Request,Application: MARTIN ENG VS. JP MORGAN CHASE BANK, N.A. ET AL (Pltf 170.6 Challenge Judge Quidachay)

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BRYAN Cave

560 MISSION STREET.
SAN FRANCISCO, CA

coup wm NI DH BF WN

BRYAN CAVE LLP

Daniel T. Rockey, California Bar No. 178604

Goli Mahdavi, California Bar No. 245705

560 Mission Street, 25th Floor

San Francisco, CA 94105-2994

Telephone: (415) 675-3400

Facsimile: (415) 675-3434

E-Mail: daniel.rockey@bryancave.com
goli.mahdavi@bryancave.com

Attorneys for Defendant
JPMORGAN CHASE BANK, N.A.

ELECTRONICALLY
FILED

Superior Court of California,
‘County of San Francisco

03/25/2016
Clerk of the Court
BY:MADONNA CARANTO

Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SAN FRANCISCO

MARTIN ENG,
Plaintiff,
v.
JPMORGAN CHASE BANK, N.A.;
QUALITY LOAN SERVICES; LENDER
PROCESSING SERVICES, INC., DOES 1-
1000 inclusive,

Defendants.

SFO1DOCS\275070.1

Case No, CGC-15-546377

SUPPLEMENTAL REQUEST FOR
JUDICIAL NOTICE IN SUPPORT OF
DEFENDANT JPMORGAN CHASE
BANK, N.A.’S DEMURRER TO
PLAINTIFF’S FIRST AMENDED
COMPLAINT; MEMORANDUM OF
POINTS AND AUTHORITIES IN
SUPPORT THEREOF

[Filed concurrently with Reply ISO
Demurrer]

Date: April 4, 2016

Time: 9:30 a.m.

Dept.: 302

Complaint Filed: June 16, 2015
FAC Filed: January 14, 2016
Trial Date: Not Yet Assigned

SUPPLEMENTAL REQUEST FOR JUDICIAL NOTICE [SO DEFENDANT'S DEMURRER TO PLAINTIFF'S FACoCUD ewe ND OH BF WHY =

BRYAN Cave LLP
560 MISSION STREET. 25TH FLOOR
SAN FRANCISCO, CA 94108-2994

TO PLAINTIFF AND HIS ATTORNEY OF RECORD:

PLEASE TAKE NOTICE that on April 4, 2016, at 9:30 a.m., or soon thereafter as the
matter may be heard n Department 301 of the above-entitled court, located at 400 McAllister
Street, San Francisco, CA 94102, Defendant JEPMORGAN CHASE BANK, N.A. (“Defendant”)
will, and hereby does, respectfully request that the Court take judicial notice of the documents
attached to this Request for Judicial Notice (“RJN”) as Exhibits J through L.

Exhibit J: Complaint for Monetary Damages, filed on April 28, 2009, in San
Francisco Superior Court, Case no, CGC-09-487853,

Exhibit K: Third Amended Complaint, filed on June 1, 2010, in San Francisco
Superior Court, Case no, CGC-09-487853.,

Exhibit L: Order Sustaining Demurrer to Third Amended Complaint, filed on October
14, 2010, in San Francisco Superior Court, Case no, CGC-09-487853,

This Supplemental Request for Judicial Notice is made in support of Defendant’s
Demurrer to Plaintiff's First Amended Complaint and is based on the attached Memorandum of
Points and Authorities, all pleadings and papers on file in this action, and such other and further

matters as the Court may consider.

Dated: March 24, 2016 BRYAN CAY)

By:

oti Mahdavi

Attorneys for Defendant
JPMORGAN CHASE BANK, N.A.

SFO1DOCS\275070.1 1

SUPPLEMENTAL REQUEST FOR JUDICIAL NOTICE ISO DEFENDANT’S DEMURRER TO PLAINTIFF'S FACoom ND OH RB Ww NY |

Bon = S

BRYAN Cave LLP
560 MISSION STREET. 25TH FLOOR

SAN FRANCISCO, CA 94105-2994
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MEMORANDUM OF POINTS AND AUTHORITIES

Pursuant to California Code of Civil Procedure sections 430,30(a) and 430,70, Defendant
JPMORGAN CHASE BANK, N.A. (“Defendant”) request that this Court take judicial notice of
Exhibits J through L in considering its Demurrer to Plaintiffs First Amended Complaint.

Section 452(c) of the California Evidence Code provides that the Court may take judicial
notice of “{o]fficial acts of the legislative, executive, and judicial departments of . . . any state of
the United States” Section 452(h) of the California Evidence Code provides that the Court may
take judicial notice of “[fJacts and propositions that are not reasonably subject to dispute and are
capable of immediate and accurate determination by resort to sources of reasonably indisputable
accuracy.”

This Court may take judicial notice of Exhibits J through L because they are documents
filed with the Superior Court of San Francisco County. Judicial notice may be taken of records of
any court of this state or the United States, See Cal. Evidence Code § 452(c), (d); Aaronoff v.
Martinez-Senfiner, (2006) 136 Cal. App. 4th 910, 918; (“Judicial notice may be taken of any court
record.”); Duggal v. G.E. Capital Comm. Servs., Inc. , (2000) 81 Cal.App.4th 81, 86 (permitting
judicial notice of the records of California court).

For these reasons, Defendant respectfully request that the Court take judicial notice of the

attached Exhibits J through L.

Dated: March 24, 2016 BRYAN CA
Daniel Rockey
Goli Mahdavi

By:

A
Gofi Mifidavi———
Attorneys for Defendant
JPMORGAN CHASE BANK, N.A.

