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Local Activist Speaks Out Against US Loan Auditors

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  • AyatollahGondola
    replied
    and once more:
    2010-00072372-CU-OR
    INES CABALLERO VS. DREAMCASA, INC.
    Hearing on Demurrer
    Defendant Bank of America, N.A., as successor in interest to Countrywide Bank,
    FSB’s demurrer to Plaintiff Ines Caballero’s complaint is ruled upon as follows.
    Defendants' request for judicial notice is granted.
    Plaintiff’s complaint alleges numerous causes of action arising out of a non-judicial
    foreclosure proceeding
    First and Second Causes of Action (Fraud and Misrepresentation)
    The demurrer is sustained with leave to amend for failure to state facts sufficient to
    constitute a cause of action. Plaintiff has not alleged fraud with the required specificity.
    Plaintiff fails to allege the content of any misrepresentation by Defendant or its agents,
    or even the specific nondisclosure attributed to Defendant. Also, given this cause of
    action is alleged against Defendant, a corporate defendant, Plaintiff was required to
    allege “the names of the persons who made the allegedly fraudulent
    misrepresentations, their authority to speak, to whom they spoke, what they said or
    wrote, and when it was said or written.” (Tarmann v. State Farm Mut. Auto. Ins. Co.
    (1991) 2 Cal.App.4th 153, 157.) Plaintiff essentially concedes she has not alleged this
    level of specificity but argues discovery will uncover the information. However, as
    currently pled, there are no allegations which would indicate that Plaintiff cannot at
    least attempt to plead fraud against a corporate defendant with the required specificity
    nor is any convincing argument provided as to why she should not have to make the
    allegations. To the extent Plaintiff bases these causes of action on her allegation that
    Defendant violated the Truth in Lending Act, her claim is insufficient as any TILA claim
    must be filed one year after the alleged violation. (15 USC § 1640(e).) However, here,
    Plaintiff entered the loan agreement in November 2007 and did not file the action until
    2010.
    Third Cause of Action (Breach of Fiduciary Duty)
    The demurrer is sustained with leave to amend for failure to state facts sufficient to
    constitute a cause of action. Plaintiff does not allege that Defendant owed her a
    fiduciary duty of that Defendant breached any duty, instead she alleged that a
    mortgage broker owes fiduciary duties. (Comp. ¶ 61.) Plaintiff did not allege
    Defendant was a broker, instead she alleged Defendant was her lender. (Comp. ¶¶ 4,
    63.) Yet lenders in residential loan transactions do not owe borrowers fiduciary duties.
    (Bastajian v. Brown (1943) 57 Cal.App.2d 910, 915.) Further she alleged codefendant
    Dreamcasa breached a fiduciary duty, but did not allege any facts
    attributable to Defendant. (Comp. ¶¶ 64, 65.)
    Fourth Cause of Action (Unconscionability)
    The demurrer is sustained with leave to amend for failure to state facts sufficient to
    constitute a cause of action. Unconscionability is an affirmative defense, not a cause
    of action. (Dean Witter Reynolds, Inc. v. Superior Court (1989) 211 Cal.App.3d 758,
    794.) Plaintiff fails to address this point in her opposition.
    Fifth Cause of Action (Negligence)
    The demurrer is sustained with leave to amend for failure to state facts sufficient to
    constitute a cause of action. Financial institutions do not owe borrowers a duty of care
    when the lender’s involvement in the loan transaction does not exceed the scope of its
    normal role as a lender of money. (Nymark v. Heart Fed. Savs. & Loan Ass’n (1991)
    231 Cal.App.3d 1089, 1096.) Plaintiff’s allegations involve a conventional loan
    transaction. Plaintiff does not discuss this authority in her opposition.
    Sixth Cause of Action (B&P § 17200)
    The demurrer is sustained with leave to amend for failure to state facts sufficient toconstitute a cause of action. The Court disagrees that Plaintiff failed to allege loss of
    property or money to show standing under B&P § 17200 given she alleged her loan
    payments were increased as a result of Dreamcasa’s and Defendant’s acts. (Comp. ¶
    86.) However, her claim fails to state facts showing any wrongful conduct by
    Defendant given it is based on her deficient allegations in her previous causes of
    action and also upon allegations that Defendant violated RESPA, the Equal Credit
    Opportunity Act and TILA, yet her allegations are insufficient to demonstrate any
    violation. As pled, any RESPA claim is time barred given a RESPA claim must be
    brought within one year of the alleged violation and the complaint was filed more than
    two years after the loan was made. (12 USC § 2614.) The ECOA claim fails because
    Plaintiff did not allege she was discriminated against regarding any credit transaction
    based on her membership in a protected class. The TILA claim fails as discussed
    above in connection with the fraud claims.
    Seventh Cause of Action (Unjust Enrichment)
