Preview
SILVERIO R. PANLASIGUI
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572KEVENAIREDRIVE
NHLPI'I'AS,.CA 95035 E L E
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PLAmmFFINPROPER
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JUN — 1 2019
Clerk of the Court
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Superlor Coun of CA Coun o! Santa OIaran
BY DEPUTN
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SUPERIOR COURT OF THE STATE OFCALIFORNIA
IN AND FORTHE COUNTY OF SANTA CLARA
SILVERIO R. PANLASIGUI,
WW» sec ”4338 o
COMPLAINT FOR:
“mum 1. INTENHONAL
MISREPRESENTATION
2. VIOLATION 0F CALIFORNIA
CIVIL CODE § 2924.12 and §
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2924.17(a) (b)
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. VIOLATION 0F CALIFORNIA CIVIL
CODE §3294(C)(3)
4. CANCELLATION 0F A VOIDABLE
BARRETT DAFFIN FRAPPIER TREDER & CONTRACT UNDER REV & TAX
OCWEN LOAN SERVICING,
“VEISS, LLP, CODE §§ 23304.1, 23305AAND
LLC, PHH MORTGAGE CORPORATION, VIOLATION OF CAL- CORP. CODE -
ETS SERVICES, LLC, GMAC MORTGAGE, §§ 191(C)(7)
LLC, WELLS FARGO BANK, N. A., AS 5. T0 VOID 0R CANCEL
TRUSTEE FOR HARBORVIEW MORTGAGE ASSIGNMENT OF DEE) OF TRUST
LOAN TRUST 2007-3, and DOES 1 6- QUIET TITLE
THROUGH 1 5 INCLUSIVE, 7. CANCELLATION OF WRITTEN
INSTRUMENTS
8. SLANDER OF TITLE
9 DECLARATORY RELIEF
Defendants.
1i). INJUNCHVE RELIEF
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COMPLAINT
Plainfifi; SEVERIO 1L PANLASIGUI., C‘Plaintim), hereby, alleges as follows;
JURISDICTiO; AND VENUE
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1. The transactions and events that gives rise to this litigation all occmred within the
County of Santa Clara, State of California and the amount in controversy exceeds $25,000.00.
Additionally, the Property Which is the subject of this litigation is located at: 572 Kevenajre
Drive, Milpitas, CA 95035, County of Santa Clam, State of California.
2. Venue is proper in this judicial district in that some the defendants reside andlor
conduct business in the County of Santa Clara, State of California.
II
PARTIES
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3. Plaintifl SILVERIO R. PANLASIG—UI, (“Plaintififi is, and at all times pertinent herein,
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an individual residing in the County of Santa Clam; State of Califomia Plainfifl owns the real
Iproperty located at: 572 Kevenaire Drive, Milpitas, CA 95035 (“the subject property”). Said
property is the subject ofthis litigation.
. 4. Plaintifl' is informed and believes, and on that basis alleges, that Defendant BARRETT
DAFFIN FRAPPIER TREDER & WEISS, LLP a limited liability" partnership, whose State of
incorporation is unknown; was at all times pertinent, was conducting business in the County of
Santa Clara, State of California. BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP is
snot Registered With the California Secretary of State as an organization duly authorimd to
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conduct business in the State of California.
5. Plaintifi‘is informed and believes, and on that basis alleges, that Defendant,
COMPLAINT
OCWEN LOAN SERVICING, LLC, a Delaware Limited Liability Company, was, at all limes
pertinent, conducting business in the County of Santa Clam, SMC of California. Defendant
claims the servicer of Plainfifl’s Note. /
6. Plaintifi is informed and believes, and on that basis alleges, that Defendant PHH
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MORTGAGE CORPORATION, a corporation, is organized and existing under the laws of the
State ofNew Jersey and at all times pertinent, was conductifig business in the County of Santa
Clam, State of California. Defendant claims the assigned servicer of Plaintifl’s Note.
7. Plaintifi' is informed and believes, and 0n that basis alleges, that Defendant ETS
SERVICES, LLC, a defimct limited liability company, was organized and existing under the
laws ofthe State of Delaware and at all times pertinent, was conducting business in the County
of Santa Clara, State of California. Defendant claims the assignedservicer of Plaintiff’s Note.
8. Plainfifl' is informed and believes, and on that basis alleges, that Defendant GMAC
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~MORTGAGE, LLC, a deflmct limited liability company, Was organized and existing under the
law's of the State of Delaware and at all times pertinent, was conducting business in the County
of Santa Clara, State of California. Defendant claims the assigned servicer ofPlaintifi’s Note.
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9. Plaintiflt‘ is infomed and believes, and on that basis alleges, that Defendant,
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WELLS FARGO BANK, N. A., AS TRUSTEE FOR HARBORVIEW MORTGAGE LOAN
TRUST 2007-3, a national association, organized and existing under the laws of the United
States, was, at all times pertinent, conducting business in the County of Santa Clara, State of
California
10. Plaintifi' does not know the true names, capacities, or basis for liability of Defendants
sued herein as Does l through 15, inclusive, as each fictitiously named Defendant is in some
manner liable to Plainfiifi or claims some rights, title, or interest in the Property Which is the
COMPLAINT
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subject of this litigation. Plaintifi will amend this Complaint to allege their true names and
. capacities When ascertained.
ll . Plaintifi is informed and believes, and therefore allegas, that at all relevant times
mentioned in this Complaint, each of the ficfltiously named Defendants arc responsible in some
manner for the injuries and damages to Plaintifi‘ so alleged and that such injuries and damages
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were proximately caused by such Defendants, and ash ofthgm.
12. Plaintifl‘ is informed and believes, and thereon alleges, that at all times herein
mentioned, each of the Defendants were thc agents, employees, servants and/or the joint-
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venturers of the remaining Defendants, and each ofthem, and in doing the things alleged herein
below, were acting within the course and scope of such agency, employment and/or joint venture
and entelprise.
HI
FACTUAL AND GENERAL AILEGA'IIONS
l3. On or about May 09, 2006, Plaintifi executed a mitten loan agmement with defendant,
FIRST FEDERAL BANK OF CALIFORNIA, pursuant to Which Plaintifi obtained a loan in the
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sum of Seven Hundred Twenty-Six Thousand dollats (US726, 000.00). To secure repayment of
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file mortgage loan and as part of the same transaction, Plainfifi‘ made and executed a written deedl
oftrustttansfeningthe Properly intrustto atr'ustee. Amie and correct copy ofthis deed oftrust
is attached to this Complaint and incorporated herein by reference as Exhibit A.
