Class Action Complaint - Kirk v. First American Title Company, et al.

Transcription

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THE BERNHEIM LAW FIRM
Bernie Bernheim, Esq. (SBN 143319)
Nazo S. Semerdjian, Esq. (SBN 223536)
4725 Rubio Avenue
Encino, California 91436
(818) 906-2545 (phone)
(818) 906-8418 (facsimile)
THE KICK LAW FIRM, APC
Taras Kick, Esq. (SBN 143379)
G. James Strenio, Esq. (SBN 177624)
Thomas Segal, Esq. (SBN 222791)
Adam Gauthier, Esq. (SBN 246387)
900 Wilshire Boulevard, Suite 230
Los Angeles, California 90017
(213) 624-1588 (Ehone)
(213) 624-1589 (facsimile)
Anorneys for Plaintiff,
PATRICK KIRK,
on behalf of himself and
all others similarly situated
REDACTED VERSION
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF LOS ANGELES
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CASE NO. BC372797
PATRICK KIRK, on behalf of himself
and all others similarly situated,
(Related to Case Nos. BC329482,
BC370141, BC374557, and BC382826)
Plaintiff,
CLASS ACTION: CONSOLIDATED
FOR DISCOVERY PURPOSES ONLY
vs.
FIRST AMERICAN TITLE
INSURANCE COMPANY, a California
Corporation; FIRST AMERICAN TITLE
COMPANY, a California Corporation;
THE FIRST AMERICAN
CORPORATION, a California
Corporation; and DOES 1-500, inclusive,
SECOND AMENDED COMPLAINT
FOR:
(1)
(2)
(3)
(4)
(5)
(6)
Defendants.
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Breach of Contract;
Breach of Implied Covenant of
Good Faith and Fair Dealing;
Negligence;
Fraud and Deceit;
Unjust EnrichmentlRestitution;
Unfair Competition Laws,
pursuant to Bus. & Professions
Code §§17200, 17500 et. seq.;
Negligent Misrepresentation;
CLRA; and
Constructive Fraud
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(7)
(8)
(9)
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[Request for Jury Trial]
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Second Amended Complaint (Class Action)
TABLE OF CONTENTS
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Page
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PARTIES
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Plaintiffs
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Defendant First American Title Insurance Company . . . . . . . . . . . . . . . . . . . . . . . 1
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Defendant First American Title Company
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Defendant First American Corporation
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Doe Defendants
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. . . . . . . . . . . .. I
RELATIONSHIP AMONG THE DEFENDANT ENTITIES
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CLASS ALLEGATIONS
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VENUE AND JURISDICTION
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Venue
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Jurisdiction is proper in this Court
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Federal jurisdiction does not exist.
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The CDI does not have exclusive jurisdiction (no safe harbor exists),
the primary jurisdiction doctrine does not apply, and the administrative
exhaustion doctrine does not apply . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 15
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CLAIMS OF NAMED PLAINTIFF
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STATUTE OF LIMITATIONS / DELAYED DISCOVERY / ESTOPPEL
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FIRST CAUSE OF ACTION (Breach of Contract)
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Breach of Written Contract
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There were writings evidencing and memorializing the contract
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Parties to the written contract
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Written material tenns
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Additional material tenus incorporated into the contract by
operation of law
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Defendants' breach of the contract
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Breach ofImplied Contract
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Nature of implied contract
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Conduct, situation and mutual relation of the parties which
imply the existence of a promise
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Parties to the implied contract
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Material tenns of the implied contract
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Defendants' breach of the implied contract
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SECOND CAUSE OF ACTION (Breach of Implied Covenant)
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THIRD CAUSE OF ACTION (Negligence)
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Duty
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Breach of Duty
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Causation and Damages
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FOURTH CAUSE OF ACTION (Fraud and Deceit)
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FIFTH CAUSE OF ACTION (Unjust Enrichment I Restitution)
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SIXTH CAUSE OF ACTION (Violation of Unfair Competition Laws).
.
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SEVENTH CAUSE OF ACTION (Negligent Misrepresentation)
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EIGHTH CAUSE OF ACTION (Violation of the CLRA)
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NINTH CAUSE OF ACTION (Constructive Fraud)
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PRAYER FOR RELIEF
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Individual and representative plaintiff Patrick Kirk, on behalf of himself and all
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others similarly situated (collectively, "Plaintiffs"), alleges on information and belie'f as
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follows:
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PARTIES
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1.
Plaintiffs. Plaintiff Kirk was at all times mentioned herein an individual
residing within the State of California, County of Los Angeles,
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2,
Defendant First American Title Insurance Company. Plaintiffs are
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informed and believe and thereon allege that defendant First American Title Insurance
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Company ("FATlC") is, and at all relevant times was, a corporation organized and
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existing under the laws of the State of California, authorized to transact the business of
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insurance in the State of California, and transacting insurance business in the State of
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California, County of Los Angeles.
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3.
Defendant First American Title Company. Plaintiffs are infonned and
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believe and thereon allege that defendant First American Title Company ("FATCO") is,
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and at all relevant times was, a corporation organized and existing under the laws of the
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State of California, authorized to transact the business of insurance in the State of
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California, and transacting insurance business in the State of California, County of Los
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Angeles,
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4,
Defendant First American Corporation. Plaintiffs are informed and
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believe and thereon allege that defendant First American Corporation ("FAC") is, and at
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all relevant times was, a corporation organized and existing under the laws ofthe State of
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California, and was and is an insurance holding company within the meaning of the
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California Insurance Holding Company System Regulatory Act.
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5.
Doe Defendants. Plaintiffs are currently ignorant of the true names and
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capacities, whether individual, corporate, associate, or otherwise, ofthe defendants sued
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herein under the fictitious names Does 1 through 500, inclusive, and therefore, sue such
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defendants by such fictitious names. Plaintiffs will seek leave to amend this complaint to
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allege the true names and capacities of said fictitiously named defendants when their true
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names and capacities have been ascertained. Plaintiffs are informed and believe and
7 thereon allege that each of the fictitiously named Doe defendants are legally responsible
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in some manner for the events and occurrences alleged herein, and for the damages
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suffered by Plaintiffs and members ofthe class.
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RELATIONSHIP AMONG THE DEFENDANT ENTITIES
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6.
a.
Plaintiffs are informed and believe and thereon allege that all
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defendants, including the fictitious Doe defendants, were at all relevant times acting as
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actual agents, conspirators, ostensible agents, partners and/or joint venturers and
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employees of all other defendants, and th.!lt all acts alleged herein occurred within the
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course and scope of said agency, employment, partnership, and joint venture, conspiracy
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or enterprise, and with the express and/or implied pennission, knowledge, consent,
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authorization and ratification oftheir co-defendants; however, each of these allegations
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are deemed "alternative" theories whenever not doing so would result in a contradiction
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with the other allegations.
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b.
As an alternative theory, plaintiffs are informed and believe, and on
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that basis allege, that defendants are alter egos of each other. Defendants all share the
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same principal place of business, located at 1 First American Way, Santa Ana, California
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92707, and have the same agent for service of process. Defendants share common
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directors, officers, and/or executives. Plaintiffs are informed and believe, and on that
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basis allege, that there is common control over defendants, and they operate pursuant to a
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common business plan. Defendants' employees and agents refer to defendants
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generically as First American, and do not distinguish between the various First American
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entities. There is unity of interest among defendants. The "alternative" alter-ego
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relationship among the defendants should be recognized to prevent an injustice. If the
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alter-ego relationship among the defendants is not recognized an inequity will result
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because an entity responsible for wrongdoing will be shielded from liability. When
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considering an award of punitive damages, the entire net worth of a defendant is
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considered. If the corporate structure of the alter-ego defendants is disregarded, punitive
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damages will be based solely on the assets ofthe "fronting" entity; assets which are much
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smaller than the other entities. Because punitive damages are nieant to punish and make
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an example of the wrongdoer, it would be inequitable to allow entities responsible for the
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wrongdoing complained of to shield their assets and escape punitive damage liability.
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Moreover, the co-defendant entities which make, in whole or in part, the decisions would
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escape liability, which is inequitable. Furthennore, the alter ego relationship should be
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recognized to ensure effective injunctive relief, so that the wrongful practices alleged
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herein are not relocated to an affiliated company. If defendants were pennitted to avoid
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an injunction by relocating the misconduct, an inequity would result.
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c.
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The acts and omissions of anyone of the defendants alleged herein
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are attributable as a matter oflaw to all three. Accordingly, when describing the acts and
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omissions of defendants herein, defendants will be designated collectivelYri.e:,as
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"defendants"
, as "First American"
" as "FA" as the "FA Enterprise"
, or as the "First
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American Enterprise." Only when plaintiffs intend that a particular act or omission
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should be attributed to one defendant or two defendants only, and not to all three, will
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plaintiffs allege the individual designation for that one defendant, or those two
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defendants.
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d.
Additional specific facts relating to the relationship among
defendants include, among others, the following:
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1.
First American fonns an insurance company holding system
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(hereafter, the "FA Enterprise."). Defendants are all members of a single insurance
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company holding system within the meaning of the California Insurance Holding
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Company System Regulatory Act (Ins. Code, §§ 1215-1215.16).
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11.
FAC, through the FA Enterprise, did and does facilitate the
transaction of insurance business in the State of California. FAC's executive offices are
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located at Santa Ana, California. Through its subsidiaries, and through the FA enterprise
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which it controls, FAC is engaged in the business of issuing residential and commercial
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title insurance policies, as well as providing other services used in the settlement of real
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estate transactions.
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Ill.
FATIC is, and at all relevant times was, a corporation
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organized and existing under the laws ofthe State of California, authorized to transact the
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business of insurance in the State of California, with its headquarters in Santa Ana,
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California, at the same location of defendant FAC, above, and transacting title insurance
10 . business in the State of California. FATIC is, and at all relevant times was, a wholly
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owned subsidiary ofFAC - the largest subsidiary. Like FAC and FATCO, FATIC is an
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affiliate within the FA Enterprise.
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IV.
FATCO is, and at all relevant times was, a corporation
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organized and existing under the laws of the State of California and headquartered in
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Santa Ana, California, authorized to transact the business oftitle insurance in the State of
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California, and transacting title insurance business and underwriting title insurance in the
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State of California. FATCO is, and at all relevant times was, an underwritten title
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company, underwritten by FATIC and controlled by FATIC and FAC. FATCO is, and at
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all relevant times was, a wholly owned subsidiary of FATIC, which in turn was a wholly
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owned subsidiary ofFAC. FATCO is, and at all relevant times was, an agent of FATIC
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and FAC. Like FAC and FATIC, FATCO is an affiliate within the FA Enterprise.
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v.
FAC, FATCO and FATIC share the same principal place of
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business, located at 1 First American Way, Santa Ana, California 92707, and have the
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same agent for service of process.
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VI.
FAC directs and controls the operations of FATIC and
FATCO. FATIC shares in the direction and control ofFATCO, under the overall
3. direction and control ofFAC. FATCO is FATIC's agent, and FATIC is the principal of
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FATCO. However, in certain circumstances, FATIC acts as FATCO's agent, as when
5
interacting with the California Department ofInsurance. In that situation, for example,
6 FATIC makes filings on behalf ofFATCO, and communicates with the cm on behalf of
7
itself and on behalf of FATCO.
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Vll.
The FA Enterprise is the direct descendent of Orange County
10" Title Company, a family title business founded in Orange County more than ,1 00 years
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ago. The founder was C.E Parker. His descendants have continuously controlled the
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business he created up through the present day. George Parker was chief executive after
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C.E. Parker. George Parker was replaced as chief executive by his nephew, Donald
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14 Parker Kennedy. Donald Parker Kennedy is currently Vice Chairman ofthe Board of
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FATIC. His son, Parker Kennedy, is Chairman ofthe Board of FATIC. He is also
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Chairman of the Board ofFAC. Parker Kennedy's position as Chairman of the Board of
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both FATIC and FAC, while acting as CEO ofFAC, is one of the methods by which FAC
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is able to control the operations ofFATIC. Parker Kennedy is also chief executive officer
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ofFAC. Employees ofFAC occupy most of the senior executive level positions at
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FATIC. This is another one of the techniques by which FAC, and the Kennedy family,
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maintain control of FATIC and FATCO (which is the agent of FATIC). The president of
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FATIC, in tum, was and is the president ofFATCO.
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viii.
Although FATCO is not an insurance company (it is an
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underwritten title company), FATCO and FATIC share in the payment of claims made
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against policies underwritten by FATIC. In other words, FATCO pays part of the claims
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made against policies underwritten by its parent.
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IX.
FATIC, FATCO and FAC operate pUrsuant to a conunon
2 business plan, under the direction of the Kennedy family. For example, when FATIC
3 wishes to file with the California Department ofInsurance a major change in its rates, it
4 must obtain a sign off from Parker Kennedy, CEO ofFAC. (Depo. of FATIC Sr. VP and
5 PMQ Morgan, August I9, 2008,817:19-24.) Parker Kennedy is at the apex of the chain
6
of command for all FATCO, FATIC and FAC personnel. The executive in charge of all
7
of FATIC's underwriting, technology and agent relations activities testified that "if Parker
8 Kennedy [the FAC CEO] sends [him] an email directing him to take action, [he] feels that
9 it's [his] duty to take that action." (Hollenbeck Depo., 23 :6-9.) First American attorney
10
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and Senior Manager Richard Kirsenbrock testified as follows:
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SO somewhere in the 2002 to 2005 era, Mr. Parker S. Kennedy
would lead executive meetings at which FATCO and FATIC
executives were present; is that right?
I'm not sure exactly who any or all of the executives were employed
by, but it would be executives from across the country.
Well, but you recognized some people as being FATCO employees
who were at these executive meetings, correct?
Certainly. Yes.
And there were some FATIC employees who were also there at these
executive meetings that Mr. Kennedy was presiding over?
Presumably, yes.
(Kirsenbrock Depo., 28: I0-29:2).
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x.
Regardless of whether they are employees ofFAC, FATCO
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or FATIC (or of some combination), FA Enterprise employees typically do not and
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cannot distinguish between the various entities in the FA System. Many long term and/or
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senior employees are unable to accurately identitY which entity employs them. Most are
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unaware of any distinctions in the business functions of the various defendant entities.
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By way of example, a senior executive of FATIC, Mr. Joseph Tavarez, was engaged in
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proposing deals for the sale of property and casualty insurance products of another First
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American entity, so that builders would funnel new home buyers to the property and
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casualty insurer entity of First American. He did this despite the fact that it is unlawful
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for a title insurer to transact property and casualty business. Tavarez drew no distinction
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between the business of FATIC and that of the First American property and casualty
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insurance entity. Most mid level and senior employees, in their work, regard and treat
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FATCO, FATIC and FAC as a single enterprise. This is because they are, in fact, a single
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entelprise.
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Xl.
FATCO, FATIC and FAC file ajoint Federal tax return.
xu.
FATIC makes rate filings on behalfofFATCO.
X111.
FATIC employees have used FATCO letterheadto make
xiv.
FAC, FATCO and FATIC appointed a single "person most
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filings with the CD!.
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qualified" to testify on their behalf regarding corporate structure, who admitted that FAC
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"has, essentially, control" of its subsidiaries, including FATIC and FATCO. He testified
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under oath that the relationship between FAC and FATIC "is NOT an arms length
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relationship." He testified that "there are many employees of The First American
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Corporation that also would be officers or employees of First American Title Insurance
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Company." He testified on behalf of all three defendants that the relationship between
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FAC and its subsidiaries (e.g., FATIC, FATCO) is not an arms length relationship. In
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fact, FATIC executives report and are under the direction ofFAC executives. An
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example is John Hollenbeck, head of FATIC's underwriting and new product
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development department. That department is in charge of all California rate filings for
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First American entities. Mr. Hollenbeck's immediate superior is not a FATIC employee,
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but rather is a FAC employee. He has been identified as chief executive officer of the
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company that will house the title company, the trust company and the specialty insurance
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company, which will be wholly owned by FAC. (Hollenbeck Depo., 18:6-11.)
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xv.
FAC developed and controls the website whereby FATIC and
FATCO market their products.
5
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During the class period (defined below) one of the most
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important FA System executives in California was Regional Vice President Robert
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Schott. He was in charge of title and escrow operations for a California territory
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encompassing approximately two thirds of California's population, including Los
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Angeles County, Orange County, Ventura County, Riverside County, San Diego County,
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Imperial County and San Bernardino County. He had more than 1,100 FA System
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personnel under him in the chain of command. He testified he was a FAC .employee. His
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business card, however, said FATCO on it. This then led him to claim he was a FATCO
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employee. Later, in interrogatory answers, FATIC claimed he was a FATIC employee.
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XVll.
Defense litigation counsel herein (the Bryan, Cave firm)
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drafted a decl,aration for a title officer employed in the FA Enterprise. That declaration
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stated that this title officer was a FATIC employee. She also testified at deposition under
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penalty of perjury that she was a FATIC employee. Later, a verified interrogatory answer
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fromFATCO stated she was a FATCO employee.
