frank yan sacramento mortgage fraud lawsuit

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Jamil L. White (Bar No. 244028) Michael D. Maloney (Bar No. 208297) LOUIS I WHITE 5600 H Street, Suite 100 Sacramento, Califomia 95819 Telephone: (916) 594-7241 Facsimile: (916) 594-7247

Attomeys for Plaintiff MARSHA SCRIBNER

FILED ; N D O R S E D

2012 JUL-5 PH |:06

SACRAMENTO COURTS DEPT #53 #54

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SACRAMENTO

MARSHA SCRIBNER, an individual;

Plaintiff,

V.

CALIFORNIA LOAN SERVICING, LLC, a business entity; FRANK YAN, an individual; JAMES SALONDAKA, an individual; SOME MORTGAGE BANKERS, INC., a business entity; BANK OF AMERICA, a business entity; and DOES 1 through 100, inclusive,

Defendants.

Case No.: 34-2012-00119413

First Amended Complaint for Damages and Equitable Relief for:

1. Fraud 2. Breach of Fiduciary Duty 3. Negligence 4. Violation of Cal. Bus. & Prof. Code

§17200 et seq. 5. Negligent Misrepresentation 6. Intentional Infliction of Emotional

Distress

Demand for Jury Trial

PRELIMINARY ALLEGATIONS

1. MARSHA SCRIBNER ("Plaintiff') is the victim of fraudulent activities committed by her

lender and brokers in connection with a residential mortgage loan fransaction ("Loan"). Although

Plaintiff has diligently met her obligations relating to the Loan, she continues to suffer damages

relating to the fraudulent activities of her lender and broker.

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1 FIRST AMENDED COMPLAINT

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2. Plaintiff is the rightfiil owner of real property located in Sacramento County and

commonly known as 8822 BREAKER POINT COURT, ELK GROVE, CA 95758 ("Property").

Venue is therefore proper in Sacramento County.

PARTIES

3. At all times relevant. Plaintiff was and is an individual residing in the State of Califomia,

County of S acram ento.

^ 4. Plaintiff is informed, believes, and thereon alleges, that at all times mentioned herein,

8 CALIFORNIA LOAN SERVICING, LLC ("CAL-LOAN") is a diversified financial marketing

9 and/or services corporation engaged primarily in residential mortgage banking, loan servicing,

10 and/or related businesses. CAL-LOAN is believed to be a residential mortgage broker who

11 falsely induced Plaintiff into refinancing her home. Plaintiff is informed and believes, and thereon

12 alleges, that at all times mentioned herein, CAL-LOAN is a limited liability corporation regularly

13 conducting business in the State of Califomia.

14 5. Plaintiff is informed, believes, and thereon alleges, that at all times mentioned herein,

12 Defendant FRANK YAN ("YAN") was the broker, employee, agent and/or representative of

Defendant CAL-LOAN who solicited Plaintiff to refinance her loan. Plaintiff further alleges that

YAN was one of two brokers who misrepresented the terms of the Loan. Defendant YAN held

himself out to Plaintiff as the broker, representative, and employee of Defendant CAL-LOAN,

and was acting within the course and scope of that employment when he came into contact with

Plaintiff and negotiated the Loan at issue. Plaintiff is informed and believes, and thereon alleges,

that at all times mentioned herein, Defendant YAN was and is an individual residing in the State

of Califomia.

6. Plaintiff is informed, believes, and thereon alleges, that at all times mentioned herein.

Defendant JAMES SALONDAKA ("SALONDAKA") was one of two brokers, employees,

agents and/or representatives of Defendant CAL-LOAN, who misrepresented the terms of the

25 Loan to Plaintiff Defendant SALONDAKA held himself out to Plaintiff as the broker,

26 representative, and employee of Defendant CAL-LOAN, and was acting within the course and

27 scope of that employment when he came into contact with Plaintiff and negotiated the Loan at

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issue. Plaintiff is informed and believes, and thereon alleges, that at all times mentioned herein,

Defendant SALONDAKA was and is an individual residing in the State of Califomia.

