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IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF ARIZONA
Your Name here , pro se andYour Name here, pro se Plaintiffs, Vs.BRIAN T. MOYNIHAN, and/or his successor, individually, and in his official capacity as PRES/CEO OF BAC HOME LOANS SERVICNG, LP,
JAMES F. TAYLOR and/or his successor, individually, and in his official capacity as PRES. OF FIN. & ADMIN. OF RECONTRUST COMPANY, N.A.,
BRIAN T. MOYNIHAN, and/or his successor, individually, and in his official capacity as PRES/CEO OF BANK OF AMERICA,
ANGELO MOZILO, and/or his successor, individually, and in his official capacity as former PRES/CEO OF COUNTRYWIDE HOME LOANS, INC.,
R.K. ARNOLD and/or his successor, individually, and in his official capacity as PRES/CEO OF MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.,
MICHAEL R. ZARRO JR. and/or his successor, individually, and in his official capacity as PRES/CEO EMC MORTGAGE CORPORATION,
MARY HAGGERTY and/or her successor, individually, and in her official capacity as PRES/CEO BEAR STERNS RESIDENTIAL MORTGAGE CORPORATION,
AND JOHN DOES (Investors) 1-10,000, Et al, Defendant.
)))))))))))))))))))))))))))))))))))
Case no: ???????????
COMPLAINT
(Oral argument requested)
(Assigned to Hon. ??????????)
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Your Name here pro se, and Your Name here, pro se (“Plaintiff”), hereby
files their Complaint.
Plaintiff states on and for the record, and as an offer of proof, in
accordance with the testimony of a certified forensic examiner, Plaintiff
believes that Defendants jointly and/or separately have violated: A.R.S. §§ 39-
161, 33-420, 13-2301 et seq, 33-801 et seq and/or other Arizona laws and if true;
Plaintiff believes Defendants have knowingly, intelligently and willfully with
full knowledge of the consequences thereof permanently forsaken the right
and/or standing to foreclose on Plaintiff’s real property.
Pursuant to 18 U.S.C. § 4, Plaintiff hereby notifies this Court of
numerous felonies Plaintiff believes the evidence proves Defendants have
committed, by and through their corporate entities.See Branzburg v. Hayes, 408 U.S. 665, 696-97 (1972) (citation omitted): “Such activity has been a federal crime since the First Congress, for “the common law recognized a duty to raise the `hue and cry’ and report felonies to the authorities. . . . It is apparent from this statute, as well as from our history and that of England, that concealment of crime and agreements to do so are not looked upon with favor. Such conduct deserves no encomium.”
The Courts have concluded that ‘misprision of felony’ is a crime of:“moral turpitude because it necessarily involves an affirmative act of concealment or participation in a felony, behavior that runs contrary to accepted societal duties and involves dishonest or fraudulent activity.”
The Supreme Court observed that:“Concealment of crime has been condemned throughout our history… Although the term “misprision of felony” now has an archaic ring, gross indifference to the duty to report known criminal behavior remains a badge of irresponsible citizenship.”
Plaintiff hereby alleges as follows:
PREFATORY STATEMENT
1. Upon information and belief, Plaintiff has discovered that
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Bank of America is not the Real Party of Interest.
2. Plaintiff has discovered no valid assignment assigning any rights for
their Deed of Trust to Bank of America has been recorded.
3. Therefore, upon information and belief, there is a broken chain of
title to which none of Defendants by and through their Corporations have any
right and/or authority to hold the Trustee Sale currently scheduled for August 24,
2010.
4. At issue is the fact Defendants’ Corporations are attempting to act as,
either the Beneficiary or Trustee with the Power of Sale, when it appears that
none of the Defendant’s Corporations possess any rights or authority to foreclose
on Plaintiff’s property.
5. Pursuant to, inter alia, U.C.C. and/or, inter alia, A.R.S. Title 47,
Plaintiff hereby questions the authenticity and validity of the signatures of all
parties, therefore requiring any and all said parties to provide evidence of
authenticity and validity for any and all signatures on any and all documents and/or
pleadings.
6. Pursuant to, inter alia, A.R.S. §§ 39-161, 13-2301et seq, 33-801 et seq,
33-420 and others, Plaintiff questions the authenticity and validity of all recorded
and/or notarized documents.
JURISDICTION AND PARTIES
7. Plaintiff is suing each of the Defendants and/or their successor,
individually in their official capacity as President/ CEO, and/or President of Finance
and Administration, and former President/CEO of their Corporations.
