CHASE FALSE CLAIMS COMPLAINT REVEALED IN INVESTOR LAWSUIT

This lawsuit reveals a reason for Chase slipping in a new servicer into the chain. Having already discharged or released a loan, the “accounts” were nonetheless transferred or sold in derogation of the rights of investors who had already purchased them from Chase.

Chase decreased its liabilities, increased its revenues, avoided its obligations, and provided little to no relief to consumers.

all loan modification programs must be made available to all borrowers, who may then apply to determine eligibility. Hundreds of thousands of borrowers’ accounts, in the RCV1 system of records, were not considered for all eligible loss mitigation options (even though they could likely have qualified).

Hundreds of thousands of borrowers’ mortgage loan accounts in the RCV1 system of records were not offered and thereby unable to be considered for all eligible loss mitigation options (even though they likely could have qualified)

numerous borrowers, whose 1st mortgages had been sold by Chase to the Relator, had their 1st mortgages liens quietly released.

The Program Guidelines pursuant to the Treasury Directives are cataloged in the MHA Handbook (“Handbook”).

UNITED STATES OF AMERICA, THE
STATES OF CALIFORNIA,
DELAWARE, FLORIDA, GEORGIA,
HAWAII, ILLINOIS, INDIANA, IOWA,
MASSACHUSETTS, MINNESOTA,
MONTANA, NEVADA, NEW
HAMPSHIRE, NEW JERSEY, NEW
MEXICO, NEW YORK, NORTH
CAROLINA, RHODE ISLAND,
TENNESSEE, VIRGINIA, AND THE
DISTRICT OF COLUMBIA.,

Plaintiffs,

Ex rel. LAURENCE SCHNEIDER,
Plaintiff-Relator,

v.

J.P. MORGAN CHASE BANK,
NATIONAL ASSOCIATION, J.P.
MORGAN CHASE & COMPANY; AND
CHASE HOME FINANCE LLC,
Defendants.

Case. No. 1:14-cv-01047-RMC

Judge Rosemary M. Collyer

SECOND AMENDED COMPLAINT

<excerpt>

I. INTRODUCTION

A. Defendant’s Fraud

3. Defendant Chase’s fraud arises out of its response to efforts by the United States Government (“Government” or “Federal Government”) and the States (the “States”)1 to remedy the misconduct of Chase and other financial institutions whose actions significantly contributed
to the consumer housing crisis.

4. Defendant’s misconduct resulted in the issuance of improper mortgages, premature and unauthorized foreclosures, violation of service members’ and other homeowners’ rights and protections, the use of false and deceptive affidavits and other documents, and the waste and abuse of taxpayer funds.

Each of the allegations regarding Defendant contained herein applies to instances in which one or more, and in some cases all, of the defendants engaged in the conduct alleged.

5. In March 2012, after a lengthy investigation (in part due to other qui tam
plaintiffs) under the Federal False Claims Act, the Government, along with the States, filed a complaint against Chase and the other banks responsible for the fraudulent and unfair mortgage practices that cost consumers, the Federal Government, and the States tens of billions of dollars. Specifically, the Government alleged that Chase, as well as other financial institutions, engaged in improper practices related to mortgage origination, mortgage servicing, and foreclosures, including, but not limited to, irresponsible and inadequate oversight of the banks’ quality control standards.

6. These improper practices had previously been the focus of several administrative enforcement actions by various government agencies, including but not limited to, the Office of the Controller of the Currency, the Federal Reserve Bank and others. Those enforcement actions
resulted in various other Consent Orders that are still in full force and effect.

7. In April 2012, the United States District Court for the District of Columbia approved a settlement between the Federal Government, the States, the Defendant and four other banks, which resulted in the NMSA. The operative document of this agreement was the Consent Judgment (“Consent Judgment” or “Agreement”). The Consent Judgment contains, among other things, Consumer Relief provisions. The Consumer Relief provisions required Chase to provide over $4 billion in consumer relief to their borrowers. This relief was to be in the form of, among other things, loan forgiveness and refinancing. Under the Consent Judgment, Chase received “credits” towards its Consumer Relief obligations by forgiving or modifying loans it maintained as a result of complying with the procedures and requirements contained in Exhibits D and D-1 of the Consent Judgment.

8. The Consent Judgment also contains Servicing Standards in Exhibit A that were intended to be used as a basis for granting Consumer Relief. The Servicing Standards were tested through various established “Metrics” and were designed to improve upon the lack of quality control and communication with borrowers. Compliance was overseen by an
independent Monitor.

9. The operational framework for the Servicing Standards and Consumer Relief requirements of the NMSA was based on a series of Treasury Directives that were themselves designed as part of the Making Home Affordable (MHA) program. The MHA program was a critical part of the Government’s broad strategy to help homeowners avoid foreclosure, stabilize the country’s housing market, and improve the nation’s economy by setting uniform and industry-wide default servicing protocols, policies and procedures for the distribution of federal and proprietary loan modification programs.

10. Before the Consent Judgment was entered into, Chase sold a significant amount of its mortgage obligations to individual investors. Between 2006 and 2010, the Relator bought the rights to thousands of mortgages owned and serviced by Chase. Unbeknownst to the Relator, these mortgages were saturated with violations of past and present regulations, statutes and other governmental requirements for first and second federally related home mortgage loans.

11. After both the Consent Judgment was signed and the MHA program was in effect, numerous borrowers, whose 2nd lien mortgages had been sold by Chase to the Relator, received debt-forgiveness letters from Chase that were purportedly sent pursuant to the Consent Judgment.

12. Relator, through his contacts at Chase, was made aware that 33,456 letters were sent by Chase on September 13, 2012 to second-lien borrowers. On December 13, 2012 another approximately 10,000 letters were sent, and on January 31, 2013 another approximately 8,000 letters were sent, for a total of over 50,000 debt-forgiveness letters. These letters represented to the recipient borrowers that, pursuant to the terms of the NMSA, the borrowers were discharged from their obligations to make further payments on their mortgages, which Chase stated, it had
forgiven as a “result of a recent mortgage servicing settlement reached with the states and federal government.” None of these borrowers made an application for a loan modification as required by the Consent Judgment. These letters were not individually reviewed by Chase to ensure that Chase actually owned the mortgages or to ensure the accuracy and integrity of the borrower’s information but instead were “robo-signed”; each of the letters sent out was signed by “Patrick
Boyle” who identified himself as a Vice President at Chase.

13. Relator’s experience with Chase’s baseless debt-forgiveness letters was not unique. Several other investors were also affected by Chase choosing to mass mail the “robo-signed” debt-forgiveness letters to thousands of consumers from its system of records in order to earn credits under the terms of the Consent Judgment and to avoid detection of its illegal and
discriminatory loan servicing policies and procedures.

14. In addition to the debt forgiveness letters sent, and after both the Consent Judgment was signed and the MHA program was in effect, numerous borrowers, whose 1st mortgages had been sold by Chase to the Relator, had their 1st mortgages liens quietly released.

15. Relator, through his third party servicer, which was handling normal and customary default mortgage servicing activities, was made aware that several lien releases were filed in the public records on mortgage loans that were owned by Relator in the fall of 2013. Through Relator’s subsequent investigation of the property records for 1st mortgage loans that Chase had previously sold to Relator, scores of additional lien releases were also discovered.

16. During the course of Relator’s investigation of Chase’s servicing practices, he discovered that Chase maintains a large set of loans outside of its primary System of Records (“SOR”), which is known as the Recovery One population (“RCV1” or “RCV1 SOR”). RCV1 was described to the Monitor by Chase as an “application” for loans that had been charged off
but still part of its main SOR. However, once loans had been charged off by Chase, the accuracy and integrity of the information pertaining to the borrowers’ accounts whose loans became part of the RCV1 population was and is fatally and irreparably flawed. Furthermore, the loans in the
RCV1 were not serviced according to the requirements of Federal law, the Consent Judgment, the MHA programs or any of the other consent orders or settlements reached by Chase with any government agency prior to the NMSA.2

17. Chase’s practice of sending unsolicited debt-forgiveness letters to intentionally pre-selected borrowers of valueless loans did not meet the Servicing Standards set out in the Consent Judgment to establish eligibility for credits toward its Consumer Relief obligations. This practice enabled Chase to reduce its cost of complying with the Consent Judgment and MHA program, while at the same time enhancing its own profits through unearned Consumer Relief credits and MHA incentives. Chase sought to take credit for valueless charged-off and third-party owned loans instead of applying the Consumer Relief under the NMSA and MHA2 By letter dated September 16, 2015 to Schneider’s counsel, in reference to Relator’s claim that “Chase concealed from the Monitor and MHA-C both the existence of the RCV1 charged-off and the way those loans were treated for purposes of HAMP solicitations and NMS metrics
testing”, Chase’s counsel stated that “Those allegations are wholly incorrect. Chase repeatedly disclosed the relevant facts to both the Monitor and MHA-C.”

Schneider’s counsel requested that Chase provide all documents demonstrating the “relevant facts” to support Chase’s statement. Chase has refused to provide said documents, citing Chase‘s concerns with providing documents that it had previously provided to the U.S.
Government. While Chase has offered to allow Chase’s counsel to read such documents “verbatim” to Schneider’s counsel, Schneider knows of no supportable reason why documents previously disclosed to the U.S. Government should not be shared with Schneider in his capacity
as a Relator under the FCA. No privilege exists for such a claim and therefore Schneider has rejected this limitation. Such documents, if they in fact exist, should be produced before such a defense can be raised, particularly because Chase’s counsel has raised the issue of Rule 11
responsibilities.