7. Plaintiff is informed and believes, and thereon alleges, that at all times mentioned herein,

SOME MORTGAGE BANKERS, INC. ("SOME") is a diversified financial marketing and/or

services corporation engaged primarily in residential mortgage banking, loan servicing, and/or

6 related businesses. Defendant SOME is believed to be the residential mortgage lender who

7 originated PlaintifPs residential Loan. Plaintiff is informed and believes, and thereon alleges, that

8 at all times mentioned herein, Defendant SCME is a corporation regularly conducting business in

9 the State of Califomia. Defendant SCME is believed to have assigned, sold, and/or transferred its

10 interest in the loan to Countrywide Home Loans.

] 2 8. Plaintiff is informed and believes, and thereon alleges, that at all times mentioned herein,

Y2 BANK OF AMERICA ("BOFA") is a diversified financial marketing and/or services corporation

J2 engaged primarily in residential mortgage banking, loan servicing, and/or related businesses.

Plaintiff is informed, believes, and thereon alleges that, in July 2008, BOFA purchased

Countrywide Home Loans, thereby acquiring Countrywide Home Loans' interest in Plaintiffs

Loan.

9. Plaintiff is ignorant of the tme names and capacities of the Defendants sued herein under

the fictitious names Does 1 through 100, inclusive, and Plaintiff will amend this complaint to

allege such names and capacities at such time when they are ascertained. Each fictitiously named

Defendant is responsible in some manner for the v^Tongfiil acts complained of herein.

10. Plaintiff is informed, believes, and thereon alleges that at all times herein mentioned, each

Defendant was acting as the agent, servant, employee, partner, co-conspirator, and/or joint

venturer of each of the remaining Defendants. Each Defendant was acting in concert with each

remaining Defendant in all matters alleged, and each Defendant has inherited any and all

violations or liability of their predecessors-in-interest. Additionally, each Defendant has passed

any and all liability to their successors-in-interest, and at all times were acting within the course

and scope of such agency, employment, partnership, and/or concert of action.

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FIRST AMENDED COMPLAINT

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STATEMENT OF FACTS

11. In or about January 2007, Defendant YAN, as broker, agent, and representative of

Defendant CAL-LOAN, solicited Plaintiff by phone to discuss refinancing the mortgage on

Plaintiffs Property.

12. After speaking to Defendant YAN, Plaintiff pursued refinancing her home loan with the

6 primary goal of consolidating her debts into a single payment. As such, at the direction and

7 counsel of Defendant YAN, Plaintiff decided to refinance the Property through CAL-LOAN.

8 Plaintiff relied on Defendant YAN's promises that she would receive the best interest rates and

9 loan available to her.

10 13. To this end. Plaintiff began working with Defendants YAN, SALONDAKA, and CAL-

11 LOAN (collectively, "BROKERS"). Defendants BROKERS held themselves out as qualified

j2 brokers representing Plaintiffs interests, and, as such, BROKERS owed Plaintiff fiduciary duties

2 including, but not limited to, the duty to disclose all terms and conditions of the transaction.

Instead, Plaintiff, through her tmst and reliance in BROKERS, was steered into executing an

unfavorable loan without the full knowledge of its terms.

14. Over the phone, Plaintiff provided Defendant YAN with the information he requested in

order to complete a Uniform Residential Loan Application ("URLA"). Plaintiff was subsequently

contacted by a second agent of CAL-LOAN, Defendant SALONDAKA, who continued

processing Plaintiff's loan application. As with YAN, SALONDAKA promised at all times to

protect Plaintiffs financial welfare through finding the best interest rates and loan available.

15. Plaintiff informed Defendants YAN and SALONDAKA that she wanted a standard, fixed

rate loan. Instead, BROKERS counseled Plaintiff that an interest-only loan would be in

Plaintiffs best interest, purportedly based on the ability to pay a lower monthly payment. Based

23 on the financial information provided by Plaintiff, BROKERS represented that the most favorable

24 loan Plaintiff qualified for was an adjustable interest-only loan at 6.375%. Defendants

25 BROKERS failed to disclose the negative aspects of this type of loan, including the inevitability

26 of much higher payments once the rate began to adjust. Instead, BROKERS represented to

27 Plaintiff that interest-only payments were the best option for Plaintiffs financial situation.

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16. Defendants BROKERS further represented to Plaintiff that she would be able to easily

obtain refinancing of the Loan in the fiiture. In reliance on the advice and purported expertise of

BROKERS, Plaintiff proceeded with the Loan transaction.

