ATTENTION VICTIMS OF WRONGFUL
In Southern California
NEED INFORMATION CONCERNING
ATTORNEY STEVEN D. SILVERSTEIN
In LOS ANGELES,
SAN BERNARDINO COUNTY,
I am looking for information on and complaints concerning an Attorney STEVEN D. SILVERSTEIN with offices in TUSTIN, CALIFORNIA, or his (apparent) corporate real-estate holding Trust Alter Ego “GRE DEVELOPMENT, INC.”December 7 2009 Response to Motion to Dismiss Lincoln v Silverstein; 12-07-2009–1st Amended Complaint Gray-Lincoln-March v Silverstein; Renada’s December 13 2009 Qualified Written Request to ONEWEST BANK.
Silverstein advertises himself as follows, on his own website
My law firm specializes in tenant evictions and has been representing landlords in Los Angeles, Orange, Riverside and San Bernardino Counties since 1979. Our main goal in an eviction is to get the tenant off of the premises as quickly as legally possible.
We also offer collections to recover lost monies for our clients and one phone call will start the process for you. There is no charge for legal advice and if I am in Court or not available to talk with you I will return your call at the earliest opportunity, usually the same day. You may download a variety of forms to assist you in the eviction process and I have included the procedural steps to guide you through an unlawful detainer.
I have sat as a Judge on temporary assignment in both Orange County and Los Angeles County. I have also written law review articles, magazine articles, and have been asked to give landlord/tenant seminars, by the California State Bar, to other attorneys in addition to testifying as an expert witness on landlord/tenant matters.
On September 16, 2009, I filed suit against this man in the United States District Court for the Central District of California for real estate piracy: 8:2009cv01072 09/16/2009. I have included a count for class certification in my complaint. If you have any experience with Steven D. Silverstein within the past 18-24 months, I would be very interested in hearing your story, and please report it to Robert Joseph Ponte at 860-599-5557.
We are still struggling with the problem of “no licensed counsel” in this case. Dr. Orly Taitz had originally agreed and then backed out of her agreement to represent us, even to the point of trying to withdraw from me in the “stand-alone” case against Silverstein which Orly filed in Orange County Superior Court. Orly INSISTED on filing this particular case because she thought it was the only road towards quickly retaking possession of 4 Via Corbina in Rancho Santa Margarita which was kind of crucial to all of our plans, personal and professional. I remain hopeful that she will change her mind, because we need representation by counsel to get not one but several serious class actions going here. I have continued to plead with Orly Taitz regarding these matters. I have proposed that Orly take over the California Superior Court case, that I withdraw, and let her seek State Court certification for the class with Renada Nadine March, Christyna Lynn Gray, and Aurora Diaz as Plaintiffs. I will step aside in that case so that Orly can satisfy (all those who care about such things) that she and I are no longer collaborating with each other. It is not ideal, but otherwise I feel that Orly and I are going to be forced into a major confrontation, because I DID rely on her promises and we made very valid and valuable plans together.
WHAT DO YOU MEAN BY “REAL ESTATE PIRACY?”
Well, it’s done on land, so there are no ships, and Admiralty jurisdiction is extremely unlikely to apply (Embedded Footnote: my apologies to all Patriots who have fallen for or become enamored of several wild and wooly theories that convert ALL state and federal court practice into Admiralty Law—I learned something about the history of this particular “Patriot Myth” in a property insurance case I successfully settled in New Orleans, Louisiana after Katrina and now understand both how the myth got started and what is the “kernel of historical truth” that grew as an invasive weed into a plague that has eaten many Patriots quite literally alive—there is quite simply no such thing as admiralty jurisdiction regarding cases whose facts arose entirely above the tidal level of any navigable waterway where no boat or cargo or sailors recently at sea has been dry-docked, stored, or housed—it may sound obvious, but I beg you, everyone I know: PLEASE DON’T TRY TO RAISE ADMIRALTY DEFENSES IN CASES ARISING ON DRY LAND WITH NO BOATS!).
By “Piracy” I mean that groups of people go about looking for “easy target” properties and then establish false claims to these properties either through hopelessly “lowball/below market” sales or else (without any deeds however inequitable) simply take possession of unoccupied i.e., “abandoned” property, fake legal documentation, and then seek to assert the rights based on these false claims as a basis for sale to bona fide purchasers for good value, thus cutting off any claims of the pre-pirate piratical owners.
From California to Florida, but especially in Texas, I have heard stories of teams who clean out houses and put them up for sale, and then real estate agents advertise the property for sale and in some cases sell them, obviously for gigantic profits. I had never had direct contact with such people or the enterprises behind them until this summer, when I first became a victim of the handywork of Steven D. Silverstein and GRE Development, Inc.
I attach here our First Amended Complaint December 712-07-2009–1st Amended Complaint Gray-Lincoln-March v Silverstein , which was filed this past Monday Pearl Harbor Day December 7, 2009, against Mr. Silverstein, and request the assistance of any and all who may have information about his activities within the past two years. If we can establish that Silverstein engaged in a pattern of racketeering then it will be possible to include all evidence even TEN years before the present time, but we will need all the data we can get about his RECENT activities to establish the threat of continuing injury.
In addition, upon seeing Silverstein act in Court, it is obvious that he is a “Superior Court insider” in Orange County, known by name to the guards and bailiffs and subject to special judicial attention and consideration.
In this same First Amended Complaint, I have alleged that the laws of the State of California California are completely stacked to the degree of being a constitutional farce, an insult to the entire system.
The obvious analogy is to Court takeovers of school systems from Boston to Beaumont, Arkansas and Alabama to Massachusetts and Michigan, to effect school desegregation. My purpose is not to raise the question of whether “busing” and other abuses of that era were good or bad for the country—the fact is simple, a massive precedent 30 years long for Court ordered supervision of state governmental institutions is not only supported by precedent but widespread public approval.
It is my belief and conviction, after 20 years of experience now, that the State Courts in California, Florida, and Texas are at least as destructive of basic constitutional values of legal predictability (i.e., “equal protection”) and fairness (i.e. “due process of law”), and possibly MUCH MORE DEGRADING to a MUCH WIDER SPECTRUM OF SOCIETY, than racial segregation ever was.
We have equality in the United States today only in the sense it is all but guaranteed now that poor blacks and poor whites will be treated equally poorly by the Courts, denied the same fundamental constitutional rights, and deprived of life, liberty, and property with roughly equal arbitrary and capricious application of rules and procedures by completely corrupted state judiciaries WHO WILL ALWAYS decide in favor of the rich guys, be they black, white, or faceless corporations.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA-SOUTHERN DIVISION
CHRISTYNA LYNN GRAY, §
CHARLES EDWARD LINCOLN, III, §
RENADA NADINE MARCH, §
v. § Case No. SACV09-1072 DOC (Ex)
STEVEN DAVID SILVERSTEIN, §
RON ELTER, JOHN RAMPELLO, §
GRE DEVELOPMENT, INC., individually § FIRST AMENDED COMPLAINT
and as agents and trustees of the §
4 Via Corbina Trust, Christopher Archuleta,§
MERS (Mortgage Electronic Registration § SUGGESTION OF CLASS for
Services), other unnamed Attorney § CERTIFICATION UNDER
Defendants John & Jane Does 1-10, § FRCP RULE 23
MEGLADON FINANCIAL, L.L.P., §
ATLAS PROPERTIES REAL ESTATE, §
JAMES RADWAN, ROCHELLE MATKIN §
TRUSTEE CORPS, RUSSELL BELL, §
QUALITY LOAN SERVICE Corp., §
FIRST NEWPORT PROPERTIES, LLC, §
JOHN MURK, DIANNE D’AGNOLO, §
The Honorable SANDRA HUTCHENS, §
THE SHERIFF OF ORANGE COUNTY, §
JP MORGAN CHASE (as successor in §
Interest to WASHINGTON MUTUAL), §
ONEWEST BANK, N.A. (as successor in §
Interest and Alleged assignee of Indymac), §
CAL-WESTERN RECONVEYANCE, § TRIAL-BY-JURY DEMANDED
WELLS FARGO BANK, N.A., § OF ALL ISSUES SO TRIABLE
DENNIS STACY, COLDWELL BANKER, § AT COMMON LAW, UNDER
And JOHN & JANE DOES 11-20, § THE 7th AMENDMENT
Defendants. § 28 U.S.C. §1861 et seq.
