sample quiet title with adverse possession

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VERIFIED COMPLAINT - 1

CHRISTOPHER RIDGEWAY (SBN: 270673)MACALUSO AND ASSOCIATES, APC2100 Palomar Airport Rd. Ste. 221Carlsbad, Ca. 92011760-448-1133760-488-1134 (Facsimile)

Attorney for Plaintiff

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN DIEGO

NORTH COUNTY

CHALLENGER, INC.

Plaintiff,

vs.

AURORA LOAN SERVICES, LLC, JAMES TORTI, DANA TORTI, and DOES 1 through 10, inclusive,

Defendants,

))))))))))))))))))))

Case No.:

VERIFIED COMPLAINT

1. TO QUIET TITLE2. CANCELLATION OF

INSTRUMENT(Trustee’s Deed Upon Sale)

3. DECLARATORY AND INJUNCTIVE RELIEF

4. TO SET ASIDE TRUSTEE SALE5. ACCOUNTING

[Code Civ. Proc. §§ 764.010 to 764.080]

))

Plaintiff, CHALLENGER, INC., alleges as follows:

OVERVIEW

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1. Defendant, Aurora Loan Services, LLC (“Aurora”) and DOES 1 through 10, inclusive,

asserts a claim to Plaintiff’s property.

2. However, the true and rightful owners are: JAMES TORTI AND DNA TORTI

(“Homeowners”).

3. PLAINTIFF, a Wyoming Corporation, is ready, willing, and able, to pay all sums that

may be owed to any trust deed holder or other party upon an accounting being provided

as set forth in the Fifth Cause of Action below, and/or to restore the property to the true

and rightful owners.

THE PARTIES

2. At all times herein mentioned Plaintiff is the owner in residence and control of the

formerly abandoned property, 1258 SKYROS WAY, ENCINITAS, CA. 92024

(“PROPERTY”).

3. Plaintiff is informed and believes and thereon alleges that the property was

abandoned. The true owner of the property had left the property uncared for and in a total

state of disarray. The property was representative of blight in the community. The

Plaintiff, a Wyoming Corporation, wants to restore the Property to it’s rightful owners, or

acquire the Property and has or will acquire possession through an Unlawful Detainer

Proceeding, filed with this action. Adverse Possession (adverse possession is “open and

notorious” possession of property without the title holder taking steps to remove you for a stated

period of time. In California, the Legislature has passed precise criteria for what must be done in

order to have a claim of adverse possession and the law is found in the Civil Code at Section

325). Plaintiff has or will clean up the property, arrange for a person in need of housing to

move in, make improvements, will or has paid the property taxes, and has or will

maintain the Property. Plaintiff, has or will arrange for occupancy "open and notoriously"

under the law. Accordingly, "California law does not require a plaintiff to bring an action

to perfect his or her claim of adverse possession. Rather, it is the record owner--not the

intruder--who must bring an action within five years after adverse possession

commences in order to recover the property." (INSERT CASE NAME ….26 C.A.4th

191.) Hence, plaintiff is under no obligation to bring an action to perfect his adverse

possession claim.

4. Plaintiff is informed and believes and thereon alleges that for all relevant times herein,

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Aurora Loan Services, was a loan servicing company for a wall street firm; Lehman

Brothers (“Lehman”). Aurora went out of business in 2008. Thereafter, the principals

allegedly formed a new company “Aurora Bank FSB”. However, both Aurora entities

are a sham solely used to commit criminal fraud, to defraud homeowners out of their

property. (See, www.4closurefraud.org; www.livinglies.wordpress.com).

5. Plaintiff is informed and believes and thereon alleges that at all relevant times alleged

herein, and DOES 1 through 10,inclusive, had and has no capacity, legal standing, or

right to bring any action concerning the Property, having purportedly assigned their

Beneficial Ownership Interest to investors. (See, e.g. In Re Veal [insert citation].

The true names or capacities, whether individual, corporate, associate or otherwise, of

the Defendants named in this Complaint as DOES 1 through 10, inclusive, are not

known to Plaintiff who therefore sues said Defendants by such fictitious names under

the provisions of Section 474 of the California Code of Civil Procedure. Plaintiff is

informed and believes and thereon alleges that Defendant DOES 1 through 10,

inclusive, are responsible and/or individually liable for the occurrences alleged herein,

and that any damages sustained by Plaintiff were and are the direct and proximate

result of the actions of Defendants and each of them. Plaintiff will amend this

Complaint to allege their true names and capacities when ascertained.