17. Prior to closing. Plaintiff did not receive a copy of any of the Loan documents to review.

Upon closing, a notary presented Plaintiff for the first time with the relevant documents. Plaintiff

6 is informed and believes, and thereon alleges, that an agent of CAL-LOAN instmcted that the

7 loan documents be back dated to disguise that they had not been provided earlier.

8 18. Neither Defendant YAN nor SOLONDAKA was present at closing. Instead, BROKERS

9 sent a notary to Plaintiffs place of employment who mshed Plaintiff through signing during a

10 break without any explanation of the documents and without sufficient opportunity to read the

11 paperwork prior to signing. As such. Plaintiff did not notice that the material terms of the Loan

j2 differed from those promised to her by Defendants BROKERS. As a result of Defendants'

j2 conduct, Plaintiff had neither knowledge nor reasonable opportunity to leam the tme terms of the

Loan.

19. On Febmary 20, 2007, Plaintiff executed a promissory note ("Note") and Deed of Tmst

("Deed") in favor of Defendant SCME. The Deed was recorded on February 28, 2007. The Deed

contains a provision for attomey's fees.

20. Plaintiff began making payments in accordance with the Loan, and Plaintiff has continued

to meet her obligations under the Loan.

21. In September 2010, Plaintiff became suspicious of the true nature of her loan after

receiving multiple solicitations from companies providing loan reviews. Based on these

suspicions, Plaintiff hired an independent consulting company to review her loan documents.

After this review was completed, Plaintiff learned for the first time the extent of Defendants'

fraudulent acts as described herein. Had Plaintiff been aware of Defendants' unlawrftil acts at the

24 time of closing, Plaintiff would not have executed the Loan. As such, discovery was delayed

25 until September 2010 equitably tolling the applicable statute of limitations.

26 22. The review revealed that Defendants BROKERS misrepresented and/or concealed the true

27 terms of the Loan. Specifically, YAN and SALONDAKA represented to Plaintiff that she would

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only be required to pay interest for the first five years. In actuality, Plaintiffs payments were

stmctured to apply to the interest for the first ten years.

23. Likewise, the review revealed that after five years Plaintiffs interest rate would adjust and

could increase up to 11.375%. Plaintiff was never provided with an interest or adjustment rate

schedule, and BROKERS never explained the significance of the adjustment or how it would be

6 calculated. Additionally, the impact of the adjustment on the total cost of the Loan was never

7 explained to Plaintiff.

8 24. At the time Defendants BROKERS procured the loan for Plaintiff, both YAN and

9 SALONDAKA expressly assured Plaintiff that they were acting in her best interests and

10 providing her with the best loan available. Defendants BROKERS knew, or should have known,

11 that their assurances regarding the nature of the loan were false and misleading.

22 25. In actuality, Defendants BROKERS received a greater commission or bonus for placing

22 borrowers in loans with relatively high yield spread premiums. As such, borrowers like Plaintiff

were steered and encouraged into loans with unfavorable terms that had a specified risk grade less

favorable than other risks for which the borrowers would have been qualified.

26. In addition. Plaintiff leamed for the first time through the review of her loan documents

that BROKERS had a substantial financial interest in pushing Plaintiff into the Loan in the form

of a yield spread premium. At no point in time did Defendants BROKERS disclose to Plaintiff

their financial interest in the Loan.