FIRST AMENDED COMPLAINT
(1) Original Plaintiff Charles Edward Lincoln is now joined in this First Amended Complaint by RENADA NADINE MARCH and CHRISTYNA LYNN GRAY, who come together to complain jointly and severally of Attorney Steven David Silverstein, the Honorable Sandra Hutchens, Sheriff of Orange County, three mortgage finance “lending” banks (Chase, OneWest, Wells Fargo) their servicers (Cal Western Reconveyance, Quality Loan Servicing, Trustee Corps), and an array of investors, their officers, and real estate agents, employees, and co-conspirators.
(2) Defendants have, together, utilized certain customs, practices, and policies having the force of law of and in the State of California, and in particular of Orange County and the California Superior Courts of Orange County, to effect numerous violations of civil rights in connection with foreclosure of real estate notes and the seizure (“forcible detainer” or “eviction”) cases.
(3) This court has Federal Question Jurisdiction under 28 U.S.C. §§1331, 1343, and 42 U.S.C. §§1981, 1982, 1983, and 1988(a) to hear both suits for damages and petitions for declaratory relief and venue is proper because most of the events giving rise to the present causes of action took place in Orange County, California.
(4) Plaintiffs suggest under Fed. R. Civ. Pro. Rule 23 that this case involves issues affecting such a large number of Plaintiffs, whose identity and whereabouts are difficult to ascertain, that a class action is the most efficient, feasible, and judicially economical means of resolving the issues herein raised, and that the Court should utilize its discretion to appoint competent class counsel to represent the Plaintiffs in this case and the class of plaintiffs of which they are members.
FACTUAL & LEGAL BACKGROUND
(5) Plaintiffs were brought together by their mutual horror and disgust at the illegal actions and opprobrious conduct of one particular attorney, Steven David Silverstein, who appears to be among the leading practitioners implementing the following customs, practices and policies having the force of law in California which effect a systematic deprivation of the fundamental constitutional rights of the Plaintiffs, and thousands of other plaintiffs whose identity is unknown:
(6) Conducting non-judicial foreclosure sales during negotiations for loan modification in defraud and defeasance of the implied covenant of good faith and fair dealing;
(7) Conducting non-judicial foreclosure sales during the pendency of material disputes, including actual pending litigation concerning title and standing to collect debts under color of laws which effectively preclude contests to title & standing;
(8) Initiating eviction proceedings in California Superior Court without any reasonable prior notice of sale of property, as the primary and preferred means of informing occupants/mortgagors or their assignees, of the existence of sales;
(9) Imposing and conducting a system of judicial evictions in California Superior Courts after non-judicial foreclosures, all of which are “rigged” in the sense of outcomes predetermined in favor of evicting parties, in such a manner that title disputes concerning the right to foreclose or evict from properties has been all but abolished; California stands almost alone in the United States of America in not giving disputes over title legal superiority and priority to disputes over possession;
(10) Imposing and conducting a system of judicial evictions in California Superior Courts after non-judicial foreclosures which interfere with and impair the common law and statutory obligations of contract in violation of the Constitution, and which denies to certain classes of people, namely mortgagors, the equal rights to
(11) inherit, purchase, lease, sell, hold, and convey real and personal property (within the meaning of 42 U.S.C. §1982) and
(12) to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property (within the meaning of 42 U.S.C. §1981(a)).
(13) For purposes of this complaint, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship (within the meaning of 42 U.S.C. §1981(b);
(14) For purposes of this complaint, Plaintiffs contend that 42 U.S.C. §1981, and 42 U.S.C. §1982 are the key federal civil rights statutes because they together outline and guarantee general, federally secured and specified, equal civil rights in the making of contracts and ownership of property; Plaintiffs submit that these statutes, regardless of their Reconstruction-era origins, should be construed as “color blind” under modern Supreme Court interpretations of civil rights so that equal rights to make and enforce contracts, to sue, be parties, and give evidence concerning the rights arising therefrom, including the right to own property, should both be applied and construed as though they did not contain the nearly identical phrase, “as is enjoyed by white citizens” and/or “as is enjoyed by the white citizens thereof;” Plaintiffs submit and contend that the law must be applied in fact to guarantee civil rights in the making and enforcement of contracts and the ownership of property to all citizens, and not merely that non-white citizens may not be denied their civil rights “any more” than such rights are denied to white citizens, which is a possible construction of civil rights jurisprudence prior to 1989.
(15) Plaintiffs submit, in brief that the situation in the California Superior Courts relating to the enforcement and application of non-judicial foreclosures by judicial evictions has reached a crisis of epidemic or even pandemic proportions, especially in Orange County, and
(16) that the civil rights of mortgagors to “to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property” are being severely infringed under color of California law and in particular the judicial norms
(17) which apply to the conduct and resolution of Superior Court cases challenging the standing of certain servicers or entities claiming standing to foreclose on real-estate notes, such that the very right “inherit, purchase, lease, sell, hold, and convey real and personal property” is being infringed or even curtained.
(18) In other words, the laws of the State of California as applied, in particular §2924 of the Code of Civil Procedure and related statutes, are being so applied and enforced as to effectively abolish both private property and the rights to full and equal benefits of the laws for the security of persons and property.
(19) Although the present Plaintiffs are all white Anglo-Saxon and Protestant, they know of no racial elements to this epidemic of civil rights violations, because they allege that the class which should be certified in this case will include tens if not hundreds of thousands of African Americans, Hispanic Surname Americans, Asian Americans, and Native Americans as well as whites, and accordingly, they submit that the essence of 42 U.S.C. §§1981, 1982, can be best preserved and applied without the qualifying language “as is enjoyed by white citizens.”
(20) Further, the Plaintiffs submit that this United States District Court should apply to 42 U.S.C. §§1981 and 1982 the principles articulated by the United States Supreme Court repeatedly over the past twenty years that all government racial classifications (including Federal classifications) must be analyzed by a reviewing court under strict scrutiny in the modern line of equal protection cases going back to the 1989 decision in Richmond v. Croson. Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 227, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995), Johnson v. California, 336 F.3d 1117, 2003 Daily Journal D.A.R. 8295, (9th Cir., Jul 28, 2003), Grutter v. Bollinger, 539 U.S. 306, 123 S.Ct. 2325, 156 L.Ed.2d 304, 2003 Daily Journal D.A.R. 6800, (U.S., Jun 23, 2003), Johnson v. California, 543 U.S. 499, 125 S.Ct. 1141, 160 L.Ed.2d 949, 2005 Daily Journal D.A.R. 2118, (U.S., Feb 23, 2005), City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854, (U.S.Va., Jan 23, 1989).
(21) Plaintiffs Gray, Lincoln, and March herein submit and suggest that (despite their dispositive relevance to this case) the racial element of 42 U.S.C. §1981 has largely if not entirely outlived its usefulness, and that if the word “white” (before citizens) in 42 U.S.C. §1981 is replaced (at least conceptually) by the word “all free, fully enfranchised”, then the law will acquire new and magisterial vigor in the modern world, and promote a more just and equitable society, especially in the context of the last seven years, in which more and more people (of all racial origins) have with increasing frequency and ferocity, been denied their equal right to access to the courts and to the formal and substantive rights and procedures essential to ensure true due process of law.