8. Plaintiff is holding each of the Defendants and/or their successor
accountable for what harm their Corporation has done to them.
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9. Each one of the Defendants and/or their successor, by and through
their Corporation (“Defendants”) has caused events to occur within the
jurisdiction of the Court from which Plaintiff’s complaint arises.
10. At all relevant times, the Defendants committed the acts, caused or
directed others to commit the acts, or permitted others to commit the acts alleged
in this Complaint. Any allegations about the acts of the Corporations means that
those acts were committed through their officers, directors, employees, agents,
and/or representatives while those individuals were acting within the actual or
implied scope of their authority.
11. Plaintiff is a married couple and citizens and civilians of the State of
Arizona.
12. At all times material hereto, Bear Stearns Residential Mortgage
Corporation (“Bear Sterns”) is a corporation that may be authorized to do business
in Arizona.
13. The Defendant, Mary Haggerty and or her successor or predecessor,
by and through her corporation, Bear Sterns caused events to occur within the
jurisdiction of the Court from which the Plaintiff’s complaint arises.
14. At all times material hereto, EMC Mortgage Corporation (“EMC”) is
a corporation that may be authorized to do business in Arizona.
15. The Defendant, Michael R. Zarro Jr. and or his successor or
predecessor, by and through his corporation, EMC caused events to occur within
the jurisdiction of the Court from which the Plaintiff’s complaint arises.
16. At all times material hereto Mortgage Electronic Registration
Systems Inc. (“MERS”) which has been a Delaware corporation that is neither
registered nor authorized to do business within the state of Arizona, as set forth in
the records of the Arizona Secretary of State.
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17. The Defendant R.K. Arnold and or his successor or predecessor, by
and through his corporation, MERS has caused events to occur within the
jurisdiction of the Court from which the Plaintiff’s complaint arises.
18. At all times material hereto, Countrywide Home Loans, Inc.
(“Countrywide”), a corporation that may be authorized to do business in Arizona.
19. The Defendant Angelo Mozilo, and or his successor or predecessor,
by and through his corporation, Countrywide, caused events to occur within the
jurisdiction of the Court from which the Plaintiff’s complaint arises.
20. At all times material hereto Recontrust Company, N.A.
(“Recontrust”), a foreign corporation, neither registered nor authorized to do
business within the state of Arizona, as set forth in the records of the Arizona
Secretary of State.
21. The Defendant, James F. Taylor, by and through his corporation,
Recontrust, caused events to occur within the jurisdiction of the Court from
which the Plaintiff’s complaint arises.
22. At all times material hereto BAC Home Loans Servicing, LP
(“BAC”), has been a foreign corporation that may be authorized to do business in
this state.
23. The Defendant Brian T. Moynihan and or his successor or
predecessor, by and through his corporation, BAC has caused events to occur
within the jurisdiction of the Court from which the Plaintiff’s complaint arises.
24. At all times material hereto Bank of America, has been a foreign
corporation, neither registered nor authorized to do business within the state of
Arizona, as set forth in the records of the Arizona Secretary of State.
25. The Defendant Brian T. Moynihan and or his successor or
predecessor, by and through his corporation Bank of America, has caused events
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to occur within the jurisdiction of the Court from which the Plaintiff’s complaint
arises.
26. This Court has secondary jurisdiction over this action pursuant to 28
U.S.C. § 1331 and venue lies in the Court pursuant to 28 U.S.C. § 1331; as
Arizona has primary jurisdiction pursuant to A.R.S. § 12-123, and venue lies in
the Arizona Court pursuant to A.R.S. § 12-401.
CLAIM FOR DECLARATORY RELIEF
27. Plaintiff reaffirms and realleges paragraphs 1 through 26 hereinabove
as if set forth more fully hereinbelow.
28. On or about March 28, 1997, the Plaintiff purchased certain
residential real property located within the jurisdiction of this Court, located at
Your address here (“property”).
29. Plaintiff purchased the property through the sale of Plaintiff’s
Promissory Note to Norwest Mortgage Inc.
30. Upon information and belief, the Promissory Note was not integral
to the Deed of Trust. Plaintiff recently learned that since a Deed of Trust must be
evidenced by a Promissory Note, it appears, a Deed of Trust not integral to a
Promissory Note may be unenforceable and invalid. (The term “dormant Deed of
Trust” will be referred to as the purported unenforceable and invalid Deed of
Trust).
