Complaint,Petition: ELVIA E PINEDA VS. BANK OF AMERICA N.A ET AL

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                                ELVIA E. PINEDA
CINDY N. PINEDA
4300 JENKINS WAY
RICHMOND CA 94806
415-533-0884

CINDY N. PINEDA, IN PRO PER
ELVIA E. PINEDA, IN PRO PER

Jade ot ag

Bape’

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SAN FRANCISCO

CINDY N. PINEDA
ELVIA E. PINEDA
Plaintiff,
vs.
BANK OF AMERICA RECONTRUST,

Defendant

Case No.: CGC-16-554968

AMENDED VERIFIED COMPLAINT FOR
DAMAGES AND INJUCTIVE RELIEF

1. WRONGFUL FORECLOSURE

INTENTIONAL FRAUD AND DECEIT

NEGLIGENT FRAUD

CONCEALMENT FRAUD

ACTUAL FRAUD

PROMISSARY FRAUD

BREACH OF IMPLIED CONVENANT

OF GOOD FAITH AND FAIR DEALING

NEGLIGENCE

VIOLATION OF BUSINESS AND

PROFESSION CODE

10. CONSTRUCTIVE TRUST Civil Code §§
2223, 2224

11. SLANDER OF TITLE

12. UNJUST ENRICHMENT

oO Nowpwn

RESPECTFULLY REQUEST FOR JURY TRIAL

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AMENDED COMPLAINT FOR NOTICE OF MOTION AND MOTION FOR JUDGEMENT ON THE PLEADINGS.

\TO THIS HONORABLE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD
HEREIN:

Plaintiffs hereby allege as follows:

PARTIES
Plaintiff Cindy N. Pineda was the trustor owner by inheritance of divorce settlement. 251
Sagamore was known to defendants and others since 2009 as Cindy n. Pineda Special Needs
Trust, as Cindy N. Pineda is disabled with special needs. Plaintiff Cindy N. Pineda was never
informed by Bank Of America of any Intent of Foreclosure or anything document stating that
the house was in default, giving the opportunity to bring the debt current; if there were any
debt past due to begin with. Plaintiff did not realize there was any fraud or wrongdoing on
defendants part until Plaintiff (A) “Mother” Elvia E. Pineda filed lawsuit in October of 2016.

California Civil Code SS 3439.09(a).

Plaintiffs Elvia E. Pineda is at all times relevant herein a resident of Contra Costa County, State
of California. Plaintiff was the former owner of the subject property since 1994. The subject
property is located at 251 Sagamore Street, San Francisco, in California. Plaintiff did not
discover everything that had been done to her was legally wrongful and fraudulent as she was
going through divorce, daughter suffering a gun shot wound coming home from work in San
Francisco, son being deported and health issues that arose immediately thereafter defendants

took possession of her home that she had for sale until “Cindy Valerio” from Bank of America

urged her to take off the market, to then later say they foreclosed on the property.

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AMENDED COMPLAINT FOR NOTICE OF MOTION AND MOTION FOR JUDGEMENT ON THE PLEADINGS.27

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Defendant Bank of America, N.A (hereinafter “BofA”), is at all relevant times and is a national
banking association doing business in the State of California.

Defendant Recontrust Company, N.A.N (hereinafter “RECONTRUST”), was at all relevant times
and is a California business, form unknown, authorized to do business in the State of California.
Plantiffs believe and thereon allege that, each of the defendants sued herein, acted in concert

pursuant to conspiracy to the acts hereinafter alleged.

INTRODUCTION
The action arises out of a residential home loan for a personal residence located at 251
Sagamore Street, San Francisco, California 94112 (hereinafter the “subject property”). The legal
description of the subject property is: All that certain real property situate in the County of San
Francisco, State of California , described as follows:

BEGINNING at point on the Southerly line of Sagamore Street, (widened), distant thereon 344.122 feet
Easterly from Easterly terminus of a curve with a radius of 10 feet and a central angle of 148 decrees
39°12” connecting said Southerly line of Sagamore Street with the Northeasterly line of Alemany Boulevard,
as shown on Map entitled “Map Showing the Widening of the Intersection of Alemany Boulevard and
Sagamore Street’, filed February 16,1953, in Book “R” of Maps, at page 41, in the Office of the Recorder of
the City and County of San Francisco, State of California; running thence Easterly along said line of
Sagamore Street 25 feet; thence at a right angle Southerly 81 feet, thence at a right angle Westerly 25 feet;
thence at a right angle Northerly 81 feet to the point of the beginning.

BEING a portion Block “A” Railroad Homestead Association. Assessor’s Parcel

Number: Lot 13B, Block 7148.

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AMENDED COMPLAINT FOR NOTICE OF MOTION AND MOTION FOR JUDGEMENT ON THE PLEADINGS.Pursuant to this residential home loan, the plaintiff and her husband, who is not a party to this
action. (“Exhibit “ A“), Plaintiff and then husband filed for divorce, as part of the divorce
agreement Fredy E. Pineda left all interest in the property and their entirety to Daughter Cindy

N. Pineda and Wife Elvia E. Pineda. Including subject property.

CHARGING ALLEGATIONS

On August 28,2003 plaintiff Elvia Pineda and then husband executed a Deed of Trust
Document No. 2003-H523725-00. Said Deed of Trust listed the trustee as PRLAP, Inc., who is
not a party to this action.

On November 14,2008 Plaintiff Elvia Pineda and then husband executed a Trust
Transfer Deed recorded as Document No. 2008-1683721-00. The New Grants was Plantiff Elvia
Esperanza Pineda as Trustee of the Plaintiff Cindy Noemi Pineda 2009 Special Needs Trust, The
Deed of Trust listed beneficiary as Defendant “Bank of America”. Plaintiffs Mother Elvia E.
Pineda and husband wanted Plaintiff Cindy N. Pineda to not struggle with her disability
(wheelchair bound, victim of a violent crime in San Francisco) and financially as this injury
entails a big expense; Therefore leaving her “subject property” that would cover everything for
her special needs and secure her life long disability.