18. The Servicing Standards and the Consumer Relief Requirements of the Consent Judgment are set forth in Exhibits A and D of that document. The Consent Judgment is governed by the underlying Servicer Participation Agreements of the MHA program, which required mandatory compliance with the Treasury Directives under the MHA Handbook (“Handbook”). Chase is required to demonstrate compliance with the Handbook’s guidelines in the form of periodic certifications to the government. Chase ignored the requirements of Exhibits A and D of the Consent Judgment, especially with respect to the RCV1 population of loans. Therefore, Chase has been unable to service with any accuracy the charged-off loans it
owns and to segregate those loans that it no longer owns. As such, any certifications of compliance with the Consent Judgment or the Services Participation Agreement (“SPA”) are false claims.

19. Relator conducted his own investigations and found that the Defendants sent loan forgiveness letters to consumers for mortgages that Chase no longer owns or that were not eligible for forgiveness credit. Further, Chase continues to fail to meet its obligations to service
loans and to prevent blight as required by both the Consent Judgment and SPA. Chase’s intentional failure to monitor, report and/or service these loans, and its issuance of invalid loan forgiveness letters and lien releases, evidence an attempt to thwart the goal of the Consent Judgment and the MHA program. The purpose of this scheme was to quickly satisfy the
Defendant’s Consumer Relief obligations as cheaply as possible, without actually providing the relief that Chase promised in exchange for the settlement that Chase reached with the Federal Government and the States. In addition, Chase applied for and received MHA incentive
payments without complying with the MHA mandatory requirements. In short, Chase decreased its liabilities, increased its revenues, avoided its obligations, and provided little to no relief to consumers.

20. The mere existence of RCV1 makes all claims by Chase that it complied with the Servicing Standards and the Consumer Relief Requirements of the Consent Judgment false. Likewise, the existence of RCV1 makes all claims by Chase that it complied with the SPA of the MHA program false.

B. Damages to the Government Related to the NMSA

21. Exhibit E of the Consent Judgment provides for penalties of up to $5 million for failure to meet a prescribed Metric of the Servicing Standards. Exhibit E, ¶ J.3(b) at E15.

22. Exhibit D of the Consent Judgment provides:

If Servicer fails to meet the commitment set forth in these Consumer Relief Requirements within three years of the Servicer’s Start Date, Servicer shall pay an amount equal to 125% of the unmet commitment amount, except that if Servicer fails to meet the two year commitment noted above, and then fails to meet the three year commitment, the Servicer shall pay an amount equal to 140% of the unmet three-year Commitment amount.

Exhibit D, ¶10.d. at D-11.

23. The required payment set out in Exhibit D, ¶10.d is made either to the United States or the States that are parties to the Consent Judgment. Fifty percent of any payment is distributed to the United States. Consent Judgment, Exhibit E, ¶ J.c.(3)c. at E-16.

24. As explained in more detail below, Chase was required to certify that it was in compliance with the Servicing Standards and the Consumer Relief Requirements. Many, if not all, of the loans that Chase identified for credits against the $4 billion Consumer Relief provisions were not eligible for the credit, because Chase did not comply with the Servicing
Standards or the Consumer Relief Requirements. Specifically, all loan modification programs must be made available to all borrowers, who may then apply to determine eligibility. Hundreds of thousands of borrowers’ accounts, in the RCV1 system of records, were not considered for all eligible loss mitigation options (even though they could likely have qualified). Due to this omission none of the loan modification programs qualified for Consumer Relief Credit. Thus,
Chase did not and does not qualify for any of the Consumer Relief Credit for which it applied.

25. For these reasons, each of Chase’s certifications to the Federal Government of compliance represents a “reverse” false claim to avoid paying money to the Government.

26. Under the FCA a person is liable for penalties and damages who: [k]nowingly makes, uses, or causes to be made or used, a false record or
statement material to an obligation to pay or transmit money or property to the Government, or knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the Government. 31 U.S.C. § 3729(a)(1)(G).

27. Under the FCA, “the term ‘obligation’ means an established duty, whether or not fixed, arising from an express or implied contractual, grantor-grantee, or licensor-licensee relationship, from a fee-based or similar relationship, from statute or regulation, or from the retention of any overpayment.” 31 U.S.C. § 3729(b)(3).

28. Thus, under the FCA, Chase is liable for its false claims whether or not the government fixed the amount of the obligation owed by Chase.

29. Under the FCA, “the term ‘material’ means having a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property.” U.S.C. § 3729(b)(3).

30. Under the “natural tendency” test Chase is liable for its false statements so long as they reasonably could have influenced the government’s payment or collection of money. A statement is false if it is capable of influencing the government’s funding decision, not whether it
actually influenced the government.

31. Each of Chase’s false certifications is actionable under 31 U.S.C. §
3729(a)(1)(G), because they represent a false record or statement that concealed, avoided or decreased an obligation to transmit money to the Government.

32. The Federal Government and the States agreed to the NMSA with Chase, with the understanding that Chase would meet its obligations under the Consent Judgment.

33. As set out in the Consumer Relief Requirements, the measure of the Federal and State Governments’ damages is up to 140 percent of the credits that Chase falsely claimed met the requirements of the Consent Judgment and up to $5 million for each Metric the Chase failed
to meet.

34. These damages are recoverable under the Federal Civil False Claims Act, 31 U.S.C. § 3729 et seq. (the “FCA”), and similar provisions of the State False Claims Acts of the States of California, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina,
Rhode Island, Tennessee, the Commonwealths of Massachusetts and Virginia, and the District of Columbia.

35. The Federal Government and the States are now harmed because they are not receiving the benefit of the bargain for which they negotiated with Chase due to the false claims for credit that have been made by the Defendant.

C. Damages to the Government Related to the HAMP

36. The Amended and Restated Commitment to Purchase Financial Instrument and Servicer Participation Agreement between the United States Government and Chase provided for the implementation of loan modification and foreclosure prevention services (“HAMP
Services”).

37. The value of Chase’s SPA was limited to $4,532,750,000 (“Program Participation Cap”).

38. The value of EMC Mortgage Corporation’s (“EMC”) SPA (Chase is successor in interest) was limited to $1,237,510,000.

39. As explained in more detail below, Chase must certify that it is in compliance with the SPA and the MHA program and must strictly adhere to the guidelines and procedures issued by the Treasury with respect to the programs outlined in the Service Schedules (“Program Guidelines”). The Program Guidelines pursuant to the Treasury Directives are cataloged in the MHA Handbook (“Handbook”). None of the loans that Chase and EMC identified and submitted for payment against their respective Participation Caps were eligible for the incentive payment, because neither Chase nor EMC complied with the SPA and Handbook guidelines. Specifically, all loan modification programs must be made available to all borrowers, who must then apply to determine eligibility. Hundreds of thousands of borrowers’ mortgage loan accounts in the RCV1 system of records were not offered and thereby unable to be considered for all eligible loss mitigation options (even though they likely could have qualified). Due to the omission of the RCV1 population for any loss mitigation options, none of the modifications that Chase provided qualified for HAMP incentives. Thus, Chase does not qualify for any of the
HAMP incentives for which it applied and received funds.
40. Therefore, Chase’s certifications of compliance and its creation of records to support those certifications represent both the knowing presentation of false or fraudulent claims for a payment and the knowing use of false records material to false or fraudulent claims.

41. Under the FCA, a person is liable for penalties and damages who:

(A) knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval; 31 U.S.C. § 3729(a)(1)(A)
and
(B) knowingly makes, uses, or causes to be made or used, a false record or
statement material to a false or fraudulent claim. 31 U.S.C. § 3729(a)(1)(G).

42. Each of Chase’s false certifications is actionable under either 31 U.S.C. §3729(a)(1)(A) and (B), because they represent a false or fraudulent claim for payment or approval of a false record or statement material to a false or fraudulent claim.
43. Under HAMP, the Federal Government entered into the Commitment with Chase, with the understanding that Chase would meet its obligations under the SPA and related Treasury directives. The Federal Government is now harmed because it is not receiving the benefit of the bargain for which it negotiated with Chase due to the false claims for payment that have been made by the Defendant.

9 Responses

  1. Times up….for Chase Home Finance LLC……

  2. there is a case in Illinois that Chase denied rescission rights, changed servicers without notifying the debtor, denied the debtor the right to the Independent foreclosure review….. to obtain a judgement of foreclosure and sale….Chase Home Finance filed the Stay of Bankruptcy in the Federal Bankruptcy Court and then proceeded to obtain the Judgement for Foreclosure and Sale in the Circuit Court of Illinois….Chase actions in this case are spot on with the False claims complaints that Chase engaged in improper practices related to mortgage origination, mortgage servicing, and foreclosures, including, but not limited to, irresponsible and inadequate oversight of the banks’ quality control standards. Plaintiff needs to get case facts to document Chase’s Fraud on the United States Government.

  3. exactly does me no good .victim of greed

  4. Interesting case as with Union Bank

    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT, DIVISION SIX

    WILLIAM A. BOOKOUT,
    PLAINTIFF/APPELLANT
    vs.
    MUFG UNION BANK, N.A. SUCCESSOR TO SANTA BARBARA BANK & TRUST, N.A., fka PACIFIC CAPTIAL BANK; NOW KNOWN AS MUFG UNION BANK, N.A DOES 1-50,

    DEFENDANTS/RESPONDENTS )
    )
    )
    )
    )
    )
    )
    )
    )
    )
    )
    )
    )
    )
    )
    )
    )
    )
    ) Second Appellate No. B269942

    Appeal from the Judgment of the Superior Court of San Luis Obispo County
    Case No. 15CV-0265

    Hon. Judge Barry T. LaBarbera, Presiding

    1) BREACH OF WRITTEN CONTRACT
    2) FRAUD
    3) PERJURY
    4) BREACH OF FIDUCIARY DUTY
    5) NEGLIGENCE

    __________________________
    APPELLANT’S REPLY BRIEF
    NOTICE OF INTENT TO RELY ON REPLY BREIF IN THE SUPREME COURT

    William A. Bookout
    470 Price St
    Pismo Beach, CA 93449
    Telephone (805) 773-2089
    pismobeachdiveshop@charter.net
    In Pro Per

    TABLE OF CONTENTS
    I. INTRODUCTION 6
    II. LEGAL DISCUSSION 8
    A. UNION BANK USE OF RESTRAINING ORDERS IN 2011 AND 2013 9
    B. STATUTE OF LIMITATIONS FRAUD AND RESCISSION 11
    C. BREACH OF CONTRACT, FRAUD AND BREACH OF FIDUCIARY DUTY 13
    D. STATUTE OF LIMITATIONS FRAUD AND RES JUDICATA 15
    III. CONCLUSION 25
    CERTIFICATE OF COMPLIANCE 26
    PROOF OF SERVICE 27


    TABLE OF AUTHORITIES
    Cases
    Adams [181 Cal. App. 3d 597] v. Martin (1935) 3 Cal. 2d 246, 248 [44 P.2d 572] 23
    Allied Fire Protection v. Diede Construction, Inc. (2005) 127 Cal.App.4th 150, 155 15, 17, 19, 21
    Allied Fire Protection v. Diede Construction, Inc. (2005) 127 Cal.App.4th 158 21
    Bernhard v. Bank of America (1942) 19 Cal.2d 807, 810-811 [122 P.2d 892] 24
    Bollinger v National Fire Ins. Co. (1944) 25 C2d 399, 411 12, 25
    Bonus-Built, Inc. v. United Grocers, Ltd. (1982) 136 Cal.App.3d 429, 442 [186 Cal.Rptr. 357] 16
    Caldwell v. Taylor, supra, 218 Cal. 471, at page 479……………………………………24
    California Bank & Trust v. DelPonti (2014) 232 Cal.App.4th 162, 167 15
    Craney v. Low (1956) 46 Cal.2d 757 [298 P.2d 860], 25
    Deist v. Wachholz (1984) 208 Mont. 207 [678 P.2d 188, 193-195]…………………16, 22
    Doe v. Allied-Signal, Inc. (7th Cir.1993) 985 F.2d 908 15
    Federal Deposit Ins. Corp. v. Dintino (2008), 167 Cal.App.4th 333, 348 [84 Cal.Rptr.3d 38]………………………………………………………………………………………22
    First National Bank in Lenox v. Brown (Iowa 970) 181 N.W.2d 178, 182-183…….16, 23
    Frommhagen v. Bd. of Supervisors (1987) 197 Cal.App.3d 1292, 1299 12
    Himel v. Continental Ill. Nat. Bank & Trust (1979) 596 F.2d 205, 210 20
    Kane v. Cook, 8 Cal. 449 11
    Kettelle v. Kettelle (1930) 110 Cal.App. 310, 312. 12, 20
    Klein v. First Edina National Bank (1972) 243 Minn. 418 [196 N.W.2d 619, 622-623, 70 A.L.R.3d 1337] 16, 23
    Mattson v. City of Costa Mesa, supra, 106 Cal.App.3d at p. 449. 20
    Marriage of Brennan (1981) 124 Cal. App. 3d 598, 601 [177 Cal. Rptr. 520]…………..23
    Morgan v. Asher (1920) 49 Cal. App. 172, 176-179 [193 P. 288] 23

    Odorizzi v. Bloomfield School Dist. (1966) 246 Cal.App.2d 123, 131 [54 Cal.Rptr. 533] ………………………………………………………………………………………….16
    Olam v. Congress Mortgage Co. (N.D.Cal. 1999) 68 F.Supp.2d 1110, 1139-1142 17
    Parsons v. Tickner (1995) 31 Cal.App.4th 1513, 1526 [37 Cal.Rptr. 2d 810]…..…..12, 22
    Pashley v. Pacific Elec. Ry. Co. (1944) 25 Cal.2d 226, 235 [153 P.2d 325] 21
    Powe v. Chrysler Financial Corporation, L.L.C. (In re Powe), 278 B.R. 539 (Bankr. S. D. Ala. 2002……………………………………………………………………………….23
    Ripplin Shoals Land Co., LLC v. U.S. Army Corps of Eng’rs, (8th Cir. 2006) 440 F.3d 1038, 1042 18
    Safeco Insurance Co. v. Tholen (1981) 117 Cal. App. 3d 685, 696 [173 Cal. Rptr. 23] 18
    Samuels v. Mix (1999) 22 Cal.4th 1, 14 [91 Cal.Rptr.2d 273, 989 P.2d 701]…………..22
    Slick v. Norwest Mortgage, Inc. (2002) Bankr.Lexis 772 (Bankr.S.D.Ala. 2002) 23
    Snow v. A. H. Robins Co. (1985) 165 Cal.App.3d 120, 127—128 [211 Cal.Rptr. 271], internal citation omitted……………………………………………………………12, 22
    Stenderup v. Broadway State Bank (1933) 219 Cal. 593 [28 P.2d 14] 24
    Stewart v. Phoenix Nat. Bank (1937) 49 Ariz. 34 [64 P.2d 101, 106] 16, 23
    Tate v. Nationsbanc Mortgage Corporation (In re Tate), 253 B.R. 653 (Bankr. W.D.N.C. 2000…………………………………………………………………………………….23
    United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337 [282 Cal.Rptr. 368 16
    Wells Fargo Bank, N.A. v. Jones (5th Cir. 2011) 439 Fed.Appx. 330 19
    Yager v. Yager (1936) 7 Cal.2d 213, 217 20
    Statutes
    3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, sections 586, 588, at pp. 2224-2227..11
    4 Witkin, Cal. Procedure (5th ed. 2008) Pleading, sections 547, 551, pp. 674-675, 679-680. 17
    5 Witkin, California Procedure (2d ed. 1971) Attack on Judgment in Trial Court, section 183, page 3752. 23
    7 Witkin, Cal. Procedure, supra, section 188, p. 621) 25
    Civil Code section 1572 25
    Civil Code section 1689 11, 14
    Civil Code section 1709 25
    Civil Code section 1710 25
    Civil Code section 337 passim
    Civil Code section 337(1) 25
    Civil Code section 337(3) passim
    Civil Code section 338(d) passim
    Code of Civil Procedure section 352.1……………………………………………..…9, 14
    Civil Code section 631.8 25
    Evid. Code, section 452. 18

    Rules
    Federal Bankruptcy Rule 3002.1 passim
    Title 11 United States Code section 502(j) 19

    I. INTRODUCTION
    Appellant presents this reply to Respondent Union Banks July 1, 2016 Breif. Respondent did an undisclosed rescission on December 26, 2011and changed SBA loan documents during Bankruptcy using two Amortization Schedules created by Respondent’s Attorney’s (Clerk’s Transcript on Appeal (“CT”) 675-685.) Respondent did not provide this rescission information until June 27, 2013 after the April 13, 2012 Bankrupty Conformation (“CT”) 746). Respondents on December 26, 2011 changed actual Union Bank loan documents (“CT”) 838)-(933-973). (“CT”) 838) is a September 23, 2011 Monthly Payment Notice during bankruptcy, showing an interest rate of 6% at $4,121.06 per month, (“CT”) 662-665) is a Certified August 29, 2011SBB&T Loan Transaction History prior to Bankrupty each showing that Respondent had not done a Rescission prior to December 26, 2011 and that the Four Year Statute of Limitations under Civil Code section 337 had not expired. This is backed up in (“CT”) 839-841) Respondents November 7, 2011online accounting. Respondents (“CT” 686-689 (FAC Exhibit 6-1 to 6-4) May 19, 2011 letter from Union Banks Attorneys does not claim a rescission with the two amortization schedules created by Respondend’s Attorneys.
    Respondents, Breach of Written Contract, Fraud, Breach of Fiduciary Duty, Negligence and Perjury prior to May 19, 2011 going back to the 2007 Forbearance agreement was not argued before the San Luis Obispo Superior Court per Respondent’s (“CT” 686-689.) and (“CT” 675-685) The Civil Code section 337four year Statute of limitations has not expired for Respondents actions after respondent changed their November 7, 2011 online accounting Loan Transaction History (“CT” FAC Exhibit 839- 841).
    Respondents Breif P. 7 refers to Respondents fraud prior to Bankruptcy and not the SBA Loan changes made after (“CT” 675-689) (“CT” FAC Exhibit 839- 841) on June 27, 2013 by respondent.
    Respondent Breif P. 8 does not account for the June 25, 2013 Loan Transaction History (“CT”) 785-789) and June 27, 2013 email (“CT”) 746) showing Respondents undisclosed December 26, 2013 Rescission not provided during Bankruptcy thus, showing no res judicata per the (“CT”) 1630-1633.
    Respondent Breif P. 9-10 “STATMENT OF FACTS” A and B. Refers to actions prior to May 19, 2011 that are not being litigated. Respondent refers to the two amortization schedules created by Robert B. Forouzandeh and Diana Jessup Lee that are not bank records (“CT”) 753) Paragraph 2. Respondent Breif P. 9-10 B “Harassment of Respondent by Appellant” Admits to the use of restraining orders only allowing communication with Respondents Attorneys.
    Respondent Breif P. 10 “C. Appellant’s Bankruptcy” ignores (“CT”) 14-1) dated November 7, 2011as argued and ignores the undisclosed December 26, 2011 Rescission (“CT”) 788.) with Respondents use of restraining orders.
    Appellant was granted Augumentation of the April 13, 2012 Bankruptcy Conformation hearing by the Appellate Court on May 26, 2016 (FAC Opposition Exhibit # 27) showing no res judicata as the Bankruptcy Court was not made aware of Respondents December 26, 2011 Rescission that could not have been argued at conformation. Augumtated (FAC OPP Exhibit # 27) shows that Respondent Breach of Written Contract had not occurred prior to May 18, 2012.
    Respondent “Summary of Claims Against Respondent in the FAC” are misguided P. 11-12. (“CT”) 790-792 # 3) shows Appellants mistakes in accounting by adding $45,171.20 back into the SBA loan. This is seen in the June 25, 2013 Loan Transaction History (FAC (“CT”) 534-566 # 5) $57,676.17 was not put a Proof of Claim.
    Respondent “F The Demurrer and the Judgment” P. 12-13 shows the Court December 3, 2015 findings coming from prior actions by Respondent per restraining order communication in June 24, 2011. This has nothing to do with the undisclosed December 26, 2011 Rescission by Respondent (“CT”) FAC 545-546) provided by Respondent on June 27, 2013 after the Bankruptcy Conformation.
    Respondent “V ARGUMENT” P. 15 Failed to provide its June 25, 2013 loan accounting prior in Bankruptcy showing no Res Judicata. Respondent prior to Bankruptcy actions in the Forbearance Agreement are not at issue. Respondents changing the Forbearance agreement on December 26, 2011 and providing this information on June 27, 2013 is at issue. Respondent P.18 # 3 Respondent now shows on June 25, 2013 that it was not owed $45,171.20 added onto the SBA loan. This Fraud was not litigated in Bankruptcy as respondent failed to provide this June 25, 2013 accounting using Restraining orders into 2013.
    Respondent Breif P. 23 (“B.”) Breach of Contract, ignores the Four Year Statutute of Limitations from the December 26, 2011 Rescission provided by Respondent on June 27, 2013.
    Respondent Breif P. 24 (“C.”) FRAUD, ignores the Three Year Statutute of Limitations from June 27, 2013; when respondent provided an accounting of the December 26, 2011 Rescission.
    Respondent Breif P. 24 (“D.”) Perjury, ignores the restraining orders stopping Appellants discovery and signed declarations by Respondents Attorney Robert B. Forouzandeh. (“CT”) FAC 604-606.)
    Respondent Breif P. 25 (“E.”) Breach of Fiduciary Duty, ignores the Three Year Statutute of Limitations from June 27, 2013; when respondent provided an accounting of the December 26, 2011 Rescission/Deceit for the first time using restraining orders stopping Appellants discovery of the December 26, 2011 Rescission changing SBA Loan documents. (“CT”) FAC 606-614.) Respondent Breif P. 26 (“E.”) Negligence, ignores the (“CT” FAC 614-622.) Respondent Breif P. 27 (“G.”). Regarding the Court denying Appellant Leave to Amend his Complaint, is an Abuse of Discretion with the Court refusal of Appellants Augumented Oppossition Exhibit # 27 (“CT”) 1631.) The Court acknowledged the June 27, 2013 Email (“CT”) 1631.) Respondent Breif VI. Has not madeAppellant whole from its December 26, 2011 rescission made known in 2013..
    LEGAL DISCUSSION
    In The December 3, 2015 decision by Hon. Judge Barry T. LaBarbera, he would not allow Judicially, noticed (Exhibits 26, 27, 28, 29-1 to 29-17 “CT” Vol. 6 P. 1629 to 1632) showing no adjudication or Res Judicata and that Respondent’s Breach of Written Contract/Rescission was not prior to May 19, 2011 pled in the (“CT”Vol. 2 P. 572 to 576 Paragraphs 101, 102 103, 104, 105, 106, 109, 110, 111). This is an Abuse of Discretion. Appellant November 30, 2015(Reply OPP (“CT”) Ex. 1621-1622) June 30, 2011 letter from the Comptroller of the Currency Administrator of National Banks showed the Court that Respondent had not done a rescission prior to June 30, 2011. The Courts Abuse of Discretion comes from believing two Amortization Schedules created by Respondents Attorneys are bank documents against the Comptroller of the Currency Administrator of National Banks June 30, 2011 Accounting (“CT”) 1621-1622) Request for Judicial Notice (“CT” P. 1610-1620).
    RESPONDENT”S BREACH OF WRITTEN CONTRACT-FRAUD-BREACH OF FIDUCIARY DUTY-RESCISSION
    Respondent December 26, 2011 Rescission is within the Statute of Limitations for Civil Code section 337, Civil Code section 338(d) and Civil Code section 337(3) that Respondent finally provided June 27, 2013 as pled in the (“CT” Vol 2 P. 572 to 576) after the May 23, 2013 RESPA Denial (“CT” Vol. 2 P. 524 Paragraph 25). (“CT” Vol. 2 P. 541 to 542 FAC P. 30 to 31 Paragraph 55 shows as pled Respondent’s Loan changes in June 2013 as Respondents have no claim for Res Judicata with their continued 2013 Loan changes. This case has not been litigated prior and no res judicata has occurred with Respondents loan changes in their June 25, 2013 Loan Transaction History.
    A. UNION BANK USE OF RESTRAINING ORDERS IN 2011 AND 2013
    The Court talks about the restraining orders issued for asking SBA Loan Question (“CT” P. 1629)- 1 under (foot notes) and Paragraph 3, but ignores the fact (“CT” Vol. 2 P. 524) that Respondent used these restraining orders as a prison for stopping Appellant from finding the facts behind the December 26, 2011 Rescission until June 27, 2013 showing no res judicata. This is an Abuse of Discretion under Civil Code section 352.1 as Respondent’s restraining order actions are the same as being imprisoned as Appellant could only ask SBA loan Questions of Respondent’s Attorneys (“CT” Vol. 3 P. 742 January 8, 2013 email FAC Exhibit # 9-1 to 9-3 Ex. 9-4 “CT’ P. 745) Email dated January 24, 2013 and (“CT” P 748 RESPA Email 9-7) dated May 23, 2013 per the arguments in the (“CT” P. 521 to 523 P. 10, 11 and 12 Paragraphs 19 to 23). Appellant in the (FAC) Pled Civil Code section 337. ( “CT” Vol. 2 P. 518 to 526) that the Court ignored and did not discuss. For the Court to ignore Civil Code section 337 is an Abuse of Discretion with Respondent restraining order actions.
    Appellant in the (FAC) with Respondent’s undisclosed December 26, 2011 Rescission per (“CT”) P. 785 to789 FAC Exhibit #10) June 25, 2013 Loan Transaction History, Pled the facts under Civil Code section 337(3) . “CT” Vol. 2 and 3 Pages 522 to 613 (FAC) For the Court to ignore Civil Code section 337(3) is an Abuse of Discretion.
    The Courts Abuse of Discretion in ignoring (FAC Exhibits 1-1, 1-3, 1-4, 5-1, 10-4, 13 14-1, 20-1) to claim (“CT” Vol. 6 P. 1630 Paragraph # 6) in his December 3, 2015 decision. “Thus, Plaintiff was aware of Defendant’s calculation of the principal owed prior to the bankruptcy.” Is a full Abuse of Discretion as Respondent own records showed up to November 7, 2011; Respondent had not done a Rescission and the Principal Balance was $390,996.61 in (“CT” Vol. 3 P. 839 Ex. # 14-1) dated November 7, 2011! The Courts December 3, 2015 Decision claims Respondent did their rescission on November 23, 2011 which is within the four year Statute of Limitations and is an Abuse of Discretion. Union Banks Monthly Payment notice (“CT” Vol. 3 P 838 Ex. 13) September 23, 2011 Shows that Respondent had not done a rescission prior and (“CT” P. 662 to 665 “CT Vol. 3 # 1-1, 1-3, 1-4) being the SBA Certified August 29, 2011 Loan Transaction History. The Court failed to understand that Respondent never provided an accounting of their Rescission until June 27, 2013 Civil Code section 337(3). This could not have been argued eariler showing no Res Judicata or adjudication.
    For the Court to claim (“CT” Vol. 6 P. 1631 December 3, 2015 paragraph 8), that two May 6, 2011Amortization Schedules (“CT” Vol. 3 P. 753 Paragraph 2) with an interest rate of 6% starts the Statute of Limitations is an Abuse of Discretion and makes this fully appealable. The June 24, 2011 restraining order answer is not Res Judicata per the (FAC Exhibits (“CT”) 746) # 9-5) and (“CT”) 788) FAC EX. 10-4) acknowledged by the Court paragraph 6 December 3, 2015 decision. In a Second Amended complaint this can be explained further as the two Amortization Schedules created by Union Bank’s Attorney Robert B. Forouzandeh are not Bank documents (“CT” 977 FAC Exhibit 19-1) and should not have been used in the courts starting point for Statute of Limitations and Res Judicata with Respondent’s use of restraing orders in 2011, 2012 and 2013. This is an Abuse of Discretion.
    B. STATUTE OF LIMITATIONS FRAUD AND RESCISSION
    Appellant’s (“CT Vol. 3 P. 788 FAC Exhibit # 10-4) June 25, 2013 Loan Transaction History shows that the Courts November 23, 2011 (“CT” Vol. 3 P. 783) email from Attorney Robert B. Forouzandeh (“CT” Vol. 3 P. 783Exhibit 9-43) Rescission did not occur until December 26, 2011 and was not provided until June 27, 2013. Res judicata could not happen as it took Respondent until June 27, 2013 within the 3 year Statute of Limitations under Civil Code section 338(d) Fraud and Civil Code section 337(3) Rescission to provide their Concealment of their December 26, 2011 rescission. “An action for fraudulent misrepresentation lies when the defendant is charged with knowledge of falsity and an intent to deceive (3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, sections 586, 588, at pp. 2224-2227). Respondent December 26, 2011 Rescission was against Civil Code section 1689 under Rescission, as Respondent did not notify Appellant or make Appellant whole. ―When the defendant is guilty of fraudulent concealment of the cause of action the statute is deemed not to become operative until the aggrieved party discovers the existence of the cause of action. (Kane v. Cook, 8 Cal. 449; Kimball v. Pacific Gas & Elec. Co. (1934) 220 Cal. 203 [30 P.2d 39].” Appellant in the (FAC) Pled Civil Code section 338(d) –On Pages (“CT” 519- 614) pages 8-12, 14-17, 19-22, 24-25, 27-32, 34, 36-42, 44-45, 47-49, 53, 56, 57, 60, 62-63, 65, 67, 70, 74-79, 81, 83-85, 87-103. The Trial Court in its Abuse of Discretion on December 3, 2015 decision (“CT” Vol. 6 P. 1631 paragraph 9) ignored as Pled in the (“CT” Vol. 2 P. 593, 594, 595 # 2, 3, 4, 6 and 7) Civil Code section 338(d) and Civil Code section 337(3) .
    3. (“With respect to actions based on fraud, the statute of limitations is tolled when plaintiff is able to show the defendant fraudulently concealed facts which would have led him to discover his potential cause of action. ‘Technical rules as to when a cause of action accrues apply therefore only in those cases which are free from fraud committed by the defendant. Said section 338, subdivision 4, . . . recognizes the non-applicability of those technical rules where the fraud of the defendant may be so concealed that in the absence of circumstances imposing greater diligence on the plaintiff, the cause of action is deemed not to accrue until the fraud is discovered. Otherwise, in such cases, the defendant by concealing his fraud would effectively block recovery by the plaintiff because of the intervention of the statute of limitations.” (Snow v. A. H. Robins Co. (1985) 165 Cal.App.3d 120, 127—128 [211 Cal.Rptr. 271, internal citation omitted.).
    4. (“Courts have relied on the nature of the relationship between defendant and plaintiff to explain application of the delayed accrual rule. The rule is generally applicable to confidential or fiduciary relationships. The fiduciary relationship carries a duty of full disclosure, and application of the discovery rule ‘prevents the fiduciary from obtaining immunity for an initial breach of duty by a subsequent breach of the obligation of disclosure.’” (Parsons v. Tickner (1995) 31 Cal.App.4th 1513, 1526 [37 Cal.Rptr. 2d 810, internal citations omitted.)“
    See (FAC) Appellant (Exhibits (“CT” 746) 9-5) and (“CT 788) FAC 10-4) dated June 25, 2013 and June 27, 2013 as Respondent withheld the December 26, 2011 Rescission from Appellant until June 27, 2013 by use of Restraining orders in 2012 and 2013, per the (FAC Exhibit # 8 “CT” 707-741 ). Respondent’s Attorneys Robert B. Forouzandeh and Diana Jessup Lee created the amortization schedules used in the Courts December 3, 2015 decision, contributing to the Appellants delay in filing suit. [Bollinger v National Fire Ins. Co. (1944) 25 C2d 399, 411 equitably tolled (extended, suspended, put on hold). See (“CT” Vol. 3 P.698 FAC Exhibit 6-13 Lines 9-13).
    The Courts, Abuse of Discretion is seen in this December 3, 2015 Decision statement (“CT” Vol. 6 P. 1629) Notes Stating:
    “1 The Court grants Defendant’s request for judicial notice of various pleadings including, but not limited to, the restraining order and bankruptcy court proceedings that will be discussed infra. “If all of the facts necessary to show that an action is barred by res judicata are within the complaint or subject to judicial notice, a trial court may properly sustain a general demurrer. (Citation)” (Frommhagen v. Bd. of Supervisors (1987) 197 Cal.App.3d 1292, 1299) “In ruling on a demurrer based on res judicata, a court may take judicial notice of the official acts or records of any court in this state. (Citations.)” (Id.) Even so, most if not all of the documents, including the certain bankruptcy pleadings, are attached as exhibits to the FAC such that they are within the complaint and do not require judicial notice. Plaintiff’s request for judicial notice as to exhibits 26, 27 and 28 is denied, the request as to the other exhibits is unnecessary as those exhibits are attached to the FAC.”
    Appellant’s (“CT” Vol. 4 P. 978 FAC Ex. 20-1) is an email from Bankruptcy Attorney Chris Gautschi showing the Bankruptcy Courts Conformation, hearing was held “Without Prejudice” regarding Attorney Fees Etc.
    C. BREACH OF CONTRACT, FRAUD AND BREACH OF FIDUCIARY DUTY
    It is an Abuse of Discretion for the Court (“CT” Vol. 6 P. 1631 paragraph 9 December 3, 2015 decision to establish Union Bank’s Fraud and Breach of Fiduciary Duty from December 26, 2011 as Union Bank failed to comply with Federal Bankruptcy Rule 3002.1 per (FAC Ex. 20-1) and (Opposition Ex. # 27) not allowed by the Court filed on November 20, 2015 and refilled on December 21, 2015 as Augmented April 28, 2016 into this record.
    As pled in the (“CT” Vol. 2 P. 518 Paragraph 13lines 10 to 13) show the beginning of Respondent’s Breach of Contract as stated and pled in the (FAC): “Defendant’s actions on December 26, 2011 are the basis for this Breach of Written Contract law suit. Plaintiffs discovery on June 27, 2013 falls under Code of Civil Procedure section 338(d) and Code of Civil Procedure section337(3).”.
    The Courts statement (CT” Vol. 6 P. 1630 Paragraph 6). “Thus, Plaintiff was aware of Defendant’s calculation of the principal owed prior to the bankruptcy.” Is a full Abuse of Discretion as during Bankruptcy up to November 7, 2011 Respondent had not done a rescission per (Augumented Opposition Ex. # 27 (“CT” 839 Respondents own accounting).
    The Court in its Abuse of Discretion claims December 3, 2015 (“CT” Vol. 6 P. 1631 and 1632 paragraph 11 that:
    “Contrary to Plaintiff’s allegation that the breach occurred on May 19, 2011, the FAC contains other allegations that affirm that Plaintiff was fully aware of his breach of contract claims prior to May 19, 2011, such that the first cause of action is barred by the four year statute of limitations.”

