1 Majid Safaie (SBN 185129)

[email protected]
2 Brian Stuart (SBN 207118)
[email protected]
3 Garrett Hines (SBN198892)
4 [email protected]
ARYA LAW CENTER, PC
5 3187 Red Hill Ave., Ste. 115
Costa Mesa, CA 92626
6 Tel: 877-279-2523
Fax: 877-235-1558
7
8 Attorneys for Plaintiffs
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
COUNTY OF LOS ANGELES - CHATSWORTH
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11 KEVIN ROGERS, an Individual and
CARMEN N. ROGERS, an Individual;
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Case No.: PC056374

)
)
)
Plaintiffs,
)
)
v.
)
)
RESIDENTIAL CREDIT SOLUTIONS,
INC., a Delaware Corporation; BARRETT )
)
DAFFIN FRAPPIER TREDER & WEISS,
)
LLP, a Texas Limited Liability Partnership
)
including Professional Corporations; THE
BANK OF NEW YORK MELLON, fka THE )
BANK OF NEW YORK, as Trustee for the )
Certificate holders of CWMBS, INC., CHL )
)
Mortgage Pass-Through Trust 2007-9,
Mortgage Pass-Through Certificates, Series )
)
2007-9; and DOES 1 through 100,
)
)
Defendants.
)

Assigned to the Honorable Stephen R. Pfahler

Department F49
FIRST AMENDED COMPLAINT FOR
DAMAGES:
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VIOLATION OF CALIFORNIA CIVIL

CODE 2923.6
VIOLATION OF CALIFORNIA CIVIL
CODE 2923.7
VIOLATION OF CALIFORNIA CIVIL
CODE 2924.10

COME NOW the Plaintiffs, KEVIN ROGERS and CARMEN N. ROGERS

24 (Plaintiffs), complaining of the Defendants, and each of them, as follows:

25
1.

INTRODUCTION

26 This is an action brought by Plaintiffs for special, general and statutory damages.

FIRST AMENDED COMPLAINT

1

2.

1 Plaintiffs, homeowners, submitted a complete loan modification application package to

2 Defendant RESIDENTIAL CREDIT SOLUTIONS, their mortgage loan servicer, in accordance
3 with a settlement agreement between Plaintiffs and Defendant BANK OF NEW YORK
4 MELLON and others, for a previous lawsuit against them that was dismissed by Plaintiffs.

3.

5 Defendants sold the Plaintiffs property at a trustee sale scheduled for April 30, 2015, after the
6 Plaintiffs had submitted a complete loan modification application to their mortgage loan servicer,
7 in violation of the California Homeowners Bill of Rights (CHBOR). CHBOR was enacted to
8 protect homeowners, who seek alternatives to foreclosure, from being foreclosed upon while
9 their alternative to foreclosure application is pending.

4.

10 Defendants sold the Plaintiffs property at a trustees foreclosure sale on May 1, 2015, to a third
11 party purchaser.

5.

12 Plaintiffs are asserting their statutory rights and seek damages against the Defendants for their
13 violations of California Civil Code 2923.6, 2923.7 and 2924.10.
14

6.

THE PARTIES

15 Plaintiffs are now, and at all times relevant to this action, residents of the County of Los Angeles,
16 State of California.

7.

17 Defendant, RESIDENTIAL CREDIT SOLUTIONS, INC. (RCS), is a Delaware Corporation,

18 that conducts business in Los Angeles County, California. Defendant RCS is the servicer of the
19 mortgage loan on the Plaintiffs property.

8.

20 Defendant BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP, (BDFTW), is a Texas
21 Limited Liability Partnership including Professional Corporations with its principal place of
22 business in Addison, Texas, that conducts business in Los Angeles County, California.
23 Defendant BDFTW acts as Trustee to Deeds of Trust for Defendant RCS.

9.