    The demurrer is sustained with leave to amend for failure to state facts sufficient to
    constitute a cause of action. Plaintiff has not alleged in this cause of action any facts
    showing Defendant was unjustly enriched. Instead, she simply alleges that
    “Defendants have been unjustly enriched…by wrongfully collecting money to which
    Defendants, in equity, are not entitled. Defendants have unjustly retained the amounts
    wrongfully collected.” (Comp. ¶ 92.) She also refers to a yield spread premium that
    Defendant paid to Dreamcasa. (Comp. ¶ 96.) Again, however, no facts in this cause
    of action demonstrate that this premium is improper, or even that Defendant retained
    the premium. Nor is there any allegation as to what fees Defendant has kept which
    are unearned. Plaintiff’s allegations are insufficient to show what this Defendant
    wrongfully collected or retained any money.
    Eighth Cause of Action (Accounting)
    The demurrer is sustained with leave to amend for failure to state facts sufficient to
    constitute a cause of action. An accounting is only appropriate when “the accounts are
    so complicated that an ordinary legal action demanding a fixed sum is
    impracticable.” (Civic W. Corp. v. Zila Indus., Inc. (1977) 66 Cal.App.3d 1, 14.)
    Plaintiff’s allegations fail to establish that the amount due under her loan is not readily
    ascertainable, the means of which are within the knowledge of this Defendant.
    Ninth Cause of Action (Quiet Title)
    The demurrer is sustained with leave to amend for failure to state facts sufficient to
    constitute a cause of action. A borrower cannot maintain a quite title action against the
    mortgagee without paying the secured debt. (Miller v. Provost (1994) Cal.App.4th
    1703, 1707.) This is true even where the debt is unenforceable. (Mix v. Sodd (1981)
    126 Cal.App.3d 386, 390.) Here, Plaintiff has not alleged tender.
    Tenth Cause of Action (Declaratory Relief)
    The demurrer is sustained with leave to amend for failure to state facts sufficient to
    constitute a cause of action. Plaintiff alleges that her note “was assigned to a trust
    pool through [a] securitization process,” that “necessarily entail[ed] separation of the
    Note and Deed of Trust,” thereby negating the enforceability of the note. (Comp. ¶¶
    108-107.) She seeks a declaration pursuant to Civil Code § 2932.5 that the power ofsale in the deed of trust is void. § 2932.5 provides that the “power of sale may be
    exercised by the assignee if the assignment is duly acknowledged and recorded.”
    Plaintiff alleges no facts showing such violation. Further, to the extent this cause of
    action is based upon the theory that Defendant does not have possession of the
    original note, no authority is provided to support the theory.
    Eleventh and Twelfth Causes of Action (Cancellation of Void Instrument and
    Rescission)
    The demurrer is sustained with leave to amend for failure to state facts sufficient to
    constitute a cause of action. These causes of action rely upon the allegations in
    Plaintiff’s previous causes of action that the loan documents were procured by fraud,
    and were unconscionable. Given the underlying allegations are inadequately pled as
    discussed above, the instant causes of action are deficient for the same reasons.
    Thirteenth Cause of Action (Slander of Title)
    The demurrer is sustained with leave to amend for failure to state facts sufficient to
    constitute a cause of action. While Defendant argues slander of title claims are
    subject to the one year statute of limitations in Code of Civil Procedure § 340(c), case
    law suggests it is subject to a two year statute of limitations. (Guess, Inc. v. Superior
    Court (1986) 176 Cal.App.3d 473, 477.) The cause of action is based upon the
    recording of the deed of trust, yet the deed of trust was recorded in November 2007.
    Here, since the action was filed on March 2010, this cause of action as pled is barred
    by the statute of limitations. Plaintiff does not address this point. In any event, Plaintiff
    fails to allege facts demonstrating that the recorded deed of trust was false. While she
    alleged the deed of trust purports to “establish a debt that was never owed” this is not
    sufficient because there are no facts to demonstrate why the debt was never owed.
    To the extent, the allegation is based on her claims regarding the purported invalidity
    of the loan (e.g., fraud) it is insufficient because those allegations are insufficient.
    Plaintiff also failed to allege that any publication was without privilege or justification.
    (Howard v. Schaniel (1980) 113 Cal.App.3d 256, 263-264.)
    Fourteenth Cause of Action (Injunctive Relief)
    The demurrer is sustained with leave to amend for failure to state facts sufficient to
    constitute a cause of action. Injunctive relief is a remedy not a cause of action and
    must be tethered to an underlying cause of action. Given Defendant’s demurrers to
    every other causes of action has been sustained, the demurrer to this cause of action
    is sustained for the same reasons.
    Plaintiff may file and serve an amended complaint no later than August 16, 2010.