On July 27,2010 a Notice of Default was “allegedly” recorded against the plaintiff and the
subject property as Document No.2010-J004591-00. The Notice of Default for the first time
listed “Donald Hanly & Leo Andrew Hanly for Property Address 3371 Lake Tahoe Blvd #16,

South Lake Tahoe CA 96150” (Who are not parties to this Claim). (EXHIBIT B)

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AMENDED COMPLAINT FOR NOTICE OF MOTION AND MOTION FOR JUDGEMENT ON THE PLEADINGS.Plaintiffs ask the court to take Judicial notice with the following documents as they are undeniably
true as they are documents submitted by the Defendants in 2010. CA Ev Code § 452(g)
This property is shown in EXHIBIT C and is described as 3371 Lake Tahoe Blvd # 16, South
Lake Tahoe, CA is a two story, single family home that contains 3,387 sq. ft and was built in
2006. It contains 4 bedrooms and 4 bathrooms. Its in a very luxurious area with a lot of
touristic amenities. Defendants Bank of America filed a Notice of Trustee's Sale to be sold at an
auction 11/29/2010 for 3371 Lake Tahoe Blvd #16, South Lake Tahoe, CA on 11/08/2010.
(EXHIBIT C)
This Explains the outstanding amount shown of: $17,642.21 on court documents Defendants
“BofA and RECONTRUST” submitted falsely claiming were filed for plaintiffs “Subject Property”,
This amount was no where near Plaintiffs Monthly Mortgage payment of around $2,000.00 a
month. Defendants Negligently confused Plaintiffs file and “Subject property” with above
mentioned 3371 Lake Tahoe Blvd. #16 property located in “El Dorado County” that has no

connection with “Subject Property” or Plantiffs whatsoever. Rowland v. Christian (1968) 69
Cal.2d 108

The Loan Number for that property was 10-0085334 and the Loan number to Plaintiffs
subject property was 10-0085344.

Plaintiffs ask the court to please take judicial notice to documents submitted by Defendants,
the Cover letter in EXHIBIT B, CA Ev Code § 452(g) it has “Subject property address 251
Sagamore Street, San Francisco CA” HAND WRITTEN on top but the information on the
CALIFORNIA DECLARATION PAGE IS NOT THE SUBJECT PROPERTY ADDRESS! This validates
Plaintiffs claims that there was negligence, and fraud on behalf of the Defendants.

California Penal Code section 132 PC states:

“Every person who upon any trial, proceeding, inquiry, or investigation whatever,
authorized or permitted by law, offers in evidence, as genuine or true, any book, paper,

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AMENDED COMPLAINT FOR NOTICE OF MOTION AND MOTION FOR JUDGEMENT ON THE PLEADINGS.document, record, or other instrument in writing, knowing the same to have been
forged or fraudulently altered or ante-dated, is guilty of felony.

Both offering and preparing false evidence are obstruction of justice crimes in California. Penal
Code 132 PC makes it a felony to knowingly present false written evidence in pretty much any kind of
legal proceeding. Similarly, Penal Code 134 PC makes it a crime to prepare any false evidence with the
intent to use it in a legal proceeding (even if, for whatever reason, the false evidence never actually gets

presented in court.)

On July 28,2010 Defendants Bank of America once again “allegedly” recorded against the}
plaintiff a Notice of Default Doc. No. 2010-J005194-00. This time, with the same information
and cover letter information as the document submitted on July 27,2010. The outstanding
amount still showed $17,642.21 and this is false and it’s the outstanding balance of the
borrowers beforementioned not the Plaintiffs Loan. This was never corrected and continued to
pose as true without verified correction or certification therein. Plaintiffs Monthly Mortgage
payment amount was $2,186.42 (See Plaintiffs past Mortgage Payment Receipts Exhibit H)
With the amount owed that Defendants alleged, Plaintiff would of have to of been
approximately 8 months behind which is not true, and was not the case..

This was wrongful foreclosure, The defendants BANK OF AMERICA ALSO SOLD 3371
LAKE TAHOE BLVD #16, SOUTH LAKE TAHOE, CA THROUGH AUCTION ON THE SAME DATE
11/29/2010! PLEASE SEE (EXHIBIT C) THE FILING DATE WAS 11/8/2010 AND THE AUCTION
DATE WAS SET TO 11/29/2010. THIS WAS NOT MERE COINCIDENCE! THAT IT WAS THE SAME)
DATE THAT THEY RECORDED A NOTICE OF TRUSTEES SALE AND THE SAME AUCTION DATE.
THEY COMPLETELY MISTOOK MY LOAN WITH SOMEONE ELSES FORECLOSURE! Defendants
Bank of America and RECONTRUST wrongfully took my property with above mentioned

Borrowers of Defendants and put their debt on PLANITFFS profile.

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AMENDED COMPLAINT FOR NOTICE OF MOTION AND MOTION FOR JUDGEMENT ON THE PLEADINGS.Now, very recently while reviewing documents submitted to the court by Defendants, the
Plaintiffs made this discovery. Its Plaintiffs conclusion, that the Defendants Negligently
confused my property with another borrower of theirs. (Documents in Defendants Exhibit D
Memorandum of Points) also shows a Notarized Document Title Order No. 4497215 Hasa
corrected and Initialed date of 01/21/2010, which is one year prior to when Defendants said
Plaintiff Elvia Pineda was in default which is conspiracy against Plaintiffs to wrongfully take
possession of subject property. The Document also states under PENALTY of PERJURY that the
“subject property” Doc. No. J075909-00 will be sold 11/29/2010 but the document attached is
signed by Defendants Vice President at the time Declaration of Exemption” was signed
7/12/2010. (Exhibit L)

This improper recording of the Notice of Default broke the chain of recorded title
rendering all subsequent foreclosure proceedings, including the trustees sale, void and of no
effect. (Pro Value Properties Inc. v. Quality Loan Service Corp. (2009) 170 Cal. App. 4%

579,581,583; Dimock v. Emerald Properties (2000) 81 Cal.App.4 868,874,876)

On August 10,2010, a substitution of Trustee was recorded as Document No. 2010-
J017722-00. This substitution of Trustee formally substituted in the trustee named for the first
time in the Notice of Default recorded on July 28,2010, two weeks earlier, Defendant
RECONTRUST as the new trustee in favor of the original trustee in the Deed of Trust, PRLAP,
Inc. Said Substitution of Trustee was dated July 26,2010 but executed and notarized on August
2,2010, and executed August,10,2010.

