KOPOPELLI COMMUNITY WORKSHOP CORPORATION
CATHERINE BRYAN
BETTY BRYAN
In Pro Per
3745 Adams Street
Carlsbad CA. 92008
In Pro Per
SUPERIOR COURT OF CALIFORNIA
SAN DIEGO JUDICIAL DISTRICT
CENTRAL DIVISION
KOPOPELLI COMMUNITY WORKSHOP CORPORATION, CATHERINE BRYAN and BETTY BRYAN,Plaintiffs,
SELECT PORTFOLIO
SERVICING, INC., a Utah corporation
doing business in the State
of California; MTGLQ INVESTORS, LP;
a limited partnership, wholly owned
by Goldman Sachs Bank and doing
business in the State of California,
Quality Loan Service Corporation, a
California Corporation,
AND DOES individuals 1 to 100,
inclusive; and ROES corporations
1 to 30, inclusive; and all other
persons and entities unknown claiming
any right, title, estate, lien, or
interest in the real property
described in the complaint adverse
to Plaintiffs ownership, or any
cloud upon Plaintiffs= title thereto,
does
Defendants. / )
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) / Case No. 37-2008-00095207-CU-OR-CTL
and 37-2009-00040923-CU-OR-NC (consolidated)
VERIFIED COMPLAINT
1. TO SET ASIDE TRUSTEE’S SALE;
2. TO CANCEL TRUSTEE’S DEED;
3. QUIET TITLE;
4. RESCISSION;
5. ELDER FINANCIAL ABUSE;
6. ACCOUNTING.
Plaintiffs complain of Defendants herein, and each of them, and alleges as follows:
FACTS COMMON TO ALL CAUSES OF ACTION
1. Plaintiff, BETTY BRYAN is, and at all time relevant to this Complaint, was an individual residing in San Diego County, State of California, on the premises of the subject property. BETTY BRYAN is a person of 87 years of age.
2. Plaintiff, CATHERINE BRYAN, is and at all time relevant to this Complaint, was an individual residing in San Diego County, State of California, on the premises of the subject property.
3. Plaintiff, KOPOPELLI COMMUNITY WORKSHOP CORPORATION is a State of California corporation owning title to subject property in Carlsbad California, is a public benefit non-profit community service organization organized for the purpose of creating avenues of foreclosure relief for victims of mortgage lending fraud and illegal debt collection practices.
4. Defendant MGTLQ INVESTORS, LP., (hereinafter “MGTLQ”) a limited partnership wholly owned by Goldman Sachs Bank and doing business in the State of California and upon information and belief claims to be successor beneficiary of the promissory note secured by the Subject Property.
5. Defendant SELECT PORTFOLIO SERVICING INCORPORATED, (hereinafter “SELECT”) A mortgage servicing corporation, Licensed to do business by the State of California, Department of Corporations, under its rules and guidelines.
6. Defendant QUALITY LOAN SERVICE CORPORATION is a debt collector acting on behalf of other known and unknown defendants located in the city of San Diego Licensed to do business by the State of California, Department of Corporations, under its rules and guidelines, who was engaged in the process of conducting a foreclosure of the Subject Property.
7. The Defendants, and each of them, in doing the acts alleged herein, were acting as the agents and/or principals of the other defendants and/or were acting in concert with the other defendants. Therefore, each of the aforesaid defendants, as agents of the other, are jointly and severally responsible for the acts and/or omissions of the other as their conduct relates to the subject transactions as hereinafter alleged.
8. Plaintiffs are ignorant of the true names, capacities, or claims of all unknown persons and entities claiming any right, title, estate, lien, or interest in the real property described in the Complaint adverse to plaintiffs’ ownership, or any cloud upon plaintiffs’ title thereto, named herein as such including all DOES 1-100; ROES 1-100 inclusive and sues such unknown or fictitiously-named defendants by such fictitious names or unknown capacities as having said interest in said subject property. Each of the aforesaid defendants is in some manner liable to plaintiff or claims some right, title, or interest in the subject property adverse to the plaintiff, or both.
9. At all times herein alleged, the defendants, and each of them, were acting in the course and scope of such capacity as such in the wrongful foreclosure proceedings filed against the Subject Property thereof as agents of the other named and unknown defendants.
10. Venue is appropriate within the San Diego Judicial District by virtue of the fact that the Subject Property is situated in San Diego County, the deed of trust affecting the Subject Property was executed in the jurisdiction, and that the wrongful acts of the defendants complained of herein also occurred in the jurisdiction.