    This is not the case as pled in the (“CT”) 662 to 665-746, 787, 838, 839 FAC Exhibits 1-1, 1-3, 1-4, 5-1, 9-5, 10-4, 13 and 14-1(“CT” 839) along with Augumented (Opposition Ex. # 27) as on December 26, 2011 Respondent changed Appellant’s (FAC Exhibits without informing Appellant or the Bankruptcy Court using Restraining orders and Federal Bankruptcy Rule 3002.1 to withhold these loan Rescission changes against Civil Code section 338(d) – Civil Code section 337(3) pled throughout the (FAC).
    The Court in-properly accounts for on December 3, 2015 per (“CT” P. 1630 per FAC Ex. 9-5) the date of Respondent Rescission and the fact that Appellant’s (FAC Exhibits (“CT”) 662 to 665-746, 787, 838, 839) Show that Respondent had not done a rescission, prior to November 23, 2011 or make Appellant whole. The (“CT” Vol. 6 P. 1630 paragraph 6 States:
    “Plaintiff alleges that he learned of Defendant’s rescission in a June 27, 2013 email from defense counsel which is attached as Exhibit 9-5 to the FAC. The alleged December 26, 2011 rescission appears to be related to Plaintiff’s assertion that Defendant’s online records reflected a principal balance owing of $390,996.61, while the amount of the balance on statements provided to Plaintiff stated a balance of $400,962.89 owing. However, in a November 23, 2011 email, counsel informed Plaintiff that the difference in the online information was due to Defendant’s recalculation of the principal based on a rescission of the Agreement. Thus, Plaintiff was aware of Defendant’s calculation of the principal owed prior to the bankruptcy.”