    Leave a comment:


  • AyatollahGondola
    replied
    I have been looking into general cases that have been brought before the court on matters related to causes of action that have been suggested by USLA during their sales pitches and audits. My conclusion is that the judges are not having any of it. Case after case works its' way through the system and the plaintiff's causes have been religiously shot down before they even reach a trail date Here are examples of todays rulings, but you can find one's like these nearly every day:

    2010-00080731-CU-OR
    Francisco M. Magdaleno vs. Deutsche Bank National Trust Comp
    Nature of Proceeding:
    Filed By:
    Motion for Preliminary Injunction
    Abdallah, Mitchell L.
    Plaintiff's Motion for Order to Show Cause re Preliminary Injunction is denied.
    Plaintiffs allege that defendants wrongfully foreclosed on their home after
    promising a loan modification. Plaintiffs allege causes of action for fraud, negligent
    misrepresentation, breach of fiduciary duty, breach of contract, negligence, unfair
    competition, predatory lending, declaratory relief and injunctive relief. The plaintiffs'
    complaint is unverified.
    Plaintiffs seek injunctive relief enjoining the defendants from reselling or
    displacing plaintiffs from the subject property. Plaintiffs' request is denied as it is not
    supported by any evidence. The only declaration in support of the motion is counsel's
    declaration stating that he served the moving papers.
    "A preliminary injunction may be granted at any time before judgment upon a
    verified complaint, or upon affidavits if the complaint in the one case, or the affidavits in
    the other, show satisfactorily that sufficient grounds exist therefor." CCP 527(a).
    In the absence of any evidence to support the requested relief, plaintiffs have
    not met their burden to establish any of the grounds for injunctive relief set forth in
    CCP 526.
    Plaintiffs' Reply argues that defendants' opposition fails to prove that plaintiffs
    did not pay monies owed to defendants. However, the burden of proof is on the
    Plaintiffs, not defendants.
    The minute order is effective immediately. No formal order pursuant to CRC
    Rule 3.1312 or further notice is required

