complaint foreclosure with restitution coa

8/7/2019 Complaint Foreclosure With Restitution Coa

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FIRST AMMENDED COMPLAINT:

1) COMPLAINT TO QUIET TITLE TO

REAL PROPERTY

(VERIFIED)

2) COMPLAINT FOR DECLARATORY

RELIEF

(VERIFIED)

3) COMPLAINT FOR RESTITUTION

(UNJUST ENRICHMENT)

(VERIFIED)

COMPLAINT FILED:

JUDGE:

Plaintiffs allege:

STATEMENT OF FACTS

1. Plaintiffs, are married

and are residents of the City of Homeowner address, County of San

Diego, and State of California.

2. The subject property is located at , in the

City of Homeowner address, County of San Diego, in the State of

California.

3. The subject property is identified by Parcel ID Number

, and is further identified as:

, in the City of Homeowner address, County of San Diego, State

of California, according to map thereof no. , filed in the

office of the County Recorder of San Diego County,

.


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4. The Plaintiffs reside together at the subject property.

5. Defendant, Bank of New York Mellon Corporation, both

individually and as trustee for the Certificate holders

is and at all

times mentioned herein a Corporation organized and existing

under the laws of the State of Delaware, with principal

offices located at One Wall Street, New York, New York, 10286.

6. Defendant, CWMBS, Inc, is and at all times mentioned herein a

Corporation organized and existing under the laws of the State

of Delaware, with principal offices located at

7. Defendant, Old Republic Default Management Services, is and at

all times mentioned herein a division of Old Republic National

Title Insurance Company, a Corporation organized and existing

under the laws of the State of Minnesota with principal

offices located at 400 Second Avenue South, Minneapolis, MN

55401-2499, and doing business at 500 City Parkway West, Suite

200, Orange, California 92868-2913.

8. Defendant, Litton Loan Servicing, LP, is and at all times

mentioned herein a Corporation organized and existing under

the laws of the State of Texas, with principal offices located

at 4828 Loop Central Drive, Houston, Texas 77081.

9. Defendant, Mortgage Electronic Registration Systems, Inc. (aka

MERS), is and at all times mentioned herein a Corporation

organized and existing under the laws of the Commonwealth of

Virginia, with principal offices located at 1818 Library

Street, Suite 300, Reston, Virginia 20190.

10. Defendants DOES 1 through 10, inclusive, are sued herein


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under fictitious names for the reason that the true names of

said defendants are unknown to the Plaintiffs, and Plaintiffs

will ask leave to amend this Complaint when the true names are

ascertained.

11. The Plaintiffs are informed, and believe and thereon allege

that at all times herein mentioned, each of the defendants

sued herein was the principal and agent of each of the

remaining defendants and was at all times acting within the

purpose, scope and consent of their co-defendants.

12. Plaintiffs are the owners of, reside at, and are entitled

to possession of the subject property located at ,

with title held as

as Husband and Wife.

13. Prior to title to the property was held

as , with the Plaintiffs

as Trustees of the family trust.

14. Prior to , and beginning in November 30, 1998,

title to the property was held as

15. On or about the Plaintiff,

, executed a Mortgage Note relative to the property in the

sum of $465,000.00 (Four Hundred Sixty Five Thousand Dollars

and NO/100 Cents) in favor of Countrywide Home Loans, Inc.

16. Also, on or about December 2, 2002 the Plaintiff,

, executed a Deed of Trust in favor of Countrywide

Homes Loans, Inc. as Lender, CTC Real Estate Services as

the Trustee, and Defendant Mortgage Electronic Registration


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Systems, Inc., noting that The beneficiary of this Security

Instrument is MERS (solely as nominee for Lender and Lenders

successors and assigns) and the successors and assigns of

MERS.

17. The executed Deed of Trust reserved to the Lender

(Countrywide Home Loans, Inc.) the right to appoint a

successor trustee.

18. The Deed of Trust was recorded with the County of San Diego

Recorders Office on

19. The Plaintiff, , voluntarily made timely

payments to Countrywide Home Loans, Inc. under the Note,

secured by the Deed of Trust, at all times such payments were

demanded by Countrywide Home Loans, Inc.