(22) The Plaintiffs in this case are, to be sure, White Anglo-Saxon Protestant Suburbanite by racial and class categorization, but this classification itself is antique and pointless. The classes involved in this case are the mortgagors vs. the mortgagees, those who use and enjoy private property against those who wish to monopolize it, and on another level, real property holders vs. false debt collectors.
COUNT I: Civil Rights Declaratory Judgment (42 U.S.C. §§1983, 1988(a))
(23) Plaintiffs reallege ¶¶ (1)-(22) as if fully copied and restated herein below.
(24) Plaintiffs Lincoln, March, and Gray allege that it is the custom, practice, and policy of Defendant Steven David Silverstein, other attorneys similarly situated (Defendants Doe 1-10) the Sheriff of Orange County, and the Judges and Clerks of the Superior Court of Orange County to violate 42 U.S.C. §§1981-1982 by administering and imposing a judicial regime wherein mortgagors are always, in all cases dispossessed by forcible detainers, often with no prior notice of sale or transfer of interest in their properties.
(25) The enforced consistent pro-Plaintiff results of Orange County evictions can be demonstrated statistically and by narrative evidence to show that there is no equality of access to the courts, nor any equal right “to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property” all under color of law in violation of the First, Fifth, Ninth and Fourteenth Amendments to the Constitution.
(26) Wherefore, Plaintiffs pray that this Court declare and adjudge the nature of the Orange County Superior Court custom, practice or policy concerning the resolution of non-judicial foreclosures and judicial evictions, as well as the allied and related policy of the Orange County Clerks and Sheriff’s department in administering and enforcing this policy, and that thereupon the Court
(27) Declare and adjudge that these customs, practices, and policies administered and enforced in Orange County are wholly unconstitutional and offensive to principles of due process of law, the right to petition, and the rights of the people secured by 42 U.S.C. §§1981-1982, as well as the 5th and 14th amendments, such that
(28) All such policies should be declared unconstitutional, null and void and all decisions reached and transfers of title thereunder during the past year likewise be declared null and void and finally that
(29) Steven David Silverstein, Orange County Sheriff Sandra Huchens, and all of their agents or employees be now and forever enjoined from continuing or perpetuating these customs, practices, and policies in Orange County or elsewhere.
(30) Wherefore, Plaintiffs pray for their costs of suit incurred in obtaining these declaratory judgments, and that a permanent injunction shall issue against all the Defendants, their employees, assigns, officers, and successors in interest never again to enforce unconstitutional non-judicial foreclosures and judicial evictions in violation of 42 U.S.C. §§1981, 1982.
COUNT II: Declaratory Judgment re: Breach of Good Faith & Fair dealing
(31) Plaintiffs reallege ¶¶(1)-(30) as if fully copied and restated herein below.
(32) Plaintiffs March and Gray allege that they were engaged in negotiations to modify their mortgages at the time that their homes were sold and eviction proceedings initiated, and that Defendants One West Bank and Chase Bank had agreed to extend these modifications as a full tender of payment on the loans.
(33) Plaintiffs March and Gray further allege that they were engaged in bankruptcy proceedings, and that their alleged lenders One West Bank and Chase Bank had specifically agreed to accept the results of bankruptcy discharge as a basis for restructuring and modification of their loans, in tender of full discharge of the previous mortgage notes.
(34) Plaintiffs March and Gray further allege that (respectively) One West and Chase conducted secret sales of their property while bankruptcy and/or negotiations were in full swing and pending, without any notice or disclosure to these Plaintiffs.
(35) Plaintiff Lincoln alleges that he tendered payment in full to Wells Fargo prior to sale, conditioned only on proof by Wells Fargo of Status as holder in due course of Hal Kuder’s note, which had been assigned to Lincoln, and that Wells Fargo either affirmatively rejected his tender or implicitly rejected it by silence, and then proceeded to conduct a secret sale of the property even when litigation was pending without any notice to him.
(36) Plaintiffs Lincoln, March, and Gray allege that the conduct of Chase Bank, N.A., One West Bank, N.A., and Wells Fargo Bank, N.A., was outrageous and unconscionable, and constituted such complete derogation from and violation of the implied covenant of good faith and fair dealing under California Common and Statutory Law that the sales effected for their respective properties are and ought to be declared nullities without any legal force or effect, so that any evictions resulting from these foreclosures was illegal and therefore subject to claims for all actual, consequential, direct, derivative, and special damages.
(37) WHEREFORE, Plaintiffs Lincoln, March, and Gray pray for declaratory judgment in their favor and against Defendants Wells Fargo, One West, and Chase Bank, to nullify the sales of the property concerned and
(38) Plaintiffs further pray that the banks, servicers, and attorneys who conducted these sales be assessed all of the Plaintiffs’ actual damages, and that judgment be entered rescinding, reversing, and/or voiding all three sales to GRE Development, Megladon Financial, and Newport Properties or any party taking thereunder.
(39) In addition, because of his actual and superior professional knowledge, Plaintiffs pray that Defendant Steven David Silverstein be assessed treble their actual damages and costs of suit as punitive and exemplary damages, to punish his outrageous conduct and serve as an example to deter others similarly situated from engaging in similar conduct.
COUNT III: California Civil Code Section 1714.10 is UNCONSTITUTIONAL
(40) Plaintiffs reallege ¶¶(1)-(39) as if fully recopied and restated herein below.
(41) The California law providing that
No cause of action against an attorney for a civil conspiracy with his or her client arising from any attempt to contest or compromise a claim or dispute, and which is based upon the attorneys’ representation of the client, shall be included in a complaint or other pleading unless the court enters an order allowing the pleading that includes the claim for civili conspiracy to be filed after the court determines that the party seeking to file the pleading has established that there is a reasonable probability that the party will prevail in the action.
violates 42 U.S.C. §1981 in that it creates special classes of privileged citizenry and denies both equal protection of the law and due process of law to certain classes of citizens (non-lawyers). The Court should declare and adjudge that California Civil Code §1714.10 is facially unconstitutional under the First, Fifth, Ninth, and Fourteenth Amendments to the Constitution as a denial of the right to Petition, denial of due process, infringement upon the rights reserved to the people, and a violation of equal protection of laws by creating a privileged class.
(42) The creation of this privileged class of attorneys also and further violates both Article 1, §9, Cl. 8 & §10, Cl. 1, of the United States Constitution by effectively creating a title of nobility, as well as violating the privileges and immunities clause of Article IV, §1, Cl. 2 by creating for California lawyers a special privilege and immunity not available to citizens of any other of the several states.
(43) No state can grant to any of its citizens special privileges or immunities which discriminate against citizens of other states or create an inequality between citizens of one state and those of another, but Cal Civil Code §1714.10 has this precise effect.
(44) WHEREFORE, Plaintiffs pray that California Civil Code §1714.10 be declared unconstitutional, null and void for all purposes and applications, and will grant them all their reasonable costs of suit as well as permitting them to sue Silverstein for all their actual damages resulting from his collusion and conspiracy with other Defendants and non-Defendants, including Superior Court Judges who may be immune from suit.
COUNT IV: Cal. Civil Code §1714.10 DOES NOT IMMUNIZE SILVERSTEIN
(45) Plaintiffs reallege ¶¶(1)-(44) as if fully copied and restated herein below.
(46) Plaintiffs allege that Silverstein and Elter and several Defendants John Doe are partners and investors in the real properties seized in eviction proceedings.
(47) In particular, GRE Development shares an office with Steven David Silverstein and the 4 Via Corbina trust, and Plaintiffs allege that Silverstein is acting not merely in the course of representation of a client in Lincoln’s case (4 Via Corbina/GRE Development) at least, but on his own behalf and for his own benefit.
