01 Freds Complaint

8/3/2019 01 Freds Complaint

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IN THE UNITED STATES DISTRICT COURT FOR THENORTHERN DISTRICT OF MISSISSIPPI

UNITED STATES OF AMERICA

Fredrick Smith )Plaintiff, )

)vs. ) Civil Action No.: __________

)Bank of America; )Mortgage Electronic )Registration System; )Morgan Stanly ABS Capital 1 Inc.; )Wells Fargo Bank, National Bank; )WMC Mortgage Corp.; )Recon Trust Company, N.A. )Substitute Trustee; )Lem Adams III, Trustee )and John Does 1-20 )

Defendants, )

COMPLAINT TO RESTRICT AND PROHIBIT FORECLOSURE, MOTION TO SET ASIDEFORECLOSURE & FOR DAMAGES AND DEMAND FOR TRIAL

COMES NOW, Fredrick Smith, Plaintiff, and asks for COMPLAINT TO

RESTRICT AND PROHIBIT FORECLOSURE, MOTION TO SET ASIDE FORECLOSURE &

FOR DAMAGES AND DEMAND FOR TRIAL and seeks an order of the Court

prohibiting Foreclosure sale and award damages. In support of thisComplaint, the Plaintiff would show unto the Court the follows:

THE PARTIES

1. At all times herein mentioned Plaintiff was and is anatural person, residing in Desoto Count, Mississippi.

2.

Defendant, MERS is Mortgage Electronic Registrationsystems, Inc. MERS is upon information and belief a

separate corporation that is acting solely as a nominee for

the Lender and Lenders successors and assigns. MERS is

the beneficiary under this Security instrument. MERS is a


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Delaware corporation engaged in the business of holding

title to mortgages. MERS conducts business in the State

of Mississippi as evidenced by the inclusion of its name on

the Assignment of Deed of Trust to ADAMS recorded on

April 26, 2005 in the Desoto County Recorder's Office.

3. Defendant, LEM ADAMS III (ADAMS") is Trustee for thebenefit of Mortgage Electronic Registration systems, Inc.,

MERS acting solely as a nominee for MERS and its

successors and assigns. ADAMS" is party to this action

only in the capacity of Substitute Trustee of Plaintiffs

Deed of Trust, and the relief sought against Defendant

Adams is injunctive relief prohibiting foreclosure sale &

decree for trial.

4. Defendant, WELLS FARGO BANK, NATIONAL ASSOCIATION (WELLSFARGO N.A."), is current Beneficiary of said Deed of Trust

and which designates its main office as Sioux Falls, South

Dakota. WELLS FARGO N.A. address is 101 N. Phillips Avenue,

Sioux Falls, South Dakota, 57104.

5. Defendant, RECONTRUST COMPANY, N.A. (RECONTRUST"), issubstitute Trustee as evidenced by instrument filed on

January 28, 2010. RECONTRUST is a wholly-owned subsidiary

of Bank of America N.A. RECONTRUST is organized and

existing under the laws of CALIFORNIA. RECONTRUST,

Corporate Headquarters address is 1800 Tapo Canyon Road,

Simi Valley, CA 93063.

6. Defendant, MORGAN STANLEY ABS CAPITAL I, INC. (MORGANSTANLEY"), is beneficiary of said Deed of Trust and is

believed to owe its existing to the laws of the State


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DELEWARE. MORGAN STANLEYS Corporate Headquarters address

is 1585 Broadway New York, New York 10036.

7. Defendant, WMC MORTGAGE CORP. (WMC MORTGAGE") is organizedand is believed to owe its existing to the laws of theState CALIFORNIA. WMC MORTGAGE address is P.O. Box 54089

LOS ANGLES, CA 90054-0089.

8. Defendant; Option One Mortgage OPTION ONE is/was theoriginal lender of Plaintiffs loan. On April 30, 2008,

Option One was acquired by American Home Mortgage

Servicing, Inc. 1255 Route 70 # 12s Lakewood, NJ 08701-

5900.