14. Plaintifllperformed all terms, covenants, and conditions required of them lmder the
mortgage, except for those terms, covenants, and conditions the performance of which was
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either waived or rendered impossible by FIRST FEDERAL BANK OF CALIFORNIA, and the
misrepresentations of the foreclosing Defendants, and each of them.
COMPLAINT
15. 0n or about 03/24/2009, Defendant, ETS SERVICES, LLC, recorded the “NOTICE OF 4
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DEFAULT AND ELECTION TO SELL UNDER THE DEED 0F TRUST” in their zeal to
deprive Plaintifl 0f ALL beneficial interests and enjoyment of his real property. (Plainfifl’s
Exhibit “3”). Plaintifl‘ alleges that, in spite of the declaration profiered by the Defendants,
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prior to recording the notice of default, neither the Loan Servicer not the Lender contacted
Plaintifl' in person or by telephone to explore options for avoiding foreclosure as mandated by
the California Homeowner Bill of Right and the express requirement of California Civil Code
2923.5. As such, the Notice ofDefault is void and has no force and efi‘ect.
16. Plaintifi‘ alleges that, any applicable statutes of limitations have been tolled by the
Defendants’ continuing, fiaud, knowing, and active concealment of the flats alleged herein.
Despite exercising reasonable diligence, Plaintifi‘ could not have discovered, and did not
discover, and was prevented fiom discovering, the mngdoing complained of herein.
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l7. Plaintifi‘ alleges that, on or about 03l25/2009 Defendant, WELLS FARGO BANK, NA.
mxlawfillly, caused a document that pmports to be a Substitution of Trustee, to be recorded in
the oficial records in the ofice of the County Recorder of Los Angeles County, California.
The Substitution 0ftrustee, purports to substitute, ETS SERVICES, LLC, as trustee under the
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deed of trust executed by Plaintifl's, however, there is no valid power of attorney recorded as to
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this document, thus making the authority ofthe signer uncertain. Further, although required
under California Civil Code section 2934a, no certificate ofmailing of the purported substitution
was recordedcontempomneously or otherwise. Attached hereto as Exhibit C is a true and
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correct copy of the purported “Substitution of Trustee”. Plaintifis allege that, any applicable
Statutes of limitations have been tolled by the Defendants” continuing, fiaud, knowing, and
active concealment of the fiets alleged herein. Despite exercising reasonable diligence,
COMPLAINT
Plaintifi could pot have discovered, and did not discover, and was prevented fi'om discoven'ng,
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the wrongdoing complained ofhemin. Plaintifi' further alleges that, Despite exercising
reasonable diligence, Plainfifis could not have discovered, did not discover, and was prevented
fiom discovering, the fiandulent “Substitution of Trustee”. Further, ETS SERVICES, LLC was
I
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not a duly appointed Trustee as such; the “Substitution of Trustee” is void and has no force and
cfi‘ect.
18. On or about 06/290009, Defendant, ETS SERVICES, LLC unlawfully recorded the
“NOTICE OF TRUSTEE’S SALE” in their zeal to deprive Plaintifl‘ of all beneficial interests
and enjoym-t in Plaintifs real property. (Plaintifi’s Exhibit “D”). Plainfifl alleges that, the
notice of trustee’s sale is invalid, and ofno force and efi'ect, because ETS SERVICES, LLC is
not a duly appointed trustee. Plaintifi also seeks redress fi‘om Defendants identified herein for
damages, for other injunctivc relief, and for cancellation 0f the Trustee’s sale.
l9. Plainfifi 3116ng that, any applicable statutes of limitations have been tolled by the
Defendants’ continuing, fiaud, knowing, and active concealment 0fthe facts alleged herein.
Despite exercising reasonable diligence, Plainfifi could not have discovered, and did not
and was prevented fiom discovering, the wrongdoing complained of hemin.
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discover,
20. Consequently, on or about 10/01/201 0, Defendant, WELLS FARGO BANK, N.A. AS
TRUSTEE FOR HBV 2007-3 issued and recorded a putported Corporate Assignment of Deed of
Trust, thereafier,_transfemd and conveyed all beneficial interests under Plaintifl’ s Note and deedl
of trust to METLIFB HOME LOANS. (Plainfifl’s Exhibit “E”).
21. The assignment of the deed recites that, for value received, WELLS FARGO BANK,
NA AS TRUSTEE FOR HBV 2007-3, uansfets to GMAC MORTGAGE, LLC, under deed of
trust executed by Plainfifi on May 09, 2006.
COMPLAINT
22. Plainfifi allegms that, any applicable statutw of limitations have been tolled by the
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Defendants’ continuing, fiaud, knowing, and active concealment ofthe facts alleged herein.
Despite exercising reasonable diligence, Plainfifl could not have discovered, and did not
discover, and was prevented fipm discovering, the wrongdoing cemplaincd of herein.
23. Plaintifi further alleges that, the assignment of the deed of trust is invalid, and of no
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force and efi'ect, because WELLS FARGO BANK, NA. AS TRUSTEE FOR HBV 2007-3, does
not have standing or the legal authority to mcord or cause the pmported Corporate Assignment
of Deed of Trust under Plaintifi’s Note. Defendant, was not the holder of Plaintifl" s Note in
due course. Plainfifl‘ further allegw that the fi'andulent assign of dsed of trust served as the basis
for a claim to have the tight to commence a non—judicial foreclosure of Plaintifl" s real property.
Plaintifl' further alleges that, WELLSFARGO BANK,_N.A. AS TRUSTEE FOR HBV 2007-3,
was not a pany to the commct that seemed Plaintifi’s Note and deed of Trust. Fmthemlore,
WELLS FARGO BANK, NA. AS TRUSTEE FOR HBV 2007-3is not a third party beneficiary
and do not have any assignment instruments fiom the lender. As such, WELLS FARGO
BANK, NA. AS TRUSTEE FOR HBV 2007-3cannot lawfillly assign any beneficial interest
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under Plaintifi’s Note and deed oftrust.
24. Consemlenfly, 0n or about 1/26/201 1, Defendant, ETS SERVICES, LLC unlawfully
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recorded the “NOTICE 0F TRUSTEES SALE” in their zeal to deprive Plainfifi 0f all
beneficial interests and enjoyment in Plaintifi’ s real property. (Plaintifl’s Exhibit “F”).
Plaintifi‘ allegesthat, the notice oftrustee’s sale is invalid, and ofno force and efi'eet, because
ETS SERVICES, LLC is not a duly appointed trustee. Plaintifi‘ also seeks redress fiom
Defendants identified herein for damages, for other injunctive relief, and for cancellafion of the
Trustee’s sale.
COMPLAINT
25. Plaintifi‘ alleges that, any applicable statutes of limitations have been tolled by the
Defendants’ continuing, fiaud, knowing, and active concealment efthe facts alleged herein.