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xviii. First American attorney and Senior Manager Richard
Kirsenbrock gave the following convoluted testimony about which entity he works for:
I report to an employee of First American Title Company who
reports to another employee of First American Title Company who
reports to a gentleman who I'm not sure ifhe's an employee of First
American Title Company or the Title Insurance Company, who
reports to the president of the Title Insurance Company.
(Kirsenbrock Depo., 22:6-11).
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xix.
Any assertion that FAC engages in fio title related operations
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is false. FAC at all relevant times did, and does, engage in title related operations. This
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fact is true regardless of the fact that FAC happens to be a publically traded company.
4
This fact is true regardless of the fact that it is an entity in an insurance holding company
5 system. The fact that it is a publically traded, insurance holding company system affiliate
6
does not affect or diminish its role in engaging in title related operations through the
7
decisions and actions of its officers, directors and executives. The actuarial department is
8 headed and staffed entirely with FAC employees. They, in turn, participate in teams with
9
employees from other entities in the FA Enterprise, including FATIC, in developing and
10 . filing new rates with the CD!, and performing other actuarial activities directly related to
11
the business of insurance. FAC officers and employees are engaged in such operations
12
as: title market development, title industry relations, public relations and publicity, title
13
technology development, developing title agencies, and strategic planning for the title and
14
related operations ofFATCO and FATIC. According to the sworn testimony of FAC' s
15
PMQ on business relationships among the defendants, FAC gives "guidance" to its
16
subsidiaries, who "understand" that FAC "has essentially control" over the subsidiaries
17
(e.g., FATCO and FATIC). FAC employees during the class period carried out the key
18
function of regulatory compliance enforcement within FATIC and FATCO. These FAC
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compliance employees developed and transmitted mandatory internal guidelines for use
20
by FATCO and FATIC employees in the title and escrow fields. The failure ofthese
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FAC compliance officers to do their jobs adequately was a proximate cause of the class
22
representative's injuries herein. Parker Kennedy, as an officer ofFAC, has, for example,
23
given directives regarding rate filings to FATIC executives. When theCDI has taken
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regulatory action against the FA System it required not only FATIC and FATCO to be
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parties to the settlement agreements, but it also required FAC to do so. The same single
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individual officer executed settlement docmnents on behalf of each entity simultaneously
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in resolving CD! disputes.
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xx.
1
2
FAC employees prepare SEC lO-K filings. In these, FAC
employees interchangeably use the tenn "TIle Company" to mean, at times, "FAC" and at
3, . other times (within the same document) to mean, collectively, FAC, FATIC, FATCO and
4
the other subsidiaries. FAC has never filed a "disclaimer of affiliation" (under the
5
Insurance Holding Company Systems Act) for either FATCO or FATIC, establishing the
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presumption that those affiliates are controlled by FAC within the meaning of the
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Insurance Holding Company Systems Act.
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FAC officers, executives, directors, agents or employees
XXI.
authorized and/or ratified all of the conduct alleged herein.
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xxii.
The activities ofFATCO are "direct operations ofFirst
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American Title Insurance Company." (Hollenbeck Depo., 49:4-8.)
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xxiii. On June 27, 2006, FA presented a written 'Title and Escrow
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Services Proposal." (Exh. 1, at NUWI 1-9.) The proposal bore the designation "First
17
American Title Insurance Company" on the first page. (Exh. 1, at NUWI 1.) The third
18
page states: "First American Title Company is a worldwide title insurer and the number
19
one underwriter in the nation.... our principal business is the issuance of title insurance
20
and the provision of related real estate services and products." On the same page, as well
21
as on page six, defendants refer to themselves as "First American Title." (Exh. 1, at
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NUWI 3, 6.) On the fourth page, defendants refer to themselves as "First American."
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(Exh. 1, at NUWI 4.)
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CLASS ALLEGATIONS
7.
Plaintiff brings this action on his own behalf and on behalf of all persons
4
similarly situated pursuant to Code of Civil Procedure section 382. The class that
5
plaintiff represents is composed of all persons who sold or purchased property located in
6
the State of California, and paid for title insurance issued by First American and/or its
7
affiliates, and:
8
a.
escrow fee prior to October 8, 2007;
9
10
b.
Who were charged by First American more than $15 .OO/as a wire
transfer fee;
11
12
Who were charged by First American more than $60.00 as a sub-
c.
Whose transaction involved a federally related mortgage loan, and
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who were charged by First American for messenger fees where no
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such services were rendered, or where First American has no
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independent documentation that a messenger fee was actually
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incurred, or where the amount charged was greater than the amount
17
incurred by First American;
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d.
Whose transaction involved a federally related mortgage loan, and
19
who were charged by First American for overnight delivery fees
20
where the amount charged was greater than the amount incurred by
21
First American; or
22
e.
Where the business source was a real estate intermediary (i.e.,
23
realtor, real estate broker or agent, escrow company, lender, attorney,
24
or mortgage broker) who received, directly or indirectly, any
25
cOlmnission, compensation, kickback, or other consideration or thing
.26
ofvalue from First American.
27
Each of the above classifications a-e is alternatively alleged to constitute a separate
28
subclass, class, or classes. The number of class members identified is so numerous that
12
1 joinder of all members is impracticable. The number of class members is indeterminate at
2
the present time, but it is larger than can be addressed by joinder.
3
4
8.
Excluded from the class are the defendants herein; officers, directors or
5
employees of any defendants; any entity in which any defendant has a controlling interest;
6
affiliates, legal representatives, attorneys, heirs or assigns of any defendant; the members
7
of the immediate families of the defendants; and any federal, state or local governmental
8
entity, and any judge, justice, or judicial officer presiding over this matter, and the
9
members of their immediate families and judicial staffs.
10
11
12
9.
Disposition ofthe claims of class members in a class action rather than
individual actions will benefit the parties and the Court.
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There are common issues oflaw and fact among the plaintiff class which
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predominate over any questions affecting only individual members.
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11.
Plaintiff Kirk is a member of the class he seeks to represent. Members of
18
the class are ascertainable from defendants' records and/or records of third parties
19
accessible through discovery. First American is one of the largest suppliers of data in the
20
world, and has sophisticated data management and record keeping programs. First
21
American maintains searchable databases, including searchable records of the sources of
22
business for title transactions.
23
24
25
12.
The claims of plaintiff Kirk are typical of those of the plaintiff class, and he
will fairly and adequately represent the interest of the class.
26
27
28
13.
There is no plain, speedy or adequate remedy other than by maintenance of
this class action because plaintiff is informed and believes tllat damage to each member of
13
the class is relatively small, making it economically unfeasible to pursue remedies other
2
than by way of a class action.
3
4
14.
Plaintiff Kirk and the class bring this action to vindicate and enforce
5 important rights affecting the public interest. They are therefore entitled to an award of
6
attorneys fees under Code of Civil Procedure section 1021.5 for bringing this action.
7
8
9
10
11
12
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19
20
21
22
23
24
25
26
27
28
14
VENUE AND JURISDICTION ...
1
2
3 t,
4
15.
Venue. Plaintiff Kirk's interactions with First American, during the First
American transaction, took place in large part in the County of Los Angeles. Further,
5 pursuant to Local Rule 2.0(b), this is the type of action that must be filed in the Central
6 District. Venue as to each defendant is proper in this judicial district pursuant to Business
7
& Professions Code section 17203, and Code of Civil Procedure sections 395(a) and
8 395.5. Each defendant either maintains an office, transacts business, has an agent, or is
9 found in the City and County of Los Angeles, and is within the jurisdiction of this Court
10
for purposes of service of process. The unlawful acts alleged herein had a direct effect on
11
the consumers within the State of California, including those within the City and County
12
of Los Angeles. Additionally, the trade and commerce described herein isfcarried out in
13
whole or in part in the State of California and within the City and County of Los Angeles.
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14
Over fifty percent of the plaintiff class are residents of the State of California.
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Jurisdiction is proper in this Court. The claims alleged here are
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originally cognizable in the courts. (See, e.g., Jonathan Neil & Assoc. v. Jones (2004) 33
18
Ca1.4th 917, 933.)
19
20
17.
Federal jurisdiction does not exist. The amount in controversy as to class
21
representative Kirk does not exceed $75,000.00, including interest and any pro rata award
22
of attorneys' fees and costs. The damages, attorneys' fees and costs of individual class
23
members may not be aggregated to meet the federal jurisdictional amount. The
24
defendants are citizens of the State of California.
25
26
18.
The CDI does not have exclusive jurisdiction (no safe harbor exists),
27
the primary jurisdiction doctrine does not apply, and the administrative exhaustion
28
doctrine does not apply for, among other reasons:
15
_
.. ..._ . _ - - - - - - - - - - - - - -
1
a.
This lawsuit does not concern "rate-making" / "rate-setting", i.e., the
2 process of establishing rates, amending rates, changing rates, lowering or raising rates.
3 This lawsuit does not challenge FA's rates. It does not contend that FA's rates are too
4 high. It does not seek to reduce FA's rates. The class representative and the class are not
5 seeking a rate inconsistent with the filed rate. And, this lawsuit does not allege "rate
6 fixing," i.e., this lawsuit does not allege "concerted action" or other antitrust conduct by
7 multiple title insurers. It does not allege that FA acted in concert with anyone, or more,
8 of its competitors to achieve any goal whatsoever, including but not limited to rate fixing
9 or restricting competition.
10
11
b.
Accordingly, there is no "safe harbor" for the misconduct
12
complained of here. Here, FA charged more than the filed rate for sub-escrow and wire
13
transfer services. Here, FA charged an overnight delivery fee in an amount greater than
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the charge it incurred. Here the FA Enterprise charged for messenger fees, where such
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15
fees were not paid in the amount charged and/or the FA Enterprise has no documentation
16
that they were paid. Here, FA gave unlawful inducements to real estate intermediaries to
17
obtain title business. At best, the rate structure First American drafted and filed, and
18
which was in effect during the class period, contained ambiguities. FA should have
19
construed any ambiguities in the rate structure (which it itself drafted and filed) in favor
20
of the customer. Rather, FA construed any such ambiguities in its own favor, to the
21
detriment of the class members.
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c.
Nowhere did the Legislature explicitly prohibit liability for any such
24
misconduct. Nowhere did the Legislature specifically permit any ofthese practices.
25
Nothing in the Insurance Code creates a "safe harbor" from liability for any ofthese acts
26
and omissions. (Cel-Tech v. Los Angeles Cellular (1999) 20 Ca1.4th 163, 183-184 (to be
27
a safe harbor, "another provision must actually 'bar' the action or clearly pennit the
28
conduct"); Aron v. V-Haul (2006) 143 Cal.AppAth 796,804 (courts "may not create
16
1
'implied safe harbor(s)'''); McKell v. Wash. Mut. (2006) 142 Cal.App.4th 1457, 1474
2
(the statute must "specifically permit[]" the challenged practice); Krumme v. Mercury
3. (2004) 123 Cal.App. 4th 924, 940 n. 5 (the statute "must explicitly prohibit" liability).)
4
5
d.
Insurance Code section 12414.29 does not create a safe harbor. In
6
Quelimane v. Stewart Title (1998) 19 Ca1.4th 26, 45, the California Supreme Court held
7
that Section 12414.29 preempts only local regulation:
8
9
10
11
12
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First American argues, however, that DCL actions against title
insurers are precluded by the last sentence of section 12414.29 ...
We disagree. FIrst Americall's argumellt igllores the remaillder of
the selltellce - 'llotwithstalldillg allY localregulatioll or ordinallce'
- wltich makes it clear tltat tlte legislative purpose was to preempt
localregulatioll, 1l0t to exempt title illsurersfrom otlter state laws
goveming unfair busilless practices.
13
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e.
Insurance Code section 12414.26 also does not create a safe harbor.
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In Quelimane, the Supreme Court rejected defendants' contention to the contrary: "the
16
court [below] held that Insurance Code sections 12414.26 and 12414.29 precluded
17
plaintiffs action. We do not agree." (Id. at 44.) The California Supreme Court
18
explained that the exclusive jurisdiction of Section 1241.26 is "restrict[ed] to rate-making
19
related activities," it does not extend to non-application or misapplication of filed rates.
20
(Id. at 47.) Failing to apply filed rates is distinct from ratemaking. (Donabedian v.
21
MercUlY Ins. (2004) 116 Cal.AppAth 968,974.) Donabedian held that the twin statute
22
applicable to auto insurers, Section 1860.1, did not apply to claims for failure to apply the
23
filed good driver discount:
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24
25
26
27
28
A separate concern is whether the optional rating factors, as
applied, comply with the Insurance Code. This is a critical
distinction, and it is the issue that was before the trial court in
the present case. It is possible for an insurance carrier to
file with the Department a rate filing and class plan that
satisf(y) all the ratemaking components ofthe regulation,
17
1
2
3
4
and still result in a violation of the Insurance Code as
applied. Such a (situation) would not involve a question of
rates, but rather, it could easily involve the very separate,
factual question of how the components of the class plan are
applied towards members of the public.
5
(Id. at 993.) And, SCIFv. Superior Court (2001) 24 Cal.4th 930, 938, held that the twin
6
statute applicable to workers comp insurance, Section 11758, did not immunize the
7
8
defendant from class action liability since the action "does not challenge the method by
which the rate or premium charged was set." In the title insurance context, the federal
9
courts have also distinguished between rate-making and rate-application to reject similar
10
"safe harbor" arguments based on the filed-rate doctrine. (See, e.g., Lentini v. Fidelity (D.
11
Conn. 2007) 479 F. Supp.2d 292,300-301; Randleman v. Fidelity (N.D. Ohio 2006) 465
12
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F.Supp.2d 812, 823).) For example, in Blaylock v. First American (W.D. Wash 2007)
13
504 F.Supp.2d 1091, First American argued that "the filed rate doctrine precludes
14
Plaintiffs' claims because [they] essentially challeng[e] rates that are established by a
15
regulatory agency." (ld. at 1099.) Blaylock rejected the argument because the plaintiffs
16
"do not directly challenge the reasonableness of the rate, or the quality ofthe service."
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18
(Id. at 1103.) Moreover, Section 12414.26 -like its twins, Sections 11758 and 1860.1applies to only "concerted activity otherwise barred by the antitrust laws, and not to the
19
individual misconduct ofan insurer. .." (SCIF, 24 Cal.4th at 938; accord Donabedian,
20
116 Cal.AppAth at 990.)
21
22
f.
The type of relief sought here is not available through administrative
23
remedies from the CDI, as under Insurance Code section 12414.13. This lawsuit seeks
24
class relief for damages caused to the class members by FA's past and continuing
25
wrongful conduct (e.g., charging a messenger fee where such fee was not incurred, or
26
paying inducements for the referral oftitle business, or charging more for wire fees than
27
tile $15.00 filed rate) and FA's past wrongful conduct (charging a sub-escrow fee in
28
18
1 excess of $60 prior to October 8, 2007). It seeks class relief in the fonn of damages,
2
restitution, and disgorgement of monies wrongfuIIy taken from class members by FA's
3
failure to properly apply the filed rates and by FA's charging fees for services for which
4
no filed rates existed precluding the charging of such fees. It does not seek a fine or an
5
administrative penalty. The CDI is not authorized to award damages. It is not authorized
6
to afford relief in equity. It is only authorized to order disgorgement of excessive filed
7
rates, and here the class does not claim the filed rates themselves are excessive, but
8
instead that FA charged in excess of the filed rates. FinaIIy, the CDI is not authorized to
9
afford class relief As in Rose v. City ofHayward, the statutory provision for
10
administrative review "is premised upon an individual claim and makes no mention of
11
class relief." (Rose v. City ofHayward (1981) 126 Cal.App.3d 926,934.) The reference
12
to any "person," per the court of appeal, "clearly contemplates individualized treatment of
u..~",
13
claims ... rather than class actions."
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g.
AdditionaIIy, the administrative complaint procedure (Insurance
16
Code section 12414.13) is permissive, not mandatory. "May" means "may"; it does not
17
mean "shall." (See, e.g., Sierra Club v. San Joaquin (1999) 21 Ca1.4th 489,499;
18
Woodb,!,ry v. Brown-Dempsey (2003) 108 Cal.App.4th 421, 423.)
19
20
h.
There is no truth to the contention that title insurance is "heavily
21
regulated" by the CDr. California is a "file and use" state. "File and use" is the lightest
22
fonn of rate regulation, second only to "no regulation." The CDI is not empowered to
23
approve rates. The CDI is not empowered to determine a rate to be excessive, unless it
24
first makes a finding that the entire title insurance industiy in California is
25
noncompetitive. The CDI has never determined a rate to be excessive. According to CDI
26
records, the CDr has only twice rejected an FA filing, both times on technical grounds.
