JAMES W.
JAMES 15355 Bittern Court San Leandro, California 94579 Telephone (510) 483-1222
In pro per
SUPERIOR COURT OF CALIFORNIA, COUNTY OF ALAMEDA
JAMES W. JAMES, Plaintiff,
vs. NDEx West, LLC, and DOES 1-10 inclusive, Defendants.
) ) ) ) ) ) ) ) ) )
CASE NO. COMPLAINT TO ENJOIN FORECLOSURE, FOR DECLARATORY RELIEF, FOR AN ACCOUNTING, FOR EMOTIONAL DISTRESS, AND BAD FAITH ) ) )
______________________________ ) Plaintiff alleges: FIRST CAUSE OF ACTION (Declaratory Relief by Plaintiff James W. James Against Defendant NDEx West, LLC) 1. Plaintiff James W. James is now, and at all times relevant to this complaint
was, the Trustor under the Deed of Trust which was recorded as Instrument number 2006411772. This Deed of Trust was secured by Plaintiff's residential real property located at 15355 Bittern Court in San Leandro, County of Alameda, State of California. Under this Deed, the Trustee is Landamerica Southland Title. A copy of this Deed is attached hereto as Exhibit 1. This property is designated as Assessor's parcel number 080G-1406-097 in the
Alameda County Assessor's office. 2. Defendant NDEx West, LLC is an entity that Plaintiff has not known of until
on or about December 10, 2008. 3. Plaintiff alleges that California is a proper place for Plaintiff to institute this
suit because the real property in dispute is located in this county. 4. Plaintiff is ignorant of the true names and capacities of defendants sued
herein as DOES 1 through 10, inclusive, and therefore sues these defendants by such fictitious names. Plaintiff will amend this complaint to allege their true names and capacities when ascertained. Plaintiff is informed and believes and thereon alleges that each of the fictitiously named defendants is responsible in some manner for the occurrences herein alleged, and that plaintiff's injuries as herein alleged were proximately caused by such defendants. 5. On or about December 22, 2008, Plaintiff received a Notice of Default and
Election to Sell Under Deed of Trust from Defendant NDEx West, LLC. The Deed of Trust Defendant invoked is the Deed of Trust recorded as Instrument number 2006411772. A copy of this Notice is attached hereto as Exhibit 2. 6. To this day, Plaintiff has not received any notice of a Substitution of Trustee.
As far as Plaintiff is concerned, Landamerica Southland Title is still the Trustee of said Deed and therefore it is the only entity with the power to sell under said Deed. Therefore, an actual controversy exists between Plaintiff and Defendant concerning Defendant's authority to declare a Default on Plaintiff and the election to sell Plaintiff's residential property. 7. In the Notice of Default and Election to Sell to Plaintiff, Defendant was vague
as to the reasons for said Default and Sell, as Defendant stated in its Notice as follows: "TOGETHER WITH LATE CHARGES AS SET FORTH IN SAID NOTE AND DEED OF TRUST, ADVANCES, ASSESSMENTS, FEES, AND/OR TRUSTEE FEES, IN ANY." If Defendant does not know the exactly amount that Plaintiff allegedly owes it, then how can Plaintiff know exactly what liability Plaintiff has incurred, if ANY? Therefore, this issue
should be decided by the Court before Defendant can come in and sell Plaintiff's home. 8. Furthermore, in its Notice Defendant alleged that another reason for the Default and
Election to Sell because payments has not been made of "THE INSTALLMENT OF PRINCIPAL AND INTEREST WHICH BECAME DUE ON 7/1/2008". However, Plaintiff made his mortgage payments on July and September of 2008.
