CROMWELL vs. NDEX WEST LLC: Kimberly is a Winner After a Long Haul” Perseverence Pays Off

Hi All,
I filed a lawsuit against NC, Wells Fargo, and DB in June 2008. I was given a TRO based on my making my regular mortgage payment. Which I did, but they only cashed 1/2 of the checks, then sent the money back to me, put a stop payment on that check, then went in and asked for the TRO to be dissolved because I wasn’t paying. And the judge did! So I file a BK and got a stay; good news is we just survived a MSJ — found out the assignment is not valid because it violates CCC 1095. (I found a website that had a lot of Countrywide attorneys talking about how all their assignments were being kicked back from Freddie Mac and Fannie Mae because they violated 1095). Any way…I have a trial date for 6/1 in front of a jury in Contra Costa County Superior Court. DON’T UNDERESTIMATE THE VALUE OF CHECKING TO SEE IF THE ASSIGNMENTS VIOLATE 1095.

This is the tenative ruling that was CONFIRMED. They granted a summary adjuication on two of the causes but the court finds I have valid evidence to go to trial on three of the causes…now that they no longer have the asssignment (which has no valid POA either!) they will have to provide evidence of ownership another way.

CASE#: MSC08-01603
CASE NAME: CROMWELL vs. NDEX WEST LLC
HEARING ON MOTION FOR SUMMARY ADJUDICATION
FILED BY AMERICA’S SERVICING COMPANY, et al.
* TENTATIVE RULING: *

Defendants’ Motion for Summary Adjudication of the 1st cause of action for breach of contract is granted, for the reason the alleged oral agreement violates the statute of frauds. See CC § 1624(a)(3); Secrest v. Security National Mortgage Loan Trust 2002-2 (2008) 167 Cal. App. 4th 544, 553. In addition, the oral agreement lacks consideration, as a commitment to perform a preexisting contractual obligation has no value. See Auerbach v. Great W. Bank (1999) 74 Cal. App. 4th 1172, 1185; Raedeke v. Gibraltar Sav. & Loan Assn. (1974) 10 Cal. 3d 665, 674 n.3. Plaintiff does not dispute that under the agreement, she would make payments of specified amounts. (See evidence supporting Fact 1.) Nor has Plaintiff controverted Defendants’ evidence that she was in arrears by eight months over $25,000 in accrued principal and interest, and owed ASC another $15,636.39 in tax advances; Cromwell declaration ¶¶ 5-6. Plaintiff’s argument that consideration exists in that she paid monies to entities that do not have a right to collect payment lacks merit.

To the extent Plaintiff is attempting to assert an additional claim in her 1st cause of action for breach of the implied covenant of good faith and fair dealing, that claim also lacks merit. There is no obligation to deal fairly or in good faith absent an existing contract. See Racine & Laramie, Ltd. v. Department of Parks & Recreation (1992) 11 Cal. App. 4th 1026, 1032.

Summary adjudication of the 2nd cause of action for fraud is denied. Plaintiff alleges that Defendants falsely represented that they had the authority to sell her property and concealed from her that they had no such authority because they had never recorded an assignment of the Deed of Trust. Defendants show that there was a recorded Assignment of Deed of Trust dated March 26, 2008, wherein New Century purported to assign to Deutsche Bank all beneficial interest under the Deed of Trust. However, Plaintiff correctly asserts that this assignment is invalid for the reason it violates CC § 1095, in that it was executed solely by Wells Fargo as attorney-in-fact for New Century, without subscribing New Century’s name. See Morrison v. Bowman (1865) 29 Cal. 337, 341, 352; Mitchell v. Benjamin Franklin Bond & Indem. Corp. (1936) 13 Cal.App.2d 447, 448.