24 Defendant THE BANK OF NEW YORK MELLON, fka THE BANK OF NEW YORK, as
25 Trustee for the Certificate holders of CWMBS, INC., CHL Mortgage Pass-Through Trust 200726 9, Mortgage Pass-Through Certificates, Series 2007-9 (BONY), is a New York corporation

FIRST AMENDED COMPLAINT

2

1 acting as a trustee for securitized trusts. Defendant BONY is the owner of the mortgage loan on
2 Plaintiffs Property and beneficiary of the Deed of Trust.
10.

3 At all times relevant to this action, Plaintiffs have owned the Property located at 26068
4 CEYLON PLACE, SANTA CLARITA, CA 91350 (the Property) located in the County of
5 Los Angeles, State of California with Assessors Parcel Number: 2836-072-001, more legally
6 described as:
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Parcel 2:
An undivided one-eighteenth (1/18) fee simple interest (each Unit) as a tenant
in common in the Common Area, as defined in the Declaration recorded June
26, 2006 as Instrument No.06-1392493 of Official Records and shown on the
Plan.

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Parcel 3:

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Nonexclusive easements for access, ingress, use, enjoyment, drainage,

encroachment, support, maintenance, repair and for other purposes, all as may
be shown in the Plan, and as are described in the Declaration.

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11.

Parcel 1:
Unit No. 36, as shown and described in the Condominium Plan ("Plan") for
Milestone at Golden Valley, which Plan was recorded on June 13, 2006, as
Instrument No. 06-1298644 of Official Records of Los Angeles County,
California. The Plan covers portions of Lot 1 of Tract No. 061811-01 as shown
on a Subdivision Map recorded in Book 1314 Pages 9 through 14, and as
corrected in a document entitled Certificate of Correction No. 06-010, recorded
September 22, 2006 as Instrument No. 06-2116181, both in the Office of the
Los Angeles County Recorder.

19 Plaintiffs do not know the true names, capacities, or basis for liability of Defendants sued herein
20 as Does 1 through 100, inclusive, as each fictitiously named Defendant is in some manner liable
21 to Plaintiffs, or claims some right, title, or interest in the Property. Plaintiffs will amend this
22 Complaint to allege their true names and capacities when ascertained. Plaintiffs is informed and
23 believes, and therefore alleges, that at all relevant times mentioned in this Complaint, each of the
24 fictitiously named Defendants are responsible in some manner for the injuries and damages to
25 Plaintiffs so alleged and that such injuries and damages were proximately caused by such
26 Defendants, and each of them.

FIRST AMENDED COMPLAINT

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12.

1 Plaintiffs are informed and believe, and thereon allege, that at all times herein mentioned, each of
2 the Defendants were the agents, employees, servants and/or the joint-venturers of the remaining
3 Defendants, and each of them, and in doing the things alleged herein below, were acting within
4 the course and scope of such agency, employment and/or joint venture.
5

13.

JURISDICTION

6 The transactions and events which are the subject matter of this Complaint all occurred within
7 the County of Los Angeles, State of California.

14.

8 The Property is located within the County of Los Angeles, State of California.
9

15.

10

FACTUAL ALLEGATIONS
On or about March 16, 2007, the Plaintiffs purchased a newly built home from the developer

11 CTX MORTGAGE COMPANY, LLC (CTX), for $567,134.00 secured by a Deed of Trust
12 Recorded March 23, 2007. The Deed of Trust identified Mortgage Electronic Registration
13 Systems (MERS) as the Beneficiary acting as nominee for the Lender and Lenders successors
14 and assigns.
16.

15 In February of 2012, the loan was assigned to Defendant BONY who became the beneficiary of
16 the Deed of Trust.

17.

17 On March 6, 2013, Plaintiffs filed a case against Defendant BONY and others in Los Angeles
18 Superior Court alleging wrongful foreclosure and other various causes of action. The case was
19 settled for a loan modification review and it was dismissed on April 25, 2013.

18.

20 On April 23, 2013, Plaintiffs submitted a loan modification application

21 package to the mortgage servicer through their attorneys in accordance with
22 the settlement agreement with Defendant BONY and meeting the
23 requirements of the California Home Owner Bill of Rights.

19.