9. Defendant Bank of America Home Loans is a subsequentassignee and/or successor to Defendant Option One Mortgage,

through its accusation of Countrywide Home Loans is

believed to be the Substitute Trustee under the Deed of

Trust is upon reason and belief headquarter in Calabasas,

California.

JURISDICTION AND VENUE

10. The United States District Court for the Northern Districtof Mississippi has jurisdiction based on "diversity

jurisdiction pursuant to The United States Constitution,

Article III, 2 and 28 U.S.C. 1331. This Court has

jurisdiction over this action pursuant to 28 U.S.C. 2241

because Pending foreclosure sale on Plaintiffs real

property is in violation of the Constitution and laws of

the United States. The Court has jurisdiction under 28

U.S.C. 1332, in that the amount in controversy is in


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excess of $75,000.00. The Plaintiff also invokes the

jurisdiction of this Court pursuant to 28 U.S.C. 1343(4)

in that the Plaintiff seeks to redress deprivation of

rights guaranteed by both the Constitution and federal

statutes. Venue is appropriate in this District under 28

U.S.C. 1391(b)(1),(b)(2), and (c).

JUDICIAL NOTICE /COGNIZANCE WITH CLAIM OF RIGHTS

11. The Plaintiff, Fredrick Smith an American Citizens, herebydeclare and give "Notice" that he invoke the powers and

protections of the Constitution and Bill of Rights of the

State Of Mississippi and the Constitution and Bill of

Rights of the United States Of America, promised him, so

that an unequivocally, and unconditionally fair, just, and

unbiased proceeding and conclusion of this lawsuit shall be

effected.

FACTUAL ALLEGATIONS

12.Plaintiff, Fredrick Smith, is a natural person that residesat 7601 Broken Hickory Drive Walls, Mississippi 38680.

13. Plaintiff executed a Deed of Trust to Lem Adams III asTrustee for the benefit of MERS as Nominee for WMC

Mortgage.

14. Subject Deed of Trust was filed on April 26, 2005 andrecorded in book 2203 at Page 503 in the Office of the

Chancery Clerk of Desoto County, Mississippi.

15. On or about May 19, 2011, Defendant, Recontrust did noticethe Plaintiff of pending foreclosure sale scheduled to be


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held June 9, 2011 on the court house steps of the Desoto

Count Courthouse in Hernando, Mississippi.

16. Plaintiff, discovered that in order for Defendant torecover on a promissory note the (1) Defendant must prove

existence of the note, (2) prove that the Plaintiff signed

the note, (3) that the Defendant is the owner or holder of

the note in due course, and that a certain balance is due

and owing on the note.

a)The note is specifically governed by federal law andNegotiable Instruments Law of this State

[Mississippi Code Title 75] as is the validity ofthe Mortgage Security interest lien.

b)Unequivocally the Courts rule that in order toprove the instrument, possession is mandatory.

INJUNCTIVE RELIEF

17. Plaintiffs incorporate herein by reference the allegationsmade in paragraphs 1 through 16, inclusive, as though fully

set forth herein.

18. Defendant MERS and its successors in interest, is and havebeen at all times pertinent hereto, and will in the future

engage in conduct in direct violation of the Foreclosure

Act, the UCC and the FDCA.

19. That unless enjoinment by this Court, Defendants willcontinue in their illegal practices as enumerated in this

complaint to the detriment of the Plaintiff.


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20. That unless enjoined by this Court, Plaintiff is inimminent threat that the illegal actions of the Defendants

will result in the loss of his home, and the eviction from

his home and will suffer irreparable harm as a direct

result of the wrongful conduct of the Defendants.

21. There is no adequate remedy at law for the damages whichwill be inflicted upon and suffered by plaintiff if the

Defendants and their Successors in interest are not

immediately enjoined from continuing with or commencing the

foreclosure and eviction.

22. Plaintiff will likely prevail on his claim on the merits ofthe claim that the Defendants are violating and have

violated the Foreclosure Act, the UCC and the FDCA.

23. Public policy requires that injunctive relief must begranted in this matter to stop the violations of the

Foreclosure Act, the UCC and the FDCA by the defendants and

to prevent further loss and harm to the Plaintiff.