Regardless, Defendants contend in their reply that Plaintiff has admitted that Deutsche Bank entered into a Pooling and Servicing Agreement (“PSA”) dated March 1, 2006, and that pursuant to ¶ 2.01 of the PSA, Morgan Stanley Capital I, Inc., as Depositor, conveyed to Deutsche Bank, as trustee, “the right, title and interest to the subject Deed of Trust and subject Promissory Note.” Defendants assert that this concession by Plaintiff alone is sufficient to sustain summary adjudication in Defendants’ favor. The court disagrees. There is no evidence, submitted by either Plaintiff or Defendants, that the PSA or any of the other documents attached to Plaintiff’s request for judicial notice actually involve Plaintiff’s mortgage. There is only Plaintiff’s assertion to that effect in her opposing argument. The documents provided in Plaintiff’s request for judicial notice include only a few select pages from each of the documents, and it is not shown that Plaintiff’s mortgage is necessarily included in them.

Summary adjudication of the cause of action for declaratory relief is denied for the same reasons applied to the fraud cause of action.

Summary adjudication of the cause of action for unjust enrichment is granted. Plaintiff does not dispute that her allegations that Defendants violated the TILA and RESPA lack merit. See evidence in support of Defendants Facts 8 & 9. Plaintiff contends that the unjust enrichment cause of action succeeds because her fraud claims justify her loan rescission, and also because Defendants hold no interest in the note. These arguments fail because they are not supported by the allegations in the cause of action for unjust enrichment. The pleadings serve as the outer measure of materiality in a summary judgment motion, and the motion may not be granted or denied on issues not raised by the pleadings. Weil & Brown, Civ. Proc. Before Trial, § 10:10:17.

Summary adjudication of Plaintiff’s cause of action for quiet title is denied for the reason Defendants fail to address the entire cause of action as alleged. Contrary to Defendants’ assertion, rescission under the TILA is not the sole basis for Plaintiff’s claim, as she also seeks to quiet title at ¶ 162 on the ground Defendants’ claims “are without any right, and Defendants have no title, estate, lien, or interest in the Subject Property.” Because Defendants have not prevailed in regard to Plaintiff’s fraud cause of action, Defendants cannot assert that they have also shown Plaintiff is not entitled to quiet title on this basis. In addition, Defendants fail to address Plaintiff’s express allegations that she is excused from tendering the full amount of the loan. (¶¶ 164, 165.)
Defendants’ objections are sustained. The parties’ requests for judicial notice are granted.

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18 Responses

  1. We live in Las Vegas Nevada, and

    WE’RE IN NEED OF URGENT ASSISTANCE!

    Anyone willing to help us,

    PLEASE DO SO A.S.A.P.
    We received a Notice Of Sale which stated, our house was to be sold at an auction on 1/4/10. The auction was postponed that day, by the Trustee. A new sale date was set for 1/6/10. When I talked to the auction co. on 1/5/10, the day before the new sale was to take place, they told me the Trustee sold our house a day early. I told the auction co. that’s not possible because, they both knew the sale was set for 1/6/10. Also since THERE WAS NO NOTICE OF A SALE TO BE HELD ON 1/5/10, if sale was to take place on 1/5/10 it would be a violation of the statue regarding Default And Sale, and may declared be void. To which the auction co. responded “at least it was the that Trustee screwed up, and not us”.
    About 3 days later, a Realtor came to our door. He said he represented the bank, who he said now owns our house, and wants to know what our plans are.
    I showed him what the Trustee and the auction co. did, and that since they recorded a Trustee Deed, with fraud on it’s face, even after I informed them the sale was held w/o notice, they’ve forced us to find help to void the sale. About a month later when he called, we told him we’re seeking assistance so we can fight back. We never received another word since.
    On 4/13/10 we received a UNLAWFUL DETAINER summons, an Order To Show Cause why we should not be removed from our house. We only have 3 days left to file a formal written response, with our intention to defend.
    I plan to request a trial on the merits of their Complaint. I want to present all the facts stated above, which I’ve everything to support.
    We must win this case, it’s all we have left.

    1). Leaving a reply here,
    2). Via email to kzyh@hotmail.com or,
    3). Calling 702 _ 782 _ 9159.

    THANK YOU.

