVED WITH A NOTICE OF RESCISSION OF THE WHOLE
ALLEGED MORTGAGE CONTRACT BASED ON THE PRIOR PROMISSORY
FRAUD, FRAUDULENT INDUCEMENT & OTHER GROUNDS. DEFENDANT
JOHN DOE 2 BECAME PRIVY TO THE FRAUD, PROMISSORY FRAUD, &
FRAUDULENT INDUCEMENT IN THE ORIGINAL ALLEGED MORTGAGE
CONTRACT WHEN THEY WERE SERVED BY Star: Hills WITH HER NOTICE
OF RESCISSION ON NOVEMBER 7, 2008. THE TRUSTEE UNDER THE
ALLEGED DEED OF TRUST WAS OLD REPUBLIC TITLE COMPANY &
THE ALLEGED SUBSTITUTION OF TRUSTEE WAS NOT EXECUTED BY THE
“LENDER” “MORTGAGEIT INC.”, WHO IS THE ONLY ONE AUTHORIZED
UNDER THE SAID “DEED OF TRUST” TO EXECUTE ANY SUBSTITUTION
OF TRUSTEE, WHICH AUTHORIZATION IS EXPRESSLY SET OUT UNDER
ARTICLE PARAGRAPH 24 OF THE SAID DEED OF TRUST, & EXPRESSLY
PROVIDES THAT SAID PROVISION SHALL GOVERN TO THE EXCLUSION
OF ALL OTHER PROVISIONS, AS FOLLOWS:
“24. Lender, at its option, may from time to time appoint a successor trustee to any trustee appointed hereunder by an instrument executed
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and acknowledged by lender and recorded in the office of the Recorder of the county in which the property is located. The instrument shall contain the name of the original lender, trustee and Borrower, the book and page where this security instrument is recorded and the name and address of the successor trustee. Without conveyance of the property, the successor trustee shall succeed to
all the title, powers and duties conferred upon the Trustee herein and by Applicable Law. This procedure for substitution of trustee shall govern to the exclusion of all other provisions for substitution.”
THIS PROVISION IS ALSO COVERED BY CALIFORNIA LAW UNDER
AGENT AGENCY AT CALIFORNIA CIVIL CODE SECTIONS : 2304 & 2305,
WHICH EXPRESSLY MANDATE: “2304”“An agent may be authorized to do any acts which his principal might do, except those to which the latter is bound to give his personal attention.” “2305”“Every act which, according to this Code, may be done by or to any person, may be done by or to the agent of such person for that purpose, unless a contrary intention clearly appears.”
THE ALLEGED “SUBSTITUTION OF TRUSTEE DOCUMENT RECORDED IN
THE KERN COUNTY RECORDERS OFFICE ON 6/16/2008, DOC. #: 0208095769,
WAS SIGNED ON 6/11/2008 BY SOMEONE IN THE NAME OF “MERS” NOT THE
ALLEGED LENDER, MORTGAGEIT INC., WHICH WAS A DIRECT BREACH &
VIOLATION OF SAID PARAGRAPH ARTICLE 24 OF THE DEED OF TRUST,
& WHICH RENDERED THE DEED OF TRUST VOID. THEREAFTER A
DOCUMENT TITLED “NOTICE OF DEFAULT AND ELECTION TO SELL
UNDER DEED OF TRUST” WAS EXECUTED & SIGNED BY AN “Adam Leppo”
“TRUSTEE SALE OFFICER” ON 6/11/2008, UNDER THE TITLE “ETS Services,
LLC AS AGENT FOR BENEFICIARY ”, A NAMED DEFENDANT HEREIN, WHO
HAD NO AUTHORITY UNDER LAW TO EXECUTE SAID DOCUMENT AS A
TRUSTEE OFFICER AS THE ALLEGED SUBSTITUTION OF TRUSTEE WAS VOID
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AB INITIO, & SAID ACTION OF DEFENDANT “ADAM LEPPO” PURPORTING TO
ISSUE A NOTICE OF DEFAULT & ELECTION TO SELL AFTER THE
RESCISISON WAS FRAUD, BREACH OF THE TRUST DEED, GENERAL
NEGLIGENCE & OR INTENTIONAL NEGLIGENCE WHICH DIRECTLY &
PROXIMATELY CAUSED THE INJURY & DAMAGE TO PLAINTIFFS AS SET
FORTH HEREIN FOR WHICH HE IS LIABLE TO PLAINTIFFS. SAID
DEFENDANT OWED A DUTY TO PLAINTIFFS TO NOT ENGAGE IN SAID
FRAUD & NEGLIGENCE, & HE SHOULD HAVE KNOWN, HAD A DUTY TO
KNOW & DID KNOW HE HAD SUCH A DUTY & FAILURE TO CARRY OUT
SAID DUTY DIRECTLY & OR PROXIMATELY CAUSED THE DAMAGES TO
PLAINTIFFS AS SET FORTH HEREIN. DEFENDANTS ETS SERVICES LLC
MANAGERS JOSEPH A. PENSABENA; MARK E. LAHIFF HAD A DUTY AS
MANAGERS FOR DEFENDANT ETS SERVICES LLC TO EXCERSISE DUE
CARE ONCE THEY WERE PUT ON NOTICE OF THE PRIOR RESCISSION OF
THE WHOLE ALLEGED MORTGAGE TRANSCTION TO REFRAIN FROM ANY
SALE OF THE HOME & PROPERTY OF PLAINTIFFS, & TO PREVENT ANY
OTHER EMPLOYEES FROM DOING SO, & THEIR FAILURE TO DO SO WAS
GENERAL NEGLIGENCE & OR INTENTIONAL NEGLIGENCE WHICH
DIRECTLY & OR PROXIMATELY CAUSED THE INJURY & HARM TO
PLAINTIFFS AS SET FORTH HEREIN, FOR WHICH THEY ARE LIABLE TO
PLAINTIFFS .
1708. Every person is bound, without contract, to abstain from injuring the person or property of another, or infringing upon any of his or her rights. 1714. (a) Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has,
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willfully or by want of ordinary care, brought the injury upon himself or herself.
IT IS CLEAR BY THE RECORD IN THE KERN COUNTY RECORDERS OFFICE
NO POWER OF ATTORNEY HAS EVER BEEN EXECUTED BY ANY THESE
ALLEGED AGENCIES, WHICH RECORDING OF POWER OF ATTORNEY IS
REQUIRED UNDER CALIFORNIA LAW IN ORDER FOR ANY AGENT TO
EXECUTE A MORTGAGE IN CALIFORNIA, UNDER CALIFORNIA CIVIL CODE
SECTION 2933, WHICH MANDATES:
“A power of attorney to execute a mortgage must be in writing, subscribed, acknowledged or proved,certified,and recorded in like manner as powers of attorney for grants of real property.”
FURTHERMORE THE DOCUMENTED FACT THAT THE ALLEGED
SUBSTITUTION OF TRUSTEE DOCUMENT WAS SIGNED ON 6/11/2008, BUT
NOT RECORDED UNTIL 6/16/2008, ESTABLISHES AS A MATTER OF LAW
THAT THE ALLEGED NOTICE OF DEFAULT & ELECTION TO SELL SIGNED
ON 6/11/2008 BY THE SAME ALLEGED TRUSTEE ETS SERVICES LLC, WAS
VOID DUE TO THE FACT THAT THE SUBSTITUTION OF TRUSTEE HAD
NOT YET TAKEN EFFECT, IF IT WAS VALID TO BEGIN WITH IN LIGHT OF
THE EXPRESS PROVISIONS OF PARAGRAPH ARTICLE 24 OF THE ALLEGED
DEED OF TRUST, & ETS SERVICES WAS NOT A TRUSTEE AT THE TIME
THEY SIGNED THE NOTICE OF DEFAULT & ELECTION TO SELL, UNDER
THE EXPRESS PROVISIONS OF CALIFORNIA CODE OF CIVIL PROCEDURE
SECTION § 2934a , Subd. (a)(4) WHICH MANDATES:
“(4) The substitution shall contain the date of recordation of the trust deed, the name of the trustor, the book and page or instrument number where the trust deed is recorded, and the name of the new
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trustee. From the time the substitution is filed for record, the new trustee shall succeed to all the powers, duties, authority, and title granted and delegated to the trustee named in the deed of trust. A substitution may be accomplished, with respect to multiple deeds of trust which are recorded in the same county in which the substitution is being recorded and which all have the same trustee and beneficiary or beneficiaries, by recording a single document, complying with the requirements of this section, substituting trustees for all those deeds of trust.”
ACCORDING TO THE RULING OF THE APPELLATE COURT IN THE CASE
OF: Dimock v. Emerald Properties (2000) 81 Cal. App.4th 868, AT PAGE: 871,
OPINION BY BENKE, Acting P. J.-
“Under the governing statute the substitution is made by simply recording a document
evidencing the substitution. (Civ. Code, fn. 1 § 2934a, subd. (a).) By its terms the statute
provides that after such a substitution has been recorded, "the new trustee shall succeed
to all the powers, duties, authority, and title granted and delegated to the trustee named in
the deed of trust." (§ 2934a, subd. (a)(4).)”
IN THIS CASE THE SUBSTITUTION OF TRUSTEE WAS NOT RECORDED UNTIL
JUNE 16, 2008, AND THE NOTICE OF DEFAULT & ELECTION TO SELL WAS
SIGNED BY THE SAME ALLEGED TRUSTEE ON JUNE 11, 2008, WHEN THE
POWERS OF TRUSTEE HAD NOT TAKEN EFFECT, THUS RENDERING THE
NOTICE OF DEFAULT & ELECTION TO SELL VOID & OF NO EFFECT UNDER
THE LAWS OF THE STATE OF CALIFORNIA, WHICH ALSO RENDERS THE
ALLEGED SALE & DEED UPON SALE CLAIMED BY GMAC MORTGAGE LLC
VOID AS A MATTER OF LAW, WHICH ALL MUST BE SET ASIDE BY THE
COURT IN THE ACTION FOR EQUITABLE RELIEF SET FORTH HEREIN.
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AT THE TIME OF SAID SIGNING OF SAID DOCUMENTS ETS SERVICES WAS
NOT AN AGENT FOR ANY OF HE OTHER AGENCIES NAMED HEREIN UNDER
THE POWER OF ATTORNEY LAW OF CALIFORNIA, NOR UNDER THE AGENT
AGENCY LAWS OF THE STATE OF CALIFORNIA SET OUT UNDER THE
CIVIL CODE & PROBATE CODE WHICH RENDERS ALL THEIR ALLEGED
ACTIONS REGARDING THE DEED OF TRUST & ALLEGED MORTGAGE
FORECLOSURE VOID AB INITIO & OF NO EFFECT UNDER THE LAW .
6. Defendant Charles R. Hoecker, Vice President of CUSTOMER CARE LOAN
SERVICING FOR GMAC MORTGAGE LLC , presumed to undertake a Fiduciary
Contractual Obligation as an “Agent” to Collect Mortgage Payments for the
alleged “Originator” of the alleged “Loan”, MortgageIt Inc., alleged “Lender”,
without full authority under Law , as neither said “Lender”, who would be
the “Principal” in such a relationship, if said Principal had Executed a Proper
“Power of Attorney”, nor did any other person or purported “Party” claiming
to be an “Encumbrancer” or a “Holder in due Course” of the original alleged
Promissory “Note” claimed as Security for the alleged loan, ever issue any
Power of Attorney to Execute the Mortgage agreement, as required under Agent
-Principal & Contract Law, under the California Civil Code Sections: 23.2; 2400;
2933; 2295-2300; 2304 - 2326; 2330-2339; 2342-2345; 2349-2351; & CALIFORNIA
PROBATE CODE SECTION 4026 ,
[UNDER THE CARDINAL RULES OF STATUTORY CONSTRUCTION, COURTS HAVE RULED THAT:“[W]e interpret a statute in context, examining other legislation on the same subject, to determine the
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Legislature’s probable intent. [Citations.]” ( California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist., supra, 14 Cal.4th at p. 642.) “ ‘ “[P]rovisions relating to the same subject matter must be harmonized to the extent possible.” ’ ” ( Cooley v. Superior Court (2002) 29 Cal.4th 220, 248.) “Where . . . two codes are to be construed, they ‘must be regarded as blending into each other and forming a single statute.’ [Citation.]” ( Tripp v. Swoap (1976) 17 Cal.3d 671,” SEE ALSO: Building Material & Construction Teamsters’ Union v. Farrell (1986) 41 Cal.3d 651, 665.]
& Vice President Hoecker never had any Assignment of a power to collect
payments for the alleged Lender MORTGAGEIT INC., AS EXPRESSLY
REQUIRED UNDER CALIFORNIA CIVIL CODE SECTIONS 2932 & 2932.5 &
thus all their Actions purporting to act as “Loan Servicer” under Federal Law
for the alleged Lender Mortgageit Inc. were Void Ab Initio, and Fraud, Deciet,
Etc., in Violation of USC TITLE 18, 1341, 1343, 1344, 1345, 1346, 1348, 1349, 1350,
WITHOUT ANY WRITTEN EXPRESS POWER OF ATTORNEY DELEGATING
THE POWER TO COLLECT PAYMENTS ON THE ALLEGED LOAN, & TO
EXECUTE THE ALLEGED MORTGAGE, THERE WAS NO TRUE PRINCIPAL
AGENT RELATIONSHIP AS A MATTER OF CALIFORNIA LAW, (SEE THE
LAW OF PRINCIPAL & AGENT CITED PRIOR HEREIN) & IN ABSENCE
OF ANY RIGHT OR POWER TO COLLECT PAYMENTS ON THE ALLEGED
LOAN EXPRESSLY GRANTED IN THE ALLEGED DEED OF TRUST TO
GMAC MORTGAGE LLC, OR ITS SAID OFFICER Vice President Charles R.
Hoecker OR BY ANY WRITTEN ASSIGNMENT, THE LACK OF SAID
REQUIRED RECORDING A POWER OF ATTORNEY IN KERN COUNTY
RECORDERS OFFICE AS EXPRESSLY PROVIDED IN CALIFORNIA CIVIL
CODE SECTIONS 2295, 2400, 2933, & CALIFORNIA PROBATE CODE
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SECTION 4026, RENDERS THE ACTS OF GMAC MORTGAGE LLC, & VICE
PRESIDENT HOECKER ULTRA VIRES & VOID AB INITIO. DEFENDANT
VICE PRESIDENT HOECKER BECAME PRIVY TO THE FRAUD,
PROMISSORY FRAUD, & FRAUDULENT INDUCEMENT IN THE ORIGINAL
ALLEGED MORTGAGE CONTRACT WHEN HE WAS SERVED BY Star:
Hills WITH HER NOTICE OF RESCISSION ON NOVEMBER 7, 2008.
7. The Defendant GMAC MORTGAGE LLC Alleges they are a Contracting Party
with alleged Lender MORTGAGEIT INC., whereby they allege that they became
the "Servicer" of the Alleged Mortgage Refinance Loan on or before May 17,
2007, whereby they undertook a Fiduciary Trustee Obligation, to Collect Mortgage
Payments for the Originator of the alleged Loan MortgageIt Inc. VIA Defendant
Charles R. Hoecker, Vice President OF CUSTOMER CARE LOAN SERVICING FOR
GMAC MORTGAGE , LLC to Collect Mortgage Payments for the Originator of
the alleged Loan MortgageIt Inc., whereby a Trust Relationship was created
between GMAC MORTGAGE LLC, & Star where Star “Trusted” them to properly
collect & transfer payments to the alleged owner of the alleged loan & alleged
Promissory Note, alleged Lender MORTGAGEIT INC. Defendant GMAC MORTGAGE
LLC, Purported to Purchase the Home and Property of Star at an alleged Public
Sale on 11/ 13/ 2008, which purported sale was a Fraud upon the Public, & was
Wrongful & Fraudulent Conversion of real property, theft of real property, and
they currently falsely & fraudulently Claim that they are the Owner of the Title to
said Home & Property, which has Created an on going Controversy over the Lawful
Title to the said Home & Land, making them a Proper and Necessary Party to this
Action, as the Plaintiffs seek to Enforce a prior Rescission of the alleged Mortgage
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Contract, Loan #: 40824789 Recorded in the office of the Kern County Recorder, &
further seek to Quiet Title Against them in this Action, and seek other specified
Relief & Damages against GMAC MORTGAGE LLC. Said Defendant never signed
any Power of Attorney issued by the Original alleged Lender MortgageIt Inc., &
therefore had no power under law to collect any payments for said alleged Lender,
thus rendering all such alleged actions taken by them on behalf of said alleged Lender
Void Ab Initio, & Ultra Vires, outside of their lawful powers under their Corporate
Charter & the Law of the State of California & the united states of America which they
were bound by Law to obey, & knowingly intentionally, willingly failed to obey to
the detriment of Plaintiffs herein for which they are personally liable to said
Plaintiffs. DEFENDANT GMAC MORTGAGE LLC, BECAME PRIVY TO THE
FRAUD, PROMISSORY FRAUD, & FRAUDULENT INDUCEMENT IN THE
ORIGINAL ALLEGED MORTGAGE CONTRACT WHEN THEY WERE SERVED
BY Star: Hills WITH HER NOTICE OF RESCISSION ON NOVEMBER 7, 2008.