DECLARATORY RELIEF

24. Plaintiffs incorporate herein by reference the allegationsmade in paragraphs 17 through 23, inclusive, as though

fully set forth herein.

25. The dispute that has arisen between the Plaintiff andDefendants and each of them as to the duties and

obligations of the respective parties with regard to the

loan or the foreclosure.


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26. These disputes concern but are not limited to the ownershiprights and the validity of the commencement of the

foreclosure process.

27. Plaintiff further alleges that a declaration of rights andduties of the parties herein are essential to determine the

actual status and validity of the loan, deed of trust,

nominated beneficiaries, actual beneficiaries, loan

servicers, trustees instituting foreclosure proceedings and

related matter.

FRAUD AND MISREPRESENTATION



29. Defendants and all of them concealed material facts knownto them but not to Plaintiffs regarding sales and

assignments of the Note, transfers of the Note, and charges

with the intent to defraud Plaintiffs.

30. Defendants and each of them made false representations,concealments and non-disclosures with knowledge of the

misrepresentations, intending to induce Plaintiff' reliance

thereon, which the unsuspecting Plaintiff justifiably

relied upon, resulting in general and special damages as

well as mental distress. As a result of Defendants

fraudulent conduct, Plaintiff has suffered compensatory,

general and special damages in an amount according to proof

at trial.


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31. Defendants made the above-referenced false representations,concealments and non-disclosures with knowledge of the

misrepresentations, intending to induce Plaintiffs'

reliance, which the unsuspecting Plaintiffs justifiably

relied upon, resulting in damage to his credit standing,

costs and loss of their property. Plaintiffs was unaware of

the true facts. Had Plaintiff known the true facts,

Plaintiff, among other things, would not have maintained

the Foreclosing Defendants as their lender, servicer and

trustee (and their alleged agents) and/or would have taken

legal action immediately to save his home.

32. As a result of the Defendants fraudulent conduct,Plaintiff has suffered compensatory, general and special

damages in an amount to proof. Additionally, the Defendants

acted with malice, fraud and/or oppression and, thus,

Plaintiffs are entitled to an award of punitive damages.

33. The integrity of the civil litigation process depends on'truthful disclosure" of facts. A system that depends on an

adversary's ability to uncover falsehoods is doomed for

failure. Cox v. Burke, 706 SO.2d 43, 47 (Fla. 5th DCA

1998).

34. The court's power to impose an involuntary dismissal existsbecause no litigant has the right to trifle with the

courts. Morgan v. Campbell, 816 SO.2d 251,252 (Fla. 2nd DCA

2002).

WRONGFUL FORECLOSURE


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36. Defendant MERS was not and never been a Beneficiary of thisloan or any other. MERS is solely a registration service

for tracking Trust Deeds and mortgages and also the Notes.

MERS records Trust Deeds in their name as a nominee, with

no actual ownership interest in the Loan, the purpose is

allegedly to allow the sale and transfer of these

instruments without the need for further recordation,

however what actually occurs is that the real Beneficiary

remains obscured, and unknown. In addition, MERS is not a

trustee and has no right to collect any payments on the

Note, neither does MERS have any right to enforce the notes

or to be a party in any Foreclosure proceedings. Yet, MERS

has represented itself in this case to be the beneficiary

and in that stated but false capacity has unlawfully

nominated a successive trustee.

37. Plaintiffs alleges on information and belief that the loanwas sold or transferred without notifying the Plaintiffs in

writing. Therefore, the loan is void of legal rights to

enforce it.

38. Plaintiffs allege that while MERS remain on title as anominee for the Trust Deed and Note both are sold on

several occasions afterward and ultimately bundled as a

security and sold to a final investor.


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39. None of the Defendants contacted Plaintiffs to discusstheir financial situation. Moreover, none of the

Foreclosing Defendants explored options with Plaintiffs to

avoid foreclosure. Accordingly, the Defendants and all of

them did not fulfill their legal obligation to Plaintiffs.

