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FRANK E. MAYO/State Bar #42972 FILEB
4962 BE] Camino Real, Ste. 104 . a 08
Los Altos, CA 94022 21 Pb 0
i WILEY, CLERK
(650) 964-8901
Attorney for Defendant
Cross Complainant
Kim Bimemiller
IN THE SUPERIOR COURT OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN JOAQUIN
KIM BIMEMILLER AND LAILA ) Case No. STR-UOCT=2021-0002453
BIMEMILLER, j
Cross Complainants, ) CROSS COMPLAINT FOR BREACH
) OF FIDUCIARY DUTY, FRAUD
y ) INTERFERENCE WITH
) PROSPECTIVE ECONOMIC
EQUITY LAW GROUP. S. DAVID ) ADVANTAGE AND ASSESSMENT
KOZICH and ROES 1-25 ) OF EXEMPLARY DAMAGES
) .
Cross Defendants ) JURY TRIAL DEMANDED
)
COMES NOW Cross Complainant Kim Bimemiller and Cross Complains against Cross
Defendants Equity Law Group, S. David Kozich and Roes 1-25 as follows.
I
COUNT ONE FOR BREACH OF CONTRACT
BY DEFENDANT EQUITY LAW GROUP AND
§. DAVID KOZICH
1 Cross Complainants are residents of the County of San Joaquin, State of California,
2 Cross Defendant Equity Law Group is a business organization of some type of firm of which
is unknown to cross-complainant with its principal place of business in the City of Ontatio, State of
GUGSELEOMOEAENENERECPRBO RR QEE” RRECABBESBHENy EB"ERoBURERERARUEE arr
FILE EY FAXwon
m
California. |
3, The True names and capacities o Cross Defendants designated herein as Roes Ithrough 25
are unknown to Cross Complaint who therefore sues them by the fictitious names of Roes 1-25.
Cross complaint will amend this complaint to state the true names of the fictitiously named ‘cross:
defendants when ascertained, Cross Complainant is however informed and believes that each of said
fictitiously named Cross-Defendants is responsible in some manner for causing Cross Complainants
damages as hereinafter alleged.
4. Onor about September 17, 2020, Cross Complainants were owners of record of the
residential eal properly located at72 North Alta Dena Street, Mountain House, California and were
in default on at least ane promissory note secured by a deed of trust on their residential property at
72.North Alta Dena Street, Mountain House, California.
5. A Notice of Default and Notiee of Sale had been recorded against this property.
i
6. On September 29, 2020 Cross Complainant entered a contingent fee agreement with
Cross Defendants Equity Law Group and S. David Kozich. A true and correct copy of this
agreement is attached hereto as Exhibit A and incorporated herein by reference.
7. This contingent fee agreement specifically provides:
“Client hires attorney to provide legal services as follows: Attorney will prepare and issue
a formal dispute of sale, if applicable Atlomey shall review the available protections against
wrongful foreclosure under Federal and State law. Attorney will analyze the Notice of Default,
Notice of Trustee’s Sale and Trustee’s Deed for any deficiencies not in compliance with
California Law and collect any personal properly owing to client on foreclosure. The law office
shall assist in any unlawful detainer proceedings.”
“The scope of service DOES NOT include any other matter not mentioned above”
“The fee to be paid to Attorney will be a percentage of the ‘net recovery’. The term
net recovery means the total amount of all funds received by settlement, arbitration award or
judgment.”
8, Cross Complainant’s real property at 72 Alta Dena Street, Mountain House was
3 |
GROSSLCONPLAENS sBORCPRBDRUD Ee ARUCHARESBUBKn SEAGROBNAERERURNEE WETB WN
on A
foreclosed on by Non Judicial foreclosure.
9, The purchase price at the foreclosure sale was for a price in excess of all lehs
secured by trust deeds, unpaid taxes, if any, and foreclosure fees, \
10. These excess funds were held in trust for the benefit of Cross Complainants
and were payable to Cross-Complainants. |
11, No legal or equitable action was required for Claimant’s receipt of the excels funds
in the sum of $169,478.
12. Further collection of excess funds due Cross Complaint was not in the scope of
services designated in the contingent fee agreement altached hereto as Exhibit A.
13. On or about 4/28/21 Cross Defendants S David Kozich and Equity Law Group
breached the contingent fee agreement by filing a lien for the claimed value of services
allegedly performed by him which were not within the scope of the services to be
performed by the contingent fee agreement, which is attached as Exhibit A to this Cross
Complaint and did not require the filing of a tawsuit, initiation of arbitration or |
arbitration to secure for Plaintiff because said funds were the proceeds from the foreclosure of
Cross Complainant's home, which were in excess of all liens encumbering said home at the time
of the aforesaid foreclosure sale.
14. Cross Complainant performed each and every contractual obligation on their part to
be performed. '
15, Asa direct and proximate result of the breach of contract by Cross Defendant as
herein alleged, Cross Complainants have been damaged in a sum within this courts |
. |
jurisdictional limits in an amount not yet ascertained
COUNT I | ,
!
FOR DAMAGES FOR BREACH OF FIDUCIARY DUTY
GROSS cEGHLALUS yBQBCPREORN REuPAABCRABESRUENe GPARRowEURY*ERBRUEE maw NN
By S David Kozich and Equity law Group
16, Cross Complainants incorporate herein by reference count one of this complaint as
though set forth in full.
17, in September 2020 Cross Complainant retained Cross Defendants Equity Law cowp and
§. David Kozich to act as attorney to represent them in connection with the above described
forcelosure of their home.
18. Because of said retention of Equity Law Group and 8. David Kozich as Cross
Complainnts’ Attorney 8. David Kozich and Equity Law Group had a fiduciary duty of utmost
loyalty and due care which each owed Cross Complainant.
19, On or about 4/26/21 Cross Defendant Equity Law Group and 8. David Kozich breached
said fiduciary duty by filing an attorney lien for services not authorized to be performed by any oral
1
or written agreement entered by Cross Complainant with either of said Cross Defendants.
20. Asa direct and proximate result of said breaches of duty as herein alleged, Cross
Complainants’ damages include but are not limited to severe and intense emotional distress, all to
their damage in a sum within the jurisdictional limits of this court.
COUNT III
FOR DAMAGES INTERFERENCE WITH PROSPECITVE
ECONOMIC ADVANTAGE
21, Cross Complainants incorporate herein by reference Count One and Two of this
complaint as through set forth in full,
22, On or about 4/26/21 Cross Complainants had a vested right to receive the above-
described foreclosuie sales proceed, which were in excess of all liens and foreclosure sales cost
free and clear of any attomey lien for any services rendered by any attomey.
i
CROSSE OMELARNS BPR REO REn” ERD HOES BUEN BPO URe RAPS ERRRUES 927"wn
23. Cross Defendants in breach of their respective fiduciary duties to Cross Complainants
filed an improper lien for legal services with full knowledge of its invalidity in the Superior Court
of California, when the services were not authorized by Cross Complainants.
24. Asa proximate result of said invalid lien, Cross Complainants have been deprived ofa
prospective economic benefit all Lo their damage in a sum within this court's jurisdictional limits.
25 Asa further direct and proximate result of Cross Defendants’ actions as herein alleged in
patagraphs 23 and 24 of this complaint Cross Complainants have suffered severe emotional distress
all to their damage in a sum within this court’s jurisdictional limits.
COUNT [V
FOR A DELCLARTION FROM THIS COURT
THAT THE CONTGINGENT FEE IS PROCEDURALLY AND
SUSTANTIVELY UNCONSCIONALBLE
26, Cross Complainants incorporates herein by reference counts one through trey of this
Crosses Complaint as though set forth in full. :
27, Cross Complainants dispute the validity of Cross Defendant’s lien on finds not subject
to any written or oral agreement made with Cross Complainants and further allege Cross
Defendant are attempting to enforce a lien pun'suant to an alleged contact which is procedurally
and substantively unconscionable.
28, It is procedurally unconscionable because it was presented to Cross Defendants on a take
or leave it basis and was presented with a promise the foreclosure could be prevented.
29, ‘The asserted contract was also substantively unconscionable because the claimed
contingent fee was excessive and beyond the range of areasonable fee permitted by the
California State Bar Association.
WHEEFORE, these Cross Complainants pray Judgement against Cross Defendants and cach
GROSSCOMPEA ENS nODRcREDAMln Re” ANUCRASESOAERY BP He BURP BRBBES wetYn oO B® WM
of them as follows;
On Count One for Cross Complainants’ damages according to proof
On Count Two and Three for Cross Complainants’ special damages in a sum according to proof
and for emotional distress damages in a sum according to proof :
On Count Four for a declaration by this court that the purported fee agreement as alleged to exist
by Cross Defendants fanconscionable and therefore unenforceable.