(48) There was no arms length transaction involving the sale of 4 Via Corbina and so GRE Development and/or the 4 Via Corbina Trust are not bona fide purchasers for value—they could not have been bona fide purchasers in any event because they took from Cal-Western Reconveyance nine months after Charles Edward Lincoln tendered payment in full to Wells Fargo Bank and Cal-Western Reconveyance, asking only for proof of Wells Fargo’s status as “holder in due course” which is merely “conditional” in the sense that Wells Fargo prove its entitlement to collect so much as one dime on the subject property 4 Via Corbina in Rancho Santa Margarita.
(49) Plaintiffs further allege that any rule, even if not facially unconstitutional, is unconstitutional as applied according to a state judicial norm “which requires a judicial determination of reasonable probability of success prior to permitting the filing of an action against an attorney based on a claim of civil conspiracy with a client” because such a rule (as articulated by Defendants) constitutes a per se denial of equal access to the courts due process and of equal access to the courts and legal processes in violation of 42 U.S.C. §1981.
(50) Access to discovery of facts is a key element of due process of law and equal access to the Courts as discovery procedures are often critical to the determination of the accuracy or inaccuracy of any legal complaint, suit at law, or equitable action.
(51) Plaintiffs allege that Steven David Silverstein’s relationship with the Judges of the Orange County Superior court is so close and intimate that there exists a continuing and ongoing agreement and understanding between them in derogation of due process of law and equal protection of persons and property, in violation of 42 U.S.C. §§1981, 1982 and also of the 5th and 14th Amendments.
(52) WHEREFORE, Plaintiffs pray that (in the alternative to the previous count) even if California Civil Code §1714.10 is not unconstitutional on its face, it is either unconstitutional as applied to Steven David Silverstein or simply does not, as a matter of fact or law, apply to Silverstein at all, and Plaintiffs pray that this Court will so declare and adjudge, granting them all their costs of suit, in addition to the full and unfettered right to recover from Silverstein all of their damages for civil conspiracy with other Defendants and non-defendants, including collusion or conspiracy with Superior Court Judges who may be otherwise immunized from suit.
COUNT V: Cal. Civil Code §2924 Unconstitutionally Impairs Contract
(53) Plaintiffs reallege ¶¶(1)-(52) as if fully copied and restated herein below.
(54) California Civil Code §2924 is expressly designed to impair the obligations and rights of and arising under contracts relating to mortgages and promissory notes, and to create grossly favored and unfavored classes of property owners based in large part on willingness to lie and nothing else; any statute designed to create unequal classes of litigants in Court directly violates 42 U.S.C. §1981, and California Civil Code §2924 irrationally and unfairly grants certain classes of individuals superior rights “to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property” and thereby also creates unequal classes of people with regard to the rights “to inherit, purchase, lease, sell, hold, and convey real and personal property.”
(55) California Civil Code §2924 provides in part:
(c) A recital in the deed executed pursuant to the power of sale of compliance with all requirements of law regarding the mailing of copies of notices or the publication of a copy of the notice of default or the personal delivery of the copy of the notice of default or the posting of copies of the notice of sale or the publication of a copy thereof shall constitute prima facie evidence of compliance with these requirements and conclusive evidence thereof in favor of bona fide purchasers and encumbrancers for value and without notice.
(56) This provision irrationally denies equal rights to sue and give evidence to mortgagees whose properties were the victims of fraudulent foreclosures (foreclosures instituted or prosecuted by any party, principal, witness, or attorney willing either knowingly or negligently to present false recitations regarding compliance with statutory provisions regarding service and delivery of notices).
(57) All three Plaintiffs in this case can and truthfully do and will deny under oath that Defendants Wells Fargo Bank, One West Bank, JP Morgan Chase, Cal-Western Reconveyance, Quality Loan Service, or Trustee Corps, or Steven David Silverstein or any of their agents or employees actually complied with all or in fact any of the procedural requirements of noticing default or notice of sale or of three day notice to quit prior to initiating eviction actions.
(58) For a law to provide that mere recitation in a deed of certain facts will constitute conclusive evidence which acts to bar or determine the outcome of any judicial proceeding does itself constitute a statutory denial of due process of law and a discriminatory disadvantage to those who are the victims of fraudulent foreclosures (foreclosure by parties, principals, witnesses and attorneys who make false statements of fact, such as claims to lawful right to fore, such as, Plaintiffs’ evidence will show, are nearly all the foreclosures in California today, because in fact most foreclosures are conducted by parties without contractual entitlement to do so).
(59) Plaintiffs submit that the non-judicial foreclosure laws of the state of California, especially but not limited to Civil Code §2924(c) quoted above, expressly and unequivocally constitute (1) an impairment of the right to make and enforce contracts and to give evidence for the security of persons and property, (2) deny due process of law in the making and enforcing of contracts and to give evidence regarding the same for the security of persons and property, (3) deny equal protection of the law in the making and enforcing of contracts and to give evidence regarding the same for protection of persons and of property.
(60) WHEREFORE, Plaintiffs pray and request that this Court declare and adjudge that California Civil Code §2924(c) is unconstitutional on its face, and as such that all foreclosure sales against any of the Plaintiffs or persons similarly situated in the State of California are null and void and that Plaintiffs and persons similarly situated are entitled to a rescission of sale and restoration of their property.
(61) WHEREFORE, additionally, Plaintiffs pray and request that this court declare and adjudge that all elements of contractual provisions, and of compliance with contractual and statutory requirements for the proof of compliance, are equally subject to challenge and the presentation of evidence by any party to a contract or person legitimately interested in the subject matter of the contract.
(62) No non-judicial foreclosure should be upheld judicially if the truth of the underlying facts, including the status of a buyer as a bona fide purchaser for value, is disputed or contested by competent witnesses presenting competent evidence, and accordingly no presumptions which create either the certainty or even the strong likelihoods that one side or another of any contractual dispute should prevail should ever withstand challenge under 42 U.S.C. §§1981, 1982, or the Fifth or Fourteenth Amendments to the Constitution of the United State, when (read as color blind) statutes and constitutional provisions affording equal protection of the laws to all citizens and legal residents of the United States of America.
COUNT VI: CAL. CIVIL CODE §2924 UNCONSTITUTIONAL AS APPLIED
(63) Plaintiffs reallege ¶¶(1)-(62) as if fully copied and restated herein below.
(64) Defendants, but especially Defendant Steven David Silverstein in his Express Foreclosure business, all depend upon the California Courts’ unconstitutional glosses and applications of and upon California Civil Code §2924 in addition to the statute’s facial infringement upon the equal rights of all persons to make and enforce contracts, to sue and present evidence.
(65) Silverstein expressly relies upon the California case of Homestead Savings v. Darmiento, 230 Cal.App.3d 424, 436, 437 (1991) which held that:
Where the evidence establishes that the trustee conveys title to a bona fide purchaser and the trustee’s deed contains the language specified in §2924, the sale is not voidable.
The purchaser’s title is free and clear of all rights of the trustor or anyone claiming under or through the trustor, including liens that have attached to the property after the execution of the foreclosed deed of trust.
(66) These above-and-forgoing judicially formulated normative applications of §2924 violate, respectively, the same equal right to make and enforce contracts and to sue and give evidence for the security of persons and property secured by 42 U.S.C. §1981 and the equal rights of all persons to purchase, lease, sell, hold, and convey real and personal property guaranteed by 42 U.S.C. §1982.
