1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Jamil L. White (Bar No. 244028) Michael D. Maloney (Bar No. 208297) LOUIS I WHITE 5600 H Street, Suite 100 Sacramento, Califomia 95819 Telephone: (916) 594-7241 Facsimile: (916) 594-7247 Attomeys for Plaintiff MARSHA SCRIBNER FILED ; N D O R S E D 2012 JUL-5 PH |:06 SACRAMENTO COURTS DEPT #53 #54 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SACRAMENTO MARSHA SCRIBNER, an individual; Plaintiff, V. CALIFORNIA LOAN SERVICING, LLC, a business entity; FRANK YAN, an individual; JAMES SALONDAKA, an individual; SOME MORTGAGE BANKERS, INC., a business entity; BANK OF AMERICA, a business entity; and DOES 1 through 100, inclusive, Defendants. Case No.: 34-2012-00119413 First Amended Complaint for Damages and Equitable Relief for: 1. Fraud 2. Breach of Fiduciary Duty 3. Negligence 4. Violation of Cal. Bus. & Prof. Code §17200 et seq. 5. Negligent Misrepresentation 6. Intentional Infliction of Emotional Distress Demand for Jury Trial PRELIMINARY ALLEGATIONS 1. MARSHA SCRIBNER ("Plaintiff') is the victim offraudulentactivities committed by her lender and brokers in connection with a residential mortgage loanfransaction("Loan"). Although Plaintiff has diligently met her obligations relating to the Loan, she continues to suffer damages relating to the fraudulent activities of her lender and broker. /// /// /// 1 FIRST AMENDED COMPLAINT
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Jamil L. White (Bar No. 244028) Michael D. Maloney (Bar No. 208297) LOUIS I WHITE 5600 H Street, Suite 100 Sacramento, Califomia 95819 Telephone: (916) 594-7241 Facsimile: (916) 594-7247
Attomeys for Plaintiff MARSHA SCRIBNER
FILED ; N D O R S E D
2012 JUL-5 PH |:06
SACRAMENTO COURTS DEPT #53 #54
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SACRAMENTO
MARSHA SCRIBNER, an individual;
Plaintiff,
V.
CALIFORNIA LOAN SERVICING, LLC, a business entity; FRANK YAN, an individual; JAMES SALONDAKA, an individual; SOME MORTGAGE BANKERS, INC., a business entity; BANK OF AMERICA, a business entity; and DOES 1 through 100, inclusive,
Defendants.
Case No.: 34-2012-00119413
First Amended Complaint for Damages and Equitable Relief for:
1. Fraud 2. Breach of Fiduciary Duty 3. Negligence 4. Violation of Cal. Bus. & Prof. Code
§17200 et seq. 5. Negligent Misrepresentation 6. Intentional Infliction of Emotional
Distress
Demand for Jury Trial
PRELIMINARY ALLEGATIONS
1. MARSHA SCRIBNER ("Plaintiff') is the victim of fraudulent activities committed by her
lender and brokers in connection with a residential mortgage loan fransaction ("Loan"). Although
Plaintiff has diligently met her obligations relating to the Loan, she continues to suffer damages
relating to the fraudulent activities of her lender and broker.
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1 FIRST AMENDED COMPLAINT
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2. Plaintiff is the rightfiil owner of real property located in Sacramento County and
commonly known as 8822 BREAKER POINT COURT, ELK GROVE, CA 95758 ("Property").
Venue is therefore proper in Sacramento County.
PARTIES
3. At all times relevant. Plaintiff was and is an individual residing in the State of Califomia,
County of S acram ento.
^ 4. Plaintiff is informed, believes, and thereon alleges, that at all times mentioned herein,
8 CALIFORNIA LOAN SERVICING, LLC ("CAL-LOAN") is a diversified financial marketing
J g business practices, as defined in the Califomia Business and Professions Code § 17200 et seq. As
applied, Califomia Business and Professions Code § 17200 et seq. borrows violations from other
statutes and laws. Plaintiffs Califomia Business and Professions Code § 17200 allegations are
tethered to Plaintiffs causes of action for Fraud, Breach of Fiduciary Duties, and Negligence as
alleged above.
68. As a result of Defendants' wrongful conduct. Plaintiff has suffered various damages and
injuries according to proof at trial.
69. Plaintiff seeks injunctive relief enjoining Defendants from engaging in the unfair business
practices described herein.
70. Plaintiff ftirther seeks restitution, disgorgement of sums wrongfully obtained, costs of suit,
reasonable attomeys' fees, and such other and ftirther relief as the Court may deem just and
proper.
12 FIRST AMENDED COMPLAINT
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1 FIFTH CAUSE OF ACTION
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Negligent Misrepresentation (Against All Defendants)
72. Plaintiff incorporates all allegations of this complaint and re-allege them as though they
were ftilly set forth herein.
73. As indicated above. Defendants made certain representations to Plaintiff, and asserted
them to be tme.
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8 74. Defendant BOFA's authorized representatives negligentiy made false and misleading
9 statements regarding material facts including, but not limited to, BOFA's authorized
representatives infomiing Plaintiff that they would permanentiy modify her loan, when the
actions of Defendant BOFA are in sharp confrast to that representation and is done with the intent
of stringing along Plaintiff until she becomes delinquent on her loan. Thereby creating an
artificial default.
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15 75. Defendants BROKERS negligently misrepresented material facts. Defendant CAL-
16 LOAN, through its agents YAN and SALONDAKA, promised Plaintiff that it would act in her
17 best interests and secure for her the best loan available. Defendants BROKERS fiirther promised
18 that Plaintiff could later refinance the loan. These promises were false and misleading.
19 76 Defendants BROKERS failed to disclose significant terms pertaining to the Loan.
20 Defendants concealed that Plaintiffs monthly Loan payments for the first ten (10) years would be
22 interest only. Likewise, Defendants failed to disclose to Plaintiff the tme interest schedule or
22 adjustment rate of the Loan, or the impact of these terms on the total cost of the Loan.
77. These representations and assertions were not tme.
78. Defendants had no reasonable grounds for believing the representation to be tme when
they made it.
79. Defendants intended that Plaintiff rely upon their representations.
80. Plaintiff has been damaged as a result of each Defendants' misrepresentations, as
indicated herein. Plaintiff is entitled to actual damages including, but not limited to, loss of
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money and property including but not limited to loss of down payment, loss of loan payments,
loss of equity, losses through overcharges, unfavorable loan terms, incurred attomeys' fees and
costs to save her home, a loss of reputation and goodwill, destmction of credit, severe emotional
disfress, loss of appetite, finisfration, fear, anger, helplessness, nervousness, anxiety, sleeplessness,
sadness, and depression, according to proof at trial but within the jurisdiction of this Court.
81. Plaintiffs reliance on Defendants' representations was a substantial factor in causing her
harm. SIXTH CAUSE OF ACTION
Intentional Infliction of Emotional Distress (Against All Defendants)
82. Plaintiff incorporates all allegations of this complaint and re-alleges them as though they
were fully set forth herein.
83. Defendants' conduct, as alleged herein, constitutes intentional infliction of emotional
distress.
84. Defendants' conduct, by way of the intentional and/or negligent misrepresentations
described herein, was oufrageous and purposeful. Defendants employed numerous
misrepresentations in order to wrongfully induce Plaintiff into an unsustainable loan that
ultimately will lead to the loss of her home.
85. Defendants undertook these actions with the intention of causing Plaintiff emotional
disfress, or a reckless disregard of the probability of causing Plaintiff emotional disfress.
86. Defendants knew or should have known that misrepresenting to Plaintiff that they had
been approved for a home loan with specific terms and then providing a loan with different and
more burdensome terms which would eventually cause her to lose her home and would cause
Plaintiff to suffer severe emotional disttess.