24 On September 6, 2013, the mortgage loan servicing rights were assigned to Defendant RCS.

20.

25 On October 29, 2013, Plaintiffs received a letter from Defendant RCS asking for a new
26 modification application to be submitted to them to begin the modification process.

FIRST AMENDED COMPLAINT

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21.

1 Throughout the entire modification process with Defendant RCS, Plaintiffs had requested a
2 single point of contact regarding their application in accordance with the California
3 Homeowners Bill of Rights. Defendants RCS provided several letters throughout the
4 modification process stating the name of an assigned single point of contact, although each
5 letter stated a different name.

22.

6 In January, February and March 2014, Plaintiffs contacted Defendant RCS several times a month
7 to speak to their single point of contact to obtain the status of their application all to no avail.
8 Each time Plaintiffs or their representatives attempted to communicate with the assigned single
9 point of contact they were not available or the call was transferred to someone else. All
10 together there were 31 different people that Plaintiffs spoke to at Defendant RCS trying to obtain
11 the status of their application.

23.

12 On November 11, 2014, Plaintiffs contact Defendant RCS and spoke to, not
13 the assigned single point of contact, but to a person in loss mitigation who
14 identified herself as Ms. Martha Sanchez that informed Plaintiffs that all
15 documents have been received as of November, 6th, 2014.

24.

16 In December Defendant RCS requested again further documentation as their

17 underwriting department required, and Plaintiffs provided the same.

25.

18 On December 31, 2014, Defendant RCS denied the Plaintiffs loan modification application based
19 on insufficient income, while all the documents submitted to Defendant RCS proved the
20 Plaintiffs gross income to be much higher than the amount stated in the denial letter. Plaintiffs
21 followed the instructions within the letter that said if there was an error in the information to call
22 their Loss Mitigation Specialist who requested documentation to prove the error which Plaintiffs
23 provided on or about January 27, 2015.

26.

24 On February 13, 2015, Defendant BONY substituted Defendant BDFTW in as the Trustee of the
25 Deed of Trust.
26

FIRST AMENDED COMPLAINT

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27.

1 On April 2, 2015, Defendant BDFTW recorded a Notice of Sale on the Plaintiffs Property
2 scheduled for April 30, 2015.

28.

3 On April 16, 2015, Plaintiffs, through their representatives, submitted an

4 entirely new loan modification application package. The new application
5 documented substantial changes in the Plaintiffs circumstances, including
6 new income, a change of financial conditions and hardship explanation
7 regarding Plaintiff Kevin Rogers recently being designated as permanently
8 disabled with proof of income.

29.

9 On April 28, 2015, through a phone conversation, Defendant RCS

10 representative Mario stated that the loan modification review will not be
11 continued and the foreclosure sale date of April 30, 2015, will not be
12 postponed as there was not enough time to review the documents that were
13 submitted two weeks prior.

30.

14 On May 1, 2015, Defendant BDFTW conducted a Trustees foreclosure sale at

15 the direction of Defendant RCS acting as agent for Defendant BONY and sold
16 the Plaintiffs Property to a third party purchaser.
17
18

31.

FIRST CAUSE OF ACTION

VIOLATION OF CALIFORNIA CIVIL CODE 2923.6, et seq.
(Against Defendants RCS, BDFTW & BONY)

19 Plaintiffs re-allege and incorporate by reference all preceding paragraphs as though fully set forth
20 herein.

32.

21 California Civil Code 2923.6 states:

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(c) If a borrower submits a complete application for a first lien loan

modification offered by, or through, the borrower's mortgage servicer, a
mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent
shall not record a notice of default or notice of sale, or conduct a
trustee's sale, while the complete first lien loan modification application
is pending. A mortgage servicer, mortgagee, trustee, beneficiary, or
authorized agent shall not record a notice of default or notice of sale or
conduct a trustee's sale until any of the following occurs:

FIRST AMENDED COMPLAINT

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(1) The mortgage servicer makes a written determination that the

borrower is not eligible for a first lien loan modification, and any
appeal period pursuant to subdivision (d) has expired.
(f) Following the denial of a first lien loan modification application, the
mortgage servicer shall send a written notice to the borrower identifying
the reasons for denial
(g) In order to minimize the risk of borrowers submitting multiple
applications for first lien loan modifications for the purpose of delay, the
mortgage servicer shall not be obligated to evaluate applications from
borrowers who have already been evaluated or afforded a fair opportunity
to be evaluated for a first lien loan modification prior to January 1, 2013,
or who have been evaluated or afforded a fair opportunity to be evaluated
consistent with the requirements of this section, unless there has been a
material change in the borrower's financial circumstances since the
date of the borrower's previous application and that change is
documented by the borrower and submitted to the mortgage servicer.
(emphasis added)
On April 15, 2015, Plaintiffs submitted a complete loan modification application which
documented the material change in their financial circumstances to Defendant RCS, pursuant to
CCC 2923.6(g).
Defendant RCS violated CCC 2923.6 (f) when they did not provide the Plaintiffs a written
denial of the complete application submitted on April 15, 2015.
As a further and most willful violation of California Civil Code 2923.6(c), Defendants RCS
acting as agent for Defendant BONY and Defendant BDFTW, the Trustee, conducted a Trustees
Foreclosure Sale on May 1, 2015, and sold the Plaintiffs Property to a third party purchaser,
while the Plaintiffs application was pending as no written denial had been provided.
36. California Civil Code 2924.12 states:
(b) After a trustees deed upon sale has been recorded, a mortgage
servicer, mortgagee, trustee, beneficiary, or authorized agent shall be
liable to a borrower for actual economic damages pursuant to Section
3281, resulting from a material violation of Section 2923.6, 2923.7,
2924.10 by that mortgage servicer, mortgagee, trustee, beneficiary, or
authorized agent where the violation was not corrected and remedied
prior to the recordation of the trustees deed upon sale. If the court finds
that the material violation was intentional or reckless, or resulted from
willful misconduct by a mortgage servicer, mortgagee, trustee,
beneficiary, or authorized agent, the court may award the borrower the
greater of treble actual damages or statutory damages of fifty thousand
dollars ($50,000) (emphasis added)
FIRST AMENDED COMPLAINT
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37.

1 The Plaintiffs seek damages from the Defendants for their material violations of California Civil
2 Code 2923.6 in accordance with 2924.12.

38.

3 Further, California Civil Code 2924.12(i) provides that a court may award a prevailing
4 borrower reasonable attorneys fees and costs in an action brought pursuant to this section. A
5 borrower shall be deemed to have prevailed for purposes of this subdivision if the borrower is
6 awarded damages.
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8

39.

SECOND CAUSE OF ACTION

VIOLATION OF CALIFORNIA CIVIL CODE 2923.7
(Against Defendant RCS and Does 1-50)

9 Plaintiffs re-allege and incorporate by reference all preceding paragraphs as though fully set forth
10 herein.

40.

11 California Civil Code 2923.7 states as follows:

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a. Upon request from a borrower who requests a foreclosure prevention

alternative, the mortgage servicer shall promptly establish a single point of
contact and provide to the borrower one or more direct means of
communication with the single point of contact.
b. The single point of contact shall be responsible for doing all of the
following:
(1) Communicating the process by which a borrower may apply for an
available foreclosure prevention alternative and the deadline for any
required submissions to be considered for these options.
(2) Coordinating receipt of all documents associated with available
foreclosure prevention alternatives and notifying the borrower of any
missing documents necessary to complete the application.
(3) Having access to current information and personnel sufficient to
timely, accurately, and adequately inform the borrower of the current
status of the foreclosure prevention alternative.
(4) Ensuring that a borrower is considered for all foreclosure
prevention alternatives offered by, or through, the mortgage servicer, if
any.
(5) Having access to individuals with the ability and authority to stop
foreclosure proceedings when necessary.
c. The single point of contact shall remain assigned to the borrower's
account until the mortgage servicer determines that all loss mitigation
options offered by, or through, the mortgage servicer have been exhausted or
the borrower's account becomes current. (emphasis added)

26

FIRST AMENDED COMPLAINT

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41.