Dated Junge 11, 2021
cca LL 0g)
Frank E. Aan
Attorney for Defendant Cross Complainants
|
GROSS ECOVPLA EME NEORCPRBOGM RES" ANUCRSESSONBT ERAERenPIAPSBRARRES 4utK
Preview
wo yp en HD 10 11 12 13 14 15 16 1? 18 19 20 21 22 23 24 25 26 27 28 FRANK E. MAYO/State Bar #42972 FILEB 4962 BE] Camino Real, Ste. 104 . a 08 Los Altos, CA 94022 21 Pb 0 i WILEY, CLERK (650) 964-8901 Attorney for Defendant Cross Complainant Kim Bimemiller IN THE SUPERIOR COURT OF CALIFORNIA IN AND FOR THE COUNTY OF SAN JOAQUIN KIM BIMEMILLER AND LAILA ) Case No. STR-UOCT=2021-0002453 BIMEMILLER, j Cross Complainants, ) CROSS COMPLAINT FOR BREACH ) OF FIDUCIARY DUTY, FRAUD y ) INTERFERENCE WITH ) PROSPECTIVE ECONOMIC EQUITY LAW GROUP. S. DAVID ) ADVANTAGE AND ASSESSMENT KOZICH and ROES 1-25 ) OF EXEMPLARY DAMAGES ) . Cross Defendants ) JURY TRIAL DEMANDED ) COMES NOW Cross Complainant Kim Bimemiller and Cross Complains against Cross Defendants Equity Law Group, S. David Kozich and Roes 1-25 as follows. I COUNT ONE FOR BREACH OF CONTRACT BY DEFENDANT EQUITY LAW GROUP AND §. DAVID KOZICH 1 Cross Complainants are residents of the County of San Joaquin, State of California, 2 Cross Defendant Equity Law Group is a business organization of some type of firm of which is unknown to cross-complainant with its principal place of business in the City of Ontatio, State of GUGSELEOMOEAENENERECPRBO RR QEE” RRECABBESBHENy EB"ERoBURERERARUEE arr FILE EY FAXwon m California. | 3, The True names and capacities o Cross Defendants designated herein as Roes Ithrough 25 are unknown to Cross Complaint who therefore sues them by the fictitious names of Roes 1-25. Cross complaint will amend this complaint to state the true names of the fictitiously named ‘cross: defendants when ascertained, Cross Complainant is however informed and believes that each of said fictitiously named Cross-Defendants is responsible in some manner for causing Cross Complainants damages as hereinafter alleged. 4. Onor about September 17, 2020, Cross Complainants were owners of record of the residential eal properly located at72 North Alta Dena Street, Mountain House, California and were in default on at least ane promissory note secured by a deed of trust on their residential property at 72.North Alta Dena Street, Mountain House, California. 5. A Notice of Default and Notiee of Sale had been recorded against this property. i 6. On September 29, 2020 Cross Complainant entered a contingent fee agreement with Cross Defendants Equity Law Group and S. David Kozich. A true and correct copy of this agreement is attached hereto as Exhibit A and incorporated herein by reference. 7. This contingent fee agreement specifically provides: “Client hires attorney to provide legal services as follows: Attorney will prepare and issue a formal dispute of sale, if applicable Atlomey shall review the available protections against wrongful foreclosure under Federal and State law. Attorney will analyze the Notice of Default, Notice of Trustee’s Sale and Trustee’s Deed for any deficiencies not in compliance with California Law and collect any personal properly owing to client on foreclosure. The law office shall assist in any unlawful detainer proceedings.” “The scope of service DOES NOT include any other matter not mentioned above” “The fee to be paid to Attorney will be a percentage of the ‘net recovery’. The term net recovery means the total amount of all funds received by settlement, arbitration award or judgment.” 8, Cross Complainant’s real property at 72 Alta Dena Street, Mountain House was 3 | GROSSLCONPLAENS sBORCPRBDRUD Ee ARUCHARESBUBKn SEAGROBNAERERURNEE WETB WN on A foreclosed on by Non Judicial foreclosure. 9, The purchase price at the foreclosure sale was for a price in excess of all lehs secured by trust deeds, unpaid taxes, if any, and foreclosure fees, \ 10. These excess funds were held in trust for the benefit of Cross Complainants and were payable to Cross-Complainants. | 11, No legal or equitable action was required for Claimant’s receipt of the excels funds in the sum of $169,478. 