1 Melbourne B.

Weddle, State Bar #34858

Patric H.R. Weddle, State Bar #201465
2
P. O. Box 593

3
Santa Barbara, Ca. 93102

Telephone: (805) 966-1038

4
Facsimile: (805) 966-9758

Attorneys for PlaintiffBemice Jacobs.

IN THE UNITED STATES DISTRlCT COURT

9

FOR THE NORTHERN DISTRlCT OF CALIFORNIA-SAN JOSE DIVISION

10

11

12

BERNICE JACOBS Case No. 10-cv-04596-HRL

13

OPPOSITION TO MOTION TO DIS­

14

Plaintiff MISS COMPLAINT 12(b (6)

15 vs.
16
Jury Trial Demanded
17
BANK OF AMERICA, N.A.; BAC
HOME LOANS SERVICING, LP; RE­
18
TELEPHONE CONFERENCE RE­
CONTRUST COMPANY; FEDERAL
19
NATIONAL MORTGAGE ASSOCIA­ QUESTED
TION; AND DOES 1-100 inclusive
20

21
Defendants.

22

23

To: DEFENDANTS BANK OF AMERICA, N.A. (BANA); BAC HOME LOANS

24

SERVICING, LP; RECONTRUST COMPANY; FEDERAL NATIONAL MORTGAGE

,
25
ASSOCIATION (FNMA).
26

27

28

Opposition to Motion to Dismiss

 1
TABLE OF CONfENTS
2

3
MEMORANDUM IN OPPOSITION TO MOTION TO DISMISS (MOD) .......... 2

4
I. ARGUMENT.......................................................................... 2

5 A. Complaint Has Probable Validity In Proving Facts ....................... 2

6
B. Tender Is Not A Requirement When It Would Be Inequitable

7
To Do So......................................................................... 4

8
C. Borrower Has A Private Right Against Lender For Failure

9
To Modify Loan ............................................................... 6

10 D. Claim Of Breach Implied Covenant Of Good Faith And

11
Fair Dealing Is Proper. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 7

12
E. Claim For Equitable And Injunctive Relief Is Properly Averred ........ 9

13
F. Elements Of Fraud Are Properly Plead ..................................... 10

14
G. A Present And Actual Controversy Exists Between Defendant

15 And Plaintiff Requiring A Judicial Declaration ............................ 11

16
H. A Present And Actual Controversy Exists Between·

17
Defendant And Plaintiff Requiring A Judicial Declaration .............. 12

18
II. CONCLUSION....................................................................... 13

19

20
21

22

23

24

25
26

27

28

Opposition to Motion to Dismiss

i

 1 TABLE OF AUTHORITIES
2
3 Case Authorities Page
4
5 Abdullah v. United Sav. Bank, 43 Cal.App.4th 1101, 1009 (1996) 12
6 Argabright v. United States, 35 F.3d 1476, 1479 (9th Cir. 1996) 2
7 Arnolds Management Corp. v. Eischen, 158 Cal.App.3d 575 (1984) 4
8 Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988) 2
9 Barker v. Riverside County Office ofEducation, 4
10 584 F.3d 821, 824 (9th Cir. 2009)
11 Baypoint Mortgage Corp. v. Crest Premium Real Estate etc., Trust 13
12 (1985) 168 Cal.App.3d 818 [214 Cal. Rptr.3d 531]
13 Bisno v. Sax (1959) 175 CaLApp2d 714 [346 P2.d .S14J 13
14 California State Restaurant Assoc. v. Willow 7
15 (1976) 129 Cal. Rptr. 824, 58 CA. 3d 340
16 Caravantes v. California Reconveyance Co., 2010 WL 4055560, 13
17 Carma Developers, Inc. v. Marathon Development California, Inc. 8
18 (1992) 2 Cal.4lh 342,371-372
19 City ofCotati v. Cashman (2002) 29 Cal.4th 69, 79 11
20 Clegg v. Cult Awareness Network, 18 F.3d 752 (9th Cir, 1994) 2
21 Coles Dept. Store v. First Bank (N.A.)-Billings, 240 Mont. 226 9
22 Connors v. Home Loan Corp., 2009 WL 1615989 from San Diego 6, 7
23 Darensburg v. Metropolitan Transp. Comm'n, 13
24 2006 WL 167657, at 2 (N.D. Cal. Jan.20, 2006).
25 Disabled and Blind Action Committee ofCalifornia v. Jenkins 7
26 (1974) 44 C.A.3d 74
27
28

Opposition to Motion to Dismiss

ii
 1
TABLE OF AUTHORITIES (continued)
2
Page

3
Egan v. Mutual o/Omaha Ins. Co., supra, 24 Cal.3d at p. 818 8

4
Farmers v. Countrywide Home Loans, 6, 7

5 2009 WL 189025 (S.D.Cal., 2009)

6
Garcia v. Ocwen Loan Servicing, LLC, 12

7
2010 WL 1881098 (N.D.Cal.)