1 In addition, to their willful violation of CCC 2923.6, Defendant RCSs alleged assigned
2 single point of contact (POC) changed again and again from the beginning of this process.
3 Every month or so Plaintiffs received another assigned POC. Plaintiffs never spoke to the same
4 person twice when trying to obtain the status of their application from Defendant RCS. In fact
5 there was not less than 31 different Defendant RCS representatives that Plaintiffs attempted to
6 obtain status information from regarding their application.

42.

7 Further, the most recent assigned POC appeared to not have access to individuals with the
8 ability and authority to stop foreclosure proceedings.

43.

9 Defendant RCS violated California Civil Code 2923.7 when they failed to assign a single POC
10 as they never spoke to the same person 2923.7 a., who was supposed to coordinate receipt of
11 documents as they were often told that items were missing that they had already submitted
12 2923.7 b.(2), or adequately informed the borrowers of the current status 2923.7 b.(3), had
13 access to those with the authority to stop foreclosure proceedings 2923.7 b.(5), or remained
14 assigned to the borrower's account until all loss mitigation options have been exhausted 2923.7
15 c.

44.

16 The failure to assign a single point of contact by Defendant RCS made it extremely difficult for
17 Plaintiffs to obtain accurate status updates regarding their application. Furthermore, an
18 authorized single point of contact could have facilitated the possibility of postponing the
19 foreclosure proceedings since the Plaintiffs were seeking an alternative to foreclosure and had
20 submitted a complete application prior to the scheduled sale date in accordance with the
21 CHBOR.

45.

22 As a result of these violations by Defendant RCS, Plaintiffs lost their home to a foreclosure sale
23 while seeking an alternative to foreclosure which was what the State Legislature was trying to
24 protect homeowners from when enacting the CHOBR.
25 ///

46.

26 California Civil Code 2924.12 states:

FIRST AMENDED COMPLAINT

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47.

(b) After a trustees deed upon sale has been recorded, a mortgage servicer,
mortgagee, trustee, beneficiary, or authorized agent shall be liable to a borrower
for actual economic damages pursuant to Section 3281, resulting from a material
violation of Section , 2923.7, by that mortgage servicer, mortgagee, trustee,
beneficiary, or authorized agent where the violation was not corrected and
remedied prior to the recordation of the trustees deed upon sale. If the court finds
that the material violation was intentional or reckless, or resulted from willful
misconduct by a mortgage servicer, mortgagee, trustee, beneficiary, or authorized
agent, the court may award the borrower the greater of treble actual damages or
statutory damages of fifty thousand dollars ($50,000)

7 Defendant RCS is required by law to appoint a single point of contact with the ability to
8 communicate the status of their application with the Plaintiffs, that is appointed throughout the
9 exhaustion of all loss mitigation options and with the authority to stop foreclosure proceedings.

48.

10 The failure of Defendant RCS to adhere to the provisions of this statute led directly to the
11 Plaintiffs loss of their home at the trustees foreclosure sale because the alleged POC could not
12 or would not postpone the foreclosure sale in spite of the fact that the Plaintiffs had a complete
13 application submitted to their servicer, Defendant RCS.

49.

14 Plaintiffs assert their statutory right to seek damages from the Defendants for their material
15 violations of California Civil Code 2923.7 in accordance with 2924.12.

50.

16 Further, California Civil Code 2924.12(i) provides that a court may award a prevailing
17 borrower reasonable attorneys fees and costs in an action brought pursuant to this section. A
18 borrower shall be deemed to have prevailed for purposes of this subdivision if the borrower
19 obtained injunctive relief or is awarded damages.
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51.

THIRD CAUSE OF ACTION

VIOLATION OF CALIFORNIA CIVIL CODE 2924.10
(Against Defendant RCS and Does 51-100)

22 Plaintiffs re-allege and incorporate by reference all preceding paragraphs as though fully set forth
23 herein.
24 ///

52.