  2. Kimberly C.

    Great Job, I have a couple of questions. I am in the same boat in NY, They (Bank of NY mellon as trustee for CWABS Inc.) filed a summons and complaint on 12/10/09 and said an assignment was done on 12/7/09, as trustee for certificate holders series 2002-BC3, where the cut-off date was sometime in 8/2002.
    My question is, if the assignment was for the mortgage only, was it possible for them to take physical possession of the note and then assign the mortgage only, after the cut-off date? or was the assignment fabricated for the purpose of placing a defaulted loan into the pool for collection of a Credit Default Swap.
    Also the Attorney who filed the summons and complaint for the plaintiff BNY, also did the assignment for MERS to BNY, supposedly 3 days prior to filing the complaint on a mortgage that was over 120 days late?

  3. KImberly C.
    email me at carra2009@gmail.com

    I have similar. I filed major fraud TILA etc in Calif Sup Ct.
    But have also filed an AP or adversary proceeding against New Century in their Delaware BKR case last fall 2009.

    Making progress. I also have major issues with assignments, trust etc.

    How do you plan to get any discovery from New Century?

    Consider this–if you file an AP up there in Delaware, you may be able to get discovery from them!!

    Also, I got my late filed POC approved by court up there.

    There is a small group of homeowners who have APs going against NC in Delaware right now.

  4. You are all doing great. Thanks to Mr. Garfield and all others who are fighting and speaking out here. Been watching this for years – and finally there appears to be a turning point. Know of some foreclosure attorneys who have just flown the coup – gave up.

    Keep fighting – do not give up. And, if you have already lost your home – bring new action for fraud on the court.

    Hearing rumors. Continue to contact your congressman and the Obama administration about the fraud you have encountered. Need back-up publicity to win in court. Fight your own cause but also bring your actions to the attention of the administration and Department of Justice. Let them know what is going on.

  5. HI,
    IN HEARING CALIFORNIA 4-20-10 FOR MOTION TO COMPEL NDEX WEST FOR DISCOVERY. THEY HAVE NOT ANSWERED NOR COMPLIED. THE MOTION WITH SEPARATE STATEMENTS ARE ON SCRIBD. THE EVIDENCE HEARING IS SET FOR 4-26-10. HERE IS THE LINK WITH MY REPLY TO THEIR OPPOSITION TO MY MOTION FOR EVIDENCE HEARING. GET THIS LATE ASSIGNMENT INTO THE TRUST BY DBNTC 8-20-09 THE TRUST WAS CLOSED 3-29-07. THEN I FILED MY SUIT 10-23-09 AND NDEX WAS THE ASSIGNED TRUSTEE 10-30-09. THE ASSIGNMENT WAS DONE BY MERS VIA THE ORIGINAL LENDER WHO HAD SOLD THE LOAN AND DOCUMENTED IT IN A QWR REQUEST JAN 2010. THEY SOLD ALLEGEDLY 12-21-06 AFTER THE LOAN 11-17-06. ONEWEST ACCIDENTLY GAVE ME THE TRUST CLOSING DOC SHEET ON 3-27-07 AND THEY WERE THE INVESTOR AND A COLONIAL BANK WAS THE WAREHOUSE http://www.scribd.com/doc/29926545/Plaintiffs-Reply-to-Defendants-Objection-to-Evidence-Hearing-NDEX-DBNTC-RAST-2007-A5-POOLING-AND-SERVICING-AGREEMENT-UNIVERSAL-AMERICAN-MORTGAGE-C WHO WET FUNDED THE LOAN.