27
Once was because FA had miscalculated the effective date of the new rate. FA
28
recalculated and resubmitted that rate, and it was used. The other filing was rejected
19
1 because the product in question was not title insurance. Whether or not the CDI rejected
2
any FA filings prior to 1997 is not known, because the CD! has misplaced or
3 . inadvertently destroyed all FA filings prior to that date and cannot retrieve or access
4
them.
5
6
7
I.
This Court is better equipped than the CDI to decide the issues in
this ligation. Resolution of the issues in this lawsuit do not require the specific, technical
8 expertise of the Department ofInsurance. Instead, the issues here, such as First
9 American's liability to the class for its policy and practice of deceiving consumers, is
10 particularly suited to the courts. "The subject of this suit ... is deception.... That is not
11
a topic about which the commission would have more expertise than the trial court, or
12
even as much experience." (Cundiffv. GTE (2002) 101 Cal.App.4th 1395, 1412-13.)
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23
24
25
26
27
28
20
- - - - - - - - - - - - - - - _.. __. _ - - -
CLAIMS OF NAMED PLAINTIFF
1
2
19.
3.
4
In or about February 2004, plaintiff Kirk sold real property located at 20621
Tulsa Street, Los Angeles, California 91311. First American acted as the title insurer and
5 title company. In so doing, First American overcharged plaintiff for title related services.
6
7
20.
Plaintiff was charged by First American $100.00 as a sub-escrow fee. (True
8
and correct copies of the Invoice, Final Invoice, and Settlement Statement drafted by
9
defendants, reflecting the $100 sub-escrow fee, are attached hereto, and incorporated
10
herein by reference, as Exhs. 2, 3 and 4.)
11
12
21.
First American is required to charge the rates it has filed with the California
13
Department ofInsurance ("CDI"). These provided for a $60.00 sub-escrow fee, up
14
through October 8, 2007. Effective October 8, 2007, i.e., after the filing of this lawsuit,
15
First American filed with the CDI a rate of $125 for sub-escrow services, and eliminated
16
the tenn "minimmn" from the rate.
17
18
22.
Plaintiff alleges that as a general business practice, First American charged
19
more than the $60.00 sub-escrow fee pennitted by First American's then-effective filings
20
with the cm. There was no lawful basis or justification for First American to charge
21
more than $60.00 in this or the other class member's transactions during the period before
22
the $125 rate went into effect.
23
24
23.
Plaintiffwas charged by First American $25.00 as a wire-transfer fee. (A
25
true and correct copy of First American's Payoff Proof Sheet, reflecting a $25.00 wire-
26
transfer fee, is attached hereto, and incorporated herein by reference, as Exh. 5.) Plaintiff
27
is infonned and believes, and on that basis alleges, that First American's filings with the
28
cm, which govern what First American is allowed to charge, provided and provide for a
--"----"_._~"~~~~
21
---------
"-----~---"-~---~-~-_._----~
I
$15.00 wire-transfer fee. Plaintiff is infonned and believes that as a general business
2
practice, First American charged and charges more than the $15.00 wire-transfer fee
3
stated in First American's filings with the CDr. There was no lawful basis or justification
4
for First American to charge more than $15.00 in this or the other class member's
5 transactions. First American has not filed with the CD! a $25.00 wire-transfer fee.
6
7
24.
Plaintiff was charged by First American $20.00 as a special messenger fee.
8
(A true and correct copy of the BUD-I for plaintiff's transaction, reflecting a $20.00
9
special messenger fee on the attachment, is attached hereto, and incorporated herein by
10
reference, as Exh. 6.) Plaintiff is informed and believes, and on that basis alleges, that
11
First American has no independent documentation evidencing that it incurred this fee.
12
Plaintiff is infonned and believes, and on that basis alleges, that First American incurred
13
no special messenger fee in connection with plaintiff's transaction, or did not incur a
14
special messenger fee as great as the $20.00 charged to plaintiff.
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25.
Plaintiff was also charged by First American a $15.00 Federal Express fee,
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17
which constituted First American's overnight delivery charge. (See Exh. 5 (payoffproof
18
sheet), reflecting a $15.00 Federal Express fee; see also Exh. 6 (BUD-I, attachment),
19
reflecting a $15.00 Federal Express fee.) First American did not incur an overnight
20
delivery fee as great as the $15.00 charged to plaintiff, and in fact marked up the
21
overnight fee nearly 100 percent without disclosing that markup.
22
23
26.
The Real Estate Settlement Practices Act ("RESPA"), and related
24
regulations and pronouncements promulgated by the United States Department of
25
Housing and Urban Development, prohibit settlement service providers from charging
26
marked up or unearned fees. Plaintiff is infonned and believes, and on that basis alleges,
27
that part or all of the fees charged to plaintiff by First American as special messenger and
28
overnight fees constitute unearned fees and undisclosed markups.
22
--
~---~---_._-------
1
27.
Plaintiff is informed and believes, and on that basis alleges, that First
2
American directly or indirectly provided gifts, money, benefits, inducements, kickbacks,
3
or other consideration (collectively "inducements") to one or more real estate
4
intermediaries involved in plaintiff's transaction, which real estate intennediaries were
5
the source of plaintiff's business for First American. The real estate intermediaries
6
involved in plaintiff's transaction who received one or more inducements from First
7
American include, but are not limited to, Saliya De Silva, who acted as a real estate agent
8
on the transaction. Such inducements paid to or on behalf of Mr. De Silva include, but
9
are not limited to, a $1,000.00 check which Ron Olsen, First American's vice-president of
10
sales, delivered for Mr. De Silva not long after plaintiff's transaction, and the provision of
11
free access to electronic data bases, computer programs, and other aids useful to Mr. De
12
Silva's business, all of which had economic value. First American's Vice President, Ron
13
Olsen, and sales managers Rusty Erb and Lou Lovit, authorized that at least one check be
14
issued at the request and for the benefit of real estate intermediary Saliya De Silva. They,
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together with Encino sales manager Elaine Lovit, authorized that Saliya De Silva, and
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16
other real estate intermediaries, receive free materials that Mr. De Silva could use in
17
marketing his business, free access to computer programs and online databases, some of
18
which are password protected, and all of which had value. All of this was part of a
19
common plan and scheme authorized by First American officials, including by officials of
20
FAC, in the shared home "campus" of Santa Ana, California to induce real estate
21
intermediaries to refer customers like plaintiff to First American.
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28.
First American's conduct and marketing regarding how much it charges for
24
fees and services such as those at issue herein, is deceptive, misleading andlor fraudulent.
25
For example, First American fails to accurately and adequately publish or describe its
26
pricing that has been authorized by filings with the CD!, including charges for sub-
27
escrow, wire-transfer, messenger, and overnight delivery services.
28
23
1
2
29.
The CD! does not publish the rates First American is allowed to charge for
sub-escrow, messenger, overnight delivery and wire transfer, pursuant to First American's
3 . filings with the CD!. In fact, plaintiff is informed and believes, and on that basis alleges,
4
that the CD! has lost or misplaced many of the filings First American has made with the
5
Cm.
6
7
8
9
10
11
12
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As of2127/07 we confirmed with the Department of
Insurance, Rate Filings Div for Title Insurance in Los
Angeles. We spoke to the lead supervisor for that division
Mr. Doug Barker. He confirnled with us, there are no filings
from 1980 to 1996 for Title Insurance. Prior to 95 these files
were handled by a different branch completely and were not
tracked or filed with individual numbers. He also has no
knowledge of where these files would be. We also spoke to
the Dept of Insurance in San Francisco - they only handle
Property and Casualty insurance and Sacramento handles
licensing. All rate filings are located through the Los Angeles
location for future purposes.
At this time we have located 4 filings for 1997. There was
one for 1996, however it is confirmed lost, misfiled, never
archived. Mr. Barker is unsure but does not believe it is
retrievable. (Letter from Spectrum Photocopying, 2/28/07.)
18
19
20
21
22
23
24
25
26
27
28
24
I
STATUTE OF LIMITATIONS / DELAYED DISCOVERY / ESTOPPEL
2
3
30.
Plaintiff Kirk and the class members did not discover, and could not
4
reasonably have discovered, defendants' misrepresentations, omissions, and other
5
misconduct alleged herein until a date within the statute of limitations for each and every
6
cause of action alleged herein. Plaintiffs were ignorant of the true facts, and actually and
7
reasonably relied on defendants' misrepresentations, failure to disclose and other
8 misconduct alleged herein. As a matter of business practice, First American, through the
9
actions and decisions of its officers and executives, voluntarily assumed a heightened
10
duty to its customers, including to plaintiff and the class. First American, through its
11
officers and executives, at all times knew, and at all times admitted, that there was an
12
imbalance of information between First American, as title insurer and escrow, on the one
13
hand, and its customers, including plaintiff and the class, on the other hand. Accordingly,
14
First American invited its customers to place their trust and confidence in First American.
zo:::ooo-
15
Plaintiff and the class members did place their trust and confidence in First American and
m
16
assumed and expected that First American would comply with the law and not charge any
17
fee not authorized under the law. Plaintiff and the class members justifiably relied on
18
First American to charge only fees authorized under the law.
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20
31.
Plaintiff Kirk did not discover the facts relating to the overcharging and
21
other misconduct herein alleged until, at the earliest, events in January and February
22
2007. Jeffrey Sjobring was the purchaser of Mr. Kirk's home in the transaction in
23
question. In approximately late January 2007, Mr. Sjobring contacted Mr. Kirk and stated
24
to him Mr. Sjobring's belief that both Mr. Sjobring and Mr. Kirk had been overcharged
25
on closing costs in connection with their real estate transaction. This was the first time
26
Mr. Sjobring had stated this to Mr. Kirk. About a week later, Mr. Sjobring asked Mr.
27
Kirk to contact the real estate broker involved in their transaction, Mr. Sal De Silva. Mr.
28
Sjobring was involved in a lawsuit with First American at that time. Mr. Kirk had a
25
1 better relationship with Mr. De Silva than did Mr. Sjobring. Mr. Sjobring stated in
2
substance that he wanted Mr. Kirk to try to obtain infonnation, and perhaps a witness
3" statement, from Mr. De Silva for Mr. Sjobring. Mr. De Silva stated to Mr. Kirk in
4
February 2007 that Mr. De Silva did receive certain consideration for referring business
5
to First American. One of the items mentioned was the $1,000 check for Mr. De Silva's
6 tsunami relief project. Another was free computer database access. Until that time, Mr.
7 Kirk had been ignorant of those facts. Shortly after obtaining these facts from Mr.
8 DeSilva in February 2007, Mr. Kirk placed a call to Mr. Sjobring and to counsel for Mr.
9
Sjobring in the First American litigation, Bernie Bernheim. Bernheim clarified that they
10
wanted to find Mr. De Silva. In late February 2007, around Febrary 25 to 27; 2008, Mr.
11
Kirk agreed to, and did, provide Bernheim and Sjobring with a witness statement
12
regarding the matters that De Silva had stated earlier in the month about First American
13
inducements for the referral of business. The meeting around February 25 to 27, 2008, to
14
provide the witness statement, took place at 7605 Embassy Avenue in Encino, California.
15
At the meeting, Mr. Sjobring opined that First American had defrauded Mr. Sjobring.
16
Thereafter, Mr. Kirk retained the Bernheim Law Firm to represent him, and the putative
17
class, in the instant litigation.
18
19
32.
In 2005 and 2006, plaintiff Kirk did not socialize with Mr. Sjobring except
20
to have lunch with him on one occasion at an Islands restaurant. At that lunch, they did
21
not discuss Sjobring's First American lawsuit, nor did they discuss the real estate
22
transaction at issue here.
23
24
33.
Mr. Kirk filed his complaint on June 15,2007, Le., approximately four
25
months after the conversations with Sal De Silva and Jefferey Sjobring in which he
26
learned certain facts suggesting some of the misconduct alleged in this lawsuit, and
27
suggesting to him that he seek the advice of professionals, Le., of counsel.
28
26
1
2
34.
Plaintiff Kirk could not have reasonably discovered defendants' misconduct
earlier because, among other things, plaintiff Kirk had no reason to believe that First
3 American was charging fees for services not rendered, fees in excess ofthe filed rates,
4 and fees including a nondisclosed markup in violation ofRESPA. Defendants did not
5 disclose that, although they had charged him for a special messenger service, they had
6 never used a special messenger service. Defendants did not disclose that the actual
7 charge from Fed Ex for which they had billed Mr. Kirk $15, was in fact not $15, or close
8 to $15, but was in fact about half that amount. Defendants did not disclose to Mr. Kirk
9 that their filed rate for wire service was $15, and that the law precluded defendants from
10
charging more than that. Defendants did not disclose to Mr. Kirk that in charging him
11
$100 for sub-escrow service, they had exceeded their filed rate. Instead, by creating
12
documents, such as the Invoice (Exh. 2), the Final Invoice (Exh. 3), the Settlement
13
Statement (Exh. 4), and the Payoff Proof Sheet (Exh. 5), and transmitting same to Mr.
14
Kirk's escrow for payment, First American represented to plaintiff and the class members
15
that it was entitled to charge for the fees. Defendants also took affirmative steps to
16
conceal the true facts.
17
18
35.
No reasonable title customer would check a title insurance company's
19
filings with the cm to determine whether the amount represented by the title insurer as
20
the correct charge was the CDI-filed rate, nor would they demand receipts or back-up
21
documentation for messenger or overnight delivery services. A reasonable title insurance
22
customer trusts and relies on its title insurance company to charge the appropriate and
23
lawful price for services performed and products sold. Plaintiff trusted and relied on First
24
American in paying for the services in the amount charged. In not discovering
25
defendants' misconduct earlier, plaintiff at all times acted reasonably. The fact that
26
defendants' filed rates are technically a public record is of no bearing. As the Court of
27
Appeal recently reiterated: "We have found no case suggesting the existence of public
28
records precludes the application of the delayed discovery doctrine..." (FDIC v. Dintino
27
I
(2008) 167 Cal.App.4th 333, 353.) Moreover, knowledge of filed rates would not have
2 placed, and did not place, Mr. Kirk on notice as to:
3
a)
Whether or not a special messenger was actually used,
4
b)
Whether or not inducements or kickbacks were paid for the referral
of business, and
5
c)
6
The actual Fedex charge and whether it was marked up.
7
8
9
10
36.
Moreover, First American's own executives have admitted that First
American's filed rate for sub-escrow fees does not allow a consumer to determine the
amount ofthe fee, even if the consumer were to check the rate.
11
12
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37.
16
•
Assistant Vice President Asanti further testified:
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17
18
(Asanti Depo., Confidential, 203:24-204:2.)
19
20
21
22
38.
Assistant Vice President Asanti further testified as to the filed sub-escrow
rate:
23
(Asanti Depo., Confidential, 210:1-9.)
24
25
39.
Ms. Asanti is an Assistant Vice President of Underwriting, for defendant
26
FATIC in the Home Office. She has II years of service to First American, all of it in the
27
Home Office underwriting department. She reported directly to the head of underwriting,
28
Senior Vice President and PMQ Clifford Morgan. She is author of virtually every (if not
28
--~~-- ~-_.- ----~---
- - --------~
1
every) rate and form filing letter to the CDr since October 2004, and many before that.
2
She has "a perfect record of having received only positive conunentary in [her] 11 years
3 .of reviews at First American." First American selected her to be on the committee that
4
completely overhauled First American's rates in 2007. She works directly with the filed
5
Schedule of Fees most days at her job. Since she has worked at First American for more
6
than 2,750 days, this means she has worked directly with the schedule of fees well over
7
1,000 separate times. She has also served as First American's National Training
8
Coordinator. (Asanti Depo., 124:23-125:4) She is "very attentive to detail," according to
9
senior escrow manager Nancy Tarr, who herself has 28 years of service to First American
10
and who defendants designated as their PMQ on loan tie in fees.
11
12
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15
16
17
18
40.
Defendants' Chief Actuary testified:
•
•
(Ruhm Depo., Confidential, 236:9-16.)
19
20
41.
21
22
23
24
25
26
•
•
(Ruhm Depo., Confidential, 238:23-239:6.)
27
28
29
1
2
42.
Accordingly, the filed rate for sub-escrow could not possibly have put Mr.
Kirk or any members of the class on notice to file suit, even had they lmown of the rate
3" and reviewed it.
4
5
43.
Defendants knew the true facts regarding:
6
a.
7
Their failure to comply with the filed rate for sub-escrow, and that
the charge to Mr. Kirk exceeded same;
8
b.
9
The $15 filed rate for wire service and that the charge to Mr. Kirk
exceeded same;
10
c.
11
12
Their charge for special messenger service where none had been
used;
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Their near doubling of the actual cost ofthe FedEx charge;
e.
The inducements they had paid to Mr. Kirk's real estate
intermediaries, such as the $1,000 check and the free computer
database use.
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17
18
19
44.