8
GoTo.com, Inc. v. The Walt Disney Co., 9, 10

9
202 F.3d 1199, 1210 (9th Cir. 2000)

10 Housley v. US. (9th Cir. Nev. 1994) 35 F.3d 400, 401 2,3

11
Humboldt Say. Bankv. McCleverty, 161 Cal. 285, 291, 119 P. 82 (1911) 6

12
Karlsen v. Am. Say. & Loan Ass'n, 15 Cal. App.3d 112 (1971) 4, 12

13
Kingv. California, 784 F.2d 910,913 (9th Cir. 1986) 2

14
Los Angeles Equestrian Ctr., Inc. v. City o/Lose Angeles, 8

15 17 Cal.AppA th 434, 447, 21 Cal.Rptr.2d 313 (1993)

16
Mabry v. Superior Court, 185 Cal. App. 4th 208,226 (July 2010) 6,7

17
Marsu, B. V. v. Walt Disney Co. (9h Cir) 185 F.3d 932 8

18
Mayfield v. Vanguard Say. & Loan Ass'n, 5

19
710 F.Supp. 143, 149 (E.D. Pa 1989)

20 More v. Calkins (1895) 84 Cal. 177 13

21
Nichols v. Deutsche Bank National Trust Company, 10

22
2007 US. Dist. LEXIS 86223

23
Paul v. Howard University, 9

24
754 A.2d 297, 145 Ed. Law Rep. 702 (D.C. 2000)

25 North Star Int'l v. Arizona Corp. Comm'n, 4

26
720 F.2d 578, 581 (9th Cir. 1983)

27

28

Opposition to Motion to Dismiss

iii

 1 TABLE OF AUTHORITIES (continued)

2 Page
3 Rodriguez v. Litton Loan Servicing LP, No. 09-cv-0029, 5
4 2009 U.S. Dist. LEXIS 43143,2009 WL 1326339,
5 at E. D. Cal. May 12, 2009)
6 Roe v. Anderson, 134[.3d 1400, 1402 (9th Cir. 1998) 10
7 Rosenthal v. Great Western Fin. Securities Corp., 6
8 14 Cal. 4th, 394, 415 (1996)
9 Savers Federal Sav. and Loan Ass 'n v. Home Federal Say. 9
10 and Loan Ass 'n, 721 F. Supp. 940, 945 (W.D. Tenn. 1989)
11 Shepard v. Quality Siding & Window Factory, 5
12 730 F. Supp. 1295 (D. Del. 1990)
13 Stockton v. Newman (1957) Cal.App.2d 558 [307 P2d. 56J 13
14 Sun Microsystems, Ini::. v. Microsoft, Corp., 10
15 188 F.3d 1115, 1119 (9th Cir. 1999)
16 Inre Stuart, 367 B.R. 541, 552 (Bankr. E.D. Pa. 2007) 5
17 Travellers Intern., A.G. v. Trans World Airlines, Inc., 8
18 41 F3d 1570 (2d Cir. 1994)
19 Wells Fargo v~ Jordan, 914 N.E.2d 204 (Ohio 2009) 13
20 Wheatv. Thomas, 209 Cal. 306 (1930) 10
21 Yamamoto v. Bank o/New York, 329 F3d 1167, 1171 (9th Cir. 2003) 5
22 Restatement Authorities
23 Restatement (Second) o/Contracts § 205 8
24 Statutory Authorities
25 California Civil Code
26 Section 2923.5 7, 12
27 Section 2923.6 2, 7
28 Section 1572 2,11

Opposition to Motion to Dismiss

iv
 1 MEMORANDUM IN OPPOSITION TO MOTION TO DISMISS (MOD)
2 Defendants, with hubris, fraud and contempt, have sought to make the Court a party
3 to their fraudulent conduct by asking the Court to accept as true such Documents as De­
4 fendants' EXHIBIT C, the Substitution of Trustee. As more fully set forth in Plaintiffs
5 Opposition to Judicial Notice, Defendants seek to perpetuate a fraud on the Court as the
6 signatures on Defendants' Exhibit C are obviously forged. Defendant's MOD should be
7 dismissed in its entirety. As a result of the predatory lending practices used against her,
8 Plaintiff filed her Complaint for: (1) Civil Code § 2923.6 (2) Bus. & Prof. Code § 17200;
9 (3) Breach of Covenant of Good Faith and Fair Dealing; (4) Injunctive Relief; (5) Civil
10 Code § 1572 (6) Fraud (7) Declaratory Relief (8) Intentional Misrepresentation (9) Wrong­
11 ful Foreclosure. With the exception of the cause of action against FNMA which should be
12 dismissed, there is a present and actual controversy between the parties which requires a
13 judicial determination.