40. Thus, the Defendants and all of them are engaged in afraudulent foreclosure of the Subject Property in that the

Defendants do not have the legal authority to foreclose on

the Subject Property. As a result of the above alleged

wrongs, Plaintiffs have suffered general and special

damages in an amount to be determined at trial.

SLANDER OF TITLE



42. Defendant MERS, purportedly but falsely acting as eitherthe trustee or the agent of the beneficiary of the Deed of

Trust or the agent of WMC MORTGAGE, wrongfully and without

privilege, caused a Notice of Default to be recorded

against the Subject Property.

43. Defendant, MERS again purportedly but falsely acting aseither the trustee or the agent of the beneficiary of the

Deed of Trust or the agent of WMC MORTGAGE, wrongfully andwithout privilege, caused a Notice of Trustees Sale to be

recorded against the Subject Property.


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44. Defendants, and all of them whether jointly or severally,were ever a trustee, beneficiary or assignee of any

beneficiary of any Deed of Trust recorded against the

Subject Property. Accordingly, they wrongfully caused the

recording of the Notice of Default, Notice of Trustees

Sale and Trustees Deed Upon Sale against the Subject

Property.

45. By doing the acts described above, Defendants and all ofthem have slandered Plaintiffs title to the Subject

Property.

46. The conduct of the Defendants caused Plaintiff to suffergeneral and special damages in an amount to be proven at

trial.

ACTION FOR DAMAGES FORUNLAWFUL INTERFERENCE WITH POSSSESSORY

INTEREST

47. Plaintiffs incorporate herein by reference the allegationsmade in paragraphs 41 through 46, inclusive, as thoughfully set forth herein.

48. Plaintiff is in formed and believes, and thereupon allegesthat said alleged promissory note was never executed by the

Plaintiff, or if it was executed, has long since been lost

or intentionally destroyed, or paid in full, or assigned to

a third party, such that Defendants, and each of them,

lacks or lacked standing to initiate a foreclosure

proceeding against the subject property.


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49. Plaintiff is in formed and believes, and thereupon allegesthat none of the alleged beneficiaries or representatives

of the Beneficiary have the original note to prove that

they are in fact the party authorized to conduct the

foreclosure.

50. Plaintiff is in formed and believes, and thereupon allegesthat Defendant(s), through their agent and/or assigns

violated Mississippi Code Title 75 and the Uniform

Commercial Code section 3-305(a), in that they materially

altered a contract without the knowledge or consent of the

Plaintiff, committed Fraud in the factum, rendering the

transaction illegal, and thus this transaction stands as

fraud which induced Plaintiff to enter the contract upon

terms and conditions other than agreed upon. The Law is

expressed as, 3-305. Defense and claims in recoupment.

(a)General rule: Except as stated in subsection (b), theRight to enforce the obligation of an instrument is

subject to the following:

(1)a defense of the obligator based on:(ii) lack of legal capacity or illegality ofthe

transaction WHICH UNDER LAW, nullifiesthe

obligation ofthe obligator;

(iii) fraud that induced the obligor to sign the

instrument with neither knowledge nor reasonable

opportunity to learn of its character or its

essential terms;

51. Plaintiff is in formed and believes, and thereupon allegesthat Defendant(s) violated the laws that Governs the note/


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mortgage security interest lien which is governed by the

Statues at Large Public Law 13 of the 38th congress Stat 99-

118, the National Currency Act which is expressed as prima

facie Law under the United States Code Title 12 Banks and

Banking, Mississippi Code Title 75 Article 3 Negotiable

Instruments and Article 8 Investments Securities.

a)The issues here are that the Plaintiff is assertingreal defenses against the validity of the originalnegotiable instrument contract which is the allegedpromissory note.

b)The first issue is consideration. There has been noloan or consideration in this contract in the amountof approximately $138,000.00.

52. Plaintiff is in formed and believes, and thereupon allegesthat Defendants and all of them violated federal law in

that Banks or Financial Institutions cannot, loan the

capital stock of their directors, nor can they loan the

money of their depositors, and they can only loan money

pursuant to Public Law Volume 13 of the 39th Congress Stat

99-118. Defendants and all of them have not followed any of

the provisions of this monetary law of the United States of

America.