27. By the time Plaintiff refinanced in Febmary 2007, an imminent crash in the housing

market was widely expected. Defendants BROKERS knew or should have known that there was

a substantial risk that Plaintiffs Property value would decline in the years following this

refinance. As such, Defendants BROKERS knew or should have known that counseling Plaintiff

2- to refinance into a volatile loan would negatively affect Plaintiff

24 28. Likewise, said Defendants knew, or should have known, that their promises of refinancing

25 were false and misleading, inasmuch as they knew that the Loan was volatile and the market was

26 poised to change. As such, by representing that the Loan was in Plaintiffs best interests and

27 could be easily refinanced, Defendants BROKERS provided harmful and damaging advice to

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29. Furthermore, Defendant SCME knew, or should have known, that Defendant CAL-LOAN

and its agents. Defendants YAN and SALONDAKA, were engaging in fraudulent conduct.

Defendant SCME approved a loan application riddled with facial irregularities that would put

Defendant SCME on notice that Defendants BROKERS breached their fiduciary duties, and

thereby ratified the fraudulent conduct of Defendants BROKERS.

6 30. Defendants BROKERS fraudulently induced Plaintiff into executing a loan agreement

7 BROKERS knew, or should have known, that Plaintiff could not afford. Defendant SCME knew

8 about these misrepresentations, yet approved the loan and assented to the benefits of the loan.

9 Defendant SCME then assigned, sold, and/or fransferred its interest to Countrywide, which was

10 subsequently acquired by BOFA.

11 31. Plaintiff, in need of a more affordable mortgage payment, contacted Defendant BOFA on

22 or around May of 2011 to explore the loan modification options provided by BOFA.

22 32. On June 28, 2011, Plaintiff was informed by an authorized representative of Defendant

BOFA that BOFA would permanently modify her loan. Since that time and despite the

authorized representation that her permanent loan modification was forthcoming. Defendant

BOFA has continually reassigned her loan modification case from representative to

representative. These representatives have continuously stated to Plaintiff that her permanent

loan modification is in various states of the process. However, to date. Plaintiff has yet to receive

such a permanent loan modification. These authorized representatives include, but are not limited

to, "Chariotte," ".Johnny" (ID #2807), "Valerie," "Lauren" (ID #8203), "Jackie" (ID # 2910),

"Tara" (ID #8633), Linda Brown and Marlene Okolyta. Plaintiff is currentiy assigned to Ruben

Luna, an authorized representative of Defendant BOFA.

33. These misrepresentations of Defendant BOFA representatives has been done with the

2- intent to delay any proposed loan modification until Plaintiff has no choice but to discontinue

24 payments and fall behind on her mortgage payments.

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FIRST CAUSE OF ACTION 26 Fraud

(Against all Defendants)

34. Plaintiff incorporates all allegations of this complaint and re-alleges them as though they

were fiilly set forth herein.


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35. Defendants conduct, as alleged above, constitutes fraud.

36. Defendants knowingly and recklessly made false and misleading statements that Plaintiff

relied on to her detriment and was damaged thereby.

37. Defendants BROKERS intentionally or recklessly misrepresented material facts.

Defendant CAL-LOAN, through its agents YAN and SALONDAKA, promised Plaintiff that it

6 would act in her best interests and secure for her the best loan available. Defendants BROKERS

7 fiarther promised that Plaintiff could later refinance the loan. These promises were false and

8 misleading.

9 38. Defendants BROKERS failed to disclose significant terms pertaining to the Loan.

10 Defendants concealed that Plaintiffs monthly Loan payments for the first ten (10) years would by

11 interest only. Likewise, Defendants failed to disclose to Plaintiff the tme interest schedule or

22 adjustment rate of the Loan, or the impact of these terms on the total cost of the Loan.

22 39. All of these representations and omissions made by Defendants BROKERS were false and

material, and these material representations and omissions were made with the knowledge of their

falsity or with reckless disregard for the tmth.

40. Defendants intended for Plaintiff to rely on these material representations and omissions,

and Plaintiff did rely on these representations when she put her faith on the purported expertise of

Defendants BROKERS and assented to the advice provided by Defendants BROKERS with

respect to the procurement of the Loan.

41. Plaintiff reasonably relied on said representations in signing the loan agreement and

making mortgage payments.

42. Defendant SCME encouraged and incentivized the fraud perpefrated by Defendants

BROKERS. As such, SCME ftirther perpetuated the fraud through its acceptance of the Loan

application and ratification of the fraud committed by BROKERS.

