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  • Mark Jones et al vs Bank of America et al Other Real Property Unlimited (26)  document preview
  • Mark Jones et al vs Bank of America et al Other Real Property Unlimited (26)  document preview
  • Mark Jones et al vs Bank of America et al Other Real Property Unlimited (26)  document preview
  • Mark Jones et al vs Bank of America et al Other Real Property Unlimited (26)  document preview
						
                                

Preview

PAHL & McCAY A Professional Law Corporation Stephen D. Pahl, Esq. (State BarNo. 95900) Sonia 225 S. Shah, Esq. (State BarNo. 200709) West Santa Clara Street HLED Suite 1500 OCT ° San Jose, California 951 13-1752 9 2018 Telephone: (408) 286—5100 Facsimile: (408) 286—5722 ‘ tun I- Email: spahngpahl-mccay30m sumMammy. CW” CA Cowgfim‘u cm ‘1' sshathpahl-mccaycom DEPUTY R. A; -1 Attorneys for Plaintiff [1&7 é MARK JONES SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA 10 11 MARK JONES, ) Case No.1 8 C V 3 3 5 9 0 l ) 12 Plaintiff, ) DECLARATION OF MARK JONES IN ) SUPPORT 0F EX PARTE 13 V. ) APPLICATION FOR ORDER T O SHOW ) CAUSE RE: TEMPORARY 14 BANK OF AMERICA, company authorized ) RESTRAINING ORDER AND to do business in California, OCWEN ) PRELIMINARY INJUNCTION 15 LOAN SERVICING, LLC, an LLC ) organized in Delaware and authorized t0 d0 ) Hearing Date: October 9, 2018 16 business in California, CALIBER HOME ) Time: 8:15 am. LOANS, INC, a Delaware corporation, ) Dept: TBD 17 authorized to do business in California, ) U.S.BANK TRUST, N.A. an unknown ) Action Filed: October 5, 2018 18 entity, as Trustee for L859 Master ) Trial Date: N/A Participation Trust ) 19 )_ Defendants. ) 20 1 21 I,MARK JONES, declare as follows: 22 1. The matters set forth herein are based upon my own personal knowledge and 23 observation, except as to those matters Which are stated to be based upon information and belief. Pahl& McCay A 24 Professional Corpv If called t0 testify herein, I can and would competently testify thereto. 225 W. Santa Clara Suite 1500 San Jose, CA 951 13 (408) 286-5100 25 2. I am the owner 0f property located at 2422 Adonis Way, San Jose, County of *4733/001 - 00647760.DOCX‘ 26 Santa Clara, State of California (hereinafter referred to as the “Subject Property” or the 2 27 “Property”). 28 3. Isecured a loan on the property, identified as loan number 713 1 139276 fiom 1 ______________ DECLARATION OF MARK JONES IN SUPPORT OF TRO .. . (Case No.) Western Federal Savings and Loan Association in the full amount 0f $80,000 0n 0r about January N 24, 1984. At the time we took the loan, my parents and my wife were also named as b0 [IOWSI‘S 011 the loan. QUI-PU) 4. A Deed 0f Trust was recorded 0n the Subject Property 0n February 7, 19 84, a true and correct copy 0f which is attached hereto as Exhibit A and incorporated herein by reference. 5. I am informed and believe that BANK OF AMERICA (“BOA”) serviced the loan through November 6, 2012 at which time OCWEN LOAN SERVICING, LLC (“OCWEN”) \OOOQ commenced serving the loan. 6. On October 23, 2012, BOA faxed me a payoff statement with a date 0f October 22, 10 2012, a copy 0f which is attached hereto as Exhibit B and incorporated herein by refere nce. The 11 payoff demand, as reflected in the payoff statement, was $24,974.48. 12 7. On October 30, 2012, Icaused the sum of $25,000 t0 be wired t0 BOA in full and 13 complete payment 0f all amounts due and owing 0n the loan and as reflected in the pay o f 14 statement. i 15 8. BOA failed to record a deed 0f reconveyance on the Subject Property deEpite the 16 fact that as 0f the date ittransferred the servicing 0f the loan t0 OCWEN, the loan was fully paid ‘ 17 (in fact paid in access 0f the pay—off demand) such that there was no reason to transfer the loan to 18 any other entity including OCWEN. 