20. The Plaintiffs have no contractual relationship of any kind

with any of the Defendants.

21. The Plaintiffs have no known privity of contract of any

kind with any of the Defendants.

22. The Plaintiffs deny any contractual relationship or privity

of contract exists as between the Plaintiffs and any of the

Defendants.

23. There is no record, note, or deed recorded with the San

Diego County Recorders office that documents or supports any

purported right to collect any moneys from the Plaintiffs by

any of the Defendants relative to the property identified

above, and the Mortgage Note and related Deed of Trust

identified above.

24. There is no known writing of any kind, recorded or


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unrecorded, which establishes that the original Mortgage Note

identified above was endorsed and transferred to any of the

Defendants.

25. The Plaintiffs have not executed any note or deed of trust

of any kind relative to the property in question in favor of

any of the Defendants.

26. On June 26, 2009 Recontrust Company, N.A., on behalf of

Defendant Mortgage Electronic Registration Systems (MERS),

caused to be filed with the San Diego County Recorders Office

a Notice of Default and Election to Sell under Deed of Trust

as against the Plaintiffs property identified above demanding

the sum of $13,291.82, or threatening the loss of the

Plaintiffs property to non-judicial foreclosure absent

payment as demanded.

27. On or about July 1, 2009, Defendant Litton Loan Servicing,

LP demanded payments under the Note and Deed of Trust

identified above, claiming to be the appointed loan servicer

entitled to collect same on behalf of an unidentified

beneficial owner of the Mortgage Note.

28. The Plaintiffs did not tender the payments as demanded.

29. On October 21, 2009 the Plaintiff, HomeownerHomeowner Homeowner, paid

the Defendant, Litton Loan Servicing the sum of $28,011.96 as

demanded at that time to prevent the Defendants threatened

non-judicial foreclosure action with respect to Plaintiffs

property.

30. On October 26, 2009 Recontrust Company, N.A., acting as

the Beneficiary under a Deed of Trust dated November 25,


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2002, caused to be filed with the San Diego County

Recorders Office a Notice of Rescission of Declaration of

Default and Demand for Sale and Notice of Default.

31. On February 10, 2010 a purported Substitution of Trustee

was executed before a notary, Ms. Karen Quiller, by a Marti

Noriega, identified as an Assistant Vice President of

Defendant Mortgage Electronic Registration Systems, Inc.,

purporting to remove the original trustee, CTC Real Estate

Services, and in place and instead appoint Defendant Old

Republic Default Management Services. The Substitution was

thereafter recorded with the San Diego County Recorders

office.

32. Ms. Marti Noriegas claim to be an Assistant Vice

President of Defendant Mortgage Electronic Registration

Systems, Inc (MERS), is and was a false statement.

33. At all relevant times, Ms Noriega was actually a long time

employee of Defendant, Litton Loan Servicing, LP.

34. The Notary on the document referenced in Paragraph 31 above

is also a long time employee of the Defendant Litton Loan

Servicing.

35. Because the Substitution of Trustee referenced in

Paragraph 31 above was not signed by an actual officer of

Defendant Magnetic Electronic Registration System (MERS), and

because the Lender, Countrywide Home Loans, Inc. reserved the

right to appoint a successor trustee to itself, and no one

else, the Plaintiffs dispute the validity of the substitution.


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36. On February 11, 2010 the Defendant Old Republic Default

Management Services caused to be filed at the San Diego County

Recorders Office a Notice of Default and Election to Sell

under Deed of Trust as against the Plaintiffs property

described in Paragraph 2 and 3, above, demanding the sum of

$14,334.35, or threatening the loss of the Plaintiffs

property to non-judicial foreclosure absent payment as

demanded.

37. Together with the Notice of Default, the Defendant Old

Republic Default Management Services caused to be filed a

Declaration of Compliance with California Civil Code Section

2923.5(b) dated February 4, 2010.

38. On February 15, 2010 the Plaintiff, HomeownerHomeowner Homeowner, by

letter advised the Defendant Litton Loan Servicing LP that the

Plaintiff did not believe the Defendant was the true note

holder, and made specific demands on the Defendant to document

the Defendants claimed right to collect any moneys under the

Note and Deed of Trust. The following was requested:

RE: Litton Loan #:

Property Address: homeowner address Drive

Homeowner address, CA 91910

a. The name, address, and telephone number of the investor

who purports to hold the note on the above property.

b. The name, address, and telephone number of the legal

representative for the investor who purports to hold


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the note on the above property.

c. Copies of all documents pertaining to the origination of

the mortgage note including the loan application, Right

to Cancel, Deed of Trust, note, adjustable rate note,

Truth in Lending statements, Good Faith Estimate (GFE),

HUD 1, appraisal, and all required disclosures and rate

sheets associated with this transaction for the above

referenced loan. The copies should be legible and all

documents shall be copied in their entirety.

d. Copies of all endorsements relative to the original note

and deed of trust, beginning with the original lender,

through the current owner of the note and deed of trust.

e. A fixed date and time, giving at least 30 days notice, to

me or a legal representative to inspect and verify the

original note, deed of trust, and all relevant

endorsements.

f. Copies of all assignments of the loan from the original

note holder, through the present note holder, including

copies of my written consent to said assignments, and or

a contractual reference that you believe purports to

allow assignment without consent.

g. Documentation regarding any insurance, incentive,

agreement, loss sharing agreement, or other scheme the

investor has arranged, purchased, or obtained which

provides for any compensation of any kind from any source

in the event of a default, short sale or foreclosure

relative to the property, note, and/or deed of trust


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referenced above.

h. A copy of the life of loan history including all payments

made, all fees incurred, what has been paid out of the

escrow account, and how all payments were applied. This

information should cover the entire life of the loan, and

must include:

i. For all (non-interest or principal) fees and

charges made or alleged, please provide a specific

contractual reference that establishes the right to

such a fee or charge.

ii. Please include a complete accounting of the manner

the $28,011.96 paid on October 21, 2009 was

applied, specifically providing a contractual

reference to justify any portion of the payment not

applied to interest and/or principal.

iii. Please include a complete accounting of the charge

of $715.75 referenced in the January 15, 2010

Billing Statement referencing later charges

due. Please provide a complete accounting as to

how these late charges were purported to accrue,

and a specific reference to the loan contract that

allows these charges.

iv. Please include a complete accounting of the charge

of $2,430.07 referenced in the January 15, 2010

Billing Statement referencing Other Fees Due.

Please provide a complete accounting as to how

these other fees were purported to accrue, and a


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specific reference to the loan contract that allows

these charges.

i. A copy of any and all documents filed with the San Diego

County recorder with reference to the above note and deed

of trust.

j. A copy of all billing statements sent with respect to the

above reference loan.

k. A copy of all notices set with respect to the above

referenced loan.

39. On or about February 24, 2010 the Plaintiff was served with

the Notice of Default filed on February 11, 2010 by

Defendant Old Republic Default Management Services.

40. On February 24, 2010 the Plaintiff wrote to the Defendant

Litton Loan Servicing LP to demand rescission of the Notice

of Default identified in Paragraph 36, based on the contents,

questions set forth in, and documents demanded by Plaintiffs

letter of February 15, 2010.

41. The Defendant Litton Loan Servicing LP never replied to

Plaintiffs letter of February 24, 2010.

42. By letter dated April 6, 2010 the Defendant Litton Loan

Servicing LP replied to Plaintiffs letter of February 15,

2010 and advised that it would not provide the answers to the

questions tendered, save to advise that: Litton Loan

Servicing LP is servicing the loan on behalf of the current

beneficial holder, the Bank of New York Mellon f/k/a The Bank

of New York.

