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CodeWarriorz Thoughts: =====================Bascom v Wells Fargo Bank CodeWarriorZ BlueZ

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Thursday, February 17, 2005

 

=====================Bascom v Wells Fargo Bank





Bascom v. Wells Fargo

Update December 14, 2002.

Think you've had problems with your bank? Take a look at Wells Fargo did to customers of more than 10 years. Remember, this is a verified complaint that was filed in Los Angeles Superior Court. That means that Vera and Mark Bascom have sworn, under penalty of perjury, that everything set forth below is true.

Wells Fargo Bank claims that Vera and Mark Bascom were at fault for the incidents described below. Their attorney is Mark Newton of Barton, Klugman & Oetting. He can be reached at (213) 621-4000. I am sure he will be happy to explain Wells Fargo Bank's position with respect to this case.

Wondering why a pleading describing such personal information is posted? Two weeks ago, Wells Fargo Bank "charged off" the Bascoms' account, reporting the charge off it to various credit agencies.

On Friday, December 13, 2002, the Honorable J. Michael Byrne of Department R of the Los Angeles Superior Court enforced an arbitration provision in the Bascoms' account. Judge Byrne held that the Wells Fargo Bank account agreement was not an adhesion contract.

We'll be appealing the Court's decision to send this matter to arbitration.

Cynthia Coulter Mulvihill, Esq. SBN 171909
Sheral A. Hyde, Esq. SBN 131452
Sandra K. Thomson, Esq. SBN 167763
LAW OFFICES OF CYNTHIA COULTER MULVIHILL
212 W. Foothill Boulevard PO Box 1007
Monrovia CA 91017-1007
(626) 358-7471 Fax: (626) 358-2894
E-Mail: Cmulvihill@cmsynergy.com
Attorneys for Plaintiffs VERA S. BASCOM and MARK BASCOM
SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES, PASADENA



VERA S. BASCOM and MARK BASCOM,

Plaintiffs,

vs.

WELLS FARGO BANK, N.A., and DOES 1 through 100,



Defendants.


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CASE NO.: 02C00599 RECLASSIFIED TO GC 030463

VERIFIED FIRST AMENDED COMPLAINT OF VERA S. BASCOM and MARK BASCOM FOR:

1. BREACH OF CONTRACT
2. BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING
3. DEFAMATION
4. NEGLIGENCE
5. NEGLIGENT MISREPRESENTATION
6. FRAUDULENT TRANSFER
7. UNJUST ENRICHMENT
8. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
9. UNFAIR COMPETITION LAW (B&P CODE §17200 ET. SEQ.)

[LIMITED CIVIL CASE TO BE RECLASSIFIED BY VERIFIED FIRST AMENDED COMPLAINT TO UNLIMITED JURISDICTION]


Comes now the Plaintiffs VERA S. BASCOM and MARK BASCOM and allege against Defendants WELLS FARGO BANK N.A. and DOES 1 through 100 the following:

1. At all times mentioned herein, Plaintiffs VERA S. BASCOM and MARK BASCOM, a married couple, are and were residents of the City of Duarte in the County of Los Angeles.

2. At all times mentioned herein, Defendant WELLS FARGO BANK N.A., a business form unknown, was authorized to do business and doing business in the county of Los Angeles.

3. All of the acts and omissions alleged herein, took place at or near WELLS FARGO BANK N.A., Duarte Office, 1193 East Huntington Drive, Duarte, CA 91010.

4. The true names or capacities whether individuals, corporate, associate or otherwise, of the Defendants named herein DOES 1 through 100, inclusive, are unknown to the Plaintiffs, who sue said Defendants by fictitious names. Plaintiffs will amend this Complaint to show the true names and capacities when the same have been ascertained

5. The Plaintiffs are informed and believe and thereon allege that the fictitiously named Defendants named herein, and each of them, are in some way indebted to the Plaintiffs for the acts and obligations alleged herein.

6. At all time herein mentioned, each of the Defendants was the agent and employee of each of their Co-Defendants, and in doing the things herein mentioned, were acting in the scope of their authority as such agents and employees, and within the permission and consent of their Co-Defendants.

7. Since approximately 1990, Plaintiff MARK BASCOM have had a checking account with WELLS FARGO BANK N.A. (“THE ACCOUNT”). Until August 2002, MARK BASCOM had a savings account in his name which was linked to THE ACCOUNT. VERA BASCOM was added to the account on or about April, 2002.

8. VERA S. BASCOM paychecks have been direct deposited to THE ACCOUNT since approximately May, 2002. MARK BASCOM’S paycheck as an employee of the City of Los Angeles has been direct deposited to THE ACCOUNT for approximately 10 years. MARK BASCOM’S military pension has also been direct deposited to THE ACCOUNT for many years.

9. Since March 17, 2002, VERA S. BASCOM had been under a doctors’ care for an illness that has not bee diagnosed. Between the months of March 2002 and July 2002 she had lost 51 pounds. VERA S. BASCOM is also a diabetic and has a heart condition. VERA S. BASCOM is a disabled person within the meaning of the laws of the State of California, and in fact, has been issued a disabled parking permit by the Department of Motor Vehicles.

10. MARK BASCOM was a plaintiff member of a class action lawsuit (“Meadows Class Action”) against the City of Los Angeles brought on behalf of the employees of the City of Los Angeles Bureau of Sanitation regarding unpaid overtime.



11. Around the end of April 2002, MARK BASCOM received a letter from the attorney representing the class, which indicated that the matter had been settled and that MARK BASCOM would receive a settlement of about $2,495, before taxes. That settlement was to be paid in the form of a paycheck, with taxes withheld.



12. VERA S. BASCOM and MARK BASCOM estimated that MARK BASCOM would receive, after taxes, a paycheck of around $2,100 from the City of Los Angeles in fulfillment of that settlement for unpaid overtime.



13. Shortly after June 12, 2002, VERA S. BASCOM and MARK BASCOM received a Wells Fargo statement for THE ACCOUNT with nothing remarkable on it.



14. A true and correct copy of the July 11, 2002, statement for THE ACCOUNT, with personal and account identification information redacted, is attached hereto as Exhibit “A” and incorporated herein by reference.



15. VERA S. BASCOM is informed and believes, and based upon such information and belief alleges that on Thursday, June 13, 2002, a deposit of $2,118.00 was made to THE ACCOUNT (Exhibit “A” page 2).



16. On June 14, 2002, VERA S. BASCOM checked the balance in THE ACCOUNT after making a customary cash withdrawal of $300 from her account (Exhibit “A” page 2). At that time she realized that there was approximately in THE ACCOUNT that had not come from either VERA S. BASCOM’S or MARK BASCOM’S regular paychecks, or from MARK BASCOM’S military pension.



17. On June 14, 2002 VERA S. BASCOM called WELLS FARGO BANK N.A. Customer Service at 1-800-869-3557 and asked to review deposits to THE ACCOUNT. At that time, VERA S. BASCOM was told by WELLS FARGO BANK N.A., that a $2,118.00 direct deposit had been made to her checking account on June 13, 2002. VERA S. BASCOM does not know the name of the Customer Service Representative that she spoke with, although she recalls that the Customer Service Representative. THE ACCOUNT was debited $2.00 for that call (Exhibit “A” page 3).



18. VERA S. BASCOM asked the WELLS FARGO BANK N.A. Customer Service Representative where the $2,118.00 had come from. The Customer Service Representative told her that the deposit was a direct deposit but that she did not have any information about the source of the deposit.



19. Because VERA S. BASCOM and MARK BASCOM knew that MARK BASCOM was to receive a settlement from the City of Los Angeles, in the form of a direct deposit to THE ACCOUNT, in an after tax amount they believed would be around $2,100.



20. Therefore, VERA S. BASCOM and MARK BASCOM understandably, reasonably, and justifiably believed that the deposit made on June 13, 2002 was the settlement that they had been informed about.



21. After that, from time to time, VERA S. BASCOM and MARK BASCOM made periodic a cash withdrawals of $300 from THE ACCOUNT. The last $300 withdrawal was on July 3, 2002 (Exhibit “A” page 2 and 3).



22. VERA S. BASCOM was informed and believes and based upon such information and belief alleges, that a hold was placed on her checking account on July 2, 2002 by Johanna Osinga of the Duarte Branch of WELLS FARGO BANK N.A. VERA S. BASCOM and MARK BASCOM did not learn of the July 2, 2002 hold until July 9, 2002.



23. VERA S. BASCOM was informed and believes and based upon such information and belief alleges, that the hold was removed on July 3, 2002, by Michelle Munger, who is with a Portland, Oregon WELLS FARGO BANK N.A. office that deals with “court holds.” VERA S. BASCOM and MARK BASCOM did not learn of the July 2, 2002 hold release until July 9, 2002.