31. The first dormant Deed of Trust was recorded on April 1, 1997 as
Maricopa County recorded document no. ????????? (A copy of the 1st dormant
Deed of Trust is attached hereto as Exhibit 1).
32. On or about July14, 2005, Plaintiff refinanced the property through
the sale of the Promissory Note to Federal Savings Bank.
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33. The dormant Deed of Trust was recorded on July 20, 2005 as
Maricopa County recorded document no. ????????? (A copy of the dormant Deed
of Trust is attached hereto as Exhibit 2)
34. On or about December 1, 2006, Plaintiff refinanced the property
pursuant to the Promissory Note to Bear Sterns Residential Mortgage
Corporation, (“Bear Sterns”).
35. The dormant Deed of Trust was recorded on December 6, 2006 as
Maricopa County recorded document no. ??????????? (A copy of the dormant
Deed of Trust is attached hereto as Exhibit 3).
36. Pursuant to the terms of the dormant Deed of Trust, Bear Sterns
appointed MERS to act as the Nominee for the purported Lender and purported
Beneficiary of the dormant Deed of Trust. (See: Exhibit 3)
37. At some point of time, Plaintiff was notified that his Promissory Note
with Bear Sterns was transferred to EMC.
38. At some point of time, Plaintiff was notified that Countrywide was the
servicer of the Promissory Note.
39. On or about July 2008, Bank of America acquired Countrywide via a
merger, and Plaintiff was informed that BAC was the servicer of the Promissory
Note.
40. On or about July 2009, Plaintiff inquired about modifying his current
purported mortgage. Plaintiff was told by an agent of Bank of America that they
were not eligible for a modification until they missed three monthly payments.
41. Plaintiff was referred to Community Services of Arizona by a Bank of
America agent for the Foreclosure Intervention Program. (See: Exhibit 4)
42. On or about November 2009, Plaintiff was told by an agent from
Community Services of Arizona they were denied a loan modification.
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43. On or about May 2010, Plaintiff was informed by a Bank of America
agent that his Promissory Note was not able to be modified due to the terms of the
purported mortgage pooling and servicing agreement.
44. On or about June 2010, Plaintiff hired Charles J. Horner and Associates
(“Horner”) to conduct a Forensic Examination of documents from Bear Sterns and
the current recorded foreclosure documents.
45. On June 17, 2010 Plaintiff received the Forensic Examination from
Horner. It indicated multiple counts of TILA; RESPA 3500.10; 12 C.F.R.;.; C.F.R.
§ 226.17- § 226.23; 15 U.S.C.; 18 U.S.C.; F.T.C. § 5; and FCRA 15 U.S.C. 1681 §
212 subsection 609(g); violations against BEAR STEARNS (A copy of the
Forensic Examination is attached hereto as Exhibit 5, see: pages 1-6).
46. Upon information and belief, pursuant to Horner’s Examination, the
discovery of numerous violations, may cause the ORIGINAL contract/Deed of
Trust/Promissory Note to be void in their entirety.
47. The Forensic Examination indicates the following violations were
committed by Grand Canyon Title; RESPA 3500.10: (See: Exhibit 5pgs. 5-6)
48. The Horner Forensic Examination indicated evidence of Presentment
of false instrument for filing, Mail Fraud and Swindles, and Deceptive Business
Acts resulting in violations of A.R.S. §§ 33-706; 39-161; 33-804;33-808; USC §
1341, regarding the foreclosure documents, may have been committed by
Recontrust. (See: Exhibit 5, pages 6-10).
49. Pursuant to Horner’s examination, there is a missing Assignment of
Deed of Trust assigning beneficial rights to Bank of America.
50. Pursuant to the document, MERS, as nominee for Bear Sterns signed
a Corporate Assignment of Deed of Trust dated January 21, 2010 assigning the
beneficial rights of the Deed of Trust to BAC. (A copy of the Corporate Assignment
of Deed of Trust is attached hereto as Exhibit 6).
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51. Pursuant to Horner’s examination, JP Morgan Chase acquired Bear
Sterns in March 2008 and there is no assignment from JP Morgan Chase to Bank of
America. (See: Exhibit 5, page 6).
52. Upon information and belief, pursuant to A.R.S. 33-706, Bank of
America has no standing as beneficiary to commence a foreclosure.
53. Pursuant to the document, Notary, Name of notary personally
witnessed the signature of ???????? as Assistant Secretary of MERS and verified the
same with her Texas driver’s license. (See: Exhibit 6).