SFOIDOCS\275070.1 |

SUPPLEMENTAL REQUEST FOR JUDICIAL NOTICE ISO DEFENDANT'S DEMURRER TO PLAINTIFF*S FACEXHIBIT JCc c SUM-100
- SUMMONS (SCRE USE OY ray
(CITACION suDiciaL)
NOTICE TO DEFENDANT: “4UMC 7001 punal Sank, FA, a covperohen
(AVISO AL DEMANDADO): J. p, MetsAn Conse. Bink, NP TuAAL Aton te
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(LO ESTA DEMANDANDO EL DEMANDANTE):

PRIN ENG

You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a
copy served on the plaintiff, A letter or phone call will not protect you. Your written response must be fn proper legal form If you want the
court to hear your case. There may be a court form that you can use for your response. You can find these court forms and more ,
Information at the Cafiformia Courts Online Self-Help Center (www.courtinfo.ca.gov/selfhelp), your county law library, or the Courthouse.
nearest you. If you cannot pay the fiting fee, ask the court clerk for a fee watver form. If you do not fife your response on time, you may
lose the case by default, and your wages, money, and property may be taken without further warning from the court.

There are other legal requirements. You may want to calf an attomey right away. If you do not know an attorney, you may want to call an
attorney referral service. If you cannot afford an attorney, you may be eligible for free tegal services from a nonprofit legal services
program. You can locate these nonprofit groups at the California Legal Services Web site (www.lawhelpcalifomia.org), the California
Courts Online Self-Help Center (www.courtinfo.ca.govise!fhelp), or by contacting your local court or county bar association.

Tlene 30 DIAS DE CALENDARIO después de que le entreguen esta citacién y papeles legates para presentar una respuesta por escrito
en esta corte y hacer que se entregue una copia al demandante, Una carta o una Hamada telefonica no lo protegen. Su respuesta por
escrito tiene que estar en formato legal correcto si desea que procesen su caso en la corte. Es posible que haya un formulario que usted
Pueda usar para su respuesta. Puede encontrar estos formutarios de la corte y m4s Informacién en ef Centro de Ayuda de las Cortes de
California (www.courtinfo.ca.gov/setfhelp/espanol), en fa biblioteca de teyes de su condado o en fa corte que le quede mas cerca. Sino
puede pagar fa cuota de presentacién, pida al secretario de fa corte que ie dé un formulario de exencién de pago de cuotas. Sino presenta
su respuesta a tempo, puede perder el caso por incumplimiento y fa corte le podré quitar su sueldo, dinero y bienes sin mas advertencia,

Hay otros requisitos legales. Es recomendable que llame a un abogado inmediatamente. Si no conoce a un abogado, puede Hamar aun
servicio de remisién a abogados. Sino puede pagar a un abogado, es posible que cumpia con Ios requisitos para obtener servicios
legales gratuitos de un programa de servicios legales sin fines de lucro, Puede encontrar estos grupos sin fines de lucro en el sitio web de
California Legal Services, (www.lawhelpcalifornia.org), en ef Centro de Ayuda de fas Cortes de California,
(www.courtinfo.ca.gov/selfhelp/espanol) o poniéndose en contacto con /a corte o ef colegio de abogados locales.

The name and address of the courtis: Sprain COVe7 of re 18 lease mmcr:
(El nombre y direccién de la corte es): “Cay e Chet meron og. 4878 5 3
400 HeAlbiszen eo” 7
SiN Flavin, (4 PYlo2

The name, address, and telephone number of plaintiff's attomey, or plaintiff without an attorney, is:
(El nombre, fa direccién yet numero de teléfono del abogado del demandante, o del demandante que no tiene abogado, es):

VARTA RN
807 Kemeny ST; Saw fRanersee, CA 9urog (HS) Mb-11 7 ey Kr
: af 7 PNATT 9)

fecha) PR 28 2009 Gordon Pare-Li  Gekty = TT taetunto)

{For proof of service of this summons, use Proof of Service of Summons (form POS-010).)

{Para prueba de entrega de esta citatién use el formulario Proot of Service of Summons, (POS-010)).
NOTICE TO THE PERSON SERVED: You are served

1. [1] as an individual defendant.

2. [] 2s the person sued under the fictitious name of (specify):

3, [2] onbehait of (specify):

under: (—] CCP 416.10 (corporation) [1] CCP 416.60 (minor)
(] CCP 416.20 (defunct corporation) [] CCP 416.70 (conservatee)
{] CCP 416.40 (association or partnership) [—} CCP 416.90 (authorized person)
[1 other (specity):

4. [] by personat delivery on (date): Page tot

Code of Cat Procedure §§ 412.20, 465

Form Adopted hor Mandatory Use
Suabi00 [Rev denny 92009) SUMMONS€ C cMo

[ATTORNEY OR PARTY WIEHOUT ATTORNEY (tema, State Bar naroer, ond eOmrets), "FOR COURT USE ONLY

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MAILING ADORESS:

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CASENAME: Hen Eng va Wasipaléped Hopel Sant, AP Dopaty Clerk

CIVIL CASE COVER SHEET Complex Case Designatio rer -
Untimited — [_] Limited oO Oo sont G 0. 497853
{Amount {Amount Counter Joinder
demanded demanded is Filed with first appearance by defendant | “=
exceeds $25,000) _ $25,000 or less) (Cal. Rules of Court, rule 3.402) bert:

items 1-6 below must be completed (see instructions on page 2).
11, Check one box below for the case type that best describes this case:

Auto Tort Contract Provisionatty Comptex Civit Litigation
‘Auto (22) Breach of eontractwarranty (06) (Cal. Rules of Court, rutes 3.400-3.403)
Uninsured motorist (48) Rule 3.740 collections (09) [1 Antitrusvteade regutation (03)
Other PUPDIWD (Personal InjuryIProperty KH Other collections (09) LJ construction defect (10)
Damage/Wrongtul Death) Tort Insurance coverage (18) (J mass tort (40)
Asbestos (04) [71 otter contract (37) (J securities tigation (28)
a Habitty (24) Real Property CJ EnvironmentatToxic tort (30)
fedical malpractice (45) infinverse
5 otmee PypoMn (23) C1 Exige it TI seararee creeroge cain ating om be
Non-PUPDWD (Other) Tort 7] wrongitl eviction (33) types (41)
Business torvuntair business practice (07) WA Other real property (26) Enforcement of Judgment
Civ sights (08) Unlawful Detainer (1 Enforcement of judgment (20)
Defamation (13) Commercial (31) Misceltaneous Civil Complaint
Fraud (16) Co] Resisersia (32) CO ricovr)
Intettectuat property (19) Drugs (38) J other comptaint (not specified ebove) (42)
Professional negigence (25) Judictat Review Sea bettocild al eaed
Other non-PUPDIND tort (35) Le) Asset forteture (05) Partnership and corporale governance (21)
Employment 1 Petition re: arbitration award (t1) £1 other pettion (not spectied above) (43)
‘Wrongful termination (36) (1) watt of mandate (02)
TJ other employment (15) [J other judicial review (39)

2. Thiscase L_Jis THisnot — complex under rule 3.400 of the California Rules of Court. If the case Is complex, mark the
factors requiring exceptional judicial management: 7

a. oO Large number of separately represented parties da. oO Large number of witnesses
b.[2] extensive motion Practice raising difficult or novel _e. [_] Coordination with related actions Pending in one or more courts
issues that will be time-consuming to resolve in other counties, states, or countries, or in a federal court

c.(] Substantiat amount of documentary evidence £. (2) substantiat postiudgment judicial supervision

. Remedies sought (check aff that apply): af monetary b. Kl fonmonetary; declaratory or injunctive relief c, FBouritive
Number of causes of action (specify):

. Thiscase [lis FR )isnot actass action suit.

}. If there are any known related cases, file and serve a notica of related case. (You Us

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(IPE OR PRINT NAME)

7 NOTICE

© Plaintiff must file this cover sheet with the first paper filed in the action or Proceeding (except smafl claims cases o1 es filed
under the Probate Code, Family Code, or Welfare and Institutions Code). (Cal. Rules of Court, rule 3.220.) Failurg’to file may result
in sanctions.

* File this cover sheet in addition to any cover sheet required by local court rule.

* If this case Is complex under rute 3.400 et seq. of the Califomia Rules of Court, you must serve a copy of this cover sheet on all
other parties to the action or proceeding. ie

© Uniess this is a collections case under rule 3.740 or a complex case, this cover sheet will be used for statistical purposes only. #

Fomppnae ear oe CIVIL CASECOVER SHEET ee aandin hase heats ea
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MARTIN ENG ; SUMMONS a
809 Kearny Street San Francisco County Superior Court
San eG OMelT set APR 28 2009
Telephone: E111 NFERERCE!
Fax: (415) 680-1699 CASEMANAGEMEST C0!
E-mail: MartinEng¢@yahoo.com: - --- - GORUUN HARK, Clerk
Plaintiff in Pro Per SEP 2.5 2009 -QB AN Depa Ce
P, NATT
DEPARTMENT 22
SUPERIOR COURT OF CALIFORNIA,
CITY AND COUNTY OF SAN FRANCISCO, UNLIMITED JURISDICTION
MARTIN ENG, } No. CGC-09-487853
Plaintiff, } COMPLAINT FOR MONETARY DAMAGES
vs. ) 1, Breach of Contract
) 2 Declaratory Relief Against Defendants
WASHINGTON MUTUAL BANK, ) 3. Quiet Title
FA, a Corporation; J.P, MORGAN > 4 Injunctive Relief Against Defendants
CHASE BANK, NATIONAL ) 5. Violation of Truth and Lending 12 USC,
ASSOCIATION, a Corporation, ) §2601 et Seq.,
BUCKLEY REALESTATEINC.,a ) 6 Violation of the Real-estate Procedures
Corporation SEAN BUCKLEY, an ) Settlement Act, 15 USC §1601 et Seq
individual, QUALITY LOAN Dottie Violation of Rosenthal Fair Debt
SERVICE CORP., a Corporation, PLM ) Collection Practices Act
LENDERS SERVICES, a Corporation;,) 8. Frau
and DOES 1 through 100, inclusive, 7) 9. Cancellation of Instrument
DANIEL Y. WenG y
Defendants. } JURY TRIAL DEMANDED
)

Plaintiff Martin Eng, in Pro Per, herein alleges
INTRODUCTORY ALLEGATIONS

1. Plaintiff MARTIN ENG is now, and at all times relevant to this complaint was,

the owner by fee simple interest of the real property commonly known as 939 Lombard St., in

San Francisco, California (the “Subject Property”). The legal description described as follows:
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF SAN
FRANCISCO, COUNTY OF SAN FRANCISCO, STATE OF CALIFORNIA AND IS

1

Complaint for Monetary Damageso

DESCRIBED AS FOLLOWS:

COMMENCING at a point on the Southerly line of Lombard Street, distant thereon 137

feet 6 inches Westerly from the point formed by the intersection of the Southerly line of

Lombard Street with the Westerly Sine of Jones Street; running thence Westerly along the

Southerly line of Lombard Street 27 feet, 6 inches; thence at a right angle Southerly 137

feet, 6 inches; thence at a right angle Easterly 27 feet, 6 inches; thence at a right angle

Northerly 137 feet, 6 inches to the point of commencement. APN: Lot 21, Block 72.

This property is located in San Francisco County. Plaintiff family has owned this
property for 85 years.

2. That at all times herein mention, defendant WASHINGTON MUTUAL BANK,
FA (hereinafter “WAMU”), is a Corporation doing business in the State of California, County of
San Francisco.

3. That at all times herein mention, defendant J.P. MORGAN CHASE BANK,
NATIONAL ASSOCIATION (hereinafter “J.P. MORGAN”), is a Corporation doing business in
the State of California, County of San Francisco.