43. The Defendant Litton Loan Servicing LP by the same letter


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dated April 6, 2010 also refused to provide the numerous and

substantial documentation requested by the Plaintiffs letter,

although the letter falsely indicated that partial compliance

of the request was being undertaken by providing copies of the

Note, Deed of Trust, Detail Transaction History, Truth-in-

Lending Disclosure Statement, Good Faith Estimate, and

Settlement Statement. No copies were actually provided.

44. On April 24, 2010 the Defendant Litton Loan Servicing, LP

again wrote the Plaintiff to indicate that the five referenced

documents that purported to be served on April 6, 2010 were

then being tendered. The letter again contained no

attachments.

45. On or about May 19, 2010 Plaintiff tendered the sum of

$29,923.52 to Defendant Old Republic Default Management

Services, which included the sum of $26,479.12 paid to

Defendant Litton Loan Servicing LP, and $3,444.40 paid to

Defendant Old Republic Default Management Services.

46. On June 3, 2010 Defendant Old Republic Default Management

Services caused to be filed a Notice of Rescission of Notice

of Default with the San Diego County Recorders Office.

47. On September 21, 2010 the original complaint in this matter

was filed as against the Defendants New York Bank Mellon, and

Old Republic Default Management Services seeking to quiet

title as against those defendants.

48. On or about November 1, 2010, the Defendant New York Bank

Mellon caused to be filed a Memorandum of Points and

Authorities in support of a Demurrer that it had filed which


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stated in a footnote on page 2: Plaintiff does not allege

that Bank of New York is the current holder of his loan. Bank

of New York represents that this is true.

49. Therefore, the Defendant Bank of New York Mellon has

confirmed in writing that it claims to be the current holder

of the Mortgage Note identified in above.

50. Notwithstanding the above statement of Defendant New York

Bank Mellon, the same Defendants appearance in this matter,

however, also indicated contrary information: Defendant Bank

of New York Mellon f/k/a The Bank of New York as Trustee for

the Certificateholders CWMBS, Inc. Asset-Backed Certificates,

Series 2002-35 (sued herein as The Bank of New York Mellon

Corporation.)

51. Therefore, it appears that the Defendant New York Bank

Mellon also concurrently maintains that it is the true holder

of the note, and also purports to hold the interest in the

Mortgage Note as a trustee for another entity, the Defendant

CWMBS, Inc.

52. The written appearance filed by New York Bank Mellon on

behalf of as Trustee for the Certificateholders CWMBS, Inc.

Asset-Backed Certificates, Series 2002-35 indicates that the

Defendants maintain that the Plaintiffs Mortgage Note has

been securitized and has been made part of Asset-Backed

Certificates, Series 2002-35, purportedly owned by Defendant

CWMBS, Inc. as part of a Mortgage Pool securitization.

53. According to the records of the Federal Securities and

Exchange Commission (SEC), the information related to Asset-


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Backed Certificates, Series 2002-35 was established by

Defendant CWMBS, Inc in a prospectus filed with the SEC.

54. At page 46 and page 47 of the prospectus filed with the SEC

the Defendant CWMBS, Inc. established the required manner

Mortgage Notes and Deeds of Trust would be placed into the

referenced security instrument, as follows:

Assignment of the Mortgage Loans. At the time of issuance

of the certificates of a series, the depositor will cause

the mortgage loans comprising the related trust fund to be

assigned to the trustee, together with all principal and

interest received by or on behalf of the depositor on or

with respect to the mortgage loans after the cut-off date,

other than principal and interest due on or before the cut-

off date and other than any retained interest specified in

the related prospectus supplement. The trustee will,

concurrently with the assignment, deliver the certificates

to the depositor in exchange for the mortgage loans. Each

mortgage loan will be identified in a schedule appearing as

an exhibit to the related pooling and servicing agreement.

The schedule will include information as to the outstanding

principal balance of each mortgage loan after application

of payments due on the cut-off date, as well as information

regarding the mortgage rate, the current scheduled monthly

payment of principal and interest, the maturity of the

loan, the Loan-to-Value Ratio at origination and other

specified information.