54. According to Horner’s Forensic Examination, the Assigner, MERS
does not have offices in Tarrant County, Texas, from which Name of Notary could
have signed the Corporate Assignment of Deed of Trust of behalf of MERS. (See:
Exhibit 6 and See: Exhibit 5, page 7).
55. Furthermore, pursuant to Horner’s Examination, a back ground
investigation of ??????? indicated that she is actually an employee of Recontrust,
who is a wholly owned subsidiary of Bank of America, and not an employee of
MERS. (See: Exhibit 5, page 7).
56. Pursuant to Horner’s examination, “This is now a case whereby a bank
has bestowed upon itself the powers of a beneficiary without authority to do so and
has further substituted the Trustee with Recontrust Company who is also an entity
owned by Bank of America.” (See: Exhibit 5, page 7).
57. Pursuant to the document, ??????????, Assistant Secretary of BAC
Home Loans Servicing, LP signed a Substitution of Trustee Arizona in Tarrant
County, Texas dated January 21, 2010. (A copy of the Substitution of Trustee
Arizona is attached hereto as: Exhibit 7).
58. Pursuant to the document, Notary, Name of notary, personally
witnessed the signature of ??????? and verified the same with his Texas driver’s
license. (See: Exhibit 7)
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59. Pursuant to Horner’s examination, the date of execution and the date of
recording are the exactly the same as that of the Assignment of Deed of Trust. (See:
Exhibits 6 and 7)
60. Upon information and belief, Recontrust has appointed oneself as the
Trustee.
61. Furthermore, Horner states, “In one instance, they[Recontrust] are
Assistant Secretary for MERS [Exhibit 6] and in another instance; they are Assistant
Secretary for BAC Home Loan Servicing [Exhibit 7] and they in yet another
instance, they are themselves.” (A copy of the Notice of Trustee Sale Arizona is
attached hereto as Exhibit 8)
62. Horner states, “The mere fact that they used the exact same notary in
the exact same State in the exact same County where neither MERS nor BAC have
offices displays a blatant and careless disregard for Arizona statutes and judicial
system whereby they believe they can escape with such acts.” (See: Exhibit 5 page
7)
63. Horner states, “Furthermore, the use of the same notary on all these
documents suggests a notary preference that is willing to commit perjury in the
acknowledgement of those instruments.” “It is quite obvious that the signees of
these documents are not who they alleged to be.” (See: Exhibit 5 page 7)
64. According to Horner, Recontrust Company, N.A. does have offices in
Tarrant County, Texas.
65. Upon information and belief, pursuant to Horner’s Forensic
Examination, employees of Recontrust Company, N.A. have composed the
Corporate Assignment of Deed of Trust and possibly forged the signature of
??????????, as Assistant Secretary of Mortgage Electronic Registration Systems,
Inc.
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66. Upon information and belief, pursuant to Horner’s Forensic
Examination, employees of Recontrust Company, N.A. have composed the
Substitution of Trustee Arizona and possibly forged the signature of ?????????,
Assistant Secretary of BAC Home Loans Servicing LP.
67. Horner discovered evidence of possible fraud committed by Notary
Name of Notary who notarized the Corporate Assignment of Deed of Trust,
Substitution of Trustee Arizona, and Notice of Trustee Sale Arizona, all dated
January 21, 2010 in Tarrant County, Texas. (See: Exhibit 5 pages 6- 8 and See also:
Exhibits 6, 7 and 8).
68. Pursuant to Horner’s Forensic Examination, Name of Notary, who
notarized the foreclosure documents dated January 21, 2010, is employed by
Recontrust and as such, does not have an unbiased interest in the instruments she is
acknowledging. (See: Exhibit 5 page 8).
69. Upon information and belief, Notary Name of notary may have not
personally witnessed the signatures of ??????? or ????????? as she claimed with her
notarization.
70. Upon information and belief fraud may have occurred regarding the
notarizations on the foreclosure documents; Plaintiff filed a complaint against the
Notary Name of notary with the Secretary of State of Texas on June 28, 2010. (A
copy of the Notary complaint is attached hereto as Exhibit 9).
71. Upon information and belief fraud may have occurred regarding the
notarizations on the foreclosure documents; Plaintiff filed criminal charges against
Notary, Name of notary. (A copy of the Criminal Offense Investigation Referral
dated August 2, 2010 is hereby attached as Exhibit 10).