14 I. ARGUMENT
15 A. Complaint Has Probable Validity In Proving Facts.
16 A complaint should not be dismissed "unless it appears beyond doubt that the plain­
17 tiff can prove no set of facts in support of her claim which would entitle her to relief."
18 Housleyv. U.S. (9th Cir. Nev. 1994) 35 F.3d 400,401. "All allegations of material fact in
19 the complaint are taken as true and construed in the light most favorable to plaintiff." Ar­
20 gabright v. United States, 35 F.3d 1476, 1479 (9th Cir. 1996). The Complaint includes a
21 "short, plain statement, of the basis for relief." Fed. Rule Civ. Proc. 8(a). The Complaint
22 contains cognizable legal theories, sufficient facts to support cognizable legal theories, and
23 seeks remedies to which plaintiff is entitled. Balistreri v. Pacifica Police Dept., 901 F.2d
24 696, 699 (9th Cir. 1988); King v. California, 784 F.2d 910, 913 (9th Cir. 1986). Moreover,
25 the legal conclusions in the Complaint can and should be drawn from the facts alleged,
26 and, in tum, the court should accept those conclusions. Clegg v. Cult Awareness Network,
27 18 F.3d 752 (9th Cir, 1994).
28
2

Opposition to Motion to Dismiss

 1 Last of all, Plaintiffs complaint contains claims and a "set of facts," susceptible to
2 proof, in support of her claim entitling her to relief. Housley v. u.s. (9th Cir. Nev. 1994) 35
3 F.3d 400, 401. Therefore, the MOD should be denied.
4 The MOD states that "[Plaintiffs] complaint is littered with duplic~tive, boilerplate
5 allegations." (P.I. MOD) Boilerplate is text that can be reused in new contexts or applica­
6 tions without being changed much from the original. It means standardized, commonplace,
7 stereotyped, unvaried. Perhaps, when Defendants see so many lawsuits raising the same
8 issues of fraud, lack of standing, forgery, perjury, etc., they all start to look alike. BANA
9 seeks to harvest millions of houses across America without producing any paper from its
10 vaults that would support its claims.
11 Here are some of the "boilerplate" items in the Complaint from numbered para­
12 graphs in the Complaint that BANA characterizes as commonplace and unvaried:

13 "21. Plaintiff is informed and believes and therefore alleges that after her loan was origi­
14 nated and funded, was sold on multiple occasions, bundled into a group of Trust Deeds and

15 subsequently sold to investors as a Derivative, "Mortgage Backed Security", and that

16 therefore none of these defendants, and each of them, owned this loan, or Note and cannot
17 be and are not the Beneficiary, or lawfully appointed trustee, and have no right to declare a

18
default, to cause notices of default to issue or to be recorded, or to foreclose on Plaintiffs

19
interest in the subject property, Defendants, and each of them, were not the note Holder or
20 the Note holder in due course or any Beneficiary at any time in regards to this loan"

21
"151. Plaintiff alleges that Defendants, and each of them, presented a loan to Plaintiff
22 whereby Defendants represented that she did qualify for ordinary underwriting, and that
the loan was within Plaintiffs personal financial needs and limitations given the confiden­
23
tial financial information that Plaintiff shared with Defendants, however, the truth is that
24
the loan payments exceeded Plaintiff established income."
25
BANA wants to take real property without offering any proof showing that it is the
26
owner of property and whether it still holds a beneficial interest in the promissory note. It
27
is no wonder that all those lawsuits are beginning to look so much alike. If it is unclear
28
3

Opposition to Motion to Dismiss

 1 who owns the mortgage, clear title to the property itself cannot be conveyed. If, for exam­
2 pIe, BANA were permitted to foreclose on the property, a subsequent buyer could not be
3 sure of clear title if grantor BANA did not have the right to foreclose on the house in the
4 first instance.
5 The material allegations in the Complaint are teeming with triable issues. A motion
6 to dismiss under Federal Rule of Civil Procedure 12(b) (6) tests the pleading only. It tests
7 neither the evidence nor matters extrinsic to the complaint. North Star Int'l v. Arizona
8 Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). The court must accept as true all rea­
9 sonable inferences which may be drawn from the material allegations in the complaint.
10 Barker v. Riverside County Office ofEducation, 584 F.3d 821, 824 (9th Cir. 2009).