Defendants intended that plaintiff and class members act in reliance on their
20
misrepresentations and misconduct alleged herein. Plaintiffs were ignorant of the true
21
facts, and actually and reasonably relied on defendants' misrepresentations, failure to
22
disclose and other misconduct alleged herein, to their detriment. Had Plaintiff and the
23
class members known the true facts, they would not have paid more than $60 for sub-
24
escrow, would not have paid more than $15 for wire transfer fees, would not have paid at
25
all for messenger charges that were not incurred or could not be documented, and would
26
not have paid more than actual charge for FedEx.
27
28
30
1
2
45.
First American intended that its misconduct alleged herein, including but
not limited to, preparation and transmission of documentation listing false and fraudulent
3" charges, including the documents attached hereto as Exhibits 2 through 6, be acted upon
4
by plaintiff and class members. First American's intent is evidenced in, and manifested
5 by, among other things, its acts of creating and sending out the false and inaccurate
6
invoice attached (Exhs 2,3) on its own letterhead, creating and sending out the false and
7 inaccurate settlement statement (Exh. 4) on its own letterhead, and creating and sending
8
out the false and inaccurate payoff proof sheet (Exh. 5). The foregoing examples are in
9 the nature of illustrations, not limitations.
10
11
12
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46.
Plaintiff and class members were at all times ignorant of the true state of
facts, including that First American unlawfully overcharged for the services alleged
herein. First American undertook the publication of its CDr-filed rates in rate summaries
for the public, but did not publish the fees at issue here. First American falsely informed
plaintiff and the class members that it paid for messenger and overnight delivery services
which it did not pay for and/or that it paid more for these services than it actually did.
First American did not disclose to plaintiff or class members that unlawful inducements
were paid for title business.
19
20
21
47.
Plaintiff and the class members relied on First American's misconduct
22
alleged herein. First American's false and fraudulent charges for sub-escrow, wire-
23
transfer, messenger, and overnight delivery services were communicated to plaintiff's
24
escrow agent, who paid those charges from plaintiff's funds. Plaintiff's escrow agent,
25
acting in the course and scope of the agency, was entitled to reasonably rely on the
26
charges for the services communicated by First American (or any other settlement service
27
vendor), including but not limited to the documents attached hereto as Exhibits 2 through
28
6. Plaintiff is informed and believes, and on that basis alleges, that it is the standard in
31
1 the escrow industry to accept the billing charges submitted by settlement service vendors,
2
including title insurers and title companies, without requesting receipts or researching
3
cm rate filings.
4
5
6
7
48.
By their conduct, defendants have waived, forfeited, and/or are estopped
from asserting the statute oflimitations and other affinnative or jurisdictional defenses to
this action.
8
9
10
11
12
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19
20
21
22
23
24
25
26
27
28
32
1
FIRST CAUSE OF ACTION
2
(Breach of Contract)
3
(By all plaintiffs against all defendants)
4
5
6
49.
Plaintiff realleges and incorporates by reference the allegations contained in
7 the preceding paragraphs of this complaint, as though fully set forth herein.
8
9
50.
BREACH OF WRITTEN CONTRACT:
51.
There were writings evidencing and memorializing the contract. The
10
11
12
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writings evidencing and memorializing the contract between Kirk on the one hand, and
FATIC, FATCO and FAC on the other, were drafted by employees and/or agents of
FATIC, FATCO, FAC or all three. These writings were:
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a)
The Invoice attached as Exhibit 2.
17
b)
The Final Invoice attached as Exhibit 3.
18
c)
The Settlement Statement attached as Exhibit 4.
d)
The Payoff Proof Sheet attached as Exhibit 5.
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19
20
21
22
23
24
25
Plaintiffs are infonned and believe that these writings were drafted by First American title
officer Michelle Pasqua!. The evidence is in conflict as to whether she was an employee
of defendant FATIC, FATCO or both. Plaintiffs allege she was an agent of both, and an
agent of FAC as well, at the time she drafted these contract documents and transmitted
them to plaintiffKirk's representatives.
26
27
28
52.
Parties to the written contract. The written documents identifY plaintiff
Patrick Kirk as a party. They also identifY defendant FATCO as a party (Exhs. 2-5).
33
1 Plaintiffs further allege that FATIC, FAC and FATCO were partners and joint venturers
2
of each other. "All partners are jointly and severally liable for all partnership
3 . obligations." Corporations Code section l6306(a). Accordingly, plaintiffs allege this
4
cause of action against all three defendant entities. Plaintiffs allege that regardless of
5 which of the partners drafted the written offer and sent it to plaintiffs agent (who
6
accepted it), each partner is liable for the breach of contract. Thus, the cause of action is
7
against all three.
8
9
10
11
12
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53.
Plaintiffs further allege that Pasqual, who drafted the writings
memorializing the contract, was at all times acting as the actual or ostensible agent of all
three defendant entities. In pleading, "less particularity is required where the defendant
may be assumed to have knowledge equal to that possessed by the plaintiff."· (Doheny
Parkv. Trucklns. Exchange (2005) 132 Ca!.AppAth 1076, 1099.) It is alleged that
defendants, and each of them, have more knowledge than plaintiff as to the employer of
Pasqua!.
17
18
19
54.
Written material terms. The writings drafted by defendants contained the
following written material tenns:
20
a.
"Description of charge...Sub-Escrow fee" (Final Invoice, Exh. 3);
21
b.
"Description of charge...Sub-Escrow fee" (Invoice, Exh. 2);
c.
"Charge Description...TitlelEscrow Charges to: Sub-Escrow Fee-
22
23
First American Title Company" (Settlement Statement, Exh. 4);
24
25
d.
Proof Sheet, Exh. 5);
26
27
28
"FATCOLA Wire Fees... Disbursements to FATCOLA" (Payoff
e.
"FATCOLA Fed Ex Charges... Disbursements to FATCOLA"
(Payoff Proof Sheet, Exh. 5);
34
f.
"Charge Description...Special Messenger/courier fee - First
American Title Company" (Settlement Statement, Exh. 4).
2
3c
4
5
6
7
8
9
10
11
55.
Additional material terms incorporated into the contract by operation
of law. In California, "legally prescribed rates become part of the parties' contract."
(Gardner v. Basich Bros. (1955) 44 CaI.2d 191, 195.) Thus, a material term of the
contract was that defendants would correctly calculate and apply the rate for wire transfer
fees, and sub-escrow fees. In addition, federal statutes and regulations pertaining to
RESPA are incorporated into the contract by operation of law. Therefore, an additional
material term of the contract is that there would be no unearned fees, and that any markup
would be disclosed.
12
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14
56.
Defendants' breach of the contract. Defendants breached the contractual
15
obligation to adhere to the filed rates for wire transfer service and for sub-escrow,
16
incorporated by law into the agreement. Defendants further breached the contract by not
17
actually performing special messenger/courier services, for which they charged.
18
Defendants further breached the contract by charging an unearned fee and by charging a
19
nondisclosed markup for overnight delivery, by violating the federal laws and regulations
20
implementing RESPA, incorporated into the contract by operation of law, and by other
21
conduct to be proven at trial.
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22
23
57.
BREACH OF IMPLIED CONTRACT, pled alternatively:
58.
Nature ofimplied contract. "There is no difference between an express
24
25
26
27
28
and implied contract. ... While an implied in fact contract may be inferred from the
conduct, situation or mutual relation of the parties, the very heart of this kind of
35
1
agreement is an intent to promise." (Division ofLabor Law Eriforcement v. Transpacific
2
Transportation Co. (1977) 69 Cal.App.3d 268,275; Civil Code § 1621.)
3
4
5
6
7
8
9
10
11
59.
Conduct, situation and mutual relation of the parties which imply the
existence of a promise. First American provided sub-escrow and wire transfer services,
and ovemighted documents by FedEx, and billed plaintiffs for those services. First
American also billed plaintiffs for special messenger/delivery services. These charges
were all paid from plaintiffs' funds. Conduct from which the contract can be inferred
includes defendants' creation and transmittal of exhibits 2 through 6. Plaintiffs' conduct
from which the contract can be inferred includes his act of paying to defendants the
charges they billed in connection with these services.
12
13
14
15
60.
Parties to the implied contract. The parties were the same, whether the
contract was written or implied.
16
17
61.
Material terms ofthe implied contract. The material terms of the implied
18
contract were to perform sub-escrow, wire transfer, overnight mail, and special
19
messenger/courier services, and to charge the "legally prescribed rates" which "become
20
part of the parties' contract" under Gardner, supra, and to comply with RESPA and the
21
laws and regulations implementing RESPA, including the obligation to charge fees
22
actually incurred and paid by First American, and/or to disclose markups.
23
24
25
26
27
28
62.
Defendants' breach ofthe implied contract. Defendants breached the
contractual obligation to adhere to the filed rates for wire transfer service and for subescrow, incorporated by law into the agreement. Defendants further breached the contract
by not actually performing special messenger/courier services, for which they charged.
36
----------------
------~-------~-------~
I
Defendants further breached the contract by charging an unearned fee and by charging a
2
nondisclosed markup for overnight delivery, by violating the federal laws and regulations
3
implementing RESPA, incorporated into the contract by operation of law, and by other
4
conduct to be proven at trial.
5
6
7
8
9
63.
Plaintiffs and the class paid consideration in the fo= of fees, and have
faithfully perfo=ed all obligations required to be perfo=ed by them under the tenns of
the contracts, except to the extent perfo=ance may have been excused by defendants'
conduct.
10
11
64.
12
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13
contract, plaintiffs and the class have been, and continue to be, damaged in an amount in
14
excess of the jurisdictional limits of this Court, including but not limited to excess fees
15
and premiums paid for, consequential damages including interest on monies plaintiffs and
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As a direct, proximate and legal result of defendants' breach(es) of the
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16 the class could and should have had, but which they did not have as a result of
17
defendants' breach(es) of contract, and other fees, expenses and costs to be proven at
18
trial.
19
20
65.
Plaintiffs and the class have also sustained other economic losses as a
21
direct, proximate and legal result of defendants' conduct, in an amount to be proven at
22
trial.
23
24
25
26
27
28
37
--------- ---------- ------------ - -
1
SECOND CAUSE OF ACTION
2
(Breach ofthe Implied Covenant of Good Faith and Fair Dealing)
3
4
5
6
7
66.
the preceding paragraphs of this complaint, as though fully set forth herein.
8
9
10
67.
The express and implied contracts identified in this action contained an
implied covenant of good faith and fair dealing, whereby defendants, and each of them,
11
agreed to perform their obligations in good faith, to deal fairly with plaintiff and the class,
12
and not to umeasonably deprive plaintiff and the class of economic benefits arising from
13
the contractual relationship.
14
15
68.
16
17
18
Defendants breached the implied covenants of good faith and fair dealing
arising from the contracts by acting umeasonably, as set forth herein, including, but not
limited to, the following:
19
a.
practice, in contravention of the then-applicable filed rate;
20
21
b.
22
23
Charging more than $60.00 as a sub-escrow fee as a general business
Charging more than $15.00 as a wire-transfer fee as a general
business practice;
c.
24
Charging for messenger fees, where such services were not rendered
at all, were not paid in the amount charged and/or defendants have
25
no documentation that they were paid;
26
d.
Charging for overnight delivery fees, in amounts greater than those
27
incurred by First American, and failing to disclose these markups;
28
38
~~ --~--------~--
---
e.
1
Providing, directly or indirectly, gifts, money, benefits, inducements,
2
kickbacks, or other consideration or things of value to real estate
3
intermediaries for referral of title insurance business; and
4
f.
5
Other unreasonable conduct alleged herein and/or to be proven at
trial.
6
7
8
9
69.
Defendants have engaged and continue to engage in a course of conduct to
further their own economic interests and in violation of its obligations to plaintiff and the
10
class. Defendants' conduct described herein constitutes part of defendants' overall
11
scheme to maximize their profits at the expense oftheir customers to whom they owe a
12
heightened duty of good faith and fair dealing. Defendants' conduct as described herein
13
constitutes an illegal pattern and practice so pervasive as to amount to a general unfair
14
and unlawful business practice.
15
16
70.
As a direct, proximate, consequential and legal result of said breaches ofthe
17
covenant of good faith and fair dealing by defendants, and each of them, plaintiff and the
18
class have been, and continue to be, damaged in an amount according to proof.
19
20
21
22
23
24
25
26
27
28
39
1
THIRD CAUSE OF ACTION
2
(Negligence)
3
4
5
6
7
71.
8
9
72.
Duty.
10 .
11
a.
12
13
14
Defendants had a duty to act toward plaintiffs and the class as would
a reasonable and prudent title company, title insurer, and agent of a title insurer, in the
same or similar circumstances.
15
b.
16
Defendants had a duty imposed under California law to charge
17
plaintiffs and the class members their filed rates and not more. The source of this duty
18
lies in Insurance Code section 12414.27, "Compliance with rate schedules," which
19
provides: "...no title insurer [or] underwritten title company... shall charge for any title
20
... service in connection with the business of title insurance, except in accordance with
21
rate filings which have become effective..." The source of this duty also lies in 10 Cal.
22
Code Regs. § 2556.1, which provides that "no title insurer, underwritten title company, or
23
controlled escrow company shall charge for any title policy or services ... except in
24
accordance with rate filings which have become effective..." First American is bound
25
by its own party admission as to the existence of this duty:
26
Q.
First American is required to charge the filed rates for title insurance
products and services and escrow services, correct?
A.
Yes.
27
28
40
(Clifford Morgan Depo., 338:16-19.)
2
3
The Court of Appeal held: "there must be inflexibility in the enforcement of the published
4
rate against all and every suggestion for relaxation. ... The rate when published
5
becomes established by law. It can be varied only by law, and not by act of the parties."
6
(Transmix CO/po v. Southern Pacific Company (1960) 187 Cal.App.2d 257,265.)
7
8
9
10
11
12
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19
20
c.
Defendants had a duty, as a rate filing entity, not to interpret an
ambiguous rate to give itself - versus the customer - the higher price. To the extent that
First American's rates are susceptible to multiple interpretations, or are otherwise unclear,
or contain conflicting rate provisions that could be separately applied to plaintiffs
transaction to yield different premiums, Transmix, supra, required First American "not to
insist on the interpretation which gives the higher rate." "If interpreted in one way" the
filing "will produce a higher, in another a lower, rate" First American was required to
give the benefit of the ambiguity to the plaintiffs. "In a situation of that kind," the
customer "who has to pay the freight may call the tune." (Id. at 268.) First American
breached this duty by giving itself the benefit of all ambiguities in its calculations of
plaintiffs charges, and those of the class. Had First American given plaintiffs the benefit
of any and all ambiguities, plaintiffs' premiums would have been lower.
21
22
d.
Defendants also had a duty under California and Federal law
23
(including California Financial Code section 50505 and 12 U.S.c. section 2607(b)) to not
24
markup fees for settlement services such as an overnight delivery fee. (McKell v.
25
Washington Mutual (2006) 142 Cal.AppAth 1457.)
26
27
28
41
e.
I
Defendants also had a duty under California and Federal law
2
(including California Insurance Code section 12404, California Penal Code section 64104,
3
and 12 U.S.C. sections 2607(a) and 2608) to not provide unlawful inducements for the
4
referral of title business. For example, Insurance Code section 12404(a) provides: "It is
5 unlawful for any title insurer ... to pay, directly or indirectly ... any consideration to any
6
person as an inducement for the placement or referral of title insurance." Penal Code
7
section 64104 provides that an "employee of a title insurer" who pays "directly or
8 indirectly, a commission, compensation, or other consideration ... as an inducement for
9
the placement or referral of title business, is guilty of commercial bribery" - punishable
10
by imprisomnent. And, Section 8(a) ofRESPA provides: "No person shall give ... any
11
... thing of value pursuant to ... any understanding that business incident to ... real
12
estate settlement services involving a federally related mortgage loan shall be referred ...
'"~
13
any persons who violate ... this section shall be ... liable to the ... persons charged for
m m'"
14
the settlement service." (12 U.S.C. section 2607(a).) RESPA further provides: "No seller
ZO::::O(Q'
15
of property that will be purchased with the assistance of a federally related mortgage loan
ro .......w '" c0
16
shall require directly or indirectly ... that title insurance covering the property be
17
purchased by the buyer from any particular title company." (12 U.S.C. section 2608.)
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19
20
21
73.
Breach of duty. Defendants breached those duties, and failed to act
reasonably and prudently, by engaging in the conduct alleged in this complaint, including
but not limited to the following:
22
23
a.
defendants' filed rates;
24
25
b.
28
Interpreting ambiguous rates in defendants' own favor instead of in
favor of defendants' customers;
26
27
Charging for sub-escrow and wire transfer fees in excess of
c.
Adding undisclosed, unearned markups to overnight delivery fees
and messenger fees;
42
d.
1
Invoicing and charging consumers for messenger fees where such
2
services were not provided, and/or where there is no documentation
3
that such services were provided or of the cost of same;
4
e.
5
Such other acts constituting breaches of duty to act reasonably and
prudently as may be proven at trial.
6
7
8
9
10
74.
Causation and Damages. Defendants' breaches of the duties alleged
above directly and legally caused plaintiffs and the class to be damaged in an amount
according to proof.
