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HEIDI WILSON
be Btae
Ef feEe Da
ey 1016 McGuire Drive
Modesto, CA 95355
Telephone: (209) 652-1552
JUL 30 PN I ik
Email: jeterdreamer@sbce¢lobal.net QURT,
OFS
vo HEIDI WILSON, Pro Per Plaintiff ff **
fi
My YL
waged
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF STANISLAUS
10
HEIDI WILSON, Case No. Gvi8001981
11
12
Plaintiff, VERIFIED COMPLAINT FOR:
1, VIOLATION OF CALIFORNIA CIVIL
13 CODE 2923.5;
VS. 2. VIOLATION OF CALIFORNIA CIVIL
14
CODE §2923.6;
15 3. VIOLATION OF CALIFORNIA CIVIL
CODE § 2923.7.
16 MR. COOPER-ffta NATIONSTAR 4, VIOLATION OF CALIFORNIA CIVIL
MORTGAGE, LLC, a Delaware limited CODE § 2924.17;
17 liability company; and DOES 1-5 INCLUSIVE, > 5. FRAUDULENT MISREPRESENTATION;
18 6. VIOLATION OF CALIFORNIA BUSINESS
Defendant. AND PROFESSIONS CODE SECTIONS
19 17200:
7. WRONGFUL FORECLOSURE TO SET
20
ASIDE TRUSTEE SALE AND INJUNCTIVE
21
RELIEF;
8, BREACH OF CONTRACT; AND
22 9. BREACH OF COVENANT OF GOOD
FAITH AND FAIR DEALING
23
24
[DEMAND FOR JURY TRIAL]
25
26 COMES NOW the Plaintiff, who alleges and complains as follows
27
28
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VERIFIED COMPLAINT ee
MARIE SOVEY SILVEIRA
‘This case has been assigned to Judge
Deparment 2 5 for all purposes inelading Tra
—_———
PARTIES
1 At all times material to this Verified Complaint (“Complaint”), HEIDI WILSON
(“Plaintiff”) was a resident of the County of Stanislaus, in the State of California.
2. Plaintiff is informed and believes, and thereon alleges that MR. COOPER f/k/a
NATIONSTAR MORTGAGE, LLC (“Defendant”) is at all times relevant hereto is a Delaware limited
liability company purported to do business in the State of California and conducting business within
this judicial district in the County of Stanislaus on a regular basis. Plaintiff is informed and believes thay
Subject Loan was provided by MR. COOPER, an unknown business entity, and was formally
known.as
10
Nationstar Mortgage, LLC (“Nationstar”).
il
3. Plaintiff is informed and believes and thereon alleges that each and every one of the
12
13 name and unnamed Defendants herein were agents, employees, representatives, and/or servants of
each
14 other, and were acting within the course and scope of that agency and capacity at all times
material, and
15
with the express or implied knowledge, consent, and/or ratification of each other, and are
accordingly
16
liable for all the acts and omissions of each Defendant.
17
4 The true names and capacities, whether individual, corporate, associate, or otherwise of
18
19 Defendant DOES 1 through 5 inclusive, are unknown to Plaintiff, who therefore sues said Defendants
20 by such fictitious names, Plaintiff is informed and believes, and thereon alleges that
each of the
21
Defendants designated herein as a DOE is responsible in some manners and to some
event for the
22
events and occurrences referred to herein, and for the damages resulting to Plaintiff. At such
time as.
23
Plaintiff learns the true name and capacity of any Defendant named as a DOE herein, Plaintiff
24 will
25 amend Plaintiff's Complaint to identify said Defendant, and include accompanying charging
‘
26 allegations.
27
HW
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VERIFIED COMPLAINT
VENUE
5 Plaintiff is informed and believes, and thereon alleges that a substantial part of the acts,
omissions, transactions and/or occurrences giving rise to the causes of action hereinafter alleged took
place with the County of Stanislaus, in the State of California, and that the alleged damages exceed the
minimum amount necessary to confer jurisdiction upon this Court.
6 Plaintiff further alleges that the residential Real Property at issue is located within the
County of Stanislaus, in the State of Califomia.
GENERAL ALLEGATIONS
10
7. Real Property: At all times material to this Complaint, Plaintiff was the lawful owner of
11
certain residential property located at 1016 McGuire Drive, Modesto, CA 95355 (hereafter referred to
12
13 as the “Subject Property”).
14 8 Primary Residence: The Subject Property is, and at all times material to this Complaint,
15
was Plaintiff’s primary residence and owner-occupied.
16
9. Deed of Trust Recitals - Written Agreement: On or about 2003, Plaintiff entered into a
17
Deed of Trust (hereinafter "Deed of Trust" or "Subject Loan") with lender in the total sum
18 of $425,000.
The Deed of Trust named Mr. Cooper, as the Lender; Nationstar Mortgage as the Benefici
19 ary, US Bank
20 National Association as the Trustee; and, Plaintiffs as the Borrowers. A true and correct copy
of this
21
Deed of Trust is attached hereto as ExhibitA and incorporated herein by this reference. Subsequen
tly,
22
Plaintiff made regular monthly installment payments pursuant to the aforementioned financing
23
agreement.
24
25 10. Financial Hardship: On or about 2+ years ago Plaintiff stopped making payments on the
26 Subject Loan due to the following hardship(s): Plaintiff became unemployed.
27
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VERIFIED COMPLAINT
11. Complete Loan Modification Application Submitted: Beginning on or about July 1,
2017, Plaintiff completed multiple modification requests and Defendant seemed to try and modify
without Plaintiff’s request as well. Plaintiff would sometimes get letters from the lender showing they
had checked her credit and then get a letter a week later stating that she was denied a modification
Plaintiff submitted a complete loan modification application to Defendant. In each instance Plaintiff
submitted all of the requested documents in support of the loan modification application as required by
Defendant.
12. Attached hereto as ExhibitB please find true and correct copies of correspondence from
10
Defendant confirming receipt of Plaintiff's complete loan modification application and incorporated
11
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herein by this reference.
12
13 13. Repeatedly Submitted Complete Loan Modification Applications: From 2015 to 2017,
14 Plaintiff repeatedly submitted completed loan modification applications to the Defendant as specificall
y
15
requested by Defendant.
16
14. Repeatedly Submitted the Same Documents Without Confirmation of Receipt: Plaintiff
17
was forced to repeatedly submit the same documents in support of the Loan Modification Application.
18
19 Defendant repeatedly failed to acknowledge their receipt of such documents and/or stated the
20 documents were lost and misplaced. On information and belief Plaintiff alleges that Defendant
21
intentionally or negligently misplaced Plaintiff's submitted documents as evidenced by confirmat
ions of
22
receipt in response to Plaintiff's submissions.
23
15. Defendant Repeatedly Lost or Misplaced Plaintiff's Submitted Documents Thereby
24
25
Prejudicing Plaintiff: Defendant’s wrongful losing or misplacing of Plaintiff's submitted loan
26 documents, as alleged herein, caused significant delay in Defendant reaching a reasonable and fair
27 decision with respect to Plaintiff's repeated submission of complete loan modification applications.
