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Superior Court of California
Raymond L. Sandelman SBN 078020
Attorney at Law County of Butte
196 Cohasset Road, Suite 225
Chico, CA 95926-2284 4/22/2020
(530) 343-5090 / (530) 343-5091 (FAx)
Email:Raymond@sandelmanlaw.com
By Deputy
Attorney for Wayne A. Cook, Trustee of
The Wayne A. Cook 1998 Family Trust
Dated 12/29/98
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF BUTTE
10
NO.: 20CV00905
1 WAYNE A. COOK, TRUSTEE OF THE
WAYNE A. COOK 1998 FAMILY COMPLAINT TO FORECLOSE DEED OF
12 TRUST DATED 12/29/98, TRUST AND FOR SPECIFIC
13 PERFORMANCE OF RENTS-AND-PROFITS
Plaintiff, CLAUSE
14
vs.
15
16 EDWARD F NIDEROST,
INDIVIDUALLY AND AS TRUSTEE OF
17 THE EDWARD F NIDEROST
REVOCABLE LIVING TRUST DATED
18
NOVEMBER 8, 1998, DOES 1
19 THROUGH 10,
20 Defendants.
21
22
23 Wayne A. Cook, Trustee of The Wayne A. Cook 1998 Family Trust Dated 12/29/98
24 (hereafter referred to “Cook”) alleges:
25 1. The place of administration of The Edward F. Niderost Revocable Living Trust Dated
26 November 8, 1998 is Butte County, California.
27 2. On February 28, 2020, defendant Edward F. Niderost, Trustee of The Edward F. Niderost
28 Revocable Living Trust Dated November 8, 1998 (hereafter referred to as “Niderost”) delivered to
1
COMPLAINT TO FORECLOSE DEED OF TRUST AND FOR SPECIFIC PERFORMANCE OF RENTS-AND-
PROFITS CLAUSE
Matthew N. Fine, MD 401K Plan a promissory note dated February 18, 2020 in the amount of
$500,000 (hereafter the “Fine $500,000 Note”). A copy of The Fine $500,000 Note is attached,
marked Exhibit 1, and is incorporated herein by reference.
3. On February 28, 2020, defendant Niderost delivered to Matthew N. Fine, MD 401K Plan
a deed of trust to secure payment of the Fine $500,000 Note. A copy of the deed of trust recorded
on February 28, 2020 in the Official “Records of the County of Butte as Document No. 2020-
0009600 (hereafter referred to as the “Fine Deed of Trust”) is attached hereto marked Exhibit 2 and
is incorporated herein by reference. The collateral described in the Fine Deed of Trust is commonly
known as 2185 Esplanade, Chico, Butte County, California, Butte County Assessor’s Parcel No.
10 006-120-003-000 and is more particularly described as:
11
Be.
ae
sé
oe
12 A PORTION OF RANCHO ARROYO CHICO LYING WEST OF THE
ss SHASTA ROAD (US 99E) AND NORTH OF LINDO CHANNEL AND NORTH
Aeon 13 OF THE NORTHERLY BOUNDARY OF BIDWELL COUNTY PARK, AND
Rte
B30
Sognas 14 MORE PARTICULARLY DESCRIBED AS FOLLOWS:
as
4baS
Zer
Ze BEGINNING AT AN IRON PIPE ON THE WESTERLY SIDE OF SAID
28 15 SHASTA ROAD, SOUTH 36° 15' EAST, 1096.65 FEET ALONG THE
ge
E<93
é¢ WESTERLY SIDE OF THE SHASTA ROAD FROM A CONCRETE MONUMENT
aa 16
5S
ae
AT THE MOST EASTERLY CORNER OF LOT 2, AS SHOWN ON THAT
gS
ae CERTAIN MAP ENTITLED, "REED PARK UNIT NO. 1", WHICH MAP WAS
17
RECORDED IN THE OFFICE OF THE RECORDER OF THE COUNTY OF
18 BUTTE, STATE OF CALIFORNIA, IN BOOK 18 OF MAPS, AT PAGE(S) 35;