    This is a full Abuse of Discretion under Civil Code section 1689 as the November 7, 2011 online accounting (“CT” Vol. 3 P. 839 Exhibit # 14-1) showed that Respondent had not done a Rescission prior to bankruptcy and that Appellant’s Breach of Written Contract claim is within the Four Year Statute of Limitations under California Civil Code section 337. Respondent cannot claim Res Judicata with their withholding the December 26, 2011 Rescission through Restraining orders into 2013! Code of Civil Procedure section 352.1 use of a California Court applies to respondent actions. It took Respondent Attorneys till January 5, 2015 to admit to creating the two May 6, 2011 Amortization Schedules (“CT” Vol. 3 P. 753) as stated by Robert B. Forouzandeh: “I stated that my office “in conjunction with Union Bank” created the amortization schedules.” No Current California Case law allows Bank Attorneys to make their own Bank Records (“CT” Vol. 3 P. 753) against Certified Bank Records dated August 29, 2011 (“CT” Vol. 3 P. 1-1 to 1-4). The Court abuse of Discretion is seen (“CT” Vol. 6 P. 1631 to 1632) as stated by the Court. “Contrary to plaintiff’s allegation that the breach occurred on May 19, 2011, the FAC contains other allegations that affirm that Plaintiff was fully aware of his breach of contract claims prior to May 19, 2011, such that the first cause of action is barred by the four year statute of limitations.” The Court is incorrect with the Certified August 29, 2011 Proof of Claim (“CT” P. 662-665 Vol. 3 )! The Court is incorrect in its Statute of Limitations in (“CT” Vol. 3 P 838 to 844) showing that Respondent had not done a Rescission prior to December 26, 2011.
    D. STATUTE OF LIMITATIONS FRAUD AND RES JUDICATA
    As pled to the October 9, 2015 (Demurrer Opposition) on November 20th 2015 (“CT”) FAC 1552). “Res Judicata is not a bar to claims that arise after the initial complaint was filed. (Allied Fire Protection v. Diede Construction, Inc. (2005) 127 Cal.App.4th 150, 155.) Respondent’s 12/26/2011 Rescission could not have been argued in Bankruptcy as it arose after the Bankruptcy was filed and Respondent withheld this information until June 27, 2013. The Court is fully aware of Respondents’s May 23, 2013 RESPA Denial (“CT”) 748 FAC Exhibit 9-7 (“CT”) 524 P 13 Lines 12 to 24) (FAC (“CT”) 574-576) P. 63 to 65Arguments Paragraph 105 to 111) showing no Res Judicata.
    If the plaintiff is unaware of facts when filing a complaint, res judicata will not bar subsequent litigation. (Id. At p. 914, original italics.) Doe v. Allied-Signal, Inc. (7th Cir.1993) 985 F.2d 908, in which a second suit was filed after plaintiff discovered new facts.” New facts per the (FAC) are the June 27, 2013 email and June 25, 2013 Proof of Claim (FAC Exhibits (“CT)746, 788 and 753) as pled in the (FAC).
    Respondent’s Fraudulent December 26, 2011 Rescission is within 3 years as provided for the first time and discovered on June 27, 2013 Civil Code section 337(3) and is not Res Judicata with Respondents use of restraining orders. Respondent Counsel for the first time on June 27, 2013 providing a Loan Transaction History-(Proof of Claim) is within Civil Code section 338(d) under fraud. Respondent’s claimed Rescission as acknowledged by the Court is an act of willful Misconduct Pled in the (“CT” Vol. 2 P. 514 Paragraph 6) (California Bank & Trust v. DelPonti (2014) 232 Cal.App.4th 162, 167). “(In California Bank & Trust, there was substantial evidence in the form of an unambiguous e-mail from the bank that if the guarantors performed certain tasks the guarantor’s obligations would be mitigated. As such, the trial court in California Bank & Trust found that the bank was guilty of willful misconduct.)”
    As Pled in the (“CT” Vol. 2 P. 528 Paragraph 34) shows the Statute of Limitations under Civil Code section 338(d) fraud and Civil Code section 337(3) Rescission could not be discovered until June 27, 2013. As a matter of law.” (Bonus-Built, Inc. v. United Grocers, Ltd. (1982) 136 Cal.App.3d 429, 442 [186 Cal.Rptr. 357].) Facts not contained in the separate statement do not exist. (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337 [282 Cal.Rptr. 368.) Respondent Rescission did not occur prior to December 26, 2011 as shown in the (“CT” Vol. 2 P. 529 Paragraphs 34 to 36) See e.g. Klein v. First Edina National Bank (1972) 243 Minn. 418 [196 N.W.2d 619, 622-623, 70 A.L.R.3d 1337]; First National Bank in Lenox v. Brown (Iowa 970) 181 N.W.2d 178, 182-183; Stewart v. Phoenix Nat. Bank (1937) 49 Ariz. 34 [64 P.2d 101, 106]; Deist v. Wachholz (1984) 208 Mont. 207 [678 P.2d 188, 193-195]. Union Bank’s Fiduciary Duty was created between a bank and a borrower. The cases above in the (FAC) involved situations similar in which a bank allegedly withheld information from the borrower about relevant transactions or the borrower relied on advice of the bank. In this case Union Bank withheld their December 26, 2011 Rescission against Appellant (FAC Exhibits 1, 13 and 14-1) and (FAC Exhibit 9-7 RESPA Refusal. (“CT’ Vol. 6 P. 1631Paragraph 10) of the December 3, 2015 Superior Court Decision regarding Respondent’s claimed Rescission falls under the above case law (misconduct.)”
    As Pled in (“CT” Vol. 2 P. 529 to 530 Paragraph # 36). — “36. The Breach of Written Contract, Fraud, Perjury, Breach of Fiduciary Duty and Negligence lawsuit against Union Bank involves situations in which Union Bank has intentionally withheld information from the Appellant and the United States Bankruptcy Court about relevant transactions and loan changes made by Respondent on December 26, 2011 from the Appellant, Appellant’s Council and the United States Bankruptcy Court. ‘undue influence involves the use of excessive pressure to persuade one vulnerable to such pressure ….’ (Odorizzi v. Bloomfield School Dist. (1966) 246 Cal.App.2d 123, 131 [54 Cal.Rptr. 533]; see Olam v. Congress Mortgage Co. (N.D.Cal. 1999) 68 F.Supp.2d 1110, 1139-1142.) Accordingly, to state a claim for rescission, the plaintiff must ordinarily allege that the party against whom rescission is sought took some advantage of the mental weakness or incapacity of the other party. (4 Witkin, Cal. Procedure (5th ed. 2008) Pleading, sections 547, 551, pp. 674-675, 679-680.)”
    In September 2011 Appellant was forced to file Bankruptcy on his SBA Loan from Respondent, Attorneys emails from May 19, 2011 to September 7, 2011 Appellants (“CT” Vol. 3 P.742 to 783 Exhibits). In Appellant (“CT” Vol. 3 and 4 P. 900 to 922) November 18, 2011 Bankruptcy CASE NO. ND11-14393RR Doc 31 Entered 11/8/2011–Respondent had not done a Rescission or changed Respondent’s Certified SBA Loan documents Per the FAC Bankruptcy, Attorney Richard Rossi in his arrears accounting of $107,186.12 included Defendants claimed legal fees, late charges etc. on top of actual Principal and interest at 6% owed Respondent per Respondents August 24, 2011 (Payment Notice) Appellant (“CT” Vol. 4 P. 933Exhibit 17-2).
    The San Luis Obispo Courts statement (“CT” Vol. 6 P. 1629 Paragraph # 2)
    “Thus, Plaintiff was aware of Defendant’s calculation of the principal owed prior to the bankruptcy.”
    Is a full Abuse of Discretion against the Statute of Limitations as during Bankruptcy up to November 7, 2011 Respondent had not Re-Calculated or done a Rescission. Similar to (Allied Fire Protection v. Diede Construction, Inc. (2005) 127 Cal.App.4th 150, 155.)” Appellant’s fraud claim for Respondent’s December 26, 2011 Rescission is not barred by res judicata because it did not accrue until after the Bankruptcy was filed and was withheld from Appellant and the Bankruptcy Court with Respondent’s Extrinsic fraud (Restraining Orders until June 27, 2013). The Court has misunderstood the fact that Respondent’s Attorney Robert B. Forouzandeh admitted June 27, 2013 in (FAC) Exhibit 9-5 (“CT” P. 746) that his Amortization Schedules are not accurate! This has not been litigated and there currently is no California Case law allowing Bank Attorneys to make up their own Bank loan documents! This should be new Case Law Bookout V. MUFG Union Bank. As the Court acknowledges the June 27, 2013 email from Respondent (“CT” 1630 Exhibit 9-5 (“CT” P. 746)) showing that Amortization Schedules are not official Bank SBA Loan documents.
    The purpose of res judicata is “to prevent repetitive suits involving the same cause of action.” (Ripplin Shoals Land Co., LLC v. U.S. Army Corps of Eng’rs, (8th Cir. 2006) 440 F.3d 1038, 1042.) To determine whether res judicata bars a party from asserting a claim, three elements must be considered: (1) whether the prior judgment was entered by a court of competent jurisdiction; (2) whether the prior decision was a final judgment on the merits; and (3) whether the same cause of action and the same parties or their privies were involved in both cases. All Three of these fail in the December 3, 2015 decision as seen in Appellants Judicially Noticed Augumented (Opposition Exhibit # 27).
    In ruling on a demurrer based on res judicata, a court may take judicial notice of the official acts or records of any court in this state. (Id. at p. 481; Safeco Insurance Co. v. Tholen (1981) 117 Cal. App. 3d 685, 696 [173 Cal. Rptr. 23]; Evid. Code, section 452.) Appellants Judicially Noticed Augumented (Opp Exhibit # 27) records and testimony by Honorable Judge Robin L. Riblet was not allowed by the San Luis Obispo Superior Court, showing no res judicata.
    Honorable Judge Robin L. Riblet made her Bankruptcy Conformation “without Prejudice” under Federal Bankruptcy Rule 3002.1 without having a hearing or deciding on a decision as to what has been pled in the September 4, 2015 (FAC). Honorable Judge Robin L. Riblet gave no ruling or decision on Breach of Written Contract, Fraud, Perjury, Breach of Fiduciary Duty and Negligence with Respondent’s December 26, 2011 Rescission withheld until June 27, 2013.
    Honorable Judge Robin L. Riblet in (Augumentated Exhibit # 27) stated at the April 13, 2012 Conformation hearing “Are these attorney’s fees post-petition or pre-petition?” “Both. To the extent they pre-petition, they should go on the claim. To the extent that they are post-petition, they sort of get shunted aside for a while.”
    Respondent’s October 9, 2015 (Opposition Exhibit (“CT” Vol. 6 P. 1528 to 1532) shows that the prior (Proof of Claim) was not approved per Federal Bankruptcy Rule 3002.1. Respondents only claim Pre-Petition Attorney fees of $15,922.92 and not the $57,676.17 in Attorney Fees Post-Petition charged on February 22, 2012 per (FAC Exhibit # 10-4). The February 22, 2012 $57,676.17 Attorney Fees from Robert B. Forouzandeh should be tried per the May 18, 2015 Civil Complaint. Respondent under bankruptcy rule 3002.1 failed to account for 2012 Post-Petition charges of $26,500.00 and $39,750.00 charged on February 21, 2012 which is within Civil Code section 337 and has not been litigated, showing no Res Judicata.
    Title 11 United States Code section 502(j) states in relevant part, “A claim that has been allowed or disallowed may be reconsidered for cause. A reconsidered claim may be allowed or disallowed according to the equities of the case . . . .”
    Honorable Judge Barry T. LaBarbera issued his ruling on December 3, 2011 refusing Judicial Notice of Plaintiff October 20th 2015 Augumented (Opposition Ex. # 27) under Federal Bankruptcy Rule 3002.1 showing no Res Judicata. He allowed Respondent on November 24, 2015 to give testimony (“CT” Vol. 6 P. 1594 to 1595 Exhibit # 27). The Court Acknowledged Respondent’s June 27, 2013 Email Appellant’s (“CT” Vol. 3 P. 746 Ex. 9-5) in his December 3, 2015 decision showing, that the Courts Amortization Schedule accounting prior to May 19, 2011 did not start the 4 year Statute of Limitation under Civil Code section 337 which is an Abuse of Discretion. (“CT” Vol. 3 P. 746-FAC Ex. 9-5) acknowledged by the Court dated June 27, 2013 states. (“Additionally this document will not match the amortization schedules which were previously provided to you, because as I have repeatedly told you, amortization schedules set forth the schedule of future payments on a loan if the terms of the loan are adhered to i.e. they are forward looking. Amortization schedules do not take into account missed payments, late payments, fees incurred etc.”
    The Court has misunderstood the amortization schedules created by Union Banks Attorney Robert B. Forouzandeh (“CT” Vol. 3 P. 753) January 5, 2015. This is an Abuse of Discretion.
    Respondent’s actions fall under Wells Fargo Bank, N.A. v. Jones (5th Cir. 2011) 439 Fed.Appx. 330 as explained in the (“CT” Vol. 2 and 3 Pages 585, 603, 611, 616, 622) showing no Res judicata as explained in Allied Fire Protection v. Diede Construction, Inc. (2005) 127 Cal.App.4th 150, 155.)” “Res judicata is not a bar to claims that arise after the initial complaint is filed. These rights may be asserted in a supplemental pleading, but if such a pleading is not filed a plaintiff is not foreclosed from asserting the rights in a subsequent action. (Yager v. Yager (1936) 7 Cal.2d 213, 217) The general rule that a judgment is conclusive as to matters that could have been litigated “does not apply to new rights acquired pending the action which might have been, but which were not, required to be litigated [Citation].” (Kettelle v. Kettelle (1930) 110 Cal.App. 310, 312.)”
    Respondent’s misrepresentation, Extrinsic fraud per Federal Bankruptcy Rule 3002.1 and May 23, 2013 RESPA Denial is similar to (Kettelle v. Kettelle (1930) 110 Cal.App. 310, 312.)” and (Yager v. Yager (1936) 7 Cal.2d 213, 217. ) as Respondent was required to Amend their Proof of Claim as explained in Judicially Noticed (Opposition Ex. # 27) denied by the Court. (“CT” Vol. 2 P. 569 Paragraph 97) Exhibit 20-1 explains the Bankruptcy Courts ruling “without prejudice”. The Court failed to acknowledge (“CT” P. 978 Ex. # 20-1) Bankruptcy Conformation hearing ruling “without prejudice”.
    “Where the plaintiff is unaware of the facts giving rise to a claim due to defendant’s fraud, there is no question of successive litigation by design, the only concern is negligence. A claim should be barred if with diligence it could have been brought earlier. (Himel v. Continental Ill. Nat. Bank & Trust (1979) 596 F.2d 205, 210 [summary judgment based on res judicata reversed where no showing plaintiffs should have known of alleged misconduct of defendant prior to first suit].) But where it cannot be said that plaintiff knew or should have known of the claim when the first action was filed, res judicata should not bar the second action. (Id. at pp. 210-211.)”
    Union Bank’s misrepresentation, RESPA Denial, fraud per Federal Bankruptcy Rule 3002.1 can be explained in:
    “Comment j of section 26 of Restatement Second of Judgments provides in pertinent part: “A defendant cannot justly object to being sued on a part or phase of a claim that the plaintiff failed to include in an earlier action because of the defendant’s own fraud …. [¶] The result is the same when the defendant was not fraudulent, but by an innocent misrepresentation prevented the plaintiff from including the entire claim in the original action.” This rule has been adopted in California. (See Mattson v. City of Costa Mesa, supra, 106 Cal.App.3d at p. 449.)”
    As stated in (Allied Fire Protection v. Diede Construction, Inc. (2005) 127 Cal.App.4th 150, 155.)” The trial court erred in granting summary judgment. [Allied Fire Protection v. Diede Construction, Inc. (2005) 127 Cal.App.4th 158] Union Bank was to amend their January 6, 2012 (Proof of Claim) per Judicially Noticed (Augumented Opposition Ex. # 27) denied by the Superior Court from the April 13, 2012 Bankruptcy Conformation hearing. As pled in the November 20, 2015 (“CT” Vol. 6 Opposition P. 1558 lines 12-16). “―Where there is a duty to disclose, the disclosure must be full and complete, and any material concealment or misrepresentation will amount to fraud. ― (Pashley v. Pacific Elec. Ry. Co. (1944) 25 Cal.2d 226, 235 [153 P.2d 325].) fn. 25 [11]” The Bankruptcy Court has not made a Final judgment with the April 13, 2012 Bankruptcy Conformation Hearing conformed “Without Prejudice” (per Augumented Opp Ex. # 27). The Bankruptcy Court could not make a final judgment with Respondent withholding Post-Petition Attorney Fees as stated by Honorable Judge Robin L. Riblet in Augumented (OPP Ex. # 27) April 13, 2012 Bankruptcy Conformation hearing: “Oh yes, you didn’t comply with Bankruptcy Rule 3002.1. Excuse me it hasn’t been 180 days.”
    The Trial Court in its Abuse of Discretion ignored as Pled in the (“CT” Vol. 2 P. P. 593, 594, 595 # 2, 3, 4, 5, 6 and 7) Regarding Respondent’s Fraud, Breach of Written Contract, Perjury, Breach of Fiduciary Duty and Negligence. The Trial Court instead (“CT” 1630) believes that Amortization Schedules created by Attorney Robert B. Forouzandeh are Bank documents as Appellant Stated before the Court in the (FAC).
    “2. Defendant Union Bank and Union Bank’s Attorney Robert B. Forouzandeh does not deny Union Bank’s Breach of Written Contract, Fraud, Perjury, Breach of Fiduciary Duty and Negligence with defendants changing Certified SBA loan documents on December 26, 2011 during bankruptcy; without informing Plaintiff, Plaintiffs Bankruptcy Cancel or the United States Bankruptcy Court until June 27, 2013. Code of Civil Procedure section 338(d)– Code of Civil Procedure section 337(3).”