21. VERA S. BASCOM is informed and believes and based upon such information and belief alleges, that a “court hold” is a hold placed on a minor’s account by a court. She is also informed and believes that in California, those types of accounts are called “Coogan” trust or “Coogan” accounts.

24. On Wednesday, July 3, 2002, “Rosy” at the Duarte Branch of WELLS FARGO BANK N.A. called VERA S. BASCOM at home and told her that the money WELLS FARGO BANK N.A. had deposited on June 13, 2002, into THE ACCOUNT, was money that should have been deposited to another customer’s account. “Rosy” also told VERA S. BASCOM that all of the money in THE ACCOUNT would be debited to cover the $2,118 that WELLS FARGO BANK N.A. had erroneously placed in THE ACCOUNT. Rosy also told VERA S. BASCOM that someone from WELLS FARGO BANK N.A. would be contacting her on Friday July 5, 2002.



25. On July 3, 2002, VERA S. BASCOM made two calls to WELLS FARGO BANK N.A. Customer Service at 1-800-869-3557 to find out what had happened with the account. She was charged $2.00 for each telephone call (Exhibit “A” page 3).

22. On July 5, 2002, VERA S. BASCOM left two messages for the Duarte Branch Bank manager, Marcos Castro. Each time, she was told that he was unavailable. Marcos Castro has never returned any of VERA S. BASCOM’S calls.

26. On July 5, 2002, VERA S. BASCOM called a Customer Service Representative at 1-800-869-3557 and explained that she could not afford to return the money to WELLS FARGO BANK N.A. at once. VERA S. BASCOM offered to make a two payments to WELLS FARGO BANK N.A. VERA S. BASCOM offered to pay WELLS FARGO BANK N.A. $1059 on or about July 15, 2002 and then pay the remaining balance of $1059 on or about July 31, 2002, when money was to be direct deposited to THE ACCOUNT by MARK BASCOMS’ employer and his military pension. However, Customer Service Representative the supervisor that she spoke with on July 5, 2002, regarding the payment plan told VERA S. BASCOM that WELLS FARGO BANK N.A. would not negotiate a payment plan. THE ACCOUNT was debited $2.00 for this telephone call (Exhibit “A” page 3).

23. On July 5, 2002, a direct payroll deposit of $84.90 was made to THE ACCOUNT. WELLS FARGO BANK N.A. did not credit THE ACCOUNT for that amount on July 5, 2002.

27. On July 5, 2002, WELLS FARGO BANK N.A. debited $2,118.00 from THE ACCOUNT without consent, permission, and without notifying the Plaintiffs of the withdrawal (Exhibit “A” page 3).

28. WELLS FARGO BANK N.A. then withdrew $60.00, from MARK BASCOM’S savings account, the entire amount in the account at the time, and transferred it into THE ACCOUNT and applied that amount to the deficient balance. WELLS FARGO BANK N.A. debited THE ACCOUNT $7.50 for transferring the money from savings to checking (Exhibit “A” page 3 and 4).

29. The July 5, 2002, debit put THE ACCOUNT into a deficit balance of $1,719.41.

30. On or about July 3, 2002 A WELLS FARGO BANK N.A. Customer Service Representative has deactivated THE ACCOUNT ATM cards, telling VERA S. BASCOM and MARK BASCOM that the deactivation was because they misappropriated funds.

31. At some time between July 3, 2002 and July 5, 2002 WELLS FARGO BANK N.A. canceled VERA S. BASCOM and MARK BASCOM’S ATM/Check Card/and Credit Card. WELLS FARGO BANK N.A. told VERA S. BASCOM that it was because they misused funds in THE ACCOUNT.

33. Because the ATM cards were cancelled or deactivated, VERA S. BASCOM and MARK BASCOM could not check the balance in THE ACCOUNT telephoning WELLS FARGO BANK N.A. Customer Service and being charged $2.00. VERA S. BASCOM and MARK BASCOM did not want to go into a WELLS FARGO BANK N.A. branch and face the humiliation of talking to employees who had been told that they were thieves, or worse yet, risk having someone overhear that they had misappropriated funds.

34. On July 5, 2002, VERA S. BASCOM and MARK BASCOM owed rent, and had no funds to pay the rent.

35. VERA S. BASCOM and MARK BASCOM also owed a water bill of approximately $128 to American Water, which was due on July 9, 2002. VERA S. BASCOM and MARK BASOCOM’S attorney negotiated a two-week extension to pay that bill.

36. VERA S. BASOCM and MARK BASCOM had an outstanding phone bill with Verizon. VERA S. BASCOM negotiated an extension on payment of the phone bill but was charged late fees.

37. VERA S. BASCOM and MARK BASCOM also had a car payment due on July 11, 2002. That payment was made eventually, but it was made late.

38. VERA S. BASCOM and MARK BASCOM also had no money to buy gas.

39. VERA S. BASCOM and MARK BASCOM had no money to buy food. They had food that was set in reserve for a natural disaster, and ate that food.

40. After direct deposits and fees THE ACCOUNT had a deficit of $1,582.01.

41. VERA S. BASCOM made one call to WELLS FARGO BANK N.A. Customer Service on July 7, 2002 and three calls to WELLS FARGO BANK N.A. Customer Service on July 8, 2002, to try to resolve the situation. THE ACCOUNT was debited $2.00 for each of the calls.

42. On July 10, 2002, the Court issued a Temporary Restraining Order against WELLS FARGO BANK N.A., requiring that Wells FARGO BANK N.A. return the $2,118.00 debited from THE ACCOUNT.

43. VERA S. BASCOM is informed and believes, and based upon such information and belief alleges, that on July 10, 2002, Johanna Osinga, an employee who is authorized to accept service of process, at the Wells Fargo Duarte Branch, upon receiving the Summons and Complaint, the Temporary Restraining Order, Ex Prate Application for Order Shortening Time For Hearing on Plaintiffs Temporary Restraining Order to Show Cause Re Preliminary Injunction, Declaration of Vera S. Bascom in Support of Ex Parte Application for Temporary Restraining Order Against Wells Fargo, Order to Show Cause Re Preliminary Injunction and the Declaration Of Cynthia Coulter Mulvihill Re Notice of Ex Parte Hearing; stated that the Defendants WELLS FARGO BANK N.A. would not comply with the Court’s Temporary Restraining Order.

44. VERA S. BASCOM made two telephone calls to WELLS FARGO BANK N.A. on July 10, 2002, to see if the $2,118 had been returned to THE ACCOUNT. It had not. THE ACCOUNT was debited $2.00 for each call made.

45. On July 10, 2002, after being informed that WELLS FARGO BANK N.A. would not comply with the Court’s order, VERA S. BASCOM and MARK BASCOM took a $500 direct deposit cash advance from THE ACCOUNT and immediately cashed a check for $450. That amount was used to open an account at a different bank. VERA S. BASCOM and MARK BASCOM do not dispute this advance.

46. However, WELLS FARGO BANK N.A has alleged that VERA S. BASCOM and MARK BASCOM took another $500 direct deposit cash advance from THE ACCOUNT on July 11, 2002 (Exhibit “A”, page 3). WELLS FARGO BANK N.A. alleged that this occurred in a series of four phone calls made by MARK BASCOM the morning of July 11, 2002. Those phone calls, for which THE ACCOUNT would have been charged under WELLS FARGO BANK N.A. banking policy, are not on THE ACCOUNT statement, and THE ACCOUNT was not charged for them (Exhibit “A”, page 3). Nevertheless, WELLS FARGO BANK N.A. has made repeated demands that VERA S. BASCOM and MARK BASCOM repay the phantom July 11, 2002 cash advance.

47. On July 11 2002, the defendants WELLS FARGO BANK N.A. credited VERA S. BASCOM and MARK BASCOM’S account $2,118. That amount included the $550.99 addressed by the Court in its Temporary Restraining Order, plus $1567.01 encumbered by WELLS FARGO on July 10, 2002. Arrangements were also made to credit VERA S. BASCOM and MARK BASCOM’S account an additional $50 for fees incurred with respect to this matter.

48. On Friday, July 12, 2002, VERA S. BASCOM withdrew $2,050 from her account and opened an account on July 15, 2002, at a different bank, and deposits that money at the new bank.

49. VERA S. BASCOM and MARK BASCOM are informed and believe that WELLS FARGO BANK N.A. has placed an indicator on VERA S. BASCOM and MARK BASCOM’S account which states that VERA S. BASCOM and MARK BASCOM misappropriated funds. On or about September 9, 2002, WELLS FARGO BANK N.A. threatened to “charge off” the account.