11 The Complaint alleges that BANA cannot prove it is authorized to take her home, and

12 CRC is under a duty to re-convey the Deed of Trust to Plaintiff.

13 B. Tender Is Not A Requirement When It Would Be Inequitable To Do So.

14 Defendants argue that tender of the full amount of the debt is necessary, citing Ar­
15 nolds Management Corp. v. Eischen, 158 Cal.App.3d 575 (1984) and Karlsen v. Am. Sav.
16 & Loan Ass 'n, 15 Cal. App.3d 112 (1971). However, if BANA has no enforceable claim
17 to the Property, and cannot produce any evidence that it acquired or possesses any rights to
18 the property, then full tender would be an absurd requirement. Anyone could maliciously

19
file a Notice of Trustee's Sale and evict a homeowner. If a lack of resources to tender the

20
outstanding balance on the loan prevented the homeowner from having her day in court,

21
that fact would hardly prove that the BANA has a legitimate claim. Mabry is correct: a re­
quirement of tender defeats the purpose of the statute.
22
Even if an explicit offer of tender is required, Plaintiff could not offer tender be­
23
cause Defendants' actions precluded her from doing so. Tender of the amount owed typi­
24
cally is a condition precedent. Rosenthal v. Great Western Fin. Securities Corp., 14 Cal.
25
4th, 394, 415 (1996). Notwithstanding, it would be inequitable to apply the "tender rule" in
26
this matter. Specifically, the Rosenthal line of cases are factually inapposite to the case at
27
bar because in the Rosenthal line of cases defendants' own actions did not preclude plain­
28
4

Opposition to Motion to Dismiss

 1 tiff from offering tender. Here, Defendants caused the ruin of Plaintiffs credit, and Plain­
2 tiff was uncertain as to who was the owner of the property. Accordingly, the tender rule
3 should be disregarded in this matter. Plaintiff need not demonstrate her ability to provide
4 tender. Yamamoto v. Bank ofNew York, 329 F.3d 1167, 1171 (9th Cir. 2003) Yamamoto
5 emphasizes a district court's "'equitable discretion to modify rescission procedures.'" Id. at
6 1173. "This discretion can be exercised in favor of lenders, by requiring borrowers to make
7 a showing of their ability to pay a lump sum, or in favor of borrowers, by allowing them to
8 fulfill their tender obligation by making payments over time." Id., citing, In re Stuart, 367
9 B.R. 541, 552 (Bankr. E.D. Pa. 2007); see Shepard v. Quality Siding & Window Factory,
10 730 F. Supp. 1295 (D. Del. 1990) (allowing borrower to satisfy tender obligation by mak­
11 ing monthly payments at the rate she had understood would be applicable); Mayfield v.
12 Vanguard Sav. & Loan Ass'n, 710 F.Supp. 143, 149 (E.D. Pa 1989) (allowing borrower to
13 satisfy tender obligation by making monthly payment equal to those she made before the

14 loan transaction).

15 The identity of the owner of the property is the core issue in this case. Plaintiffs
16 pre-Discovery inquiries indicate that Freddie Mac rather than BANA is the owner of the
17 loan. BANA did not own the loan at the time she filed her complaint; therefore, BANA is

18
not the mortgagee. This issue cannot be brushed aside on the pretense that California is a

19
non-judicial foreclosure state. Non-judicial does not mean outlaw. If BANA is not the

20
mortgagee, it would be unjust to dismiss the complaint and allow BANA to seize Plaintiffs

21
home. She has a grant deed. She was ready, willing and able to resume monthly payments
to the owner of the note. Is BANA legally entitled to repayment of these funds from Plain­
22
23 tiff? BANA must produce the original promissory note and show that BANA is the benefi­
ciary of the note, or that it is acting on behalf of the beneficiary with the beneficiary's
24
permission. Plaintiff is informed and believes that BANA cannot produce the necessary
25
instruments. She will show at trial that the promissory note was bundled into a presold
26
"Trust" which was then securitized and offered for investment many times over. In other
27
words, the note was "atomized" and no longer exists as an enforceable mortgage docu­
28
5

Opposition to Motion to Dismiss

 1 ment. Defendants have requested the Court to take judicial notice of uncertified and
2 fraudulent documents. (1) The Notice of Default was allegedly recorded on March 22.
3 2010; by Recontrust Company; whereas the (2) Recontrust Company was not substituted
4 as trustee until April 7, 2010. Recontrust Company had no power to give a Notice of De­
5 fault as it was not the Trustee. The Substitution of Trustee was not recorded until April 7,
6 2010. As more fully set forth in Plaintiffs Opposition to Judicial Notice, EXHIBIT C
7 "The Substitution of Trustee" is a forged document. A tender is unnecessary where to do
8 so would be is inequitable. See Humboldt Sav. Bank v. McCleverty, 161 Cal. 285, 291, 119
9 P. 82 (1911); Rodriguez v. Litton Loan Servicing LP, No. 09-cv-0029, 2009 U.S. Dist.
10 LEXIS 43143,2009 WL 1326339, at E. D. Cal. May 12,2009).
11 C. Borrower Has A Private Right Against Lender For Failure To Modify Loan.
12 Defendants cite Mabry v. Aurora Loan Services, 185 Cal.App.4th 208 on pages 6
13 and 18 of their MOD. The Court of Appeals ruled in Mabry that a borrower has a private
14 right of action under §2923.5 and is not required to tender the full amount of the mortgage

15 as a prerequisite to filing suit, since that would defeat the purpose of the statute. Under the

16 court's narrow construction of the statute, §2923.5 merely adds a procedural step in the

17
foreclosure process. Since the statute is not substantive, it is not preempted by federal law.