4. That at all times herein mention, defendant BUCKLEY REAL ESTATE INC.
(hereinafter “BUCKLEY REAL ESTATE”), is a Corporation doing business in the State of
California, County of San Francisco,

5. Plaintiff understands and believes, and on that basis alleges, that defendant
SEAN BUCKLEY (hereinafter “BUCKLEY”), is an individual and resident of the County of
San Francisco, California.

6. Defendant QUALITY LOAN SERVICE CORP. (hereinafter “QUALITY” is a
California corporation authorized to engage in, and at all times mentioned in this complaint was
engaged in, the foreclosure, debt collection and home lending business as an agent. This
defendant is the current First trustee of the deed of trust described below.

7. Defendant PLM LENDERS SERVICES (hereinafter “PLM”) is a California
corporation authorized to engage in, and at all times mentioned in this complaint was engaged in,

the foreclosure, debt collection and home lending business as an agent. This defendant is the

Complaint for Monetary Damageswo mY A He Ww YD =

QBRRRRPBBRREBSERAABREEHRAS

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current trustee of the Second deed of trust described below.

&. That the true names or capacities, whether individuals, corporations, associates,
or otherwise, of the defendants DOES 1 through 100, inclusive, are unknown to plaintiff, who
therefore sues said defendants by such fictitious names.

9. Plaintiff is informed and believes, and upon such information and belief alleges
that each of the defendants designated herein as a DOE is legally responsible in some manner for
the events and happenings referred to herein and caused injuries and damages proximately caused
thereby to the plaintiff'as hereinafter alleged. Plaintiff will seek leave of Court to amend this
complaint to show the true names and capacities of the defendants designated herein as a DOE
when the same have been ascertained.

10. Plaintiff is informed and believes, and thereon alleges that at all times herein-
mentioned, each of the defendants sued as Does 1 through 100, inclusive, was the agent,
employee, assignee, servant of each of the remaining defendants, and was at all times acting
within the purpose and scope of such agency and employment. Plaintiff further alleges that the
acts of each defendant was authorized and ratified by the other defendants.

1h. The activities and events upon which plaintiff sues herein were done in the State
of California to be performed in the County of San Francisco, and in the state of California.
Hence, venue is proper in this court.

GENERAL ALLEGATIONS AND FACTS
First Trust Deed

12. On or about June 28, 2005, Martin Eng, as borrower, made, executed and
delivered to defendant WAMU, a written promissory note in the approximate amount of
$1,789,500.00,

13. To secure payment of the principal sum and interest as provided in the note and
as part of the same transaction, Martin Eng, as trustor, executed and delivered to defendant,
WAMU as original beneficiary, a deed of trust dated June 28, 2005, by the terms of

which plaintiff, as trustor, conveyed to Califomia Reconveyance Company as trustee, real

property described in paragraph | above. On July 22, 2005, the deed of trust was recorded against

3

Complaint for Monetary Damages€ C

the subject property, as instrument No. 2005-H996159-00, in book xxxx, page xxx of the Official
Records of Office of the Recorder of San Francisco County, California. On or about February
12, 2009, defendant Quality was substituted as Trustee.

” eaiteiiicalit: Second Trust Deed

14, On or about December 28, 2005, Martin Eng, as borrower, made, executed and
delivered to defendant BUCKLEY REAL ESTATE a written promissory note in the approximate
amount of $600,000.00.

15. To secure payment of the principal sum and interest as provided in the note and
as part of the same transaction, Martin Eng, as trustor, executed and delivered to defendant,
BUCKLEY REAL ESTATE as original beneficiary, a deed of trust dated December 28, 2005, by
the terms of which plaintiff, as trustor, conveyed to PLM as trustee, for BUCKLEY REAL
ESTATE, real property described in paragraph 1 above. On or about December 30, 2005, the
deed of trust was recorded against the subject property, as instrument No. 2005-1103367-00, in
the Official Records of Office of the Recorder of San Francisco County, California.

16, On or about November 3, 2008, defendant PLM and BUCKLEY REAL
ESTATE caused to be recorded a Notice of Default and Election to Sell Under Deed of Trust
giving notice that a Trustee’s Sale may be held in San Francisco County, alleging that a breach of
the obligation secured by the deed of trust had occurred, consisting of plaintiff's alleged failure to
pay certain monthly installments of principal and interest, and that defendant, as beneficiary,
elects to sell, or to cause to be sold, the trust property to satisfy that obligation. The Notice of
Default and Election to Sell Under Deed of Trust contends the outstanding default is in the
amount of $654,670.91.

17, Plaintiff is informed and believes, and thereon alleges, that defendant WAMU is
in the process of, and will, cause to be filed a Notice of Default on the afore-mentioned Deed of
Trust.

18. A breach of the obligation for which the deed of trust is security is excusable
because the beneficiary improperly benefitted due to fraud and breach of contract as well as other

illegal actions as hereinafter described. An actual controversy exists between plaintiff and

4

Complaint for Monetary Damagesoy

€

defendants concerning their respective rights and duties pertaining to the subject property and the
described transactions in that plaintiff contends that the contract between the parties has been
breached and that the default being instigated is improper and illegal in the present circumstances
and that the court should intervene to protect the plaintiff's interests, and that defendant disputes
this contention and contends that the power of sale remains intact.

19. The amount of damages plaintiff seeks from each defendant, for each cause of
action, is in excess of $25,000, which is the jurisdictional minimum of this court.

FIRST CAUSE OF ACTION
BREACH OF CONTRACT
(Against all Defendants And Does 1 Through 100)

20. Plaintiff re-alleges and incorporates by reference the above paragraphs as though
set forth fully herein.

21. Plaintiff entered into several financing and mortgage agreements with all
named defendants, and/or their assignors. These were for credit and financial services consisting
of a loan to finance and/or secure the aforementioned subject property. The defendants breached
the contract by failing to exercise their discretion reasonably when enforcing the terms of the
contract. The contract called for the defendant to exercise discretion in the granting of the loan
and assessing the appraisal of the property and the commitments that would be made by plaintiff
to repay the loan amounts. In failing to exercise that discretion and acting in a reasonable manner
with respect to the plaintiff, defendants were breaching the contract with the plaintiff.