This
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VERIFIED COMPLAINT
prejudiced Plaintiff because at the same time Plaintiff was wrongfully denied a proper review of
Plaintiff's complete loan modification application, Plaintiff was incurring late fees and other charges
accruing to the Subject Loan account, which would otherwise not have been incurred had Defendant
rendered a timely decision on Plaintiff's submitted applications. Plaintiff would have requested a cash
for keys settlement or other available loss mitigation option to end the relationship with Defendant and
terminate the Subject Loan amicably without the need for Plaintiff to incur further costs and fees.
16. Failure to Provide Notice of Right to Appeal: Despite receiving a denial of Plaintiff's
modification application prior to January 1, 2018, Plaintiff was never ‘provided with a written notice
10
of Plaintiff's right to appeal such denial within 30 days.
al
17. Conflicting Information: Since submitting a loan modification application, Plaintiff has
12
13 been provided with conflicting information regarding Plaintiff's loan modification application as
14 follows: Always asking for the same paperwork but then not considering Plaintiff's application.
is
18. Com: munications with Servicer: The following communications with the servicer are
16
relevant to Plaintiff's causes of action as follows: Plaintiff. actually went to see someone who
worked
17
for Nationstar to get help when they were in Sacramento. The Nationstar employee denied Plaintiff's
18
application while Plaintiff was at her desk but and Plaintiff never got that in writing. Plaintiff
19 received
20 email that told her to apply for Keep Your Home California. At the time Defendant gave Plaintiff
false
21
information by stating Plaintiff made too much money to qualify for the program.
22
19, D efendants “Never
—eeetcamls Never Vontacted
Contacted Fiaintiit
Plaintiff Prior
Prior to
to Executing
Executing the
the NOD:
NOD: At no point prior to
23
the execution of the Notice of Default (“NOD”) did Defendant contact Plaintiff to assess Plaintiff'
24 s
25
financial situation and determine Plaintiff's loss mitigation options thereby rendering the 2923.5
26 Declaration attached to the NOD default facially fraudulent. A true and correct copy of the NOD
is
27 attached as Exhibit C, and herein incorporated by this reference.
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VERIFIED COMPLAINT
20. Assigned Numerous Contacts: Plaintiff has been assigned numerous representatives in
regard to Plaintiff's loss mitigation application in direct violation of the Home Owner’s Bill of Rights
.
21. Point of Contact Provided Conflicting Information: Plaintiff's single point of contact
provided conflicting information, further confused Plaintiff: Plaintiff was told multiple times
that she
could apply for a modification that she had just applied for, and sometimes Plaintiff did not even
apply
for a modification and Defendant seemed to have processed one on their own, because Plaintiff would
randomly get a denial letter.
22. Point of Contact was Non-Responsive: Despite repeated requests for information, the
10
single point of contact assigned to Plaintiff's loss mitigation application failed to respond
11
to Plaintiff's
requests for information.
12
13 23. Misrepresentation By Defendant: Every time Plaintiff spoke with Defendant, Defendan
t
14 encouraged Plaintiff to apply for a modification even though Plaintiff had just been
denied one.
15
24. Plaintiff alleges upon information and belief that Defendant engaged in the followin
g
16
wrongful conduct: (a) On or about January 22, 2015, Plaintiff emailed loan documen
ts to Nationstar
17
(email to confirm). On or about November 10, 2016, the denial for modification was
18 a negative NPV,
with an unpaid principal balance $301,139.09. This amount did not match Plaintif
19 fs balance in other
20 statements; (b) On or about November 29, 2016, Plaintiff wrote Nationstar asking
for an appraisal and
21
review of the denial of her modification. Plaintiff stated that the value of
her home was not what
22
Defendant stated in the letter that was provided; (c) On or about April 22, 2017, Plaintiff
met with
23
Marisa Barker of Nationstar in Sacramento. She reviewed Plaintiff's case and stated that Plaintiff was
24
eligible for a modification; (d) On or about July 1, 2017, Plaintiff applied for a
25 modification online as
26 instructed by Marisa Barker. Nationstar never reached out to Plaintiff for any financial documents; (e)
27 On or about July 31, 2017, Nationstar denied Plaintiff for a modification approxim
ately 30 days after
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VERIFIED COMPLAINT
applying and despite never requesting or reviewing any financial information. Plaintiff emailed Marisa
Barker explaining that she was denied for a modification and that Nationstar did not ask for any
financial information or any updated documents. Plaintiff was denied before her current financial status
was even reviewed; (e) On or about August 2, 2017, Marisa Barker emailed Plaintiff and stated that
program requires payment reduction and asked if Plaintiff had applied for Keep Your Home California
Hardest Hit Fund; (£) The August 8, 2017 statement shows that Plaintiffs new dedicated loan
specialist was Gi-Hann El-Bourini and that Plaintiff could reach out to him for help; (g) On or about
August 9, 2017, the sale date was postponed; (h) On or about September 22, 2017, Plaintiff received
a
10
letter that Kimberlee Smith was her new dedicated loan specialist. Plaintiff reached out to her on
12
several occasions with no response. Plaintiff left messages explaining that Plaintiff had reached.
12 out to
13 Marisa Barker in April and was told Plaintiff s modification would go through and that Nationstar
had
14 not asked for updated documents; (i) On or about September 27, 2017, Plaintiff received a letter stating}
15
the requested documents were complete and that it took 30 days for review, according to Jennifer
16
Robinson, even though Plaintiff had not send in all of her documents for modification. Plaintiff was
17
extremely confused by this process. Several months of back and forth regarding a modificat
18 ion with no}
clear cut information on what was going on with the file and Nationstar never once asked
19 for updated
20 financial information; (j) On or about December 16, 2017, Plaintiff received a letter
that Jennifer
21
Robinson, Plaintiffs new dedicated loan specialist and that she would help Plaintiff with any issues
22
regarding making Plaintiff's loan payment(s). On or about February 1, 2018, Jennifer Robinson
sent a
23
Mortgage Loan Statement; and (k) On or about June 29, 2018 Plaintiff applied for Keep Your
24 Home
California Mortgage Reinstatement assistance and was approved. Plaintiff made several.
25 calls to
26 Nationstar and QualityLoan to inform them that Plaintiff was approved for the program and
asked for
27 that the sale date to be postponed. Plaintiff believes her servicer did not give her correct informati
on on
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VERIFIED COMPLAINT
several occasions when it came to her modification. Plaintiff followed every instruction, but was
damaged never made whole. Nationstar is guilty of wrongful conduct.
25. Unlawful Tru: stee Sale Took Place: An unlawful trustee sale occurred on July 11 2018.
26. No Bona Fide Third-Party Purchaser: Despite the fact that the trustee sale took place,
Plaintiff alleges there was never any sale of the Subject Property to a bona fide third-party purchaser
because Defendant was the foreclosing beneficiary.
27. TENDER: Several courts have recognized a general equitable exception to applying the
tender rule where “it would-be inequitable to do so.” Onofrio v. Rice 55 Cal. App. 4th 413.424 (1997)
10
(“[w]hatever may be the correct rule, viewing the question generally, it is certainly not the
11
law that an
offer to pay the debt must be made, where it would be inequitable to exact such offer
12 of the party
13 complaining of the sale”); Robinson v. Bank of America 12-CV-00494-RMW, 2012 WL,
1932842 at 3
14 (N.D. Cal. May 29, 2012) (inequitable to apply tender rule under certain circumsta
nces); Bowe v. Am.
15
Mortg. Network, Inc., CV 11-08381DPP SHX, 2012 WL 2071759 at 2 (C.D. Cal.
June 8, 2012);
16
Giannini v. American Home Mortg. Servicing, Inc., No. 11-04489 TEH, 2012 WL 298254
at 3 (WD.
17
Cal. Feb. 1, 2012). Here it would be inequitable to require tender be made because
18 Defendant initiated
a foreclosure without providing notice of Plaintiff's right to an appeal within 30 days
19 of the denial of
20 her loan modification. Nonetheless, Plaintiff alleges that if necessary, Plaintiff is willing
and able to
21
tender an amount deemed necessary by this Court in order to proceed with her
claims against the
22
Defendant.
23
28. Tm stee Defendant is not a Nominal Defendant: On information and belief, Plaintiff
24
alleges that the trustee Defendant participated in wrongful acts or omissions in a capacity
25 outside of its
26 alleged duties pursuant to the purported Substitution of Trustee, which are not privilege
d under Cal.
27
Civ. Code §§ 2924
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VERIFIED COMPLAINT
29. Defendant is both an appropriate and necessary party to these proceedings because it
engaged in such behavior.
30. Defendant went beyond its lawful authority governing trustees in non-judicial
foreclosures as codified in Cal. Civ. Code §§ 2920 er seq. and attempted to conduct
foreclosure
proceedings and the transfer of title to Plaintiffs’ real property in violation of Cal. Civ.
Code §§ 2923.6;
2923.7; and 2924.18.
FIRST CAUSE OF ACTION
FOR VIOLATION OF CALIFORNIA CIVIL CODE § 2923.5
(Against All Defendants)
10
31. Plaintiff re-alleges and incorporates by reference the general allegations set forth above
11
in paragraphs 1 through 30 inclusive, as though fully set forth completely in this
12 cause of action.
13 32. Cal. Civ. Code § 2923.5 requires that, prior to execution and recordation of aNOD,
the
14 mortgagee, beneficiary or authorized representative must contact the borrower in person
or by
1s
telephone in order to assess the borrower's financial situation, explore options for the
borrower to avoid
16
foreclosure, and advise borrower as to his/her tight to a meeting within fourteen
17
(14) days with the
lender to discuss their options-further. Section 2923.5 further requires that the
18 NOD contain a
19 Declaration indicating compliance with this requirement.
20 33. Defendant failed to comply with the requirements of Cal. Civ. Code § 2923.5 by:
21
a. Failing to contact Plaintiff in person or by telephone in order to assess the Plaintiff'
s
22
financial situation and failing to advise Plaintiff as to her Tight to a meeting
23
within 14]
days prior to executing the NOD; and
24
By failing to provide the required declaration indicating compliance with
25 Section
26 2923.5.
27
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VERIFIED COMPLAINT
34, Defendant never contacted Plaintiff by telephone and never left a message for her on her
voicemail. Defendant never contacted Plaintiff via mail and advised of her aforementioned rights. In
so doing, Defendant failed to comply with the stringent yet patently lucid requirements of the Cal. Civ.
Code § 2923.5.
35. Any loan modification and/or communications regarding loan modifications received by
Plaintiff was done on Plaintiff's own behest and not by and through Defendant. The fact that Plaintiff
attempted to receive a loan modification before the NOD was issued does not replace or forgive
Defendant’s duty. i
10
36. Prejudice: As the result of Defendant’s failure to comply with Section 2923.5, Plaintiff
11
has suffered prejudice. Plaintiff was not made aware of Plaintiff's options to avoid foreclosure in a
12
13 timely manner, and incurred additional fees, costs and interest, to the benefit of Defendant. Defendant
14 never advised Plaintiff of Plaintiff's options or right to an “in person” meeting or direct communication
15
regarding a modification. Defendant was required to communicate Plaintiff's options to avoid
16
foreclosure prior to the execution of the NOD, but instead simply failed to communicate any such
17
option. Plaintiff should have been provided with all of Plaintiff's options to avoid foreclosure and
18
19 advised as to a manner to achieve such option(s), including the right to discuss all such options in
20 Person within fourteen (14) days, as was Plaintiff's right, and as to which Plaintiff was never advised,
21
all to the benefit of Defendant.
22
37. Plaintiff is Entitled to Injunctive Relief Pursuant to C.C.C. Section 2924.12: Due to
23
Defendant’s non-compliance with Cal. Civ. Code § 2923.5, Plaintiff is likely to succeed in Plaintiff's
24
25
claim for relief. Plaintiff seeks injunctive relief preventing Defendants from transferring the Subject
26 Property and is entitled to such relief pursuant to Cal. Civ. Code § 2924.12. The hardship incurred by
27 Plaintiff if the Subject Property is transferred, as her equity is lost as a result of the foreclosure and
sale
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VERIFIED COMPLAINT
is permanent and severe; whereas the hardship incurred by Defendant if the foreclosure process is
reinitiated following the conclusion of the subject litigation is transitory and minimal. Plaintiff is
entitled to such relief as set forth in this Cause of Action including any statutory relief, and such further
relief as is set forth below in the section captioned Prayer for Relief which is by this reference
incorporated.
SECOND CAUSE OF ACTION
FOR VIOLATION OF CALIFORNIA CIVIL CODE §2923.6
(Against All Defendants)
38. Plaintiff realleges and incorporates by reference the general allegations set forth above in
10
paragraphs 1 through 37 inclusive, as though fully set forth in this cause of action.
ii
39. Statute: Pursuant to Cal. Civ. Code § 2923.6(a), a servicer acts in the best interest of all
12
13 parties, if it agrees to or implements a loan modification or workout plan where the (1) loan is in
14 payment default, or payment default is reasonably foreseeable, and (2) anticipated recovery under
the
15
loan modification or workout plan exceeds the anticipated recovery through foreclosure on a net
present|
16
value basis.
17
40 Violation: Pursuant to Cal. Civ. Code § 2923.6, Defendant was contractually bound to
18
offer Plaintiff a loan modification or workout plan. However, Defendant foreclosed on Plaintiff
19 s home|
20 while the loan modification application was still being processed and did not provide notice of a
30-day
21
appeal period after the application’s rejection, in essence, denying Plaintiff the opportunity for a
loan
22
modification or workout plan prior to foreclosure. Instead, Defendant recorded a false, fraudulent
, and
23
improper NOD, NOTS, and TDUS. Plaintiff was not in default on the Subject Loan as discussed in
24
25
detail elsewhere. However, if Defendant was under the belief that Plaintiff was in default, then they
26 were required to reach out to Plaintiff to discuss non-foreclosure alternatives, including a loan
27 modification, to save Plaintiff's home from foreclosure. Defendant, however, failed to do
so altogether.
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VERIFIED COMPLAINT
If Plaintiff was in default, they would have applied for a loan modification or other non-foreclosure
option, for which they certainly would have qualified ,
41. Prejudice: As a result of Defendant’s violation. of Section 2923.6, Plaintiff has suffered
prejudice as detailed throughout this Complaint. Plaintiff was told that her loan modification
application was still in process at the time of foreclosure and was not able to prevent the trustee sale
to
take place. This violation resulted in Plaintiffs losing title of Subject Property.
