Bertero v. National General Corporation California Court

Complaint for Injunctive Relief, Breach of Contract, Breach of Fiduciary Duty, Declaratory Judgment and Punitive Damages

IN THE CHANCERY COURT OF THE JUDICIAL DISTRICT OF COUNTY, MISSISSIPPI

PLAINTIFFS

VS. CIVIL ACTION NO.

DEFENDANTS

COMPLAINT FOR INJUNCTIVE RELIEF,
BREACH OF CONTRACT, BREACH OF FIDUCIARY DUTY,
DECLARATORY JUDGMENT AND PUNITIVE DAMAGES

COME NOW (the ""), Plaintiffs, and file this Complaint against ("") and (""), to prevent and enjoin the proposed foreclosure under certain deeds of trust executed by the on lands located in and Counties, Mississippi, to recover actual and punitive damages for breach of the agreements between the parties, breach of its fiduciary duties to the , and to determine and declare the rights under their agreements with .

and are attempting to foreclose under the deeds of trust and take the property before the resolution of the question whether the promissory notes which the deeds of trust secure are due and payable.

PARTIES

1. are adult resident citizens of County, Mississippi.

2. is a national banking association which is domiciled and has its principal place of business in , . may be served with process ... mailing a copy of the Summons and Complaint to .

3. is an adult resident citizen of , who may be served ... mailing a copy of the Summons and Complaint to .

4. is a Mississippi corporation with its principal place of business in , County, Mississippi and can be served ... through its registered agent, at , , Mississippi.

5. is a Mississippi corporation with its principal place of business in , County, Mississippi and can be served with process of this Court.

JURISDICTION AND VENUE

6. The Court has jurisdiction and venue. does business in the State of Mississippi, including, but not limited to, making and extending loans and, in a systematic and ongoing way, acquiring and owning deeds of trust and security interests in properties in Mississippi, including , and Counties, Mississippi.

7. has purposefully availed itself of the benefits of conducting business in Mississippi by entering into agreements with the to be performed in whole or in part in Mississippi.

8. has committed torts against the , the injurious effect of which occurred in Mississippi resulting in economic damage and losses in Mississippi.

FACTUAL BACKGROUND

12. For over years, the have been in the business of acquiring, developing, investing in, and selling properties and other assets which include mineral interests, oil and gas leases, oil and gas wells, real estate and timberland.

13. The began doing business with in .

14. Since , the have been one of the substantial customers of .

15. For example, the are presently involved in a sale of approximately acres of timberland in .

19. As a portion of the security for their indebtedness to the , the on executed a certain Land Deed of Trust to , Trustee, for the benefit of .

FIRST CLAIM

Injunctive Relief

21. The allegations of paragraphs 1 through 20 are incorporated herein by reference.

22. In order to preserve the status quo and prevent irreparable harm, and should be enjoined ... from attempting to foreclose on and from foreclosing on any of the lands and properties until after a judgment has been rendered.

SECOND CLAIM

Breach of Contract

29. The allegations of paragraphs 1 through 28 are incorporated herein by reference.

30. In the alternative, the are entitled to damages resulting from 's breach of its agreements with the .

THIRD CLAIM

Breach of Duties of Good Faith and Fair Dealing

31. The allegations of paragraphs 1 through 30 are incorporated herein by reference.

32. These are duties of good faith and fair dealing, whether expressed or implied, in every agreement.

33. The actions of in connection with the agreements entered into with the constitute a breach of the duties of good faith and fair dealing owed by to the .

FOURTH CLAIM

Breach of Fiduciary Duties

36. The allegations of paragraphs 1 through 35 are incorporated herein by reference.

37. 's said conduct constitutes a breach of its fiduciary duties to the .

FIFTH CLAIM

Breach or Anticipatory Breach of Agreement Concerning the Application of Sale Proceeds

39. has breached or has threatened to breach an agreement between the and regarding the use and application of monies.

40. In , the entered into an agreement with concerning certain oil, gas, and mineral interests in .

SIXTH CLAIM

Incorrect Charges and Applications

47. has breached its agreements with the by arbitrarily applying payments to interest in lieu of principal, charging interest on advances of principal on a premature date, arbitrarily adjusting interest rates, and calculating and charging interest on a daily rate for 365 days a year based on a 360 day year.

SEVENTH CLAIM

Punitive Damages

50. has willfully, intentionally and tortuously breached its agreements with and duties to the , and has acted in bad faith.

WHEREFORE, PREMISES CONSIDERED, the pray that summons issue to the Defendants in accordance with law, and that the Court will grant the following relief to the Plaintiffs:

(1) Immediately issue a temporary restraining order and a preliminary injunction against , , , and prohibiting them from proceeding ...;

(2) A declaratory judgment or other appropriate decree that the are not in default ...;

(3) A judgment for the against for the actual damages suffered;

(4) A judgment for the against for not less than $ punitive damages;

(5) A judgment for the against for all incidental and consequential damages;

(6) A judgment that, out of the sales proceeds to be received by the from the sale of the timberland, the are entitled to bring accrued interest current and use $ of the proceeds ...;

(7) Other appropriate temporary, preliminary and permanent injunctive relief; and

(8) A judgment for the against for attorney's fees and costs of Court herein.

AND the pray for such further additional, general or specific relief to which they may be entitled.

STATE OF MISSISSIPPI

COUNTY OF

PERSONALLY APPEARED BEFORE ME, the undersigned authority in and for the county and state aforesaid, the within named who being by me first duly sworn, acknowledged that he/she signed and delivered the above and foregoing Complaint for Injunctive Relief, Breach of Contract, Breach of Fiduciary Duty, Declaratory Judgment and Punitive Damages on the day and year therein mentioned and for the intent and purposes therein expressed.

_________________________________________

SWORN TO AND SUBSCRIBED BEFORE ME, this the day of , .

______________________________

NOTARY PUBLIC

MY COMMISSION EXPIRES: