Preview
Electronically Filed
1 LAUREL I. HANDLEY (SBN 231249) 11/2/2020 12:43 PM
CHARLES A. CORREIA (SBN 86123) Superior Court of California
2 ALDRIDGE PITE, LLP
4375 JUTLAND DRIVE, SUITE 200 County of Stanislaus
3 P.O. BOX 17935 Clerk of the Court
SAN DIEGO, CA 92177-0935 By: Mouang Saechao, Deputy
4 TELEPHONE: (619) 326-2407 $435 PAID
FACSIMILE: (619) 590-1385
5 E-Mail: ccorreia@aldridgepite.com
Attorneys for Plaintiff, LAKEVIEW LOAN SERVICING, LLC
6
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF STANISLAUS
10 LAKEVIEW LOAN SERVICING, LLC, Case No.CV-20-004857
11 Plaintiff, COMPLAINT FOR
(1) DECLARATORY
12 v. RELIEF and
(2) CANCELLATION OF
13 EMPIRE OF AMERICA REALTY CREDIT INSTRUMENT
CORP., and
14 DOES 1 to 20, Complaint Filed:
Trial Date:
15 Defendants. Speiller, Stacy
Dept. 22
16
17 COMES NOW Plaintiff, LAKEVIEW LOAN SERVICING, LLC (“Plaintiff”) and alleges
18 against Defendants, and each of them, as follows:
19 PARTIES
20 1. Plaintiff is, and at all times relevant here was, a limited liability company, engaged
21 in the business of, among other things, making, servicing and acquiring loans secured by interests
22 in real property, including in the County of Stanislaus, State of California.
23 2. Plaintiff alleges that Defendant, EMPIRE OF AMERICA REALTY CREDIT
24 CORP., is/was a corporation, doing business in Stanislaus County, California, and elsewhere.
25 3. Plaintiff is ignorant of the true names and capacities of defendants sued herein as
26 DOES 1 through 20, inclusive, and each of them, and therefore sues said defendants by such
27 fictitious names. Plaintiff will amend this complaint to allege the true names and capacities of
28 said defendants when ascertained. Plaintiff is informed and believes, and based thereon alleges
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COMPLAINT FOR (1) DECLARATORY RELIEF; AND (2) CANCELLATION OF INSTRUMENT
1 that each of said fictitiously named defendants are responsible in some manner for the occurrences
2 alleged herein and such defendants legally caused Plaintiff’s damages.
3 4. Plaintiff is informed and believes, and based thereon alleges that at all of the
4 defendants identified herein, whether identified by name or by fictitious name, were and are the
5 agents, partners, co-conspirators, employees, or co-principals with each other, and that each acted
6 jointly and in cooperation with each other to perform the acts against and inflict the damages upon
7 Plaintiff as alleged in this Complaint, and that in doing the things alleged herein, each was acting
8 within the course and scope of such relationship, and that the acts of each were ratified and adopted
9 by the other.
10 5. The property that is the subject of this action is located entirely within the
11 boundaries of the City of Modesto, and is residential real property commonly known as 2001
12 Walnut Haven Dr., Modesto, CA 95355 (the “Property”).
13 FACTUAL ALLEGATIONS
14 6. On March 21, 1989, a loan was obtained by Steven Allen Cook and Diane N. Cook,
15 husband and wife as joint tenants, in the principal amount of $132,300.00, with the original
16 beneficiary, American National Bank, a California corporation, which loan was secured by a Deed
17 of Trust With Assignments of Rents, which was recorded on March 30, 1989, as Document No.
18 022110 of Official Records of Stanislaus County (“1989 Deed of Trust”), a copy of which is
19 attached hereto as Exhibit “A”.
20 7. Thereafter, an Assignment of the 1989 Deed of Trust was recorded on August 2,
21 1989 as Document No. 059437 of the Official Records of Stanislaus County, assigning the 1989
22 Deed of Trust to Empire of America Realty Credit Corp., a Michigan corporation, a copy of which
23 is attached hereto as Exhibit “B”.
24 8. Thereafter, an Assignment of the 1989 Deed of Trust was recorded on November
25 5, 1991 as Document No. 086043 of Official Records of Stanislaus County, assigning the 1989
26 Deed of Trust to Empire of America Realty Credit Corp., a New York corporation, a copy of which
27 is attached hereto as Exhibit “C”.
28 /././
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COMPLAINT FOR (1) DECLARATORY RELIEF; AND (2) CANCELLATION OF INSTRUMENT
1 9. Plaintiff is informed and believes, and based thereon alleges that Empire of
2 America Realty Credit Corp. was acquired by Midcoast Mortgage Corp. and is/was now a wholly
3 owned subsidiary of Midcoast Mortgage Corp.
4 10. By way of Grant Deed dated November 5, 1997, Jim R. Johnson and Shari Lynn
5 Johnson, husband and wife as joint tenants, acquired title to the Property from Loi Van Huynh and
6 Tiuong Van Nguyen. The Grant Deed was recorded on November 7, 1997, as Document No. 97-
7 0092228-00 of Official Records of Stanislaus County, a copy of which is attached hereto as Exhibit
8 “D”.
9 11. By way of a Grant Deed dated March 7, 2016, Jim R. Johnson conveyed his interest
10 in the Property to Shari Lynn Johnson.
11 12. On or about October 10, 2018, Shari Lynn Johnson made, executed, and delivered
12 to Paramount Equity Mortgage, LLC dba Loanpal, a limited liability company (“Plaintiff’s
13 Predecessor”), a Note (“Note") in the principal amount of $278,795.00. A true and correct copy
14 of the Note is attached hereto as Exhibit “E” and incorporated herein by reference.
15 13. To secure the indebtedness under the Note, on or about October 10, 2018, Shari
16 Lynn Johnson, executed, and delivered to Plaintiff’s Predecessor a Deed of Trust (“Deed of
17 Trust”), in the principal amount of $278,795.00. The Deed of Trust was recorded on October 16,
18 2018 as Document No. 2018-0071811-00 of Official Records of Stanislaus County. A true and
19 correct copy of the Deed of Trust is attached hereto as Exhibit “F” and incorporated herein by
20 reference.
21 14. Plaintiff’s Predecessor assigned all beneficial interest under its Deed of Trust to
22 Mortgage Electronic Registration Systems, Inc. (“MERS”), a Delaware Corporation, its
23 Successors or Assigns, as Nominee for Paramount Equity Mortgage, LLC dba Loanpal.
24 15. Pursuant to an Assignment of Deed of Trust executed March 10, 2020 Mortgage
25 Electronic Registration Systems, Inc., as Nominee for Paramount Equity Mortgage, LLC dba
26 Loanpal, its Successors and Assigns, assigned all beneficial interest under Plaintiff’s Deed of Trust
27 to Lakeview Loan Servicing, LLC. The Assignment of Deed of Trust was recorded on March 18,
28 2020 as Document No. 2020-0019011 of Official Records of Stanislaus County. A true and correct
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COMPLAINT FOR (1) DECLARATORY RELIEF; AND (2) CANCELLATION OF INSTRUMENT
1 copy of the Assignment of Deed of Trust is attached hereto as Exhibit “G” and incorporated herein
2 by reference.
3 16. Plaintiff is the current holder of the Note and is the current beneficiary under
4 Plaintiff’s Deed of Trust.
5 17. Defendant, EMPIRE OF AMERICA REALTY CREDIT CORP., has or claims to
6 have, some interest in, or to, the Property, as the beneficiary of the above-referenced 1989 Deed
7 of Trust.
8 18. Plaintiff’s agent obtained a title report, which listed all outstanding liens on the
9 Property.
10 19. After reviewing the title report, Plaintiff’s agent became aware that the 1989 Deed
11 of Trust remained on title and is therefore senior to Plaintiff’s Deed of Trust.
12 20. On information and belief, Plaintiff alleges that the 1989 Deed of Trust should have
13 been released as part of a subsequent full value sale, but was never reconveyed.
14 21. Counsel for Plaintiff attempted to contact Defendant, EMPIRE OF AMERICA
15 REALTY CREDIT CORP., for a pay-off or reconveyance of the 1989 Deed of Trust but received
16 no response.
17 22. Accordingly, as Plaintiff’s attempts to request a reconveyance from Defendant,
18 EMPIRE OF AMERICA REALTY CREDIT CORP., or any possible successor, have been
19 unsuccessful, Plaintiff has determined that the Court’s intervention is required at this time in order
20 to resolve the issue relating to the 1989 Deed of Trust.
21 FIRST CAUSE OF ACTION
22 Declaratory Relief
23 (Against all Defendants)
24 23. Plaintiff refers to and incorporates by this reference as though fully set forth herein,
25 paragraphs 1 through 22 above.
26 24. On information and belief, the obligations underlying the 1989 Deed of Trust
27 should have been satisfied and paid in full in accordance with multiple full value sales and
28 subsequent multiple refinances, but Plaintiff has been unable to obtain a recorded reconveyance,
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COMPLAINT FOR (1) DECLARATORY RELIEF; AND (2) CANCELLATION OF INSTRUMENT
1 and the 1989 Deed of Trust has not been released by the beneficiary, requiring the Court’s
2 intervention.
3 25. Accordingly, an actual controversy has arisen and now exists concerning Plaintiff’s
4 rights and the priority of its lien, and any interest held by the beneficiary of the 1989 Deed of Trust.
5 26. The outstanding 1989 Deed of Trust creates an improper cloud on the title of the
6 Property and, to the extent it has not been reconveyed as to the Property, takes priority over
7 Plaintiff’s Deed of Trust. As such, a judicial declaration is necessary and appropriate at this time
8 in order that Plaintiff and Defendants may ascertain their rights, obligations, and interests with
9 regard to the Property, as to Plaintiff’s Deed of Trust and the 1989 Deed of Trust.
10 27. Plaintiff requests that the Court determine, declare, and order that the obligations
11 secured by the 1989 Deed of Trust have been satisfied and will be reconveyed, released, and
12 ordered expunged from the Official Records of Stanislaus County as to the Property.
13 SECOND CAUSE OF ACTION
14 Cancellation of Instrument; Civil Code Section 3412
15 (Against All Defendants)
16 28. Plaintiff refers to and incorporates by this reference as though fully set forth herein,
17 paragraphs 1 through 27 above.
18 29. On information and belief, the obligations secured by the 1989 Deed of Trust would
19 have been fully paid in multiple full value sales and subsequent multiple refinances. However, the
20 1989 Deed of Trust continues to encumber the Property, which clouds title to the Property, and
21 has an adverse effect upon Plaintiff’s security interest therein and on the priority of Plaintiff’s
22 Deed of Trust.
23 30. On information and belief, Defendant, or its authorized representatives or agents,
24 or any other party, have not executed a release of lien of the 1989 Deed of Trust, in accordance
25 with California Civil Code §2941, which would extinguish any interest stillheld by it in the
26 security interest in the Property.
27 31. The 1989 Deed of Trust described herein is recorded in the Official Records of
28 Stanislaus County. If left outstanding in the Official Records of Stanislaus County, the 1989 Deed
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COMPLAINT FOR (1) DECLARATORY RELIEF; AND (2) CANCELLATION OF INSTRUMENT
1 of Trust will cause injury to Plaintiff and cloud Plaintiff’s security interest in the Property.
2 32. Plaintiff is therefore entitled to a cancellation of the 1989 Deed of Trust pursuant
3 to California Civil Code Section 3412.
4 PRAYER
5 WHEREFORE, Plaintiff prays for judgment against Defendants, and each of them, as
6 follows:
7 ON THE FIRST CAUSE OF ACTION
DECLARATORY RELIEF
8 (Against all Defendants)
9 1. For a declaration that the 1989 Deed of Trust is not a valid and enforceable
10 encumbrance against the Property;
11 2. For a declaration that the 1989 Deed of Trust has been fully reconveyed;
12 3. For a declaration that Plaintiff’s Deed of Trust is a valid and enforceable lien
13 encumbering the Property, as of October 16, 2018, the date of the recording of Plaintiff’s Deed of
14 Trust;
15 ON THE SECOND CAUSE OF ACTION
CANCELLATION OF INSTRUMENTS
16 (Against all Defendants)
17 1. For a declaration that 1989 Deed of Trust is cancelled, void, and of no further force
18 or effect;
19 2. For an order cancelling and expunging the 1989 Deed of Trust from the Official
20 Records of the County of Stanislaus;
21 AS TO ALL CAUSES OF ACTION
22 1. For costs of suit herein; and
23 2. For such other and further relief as the Court may deem just and proper.
24 Respectfully submitted,
25 ALDRIDGE PITE, LLP
26
Dated: November 2, 2020
27 CHARLES A. CORREIA
Attorneys for Plaintiff,
28 LAKEVIEW LOAN SERVICING, LLC
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COMPLAINT FOR (1) DECLARATORY RELIEF; AND (2) CANCELLATION OF INSTRUMENT
EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT D
EXHIBIT E
EXHIBIT F