On November 8,2010, a Notice of Trustee’s Sale was recorded as Document No 2010-

J075909-00 by the successor trustee, Defendant RECONTRUST. This Notice of Trustee’s Sale

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AMENDED COMPLAINT FOR NOTICE OF MOTION AND MOTION FOR JUDGEMENT ON THE PLEADINGS.listed a sale date of November 29,2010. Again, This was only days after I was urged to remove

my property from MLS, and a mere 10 days after the last email received from Defendants Cindy
Valerio attaching more documents for Plaintiff to fill out, sign and return to Defendants Bank of
America. (EXHIBIT E) A misrepresentation need not be oral; it may be implied by conduct.” Thrifty-

Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th 1559, 1567. Moreover, false representations made
recklessly and without regard for their truth in order to induce action by another are the equivalent of|
misrepresentations knowingly and intentionally uttered. Yellow Creek Logging Corp. v. Dare
(1963) 216 Cal.App.2d 50, 55

On October 14, 2010 before the “foreclosure” of this subject property, plaintiff listed the
subject property for sale for the sum of $583,000.00. (EXHIBIT F) Since April,2010 Plaintiff was
in the hospital a lot, with excruciating pain from Left Knee problems, and Right Foot Plantar
Fascitis (Please see Exhibit “G”). Plaintiff was on various medications and undergoing a lot of
emotional and physical distress. Plaintiff Elvia Pineda was also trying to get over a divorce, and
her daughters life changing tragedy that left Plaintiff Cindy N. Pineda disabled.

On Monday October 18,2010 Plaintiff Elvia Pineda received a phone call from Cindy
Valerio from Bank of America Loan Modification Department. Cindy Valerio was fluent in
English and Spanish. She spoke to Plaintiff Elvia Pineda in Spanish (Plaintiffs primary language)
over the phone and Defendant “BofA” representative asked Plaintiff Elvia Pineda to apply for a
Loan Modification to keep her subject property, without having to sell it and no longer see her
“forever home”. Plaintiff Elvia Pineda repeatedly refused, and told her she already had her
property for sale and explained to Defendants Representative the pain she was suffering and

everything she was going through at that moment and how she really didn’t want to apply for

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AMENDED COMPLAINT FOR NOTICE OF MOTION AND MOTION FOR JUDGEMENT ON THE PLEADINGS.this program. Plantiffs monthly mortgage payment to Defendants “BofA” were only $2,186.42
(As shown on the receipts Plaintiff Elvia Pineda was able to recover from her files). (EXHIBIT H)
Plantiff had cash flow from the “subject property’s” upstairs Unit that more than covered the
mortgage. The payments weren't really the only issue as | explained to Defendants “BofA”
Representative, the reason behind Plaintiff selling was the emotional and physical horrible

events Plaintiffs were going through at the time.

Plaintiff Elvia Pineda had never even heard of this “Loan Modification Program” up until
October 18,2010 when Defendants first ever phone encounter was made. Defendants never got
in contact with Plaintiffs until October 18,2010 but Defendants “BofA” Representatives falsely
checked off “Tried with Due Diligence to contact the borrower in Accordance with California
Code Section 2923.5” . Again, Defendants “BofA” Representative was a very pushy agent and
continued calling the Plaintiff Elvia Pineda for days, pitching her this Loan Modification
program that would reduce monthly mortgage payments significantly; pushing and insisting
Plaintiff Elvia Pineda to apply for it. Basically taking advantage of the very chaotic time in
Plaintiffs Elvia E. Pineda life. Defendants Bank Of America employee saw a very weak and
vulnerable person and ultimately took advantage of a newly Single Mother, taking care of her
paralyzed daughter, who needed her while she was going through events of her own. Plaintiff
Elvia E. Pineda trusted them with her business for decades, and never imagined Defendants

would go to such lengths for greed and power.

Finally, Plaintiff Elvia Pineda had enough of these persistent calls and was tricked with

false promises into applying for a Loan Modification. Defendant's Employee/representative

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AMENDED COMPLAINT FOR NOTICE OF MOTION AND MOTION FOR JUDGEMENT ON THE PLEADINGS.

.urged Plaintiff Elvia Pineda to take her house off the market so they can get this Loan
Modification process done immediately. Defendant’s Employee/representative verbally
promised Plaintiff Elvia Pineda that she would have lower monthly mortgage payments while
getting to keep her home for Plaintiff's future generations. Plaintiff naively called her real estate|
agent and told him the conversation she had with Bank of America Representative Cindy
Valerio and that he needed to remove the property from the market to obtain the loan
modification.
The subject property was taken off the market by Plaintiff Elvia Pineda’s Real Estate

Agent “Withdrawn and canceled” on 11/03/2010. Please see (EXHIBIT I)

T emailed Mrs. Valerio back and forth, all of my personal documents, paycheck stubs, divorce
certificate copies, tax documents, everything she asked me for I emailed to her

at(cindy.valerio@bankofamerica.com) The last email J have from her is from November

19,2010 as shown in Exhibit “J”.

Defendants Submitted Notice of Trustee’s Sale Monday November 8,2010 only 5 days after
Plaintiff Elvia Pineda took house off the market as Defendants Bank Of America told her to do
so saying “subject property” would be sold at a public auction on November 29,2010.
DEFENDANTS “BOFA” WERE STILL EMAILING ME PAPERWORK TO FILL OUT AND SEND
WHILE THEY WERE UNETHICALLY AND UNTRUTHFULLY DOING ALL OF THIS! (IN
DEFENDANTS EXHIBIT D) California Civil Code 1710(2)(a)(b)(c)(d)(e) The tort of deceit or fraud|

requires: “(a) misrepresentation (false representation, concealment, or nondisclosure); (b)

knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable

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AMENDED COMPLAINT FOR NOTICE OF MOTION AND MOTION FOR JUDGEMENT ON THE PLEADINGS.reliance; and (e) resulting damage.” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th
951, 974; see also Molko v. Holy Spirit Ass’n (1988) 46 Cal.3d 1092, 1108”
” Defendant BOFA misled and deceived the Plaintiff:

false representations made recklessly and without regard for their truth in order to induce action by
another are the equivalent of misrepresentations knowingly and intentionally uttered. Yellow Creek

Logging Comp. v. Dare (1963) 216 Cal. App.2d 50, 55

Defendants “BofA” Employee called Plaintiff Elvia Pineda in November of 2010, stating
the approval letter would come in the mail and to await an email from Defendants Bank of
America and/or a phone call from them once everything had been processed and approved.
That false promise never came to pass. Around one of the most special and important Holidays
of the year “Thanks Giving”, Plaintiffs Elvia Pineda and Cindy N. Pineda came to their house and|
all the locks were changed. At the time Plaintiff Cindy N. Pineda who is Plaintiff Elvia Pineda’s
daughter were unable to get inside their house that had all their personal belongings. That day
Plaintiff couldn’t catheterize herself and both Plaintiffs were hysterically crying in front of their
home confused and distraught not knowing what to do. Plaintiff Elvia Pineda immediately
called Defendants Cindy Valerio, BOFA Main Number and no one responded or had an answer
to what was going on. Plaintiffs emailed her when they got to a computer and there was no
more communication thereafter. Plaintiffs did everything Defendants Bank of America asked
her to do, and sent all the documents Bank of America requested from her. Plaintiff Elvia E.
Pineda repeatedly called Mrs. Valerio and emailed her and had no response from then on. It was
a total shock to plaintiffs as plaintiffs were working on this Loan Modification that apparently
was a tactic to extend time for this wrongful doing they had conspired to do against Plaintiffs

Elvia Pineda and Cindy N Pineda.

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AMENDED COMPLAINT FOR NOTICE OF MOTION AND MOTION FOR JUDGEMENT ON THE PLEADINGS.27

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{Intentional fraud and deceit occur when the perpetrator uses deceit (false important facts) to convince the
victim to rely on the false facts. Then the victim reasonably relied on and was harmed by the deceit.} Bradley v. Hartford
Acc. & Indem. Co. (1973) 30 Cal.App.3d 818, 825; Tumer v. Milstein (1951) 103 Cal.App.2d 651, 658; Committee On
Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216-217.

Califomia Civil Code section 1710 (a) misrepresentation (false representation, concealment, or nondisclosure); (b)
knowledge of falsity (or ‘scienter); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting
damage.” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974; see also Molko v. Holy Spirit Ass'n
(1988) 46 Cal.3d 1092, 1108.

Plaintiff Elvia E. Pineda had subject property for sale, she wouldn’t of taken subject

property off of the market for $583,000.00 just to get it “foreclosed” weeks after. Not

only did they take possession of the house by means of fraud and submitting false and
inaccurate information submitted to the courts, but they took Plaintiff Cindy N Pineda’s

Physical therapy equipment, hospital bed, Gym Equipment, Plaintiffs mothers bed,

dishes, furniture, 2 stoves, Refrigerator, construction equipment left by Plaintiffs ex-
husband i.e. (Ladder, Saws, Drills, Tile Saw, etc.) all summing up to approximately
$50,0000.00. Plaintiff Elvia Pineda and husband worked 2-3 jobs for more than 10
years to be able to make various upgrades on subject property. Most upgrades done
with permits, not mentioning the upgrades done by ourselves with no need for
contractors (I.e. Flooring, Baseboards,paint, gardening, doors, light fixtures, etc.)
Dealing with the emotional stress and burden of going through Building Inspection who
instructed us to tear down old in-law and re-do up to code. New electrical, plumbing,
painting, upgrades. We spent thousands of dollars, and took out loans to do all of this to
their forever home “subject property.”

(see Exhibit M) (One of the receipts to just one of many upgrades done to subject

property. All upgrades upstairs and downstairs, adding up to approximate $100,000.00

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AMENDED COMPLAINT FOR NOTICE OF MOTION AND MOTION FOR JUDGEMENT ON THE PLEADINGS.PLAINTIFF CINDY N. PINEDA
If Indeed, subject property was in Default, Defendants also, failed to correctly address new
2008 Grants that stated as follows: “plaintiff’ Elvia Esperanza Pineda as Trustee of the
“Plaintiff” Cindy Noemi Pineda 2009 Special Needs Trust, The Deed of Trust listed beneficiary
as Defendant “Bank of America”. All documentation submitted was directed to Elvia E. Pineda
and Freddy E. Pineda Grant from 2003. However, on Defenants NOTICE OF SURPLUS FUND
FROM TRUSTEE’S SALE dated January 13,2011 Defendant “RECONTRUST” Attorney
acknowledge Plaintiffs Elvia E. Pineda and Cindy Noemi Pineda Special Need trust as Prior
Owner. (Exhibit N)
Plaintiff Cindy N. Pineda was nowhere on any of the inaccurate documents submitted to the
courts. I was never contacted via phone, email, or any other form of communication as
required by California Civil Code § 2923.5

2923.5. (a) (1) A mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent may
not record a notice of default pursuant to Section 2924 until both of the following:

(A) Either 30 days after initial contact is made as required by paragraph (2) or 30 days after
satisfying the due diligence requirements as described in subdivision (e).

(B) The mortgage servicer complies with paragraph (1) of subdivision (a) of Section 2924.18, if
the borrower has provided a complete application as defined in subdivision (d) of Section
2924.18.

(2) A mortgage servicer shall contact the borrower in person or by telephone in order to assess
the borrower s financial situation and explore options for the borrower to avoid foreclosure.
During the initial contact, the mortgage servicer shall advise the borrower that he or she has
the right to request a subsequent meeting and, if requested, the mortgage servicer shall
schedule the meeting to occur within 14 days. The assessment of the borrower s financial
situation and discussion of options may occur during the first contact, or at the subsequent
meeting scheduled for that purpose. In either case, the borrower shall be provided the toll-free
telephone number made available by the United States Department of Housing and Urban
Development (HUD) to find a HUD-certified housing counseling agency. Any meeting may occur'|
telephonically.