19 9. Instead, as stated above, BOA apparently transferred the loan service to OCWEN 20 who served me with a “Notice of Assignment, Sale or Transfer of Serving Rights” on l\ ovember 21 9, 2012, a true and correct copy of which Notice isattached hereto as Exhibit C and incorporated 22 herein by reference. 23 10. Upon taking over the servicing of the completely paid off loan from BOA and Pahl& McCay 24 A Professional Corp. 225 W, Santa Clara despite the full payment of the loan, OCWEN commenced sending different notices to ime 1500 iuilc CA 951 l3 Sun Jnsc, 2866100 1408) 25 demanding payment on the loan. For instance, on November 9, 2012, OCWEN sent n tice that *4733/001 - 30647760.DOCX. 26 the total due 0n the loan was $24,862.18. On November 11, 2012, OCWEN sent a “Sp Bcial l 27 Notice” reflecting an amount due of $15,604.30. True and correct copies of these notices are 28 attached hereto as Exhibits D and E respectively and incorporated herein by reference. ____________________ 2 DECLARATION OF MARK JONES IN SUPPORT OF TRO .. . (Case No.) 11. On November 23, 2012, I responded to the threatening statements and notices from OCWEN demanding that OCWEN immediately cease all threatened collection actions and reminding OCWEN that the loan in question had been completely paid off and even acknowledged by OCWEN’s own representatives over the phone. I demanded that OCWEN refund the payment overage of $197.82 to me. A true and correct copy 0f my November 23, 2012 letter is attached hereto as Exhibit F and incorporated herein by reference. \oooqmuxp 12. In fact, prior to the November 23, 2012, letter, Icontacted OCWEN and BOA and confirmed with their respective duly authorized agents that they had indeed received $25,000 from me. The OCWEN agent even acknowledged receiving the full $25,000 from BOA and assured me 10 that I should be receiving a “satisfaction letter” from OCWEN. My November 23, 201 2, letter 11 sets forth this conversation and admission 0f OCWEN. (See Exhibit F). 12 13. OCWEN even sent a letter on December 9, 2012, acknowledging the receipt of the 13 said amount of $25,000. In OCWEN’s own words, “On November 14, 2012, we applie ti funds in 14 the amount 0f$25,000 efiectively November 6, 2012, which was utilized towards reinstatement.” 15 A true and correct copy 0f the said December 9, 2012, letter is attached hereto as Exhibit G and 16 incorporated herein by reference. 17 14. OCWEN additionally sent a Payment Reconciliation History reflectingt he payoff 18 amount 0f $25,000 which was applied t0 the loan on November 14, 2012. The Paymen t 19 Reconciliation History from OCWEN clearly shows that there is zero balance due and the loan is 20 paid in full. A true and correct copy 0f the December 9, 2012, loan history statement is attached 21 hereto as Exhibit H and incorporated herein by reference. 22 15. Indeed, OCWEN even sent a check t0 me dated December 11, 2012, fr01 n the 23 escrow disbursement account confirming that the loan had been paid in full and that I w as, in fact, Pahl& McCay I\ 24 Professional Corp. owed $154.55 for the amount in excess 0f the payoff amount that I had sent in t0 BOA. A true 225W. Santa Clara 1500 Suite CA 95113 San Jose, 25 and correct copy 0f the December 11, 2012, check is attached hereto as Exhibit I and incorporated 286-5100 (408) *4733/001 - 306477601DOCX. 26 herein by reference. 1 27 16. Despite its own records reflecting that the loan had been paid off in full completely paid off the loan 6 years ago. 31. Additionally and as if the sheer harassment was not enough, Defendants have caused serious damage to my credit history by wrongfully and fraudulently reporting to third parties including credit agencies that Ihave defaulted 0n the Subject Loan. Indeed, the fraud is underscored by the fact that Defendants, 0n a regular basis, even change their demand how c bf much is owed moving from $59,889 in September 2015 to $16,703 in December 2016 1nd a now back t0 $20,184.30 as 0f July 2018. 