Despite exercising reasonable diligence, Plainfifi could not have discovered, and did not
discover, and was prevented fiom discovering, the wrongdoing complained of herein.
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26. On or about 06/1 5/12 Defendant, GMAC MORTGAGE, LLC, unlawfully, caused a
document that purports to be a Substitution of Trustee, to be recorded in the oficial records in
the ofice of the County Recorder of Los Angeles County, California. The Substitution of
trustee, pmports to substitute, ETS SERVICES, LLC, as trustee under the deed oftrust executed
by Plainfifis, however, there is no valid power of attorney recorded as to this document, thus
making the authority of the signer uncertain. Further, although required under Califomia Civil
Code section 2934a, no certificate of mailing of the purported substitution was recorded
contemporaneously or otherwise. Attached hereto as Exhibit G is a true and correct copy of
the purported “Substitution 0f Trustee”. Plainfifi's allege that, any applicable statutes of
limitations have been tolled by the Defendants’ continuing, fiaud, knowing, and active
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concealment of the facts alleged herein. Despite exercising reasonable diligence, Plaintifi's
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could not have discovered, and did not discover, and was prevented fiom discovering, the
wrongdoing complained of heiein. Plaintifi‘ further alleges that, Despite exercising reasonable
diligence, Plaimifl's could not have discovered, did not discover, and was prevented fi'om
discovering, the fiaudulent “Substitution of Trustee”. Further, ETS SERVICES, LLC was not a
I
duly appointed Trustee as such; the “Substitution of Trustee” is void and has no force and efi‘ect.
27. 0n or about 07/09/2012, Defendant, ETS SERVICES, LLC, unlawfully recorded the
“NOTICE 0F DEFAULT AND ELECTION TO SELL UNDER THE DEED OF TRUST” in
their zeal to deprive Plaintifi of ALL beneficial interests and enjoyment of his real property.
COMPLAINT
(Plaimjfi’s Exhibit W). Plainfifi's allege that, any applicable stamm oflimitafions have been
tolled by the Defendants’ confirming, fi‘aud, knowing, and active concealment ofthe facts
alleged herein. Dmpite exercising reasonable diligence, Plaintifi could not have discovered,
and did not discover, and was prevented fiom discoven'ng, the wrongdoing complained of
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herein. Plaintiff further alleges that, Despite exercising reasonable diligence, Plainfifi could
not have discovered, did not discover, and was prevented fi'om discovering, the fiaudulent
Notice of Default. Prior to recording the notice of default, neither the Loan Servicer not the
Lender contacted Plaintifi‘in person or by telephone to explore options for avoiding foreclosure
as mandamd by the California Homeowner Bill of Right and the express requirement of
California Civil Code 2923.5. As such, the Notice of Default is void and has no force and
efi‘ect.
28. Plaintifi’ alleges that BARRETT DAFFIN FRAPPIER 'I'REDER& WEISS, LLP,
OCWEN LOAN SERVICING, LLC, PHH MORTGAGE CORPORATION, ETS SERVICES,
.LLC, GMAC MORTGAGE, LLC, WELLS FARGO BANK, N. A., AS TRUSTEE FOR
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HARBORVIEW MORTGAGE LOAN TRUST 2007-3. and each of them cannot show proper
receipt, possession, transfer, negotiations, assignment and ownership ofthe Plaintifl’s original
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Promissory Note and Deed of Trust, resulting in imperfect secmity interests and claims.
29. Plaintifi‘ alleges that, on or about 09/22/2015, Defendang GMAC MORTGAGES, LLC
and OCWEN LOAN SEVICING, LLC issued and xecorded Corporate Assignment of Deed of
Trust under Plaintifl’s Note, thereafler, transferred and conveyed all beneficial interests Imder
Plainfifi’s Note had deed oftrust to WELLS FARGO BANK, N. A., AS TRUSTEE FOR
HARBORVIEW MORTGAGE LOAN TRUST 2007-3. (Plaimifl’s Exhibit “1”). The
assignment of the deed recites that, for value received, GMAC MORTGAGES, LLC and
COMPLAINT
OCWEN LOAN SEVICING, LLC, transfers all beneficial interacts to WELLS FARGO BANK,
N. A., AS TRUSTEE FOR HARBORVIEW MORTGAGE LOAN TRUST 2007-3, under deed
oftrust executed by Plaintifl‘ on May 09, 2006.
30. Plaintifi‘ alleges that, the assignment ofthe deed oftrust is invalid, and ofno force and
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efi'ect, because GMAC MORTGAGES, LLC and OCWEN LOAN SEVICING, LLC, do not
have standing or the legal authority to transfer or convey Plainfifl's interests to WELLS FARGO
BANK, N. A., AS TRUSTEE FOR HARBORVIEW MORTGAGE LOAN TRUST 2007-3.
Plainfifl‘ further alleges that, Defendants, were not the holder ofPlaintifi’s Note in due course.
Plainfifi' alleges that the fiaudulent assignment of deed of trust served as the basis for a claim to
have the right to commence a non—judicial foreclosum of Plaintifi" s real property.
31. Furthermore, GMAC MORTGAGES, LLC and OCWEN LOAN SEVICING, LLC,
were not parties to the contract that secured the Note and deed of Trust of Plaintifi’s real
property. Additionally, GMAC MORTGAGES, LLC and OCWEN LOAN SEVICING, LLC,
arc not third party beneficiaries and do not have any assignment instmments fiom the lender. As
such, neither GMAC MORTGAGES, LLC nor OC‘WEN LOAN SEVICING, LLC, has legal
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standingtotransferPlaintifl’s interestinhis deed oftmstto WELLS FARGO BANKN. A.,AS
TRUSTEE FOR HARBORVIEW MORTGAGE LOAN TRUST 2007—3. Further, Defendants
cannot lawfilll‘y assign any beneficial interest under Plainfifis Note and deed of trust to,
WELLS FARGO BANK, N. A, AS TRUSTEE FOR HARBORVIEW MORTGAGE LOAN
TRUST 2007-3.