(67) Silverstein also expressly relies on Napue v. Gor-Mey West, Inc., 175 Cal. App.2d 608, 620-621, 220 Cal.Rptr. 799 (Cal.App. 2nd Dist., Div. 3, 1985) as a judicially articulated norm having the force and effect of law:
Section 2924 of the Civil Code creates a conclusive presumption in favor of a bona fide purchaser at a trustee’s sale that if the trustee’s deed recites that all requirements of law have been complied with regarding the mailing, posting, publication, or personal delivery of the notice of default and the notice of sale, the recital is conclusive. In other words, failure to comply with the notice requirements is a ground to cancel the sale only as against a party who is not a bona fide purchaser. A sale to a bona fide purchaser is not voidable.
(68) Conclusive presumptions which render certain transactions UNILATERALLY non-voidable deny equal access to the courts to sue and give evidence and further deny the equal right to purchase, sell, or convey property in plain and express violation of 42 U.S.C. §§1981, 1982.
(69) The entire California non-judicial foreclosure system implemented with conclusive presumptions which cannot be rebutted either in forcible detainer or any other judicial proceedings inevitable tends to the absolute destruction of private property and the equal rights of all people to own and convey property, to make contracts, and to invoke the protection of the courts in so doing.
(70) In short, California Civil Code §2924, both on its face and as applied, is a constitutional nightmare and a statute transitional to corporate-governmental communism where citizens only hold property at the sufferance of corporate-governmental financial services and property-holding conglomerates such as the banking and mortgage servicing defendants in this case, backed up by attorney-pirate operating under color of law such as Defendant Steven David Silverstein.
(71) WHEREFORE, Plaintiffs Christyna Lynn GRAY, Charles Edward LINCOLN, and Renada Nadine MARCH all pray that this Court will strike down California Civil Code §2924 as constituting an unconstitutional abridgement and impairment of the right to contract, own, and convey property, all in violation of 42 U.S.C. §§1981, 1982, as well as the U.S. Const. Fifth and Fourteenth Amendments.
COUNT VII: TO VOID the sale(s) of 16351 Arlington Lane, Huntington Beach
(72) Plaintiffs reallege ¶¶(1)-(71) as if fully copied and restated herein below.
(73) Defendant J.P. Morgan-Chase Manhattan has on at least three occasions sold or attempted to sell Christyna Lynn Gray’s Property by and through its “servicer” or trustee Quality Loan Service Company.
(74) On one occasion (February-March 2009) a sale was scheduled and then the sale cancelled or rescinded (Exhibit B).
(75) However, on November 13, 2009, Christyna Gray’s property was in fact sold to First Newport Properties LLC, as attested by Russell Bell, by Quality Loan Services, deed executed by Rochelle Matkin, Quality’s assistant Vice-President.
(76) Plaintiff Christyna Lynn Gray was in loan modification with Chase and had been assured that her home would not be foreclosed, which loan modification constituted a full and effective “tender” of the balance due on the mortgage within the meaning of California Common and Statutory Law.
(77) JP Morgan Chase Bank, N.A., contracts for loan modifications and, accepts and takes loan modification payments on the false pretense that the loan will become “permanent”, i.e., payment modifications maintained for the duration of the loans; instead JP Morgan Chase Bank, N.A., utilizes modification negotiations as a cover and pretext for initiating and completing non-judicial foreclosures.
(78) In initiating and completely non-judicial foreclosures followed by pre-emptive all but conclusively pre-determined evictions JP Morgan Chase-Bank utilizes the special privileges and immunities afforded to trustees and their attorneys by the unconstitutional presumptions, formulas and norms derived from the provisions of California Civil Code §§1714.10 and 2924 as judicially interpreted and applied.
(79) While Plaintiff Christyna Lynn Gray actually received no notice of her foreclosure sale in derogation of her loan modification negotiations, she did receive multiple notices confirming that her “trial plan” has been approved and that her payments had been received (Christyna Gray’s notices from WAMU/Chase Bank are attached under the label of Exhibit A to this Complaint).
(80) Christyna Lynn Gray never received any notice of default under her modification plan, but was suddenly informed (Exhibit B) that her Loan Modification had been denied even as it had been reaffirmed by Chase’s acceptance of Modification payments, and as Chase continued, as late as November 23, 2009, to express confusion and a willingness to help; the simple truth is that the Modification was an inducement to Plaintiff effectively to permit a cover for eviction.
(81) The November 13, 2009, sale by Quality Loan Servicing was accordingly a breach of the modification agreement, on the part of JP Morgan Chase-Manhattan, as well as a tortious breach of the implied duty of good faith and fair dealing, for which breaches Plaintiff prays for her actual and punitive damages, in addition to a rescission or cancellation of the November 13, 2009, sale, and for quiet title.
(82) WHEREFORE, Plaintiffs pray that this Court will void and set aside the sale conducted by Quality Loan Service Corporation as null and void, conducted under color of unconstitutional law as alleged above and under circumstances and for purposes which constituted a breach of contract and/or a fraudulent inducement to contract or change position in reasonable reliance upon false representations and/or a breach of the implied covenant of good faith and fair dealing between the Plaintiff Christyna Lynn Gray and the Defendants JP Morgan Chase Bank, N.A., and its agent or “trustee” Quality Loan Service Corporation.
(83) WHEREFORE, Plaintiff Christyna Lynn Gray prays for all her actual, consequential, and special damages in the full (but redacted/undisclosed) amount of the sale price specified on Trustee’s Deed Upon Sale recorded on 11/25/2009, plus such punitive and exemplary damages against Steven David Silverstein as may be justly necessary adequately to punish this Defendant and to serve as an example to others similarly situated.
COUNT VIII: to Void the Sale, etc., 4 Via Corbina, Rancho Santa Margarita
(84) Plaintiffs reallege ¶¶(1)-(83) as if fully copied and restated herein below.
(85) In July and August, 2008, Plaintiff Charles Edward Lincoln repeatedly and formally tendered full payment of the obligations to Wells Fargo Bank, N.A., which he assumed from Hal Kuder, Jr., in June 2008, conditioned only upon the provision by Wells Fargo Bank of proof of status as holder in due course of Hal Kuder’s note.
(86) To Plaintiff Charles Edward Lincoln’s tender of payment, offers made by telephone and in writing, Wells Fargo Bank, N.A., did not respond at all.
(87) Plaintiffs allege that in this era of securitized mortgages, it is customary for Banks to refuse to prove their status as holder in due course of mortgage notes, because in fact, banks and finance companies all immediately sell their notes into pools or bundles either before or after receiving the note, which must be recorded as a deposit in cash under 12 U.S.C. §1813(l).
(88) After August 23, 2008, Lincoln made no further tender offers to Wells Fargo, but the foreclosure sale, whether legal or illegal, is not alleged to have taken place until 8 months later, on April 24, 2009.
(89) Rather than waiting for the foreclosure sale, however, Lincoln filed a Complaint in this Court (SA08-cv-01334 DOC(Ex)) against Wells Fargo and California Reconveyance on or about November 21, 2008, to which Defendants appeared subject to motions under Rule 12(b) in or about January or February 2009.
(90) Cal-Western Reconveyance had received Lincoln’s First Amended Complaint in this case filed on or about April 17, 2009, one week before the April 24, 2009, sale, of which Lincoln had absolutely and positively NO NOTICE despite the fact that he was in regular and more-or-less continuous contact with Cal-Western Reconveyance’s attorneys.
(91) There is absolutely no possibility, under these circumstances, that Defendants GRE Development, 4 Via Corbina Trust, Ron Elter, John Rampello, or Steven David Silverstein acted in good faith in purchasing the property, and in fact these defendants took whatever interest in 4 Via Corbina they acquired by paying Wells Fargo (which had already sold the note) through Cal-Western Reconveyance (which had no legal chain of title at all) on the foreclosure of a note which had been sold to third parties in the securitization and pooling process, and so there was no way that such a thing as a bona fide purchase was remotely possible.