22. In addition, the defendants breached the contract by refusing to negotiate in good
faith to relieve the plaintiff from the effects of the deal that had been thrust upon the plaintiff
against his interests. The defendants had a duty under the contract to negotiate terms that would
protect the plaintiff from abusive lending practices and the other detriments to the plaintiff=s
financial well being.

23. As a direct and proximate result of said actions by defendants, plaintiff has
suffered loss of money and income, emotional distress, and suffered business disadvantages and

lost business

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opportunities, and faces the loss of the residence herein, as well as other consequential damages.
SECOND CAUSE OF ACTION
DECLARATORY RELIEF
= ‘(Against all Defendants And Does 1 Through 100)

24, Plaintiff re-alleges and incorporates by reference the above paragraphs as though
set forth fully herein.

25. Defendants contend that they have the right to foreclose on Plaintiffs Home,
including without limitation, conducting a trustee's sale relative to the property in accordance
with California law.

26. Plaintiff is informed and believes, and thereon alleges that Defendants do not
have standing or any enforceable right to enforce the note and incidental rights to collateral so as
to foreclose on Plaintiff's Home, including without limitation, conducting a trustee's sale relative
to that property in accordance with California law.

27, An actual controversy presently exists between Plaintiff and Defendants as to
the existence of Defendants’ ability or right to foreclose on Plaintiff s Home.

28. A judicial decision is necessary and appropriate at this time so that Plaintiff and
Defendants may ascertain their respective rights relative to Plaintiff s Home.

THIRD CAUSE OF ACTION
QUIET TITLE AGAINST DEFENDANTS
(Against all Defendants And Does 1 Through 100)

29. Plaintiff re-alleges and incorporates by reference the above paragraphs as though
set forth fully herein.

30. Defendants claim a legal or equitable right, title, estate, lien or interest in the
afore-mentioned property, and further alleges that defendants do not, and cannot claim an interest
in the property.

31. Plaintiff is the original owner of the property and asks the Court to declare that
he is the exclusive owner of a full interest in the property in absolute fee simple title.

32, Plaintiff is seeking to quiet title against the claims of defendants and all other

6

Complaint for Monetary Damages€ C

defendants which may exist. Any and all claims made by defendants to the subject property are
without any right whatsoever and such defendants have no right, title, estate, lien or interest in

the property.

33. Accordingly, plaintiff seeks to quiet title against defendants and all other
defendants, as of the date of filing this complaint.

FOURTH CAUSE OF ACTION
INJUNCTIVE RELIEF AGAINST DEFENDANTS
{Against all Defendants And Does 1 Through 100)

34, Plaintiff re-alleges and incorporates by reference the above paragraphs as though
set forth fully herein.

35. Defendants do not have standing or enforceable right to enforce the note and any
incidental right to collateral so as to foreclose on Plaintiff's Home, including without limitation,
conducting a trustee's sale relative to that property.

36. Defendants threaten to, and unless restrained, will foreclose upon Plaintiff's
home by conducting a trustee's sale or causing a trustee's sale to be conducted, or otherwise.

37. Any such action would result in a new cause of action for "wrongful
foreclosure," cause irreparable harm to Plaintiff and will cause pecuniary compensation which
will not afford equate relief because Plaintiff's Home is unique in that it is a house on the famed
“Lombard Street;’ in San Francisco. Accordingly, injunctive relief is necessary to enjoin
Defendants from foreclosing upon plaintiff's Home since defendants lack standing and any
enforceable rights under the Promissory Note.

FIFTH CAUSE OF ACTION
VIOLATION OF TRUTH AND LENDING
12 USC §2601 et seq.,
(Against all Defendants And Does 1 Through 100)

38. Plaintiff re-alleges and incorporates by reference the above paragraphs as though

set forth fully herein.

a

39, The disclosure statement issued in conjunction with this consumer credit

1

Complaint for Monetary DamagesoO NDA Rh WwW DN

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transaction violated the requirements of Truth in Lending Act, 15 U.S.C. §1601, et seq.
Specifically the defendants failed to provide the required disclosures prior to consummation of

the transactions in violation of Truth in Lending Act, section 1638.

40. In addition, the defendant failed to provide the required disclosures clearly and
conspicuously in writing in violation of Truth in Lending Act, section 1632(a).

41. The blatantly inadequate disclosures failed to warn the plaintiff of the nature of
the loans he was committing to and the full extent of the charges and fees that he would be
subjected to at the risk of losing in property under foreclosure.

42, Plaintiff is informed and believes and thereon alleges the following violations:
- Violation of the “Alternative Mortgage” loan requirement as defined by 12 USC '3801,
3802, 3803 et seq.;

- Failure to provide adequate interest disclosures as provided by Federal law. (Title 12, Part
226, Regulation Z);

- Failure to give the borrower(s) the required 3 day right of recision as required by
Regulation Z, nor the appropriate number of copies;

- Failure to give a Good Faith estimate as required and in compliance with 12 Code of
Federal Regulation, §226.188, 12 U.S.C. §2601 et seq. and other federal and state regulations;

- Failure to properly disclose the finance charge and a brief description as to the dollar
amount the credit will cost the Borrower.

- Failure to provide proper disclosure statements, including the total sales or refinance price
in the loan documents.

- Failure to properly disclose the prepayment penalty.