THENCE FROM SAID POINT OF BEGINNING RUNNING SOUTH 36° 15' EAST
19
ALONG THE WESTERLY LINE OF SAID SHASTA ROAD, A DISTANCE OF
20 520.0 FEET TO A POINT ON THE NORTHERLY BOUNDARY OF BIDWELL
COUNTY PARK, MARKED BY A CHISELED CROSS ON CONCRETE
21 RETAINING WALL; THENCE ALONG SAID NORTHERLY BOUNDARY OF
22 BIDWELL COUNTY PARK THE FOLLOWING SIX COURSES AND
DISTANCES: SOUTH 87° 10' WEST, 275.0 FEET TO A POINT; THENCE
23 NORTH 85° 03' WEST, 63.2 FEET TO AN IRON PIPE AT AN ANGLE IN THE
SOUTHERLY SIDE OF A CONCRETE RETAINING WALL; THENCE ALONG
24
THE SOUTHERLY SIDE OF SAID WALL NORTH 74° 11'WEST, 62.1 FEET TO
25 AN ANGLE IN SAID WALL; THENCE ALONG SAID WALL NORTH 64° 19'
WEST, 69.1 FEET TO AN ANGLE IN SAID WALL; THENCE ALONG SAID
26 WALL NORTH 49° 28' WEST 40.5 FEET TO THE END OF SAID WALL;
THENCE NORTH 36° 52' WEST, 177.70 FEET TO AN IRON PIPE; THENCE
27
LEAVING THE SAID NORTHERLY BOUNDARY OF BIDWELL COUNTY
28 PARK, NORTH 53° 45' EAST, 359.07 FEET TO THE POINT OF BEGINNING.
2
COMPLAINT TO FORECLOSE DEED OF TRUST AND FOR SPECIFIC PERFORMANCE OF RENTS-AND-
PROFITS CLAUSE
The property described in the Fine Deed of Trust is hereafter referred to in this Complaint
as the “Real Property Collateral.”
4. Defendants Does 1 through 10, inclusive, have, or claim to have, an interest in the Real
Property Collateral, which interest is subsequent to and subject to the lien of the Fine Deed of Trust.
The true names or capacities, whether individual, corporate, associate, or otherwise, of defendants
Does 1 through 10, inclusive, being unknown, plaintiff sues these defendants by these fictitious
names and will amend this Complaint to show their true names and capacities when they are
ascertained.
5. On March 31, 2020 Matthew N. Fine, MD 401K Plan assigned to Cook all of Matthew
10 N. Fine, MD 401K Plan’s rights in the Fine $500,000 Note. The assignment is in writing at the end
11 of the Exhibit 1 Fine $500,000 Note. On March 31, 2020 Matthew N. Fine, MD 401K Plan assigned
Be.
ag
os
12 to Cook all of Matthew N. Fine, MD 401K Plan’s beneficial interest in the Fine Deed of Trust. A
os
z25
RS5a 13 true and correct copy of the assignment of the beneficial interest is attached hereto marked Exhibit
Hog oe
Sogn
Asas 14 3, and is incorporated herein by reference.
Weas
ZeEL
Ze
SS
SE? 15 6. Cook is also the holder in due course of a $674,062.39 promissory note executed by
B<63
6¢
Za 16 Niderost and secured by a deed of trust encumbering the Real Property Collateral recorded on
5S
Ba
17 February 28, 2020 in the Official “Records of the County of Butte as Document No. 2020-0009601
18 (hereafter referred to as the “Junior Deed of Trust”). This litigation does not seek to foreclose the
19 Junior Deed of Trust. Cook understands that a foreclosure of the Fine Deed of Trust will result in
20 the Junior Deed of Trust being a sold-out junior lien.
21 7. Niderost has defaulted in the payment obligation specified in the Fine $500,000 Note.