    “3. (“With respect to actions based on fraud, the statute of limitations is tolled when plaintiff is able to show the defendant fraudulently concealed facts which would have led him to discover his potential cause of action. ‘Technical rules as to when a cause of action accrues apply therefore only in those cases which are free from fraud committed by the defendant. Said section 338, subdivision 4, . . . recognizes the non-applicability of those technical rules where the fraud of the defendant may be so concealed that in the absence of circumstances imposing greater diligence on the plaintiff, the cause of action is deemed not to accrue until the fraud is discovered. Otherwise, in such cases, the defendant by concealing his fraud would effectively block recovery by the plaintiff because of the intervention of the statute of limitations.” (Snow v. A. H. Robins Co. (1985) 165 Cal.App.3d 120, 127—128 [211 Cal.Rptr. 271], internal citation omitted.) See (FAC) Exhibit # 10-4 dated June 25, 2013.”

    “4. (“Courts have relied on the nature of the relationship between defendant and plaintiff to explain application of the delayed accrual rule. The rule is generally applicable to confidential or fiduciary relationships. The fiduciary relationship carries a duty of full disclosure, and application of the discovery rule ‘prevents the fiduciary from obtaining immunity for an initial breach of duty by a subsequent breach of the obligation of disclosure.’” (Parsons v. Tickner (1995) 31 Cal.App.4th 1513, 1526 [37 Cal.Rptr. 2d 810], internal citations omitted.)“ See (FAC Exhibits 9-5 and 10-4) dated June 25, 2013”

    “5. (“The provision tolling operation of [section 338(d)] until discovery of the fraud has long been treated as an exception and, accordingly, has held that if an action is brought more than three years after commission of the fraud, plaintiff has the burden of pleading and proving that he did not make the discovery until within three years prior to the filing of his complaint.” (Samuels v. Mix (1999) 22 Cal.4th 1, 14 [91 Cal.Rptr.2d 273, 989 P.2d 701], internal citation omitted.) Union Bank’s June 25, 2013 Loan Transaction History (FAC Ex. # 10-4) is the Discovery date of the December 26, 2011 Rescission along with) FAC Ex. 9-5).”

    “6. The section 338, subdivision (d), three-year statute of limitations applies to an unjust enrichment cause of action based on mistake.” (Federal Deposit Ins. Corp. v. Dintino (2008), 167 Cal.App.4th 333, 348 [84 Cal.Rptr.3d 38], original italics.)”