SECOND CAUSE OF ACTION (Illegal Notice of Default and Election to Sell) 9. 10. Plaintiff refers to and herein incorporates Paragraphs 1-8 of the First Cause of Action. Defendant, out of nowhere, came in and claims it has the power of Trustee and
declares that Plaintiff is in default and will sell Plaintiff's home. As far as Plaintiff knows, Landamerica Southland Title is the entity with the power to do what Defendant did and plans to do. 11. In the Declaration of Compliance of Defendant's Notice of Default and Election to
Sell (Exhibit #2) dated 12/8/2008, Defendant declared under the penalty of perjury the following: "The mortgagee, beneficiary or authorized agent has contact the borrower to discuss the borrower's financial situation and to explore options for the borrower to avoid foreclosure in compliance with Cal. Civ. Code Section 2923.5. Thirty days or more have elapsed since the borrower was contacted." The key phrase under this law of California is the "30 days". But, in this case, the first time Plaintiff was contacted by Defendant was by a letter by Defendant dated December 10, 2008. A copy of this letter is attached thereto as Exhibit 3. So, to summarize it, Defendant made a Declaration under the penalty of perjury under the laws of the state of California on December 08, 2008, then sent Plaintiff a letter of the required contact on December 10, 2008, then two days later, on December 12, raced to the County Recorder Office to record it Notice of Default and Election to sell. Therefore, Defendant did not only break the laws of the State of California, it also intended to defraud Plaintiff out of his home where he lives.
THIRD CAUSE OF ACTION (Emotional Distress) 12. Plaintiff refers to and herein incorporates Paragraphs 1-8 of the First Cause of Action
and Paragraphs 9-11 of the Second Cause of Action. 13. Defendant, intentionally or negligently, by breaking the laws of the State of
California and not following required procedures, caused Plaintiff much anguish and depression over the prospect of losing the home where he has lived for the last eight years.
FOURTH CAUSE OF ACTION (Bad Faith Dealing) 14. Plaintiff refers to and herein incorporates Paragraphs 1-8 of the First Cause of Action,
Paragraphs 9-11 of the Second Cause of Action, Paragraphs 12-13 of the Third Cause of Action. 15. By wantonly disregard for the laws of the State of California, the proper procedures,
and masquerading as the proper Trustee with full authority to declare the default and election to sell of Plaintiff's home, Defendant has committed bad faith in the dealing with Plaintiff.
FIFTH CAUSE OF ACTION (Accounting by Defendant) 16. Plaintiff refers to and herein incorporates Paragraphs 1-8 of the First Cause of Action,
Paragraphs 9-11 of the Second Cause of Action, Paragraphs 12-13 of the Third Cause of Action, and Paragraphs 14-15 of the Fourth Cause of Action. 17. Since the Notice of Default and Election to Sell did not state the correctly the amount
of money in dispute, Defendant should be ordered to surrender an accounting, including the amount it stated as "ANY".
SIXTH CAUSE OF ACTION
(Injunctive Relief by Plaintiff Against Defendant NDEx WEST, LLC) 18. Plaintiff refers to and herein incorporates Paragraphs 1-8 of the First Cause of Action,
Paragraphs 9-11 of the Second Cause of Action, Paragraphs 12-13 of the Third Cause of Action, Paragraphs 14-15 of the Fourth Cause of Action, and Paragraphs 16-17 of the Fifth Cause of Action. 19. Without the Court's intervention, Defendant will sell Plaintiff's home where Plaintiff
has lived for eight years. So, unless the Court restrains Defendant from selling or causing to be sold Plaintiff's home, Plaintiff will suffer irreparable damages in that Plaintiff has so much memory in this home, and if it is sold, Plaintiff will have little or no chance to ever re-obtain it. 20. Defendant plans to sell Plaintiff's home by wrongful and illegal method, so the
injunctive relief that Plaintiff prays for below is necessary and appropriate at this time to prevent an irreparable loss to Plaintiff. WHEREFORE, plaintiff prays for judgment against Defendants as follows: 1. That the Court issues a declaration of the rights and duties of the parties; specifically: a) Defendant has no right to sell Plaintiff's home because Defendant has no power or authority to do so, and b) Defendant broke the laws of the state of California and disregarded the required procedures of default and foreclosure, and c) The Notice of Default and Election to Sell is invalid and void. 2. That the Court issues a Temporarily Restraining Order, Preliminary Injunction, and
Permanent Injunction restraining Defendant and its agents, attorneys, successors, representatives, and all persons acting in concert or participating with them, from selling, attempting to sell, or causing to be sold the subject property either under the power of sale in the Deed of Trust or by foreclosure action. 3. That the Court renders an accounting between Plaintiff and Defendant NDEx West,
LLC. 4. 5. 6. For exemplary and punitive damages according to proof; For costs of suit herein incurred; and For such other further relief as the court may deem proper.
Dated:
__________________________ James W. James