22 Specifically, Niderost has failed to pay the $5,776.67 installment due on March 28, 2020. Niderost
23 continues to fail and refuses to make the payments of principal and interest due on the Fine $500,000
24 Note.
25 8. Cook is informed and believes that The Edward F, Niderost Revocable Living Trust Dated
26 November 8, 1998 is a revocable trust, that Edward F. Niderost is the sole settlor and that Edward
27 F. Niderost retains the right to revoke that trust. These allegations are likely to have evidentiary
28 support after a reasonable opportunity for further investigation or discovery. Edward F. Niderost,
3
COMPLAINT TO FORECLOSE DEED OF TRUST AND FOR SPECIFIC PERFORMANCE OF RENTS-AND-
PROFITS CLAUSE
in his individual capacity is liable for the obligations under the Fine $500,000 Note and the Fine
Deed of Trust.
9. The Fine $500,000 Note and the Fine Deed of Trust provide that on default in payment
when due of any indebtedness under the Fine $500,000 Note and secured by the Fine Deed of Trust,
the entire principal and interest will become due and payable at the option of payor/beneficiary. For
the default described in Paragraph 7 of this Complaint, Cook has exercised this option and elected
to declare the entire sum of principal and interest immediately due and payable. The total amount
due consists of the principal sum of $500,000, plus annual interest from February 28, 2020 at seven
percent (7%). Interest accrues at the rate of $95.89 per day beginning on February 28, 2020 and
10 will continue to the date of entry of judgment in this action.
11 10. Paragraph 5 of the Fine Deed of Trust, in Paragraph 5 provides that as additional security,
Bo
ae
<é
ge
12 Trustor [here Niderost] gives to and confers upon the beneficiary the right, power, and authority, to
g3
32938 13 collect the rents, issues, and profits of the property after any default by Trustor in payment of any
Ba
o¢
So0n 14
axzas
RAR secured indebtedness. Upon any such default, the beneficiary of the Fine Deed of Trust is given the
wepe
Ze
Ze>
55 15 right at any time without notice, either in person, by agent, or by a receiver to be appointed by a
PeesEa
gEa
16 court, and without regard to the adequacy of any security for the indebtedness secured, to enter upon
5S
aR
Ba
go 17 and take possession of the Real Property Collateral, to sue for or otherwise collect such rents, issues,
18 and profits, including those past due and unpaid, and apply the same, less costs and expenses of
19 operation and collection, including reasonable attorney's fees, upon any indebtedness secured by the
20 Fine Deed of Trust. By this pleading Cook demands that Niderost permit Cook to enter on and take
21 possession of the Real Property Collateral to collect the rents, issues, and profits of the Real Property
22 Collateral.
23 11. There is no adequate remedy at law to enforce the provision of Paragraph 5 of the Fine
24 Deed of Trust.
25 12. Cook has performed all conditions, covenants, and promises required to be performed
26 by the holder of the Fine $500,000 Note and the Fine Deed of Trust. Cook remains ready and
27 willing to perform any and all of these terms specified of the holder of the Fine $500,000 Note and
28 the beneficiary of the Fine Deed of Trust.
4
COMPLAINT TO FORECLOSE DEED OF TRUST AND FOR SPECIFIC PERFORMANCE OF RENTS-AND:-
PROFITS CLAUSE
13. The consideration received by Niderost for execution of the Fine $500,000 Note and the
Fine Deed of Trust was fair, just, and reasonable.
14. Cook is informed and believes that Edward F. Niderost’s residence and usual place of
abode is at property other than the Real Property Collateral.
15. Under the terms of the Fine $500,000 Note and the Fine Deed of Trust, Niderost
promised to pay as attorney's fees, in any action brought to enforce the Fine $500,000 Note and the
Fine Deed of Trust, the sum adjudged by the court to be reasonable. The sum of $3,000 is a
reasonable sum to be allowed for attorney's fees in the event of a default judgment.