32. True and correct copies 0f letters from me and my counsel t0 CALIBER underscoring the discrepancies in CALIBER’s own claims and how they simply d0 not make NNNNNNb—ti—KHHHHHHHH sense given the complete history previously provided t0 CALIBER and each of the Degendants are attached hereto as Exhibit COBRUIAUJNHOOOOQONUI-bwmhtc V and W respectively and incorporated herein by reference 33. Irequest that the court grant this Temporary Restraining Order given the urgency and sheer unfairness of the situation in which my wife and I find ourselves at 64 years 0f age. Ideclare under penalty 0f perjury, under the laws 0f the State 0f California, that the foregoing is true and correct. Executed on October 5, 2018, at , Nevada. Pahl& McCay AProfessional Corp. W. Santa 225 Clara 1500 §uilc San Jose, (IA 95113 :408) 286-5100 *4733/001 - MARK JONES 3()64776().DOCX. 1 N ____________________ 6 DECLARATION OF MARK JONES IN SUPPORT OF TRO . .. (Case No.) '_________—____——_ 2018-10-04 5:53 PM (PDT) To: +1 408-2.43 From: +1 775—289-9800 . Page 1/2 1 than what was claimed m 2016) remains due and owing 0n the loan as of My} 2,01 8and that 9 111., 2 sale (per the notice) was to be scheduled 90 days after the date 0f the notice (namely after October 3 3, 20} 8). 4'1 30. I has just been informed that on October 3, 201 8, Defendants recorded a “Notice of U1 Trustee Saie” on the Subject Property. Whiie I am not aware ofthe date ofthe intended sale (since 6 I am only able t0 see that aNotice of Trustee Sale has been recorded but not the date thereof), the ~J fact that the Notice has already been recorded with the knowledge that itis improper and unlawfu 8 underscores my concern that Iwill be rendered homeless at theage 0f 64 despite having 9 completely paid off the loan 6 years ago. 10 3 l. Additionally and as ifthe sheer harassment was not enough, Defendants have- I1 caused serious damage. to my credit history by wrongfully and frauduTently reporting t0 third 12 parties including credit agcn cies that i have defaulted 0n the.Subject Loan. Indeed, the fraud Es 13 underscored by the fact that Defendants, 0n a reguiar basis, even change their demand of how l4 much isowed moving from $59,889 in September 2015 t0 $l6,703 inDecember 2016 and now [5 hack t0.$20, 184.30 as of Juiy 201 8. 16 32. True and correct copies 0f letters from me and my counsel t0 CALXBER 17 underscoring the discrepancies in CALIBER’S own claims and how they simply do not make 18 sense given the complete history previously provided L0 CALIBER and each 0f the Defendants ale 19 attached hereto as Exhibit V and. W respectively and incorporated herein by reference. 20 33. l request that the court grant this Temporary Restraining Order given the urgency 2t and sheer unfairness of the situation inwhich my wife and l find ourselves at 64 years of age. 22 I declare under penalty 0f per jury under'the iaws ofthe State Catifomia, that the 0f. 33 fcnegoing is timeand correct Executed on Octobe-r 4 201 8 am i 7’2 _W_, Nevada. 1‘; f Pnhll&_Mt;(.:ay 24 Hr, ”’w’immcim Sum ISOQ f * ' fig“, » \ Mm-“ 2/ °“”W 25 Sin ?o'sc,‘CA9§H't [I \z ‘1733"091 - MARK JONES 26 DHb‘i'l'I'tiOJXXLX. l 27 ‘28 _____________________ 6 .‘-_--__--~_-_____-- DECLARATION 0F MARK JONES INSUPPORT OF TRO . .. (Case N 3.) 44/ H/wag 73%)4‘04 aEc FEE 7 WHENRECORDEDMAIL Io _ . MICRO /l RlCOrdedfl [he(9un“ of “fem Twammnceco WESTERN FEDERAL SAVINGS . ' ' , AND LOAN ASSOCIATION meo MINDANAO WAV LIEN _ um FEB 7 GEORGEA m 1984 m ' “I MARINA DEL REV. CALIFORNIA 90292 A . hm 0m cm” ' shrouds: lava. LEWM E _- T'fl 6.3a No.L64 9 74 7 7 Deed IMHECOflDiH SUSE SPAEE AEO\€ THIS LINE oi Trusl and Assignmem oI Rents ADJUSTABLE INTEREST RATE LOAN THIS DEED OF TRUST is made this 211 TH day oi JANUARY 19 84 .amonglheTfuslor. FRANK u. JONES AND HILHA A. JUNEB, HIS WIFE AND HARK STEWART JONES AND ROBERTA DIANN JONES; LA MESA TITLE (hefein "Borrower"). COMPANY. HIS HIFE tion, a a Loan Assoc California Corporation (herein "Trustee”). and the Beneficiary, Western Federal Savings and i Mindanao Way. corporation organized under