72. Upon information and belief fraud may have occurred regarding the
recorded foreclosure documents, Plaintiff filed criminal charges against R.K.
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Arnold, James F. Taylor, and Brian T. Moynihan. (A copy of the Consumer
Complaint Form dated August 7, 2010 is hereby attached as Exhibit 11).
73. Upon information and belief, Plaintiff is concerned that pursuant to
Horner’s Forensic Examination, Defendant’s Corporations may have filed and/or
recorded numerous forged, fraudulent, and/or false documents into the Maricopa
County Recorder’s Office to steal Plaintiff’s property. (See: Exhibits 5, 6, 7, and 8)
74. A Notice of Completion has been recorded at the Pinal County
Recorders office evidencing the findings of Charles J. Horner and Associates, of
Presentment of false instrument for filing, Mail Fraud and Swindles, and Deceptive
Business Acts regarding the foreclosure documents. (A copy of the Notice of
Completion attached hereto as Exhibit 12).
75. Horner, informed Plaintiff that MERS has stated that they are not, and
was not, the true beneficiary thereby nullifying the nomination to BAC Home
Loans Servicing LP. See: Excerpt from the Mortgage Electronic Registration
Systems, Inc. website:
“Normally, where the name of the grantee under the Trustee’s Deed upon Sale is different than the name of the foreclosing entity, the Trustee’s Deed upon Sale states that the "Grantee was not the foreclosing beneficiary." This designation triggers the imposition of transfer taxes on the sale. It is important to note that in a MERS foreclosure sale, even where the property reverts, the name of the grantee will be different than the name of the entity foreclosing. Nonetheless, the Trustee’s Deed upon Sale should state that "The Grantee was the foreclosing beneficiary." This is because MERS merely holds title as nominee for the true beneficiary; it is the true beneficiary that has actually foreclosed and acquired title”.
76. In addition, pursuant to the Deed of Trust dated December 1, 2006,
(See: Exhibit 3), MERS acted solely as nominee for Bear Sterns recorded document
no. ??????????????.
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77. In that capacity, according to Horner, MERS initiated the foreclosure
process by executing and recording certain instruments which sets in place the
entities that carry out the process of foreclosure.
78. According to Horner, there are many judicial opinions in several
different states that MERS does not have the capacity as only a nominee to execute
the process of foreclosure or to assign security instruments from one beneficiary to
the other.
79. In Luis E. Gallardo, 10-04710-MM7, vs Movant US Bancorp,
National Association, as Trustee for CSMC Mortgage-Backed Pass-Through
Certificates, Series 2006-7, a recent San Diego Bankruptcy decision handed down
by the Honorable Judge Margaret M. Mann, Judge Mann ruled:
“Movant has not supplied evidence that establishes that Movant has
standing to seek stay relief. Movant has attached an "Assignment of
Deed of Trust" from MERS to Movant, which assigns the trust deed
and the related note. But, there is no evidence that MERS ever
received an assignment of the note or had the ability to assign the note
to Movant. The note attached to the motion does not indicate that the
note has been endorsed to Movant or endorsed in blank such that it
became bearer paper. Without evidence either that MERS could
properly assign the note, or that the note was endorsed to Movant or
in blank, Movant has not established standing to seek stay relief.”
80. Also pursuant to Horner “There have been many court decisions
of late which have acknowledged that MERS is not the owner of the
underlying note. For example; The United States Bankruptcy Court for the
Eastern District of California has issued a ruling dated May 20, 2010 in the
matter of In Re: Walker, Case No. 10-21656-E-11 which found that MERS
could not, as a matter of law, have transferred the note to Citibank from the
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original lender, Bayrock Mortgage Corp. The Court’s opinion is headlined
stating that MERS and Citibank are not the real parties in interest. The court
found that MERS acted “only as a nominee” for Bayrock under the Deed of
Trust and there was no evidence that the note was transferred. The opinion
also provides that “several courts have acknowledged that MERS is not the
owner of the underlying note and therefore could not transfer the note, the
beneficial interest in the deed of trust, or foreclose on the property secured by
the deed”, citing the well-known cases of In Re Vargas (California
Bankruptcy Court), Landmark v. Kesler (Kansas decision as to lack of
authority of MERS), LaSalle Bank v. Lamy (New York), and In Re
Foreclosure Cases (the “Boyko” decision from Ohio Federal Court). In
another case, a recent San Diego Bankruptcy decision handed down by the
Honorable Judge Margaret M. Mann, Judge Mann ruled “Movant has not
supplied evidence that establishes that Movant has standing to seek stay
relief. Movant has attached an "Assignment of Deed of Trust" from MERS to
Movant, which assigns the trust deed and the related note. But, there is no
evidence that MERS ever received an assignment of the note or had the
ability to assign the note to Movant. The note attached to the motion does not
indicate that the note has been endorsed to Movant or endorsed in blank such
that it became bearer paper. Without evidence either that MERS could
properly assign the note, or that the note was endorsed to Movant or in blank,
Movant has not established standing to seek stay relief.”