18
The declaration specified in §2923.5 does not have to be signed under penalty of perjury,

19
and if the notice is defective, the borrower's remedy is limited to getting a postponement

20
of a foreclosure while the lender files a new notice of default that complies with §2923.5.
The unauthenticated Notice of Default as Exhibit D does not comply with § 2923.5.
21
Defendant is confused when it states that Section 2923.6 does not require an offer
22
of a loan modification, nor does any statute create a private right of action for borrowers to
23
modifY the terms of the loans. Indeed, this is not the case. There are some federal cases
24
which support Defendants' position. Farmers v. Countrywide Home Loans, 2009 WL
25
189025 (S.D.Cal., 2009), and Connors v. Home Loan Corp., 2009 WL 1615989 from San
26
Diego. Yet the reasoning of these cases is impaired because they reach an irrelevant con­
27
clusion from a faulty premise. Connors, in particular, is seriously flawed. Both Farmers
28
6

Opposition to Motion to Dismiss

 1 and Connors conclude that §2923.6 does not create a private right of action for borrowers.
2 The Connors court goes on to conclude that the Legislature did not intend to create such a
3 private right because "[a] statute creates a private right of action only if the enacting body
4 so intended." Connors, supra, 2009 WL 1615989. A court must construe a statute with due
5 regard for the ordinary meaning of the language used and in harmony with the whole sys­
6 tern of law of which it is a part. California State Restaurant Assoc. v. Willow (1976) 129
7 Cal. Rptr. 824, 58 CA.3d 340. To assert that the legislature passed a law without including
8 an enforcement provision is to construe a statute so that the result is absurd. Such a con­
9 struction clearly contravenes the legislative intent. Disabled and Blind Action Committee
10 o/California v. Jenkins (1974) 44 C.A.3d 74.
11 The Connors' court interpretation effectively results in a judicial nullification of the

12 statute. A private right of action is the only reasonable method of enforcement of the stat­
13 ute. It is difficult to imagine that the California Legislature did not intend a private right of
14 action for borrowers. Such a judicial proclamation, without clear legislative intent to sup­
15 port it, renders the statute toothless. It cannot be what the legislature had intended See SB
16 1137, Section 1, subd. (g).and Mabry v. Superior Court, 185 Cal. App. 4th 208, 226 (July
17 2010)

18
Thus a private right of action exists under Section 2923.6. Alternatively, as Plain­
19 tiffs claims for relief are only based on violations of Sections 2923.5 and 2923.6 and are
20 not direct actions under either statute, the analysis is irrelevant. Accordingly, Plaintiffs
21 allegations and claims for relief based on Defendant's violations of Sections 2923.5 and
22 2923.6 are supported by the pleadings.
23 D. Claim Of Breach Implied Covenant Of Good Faith And Fair Dealing Is Proper.
Defendants essentially argue that they cannot be held liable for any acts of the other
24
Defendants because it had no duty or relationship with the Plaintiff. However, Defendant's
25
argument ignores the allegations of Plaintiff complaint and governing law regarding civil
26
conspiracy and joint ventures as set forth in the complaint.
27

28
7

Opposition to Motion to Dismiss

 1
Contrary to Defendant's assertion, a special relationship is not required because

2
every contract imposes upon each party a duty of good faith and fair dealing in its per­
3
formance and its enforcement. Carma Developers, Inc. v. Marathon Development Califor­
4
nia, Inc. (1992) 2 Cal.4th 342, 371-372

5 Plaintiff properly pled Defendants violated the breach of implied covenant of good

6
faith and fair dealing. "Every contract imposes upon each party a duty of good faith and

7
fair dealing in its performance and its enforcement." Carma Developers Inc. v. Marathon

8
Dev. Cal., Inc., 2 Cal.4th 342, 371, 6 Cal.Rptr.2d 467, 826 P.2d 710 (1992) (quoting Re­
9
statement (Second) of Contracts § 205). "The covenant of good faith finds particular appli­
10 cation in situations where one party is invested with a discretionary power affecting the

11
rights of another. Such power must be exercised in good faith." See Marsu, B. V. v. Walt

12
Disney Co. (9th Cir) 185 F.3d 932. The Implied covenant of good faith and fair dealing is

13
an equitable doctrine which may validate otherwise unenforceable agreements. It is a doc­
14
trine of equity that the courts may use to achieve a just result when a contract (example:

15 the loan modification trial plan agreement) is unclear regarding a party's obligations and

16
the doctrine can then allow the court to enforce what might otherwise be deemed an unen­

17

forceable agreement.

