Complaint January 12, 2024 (2024)

Complaint January 12, 2024 (1)

Complaint January 12, 2024 (2)

  • Complaint January 12, 2024 (3)
  • Complaint January 12, 2024 (4)
  • Complaint January 12, 2024 (5)
  • Complaint January 12, 2024 (6)
  • Complaint January 12, 2024 (7)
  • Complaint January 12, 2024 (8)
  • Complaint January 12, 2024 (9)
  • Complaint January 12, 2024 (10)
 

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Filed Superior Court of California, Sacramento RAY KIM LAW, APC O11 22024 Raymond Y. Kim (SBN 251210) fisherr 112 E. Amerige Ave., Suite 240 By _ Deputy NYO Fullerton, CA 92832 Telephone: 833-729-5529 24CVb00485 W Facsimile: 833-972-9546 E-mail:ray@raykimlaw.com fF Attorneys for Plaintiff nA Mohammed F. Khan HD AN SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SACRAMENTO 0 SO Mohammed F. Khan, ) SES KF ) Plaintiff, ) VERIFIED COMPLAINT AND SF NYO 112 E. Amerige Ave., Suite 240 ) DEMAND FOR JURY TRIAL VS.Ray Kim Law, APC KF Fullerton, CA 92832 BW Planet Home Lending, LLC; Asset Recovery _) FAX HK Center, LLC; ARCPE Holding LLC; ZBS ) Law, LLP; and DOES 1-10. ) Nn KF ) Defendants. ) HDA HF ) BY HF WON HK OHO HK CO NO KF NN NY NY NY BW NY MN NO DN NO NO oN NO VERIFIED COMPLAINT Plaintiff Mohammed F. Khan (“Plaintiff”) brings this Complaint against defendants Planet Home Lending, LLC (“Planet Lending”); ARCPE Holding LLC (“ARCPE”); ZBS Law, LLP NYO (“ZBS”) (together “Defendants”), and alleges as follows: W SUMMARY OF ACTION fF L. Plaintiff brings this action for damages and other legal and equitable remedies nA (including the rescission of the Notice of Default recorded on September 26, 2023), resulting from NH inter alia the illegal actions of Defendants in commencing foreclosure proceedings on his home ON located at 9614 Boblyn Way, Elk Grove, CA 95757 (the “Home”) based on a void deed of trust. The deed of trust is void because the loan secured by the deed of trust (the “Loan”) that was So cancelled by the beneficiary over 12 years ago, on October 25, 2010. In fact, the beneficiary issued CO a 1099-C and has taken no action on the Loan until last year in 2022. In addition, Plaintiff reported OS KF the cancellation of debt on his 2010 tax returns. By attempting to foreclose on the Home now based 112 E. Amerige Ave., Suite 240 NO OFRay Kim Law, APC on a void assignment of deed of trust, Defendants are engaging in a wrongful foreclosure of the Fullerton, CA 92832 KP BW Home. In addition, on information and belief, ARCPE does not have ownership or the right to KF foreclose on the Home. NH KF 2. In so doing, Defendants are liable for common law wrongful foreclosure and their HA KF foreclosure proceedings must be estopped pursuant to Plaintiff's claim for promissory estoppel. KF WBN Defendants have also violated the: (i) California Rosenthal Fair Debt Collection Practices Act KF (“Rosenthal Act”), Cal. Civ. Code § 1788 et seq.; (ii) federal Fair Debt Collection Practices Act HO KH (“FDCPA”), 15 U.S.C. § 1692 et seq.; (iii) federal Real Estate Settlement Practices Act (“RESPA”) CO WN and Regulation X, 12 C.F.R. §§ 1024.33, 1024.39; (iv) California Home Owners Bill of Rights, kK HN (“HBoR”), Civil Code § 2924.17; and (v) California Unfair Competition Law (“UCL”), Business NY NY and Professions Code § 17200. With respect to Defendants’ unlawful foreclosure practice, pursuant NY BW to Civil Code § 2924.19 and Business and Professions Code § 17203, Plaintiff seeks an injunction NH ordering that Defendants cancel and rescind the notice of default and immediately stop all MN HN foreclosure proceedings on the Home. In addition, pursuant to Business and Professions Code § DO NH 17203, Plaintiff seeks public injunctive relief ordering that, going forward ZBS not submit and/or NO on record a declaration or notice of default that is not supported by competent and reliable evidence. NO =e VERIFIED COMPLAINT THE PARTIES 3. Plaintiff is an individual consumer residing in the State of California, Sacramento NY County. Plaintiff is the owner of residential property located at 9614 Boblyn Way, Elk Grove, CA WY 95757 (the “Home”). The Home is Plaintiff's principal residence is security for the Loan, which FP Plaintiff obtained for personal, family, or household purposes. Hn 4. Defendant Planet Home Lending, LLC is a privately held national residential HD mortgage servicer and debt collector formed in Delaware and based in Meriden, Connecticut. Planet ON Lending has been issued California Department of Financial Protection and Innovation, Residential Mortgage Lending Act license number 4130947. Planet Lending regularly does business throughout Co California, and is the servicer and debt collector of the Loan. On information and belief, Planet OO Lending is not licensed in California to be a debt collector, pursuant to the Debt Collection Licensing EE KF Act. 112 E. Amerige Ave., Suite 240 NY OERay Kim Law, APC 5. Defendant Asset Recovery Center, LLC (“Asset Recovery”) is a debt collector Fullerton, CA 92832 Fe BW incorporated and based in Florida. Asset Recovery is not a licensed debt collector in California. KF While Asset Recovery claims to be a servicer, it is not licensed with the California Department of NH KF Financial Protection and Innovation, and does not have a Residential Mortgage Lending Act license NH KF number. Asset Recovery regularly does business throughout California, and is a debt collector of the WDBnNn KF Loan. KF 6. Defendant ARCPE is a mortgage servicer, lender, and purported beneficiary and HO HF assignee of the Loan, with its principal place of business in Miami Beach, Florida. ARCPE regularly CO NN does business throughout California, and is the purported owner of the Loan. NN KF A Defendant ZBS is a “default law firm” and debt collector with its principal place of NY N business at 30 Corporate Park, Suite 450 Irvine, CA 92606. NY BW 8. Doe Defendants 1-10 are the other individuals who improperly assigned the Loan to NY ARCPE and/or improperly engaged in debt collection activity or foreclosure. UN NO JURISDICTION AND VENUE DO NO 9. The Court has jurisdiction over this matter because the amount in controversy NO oN exceeds $25,000.00, and Plaintiff seeks injunctive relief. NO —e VERIFIED COMPLAINT 10. | Venue in Sacramento County is proper because the Loan was obtained in this County, the Home is located in this County, the harm occurred in this County and Defendants NYO transact business in this County. W /I/ fF STATEMENT OF FACTS nA 11. In or about October 2006, Plaintiff obtained a mortgage loan for $132,000.00 (the HN “Loan”). The Loan was secured by the Home. mHN 12. ‘In 2010, Plaintiff began experiencing financial hardship and was unable to make payments on the Loan. The Loan was cancelled and charged-off. On October 25, 2010, the Loan Co servicer, Saxon Mortgage Services, Inc. (“Saxon Mortgage”), issued a 1099-C cancelling the entire SO balance due on the Loan. S| KF 13. Saxon Mortgage and the lender ceased sending periodic statements and did not attempt 112 E. Amerige Ave., Suite 240 OO Se NHRay Kim Law, APC to collect on the Loan after October 2010. Plaintiff did not receive any further periodic statements Fullerton, CA 92832 Ore BW on the Loan. Fr 14. Plaintiff relied on the 1099-C and the cancellation of the Loan and thereby made no NA KF further attempts to repay the Loan or inquire about the Loan after learning about the 1099-C. In 2011, Qa FP Plaintiff reported the 1099-C in his tax returns filed with the IRS. HF WBN 15. In 2017, ClearSpring Loan Services contacted Plaintiff about the