  6. Hi,
    I will try to answer all your questions. First and foremost, I am not pro se, I have an attorney. Rueben Nocos, out of Redwood City, Ca. He is a homeowner champion. My win on the MSJ was his doing. God Bless him.
    Robin Hood, I will try to find the answers you are looking for.
    Brian, the 1095 is a specific code that has to do with how the assignment is done as an attorney in fact — it has nothing to do with MERS. While some might think this is a narrow ruling over a nail biting technicality, the truth is, they did this assignment:
    1) Two years after they purportedly had purchased the loan. In order for my loan to actually be in the trust Duetsche should have received an assignment in recordable form back in early 2006 and short of them having received then, it would be ILLEGAL for them to add it to the trust 2 years later. Which is what they are attempting to do.
    2) Wells Fargo FABRICATED this assignment. They have no valid POA for this assignment which was done outside of anything in the PSA.
    3) New Century is out of business; gone. In bankruptcy. They need to have authorization from the court to transfer my loan….we’ll have to see in discovery if they ever got it. But they still have deal with missing the cut off date for purchasing my loan for the actual trust.
    4) This assignment was done THREE months after the NOD….it appears Wells Fargo did it in collusion with Deutsche Bank to fraudulently take my home. My loan is with NC…not Wells, not Deutsche, not Morgan Stanley. They are all STRANGERs to me.

    Yes Karen, we are in discovery. They are fighting us. They have concealed and manufactured documents. It is a fantastical journey — you could knock me over with a feather at what I have learned about the depth of greed, corruption and sleaziness in which Wells Fargo, Morgan Stanley and Deutsche Bank do business. And Ndex West is just as guilty, moving forward as a trustee with no real proof — geez my neighbor could pay them to do a foreclosure and they would do it — damn the authority! That is a whole different can of disgust.

    Yes PJ, that is the exact internet search finding that put us on the trail of the 1095 violation.
    Ali, please reach out to Reuben, he can review my case with you. He is with Nocos Law firm out of Redwood City. He is a hard working, smart man. This is a frustrating, ugly journey and he has been a real gentleman and champion.

    I will keep you all posted of our progress.

  7. Ms. Cromwell did a great job by looking at the details. Details are important in these type of case and assuming all transactions are identical is a big mistake. Would like to see a copy of the complaint filed by Ms. Cromwell. Can’t get it online, so if anyone is in Contra Costa county, maybe they can get it from the Court and post it.

  8. This may be the link where Kimberly read the e-mails from senior council at Countywide regarding CC 1095 -F&F loans

    http://www.firstam.com/landsakes/html/email/120400poa.html

  9. Congratulations Kimberly.

    I’m not a lawyer and this is not legal advice, but …

    Have you completed Discovery yet and have the Defendants been responding to your requests? If not, go after them!

    Don’t forget to make the system work for you and try to get the trial date moved back. Make the system work for you just like lawyers and judges try to use it against you.

  10. CCC is California Civil Code

  11. What is CCC 1095 thank you

  12. “found out the assignment is not valid because it violates CCC 1095. (I found a website that had a lot of Countrywide attorneys talking about how all their assignments were being kicked back from Freddie Mac and Fannie Mae because they violated 1095)”

    Good news for Kimberly… and assume that she is referring to “Unjust Enrichment” in noting ccc 1095, if so this begs the question, why is Fannie Mae & Freddie Mac bouncing back these loans and where can one find the outlined definition, the “fine print” of said violations in F&F documents/ and or on individuals loan documents,TILA, etc.

  13. California Civil Code Section 1095

  14. Hi,

    In California and what does “as attorney-in-fact for New Century, without subscribing New Century’s name’, mean. Does it mean place the seal?

    Many have assignments of the deed of trust ( 2-3 years after it was allegedly placed into a trust formed by with the Trustee being DBNTC.

    Is CC 1095 referring to MERS as nominee for “Original Lender” to DBNTC as Trustee. ____________ authorized signatory. Is this an issue represented by CC 1095. Does there need to be a seal for “Original Lender”.

    Please respond. The internet will level the field with these foreclosure mill fraudsters.
    b.daviesmd@gmail.com Brian Davies
    760-904-4928

  15. what is CCC 1095?

  16. Hello Kimberly,

    Congratulations on your advance!!!

    Can you please explain or can someone elaborate on: “In addition, Defendants fail to address Plaintiff’s express allegations that she is excused from tendering the full amount of the loan. (¶¶ 164, 165.)”

    We are at preparing “tender offer” stage in our battle which is going to be mostly a demand for damages…

    Can someone email me the document referencing paragraph 164, 165?

    Great many thanks and keep up the fight!!!

  17. This great

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