32. Plainfifi alleges that, on or about 10/20/2015 Defendant, WELLS FARGO BANK, N.A.
and OCWEN LOAN SEVICING, LLC, and in coordination with PHH MORTGAGE
CORPORATION, unlawfully, caused a document that purports to be a Substitution of Trustee,
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COMPLAINT
to be recorded in the oficial records in the ofice of the County Recorder of Los Angeles
County, California. The Substitution oftrustce, pmports to substimte,
BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP, as trustee under the deed of tust
executed by Plaintiff, however, there is n9 valid power of attorney recorded as to this document,
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thus making the authority of the signer uncertain Further, although required under California
.1
Civil Code section 2934a, no certificate ofmailing of thc purpoxted substitution was recorded
contempoxaneously 0r otherwise. Attached hereto as Exhibit J is a true and comet copy 0f the
purported “Substitution of Trustee”. Plaintifi‘s allege that, any applicable statutes of limitatiom
have been tolled by the Defendants’ continuing, fi'aud, knowing, and active concealment of the
facts alleged herein. Despite exercising reasonable diligence, Plaintifi' could not have
discovered, and did not discover, and was prevented fiom discoveting, the wrongdoing
complained of herein; Plaintifi' finther alleges that, Despite exercising reasonable diligence,
Plaintifl‘ could not have discovered, did not discover, and was prevented fiom discovering, the
BARRETT DAFFM FRAPPIER TRADER & WEISS,
'
fiaudulent “Subsfitution of Trustee”.
.LLP is not a duly appointed Trustee as such; the “Substitution of Trustee” is void and has no
-
force and efi‘ect. BARRETT DAFFIN FRAPPIER TRADER & WEISS, LLP is not registered
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.Wifll the California Secretaxy of States as organization duly authorized to conduct business in the
State of Califomia.
33. On or about 12/04/2015, Defendant, BARRETT DAFFKN FRAPPIER TRADER &
-
_
WEISS, LLP, ‘Mawfiflly recorded the “NOTICE OF DEFAULT AND-ELECTION TO SELL
UNDER THE DEED 0F TRUST” in their zeal to deprive Plainfifi‘ of ALL beneficial interests
and enjoymnt of his real property. (Plainfifi’s Exhibit “-K”). Plainfifi alleges that, any
applicable statutes of limitations have been tolled by the Defendants’ continuing, fiaud,
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COMPLAINT
knowing, and active concealment of the fists alleged herein. Despite exercising reasonable
diligence, Plainfifi‘ could not have discoveted, and did not discover, and was prevented from
discovering, the wrongdoing complained of herein Plaintifl‘ further alleges that, Despite
exercising reasonable diligence, Plaintiffs could not have discovered, did not discover, and was
prevented fiom discovering, the fiaudulent Notice of Default. Plior to recording the notice of
default, neither the Loan Servicer not the Lender contacted Plaintiff in person or by telephone t0
explore options for avoiding foreclosure as mandated by the California Homeowner Bill of
l
Right and the express requize‘ment of California Civil Code 2923.5. As such, the Notice of
Default is void and has no force and efl'ect.
34. Plaintifl‘ alleges that BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP,
OCWEN LOAN SERVICING, LLC,'PHH MORTGAGE CORPORATION, ETS SERVICES,
I
LLC, GMAC MORTGAGE, LLC, WELLS FARGO BANK, N. A, AS TRUSTEE FOR
HARBORVIEW MORTGAGE LOAN TRUST 2007-3, and each 0f them cannot show proper
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Ieceipt, possession, tmnsfer, negotiations, assignment and ownership of the Plaintifi’s original
Promissory Note and Deed of Trtist, resultingin imperfect security interests and claims.
35. Plaintifi‘alleges that, 0n or about 06/21/2016, Defendant, BARRETT DAFFIN
FRAPPIER TRADER & WEISS, LLP, recorded the Notice of Trustee’s sale.
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(Plaintifi’ s
Exhibit “L”). The Notice of Trustee’s Sale is false in that, without it fails to properly credit
‘
Plaintifl' for the payments Plaintiff made towards the mortgage and therefore overstates the
'amount of Plaimifi’s default
36. On or about 04/27/2018, Defendant, BARRETT DAFFIN FRAPPIER TRADER &
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WEISS, LLP unlawfully recorded the “NOTICE 0F TRUSTEES SALE” in their zeal to
_
deprive Plaintifi' of all beneficial interests and enjoyment in Plaintifi’s real property. (Plaintifl‘ s I
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COMPLAINT
Exhibit “M”). Plainnfi' alleges that, the notice oftmstee’s sale is invalid, and ofno force and
efi'ect, because BARRETT DAFFIN FRAPPIER TRADER &
WEISS, LLP is not a duly appointed trustee. Plaintiff also seeks redress fiom Defendants
identified herein for damages, for other injunctive relief, and for cancellation of the Trustee’s
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sale.
37. Plaintifi‘ alleges that, any applicable statutes of limitations have been tolled by the
Dcfendants’ continuing, fi'aud, knowing, and active concealment of the facts alleged herein.
Despite exercising reasonable diligence, Plainiifi' could not have discovered, and did not
discover, and was prevented fiom discdvering, the wrongdoing complained 0f herein.
38. Plaintifl‘ allegm that any security interest in his real property was, thus, never
perfected. The alleged holder of the Note is not the beneficiary of the Deed 0f Trust. The alleged
beneficiaxy of Plaintifl’s Deed of Trust does not have the requisite title, perfected secmity
interest or standing to proceed; and/or is not the real party in interest With regard to any action
taken or to be taken against the Property.
39. Plaintifi‘ alleges that Defendants, and each of them,‘cannot show proper receipt,
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possession, transfer, negotiations, assignment and ownership ofthe Plaintifl’s orig'nal
Promissory Note and Deed of Trust, resulting in imperfect secun'ty interests and claims.
40. Plaintiff also seeks redress fiom Defendants identified herein for damages, for other
injunctive reliefiand for cancellation of the Trustee’s sale.
41 Plainfifi‘ seeks damages including punitive damages against,
. BARRETT DAFFIN
FRAPPIER TREDER & WEISS, LLP, OCWEN LOAN SERVICING, LLC, PHH MORTGAGE
CORPORATION, ETS SERVICES, LLC, GMAC MORTGAGE, LLC, WELLS FARGO
BANK, N7 A., .AS TRUSTEE FOR HARBORVIEW MORTGAGE LOAN TRUST 2007-3, for
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COMPLAINT
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willful mismpresentation and the unlawful commencement of the non—judicial foreclosure of
.plainfifl’s teal property.