Loan. Plaintiff] HF responded that the Loan was cancelled and provided ClearSpring with a copy of the 1099-C and his HO KF tax return showing that the 1099-C had been reported. In response, in December 2017 ClearSpring CO NO sent Plaintiff a letter stating, “Thank you for providing the 1099-C issued by Saxon Mortgage NO KF Services , Inc . (‘Saxon’), as ClearSpring had no knowledge of this document when the loan boarded. NY NY After review, we have determined that your debt was, in fact, cancelled in 2010 by Saxon.” NY WW 16. The property title history reveals that an assignment of mortgage relating to the Loan BP NO was recorded with the Sacramento County Recorder’s Office in October 2018. Plaintiff did not NN NO receive notice of this assignment in or after 2018 by the assignee, ARCPE. Plaintiff also did not HD NO receive notice that ARCPE was the assignee or had any connection to the Loan. On information and NO oN belief, the assignment to ARCPE is improper. NO -4- VERIFIED COMPLAINT 17. ‘In or about 2018, out of the blue Planet Lending began sending Plaintiff monthly]. statements for the Loan. The monthly statements claimed that Plaintiff had a past due balance of NO approximately $150,000.00 and a total accelerated balance of approximately $170,000.00. WW 18. Plaintiff disputed the Loan with Planet Lending. FP 19. On May 5, 2023, ZBS, as agent and/or fiduciary representative of ARCPE and at the Hn direction of ARCPE, recorded a notice of default. ZBS acted within the course and scope of such NHN agency or fiduciary relationship in recording the notice of default. The notice of default states that ON Plaintiff is past due for the amount of $169,788.82 as of May 3, 2023. 20. On August 1, 2023, Planet Lending sent Plaintiff a notice of servicing transfer C0 notifying Plaintiff that servicing of the Loan will be transferred to Asset Recovery Center, LLC SO Se (“Asset Recovery”) effective August 18, 2023. KF 21. On August 8, 2023, in response to Plaintiff's demand and at ARCPE’s direction ZBS 112 E. Amerige Ave., Suite 240 NYO OeRay Kim Law, APC recorded a Notice of Rescission of Declaration of Default and Demand for Sale. Fullerton, CA 92832 Re BPW 22; On August 24, 2023, Asset Recovery sent Plaintiff a collection notice and notified KF Plaintiff of its intent to recommence foreclosure proceedings. In the letter, Asset Recovery stated NA KF that it had “determined that the unpaid balance is approximately $135,793.66 if paid on 9/23/2023.” Qa HF This alleged balance was $35,000.00 less than the amount listed in the notice of default and in prior HF WBN monthly statements from Planet Lending. HF 23. On September 26, 2023, ZBS, as agent and/or fiduciary representative of ARCPE and UO KH at the direction of ARCPE, recorded a second notice of default (“Second NOD”). ZBS acted within CO NO the course and scope of such agency or fiduciary relationship in recording the notice of default. The NN KF notice of default states that Plaintiff is past due for the amount of $169,788.82 as of May 3, 2023. NY ND 24. Since the Second NOD was recorded Plaintiff has repeatedly demanded that WW NY Defendants rescind the second NOD, but Defendants refused. BP NO FIRST CAUSE OF ACTION NO MN WRONGFUL FORECLOSURE DN NO (Against Defendants) NO oN NO oS x VERIFIED COMPLAINT 25. Plaintiff repeats, re-alleges, and incorporates by reference all other paragraphs, as if fully set forth herein. NY 26. | ARCPE claims to be a mortgagee and beneficiary of the Loan. W 27. ZBS, acting as an agent and/or fiduciary representative of ARCPE and at the FP direction of ARCPE illegally and oppressively commenced foreclosure proceedings on the Home Wn pursuant to a purported power of sale in a deed of trust, including the recording of notices of default Nn in May 2023 and September 2023. ON 28. Plaintiff is and has been prejudiced and harmed by the recording of the notice of default and commencement of foreclosure proceedings. 