8. DEFENDANT OMAR SOLORZANO IS THE ALLEGED SALES TRUSTEE
EMPLOYED BY DEFENDANT ETS SERVICES LLC, WHO PRESUMED TO
HAVE THE POWER TO SELL THE HOME & PROPERTY OF Star, &
ALLEGED TO HAVE SOLD THE PROPERTY, HOME & LAND OF Star AT
AN ALLEGED PUBLIC SALE ON NOVEMBER 13, 2008, AFTER HE WAS
SERVED WITH A CLEAR NOTICE OF RESCISSION OF THE WHOLE ALLEGED
MORTGAGE CONTRACT PRIOR TO THE DATE OF THE ALLEGED SALE, &
HE IGNORED THE SAID RESCISSION OF THE WHOLE ALLEGED MORTGAGE
CONTRACT WHICH RESCISSION WAS BASED ON PROMISSORY FRAUD, &
FRAUDULENT INDUCEMENT, & HE THEREAFTER RECEIVING THE NOTICE
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OF THE SAID RESCISSION CONTINUED WITH THE PURPORTED SALE &
COMMITTED A WILLING & KNOWING FRAUD ON THE PUBLIC, & ON
PLAINTIFFS HEREIN, WHEREIN ALL HIS ACTIONS WERE ULTRA VIRES, &
VOID AB INITIO, WITHOUT AUTHORITY OR VALIDITY, & OF NO EFFECT
OR VALIDITY WHATSOEVER UNDER LAW, FOR WHICH HE IS LIABLE FOR
ANY & ALL DAMAGES INCURRED BY SAID ULTRA VIRES ACTS. SAID
DEFENDANT NEVER EXECUTED ANY POWER OF ATTORNEY BY WHICH
HE WAS AUTHORIZED BY THE PRINCIPAL TO EXECUTE THE ALLEGED
MORTGAGE FOR THE ALLEGED PRINCIPAL, MORTGAGEIT INC., AND
THEREFORE HIS PURPORTED ACTIONS IN EXECUTING THE MORTGAGE
BY PUBLIC SALE WERE VOID AB INITIO, AS HE WAS NEITHER THE
PRINCIPAL NOR AN ASSIGNEE OF THE MORTGAGE CONTRACT, THE
PROMISSORY NOTE, NOR WAS HE EVER ANY AGENT OF THE ALLEGED
PRINCIPAL, MORTGAGEIT INC., WHICH MAKES HIM PERSONALLY LIABLE
TO PLAINTIFFS FOR ALL DAMAGES DIRECTLY OR PROXIMATELY ARISING
FROM SAID UNLAWFUL ULTRA VIRES ACTS OF SAID DEFENDANT OMAR
SOLORZANO. DEFENDANT OMAR SOLORZANO BECAME PRIVY TO THE
FRAUD, PROMISSORY FRAUD, & FRAUDULENT INDUCEMENT IN THE
ORIGINAL ALLEGED MORTGAGE CONTRACT WHEN HE WAS SERVED
BY Star: Hills WITH HER NOTICE OF RESCISSION ON NOVEMBER 7, 2008.
9. DEFENDANT ETS SERVICES, LLC, is a Licensed Corporate Entity, “Limited
Liability Company”, an Artificial body ORGANIZED FOR PROFIT & WHO
REGULARLY COMMITS FRAUD UPON THE PUBLIC, AS A MATTER OF
POLICY, CUSTOM, HABIT, PATTERN, & PRACTICE, THROUGH their Officers,
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& Employees, WHO FALSELY CLAIM TO HAVE LAWFULLY SOLD THE
SAID “REAL PROPERTY” of Plaintiffs herein, UNDER A CERTAIN ALLEGED
“DEED OF TRUST”, WHICH THEY FALSELY CLAIM AS A FINANCING
INSTRUMENT FOR THE SAID ALLEGED MORTGAGE REFINANCE LOAN #:
40824789 . They presumed to undertake a Fiduciary Contractual Obligation as an
“Agent”, Sale “Trustee” for the alleged Originator of the alleged “Loan”, MortgageIt
Inc., alleged “Lender”, without full authority under Law , as neither said
alleged “Lender”, (who would be the “Principal” in such a relationship), ever
Executed a Proper “Power of Attorney”, as required under Agent -Principal &
Contract Law, under the California Civil Code Sections: 23.2; 2400; 2933; 2295-
2300; 2304-2326; 2330-2339; 2342-2345; 2349-2351; & UNDER CALIFORNIA
PROBATE CODE SECTION 4026 , WHICH OMISSION, BY SAID ALLEGED
“LENDER” MORTGAGEIT INC., & its purported “Agent” “Sale Trustee” “ETS
SERVICES, LLC”, OF RECORDING THE REQUIRED “POWER OF ATTORNEY”
UNDER CALIFORNIA CIVIL CODE SECTION 2295, 2400, 2933, CALIFORNIA
PROBATE CODE SECTION 4026, WITH THE KERN COUNTY RECORDERS
OFFICE RENDERED ANY ALLEGED ACTIONS BY ETS SERVICES AS AN
ALLEGED “AGENT” FOR THE ALLEGED “LENDER ” “MORTGAGEIT INC. ”
VOID AB INITIO, & ULTRA VIRES, OF NO EFFECT OR VALIDITY UNDER
THE LAW OF CALIFORNIA OR THE UNITED STATES OF AMERICA,
ESTABLISHING INJURY, HARM & DAMAGE TO Star, & Alan DUE TO THE
SAID FRAUDULENT “SALE”, WHICH WAS ALSO THEFT & WRONGFUL /
FRAUDULENT CONVERSION OF “REAL PROPERTY” BY “ETS” LLC & “GMAC
MORTGAGE LLC”, FOR WHICH SAID FRAUD, THEFT, ETC., THEY ARE
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LIABLE FOR TREBLE DAMAGES, & EXEMPLARY DAMAGES TO Star & Alan.
SAID DEFENDANT ETS SERVICES LLC, TRESPASSED UPON & VIOLATED
THE PROVISIONS OF THE “DEED OF TRUST”, DOCUMENT #: 0207122159
RECORDED IN THE KERN COUNTY RECORDERS OFFICE ON 6 / 8 / 2007,
WHEN THEY FALSELY CLAIMED THAT THEY WERE THE SALE TRUSTEE
FOR THE LENDER & PURPORTED TO SELL THE SAID PROPERTY AT A
PUBLIC AUCTION ON NOVEMBER, 13, 2008, ACCORDING TO AN ALLEGED
“ SUBSTITUTION OF TRUSTEE ” WHICH IS DOCUMENT #: 0208095769
RECORDED BY THE KERN COUNTY RECORDER ON 6/16/08. SAID ALLEGED
“SUBSTITUTION OF TRUSTEE” DOCUMENT #: 0208095769 RECORDED IN
KERN COUNTY RECORDERS OFFICE ON 6 / 16 / 2008 WAS INVALID AS A
MATTER OF CALIFORNIA LAW AS IT WAS NOT CARRIED OUT &
EXECUTED BY THE LENDER MORTGAGEIT INC., AS EXPRESSLY REQUIRED
BY ARTICLE 24 OF THE DEED OF TRUST, DOCUMENT #: 0207122159 WHICH
ARTICLE 24 EXPRESSLY REQUIRED THAT :
“24. Lender, at its option, may from time to time appoint a successor trustee to any trustee appointed hereunder by an instrument executed and acknowledged by lender and recorded in the office of the Recorder of the county in which the property is located. The instrument shall contain the name of the original lender, trustee and Borrower, the book and page where this security instrument is recorded and the name and address of the successor trustee. Without conveyance of the property, the successor trustee shall succeed to
all the title, powers and duties conferred upon the Trustee herein and by Applicable Law. This procedure for substitution of trustee shall govern to the exclusion of all other provisions for substitution.”
THIS PROVISION IS ALSO COVERED BY CALIFORNIA LAW UNDER
AGENT AGENCY AT CALIFORNIA CIVIL CODE SECTIONS : 2304 & 2305,
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WHICH EXPRESSLY MANDATE: “2304” “ An agent may be authorized to do any
acts which his principal might do, except those to which the latter is bound
to give his personal attention.”
“2305” “Every act which, according to this Code, may be done by or to any
person, may be done by or to the agent of such person for that
purpose, unless a contrary intention clearly appears.”
The alleged Substitution of Trustee Document executed by MERS
Employees is Void of the express Requirement that it be stated therein
the book and page where this security instrument is recorded”. The
“alleged “Substitution of Trustee” purporting to substitute ETS SERVICES
LLC is Void Ab Initio as it is in Violation of the Express provisions of the
alleged deed of trust, and bears no citation as to the “Book and Page”
The alleged Deed of trust is Void Ab Initio as to any alleged Power of
Sale or to collect payments relating to MERS, as MERS was never an
Encumbrancer with ownership rights to the Property of Plaintiffs & has
never had any financial interest or rights in the property, and thus
could not have been lawfully empowered to collect payments or to sell
the property, as is made clear by the provisions of California Civil
Code Section 2932 & 2932.5.
Said Defendants actions in purporting to sell the Home of Plaintiffs herein
for an alleged Mortgage Debt based upon provisions of an alleged deed of
trust, which is a private agreement, can not as a matter of law in
doing so contravene a law established for a public reason as expressly
stated in California Civil Code 3513. No provision in the deed of Trust can be
used by said Defendants to avoid the requirements of California Civil Code
Sections 2920 (definition of a Mortgage) 2932 & 2932.5 (power of sale
requirements; assignment of the power to collect payments; etc. ) Civil Code
Section 2933 (power of attorney must be recorded to execute the mortgage).
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Under the foregoing laws MERS, GMAC MORTGAGE LLC, ETS SERVICES LLC,
HAD NO POWER TO COLLECT PAYMENTS, OR SELL THE PROPERTY OF
PLAINTIFFS UNLESS THEY FIRST COMPLIED WITH THE SAID EXPRESS
PROVISIONS OF MANDATORY CALIFORNIA LAW UNDER CALIFORNIA
CIVIL CODE SECTIONS 2932 & 2932.5, WHICH REQUIRES THAT:
“2932. A power of sale may be conferred by a mortgage upon the mortgagee or any other person, to be exercised after a breach of the obligation for which the mortgage is a security.”
“2932.5. Where a power to sell real property is given to a mortgagee, or other encumbrancer, in an instrument intended to secure the payment of money, the power is part of the security and vests in any person who by assignment becomes entitled to payment of the money secured by the instrument. The power of sale may be exercised by the assignee if the assignment is duly acknowledged and recorded. ”
OTHER APPLICABLE CALIFORNIA CIVIL CODE SECTIONS:
2933. A power of attorney to execute a mortgage must be in writing, subscribed, acknowledged, or proved, certified, and recorded in like manner as powers of attorney for grants of real property.
2934. Any assignment of a mortgage and any assignment of the beneficial interest under a deed of trust may be recorded, and from the time the same is filed for record operates as constructive notice of the contents thereof to all persons; and any instrument by which any mortgage or deed of trust of, lien upon or interest in real property, (or by which any mortgage of, lien upon or interest in personal property a document evidencing or creating which is required or permitted by law to be recorded), is subordinated or waived as to priority may be recorded, and from the time the same is filed for record operates as constructive notice of the contents thereof, to all persons.
1039. Transfer is an act of the parties, or of the law, by which the title to property is conveyed from one living person to another.
1040. A voluntary transfer is an executed contract, subject to all rules of law concerning contracts in general; except that a consideration is not necessary to its validity .]
The alleged “transfer” of the property of Star in the alleged “Deed of Trust” was not
a VALID Transfer of the property in question as the alleged “Trust” was not a “conveyance”
“from one living person to another” as Expressly Required by California Law but was
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purportedly transferred from one living Woman Star: Hills to a Fictitious Person, a
Corporate Entity named “OLD REPUBLIC TITLE COMPANY”, WHICH IS NOT A VALID
TRANSFER OR CONVEYANCE UNDER CALIFORNIA LAW WHICH RENDERED
THE DEED OF TRUST & THE ALLEGED POWER OF SALE & SUBSEQUENT
ALLEGED SALE OF THE PROPERTY & HOME OF Star: Hills VOID AB INITIO.
The alleged “transfer” of the property of Star in the alleged “Deed of Trust” was not a
“Voluntary transfer” due to the Fraud, Promissory fraud, & Fraudulent
inducement alleged herein this complaint, but was accomplished by undue
influence & was the result of an unconscionable Contract as a matter of California
& Federal Law, & was Void Ab Initio. ACCORDING TO THE FOREGOING SAID
PROVISION, CALIFORNIA CIVIL CODE 1039 THE ALLEGED TRANSFER OF TITLE
FROM ETS SERVICES LLC, ALLEGED SALE TRUSTEE UNDER THE ORIGINAL
DEED OF TRUST, OF THE HOME & PROPERTY OF PLAINTIFFS ON NOVEMBER
13, 2008 TO GMAC MORTGAGE, LLC, WAS IN DIRECT VIOLATION OF THE LAW
& IS VOID AB INITIO DUE TO THE FACTS IN THE PUBLIC RECORD IN THE
KERN COUNTY RECORDERS OFFICE THAT THE ALLEGED TRANSFER WAS NOT
FROM ONE “LIVING PERSON” TO “ANOTHER” AS “ETS SERVICES, LLC” &
“GMAC MORTGAGE LLC” ARE FICTITIOUS PERSONS UNDER THE LAW, NOT
“LIVING PERSONS”; THUS THEY ARE INCAPABLE OF TRANSFERRING REAL
PROPERTY UNDER THE LAW OF THE STATE OF CALIFORNIA.
1227. Every instrument, other than a will, affecting an estate in real property, including every charge upon real property, or upon its rents or profits, made with intent to defraud prior or subsequent purchasers thereof, or incumbrancers thereon, is void as against every purchaser or incumbrancer, for value, of the same property, or the rents or profits thereof.
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1228. No instrument is to be avoided under the last section, in favor of a subsequent purchaser or incumbrancer having notice thereof at the time his purchase was made, or his lien acquired, unless the person in whose favor the instrument was made was privy to the fraud intended.
1091. An estate in real property, other than an estate at will or for a term not exceeding one year, can be transferred only by operation of law, or by an instrument in writing, subscribed by the party disposing of the same, or by his agent thereunto authorized by writing.
1217. An unrecorded instrument is valid as between the parties thereto and those who have notice thereof.
According to this provision, Civil Code Section 1217, the Notice of Rescission
served on the defendants prior to the sale, but not recorded, was valid & rendered
the alleged Sale & Purchase of the property of Star thereafter, Void Ab Initio.
1215. The term "conveyance," as used in Sections 1213 and 1214, embraces every instrument in writing by which any estate or interest in real property is created, aliened, mortgaged, or incumbered, or by which the title to any real property may be affected, except wills.
2920. (a) A mortgage is a contract by which specific property, including an estate for years in real property, is hypothecated for the performance of an act, without the necessity of a change of possession. (b) For purposes of Sections 2924 to 2924h, inclusive, "mortgage" also means any security device or instrument, other than a deed of trust, that confers a power of sale affecting real property or an estate for years therein, to be exercised after breach of the obligation so secured, including a real property sales contract, as defined in Section 2985, which contains such a provision.
2922. A mortgage can be created, renewed, or extended, only by writing, executed with the formalities required in the case of a grant of real property.]
DEFENDANT ETS SERVICES LLC, BECAME PRIVY TO THE FRAUD, THE
PROMISSORY FRAUD, & FRAUDULENT INDUCEMENT IN THE ORIGINAL
ALLEGED MORTGAGE CONTRACT WHEN THEY WERE SERVED BY Star: Hills
WITH HER NOTICE OF RESCISSION ON NOVEMBER 7, 2008.
11. Said Defendants are subject to the laws of the De-Facto State of California, & the
Jurisdiction of this Court.
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12. Does are Licensed Corporate Entities, Artificial bodies, their Officers, & Employees,
contractors, Agents, Successors heirs & assigns of named Defendants who helped,
assisted or perpetrated the acts alleged in the complaint, whose true Names &
identities are not known to Plaintiffs. Plaintiffs will amend the complaint with the
true Names & Identities of said Doe Defendants when they are discovered by Plaintiffs.
JURISDICTION13. The above named Court has Jurisdiction to issue Judgment against the Defendants
in this Action pursuant to the provisions of California Constitution Article 6,
Sections 1-22, and California Civil Code Sections 1688-1693, for Enforcement of
Rescission & California Civil Code Sections: 1709-1710 for Deceit, Sections 1572-1573
for Fraud, & Constructive fraud, Section 1714 for Negligence, & in other provisions of
the California Civil Code, & the Code of Civil Procedure for Wrongful Conversion,
breach of Trust, Breach of Fiduciary, Breach of Contract & Quiet Title; Declaratory
Judgment; Injunctive Relief, Etc., and pursuant to the facts that the home and
property of Star & Alan is located on the land Commonly described as: “ 3018
Linden Avenue, near: [Bakersfield, California], on the De Jure Kern: county,
California: the land, and the Defendants Perpetrated the Acts alleged in the
Complaint within Kern: county, California: the land, and the Defendants conduct
Business within the De-Facto County of Kern, State of California.
INCORPORATION BY REFERENCE
Plaintiffs hereby Incorporate by Reference as if fully set forth herein all the contents
of the previously served Novation Offer to MortgageIt Inc. of Star: Hills & the Notice of
Status previously served to all State Federal & Local Government Agencies of Star: Hills,
& the Rescission of the whole alleged Mortgage contract which WERE attached
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as Exhibits 3 & 4, TO THE FIRST VERIFIED COMPLAINT and are made a part
hereof this complaint. Plaintiffs further hereby incorporate by reference as if fully
set forth the contents of all Exhibits attached hereto this complaint, which are
hereby made a part of this Complaint, & further hereby Request that the Court
take Mandatory Judicial Notice of the contents of said Exhibits pursuant to the
Express provisions of California Evidence Code Section 451-459.
CHRONOLOGY OF EVENTS
14. In late February 2007, a person from United Vision Financial who was believed to be a
Broker at the time, made a telephone call to Stars, by the First name of Baron, who
made a verbal offer of a 1 % Per cent Interest Rate, and to cut her Mortgage Payments
in half , waive any prepayment penalty, & stated that these terms would be fixed and would
never change. Baron also stated that every five years there was a ‘roll over period’ of some
kind, but that these were fixed payment amounts and percentages and they would
not increase, ever. At that time Star’s payments had been about 1300-1400 a month
for the previous year, (2006-2007), and about $800 the year before that (2005-2006),
and in that previous year Star had paid an extra amount of about $132 per month
‘principle only’ to bring the principle down; but the principle amount had barely
changed in 2 years, after paying thousands of dollars in addition to fees and penalties.
15. When Star asked Baron “what is the catch?”, because she had never heard of such a
low interest rate Baron, said that he could “Pull Strings” and he only talked about
predatory lenders and how they scam people, but he was an honest man to warn her of
these criminals and assured her that he was not one of them. Baron gave Star his private
cell phone number and Star called it to make sure it was his, and it was. After Baron
called Star about ten (10) more times, over a 2 & 1/2 month time period, he won the trust
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of Star. Baron, said he had appraisers and he would send over one who would appraise
the house & said it had probably gone up in value and they would lend her up to the full
amount of the appraisal which they sent and later told Star it was appraised at around
280,000 dollars.
16. The said Agent, Baron, said that he could “Pull Strings” when Star told him that She
had no provable income and was not a ‘taxpayer’, AND FURTHER STATED THAT
ALL SHE NEEDED WAS A “Voucher”, and that it could be anyone, even someone who
works at a gas station with a tax I.D. Star provided Baron with two people that she had
done ‘free’ research and volunteer work for, but they did not qualify with the banks,
however the third one did. Baron called Star on May 16 th , 2007 and he told her that the
credit check process was about to expire and would roll over to a new period, and that if
she did provide a voucher, and if she did not sign an agreement before 5 pm on May
17 th 2007, that she would have to start the entire credit check process over again, and
that this process would take an additional month or two, and he informed her that 2
banks had already denied her and that this was the third bank and they had been
talking for over two months already, and that she really needed to wrap this up because
her credit score was lower than before and she may not qualify at all if it goes to
another check period. Thereafter when Star asked Baron if She could cut her
payments in half and get the 1 % and everything else he had offered if she decided not
to take any more money Baron said she could, but then offered her an $ 11,000 loan,
representing to her that it would not change her payments much, which influenced her
into taking the loan. Baron rushed Star into signing a deal and took advantage of her
vulnerable situation wherein he gathered that she was financially struggling to manage,
care for and maintain two homes, a boat, two vehicles, including insurance property
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taxes, upkeep and maintenance, while suffering from bad health which caused her to
lose an extreme amount of weight from 150 pounds down to 108 pounds on a 5’ 9’
frame. In the face of this he stated that he guaranteed that everything would reflect
what he had stated including waiver of pre payment penalties, 1 % per cent Interest
rate that was a fixed rate, and monthly payments to be cut in half, never to increase.
17. Baron sent a notary to Star’s home who he said would explain the terms of the contract
to her fully, but when the notary arrived at Star’s home with the papers to sign, she was
unable to explain anything contained in them. Star questioned the notary about the
meaning of the contract & expressed to the notary that it did not appear to reflect the
pre-payment waiver that Baron had promised, and asked her if the language contained
in it meant what Baron claimed it meant, but the notary did not understand the meaning
of the contract and could not explain it to her. Star called Baron immediately with the
notary present and asked him to explain it to Star so that the notary could be a witness
to the offer he was making and explain to both of them that the contract he gave the
notary to have Star sign, reflected that offer correctly. Baron claimed that the papers he
had sent with the notary were just a standard form and due to the roll over credit check
period, that he didn’t have time to type it all up correctly, and because Star took months
to decide that time was now running out. But he assured Star that he would correct it to
reflect the exact proposal he had made as fore-mentioned, before sending it to the bank,
and that he would send the notary back for Star to sign off on the changes he would
make later that day. Due to the time running out as asserted by Baron, Star could
not read all of the papers brought to her by the Notary, which were approximately an
inch thick with legal sized sheets. In addition there was no time to consult an attorney
for advice, and Baron knew that there was no attorney present to assist Star with
understanding the documents presented to her by the Notary sent by Baron to her home.
Believing that Baron was telling her the truth, Star signed these papers, and
later that day the Notary came back with a one page paper that ‘appeared’ to correct the
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pre payment mistake, although Star did not fully understand the meaning of other
language in the contract, she was coerced and rushed by the Notary.
Note: The Notary was about 8 months pregnant and when she came back with the
alleged corrections for Star to sign off on, she had a small child left in her warm car and
did not come inside Star’s house but instead she rushed Star for a signature while also
claiming that she was late for another appointment concerning her child, and again the
notary could not explain the changes or the meaning of the language contained in the
addendum. Star was never given any opportunity to have the alleged contract reviewed
by Counsel or a lawyer, which Baron was aware of at the time. The said alleged contract
Void ab Initio as an Unconscionable contract in fact, not what was actually represented
to Star by Baron, though not understood as such by Star at the time she was pressured
into signing it by Baron & the Notary he sent to her home.
18. United Vision Financial & Baron DiGiandomenico falsified the loan application form in
Violation of State and Federal Laws wherein they falsely, knowingly, willingly,
fraudulently lied on the form where it requests the name of the person who interviewed
the borrower and the date of the alleged interview. On the loan application it states that
the interview was conducted on May 1, 2007, and further states that the person
conducting the interview by telephone of Star was Dan Michaels when in fact
they knew that Dan Michaels never once spoke to Star regarding the proposed
Mortgage Refinance Loan, and that in fact there were many telephone calls over a two
month period made by agent and loan consultant Baron DiGiandomenico to Star
by whereby said defendant was attempting to convince Star to accept the proposed
loan using tactics of undue influence and rushing her to sign at the last minute
with the threat that if she did not sign she could lose the loan due to a lower credit rating.
19. The foregoing falsification of the loan application rendered the alleged Transaction of
May 17, 2007 void Ab Initio Rendering any alleged Foreclosure and Sale of home and
property also Null and Void Ab Initio, of no effect and unenforceable as a matter of law.
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see Exhibit # 2 a copy of falsified Loan Application, attached hereto this Complaint,
which is hereby Incorporated herein by reference and is made a part hereof of this
Complaint.
20. One month afterward Star received a call from GMAC bank, and during that call Star
requested a true signed copy of the contract by both parties and a copy of the appraisal
which Star had paid for. They promised to send it right away, but still to this day Star
never received either document. Within 30 days Star also received a notice of Interest
Rate Change which appeared to say the interest was going up higher than what she had
ever paid in the past, and appeared to say her payments would triple. Star was outraged
and called Baron immediately to ask him how this could change when he promised her
it was fixed at one percent and the payments would never increase. Baron said to Star,
"Oh they always do that, it means nothing, I will fix it, fax me the paper and ill take
care of it, do not worry, don't panic, it's nothing" Star tried to fax the letter to Baron
but the fax did not go through. Star called him again, and he said he was having trouble
with his fax, and gave her a second fax number, which also failed. Star attempted to call
Baron several more times over a period of the next two months but could not reach him,
and she left messages on a voice mail and with the operator at United Vision Financial,
but her calls were never returned. She finally came across Barons private cell phone
number which she had misplaced, and a man answered and said that she had a wrong
number. Star checked the number and it was the same one she had reached Baron on
only a couple of months prior. Star called GMAC and told them the agreement was not
what she had been promised as Baron had explained to her, but they just told her that
she signed it and there was nothing they could do.
21. After making payments to GMAC throughout the next year, 2007-2008, Star kept
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receiving higher interest rate change notices every month, and the principle owed kept
going up every month. She saw that the principle was only going up, and she was only
paying interest and never making a dent in the principle. Since these events Star has
received interest Rate changes up to nearly 9 % every single Month, and the loan
amount kept going up every month from $ 211,000 Dollars $ 245, 141.53 which is the
amount that was on the Notice of Sale taped to her door in October of 2008.
The bills she received from GMAC reflected that she owed MORE than she had ever
allegedly borrowed, even after faithfully paying thousands upon thousands for 3 years.
Finally Star sent GMAC a letter offering to accept their claim upon proof of such claim,
and to send her proof of the note signed by both parties. She sent a check with an offer
that by cashing the check, GMAC had closed the old account number and agreed to make
a new account number, and a new agreement that upon proof of claim Star would pay.
GMAC cashed the check agreeing to the terms of her offer.
22. Based UPON THE FOREGOING INTENTIONAL Misrepresentation, Deceit, Fraud,
Promissory Fraud, fraudulent Inducement, Breach of Contract, Breach of Fiduciary,
Intentional Concealment, undue influence, etc., Star Hills stopped payments on the
alleged Mortgage debt, and thereafter demanded in writing proof of their claim against
her, a copy of the Original Contract, Property Appraisal, and the Note which the
Claim was based upon.
23. The demands for proof of claim, and a copy of the original Contract, Appraisal of the
Property, and the Original Note have never been complied with by anyone.
24. Plaintiff only recently after the foregoing stated events, became aware of some facts and
law which she was not aware of at the time she was approached over the telephone by the
Defendants. Article I Section 10 of the Federal Constitution mandates that no state
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shall make anything other than Gold or Silver coin a tender in payment of Debts, and it
says much more than that. Plaintiff incorporates all the federal constitutional
provisions under said Article 1, Section 10 herein this complaint as if fully set forth.
25. Plaintiffs herein are Christians whose faith lies in the ancient Scriptures set out in the
Holy Bible, and particular to these circumstances are the following scriptures: Leviticus
19: 37, and Deuteronomy 25:15, which Star hereby incorporates herein this Complaint by
reference as if fully set forth herein and requests the court to take Judicial Notice of
pursuant to California Evidence Code Section 451-453 Et Sequiter.
ALLEGATIONS AGAINST DEFENDANT GMAC MORTGAGE LLC; PRESIDENT NICK CANALE Jr; VICE PRESIDENT Charles R. Hoecker
-------------------------------------------------------------------------------------------------------------
INCORPORATION BY REFERENCE
THE FOREGOING FACTS & ALLEGATIONS ARE HEREBY INCORPORATED
HEREIN BY REFERENCE AS IF FULLY SET FORTH.
ALL DEFENDANTS NAMED HEREIN BECAME PRIVY TO THE FRAUD, THE
PROMISSORY FRAUD, & FRAUDULENT INDUCEMENT IN THE ORIGINAL
ALLEGED MORTGAGE CONTRACT WHEN THEY WERE SERVED BY Star: Hills
WITH HER NOTICE OF RESCISSION ON NOVEMBER 7, 2008.
26. Defendant GMAC MORTGAGE, LLC A FOREIGN CORPORATION, THAT IS
INCORPORATED IN THE STATE OF DELAWARE, & named Defendants President
NICK CANALE Jr & Vice President CHARLES HOECKER had a Prearranged Contract
Agreement with the Lender MortgageIt Inc. of New York, prior to the May 17, 2007
Transaction & Signing of the alleged Mortgage Refinance Contract by Star: Hills,
UNDER WHICH SAID SECRET AGREEMENT SAID PARTIES AGREED TO
OPERATE UNDER PRIVATE POLICIES & BUSINESS PRACTICES BY WHICH
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THEY WOULD KNOWINGLY INTENTIONALLY & WILLINGLY VIOLATE &
BREACH THE LAWS OF THE STATE OF CALIFORNIA & OTHER STATES
REGARDING THE LAWS OF PRINCIPAL & AGENT, AGENT & AGENCY, AS
WELL AS BREACH & VIOLATE THE CALIFORNIA UNIFORM COMMERCIAL
CODE SECTION 3309(b), WHICH MANDATES "(b) A person seeking enforcement of
an instrument under subdivision (a) shall prove the terms of the instrument and the
person's right to enforce the instrument."
SAID DEFENDANTS VIOLATED CALIFORNIA COMMERCIAL CODE SECTION
3501. (a) , WHICH MANDATES: "Presentment" means a demand made by or on
behalf of a person entitled to enforce an instrument (1) to pay the instrument
made to the drawee or a party obliged to pay the instrument or, in the case of a
note or accepted draft payable at a bank, to the bank, or (2) to accept a draft made
to the drawee.” AND VIOLATED THE PROVISIONS UNDER " (1) Presentment may
be made at the place of payment of the instrument and shall be made at the place
of payment if the instrument is payable at a bank in the United States; may be
made by any commercially reasonable means, including an oral, written, or electronic
communication; is effective when the demand for payment or acceptance is received
by the person to whom presentment is made; and is effective if made to any one
of two or more makers, acceptors, drawees, or other payors. (2) Upon demand of the
person to whom presentment is made, the person making presentment shall (A) exhibit
the instrument, (B) give reasonable identification and, if presentment is made on
behalf of another person, reasonable evidence of authority to do so, and (C) sign a
receipt on the instrument for any payment made or surrender the instrument if full
payment is made. (3) Without dishonoring the instrument, the party to whom
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presentment is made may (A) return the instrument for lack of a necessary
endorsement, or (B) refuse payment or acceptance for failure of the presentment
to comply with the terms of the instrument, an agreement of the parties, or other
applicable law or rule."