11. Plaintiffs, Betty Bryan and Catherine Bryan purchased the subject property for full price in 1950, and held the subject property title free and clear of any mortgages for over 50 years, until plaintiff Betty Bryan was victimized by loan officers who committed elder financial fraud, when solicited Betty Bryan an illegal, unsustainable and unconscionable sub-prime mortgage loan.
12. Plaintiffs, Betty Bryan and Catherine Bryan are entitled to lifetime residency on the subject property, under their operative Memorandum of Understanding with Kokopelli Workshop Corporation, and therefore for all times relevant herein, entitled to actual possession of said premises as their principal and only dwelling place, and were in possession at the time of all the occurrences, and lawfully residing on the Subject Property. A true and correct copy of the Title in the name of plaintiffs have been attached to the complaint as Exhibit I and by this reference is made a part of the Complaint.
13. On or about January 1, 2007, plaintiffs sought the advice of a predatory lending specialist attorney, Nathan Fransen of Corona California who informed plaintiffs that Betty Bryan’s 2005 Novell Financial Service mortgage loan contract was unsustainable and unconscionable and fraught with over 21 separate violations of the Truth In lending Act, and also due to the suspected criminal violations committed by the originating loan officers who deprived plaintiff Betty Bryan of her loan funds by claiming to invest them and subsequently claiming to have lost the funds due to mysterious errors in underwriting, recommended that the 2005 Novell Financial Service mortgage loan contract was eligible to be rescinded.
14. On the advice of Counsel, Nathan Fransen, on or about February 5, 2007 plaintiffs loan officer, Daniel Christian, duly delivered a Notice of Rescission, Qualified Demand for Information, Accounting and Substantiation of Debt, on plaintiff’s behalf, by FAX and return receipt USPS certified mail to defendant SELECT which was plaintiff Betty Bryan’s only contact with her creditor. Said Notice of Rescission was Qualified, pursuant to 15 USC 1635(a) and its implementing Regulation Z, 12 C.F.R. § 226.23. and rescinded the subject property promissory note and offered to tender the full amount of the equitably rescinded loan balance using proceeds from an approved bank loan and equitable refinance from lender, Equihouse Funding. Plaintiffs concomitantly requested a reduced pay-off demand be submitted to the escrow opened to facilitate the refinance transaction.
15. The required Declaratory Judgment Action was not filed on the creditor’s behalf, by defendant Select, Opposing Plaintiff Betty Bryan’s Qualified Notice of Rescission during the following 20 days as is required by 15 USCC 1625(b), nor was defendant Select compliant with its deadline and obligation to terminate the creditor’s security interest in the subject property title and promissory note.
16. On or about February 5, 2007 Plaintiff’s loan officer, Daniel Christian and bank officer Sterling Thompson, made several urgent requests for a rescinded payoff invoice, by telephone and Fax to defendant Select, who was not disposed to provide plaintiff’s approved HUD lender with the required mortgage payoff invoice, as equitably reduced by rescission. A true and valid copy of plaintiff’s February 5, 2007 Notice of Rescission, letter of loan approval and lender Equihouse Funding’s demand letter to defendant Select, incorporated here by reference have been attached to this complaint as Exhibit II and by this reference are made a part of the Complaint.
17. Reasonable discovery and examination by the Court of Plaintiff’s Document titled, Notice of Rescission by Equity Owner, recorded at the San Diego County Recorder’s Office, pursuant to State of California Civil Code 1695.14 (a), (b), (c), on April 12 2010, incorporated here by reference, will provide evidence that Defendant Select, Defendant MTGLQ and Defendant Quality were all duly served with legal notice and made aware that the equitable title to the subject property, and the subsequent mortgage was "a nullity and no longer of no legal consequence." A true and valid copy of the document, incorporated here by reference, titled Notice of Rescission by Equity Owner, has been attached to this complaint as Exhibit III and by this reference is made a part of the Complaint.
18. On or about October 21, 2008, defendant Select’s agent, Bill Kosh, recorded a document entitled Corporate Deed of Trust therein fraudulently transferring and assigning interest in the subject property lawfully voided promissory note, acting Attorney In Fact for its creditor, defendant Select, therein illegally and wrongfully misrepresented an invalid and untrue contractual representations and warranty that the subject property was eligible for assignment transfer or sale when in fact it had been duly advised and served notice, that the power of sale or assignment in the subject property promissory note was void by operation of the law as of February 28, 2007. A true and valid copy of the document, incorporated here by reference, titled Corporate Assignment of Deed of Trust, has been attached to this Complaint as Exhibit IV and by this reference is made a part of the Complaint.