24 43. The conduct of Defendant BOFA, as alleged above constitutes fraud. Defendant BOFA's

25 authorized representatives knowingly and recklessly made false and misleading statements

26 regarding material facts including, but not limited to, BOFA's authorized representatives

27 informing Plaintiff that they would permanentiy modify her loan, when the actions of Defendant

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BOFA are in sharp confrast to that representation and is done with the intent of stringing along

Plaintiff until she becomes delinquent on her loan. Thereby creating an artificial default.

44. Defendant BOFA knew or should have known that refusing to consider Plaintiff for a

modification while she was current on their loan and then stonewalling Plaintiffs modification

inquiries for several months could create an insurmountable deficiency which Plaintiff would be

6 unable to pay on demand.

7 45. As a result of Plaintiff s reliance, she is entitied to actual damages including, but not

8 hmited to, loss of money and property including, but not limited to, losses through overcharges

9 and unlawfully unfavorable loan terms, incurred attorneys' fees and costs to save her home, a loss

10 of reputation and goodwill, destmction of credit, severe emotional distiess, loss of appetite,

11 fhisfration, fear, anger, helplessness, nervousness, anxiety, sleeplessness, sadness, and depression,

22 according to proof at trial but within the jurisdiction of this Court.

22 46. Defendants are guilty of malice, fraud and/or oppression, as defined in Califomia Civil

Code § 3294. Defendants' actions were malicious, willful, and in conscious disregard of the rights

and safety of Plaintiff in that the actions were calculated to injure Plaintiff. As such, Plaintiff is

entitled to recover, in addition to actual damages, punitive damages to punish Defendants and to

deter them from engaging in fiiture misconduct.

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17 SECOND CAUSE OF ACTION

^ 8 Breach of Fiduciary Duty 2 g (Against Defendants CAL-LOANS, YAN, SALONDAKA and SCME)

47. Plaintiff incorporates all allegations of this complaint and re-alleges them as though they 20

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were ftilly set forth herein.

48. Defendants YAN, SALONDAKA and CAL-LOAN represented themselves as qualified

mortgage brokers to Plaintiff and represented that they were acting in Plaintiffs best interests.

Plaintiff hired Defendants YAN, SALONDAKA and CAL-LOAN as her real estate broker. As

such, Defendants BROKERS acted on Plaintiffs behalf for the purpose of refinancing Plaintiffs

Property. Thus, Defendant YAN, SALONDAKA, and CAL-LOAN were all agents for the

Plaintiff by express and implied contract and by operation of law.

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49. Accordingly, Defendants YAN, SALONDAKA and CAL-LOAN each owed a fiduciary

duty to the Plaintiff to act primarily for Plaintiffs benefit, to act with proper skill and diligence,

and to refrain from making a personal profit at the expense of Plaintiff.

50. Likewise, as Plaintiffs agents, Defendants BROKERS owed Plaintiff a duty of loyalty

and a duty of fair dealing at all times.

6 51. Defendants BROKERS sold Plaintiff a loan which consisted of the refinancing of a

7 consumer loan. Plaintiff, at the direction of said Defendants, entered into the agreement because

8 BROKERS advised Plaintiff that they could get her the best deal and the best interest rates

9 available on the market.

10 52. Defendants BROKERS knew, or should have known, that these assurances were false and

12 misleading. As a brokerage firm and as Plaintiffs agents. Defendants BROKERS had a duty to

22 disclose all terms and conditions of the transaction. However, BROKERS failed to disclose

material terms affecting Plaintiffs interests.

53. Defendants BROKERS did not disclose that the Loan was interest only for the first ten

(10) years. Additionally, BROKERS did not disclose to Plaintiff the tme interest schedule or

adjustment rate of the Loan, or the impact of these terms on the total cost of the Loan.

Defendants BROKERS also failed to disclose the Yield Spread Premium they were paid for

placing Plaintiff in a high-risk loan.