ALL OF WHICH PROVISIONS THEY WERE BOUND TO OBEY AS A
MATTER OF THE LAWS OF THE STATE OF CALIFORNIA.
The said Contractual Relationship was KNOWINGLY, WILLINGLY, INTENTIONALLY
kept Secret and not Fully Disclosed to Star. Said Parties & named Defendants
intentionally kept Plaintiffs in the dark concerning said Prior Arrangement & the said
Secrecy was a Fraud, Breach of Trust, & Breach of Fiduciary from the start, with the
intention of Violating & Breaching the alleged “Mortgage Contract” from the start.
Said Secret arrangement was a Conspiracy from the start between said Parties, with
the Motive, Design, Purpose & Intent to Breach the alleged Contract, Breach the Trust,
Breach the Fiduciary Duty they owed to Star, Violate the express Laws of the State
of California Regarding the Law of Principal & Agent, & Agency, & to Violate the
Laws of Contracts, & to use Fraud, Deceit, and Constructive Fraud to steal her home
and commit wrongful, Unlawful, fraudulent Conversion of her personal property, &
the Title to her Home & Property. The said Baron DiGiandomenico & Defendant
Charles R. Hoecker, Vice President CUSTOMER CARE LOAN SERVICING FOR
GMAC MORTGAGE, LLC & other unknown Doe Defendants entered into the said
Conspiracy prior to the Date of May 17, 2007 for said Purposes, & thereafter took
specific overt steps to further the said Secret agreement & Conspiracy such as
Concealing the truth of the agreement from Star, Intentionally misrepresenting the
Article 10 waiver in the alleged original Promissory Note by knowingly, intentionally
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mis-defining the meaning of the terms therein the article 10 waiver, & intentionally failing
to comply with the Laws of Agent-Agency, Principal-Agent in the California Civil Code
& Probate Code, in Civil Code Sections 23.2; 2400; 2933; 2295-2300; 2304-2326 ; 2330-
2339; 2342-2345; 2349-2351; CALIFORNIA PROBATE CODE SECTION 4026 ; as well
as the Mortgage laws of California under Civil Code Sections 2932 & 2932.5; 3439;
& express provisions of the California uniform commercial code Requiring presentment of
the Original alleged Promissory Note the alleged debt was based upon, Etc., & other express
provisions set out herein this Complaint.
27. Each of said Co Conspirators, Defendants GMAC MORTGAGE, LLC, PRESIDENT
NICK CANALE Jr & VICE PRESIDENT Charles R. Hoecker had a MORTGAGE
BROKERS LICENSE & Owed a Fiduciary Duty to Star: Hills, their alleged Client,
& Customer, from the time of their Entry into the Conspiracy to the present, and still Owe
said Duty which includes the Duty of Full Disclosure of all facts & Knowledge in their
Possession which Effect or Affect the Rights & Interests of Star relating to the alleged
Transaction of May 17, 2007, & the Actual Transaction Prior to May 17, 2007, which
secretly took place without her knowledge or Consent, to the present, and on going into
the future, forward until full payment, compensation, Remedy, Judgment & Justice is
obtained by Star. Since these events the following events have occurred by the willful
actions of said Defendants which have added to the Injuries & Damages of Star & Alan
herein:
The SAID DEFENDANTS have committed a fraud upon this Court & upon Star: Hills
IN A PREVIOUS ACTION KERN COUNTY SUPERIOR COURT CIVIL ACTION #:
S-1500-CL -237061-LHB, wherein they falsely claimed to have posted a summons on
the premises of Star on April 13, 2009, and falsified a proof of service which they
presented to the Court Clerk for filing on May 1, 2009, in Violation of Local Rules of
Court Rule 3.17.2(d ) which required it to be filed within ten (10) days of
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issuance of the Order of April 9, 2009, which was April 19, 2009, committing fraud,
forgery and perjury under the laws of the state of California and a Felony under
California penal code sections 118, 115 ; which Caused the Said Court Clerk to enter
Clerks Default & Clerks Default Judgment, which Star did not become aware of until
around May 12, 2009, which caught Star by Surprise, as no Summons was ever posted
by said Defendants on her said premises, & Star never received any actual Notice
from the alleged Service by Posting & Mailing, having not received it in the mail
from the said Defendants either; any failure to file an answer to the alleged
complaint, was Excusable Neglect as Star was never aware of any such Posting or
Mailing having never actually received any such copy of a Summons & Complaint
FROM SAID Plaintiff GMAC MORTGAGE LLC; SAID ILLEGAL UNLAWFUL ACTS
OCCURRED AFTER SAID DEFENDANTS FILED TWO CONSECUTIVE LAW SUITS
AGAINST Star: Hills IN KERN COUNTY SUPERIOR COURT #’s S-1500-CL-236547-
SMK; S-1500 –CL-237061-LHB; THE SAID FRAUDULENT FILINGS & CRIMINAL
ACTS WERE AN ABUSE OF PROCESS UNDER THE LAWS OF THE STATE OF
CALIFORNIA FOR WHICH SAID DEFENDANTS ARE LIABLE TO Star: Hills
HEREIN FOR ANY & ALL INJURIES & DAMAGES ARISING THERE FROM &
FOR PUNITIVE OR EXEMPLARY DAMAGES FOR THE FRAUD WHICH WAS
UNDERTAKEN WITH THE RECKLESS WONTON INTENT TO DO INJURY &
DAMAGE TO Star; WHEN THEY KNEW, SHOULD HAVE KNOWN, AND HAD A
DUTY TO KNOW THAT THEY HAD NO STANDING & NO RIGHT UNDER THE
LAW OF THE STATE OF CALIFORNIA TO FILE SAID ACTIONS BECAUSE
THEY DID NOT HAVE A PERFECTED TITLE AT THE TIME, AS THERE
WAS LITIGATION OVER THE TITLE IN QUESTION ALREADY FILED IN
THE COURT #: S-1500-CV-265552-WDP, Star: Hills VS GMAC MORTGAGE, ET AL,
WHICH PRECLUDED ANY PERFECTING OF THEIR ALLEGED
TITLE AS SET FORTH IN CALIFORNIA SUPREME COURT RULINGS
IN THE CASES OF:
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SHEEHY VS MILES (1892) 93 CAL. 288,292; CITING TURNER VS McDONALD,76 CAL 177; HOCKING VS TITLE INS. &TRUST CO.(1951) 37 C.2d 644 AT PAGE 649 CITED BY THE SUPERIOR COURT IN THE CASE OF KESSLER VS BRIDGE (1958) 161 C.A. 2d Supp 837.
THE ALLEGED TITLE CLAIMED BY PLAINTIFF WAS NOT EVER PERFECTED
AS REQUIRED BY C.C.P. SECTION 1161a WHICH EXPRESSLY STATES THAT:
“1161a” “3. Where the property has been duly sold in accordance with Section 2924 of the Civil Code, under a power of sale contained in a deed of trust executed by him, or a person under whom he claims , and the title under the sale has been duly perfected. ”
The Foregoing express Statutory language was a Mandatory Pre Requisite, Express
Pre Condition placed upon the statutory privilege of filing an “Unlawful Detainer”
Action in Court, which is a Special Proceeding of a Civil Nature, & merely a
“Cumulative Remedy” created by the State Legislature in 1934, in addition to the
Judicial Remedy of a Judicial Foreclosure Suit which has existed in California since
1872, & which is Required without exception to be fulfilled prior to the filing of
any Complaint for Unlawful Detainer , which must be fulfilled prior to the filing of any such Complaint in order to obtain the Required Standing & Right to File the Unlawful Detainer Action.
Said DEFENDANTS ARE CHARGED WITH KNOWLEDGE OF THE LAW OF
THE STATE OF CALIFORNIA WHERE THEY OPERATE THEREIN UNDER
A CORPORATE LICENSE & PRIVILEGE, NOT BY SUPERIOR RIGHT, & ARE
REQUIRED TO ADHERE TO THE RULINGS OF THE CALIFORNIA SUPREME
COURT INCLUDING THE RULINGS BY THE HIGH COURT REGARDING THE
DEFINITION & MEANING OF PERFECTION OF TITLE IN: SHEEHY VS MILES
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(1892) 93 CAL. 288, 292; CITING TURNER VS McDONALD, 76 CAL 177; AS WELL AS
HOCKING VS TITLE INS. & TRUST CO. (1951) 37 C. 2d 644 AT PAGE 649 CITED
BY THE SUPERIOR COURT IN THE CASE OF KESSLER VS BRIDGE (1958) 161
C.A. 2d Supp 837. “A PERFECT TITLE MUST BE ONE THAT IS GOOD AND VALID BEYOND ALL REASONABLE DOUBT” “TITLE TO BE GOOD, SHOULD BE FREE FROM LITIGATION, PALPABLE DEFECTS, AND GRAVE DOUBTS, SHOULD CONSIST OF BOTH LEGAL AND EQUITABLE TITLES, AND SHOULD BE FAIRLY DEDUCIBLE OF RECORD.” ..”” “A TITLE TO BE GOOD MUST BE GOOD SHOULD BE FREE FROM LITIGATION, PALPABLE DEFECTS, AND GRAVE DOUBTS, SHOULD CONSIST OF BOTH LEGAL AND EQUITABLE TITLES, AND SHOULD BE FAIRLY DEDUCIBLE OF RECORD.”
SHEEHY VS MILES (1892) 93 CAL. 288,292; CITING TURNER VS McDONALD,76 CAL 177; HOCKING VS TITLE INS. &TRUST CO.(1951) 37 C.2d 644 AT PAGE 649 CITED BY THE SUPERIOR COURT IN THE CASE OF KESSLER VS BRIDGE (1958) 161 C.A. 2d Supp 837.
THE TERM “DULY” “IMPLIES THAT ALL THOSE ELEMENTS NECESSARY TO VALID SALE EXIST.” KESSLER VS BRIDGE (1958) 161 C.A. 2d Supp 837, SUPRA.
“TITLE IS DULY PERFECTED WHEN ALL STEPS HAVE BEEN TAKEN TO MAKE IT PERFECT, THAT IS ,TO CONVEY TO PURCHASER THAT WHICH HE PURCHASED, VALID AND GOOD BEYOND ALL REASONABLE DOUBT.” KESSLER VS BRIDGE (1958) 161 C.A. 2d Supp 837, SUPRA.
UNJUST ENRICHMENT
Said Defendants GMAC MORTGAGE LLC; PRESIDENT NICK CANALE Jr; VICE
PRESIDENT CHARLES R. HOECKER, RECEIVED CASH COMPENSATION FROM
THEIR INSURANCE POLICIES & INSURANCE CARRIER UPON THEIR
FRAUDULENT DECLARATION OF DEFAULT ON THE ALLEGED MORTGAGE
& OBTAINED FURTHER FINANCIAL COMPENSATION BY SELLING THE NOTE
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IN BINDLES ON THE OPEN MARKET IN CONCERT WITH THE ALLEGED
LENDER MORTGAGEIT INC., IN ADDITION TO OBTAINING THE SAID
PROPERTY BY FRAUD, CONSTRUCTIVE FRAUD, DECEIT, ETC., WHICH
CONSTITUTES UNJUST ENRICHMENT FOR WHICH THEY ARE LIABLE TO
Star: Hills.
INVOLUNTARY TRUST
28. Based upon the foregoing said Conspiracy between the said Defendants & third parties
there was an Involuntary Trust Created at the Inception of said Unlawful Illegal
Conspiracy, under which Involuntary Trust said Parties were bound as Trustees of all
Personal Property of Star: Hills which came into their possession after entering into said
Conspiracy, including but not limited to Credits, Monies, Payments, including any
late fees and Penalties, Prepayment Fees, Title or hazard Insurance fees, Service Fees,
Processing Fees, Broker Fees, Servicing Fees, etc., and her Home & Land, as well as the
Legal, Lawful, Equitable Title & Actual Title to said Home & Property, Pursuant to
the Laws of the State of California, as expressly set forth under California Civil
Code Section 2223 & 2224, and California Civil Code, Section 3439, under Title 1,
California Uniform Fraudulent Transfer Act. All the said Personal Property are owed
by all said Defendants to Star: Hills & Alan Gjurovich & payable by said Defendants
under the said Involuntary Trust as a matter of Law under the Laws of the State of
California.
29. At the time of the alleged Mortgage Refinance Loan Transaction of May 17, 2007
said Defendant GMAC MORTGAGE LLC became a TRUSTEE & undertook a binding
Fiduciary Obligation of full Disclosure & Fair Dealing with Star: Hills under the Laws
of Contract under the Laws of the State of California, and they had previously agreed
to do this with Mortgage Loan Contractor, Defendant United Vision Financial, and
Lender MortgageIt Inc., having had an on going professional business Relationship with
United Vision Financial. DEFENDANT GMAC Owed a Fiduciary Duty to Star: Hills
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upon entering into said alleged Contract. Defendant GMAC MORTGAGE Promised,
by their Contracting with UNITED VISION FINANCIAL & Star: Hills that they would
Comply with & Obey all laws of the State of California, and they never intended to do
so, committing Fraud, Constructive Fraud, Deceit Breach of Trust & Breach of Fiduciary
upon Star from the outset, Violating their Fiduciary Duty Owed to Star, & breaching the
Contract between her, United Vision Financial, & the Lender Contracted by United
Vision Financial, MortgageIt Inc. & GMAC MORTGAGE.
GMAC MORTGAGE LLC Violated the laws of Interest and Usury of the State of
California, and Violated the alleged Refinance Mortgage Loan Contract, which allows
only the “Holder of the Note” to make any interest Rate changes or increases, and
GMAC was never the “Holder of the Note”. See Exhibits 2 , Attached hereto this
Complaint which is hereby Incorporated by Reference as if fully set forth herein, and
is made a part of this complaint, which Plaintiff Requests the Court to take Judicial
Notice of Pursuant to the Provisions of California Evidence Code Sections 451-453,
Et Sequiter. The said Fraud was Premeditated, Intentional, Willing, & Knowing, with
Intent to Cause Injury & Harm to Star, which makes them Liable to Star for
Exemplary or Punitive Damages, as Determined by a Jury.
NO STANDING UNDER THE NOTE; BREACH OF THE TERMS OF THE NOTE;
VOID DEED OF TRUST; NO ASSIGNMENT OF THE POWER TO COLLECT PAYMENTS
OR THE POWER OF SALE--------------------------------------------------------------------------------------------------
30. GMAC Mortgage LLC, & PRESIDENT JOHN DOE, VICE PRESIDENT CHARLES
HOECKER unlawfully changed and increased the interest Rate on the Note
on numerous occasions based on their own Calculations. GMAC had no Lawful
Standing, Right, or Authorization to Calculate Interest Rate Changes or Increases,
under the terms of the note nor to bill Star for any Interest Rate increases or
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changes as they never held the note at the time they purported to make
interest rate changes and increases, as only the "note holder" had the Right
under the terms of the alleged contract and promissory Note to Calculate
any changes in the interest rate. See the said Mortgage Contract Deed of trust
and Note in Exhibits attached hereto which are hereby Incorporated into this complaint
by reference as if fully set forth, & are made a part hereof this complaint which
plaintiff hereby requests the Court take Judicial Notice of under the express
provisions of California Evidence Code Section 451-453 Et Sequiter. Based upon the
foregoing all the interest Rate increased and changes by GMAC Mortgage are Null
and Void Ab Initio and unenforceable by GMAC Mortgage in this case, and also
constitute a Breach of the terms of the Note by said Defendant GMAC MORTGAGE LLC
& NAMED DEFENDANTS JOHN DOE PRESIDENT OF GMAC MORTGAGE LLC,
& CHARLES HOECKER VICE PRESIDENT OF GMAC MORTGAGE LLC, FOR
WHICH THEY ARE JOINTLY & SEVERALLY LIABLE TO Star. The clear fact in
the Record in the Kern County Recorders Office that no Assignment of the Power to
Collect Payments was ever executed by the Alleged Lender MORTGAGEIT INC.,
TO SAID DEFENDANTS GMAC MORTGAGE LLC, PRESIDENT JOHN DOE, VICE
PRESIDENT CHARLES HOECKER, MERS, OR ORIGINAL TRUSTEE FREMONT
RENDER THE SAID ALLEGED DEED OF TRUST PROVISIONS ALLEGING ANY
POWER OF SALE TO ALLEGED “NOMINAL BENEFICIARY MERS VOID AB
INTIO, & ANY PURPORTED SUBSTITUTION OF TRUSTEE BY MERS TO ETS
SERVICES LLC ALSO VOID AB INITIO, WHICH RENDERED ANY ALLEGED
SUBSEQUENT SALE & PURCHASE BY ETS SERVICES LLC & GMAC
MORTGAGE LLC VOID AB INTIO, & THE ALLEGED DEED UPON SALE
CLAIMED BY GMAC MORTGAGE LLC VOID AB INITIO, OF NO EFFECT OR
FORCE UNDER LAW.