    2010-00071458-CU-OR
    Sergey Manuylov vs. Bridge Real Estate Company, Inc.
    Nature of Proceeding:
    Filed By:
    Hearing on Demurrer
    Pingel, John P.
    Defendants Bank of America, BAC Home Loans Servicing LP; and ReconTrust
    Company, N.A.s' Demurrer to the Complaint is ruled on as follows:
    Plaintiffs allege that they obtained a loan from First Magnus that he could not
    afford to repay. Plaintiffs allege the closing statement included an unearned and and
    excessive Yield Spread Premium, and that the interest rate was higher than
    previously represented to them. Defendant Bridge was the mortgage broker and First
    Magnus was the original lender. Plaintiffs allege that Bridge did not verify the
    plaintiffs' ability to repay the loan. Demurring parties were not the original lender or
    mortgage broker but the alleged successor in interest. Plaintiffs seek to enjoin the
    foreclosure sale. Plaintiffs allege that the foreclosure statutes have not been complied
    with regarding notice of the sale by the substituted trustee
    1st cause of action Fraud, and 2nd cause of action Misrepresentation:
    Sustained with leave to amend for failure to state facts sufficient to constitute a cause
    of action. The current allegations are insufficient to support equitable tolling of the
    statute of limitations. Moreover, fraud must be pleaded with specificity. Plaintiff fails to
    allege, specifically or generally, "how, when, where, to whom, and by what means the
    representations were tendered," as well as the purported agent's authority to speak on
    behalf of defendants (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645), or how
    defendants are liable for the fraud of the original lender.
    3rd cause of action Breach of Fiduciary Duty: Sustained without leave to
    amend for failure to state facts sufficient to state a cause of action There is no
    fiduciary duty between lender and borrower. See e.g. Oaks Management Corp. v
    Superior Court (2007) 145 Cal.App.4th 453, 466. Moreover, plaintiffs do not allege
    that moving parties are the successor in interest to Bridge.
    4th cause of action Civil Code 2923.5: Sustained with leave to amend for
    failure to state facts sufficient to constitute a cause of action. Defendants' moving
    papers contend that no private right of action exists. The Reply cites the recent Mabry
    case, conceding that a cause of action is stated, but only to enjoin the sale. The
    remedy under 2923.5 does not include money damages. Mabry v Superior Court
    (2010) 185 Cal.App.4th 208, 214. However, the claim is defective in that plaintiffs
    have not alleged which defendant has the duty to contact the borrower in an effort to
    avoid the foreclosure.
    5th cause of action Violation of Business & Professions Code section
    17200: Sustained with leave to amend, as the underlying fraud is not adequately set
    forth.
    6th cause of action Unconscionability: Sustained without leave to amend for
    failure to state facts sufficient to constitute a cause of action. This is a defense, not a
    cause of action.
    7th cause of action Unjust Enrichment: Sustained with leave to amend for
    failure to state facts sufficient to constitute a cause of action.
    8th cause of action Accounting: Sustained with leave to amend for failure to
    state facts sufficient to state a cause of action. Plaintiffs have not alleged a statutory
    or contractual right to an accounting.
    9th cause of action Quiet Title: Sustained with leave to amend for failure to
    state facts sufficient to constitute a cause of action. Plaintiffs have not alleged that
    they have tendered the amount due, which is a requirement to maintain a quiet title
    action against a mortgagee.
    10th cause of action Declaratory Relief: Sustained with leave to amend for
    failure to state facts sufficient to constitute a cause of action.
    11th cause of action Injunctive Relief: Sustained with leave to amend for
    failure to state facts sufficient to constitute a cause of action.
    12th cause of action Violation of Civil Code 2934(e) and (d): Overruled.
    The fact that the foreclosure sale has not yet occurred does not obviate the
    requirement of the successor trustee to comply with these sections requiring that a
    new notice of sale be issued before any foreclosure sale takes place.
    13th cause of action Promissory Estoppel: Sustained with leave to amend
    for failure to state facts sufficient to constitute a cause of action. The underlying fraud
    allegations are insufficiently pleaded.
    14th cause of action Unconscionability: Sustained without leave to amend
    for failure to state facts sufficient to constitute a cause of action. This is a defense, not
    a cause of action.
    15th cause of action Cancellation of Void Instrument: Sustained without
    leave to amend for failure to state facts sufficient to constitute a cause of action.
    16th cause of action Slander of Title: Sustained with leave to amend for
    failure to state facts sufficient to constitute a cause of action. The claim is time-barred.
    Moreover, plaintiffs admit that they received a loan, therefore, the recordation of a
    deed of trust is not "erroneous." The opposition indicates that the claim is based on
    "notices" rather than deeds of trust.
    Plaintiffs may file and serve an Amended Complaint on or before August 23,
    2010. Response to be filed and served within 20 days of service of the amended
    complaint, 25 days if served by mail.
    The minute order is effective immediately.

    Leave a comment:


  • oaktown1
    replied
    Looking for fellow victims of USLA.

    We were featured on a local tv station consumer help segment about usla. I need to find others that still have lawsuits pending against gmac that origniated with greenpoint. I am trying to get a class action case going. I will be in contact again with the attorney that filed one against usla, since they kind of go together. My case will have merit since JS didn't even include anything in the orginal case. I fired the attorney assigned to me by usla since he never checked the court house before the ud was filed and would have discovered Indymac bank is still listed as the lein holder and never filed a Notice of Lis Pendens or even a temporary restraining order, money for nothing I guess the 5 months I did pay for the so called legal service not to mention what both Jason Barnriter and Gabe Thomas said I will never forget "why throw away good money on a bad loan" and "don't pay your mortgage instead pay us to fight for you", the only one fighting here is my husband and I. Of course we won't let them get the best of us!!