81. Upon information and belief pursuant to inter alia, U.C.C. §3-302(d, e,
g) only a Holder in Due Course and not a Holder has the right to foreclose on
Plaintiff’s property. Therefore, since Plaintiff’s Promissory Note was transferred, it
appears to Plaintiff that no entity exsists today with the right to commence a non-
judicial foreclosure on Plaintiff’s property.
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82. Upon information and belief, Bank of America is not the true Holder in
Due Course or the real party in interest with standing to act as beneficiary of
Plaintiff’s Deed of Trust.
83. Upon information and belief, Bank of America has not put assets at
risk or provided consideration in this matter, and does not have standing as a real
party of interest.
84. Upon information and belief, BAC is not a true Holder in Due Course
or the real party in interest with standing to act as beneficiary of Plaintiff’s Deed of
Trust.
85. Upon information and belief, BAC has not put assets at risk or
provided consideration in this matter, and does not have standing as a real party of
interest.
86. Upon information and belief, BAC is not a valid nominee for the
current purported Beneficiary of Plaintiff’s dormant Deed of Trust as defined by
A.R.S. § 33-801. (See: Exhibit 5and 3)
87. Upon information and belief Recontrust does not have standing to act
as successor trustee with the power of sale.
88. Upon information and belief, Plaintiff contends they did a currency
exchange and not a Loan pursuant to Money Transmitter Law by selling the
Promissory Bear Sterns as described in the memorandum decision by U.S.D.C.,
District of Connecticut, District Judge MARK R. KRAVITZ: See: RAYMOND WINTSON McLAUGHLIN and Shakir Ra-Ade Bey, Plaintiffs, v. CITIMORTGAGE, INC., Defendant. No. 3:09CV1762 (MRK), United States District Court, D. Connecticut. June 11, 2010. “Private parties may enter into transactions to trade whatever they agree on as having equal value; they are not limited to gold and silver coins. Here, the Mortgage Company traded its check for [the] promise to pay on the promissory note executed at the time of the mortgage's creation. [Plaintiff] in turn traded the check for the house. Neither transaction implicates or violates a constitutional restriction on the states.” (Emphasis added).
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89. Upon information and belief, Plaintiff contends, Judge Kravitz’s
statement: “promissory note executed at the time of the mortgage's creation” is the
court’s acknowledgement that the Promissory Note was not a part of the Deed of
Trust.
90. Upon information and belief, Plaintiff has not found any evidence that
they ever received a loan from Bear Sterns in which to be in default of.
91. Upon information and belief, the Deed of Trust and the Promissory
Note were not integral, therefore, the Deed of Trust may be unenforceable See:
Carpenter v Longan, 83 U.S. 16 Wall. 271 (1872).
92. Based upon the forgoing, a controversy exists as to whether or not any
of the Defendants are qualified or entitled to sell Plaintiff’s Property as permitted by
A.R.S. § 33-807.
93. Plaintiff contends, that there exists a broken chain of ownership and
that none of the Defendant’s Corporations have the right to act as the Trustee or
Beneficiary of the Plaintiff’s Deed of Trust pursuant to A.R.S. § 33-301et seq.
94. By reason of the foregoing a declaratory judgment is both necessary
and proper in order to set forth and determine the rights, obligations and liabilities
that exist among the parties to the Agreements.
95. The Plaintiff has incurred Court costs and fees in this matter.
96. Should Plaintiff prevail in this matter they are entitled to an award of
Court costs and fees pursuant to F.R.Civ.P.
97. Plaintiff has filed contemporaneously herewith a Motion for a
Temporary Restraining Order to enjoin the Defendants from conducting a Trustee’s
Sale unless and until such time that the Defendant’s can establish to this Court that
they are qualified to act and exercise the powers and remedies of the Trustee, and
Beneficiary pursuant to ARS §§ 33-801 et seq.