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In addition, the depositor will deliver or cause to be

delivered to the trustee (or to the custodian) for each

mortgage loan

- the mortgage note endorsed without recourse in blank

or to the order of the trustee, except that the depositor

may deliver or cause to be delivered a lost note affidavit

in lieu of any original mortgage note that has been lost,

- the mortgage, deed of trust or similar instrument with

evidence of recording indicated on it (except for any

mortgage not returned from the public recording office, in

which case the depositor will deliver or cause to be

delivered a copy of the mortgage together with a

certificate that the original of the mortgage was delivered

to the recording office or some other arrangement will be

provided for),

- an assignment of the mortgage to the trustee in

recordable form and

- any other security documents specified in the related

prospectus supplement or the related pooling and servicing

agreement.

55. The Defendant CWMBS, Inc., in creating the security

instrument which Defendant New York Bank Mellon purports to

hold the Mortgage Note and Deed of Trust related to the

property in question created a contemporaneous requirement

that the original endorsed Note and Deed of Trust was required

to be tendered to the Defendant at the initiation of the

securitization.


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56. The Plaintiffs are informed and believe and on said

information and belief alleged that Defendant CWMBS, Inc. does

not in fact possess the 4 documents required under the

prospectus filed with the Federal Securities and Exchange

commission as it relates to the Mortgage Note and the Deed of

Trust identified above.

57. As part of a related Pooling and Service Agreement (PSA)

the Defendant CWMBS, Inc. provided an explicit method a

Mortgage Note would be transferred to the Mortgage Pool.

58. As is common in all PSAs the Mortgage Note Holder would be

required to deliver the original mortgage note, endorsed by

manual or facsimile signature in blank in the following form:

Pay to the order of ___________ without recourse, with all

intervening endorsement that show the complete chain of

endorsement from the originator to the Person endorsing the

Mortgage Note.

59. Accordingly, based on the very contract that created the

PSA the Defendants are required to have possession of the

original Mortgage Note and the original Deed of Trust,

together with all relevant endorsements such that the complete

chain of endorsement is demonstrable and verifiable, and

subject to discovery in the pending cause of action.

60. The Plaintiffs are informed, believe, and on said

information and belief assert that none of the Defendants are

in possession of the original Mortgage Note and Deed of Trust

and are not in possession of the endorsements required by the

very contract that served to create the securitization


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agreement that claims to hold the Note and Deed of Trust.

61. On October 6, 2010 the Defendant Old Republic Default

Management Services, again purporting to act as Trustee,

caused to be filed at the San Diego County Recorders Office a

Notice of Default and Election to Sell under Deed of Trust

as against the Plaintiffs property described above, demanding

the sum of $10,731.22, or threatening the loss of the

Plaintiffs property to non-judicial foreclosure absent

payment as demanded.

62. Together with the Notice of Default, the Defendant Old

Republic Default Management Services caused to be filed an

invalid Declaration of Compliance with California Civil Code

Section 2923.5(b) dated February 4, 2010, purporting to comply

with a contemporaneous requirement of law some eight months

BEFORE the Default in question.

63. No timely Declaration of Compliance with California Civil

Code Section 2923.5(b) was filed, recorded or served on

Plaintiff by the Defendant Old Republic Default Management

Services, Inc. following the purported default of October

2010.

64. On December 28, 2010 the Plaintiff paid the Defendant

Litton Loan Servicing LP the sum of $22,802.00, which included

the approximate sum of $2,776.74 in favor of Defendant Old

Republic Default Management Services.

65. On or about December 10, 2011 the Plaintiff, HomeownerHomeowner

Homeowner, will tender the sum of $3,201.47 to Defendant Litton Loan


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Servicing, LP. as the monthly mortgage payment demanded by the

Defendant.

66. The Plaintiff will continue to make the same payment

demanded on a monthly basis pending further order of the court

and/or resolution of the pending complaint.

67. At this time, there is no non-judicial foreclosure

pending as against the Plaintiffs property by any putative

creditor, and there should be no current active Notice of

Default filed as against the property by the putative

creditors.

68. All of the acts of the Defendants as set forth above are

consistent with a claimed right or ownership of the subject

Note and Deed of Trust by the Defendants, which claimed right

and or ownership, is disputed by the Plaintiffs.