6. Plaintiff is informed and believes and thereon alleges that, for all times herein alleged,

Defendants and DOE Defendants, and each of them, were and now are the agents,

fiduciaries, servants, co-conspirators, and/or employees of one or more of the

remaining Defendant(s) and, in doing the things alleged herein, were acting in the

course and scope of their authority and/or employment and the agents, fiduciaries,

servants, co-conspirators and/or employees of each of them, unless otherwise alleged.

Accordingly, the acts complained herein of these Defendants were carried out with

the knowledge, consent, authorization and/or ratification of each of them, unless

otherwise alleged.

JURISDICTION AND VENUE

http://www.4closurefraud.org/

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7. Jurisdiction and venue are proper in this Court in that the action concerns the real

property located at 1258 Skyros Way, Encinitas, Ca. 92024.

THE FRAUDULENT LOAN, FORECLOSURE, AND EVICTION

Attached as Exhibit “A” is a true and correct copy of a Property Profile setting forth the chain of

title from the time Homeowners obtained a loan that was “securitized” and provided to them

through fraud.

On or about, August 29, 2003, Homeowners executed a first trust deed for $650,000 to Indymac

Bank, FSB, now also out of business which was recorded as Document #2003-1059762.

On or about August 29, 2003, Homeowners executed a second trust deed for $83,300 to Iberia

Enterprises Inc., also now out of business which was recorded as Document #2003-10597763.

As is typical, the Homeowners were given loans with illegal fees and which the lenders knew

they could not repay.

The Property was then refinanced many times by various entities set up to defraud Homeowners

until 2006, when the infamous Countrywide Bank, now also out of business provided an illegal

loan.

On or about October 22, 2008, a foreclosure was commenced by filing a Notice of Default by

Aurora Loan Services which had not right to do so and was a complete stranger to the

transaction. Recorded as Document #2008-0550819.

The trustee sale was delayed for several years finally resulting on or about April 1, 2011 in a

Trustee’s Deed being conveyed to Aurora which legally does not exist. The trustee’s deed was

recorded as Document #2011-0167724 in the records of the San Diego County Recorder and this

is the key deed which Plaintiff seeks to have determined null and void.

Thereafter, a now suspended attorney, David Endres, filed an eviction action to unlawfully evict

the Homeowners.

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FIRST CAUSE OF ACTION

(Quiet Title)

8. Plaintiff re-alleges and incorporates by reference each and every allegation in paragraphs

1 through …… of this Complaint as though set forth in full herein.

9. The real property that is the subject of this action is located in San Diego County,

California, is commonly known a 1258 Skyros Way, Encinitas, CA. APN: 254-411-38-

00.

10. Plaintiff is the owner in possession and control of the real property and improvements

located at ……………………. APN#.

11. Defendant claims an interest adverse to plaintiff’s alleged title in the real property. These

claims are without any right and defendants have no right, title, estate, lien, or interest in

the real property.

12. Plaintiff seeks a determination of his title in this action as of August 29, 2003 when the

Homeowners were defrauded and a trust deed recorded illegally.

SECOND CAUSE OF ACTION

(Cancellation of Written Instrument: Trustee’s Deed Upon Sale)


1 through ……… of this Complaint as though set forth in full herein.

14. Defendants caused the unauthorized recording of the Trustee Deed Upon Sale in the San

Diego County Recorder’s Office, which document purports to convey Defendants interest

in the subject Property. Defendant had no interest in the property to conduct any

unauthorized acts. These documents are void and subject to cancellation by the Court

pursuant to Civil Code § 3412 or otherwise.

15. Plaintiff’s ability to maintain interest in property via Adverse Possession is seriously

damaged if the Trustee’s Deed Upon Sale is left outstanding.

16. The Defendant has sought to sell the Property to a third party without disclosing the fact

that the Homeowners may be entitled to regain title and/or possession, seeking to defraud

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a new party. This has resulted in new buyers purchasing homes throughout the country

and then persons such as Homeowners take back their property. Plaintiff seeks to stop

this cycle of criminal fraud.

THIRD CAUSE OF ACTION

(Declaratory and Injunctive Relief)


1 through ……. of this Complaint as though set forth in full herein.

18. An actual controversy exists between Plaintiff and Defendants with regard to the

validity, enforceability and effect of the subject Trustee’ Deed Upon Sale.

19. Plaintiff contends that the Trustee’s Deed Upon Sale executed and recorded by

Defendant’s agent was unauthorized, improper, and void. Plaintiff contends he maintains

his interest in the Property by claim of title pursuant to Civil Code Section 325, and is

the de facto owner of the property. Plaintiff requests a judicial determination that

cancels the Trustee’s Deed Upon Sale and any acts of the Defendants.