50. On or about September 9, 2002, WELLS FARGO BANK N.A. again withdrew the entire amount addressed by the temporary restraining order from the account, without this Court’s permission or consent.

51. On or about September 9, 2002, “Julie” or “Julietta”, who represented herself as being an employee of WELLS FARGO BANK N.A., contacted VERA S. BASCOM at her home in Duarte, California, and demanded that VERA S. BASCOM discuss the overdraft associated with THE ACCOUNT. VERA S. BASCOM instructed “Julie” or “Julietta” to contact her attorney, and to refrain from contacting her about THE ACCOUNT.

52. Ever since VERA S. BASCOM and MARK BASCOM have found out about the situation, neither of them has been able to sleep an entire night. VERA S. BASCOM has been getting 3 hours of sleep each night and also having even more trouble eating then she did before. VERA S. BASCOM has had to increase the dosage of her medicine that decreases her nausea and cramping.

53. VERA S. BASCOM is terrified that she will loose her home and her car. She believes that her health has already suffered.

54. MARK BASCOM was born on December 9, 1941. He has high blood pressure, diabetes, and high cholesterol. MARK BASCOM is informed and believes that his blood pressure has become elevated as a result of the stress that he has suffered from this series of events.

FIRST CAUSE OF ACTION

(BREACH OF CONTRACT AGAINST WELLS FARGO BANK N.A. and DOES 1 through 100, inclusive)

55. Plaintiffs incorporate paragraphs 1 through 65 by reference.

56. On or about 1991, MARK BASCOM entered into a written contract with WELLS FARGO BANK N.A. for banking services. The terms of that contract are in the care, custody and control of WELLS FARGO BANK N.A. The general terms of the contract are that WELLS FARGO BANK N.A. is to accept money for deposit to THE ACCOUNT by VERA S. BASCOM and MARK BASCOM; to administer withdrawals through checks, ATMs, and check cards; and to accurately account for those withdrawals.

57. VERA S. BASCOM and MARK BASCOM fulfilled their obligations under the terms of the agreement, except those that which were excused.

58. Between June 13, 2002 and September 16, 2002 the Defendants, WELLS FARGO BANK N.A. were and are in breach of contract when they erroneously transferred $2,118.00 into the Plaintiffs account; placed a “court hold” on their account; transferred money from one account to cover the deficit in another account without informing VERA S. BASCOM and MARK BASCOM of said transfer; charged the Plaintiffs additional fees resulting from it’s seizure of THE ACCOUNT; and again withdrew funds from THE ACCOUNT, causing it to be in an overdraft state; and threatened to place a negative mark on VERA S. BASCOM and MARK BASCOM’S credit rating.

59. As a result, VERA S. BASCOM and MARK BASCOM are entitled to all damages arising from the breach of contract, in an amount that exceeds the jurisdiction of this court, including but not limited to:

(a) For general damages;

(b) For compensatory damages, in an amount to compensate for the Breach of Contract;

(c) For costs of suit incurred herein, including, but not limited to, expert fees;

(d) For other attorneys’ fees as allowed by contract or law; and

(e) For such other and further relief as is fair, just and equitable.

SECOND CAUSE OF ACTION

BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING AGAINST WELLS FARGO BANK N.A., and DOES 1 through 100, inclusive)

60. Plaintiffs incorporate paragraphs 1 through 70 by reference.

61. On or about 1991, VERA S. BASCOM and MARK BASCOM entered into a written contract with the Defendants WELLS FARGO BANK N.A. for banking services.

63. VERA S. BASCOM and MARK BASCOM fulfilled their duties, under the terms of the agreement, except those which were excused.

64. Defendants WELLS FARGO BANK N.A. breached this implied covenant when they failed to cooperate with VERA S. BASCOM and MARK BASCOM in their attempts to perform their part of the contract.

65. As a result, VERA S. BASCOM and MARK BASCOM are entitled to all damages arising from the Defendant’s breach of the Implied Covenant of Good Faith and Fair Dealing, in an amount that exceeds the jurisdiction of this court, including but not limited to:

(a) For general damages

(b) For compensatory damages;

(c) For punitive damages;

(d) For Costs of suit incurred herein, including, but not limited to, costs for expert fees;

(e) For other attorney’s fees as allowed by contract or law; and

(f) For such other and further relief as is fair, just, and equitable.