(92) Defendant Steven David Silverstein relies upon the tender rule as a precondition to alleging wrongful foreclosure, fraud, and negligence relating to defective notice of foreclosure sale, together with his reliance on California Civil Code §§1714.10 and 2924.
(93) Plaintiffs allege and submit that the “full tender offer” as a prerequisite to asserting claims for wrongful foreclosure, fraud, and negligence relating to defective foreclosure is but another unconstitutional impairment of the obligations and rights of contractual relations, especially as relating to state-assisted foreclosure as a means of enforcing debt, because the “full tender offer” pre-requisite denies equal protection of the laws and due process of the laws to victims of fraudulent foreclosure.
(94) The “full tender offer” rule as outlined in California judge-made case law acts and operates as a plain violation of 42 U.S.C. §§1981, 1982 (read color-blind) as well as the Fifth and Fourteenth Amendments and Plaintiffs pray that this court will so declare and adjudge upon final trial of this cause.
(95) It is particularly outrageous under 42 U.S.C. §§1981 and 1982 that claims for fraud leading to wrongful foreclosure could or would be either cut off ab initio or conclusively defeated by a “full tender offer rule” because (for example) a stranger to an original loan transaction could, merely by false recitals in compliance with §2924 and representation by counsel insulated by §1714.10, could purchase a property at a sham foreclosure sale (as Silverstein and Ron Elter apparently did as officers and representatives of the 4 Via Corbina Trust on or about April 24, 2009) and then proceed through further false recitations to file and process a fraudulent forcible detainer (eviction) case through the cookie-cutter/mass production eviction line in the Superior Courts of Orange County, State of California.
(96) Steven David Silverstein’s utilization of unconstitutional (and in fact, unconscionable) California Statutes and judicial norms of interpretation and application having the force and effect of customary, practical, and political law create a genuinely lawless world in which certain formulaic lies control the outcome of non-judicial foreclosures and quasi-judicial (but effectively ministerial, merely administrative) eviction proceedings.
(97) In the culture of lawlessness fostered by Silverstein and his allies, in collusion with the Mortgage Finance Banks and Servicers, it was completely normal for Silverstein utterly to refuse to communicate with Lincoln’s former, famous but inexperienced attorney Dr. Orly Taitz, and to expect that he owed his fellow professional neither candor nor any sort of disclosures about his activities or plans, but that he simply utilize the cover provided by a nominal attorney (like loan modification negotiations) as camouflage for his trickery and abuse of legal process.
(98) WHEREFORE, Plaintiffs pray that this Court will void and nullify the April 24, 2009, sale of 4 Via Corbina to GRE Development, Ron Elter, John Rampello, and Steven David Silverstein, thereby restoring title to Charles Edward Lincoln, III.
COUNT IX: Cal. Code Civil Procedure §425.16(c) is UNCONSTITUTIONAL
(99) Plaintiffs reallege ¶¶(1)-(98) as if fully copied and restated herein.
(100) California’s anti-SLAPP law provides a civil action whose effect is to enhance the freedom of speech and right to petition of defendants by limiting the right of Plaintiffs to free speech and to petition.
(101) California Code of Civil Procedure §§425.16 et seq. is perhaps the most irrational and counterproductive law in the United States of America today.
(102) Plaintiffs allege that the California anti-SLAPP law embodied in §425.16 et seq. constitutes an unconstitutional infringement upon the First, Fifth, Ninth and Fourteenth Amendments to the Constitution, as well as a plain violation of the right to sue and give evidence secured by 42 U.S.C. §1981.
(103) WHEREFORE, Plaintiffs pray that the Court will declare §425.16 et seq. to be unconstitutional, null and void.
COUNT X: to Void the sale of 7 Bluebird Lane, Aliso Viejo
(104) Plaintiffs reallege ¶¶(1)-(103) as if fully copied and restated herein below.
(105) Like Plaintiff Christyna Lynn Gray, Plaintiff Renada Nadine March was involved in serious forebearance and loan modification negotiations with her alleged “lender” OneWest Bank, N.A., by and through NACA (Neighborhood Assistance Corporation of America), and accordingly alleges that the October 9, 2009, sale was a breach of contract, a tortious breach of the implied duty of good faith and fair dealing, and happened without notice during a fraudulently induced period of sham negotiations.
(106) It was in fact on October 10, 2009, that Defendant learned (at the NACA “Save the Dream Tour” Home Save Program in Las Vegas) that Indymac had sold MARCH’s property on October 9, 2009). She then returned home to find Silverstein’s Three-Day Notice to Quit attached to her door. Silverstein appears to specialize in blitzkrieg evictions following illegal and secret non-judicial foreclosure sales immunized by §2924.
(107) Thus the foreclosure sale was conducted in secrecy and in stealth behind RENADA NADINE MARCH’s back in such a manner that RENADA NADINE MARCH defrauded of the implied covenant of good faith and fair dealing, which was so extreme and outrageous as to constitute actual or constructive fraud on the part of INDYMAC/ONE WEST, and this actual or constructive fraud right up until the moment of sale, in that the allegedly foreclosing party had no advance notice of when the final foreclosure was due to take place.
(108) Pursuant to the customs, practices, and policies of the State of California, Plaintiffs allege defendants in Unlawful Detainer actions have no effective defense or counterclaims whatsoever, especially regarding the legality of underlying non-judicial foreclosures.
(109) Plaintiffs allege that California law or customary and political practice, especially but not limited to Civil Code §§1714.10 and 2924 and Code of Civ. Pro. §425.16 fix judicial process so that all evictions will be completed, regardless of the existence or availability of valid legal objections, by preventing Plaintiff victims from raising or immunizing Defendant perpetrators from liability, even for fraud.
(110) The combination of circumstances put Renada Nadine March on notice that she was and would always “be denied [and] cannot enforce in the courts of [the Superior Court of Orange County in the] State [of California any of his] right[s] under any [and all] law[s] providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof.” 28 U.S.C. §1443(1); 42 U.S.C. §§1981, 1982, 1983, 1988(a).
(111) Furthermore, Plaintiffs allege and will show that they are all single, divorced, or separated persons living alone, and as such are subjects of targeted discrimination.
(112) In particular single women (Plaintiffs GRAY and MARCH) are subject to targeted discrimination by the attorneys (“officers of the court”) and Judges of the Superior Courts of California, while LINCOLN and MARCH are both persons over the age of 40, also belonging to age-disadvantaged groups.
(113) WHEREFORE, Plaintiffs pray that this court will void and nullify the sale of 7 Bluebird Lane in Aliso Viejo, Orange County, California by the Trustee Corps to Meglodon Financial, L.L.C., and restore title free and clear of encumbrances to Renada Nadine March.
COUNT XI: SLANDER OF TITLE & TORTIOUS INTERFERENCE
(114) Plaintiffs reallege ¶¶(1)-(113) as if fully copied and restated herein.
(115) The following counts are alleged and stated conditionally dependent upon the favorable resolution to the Plaintiffs of their prayers for declaratory judgment that California Civil Code §§1714.10 and 2924 be declared either facially unconstitutional or unconstitutional as applied in this case.
(116) Immediately after the April 24, 2009, sale of which Plaintiff Charles Edward Lincoln, III, was utterly unaware, Defendant John Murk represented Defendant Deanna Dagnolo’s interest in the property located at 4 Via Corbina by interacting with the de facto property manager Peyton Yates Freiman, whereas Defendant Dagnolo resided in said property as a tenant and Diane, as tenant is in breach of contract by breaking the lease.
(117) Plaintiff alleges that these defendants conspired with Steven David Silverstein and GRE Development to wrest control of the property from Lincoln after the illegal foreclosure sale and transfer from Wells-Fargo and Cal-Western Reconveyance to GRE Development/4 Via Corbina Trust.