20. Plaintiff has no adequate remedy at law in that the Trustee Deed Upon Sale executed

and recorded by Defendants must be cancelled in order to restore the interest of the

Plaintiff before the Trustee Sale.

21. Accordingly, Plaintiff requests that the Court declare the Trustee Deed Upon Sale be

null and void and to order this instrument be rescinded, cancelled and voided nunc

pro tunc as of ……………….

22. Plaintiff has no adequate remedy at law for the loss or injury being or that may be

suffered in absence of declaratory and/ or injunctive relief. The effect of potential or

further encumbrances, impediment, or preclusion in whole or in part of the relief

requested herein could damage Plaintiff beyond repair. Accordingly, the Court should

enjoin any further transfer, assignment, encumbrance, or hypothecation of the

Property, or any interest therein by or on behalf of the Defendants or their agents.

23. Unless all defendants are immediately, temporarily and permanently enjoined from

any further transfers, assignments, or encumbrances concerning any interest in the

Property that would cloud, diminish, or negatively impact the priority and status of

the title to the property, Plaintiff will suffer great and irreparable harm by virtue of

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the loss or diminution of the value of his Property.

FOURTH CAUSE OF ACTION

(To Set Aside Trustee Sale)

The previous allegations of this complaint are incorporated here as thought set forth in

full.

The aforementioned trustee’s sale was improperly held and the trustee’s deed and any and

all transfers of the Property were wrongfully executed, delivered, and recorded in that the

origination, servicing, and foreclosure were all a criminal fraud. Forged and fraudulent

documents were recorded, now commonly referred to as “robo-signing”.

Plaintiff offers to tender to the proper party all amounts due and owing so that the

claimed default can be cured and the Plaintiff or Homeowners may be reinstated to all former

rights and privileges to the Property.

Plaintiff is ready willing and able to tender those sums, if any, that the Court finds due

and owing on the rendering of an accounting as requested in the Fifth Cause of Action

FIFTH CAUSE OF ACTION

(Accounting)

Plaintiff reallges and incorporates by reference all of the allegations set forth above.

The amount of money still owed to anyone is unknown to plaintiff and cannot be

determined due to the illegal securitization of the aforementioned loans and fraud of the

Defendant without an accounting.

PRAYER FOR RELIEF

WHEREFORE, plaintiff prays judgment against defendants and each of them as

follows:

1. For judgment quieting plaintiff’s title to the real property and that Defendants

have no right, title, or interest in or to the real property.

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2. For judgment canceling, rescinding, and declaring void nunc pro tunc the

Trustee’s Deed Upon Sale and the interest herein be fully restored to

Homeowners or Plaintiff.

3. That the Court declare that the Trustee’s Deed Upon Sale be cancelled and null

and void nunc pro tunc as of the date it was signed by agent of Defendant Auora.

4. That Plaintiff is allowed to maintain it’s status as a party in interest to the

property.

5. That the Court declare that an order, judgment, and/or Rescission of the Trustee

Deed Upon Sale be recorded in the Official Records of San Diego County,

California forthwith;

6. That the court issue (a) a declaration that the sale of the Property at foreclosure is

null and void of no force or effect, and (b) an order setting aside the trustee’s sale

of the Property.

7. For a temporary restraining order, a preliminary injunction and permanent

injunction enjoining Defendants, and each of them, and their agents, servants, and

employees, successors, assigns, and all persons acting under, in concert with, or

any of them, from:

(a) Selling, distributing, transferring, assigning, destroying , encumbering,

foreclosing upon or in any other way disposing of the Property until

judgment is entered herein;

(b) Spending or disbursing any proceeds obtained from any sale of the

Property until judgment is entered herein;

(c) Taking any other action whatsoever with respect to the Property until

further order of this court.

8. In addition or in the alternative, for an order of this Court directing Defendants,

and each of them, to show cause at the time and place appointed in the order why

they, and each of them, should not be enjoined and restrained from doing any of

the acts described above, and why a TRO, Preliminary and/or Permanent

Injunction should not be issued.

9. For damages according to proof.

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10. For an award against Defendants for Plaintiff’s reasonable attorneys’ fees, and

costs of suit incurred in prosecuting this action in accordance applicable law; and

11. For such other and further relief as may be deemed just and proper.

Dated:By:

VERIFICATION

AND DON’T FORGET TO RECORD A LIS PENDENS

sample quiet title with adverse possession

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