THIRD CAUSE OF ACTION
(DEFAMATION AGAINST WELLS FARGO BANK N.A., and DOES 1 through 100, inclusive)

66. Plaintiffs incorporate paragraphs 1 through 75 by reference.

67. On around July 5, 2002 WELLS FARGO BANK N.A. placed a statement in VERA S. BASCOM and MARK BASCOM’S bank records that the Plaintiffs “misappropriated funds.”

68. The words were written of or concerning VERA S. BASCOM and MARK BASCOM because they were placed on their bank records.

69. WELLS FARGO BANK N.A. placed the statement that VERA S. BASCOM and MARK BASCOM “misappropriation of funds” in the Plaintiffs bank records.

70. VERA S. BASCOM and MARK BASCOM are informed and believe, and based upon the representations made by WELLS FARGO BANK N.A., that such information has been disseminated to third parties.

71. This statement by WELLS FARGO BANK N.A. has negatively effected VERA S. BASCOM and MARK BASCOM’S standing within the community.

72. As a result, VERA S. BASCOM and MARK BASCOM are entitled to damages arising from the Defendant’s Defamation in an amount that exceeds the jurisdiction of this court, including but not limited to:

a. For General damages arising from the Defendant’s defamation;

b. For compensatory damages, in an amount to compensate for the defamation;

c. For punitive damages, to make an example of the Defendant’s

d. For costs of suit incurred herein, including, but not limited to, expert fees;

e. For attorney’s fees allowed by contract or law;

f. For special damages;

g. For nominal damages; and

h. For such other and further relief as is fair, just, and equitable.

FOURTH CAUSE OF ACTION

(NEGLIGENCE AGAINST WELLS FARGO BANK N.A., and DOES 1 through 100, inclusive)

73. Plaintiffs incorporate paragraphs 1 through 82 by reference.

74. Defendants WELLS FARGO BANK N.A. owed a duty VERA S. BASCOM and MARK BASCOM to correctly and competently manage their bank account.

75. Defendants WELLS FARGO BANK N.A. breached that duty to VERA S. BASCOM and MARK BASCOM in the way that the Defendant’s handled the correction of the erroneous transfer of $2.118 to the account of VERA S. BASCOM and MARK BASCOM.

76. As a result, VERA S. BASCOM and MARK BASCOM are entitled to damages arising from the Defendant’s negligence, in an amount that exceeds the jurisdiction of this court, including but not limited to:

(a) For general damages arising from the Defendant’s negligence;

(b) For compensatory damages, in an amount to compensate for the negligence;

(c) For costs of suit incurred herein, including but not limited to expert fees;

(d) For other attorney’s fees as allowed by contract or law; and

(e) For other and further relief as is fair, just and equitable.

FIFTH CAUSE OF ACTION

(NEGLIGENT MISREPPRESENTATION AGAINST WELLS FARGO BANK N.A., and DOES 1 through 100, inclusive)

77. Plaintiffs incorporate paragraphs 1 through 86 by reference.

78. On or about July 1, 2002 WELLS FARGO BANK N.A. made representations of a material fact when a Customer Service Representative told VERA S. BASCOM that the funds in questions had been properly deposited in her account and were available for withdrawal.

79. VERA S. BASCOM requested information regarding the origin of the deposit and the Customer Service Representative was unable to provide VERA S. BASCOM with that information and as such VERA S. BASCOM assumed that the money was the expected direct deposit.

80. The Customer Service Representatives representations were in fact false as the funds were actually funds negligently misdeposited by WELLS FARGO BANK N.A. on June 13, 2002, and the error was not discovered by WELLS FARGO BANK N.A. until July 5, 2002, at which time VERA S. BASCOM and MARK BASCOM’S accounts were frozen.

81. When the Customer Service Representative at WELLS FARGO BANK N.A. made that representation that the money was available for withdrawal they had no reasonable grounds for believing that the representation was true.

82. WELLS FARGO BANK N.A. made the representations with the intent that VERA S BASCOM and MARK BASCOM rely on the statements of the Customer Service Representative.

83. In reliance on the Customer Service Representatives statement that the money was available for withdrawal, VERA S. BASCOM spent the inappropriately deposited funds in the normal course of daily life.

84. VERA S. BASCOM and MARK BASCOM are informed and believe that their credit score has been negatively impacted. They have also suffered severe emotional distress over their finances and financial standing within the community.