69. Plaintiffs are informed, believe, and on said information

and belief allege that the Defendants, and each of them, claim

a right title and interest in the Mortgage Note and Deed of

Trust referenced above.

70. The Plaintiffs deny the legitimacy of the Defendants

claimed right, title and interest in the Mortgage Note and

Deed of Trust referenced above.

FIRST CAUSE OF ACTION:

COMPLAINT TO QUIET TITLE OF REAL PROPERTY

71. The Statement of facts set forth in Paragraphs 1 to 18 is

incorporated herein by reference as though fully set forth

herein.


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72. Plaintiffs are the owners of the subject property as

husband and wife.

73. Plaintiffs were possessed of the above-described property

within five years of the commencement of this action.

74. Plaintiffs are informed and believe and on such information

and belief allege that Defendant New York Bank Mellon, both

individually and as Trustee for the Certificateholders CWMBS,

Inc. Asset-Backed Certificates, Series 2002-35 claims an

interest adverse to the plaintiffs in the above described real

property as claimed holders of the Note described above and as

claimed beneficiaries of the Deed of Trust described above,

based on the conduct of the Defendants, and each of them, as

more fully described in Paragraphs 20 to Paragraph 70 as set

forth above and incorporated herein by reference.

75. Plaintiffs are seeking to quiet title against the claims of

Defendant New York Bank Mellon, both individually and as

Trustee for the Certificateholders CWMBS, Inc. Asset-Backed

Certificates, Series 2002-35 as claimed holders of the Note

described above and as claimed beneficiaries of the Deed of

Trust described above. The claims of the Defendant are without

any right whatever and such Defendants New York Bank Mellon,

both individually and as Trustee for the Certificateholders

CWMBS, Inc. Asset-Backed Certificates, Series 2002-35 has no

right, title, estate, lien, or interest whatever in the above-

described property or any part thereof.

76. Plaintiffs seek to quiet title as of the date the pending

cause of action was filed.


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77. Plaintiffs are informed and believe and on such information

and belief allege that Defendant CWMBS, Inc. claims an

interest adverse to the plaintiffs in the above described real

property as claimed holders of the Note described above and as

claimed beneficiaries of the Deed of Trust described above,

based on the conduct of the Defendants, and each of them, as

more fully described in Paragraphs 20 to Paragraph 70 as set

forth above and incorporated herein by reference.

78. Plaintiffs are seeking to quiet title against the claims of

CWMBS, Inc. as claimed holders of the Note described above

and as claimed beneficiaries of the Deed of Trust described

above. The claims of the Defendant are without any right

whatever and such Defendant CWMBS, Inc. has no right, title,

estate, lien, or interest whatever in the above-described

property or any part thereof.

79. Plaintiffs seek to quiet title as of the date the pending

cause of action was filed.

SECOND CAUSE OF ACTION:

COMPLAINT FOR DECLARATORY RELIEF

80. The Statement of facts as it relates to identification of

the parties and as fully forth in Paragraphs 1 to 18 are


herein.

81. The Statement of facts as it relates to the conduct of the

parties and as fully set forth in Paragraphs 15 to 70 are



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herein.

82. An actual controversy has arisen and now exists between the

Plaintiffs and each of the Defendants concerning their

respective rights and duties in that:

a. The Plaintiffs contend that NONE of the Defendants are

the current successor or assign to Countrywide Home

Loans, Inc. relative to the Note identified above, and

therefore NONE of the Defendants, has any right seek or

obtain any payments that may be due thereunder, as well

as any remedies for non-payment that may also be set

forth therein, and that NONE of the Defendants has any

right, title or interest in the Note identified above.

b. The Plaintiffs contend that none of the Defendants has

any beneficial right, interest, or security under the

Deed of Trust identified above, and therefore none of the

defendants has any right to exercise the power of sale

granted therein, nor seek to collect any amount that may

be owed thereunder, or exercise any right granted in said

instrument.

c. Whereas the Defendants dispute the contentions set forth

in a above, and instead contend that they are in fact

the current successor or assign to Countrywide Home

Loans, Inc. relative to the Note identified above, and

they claim they are entitled to receive the payments due

thereunder, and well as all rights granted therein; and,

d. The Defendants also dispute the contentions set forth in

b above, and instead contend that they in fact maintain


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the security interest and power of sale granted in the

Deed of Trust above.