18

The implied promise requires each contracting party to refrain from doing anything

19

to injure the right of the other to receive the benefits of the agreement Egan v. Mutual of

20
Omaha Ins. Co., supra, 24 Ca1.3d at p. 818, 169 Cal. Rptr. 691, 620 P.2d 141. "[T]he

covenant is implied to prevent a contracting party from engaging in conduct which (while

21

not technically transgressing the express covenant) frustrates the other party's rights of the

22

23
benefits of the contract." See Los Angeles Equestrian Ctr., Inc. v. City ofLose Angeles, 17

Cal.AppAth 434, 447, 21 Cal.Rptr.2d 313 (1993). Even where a defendant is given abso­
24

lute discretion, it must exercise that discretion in good faith. See Travellers Intern., A. G. v.

25
Trans World Airlines, Inc., 41 F.3d 1570 (2d Cir. 1994) . Thus, a party who "evades the

26

spirit ofthe contract," willfully renders imperfect performance, or interferes with perform­
27

ance by the other party, may be liable for breach of the implied covenant of good faith and

28

Opposition to Motion to Dismiss

 1 fair dealing. See Paul v. Howard University, 754 A.2d 297, 145 Ed. Law Rep. 702 (D.C.
2 2000). Some courts have focused on the reasonable expectations of the parties, (See Savers
3 Federal Sav. and Loan Ass 'n v. Home Federal Sav. and Loan Ass 'n, 721 F. Supp. 940, 945
4 (W.D. Tenn. 1989twhile others have focused on whether the action taken by the breaching
5 party was arbitrary and capricious. See Coles Dept. Store v. First Bank (NA.)-Billings,
6 240 Mont. 226, 783 P.2d 932,936,11 D.C.C. Rep. Servo 2d 1074 (1989).
7 Defendant BANA willfully breached its implied covenant of good faith and fair
8 dealing with Plaintiff when Defendants: (1) Failed to provide all of the proper disclosures;
9 (2) Failed to provide accurate Right to Cancel Notices; (3) Placed Plaintiff in her current
10 loan product without regard for other more affordable products; (4) Placed Plaintiff in a
11 loan without following proper underwriting standards; (5) Failed to disclose to Plaintiff
12 that she was going to default because of the loan being unaffordable; (6) Failed to perform
13 valid and lor properly documented substitutions and assignments so that Plaintiff could as­
14 certain her rights and duties; and (7) Failed to respond in good faith to Plaintiffs request
15 for documentation of the servicing of her loan and the existence and content of relevant
16 documents. Additionally, Defendants breached their implied covenant of good faith and
17 fair dealing with Plaintiff when Defendants initiated foreclosure proceedings without hav­
18 ing even the right under an alleged power of sale because the purported assignment was
19 not recorded; and by willfully and knowingly profiting from their malfeasance. The Mo­
20 tion to Dismiss should be denied.
21 E. Claim For Equitable And Injunctive Relief Is Properly Averred
22 "Preliminary injunctive relief, including TRO, 'is not a preliminary adjudication on
23 the merits, but a device for preserving the status quo and preventing the irreparable loss of
24 rights before judgment.'" Textile Unlimited, Inc. v. A.BMH and Co., Inc., 240 F.3d 781,
25 786 (9th Cir. 2001). "The status quo ante litem refers not simply to any situation before the
26 filing of a lawsuit, but instead to the last uncontested status which preceded the pending
27 controversy." GoTo. com, Inc. v. The Walt Disney Co., 202 F.3d 1199, 1210 (9th Cir.
28 2000). A party seeking preliminary injunctive relief, including a temporary restraining or­
9

Opposition to Motion to Dismiss

 1 der, must show either (1) a combination of probable success on the merits and the possibil­
2 ity of irreparable harm, or (2) that serious questions going to the merits are raised or the
3 balance of hardships tips sharply in the moving party's favor. Sun Microsystems, Inc. v.
4 Microsoft, Corp., 188 F.3d 1115, 1119 (9th Cir. 1999). "These two formulations represent
5 two points on a sliding scale in which the required degree of irreparable harm increases as
6 the probability of success decreases." Roe v. Anderson, 134f.3d 1400, 1402 (9th Cir.
7 1998)." Nichols v. Deutsche Bank National Trust Company, 2007 US. Dist. LEXIS 86223.
8 Here, Plaintiff asserts that preserving the status quo means returning the possession of her
9 home before judgment in this case is entered. As she is able to show probable success on
10 the merits (as discussed at length above) and the imminent threat of great irreparable harm
11 (In California, a foreclosure sale of real property presumptively constitutes irreparable

12 harm as a matter of law, thus establishing that portion of the TRO requirement. Wheat v.