(b) A notice of default recorded pursuant to Section 2924 shall include a declaration that the
mortgage servicer has contacted the borrower, has tried with due diligence to contact the
borrower as required by this section, or that no contact was required because the individual
did not meet the definition of borrower pursuant to subdivision (c) of Section 2920.5.

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AMENDED COMPLAINT FOR NOTICE OF MOTION AND MOTION FOR JUDGEMENT ON THE PLEADINGS.(c) A mortgage servicer s loss mitigation personnel may participate by telephone during any
contact required by this section.

Another argument Plaintiff has is Defendants “Bank of America AND RECONTRUST” recorded
the Notice of Default as Plaintiff Elvia E. Pineda and Fredy E. Pineda, NOT Elvia Esperanza
Pineda for Cindy N .Pineda 2009 Special Needs Trust” the foreclosure documents were based
on the 2003 Deed of Trust and amongst other things done terribly wrong, and were not based

on the 2008 Updated Deed Of Trust. Civ. Code. SS 2924b(b)(4).

Furthermore, the aforementioned publications and recordings were motivated by greed,

oppression, malice, and fraud on the part of the defendants.

Plaintiff Cindy N. Pineda was a victim of a violent crime in San Francisco at the age of (On
March 31 of 2007). Plaintiff was in Rehabilitation for months at Kaiser Permanente Vallejo
Rehabilitation Department. Breathing was a major obstacle as the gun shot wound entered and
punctured both lungs. Plaintiff needed to breath through a breathing tube in her neck because
both lungs were deflated. Plaintiff was not independent for years, and relied solely on Plaintiffs
Mother “Plaintiff Elvia E. Pineda”. The gun shot wound passed Plaintiffs spinal cord, and
although the spinal cord was not hit directly, the shock and heat of the bullet swelled up the
area around the nerves preventing any Voluntary movement, Walking, or anything along those
lines.

Plaintiff Elvia E. Pineda did not know who to talk to about what was going on as she could not

tell her daughter because she didn’t want to interfere with Plaintiff Cindy Pinedas recovery.

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AMENDED COMPLAINT FOR NOTICE OF MOTION AND MOTION FOR JUDGEMENT ON THE PLEADINGS.Plaintiff Cindy N Pineda was unaware of any fraud, or negligence until the actual study of
the existing case files attached to the court in 2019, was when plaintiff Cindy N Pineda

discovered any wrong doing on Defendants part.

LIMITATION

On around January 30%,2016 Plaintiff Elvia E. Pineda a lay person with no legal
experience and limited command of the English language did not realize at the time any legal
significance and/or wrong doing until afore mentioned date. Plaintiff Elvia E. Pineda discovered|
that there was fraud done by Defendants, upon speaking to a friend from church about their life
stories and Plaintiffs side of the conversation went something like “I honestly don’t know what
happened, all I know is I was a faithful customer of Defendants “BofA” since before my daughter}
was 4 years old, I wholeheartedly trusted Defendants BANK OF AMERICA, I had the house for
sale, they instructed me take it off for a Loan Modification to be able to keep my home and
weeks after I didn’t have a home anymore” The Sister from my church quickly referred Plaintiff
Elvia E. Pineda to Walnut Creek Consumer Services Representative Michan Evonc, suggesting
he would be able to help me with this injustice done to me. Unfortunately, this person was very
irresponsible with my case as they took 6 months to refer me to an attorney (Bill Gilg).
(EXHIBIT J) (ALL WITHIN THE CALIFORNIA CIV.C. 343909 (1)(a) “1 YEAR AFTER DISCOVERY

BY CLAIMAINT LAW”)

The Statue of Limitations Law in California clearly state in California Civ. C § 3439.09 (b) (c)
Terms Used In California Civil Code 3439.09

(a) Under paragraph (1) of subdivision (a) of Section 3439.04, not later than four years after the
transfer was made or the obligation was incurred or, if Jater, not later than one year after the

transfer or obligation was or could reasonably have been discovered by the claimant.

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AMENDED COMPLAINT FOR NOTICE OF MOTION AND MOTION FOR JUDGEMENT ON THE PLEADINGS.(c) Notwithstanding any other provision of law, a cause of action under this chapter with respect to a
transfer or obligation is extinguished if no action is brought or levy made within seven years after the
transfer was made or the obligation was incurred. :

“The United States Courts of Appeals for the Fourth and Ninth Circuits have held that
the time begins to run not when the violation occurs, but when it is discovered. See Lembach v.

Bierman, 528 Fed.Appx. 297 (4th Cir. 2013) (per curiam); Mangum v. Action Collection Serv.,

Inc., 575 F.3d 935 (9th Cir. 2009)”

As a proximate, foreseeable, and direct result of these acts and omissions by defendants,
plaintiffs Elvia E. Pineda and Cindy N. Pineda have suffered actual and compensatory damages
for, including but not limited to, the following: the loss of subject property, the loss of use of the
subject property, monetary loss of rental cash flow from one unit of subject property.
Physiological and emotional distress, adding to what was already a tough life situation suffered
by Plaintiffs Elvia E. Pineda and Cindy Pineda. Elvia E. Pineda now suffers from Diabetes,
Weight gain, Sleep apnea and more As a direct result of wrongful doings by Defendants. The
emotional hardship of loosing her forever home “subject property” was a big impression and
caused diabetes to fully take over her body.

Plaintiff Cindy N. Pineda will never see her home of childhood memories as she anticipated’
since having the Subject property put under her name. Plaintiff Cindy N. Pineda wont be able to
fulfill her dream of raising her children in the same home that saw her grow and become a
woman. The amount of stress and frustration caused by finding out these wrong doings is more

than my words can express. The amount of negligence on behalf of Defendants is very

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AMENDED COMPLAINT FOR NOTICE OF MOTION AND MOTION FOR JUDGEMENT ON THE PLEADINGS.disappointing. It amazes Plaintiffs, how Defendants Bank of America a multi-national, multi-
billion dollar company could’ve been so negligent and had employees so negligent to have
made enormous mistakes that cost faithful customers from since the 1990’s their valuable
home. Defendants greed was so heavy that even their representatives did not care about the

damage and physiological detriments they would cause in the life of Defendants family.