42. Damages: As a direct and proximate result of Defendant’s violation of Section 2923.6,
Plaintiff has been prejudiced, has suffered, and will continue to suffer, general and special damages
10
including the loss of equity in the Subject Property, costs and expenses of protecting herself, reduced
1i
credit scores, unavailability of credit, increased costs for credit, reduced availability of goods and
12
13 services tied to credit ratings, increased costs of those services, as well as interest, fees and costs,
14 including, without limitation, attorney’s fees and costs, all in an amount according to proof at the
time
is
of trial.
16
THIRD CAUSE OF ACTION
17 FOR VIOLATION OF CALIFORNIA CIVIL CODE § 2923.7
18 (Against All Defendants)
19 43. Plaintiffs re-allege and incorporate by reference the general allegations set forth above in|
20 paragraphs 1 through 42 inclusive, as though set forth completely in this cause of action.
21
44 C.C.C. 2923.7: As of January 1, 2013, Defendant was required to provide Plaintiff with
22
a single point of contact upon Plaintiff's request for loss mitigation, Plaintiff also specifically requested
23
a single point of contact to be assigned to manage Plaintiff's loan modification application but was
24 not
25
provided with a single individual as requested, but multiple single points of contact, which confused
26 Plaintiff.
27
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VERIFIED COMPLAINT
45, No Single Point of Contact: Although the statute provides that Plaintiff's single point of
contact can be an individual or a team of personnel (see Cal. Civ. Code § 2923.7(e)), here, Defendant
failed to assign Plaintiff an individual single point of contact when it reassigned Plaintiff to different
individual single points of contact. Furthermore, subsection (a) requires the servicer
to provide to the
borrower one or more direct means of communication with the single point of contact. Cal.
Civ. Code §
2923.7(a). Defendant never provided Plaintiff with contact information for any purporte
d team and
courts have found that establishing a hotline does not sati sfy the requirement. (See Johnson
v. PNC
Mortgage, 80 F. Supp. 3d 980, 987 (N.D. Cal. 201 5) (Pushing borrowers to a hotline, despite
having an
10
assigned single point of contact, is sufficient to plead a violation of Section 2923.7.) Consequently,
ql
Defendant cannot retroactively define all of its representatives as a team to prevail on this
12 cause of
13 action.
14 46. Violation: Despite claiming to provide a single point of contact, Plaintiff and/or
is
Plaintiff's representative communicated with and/or were forced to communicate with a number
of
16
different individuals. In order to satisfy the statute, the person with whom the borrower
17
communicates
must be knowledgeable about the borrower's situation and current status in the
18 alternatives to
19 foreclosure process. Cal. Civ. Code § 2923.7(e).
20 a. Defendant never provided Plaintiff or Plaintiff's representative(s) with an actual
single
21
point of contact that was responsive or knowledgeable about Plaintiff's
loan modification|
22
application, forcing Plaintiff and her representative(s) to maneuver themselves through
23
a
labyrinth of automated operators to reach a different Tepresentative every time
24 they
called to check the status of Plaintiff's application and receive relevant informat
25 ion.
26 These different individuals provided Plaintiff and her Tepresentative(s) with varying
27
information and did not have specific knowledge of Plaintiff's application.
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VERIFIED COMPLAINT
b. Defendant’s representatives continuously requested that Plaintiff submit and re-
submit the same documents claiming that they were lost or had not been received.
47. Prejudice: As the result of the failure of Defendants, and each of them, to comply with
Section 2923.7 Plaintiff has suffered prejudice as follows:
a. Plaintiff was forced to consistently and continuously submit and re-submit the same
application repeatedly;
b. Plaintiff has been subjected to the foreclosure process, including all unnecessary
fees, costs and interest related to such foreclosure; and
10
c. Finally, Plaintiff has been forced to incur attorney's fees to file the subject complaint
i
12
in order to address Defendant’s failure to comply with the Civil Code, which has
13 clearly resulted in prejudice to Plaintiff.
14 48. Economic Damages: As discussed in detail in this Complaint, Defendant’s failure to
15
provide a single point of contact caused Plaintiff’s substantial economic damages because a single
16
individual was not familiar with Plaintiff’s' file, thereby forcing Plaintiff to incur damages in the
17
form
of added interest, costs, fees, and legal fees.
18
ig FOURTH CAUSE OF ACTION
FOR VIOLATION OF CALIFORNIA CIVIL CODE § 2924.17
20
(Against All Defendants)
21
49. Plaintiff re-alleges and incorporates by reference the general allegations set forth above
22
in paragraphs 1 through 48 inclusive, as though set forth completely in this cause of action.
23
50. C.C.C. Section 2924.17 Requirements: Cal. Civ. Code § 2924.17 states the following in
24
pertinent part: (a) A declaration recorded pursuant to Section 2923.5 or, until January
25 1, 2018, pursuant
26 to Section 2923.55, a notice of default, notice of sale, assignment of a deed of trust,
or substitution of
27 trustee recorded by or on behalf of a mortgage servicer in connection with a foreclosure subject
to the
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VERIFIED COMPLAINT
requirements of Section 2924, or a declaration or affidavit filed in any court relative to a foreclosure
proceeding, shall be accurate and complete and supported by competent and reliable evidence. Before
recording or filing any of the documents described in subdivision (a), a mortgage servicer shall ensure
that it has reviewed competent and reliable evidence to substantiate the borrower's default and the tight
to foreclose, including the borrower's loan status and loan information,
31. Materi al Violation of C.C.C. 2924.17: Defendant violated Section 2924.17 by not
properly reviewing Plaintiff's loan information, and verifying whether Defendant had the right to
foreclose pursuant to competent and reliable evidence. Instead, Defendant engaged in the following
10
conduct in direct violation of Section 2924.17:
1
12
a. Executing and recording the fraudulent Notice of Default and Notice of Trustee Sale.
13 b. Failing to confirm whether Plaintiff has, in fact, been contacted to assess her
14 financial situation and non-foreclosure alternatives.
is
52. Prejudice: As the result of Defendant’s failure to comply with Section 2924.17, Plaintiff
16.
has suffered prejudice. Plaintiff has been forced into the foreclosure process after not being contacted
17
personally or by mail to assess Plaintiffs financial situation and non-foreclosure alternatives.
18
Defendant has added unnecessary fees, costs and interest to Plaintiff's account related to and
19 resulting
20 from the unlawful Notices. Defendant intentionally attempted to fraudulently continue to add invalid
21
excessive fees, costs and interest to Plaintiff's account and thereafter proceed with foreclosur
e, as
22
evidenced by their most recent NOTS. Had Defendant complied with the requirements of Section
23
2924.17, Plaintiff would not be forced to incur invalid and excessive fees, which
24 have been added to
her account as the result of unlawful foreclosure proceedings and would further not be subjected
25 to
26 foreclosure of the Subject Property.
27 4
28
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VERIFIED COMPLAINT
FIFTH CAUSE OF ACTION
FOR FRAUDULENT MISREPRESENTATION
(Against All Defendants)
53. Plaintiff re-alleges and incorporates by reference the general allegations set forth above
in paragraphs 1 through 52 inclusive, as though set forth completely in this cause
of action.
54, Defendant made various fraudulent and intentional misrepresentations of fact.
7 55. Fraudulent Ni lotice of Default: the NOD fails to comport with paragraph No. 22 of the
8 Deed of Trust, which states the following:
a, "Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration
10
following Borrower’s breach of any covenant or agreement in this Security
ai
12
Instrument (but not prior to acceleration under Section 18 unless Applicable Law
13 provides otherwise). The notice shall specify: (a) the default; (b) the action required
14 to cure the default; (c) a date, not less than 30 days from the date the notice is given
15
to Borrower, bywhich the default must be cured; and (d) that failure to cure the
16
default on or before the
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HEIDI WILSON be Btae Ef feEe Da ey 1016 McGuire Drive Modesto, CA 95355 Telephone: (209) 652-1552 JUL 30 PN I ik Email: jeterdreamer@sbce¢lobal.net QURT, OFS vo HEIDI WILSON, Pro Per Plaintiff ff ** fi My YL waged SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF STANISLAUS 10 HEIDI WILSON, Case No. Gvi8001981 11 12 Plaintiff, VERIFIED COMPLAINT FOR: 1, VIOLATION OF CALIFORNIA CIVIL 13 CODE 2923.5; VS. 2. VIOLATION OF CALIFORNIA CIVIL 14 CODE §2923.6; 15 3. VIOLATION OF CALIFORNIA CIVIL CODE § 2923.7. 16 MR. COOPER-ffta NATIONSTAR 4, VIOLATION OF CALIFORNIA CIVIL MORTGAGE, LLC, a Delaware limited CODE § 2924.17; 17 liability company; and DOES 1-5 INCLUSIVE, > 5. FRAUDULENT MISREPRESENTATION; 18 6. VIOLATION OF CALIFORNIA BUSINESS Defendant. AND PROFESSIONS CODE SECTIONS 19 17200: 7. WRONGFUL FORECLOSURE TO SET 20 ASIDE TRUSTEE SALE AND INJUNCTIVE 21 RELIEF; 8, BREACH OF CONTRACT; AND 22 9. BREACH OF COVENANT OF GOOD FAITH AND FAIR DEALING 23 24 [DEMAND FOR JURY TRIAL] 25 26 COMES NOW the Plaintiff, who alleges and complains as follows 27 28 -1- VERIFIED COMPLAINT ee MARIE SOVEY SILVEIRA ‘This case has been assigned to Judge Deparment 2 5 for all purposes inelading Tra —_——— PARTIES 1 At all times material to this Verified Complaint (“Complaint”), HEIDI WILSON (“Plaintiff”) was a resident of the County of Stanislaus, in the State of California. 2. Plaintiff is informed and believes, and thereon alleges that MR. COOPER f/k/a NATIONSTAR MORTGAGE, LLC (“Defendant”) is at all times relevant hereto is a Delaware limited liability company purported to do business in the State of California and conducting business within this judicial district in the County of Stanislaus on a regular basis. Plaintiff is informed and believes thay Subject Loan was provided by MR. COOPER, an unknown business entity, and was formally known.as 10 Nationstar Mortgage, LLC (“Nationstar”). il 3. Plaintiff is informed and believes and thereon alleges that each and every one of the 12 13 name and unnamed Defendants herein were agents, employees, representatives, and/or servants of each 14 other, and were acting within the course and scope of that agency and capacity at all times material, and 15 with the express or implied knowledge, consent, and/or ratification of each other, and are accordingly 16 liable for all the acts and omissions of each Defendant. 17 4 The true names and capacities, whether individual, corporate, associate, or otherwise of 18 19 Defendant DOES 1 through 5 inclusive, are unknown to Plaintiff, who therefore sues said Defendants 20 by such fictitious names, Plaintiff is informed and believes, and thereon alleges that each of the 21 Defendants designated herein as a DOE is responsible in some manners and to some event for the 22 events and occurrences referred to herein, and for the damages resulting to Plaintiff. At such time as. 23 Plaintiff learns the true name and capacity of any Defendant named as a DOE herein, Plaintiff 24 will 25 amend Plaintiff's Complaint to identify said Defendant, and include accompanying charging ‘ 26 allegations. 27 HW 28 -2- VERIFIED COMPLAINT VENUE 5 Plaintiff is informed and believes, and thereon alleges that a substantial part of the acts, omissions, transactions and/or occurrences giving rise to the causes of action hereinafter alleged took place with the County of Stanislaus, in the State of California, and that the alleged damages exceed the minimum amount necessary to confer jurisdiction upon this Court. 6 Plaintiff further alleges that the residential Real Property at issue is located within the County of Stanislaus, in the State of Califomia. GENERAL ALLEGATIONS 10 7. Real Property: At all times material to this Complaint, Plaintiff was the lawful owner of 11 certain residential property located at 1016 McGuire Drive, Modesto, CA 95355 (hereafter referred to 12 13 as the “Subject Property”). 14 8 Primary Residence: The Subject Property is, and at all times material to this Complaint, 15 was Plaintiff’s primary residence and owner-occupied. 16 9. Deed of Trust Recitals - Written Agreement: On or about 2003, Plaintiff entered into a 17 Deed of Trust (hereinafter "Deed of Trust" or "Subject Loan") with lender in the total sum 18 of $425,000. The Deed of Trust named Mr. Cooper, as the Lender; Nationstar Mortgage as the Benefici 19 ary, US Bank 20 National Association as the Trustee; and, Plaintiffs as the Borrowers. A true and correct copy of this 21 Deed of Trust is attached hereto as ExhibitA and incorporated herein by this reference. Subsequen tly, 22 Plaintiff made regular monthly installment payments pursuant to the aforementioned financing 23 agreement. 24 25 10. Financial Hardship: On or about 2+ years ago Plaintiff stopped making payments on the 26 Subject Loan due to the following hardship(s): Plaintiff became unemployed. 27 28 -3- VERIFIED COMPLAINT 11. Complete Loan Modification Application Submitted: Beginning on or about July 1, 2017, Plaintiff completed multiple modification requests and Defendant seemed to try and modify without Plaintiff’s request as well. Plaintiff would sometimes get letters from the lender showing they had checked her credit and then get a letter a week later stating that she was denied a modification Plaintiff submitted a complete loan modification application to Defendant. In each instance Plaintiff submitted all of the requested documents in support of the loan modification application as required by Defendant. 12. Attached hereto as ExhibitB please find true and correct copies of correspondence from 10 Defendant confirming receipt of Plaintiff's complete loan modification application and incorporated 11 - herein by this reference. 12 13 13. Repeatedly Submitted Complete Loan Modification Applications: From 2015 to 2017, 14 Plaintiff repeatedly submitted completed loan modification applications to the Defendant as specificall y 15 requested by Defendant. 16 14. Repeatedly Submitted the Same Documents Without Confirmation of Receipt: Plaintiff 17 was forced to repeatedly submit the same documents in support of the Loan Modification Application. 18 19 Defendant repeatedly failed to acknowledge their receipt of such documents and/or stated the 20 documents were lost and misplaced. On information and belief Plaintiff alleges that Defendant 21 intentionally or negligently misplaced Plaintiff's submitted documents as evidenced by confirmat ions of 22 receipt in response to Plaintiff's submissions. 