13 Thomas, 209 Cal. 306 (1930); C.C.P. § 3387. As a practical matter, Plaintiff cannot re­
14 place her house; if the Trustee's Sale is made to a bona fide purchaser, she will lose this
15 unique property she has made so many sacrifices to keep. Plaintiff successfully supports
16 her claim for injunctive relief.
17 F. Elements Of Fraud Are Properly Pleaded.

18
Under California law, the elements of common law fraud are "misrepresentation,
19
knowledge of its falsity, intent to defraud, justifiable reliance and resulting damage." Gil v.
20
Bank ofAm., NA., 42 Cal. Rptr. 3d 310, 317 (Cal Ct. App. 2006). Common law claims of
21
fraud must be pled with sufficient particularity. See Fed. R. Civ. P. 9(b) ("In alleging fraud
22
or mistake, a party must state with particularity the circumstances constituting fraud or
23
mistake."). Therefore, in addition to the "time, place and content of an alleged misrepre­
24
sentation," a complaint "must set forth what is false or misleading about a statement, and
25
... an explanation as to why the statement or omission complained of was false or mislead­
26
ing." Yourish v. Cal. Amplifier, 191 F.3d 983, 993 & n.10 (9th Cir. 1999) (citations omit­
27 ted). It is clear that Plaintiff has pled the circumstances of the alleged fraud with sufficient
28 particularity. The allegations of the Complaint are specific enough to meet the heightened
10

Opposition to Motion to Dismiss

 1 Rule 9(b) standard. Let us begin with Plaintiffs loan application, which was filled in with
2 fraudulent figures by BANA' s agents. Actual fraud under Cal. Code § 1572 consists of in­
3 tentional acts to deceive and or to induce the other party to enter into the contract the sug­
4 gestion, as a fact, of that which is not true, by one who does not believe it to be true; the
5 positive assertion, in any manner not warranted by the information of the person making it,
6 of that which is not true, though the person making the assertion believes it to be true; the
7 suppression of that which is true, by one having knowledge or belief of the fact; a promise
8 made without any intention of performing it; and any other act fitted to deceive. All these
9 facts are pled with particularity. Defendants argue in effect that BANA's conduct exceeded
10 that of a typical money lender. So everybody was doing it. EXHIBIT C is an prime exam-
11 pie of BANA's hubris.

12
G. A Present And Actual Controversy Exists Between Defendant And Plaintiff Re­
13
quiring A Judicial Declaration.
14
Defendants focus only on one aspect of Plaintiffs complaint and neglect to mention
15
all allegations clearly outlined in Plaintiff s Complaint. Contrary to the argument of De­
16
fendants, the request for declaratory relief states an independent claim. If Defendant had
17
read the Complaint in its entirety, it would have become clear that although Plaintiff has
18
incorporated many of the allegations in her request for a judicial declaration, her allega­
19
tions for declaratory relief include paragraph 173: "These disputes concern but are not lim­
20
ited to the ownership rights and the validity of the commencement of the foreclosure proc­
21
ess." Paragraph 175 of the Complaint continues to state: "Plaintiff further alleges that a
22
declaration of rights and duties of the parties herein are essential to determine the actual
23
status and validity of the loan... " Contrary to Defendant's claims, Plaintiff successfully
24
bases her request for declaratory relief upon multiple violations committed against her dur­
25
ing the loan origination process and not merely on other complaints upon which Defendant
26
applies focus and attention.
27
A complete reading of Plaintiffs Complaint shows that Plaintiff "specifically al­
28 leged the existence of an actual, present controversy between the parties with respect to the
11

Opposition to Motion to Dismiss

 1 property, and [has] allege[d] the underlying facts of the respective claims concerning the
2
dispute or controversy." City olCotati v. Cashman (2002) 29 Cal.4th 69, 79. Plaintiff as­
3
serts that Defendants possess no right to foreclose on the Subject Property because none of
4
the Defendants possess the Note as it was assigned to a trust pool and that notification was
5 improper. As such, pursuant to California Civil Code §2932.5, the purported power of sale
6
contained in the Deed of Trust no longer applies, and in turn, the foreclosure attempt upon
7
the subject property is a fraud on the Court as exemplified by Defendants requesting the
8
Court to take Judicial Notice of a forged document, viz. EXHIBIT C. Therefore, there is an
9
"actual and present controversy" as to the rights and obligations of all Defendants and the
10 MOD should be denied.
11
H. Foreclosure Should Not Be Permitted If Its Propriety Is In Question.
12
Wrongful foreclosure is an action in equity wherein Plaintiff seeks to set aside a

13
foreclosure sale. See Abdallah v. United Sav. Bank, 43 Cal.App.4th 1101, 1009 (1996);

14
Karlsen v. American Sav. & Loan Assn., 15 Cal.App.3d 112, 117, 92 Cal.Rptr. 851 (1971).

15 In compliance with Rule 8, Plaintiff has alleged facts indicating why Defendants' foreclo­

16
sure was wrongful. Plaintiff has also based her wrongful foreclosure action on the basis of