(118) Plaintiff accordingly sues Defendants Silverstein, Murk, and D’Agnolo for Illegal Transfer under RICO, Slander of Title and Interference of Contract and Advantageous Business Action and Breach of Contract.
(119) Plaintiff Lincoln alleges and asserts that Defendants GRE Development Inc, by and through their, then attorney Defendant Steven D. Silverstein bought a property located at 4 Via Corbina, Rancho Santa Margarita illegally from Cal-Western Reconveyance at a sale that should not have been allowed to transpire during a pending lawsuit regarding a Clouded Title.
(120) Plaintiff filed a Lis Pendens with his Complaint for Quiet Title with the US District Clerk and with the Orange County Recorder’s office.
(121) Cal-Western has acted fraudulently by selling this property without any notice that the title was clouded, keeping their mouth shut while selling lawsuits alongside the property located at 4 Via Corbina; as noted above, Plaintiffs dispute the validity of Cal. Civil Code §2924 to insulate any of the parties to this transaction.
(122) The act of selling or transferring this property under such terms constitutes a count of Racketeering, in violation of Title 18 of the US Code under RICO.
(123) GRE Development/4 Via Corbina Trust in collusion with Cal-Western and Silverstein formed a corrupt enterprise in transferring, selling and buying the property at 4 Via Corbina under RICO, 18 U.S.C. §1961 et seq..
(124) As of the date of his filing of forcible detainer and eviction proceedings against Lincoln, Silverstein had not provided ANY purported deed of sale or documents stating that his clients GRE actually obtained the property at a legal sale. In fact his clients at GRE Inc, sent out their agents along with a local Constable and tried to intimidate Tenant Dagnolo with threats of forcible eviction.
(125) They then called Lincoln’s trustee, Peyton Yates Freiman, and told him that they were in fact the new owners of 4 Via Corbina. When Lincoln’s trustee Freiman asked their lawyer Steven D. Silverstein if he could see the deed Silverstein refused saying that he needed to see paperwork from Freiman;
(126) throughout this litigation and its antecedents, Silverstein relies upon procedural immunity as an attorney, and Plaintiffs pray that this court will strip him of all such immunity.
(127) Plaintiff contends that even if they COULD provide a recorded deed that it should be rendered void because of the dispute of clouded title, and at the very least, give good cause to sue for Slander of Title. The recordation of an instrument facially valid but without underlying merit will, of course, give rise to an action for slander of title (Forte v. Nolfi (1972) 25 Cal.App.3d 656, 685-686 [102 Cal.Rptr. 455]).
(128) GRE DEVELOPMENT/4 Via Corbina Trust, by and through their attorney Silverstein questioned whether Plaintiff Lincoln ever owned the property in the first place to Defendant Murk, who eventually agreed to move based on the allegations and threats of criminal trespass of Defendant Silverstein.
(129) Lincoln submits that he has at all relevant times held the sole legal title in hand in the form of an original deed from the previous owner, Hal Kuder, to him and can provide the Court with a certified copy after he files the deed with the Recorder. He simply thought filing a copy of the deed in multiple Courts in Complaints for Quiet Title would be sufficient to assuage any doubts as to his right to Title. Besides with possession, title is presumed.
(130) “Possession is not title, but only evidence from which title may be presumed.” President & Trustees of San Diego v. Allison, 46 Cal. 162 (Cal. 1873); 1873 Cal. LEXIS 152. Plaintiff alleges that he had possession through an agreement with Defendants John Murk and Deanna D’Agnolo in the form of a Lease (attached as Exhibit B to Plaintiff’s original complaint in this case). The threats made by GRE Development by and through their lawyer Steve Silverstein constituted a slander of title, a threat of malicious prosecution, and a tortious interference with Plaintiff’s right to possession and title.
(131) Assuming the invalidity of California Civil Code §§1714.10 and 2924, as alleged above, Defendant Steven David Silverstein acted without privilege to do so when he published to John Murk and Dianne D’Agnolo false statements that disparaged Plaintiff Lincoln’s title to property constituted a Slander of Title by Disparagement under Cal. Civil Code § 40.81:
A statement is disparaging if it casts doubt as to the ownership of property. Section 629 of the first Restatement, defining disparagement, states that “[m]atter which is intended by its publisher to be understood or which is reasonably understood to cast doubt upon the existence or extent of another’s property in land, chattels or intangible things, or upon their quality, is disparaging thereto, if the matter is so understood by its recipient.” Many California cases have cited this definition.
Clearly, a direct denial of the plaintiff’s title or claim of a leasehold interest in the property is actionable as slander of title. Thus, the defendant slandered the plaintiff’s title to timber when he wrote a letter to a prospective buyer of the timber from the plaintiff which falsely said that the defendant was the owner of the timber. Defendant may cast “doubt” on the plaintiff’s title without directly contesting it. Examples of indirect disparagement are (1) the filing by a developer of a master plan which falsely implied the right to use the plaintiff neighbor’s property, (2) the recordation by the defendant of a document entitled “Rescission of Contract,” falsely charging the seller-plaintiff with fraud, (3) the recordation of a fraudulently obtained deed of trust to the plaintiff’s property, (4) the recording of a fraudulent grant deed to plaintiff’s property, and (5) the wrongful recordation of a mining claim to property leased by the plaintiff.
(132) The Defendants Silverstein and GRE successfully intimidated Plaintiff Charles Edward Lincoln’s tenant, threatening criminal prosecution if she does not leave the premises. They even went so far as to appear with a Police Officer to get this point across to the Tenant.
(133) These threats were made to influence and turn the Tenant against the owner Charles Lincoln, making it a “he said, she said” situation creating undue suspicion in the Tenant’s mind towards the property owner, destroying Lincoln’s relationship with his tenant.
(134) Another statement of definition of the tort, perhaps more pertinent to the facts of this case, is to be found in Fearon v. Fodera (1915) 169 Cal. 370, at pages 379 and 380 [148 P. 200], as follows: “Slander of title,” as recognized by the law, may be defined to be defamation of title to property, real or personal, by one who falsely and maliciously disparages the title thereto, and thereby causes the owner thereof some special pecuniary loss or damage. “Admittedly under this definition slander of title may be committed by maliciously clouding the title to real property and causing damage to the owner thereof by the execution, willful acceptance, and malicious recordation of a deed, which falsely declares the title of the property involved to be in a person other than the true owner.
(135) In destroying this relationship GRE, by and through their attorney Silverstein have irreparably hurt Lincoln’s relationship with his tenant through threats and subsequently deprived him from the rent that he would have other wise received from Defendant Diane Dagnolo.
(136) California has adopted the definition of the tort of slander of title set forth in section 624 of the Restatement of Torts, which provides: “One who, without a privilege to do so, publishes matter which is untrue and disparaging to another’s property in land . . . under such circumstances as would lead a reasonable man to foresee that the conduct of a third person as purchaser or lessee thereof might be determined thereby is liable for pecuniary loss resulting to the other from the impairment of vendibility thus caused.” (Howard v. Schaniel (1980) 113 Cal.App.3d 256, 263-264 [169 Cal.Rptr. 678]; see Gudger v. Manton (1943) 21 Cal.2d 537, 541 [134 P.2d 217].
(137) Nowhere does a California decision require that the published matter create a legal “cloud” upon plaintiff’s title to constitute a disparagement. Indeed, the tort may be committed through the use of oral statements ( Burkett v. Griffith (1891) 90 Cal. 532, 537-538 [27 P. 527]) or signs ( Phillips v. Glazer (1949) 94 Cal.App.2d [***19] 673, 674 [211 P.2d 37]), neither of which involve any recordation whatsoever.