25 Defendant RCS violated CCC 2924.10 which states:

(a) When a borrower submits a complete first lien modification application
26
or any document in connection with a first lien modification application,

FIRST AMENDED COMPLAINT

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the mortgage servicer shall provide written acknowledgment of the receipt

of the documentation within five business days of receipt. (Emphasis
added)

1
2

53. Defendant RCS did provide written acknowledgement of receiving the

Plaintiffs complete application. However, the application was

submitted on April 22, 2014, and their letter acknowledging its

receipt was dated May 4, 2014. According to the above statute

the acknowledgement is to be provided within 5 business days

of receipt.

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54.

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55.

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57.

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Defendant RCS failed to adhere to the Legislations intent when they did not follow the
procedure set down by statute and violated 2924.10 by not providing the written
acknowledgment of the complete application within 5 business days of its receipt but rather sent
its letter dated 12 days after the completed application was received.
Under California Civil Code 2924.12 as previously stated the mortgage servicer shall be liable
to a borrower for actual economic damages pursuant to Section 3281, resulting from a material
violation of Section 2924.10 by that mortgage servicer. If the court finds that the material
violation was intentional or reckless, or resulted from willful misconduct by a mortgage
servicer, the court may award the borrower the greater of treble actual damages or statutory
damages of fifty thousand dollars ($50,000).
Therefore the Plaintiffs are seeking statutory damages for Defendant RCS violations of the
above Civil Code.
Further, California Civil Code 2924.12(i) provides for reasonable attorneys fees and costs if
the borrower is awarded damages.
PRAYER FOR RELIEF

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WHEREFORE Plaintiffs KEVIN ROGERS and CARMEN N. ROGERS, Plaintiffs, will

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ask for the following to be awarded for each of the THREE CAUSES OF ACTION:
///

FIRST AMENDED COMPLAINT

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1. For Compensatory damages in an amount not less than $279,280 plus

damages to be determined according to proof at trial;

2. For General damages as allowed by law;

3. For Statutory damages as stated in CCC 2924.12 for Defendants

violations of the California Homeowners Bill of Rights;

4. For Attorneys fees and costs of suit per statute; and

5. For such other and further relief that the court may deem just and proper.

8 Dated: September 14, 2016

9
10

ARYA LAW CENTER, PC

_______________________
Brian T. Stuart,
Attorneys for Plaintiffs

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FIRST AMENDED COMPLAINT

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PROOF OF SERVICE
I declare that I am over the age of eighteen and not a party to the within action. I am

3 employed in the County of Orange, State of California, as Sr. Legal Assistant at ARYA LAW
4 CENTER, PC, at 3187 Red Hill Ave., Suite 115, Costa Mesa, CA 92626.
5

On January 7, 2016, I served the interested parties attorneys of record the foregoing

6 FIRST AMENDED COMPLAINT,

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BY PLACING a true copy thereof, enclosed in a sealed envelope, addressed as follows:

CHRIS C. CHAPMAN
BARRETT DAFFIN FRAPPIER
TREDER & WEISS, LLP
20955 PATHFINDER RD STE 300
DIAMOND BAR, CA 91765

[email protected]

BY REGULAR MAIL: with First Class postage fully paid thereon. I am "readily

13 familiar" with the practice of collection and processing correspondence for mailing. Under the
14 practice, it would be deposited with the United States Postal Service on that same day, with
15 postage thereon fully prepaid at Costa Mesa, California, in the ordinary course of business. I am
16 aware that on motion of the party served, service is presumed invalid if postal cancellation date
17 or postage meter date is more than one day after date of deposit for mailing an affidavit.
18

BY ELECTRONIC MAIL TRANSMISSION: I transmitted the foregoing document by

19 electronic mail transmission to the e-mail address of each addressee.

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I declare under penalty of perjury under the laws of the State of California that the above

21 is true and correct and executed on January 7, 2016, at Costa Mesa, California.
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________________________________
DeAnna Lorenzo,
Sr. Legal Assistant

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FIRST AMENDED COMPLAINT

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