/
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//
RELIEF REQUESTED
WHEREFORE, Plaintiff respectfully requests that this Court enter
judgment as follows:
A. Interpret the Plaintiff’s Deed of Trust;
B. Determine and declare if the Defendants do have the right pursuant
to ARS § 33-801 et seq. to act as the Trustee and Beneficiary of the
Plaintiff’s Deed of Trust and exercise any rights or obtain any remedies
thereto;
C. Enter a temporary restraining order enjoining the Defendants from
exercising the power of the Trustee and Beneficiary of the Plaintiff’s Deed
of Trust pursuant to ARS § 33-801 et seq., until such time that Defendants
can clearly establish by documentary evidence that they have the right to
do so;
D. Order that Defendants correct all filings with the Maricopa County
Recorder’s Office;
E. Award Plaintiff their court costs and fees incurred herein;
DATED: the 9th day of August, in the year of Our Lord, 2010
BY: ____________________________, agent
Your Name here, pro se Signed reserving all my rights at UCC 1-308
BY: ____________________________, agent
Your Name here,, pro se Signed reserving all my rights at UCC 1-308
VERIFIED STATEMENT
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The undersigned Plaintiff, Your Name here,,, pro se, a man, and a civilian,
hereinafter “Plaintiff”, does solemnly declare and state as follows:
1. Plaintiff is competent to state the matters set forth herein.
2. Plaintiff has knowledge of the facts stated herein.
3. All the facts herein are true, correct and complete, not misleading, to
the best of Plaintiffs knowledge and belief, and admissible as evidence, and if called
upon as a witness, Plaintiff will testify to their veracity.
BY: ____________________________, agent Your Name here,,, pro se
Signed reserving all my rights at UCC 1-308
VERIFIED STATEMENT
The undersigned Plaintiff, Your Name here,, pro se, a woman, and a civilian,
hereinafter “Plaintiff”, does solemnly declare and state as follows:
1. Plaintiff is competent to state the matters set forth herein.
2. Plaintiff has knowledge of the facts stated herein.
3. All the facts herein are true, correct and complete, not misleading, to
the best of Plaintiffs knowledge and belief, and admissible as evidence, and if called
upon as a witness, Plaintiff will testify to their veracity.
BY: ____________________________, agent Your Name here,, pro se
Signed reserving all my rights at UCC 1-308
CERTIFICATE OF SERVICE
ORIGINAL and ONE COPY delivered to UNITED STATES DISTRICT COURT, DISTRICT OF ARIZONA, this 9th day of August, 2010.
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I HEREBY CERTIFY that a true and correct copy of the above SECOND AMENDED COMPLAINT has been furnished by Certified U.S. Mail on this 9th day of August, 2010 to:
Certified Mail Return Receipt # 0000 0000 0000 0000 0000 BRYAN CAVE LLPRobert W. ShelyGregory B. IannelliTwo N. Central Avenue Suite 2200Phoenix, AZ 85004-4406Attorneys for Defendants:Brian T. Moynihan, James F. Taylor, Angelo Mozilo,R.K. Arnold
Certified Mail Return Receipt # 0000 0000 0000 0000 0000MAYNARD CRONIN ERICKSONCURRAN & SPARKS, P.L.C.Douglas C. EricksonJennifer A. Sparks3200 N. Central AvenueSuite 1800Phoenix, AZ 85012Attorneys for Defendant:
SERVICE BY PROCESS SERVER TO:
Name of Defendant hereAddress of Defendant hereAddress of Defendant here
Name of Defendant hereAddress of Defendant hereAddress of Defendant here
Name of Defendant hereAddress of Defendant hereAddress of Defendant here
Name of Defendant hereAddress of Defendant hereAddress of Defendant here
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Name of Defendant hereAddress of Defendant hereAddress of Defendant here
BY: ____________________________, agent
Your Name here,,, pro se Signed reserving all my rights at UCC 1-308
CASES IN SUPPORT OF PLAINTIFF’S ALLEGATIONS
Carpenter v. Longan, 83 U.S. 16 Wall. 271
Wells Fargo, Litton Loan v. Farmer, 867 N.Y.S.2d
Wells Fargo v. Reyes, 867 N.Y.S.2d 21.