11
12
75.
The duties stated herein are duties imposed by law, by contract, by the
13
special relationship between insurers and their customers, and!or is a duty that has been
14
voluntarily assumed by First American.
15
16
17
18
19
20
21
22
76.
First American undertook to provide sub-escrow, wire-transfer, messenger
and overnight delivery services for plaintiffs transaction. By undertaking to provide
these services, "an affinnative duty arose to avoid hann..." (Christensen v. Superior
Court (1992) 54 Ca1.3d 868, 888.) Stated another way, First American owed plaintiff a
duty to "use reasonable care, diligence, and judgment" in providing and charging for the
title services at issue herein. (Desai v. Farmers Insurance Exchange (1996) 47
Cal.AppAth 1110, 1119.)
23
24
25
77.
First American prepared the invoice, settlement statement, and payoff proof
26
sheet (attached hereto as Exhs. 2-5), and other documents, which communicated false and
27
fraudulent charges for sub-escrow, wire-transfer, messenger, and overnight delivery fees.
28
First American transmitted documents to plaintiff and the class members' agents and
43
1
fiduciaries for payment of these unlawful charges. Because defendants undertook to
2
create and transmit documents stating the amount to be charged for specific services,
3
including sub-escrow, wire-transfer, messenger and overnight delivery services,
4
defendants owed plaintiff and members of the class a duty to accurately state those
5
charges. (See Free v. Republiclnsurance Co. (1992) 8 Cal.App.4th 1726, 1729
6
(approving allegation that insurance company "defendants were under a duty to provide
7
plaintiff with accurate infonnation").)
8
9
10
11
12
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17
18
78.
First American owed plaintiff and members of the class a duty not to
suggest a fact which is not true, where First American knows it is not true. (Civil Code §
1572(1).) First American also owed plaintiff and members of the class a duty not to make
a positive assertion in a manner not warranted by First American's information.
(Civil
Code § 1572(2).) First American also owed plaintiff and members of the class a duty not
to make or disseminate any "statement containing any assertion, representation or
statement with respect to the business of insurance or with respect to any person in the
conduct of his or her insurance business, which is untrue, deceptive, or misleading, and
which is known, or which by exercise of reasonable care should be known, to be untrue,
deceptive or misleading." (Ins. Code § 790.03(b).)
19
20
21
79.
Plaintiff is informed and believes, and on that basis alleges, that it is the
22
standard in the title insurance industry to apply and charge the correct, CDI-filed price for
23
title services, and to charge no more than those CDr-filed and approved charges. Plaintiff
24
is informed and believes that it is the standard in the title insurance industry to charge
25
only the amount actually paid for overnight delivery and messenger services in
26
connection with a title transaction, and to maintain documentation of such. Defendants
27
owed plaintiff and members of the class a duty to act consistently with this industry
28
standard.
44
Second Amended COIllplaint (Class Action)
I
2
80.
Plaintiff Kirk, as the seller of a home who paid First American for title
insurance and other services, was a customer of First American, and First American
3, admits, through its officers and executives, that this is true:
4
Q.
5
are your clients and customers, too, right? The people paying
for the policy.
6
7
[T]he homeowners who are buying and selling homes, those
A.
Absolutely.
(Senior Vice President of Sales Rusty Erb Depo., 29:2-5.)
8
9
10
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of the class a duty greater than the ordinary duty imposed on a property and casualty
12
insurer in an ordinary insurance sales transaction. Plaintiff is informed and believes, and
13
thereon alleges, that this business decision was the result of the understanding on the part
14
of some of First American's executives of the unique nature of the title insurance
15
business. This understanding was summarized in writing by Mr. Clifford Morgan,
16
defendant First American Title Insurance Company's Senior Vice President for
17
Underwriting and Product Development, and its person most qualified to testify regarding
18
First American's
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First American has undertaken and assumed towards plaintiff and members
11
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cm filings, as follows:
Many of our customers don't understand title insurance ...
Likewise, they don't understand the real estate settlement process
and how it relates to title insurance. Most homeowners will only go
through the settlement process a few times in their lifetime.
19
20
21
22
23
24
25
26
27
28
82.
Plaintiff is infonned and believes, and thereon alleges, that the above
written summary by Senior Vice President Morgan, in addition to reflecting the
understanding of First American (through its officers and executives), reflects the
standard in the title insurance industry, which is to undertake and assume a duty greater
than the ordinary duty imposed on a property and casualty insurer in an ordinary
insurance sales transaction.
45
1
83.
Defendants admit they have superior lmowledge regarding the title
2
insurance industry, and the title services at issue in this case, than plaintiff or members of
3
the class. Because of this disparity in knowledge, defendants have a duty to apply the
4
correct, CDr-filed charges for title services. Moreover, this disparity in knowledge
5
creates a duty by defendants to charge the amount actually expended on messenger and
6
overnight delivery fees, and not charge more than was paid. (Westrick v. State Farm Ins.
7
(1982) 137 Ca1.App.3d 685, 691-692.)
8
9
10
11
12
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84.
Senior Vice President Clifford Morgan, as an officer and executive of First
American, gave sworn testimony regarding First American's business policy and practice
to take responsibility from the customer to make title related decisions to meet the
customer's needs. Thus, through the decisions of its officers, First American has
undertaken and assumed a greater than the ordinary duty imposed on a property and
casualty insurer in an ordinary insurance sales transaction.
15
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16
17
85.
Defendants breached their duties, and failed to act reasonably and
18
prudently, by engaging in the conduct alleged in this complaint, including but not limited
19
to the following:
20
a.
21
22
practice, in contravention of the then-applicable filed rate;
b.
23
24
Charging more than $60.00 as a sub-escrow fee as a general business
Charging more than $15.00 as a wire-transfer fee as a general
business practice, in contravention ofthe filed rate;
c.
25
Charging for messenger fees, where such services were not rendered
at all, were not paid in the amount charged and/or defendants have
26
no documentation that they were paid;
27
28
d.
Charging for overnight delivery fees, in amounts greater than those
46
incurred by First American, and failing to disclose these markups;
I
2
e.
Providing, directly or indirectly, gifts, money, benefits, inducements,
3
kickbacks, or other consideration or things of value to real estate
4
intermediaries for referral of title insurance business; and
5
f.
6
Other unreasonable conduct aIleged herein and/or to be proven at
trial.
7
8
9
86.
Defendants' breach of their duty to act reasonably and prudently
10
proximately, directly and legaIly caused plaintiff and the class to be damaged in an
11
amount according to proof.
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
47
1
FOURTH CAUSE OF ACTION
2
(Fraud and Deceit)
3
4
5
6
7
87.
Plaintiffrealleges and incorporates by reference the allegations contained in
8
9
10
11
88.
Defendants engaged in fraudulent conduct by misrepresenting, omitting,
concealing and/or failing to disclose material matters relating to plaintiff and class
members' real estate transactions.
12
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19
89.
First American's title officer who handled plaintiff s transaction, and who
communicated with the real estate intennediaries involved in plaintiffs transaction
regarding prices and fees for title insurance and title services, was Michelle Pascual. First
American's title representative who obtained plaintiffs transaction for First American,
and who also communicated with the real estate intermediaries involved in plaintiffs
transaction, was Hugo Silva.
20
21
90.
At the time ofthe transactions at issue, defendants fraudulently represented
22
to plaintiff and the class that the sub-escrow fee First American was lawfully entitled to
23
charge was over $60.00. This was a false representation, as First American's filings with
24
the cm provide for a $60.00 sub-escrow fee.
25
26
91.
At the time of the transactions at issue, defendants fraudulently represented
27
to plaintiff and the class that the wire-transfer fee First American was lawfully entitled to
28
48
1
charge was over $15.00. This was a false representation, as First American's filings with
2
the
cm provide for a $15.00 wire-transfer fee.
3
4
5
6
7
92.
At the time of the transactions at issue, defendants fraudulently represented
to plaintiff and the class that they incurred messenger and overnight delivery fees in the
amount charged to plaintiff and the class. These representations were false, and First
American has no documentation evidencing payment of such fees.
8
9
10
93.
Defendants communicated their deceptive, false and fraudulent
11
representations and omissions regarding the charges for sub-escrow, wire-transfer,
12
messenger and overnight delivery services to plaintiff and his representatives and
13
fiduciaries, and to the class and its representatives and fiduciaries, through closing
14
documents including, but not limited to, the documents attached hereto as Exhibits 2
15
through 6.
16
17
94.
Defendants intended for plaintiff and class members to rely on their false
18
and fraudulent representations, concealments and omissions. Plaintiff and the class
19
actually and reasonably relied on the above representations, concealments and omissions
20
by, among other things, purchasing title insurance and title services from defendants, and
21
by overpaying for title insurance and title services.
22
23
24
25
26
95.
As a result of defendants' fraudulent conduct, as alleged herein, plaintiff
and members of the class were proximately, directly and legally damaged, in an amount
according to proof.
27
28
49
1
2
96.
Defendants' conduct and actions alleged herein were despicable, and were
done maliciously, oppressively and fraudulently, with the intent to wrongfully deprive
3 plaintiff and class members of monies, and to cause them injury, and with a willful and
4
conscious disregard of plaintiff and class members' rights. The officers, directors and
5 managing agents of defendants were personally involved in the decision-making process
6 with respect to the misconduct alleged herein and to be proven at trial. .
7
8
97.
9
10
11
12
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defendants, and officers, directors and/or managing agents of defendants authorized
c
and/or ratified each and every act on which plaintiffs allegations of punitive damages
herein are based. On that basis, pursuant to Civil Code section 3294, plaintiffs are
entitled to an award of exemplary and punitive damages in an amount adeiJ]uate to make
an example of, and to punish and deter, defendants, and each of them.
cia;
rn~·BUJ
The conduct alleged herein was engaged in by representatives of
c
16
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17
18
19
20
21
22
23
24
25
26
27
28
50
1
FIFTH CAUSE OF ACTION
2
(Unjust EnrichmentlRestitntion)
3,
4
5
6
98.
8
9
99.
Defendants benefitted from and have been unjustly emiched at the expense
10
and to the detriment of plaintiff and members of the class by wrongfully collecting money
11
to which defendants, in equity, are not entitled, as alleged herein. Defendants have
12
13
unjustly retained and failed to refund to plaintiff and members of the class the amounts
wrongfully collected from them and, under the circumstances, have been unjustly
14
emiched.
15
16
17
18
19
100.
Plaintiff and members ofthe class are entitled to recover from defendants
all amounts wrongfully collected and improperly retained by defendants, plus interest
thereon.
20
21
101.
As a direct and proximate result of defendants' unjust enrichment, plaintiff
22
and members of the class have suffered injury and seek damages in the amount necessary
23
to restore them to the positions they would be in had defendants not been unjustly
24
enriched.
25
26
27
28
51
-~---"---
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0
I
SIXTH CAUSE OF ACTION
2
(Unfair Competition Laws - Business & Professions Code §§17200, 17500 et. seq.)
3
4
5
6
102.
8
9
competition, including any unlawful, unfair or fraudulent business act or practice, and
11
unfair, deceptive, untrue or misleading advertising, and any other act prohibited by
12
Business & Professions Code sections 17500, et. seq.
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Business & Professions Code sections 17200, et. seq., prohibit any unfair
10
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103.
16
17
18
19
20
21
22
23
24
25
26
27
28
104.
Business & Professions Code section 17500 provides that it is unlawful for
any person, firm, corporation, or association, or any employee thereof to intentionally
directly or indirectly perform services, professional or otherwise, or to induce the public
to enter into any obligation relating thereto, to make or disseminate in any manner any
statement which is untrue or misleading, or which by the exercise of reasonable care
should be known to be untrue or misleading. Insurance Code section 790.03(b) prohibits
untrue, deceptive and misleading statements by insurance companies and their
representatives. Insurance Code section 12404, et seq. and the CDI title regulations
prohibit regulated entities such as defendants from paying inducements for referral of
business. Insurance Code sections 12405, 12405.7 and 12406 and the CDI title
regulations prohibit regulated entities such as defendants from paying rebates and certain
commissions. The Real Estate Settlement Practices Act section 2607 prohibits direct or
indirect consideration for the referral of business by entities such as defendants in
transactions involving federally insured mortgages.
52
1
105.
Plaintiff is informed and believes, and on that basis alleges, that after
2 plaintiffs transaction was completed, First American altered, manipulated, and/or
3
fabricated documents relating to plaintiffs transaction. Plaintiff is informed and
4
believes, and on that basis alleges, that such conduct constitutes an unfair, unlawful, and
5 fraudulent business practice.
6
7
8
9
10
106.
The conduct of defendants, as set forth in the allegations in this complaint,
including but not limited to overcharging plaintiff for title insurance and services, and
violating the above-referenced statutes, constitute unfair, unlawful, and fraudulent
business practices.
11
12
13
107.
Plaintiff is informed and believes and thereon alleges that First American
14
has engaged in the business practices alleged throughout this complaint, including but not
15
limited to violations ofthe Insurance Code sections 790.03(b) and 12404 through 12406,
16
the cm title insurance regulations, and Section 2607 of the Real Estate Settlement
17
Procedures Act.
18
19
108.
Plaintiff is infonned and believes and on that basis alleges that the unfair,
20
unlawful, and fraudulent practices alleged throughout this complaint are continuing in
21
nature and are widespread practices engaged in by defendants.
22
23
24
25
26
27
109.
On behalf ofthe general public, plaintiff and members ofthe class request
that this Court issue a preliminary and permanent injunction against defendants, and each
ofthem, to enjoin them from continuing to engage in the unfair, unlawful and fraudulent
conduct alleged herein.
28
53
I
1
110.
On behalf of the general public, plaintiff and members of the class request
2 that this Court order that defendants be required to disgorge the profits they have
3 wrongfully obtained through the use of these practices, and that an injunction issue to
4 correct the wrongful business practices alleged in this complaint.
5
6
7
8
9
10
11
12
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15
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17
18
19
20
21
22
23
24
25
26
27
28
54
1
SEVENTH CAUSE OF ACTION
2
(Negligent misrepresentation)
3,.
4
5
6
7
Ill.
8
9
112.
10
Settlement Statement and Payoff Proof Sheet (attached as Exhs. 2-5), material matters
11
relating to the services rendered by defendants, as set forth above, including that:
12
a.
The lawful charge for the sub-escrow fee was more tQ.an $60.00.
b.
The lawful charge for wire transfer fees was more than $15.00.
15
c.
Defendants had rendered messenger fees, when they had not.
16
d.
That the actual charge for overnight delivery fees was $15.00, when
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Defendants negligently misrepresented, in the Invoice, Final Invoice,
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in fact it was about half that, when in fact nearly half the charge was
18
a non-disclosed markup.
19
e
Other misrepresentations to be proven at trial.
20
21
22
23
24
113.
Defendants made the representations and assertions set forth herein in a
manner not warranted by the information defendants had. Additionally, defendants had
no reasonable grounds for believing that its misrepresentations were true.
25
26
27
114.
Defendants intended for plaintiff and the class to act in reliance on their
misrepresentations. Plaintiff did actually and justifiably rely on the misrepresentations.
28
55
1
115.
As a direct and proximate result of defendants' negligent
2
misrepresentations, plaintiff and members of the class were proximately, directly and
3
legally damaged, in an amount according to proof.
4
5
6
7
8
9
10
11
12
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17
18
19
20
21
22
23
24
25
26
27
28
56
1
EIGHTH CAUSE OF ACTION
2
(Consumer Legal Remedies Act)
3
4
5
116.
6
8
9
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competition and/or unfair or deceptive acts or practices undertaken by defendants in a
11
transaction intended to result or which results in the sale or lease of goods or services to
12
consumers within the meaning of the California Legal Remedies Act. (Civil Code §§
13
1750 et seq.)
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15
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Defendants' conduct alleged herein constitute unfair methods of
10
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117.
118.
16
W
17
18
The sub-escrow service, the wire transfer service, the special messenger
service, and the overnight delivery/courier service, are services within the meaning of the
CLRA.
19
20
119.
Defendants' conduct includes the following unfair or deceptive acts or
21
practices that have been intentionally, knowingly, and unlawfully perpetrated upon
22
plaintiff and members of the class by defendants:
23
24
a.
In violation of Civil Code section 1770(a)(l4), defendants
25
represented that the transaction conferred or involved rights, remedies or obligations
26
which it does not have or involve, or which are prohibited by law, such as charging more
27
28
57
1 than $60.00 as a sub-escrow fee as a general business practice, in contravention ofther
2 then-applicable filed rate;
3
4
b.
5
First American represented that it had the right to charge a sub-
escrow fee in an amount greater than $60.00, had the right to charge a wire transfer fee
6
greater than $15.00, had the right to charge a messenger fee where such services were not
7
rendered at all, and had the right to charge for overnight delivery fees, in amounts greater
8
than those incurred by First American, and had the right not to disclose these markups;
9
10
c.