85. As a result of WELLS FARGO BANK N.A.’S negligent misrepresentations, VERA S. BASCOM and MARK BASCOM suffered damages in excess of the jurisdiction of this court, which includes, but is not limited to:

(a) For general damages arising from the Defendant’s negligent misrepresentation;

(b) For compensatory damages, in an amount to compensate for the negligent misrepresentation;

(c) For costs incurred herein, including, but not limited to, expert fees;

(d) For other attorney’s fees as allowed by contract or law; and

(e) For such other and further relief as is fair, just and equitable.

SIXTH CAUSE OF ACTION

(FRAUDLENT TRANSFER AGAINST WELLS FARGO BANK N.A., and DOES 1 through 100, inclusive)

86. Plaintiffs incorporate paragraphs 1 through 95 by reference.

87. WELLS FARGO BANK N.A., is a creditor as they alleges a right to payment for the misdeposited money.

88. On June 13, 2002, WELLS FARGO BANK N.A. negligently transferred $2,118 into the account of VERA S. BASCOM and MARK BASCOM.

89. On or about July 5, 2002, WELLSFARGO BANK withdrew $2,118 from VERA S. BASCOM’S checking account to cover the negligent transfer without her consent.

90. On or about July 5, 2002, WELLS FARGO BANK N.A. withdrew $60 from MARK BASCOM’S account without his consent and transferred it into VERA S. BASCOM’S checking account

91. On or about September 9, 2002, WELLS FARGO BANK N.A. again took money from THE ACCOUNT without the consent or knowledge of VERA S. BASCOM or MARK BASCOM.

92. These non-approved transfers delayed VERA S. BASCOM and MARK BASCOM’S ability to pay their bills

93. As a result, VERA S. BASCOM and MARK BASCOM are entitled to damages arising from the Defendant’s fraudulent transfer, in an amount that exceeds the jurisdiction of this court, including but not limited to;

(a) For general damages arising from the Defendant’s fraudulent transfer;

(b) For compensatory damages, in an amount to compensate for the fraudulent transfer;

(c) For costs of suit incurred herein, including but not limited to expert fees;

(d) For punitive damages;

(e) For other attorney’s fees as allowed by contract or law; and

(f) For other and further relief as is fair, just and equitable.

SEVENTH CAUSE OF ACTION

(UNJUST ENRICHMENT AGAINST WELLS FARGO BANK N.A., and DOES 1 through 100, inclusive)

94. Plaintiffs incorporate paragraphs 1 through 103 by reference.

95. WELLS FARGO BANK N.A. has been receiving the benefit of an unapproved $500 a month advance from VERA S. BASCOM and MARK BASCOM’S account that they are not entitled to receive.

96. WELLS FARGO BANK N.A. has also charged VERA S. BASCOM and MARK BASCOM repeated service charges arising from this series of events.

97. By retaining VERA S. BASCOM and MARK BASCOM’S money WELLS FARGO BANK N.A. is denying the Plaintiffs the use of their money at their expense.

98. As a result, the Plaintiffs are entitled to damages arising from the Defendant’s Unjust Enrichment, in an amount that exceeds the jurisdiction of this court, including but not limited to:

(a) A constructive trust over the funds;

(b) Restitution in the amount of the benefit conferred, if such action will not violate or frustrate the law or public policy; and

(c) An equitable lien.

EIGHTH CAUSE OF ACTION

(INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AGAINST WELLS FARGO BANK N.A., and DOES 1 through 100, inclusive)

99. Plaintiffs incorporate paragraphs 1 through 108 by reference.

100. Defendants WELLS FARGO BANK N.A. conduct was extreme and outrageous.

101. As a result of having to endure the Defendants extreme and outrageous conduct VERA S. BASCOM and MARK BASCOM suffered severe emotional distress over fear of loosing their house, car, and good credit rating.

102. As such, VERA S. BASCOM and MARK BASCOM are entitled to damages arising from the Defendants intentional infliction of emotional distress, in an amount that exceeds the jurisdiction of this court and includes but is not limited to:

(a) For general damages arising from the Defendants’ intentional infliction of emotional distress

(b) For compensatory damages, in an amount to compensate for the emotional distress;

(c) For punitive damages, to make an example of the Defendants;

(d) For costs incurred herein, including, but not limited to, expert fees;

(e) For other attorney’s fees as allowed by contract or law; and

(f) For such other and further relief as is fair, just, and equitable.

TENTH CAUSE OF ACTION

VIOLATION OF BUSINESS & PROFESSIONS CODE §17200 ET. SEQ.