- Failure to advise borrower of information pertaining or relating to nonpayment, default,
the right to cancel, or rescission;

- Failure to provide Truth in Lending disclosures as required by Title 12 Code of Federal
Regulations;

- Failure to use the proper forms, approved by the Federal Reserve Board, as required by
Regulation Z, Part 226 et seq. and the forms used do not display OMB numbers;

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- Failure to provide a form for rescinding the contract as required by Title 12 Code of
Federal Regulations §226.23(b)(1);

- Failure to disclose to the borrower that the finance fee, if adjusted to maximum allowed

by the Note, would be usury as required by Federal Regulation;

- Failure to keep evidence of compliance with Regulation Z and the regulation disclosure
requirements for a period of 2 years as required by Title 12 of the Federal Code of Regulations;
- Failure to provide borrower all required disclosures when the note was sold, assigned or
servicing was transferred as required by Regulation Z;

- The total points, commissions and costs exceed the amount tolerable under the Federal
Laws and Regulations;

- The yield spread premiums were excessive and/or not properly disclosed to the borrower
in accordance with Federal laws and regulations.

43. The harm and damages that the plaintiff was exposed to were of exactly the type
that the act was designed to prevent and thus protect consumers like plaintiff against. By reason
of the aforesaid violations of the Truth in Lending Act, defendant is liable to plaintiff in the
amount of twice the finance charge, actual damages to be established at trial, and attorneys fees
and costs in accordance with Truth in Lending Act, section 1640.

SIXTH CAUSE OF ACTION
VIOLATION OF THE REAL-ESTATE PROCEDURES
SETTLEMENT ACT, 15 USC §1601 ET SEQ
{Against all Defendants And Does 1 Through 100)

44, Plaintiff re-alleges and incorporates by reference the above paragraphs as though
set forth fully herein.

45. The disclosure statement issued in conjunction with this consumer credit
transaction violated the requirements of Real-estate Procedures Settlement Act, 15 USC §1601 et
seq., including, but not limited to the following violations:

- Failure to receive signed documents at the time of closing, or within a reasonable amount

of time of signing;

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- Failure to provide the borrower with signed copies of the complete loan transaction, as
required by 15 USC '1601 et seq., or within a reasonable amount of time;
- Failure to provide the required statements under 15 USC §1639(a)(1)(A) and (B);
- Failure to disclose the fact that the margin added to the index exceeded the amount
allowed by 15 USC §1602 et seq.;
- Failure to disclose that the settlement fees could not be a part of the amount financed;
- Failure to provide preliminary disclosures as required by 15 USC §1601 et seq.;
- Failure to make the proper disclosures required by 15 USC §1601 et seq. and Title 12
Code of Federal Regulation, §226.18, clearly and conspicuously in writing, in a form that
Borrowers could keep as required by 15 USC §1601 et seq. and Title 12 Code of Federal
Regulations.
SEVENTH CAUSE OF ACTION
VIOLATION OF ROSENTHAL FAIR DEBT FAIR DEBT COLLECTION PRACTICES
(Against all Defendants And Does 1 Through 100)

46. Plaintiff re-alleges and incorporates by reference the above paragraphs as though
set forth fully herein.

47. The Rosenthal Fair Debt Collection Practices Act, Civil Code §1788 et seq, was
enacted in 1976 to protect consumers from the oppressive and over-reaching debt collection
practices of creditors and professional debt collectors. Civil Code §1788.1(b). The Legislature
found that "unfair or deceptive debt collection practices undermine the public confidence which
is essential to the continued functioning of the banking and credit system and sound extensions
of credit to consumers." Civil Code §1788.1(a)(2). The Rosenthal Act as originally passed set
forth a list of proscribed collection practices. Then, in 1999, the Legislature expanded creditor
liability even further, by incorporating violations of the federal Fair Debt Collection Practices
Actas violations of the Rosenthal Act. Civil Code §178817. The effect of this amendment was to
subject creditors to the prohibitions of federal law, from which they had previously been
exempted.

48. Defendants at all times relevant herein were "debt collectors" within the

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meaning of Civil Code §1788.2(d), in that they regularly and in the ordinary course of business,
on behalf of themselves or others, engaged in acts and practices in connection with the collection
of consumer debt. Plaintiff is a "debtor" within the meaning of Civil Code §1788.2(h) in that they
are natural persons fro Tom whom defendants sought to collect a consumer debt alleged to be due
and owing.

49. Defendants violated the Rosenthal Act by, inter alia, using false pretense to
collect the debt and harassing plaintiff incessantly to collect the debt, all in violation of §1788, et
sea.

50. On information and belief said violations were done willfully and knowingly,
thus entitling plaintiff to a monetary penalty to be determined at trial, in addition to damages and
costs, including attorney’s fees.

EIGHTH CAUSE OF ACTION
FRAUD
(Against all Defendants And Does 1 Through 100)

51. Plaintiff re-alleges and incorporates by reference the above paragraphs as though
set forth fully herein.

52. Plaintiff herein alleges that in order to induce plaintiff into entering into the
afore-mentioned loans, defendants, and each of them, informed plaintiff that the loan was a fixed
loan, and not a “negative amortization” loan; stated erroneous interest rates at the time of
signing; stated that there were no other “fees” other than those stated on the good faith estimate,
and that there were no other “junk fees” or other fees, commissions or yield spread premiums to
be charged; that plaintiff would later be allowed to again refinance the Ioan at a later date fora
better rate and term; provided an overvalued appraisal of the property; and informed plaintiff that
plaintiff would be able to afford the afore-mentioned loans and informed plaintiff that there were
no pre-payment penalties.

53. Said representations were false, and defendants knew them to be false, but made
said representations to that plaintiff would rely on those misrepresentations to induce him into

entering into the afore-said loans.

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54. Plaintiff relied on said representations, and entered into the afore-mentioned
loans.

55. Asa direct and proximate result of defendants’ conduct, plaintiff suffered and
continues to suffer damages, including severe emotional distress, humiliation, mental aguish, and
the loss of his home, all according to proof.