0 29. The notice of default and foreclosure sale proceedings are based on an underlying CO Loan and deed of trust that are void and unconscionable. The Loan was cancelled in October 2010, SS KF and therefore ARCPE never became a beneficiary of the deed of trust. Thus, the assignment to 112 E. Amerige Ave., Suite 240 NYO eSRay Kim Law, APC ARCPE is void. In addition, upon information and belief ARCPE cannot show that it is the owner Fullerton, CA 92832 KF BW of the Loan and has the legal right to foreclose on the Loan. KF 30. Plaintiff has suffered monetary damages, and immense emotional distress, anxiety NH KF and loss of sleep as a result of Defendants’ conduct. In addition to emotional distress damages, ADA HF Plaintiff is entitled to a declaration that the Loan is cancelled and the deed of trust purportedly held Fe WNQ by ARCPE is void and unenforceable, and an injunction that Defendants must immediately rescind Ke the notice of default and cancel any foreclosure sale proceedings. OO KH SECOND CAUSE OF ACTION NO CO ROSENTHAL FAIR DEBT COLLECTION PRACTICES ACT KH NY California Civil Code §1788, et seq. NY NN (Against Defendants) NY BW 31. Plaintiff repeats, re-alleges, and incorporates by reference all other paragraphs, as if NO fully set forth herein. MN NO 32. ARCPE, Asset Recovery, Planet Lending, and ZBS are “debt collectors” under the DN NO Rosenthal Act. NO oN 33. Plaintiff is a “debtor” within the meaning of the Rosenthal Act. NO -6- VERIFIED COMPLAINT 34. | Defendants acts and omissions constitute multiple violations of the Rosenthal Act, including but not limited to the violations of sections 1788.17. NY 35. ZBS violated California Civil Code section 1788.17 (via incorporation of 15 W U.S.C. §§ 1692e and 1692f), by making false, deceptive and/or misleading representations in FP an attempt to collect a debt. This included but is not limited to falsely stating that Plaintiff has Wn a default balance on the Loan and demanding approximately $150,000.00 in order to bring the ND Loan into good standing and $170,000.00 in order to avoid foreclosure, and falsely claiming that the amount due will increase until the Loan becomes current. mH 36. Asset Recovery also violated California Civil Code section 1788.17 (via Co incorporation of 15 U.S.C. § 1692g), by failing to provide a debt validation notice within five OC Se days after its initial August 24, 2023 communication with Plaintiff. KF 37. Defendants’ conduct has caused Plaintiff severe stress, anxiety, loss of sleep, and 112 E. Amerige Ave., Suite 240 ee NYRay Kim Law, APC grief. Fullerton, CA 92832 Fe BW 38. As aresult of Defendants’ willful, knowing, and reckless violations, Plaintiff is Ke entitled to recover statutory damages, actual damages, reasonable attorney’s fees, and costs. NH Fe THIRD CAUSE OF ACTION NH KF FEDERAL FAIR DEBT COLLECTION PRACTICES ACT WANQ KF 15 U.S.C. §§ 1692, et seq. KF (Against Defendants) HO KF 39. _ Plaintiff repeats, re-alleges, and incorporates by reference all other paragraphs, as if TO ND fully set forth herein. KH ND 40. | ARCPE, Asset Recovery, Planet Lending, and ZBS are “debt collectors” under the NY ND FDCPA. NH BW 41. Plaintiff is a “consumer” within the meaning of the FDCPA. NY 42. The Loan is a “debt” within the meaning of the FDCPA. MN NO 43. Defendants violated 15 U.S.C. § 1692e by making false, deceptive and/or DN

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Introduction: My name is Ms. Lucile Johns, I am a successful, friendly, friendly, homely, adventurous, handsome, delightful person who loves writing and wants to share my knowledge and understanding with you.