(138) Plaintiff asserts that in emailing Defendants John Murk and Diane Dagnolo repeatedly, Defendants GRE Development, by and through their attorney, Defendant Steven D. Silverstein have in fact published untrue and disparaging comments regarding the ownership of the land located at 4 Via Corbina through written word AND Orally as John Murk has purportedly talk to agents of GRE Development face to face. He accordingly sues Defendants GRE and Steven D. Silverstein for Tortious Interference under Restatement Second of Torts, § 629 and disparagement:
§ 629 Disparagement Defined
A statement is disparaging if it is understood to cast doubt upon the quality of another’s land, chattels or intangible things, or upon the existence or extent of his property in them, and
(a) the publisher intends the statement to cast the doubt, or
(b) the recipient’s understanding of it as casting the doubt was reasonable.
COUNT XII: FORCIBLE DETAINER
(139) Plaintiffs reallege ¶¶(1)-(138) as if fully copied and restated herein below.
Defendants GRE Development Inc and 4 Via Corbina Trust are guilty of a Forcible Detainer given that they have repeatedly, after having been informed of the clouded title by Plaintiff Lincoln, changed the locks of the property in question in an effort to take unlawful possession.
(140) Plaintiff Lincoln was in possession of the property before the locks were changed and has subsequently been forced to change the locks several times. The Defendants are guilty of a Forcible Detainer pursuant to Cal. Code of Civ Proc §1160:
Every person is guilty of a forcible detainer who either:
1. By force, or by menaces and threats of violence, unlawfully holds and keeps the possession of any real property, whether the same was acquired peaceably or otherwise; or
2. Who, in the night-time, or during the absence of the occupant of any lands, unlawfully enters upon real property, and who, after demand made for the surrender thereof, for the period of five days, refuses to surrender the same to such former occupant. The occupant of real property, within the meaning of this subdivision, is one who, within five days preceding such unlawful entry, was in the peaceable and undisturbed possession of such lands.
(141) When told that he would be prosecuted for interfering in the possession of the property Defendant Silverstein, as representative for GRE Development and 4 Via Corbina, remained defiant and curt, saying that he represented the new owner, without ANY PROOF OF ANY KIND as to GRE Development’s ownership.
COUNT XIII: BREACH OF CONTRACT, RICO
(142) Plaintiffs reallege ¶¶(1)-(141) as if fully copied and reinstated herein below.
(143) Lincoln further charges John Murk and tenant Diane Dagnolo with breach of contract who signed a leasing agreement stating that they would be at the property for another 6 months.
(144) Defendants Murk and Dagnolo’s have acted in collusion with Defendants GRE and Silverstein by moving out and destroying the Plaintiff’s possession of the property.
(145) Murk has repeatedly offered up emails showing his involvement with Silverstein in accordance with Silverstein’s demands, instead of aiding Lincoln in his obvious ownership. Lincoln has provided Murk with a file marked copy of his Complaint for Quiet Title in which he shows a copy of the deed and an obvious dispute in title. Murk, for his part, simply remained reticent, and failed to show the complaint to Silverstein, instead appearing to take GRE’s side (Plaintiff alleges and submits that both Silverstein and Murk agreed and conspired regarding both the sham play act involving D’Agnolo and Murk’s pretense not to know of the April 24, 2009 sale, for the purpose of dislodging Lincoln from possession).
(146) When asked for a deed from GRE Murk provided only a list of properties GRE Development had supposedly bought. Murk stated to Lincoln and Freiman that he took this information as legally sufficient to advise or convince Tenant Diane D’Agnolo that she should leave 4 Via Corbina, thus transferring possession of an already clouded title to co-defendants who have yet to prove they actually own the property.
(147) This collusion has simply augmented a criminal enterprise adding both D’Agnolo and Murk to the 4 Via Corbina Trust, actionable under RICO.
(148) Subject to the favorable resolution of the Plaintiffs Counts for Civil Rights and Constitutional Declaratory Judgment of this Complaint alleged above regarding the constitutionality of Cal. Civil Code §§1714.10 and 2924, Plaintiff Charles Edward Lincoln, III charges each of Defendants Silverstein, Elter, Rampello, Murk and Dagnolo with liability under RICO and breach of contract in favor of aiding and abetting Silverstein’s 4 Via Corbina Criminal Enterprise under RICO, including parts 18 U.S.C. §§1962(a), (b), (c), and (d).
(149) The predicate acts of Racketeering are the several violations of 18 U.S.C. §§1341 and 1343 (mail and wire fraud) committed between May and August, 2009, by John Murk and Steven David Silverstein, by regular and electronic mail in furtherance of a scheme to defraud Plaintiff Charles Edward Lincoln, injuring him in his business and property interests by depriving him first of income from the tenancy of Diane D’Agnolo and the later from his personal beneficial use and enjoyment of 4 Via Corbina, Rancho Santa Margarita, California 92688.
(150) Because of the Defendants’ several violations of R.I.C.O., Plaintiff Charles Edward Lincoln has been injured in his business or property, and requests all his actual and punitive damages in the amount of $1.5 million U.S. dollars, as allowed by 18 U.S.C. §1964(c).
CONCLUSIONS AND PRAYER FOR RELIEF
Defendant Steven David Silverstein alleges and contends that he acted competently, ethically, and legally in representing GRE Development, Inc., Ron Elter, and the 4 Via Corbina Trust in the eviction proceedings of which neither Lincoln nor his former attorney Dr. Orly Taitz had any lawful notice or actual knowledge prior to the appearance of Orange County Sheriff’s Constables at the door of 4 Via Corbina in mid-September 2009. Likewise, Silverstein and Russell Bell submit and contend that they are acting lawfully and legitimately in connection with the sale of Christyna Lynn Gray’s property at 16351 Arlington Lane, Huntington Beach, Orange County, California 92649. It is apparently the most trivial of coincidences that there are repetitive patterns of similarity between Silverstein’s evictions: all involve filing forcible detainers filed after sales which either (Lincoln) which took place during hotly contested Federal civil litigation or (Gray and March) during intense and actively supported and acknowledged negotiations ostensibly leading towards loan modifications.Silverstein depends entirely upon the privileges and immunities granted to foreclosing parties and their attorneys by California Civil Code §§1714.10 and 2924, augmented by Code of Civil Procedure 425.16 and other miscellaneous privileges and immunities from suit, which unconstitutionally tend to create foreclosing parties as a special elite inside California Economic Society. Plaintiffs reiterate their prayers stated in each count above and pray for judgment accordingly after a trial-by-jury. Plaintiffs pray that the Court will reform the non-judicial foreclosure process in the State of California.
CERTIFICATE OF SERVICE:
Plaintiffs Charles Edward Lincoln, III, Renada Nadine March, and Christyna Lynn Gray certify that they have served a true and correct copy of this First Amended Complaint upon the Defendant’s counsel by facsimile transmission to (714) 363-0229 as well as by electronic (e-mail) attachment to Larry Rothman’s e-mail address shown as email@example.com on the cover sheet of Rothman’s original filing for Defendant Silverstein, and by regular mail or courier deliver to the attorney for Steven David Silverstein:
Larry Rothman & Associates
Larry Rothman, State Bar No. 72451
City Plaza, 1 City Boulevard West, Suite 850
Orange, California 92868
Signed & Respectfully submitted,
Monday, December 7, 2009
Charles Edward Lincoln, III, pro se
c/o Peyton Yates Freiman
603 Elmwood Place, Suite #6
Austin, Texas 78705
Monday, December 7, 2009
CHRISTYNA LYNN GRAY, Pro se/in propia persona
16351 Arlington Lane
Huntington Beach, Orange County
Respectfully signed & submitted,
Monday, December 7, 2009
RENADA NADINE MARCH, Pro se/in propia persona
7 Bluebird Lane
Aliso Viejo, California 92656