56. The afore mentioned acts were despicable, willful, wanton and malicious and
oppressive, justifying the award of punitive damages according to proof at trial.

NINTH CAUSE OF ACTION
FRAUD ,
(Against all Defendants And Does 1 Through 100)

37. Plaintiff re-alleges and incorporates by reference the above paragraphs as though
set forth fully herein.

58. The Deeds of Trust to plaintiff's property as stated herein purporting to transfer
tight title and interest to defendants were obtained by deceit, fraud, misrepresentation, undue
influence, and illegal means as previously set forth herein.

59, Accordingly, plaintiff seeks cancellation of the Deeds of Trust as stated herein
from plaintiff to defendants.

WHEREFORE, plaintiff prays for judgment against the defendants and each of them as
follows:

PRAYER FOR RELIEF
1, General damages according to proof; :
Special damages according to proof;
For costs of suit incurred herein;
Prejudgment interest according to law;
For Attorney's Fees;
For Punitive Damages and Exemplary Damages;

For cancellation of all deeds of trust encumbering the properties;

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For an Order Quieting Title to the property;

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Complaint for Monetary Damagesmy
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149 For permanent injunction against defendants for claiming any interest in the properties;

3] 10. — Forall such further relief as the court deems just and proper.

4] Dated: April 17, 2009 Zz

Martin Eng,
Plaintiff in Pro Per

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VERIFICATION
I, Martin Eng, am the plaintiff in this proceeding. I have read the foregoing complaint
and know the contents thereof, The same is true of my own knowledge, except as to those
matters which are therein alleged on information and belief, and as to those matters, I believe it
to be true.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct and that this Hg and Fore ication were executed on this

day of. , 2009, at , California.

ah

Martin Eng

Complaint for Monetary DamagesEXHIBIT KMARTIN ENG
809 Kearny Street

San Francisco, CA 94108
Telephone: (415) 246-1111 “a
Fax: (415) 680-1699 gg ate
E-mail: MartinEng@yahoo.com no OT EY 7
Plaintiff in Pro Per CLERKOF Tb i
ev f
SUPERIOR COURT OF CALIFORNIA,
CITY AND COUNTY OF SAN FRANCISCO, UNLIMITED JURISDICTION
MARTIN ENG, No. CGC-09-487853
Plaintiff, THIRD AMENDED COMPLAINT
FOR MONETARY DAMAGES
vs.
1. Breach of Contract (Wrongful Foreclosure)
2. Fraud
WASHINGTON MUTUAL BANK, 3. Violation of Good Faith and Fair Dealing
FA, a Corporation; J.P. MORGAN 4. Intentional Infliction of Emotional Distress

CHASE BANK, NATIONAL
ASSOCIATION, a Corporation,
BUCKLEY REAL ESTATE INC., a
Corporation; SEAN BUCKLEY, an
individual, QUALITY LOAN
SERVICE CORP., a Corporation, PLM
LENDERS SERVICES, a Corporation,
DANIEL Y. WONG, and DOES 1
through 100, inclusive,

5. Unjust Enrichment
6. Injunctive Relief
7, Accounting

JURY TRIAL DEMANDED

Defendants.

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INTRODUCTORY ALLEGATIONS

1. Plaintiff Martin Eng is now, and at all times relevant to this complaint was, the
owner by and through his ownership interest in Pioneer 74 Lots, LLC, of the real property
commonly known as 939 Lombard Street, in San Francisco, California (the “Subject Property”).
This property is located in San Francisco County. Plaintiff has owned this property since

October 16, 2003.

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2. Defendant JPMorgan Chase Bank (hereinafter “JPMorgan Chase”) is a
California corporation authorized to engage in, and at all times mentioned in this complaint was
engaged in, the mortgage and lending business as a professional private lender. The defendant is
informed and believes and on that basis alleges that JPMorgan Chase is successor in interest to
the original lender Washington Mutual Bank by reason of a merger between business entities.

3. Defendant Quality Loan Service Corp. (hereinafter “Quality Loan’) is a
California corporation authorized to engage in, and at all times mentioned in this complaint was
engaged in, the foreclosure, debt collection and lending business as an agent. This defendant is
the current trustee of the deed of trust described below.

4. The activities and events upon which plaintiff sues herein were done in the State
of California to be performed in the County of San Francisco, and in the state of California.
Hence, venue is proper in this court.

5. The true names and capacities of the defendants named herein as Does 1 through
20, inclusive, whether individual, corporate, associate or otherwise, are unknown to plaintiff who
therefore sues such defendants by fictitious names. Plaintiffs are informed and believes that Doe
defendants are California residents. Plaintiffs will amend this complaint to show such true
names and capacities when they have been determined.

6. Plaintiffs are informed and believes, and thereby alleges, that each of the
defendants herein was at all times relevant hereto the agent, employee or representative of the
remaining defendants and was acting at least in part within the course and scope of such

relationship.

7. In June 28" of 2005, Martin Eng, as borrower, made, executed and delivered to
WASHINGTON MUTUAL BANK, FA, (hereinafter “WAMU”), a written promissory note in
the approximate amount of $1,789,500.

8. To secure payment of the principal sum and interest as provided in the note and
as part of the same transaction, Martin Eng, as trustor, executed and delivered to WAMU, as
beneficiary, a deed of trust dated June 28, 2005, by the terms of which plaintiff, as trustor,

conveyed to defendant, Quality Loan, as trustee, real property described in paragraph 1 above. On

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July 22, 2005, the deed of trust was recorded against the subject property, as instrument No.
2005-I-1998 159-00, in the Official Records of Office of the Recorder of San Francisco County,
California.