PRAYER FOR RELIEF '

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

and severally, as follows:

1. For actual and compensatory damages in the amount of $2,000,000.00 against
Defendants Bank Of America and RECONTRUST (to be awarded to each Plaintiff.)

2. For General Damages in the amount of $500,000.00 against Defendants BofA
and RECONTRUST (to be awarded to each Plaintiff.)

3. For Punitive damages against Defendants BofA and RECONTRUST in the
amount of $250,000.00 (to be awarded to each plaintiff)

4.For a declaration of the rights and duties of the parties, specifically that the
foreclosure of Plaintiffs’ residence was wrongful.

5.That the Notice of Default, recorded on July,27,2010 as Document No. 2010-
J004591-00 be cancelled and declared void.

6.That the Notice of Default, recorded on July 28,2010 as Document No. 2010-
J005194-00 be cancelled and declared void.

7.That the Trustees Deed Upon Sale, Recorded February 2,2011 as Document ,
No.2011-J129382-00,be cancelled and declared void.

8.That the Grant Deed, recorded on August 3,2011 as Document No.2011-J232752-

00, be cancelled and declared void.

-17-
AMENDED COMPLAINT FOR NOTICE OF MOTION AND MOTION FOR JUDGEMENT ON THE PLEADINGS.9.For the imposition of constructive trust against defendants;

10.

11.

For Trial by Jury and

For such other and further relief as the court deems proper.

DATED: May 8, 2019

Humbly and Respectfully Submitted,

il cL vots

Elvia E. Pineda
In Pro Per

Ele ate

Cindy N Piheda
In Pro Per

AMENDED COMPLAINT FOR NOTICE OF MOTION AND MOTION FOR JUDGEMENT ON THE PLEADINGS.

- 18 -EXHIBIT A

”9 Walnu

al. ATTORNEY PARTY WITHOUT ATTORNEY (Name, $ number, and address): &

[| Kenneth R. Bergquist 118846
Bergquist, Wood & Anderson, LLP

1470 \Maria Lane, Suite 300

Creek, California 94596

TELEPHONE (925) 938-6100 FAXNOYOptionay: (925) 938~4354

EMAL ADDRESS (optionay: ~kxb@wojuris.com

ATTORNEYFOR(Nom: Elvia Pineda

SUPERIOR|COURT OF CALIFORNIA, COUNTY OF Contra Costa F ; f ED

) FOR COURY USE ONLY

stReeTappress: 751 Pine Street

maine aporess:P,O. Box 911

crvanpzecooe:Martinez, California 94553 , Nov o 2010
BRANCH NAME:

MARRIAGE OF

PETITIONER: Fredy E. Pineda,
RESPONDENT:ELVia E. Pineda

JUDGMENT CASE NUMBER:
Ww DISSOLUTION (C) LEGAL SEPARATION CG] nuturty | D09-02308
ao Status only
OG. Reserving jurisdiction over termination of
* marital or domestic partnership status
Oj Judgment on reserved Issues 'y .
Date marital or domestic partnership status ends: |\~ Y -10 QU

1. (2) This judgment (2) contains personal conduct “sama orders [_} modifies existing restraining orders.
The restraining orders are contained on page(s) of the attachment. They expire on (date):

2. This proodeding was heard as follows: [XJ Default or uncontested [_) By declaration under Family Code section 2338
Qo Contested

a. Date: Dept.: Room:

b. Judicial officer (name): The Honorable charles reat (Temporary judge

. Retitioner present in court . (2 Attorney present in court (name):

4. Respondent present in court . [X] Attomey present in court (name): Kenneth R. Bergquist
et] Cidimant present in court (name): (Cy Attomey present in court (name):

f. Cc] Otter (specify name):

3. The court Acquired jurisdiction of the respondent on (date): duly+-2009- @-2-0 4 ow
The respondent was served with process.

® (2) The respondent appeared.

THE COURT, ORDERS, GOOD CAUSE APPEARING
4.33) Judgment of dissolution is entered. Marital or domestic partnership status is terminated and the parties are restored to the
status of singla persons .
(1) (BB on (specify date): (1 — 4 “10 “er
@), {L] on a date to be determined on noticed motion of elther party or on stipulation.
6 Judgment of legal separation Is entered.
«OQ Judgment of nullity is entered. The parties are declared to be single persons on the ground of (specify):

420) This judgment will be entered nunc pro tunc as of (date): >
e. (2) Jeidgment on reserved issues. A
f. The Qi [petitioner's $2] respondent's former name Is restored (specify): © ELS ea, Brant “EA laz ar
g. C) Jurisdiction is reserved over all other issues, and all present orders remain In effect except as Hrovided betow.
ht This|judgment contains provisions for child support or family support. Each party must complete and file with the court a
Child Support Case Registry Form (form FL-191) within 10 days of the date of this judgment. The parents must notify the
court of any change in the Information submitted within 10 days of the change, by filing an updated form. The Notice
of ‘Rights and Responsibilities-Health Care Costs and Reimbursement Procedures and Information Sheet on Changing a
Child Support Order (form FL-192) is attached.

‘ Page tof2
JUDGMENT Family Code, §§ 2024, 2340,
(Family Law) . www coun gov

Pineda, Elvia* - Y ‘7209-02308

*4. (Contd.

FL-180

CASE NAME (Last name, first name of eact —*y): DASE NUMBER:

|.

1. A\settlement agreement between the parties Is attached.
/O Aw written stipulation for judgment between the parties is attached.
k. QO Thé children of this marriage or domestic partnership.
(1): (2) The children of this marriage or domestic partnership are:
Name Birthdate

(2) (C2 Parentage is established for children Of this relationship bor prior to the marriage or domestic partnership.
(OQ Child custody and visitation are ordered as set forth in the attached .