    “7. On or about December 26, 2011 defendants and each of them changed Certified SBA Loan Documents and provided this information on June 27, 2013. (The San Luis Obispo Superior Court has established the Rescission as November 23, 2011.) These representations were false and defendants knew the falsity of these statements at the time they were made. Defendants knew in Defendants October 9, 2015 Demurrer (Exhibit # 6-1 to 6-14) of the Extrinsic fraud they would be doing on December 26, 2011 when defendants purposely changed Certified SBA loan documents. Under delayed Discovery and Fraud, the Statute of Limitations fall under Code of Civil Procedure section 338(d) and Code of Civil Procedure section337(3).”
    The Trial Court ignored as Pled in the (“CT” Vol. 3 P. 612, Paragraph # 21), Regarding Respondent’s Fraud, Breach of Written Contract, Perjury, Breach of Fiduciary Duty and Negligence
    “21. Defendants actions in charging $57,676.17 in Attorney fees fall under. [Tate v. Nationsbanc Mortgage Corporation (In re Tate), 253 B.R. 653 (Bankr. W.D.N.C. 2000)] “As a result, many creditors adopted policies to refrain from including the fees in their claims, while continuing to assess the fees to the debtors’ accounts. The practice was admonished by an Alabama bankruptcy court that published opinions in a series of cases, prohibiting the assessment of post-petition, pre-confirmation attorneys’ fees to an account without disclosure in the proof of claim or in a fee application. [Slick v. Norwest Mortgage, Inc. (In re Slick), 280 B.R. 722 (Bankr. S.D. Ala. 2002)]; Dean v. First Union Mortgage Corporation (In re Dean), 281 B.R. 327 (Bankr. S.D. Ala. 2002)]; and Powe v. Chrysler Financial Corporation, L.L.C. (In re Powe), 278 B.R. 539 (Bankr. S. D. Ala. 2002).”
    The Trial Court in its Abuse of Discretion ignored as Pled in the (“CT” P. 592 and 593 Paragraph # 166, Regarding Respondent’s Fraud, Breach of Written Contract, Perjury, Breach of Fiduciary Duty and Negligence.
    “166. Defendants actions against Plaintiff and his Creditors (County of San Luis Obispo) involves, situations in which Union Bank has intentionally withheld information from the Plaintiff about relevant transactions and loan changes made by defendant on December 26, 2011. See (E.g. Klein v. First Edina National Bank (1972) 243 Minn. 418 [196 N.W.2d 619, 622-623, 70 A.L.R.3d 1337]; First National Bank in Lenox v. Brown (Iowa 1970) 181 N.W.2d 178, 182-183; Stewart v. Phoenix Nat. Bank (1937) 49 Ariz. 34 [64 P.2d 101, 106]; Deist v. Wachholz (1984) 208 Mont. 207 [678 P.2d 188, 193-195].)”
    Respondent’s December 26, 2011 Rescission was withheld until June 27, 2013 by the use of a May 23, 2013 RESPA Denial, restraining orders and Bankruptcy Rule 3002.1 per (“CT” 1594 to 1595 Augumented Opposition Ex. # 27) Testimony by Respondent making the Civil Court the proper Court as Respondent changed loan documents in June 2013. Extrinsic fraud is found where fiduciaries have concealed information they have a duty to disclose. (See, e.g., Adams [181 Cal. App. 3d 597] v. Martin (1935) 3 Cal. 2d 246, 248 [44 P.2d 572]; In re Marriage of Brennan (1981) 124 Cal. App. 3d 598, 601 [177 Cal. Rptr. 520]; Morgan v. Asher (1920) 49 Cal. App. 172, 176-179 [193 P. 288].) Appellant cannot be expected to object to matters not known from Respondent’s December 26, 2011 Rescission because of Respondent’s concealment of information as a fiduciary that took Respondent’s Attorneys until June 27, 2013 to inform Appellant as seen in (“CT” P. 746 785-789 FAC Exhibits 9-5 and 10-4). Extrinsic Fraud is explained. In Craney v. Low (1956) 46 Cal. 2d 757 [298 P.2d 860], As Respondent’s Attorneys put themselves in Charge of Answering SBA loan questions for Union Bank as seen in (“CT” Vol. 3 P. 690 to 705)-statements by Respondent’s Attorney Robert B. Forouzandeh. “The commonest ground for equitable relief is extrinsic fraud, a broad concept which covers a number of situations. Its essential characteristic is that it has the effect of preventing a fair adversary hearing, the aggrieved party being deliberately kept in ignorance of the action or proceeding, or in some other way fraudulently prevented from presenting his claim or defense.” 5 Witkin, California Procedure (2d ed. 1971) Attack on Judgment in Trial Court, section 183, page 3752.
    Respondent’s withholding a Loan Transaction History through restraining orders til June 27, 2013 is known to the Court per the Courts restraining order statements (“CT” Vol.6 P. 1629 to 1632. FAC Ex. # 10-4). In Stenderup v. Broadway State Bank (1933) 219 Cal. 593 [28 P.2d 14], defendants withheld requested information, without which plaintiff was unable to show fraud in accounting. The court held this constituted extrinsic fraud. As said in Caldwell v. Taylor, supra, 218 Cal. 471, at page 479.
    The doctrine of res judicata precludes parties or their privies from relitigating a cause of action that has been finally determined by a court of competent jurisdiction.” (Bernhard v. Bank of America (1942) 19 Cal.2d 807, 810-811 [122 P.2d 892]; see 7 Witkin, Cal. Procedure, supra, section 188, p. 621) This is not the Case as argued (“CT” Vol. 2 P. 541 Par. 55 Lines 22 to 27 P. 542 Line 1 to 3 (“CT” Vol. 3-P. 790 to792 FAC Exhibit # 11-1 to11-3) per Respondent changing Loan Documents in June 2013.
    Respondent’s Amortization Schedules created by Robert B. Forouzandeh and not by Respondent Union Bank per the (“CT”746) FAC Ex. 9-5) Acknowledged by the Court in its Directed Judgment Pursuant to Civil Code section 631.8 is not Substantiated by the Record and should not have been abused by the Court.
    Respondent’s Attorneys created the amortization schedules used in the Courts December 3, 2015 decision, contributing to the Appellants delay in filing suit. [Bollinger v National Fire Ins. Co. (1944) 25 C2d 399, 411 equitably tolled (extended, suspended, put on hold). See (“CT” Vol. 3 P.698 FAC Exhibit 6-13 Lines 9-13). 312.)”
    Respondent Union Bank has successfully misled the Court to prevent Appellant from a Jury Trial on the merits of this case, which has denied Appellant his right to trial. Appellant has pled that on several dates within the four year statute of limitations, there was Breach of Written Contract, showing that Appellant claims are not barred by the Statute of Limitations prior to May 19, 2011 and are within Civil Code section 337(1). Appellant has shown Respondent’s Fraud Civil Code section 338(d). Respondent’s fraud and deceit are defined in Civil Code section 1572, 1709, and 171
    VII. CONCLUSION
    Appellant respectfully requests that the Second Appellate Court make new California Case Law with Respondent’s June 25, 2013 Loan Transaction History and use of Restraining orders acknowledged by the Court in its December 3, 2015 Decision:
    For the foregoing reasons and those contained in Appellant’s Opening Breif, Appellant respectfully requests that the Second Appellate Court reverse Hon Judge Barry T. LaBarbera’s December 3, 2015 ruling for Judgment on Breach of Written Contract, Fraud, Perjury, Breach of Fiduciary Duty and Negligence. Allow Appellant to file a Second Amended Complaint or Proceed to Trial, with Respondent’s claimed rescission on November 23, 2011 from Amortization Schedules created by respondent’s Attorneys.

    DATED: July , 2016 William A. Bookout, Appellant

    By: ____________________________
    William A. Bookout  
    State of California
    Court of Appeal
    Second Appellate District
    CERTIFICATE OF COMPLIANCE
    Appellant hereby certifies that pursuant to Rule 8.204(c)(1) of the California Rules of Court, the enclosed brief of William A. Bookout, the appellant, is produced using 13-point Times New Roman and contains approximately 7,698 words, which is less than the total words permitted by the rules of court. Appellant relies on the word count of the computer program used to prepare this brief.

    Dated: July ___, 2016 Signed:
    By: William A. Bookout
    Appellant, In Pro Per

    PROOF OF SERVICE BY MAIL
    1. I am over the age of 18 and not a party to this action. I am a resident of the county where the mailing occurred.
    2. My business address is: 470 Price Street Pismo Beach, California 93449.
    3. I served the foregoing REPLY APPEAL FROM THE JUDGMENT OF THE SUPERIOR COURT OF SAN LUIS OBISPO COUNTY FOR 1) BREACH OF WRITTEN CONTRACT; 2) FRAUD; 3) PERJURY; 4) BREACH OF FIDUCIARY DUTY; AND 5) NEGLIGENCE on each person named below by enclosing a copy in an envelope addressed as shown below and deposited the sealed envelope on the date and at the place shown in item 4 with the United States Postal Service with the postage fully prepaid.
    4. Date mailed: July 18, 2016 , at San Luis Obispo, California.
    I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
    Date: July 18, 2016
    Name: Vicki Cogley

    NAME AND ADDRESS OF EACH PERSON TO WHOM THIS DOCUMENT WAS MAILED:

    Court of Appeal of the State of California Supreme Court of California
    Second Appellate District (Division Six) 350 McAllister Street
    200 East Santa Clara Street San Francisco, California 94107
    Ventura, California 93001 4 Copies Appeal E- Filing system

    Hon. Judge Barry T. LaBarbera California Attorney General
    Superior Court of San Luis Obispo County DEPARTMENT OF JUSTICE
    1035 Palm Street, Rm. 385 Dept 2 P.O. Box 94425
    San Luis Obispo, CA 93408 Sacramento, Ca 94244-2550

    Robert B. Forouzandeh (Bar No. 247177)
    1421 State Street, Ste. B
    Santa Barbara, CA 93101

  5. From original complaint

    gov.uscourts.dcd.166848.1.0,pdf
    Original complaint
    V. CHASE DEFRAUDS THE FEDERAL GOVERNMENT AND THE STATES BY FORGIVING LOANS IT DOES NOT OWN …………………………………………………….13
    Relator Purchases Mortgages Owned by Chase …………………………………………….13 A.
    1. S&A Purchases …………………………………………………………………………….. 13
    2. 1st Fidelity Purchases ……………………………………………………………………. 15
    Chase Purports To Cancel Loans It No Longer Owns …………………………………….17 B.
    Chase Admits Misconduct ………………………………………………………………………….19 C.
    Chase’s Distribution of Baseless Forgiveness Letters Is Not Limited to D. Relator ……………………………………………………………………………………………………..21
    Chase Forgives Mortgages That Defendants Are Ineligible to Receive E. Credit for Under the Terms of the Consent Judgment …………………………………….22″

  6. I’ve been plastering this case all over. Few seem to get it. Win or lose this is INVESTOR talking about the fraud and non enforcement of law and settlements. Win or lose this verifies everything we’ve been saying.

  7. opps, i dont know how that fire started, in your house, mr banker. have fun cleaning it up. hahahahaha

  8. “The Govt” is not the solution—- it is the problem!

  9. Chase reneged on 2 loan mods and after i had been paying them well beyond when they were offered to me. the first one read as successor in interest to WAMU and the second one showed Chase finance as the lender. They could not get it together as usual. they stalled and stalled and stalled so they could add more fees. One day they are saying fannie mae is the owner of note and then they are saying chase is owner of note. i am in bankruptcy now and giving up house. I am tired of chases’s shit and lies and corruption. I do not want to be a party to crooks and that is all that they are. It is like dealing with the mafia and there is no house worth their price. The govt needs to take this crisis by the balls and prosecute these banks and let them fall like Iceland did. They are going to reap what they have sewn and I cannot wait to see them fall. and I will not be leaving them any of my money to bail them out. F88k them!

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