9. On February 13, 2009, defendant Quality Loan caused to be delivered to the
plaintiff a Notice of Default and Election to Sell Under Deed of Trust giving notice that a
Trustee’s Sale may be held in San Francisco County, alleging: (a) That a breach of the obligation
secured by the deed of trust had occurred, consisting of plaintiff's alleged failure to pay certain
monthly installments of principal and interest; and (b) That defendant, as beneficiary, elects to
sell, or to cause to be sold, the trust property to satisfy that obligation.

10, The Notice of Default and Election to Sell Under Deed of Trust described above
contends that the outstanding past due amounts to bring the debt current totaled $72,972.58.

ll. On March 25, 2009, defendant Quality Loan caused to be delivered to the
plaintiff a Debt Validation Notice. This notice described the total delinquency amount as
$73,325.58. This Notice of Trustee’s sale described above contends that the outstanding unpaid
principal balance is $1,831,544.38.

12. The contract that was signed by the plaintiff and the business obligation that the
plaintiff was induced to undertake was a negative amortization loan that the plaintiff was
deceived and remained uninformed that such was the nature of the obligation. As a result of this
fraudulent inducement the plaintiff's outstanding loan amount increased from the original $1.7
million to almost $1.9 million and placing plaintiff under a burdensome debt obligation that was
obtained by fraud and surprise.

13. A breach of the obligation for which the deed of trust is security is excusable
because the beneficiary improperly benefitted due to fraud and breach of contract as well as other
illegal actions as hereinafter described. An actual controversy exists between plaintiff and
defendants concerning their respective rights and duties pertaining to the subject property and the
described transactions in that: (a) Plaintiff contends that the contract between the parties has been
breached and that the default being instigated is improper and illegal in the present circumstances

and that the court should intervene to protect the plaintiff's interests; and (b) Defendant disputes

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this contention and contends that the power of sale remains intact.

14. At some time the defendant J.P. Morgan became the successor in interest in the
loan but without the power to enforce the deed of trust thereunder because it has not acquired all
of the interests of its predecessor and as such does not possesses the original note or the powers
that are conferred by virtue of it.

15. The lack of any interest by J.P. Morgan Chase in the breach of the contract
would mean that the defendant would be able to breach the contract with impunity without
suffering any consequences, The law is not so cruel. The equitable doctrine of fairness means
that the defendant who has an interest in and accepts the benefit of breaching the contract must
accept liability under the law. It may be true that the defendant J.P. Morgan Chase has a contract
with the F.D.L.C. that avoids the accounting debits. That does not mean that it can avoid liability
for its actions. The degree of responsibility of defendant J.P. Morgan Chase should be assessed
at trial after full discovery of all the aspects of the defendant’s position with respect to the
contract which unarguably has been breached.

16. In the alternative, if the original note holder WAMU transferred to J.P. Morgan
Chase the promissory note and Deed of Trust, then J.P. Morgan Chase became the holder of the
power of sale in the Deed of Trust and is bound by the terms of the original contract as the
successor in interest therein. As such, J.P. Morgan Chase further breached said contract by
failing to abide by its terms, inter alia, failure to negotiate in good faith and failure to allow the
plaintiff to benefit by the terms of the contract.

17. The amount of damages plaintiffs seek from each defendant, for each cause of
action, is in excess of $25,000, which is the jurisdictional minimum of this court.

FIRST CAUSE OF ACTION
(BREACH OF CONTRACT —- WRONGFUL FORECLOSURE)

18. The allegations of paragraphs | through 17 are realleged and incorporated herein
by reference. This cause of action is pled against each and every defendant.

19. It is hereby alleged that the defendants do not have standing to bring foreclosure

because they are not in possession of the original note. In addition, it was defendant Washington

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Mutual who was the original note holder and it is an exclusive right of the original note holder to
foreclose. The other defendants who are attempting to bring a foreclosure do not have the right
under the power of sale of the deed of trust to bring an action for foreclosure. It is alleged that
the foreclosure that is being sought is improper for that reason, among others.

20. A breach of the obligation for which the deed of trust is security is excusable
because the beneficiary improperly benefitted due to fraud and breach of contract as well as other
illegal actions as hereinafter described. An actual controversy exists between plaintiff and
defendants concerning their respective rights and duties pertaining to the subject property and the
described transactions in that: (a) Plaintiff contends that the contract between the parties has been
breached and that the default being instigated is improper and illegal in the present circumstances
and that the court should intervene to protect the plaintiff's interests; and (b) Defendant disputes
this contention and contends that the power of sale remains intact.

21. In addition, defendant J.P. Morgan Chase knowingly obtained a defective note
from WAMU with the sole motive of being able to foreclosure on a predatory loan for the direct
purpose of unjust enrichment to the great damage to the plaintiff. This transfer of benefit and
enrichment to another party who is not responsible for the liabilities associated with the creation
of the loan is a breach of contract which is directly damaging to the plaintiff.

22. The defendant has never provided the promissory notes relative to the property,
an original or a copy.

23. The defendant J.P.Morgan Chase never gave any notice of the foreclosure or
notice of trustee sale, and any prior notice was invalid as given by a prior note holder.

24. In addition, the defendants breached the contract by refusing to negotiate in good
faith to relieve the plaintiff from the effects of the deal that had been foisted on the plaintiff
against his interests. The defendants had a duty under the contract to negotiate terms that would
protect the plaintiff from abusive lending practices and the other detriments to the plaintiff's
financial well being.

25. In addition to the above, the plaintiff Martin Eng has information and belief and

on that basis alleges that the defendant J.P.Morgan Chase does not have the original note. It is

5

Third Amended Complaintimproper to commence the process of foreclosure without the original note. Without the original
note the defendant is out of compliance with the Civil Code §2924, et seq. and has thus, failed to
comply with the requirements of that and related statutes. Therefore, the defendants herein are
not in compliance with the duties of a party attempting to foreclose on a promissory note and
have not complied with the respective rights of the plaintiff, In addition, the defendants have not
performed their duties pertaining to the subject promissory note and the transactions as described
above, in that the Notice of Trust