12. Further collection of excess funds due Cross Complaint was not in the scope of services designated in the contingent fee agreement altached hereto as Exhibit A. 13. On or about 4/28/21 Cross Defendants S David Kozich and Equity Law Group breached the contingent fee agreement by filing a lien for the claimed value of services allegedly performed by him which were not within the scope of the services to be performed by the contingent fee agreement, which is attached as Exhibit A to this Cross Complaint and did not require the filing of a tawsuit, initiation of arbitration or | arbitration to secure for Plaintiff because said funds were the proceeds from the foreclosure of Cross Complainant's home, which were in excess of all liens encumbering said home at the time of the aforesaid foreclosure sale. 14. Cross Complainant performed each and every contractual obligation on their part to be performed. ' 15, Asa direct and proximate result of the breach of contract by Cross Defendant as herein alleged, Cross Complainants have been damaged in a sum within this courts | . | jurisdictional limits in an amount not yet ascertained COUNT I | , ! FOR DAMAGES FOR BREACH OF FIDUCIARY DUTY GROSS cEGHLALUS yBQBCPREORN REuPAABCRABESRUENe GPARRowEURY*ERBRUEE maw NN By S David Kozich and Equity law Group 16, Cross Complainants incorporate herein by reference count one of this complaint as though set forth in full. 17, in September 2020 Cross Complainant retained Cross Defendants Equity Law cowp and §. David Kozich to act as attorney to represent them in connection with the above described forcelosure of their home. 18. Because of said retention of Equity Law Group and 8. David Kozich as Cross Complainnts’ Attorney 8. David Kozich and Equity Law Group had a fiduciary duty of utmost loyalty and due care which each owed Cross Complainant. 19, On or about 4/26/21 Cross Defendant Equity Law Group and 8. David Kozich breached said fiduciary duty by filing an attorney lien for services not authorized to be performed by any oral 1 or written agreement entered by Cross Complainant with either of said Cross Defendants. 20. Asa direct and proximate result of said breaches of duty as herein alleged, Cross Complainants’ damages include but are not limited to severe and intense emotional distress, all to their damage in a sum within the jurisdictional limits of this court. COUNT III FOR DAMAGES INTERFERENCE WITH PROSPECITVE ECONOMIC ADVANTAGE 21, Cross Complainants incorporate herein by reference Count One and Two of this complaint as through set forth in full, 22, On or about 4/26/21 Cross Complainants had a vested right to receive the above- described foreclosuie sales proceed, which were in excess of all liens and foreclosure sales cost free and clear of any attomey lien for any services rendered by any attomey. i CROSSE OMELARNS BPR REO REn” ERD HOES BUEN BPO URe RAPS ERRRUES 927"wn 23. Cross Defendants in breach of their respective fiduciary duties to Cross Complainants filed an improper lien for legal services with full knowledge of its invalidity in the Superior Court of California, when the services were not authorized by Cross Complainants. 24. Asa proximate result of said invalid lien, Cross Complainants have been deprived ofa prospective economic benefit all Lo their damage in a sum within this court's jurisdictional limits. 25 Asa further direct and proximate result of Cross Defendants’ actions as herein alleged in patagraphs 23 and 24 of this complaint Cross Complainants have suffered severe emotional distress all to their damage in a sum within this court’s jurisdictional limits. COUNT [V FOR A DELCLARTION FROM THIS COURT THAT THE CONTGINGENT FEE IS PROCEDURALLY AND SUSTANTIVELY UNCONSCIONALBLE 26, Cross Complainants incorporates herein by reference counts one through trey of this Crosses Complaint as though set forth in full. : 27, Cross Complainants dispute the validity of Cross Defendant’s lien on finds not subject to any written or oral agreement made with Cross Complainants and further allege Cross Defendant are attempting to enforce a lien pun'suant to an alleged contact which is procedurally and substantively unconscionable. 28, It is procedurally unconscionable because it was presented to Cross Defendants on a take or leave it basis and was presented with a promise the foreclosure could be prevented. 29, ‘The asserted contract was also substantively unconscionable because the claimed contingent fee was excessive and beyond the range of areasonable fee permitted by the California State Bar Association. WHEEFORE, these Cross Complainants pray Judgement against Cross Defendants and cach GROSSCOMPEA ENS nODRcREDAMln Re” ANUCRASESOAERY BP He BURP BRBBES wetYn oO B® WM of them as follows; On Count One for Cross Complainants’ damages according to proof On Count Two and Three for Cross Complainants’ special damages in a sum according to proof and for emotional distress damages in a sum according to proof : On Count Four for a declaration by this court that the purported fee agreement as alleged to exist by Cross Defendants fanconscionable and therefore unenforceable. Dated Junge 11, 2021 cca LL 0g) Frank E. Aan Attorney for Defendant Cross Complainants | GROSS ECOVPLA EME NEORCPRBOGM RES" ANUCRSESSONBT ERAERenPIAPSBRARRES 4utK