11
12
an unconscionable provision in the contract, namely the obligation to pay sub-escrow fees
13
in an amount greater than $60.00, the obligation to pay wire transfer fees greater than
14
$15.00, the obligation to pay a messenger fee where such services were not rendered at
15
all, and the obligation to pay for overnight delivery fees, in amounts greater than those
16
incurred by First American, and where the markups were not disclosed, when, in fact, the
17
implied terms of the contract precluded First American from imposing those charges, and
18
California law and RESPA prohibit those charges; and
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In violation of Civil Code section l770(a)(19), defendants inserted
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19
20
d.
In violation of Civil Code sections l770(a)(2), (a)(3), (a)(5), (a)(7),
21
and (a)(9), defendants misrepresented, such as in exhibits 2 through 6, that the services
22
provided by defendants were free of any referral by inducements, and impliedly
23
represented that the fees charged for the sub-escrow and wire transfer had their source in
24
the filed rates, and that the services had the characteristic of having the amount charged
25
for the services reflected in the filed rates and in such amounts, and that the sub-escrow
26
and wire transfer service was of the particular, standard, quality or grade of being a
27
28
service that had a filed rate.
58
- --- - - - - - -
-
---------------
--
---------
- - - - - - - - ---------------------
--- -
----
1
2
120.
As a result of the use or employment by defendants of the above-alleged
methods, acts, andlor practices, plaintiff and the class suffered damages within the
3 .meaning of Civil Code section 1780(a), entitling them to, inter alia, restitution, injunctive
4
relief, attorneys' fees and costs. Plaintiff and the class further intend to seek
5
compensatory damages, and, in light of defendants wilful and conscious disregard for the
6
rights of plaintiff and the class, and in light of defendants' intentional and fraudulent
7
concealment of material facts, plaintiff and the class also intend to seek an award of
8 punitive damages.
9
10
11
12
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20
21
22
23
24
25
26
27
28
- _ •. _ - - - - - - -
59
1
NINTH CAUSE OF ACTION
2
(Constructive Fraud)
3"
4
5
6
7
121.
8
9
122.
As a matter of business practice, defendants, through the actions and
10 . decisions of their officers and executives, voluntarily assumed a heightened ,duty to their
11
customers, including to plaintiff and the class. First American, through its officers and
12
executives, at all times knew, and at all times admitted, that there was an imbalance of
13
information between First American, as title insurer and escrow, on the one hand, and its
14
customers, including plaintiff and the class, on the other hand. Accordingly, First
15
American invited its customers to place their trust and confidence in First American. A
16
First American Senior Vice President and person most knowledgeable explained as
17
follows:
18
Many of our customers don't understand title insurance...
Likewise, they don't understand the real estate settlement process
and how it relates to title insurance. Most homeowners will only go
through the settlement process a few times in their lifetime.
19
20
21
(Clifford Morgan, New Homeowner's And Expanded Coverage
Policies, Title News, Volume 8, Number 1.)
22
23
24
123.
First American compensates its employees extremely highly, in part in
25
26
27
28
recognition of the serious and significant duties and responsibilities assumed by First
American in regard to their customers, and in recognition of the high duty of trust and
confidence placed in First American by their customers. Thus, one title officer
60
1
compensated approximately $350,000.00 per year over the past four and one half years,
2
testified under oath:
3
Q.
4
5
6
And you understand yourself, in earning that $1.5 million, you
have a responsibility to accurately give guidance and
information pertaining to title insurance questions to other
real estate professionals who in tum pass that information on
to customers...?
7
A.
Yes.
8
Q.
And you take that duty seriously, correct?
9
A.
Yes.
10
(First American PMQ and Title Officer Michelle Pascual Depo.,
11
110:2-14.)
12
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88.
A Senior Vice President of First American testified:
14
Q.
Is it true then that a First American title representative needs
to have a good understanding of the product line?
16
A.
Yes.
17
Q.
And the First American title representative needs to sell the
product that will best meet the customer's needs, correct?
A.
Yes.
Q.
And when you are talking about meeting the customer's
needs, you are talking about the home buyers and home
sellers who pay for the product, right?
A.
Correct.
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19
20
21
22
* * *
23
24
Q.
And the First American title representative should be able to
explain features and benefits that meet the customer's needs,
correct?
A.
Yes.
25
26
27
28
(First American Senior Vice President of Sales Rusty Erb, 217:18218:9,218:21-24.)
61
1
124.
Defendants breached the heightened legal and equitable duty they had
2
voluntarily assumed, and violated the trust and confidence reposed by plaintiffs, by failing
3
to disclose, concealing and misrepresenting numerous matters including, but not limited
4
to, the fact that:
5
a.
6
There was no CDI filing authorizing the $100.00 charge for subescrow and the $25 charge for wire transfer, and no lawful bases for
7
these charges;
8
b.
9
No special messenger had been used, and/or there was no
documentation for such a service having been rendered;
10
c.
11
The overnight courier charge included a markup of nearly 100
percent.
12
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First American provided inducements to real estate intermediaries
for the referral of title business;
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Other misconduct to be proven at trial.
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17
18
19
125.
This conduct occurred in the context of a special relationship between the
plaintiff class and defendants and constitutes a constructive fraud.
20
21
126.
As a result of defendants' breach of duties and misuse of the trust and
22
confidence placed in defendants by plaintiff and class members, defendants gained an
23
advantage including, but not limited to, a financial advantage by overcharging for title
24
insurance related services.
25
26
27
127.
Plaintiffs, including the plaintiff class, are presumed to have relied on
defendants' misrepresentations, concealment, and omissions, and, in fact, did so rely. As
28
62
I
a direct and proximate result of defendants' misconduct, plaintiffs, including the plaintiff
2
class, have incurred substantial damages.
3
4
5
6
7
8
9
128.
Defendants' conduct and actions alleged herein were despicable, and were
done maliciously, oppressively and fraudulently, with the intent to wrongfully deprive
plaintiff and class members of monies, and to cause them injury, and with a willful and
conscious disregard of plaintiff and class members' rights. The officers, directors and
managing agents of defendants were personally involved in the decision-making process
with respect to the misconduct alleged herein and to be proven at trial.
10
11
12
:2
129.
The conduct alleged herein was engaged in by representatives of
13
defendants, and officers, directors and/or managing agents of defendants authorized
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14
and/or ratified each and every act on which plaintiffs' allegations of punitive damages
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herein are based. On that basis, pursuant to Civil Code section 3294, plaintiffs are
16
entitled to an award of exemplary and punitive damages in an amount adequate to make
17
an example of, and to punish and deter, defendants, and each of them.
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130.
Plaintiffs are informed and believe, and thereon allege, that all three
20
defendants are liable for the fraud because of the theories and facts alleged in the section
21
above pertaining to "Relationship Among the Defendant Entities." For example, all three
22
defendants are partners and joint venturers of each other and, alternatively, alter egos of
23
each other. As a matter oflaw, "All partners are jointly and severally liable for all
24
partnership obligations." Corporations Code section 16306(a). Thus, this cause of action
25
is against all three.
26
27
28
63
PRAYER FOR RELIEF
1
2
3.
WHEREFORE, plaintiff and members of the class pray for judgment as follows:
4
1.
For general, special and consequential damages according to proof;
6
2.
For punitive and exemplary damages;
7
3.
For equitable entitlement to attorney's fees and costs from the common
5
fund',
8
9
4.
10
11
12
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For attorney's fees and costs pursuant to Code of Civil Procedure section
1021.5;
5.
For a preliminary and permanent injunction prohibiting defendants from
engaging in the unlawful conduct alleged herein including, but not limited
to, the following injunctive relief:
14
15
a.
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the public a schedule of fees which accurately summarizes the
16
amount First American is allowed to charge for title policies and title
17
services, pursuant to its filings with the CDI;
18
19
b.
c.
22
23
An injunction prohibiting First American from charging more than
$60.00 as a sub-escrow fee;
20
21
An injunction requiring defendants to publish and make available to
An injunction prohibiting First American from charging more than
$15.00 as a wire-transfer fee;
d.
An injunction prohibiting First American, in connection with a
24
transaction involving a federally related mortgage loan, from
25
charging for messenger service fees where First American has no
26
independent documentation that a messenger service fee was actually
27
incurred, or where the amount charged is greater than the amount
28
incurred by First American; and
64
e.
1
An injunction prohibiting First American, in connection with a
2
transaction involving a federally related mortgage loan, from
3
charging for overnight delivery fees where First American has no
4
independent documentation that an overnight delivery fee was
5
actually incurred, or where the amount charged is greater than the
6
amount incurred by First American.
7
6.
For any and all other relief available under Business and Professions Code
8
sections 17200 and 17500, et. seq., including but not limited to
9
disgorgement of profits received through defendants' unfair, unlawful
10
11
and/or fraudulent business practices;
7.
For pre-judgment interest on the sums owing under the contract; and
8.
For such other and further relief as the Court deems just and proper.
12
13
14
15
DATED: November 17,2008
16
17
. ~e Bernheim, Esq.
Attorneys for plaintiff Patrick Kirk, on
behalf of himself and all others similarly
situated
18
19
20
21
22
23
24
25
26
27
28
65
DEMAND FOR JURY TRIAL
I
2
3
4
Plaintiff, on behalf of himself and all others similarly situated, hereby demands
trial by jury in this action.
5
6
7
DATED: November 17,2008
~'
8
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B :/?),1"(i<-V'.£~M~
1/ Bernie Bertili~irn, Esq.
/
9
10
/
Attorneys for plaintiff Patrick Kirk, on
behalf of himself and all others similarly
situated
.
11
12
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Exhibit 1
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C/K-r~D
First American
TItle Insurance Company
NATIONAL HOMEBUILDER SERViCES
First American Title
Insurance Company
Title and Escrow
Services Proposal for
New Urban West, Inc.
1733 Ocean Ave.,
Suite 350
Santa Monica, CA
90401
Presented to
Erik Pfahler
Michael Warren
June 27, 2006
520 N. Central Ave., 5
th
Floor
Glendale, CA 91203
Ph: (818) 242-5800
Fax: (818) 246-8461
NUWI001
- - - - - - - - - - ._-_._
. ._ - - - - - _ .
Table of Contents
1. First American Title
2. Our Benefits to you
;> Land Acquisition Assistance
;> Local Underwriting
>-
Professional Escrow Staff
3. Technology
>-
Eagle Pro
;> Fastweb
4. Local Statistics
5. Pricing Component
6. Conclusion
Appendix A
Builder Services Staff
Appendix B
Partial Client List
2
NUWI002
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With over 100 years of experience, First American Title Company is
uniqueiy quaiified to handle every phase of land acquisition, deveiopment
and sales. Our skilled team of professionals will assist you through each
step - from property anaiysis through land acquisilion and the final sales
program.
First American Title Company is a worldwide title insurer and the number
one underwriter in the nation. We are the principal subsidiary of the First
American Financial Corporation, a general holding company, and we trace
our history back to 1889. First American's distinctions include Fortune
Magazine's Most Admired Companies list (1 ~~~-2004); Fortune 500 list
(2002,2003,2004); Barron's Best Pertorming 500 list (2003); Forbes
Platinum 400 list (2000, 2002, 2003, 2004).
OUf principal business is the issuance of title insurance and the provision of
related real estate services and products. We operate through a network of
more than 300 offices and 4,000 agents throughout the United States. We
also pro~ide title services in Australia, Canada, Mexico, the United Kingdom,
Puerto Rico, the U.S. Virgin islands, Bermuda and the Bahaman Islands.
2 Benefits to You
First American Title has been the leader in providing value-added services
and in homebuilder market-share for over two decades.
Through our extensive experience, we've developed services & programs
that make the entire process easier for you, the homebuilder. Listed below
are a few of the many vaiue added benefits you will receive by working with
First American Title.
Land Acquisition Assistance
OUf Builder Services team is there for you every step of the way. We can
assist you with all phases of the research and acquisition of your property.
We will supply title reports, copies of easements and adjoining deeds, and
will work closely with your engineer and other service providers to ensure
that information is technically correct for approval and recording. Potential
problems, such as relocating easements, are identified and addressed
immediately to minimize future probiems or delays.
Local Underwritihg
Underwriting decisions are made locally in Glendaie'and we have the
flexibility and experience to underwrite on a case-by-case basis. This
provides faster and more positive responses on various title insurance
issues.
3
NUWI003
Professional Escrow Staff
Closing an escrow is probably the most important service we perform; Ws the
culmination of months of hard work and time-consuming effort for you, the
homebuilder. To provide the best service, First American Title has
designated certain escrow units and offices for homebuilder escrows only. In
addition, we customize escrow-closing programs for your specific company
requirements. OUf homebuilder specialists coordinate smoother closings. for
your customers and more efficient day-to-day operations for you.
The designated homebuilder escrow staff concentrates full-time on new
home sales
Your assigned team is geared to closing large numbers of transactions
quicklY and accurateiy.
As your representatives, our goal is to provide courteous, persona!
customer service that reflects well on you and provides a positive
experience for your buyers
3 Technology
An industry powerhouse in systems technology, First American was the first
to introduce and implement cutting edge solutions to streamline escrow
processes and greatly improve overall internal efficiency. This technology
allows Title and Escrow the opportunity to increase our focus on our #1
priority - YOU, our customer!
FASTWEB
FASTW eb ·,s an online ordering platform for Title and Escrow SelVices, Flood
Determination Reports, Tax Return Verification Services, Appraisal Services
and more. All in one convenient online virtual file! Other benefits include:
Property Profile Informatjon - 24 hours a day, 7 days a week from
over 1,000 counties nationwide!
Track the status of Escrow online! Anytime!
Online Document Delivery
Easy access at wwwJastwebJirstam.com
Eagle Pro
Eagle Pro is First American's cutting-edge system for delivery of your title
information. It is the first Internet-Based title data delivery system built
specifically for builders and developers. Additional benefits inciude:
• 24(7 Access to Preliminary Title Reports, exception documents,
parcel maps, CCR's, and more.
E-mail update alerts to notify you when a report has been produced
or updated.
.
•
Co-branded CCR discs that can hold up to 14,000 pages of
documents, maps, warranty information, floor plans, and much more.
Online access at http://eaglepro.firstam.com
4
NUWI004
4
Local Statistics
First American Title is the local leader in market share for title and escrow
services. In 2006 (YTO), one out of eve I)' three New-Home transactions was
closed through one 01 our offiCES. The graph below show how our market
share compares with our competition.
35.0"/.~--,-------------------,1
IIFATCD.32.39%
30.0%,.j-----
_Chicago -17.94%
25.0"/..,.1---20.0%.1---15.0%.j-----
• Fidelity - 12.86%
i 0.0%-1--5,0%.1----
Stewart -7.40%
0.0%-1---
2006 YTD New Homs / Subdivision Market Share
• Lawyers - 5.21 %
5~ WfJVJO. 7(7U:! Office/!'(
5
Pricing Component
Below is the proposed pricing for your upcoming project. Our schedule of
fees is filed and approved by the California Insurance Commission. The
following is an example for the cost of service (based on sale price) for title
and escrow an your Northridge projects.
Selling Price
i
I
$550,000
$575,000
$600,000
$625,000
$650,000
$675.000
$700,000
$725,000
$750,000
I
Seller's / Owners Policy
SeHer's Escrow
40% of Builders Rate
Fee
$500.00
. ~~71.40
591.40
$500.00
611.40
$500.00
631.40
$500.00
!
651.40
$500.00
I
671.40
I
$500.00
691.40
$500.00
I
711.40
$500.00
I
731.40
$500.00
I
. Your purchase contracVsales agreement dictates who pays all other fees and
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taxes such as county transfer tax, recording fees, UPS/FEOEX fees, E-Ooc
fees, lender fees, and any other miscellaneous approved tees. Customarily,
the escrow fee is not equally "split" on a new home transaction, may we
suggest that if your purchase agreement states the escrow fee wili be "split"
(between selier and buyer), it may be appropriate to indicate that any
discounts available on the escrow tee wili be applied to seller's portion of the
fee. In addition, tl(a.s.gller pays the owners title premium, a portion of the
escrow fee, and the-countylransrer tax. Also, the buyer's escrow fee will be
one-half at the amountsJ.D...addition to a 5150.00 loan tie-in flat fee.
There will be no charge for mapping and ORE expenses.
Land sales and construction loans will be priced at SO.50~ perthousand,#
inclUding all reqUired endorsements.
Please note that the pricing listed in this proposal wlli be honored from the
opening of the first escrow, through the completion at the project when closed
through First American Title.
5
NUWI005
6
Conclusion
On behalf of First American Tille, i would like to thank you for allowing us to
compete to provide title and escrow services for your project. We pride
ourselves on our underwriting strength, and our professional manner In which
we handle the closings entrusted to us by our homebuilder clients. I assure
you that your closings will be handled In a manner consistent with your
professional standards. We look fOIWard to be able to call you a client of
First American Tille.
Thank you for the opporiunity to compete for your business. We look fOIWard
to speaking with you soon.