31. Defendant GMAC MORTGAGE had no Lawful Standing, Right, or Authorization to
Institute Foreclosure proceedings under the Note, they had no Right of Enforcement, and
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as they were never the Lender or the Holder of the Note and only the "Holder of the
Note" had any Right or Standing under the terms of the Contract and the Note and
under the Law of the State of California to enforce the alleged Mortgage Refinance
Contract and the terms of the Note. Their Actions in purporting to do so were Fraud
& unlawful and wrongful Conversion of the Title to Home and property of Star and
theft of the same. All said Actions of GMAC MORTGAGE LLC are Void Ab Initio &
have no validity or effect whatsoever under the Law. Star is Entitled to a
Reconveyance of the Title to her home and Property and the Return of all Credit,
Monies, Penalties, Fees, Interest, & Payments made or wrongfully taken under the
Fraudulent alleged Refinanced Mortgage Contract.
UNDUE INFLUENCE; FRAUD; PROMISSORY FRAUD;FRAUDULENT INDUCEMENT; UNCONSCIONABLE CONTRACT
CONCEALMENT OF TRUE TERMS; NO FULL DISCLOSURE& NO MEETING OF THE MINDS
------------------------------------------------------------------------------------------
32. None of Defendants GMAC MORTGAGE LLC, ET AL ; NOR UNITED VISION
FINANCIAL; Baron DiGiandomenico; nor the Lender MORTGAGEIT INC., ever
informed Star that this Contract was for a purchase of Credit, with Usury and
Interest added to the price of the purchase. Star only recently discovered this after going
through the papers left with her by UNITED VISION FINANCIAL via Baron's Notary
Public. Star was previously under the false & mistaken Notion or Impression that she
was being Loaned Cash Money by the Lender. Based upon all the foregoing the alleged
Loan and Note is Void Ab Initio as there was never the full disclosure to Star of the
true meaning and terms of the Contract by Baron or any of the Defendants when she
asked for an explanation of the meaning of the papers she was signing, which signing
was done under Undue Influence of Baron and the Notary as set forth previously,
which undue influence was exerted upon Star BY Baron FOR THE ILLEGAL
UNLAWFUL PURPOSES OF ENGAGING Star IN AN UNCONSCIONABLE
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CONTRACT IN WHICH THE TRUE TERMS WERE NOT DISCLOSED TO HER,
& BY FRAUDULENT INDUCEMENT THROUGH PROMISSORY FRAUD, WITH
KNOWLEDGE THAT Star HAD NO ASSISTANCE OF COUNSEL TO REVIEW
THE LANGUAGE IN THE ALLEGED CONTRACT TO DETERMINE IF IT WAS
WHAT SHE HAD AGREED TO PREVIOUSLY WITH Baron, WHICH WAS ABOUT
AN INCH THICK LEGAL SIZED. Star WAS NOT GIVEN ANY TIME TO READ
THE SAID PAPERS BEING TOLD BY Baron THAT IF She DID NOT SIGN THEN
& THERE THAT She HAD A REAL CHANCE OF LOSING THE LOAN BASED
ON A LOWER CREDIT RATING WHICH WAS A THREAT OF CIRCUMSTANCES
BEYOND HER POWER & CONTROL TO CHANGE, AVOID, OR PREVENT, AND
HAD A COERCIVE EFFECT ON Star, WITHOUT WHICH SHE WOULD NOT
HAVE SIGNED THE PAPERS & THERE WOULD HAVE BEEN NO ALLEGED
CONTRACT AT THAT TIME ON MAY 17, 2007. UNDER THESE FACTS THE
LACK OF FULL & HONEST DISCLOSURE BY THE PARTIES THERE WAS
NEVER ANY MEETING OF THE MINDS REQUIRED FOR THEIR TO BE A
VALID AND BINDING CONTRACTUAL AGREEMENT, & ALL SUBSEQUENT
ALLEGED ACTS OF THE DEFENDANTS AFTER BEING SERVED WITH THE
VARIOUS NOTICES BY Star, CULMINATING WITH THE NOTICE OF
RESCISSION OF THE WHOLE ALLEGED CONTRACT ON NOVEMBER 7, 2008
AGREEMENT.
WAIVER PROVISIONS UNDER ARTICLE 10 OF NOTE
33. The "waiver provision" under Article 10 of the Note was Unlawful & Unconstitutional
in Violation of the State and Federal Laws Requiring Due Process of Law, Notice and
opportunity to be heard and to defend rights and interest, including under State & the
5th Amendment to the Federal Constitutions, the California Civil Code, California
Commercial Code, and the maxims of jurisprudence. Said article did not constitute a
knowing, fully informed, voluntary waiver of any right of notice of dishonor, or right to
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presentment of the original note, the instrument the demand for payment was based on,
since it was not the lender who was making demand for payment on the note. The denial
of due process is inherent in the fact that since only the lender or holder of the note had
any right under the alleged contract to enforce the terms of the alleged contract, there is
no way for the borrower to determine if the party (GMAC in this case), demanding
payment has any right to do so under the alleged contract if they are not the original
lender, (in this case GMAC MORTGAGE was not the lender) unless there is an inherent
right outside statutory or written law to demand presentment of the original instrument
the alleged obligation or debt is based upon. In the case of a woman unlearned in the law
such as Star was, without counsel requesting her to sign such a waiver without any
explanation or understanding on her part is the intent to commit Fraud and theft by
deception as is fully set out herein prior. It is further clear that any such Right of Notice
of Dishonor & Presentment, & a request by the Lender & the Trustees, assigns,
Contractors, Servicers, etc., for Waiver of such a Right without explanation,
understanding, or knowledege of the meaning or purpose of such a waiver, amounts to
an unknowing waiver, and a waiver without real consent, which also elicits Prima Facia
Evidence of intent & prior knowledge of the party requesting the unknowing Waiver
that neither the original lender nor the Servicer GMAC MORTGAGE would be Holder
of the Note at the time of Foreclosure, and would not be able to produce it on Demand
nor prove that they had any Right to enforce the terms of the alleged Contract or
Note. This is Prima Facia Evidence supporting a Premeditated Conspiracy to Defraud
the "borrower" out of her home and property.
The alleged “Waiver" of Presentment under "10" of the Note, is further Void Ab Initio
based upon the fact that it Intentionally Misinforms and Omits from its Explanation of
the Meaning of the Term "Right" of "Presentment" the fact that the Meaning of the
said Term under the Law, and under the California UCC Code is the Right to Demand
that the alleged Creditor Present the Original Instrument, in this Case the Original
Promissory Note, which the alleged Debt is based upon, which gives the alleged Creditor
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the Right demand payment and to Enforce the Note as a matter of Law. If GMAC
MORTGAGE WAS IN FACT "HOLDER OF THE NOTE" AT THE TIME OF THE
ALLEGED FORECLOSURE THEY HAD A DUTY UNDER THE LAW OF THE
STATE OF CALIFORNIA TO PRESENT THE ORIGINAL NOTE TO Star UPON
HER WRITTEN DEMAND FOR PROOF THAT THEY HELD THE NOTE AND HAD
THE RIGHT TO ENFORCE THE TERMS OF THE NOTE AND TO COLLECT THE
ALLEGED DEBT. THEIR FAILURE TO DO SO CAUSED THE ALLEGED DEBT TO
BE DISCHARGED AS A MATTER OF CALIFORNIA LAW UNDER THE
CALIFORNIA COMMERCIAL CODE CITED HEREAFTER WHICH NOW
REQUIRES A TOTAL RECONVEYANCE OF THE TITLE BACK TO Star. If GMAC
MORTGAGE WAS NOT HOLDER OF THE NOTE AT THE TIME OF ALLEGED
FORECLOSURE THEN THE LENDER MORTGAGEIT INC., WAS REQUIRED TO
PRESENT THE ORIGINAL NOTE TO Star PRIOR TO THE INSTITUTION OF ANY
ALLEGED FORECLOSURE PROCEEDINGS, AS WELL AS SERVE A NOTICE OF
DISHONOR TO Star, PER THE TERMS OF THE NOTE AND AGREEMENT, AS
ONLY THE LENDER AND HOLDER OF THE NOTE HAD ANY RIGHT TO
ENFORCE THE SAID TERMS OF THE NOTE AND ALLEGED AGREEMENT.
SAID DEFENDANTS ACTIONS VIOLATED CALIFORNIA LAW UNDER
COMMERCIAL CODE SECTION 1304, WHICH MANDATES:" Every contract or
duty within this code imposes an obligation of good faith in its performance and
enforcement." AS WELL AS A VIOLATION OF SECTION 3309(b), WHICH
MANDATES "(b) A person seeking enforcement of an instrument under subdivision (a)
shall prove the terms of the instrument and the person's right to enforce the instrument."
SAID DEFENDANTS VIOLATED CALIFORNIA COMMERCIAL CODE SECTION
3501. (a) , WHICH MANDATES: "Presentment" means a demand made by or on
behalf of a person entitled to enforce an instrument (1) to pay the instrument made to
the drawee or a party obliged to pay the instrument or, in the case of a note or accepted
draft payable at a bank, to the bank, or (2) to accept a draft made to the drawee. AND
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VIOLATED THE PROVISIONS UNDER " (1) Presentment may be made at the place of
payment of the instrument and shall be made at the place of payment if the instrument is payable at a
bank in the United States; may be made by any commercially reasonable means, including an oral, written,
or electronic communication; is effective when the demand for payment or acceptance is received by the
person to whom presentment is made; and is effective if made to any one of two or more
makers, acceptors, drawees, or other payors. (2) Upon demand of the person to whom
presentment is made, the person making presentment shall (A) exhibit the instrument,
(B) give reasonable identification and, if presentment is made on behalf of another
person, reasonable evidence of authority to do so, and (C) sign a receipt on the
instrument for any payment made or surrender the instrument if full payment is made.
(3) Without dishonoring the instrument, the party to whom presentment is made may
(A) return the instrument for lack of a necessary endorsement, or (B) refuse payment or
acceptance for failure of the presentment to comply with the terms of the instrument, an
agreement of the parties, or other applicable law or rule."
" 3502. (a) Dishonor of a note is governed by the following rules: (1) If the note is
payable on demand, the note is dishonored if presentment is duly made to the maker and
the note is not paid on the day of presentment.
(2) If the note is not payable on demand and is payable at or through a bank or the terms
of the note require presentment, the note is dishonored if presentment is duly made and
the note is not paid on the day it becomes payable or the day of presentment, whichever is
later. (3) If the note is not payable on demand and paragraph (2) does not apply, the note
is dishonored if it is not paid on the day it becomes payable."
EQUITABLE & COLLATERAL ESTOPPEL
34. PURSUANT TO ALL THE FOREGOING FACTS & THE LAW OF THE STATE OF
CALIFORNIA GMAC MORTGAGE LLC IS Equitably and Collaterally Estopped from
asserting any Defense of Waiver of Notice of Dishonor and Presentment of the Original
Promissory Note prior to the Instituting Foreclosure proceedings, based upon their
Illegal, Intentional, Willing, Knowing & Premeditated Concealment of the fact that
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they knew they would Institute Foreclosure proceedings without being in Possession of
the Note, which possession of the Note was a Mandatory Prerequisite of the alleged
Mortgage Refinance Contract that only the "Note Holder" can Institute Foreclosure
proceedings, and only the "Note Holder" had the Right to Enforce the alleged Contract.
There was no waiver, nor could there be of the statutory requirement under
California Commercial Code CITED PRIOR that the "Holder of the Note" serve
a Notice of Dishonor, and thereafter make a presentment of the Original Promissory
Note, due to the fact the said parties failed and refused to explain the meaning of the
alleged contract, and the alleged Waiver when they were asked and requested by Star
via her conversations, Interviews, and Negotiations with their Loan Agent Baron
DiGiamdomenico. Based upon these facts there was no knowing Voluntary Waiver of
any alleged Rights of Star: Hills including any Right of Notice of Dishonor and
Presentment of the Original Note. Based on all the foregoing facts, the said Parties
failure to give Notice of Dishonor & Presentment of the Note Caused the alleged debt
to be Discharged, as a Matter of Law under the Express Provisions of California
Commercial Code & GMAC MORTGAGE, their Successors, Agents, Assigns, & Officers
are Estopped & Barred as a Matter of Law of the State of California from enforcing
any alleged Foreclosure or Sale of the home & property of Star: Hills & any such
alleged Foreclosure and Sale are Null and Void Ab Initio.
VOID SALE OF STAR'S HOME AND PROPERTY
35. Defendant GMAC MORTGAGE LLC ( OTHERWISE REFERRED TO AS GMAC OR
GMAC MORTGAGE ) purported to purchase the property and home of Star at an
alleged Public Auction on November 13, 2008, for a price of 80,000+ dollars, a price well
below the announced sales price Valuation of $280,000. Said alleged purchase by GMAC
was well below the fair market value of the house. Said Defendant GMAC has admitted
in papers filed with this Court that they Received the Notice of Rescission of the alleged
Mortgage Contract and signature on the Promissory Note prior to the date of the alleged
Public Auction / Sale of the home and property of Star. GMAC Sale Trustee Omar
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Solorzano was also served with a Notice of the Rescission prior to the alleged Sale
& had full knowledge that the alleged Contract & Note the alleged Sale was based on
were Null and Void Ab Intio, & the alleged Sale was Void Ab Initio, and they had no
Right or Authority under Law of the State of California to hold such a Sale. They were
also served with a Notice at the location of the said Sale outside the Bakersfield City
Hall, in writing, as were all persons present, which Notice was also posted at several
places in and around the Sale location, which stated "Caveat Emptor" "Caveat
Actor", the purported Public Auction / Sale of the Property and home of Star located
at "3018 Linden Avenue, Bakersfield, California", is Fraud upon the Public, and is
Void Ab Initio. Though fully informed of the fact that the alleged Sale was Void Ab
Initio because the Contract it was based on was Void Ab Initio, said Defendants ETS
SERVICES and Omar Solorzano proceeded with the alleged Public Sale of the
Home and Property of Star, and when no one from the Public bid on the home, the Sale
Trustee and the Auctioneer purported to sell the home to GMAC MORTGAGE at far
below the Fair Market Value, committing a knowing Fraud upon the Public and
committing Slander of Title against Star as well as a Trespass on the Title to her
home and Property, which now has created a Controversy over the Title and Property
of the said home, which is a Cause of Action herein for Quiet Title against GMAC
MORTGAGE, as GMAC MORTGAGE is now a third party Trespasser on said
Title. GMAC MORTGAGE, along with Baron DiGiandomenico, & Lender
MORTGAGEIT INC, Violated the Laws of California, Forbidding Fraud,
Constructive Fraud, Deceit, Wrongful and Unlawful Conversion etc. and are Liable to
Star for said Violations.