(ay io settlement agreement, stipulation for judgment, or other written agreement.

) [J Chitd Custody and Visitation Order Attachment(form FL-341).

* (3) (CQ Stipulation and Order for Custody and/or Visitation of Children(form FL-355).

(4) other (specify):

nC] Chita support is ordered as set forth in the attached
ay (2) settlement agreement, stipulation for judgment, or other written agreement.
2) (CQ Chita Support information and Order Attachment(form FL-342).
3) () Stipulation to Establish or Modify Child Support and Order (form FL-350).

(4) CQ other (specify):

rr Spousal or partner support is ordered as set forth in the attached,
() (J settlement agreement, stiputation for judgment, or other written agreement.
(2) CQ Spousal, Partner, or Family Support Order Attachment (form FL-343).
(3) CC) other (specify):

Notice: {tis the goal of this state that each party will make reasonable good faith efforts to become self-

suipporting as provided for In Family Code section 4320. The failure to make reasonable good faith efforts may

be one of the factors considered by the court as a basis for modifying or terminating spousal or ‘partner ‘support.
o. i Property division is ordered as set forth in the attached

wW {X) settlement agreement, stipulation for judgment, or other written agreement.

(2) () Property Order Attachment to Judgment (form FL-345).

(3) Cy other (specify):

p. C) Other (specify):

Each attachment to this judgment is incorporated Into this Judgment, and the parties are ordered to comply with each attachment's
provisions.

sueeton & reserved to make other orders necessary to carry out this , Léza.

4 Lk LD OFFICER
5. Number of pages attached: 1h (C2 stonature roLtows LAST ATTACHMENT

. NOTICE
Dissolution or legal separation may automatically cancel the rights of a spouse or domestic partner under the other spouse's or
domestic Rartner’s will, trust, retirement plan, power of attorney, pay-on-death bank account, transfer-on-death vehicle registration,
survivorship rights to any property owned in joint tenancy, and any other similar thing. It does not automatically cancel the rights of a
spouse or ‘domestic partner as beneficiary of the other spouse's or domestic partner's life Insurance policy. You should review these
matters, as well as any credit cards, other credit accounts, insurance policies, retirement plans, and credit reports, to determine
whether, they should be changed or whether you should take any other actions.
Adebt or obligation may be assigned to one party as part of the dissolution of property and debts, but if that party does not pay the
debt or obligation, the creditor may be able to collect from the other party.
An earings assignment may be issued without additional proof if child, family, partner, or spousal support is ordered.
Any parly Tequired to pay support must pay interest on overdue amounts at the "legal rate," which is currently 10 percent.

F180 [Rav. Fy, ay 12 2007} JUDGMENT Page 20f2
(Family Law) Pineda, ElviaUw UW.

MARITAL SETTLEMENT AGREEMENT

; : This Agreement is made between Elvia Pineda (“Wife”) and Fredy Pineda :

i({Husband”), sometimes referred to jointly as the “Parties” or separately as “Party”. The
letfective date of this agreement (the “Effective Date”) is the date upon which it is signed
iby the last of the parties to do so. The termination of marital status shall be the later of
‘the effective date of this agreement or August 26, 2010.

‘SECTION 1: GENERAL INFORMATION
1.1, Factual Information. The following information is set forth by the Parties:

; WIFE’S INFORMATION
Bull Legal Name: Elvia Pineda
1 ‘Mailing Address: 4300 Jenkins Way, Richmond, CA 94806-1740
: Date of Birth: June 17, 1963
_ Citizenship: USA
‘Residence for Tax Purposes: California

‘ HUSBAND’S INFORMATION
! Full Legal Name: Fredy Pineda
i Mailing Address: 4300 Jenkins Way, Richmond, CA 94806-1740
‘ Date of Birth: February 20, 1962
’ itizenship: USA
Residence for Tax Purposes: California

i Date of Parties’ Marriage: 11/22/1986
Date of Parties’ Separation: 12/08/2007

1.2 Children of the Parties: The Parties have one child: Cindy Pineda, born on March
+ 6,1990. The parties acknowledge and agree that Cindy is disabled. The parties further

acknowledge and agree that Cindy will require long term care. Because Cindy is

paralyzed from the waist down from a bullet taken from a drive by shooting, the Parties
. agree that Cindy is entitled to continuing support from her. parents pursuant to Family
; Code §3910 and the Parties intend, to the best of their ability, through this agreement to
: provide for the financial support of Cindy pursuant to Family Code Section 3587.

1.3 Agreement to Separate. The Parties have agreed to separate and live permanently

apart. The purpose of this Agreement is to make a final and complete settlement of rights

and obligations arising out of the Parties’ marriage, including their respective property
Tights and support rights.

: . 4.4 Proceedings. There is a proceeding for dissolution of marriage between the Parties

, ol per ¥P rewu U

on file in the Superior Court of the State of California, County of Contra Costa, Case
Number D09-02308. The Petition was filed by Husband on May 15, 2009.. The court
acquired jurisdiction over wife on July 1, 2009.

SECTION 2: FAMILY SUPPORT.

2.1 INABILITY TO MAINTAIN MARITAL STANDARD OF LIVING: Due to the
special needs and medical condition of the Parties’ daughter, Cindy, as well as the
géneral decline of California real estate values and the specific decline in value and
potential foreclosure of the community property residence, it is impossible for the parties
‘6 currently maintain the standard of living of the Parties during this long-term marriage
‘of at least 21 years.

232. RETENTION OF JURISDICTION: The Court shall retain jurisdiction to modify

the amount or duration of Family Support and to make findings and order family support, *

‘adult child support and/or spousal support based upon any change of circumstances upon
‘either Party’s filing of a noticed motion in the Contra Costa Superior Court of the State of
California.

‘SECTION 3: PROPERTY SETTLEMENT

+ 3.1 Division of Property

3.11 Family Residence: The Parties owned homes located in San Francisco and
Richmond California. and The properties located in San Francisco are currently

. estimated at values that are substantially below the first mortgage debt and the Parties

have been unable to make mortgage payments for many months and the property has
been foreclosed. Both parties represent that there is no community equity in the San

* Francisco residence. The parties agree that the Richmond property located on Jenkins

Street shall be assigned as the sole and separate property of the parties’ daughter,
Cynthia.