83. A judicial declaration is necessary and appropriate at this

time under the circumstances in order that Plaintiffs may

ascertain their rights and duties relative to the Note and

Deed of Trust referenced above as it relates to the claims

that are now in controversy. In addition, resolution of this

controversy will allow the Plaintiffs to know with certainty

that any payments made under the Note and Deed of Trust are

received by the true beneficial owner of same, and are

actually being credited to reduce Plaintiffs financial

obligation there under. Resolution of the controversy will also

allow the Plaintiffs the use and enjoyment of their property

without the constant threat of foreclosure, collection

efforts, and repeated filings of notices as against their

property. Finally, resolution of the controversy will allow

the Plaintiffs to remove negative credit references placed

with credit reporting agencies by the Defendants.

84. To date, the Plaintiff has incurred out-of-pocket damages

in the amount of $80,737.48, which sum increases by $3,201.47

on a monthly basis as payments will continue to be made to the

Defendants as demanded.

85. There are no administrative remedies available to the

Plaintiff to resolve the controversy.

86. The Plaintiff has attempted on numerous occasions to obtain

the name and documentation of the current holder of the Note

in question, including the letter written to the Defendant


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Litton Loans LP on April 15, 2010, but the attempts were

either ignored or rejected.

87. The Plaintiffs seek a Declaration that:

a. The Defendants are not the present holders of the Note

identified above.

b. The Defendants are not the successors or assigns of

Countrywide Home Loans, Inc. relative to the Note

identified above.

c. The Defendants have no beneficial interest in the Deed of


d. The Defendants are not the present successor, assign, or

Lender named in the Deed of Trust named in the Deed of


e. The Defendants have no rights under the Deed of Trust

identified above, including but not limited to having no

security interest of any kind, and no right of sale of

any kind.

f. That the Defendants, and each of them, be permanently

enjoined from asserting any right, title, or interest in

the Note and Deed of Trust above.

g. That the Defendants be ordered to refund the Plaintiffs

documented damages as set forth herein.

THIRD CAUSE OF ACTION

COMPLAINT FOR RESTITUTION (UNJUST ENRICHMENT)

88. The Plaintiff incorporates Paragraphs 1 through 70 above as

though fully set forth herein.

89. The Defendant, through mistake, coercion, and request has


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obtained the sum of $80,737.48 from the Plaintiffs, and will

continue to obtain the sum of $3,201.47 from the Plaintiffs on

a monthly basis.

90. The Defendant was and is not entitled to the moneys paid,

because the Defendants, and each of them, have no right to

collect or receive any payments made under the Note and Deed

of Trust identified above.

91. The Plaintiff has paid the moneys demanded by the

Defendants based on the request and coercion of the Defendant

as more fully set forth in the Statement of facts above.

92. The Defendant is not entitled to the payments received.

93. To allow the Defendant to keep the payments received would

serve to unjustly enrich the Defendants to the detriment of

the Plaintiffs.

94. The Plaintiffs therefore request an order of restitution in

the amount equal to the loss suffered by the Plaintiff as set

forth above, in the amount of $80,737.48, increasing by

$3,201.47 per month.