WHEREFORE, plaintiff requests judgment as follows:
10 1. Against defendant Edward F. Niderost, Trustee of The Edward F. Niderost Revocable
11 Living Trust Dated November 8, 1998 for the sum of $500,000.00 principal, together with interest
Be
ae
<é
oF
12 from February 28, 2020, at the annual rate of seven percent (7%), as provided in the Fine $500,000
Aeongs 13 Note, amounting to $95.89 per day beginning on February 28, 2020 to the date of entry of judgment;
BS3a
Bao
a<8
AS 14 2. That the claims of defendants Does 1 through 10 to the property be adjudged subject,
HHus
gas
g 228 15 subsequent, and subordinate to the Fine Deed of Trust;
E
Preview
Superior Court of California Raymond L. Sandelman SBN 078020 Attorney at Law County of Butte 196 Cohasset Road, Suite 225 Chico, CA 95926-2284 4/22/2020 (530) 343-5090 / (530) 343-5091 (FAx) Email:Raymond@sandelmanlaw.com By Deputy Attorney for Wayne A. Cook, Trustee of The Wayne A. Cook 1998 Family Trust Dated 12/29/98 SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF BUTTE 10 NO.: 20CV00905 1 WAYNE A. COOK, TRUSTEE OF THE WAYNE A. COOK 1998 FAMILY COMPLAINT TO FORECLOSE DEED OF 12 TRUST DATED 12/29/98, TRUST AND FOR SPECIFIC 13 PERFORMANCE OF RENTS-AND-PROFITS Plaintiff, CLAUSE 14 vs. 15 16 EDWARD F NIDEROST, INDIVIDUALLY AND AS TRUSTEE OF 17 THE EDWARD F NIDEROST REVOCABLE LIVING TRUST DATED 18 NOVEMBER 8, 1998, DOES 1 19 THROUGH 10, 20 Defendants. 21 22 23 Wayne A. Cook, Trustee of The Wayne A. Cook 1998 Family Trust Dated 12/29/98 24 (hereafter referred to “Cook”) alleges: 25 1. The place of administration of The Edward F. Niderost Revocable Living Trust Dated 26 November 8, 1998 is Butte County, California. 27 2. On February 28, 2020, defendant Edward F. Niderost, Trustee of The Edward F. Niderost 28 Revocable Living Trust Dated November 8, 1998 (hereafter referred to as “Niderost”) delivered to 1 COMPLAINT TO FORECLOSE DEED OF TRUST AND FOR SPECIFIC PERFORMANCE OF RENTS-AND- PROFITS CLAUSE Matthew N. Fine, MD 401K Plan a promissory note dated February 18, 2020 in the amount of $500,000 (hereafter the “Fine $500,000 Note”). A copy of The Fine $500,000 Note is attached, marked Exhibit 1, and is incorporated herein by reference. 3. On February 28, 2020, defendant Niderost delivered to Matthew N. Fine, MD 401K Plan a deed of trust to secure payment of the Fine $500,000 Note. A copy of the deed of trust recorded on February 28, 2020 in the Official “Records of the County of Butte as Document No. 2020- 0009600 (hereafter referred to as the “Fine Deed of Trust”) is attached hereto marked Exhibit 2 and is incorporated herein by reference. The collateral described in the Fine Deed of Trust is commonly known as 2185 Esplanade, Chico, Butte County, California, Butte County Assessor’s Parcel No. 10 006-120-003-000 and is more particularly described as: 11 Be. ae sé oe 12 A PORTION OF RANCHO ARROYO CHICO LYING WEST OF THE ss SHASTA ROAD (US 99E) AND NORTH OF LINDO CHANNEL AND NORTH Aeon 13 OF THE NORTHERLY BOUNDARY OF BIDWELL COUNTY PARK, AND Rte B30 Sognas 14 MORE PARTICULARLY DESCRIBED AS FOLLOWS: as 4baS Zer Ze BEGINNING AT AN IRON PIPE ON THE WESTERLY SIDE OF SAID 28 15 SHASTA ROAD, SOUTH 36° 15' EAST, 1096.65 FEET ALONG THE ge E<93 é¢ WESTERLY SIDE OF THE SHASTA ROAD FROM A CONCRETE MONUMENT aa 16 5S ae AT THE MOST EASTERLY CORNER OF LOT 2, AS SHOWN ON THAT gS ae CERTAIN MAP ENTITLED, "REED PARK UNIT NO. 1", WHICH MAP WAS 17 RECORDED IN THE OFFICE OF THE RECORDER OF THE COUNTY OF 18 BUTTE, STATE OF CALIFORNIA, IN BOOK 18 OF MAPS, AT PAGE(S) 35; THENCE FROM SAID POINT OF BEGINNING RUNNING SOUTH 36° 15' EAST 19 ALONG THE WESTERLY LINE OF SAID SHASTA ROAD, A DISTANCE OF 20 520.0 FEET TO A POINT ON THE