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FIRST CAUSE OF ACTION
([NTENTIONAL MSREPRESENTATION)
(AGAINST ALL DEFENDANTS)
42. Plaintifl‘ re-allegw and incorporates by reference all preceding
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SILVERIO R. PANLASIGUI "’r 572KEVENAIREDRIVE NHLPI'I'AS,.CA 95035 E L E ' f, :3. PLAmmFFINPROPER 4 JUN — 1 2019 Clerk of the Court ©mfl0§01#OJN—\ Superlor Coun of CA Coun o! Santa OIaran BY DEPUTN £5 g El gig. e SUPERIOR COURT OF THE STATE OFCALIFORNIA IN AND FORTHE COUNTY OF SANTA CLARA SILVERIO R. PANLASIGUI, WW» sec ”4338 o COMPLAINT FOR: “mum 1. INTENHONAL MISREPRESENTATION 2. VIOLATION 0F CALIFORNIA CIVIL CODE § 2924.12 and § WVVVVVVVVVVVVVVVVVVVVV 2924.17(a) (b) NNAAAAAAAAA‘A U) . VIOLATION 0F CALIFORNIA CIVIL CODE §3294(C)(3) 4. CANCELLATION 0F A VOIDABLE BARRETT DAFFIN FRAPPIER TREDER & CONTRACT UNDER REV & TAX OCWEN LOAN SERVICING, “VEISS, LLP, CODE §§ 23304.1, 23305AAND LLC, PHH MORTGAGE CORPORATION, VIOLATION OF CAL- CORP. CODE - ETS SERVICES, LLC, GMAC MORTGAGE, §§ 191(C)(7) LLC, WELLS FARGO BANK, N. A., AS 5. T0 VOID 0R CANCEL TRUSTEE FOR HARBORVIEW MORTGAGE ASSIGNMENT OF DEE) OF TRUST LOAN TRUST 2007-3, and DOES 1 6- QUIET TITLE THROUGH 1 5 INCLUSIVE, 7. CANCELLATION OF WRITTEN INSTRUMENTS 8. SLANDER OF TITLE 9 DECLARATORY RELIEF Defendants. 1i). INJUNCHVE RELIEF VVVVVVVVVVVVV MNNNNM COMPLAINT Plainfifi; SEVERIO 1L PANLASIGUI., C‘Plaintim), hereby, alleges as follows; JURISDICTiO; AND VENUE m-couacn-noaN-s 1. The transactions and events that gives rise to this litigation all occmred within the County of Santa Clara, State of California and the amount in controversy exceeds $25,000.00. Additionally, the Property Which is the subject of this litigation is located at: 572 Kevenajre Drive, Milpitas, CA 95035, County of Santa Clam, State of California. 2. Venue is proper in this judicial district in that some the defendants reside andlor conduct business in the County of Santa Clara, State of California. II PARTIES I 3. Plaintifl SILVERIO R. PANLASIG—UI, (“Plaintififi is, and at all times pertinent herein, NN-t—fi—k-t-L—s—t—L—L.‘ an individual residing in the County of Santa Clam; State of Califomia Plainfifl owns the real Iproperty located at: 572 Kevenaire Drive, Milpitas, CA 95035 (“the subject property”). Said property is the subject ofthis litigation. . 4. Plaintifl' is informed and believes, and on that basis alleges, that Defendant BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP a limited liability" partnership, whose State of incorporation is unknown; was at all times pertinent, was conducting business in the County of Santa Clara, State of California. BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP is snot Registered With the California Secretary of State as an organization duly authorimd to MNNNMN V conduct business in the State of California. 5. Plaintifi‘is informed and believes, and on that basis alleges, that Defendant, COMPLAINT OCWEN LOAN SERVICING, LLC, a Delaware Limited Liability Company, was, at all limes pertinent, conducting business in the County of Santa Clam, SMC of California. Defendant claims the servicer of Plainfifl’s Note. / 6. Plaintifi is informed and believes, and on that basis alleges, that Defendant PHH mmflQm-fiwN—L MORTGAGE CORPORATION, a corporation, is organized and existing under the laws of the State ofNew Jersey and at all times pertinent, was conductifig business in the County of Santa Clam, State of California. Defendant claims the assigned servicer of Plaintifl’s Note. 7. Plaintifi' is informed and believes, and 0n that basis alleges, that Defendant ETS SERVICES, LLC, a defimct limited liability company, was organized and existing under the laws ofthe State of Delaware and at all times pertinent, was conducting business in the County of Santa Clara, State of California. Defendant claims the assignedservicer of Plaintiff’s Note. 8. Plainfifl' is informed and believes, and on that basis alleges, that Defendant GMAC v ~MORTGAGE, LLC, a deflmct limited liability company, Was organized and existing under the law's of the State of Delaware and at all times pertinent, was conducting business in the County of Santa Clara, State of California. Defendant claims the assigned servicer ofPlaintifi’s Note. NNNNNMMNJAagaa—LAAA 9. Plaintiflt‘ is infomed and believes, and on that basis alleges, that Defendant, ONONOD-Ol‘éwN&O(Dmflmm-§wM-éc WELLS FARGO BANK, N. A., AS TRUSTEE FOR HARBORVIEW MORTGAGE LOAN TRUST 2007-3, a national association, organized and existing under the laws of the United States, was, at all times pertinent, conducting business in the County of Santa Clara, State of California 10. Plaintifi' does not know the true names, capacities, or basis for liability of Defendants sued herein as Does l through 15, inclusive, as each fictitiously named Defendant is in some manner liable to Plainfiifi or claims some rights, title, or interest in the Property Which is the COMPLAINT ' subject of this litigation. Plaintifi will amend this Complaint to allege their true names and . capacities When ascertained. ll . Plaintifi is informed and believes, and therefore allegas, that at all relevant times mentioned in this Complaint, each of the ficfltiously named Defendants arc responsible in some manner for the injuries and damages to Plaintifi‘ so alleged and that such injuries and damages coooxloamh'wmg were proximately caused by such Defendants, and ash ofthgm. 12. Plaintifl‘ is informed and believes, and thereon alleges, that at all times herein mentioned, each of the Defendants were thc agents, employees, servants and/or the joint- l venturers of the remaining Defendants, and each ofthem, and in doing the things alleged herein below, were acting within the course and scope of such agency, employment and/or joint venture and entelprise. HI FACTUAL AND GENERAL AILEGA'IIONS l3. On or about May 09, 2006, Plaintifi executed a mitten loan agmement with defendant, FIRST FEDERAL BANK OF CALIFORNIA, pursuant to Which Plaintifi obtained a loan in the NNNNNMMN’N-A—L-t—L—L-L—t—L—t-L sum of Seven Hundred Twenty-Six Thousand dollats (US726, 000.00). To secure repayment of mNmm-thdcmmflmm-hww-Lo file mortgage loan and as part of the same transaction, Plainfifi‘ made and executed a written deedl oftrustttansfeningthe Properly intrustto atr'ustee. Amie and correct copy ofthis deed oftrust is attached to this Complaint and incorporated herein by reference as Exhibit A. 14. Plaintifllperformed all terms, covenants, and conditions required of them lmder the mortgage, except for those terms, covenants, and conditions the performance of which was I either waived or rendered impossible by FIRST FEDERAL BANK OF CALIFORNIA, and the misrepresentations of the foreclosing Defendants, and each of them. COMPLAINT 15. 