87. Plaintiff did in fact suffer severe emotional disfress in the form of conftision, frustration,
fear, anguish, nervousness, helplessness, anxiety and shock as a result of Defendants' abusive
conduct. For these reasons. Defendants are guilty of malice, fraud and/or oppression, as defined
in Califomia Civil Code § 3294. Defendants' actions were malicious and willftil, in conscious
disregard of the rights and safety of Plaintiff, and calculated to injure Plaintiff. Accordingly,
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Plaintiff is entitled to recover punitive damages from Defendants pursuant to Califomia Civil
Code § 3294, in an amount according to proof
DEMAND FOR JURY TRIAL AND PRAYER FOR DAMAGES
WHEREFORE, Plaintiff MARSHA SCRIBNER demands a tiial by jury. Plaintiff prays
g for a judgment and order against Defendants, as follows:
7 1. That judgment is entered in Plaintiffs favor and against Defendants, and each of them;
8 2. For an order requiring Defendants to show cause, i f they have any, why they should not be enjoined as set forth below, during the pendency of the action;
9 . . . 3. For a temporary restraining order, preliminary and permanent injunction preventing
20 Defendants, or anyone acting in concert with them, from collecting on the subject loan and from causing the Property to be sold, assigned, fransferred to a third-party, or taken by
21 anyone or any entity;
22 4. For an order stating that Defendants engaged in unfair business practices;
23 5. For damages, disgorgement, and injunctive relief;
24 6. For compensatory and statutory damages, attorneys' fees, and costs according to proof at trial;
15 7. For exemplary damages in an amount sufficient to punish Defendants' wrongful conduct
2 5 and deter ftiture misconduct;
27 8. For such other and ftirther relief as the Court may deem just and proper.
18 DATED: July 5,2012 Respectftilly submitted,
LOUIS I WHITE
22 JAMIL L. WHITE MICHAEL D. M.
23 Attomeys for MARSHA SCRIB
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PROOF OF SERVICE
Scribner v. California Loan Servicing, LLC Sacramento County Superior Court Case No. 34-2012-00119413
STATE OF CALIFORNIA, COUNTY OF SACRAMENTO I am employed in the County of Sacramento, State of Califomia. I am over the age of 18
and not a party to the within action. My business address is 5600 H Street, Suite 100, Sacramento, Califomia 95819.
On July 5, 2012,1 served the foregoing document described as:
PLAINTIFF'S FIRST AMENDED COMPLAINT
On all interested parties in this action by placing a tme copy thereof enclosed in sealed envelopes addressed as stated on the attached service list:
[X ] BY MAIL-1 deposited such envelope in the mail in Sacramento, Califomia. The envelope was mailed, with postage thereon fully prepaid. I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon ftilly prepaid at Sacramento, Califomia in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid i f postal cancellation date or postage meter date is more than one (1) day after date of deposit for mailing affidavit. [ ] BY PERSONAL SERVICE-1 caused such envelope to be delivered by a process server employed by First Legal. [ ] BY OVERNIGHT DELIVERY-1 deposited such envelope for the collection and
delivery by Federal Express Ovemight Delivery service, with delivery fees paid or provided for in accordance with ordinary business practices. I am "readily familiar" with the firm's practice of collection and processing packages for ovemight delivery by Federal Express Ovemight for receipt on the same day in the ordinary course of business.
I declare under penalty of perjury under the laws of the State of Califomia that the above is tme and correct.
Executed on July 5, 2012, at Sacramento, Califomia.
...... J<rDlCEY YURf SAN
PROOF OF SERVICE
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SERVICE LIST
BRYAN CAVE LLP C. Scott Greene Andrea M. Hicks Margarita Calpotura 333 Market Sfreet, 25th Floor San Francisco, CA 94105
Counsel for Defendant, Bank of America
Frank Yan 2112 60th Avenue Post Office Box 221703 Sacramento, CA 95822
Defendant
James Salondaka 3871 fron Wheel Court Rocklin, CA 95765
As an Individual Defendant and as Agent for Defendant, California Loan Servicing LLC
Joseph William Davies 8324 Allison Avenue La Mesa, CA 91942
As Agent for Service of Process for Defendant, SCME Mortgage Bankers, Inc.