NORTHERLY BOUNDARY OF BIDWELL COUNTY PARK, MARKED BY A CHISELED CROSS ON CONCRETE 21 RETAINING WALL; THENCE ALONG SAID NORTHERLY BOUNDARY OF 22 BIDWELL COUNTY PARK THE FOLLOWING SIX COURSES AND DISTANCES: SOUTH 87° 10' WEST, 275.0 FEET TO A POINT; THENCE 23 NORTH 85° 03' WEST, 63.2 FEET TO AN IRON PIPE AT AN ANGLE IN THE SOUTHERLY SIDE OF A CONCRETE RETAINING WALL; THENCE ALONG 24 THE SOUTHERLY SIDE OF SAID WALL NORTH 74° 11'WEST, 62.1 FEET TO 25 AN ANGLE IN SAID WALL; THENCE ALONG SAID WALL NORTH 64° 19' WEST, 69.1 FEET TO AN ANGLE IN SAID WALL; THENCE ALONG SAID 26 WALL NORTH 49° 28' WEST 40.5 FEET TO THE END OF SAID WALL; THENCE NORTH 36° 52' WEST, 177.70 FEET TO AN IRON PIPE; THENCE 27 LEAVING THE SAID NORTHERLY BOUNDARY OF BIDWELL COUNTY 28 PARK, NORTH 53° 45' EAST, 359.07 FEET TO THE POINT OF BEGINNING. 2 COMPLAINT TO FORECLOSE DEED OF TRUST AND FOR SPECIFIC PERFORMANCE OF RENTS-AND- PROFITS CLAUSE The property described in the Fine Deed of Trust is hereafter referred to in this Complaint as the “Real Property Collateral.” 4. Defendants Does 1 through 10, inclusive, have, or claim to have, an interest in the Real Property Collateral, which interest is subsequent to and subject to the lien of the Fine Deed of Trust. The true names or capacities, whether individual, corporate, associate, or otherwise, of defendants Does 1 through 10, inclusive, being unknown, plaintiff sues these defendants by these fictitious names and will amend this Complaint to show their true names and capacities when they are ascertained. 5. On March 31, 2020 Matthew N. Fine, MD 401K Plan assigned to Cook all of Matthew 10 N. Fine, MD 401K Plan’s rights in the Fine $500,000 Note. The assignment is in writing at the end 11 of the Exhibit 1 Fine $500,000 Note. On March 31, 2020 Matthew N. Fine, MD 401K Plan assigned Be. ag os 12 to Cook all of Matthew N. Fine, MD 401K Plan’s beneficial interest in the Fine Deed of Trust. A os z25 RS5a 13 true and correct copy of the assignment of the beneficial interest is attached hereto marked Exhibit Hog oe Sogn Asas 14 3, and is incorporated herein by reference. Weas ZeEL Ze SS SE? 15 6. Cook is also the holder in due course of a $674,062.39 promissory note executed by B<63 6¢ Za 16 Niderost and secured by a deed of trust encumbering the Real Property Collateral recorded on 5S Ba 17 February 28, 2020 in the Official “Records of the County of Butte as Document No. 2020-0009601 18 (hereafter referred to as the “Junior Deed of Trust”). This litigation does not seek to foreclose the 19 Junior Deed of Trust. Cook understands that a foreclosure of the Fine Deed of Trust will result in 20 the Junior Deed of Trust being a sold-out junior lien. 21 7. Niderost has defaulted in the payment obligation specified in the Fine $500,000 Note. 22 Specifically, Niderost has failed to pay the $5,776.67 installment due on March 28, 2020. Niderost 23 continues to fail and refuses to make the payments of principal and interest due on the Fine $500,000 24 Note. 25 8. Cook is informed and believes that The Edward F, Niderost Revocable Living Trust Dated 26 November 8, 1998 is a revocable trust, that Edward F. Niderost is the sole settlor and that Edward 27 F. Niderost retains the right to revoke that trust. These allegations are likely to have evidentiary 28 support after a reasonable opportunity for further investigation or discovery. Edward F. Niderost, 3 COMPLAINT TO FORECLOSE DEED OF TRUST AND FOR SPECIFIC PERFORMANCE OF RENTS-AND- PROFITS CLAUSE in his individual capacity is liable for the obligations under the Fine $500,000 Note and the Fine Deed of Trust. 