0n or about 03/24/2009, Defendant, ETS SERVICES, LLC, recorded the “NOTICE OF 4 I DEFAULT AND ELECTION TO SELL UNDER THE DEED 0F TRUST” in their zeal to deprive Plaintifl 0f ALL beneficial interests and enjoyment of his real property. (Plainfifl’s Exhibit “3”). Plaintifl‘ alleges that, in spite of the declaration profiered by the Defendants, mmsofim-nww—n prior to recording the notice of default, neither the Loan Servicer not the Lender contacted Plaintifl' in person or by telephone to explore options for avoiding foreclosure as mandated by the California Homeowner Bill of Right and the express requirement of California Civil Code 2923.5. As such, the Notice ofDefault is void and has no force and efi‘ect. 16. Plaintifi‘ alleges that, any applicable statutes of limitations have been tolled by the Defendants’ continuing, fiaud, knowing, and active concealment of the flats alleged herein. Despite exercising reasonable diligence, Plaintifi‘ could not have discovered, and did not discover, and was prevented fiom discovering, the mngdoing complained of herein. b l7. Plaintifi‘ alleges that, on or about 03l25/2009 Defendant, WELLS FARGO BANK, NA. mxlawfillly, caused a document that pmports to be a Substitution of Trustee, to be recorded in the oficial records in the ofice of the County Recorder of Los Angeles County, California. The Substitution 0ftrustee, purports to substitute, ETS SERVICES, LLC, as trustee under the wfllm’thNdcmmN®m¥QN-¥O _ deed of trust executed by Plaintifl's, however, there is no valid power of attorney recorded as to V this document, thus making the authority ofthe signer uncertain. Further, although required under California Civil Code section 2934a, no certificate ofmailing of the purported substitution was recordedcontempomneously or otherwise. Attached hereto as Exhibit C is a true and ' correct copy of the purported “Substitution of Trustee”. Plaintifis allege that, any applicable Statutes of limitations have been tolled by the Defendants” continuing, fiaud, knowing, and active concealment of the fiets alleged herein. Despite exercising reasonable diligence, COMPLAINT Plaintifi could pot have discovered, and did not discover, and was prevented fi'om discoven'ng, V the wrongdoing complained ofhemin. Plaintifi' further alleges that, Despite exercising reasonable diligence, Plainfifis could not have discovered, did not discover, and was prevented fiom discovering, the fiandulent “Substitution of Trustee”. Further, ETS SERVICES, LLC was I coco'slcamth-"A not a duly appointed Trustee as such; the “Substitution of Trustee” is void and has no force and cfi‘ect. 18. On or about 06/290009, Defendant, ETS SERVICES, LLC unlawfully recorded the “NOTICE OF TRUSTEE’S SALE” in their zeal to deprive Plaintifl‘ of all beneficial interests and enjoym-t in Plaintifs real property. (Plaintifi’s Exhibit “D”). Plainfifl alleges that, the notice of trustee’s sale is invalid, and ofno force and efi'ect, because ETS SERVICES, LLC is not a duly appointed trustee. Plaintifi also seeks redress fi‘om Defendants identified herein for damages, for other injunctivc relief, and for cancellation 0f the Trustee’s sale. l9. Plainfifi 3116ng that, any applicable statutes of limitations have been tolled by the Defendants’ continuing, fiaud, knowing, and active concealment 0fthe facts alleged herein. Despite exercising reasonable diligence, Plainfifi could not have discovered, and did not and was prevented fiom discovering, the wrongdoing complained of hemin. mflmm#WN-‘OQWNO)UI#ODNAO NNNNNNMNNAAAAAAAAA.‘ discover, 20. Consequently, on or about 10/01/201 0, Defendant, WELLS FARGO BANK, N.A. AS TRUSTEE FOR HBV 2007-3 issued and recorded a putported Corporate Assignment of Deed of Trust, thereafier,_transfemd and conveyed all beneficial interests under Plaintifl’ s Note and deedl of trust to METLIFB HOME LOANS. (Plainfifl’s Exhibit “E”). 21. The assignment of the deed recites that, for value received, WELLS FARGO BANK, NA AS TRUSTEE FOR HBV 2007-3, uansfets to GMAC MORTGAGE, LLC, under deed of trust executed by Plainfifi on May 09, 2006. COMPLAINT 22. Plainfifi allegms that, any applicable statutw of limitations have been tolled by the > Defendants’ continuing, fiaud, knowing, and active concealment ofthe facts alleged herein. Despite exercising reasonable diligence, Plainfifl could not have discovered, and did not discover, and was prevented fipm discovering, the wrongdoing cemplaincd of herein. 23. Plaintifi further alleges that, the assignment of the deed of trust is invalid, and of no :o'ooxloam.th—x force and efi'ect, because WELLS FARGO BANK, NA. AS TRUSTEE FOR HBV 2007-3, does not have standing or the legal authority to mcord or cause the pmported Corporate Assignment of Deed of Trust under Plaintifi’s Note. Defendant, was not the holder of Plaintifl" s Note in due course. Plainfifl‘ further allegw that the fi'andulent assign of dsed of trust served as the basis for a claim to have the tight to commence a non—judicial foreclosure of Plaintifl" s real property. Plaintifl' further alleges that, WELLSFARGO BANK,_N.A. AS TRUSTEE FOR HBV 2007-3, was not a pany to the commct that seemed Plaintifi’s Note and deed of Trust. Fmthemlore, WELLS FARGO BANK, NA. AS TRUSTEE FOR HBV 2007-3is not a third party beneficiary and do not have any assignment instruments fiom the lender. As such, WELLS FARGO BANK, NA. AS TRUSTEE FOR HBV 2007-3cannot lawfillly assign any beneficial interest gflmm#vadO@mVO§m-th—LO NNNNNNNNAAAdggddAd under Plaintifi’s Note and deed oftrust. 