54. Defendants BROKERS owed a fiduciary duty to Plaintiff to wam Plaintiff of the

propensities of the market in both the short and long term. Defendants BROKERS held

specialized knowledge of the housing market. As brokers, they are familiar with the housing

market, thus enabling them to proffer good, relevant advice. BROKERS knew, or should have

known, that a market crash was imminent. As such, Defendants had a duty to wam Plaintiff that

the housing market could "crash" at any moment, thus restricting Plaintiffs ability to refinance in

24 the future. Nonetheless, Defendants promised Plaintiff that she could refinance the loan.

25 55. As Defendants BROKERS proffered advice that they knew, or should have known, was

26 not in Plaintiffs best interest, Defendants breached their fiduciary duty to Plaintiff.

27 56. Defendant SCME encouraged and incentivized Defendants BROKERS' breach of their

28 fiduciary duties. Specifically, Defendant SCME aided and abetted Defendants BROKERS'


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breach of fiduciary duties because Defendant SCME knew, or should have known, that

Defendants BROKERS breached the fiduciary duties owed to Plaintiff. Defendant SCME could

have determined from loan documents provided for its review that the substantial terms were not

disclosed to the borrower.

57. In addition to knowing that Defendants BROKERS' conduct constituted a breach of

6 fiduciary duties. Defendant SCME substantially assisted and/or encouraged Defendants

7 BROKERS' breaches because SCME finalized the entire transaction, thereby ratifying

8 BROKERS' conduct.

9 58. Plaintiff has been damaged as a result of each Defendant's breaches, as indicated above.

10 Plaintiff is entitled to actual damages including, but not limited to, loss of money and property

21 including but not limited to losses through overcharges and unlawfully unfavorable loan terms,

22 incurred attorneys' fees and costs to save her home, a loss of reputation and goodwill, destmction

2 2 of credit, severe emotional disfress, loss of appetite, ti-usfration, fear, anger, helplessness,

nervousness, anxiety, sleeplessness, sadness, and depression, according to proof at trial but within

the jurisdiction of this Court.

59. Defendants consciously disregarded Plaintiffs rights, deliberately breaching the

irrespective fiduciary duties, showing willful misconduct, malice, fraud, wantonness, oppression,

and entire want of care, thus authorizing the imposition of punitive damages pursuant to

Califomia Civil Code § 3294.

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THIRD CAUSE OF ACTION 20 Negligence

(Against Defendants CAL-LOANS, YAN, SALONDAKA and SCME) 21

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61. As alleged above. Defendants BROKERS owed Plaintiff fiduciary duties to exercise

reasonable skill and care in performing their duties on behalf of Plaintiff. Defendants held

themselves out as skilled brokers and were required to possess professional real estate licenses.

62. Defendants BROKERS breached their duties to Plaintiff when they used their knowledge

and skills to place Plaintiff in an unfavorable loan.

n FIRST AMENDED COMPLAINT

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63. Defendants acted negligently by failing to disclose terms material to the Loan, by

representing to Plaintiff that refinancing would be readily available in the fiiture, and by failing to

wam Plaintiff of the potential risk that refinancing might not be available.

64. Defendant SCME acted negligentiy by promoting Defendants BROKERS' fraud and

breach of fiduciary duties, and by approving a loan that was originated in fraud.

65. As a result of Defendants' negligence, Plaintiff has been damaged and is entitled to actual

damages including, but not limited to, loss of money and property including but not limited to

losses through overcharges and unlawftilly unfavorable loan terms, incurred attomeys' fees and

costs to save her home, a loss of reputation and goodwill, destmction of credit, severe emotional

disfress, loss of appetite, finisfration, fear, anger, helplessness, nervousness, anxiety, sleeplessness,

11 sadness, and depression, according to proof at trial but within the jurisdiction of this Court.

FOURTH CAUSE OF ACTION 2 3 Unfair Competition

Violation of Business and Professions Code Section 17200 et seq. 14 (Against all Defendants)

15 66. Plaintiff incorporates all allegations of this complaint and re-alleges them as though they

2g were fully set forth herein.