T. Scott Jackson
Account Executive
National HomebuildEr Services
First American Tille
...
,
6
NUWI006
".
APPENDIX A - BUILDER SERVICES STAFF
Title
First American will provide a Senior Mapping Specialist to coordinate and
interface with your engineer as part of the submittal and final recordation of
the map.
First American to provide in-house surveyor to review final map and issue
opinion letter based en closure, proper establish of monuments and map
record ability.
First American to pro'tide a senior condominium title specialist to review
GG&R' and condominium plans and issue opinion letter to you and your
engineer and attorney as to the insurability of the units.
Acquisition J Loan Title Specialist
First American will prcvide a Senior Title Offiser to coordinate with ,ender,
lenders council and under.. .vrite final issuance of lenders policy.
Tract Sales Team
First American will prcvide a Senior Title Officar and sale-out team to
coordinate with escrow.
Closing Services
First American to prov:de a urban escrow closing team together witri the
usage of First Americans signature service specialist.
ORE Processing
First American to provide DRE consultant to coordinate with your budget
preparer, attorney and the Department of Real Estate, along with the
preparation of the DRE filing package for the Department of Real Estate.
Also, a consultant to respond to any deficiencies, prepare any conditional
reports and process white report.
.NHS Customer Service
First American to provide customer service staff to facilitate requests for plat
maps, copies of documents, radius reports, ovmership and demographic
infonnation.
7
NUWI007
APPENDIX B
PARTIAL MID-RISE AND HIGH-RISE CLIENT LIST
LOCATION
Pasadena, CA
(Pending)
Los Angeles, CA
(Pending)
Los Angeles, CA
(Closing)
Los Angeles, CA
(Pending)
Los Angeles, CA
(Pending)
Los Angeles, CA
(Pending)
Los Angeles, CA
(Pending)
Los Angeles, CA
(Pending)
Los Angeles, CA
(Pending)
Los Angeles, CA
(Pending)
Los Angeles, CA
(Pending)
,bcisiAngeles,
'",~~~#~i~'g):
'
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CA
PROJECT jDEVELOPMENT
PRADO ON LAKE AVENUE
Consisting of 103 loft-style homes within a 4 to 6 story midrise design; ranging from approximately 753 to 2,223 square
feet
LITTLE TOKYO; LOFTS
Conversion from a,residential rental apartment bUilding into
for~sale residenticilcoridofTliniums. The bUilding contains 161
loft-style units ~:Swellasground floor retail space and a
parking garage.
THE SAVOY
Includes 303 luxury-style condominiums. The units will be
priced from $300,000 to more than 5800,000 - on the Little
Tokyo/Arts District border.
AXIS AT UNION STATION (Standard Pacific)
272 residences in downtown Los Angeles, including studios, 1
and 2 bedroom condominiums from 644 to 1,460 sq. ft.
717 OLYMPIC (Hanover Company)
A 28-story tower, 156 unit averaging 1,061 square feet.
Complete due for late 2007.
ROWAN BUILDING
A conversion of 200 condos, with prices ranging from the mid$200,000s to more than $800,000.
EL DORADO
The 65 units at this former Spring Street low-income hotel will
'start at about $350,000 up to more than $1 million.
UNION BANK (MeruelojMaddux Properties)
.4 conversion to 90 loft-style apartments by early 2007. Units
will range from 700, to 1,900 sq. ft., averaging 900 sq. ft.
NINTH & FLOWER (MeruelojMaddux Properties)
A 37-story structure with 214 loft style condominiums and
68,000 sq. ft of ground floor retail.
RQOSEVELT LA LOFTS
An,office building conversion to 222 condominiums complete
with a Red Lin'eStationin the basement,
MARKET LOFTS (Lee Group)
A 6-story project including a 50,000 sq. ft. Ralph's and 267
condominiums
THE RESID~NCES~TRITZ~CARL TO.~ (KBUrban)
, Two!uxuryh6telsa ctprivateresidencesat?A. LZ'(~·AbOve,
, the hotels will beapprciX. 216 residential condos. Owners will
n
8
NUWI008
· '\'''
have: acces~ to many service$and amenities of The RitzCariton, such as concierge, valet and housekeeping.
Marina Del Rey, CA
(Pending)
THE COVE
An lS-story, luxury 13S-condominium high rise project will
offer 2 and 3 bedroom condos and penthouse SUites.
Marina Del Rey, CA
AZZURRA
(Closin!l)
AZzurra is a 19-stol)i colleg:ion of 450 residences ranging from
one-bedroom residences to' 3,571 square foot penthouse.
Long Beach, CA
(Closing)
TEMPLE LOFTS
Long Beach; CA
(Closing) .
Palos Verdes, CA
(Pending)
The Temple building includes 50 lofts, while each of the other
bUildings includes 16 lofts totaling S2 lofts; from SOD to 3,000
square feet.
AQUA
The lS-story,556unitsbLiildingoffers 1-3 bedroom homes
with 1 to 3.5 baths.
TERRANEA RESORT
Terranea Resort is an exquisite 400-room hotel, with the
opportunity of owning one of their 82 resort homes.
9
NUWI009
-'-.~-
- - - - - - -----
Exhibit 2
-------
---- - - - - - - - - - - - - - - - --
---
---
--
-----------
-
To-:'"
i
1I:.z}: II, I
(,
~
"""
First American Title Company
520 North Central Avenue
Glendale, CA 91203
Phane: (BIB) 242~5BOO/ Fcc::
PRo 06243
Ofe: 1905
Invoice
To:
Prestige Escrow
I 6933 PaIthenia Street, Suite 210
Northridge, CA 91343-4570
Attention:
Invoice No.:
Date:
02124i2004
Our File No.:
Title Officer:
1230495
Michelle Pascu:d i MPASCUAL
Escrow 0 mcer:
/
Customer ID:
LA209760
190562403
Diana Lopez
Your Reference No.:
RE:
Propert)':
Liability Amounts
20621 Tulsa Street, (Chatsworth Area), Los Angeles, CA
913 II
Own",: 5650,000.00
Lenders: 5350,000.00
Sjobri~g
Buyers:
Jeffi)'
Sellers:
PatTick Kirk, Gloria E, Kirk
I Description of Charge
i
County Documentary Transfer Tax
City Documentary Transfer Tax
Special MessengeriCourier Fee
Eagle Owners Policy
ALTA Extended Loan Policy 1992
Sub-Escrow Fee
Record Grant Deed
Record Trust Deed
!
Invoice Amount
5715.00
52.925.00
$20.00
S I,648.00
$563.00
$100.00
~
,
SII.OO
S64.00
INVOICE TOTAL
56,046.00
Comments:
Thank you for .."our business!
To assure proper credit, please send a copy ofthis Invoice and Payment to:
Attc-ntion: Accounts Receivable Department
Prlnt~
On: 0212411004. 4:01 PM
DEF 0044
---
~------------~-
Glendale, CA 91203
Phone: (8J8) 242-5800/ Fax:
PRo 06243
Of<: 1905
Invoice
To:
Prestige Escrow
16933 Parthenia Street, Suite 210
Northridge, CA 913434570
Invoice No.:
Date:
190562403
0212412004
Our File No.:
Title Offictr:
1230495
Michelle Pascuol! MPASCUAL
Escrow
/
Offjc~r:
Customer ID:
Attention:
Your Reference
RE:
LA109760
Diana L.opez
~o.;
: OJ286-DL
Property:
Liability Amounts
20621 Tulsa Street, (Chatsworth Area), Los Angeles, CA
91311
Own,rs: S650,000.00
Buyers.:
SeHers:
Lend",: SJ50,000.00
Jeffry Sjobring
Patrick Kirkl Gloria E. Kirk
,
Description of Charge
Special Messenger/Cowier Fee
.
!
Eagle Owners Policy
Sub-Escrow Fee
Record Grant Deed
511.~
Record Trust Deed
564.00
INVOICE TOTAL
Comments:
Invoice Amount
5715.00
S2,925.00
S20.00
51.648.00
5563.00
S 100.00
S6,046.00
818/920-6411
Thank you for your business!
To assure proper credit, please send a copy ofthis invoice and Payment
Attention: Accounts Receivable Department
(0:
,
_ rIoted On: 0212412004.4:01 PM
ReqUt5ur: 60
Pagr: I
DEF 0045
-
"
.<
Exhibit 3
- -
--~-~._-_
..
_.-
~--~-
Glendale, CA 91203
Phone: (818) 242-5800/ Fax:
PR: 06243
Ofc: 1905
Final Invoice
To:
Prestige Escro\"..
16933 Panhenia Street, Suite 210
Nortluidge, CA 91343-4570
Invoice No.:
Date:
Our File
190562"03
022512004
~o.:
1230495
t-l'chel1e Pase,,!1 :-'fPA8CCAL
Title Officer:
Escrow Officer:
Customer In:
Attention:
Diana Lopez
Your Reference
RE:
~o.:
1032S6-DL
Property:
20621 Tulsa Street, (Glatswonh Area), Los Angeles, CA
91311
Liability Amoum:s
Owners; 8650.000.00
Lenders: S441.000.00
JeffIey 'Sjobring
Pamck Kirk. Gloria E. Kirk
Buyers:
Sellers:
Description of Charge
Special Messenger/Courier Fee
Eagle Owners Policy
Invoice Amount
5715,00
S2.925.00
520.00
81.648.00
-
Sub-Escrow Fee
Record Grant Deed
Record Trust Deed
511.00
564.00
,
INYOICE TOTAL
Comments:
S563.00
S100.00
.
86.046.00
8181920-6411
Thank you for your businessl
To assure proper credit, please send a copy of rhis Invoice ana' Paymenr to:
Attention: Accounts Receivable Department
Printed On: i12512005, 2: 11 PM
Requester: JC
Page: 1
Customer Copy
DEF 0001
-----_.
--_.--~--
~------~_.
Exhibit 4
.-
._--~----_.-
.
..~
l' ;":'1 F, ~,
c~
~
~'s __ 7#
.'
520 North Central Avenue' Glendale, CA 91203
~
Settlement Statement
Property:
20621 Tulsa Street, (Chatsworth Area), Los Angeles.
CA91311
Lot: 25 Tract: 32472
Buyer:
Address:
Seller:
Address:
File No: 1230495
Officer: Michelle PascuallJC
New Loan No:
D4010779
Settlement Date:
02/25/2004
Disbursement Date:
Print Date:
7/2512005,2:11 PM
Jeffrey Sjobring
Patrick Kirk, Gloria E. Kirk
20621 Tulsa Street. (Chatsworth Area,!. Los AMeles. CA 91311
Buyer Credit
Buver Charge
Seller Charge
I
i
I
I
"ew Loan(s):
I
,I
L~nder:
i
I,
I
20.00
I
I
563.00
I
I
I
650,0(":'.00
I
i
,
Seller Credit
Consideration:
Total Consideration
i
650,000.00
Charge Description
1
350.000.00
I
i
Wilmih!Zton Finance
>':ew Loan to File - \Vilrninlnon Finance
I
SO.OO
Subtotal:
TitlelEscrow Char!!es to:
Counry Documentary Transr"er Tax ~ First .-\..meric:.m Title
715.00
Comaany
City Documentary Transfer Tax - First American Tille
Company
Special Messenger/Courier Fee - FirSi American Tirle
Comcanv
Eacrle Owners Polic',' - First American Title Com Dan v
.-\LTA Extended Loan Policy 1992 - First .-\rn.erican Title
Comoanv
Sub-Escrow Fee - First .American Title ComDany
Record Grant Deed - First .tunencan Title Companv
Record Trust Deed· First American Title Comoany
$6.046.00
Subtotal:
2,925,00
I
1.648.00
100.00
11.00
64.00
I
I
i
DEF 0003
- - - -----------
;
Date: 4/9/2007
First American Title Co. Of Los Angeles
-
Page 1
Payoff Proof Sheet
5100145 PRESTIGE ESCROW
16933 PARTHENIA ST SUITE 210
Recording Dale: 02/23/2004
Order#:
1230495-60
Tille Officer:
MIZRAHI CLARK
Bank:
40
"vRTHRIDGE, CA 91343
Escrow # 103286-DL
Attention:
Phone: (818) -S2-0-6400
Payoffs
Amount Requesled
01 A8N AMRO MORTGAGE GROUP, INC.
Principal
INT:oRE'S,-OAILY 2/S/2004 - 2126/2004 @ 51.91
SEC
PROC FE=:
RECORDING
... To:al Demanc
~ef:
000:292:~3/?ATR:CK
519,312.52
w
K:~X i2062~
TULSA ST
8y CHECK
Disbursements To:
ABf, AMRa MORTGAGE GROLlP, INC.
12~25 ME."'R/MAN ROAD
AT-Y: CASHIERING DEPTIPAYOF,=
!....iVCNIA. ,'.,1148150
'.N 1001 Z921431PA -:-qIC(
KI,"iK '2052" WL
W
On
5 _ :" .; . .;: . :'-.
02 FATCOLA Fed Ex Charses
~rincl:Jai
f:isb ursements To:
FA-20L':'.
DIS3URS=MENT ,==:=J WIRE CP iV=XT DA v
AT-V GLENDALE ACCOUNTiNG
GL=.\lOfol--=. CA 912:;'3-000
8yCHECK
03 FIRST AMERICAN TITLE Title Charses
Princic-al
Disbursements To:
8yCHECK
Doc #
2/25/200.1 320097
On
Doc #
2/25/2004 32Cj39
;; (-, -:.; 5 . :::
On
Doc #
F:PST Af./iERJCAN T!TLE
520.'v C£:VTRAL AVE
AIN B/L..JNG DEP"":"
GL5:YOAL5. Cr:. 912~3-000
04 Z
L A COUNTY TAX COLLECTOR
Disbursements To:
Z L A COUNTY TAX COLL=G--;O,~
!W"! 270T-029-015
2ND HAL.= TAXES
212512004 220141
PrinCi!=al
By CHECK
On
Doc #
212512004 320255
This Proof Sheet was printed as of 4/9/2007 at 3:13:06 PM. This is a typical disclaimer clause on the proof
sheet to indicate the provisions under which the proof sheet is provided to the customer.
First American Title Co. Of Los Angeles
Dafe: 4/9/2007
Page 2
Payoff Proof Sheet
5100145 PRESTIGE ESCROW
I
"
Order#:
$25.0::
Principal
'ATCOLA Wire Fees
DisbursementsJ,JJ:
FA TCOLA
DISBURSEMENT FEE/WIRE OR NEXT CAY
ArrN GLENDALE ACCOUNT/NG
GLENDALE, CA 91203-000
By CHECK
On
525. ,;0
......... Total
1230495-60
Doc #
212512004 320140
528,348.58
Deposits
Funds on Deposit
01 WILMINGTON NATIONAL By Wire
S~43r:·:3.'74
......... Tor.al Deposits
$443/578.74
Final Disbursements
On
Aba #2/20/2004
-.--
06 PRES7,GE ::SCROW
~
.. - • -
.; .... - ; , .!. .:
By WIRE
Disbursements To:
'~
•
On
Doc '#
PRESTIGE ESCROW
16933 PAR7"h'E:"jff..
57 S JITE
"IORTHRiOGE. G.A ;
':Vire To: COMERICA 3,c,I,\K
ABA No: 121137522
j,cct No:
?~O
'3<:,
2/25/2004
S284~2
~891615567
'~[ence:
ESC 1 03286-C:'" A 1:·J Cf,';',\!},
No balance
"
This Proof Sheet was printed as of 4/912007 at 3:13:06 PM, This is a typical disclaimer clause on the proof
sheet to indicate the provisicns under which the proof sheet is provided to the customer.
·
Exhibit 5
Exhibit 6
.,
a.
J!'inal.
11:'
TYPE OF LOAN
I. ,
IPHA
2. [
jPMHA
3.' XlCONV. UNINS.
~·l
IVA
5. I ICONV. INS.
6. File Number: (E:s.c:rQw)
7. Loan Number:
D40a077S'
~032a6-DL
IDL
8. Monl:\al:\e InsutlUlc= C:Lsc Number:
SETTLEMENT STATE/I.!ENT
u.s. u~;Jm'~!TDC" Hnus~n A!'IrT'I URBAN OE;\'ELQPMENT
Co HOlE: 1lI.b form is (UlUi$hed to gl-)'Ou a Slalcrn=:n or actualsettlemeot CO><t:l.. AmoLll11S pa.ld to and by the ~o.t agCllt an: "Wno:a.
.
Items IIl3J'ked -[pAct Wl:fl: paid Clutliide we doamg: they all!' shoI.m here (or lnfonnatJon p ~ and are DOt tncluded 111 the totals.
<; :.'
Jaffrey S:lQbring
20621 Tulsa, Chatsworth 0.. gJ.31.~
/Ut.M£ Of" 5Eu.ER:
PaUOic.k W. fir):. Glori~ 11. K.h"k
". • D. NAME OF BOAAO';IJ'ER:
j"
c:.
~
l", ~ ..