24. Consemlenfly, 0n or about 1/26/201 1, Defendant, ETS SERVICES, LLC unlawfully I recorded the “NOTICE 0F TRUSTEES SALE” in their zeal to deprive Plainfifi 0f all beneficial interests and enjoyment in Plaintifi’ s real property. (Plaintifl’s Exhibit “F”). Plaintifi‘ allegesthat, the notice oftrustee’s sale is invalid, and ofno force and efi'eet, because ETS SERVICES, LLC is not a duly appointed trustee. Plaintifi‘ also seeks redress fiom Defendants identified herein for damages, for other injunctive relief, and for cancellafion of the Trustee’s sale. COMPLAINT 25. Plaintifi‘ alleges that, any applicable statutes of limitations have been tolled by the Defendants’ continuing, fiaud, knowing, and active concealment efthe facts alleged herein. Despite exercising reasonable diligence, Plainfifi could not have discovered, and did not discover, and was prevented fiom discovering, the wrongdoing complained of herein. @m‘lmmth—L 26. On or about 06/1 5/12 Defendant, GMAC MORTGAGE, LLC, unlawfully, caused a document that purports to be a Substitution of Trustee, to be recorded in the oficial records in the ofice of the County Recorder of Los Angeles County, California. The Substitution of trustee, pmports to substitute, ETS SERVICES, LLC, as trustee under the deed oftrust executed by Plainfifis, however, there is no valid power of attorney recorded as to this document, thus making the authority of the signer uncertain. Further, although required under Califomia Civil Code section 2934a, no certificate of mailing of the purported substitution was recorded contemporaneously or otherwise. Attached hereto as Exhibit G is a true and correct copy of the purported “Substitution 0f Trustee”. Plainfifi's allege that, any applicable statutes of limitations have been tolled by the Defendants’ continuing, fiaud, knowing, and active NNNNMMMNNAJAJAA—L—L—L—x concealment of the facts alleged herein. Despite exercising reasonable diligence, Plaintifi's WVAmm§WNJOCDmVO§U1#WN-KC could not have discovered, and did not discover, and was prevented fiom discovering, the wrongdoing complained of heiein. Plaintifi‘ further alleges that, Despite exercising reasonable diligence, Plaimifl's could not have discovered, did not discover, and was prevented fi'om discovering, the fiaudulent “Substitution of Trustee”. Further, ETS SERVICES, LLC was not a I duly appointed Trustee as such; the “Substitution of Trustee” is void and has no force and efi‘ect. 27. 0n or about 07/09/2012, Defendant, ETS SERVICES, LLC, unlawfully recorded the “NOTICE 0F DEFAULT AND ELECTION TO SELL UNDER THE DEED OF TRUST” in their zeal to deprive Plaintifi of ALL beneficial interests and enjoyment of his real property. COMPLAINT (Plaimjfi’s Exhibit W). Plainfifi's allege that, any applicable stamm oflimitafions have been tolled by the Defendants’ confirming, fi‘aud, knowing, and active concealment ofthe facts alleged herein. Dmpite exercising reasonable diligence, Plaintifi could not have discovered, and did not discover, and was prevented fiom discoven'ng, the wrongdoing complained of cocoxlmo-nbwmya herein. Plaintiff further alleges that, Despite exercising reasonable diligence, Plainfifi could not have discovered, did not discover, and was prevented fi'om discovering, the fiaudulent Notice of Default. Prior to recording the notice of default, neither the Loan Servicer not the Lender contacted Plaintifi‘in person or by telephone to explore options for avoiding foreclosure as mandamd by the California Homeowner Bill of Right and the express requirement of California Civil Code 2923.5. As such, the Notice of Default is void and has no force and efi‘ect. 28. Plaintifi’ alleges that BARRETT DAFFIN FRAPPIER 'I'REDER& WEISS, LLP, OCWEN LOAN SERVICING, LLC, PHH MORTGAGE CORPORATION, ETS SERVICES, .LLC, GMAC MORTGAGE, LLC, WELLS FARGO BANK, N. A., AS TRUSTEE FOR NNNMMNNN—x—x—x—na—L—L—L—L—L HARBORVIEW MORTGAGE LOAN TRUST 2007-3. and each of them cannot show proper receipt, possession, transfer, negotiations, assignment and ownership ofthe Plaintifl’s original gNO’mAQNfiomemmth-io Promissory Note and Deed of Trust, resulting in imperfect secmity interests and claims. 29. Plaintifi‘ alleges that, on or about 09/22/2015, Defendang GMAC MORTGAGES, LLC and OCWEN LOAN SEVICING, LLC issued and xecorded Corporate Assignment of Deed of Trust under Plaintifl’s Note, thereafler, transferred and conveyed all beneficial interests Imder Plainfifi’s Note had deed oftrust to WELLS FARGO BANK, N. A., AS TRUSTEE FOR HARBORVIEW MORTGAGE LOAN TRUST 2007-3. (Plaimifl’s Exhibit “1”). The assignment of the deed recites that, for value received, GMAC MORTGAGES, LLC and COMPLAINT OCWEN LOAN SEVICING, LLC, transfers all beneficial interacts to WELLS FARGO BANK, N. A., AS TRUSTEE FOR HARBORVIEW MORTGAGE LOAN TRUST 2007-3, under deed oftrust executed by Plaintifl‘ on May 09, 2006. 30. Plaintifi‘ alleges that, the assignment ofthe deed oftrust is invalid, and ofno force and mm‘lmtflhWN-i efi'ect, because GMAC MORTGAGES, LLC and OCWEN LOAN SEVICING, LLC, do not have standing or the legal authority to transfer or convey Plainfifl's interests to WELLS FARGO BANK, N. A., AS TRUSTEE FOR HARBORVIEW MORTGAGE LOAN TRUST 2007-3. Plainfifl‘ further alleges that, Defendants, were not the holder ofPlaintifi’s Note in due course. Plainfifi' alleges that the fiaudulent assignment of deed of trust served as the basis for a claim to have the right to commence a non—judicial foreclosum of Plaintifi" s real property. 31. Furthermore, GMAC MORTGAGES, LLC and OCWEN LOAN SEVICING, LLC, were not parties to the contract that secured the Note and deed of Trust of Plaintifi’s real property. Additionally, GMAC MORTGAGES, LLC and OCWEN LOAN SEVICING, LLC, arc not third party beneficiaries and do not have any assignment instmments fiom the lender. As such, neither GMAC MORTGAGES, LLC nor OC‘WEN LOAN SEVICING, LLC, has legal memthJOOmflmm-th-KD MNNMNMMMN—LAAAAA—Laaa standingtotransferPlaintifl’s interestinhis deed oftmstto WELLS FARGO BANKN. A.,AS TRUSTEE FOR HARBORVIEW MORTGAGE LOAN TRUST 2007—3. Further, Defendants cannot lawfilll‘y assign any beneficial interest under Plainfifis Note and deed of trust to, WELLS FARGO BANK, N. A, AS TRUSTEE FOR HARBORVIEW MORTGAGE LOAN TRUST 2007-3. 32. Plainfifi alleges that, on or about 10/20/2015 Defendant, WELLS FARGO BANK, N.A. and OCWEN LOAN SEVICING, LLC, and in coordination with PHH MORTGAGE CORPORATION, unlawfully, caused a document that purports to be a Substitution of Trustee, 10 COMPLAINT to be recorded in the oficial records in the ofice of the County Recorder of Los Angeles County, California. The Substitution oftrustce, pmports to substimte, BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP, as trustee under the deed of tust executed by Plaintiff, however, there is n9 valid power of attorney recorded as to this document, t0m~l0>01#wN-3 thus making the authority of the signer uncertain Further, although required under California .1 Civil Code section 2934a, no certificate ofmailing of thc purpoxted substitution was recorded contempoxaneously 0r otherwise. Attached hereto as Exhibit J is a true and comet copy 0f the purported “Substitution of Trustee”. Plaintifi‘s allege that, any applicable statutes of limitatiom have been tolled by the Defendants’ continuing, fi'aud, knowing, and active concealment of the facts alleged herein. Despite exercising reasonable diligence, Plaintifi' could not have discovered, and did not discover, and was prevented fiom discoveting, the wrongdoing complained of herein; Plaintifi' finther alleges that, Despite exercising reasonable diligence, Plaintifl‘ could not have discovered, did not discover, and was prevented fiom discovering, the BARRETT DAFFM FRAPPIER TRADER & WEISS, ' fiaudulent “Subsfitution of Trustee”. .LLP is not a duly appointed Trustee as such; the “Substitution of Trustee” is void and has no - force and efi‘ect. BARRETT DAFFIN FRAPPIER TRADER & WEISS, LLP is not registered CONmtfl-th‘AOOOONQm-EWN-bo .Wifll the California Secretaxy of States as organization duly authorized to conduct business in the State of Califomia. 33. On or about 12/04/2015, Defendant, BARRETT DAFFKN FRAPPIER TRADER & - _ WEISS, LLP, ‘Mawfiflly recorded the “NOTICE OF DEFAULT AND-ELECTION TO SELL UNDER THE DEED 0F TRUST” in their zeal to deprive Plainfifi‘ of ALL beneficial interests and enjoymnt of his real property. (Plainfifi’s Exhibit “-K”). Plainfifi alleges that, any applicable statutes of limitations have been tolled by the Defendants’ continuing, fiaud, 11 COMPLAINT knowing, and active concealment of the fists alleged herein. Despite exercising reasonable diligence, Plainfifi‘ could not have discoveted, and did not discover, and was prevented from discovering, the wrongdoing complained of herein Plaintifl‘ further alleges that, Despite exercising reasonable diligence, Plaintiffs could not have discovered, did not discover, and was prevented fiom discovering, the fiaudulent Notice of Default. Plior to recording the notice of default, neither the Loan Servicer not the Lender contacted Plaintiff in person or by telephone t0 explore options for avoiding foreclosure as mandated by the California Homeowner Bill of l Right and the express requize‘ment of California Civil Code 2923.5. As such, the Notice of Default is void and has no force and efl'ect. 34. Plaintifl‘ alleges that BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP, OCWEN LOAN SERVICING, LLC,'PHH MORTGAGE CORPORATION, ETS SERVICES, I LLC, GMAC MORTGAGE, LLC, WELLS FARGO BANK, N. A, AS TRUSTEE FOR HARBORVIEW MORTGAGE LOAN TRUST 2007-3, and each 0f them cannot show proper NM-i-gA—LA—LAJAA.‘ Ieceipt, possession, tmnsfer, negotiations, assignment and ownership of the Plaintifi’s original Promissory Note and Deed of Trtist, resultingin imperfect security interests and claims. 35. Plaintifi‘alleges that, 0n or about 06/21/2016, Defendant, BARRETT DAFFIN FRAPPIER TRADER & WEISS, LLP, recorded the Notice of Trustee’s sale. .mflmmnhwg—I-Dtomflmmth—kc (Plaintifi’ s Exhibit “L”). The Notice of Trustee’s Sale is false in that, without it fails to properly credit ‘ Plaintifl' for the payments Plaintiff made towards the mortgage and therefore overstates the 'amount of Plaimifi’s default 36. On or about 04/27/2018, Defendant, BARRETT DAFFIN FRAPPIER TRADER & NN.NMMM WEISS, LLP unlawfully recorded the “NOTICE 0F TRUSTEES SALE” in their zeal to _ deprive Plaintifi' of all beneficial interests and enjoyment in Plaintifi’s real property. (Plaintifl‘ s I 12 COMPLAINT Exhibit “M”). Plainnfi' alleges that, the notice oftmstee’s sale is invalid, and ofno force and efi'ect, because BARRETT DAFFIN FRAPPIER TRADER & WEISS, LLP is not a duly appointed trustee. Plaintiff also seeks redress fiom Defendants identified herein for damages, for other injunctive relief, and for cancellation of the Trustee’s @mVQUI-th-A sale. 37. Plaintifi‘ alleges that, any applicable statutes of limitations have been tolled by the Dcfendants’ continuing, fi'aud, knowing, and active concealment of the facts alleged herein. Despite exercising reasonable diligence, Plainiifi' could not have discovered, and did not discover, and was prevented fiom discdvering, the wrongdoing complained 0f herein. 38. Plaintifl‘ allegm that any security interest in his real property was, thus, never perfected. The alleged holder of the Note is not the beneficiary of the Deed 0f Trust. The alleged beneficiaxy of Plaintifl’s Deed of Trust does not have the requisite title, perfected secmity interest or standing to proceed; and/or is not the real party in interest With regard to any action taken or to be taken against the Property. 39. Plaintifi‘ alleges that Defendants, and each of them,‘cannot show proper receipt, NNNNNNNNAA—k—sgfigddA possession, transfer, negotiations, assignment and ownership ofthe Plaintifl’s orig'nal Promissory Note and Deed of Trust, resulting in imperfect secun'ty interests and claims. 40. Plaintiff also seeks redress fiom Defendants identified herein for damages, for other injunctive reliefiand for cancellation of the Trustee’s sale. 41 Plainfifi‘ seeks damages including punitive damages against, . BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP, OCWEN LOAN SERVICING, LLC, PHH MORTGAGE CORPORATION, ETS SERVICES, LLC, GMAC MORTGAGE, LLC, WELLS FARGO BANK, N7 A., .AS TRUSTEE FOR HARBORVIEW MORTGAGE LOAN TRUST 2007-3, for 13 COMPLAINT ' willful mismpresentation and the unlawful commencement of the non—judicial foreclosure of .plainfifl’s teal property. /// /// @wflmU'I-th-A /// FIRST CAUSE OF ACTION ([NTENTIONAL MSREPRESENTATION) (AGAINST ALL DEFENDANTS) 42. Plaintifl‘ re-allegw and incorporates by reference all preceding