2 -J 67. Defendants' conduct, as alleged above, constitutes unlawflil, unfair, and/or fraudulent

J g business practices, as defined in the Califomia Business and Professions Code § 17200 et seq. As

applied, Califomia Business and Professions Code § 17200 et seq. borrows violations from other

statutes and laws. Plaintiffs Califomia Business and Professions Code § 17200 allegations are

tethered to Plaintiffs causes of action for Fraud, Breach of Fiduciary Duties, and Negligence as

alleged above.

68. As a result of Defendants' wrongful conduct. Plaintiff has suffered various damages and

injuries according to proof at trial.

69. Plaintiff seeks injunctive relief enjoining Defendants from engaging in the unfair business

practices described herein.

70. Plaintiff ftirther seeks restitution, disgorgement of sums wrongfully obtained, costs of suit,

reasonable attomeys' fees, and such other and ftirther relief as the Court may deem just and

proper.


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1 FIFTH CAUSE OF ACTION

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Negligent Misrepresentation (Against All Defendants)

72. Plaintiff incorporates all allegations of this complaint and re-allege them as though they


73. As indicated above. Defendants made certain representations to Plaintiff, and asserted

them to be tme.

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8 74. Defendant BOFA's authorized representatives negligentiy made false and misleading

9 statements regarding material facts including, but not limited to, BOFA's authorized

representatives infomiing Plaintiff that they would permanentiy modify her loan, when the

actions of Defendant BOFA are in sharp confrast to that representation and is done with the intent

of stringing along Plaintiff until she becomes delinquent on her loan. Thereby creating an

artificial default.

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15 75. Defendants BROKERS negligently misrepresented material facts. Defendant CAL-

16 LOAN, through its agents YAN and SALONDAKA, promised Plaintiff that it would act in her

17 best interests and secure for her the best loan available. Defendants BROKERS fiirther promised

18 that Plaintiff could later refinance the loan. These promises were false and misleading.

19 76 Defendants BROKERS failed to disclose significant terms pertaining to the Loan.

20 Defendants concealed that Plaintiffs monthly Loan payments for the first ten (10) years would be

22 interest only. Likewise, Defendants failed to disclose to Plaintiff the tme interest schedule or

22 adjustment rate of the Loan, or the impact of these terms on the total cost of the Loan.

77. These representations and assertions were not tme.

78. Defendants had no reasonable grounds for believing the representation to be tme when

they made it.

79. Defendants intended that Plaintiff rely upon their representations.

80. Plaintiff has been damaged as a result of each Defendants' misrepresentations, as

indicated herein. Plaintiff is entitled to actual damages including, but not limited to, loss of


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money and property including but not limited to loss of down payment, loss of loan payments,

loss of equity, losses through overcharges, unfavorable loan terms, incurred attomeys' fees and

costs to save her home, a loss of reputation and goodwill, destmction of credit, severe emotional

disfress, loss of appetite, finisfration, fear, anger, helplessness, nervousness, anxiety, sleeplessness,

sadness, and depression, according to proof at trial but within the jurisdiction of this Court.

81. Plaintiffs reliance on Defendants' representations was a substantial factor in causing her

harm. SIXTH CAUSE OF ACTION

Intentional Infliction of Emotional Distress (Against All Defendants)


were fully set forth herein.

83. Defendants' conduct, as alleged herein, constitutes intentional infliction of emotional

distress.

84. Defendants' conduct, by way of the intentional and/or negligent misrepresentations

described herein, was oufrageous and purposeful. Defendants employed numerous

misrepresentations in order to wrongfully induce Plaintiff into an unsustainable loan that

ultimately will lead to the loss of her home.

85. Defendants undertook these actions with the intention of causing Plaintiff emotional

disfress, or a reckless disregard of the probability of causing Plaintiff emotional disfress.

86. Defendants knew or should have known that misrepresenting to Plaintiff that they had

been approved for a home loan with specific terms and then providing a loan with different and

more burdensome terms which would eventually cause her to lose her home and would cause

Plaintiff to suffer severe emotional disttess.