18311 Chatha= Lane.
Po=tllr Ranch
CA 9).326
~ :--.. HAM£ OF IDIDER:
I:'"; '~;""" lfil.mi.Dgtol:1 J/!niU)CO. a division of AIG l?edera
6~58
~
;.:
Pr~9tOD.
Avenuo
G. PROPERlY LOCATION:
2062J. Tulsa Street
Los Angel-es, CA 9::1.311
Live..rDlOre.. t:A 94.551
n. SE:'T1U:MENT AOEN'l':;
Pre.stige Escrow, Inc.
.,
J.69JJ pa:t.bIliW:i.a Straet.. Suitlll 1t210, Nortbridga
r.:
1(, SllMMAltY Olr
J. SUM/l.L\1l'f OF UOItROWli:lt'S ·!1{.....NSAC'I111N
banml'O:;-
~ebruary
26, 2004
SI!:I.!.uH~ 11{.!\I''l$....cnON
400. Oro=l$ Alnount Dw:: 1',? &clli=
)~~ O~ A:nou.nL Due F'rt>DJ BG~
tOI. Caomer 5ll1e:1 prlCl!
ioz. Pc:r.oo=1 property
100. Sertle=t clmtg(::l to
'10'1;.
It. SETTL..E:MENT DA're:
I
CA 913,3
650, 000 .00 -t01. Contraet W,:", pJice:
402.. FCTSonai propen.y
',59:2.214D3.
;~c HOC
550,000.00
40<.
~05.
'105.
'.$1,"
';r: ..
'. "'4!4IusanerusJor Uom\.'I ~ J:,y st:l/.e'r .'\ l'ldU<lr"'"
:f1!f4 Clty/tCWD \a.us
'1107. Countyt,","" 02/25/04-07/0],/04-
loa.
Aqju.sttruml:i jor
2,06~.Oe
~tILS
..07, Cauntyt:LXeSo 02/25/04-07/01/04408.•~~=[S
. 1""-
'09.
llJ.
411.
1ili'
412.
'11::1.
41:J.
~H.
414.
·115.
..15.
417.
Wi.
p.~.
117,
I ;,.
"
"0
!I00. .\mllunls
PuJd IJy at' In o.:ld o:r BorT'l:M"l:
Exbt.tng lDUD
Pi=uce,
ta.Ju,n
..
.
,
"
'"
;l~a,"'47.:Zil 501. E=e.!.5depet:l'lt(.:s=la\Itruo::UtlD:lI
I
t,,:.'"dhUDg tcl1
....
GOO. Rc..IUCl.loll. Iii AmoUll~ Du~ From Seller.
~.~.1. Dcp:Wt at' o:::anu::st rr~
.!!02. Pricdp;aJ :imOUD\ of rww L:>an
t~ro..
2,069.08
410.
:+~!L
i'
u.mu paid b!J s,,~!n r;u.l~
400. City/town llUl.':"
-l41. 000.00 502. Settlement:chal1lC!J
il
d.:lvis
to ~ [\lD.e 1400)
1J., 14.4 .::2.1.
503. f:.u:Itllll; 1000n 1111<>::11 ,"uLojl;'C' 10
orobjecl to
t:J:.~' 5eamd I1:.m ll e
g g IouJ:1
504. i'a}OO ~r fin,t. mangl4ll: kww
~N },MRO MOltTGAGK GRODP,
505. Payoff or se<X!fId IlJDrtsage loan
1-"0·.
l~'
•
J:N
'.:'2Qd
W4
OO~
208..
200.
509.
=
A<y~jQrlU!ms unpoJc.l
A4f...."1mItmCIjai-UIm1:J W1p;,Id bl1sdll:::r
:2.1.1. County t....
2.12.
."2.l0;,
~QU
~12. A:s="u:n~
. : 2l4.
~ilt5.
';.216.
'f.~";
;,:!18
.
;
i":l.H~:
: '2:20. Total PwJ
bv seller
510. CUy/llIwnlll.l'>C'1
5U. CoWily 1~
2)0. CUy/10WJllu.=
FOT
'. iSDo..'i'Cash·..u~ FJDUinb ~
;,:." },~~·l~.~~~,UD:.:I~td~~~~I:2
ie.;· l'~,LC=s&lDO\mtp;Udby~(tiDc2:!OJ
65
513.
514.
5\5.
SUI.
517.
5)8.
519.
.... 47.20 520. 'T'nlal Rcduellon Amounl Due
)0 -t 6.73
600.. Ca£h#:sei.~.To/FromScUer:
l
ltiiC'30s."",,-·"C."'oS"R'-.l.-.'..JF'Il=O,,,,,~-"--"Z..J"lO,,O'-"="O""'.","0W0R="'-'
658,'6J. • .29 1101. Ora:sa;mJ<lw;Jtductll5dL=r(llneoUO)
65',H7.10 ~ l.='red~~Ln~~·d~,·scli~·V2).
652.06'_1)8
30,,456.73
-""'5"."'!.!1""6o:I""-.-"CJ,S"",RtW.1ZLl"lO"I...L_.JF'Il""O"'~!WS,,",="""""ROJ..
_ _..!'@"1,,",,61:i2,-,,,.,,,5"-,
Or::.ginal
.-:
000001
,
><".,
;.J ~100. iOfAhsALES/BRDHER"S coMMISSIoN
:'1 .... A'lued prtc.e s
650,000.00
,.". ", DM.slonorConu:nbBlonQ.Jne7oal&:lrQUow~:
Mortgage
500.00
•
-2-
-_I
(SecrloNL
<>.D.
'd?~
;.:"[03.,
,.••
:
SxpreDIS
l;:
:I !,~~
':"
BORROWER'S
PAID FROM
SELLER'S
PUNDSAT
FUNDS AT
SETIlEMENT
SETnEMENT
tTEMS PAYABLE IN COHNEC'OON WTn-l WAN
D/.)colllll
~,~F=
_,''804.
n'" 0 0 < _ 0 '
.
802.
:
~
SOO.D(
'13;Bl1l. Loan
Ori{;iulltlon Pee
tau!
.
, >.1r.
ConunWlon PaJd. 41 ::ldlhmlent
. J,!_""'
.; tlf~
-
PAlD FROM
·P.O.C ll $350.00
. to !te~1: Farber
~Rcpor1
LcniIer'.51~pecttcin
.
F.,.,la
~'~~YSP p~id by Wi~gtcn Finance to Ca~aba
\', ~809. Processing Fee to Calabasas PUDding C~rp.
~:-
~p.a.cn ~4,4.:io~~'oo
-S"to. undervrid..ng 1'1lIe. to ifilJD,ingtoc pic,ance, a c!iv:iIl:iOIJ.
-. };~U',.AppJ.i~ation:Peeto Wi~g~on Finance. a divi~iol1.
:": ;..812- "diiLinistra't:.:Lon J'ce to lbl.miJ:lgl::OD. Finance. a. d:Lvi::U.on
l! :.81;3.. J'lood Cart Pea to· wibdngtoD. P'inance. a di....-1.don
c',',.'.
.' -'814.'
I
Fee
~:&:l6.' Mlingi.g~ ~ AppllcltUolJ.
' :f80t.:- Msum:ptlI;lO Fe=:
. ,- - ,
,-
652.00
.3~s.OO
.,.
200~OO
,4 5 0.00
13,,00
..
i ',,115.
; ..8\6.
..
,~·&17.
I-
I
I
'~·~,e:lg.
318.
"
'\'820
...
if""'
i• :
! •.822-
.;n3.
_.
'f~:
~ ...."
....
'()O:l;.
Flood
.,
I>"'n, "E""O BY tENDER i'0 BE Prill) IN ,-\DVANe£:
lDterbt
02/20/0'" ':'0 03/01/0"-
froU1
.
,,.
':902- Mortg"-!l" lnsllr-Ul"'" ~rn!um
:903. ~ lrJ.5WGJJ~ Pr1::mlum
msur;uJCl:
Pn:miUD>.
6.n
773.2b
/w.y
HtmRO m5t1&ANCE ..;CSUc:(
1.~5.3.5
906.
. 007.
,1000. RE.:iER:VES D~rTED WIlli tENDER FOR
lOClI. Ha=rol[1>l=
.1002- ~{orrg:l£ll Insuro.o,,",
1003- city JlTDperty ta.xeS
I"".
1005.
prlI~ ~
,\Dnu:al~~
ColUlry
':1006. FtDOd lD:ourn=e
~:i.IOI. Sctll~meDt <:If c!otltng
i;l,f,'"
('1'1C2•
'1=103.
,"1104.
p.l05.
:'ll06.
;:'!.107.
re.: to
?r"::l.tige
Dobiled'Sscrow Faes
.Ab:tl~et I:>r clo9ilJ.y' fee
,.,.
,.,.
,.
,,.
TIlle umntnaljoD
Ti.u..~"", binder
Do<:u=r: prepar.t.L\o;ln
.
notaryf""",
,\ttol'1l-l=)~.!1 I~
i·loa. nr.Lc lnsurn1lCl!
HOO;
l.esldu'~
mcntl15 G $
rntIntll-:lo.lil
~ I;
mooths 41 I;
monlh:i ~ $
rmlllll15
'i ·m01. Agg'regate Acc:ounC Adju:st:ll1e.nt
A.lIOO. 1ll1.£ CHARGf:S
per lI'IOoili
per mcnth
P"J"rnaotb
per month
per montb
lUL>ol.lJ.,." S
O1OnLb.!I4I I;
o:n.-erugc
(110. OWDer':I COI/UDlle
Ull. Juc:l 1/2' .:1.003-2004. """,os
1112- Sub-Bscrow Pee
U15.
Ll14.
!1l5. Re~ar eo A ttacJ:=e.nt
••
851:::-0.."
iJ:::;' '1'itle
.~'
.
I 11'i;a
....
""""
!I
perlJlO~
~rmDtltb
..
::nc.
1,500.00
320.00
1,500.0
:;lea.ao
200.0
563.00
'l,HS.O
?:t:astige El!Icrov,Inc:.
?irsr. .Allle.rieao '!'iue Company
Hl000.001
650000.00!,
::l70_0
563. DO'
16-48.00
2.950.06
100.Oil
.
1200. GOVERNMENTRECORPINOANOiRANSFERCltA.RGES
:&IIl'1St:SS
\.,12:lU. ~rd1ngf=
Docd S ~OaO
~ 00 6<1.00
:M<Jrt!,&ge B
• ~201- ctty/g;n.wry~iI.U~
::2,9:25.,)0
:Mcrtl:J.ge a
i'!-W3. Slate ta'C/:;1~
~.~.
:1,_2~.
I I'
.
:Mort'ffs
35 •••
H.D
,
..
..
11..0
2,
'715~O
~25.0
25.0
.'
}.·r·i~: ~~ONAL
SEnl.EMENI" CH/IRCI~
L
.'.
ll~
[I:> Tomahawk Ter.m.it~ CCl:1t:rol
D:Ic.
;\~.Nctary Si~g Fees To Vivian Scofi81d
Pest wpecUDu
'~Prcpe.:I:'ty' Specs.
:.t3Q5. KESSB:NGlCR
75.0
100.00
lns 'To Lu:i. Alcara.:z: c/o Pra:ltiq8
•
DELrvERY To pr.atige Escrow
13011. DPRE3S HANDLING
1307. CERTI'P.ICATE O. COMPLIANCE 'I'D ci ty at Los Angeles.
1308. h. ;;epClrt. TO Dept. of Bui~ding ~ Sa£ety
1000.
1910.
~SO.oo
55.00
D.Bpt~,:
H.S
25.0
30.0
15.0
of
70_2
'\911.
]1:312HilS•
. 1914.
.
11315
1316.
I
I,
I
i 1:117.
1 ~:I18.
~'l319.
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II
000002
~i~ > :~-"'-~~~_.~,-I~
\ FILE NUMBER. {ESCROW); l032S6-0L
BCRR.OW£R (S1
lJe£fre y Sjobring
",!
JDL.
S~
SELLERS(S)
Patrick W. Kirk
Gloria E.
I
I
PAGE: 1
DA.TE: 02/26/0.;.
Kirk
il··;··r·;:::o.-:::~:':::;;·:,;;"~;;::'"'
'~-' ""~.cr..
L ~~~- ------:-:::-:-:------------------------------------------------------------------------;'~.
Los Angeles,
91311
..J: Sl!MHARY OF BORROWER' 5 TRANSACTION
{ ..
.
,
,
I
~07.
COUNTY "!.::.xBS
$
,County Taxes
I~: at $ 2950.06 per 6 mom::hs
2,069.0B
?rom 02/2=(04 To 07/01/04
·!20~.
i
218,",4.7.:10
DepOSIT OR EARNEST MONEY
Daposj.c
"iK.
SUMMARy OF SELLER'S TRANS;;,crION
I':
/', l i,,_
t,,07. COt1N'l"r ::;,.:,:::ES
. t~·c
$
Taxes
C:luncy
~at $ 2%0.::6 per 6 months
.'·.£I:.~rom 02/25,'001 To 07/01/04
2,069.08
2,069.08
.
;.~:'I
750 ,4.. "PAWI'P' C? FIRST MORTGAGE. L01.H
I
~N
~~mo MO~TGAGE
GROU?
INC.
$
IS,19lLlol.
~~: Interest: ~ 3.625%
;, ~
~rom
iJ2/05/04 To 02126/04
Recording Fee
?RIORITY PRC~~SSING
34..38
9.00
50.00
SECOND REQul::5T
20. 00
P!.ID fROM
..
-PAGE2-
1."
BORROWER'S
PAID FRCM
SELLER'S
FUNDS
FUNDS
i,e
~~LlW ESCIl.OW PB1i:S
~i~er Demand Statement
rL~epare Grane Deed
~-, Loan Tie-In ?'ee
:: -Hire Tranafer fee
$.
h:ll.5.
$
,
UFBR TO A'l'"l"ACBKEN'I'
270.00
loa .co
100.00
250.00
70.00
,
i
320.00 $
:.FEDERAL EXPRESS
70.00
$
J5.00
IS.00
20. 00
S£lRCIAL MESSENGER
i:
000003
PROOF OF SERVICE
1013A(3) CCP Revised 5/1/88
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
1
2
3
4
I am employed in the County of Los Angeles, State of California. I am over the
age of 18 and not a partY to the within action; my business address is: 4725 Rubio
Avenue, Encino, Ca1ifornia 91436
5
On November 17,2008, I served the foregoing document described as:
6
7
8
9
SECOND AMENDED COMPLAINT (CLASS ACTION)
on interested parties in this action by placing () the original (X) a true copy thereof
enclosed in a sealed envelope addressed as follows:
10
See Attachment "A"
11
12
[ ]
(BY OVERNIGHT DELIVERY) I caused such document to be delivered by
oveqligqt delivery to the offices of the addressee as set forth on the attached
servICe lIst.
[X]
(BY MAIL) I am "readily familiar" with the finn's practice of collection and
processing correspondences for mailing. Under that practice it would be deposited
with the U.S. Postal Service on that same day with postage thereon fully prepaid at
Los Angeles, California in the ordinary course of business. I am aware IDat on
motion of the party served, service is presumed invalid if postal cancellation date
or postage meter date is more than one day after date of deposit for mailing in
affidavit.
:;;
'"
'"
U:Q)~
?;~mll)
<CCDm"'t
...J >.- ~
~«EI
13
14
00"'
ijj:o~O
I:::ICUO'l
zD::()S
0:::
10
c:J
!¢
WNge
w
I
.\-
15
-..-
·0
c
16
W
17
Executed on November 17,2008, at Encino, California.
18
19
[X]
I declare under penalty of perjury under the laws of the State f
California that the above is true and correct.
(State)
20
21
"7"""
_ _ .~--
22
Miguel Altamirano
23
24
25
26
27
28
67
-~ . . ~------
---
- -- -- -~_._-~------------~--~-~---
r,
Attachment "A"
I
2
Brian Recor, Esq.
4
Sarah Gohmann, Esq.
Bryan Cave LLP
120 Broadway, Suite 300
Santa Monica, California 90401-2386
5
6
7
8
9
10
11
12
::;;
g;
u.~
~
<l)
ttl
v
-I >.- ~
::iE«E.
00(0
[jj:o~O
I::ImO'J
za::::uCO'
0:::: 10
via U.S. mail
Taras Kick, Esq.
The Kick Law Firm
900 Wilshire Boulevard, Suite 230
Los Angeles, California 90017
via U.S. mail
14
15
- .....
WNge
m!¢ '0
w
c
I
I-
Charles A. Newman, Esq.
Jason E. Maschmann, Esq.
Bryan Cave LLP
One Metropolitan Square, Suite 3600
St. Louis, Missouri 63102
13
...
~Eo;lO
«
via U.S. mail
Joel Siegel, Esq.
3
16
W
17
18
19
20
21
22
23
24
25
26
27
28
68

Class Action Complaint - Kirk v. First American Title Company, et al.

Transcription

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