36. The alleged Sale of the Home & Property of Star on 11 / 13 / 2008 by Defendant ETS
SERVICES, LLC & TRUSTEE OMAR SOLORZANO, was Void Ab Initio and of no
effect and unenforceable under the law, as the Right of Foreclosure and of Sale of
said Property was previously ALLEGEDLY Transferred by the Lender to MERS in the
DEED OF TRUST DATED MAY 17, 2007 AND HAD NEVER BEEN REVOKED OR
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REASSIGNED BY THE LENDER OR THE HOLDER OF THE NOTE. Any alleged
Assignment or Appointment by Defendant GMAC MORTGAGE of the Power of Sale
to Defendant ETS SERVICE, LLC, & ALLEGED SALE TRUSTEE OFFICER OMAR
SOLORZANO WAS VOID AB INITIO WITHOUT ANY RIGHT UNDER THE
CONTRACT OR THE NOTE, AS GMAC MORTGAGE WAS NEVER THE
LENDER OR THE "NOTE HOLDER" AS EXPRESSLY REQUIRED BY THE TERMS
OF THE NOTE & ALLEGED CONTRACT. SEE PAGE 3 & 13 OF DEED OF
TRUST DATED MAY 17, 2007, A TRUE & CORRECT COPY OF WHICH IS
ATTACHED HERE TO IN EXHIBIT NUMBER #: 2 , WHICH IS HEREBY
INCORPORATED INTO THIS COMPLAINT BY REFERENCE AS IF FULLY
SET FORTH HEREIN & WHICH Star & Alan REQUEST THE COURT TO
TAKE MANDATORY JUDICIAL NOTICE OF THE ORIGINAL OF IN THE
OFFICIAL RECORDS OF THE KERN COUNTY RECORDERS OFFICE,
PURSUANT TO THE EXPRESS MANDATORY PROVISIONS SET OUT UNDER
CALIFORNIA EVIDENCE CODE SECTION 451-453, ET SEQUITER.
37. Defendants ETS SERVICES, LLC, AND SALE TRUSTEE OFFICER OMAR
SOLORZANO had a prior agreement and Contractual Relationship with Defendant
GMAC MORTGAGE LLC & NAMED DEFENDANTS . Said Defendants ETS
SERVICES, LLC & OMAR SOLORZANO entered into the Conspiracy to Fraudulently
steal & Convert the Home & Property of Star by an agreement to pose as Sale Trustee
for GMAC MORTGAGE , when they knew GMAC MORTGAGE had no authority
under law to appoint them or assign them as a Sale Trustee to sell the said Property
because GMAC MORTGAGE was not the Lender nor the Note Holder, and had no Right
to institute Foreclosure proceedings or Enforce the terms of the Note. Thereafter they
were served with the Notice of Rescission by Star, and ignored the fact that the
Foreclosure and Sale was Void Ab Initio knowing they were committing a Fraud
upon the Public by going ahead with the purported public Sale.
ETS SERVICES & OMAR SOLORZANO TOOK THE OVERT STEP IN
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FURTHERANCE OF THE SAID CONSPIRACY, after they knew the proposed Sale was
Void, offering the Home & Property of Star for sale to the Public. They took another
Overt step in furtherance of the conspiracy when they purported to sell the said Home &
Property of Star to their Employer Contractor GMAC MORTGAGE LLC for a price
well below the Fair Market Value of the Property, some $80,000 + dollars, which was the
completion of the said Conspiracy. DEFENDANT GMAC MORTGAGE LLC took the
Overt Step in furtherance of the said Conspiracy of purporting to Foreclose on the said
Property when they knew they had no Right to enforce the terms of the Note or Contract
because they were never the Lender or Holder of the Note, and never had the Right of
Foreclosure or Sale, which was previously granted to MERS IN THE DEED, & never
revoked, or Assigned or Granted to anyone else by the lender MORTGAGEIT INC.
GMAC MORTGAGE LLC took the further Overt Step in furtherance of the Conspiracy
when they purported to exercise a Right to Sell the said Home & Property, and appoint
ETS SERVICES AS THE SALE TRUSTEE AND OMAR SOLORZANO AS THE
SALE OFFICER, WITHOUT ANY LAWFUL AUTHORITY TO DO SO. GMAC
MORTGAGE TOOK THE FINAL STEP IN FURTHERANCE OF THE
CONSPIRACY WHEN THEY PURPORTED TO PURCHASE THE SAID HOME &
PROPERTY AT THE ALLEGED PUBLIC AUCTION ON NOVEMBER 13, 2008.
38. One month afterward Star received a call from GMAC MORTGAGE LLC, & during
that call Star Requested a true signed copy of the contract by both parties and a copy of
the Appraisal which Star had paid for. They promised to send it right away, but still to
this day Star never received either document. Within 30 days Star also received a Notice
of Interest Rate Change FROM DEFENDANT GMAC which appeared to say the
interest was going up higher than what she had ever paid in the past, and appeared to
say her payments would triple. Star was outraged and called Baron immediately to ask
him how this could change when he promised her it was fixed at one percent and the
payments would never increase. Baron said to Star, “Oh they always do that, it means
nothing, I will fix it, fax me the paper and ill take care of it, do not worry, don’t panic,
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it’s nothing” Star tried to fax the letter to Baron but the fax did not go through. Star
called him again, and he said he was having trouble with his fax, and gave her a second
fax number, which also failed.
39. Star attempted to call Baron several more times over a period of the next two months
but could not reach him, and she left messages on a voice mail and with the operator at
United Vision Financial, but her calls were never returned. She finally came across
Barons private cell phone number which she had misplaced, and a man answered and
said that she had a wrong number. Star checked the number and it was the same one
she had reached Baron on only a couple of months prior. Star called GMAC and told
them the agreement was not what she had been promised as Baron had explained to
her, but they just told her that she signed it and there was nothing they could do.
GMAC violated the Original Contract agreement with Baron & United Vision Financial
which they were bound by as a Trustee & Fiduciary for Mortgage It Inc., the
40. After making payments to GMAC throughout the next year, 2007-2008, Star kept
receiving higher interest rate change Notices every month, and the principle owed kept
going up every month. She saw that the principle was only going up, and she was only
paying interest and never making a dent in the principle. Since these events Star has
received interest Rate changes up to nearly 9 % every single Month, and the loan
amount kept going up every month from $ 211,000 Dollars $ 245, 141.53 which is
the amount that was on the Notice of Sale taped to her door in October of 2008.
The bills she received from GMAC reflected that she owed MORE than she had ever
borrowed, even after faithfully paying thousands upon thousands for 3 years. Finally
Star sent GMAC a letter offering to accept their claim upon proof of such claim, and to
send her proof of the note signed by both parties. She sent a check with a Novation offer
under the conditions that if they cashed the check they would accept the offer of a new
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contract & close the old account number and would make a new account number, and a
new agreement that upon proof of claim Star would pay. GMAC MORTGAGE LLC
cashed the check agreeing to the terms of her offer. They subsequently failed to live up
to that agreement which was a breach of contract, for which they are now liable
to Star.
41. Based UPON THE FOREGOING INTENTIONAL Misrepresentation, Deceit, Fraud,
breach of contract, breach of fiduciary, intentional concealment, undue influence, etc.,
Star Hills stopped payments on the alleged Mortgage debt, & thereafter demanded
in writing proof of their claim against her, a copy of the Original Contract,
Property Appraisal, & the Promissory Note which the Claim was based upon.
42. The demands for proof of claim, and a copy of the original Contract, Appraisal of
the Property, and the Original Note have never been complied with by anyone,
INCLUDING Defendant GMAC MORTGAGE LLC which was a Breach of the alleged
Contract by the SAID PARTIES INCLUDING GMAC MORTGAGE LLC.
43. Based upon the foregoing Star served a Notice of Rescission of the whole alleged
Mortgage Contract, Note, Etc., on Defendants GMAC MORTGAGE LLC, ETS
SERVICES LLC, THEIR OFFICERS, EMPLOYEES, AGENTS HEIRS & ASSIGNS,
( NOTICE TO PRINCIPAL IS NOTICE TO THE AGENT; NOTICE TO THE AGENT
IS NOTICE TO THE PRINCIPAL) WHICH WAS SERVED ON THEM ON
NOVEMBER 7, 2008, SIX (6) DAYS PRIOR TO THE ALLEGED PUBLIC SALE OF
NOVEMBER 13, 2008, WHICH RENDERED THE ALLEGED SALE OF NOVEMBER
13, 2008 VOID AB INITIO AS A MATTER OF LAW, ALSO RENDERING THE
ALLEGED DEED AFTER SALE VOID AB INITIO, & OF NO EFFECT OR VALIDITY
UNDER THE LAW, & THUS RENDERING NO RIGHT OR AUTHORITY TO SAID
DEFENDANT GMAC MORTGAGE LLC REGARDING THE HOME & PROPERTY
OF COMPLAINANTS HEREIN.
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44. Star FULLY INFORMED THE DEFENDANTS GMAC MORTGAGE LLC & ETS
SERVICES LLC, IN HER NOTICES INCLUDING HER DEMAND TO PROVE THE
NOTE WHICH INCLUDES A NOTICE OF HER FEE SCHEDULE, OF THE LACK
OF AUTHORITY & JURISDICTION OVER HER TO TRESPASS UPON HER
PROPERTY & AGAINST HER HOME. THEIR SUBSEQUENT ATTEMPTS TO
DO SO THROUGH CONTRACTOR AGENTS INCLUDING JASON THEOLE
WHO TRESPASSED & THREATENED IN WRITING TO BREAK & ENTER &
VANDALIZE THE SAID HOME BY “TRASHING” THE PERSONAL PROPERTY
INSIDE, WAS A TERRORIST THREAT, CRIMINAL TORT FOR WHICH THEY
ARE LIABLE TO Star. BECAUSE THERE WAS A CONTROVERSY & DISPUTE
OVER THE TITLE IN THE COURT WHICH HAD NOT BEEN SETTLED,
WHICH PRECLUDED THE FILING OF THE SAID UNLAWFUL DETAINER
ACTIONS, AND THE FILING OF WHICH WAS ABUSE OF PROCESS
AGAINST Star: Hills, REGARDING WHICH THEY ARE LIABLE TO Star: Hills
FOR ALL INJURIES & DAMAGES ARISING THERE FROM. THE ALLEGED
TITLE AFTER SALE WAS FURTHER DEFECTIVE IN THAT IT ONLY
ALLEGED TO TRANSFER LEGAL TITLE, AND NOT EQUITABLE TITLE AS
WELL AS IS REQUIRED BY LAW AS SET FORTH BY THE SUPREME
COURT RULINGS CITED HEREIN .
45. DEFENDANTS PROMISES TO PLAINTIFFS & DUTIES OWED ;
Defendants MERS; MERS PRESIDENT & CEO BILL BECKMANN; GMAC MORT.
LLC; GMAC MORT. LLC PRES. NICK CANALE Jr.; GMAC MORT. LLC VICE PRES.
& LOAN SERVICER, Charles R. Hoecker; GMAC MORT., LLC; ETS SERVICES LLC
PRESIDENT JOHN DOE 2, ETS SERVICES LLC; ETS SERVICES LLC SALES
TRUSTEE Omar Solorzano; ETS SERVICES LLC MANAGERS JOSEPH A.
PENSABENA; MARK E. LAHIFF; Adam Leppo ETS SERVICES LLC TRUSTEE
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SALE OFFICER; all Impliedly by their Conduct in assuming their Positions as Agents
Officers, & Employees of the said Corporate Entities MERS, GMAC MORT. LLC,
& ETS Services LLC, Promised Star: Hills that they would at all times ENGAGE
ONLY IN HONEST & FAIR DEALING REGARDING ANY & ALL MATTERS
RELATED TO THE PURPORTED MORTGAGE LOAN , DEED OF TRUST, &
THEIR STATUTORY & LAWFUL DUTIES UNDER STATE & FEDERAL LAW, &
FURTHER EXPRESSLY PROMISED IN THE DEED OF TRUST THAT THEY
WOULD COMPLY WITH ALL APPLICABBLE PROVISIONS OF STATE &
FEDERAL LAW REGARDING THE PURPORTED MORTGAGE LOAN & DEED
OF TRUST. INCLUDED IN THESE EXPRESS & IMPLIED PROMISES OF SAID
DEFENDANTS IN THE IMPLIED PROMISE THAT SAID DEFENDANTS WOULD
REFRAIN FROM ENGAGING IN ANY FRAUD, CONSTRUCTIVE FRAUD, DECEIT,
INTENTIONAL NEGLIGENCE, NEGLECT, MISFEASANCE, MAL FEASANCE, OR
NON FEASANCE REGARDING ANY OF SAID DUTIES UNDER LAW, EXPRSS &
IMPLIED PROMISES SET FORTH HEREIN. SAID DEFENDANTS OWED THE
DUTY TO PLAINTIFFS HEREIN TO COMPLY WITH THE APPLICABLE SAID
STATE & FEDERAL LAWS INCLUDING BUT NOT LIMITED TO THE LAWS OF
CONTRACTS, & OWED A DUTY TO PLAINTIFFS TO COMPLY WITH THE
SAID EXPRESS & IMPLIED PROMISES MADE TO PLAINTIFFS. PLAINTIFFS
HEREIN RELIED UPON THE SAID PROMISES OF SAID DEFENDANTS. SAID
DEFENDANTS BREACHED THEIR SAID PROMISES WHEN THEY FAILED TO
DISCLOSE THEIR PRIOR SECRET PRIVATE AGREEMENTS WITH OTHER
THRID PARTIES WHO WERE NEVER NAMED IN THE MORTGAGE
DOCUMENTS PRESENTED BY SAID DEFENDANTS. THE SAID THIRD PARTIES
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INCLUDED UNNAMED SECURITIES INVESTORS WHO ALL FINANCIALLY
BENEFITED FROM THE SAID CONCEALMENT & BREACH OF PROMISES
RESCISSION;TENDER REQUIREMENT;VOID SUBSTITUTION OF TRUSTEE;VOID DEED OF TRUST; VOID TRUSTEES DEED UPON SALE;
OFF SET-SET OFF-CLAIM
46. UPON SERVICE OF THE NOTICE OF RESCISISON ON DEFENDANTS THERE
WAS NO REQUIREMENT UPON PLAINTIFFS TO OFFER TO TENDER
PAYMENT OF ANY ALLEGED AMOUNTS DUE AS THE DEED OF TRUST &
THE DEED UPON SALE WERE BOTH RENDERED VOID UPON THE SERVICE
& RECORDING OF THE ALLEGED “SUBSTITUTION OF TRUSTEE” BY
DEFENDANTS MERS; MERS PRESIDENT BILL BECKMANN, & MERS EMPLOYEE
WHO WERE NOT AUTHORIZED UNDER THE DEED OF TRUST TO EXECUTE
A SUBSTITUTION OF TRUSTEE PURSUANT TO EXPRESS PROVISIONS OF
ARTICLE-PARAGRAPH 24 OF SAID DEED OF TRUST WHICH BREACH OF
THE DEED OF TRUST RENDERED THE DEED OF TRUST VOID & RENDERED
THE ALLEGED SUBSEQUENT SALE & DEED UPON SALE VOID AS A MATTER
OF LAW, WHICH NEGATED ANY REQUIREMENT TO TENDER ANYTHING TO
DEFENDANTS, WHICH “TENDER” REQUIREMENT ONLY APPLIES TO ANY
EQUITY REMEDIES SOUGHT BY THE ADVERSE PARTIES, NOT WHERE THE
DEED OF TRUST & TRUSTEES DEED UPON SALE IS VOID AS A MATTER
OF LAW, AS IS CLEAR IN THE COURT RULING IN : Dimock v. Emerald
Properties (2000) 81 C.A. 4th 868, AT PAGE 876 WHERE THE COURT STATED:
[“[3a] As Dimock points out, because Commonwealth had no power to convey his property its deed to Emerald was void as opposed to merely voidable. That is, the
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Commonwealth deed was a complete nullity with no force or effect as opposed to one which may be set aside but only through the intervention of equity. (See Little v. CFS Service Corp. (1987) 188 Cal.App.3d 1354 , 1358-1359 [233 Cal.Rptr. 923].) ”
AND AT PAGE 878, WHERE THE Dimock COURT STATED:
[“Because Dimock was not required to rely upon equity in attacking the deed, he was not required to meet any of the burdens imposed when, as a matter of equity, a party wishes to set aside a voidable deed. (See Little v. CFS Service Corp., supra, 188 Cal.App.3d at p. 1359.) In particular, contrary to the defendants' argument, he was not required to tender any of the amounts due under the note.”]
47. FURTHER PLAINTIFFS OWED & OWE NOTHING TO THE ALLEGED
LENDER DUE TO THE OFF SET CLAIMS AGAINST THE LENDER & OTHER
DEFENDANTS ACTING AS LENDERS AGENTS, WHICH FACTS RENDER THE
“TENDER” REQUIREMENT INAPPLICABBLE IN THIS CASE.
DEFENDANTS KNOWLEDGE OF FRAUD IN THE INDUCEMENT & PROMISSORY FRAUD BEFORE THE ALLEGED SALE &
ALLEGED PURCHASE; LIABILITY FOR SUBSEQUENT ACTIONS
48. Upon Service of the Notice of Rescission upon GMAC MORTGAGE LLC, ET AL,
ALL PARTIES HAD KNOWLEDGE OF THE PRIOR FRAUD IN THE
INDUCEMENT & PROMISSORY FRAUD COMMITTED BY United Vision
Financial & Baron DiGiandomenico. Due to said Prior Knowledge all said Defendants
their Agents, Agencies, Privies, Successors, were liable for any and all subsequent
Actions taken against the Rights & Interests of Plaintiffs herein including the
alleged Sale of the Home & Property & the alleged Purchase of the Home &
Property in question, & Due to said Personal Knowledge all said Defendants are
liable for Punitive & or Exemplary Damages .
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DEFENDANTS KNOWLEDGE & DUTY UNDER THE NOTICE OF RESCISISON & UNDER ARTICLE 24 OF THE DEED OF TRUST ; & THE PRINCIPLE OF LAW THAT NOTICE TO THE AGENT IS NOTICE TO THE PRINCIPAL & NOTICE TO THE PRINCIPLE IS
NOTICE TO THE AGENT
________________________________________________________________
49. ALL NAMED DEFENDANTS WERE SERVED WITH & HAD ACTUAL NOTICE
& CONTRUCTIVE NOTICE OF THE NOTICE OF RESCISSION UNDER THE
PRINCIPLE OF LAW THAT NOTICE TO PRINCIPAL IS NOTICE TO THE
AGENT & NOTICE TO THE AGENT IS NOTICE TO THE PRINCIPAL;
UPON THEIR RECEPTION OF THE NOTICE OF RESCISISON PRIOR TO THE
ALLEGED PUBLIC SALE OF PLAINTIFFS HOME & PROPERTY NAMED
DEFENDANTS HAD A DUTY OF ORDINARY CARE OWD TO PLAINTIFFS
TO NOT PROCEED WITH ANY PURPORTED SALE AS A RESCISSION VOIDS
AB INITIO FROM THE BEGINING & RENDERED ANY ALLEGED MORTGAGE
CONTRACT, DEED OF TRUST AGREEMENT, PROMISE TO PAY, & ANY
ALLEGED SALE THEREAFTER VOID AB INITIO & UNENFORCABLE UNDER
THE LAW, & ALSO VOIDED ANY PURPORTED DUTY TO TENDER PAYMENT
BEFORE SEEKING ANY LEGAL OR EQUITABLE REMEDY AS THERE IS NO
DUTY TO TENDER AN ALLEGED DEBT WHEN THE PURPORTED CONTRACT
CREATING THE DEBT HAS BEEN RESCINDED REMOVING ANY ALLEGED
DEBT UNDER THE PURPORTED PRIOR CONTRACT. UPON THEIR
RECEPTION OF THE NOTICE OF RESCISISON DEFENDANTS, AND ALL OF
THEM GMAC MORTGAGE LLC, & THEIR OFFICERS & EMPLOYEES, MERS &
THEIR OFFICERS & EMPLOYEES KNEW THAT THERE NO LONGER WAS A
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CONTRACT WITH Star: Hills, & THERE NO LONGER WAS AN OBLIGATION TO
PAY OR TO TENDER, & THERE NO LONGER WAS ANY ENFORCEABLE
CONTRACT, DEED OF TRUST, OR PROMISE TO PAY, AND ANY FURTHER
CLAIMS OF ANY DEBT OWED TO THE PURPORTED LENDER WAS ONLY
ENFORCEABLE BY THE LENDER IN A SEPARATE ACTION AGAINST Star:
Hills REGARDING WHICH THEY HAD NO RIGHT OF ENFORCEMENT OR
CLAIM OF ACTION; NAMED DEFENDANTS KNEW UPON RECEPTION OF
THE NOTICE OF RESCISISON THAT THEY NO LONGER HAD ANY
AUHTORITY IN ANY AGENT CAPACITY TO ACT FOR THE LENDER AND
WERE NOT AUTHORIZED TO PROCEED WITH ANY FURTHER ACTION
REGARDING THE ALLEGED MORTGAGE PROMISE TO PAY,
EXCLUSION IN ARTICLE 24 OF THE DEED OF TRUST OF ANY POWER OF SUBSTITUTION OF TRUSTEE TO MERS
49. ALL NAMED DEFENDANTS HAD A DUTY TO KNOW, SHOULD HAVE
KNOWN & DID KNOW THAT THEY HAD A DUTY, OWED TO PLAINTIFFS,
TO COMPLY WITH ALL EXPRESS PROVISIONS OF THE DEED OF TRUST
INCLUDING ARTICLE 24 WHICH EXPRESSLY RESERVED ANY RIGHT OF
SUBSTITUTION OF TRUSTEE TO THE LENDER ALONE, & EXCLUDED ANY
GENERAL AUTHORITY OF ANY AGENT OF LENDER INCLUDING MERS &
THEIR AGENTS & EMPLOYEES UNDER THE DEED OF TRUST FROM
EXECUTING ANY SUBSTITUTION OF TRUSTEE. THE ACTIONS OF MERS,
THEIR PRESIDENT & CEO BILL BECKMANN & THEIR EMPLOYEES &
AGENTS IN IGNORING THE EXPRESS PROVI SIONS OF ARTICLE 24 OF
THE DEED OF TRUST WHICH EXPRESSLY RESERVED THE RIGHT TO ONLY
LENDER TO EXECUTE A SUBSTITUTION OF TRUSTEE TO THE EXCLUSION
OF ALL OTHER PROVISONS, INCLUDING THE GENERAL PROVISIONS
GRANTING GENERAL AUTHORITY TO MERS TO ACT ON BEHALF OF THE
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LENDER, WAS INTENTIONAL KNOWING FRAUD BY MERS, IT'S PRESDIENT &
CEO BILL BECKMANN , & THEIR EMPLOYEES & AGENTS FOR WHICH SAID
MERS, & BILL BECKMAN ARE LIABLE TO PLAINTIFFS HEREIN FOR
TREBLE DAMAGES INCLUDING ANY FRAUDULENT ACTIONS CARRIED OUT
ON THEIR BEHALF BY EMPLOYEES & AGENTS OF MERS & BILL BECKMAN
REGARDING THE SUBSTITUTION OF TRUSTEE & NOTICE OF DEFAULT &
ELECTION TO SELL; SAID DEFENDANTS HAD A DUTY TO KNOW THAT THE
EXPRESS PROVISIONS OF A DEED OF TRUST GOVERN OVER ANY GENERAL
PROVISIONS TO THE CONTRARY & GOVERN OVER ANY CONFLICTING
GENERAL PROVISIONS IN THE DEED OF TRUST OR ANY OTHER WRITTEN
DOCUMENTS RELATING TO THE PURPORTED TRANSACTION BETWEEN
DEFENDANTS & PLAINTIFFS. IF SAID DEFENDANTS WERE ACTUALLY
IGNORENT OF THESE DUTIES & ACTUALLY IGNORENT OF THE LAW OF
CONTRACTS & LAW OF CONSTRUCTION & INTERPRETATION OF CONTRACTS
THEN SAID DEFENDANTS WERE NEGLIGENT & SUCH IGNORANCE DIRECTLY
OR PROXIMATELY CAUSED THE INJURY & DAMAGES TO PLAINTIFF IN
THE FRAUDULENT OR NEGLIGENT LOSS OF HOME & PROPERTY WHICH
AMOUNTS TO GENERAL NEGLIGENCE, AND OR INTENTIONAL NEGLIGENCE ,
& WONTON WRECKLESS DISREGARD FOR THE RIGHTS & INTERESTS &
PROPERTY OF PLAINTIFFS WITH THE INTENT TO CAUSE HARM & INJURY
TO PLAINTIFFS PERSON & TO THEIR SAID RIGHTS, FOR WHICH SAID
DEFENDANTS ARE LIABLE TO PLAINTIFFS FOR PUNITIVE & OR
EXEMPLARY DAMAGES .
INTENTIONAL CONCEALMENT EQUITABLE ESTOPPAL
50. In committing the said acts of Conspiracy & Fraud Defendants and all of them
intentionally concealed the essential facts constituting the causes of Action set forth
herein DEPRIVING Plaintiffs of their Right to full Disclosure of the true terms &
conditions, effect & consequences of said purported Contract , Mortgage, Deed of trust,
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Promise to pay, Article 10 Waivers, & therefor are Equitably & Collaterally Estopped
“in Pais” from Alleging any Statute of Limitations as any Defense to any of the
Causes of Actions in this Complaint.
CAUSES OF ACTION
IFRAUD
AGAINST ALL DEFENDANTS
Complainants hereby incorporate all the foregoing facts & allegations herein by
reference as if fully set forth. The foregoing Actions of the Defendants including
GMAC MORTGAGE LLC amounted to Fraud for which Defendants are Jointly &
Severally Liable to Star & Alan.
IICONSTRUCTIVE FRAUD
AGAINST ALL DEFENDANTS
Plaintiffs hereby incorporate all the foregoing facts & allegations herein by reference
as if fully set forth. The foregoing Actions of the said Defendants amounted to
Constructive Fraud for which Defendants are Jointly & Severally Liable to Star & Alan.
IIIDECEIT
AGAINST ALL DEFENDANTS
Plaintiffs hereby incorporate all the foregoing facts and allegations herein by reference as
if fully set forth. The foregoing Actions of the Defendants amounted to Deceit for
which all said Defendants are Jointly & Severally Liable to Star & Alan.
IVEQUITABLE & COLLATERAL ESTOPPEL
AGAINST ALL DEFENDANTS
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Plaintiffs hereby incorporate all the foregoing facts and allegations herein by reference as
if fully set forth. Based upon the foregoing Actions all the Defendants are Equitably & Collaterally Estopped from Alleging any Statute of Limitations as any Defenses to any of the Causes of Actions in this Complaint.
VABUSE OF PROCESS
AGAINST ALL DEFENDANTS
Plaintiffs hereby incorporate all the foregoing facts and allegations herein by reference as if fully set forth. The foregoing Actions of the Defendants amounted
to ABUSE OF PROCESS for which DEFENDANTS ARE LIABLE Jointly & Severally to Star.
VIBREACH OF FIDUCIARY
AGAINST GMAC MORTGAGE LLC;PRESIDENT JOHN DOE 1;
VICE PRESIDENT CHARLES R. HOECKER
Plaintiffs hereby incorporates all the foregoing facts and allegations herein by reference
as if fully set forth. The foregoing Actions of the Defendants GMAC MORTGAGE
LLC; PRESIDENT JOHN DOE 1; VICE PRESIDENT CHARLES R. HOECKER
amounted to Breach of Fiduciary for which Defendants are Liable to Star.
VIIENFORCEMENT OF RESCISSION
AGAINST ALL DEFENDANTS
Plaintiffs hereby incorporate all the foregoing facts and allegations herein by reference
as if fully set forth. The foregoing actions of the said Defendants Entitles Star & Alan
to Enforcement of the Rescission of the Alleged Mortgage Refinance Contract of May
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17, 2007, including a Permanent Restraining Order Enjoining GMAC MORTGAGE
LLC & ANY OTHER PERSON, OFFICER, EMPLOYEE, SUCCESSORS, HEIRS ,
ASSIGNS, OR CONTRACTORS OF GMAC MORTGAGE LLC, from taking any
further Actions against Star: Hills, & Alan Gjurovich, based upon said alleged
Mortgage, Deed of Trust, Sale & Purchase, etc., & a Total Reconveyance of
the Title to said Property & home.
VIIIQUIET TITLE
AGAINST GMAC MORTGAGE LLC;AGAINST GMAC MORTGAGE LLC;
PRESIDENT JOHN DOE 1;VICE PRESIDENT CHARLES R. HOECKER
Plaintiffs hereby incorporate all the foregoing facts and allegations herein by reference
as if fully set forth. The foregoing Actions of the said Defendants Entitle Star & Alan
to Quiet Title on the said Property & home commonly referred to as being located
at [ 3018 Linden Avenue, Bakersfield California, Kern County ].
IXUNLAWFUL & FRAUDULENT CONVERSION
& TRANSFER OF REAL PROPERTYAGAINST GMAC MORTGAGE LLC;
MAC MORTGAGE LLC PRESIDENT JOHN DOE 1;VICE PRESIDENT CHARLES R. HOECKER;
ETS SERVICES LLC; ETS SERVICE LLC PRESIDENTJOHN DOE 2; ETS SERVICES SALES TRUSTEE Omar Solorzano
Plaintiffs hereby incorporate all the foregoing facts and allegations herein by reference
as if fully set forth. The foregoing Actions of the said Defendants amounted to
UNLAWFUL AND FRAUDULENT TRANSFER & OBLIGATION FOR WRONGFUL GAIN, in Violation of California Uniform Fraudulent Transfer Act, At Title 1, of
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California Civil Code, Section 3439, for which said Defendants are Jointly & Severally
Liable to Star & Alan.
XCONSPIRACY TO COMMIT FRAUD
AGAINST ALL DEFENDANTS Plaintiffs hereby incorporate all the foregoing facts and allegations herein by reference as
if fully set forth. The foregoing Actions of the said Defendants amounted to a
Conspiracy to commit Fraud for which said Defendants are Jointly & Severally
Liable to Star & Alan.
XICONSPIRACY TO COMMIT UNLAWFUL
& FRAUDULENT CONVERSION & TRANSFER OF REAL PROPERTY
AGAINST ALL DEFENDANTS
Plaintiffs hereby incorporates all the foregoing facts and allegations herein by
reference as if fully set forth. The foregoing Actions of the said Defendants
amounted to Conspiracy to Commit Unlawful & or Fraudulent Conversion of Title, for which said Defendants are Jointly & Severally liable to Star & Alan.
XIISLANDER OF TITLE
AGAINST ALL DEFENDANTS
Plaintiffs hereby incorporate all the foregoing facts and allegations herein by reference as if fully set forth. The foregoing Actions of said Defendants amounted to SLANDER
OF TITLE of Plaintiffs Property & home, for which said Defendants are personally
liable to Star & Alan Jointly & Severally.
XIIIINVOLUNTARY TRUST
California Civil Code Section 2223 & 2224AGAINST ALL DEFENDANTS
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Plaintiffs hereby incorporate all the foregoing facts and allegations herein by reference as if fully set forth. Under the foregoing facts Plaintiffs are Entitled to Relief against all
DEFENDANTS under the involuntary Trust including all the personal property now in
possession of any of said Defendants, as set forth in the complaint, & compensation for
any damage or loss of said property, including Legal & Lawful Title to the Home &
Property in question commonly referred to as located at [ 3018 Linden Avenue,
Bakersfield, California].
XIVEQUITABLE RELIEF
INCLUDING EQUITABLE INDEMNIFICATION,DECLARATORY & INJUNCTIVE RELIEF
AGAINST ALL DEFENDANTS
Plaintiffs hereby incorporate all the foregoing facts and allegations herein by
reference as if fully set forth. Based upon the foregoing Actions of the Defendants against Star & Alan, Star & Alan are Entitled to Equitable Relief from the alleged
Judgment Entered on November 19, 2009 after Trial on November 5, 2009 in Case #: S- 1500-CL- including Equitable Indemnification, Declaratory & Injunctive Relief against
said Defendants, including a Declaration by the Court that the alleged Mortgage
Contract, alleged Deed of Trust & alleged Mortgage Foreclosure sale of the home & property of Star: Hills in November of 2008 were Null & Void Ab Initio; & they
are Entitled to a FULL RECONVEYANCE OF THE LEGAL, LAWFUL, &
EQUITABLE TITLE, & A Permanent Restraining Order enjoining all defendants
from any future action against Star & Alan relating to the said Home & Property
& the alleged Mortgage, Foreclosure, sale & purchase of the Property & Home in
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question.