9. The Fine $500,000 Note and the Fine Deed of Trust provide that on default in payment when due of any indebtedness under the Fine $500,000 Note and secured by the Fine Deed of Trust, the entire principal and interest will become due and payable at the option of payor/beneficiary. For the default described in Paragraph 7 of this Complaint, Cook has exercised this option and elected to declare the entire sum of principal and interest immediately due and payable. The total amount due consists of the principal sum of $500,000, plus annual interest from February 28, 2020 at seven percent (7%). Interest accrues at the rate of $95.89 per day beginning on February 28, 2020 and 10 will continue to the date of entry of judgment in this action. 11 10. Paragraph 5 of the Fine Deed of Trust, in Paragraph 5 provides that as additional security, Bo ae <é ge 12 Trustor [here Niderost] gives to and confers upon the beneficiary the right, power, and authority, to g3 32938 13 collect the rents, issues, and profits of the property after any default by Trustor in payment of any Ba o¢ So0n 14 axzas RAR secured indebtedness. Upon any such default, the beneficiary of the Fine Deed of Trust is given the wepe Ze Ze> 55 15 right at any time without notice, either in person, by agent, or by a receiver to be appointed by a PeesEa gEa 16 court, and without regard to the adequacy of any security for the indebtedness secured, to enter upon 5S aR Ba go 17 and take possession of the Real Property Collateral, to sue for or otherwise collect such rents, issues, 18 and profits, including those past due and unpaid, and apply the same, less costs and expenses of 19 operation and collection, including reasonable attorney's fees, upon any indebtedness secured by the 20 Fine Deed of Trust. By this pleading Cook demands that Niderost permit Cook to enter on and take 21 possession of the Real Property Collateral to collect the rents, issues, and profits of the Real Property 22 Collateral. 23 11. There is no adequate remedy at law to enforce the provision of Paragraph 5 of the Fine 24 Deed of Trust. 25 12. Cook has performed all conditions, covenants, and promises required to be performed 26 by the holder of the Fine $500,000 Note and the Fine Deed of Trust. Cook remains ready and 27 willing to perform any and all of these terms specified of the holder of the Fine $500,000 Note and 28 the beneficiary of the Fine Deed of Trust. 4 COMPLAINT TO FORECLOSE DEED OF TRUST AND FOR SPECIFIC PERFORMANCE OF RENTS-AND:- PROFITS CLAUSE 13. The consideration received by Niderost for execution of the Fine $500,000 Note and the Fine Deed of Trust was fair, just, and reasonable. 14. Cook is informed and believes that Edward F. Niderost’s residence and usual place of abode is at property other than the Real Property Collateral. 15. Under the terms of the Fine $500,000 Note and the Fine Deed of Trust, Niderost promised to pay as attorney's fees, in any action brought to enforce the Fine $500,000 Note and the Fine Deed of Trust, the sum adjudged by the court to be reasonable. The sum of $3,000 is a reasonable sum to be allowed for attorney's fees in the event of a default judgment. WHEREFORE, plaintiff requests judgment as follows: 10 1. Against defendant Edward F. Niderost, Trustee of The Edward F. Niderost Revocable 11 Living Trust Dated November 8, 1998 for the sum of $500,000.00 principal, together with interest Be ae <é oF 12 from February 28, 2020, at the annual rate of seven percent (7%), as provided in the Fine $500,000 Aeongs 13 Note, amounting to $95.89 per day beginning on February 28, 2020 to the date of entry of judgment; BS3a Bao a<8 AS 14 2. That the claims of defendants Does 1 through 10 to the property be adjudged subject, HHus gas g 228 15 subsequent, and subordinate to the Fine Deed of Trust; E