WHEREFORE, Plaintiffs pray for judgment against Defendants, and

each of them, as follows:

Relative to the first cause of action for QUIET TITLE:

1) For a declaration and determination that plaintiff is the

rightful holder of title to the property; and

2) That Defendant New York Bank Mellon, individually and as

Trustee for the Certificateholders CWMBS, Inc. Asset-

Backed Certificates, Series 2002-35, and Defendant CWMBS,

Inc. herein, and each of them, be declared to have no


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estate, right, title or interest in said property; and

3) For a declaration that the Defendant New York Bank

Mellon, individually and as Trustee for the

Certificateholders CWMBS, Inc. Asset-Backed Certificates,

Series 2002-35, and Defendant CWMBS, Inc. herein, are not

the legal holder of any note or deed of trust relating to

the subject property; and

4) For a judgment forever enjoining Defendant New York Bank

Mellon, individually and as Trustee for the

Certificateholders CWMBS, Inc. Asset-Backed Certificates,

Series 2002-35, and Defendant CWMBS, Inc. from claiming

any estate, right, title or interest in the subject

property based on the existing Note and Deed of Trust;

and Relative to the Second Cause of Action for Declaratory Relief:

5) For a finding that:

a. The Defendants, and each of them, are not the

successors or assigns of Countrywide Home Loans

Inc. relative to the Note and Deed of Trust

referenced above.

b. The Defendants, and each of them, have no right,

title, or interest in Note and Deed of Trust

referenced above.

c. That the Defendants are not now, and never have

been entitled to collect any moneys from the

Plaintiff relative to the Note and Deed of Trust

referenced above.

d. That the Defendants, and each of them, are forever


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enjoined from attempting to assert any right, title

or interest, or collect any amount, relative to the

Note and Deed of Trust referenced above.

e. That the Defendants, and each of them, are forever

enjoined from attempting to sell, or assign any

interest in the Note and Deed of Trust referenced

above.

f. That the Defendants be ordered to reimburse the

Plaintiff for his damages in an amount equal to

$80,737.48 as of January 6, 2011, increasing by

$3,201.47 per month.

Relative to the Third Cause of Action for Restitution (Unjust

Enrichment):

For a finding that:

6) The Defendants, and each of them, are not the successors

or assigns of Countrywide Home Loans Inc. relative to the

Note and Deed of Trust referenced above.

7) The Defendants, and each of them, have no right, title,

or interest in Note and Deed of Trust referenced above.

8) That the Defendants are not now, and never have been,

entitled to collect any moneys from the Plaintiff

relative to the Note and Deed of Trust referenced above.

9) That the Defendants, and each of them, are forever

enjoined from attempting to assert any right, title or

interest, or collect any amount, relative to the Note and

Deed of Trust referenced above.

10) That the Defendants, and each of them, are forever


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enjoined from attempting to sell, or assign any interest

in the Note and Deed of Trust referenced above.

11) That the Defendants be ordered to reimburse the

Plaintiff for his damages in an amount equal to

$80,737.48 as of January 6, 2011, increasing by $3,201.47

per month.

As to all three causes of action:

12) For costs of suit herein incurred;

13) For such other and further relief as the court may

deem proper.

Dated this: January 6, 2011

__________________________ ________________________

HomeownerHomeowner Homeowner ___________________________ Homeowner

Homeowner

Plaintiff in pro per _______________________ Plaintiff in pro per

homeowner address Drive __________________________ homeowner address

Drive

Homeowner address, _________________ Homeowner address,


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VERIFICATION

I, HOMEOWNERHOMEOWNER HOMEOWNER, am one of the Plaintiffs in the above-

entitled

action. I have read the foregoing Complaint and know the contents

thereof. The same is true of my knowledge, except as to this matters

which are stated on information and belief, and as to those matters, I

believe it to be true.

I declare under penalty of perjury under the laws of the State of

California that the foregoing is true and correct, and that this

declaration was executed at Homeowner address, California.


_____________________________

HomeownerHomeowner Homeowner

Plaintiff in pro per


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VERIFICATION

I, HOMEOWNER HOMEOWNER, am one of the Plaintiffs in the above-entitled

action. I have read the foregoing Complaint and know the contents

thereof. The same is true of my knowledge, except as to this matters

which are stated on information and belief, and as to those matters, I

believe it to be true.

I declare under penalty of perjury under the laws of the State of

California that the foregoing is true and correct, and that this

declaration was executed at Homeowner address, California.


____________________________

Homeowner Homeowner

Plaintiff in pro per

complaint foreclosure with restitution coa

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