the laws of the United Slates of America. whose address is 13160 Malina Del Rey, "Lender”). California 90292 (herein gr: nts‘and Bonnowsn, in consideralion ol lhe indebtedness herein recited and the lrusl herein crealed. irrevocably V me described lollowing lo Truslee. in ttusl. wilh power o! sale. properlylocated inlheCounly ol SRNTA BLARIX conveys LOT 3, "TRACT NO. 2099", FILED JULY 15y 1958, HAP BUDK 95: PAGES Ea AND 23, SANTA CLARA COUNTY RECORDS“ C alifomia: ,Slate of mamas um BAN JOSE. which has the address oi 31.22 (Sum) _ (cm 95121.. (herein "Properly Addless"); whichisalso Borrowefs maifing address. CALIF‘Q‘Nflg Coal; Tugelhe: with inleresi ail propelly and in and Io: (a) all easements and rig his oi way which Truslor now has or may hereaiier acquite in or lo said lhereon. includmg. bul nol appunenanl and (b) ail buildings, slruciures, improvements. iixiures, and appurtenances now 0t hereafter pla:ed iherelo: provide m supply air-cooling air—cnndi- appalalus and equipmenl. wheiher o: nol physically aimed lo ihe land c: any building. used lo limited lo. ail dishwashing. garbage disposal o: other services; and an Wasie Yen! lioning. heal. gas. water. Iighl. power. reivigeralian. venhlalion. laundry. drying. and floor covering. awnings. ranges. ovens. wa Ier heaters systems. antennas. pool equipmenl. window coverings. drases and diapery rods. carpeting and lo be pan oi Ihe teal pro--erty lhal is and allached cabinets; il being inlanded and agreed lhal such ilems be conclusively deemed lo be .aflixed lo waler or waier rights. owner- waier rights (wheiher or nol appurlenanl) and shares ol slack penaining lo such conveyed hereby; and (c) ail waler and covered by Ihis Deed ol Trust. SUBJECT. HOWEVER, ship oi which aflecls said property: and (d) lhe Ienls, income. issues and proiiis ol ail properly hereinailer sel inrlh. Trusior agrees la execute and deliver.i ram lime lo io lhe assignment lo Beneficiary ni such ranks. income, issues and ptonls. Deed olfl’rusl on any such equipmenl. 1 he property ume. such (unher insllumenls as may be tequesled by Beneficiary Io confirm [he lien ol lhis ‘ ’ "suchproperty." conveyed lo Ttusiee hereunder is hereinanev referred lo as and plolils oi ail prope ny covered The Tmsloc absolutely and inevocabiy gvanls. lvansiers and assigns lo Beneficiary the Ienls. income. issues. ' by [his Deed ol Trust. FOR THE PURPOSE OF SECUfiiNG: pmm‘s- 80,000 .00 wiih mares: thereon. accordingiomexerms oi a Paymenmme sumols (I) Tm, payable made hy modifications. exla-isions or renewals meted. (2) Payment of such lo Beneficiary or order. and ail sory noie oi even data herewim a prom‘s- a hereaher honoured from Beneficiary by Ihe then record owner ol such property and evidenced by additional aims wan interw Ween (a) may be Ldflnced b! wynoleomolatecifingito:meyaresosecuredandanmodificafiors.exiensionsotrenewaismuedor(b)asmaybeincuned.pafloulot extensiom or renewds memol. o: Beneficiary, under any prosisbn cl lh's Deed ol Tum and an modifications. Beneficiary. or may cumin be due Tnntee lo Pa ~ (3) noi a each olTm r- ' ‘- ‘n Tmbl relau'ng 10 any papers executed by herein or incorporated herein by reiaence or contained um. lot the purpose olconsxmcung inprovunens on suc 's cl fl: hm secured hereby. (4) Pemnnance. iw-e loan secured herehyor any pan meteol ‘ relating lo such prop- any banding loan agreemml o: nine: agreemenl between Tmsloc and Beneficiary each p(ov‘sion ot agreenml ol Thaw contained "n and agreanmts required to be kept and perfumed by Trista: pursuant to the utyi (5) The paintmance and keeping by Twat ol sch oi the cement Tmtm‘s ‘n raped (6) Canpnance by m wms oi my lease and any and ideal Trustol's other i'tshuments creah‘ng o: i1 defining right such to peoperty. uuamyomwafiondmwnhcomfiumsandfimmmingm Tm.wimeachandeverymonetarypmv'sbntobeputonned hyTnstor hum! sxhpropertyanduponwritmmummytmmforczmentbyl’mstorotanycownanttopaymaintenanceowtherdtargmilthesame “with buenpaidornidlegdstepsIahmloenlotcesuchpaymentwitinBOdaysaMsxhwmenreqmut‘smade.