    Leave a comment:


  • ExContractor
    replied
    Law Suite

    A Class Action Law Suite has been Filed against USLA And Us Legal...



    Former Customers File Class Action Lawsuit, And Claim False Advertising
    Read Entire Class Action Complaint .pdf

    Leave a comment:


  • Steve
    replied
    Signs

    What did the flatbed trailer sign read? I could only see customer and lawsuit. Glad to see you guys are still out there.

    Leave a comment:


  • AyatollahGondola
    replied
    Mr anti-social was sent out to welcome us appropriately

    [ame="http://www.youtube.com/watch?v=dh89XDhbcN4"]YouTube- USLA Camera Goon 3.wmv[/ame]

    Leave a comment:


  • AyatollahGondola
    replied
    GamblingBob argues with one of the suits from US Loan auditors during a protest of the company

    [ame="http://www.youtube.com/watch?v=soWwF7C55x4"]YouTube- USLA Suit Argues With Dissatisfied Customer.wmv[/ame]

    Leave a comment:


  • AyatollahGondola
    replied
    Originally posted by Steve
    What happened on Wednesday?
    Sorry, I forgot. will have some video up here in a moment

    Leave a comment:


  • Steve
    replied
    Pictures?

    What happened on Wednesday?

    Leave a comment:


  • AyatollahGondola
    replied
    There was a public demonstration today at USLA,

    We had signage, fliers, and public documents on display. We met some other people who were in various stages of their dealings with USLA. Mr Whaley paid us a few visits to speak with GamblingBob. Apparently there is a half-assed offer made to settle with GamblingBob, but that was undecided at the time. We also met their camera goon again...not unexpected of course. We got many thumbs up from passers-by, both in cars and on foot. I also filmed a short info-mercial about the company and the loan audit scheme, using USLA's truck and building signage as a backdrop.

    Will post some video and some pictures before the night is through

    Leave a comment:


  • AyatollahGondola
    replied
    Documents relating to the felony conviction of Daniel Patrick Whaley are available at:



    This person has been referred to many times by those claiming improprieties and bad business practices of US Loan Auditors. If Mr Whaley is taking part in any illegal activities during his employment or association with US Loan Auditors, he may be in violation of his probation. If you have evidence that Mr Whaley is violating the terms of his probation, it would be best to notify the court or the prosecuting attorney handling the cases, or his probation officer. Mr Whaley has an upcoming hearing in Sacramento court in relation to two subsequent arrests for DUI. If there is information you feel is relevant to his continued probation, the time to forward that to the court is now.


    Also, the following terms of his probation may be important in that if you have requested an investigation by any government authority into US Loan Auditors business practices, and they involve any dealings with Mr Whaley, you should make them aware of the terms of his probation


    Defendant shall submit his person, property and automobile and any object
    under defendant's control to search and seizure in or out of the presence of the defendant, by any law enforcement officer and/or Probation officer, at any time of the day or night, with or without his consent, with or without a warrant. Defendant being advised of his constitutional rights in this regard, and having accepted probation, is deemed to have waived same.
    6. You shall allow Probation Officers to visit your home and place of employment at reasonable times.

    Leave a comment:


  • AyatollahGondola
    replied
    another public protest of USLA's business practices is scheduled for tomorrow, Wednesday the 28th. Two of us have committed, and we are soliciting for others.

    Leave a comment:


  • AyatollahGondola
    replied

  • AyatollahGondola
    replied
    Does anyone have anything in writing from this character Whaley of USLA?

    Leave a comment:


  • AyatollahGondola
    replied
    Originally posted by AyatollahGondola
    Idaho orders US Loan Auditors to cease and desist. Visit this thread on PDD


    http://publicdocumentdistributors.co...?p=783#post783
    I may have missed something here. The name is USA Loan Auditors and Not US Loan Auditors. I'm not sure they are connected at this time

    Leave a comment:

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