17
California Civil Code §2923.5. As set forth in Plaintiffs Objection to Judicial Notice, Re­

18

con Trust does not have the authority to foreclose under the deed of trust because of the

19

fraudulent Substitution of Trustee document. Defendants wrongfully foreclosed on Plain­

20 tiff's property and they owed Plaintiff a duty of care. See Garcia v. Ocwen Loan Servicing,

21

LLC, 2010 WL 1881098 (N.D.Cal.) (Denying motion to dismiss claim against loan ser­
22
vicer and holding that servicer owed borrower a duty of care). Specifically, the servicing of

the loan was intended to affect Plaintiff and her home.

23

There was a clear foreseeability of harm to Bernice Jacobs as she could lose her
24

home. Moreover, the loss of Plaintiff's home would be a proximate cause of the Defen­
25
dants' breach of their duty of care. The Defendants wrongfully recorded a notice of de­
26

fault on the property. Also, moral blame must be attached to the Defendants' conduct as
27

they knowingly recorded the default even though they knew that they that they did not
28

12

Opposition to Motion to Dismiss

 have the legal authority to do so. Additionally, through legislation, California has estab­
2 lished a policy of preventing unnecessary and wrongful foreclosures. Therefore, Plaintiff's
3 wrongful foreclosure cause of action is proper and Defendants' MOD should be denied.
4 The California Supreme court in More v. Calkins (1895) 84 Cal. 177 held that a sale under
5 foreclosure ought not to be made when the debt is uncertain or in dispute. This is still true
6 today as the Court in Baypoint Mortgage Corp. v. Crest Premium Real Estate etc., Trust
7 (1985) 168 Cal.App.3d 818 [214 Cal. Rptr.3d 531] noted "Given the drastic implications of
8 a foreclosure, it is not surprising to fmd courts quite frequently granting preliminary in­
9 junctions to forestall this remedy while the court considers a case testing whether it is justi­
10 fied under the facts and law." See, e.g., Stockton v. Newman (1957) Cal.App.2d 558 [307
11 P2d. 56J; Bisno v. Sax (1959) 175 CaLApp2d 714 [346 P2.d .S14].
12 BANA asserts that it is the beneficiary of the note. Only BANA knows whether
13 plaintiff's loan was on the books as an asset of Freddie Mac on January 14, 2008 when
14 BANA purportedly made the loan to Plaintiff. It is questionable that BANA was the owner
15 of Plaintiff's property at the time it loaned money to the Plaintiff. Where factual findings
16 or the contents of the documents are in dispute, those matters of dispute are not appropriate
17 for judicial notice. Caravantes v. California Reconveyance Co., 2010 WL 4055560, 9
18 (SD.Cal. 2010), citing Darensburg v. Metropolitan Transp. Comm'n, 2006 WL 167657, at
19 2 (N.D.Cal. Jan.20, 2006).

20
The irregularities in this transaction between Plaintiff and BANA question the basic
issue of whether BANA has the standing to enforce the rights associated with the deed of
21
22 trust. See Stephen R. Buchenroth and Gretchen D. Jeffries, Recent Foreclosure Cases:
23 Lenders Beware (June 2007); Wells Fargo v. Jordan, 914 N.E.2d 204 (Ohio 2009) ("If
plaintiff has offered no evidence that it owned the note and mortgage when the complaint
24
was filed, it would not be entitled to judgment as a matter of law."); Christopher Lewis Pe­
25
terson, Foreclosure Subprime Mortgage Lending, and the Mortgage Electronic Registra­
26
tion System, University of Cincinnati Law Review, Vol. 78, No.4, at 1368-1371 (Summer
27

28
13

Opposition to Motion to Dismiss

 1 2010). Defendants' claims are as barren as their assertion that they "properly recorded the
2 Substitution of Trustee" EXHffiIT C (An obviously forged instrument).
3

4 III. CONCLUSION:
5 There is clearly a significant and deep-reaching controversy brewing between the
6 parties and a pressing need for a judicial determination of the parties' rights and duties
7 concerning the validity of the Promissory Note and Deed of Trust and Defendants' rights
8 in the Property. The Defendants' use of fraudulent documents has affected determinations
9 regarding the foreclosure on Plaintiffs property. For the reasons stated above, this Court
10 should deny the motion to dismiss Plaintiff's Complaint and permit her to develop the evi­
11 dence necessary to vindicate her claims and obtain damages for the wrongs committed
12 against her.
13

14

15 LAW OFFICES OF MELBOURNE B. WEDDLE

Dated: January 4,2011
16 lsi Melbourne B. Weddle
17
Melbourne B. Weddle, Attorney for Plaintiff
18

19

20

21

22

23

24

25

26

27

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14

Opposition to Motion to Dismiss