23 15. Defendant Repeatedly Lost or Misplaced Plaintiff's Submitted Documents Thereby 24 25 Prejudicing Plaintiff: Defendant’s wrongful losing or misplacing of Plaintiff's submitted loan 26 documents, as alleged herein, caused significant delay in Defendant reaching a reasonable and fair 27 decision with respect to Plaintiff's repeated submission of complete loan modification applications. This 28 -4- VERIFIED COMPLAINT prejudiced Plaintiff because at the same time Plaintiff was wrongfully denied a proper review of Plaintiff's complete loan modification application, Plaintiff was incurring late fees and other charges accruing to the Subject Loan account, which would otherwise not have been incurred had Defendant rendered a timely decision on Plaintiff's submitted applications. Plaintiff would have requested a cash for keys settlement or other available loss mitigation option to end the relationship with Defendant and terminate the Subject Loan amicably without the need for Plaintiff to incur further costs and fees. 16. Failure to Provide Notice of Right to Appeal: Despite receiving a denial of Plaintiff's modification application prior to January 1, 2018, Plaintiff was never ‘provided with a written notice 10 of Plaintiff's right to appeal such denial within 30 days. al 17. Conflicting Information: Since submitting a loan modification application, Plaintiff has 12 13 been provided with conflicting information regarding Plaintiff's loan modification application as 14 follows: Always asking for the same paperwork but then not considering Plaintiff's application. is 18. Com: munications with Servicer: The following communications with the servicer are 16 relevant to Plaintiff's causes of action as follows: Plaintiff. actually went to see someone who worked 17 for Nationstar to get help when they were in Sacramento. The Nationstar employee denied Plaintiff's 18 application while Plaintiff was at her desk but and Plaintiff never got that in writing. Plaintiff 19 received 20 email that told her to apply for Keep Your Home California. At the time Defendant gave Plaintiff false 21 information by stating Plaintiff made too much money to qualify for the program. 22 19, D efendants “Never —eeetcamls Never Vontacted Contacted Fiaintiit Plaintiff Prior Prior to to Executing Executing the the NOD: NOD: At no point prior to 23 the execution of the Notice of Default (“NOD”) did Defendant contact Plaintiff to assess Plaintiff' 24 s 25 financial situation and determine Plaintiff's loss mitigation options thereby rendering the 2923.5 26 Declaration attached to the NOD default facially fraudulent. A true and correct copy of the NOD is 27 attached as Exhibit C, and herein incorporated by this reference. 28 -5- VERIFIED COMPLAINT 20. Assigned Numerous Contacts: Plaintiff has been assigned numerous representatives in regard to Plaintiff's loss mitigation application in direct violation of the Home Owner’s Bill of Rights . 21. Point of Contact Provided Conflicting Information: Plaintiff's single point of contact provided conflicting information, further confused Plaintiff: Plaintiff was told multiple times that she could apply for a modification that she had just applied for, and sometimes Plaintiff did not even apply for a modification and Defendant seemed to have processed one on their own, because Plaintiff would randomly get a denial letter. 22. Point of Contact was Non-Responsive: Despite repeated requests for information, the 10 single point of contact assigned to Plaintiff's loss mitigation application failed to respond 11 to Plaintiff's requests for information. 12 13 23. Misrepresentation By Defendant: Every time Plaintiff spoke with Defendant, Defendan t 14 encouraged Plaintiff to apply for a modification even though Plaintiff had just been denied one. 15 24. Plaintiff alleges upon information and belief that Defendant engaged in the followin g 16 wrongful conduct: (a) On or about January 22, 2015, Plaintiff emailed loan documen ts to Nationstar 17 (email to confirm). On or about November 10, 2016, the denial for modification was 18 a negative NPV, with an unpaid principal balance $301,139.09. This amount did not match Plaintif 19 fs balance in other 20 statements; (b) On or about November 29, 2016, Plaintiff wrote Nationstar asking for an appraisal and 21 review of the denial of her modification. Plaintiff stated that the value of her home was not what 22 Defendant stated in the letter that was provided; (c) On or about April 22, 2017, Plaintiff met with 23 Marisa Barker of Nationstar in Sacramento. She reviewed Plaintiff's case and stated that Plaintiff was 24 eligible for a modification; (d) On or about July 1, 2017, Plaintiff applied for a 25 modification online as 26 instructed by Marisa Barker. Nationstar never reached out to Plaintiff for any financial documents; (e) 27 On or about July 31, 2017, Nationstar denied Plaintiff for a modification approxim ately 30 days after 28 -6- VERIFIED COMPLAINT applying and despite never requesting or reviewing any financial information. Plaintiff emailed Marisa Barker explaining that she was denied for a modification and that Nationstar did not ask for any financial information or any updated documents. Plaintiff was denied before her current financial status was even reviewed; (e) On or about August 2, 2017, Marisa Barker emailed Plaintiff and stated that program requires payment reduction and asked if Plaintiff had applied for Keep Your Home California Hardest Hit Fund; (£) The August 8, 2017 statement shows that Plaintiffs new dedicated loan specialist was Gi-Hann El-Bourini and that Plaintiff could reach out to him for help; (g) On or about August 9, 2017, the sale date was postponed; (h) On or about September 22, 2017, Plaintiff received a 10 letter that Kimberlee Smith was her new dedicated loan specialist. Plaintiff reached out to her on 12 several occasions with no response. Plaintiff left messages explaining that Plaintiff had reached. 12 out to 13 Marisa Barker in April and was told Plaintiff s modification would go through and that Nationstar had 14 not asked for updated documents; (i) On or about September 27, 2017, Plaintiff received a letter stating} 15 the requested documents were complete and that it took 30 days for review, according to Jennifer 16 Robinson, even though Plaintiff had not send in all of her documents for modification. Plaintiff was 17 extremely confused by this process. Several months of back and forth regarding a modificat 18 ion with no} clear cut information on what was going on with the file and Nationstar never once asked 19 for updated 20 financial information; (j) On or about December 16, 2017, Plaintiff received a letter that Jennifer 21 Robinson, Plaintiffs new dedicated loan specialist and that she would help Plaintiff with any issues 22 regarding making Plaintiff's loan payment(s). On or about February 1, 2018, Jennifer Robinson sent a 23 Mortgage Loan Statement; and (k) On or about June 29, 2018 Plaintiff applied for Keep Your 24 Home California Mortgage Reinstatement assistance and was approved. Plaintiff made several. 25 calls to 26 Nationstar and QualityLoan to inform them that Plaintiff was approved for the program and asked for 27 that the sale date to be postponed. Plaintiff believes her servicer did not give her correct informati on on 28 -T- VERIFIED COMPLAINT several occasions when it came to her modification. Plaintiff followed every instruction, but was damaged never made whole. Nationstar is guilty of wrongful conduct. 25. Unlawful Tru: stee Sale Took Place: An unlawful trustee sale occurred on July 11 2018. 26. No Bona Fide Third-Party Purchaser: Despite the fact that the trustee sale took place, Plaintiff alleges there was never any sale of the Subject Property to a bona fide third-party purchaser because Defendant was the foreclosing beneficiary. 27. TENDER: Several courts have recognized a general equitable exception to applying the tender rule where “it would-be inequitable to do so.” Onofrio v. Rice 55 Cal. App. 4th 413.424 (1997) 10 (“[w]hatever may be the correct rule, viewing the question generally, it is certainly not the 11 law that an offer to pay the debt must be made, where it would be inequitable to exact such offer 12 of the party 13 complaining of the sale”); Robinson v. Bank of America 12-CV-00494-RMW, 2012 WL, 1932842 at 3 14 (N.D. Cal. May 29, 2012) (inequitable to apply tender rule under certain circumsta nces); Bowe v. Am. 15 Mortg. Network, Inc., CV 11-08381DPP SHX, 2012 WL 2071759 at 2 (C.D. Cal. June 8, 2012); 16 Giannini v. American Home Mortg. Servicing, Inc., No. 11-04489 TEH, 2012 WL 298254 at 3 (WD. 17 Cal. Feb. 1, 2012). Here it would be inequitable to require tender be made because 18 Defendant initiated a foreclosure without providing notice of Plaintiff's right to an appeal within 30 days 19 of the denial of 20 her loan modification. Nonetheless, Plaintiff alleges that if necessary, Plaintiff is willing and able to 21 tender an amount deemed necessary by this Court in order to proceed with her claims against the 22 Defendant. 