. ;3.1,2 Personal Property Specified. Upon the execution of this Agreement, community

{property of the. Parties shall be divided as follows:

! PROPERTY OF WIFE FROM COMMUNITY OR MIXED PROPERTY. Wife

' |} shall receive as her separate property all of the following items, along with any choses in

action that may be associated therewith, which choses in action are expressly assigned to

_* Wife by Husband:

1. 2007 Toyota Prius Hybrid
2. Note from sale of 2699 Bryant St., San Francisco, Ca. $417,000.00. After payment of

the IRS community debt, the parties agree that the proceeds of the note shall be
equally divided between Wife and the parties’ daughter, Cynthia.

2 ELee ff seWw Ww

3. 1999 Cadillac Caterra

4.° Four paintings currently located at 4300 Jenkins. The current worth is approximately

"$400.00.

5. IRS Debt for $54,000.00 (Respondent will pay community IRS debt from proceeds of
Bryant property note for $417,000.00 upon receipt.

PROPERTY OF HUSBAND FROM COMMUNITY OR MIXED PROPERTY. ©

Husband shall receive as his separate property all of the following items, along with any
clioses in action that may be associated therewith, which choses in action are expressly
assigned to Husband by Wife:

1. Guatemala — Tasisco land (estimated value $5,000.00)
2. 2007 Porshe Boxer

WIFE’S SEPARATE PROPERTY: Wife is possessed of the following separate
property: Husband disclaims any interest in this property. _

1. NIPF PENSION (Union)
2. US Bank x xxx xxxx 8088 (opened 4/28/2010)

| HUSBAND’S SEPARATE PROPERTY: Husband is possessed of the following
:Separate property: Wife disclaims any interest in this property.

1. NIPF PENSION (Union)
2. Bank of America Savings account

DAUGHTER, CYNTHIA PINEDA SEPARATE PROPERTY:
1, 4300 Jenkins Way, Richmond, CA

' 3.2. Furniture and Furnishings. The parties acknowledge that they have previously
| divided all of their household furniture, furnishings, personal effects, and related items
between them to their personal satisfaction.

: '3,3 Allocation of Debts.

“1. The Parties owe community obligations to the Internal Revenue Service in the amount
of $54,000.00. Mrs. Pineda is willing to take responsibility for the debt, if she receives

 :all of the Bryant Note as her sole and separate. property, if not then the debt is to be split
50/50 between the parties.

2. Community Credit Card Debt: To be split 50/50 between the parties.

3 Zee Ef peWw V

Sears MasterCard: $8307.76
Chase: $5400.00
GAP: $1200.00

Wife shall be responsible for payment of the community property credit card debrts from
the proceeds of the Bryant property note.

SECTION 4: RELEASES, WARRANTIES, WAIVERS

4.1 Mutual Release. The Parties intend to settle all aspects of their marital relationship
quid tights by this Agreement, Except as otherwise provided in this Agreement, the
Parties mutually release and forever discharge each other from any and all actions,
liabilities, claims, demands, and obligations of any kind or character, both in law and in
cquity, that either of them ever had, now has, or may have against the other upon or by
‘on of any matter, cause, or thing up to the Effective Date. It is the Parties’ intent that
fter the Effective Date, there shall be, as between them, only those rights and obligations
‘a$ are specifically provided in this Agreement.

‘4!2 Unequal Division of Community Property. The Parties acknowledge that they
ave made an unequal! division of their community property and that they have done so
‘intentionally. Both Parties understand that if either Party requests an equal division of
ithe community property, the court is required by law to make an equal division of the
community property. The Parties have chosen for their own reasons not to make an equal
‘division and have made a division of assets and liabilities that they agree upon of their
-own volition, without duress or undue influence, and with full understanding of the
mandatory requirement for an equal division if there were no agreement otherwise.

i 43 Property and Gifts Warranty. Each Party warrants that he or she is not currently

possessed of any community property of any kind or description other than the property
! Specified in this Agreement. Each Party warrants that he or she has not made, without the
+ Consent of the other, any gift or transfer of the Parties’ community or quasi-community
: property to any single person or entity exceeding a cumulative total of Five Hundred
‘ Dollars ($500) (other than a transfer in exchange for fair and reasonable consideration to
- the community or a family gift known to the other Party). These warranties apply only to
: property that would have been community or quasi-community property on the Effective
* Date,

‘4.4 Division of Undisclosed Property. The court shall have continuing jurisdiction to
‘award community assets or liabilities that have not been divided in this Agreement
' tpursuant to the provisions of California Fam. Code Section 2556.

’ 4.5 Warranty of Property Information. Each Party warrants that each has disclosed to
: the other all material facts and information known to each of them regarding the fair
market value of the assets set out in this Agreement. In the event that there is a willful
violation of this warranty by either Party, the fair market value of any undervalued or

4 E,e_ep _F PepU U

overvalued asset shall be determined as of the Effective Date. The court shall retain
juuisdiction to enforce this warranty, which enforcement may include requiring the
payment by one Party of an amount necessary to equalize the Parties’ treatment with
respect to the property based on its actual fair market value.

4.6 Property Acquired After Separation. Any property acquired by either Party after
the Separation Date shall be the sole and separate property of the Party acquiring it. Each
Piirty waives any property rights in or to any future acquisitions of property by the other.

4.7 Review of Insurance Policies and Retirement Plans. The Parties are aware of Fam.
Code §2024 advising parties to a dissolution of marriage to review their wills, insurance
pélices, retirement benefit plans, ‘credit cards, credit accounts, credit reports, and other
policies that they may wish to change. The parties are advised to review all property
rights and employment benefits that have survivorship or inheritance factors (including,
Without limitation, life insurance, pensions, trusts, jointly held real and personal property,
and bank accounts) to ensure that each expresses the present intent of the Parties,
particularly with respect to title and beneficiary designation.

1418 Waiver of Marvin Claims. The Parties acknowledge that they have been advised by
h