19. On or about June 13, 2009 defendant MTGLQ was duly served and delivered a qualified dispute of the defendants debt, Notice of Rescission, Qualified demand for information and substantiation of debt, including all records and evidence of the defendants valid 2007 voiding of the subject property promissory note. A true and valid copy of the above mentioned June 12, 2009, Qualified Notice of Rescission, incorporated here by reference, and certified proof of delivery, has been attached to this complaint as Exhibit V, and by this reference is made a part of the Complaint.
20. On or about July 6, 2009, attorney Stephan C. Wichmann responded to the plaintiff’s above mentioned Notice of Rescission on behalf of defendant MTGLQ stating therein that defendant MTGLQ was unfamiliar with the debt or the property in question and instructed plaintiffs to contact Goldman Sachs, for all plaintiffs’ rescission issues. A true and valid copy of the above mentioned communication from attorney Stephan C. Wichmann on behalf of defendant MTGLQ, incorporated here by reference, has been attached to this complaint as Exhibit VI, and by this reference is made a part of the Complaint.
21. On or about March 2, 2009, Attorney Mathew P. Learned filed a verified declaration on behalf of defendant MTGLQ, supporting defendant MTGLQ’s, MOTION FOR RELIEF from Debtor Betty Bryan’s Automatic Stay of Trust Deed Sale of the Subject Property, in Bankruptcy No.08-11256 T 13.
22. Reasonable discovery and examination by the Court of the above mentioned defendant MTGLQ, MOTION FOR RELIEF, would demonstrate that Defendant MTGLQ therein claimed to be in ownership possession of the subject property promissory note, and therein assigned a fair market value to the subject property of $2,900,000, and furthermore moved the Court and demanded relief from the debtor’s automatic stay against sale of the subject property. A true and valid copy of the document incorporated here by reference, titled MOTION FOR RELIEF from Debtor Betty Bryan’s Automatic Stay of proposed subject property Trust Deed Sale, by defendant Quality, has been attached to this complaint as Exhibit VII, incorporated here by reference, and by this reference is made a part of the Complaint.
23. On or about October 21, 2009 defendant MTGLQ recorded a document titled Trustee’s Deed Upon Sale, indicating that it was the new “equity purchaser” who had acquired ownership and title to the subject property, by purchasing its own sale at auction the sum of $500,000. A true and valid copy of the document incorporated here by reference, titled Trustee’s Deed Upon Sale, has been attached as this complaint as Exhibit VIII and by this reference is made a part of the Complaint.
24. On or about November 16, 2009, defendant MTGLQ served plaintiffs with a Notice of Eviction demand to deliver up their residence and principal dwelling place of 60 years. A true and valid copy of the document incorporated here by reference, titled Notice of Eviction, has been attached to this complaint as Exhibit IX and by this reference is made a part of the Complaint.
25. On or about February 1, 2010, a jury of 12 persons, determined that plaintiffs were entitled to possession of the subject property and that defendant MTGLQ had no right to further prosecute or evict plaintiffs, A true and valid copy of the document incorporated here by reference, titled February 1, 2010 Special Verdict by Jury, has been attached to this complaint as Exhibit X and by this reference is made a part of the Complaint.
FIRST CAUSE OF ACTION
(To Set Aside Trustee’s Deed Upon Sale, as to all Defendants)
26. Plaintiffs at all times relevant to this Complaint, maintained their home and principal dwelling place on the premises of the Subject Property commonly known as 3745 Adams Street, Carlsbad, California 92008 herein after known as “The Subject Property”. The legal description for The Subject Property incorporated here by reference, has been attached to this complaint as Exhibit XI, and by this reference and made a part of this complaint. Defendant MTGLQ Investors L.P. claims to be the equity purchaser under the above mentioned Trustee’s Deed Upon Sale, from defendant QUAILTY LOAN SERVICE.
27. Plaintiffs allege that the sale is invalid, and consequently there is no legally enforceable trustee sale guarantee attached to the alleged conveyance. The aforesaid instrument is causing a cloud to exist on plaintiffs’ title. The property was wrongfully sold at public auction by defendant QUALITY LOAN SERVICE acting by and through an alleged appointed trustee to the defendant MTGLQ.
28. Said auction was wrongful by reason of the fact that, all of the defendants in this action were served and duly noticed that the downstream holder in due course security interest that previously encumbered the subject property was void, as of February 28, 2007, in accordance with plaintiff’s right of rescission, Under Federal Statues and Provisions of the Truth In Lending Act and State of California Law under California Civil Code 1695.14 a, b, and c.