23 28. Tm stee Defendant is not a Nominal Defendant: On information and belief, Plaintiff 24 alleges that the trustee Defendant participated in wrongful acts or omissions in a capacity 25 outside of its 26 alleged duties pursuant to the purported Substitution of Trustee, which are not privilege d under Cal. 27 Civ. Code §§ 2924 28 -8- VERIFIED COMPLAINT 29. Defendant is both an appropriate and necessary party to these proceedings because it engaged in such behavior. 30. Defendant went beyond its lawful authority governing trustees in non-judicial foreclosures as codified in Cal. Civ. Code §§ 2920 er seq. and attempted to conduct foreclosure proceedings and the transfer of title to Plaintiffs’ real property in violation of Cal. Civ. Code §§ 2923.6; 2923.7; and 2924.18. FIRST CAUSE OF ACTION FOR VIOLATION OF CALIFORNIA CIVIL CODE § 2923.5 (Against All Defendants) 10 31. Plaintiff re-alleges and incorporates by reference the general allegations set forth above 11 in paragraphs 1 through 30 inclusive, as though fully set forth completely in this 12 cause of action. 13 32. Cal. Civ. Code § 2923.5 requires that, prior to execution and recordation of aNOD, the 14 mortgagee, beneficiary or authorized representative must contact the borrower in person or by 1s telephone in order to assess the borrower's financial situation, explore options for the borrower to avoid 16 foreclosure, and advise borrower as to his/her tight to a meeting within fourteen 17 (14) days with the lender to discuss their options-further. Section 2923.5 further requires that the 18 NOD contain a 19 Declaration indicating compliance with this requirement. 20 33. Defendant failed to comply with the requirements of Cal. Civ. Code § 2923.5 by: 21 a. Failing to contact Plaintiff in person or by telephone in order to assess the Plaintiff' s 22 financial situation and failing to advise Plaintiff as to her Tight to a meeting 23 within 14] days prior to executing the NOD; and 24 By failing to provide the required declaration indicating compliance with 25 Section 26 2923.5. 27 28 -9- VERIFIED COMPLAINT 34, Defendant never contacted Plaintiff by telephone and never left a message for her on her voicemail. Defendant never contacted Plaintiff via mail and advised of her aforementioned rights. In so doing, Defendant failed to comply with the stringent yet patently lucid requirements of the Cal. Civ. Code § 2923.5. 35. Any loan modification and/or communications regarding loan modifications received by Plaintiff was done on Plaintiff's own behest and not by and through Defendant. The fact that Plaintiff attempted to receive a loan modification before the NOD was issued does not replace or forgive Defendant’s duty. i 10 36. Prejudice: As the result of Defendant’s failure to comply with Section 2923.5, Plaintiff 11 has suffered prejudice. Plaintiff was not made aware of Plaintiff's options to avoid foreclosure in a 12 13 timely manner, and incurred additional fees, costs and interest, to the benefit of Defendant. Defendant 14 never advised Plaintiff of Plaintiff's options or right to an “in person” meeting or direct communication 15 regarding a modification. Defendant was required to communicate Plaintiff's options to avoid 16 foreclosure prior to the execution of the NOD, but instead simply failed to communicate any such 17 option. Plaintiff should have been provided with all of Plaintiff's options to avoid foreclosure and 18 19 advised as to a manner to achieve such option(s), including the right to discuss all such options in 20 Person within fourteen (14) days, as was Plaintiff's right, and as to which Plaintiff was never advised, 21 all to the benefit of Defendant. 22 37. Plaintiff is Entitled to Injunctive Relief Pursuant to C.C.C. Section 2924.12: Due to 23 Defendant’s non-compliance with Cal. Civ. Code § 2923.5, Plaintiff is likely to succeed in Plaintiff's 24 25 claim for relief. Plaintiff seeks injunctive relief preventing Defendants from transferring the Subject 26 Property and is entitled to such relief pursuant to Cal. Civ. Code § 2924.12. The hardship incurred by 27 Plaintiff if the Subject Property is transferred, as her equity is lost as a result of the foreclosure and sale 28 -10- VERIFIED COMPLAINT is permanent and severe; whereas the hardship incurred by Defendant if the foreclosure process is reinitiated following the conclusion of the subject litigation is transitory and minimal. Plaintiff is entitled to such relief as set forth in this Cause of Action including any statutory relief, and such further relief as is set forth below in the section captioned Prayer for Relief which is by this reference incorporated. SECOND CAUSE OF ACTION FOR VIOLATION OF CALIFORNIA CIVIL CODE §2923.6 (Against All Defendants) 38. Plaintiff realleges and incorporates by reference the general allegations set forth above in 10 paragraphs 1 through 37 inclusive, as though fully set forth in this cause of action. ii 39. Statute: Pursuant to Cal. Civ. Code § 2923.6(a), a servicer acts in the best interest of all 12 13 parties, if it agrees to or implements a loan modification or workout plan where the (1) loan is in 14 payment default, or payment default is reasonably foreseeable, and (2) anticipated recovery under the 15 loan modification or workout plan exceeds the anticipated recovery through foreclosure on a net present| 16 value basis. 17 40 Violation: Pursuant to Cal. Civ. Code § 2923.6, Defendant was contractually bound to 18 offer Plaintiff a loan modification or workout plan. However, Defendant foreclosed on Plaintiff 19 s home| 20 while the loan modification application was still being processed and did not provide notice of a 30-day 21 appeal period after the application’s rejection, in essence, denying Plaintiff the opportunity for a loan 22 modification or workout plan prior to foreclosure. Instead, Defendant recorded a false, fraudulent , and 23 improper NOD, NOTS, and TDUS. Plaintiff was not in default on the Subject Loan as discussed in 24 25 detail elsewhere. However, if Defendant was under the belief that Plaintiff was in default, then they 26 were required to reach out to Plaintiff to discuss non-foreclosure alternatives, including a loan 27 modification, to save Plaintiff's home from foreclosure. Defendant, however, failed to do so altogether. 28 -H- VERIFIED COMPLAINT If Plaintiff was in default, they would have applied for a loan modification or other non-foreclosure option, for which they certainly would have qualified , 41. Prejudice: As a result of Defendant’s violation. of Section 2923.6, Plaintiff has suffered prejudice as detailed throughout this Complaint. Plaintiff was told that her loan modification application was still in process at the time of foreclosure and was not able to prevent the trustee sale to take place. This violation resulted in Plaintiffs losing title of Subject Property. 42. Damages: As a direct and proximate result of Defendant’s violation of Section 2923.6, Plaintiff has been prejudiced, has suffered, and will continue to suffer, general and special damages 10 including the loss of equity in the Subject Property, costs and expenses of protecting herself, reduced 1i credit scores, unavailability of credit, increased costs for credit, reduced availability of goods and 12 13 services tied to credit ratings, increased costs of those services, as well as interest, fees and costs, 14 including, without limitation, attorney’s fees and costs, all in an amount according to proof at the time is of trial. 