XVGENERAL NEGLIGENCE
AGAINST ALL DEFENDANTS---------------------------------------------------------
Plaintiffs hereby incorporate all the foregoing facts and allegations herein by reference
as if fully set forth. The foregoing actions of all named Defendants amounted to
GENERAL NEGLIGENCE for which said defendants are jointly & Severally Liable to
Plaintiffs for Damages as Determined by a trier of Fact.
XVIINTENTIONAL NEGLIGENCE
AGAINST ALL DEFENDANTS----------------------------------------------------------
Plaintiffs hereby incorporate all the foregoing facts and allegations herein by
reference as if fully set forth. The foregoing actions of all named Defendants
amounted to INTENTIONAL NEGLIGENCE for which said defendants are jointly &
Severally Liable to Plaintiffs for Damages as Determined by a trier of Fact.
XVIIMISFEASANCE; MALFEASANCE; NON FEASANCE
AGAINST ALL DEFENDANTS----------------------------------------------------------------------------------------------
Plaintiffs hereby incorporate all the foregoing facts and allegations herein by
reference as if fully set forth. The foregoing actions of all named Defendants
amounted to MISFEASANCE; MALFEASANCE; NON FEASANCE for which said
defendants are jointly & Severally Liable to Plaintiffs for Damages as Determined by a
trier of Fact.
-DAMAGES-
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The foregoing Actions of said Defendants Caused the following Damages to Star:
Hills & Alan Gjurovich:I. Loss to Star of approximately $ 72,000 dollars of lawful money and or credit
(subject to future amendment) due to the conspiracy, Fraudulent Inducement,
Promissory Fraud, etc. ;
II. Fraudulent, Unlawful Loss of Title to Home & Property due to the Conspiracy &
Fraud; Slander of Title Damage to & loss of Credit & false Credit & Tax Reporting
due to Slander of Title; Fraud; Deceit; Constructive Fraud; Etc.
III. Mental & Emotional Distress & Anguish due to the Conspiracy & Fraud, Abuse
of Process, Trespassing, harassment, terrorist threats & threats of vandalism to the
Home & Property of Star & Alan.
IV. Breach of Novation Contract;
V. Breach of THE DEED OF TRUST;
VI. Breach of Fiduciary;
VII. Cost of Suit & out of pocket expenses.
PRAYER
Alan Gjurovich & Star: Hills hereby pray to God Almighty the Creator of the
Universe for the following Relief :
I. Judgment in Treble Damages for each Count of Fraud of GMAC MORTGAGE
LLC, & all named Defendants Jointly & Severally, FOR $5,000,000 DOLLARS, OR
AN AMOUNT TO BE DETERMINED BY A JURY;
II. THREE TIMES THE AMOUNT OF LOSS OF Star: Hills & Alan Gjurovich in the
FRAUDULENT LOSS OF HOME & PROPERTY IN THE AMOUNT OF $245,000 x 3,
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OR $ 735,000 DOLLARS; or as Determined by a Jury.
III. Judgment in Treble Damages for the Fraud of ETS SERVICES, LLC, & their
EMPLOYEES , ETS SERVICES LLC SALES TRUSTEE Omar Solorzano; ETS
SERVICES LLC MANAGERS JOSEPH A. PENSABENA; MARK E. LAHIFF; ETS SERVICES LLC TRUSTEE SALE OFFICER Adam Leppo; FOR
THREE TIMES THE AMOUNT OF LOSS OF Star: Hills & Alan Gjurovich in
the FRAUDULENT LOSS OF HOME & PROPERTY IN THE AMOUNT
OF $245,000 x 3, OR $735,000 DOLLARS; or as Determined by a Jury.
IV. COMPENSATION FOR GENERAL NEGLIGENCE OF NAMED DEFENDANTS
FOR THE OMISSIONS OF DUTY OF ORDINARY CARE OWED TO
PLAINTIFFS IN PERPETRATING THE ACTS SET FORTH IN THE
COMPLAINT INCLUDING THE ACTS OF FRAUD & BREACHES OF THE
EXPRESS PROVISONS OF THE TRUST DEED, & BREACH OF ARTICLE 24
OF THE DEED OF TRUST IN THE AMOUNT OF 250,000 FOR EACH COUNT
AGAINST EACH DEFENDANT OR AS DETERMINED BY A JURY.
V. COMPENSATION FROM ALL DEFENDANTS FOR INTENTIONAL
NEGLIGENCE & BREACH OF THEIR DUTY OF CARE OWED TO
PLAINTIFFS UPON RECEPTION OF THE NOTICE OF RESCISISON OF
THE WHOLE MORTGAGE TRANSACTION PRIOR TO THE ALLEGED
PUBLIC AUCTION OF PLAINTIFFS HOME & PROPERTY, IN THE AMOUNT
OF 250,000 FOR EACH COUNT AGAINST EACH DEFENDANT OR AS DETERMINED BY A JURY.
VI. COMPENSATION FROM ALL DEFENDANTS FOR INTENTIONAL
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NEGLIGENCE & BREACH OF THEIR DUTY OF CARE OWED TO PLAINTIFFS FOR THEIR KNOWING & INTENTIONAL VIOLATION OF
EXPRESS PROVISIONS OF THE DEED OF TRUST UNDER ARTICLE 24
IN THE AMOUNT OF 250,000 FOR EACH COUNT AGAINST EACH
DEFENDANT OR AS DETERMINED BY A JURY.
VII. COMPENSATION FOR BREACH OF FIDUCIARY DUTY OF VICE PRESIDENT
& LOAN SERVICER CHARLES HOACKER IN VIOLATING THE ORIGINAL
PAYMENT REPRESENTATIONS MADE TO Star: Hills IN THE ORIGINAL
LOAN NEGOTIATIONS WHICH HE HAD A DUTY TO COMPLY WITH &
ENFORCE, & FOR FAILURE TO TIMELY INFORM Star: Hills OF ANY
PROPOSED CHANGE IN THE ORIGINAL REPRESENTATIONS THAT THE
INTEREST RATE WOULD BE FIXED AT 1% IN THE AMOUNT OF 1,000,000,
DOLLARS FOR EACH COUNT OR AS DETERMINED BY A JURY.
VIII. Compensation for Mental & Emotional Distress & Anguish due to the Conspiracy;
Fraud; Constructive Fraud; Deceit; Abuse of Process; Terrorist Threats; Trespassing;
Vandalism; Falsifying of Documents; Perjury; IN THE AMOUNT OF $ 1,000,000
Dollars FOR EACH DEFENDANT, or as determined by a Jury
XI. Compensation to Star: Hills pursuant to the Novation Agreement entered into by
Defendants pursuant to the agreement & Notice of Status in attached Exhibits for
18,000,000 Dollars, or as determined by a Jury;
X. Compensation for Court fees and Costs, Cost of suit.
XI. Equitable Relief including an Order Enforcing Rescission of the alleged Mortgage
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Contract & Note, a Declaratory Judgment that the Alleged Foreclosure and Sale of the Home & Property were Void Ab Initio, based upon a lawful prior Rescission of the
whole alleged Mortgage contract, & all other causes set forth in the complaint; & an
Order Setting Aside the alleged Judgment for Unlawful Detainer & Writ of
Possession of November 19, 2009, in Limited Civil Case #: S-1500-CL-237061-KCT;
Injunctive Relief and a Permanent Restraining Order Enjoining GMAC
MORTGAGE LLC & ALL NAMED DEFENDANTS, HEIRS, SUCCESSORS
ASSIGNS, EMPLOYEES, OFFICERS, AGENTS, CONTRACTORS from taking
any further actions against Star or Alan based upon the alleged Foreclosure &
Sale of said Home & Property, including an Order for Total Reconveyance of Title
to said Home & Property, & Order Quieting the Title to said Property & home in favor of Star & Alan.
XII. A Declaratory Judgment Against Defendants that The Deed of Trust was Rendered
Void Ab Initio upon the Breach of Article 24 by MERS & ITS OFFICERS
& EMPLOYEES; & A DECLARATORY JUDGMENT THAT THE “NOTICE OF
DEFAULT & ELECTION TO SELL”, THE ALLEGED “SALE” OF THE HOME &
PROPERTY OF PLAINTIFFS, & THE ALLEGED “TRUSTEES DEED UPON SALE”
ISSUED BY DEFENDANTS MERS THEIR OFFICERS & EMPLOYEES, ETS
SERVICES LLC TO GMAC MORTGAGE LLC, WERE ALL RENDERED VOID
DUE TO THE PRIOR BREACH OF ARTICLE 24 OF THE DEED OF TRUST
BY DEFENDANT MERS & THEIR OFFICERS & EMPLOYEES; & THAT THE
ALLEGED SUBSTITUTED TRUSTEE ETS SERVICE LLC HAD NO POWER OR
AUTHORITY UNDER THE DEED OF TRUST TO ISSUE ANY NOTICES OR TO
SELL OR CONVEY TITLE TO ANY PROPERTY, RENDERING THE PURPORTED
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NOTICE OF DEFAULT & ELECTION TO SELL VOID, & THE PURPORTED
SALE OF THE PLAINTIFFS HOME & PROPERTY VOID, & THE PURPORTED
TRUSTEES DEED UPON SALE VOID & UNENFORCEABLE AS A MATTER
OF LAW; & A Declaratory Judgment Against Defendants that any & all Actions &
Acts taken by them as alleged Agents of Lender to Execute the Mortgage & Deed
of Trust, including MERS & THEIR OFFICERS & EMPLOYEES, GMAC MORT.
LLC, & THEIR OFFICERS & EMPLOYEES, ETS SERVICES LLC, & ALL THEIR
OFFICERS & EMPLOYEES WERE VOID AB INITIO & ULTRA VIRES FOR
FAILURE TO COMPLY WITH EXPRESS PROVISIONS IN THE DEED OF
TRUST THAT THEY WOULD COMPLY WITH ALL STATE & LOCAL LAWS,
& SPECIFICALLY FOR VIOLATING THE EXPRESS PROVISIONS OF
CALIFORNIA CIVIL CODE SECTION 2933 MANDATING THAT: A po wer of
attorney to execute a mortgage must be in writing, subscribed,
acknowledged, or proved, certified, and recorded in like manner as powers
of attorney for grants of real property.
XIII. A TEMPORARY RESTRAINING ORDER ENJOINING THE NAMED
DEFENDANTS FROM TAKING ANY ACTION AGAINST THE SAID HOME &
PROPERTY OF Star & Alan, from entering on said property, from trespassing upon said property, from Vandalizing or damaging said Property in any way,
shape, form, or regard until final Adjudication of this Action;
XIV. Punitive or Exemplary Damages IN THE AMOUNT OF 2,000,000 DOLLARS
FOR EACH NAMED DEFENDANT OR AS Determined by a Jury, for Fraud
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with Malice Reckless Wanton Disregard for the Rights & Property of Star & Alan,
with Intent to do Injury and harm to Star: Hills & Alan Gjurovich.
IVX. Any other Relief the Court Deems Right and Proper under the facts & Law of
the Case.
On this day, the-Seventh-day-of-the-eleventh-month-of-Two-Thousand-and-Eleven,
____________________ Star: Hills, all Rights Reserved,
______________________ Alan Gjurovich,
all Rights reserved.
VERIFICATIO N Alan Gjurovich & Star: Hills hereby affirm under the Penalty of Perjury under
the laws of the State of California that we executed the foregoing Amended
Verified Complaint and that the contents of the same are true and correct, Except
as to those matters based upon information and belief, and as to those matters we
believe them to be true. Executed on this 7th day of November, Two Thousand and
Eleven in the Republic of California, County of Kern, City of Bakersfield,
_____________________ Star: Hills, all Rights Reserved.
__________________ Alan Gjurovich
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all Rights Reserved.
INCORPORATION BY REFERENCE & JUDICIAL NOTICE
------------------------------------------------------ PLAINTIFFS HEREBY INCORPORATE BY REFERENCE AS IF FULLY SET
FORTH THE EXHIBITS SET FORTH BELOW HEREIN BY REFERENCE WHICH
ARE ATTACHED TO THE FIRST VERIFIED COMPLAINT IN THIS CASE. THEY ARE
NOT ATTACHED DUE TO THE COST IN DUPLICATING WHAT IS ALREADY
PRODUECED IN THE ORIGINAL COMPLAINT, & THEREFORE THEY ARE HEREBY
MADE A PART OF THIS FIRST AMENDED COMPLAINT BY REFERENCE, WHICH
THE COURT IS REQUIRED TO TAKE MANDATORY JUDICIAL NOTICE OF
UNDER CALIFORNIA EVIDENCE CODE SECTION 450-459.
EXHIBIT PAGEINDEX OF EXHIBITS
------------------------------------------------------------
#1: QUIT CLAIM DEED OF Star: Hills RECORDED 1/27/2003, DOCUMENT #: 0203014911;
#2: ALLEGED UNIFORM RESIDENTIAL LOAN APPLICATION OF MAY 17, 2007; ALLEGED PROMISSORY NOTE OF MAY 17, 2007 RELATED TO ALLEGED REFINANCE MORTGAGE LOAN #: 40824789; TRUTH IN LENDING STATEMENT; ALLEGED DEED OF TRUST OF MAY 17, 2007 RELATED TO ALLEGED REFINANCE MORTGAGE LOAN #: 40824789;
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#3: ACCEPTANCE FOR VALUE; NOVATION CONTRACT; NOTICE OF PUBLIC STATUS; NOTICE OF FINAL DEFAULT & OFFER TO CURE OF Star: Hills
#4: NOTICE OF DEFAULT & ELECTION TO SELL; NOTICE OF SUBSTITUTION OF TRUSTEE; NOTICE OF RESCISSION OF Star: Hills SERVED ON GMAC MORTGAGE LLC & ETS SERVICES LLC PRIOR TO THE ALLEGED PUBLIC SALE OF 11/13/2008; NOTICE OF TITLE USC 18 VIOLATIONS OF Star: Hills;
#5: QUIT CLAIM DEED OF OCTOBER 5, 2009 OF Star: Hills TRANSFERRING ONE HALF OR 50 % PERCENT OF OWNERSHIP INTEREST TO LAWFUL, LEGAL, EQUITABLE, TITLE TO Alan Gjurovich OF THE REAL PROPERTY DESCRIBED AS: “All of Lot 17 in Block 26 of Skyline Park Subdivision No. 2 according to the map thereof filed on August 13, 1923, and recorded in Book 3, pages 88 to 93, inclusive, of Maps, in the Office of the County Recorder of said County. APN: 123-330-06” TRANSFERRED PRIOR TO THE ALLEGED JUDGMENT OF NOVEMBER 18, 2009 IN S-1500-CL-237061-LHB-KCT;
#6: ALLEGED “JUDGMENT– UNLAWFUL DETAINER” IN CASE #: S-1500-CL-237061 ALLEGEDLY ENTERED ON NOVEMBER 19, 2009 BY JUDGE KENNETH TWISSELMAN II;
#7: AFFIDAVIT OF Joseph: William REGARDING ALLEGED TRIAL TESTIMONY FOR PLAINTIFF GMAC MORTGAGE LLC, ON NOVEMBER 5, 2009 IN DEPARTMENT 8 OF THE METROPOLITAN DIVISION OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN & FOR THE COUNTY OF KERN; & AFFIDAVIT OF Joseph: William REGARDING DVD OF SECURITY CAMERA VIDEO OF MOTION DETECTION ENTRIES FROM APRIL 8, 2009 TO MAY 11, 2009 SHOWING NO ONE POSTED ANYTHING ON THE PREMISES OR DOOR OF Star: Hills AS FALSELY CLAIMED BY DEFENDANT GMAC MORTGAGE LLC;
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