87. Plaintiff did in fact suffer severe emotional disfress in the form of conftision, frustration,

fear, anguish, nervousness, helplessness, anxiety and shock as a result of Defendants' abusive

conduct. For these reasons. Defendants are guilty of malice, fraud and/or oppression, as defined

in Califomia Civil Code § 3294. Defendants' actions were malicious and willftil, in conscious

disregard of the rights and safety of Plaintiff, and calculated to injure Plaintiff. Accordingly,


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Plaintiff is entitled to recover punitive damages from Defendants pursuant to Califomia Civil

Code § 3294, in an amount according to proof

DEMAND FOR JURY TRIAL AND PRAYER FOR DAMAGES

WHEREFORE, Plaintiff MARSHA SCRIBNER demands a tiial by jury. Plaintiff prays

g for a judgment and order against Defendants, as follows:

7 1. That judgment is entered in Plaintiffs favor and against Defendants, and each of them;

8 2. For an order requiring Defendants to show cause, i f they have any, why they should not be enjoined as set forth below, during the pendency of the action;

9 . . . 3. For a temporary restraining order, preliminary and permanent injunction preventing

20 Defendants, or anyone acting in concert with them, from collecting on the subject loan and from causing the Property to be sold, assigned, fransferred to a third-party, or taken by

21 anyone or any entity;

22 4. For an order stating that Defendants engaged in unfair business practices;

23 5. For damages, disgorgement, and injunctive relief;

24 6. For compensatory and statutory damages, attorneys' fees, and costs according to proof at trial;

15 7. For exemplary damages in an amount sufficient to punish Defendants' wrongful conduct

2 5 and deter ftiture misconduct;

27 8. For such other and ftirther relief as the Court may deem just and proper.

18 DATED: July 5,2012 Respectftilly submitted,

LOUIS I WHITE

22 JAMIL L. WHITE MICHAEL D. M.

23 Attomeys for MARSHA SCRIB

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PROOF OF SERVICE

Scribner v. California Loan Servicing, LLC Sacramento County Superior Court Case No. 34-2012-00119413

STATE OF CALIFORNIA, COUNTY OF SACRAMENTO I am employed in the County of Sacramento, State of Califomia. I am over the age of 18

and not a party to the within action. My business address is 5600 H Street, Suite 100, Sacramento, Califomia 95819.

On July 5, 2012,1 served the foregoing document described as:

PLAINTIFF'S FIRST AMENDED COMPLAINT

On all interested parties in this action by placing a tme copy thereof enclosed in sealed envelopes addressed as stated on the attached service list:

[X ] BY MAIL-1 deposited such envelope in the mail in Sacramento, Califomia. The envelope was mailed, with postage thereon fully prepaid. I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon ftilly prepaid at Sacramento, Califomia in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid i f postal cancellation date or postage meter date is more than one (1) day after date of deposit for mailing affidavit. [ ] BY PERSONAL SERVICE-1 caused such envelope to be delivered by a process server employed by First Legal. [ ] BY OVERNIGHT DELIVERY-1 deposited such envelope for the collection and

delivery by Federal Express Ovemight Delivery service, with delivery fees paid or provided for in accordance with ordinary business practices. I am "readily familiar" with the firm's practice of collection and processing packages for ovemight delivery by Federal Express Ovemight for receipt on the same day in the ordinary course of business.

I declare under penalty of perjury under the laws of the State of Califomia that the above is tme and correct.

Executed on July 5, 2012, at Sacramento, Califomia.

...... J<rDlCEY YURf SAN

PROOF OF SERVICE

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SERVICE LIST

BRYAN CAVE LLP C. Scott Greene Andrea M. Hicks Margarita Calpotura 333 Market Sfreet, 25th Floor San Francisco, CA 94105

Counsel for Defendant, Bank of America

Frank Yan 2112 60th Avenue Post Office Box 221703 Sacramento, CA 95822

Defendant

James Salondaka 3871 fron Wheel Court Rocklin, CA 95765

As an Individual Defendant and as Agent for Defendant, California Loan Servicing LLC

Joseph William Davies 8324 Allison Avenue La Mesa, CA 91942

As Agent for Service of Process for Defendant, SCME Mortgage Bankers, Inc.

PROOF OF SERVICE

frank yan sacramento mortgage fraud lawsuit

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