16 THIRD CAUSE OF ACTION 17 FOR VIOLATION OF CALIFORNIA CIVIL CODE § 2923.7 18 (Against All Defendants) 19 43. Plaintiffs re-allege and incorporate by reference the general allegations set forth above in| 20 paragraphs 1 through 42 inclusive, as though set forth completely in this cause of action. 21 44 C.C.C. 2923.7: As of January 1, 2013, Defendant was required to provide Plaintiff with 22 a single point of contact upon Plaintiff's request for loss mitigation, Plaintiff also specifically requested 23 a single point of contact to be assigned to manage Plaintiff's loan modification application but was 24 not 25 provided with a single individual as requested, but multiple single points of contact, which confused 26 Plaintiff. 27 28 -12- VERIFIED COMPLAINT 45, No Single Point of Contact: Although the statute provides that Plaintiff's single point of contact can be an individual or a team of personnel (see Cal. Civ. Code § 2923.7(e)), here, Defendant failed to assign Plaintiff an individual single point of contact when it reassigned Plaintiff to different individual single points of contact. Furthermore, subsection (a) requires the servicer to provide to the borrower one or more direct means of communication with the single point of contact. Cal. Civ. Code § 2923.7(a). Defendant never provided Plaintiff with contact information for any purporte d team and courts have found that establishing a hotline does not sati sfy the requirement. (See Johnson v. PNC Mortgage, 80 F. Supp. 3d 980, 987 (N.D. Cal. 201 5) (Pushing borrowers to a hotline, despite having an 10 assigned single point of contact, is sufficient to plead a violation of Section 2923.7.) Consequently, ql Defendant cannot retroactively define all of its representatives as a team to prevail on this 12 cause of 13 action. 14 46. Violation: Despite claiming to provide a single point of contact, Plaintiff and/or is Plaintiff's representative communicated with and/or were forced to communicate with a number of 16 different individuals. In order to satisfy the statute, the person with whom the borrower 17 communicates must be knowledgeable about the borrower's situation and current status in the 18 alternatives to 19 foreclosure process. Cal. Civ. Code § 2923.7(e). 20 a. Defendant never provided Plaintiff or Plaintiff's representative(s) with an actual single 21 point of contact that was responsive or knowledgeable about Plaintiff's loan modification| 22 application, forcing Plaintiff and her representative(s) to maneuver themselves through 23 a labyrinth of automated operators to reach a different Tepresentative every time 24 they called to check the status of Plaintiff's application and receive relevant informat 25 ion. 26 These different individuals provided Plaintiff and her Tepresentative(s) with varying 27 information and did not have specific knowledge of Plaintiff's application. 28 -13- VERIFIED COMPLAINT b. Defendant’s representatives continuously requested that Plaintiff submit and re- submit the same documents claiming that they were lost or had not been received. 47. Prejudice: As the result of the failure of Defendants, and each of them, to comply with Section 2923.7 Plaintiff has suffered prejudice as follows: a. Plaintiff was forced to consistently and continuously submit and re-submit the same application repeatedly; b. Plaintiff has been subjected to the foreclosure process, including all unnecessary fees, costs and interest related to such foreclosure; and 10 c. Finally, Plaintiff has been forced to incur attorney's fees to file the subject complaint i 12 in order to address Defendant’s failure to comply with the Civil Code, which has 13 clearly resulted in prejudice to Plaintiff. 14 48. Economic Damages: As discussed in detail in this Complaint, Defendant’s failure to 15 provide a single point of contact caused Plaintiff’s substantial economic damages because a single 16 individual was not familiar with Plaintiff’s' file, thereby forcing Plaintiff to incur damages in the 17 form of added interest, costs, fees, and legal fees. 18 ig FOURTH CAUSE OF ACTION FOR VIOLATION OF CALIFORNIA CIVIL CODE § 2924.17 20 (Against All Defendants) 21 49. Plaintiff re-alleges and incorporates by reference the general allegations set forth above 22 in paragraphs 1 through 48 inclusive, as though set forth completely in this cause of action. 23 50. C.C.C. Section 2924.17 Requirements: Cal. Civ. Code § 2924.17 states the following in 24 pertinent part: (a) A declaration recorded pursuant to Section 2923.5 or, until January 25 1, 2018, pursuant 26 to Section 2923.55, a notice of default, notice of sale, assignment of a deed of trust, or substitution of 27 trustee recorded by or on behalf of a mortgage servicer in connection with a foreclosure subject to the 28 -14- VERIFIED COMPLAINT requirements of Section 2924, or a declaration or affidavit filed in any court relative to a foreclosure proceeding, shall be accurate and complete and supported by competent and reliable evidence. Before recording or filing any of the documents described in subdivision (a), a mortgage servicer shall ensure that it has reviewed competent and reliable evidence to substantiate the borrower's default and the tight to foreclose, including the borrower's loan status and loan information, 31. Materi al Violation of C.C.C. 2924.17: Defendant violated Section 2924.17 by not properly reviewing Plaintiff's loan information, and verifying whether Defendant had the right to foreclose pursuant to competent and reliable evidence. Instead, Defendant engaged in the following 10 conduct in direct violation of Section 2924.17: 1 12 a. Executing and recording the fraudulent Notice of Default and Notice of Trustee Sale. 13 b. Failing to confirm whether Plaintiff has, in fact, been contacted to assess her 14 financial situation and non-foreclosure alternatives. is 52. Prejudice: As the result of Defendant’s failure to comply with Section 2924.17, Plaintiff 16. has suffered prejudice. Plaintiff has been forced into the foreclosure process after not being contacted 17 personally or by mail to assess Plaintiffs financial situation and non-foreclosure alternatives. 18 Defendant has added unnecessary fees, costs and interest to Plaintiff's account related to and 19 resulting 20 from the unlawful Notices. Defendant intentionally attempted to fraudulently continue to add invalid 21 excessive fees, costs and interest to Plaintiff's account and thereafter proceed with foreclosur e, as 22 evidenced by their most recent NOTS. Had Defendant complied with the requirements of Section 23 2924.17, Plaintiff would not be forced to incur invalid and excessive fees, which 24 have been added to her account as the result of unlawful foreclosure proceedings and would further not be subjected 25 to 26 foreclosure of the Subject Property. 27 4 28 -15- VERIFIED COMPLAINT FIFTH CAUSE OF ACTION FOR FRAUDULENT MISREPRESENTATION (Against All Defendants) 53. Plaintiff re-alleges and incorporates by reference the general allegations set forth above in paragraphs 1 through 52 inclusive, as though set forth completely in this cause of action. 54, Defendant made various fraudulent and intentional misrepresentations of fact. 7 55. Fraudulent Ni lotice of Default: the NOD fails to comport with paragraph No. 22 of the 8 Deed of Trust, which states the following: a, "Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration 10 following Borrower’s breach of any covenant or agreement in this Security ai 12 Instrument (but not prior to acceleration under Section 18 unless Applicable Law 13 provides otherwise). The notice shall specify: (a) the default; (b) the action required 14 to cure the default; (c) a date, not less than 30 days from the date the notice is given 15 to Borrower, bywhich the default must be cured; and (d) that failure to cure the 16 default on or before the