HSBC Bank v. Peabody, 866 N.Y.S.2d 91 EquiFirst
Indymac Bank v. Boyd, 880 N.Y.S.2d 224
Indymac Bank v. Bethley, 880 N.Y.S.2d 873
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HSBC Bank National Trust Co v. Torres, NY Slip Op 51471U
Wells Fargo v. Reyes, 867 N.Y.S.2d 21
Wells Fargo, Litton Loan v. Farmer, 867 N.Y.S.2d 21
United States v. Kis, 658 F.2d, 526 (7th Cir.).
Indymac Bank v. Bethley, 880 N.Y.S.2d 873
Heintz v. Jenkins, 514 U.S. 291; 115 S. Ct. 1489, 131 L. Ed. 2d 395
Lebanon Correctional Institution v. Court of Common Pleas 35 Ohio St.2d
Wells Fargo Bank, v. Byrd, 178 Ohio App.3d 285,
Stachnik v. Winkel, 394 Mich. 375, 387; 230 N.W.2d 529, 534
United States v. Kis, 658 F.2d, 526 (7th Cir.).
U.S. v. Tweel, 550 F.2d 297 (1977).
Menominee River Co. v. Augustus Spies L & C Co., 147 Wis. 559 at p. 572; 132 NW
In re Hwang, 396 B.R. 757, 766-67 (Bankr. C.D. Cal.).
Mortgage Electronic Registration Systems, Inc. v. Chong, 824 N.Y.S.2d 764
Landmark National Bank v. Kesler, 289 Kan. 528, 216 P.3d 158 20.LaSalle Bank v.
Ahearn, 875 N.Y.S.2d 595
Novastar Mortgage, Inc v. Snyder 3:07CV480
DLJ Capital, Inc. v. PA.R.S.ons, CASE NO. 07-MA-17
Everhome Mortgage Company v. Rowland, No. 07AP-615
In Lambert v. Firstar Bank, 83 Ark. App. 259, 127 S.W. 3d 523
Anheuser-Busch Brewing Company v. Emma Mason, 44 Minn. 318, 46 N.W.
Howard & Foster Co. vs. Citizens National Bank, 133 S.C. 202, 130 S.E.
I Morse. Banks and Banking 5th Ed. Sec 65;
Magee, Banks and Banking, 3rd Ed. Sec 248."
American Express Co. v. Citizens State Bank, 181 Wis. 172, 194 NW 427
National Bank of Commerce v. Atkinson, 55 F. 465
National Bank of Commerce v. Atkinson, 8 Kan. App. 30, 54 P. 8
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First Nat'l Bank of Tallapoosa v. Monroe, 135 Ga 614, 69 S.E. 1123
Whipp v. Iverson, 43 Wis. 2d 166, 168 N.W.2d 201
Bankers Trust v. Nagler, 23 A.D.2d 645, 257 N.Y.S.2d 298
Leonard v. Springer, 197 Ill 532. 64 NE 299
Menominee River Co. v. Augustus Spies L & C Co.,147 Wis. 559 at p. 572;
Guardian Agency v. Guardian Mut. Savings Bank, 227 Wis. 550, 279 NW 79
Whipp v. Iverson, 43 Wis.2d 166, 279 N.W. 79
Durante Bros. & Sons, Inc. v. Flushing Nat 'l Bank, 755 F.2d 239
Sedima, SPRL v. Imrex Co., 473 U.S. 479, 105 S. Ct. 3275, 87 L. Ed. 2d 346
Wright v. Mid-Penn Consumer Discount Co., 133 B.R. 704 (Pa.).
Moore v. Mid-Penn Consumer Discount Co., Civil Action No. 90-6452 U.S.
MA.R.S.hall v. Security State Bank of Hamilton, 121 B.R. 814
Steinbrechis v. Mid-Penn Consumer Discount Co., 110 B.R. 155
Gearing v. Check Brokerage Corp., 233 F.3d 469 (7th Cir.).
Todd v. Weltman, Weinberg & Reis Co., L.P.A., 434 F.3d 432 (6th Cir.)
Delawder v. Platinum Financial, 1:04-cv- 680, 2005 U.S. Dist.
Griffith v. Javitch, Block & Rathbone, LLP, 1:04cv238 (S.D.Ohio,); Hartman v.
Asset Acceptance Corp., No. 1:03-cv-113, 2004 U.S. Dist.
Gionis v. Javitch, Block & Rathbone, 405 F. Supp. 2d 856 (S.D.Ohio.); Blevins v.
Hudson & Keyse, Inc., 395 F. Supp. 2d 655 (S.D.Ohio),
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