(AGAINST ALL DEVENDANTS)

103. Plaintiffs incorporate paragraphs 1 through 112 by reference.

104. Business & Profession Code §17200 states, “Unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1.”

105. Plaintiffs have standing to bring this action under Business & Professions Code §17204, as actions may be bought “by any person acting for the interests of itself, its members or the general public.”

106. Plaintiffs are entitled to damages from WELLS FARGO BANK N.A., including but not limited to:

(a) For general damages;

(b) For compensatory damages;

(c) For civil penalties under Business & Professions Code § 17206;

(d) For special civil penalties § 17206.1, Additional civil penalty; Acts against senior citizens or disabled persons, as Plaintiff VERA S. BASCOM is disabled and Plaintiff MARK BASCOM is a senior citizen.

(e) For punitive damages, to make an example of the Defendants;

(f) For costs incurred herein, including, but not limited to, expert fees;

(g) For other attorney’s fees as allowed by contract or law; and

(f) For such other and further relief as is fair, just, and equitable.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray that the court make its declaration and orders and enters its judgment against the Defendants and each of them as follows:

(1) For general damages, in an amount to be proven at the time of trial but in excess of the jurisdiction of this court;

(2) For compensatory damages;

(3) For punitive damages;

(4) For Cumulative penalties, as set forth in Business & Professions Code §17205;

(5) For civil penalties under Business & Professions Code § 17206;

(6) For civil penalties under Business & Professions Code § 17206.1;

(7) For costs of suit incurred herein, including, but not limited to, expert fees;

(8) For attorney’s fees allowed by contract;

(9) For attorney’s fees allowed by law; and

(10) And for such other and further relief as is fair, just and equitable.

DATED: September 19, 2002 LAW OFFICES OF CYNTHIA COULTER MULVIHILL





______________________________________

CYNTHIA COULTER MULVIHILL

Attorney for Plaintiffs VERA S. BASCOM and MARK BASCOM




EXHIBIT “A”




STATE OF CALIFORNIA )

) SS.

COUNTY OF LOS ANGELES )



I, the undersigned, certify and declare that I have read the foregoing Verified First Amended Complaint and know its contents. I am a party to this action. The matters stated in the document described above are true of my own knowledge and belief except as to those matters stated on information and belief, and as to those matters I believe them to be true.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed this ____ of September, 2002 in Monrovia, California.



____________________________________

VERA S. BASCOM




STATE OF CALIFORNIA )

) SS.

COUNTY OF LOS ANGELES )



I, the undersigned, certify and declare that I have read the foregoing Verified First Amended Complaint and know its contents. I am a party to this action. The matters stated in the document described above are true of my own knowledge and belief except as to those matters stated on information and belief, and as to those matters I believe them to be true.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed this ____ of September, 2002 in Monrovia, California.



____________________________________

MARK BASCOM




PROOF OF SERVICE BY MAIL

(1013A, 2015.5 C.C.P.)



STATE OF CALIFORNIA, COUNTY OF LOS ANGELES:



I am employed in the aforesaid county, State of California; I am over the age of eighteen years and not a party to the within action; my business address is: 212 W. Foothill Blvd, PO Box 1007, Monrovia, CA 91017.



On September 19, 2002, I served the foregoing document described as VERIFIED FIRST AMENDED COMPLAINT OF VERA S. BASCOM and MARK BASCOM on the interested parties in this action by placing a true copy thereof, enclosed in a sealed envelope with postage thereon fully prepaid, in the United States mail at Monrovia, California, addressed as follows:



Mr. Mark A. Newton

Barton Klugman & Oetting

333 S. Grand Avenue Suite 3700

Los Angeles CA 90071





[XX] BY MAIL: I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing, that the mail would be deposited with the United States postal service on that same day with postage thereon fully prepaid at Monrovia, California in the ordinary course of business. I am aware that 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.



[ ] BY FACSIMILE: The facsimile machine I used complied with Rule 2003(3), and no error was reported by the machine.



Transmission was sent from Fax No. (626) 358-2894 to all of the Fax Nos. of the parties on the attached Mailing List. Pursuant to Rule 2005(i), I caused the machine to print a record of each of the parties which includes the date and time transmitted.



[ ] BY PERSONAL SERVICE



I certify (or declare), under penalty of perjury under the laws of the State of California, that the foregoing is true and correct. Executed on September 19, 2002, at Monrovia, California.





______________________________

Cynthia Coulter Mulvihill



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