(T)AtBeneficiay'sopb'on. . hmdemptmonuhnWmorobfigab‘onolThistortotolanysuccasochi'lterantTnstottosmhpropatynbetoBenefi- notmhethet otherwise securedm noLocwhefl-et u’st‘ng at ciarymhetfercreated firecttyoracquired byabsotutaottontingent as‘gnment. whethadueor (I)cm W mcb'meolIheuacub'ononhisoeedotInflammnu’Meuerc'seolsmhopuontobeemcedbyamficehwfih‘ngtotngomranysucca- sot‘nMotInsecmwedonnanceolalageemenbutInstorIopayteesandchargatomeaeneficiarywhethaumthaénsetm(mFayrnwlol Waalwedbylawwhmsmhdwga nmadeJotanysalanmtregmrmg TO PROTECT THE SECURITY OF THIS DEED 0F TRUST. IRUSTOR AGREES: u beam. theobfigab‘onsecured begun To complete in good worlmantile manner any building or impmvemenl or repair thetetowhich n ay be incurred thetetot, and not la permit any property or contempiated by the loan secuved hereby. lo pay when due al costs and liabinties on such anything agrees, also in Deed this mechanic's hen against such pmpefly. not any slop notice against any loan proceeds. Tmstor olTm! to me complete same in xtardifice contrary notwithstanding. (a) Io pmmptiy commence work and to complete the ptoposed impmvements ptompdy. (b) lo W at an times during construction. (d) Io with Vans and specifications as approved by Beneficiary. (c) Io anow Beneficiary lo tnspecl such pcoperty ol such tact. whit h notice may reflace any wort o: materiaB unsatistactoty lo Buteficiary. within fifteen (I 5) days aflev written notice lrom Beneficiary be given lb Tnnloc by reg'steed man. sent to his last kngwn address. or by personal service oi the same. m t (2) and d M. Tohm demor-sh any such property in good cond-hcn and repair. nol lo substantxany aner. remove o: oc destroyed including. wimaut restrict— build'rgs thereon; lo restore prompdy and in good workmanhke mannet any buikfings which may be damaged due ail claims to: labor pettomted and matedals tub ing me genetafity ol the foregoing. damage from Ietmites, and earth mavemenl; to pay when comm with an tavr affecting such property OI rushed in connection with such propetty and not lo permit any mechanic's Bea against such peoperty lo upennil waste thereon; not to commit, suffev ot permit any act upon rewiring any attentions 0t implovements to be made thereon; not lo commit emuacs that from the character or use at such such prom!” i1 violation bl law. lo emivate. irrigate. fertilize. tumigate and pmne; and Io do al‘l ’n the same condttbn (reasonable wear and tear excepted) as at the dah: ol tbs Deed may be teasonably necessary to keep such propedy progeny d Inna. (3) CM m. Fin hi h Drona?! 33 a .' To provide and maintain in tome. at all tunes. rrre and other typa 0t insulance mth respetl lo su< - 'n lorm and content and by such cnmoafliet may be muted by Beneficiary. Exh poucy ol such insurance shan be in an amount. tot a letrn and yahflha may be afiskctory Io Beneficiary. with loss payable to Beneficiary. and shall be defined Io. am remain in 1 m -r- . Me 04 ail premiums lusts, Trustee shaft aLr-o lum‘sh Beneficiary with written evidence showing payment eecuriy tor me taithlul pedomaue o! expiring {mun Me Shall! Meta. AI text thirty (JO) days pn'oc Io the upirahon ol any hsurance poncy. a poficy «chewing o: mend-ng such in the event any such insurance poficy and whence o! Io Bemficiaty withmmen evidence shoving payment oi the ptemiurn lheretot. and. rams: o obta‘n such payment ot the premium are not so defused to Beneficiary. Innm by uh executing Deed 0tInstspecifically Bcnefvciavy m demand upon Trustov and unhout ve'easing Tmto: horn any obhgatm imucarce. Bmeficiary. but without ob59ation so to do. without notice to ptemiurn therefor. heéther Unmee hered. may obtain such insutance througho: trom any imurance agency ov company acceptabte lo it. and pay the an y nsotvency 0| mm obtain'mg o: mainta'ming such insuxance o: lo: the coitection oi any insurance monies oo tot non Bmefiaixy shai bewargeable