53. Plaintiff further allege on information and belief that theBanks or financial Institution directors cannot claim

ignorance of this because each Director has an Oath to

Follow Public Law Volume 13 of the 38th

Congress Stat 99-118which is recorded at the United States Office of the

Comptroller of Currency.

OATH OF DIRECTORS FILED WITH THE COMPTROLLER OF CURRENCY


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Each Director when appointed or Elected, shall take

an oath that he will, so far as the duty devolves on

him, diligently and honestly administer the affairs of

such association, and will not knowingly violate, or

willingly permit to be violated any provisions of this

act, and that he is the bona fide owner, in his ownright, of the number of shares of stock required by

this act, subscribed by him, or standing in his name

on the books of the association, and that the same is

not hypothecated, or in any way pledged, as security

for a loan or debt; which oath subscribed by himself,

and certified by the officer before whom it is taken,

shall be immediately transmitted to the comptroller of

currency, and by him filed and preserved in his

office. Section 9 page 102 of the 38th Congress.

54. Plaintiff further allege on information and belief thatDefendants and all of them further violated the law in that

they knew or should have that known that Banks and

Financial Institutions cannot enter into mortgage

agreements beyond a 5 year period. The Plaintiffs note was

for a 30 year mortgage which by operation of law is

fraudulent.

And be it further enacted, such associations shall not

purchase or hold real estate in any other case or for any

other purpose than as specified in this section. Nor shall

it hold the possession of any real estate under mortgage,

or hold the title and possession of any real estate

purchased to secure debts due to it for a longer period

than five years. Section 28 page 108 of the 38th Congress.

CONFLICT OF INTEREST


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56. The relationship of MERS to the mortgage transaction is notsubject to any easy description. Landmark Nat. Bank v.

Kesler, 216 P. 3d 158, 164 (Kan. 2009). The supreme court

of Kansas and the Supreme Court of Nebraska have described

MERS as follows:

MERS is private corporation that administers theMERS system, a national electronic registry that

tracks the transfer of ownership interest andservicing rights in mortgage loans. Through the MERSSystem, MERS becomes the mortgage of record forparticipating members through assignment of themembers at county register of deeds offices. Thelenders retain the promissory notes, as well as theservicing rights to the mortgages. The lenders canthen sell these interests to investors without havingto record the transaction in the public record. MERSis compensated for its services through fees chargedto participating MERS members.

Id. At 164 [quoting Mortgage Electronic Registration Systems,Inc. v. Nebraska Dept. of Banking and Finance, 704 N.W. 2d 784,785 (Neb. 2005)

57. Plaintiff is informed and believe that directly afterOPTION ONE caused MERS to go on title as the Nominee

Beneficiary in order to hide the true identity of the

successive Beneficiaries when the loan was sold. MERS,

however, acted as if they were the actual beneficiaryalthough a Nominee is an entity in whose name a security is

registered through true ownership is held by another party,

in other words MERS is not the Beneficiary but is used to

hide the true identity of the Beneficiary. Based on this


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failure to disclose, and the lack of consideration paid by

MERS, Plaintiffs alleges that the Deed of Trust was never

perfected and is a nullity as the recording separates the

Debt from the Lien, and this is more so especially upon a

sale of the Note and Trust Deed.

58. Plaintiffs further allege that MERS acts as a Nominee formore than one principal in the same transaction, and

conceals the identity therefore if a Nominee is the same as

an agent MERS cannot act as an agent for multiple Banks,

insurance and title companies and Mortgage Companies

because of a serious Conflict of interest. In addition

Plaintiff allege that a Deed of Trust cannot lawfully be

held by a Nominee who has no financial interest in the

instrument without disclosing the identity of the actual

Beneficiary, and that if a party with no interest in the

Note records it in their name the recorded deed is Nullity.

59. Plaintiffs further allege that MERS failure to transferbeneficial interests as the Note and deed was sold further

renders the Deed recording a nullity.

60. Plaintiff is informed and believes and therefore allegesthat the loans after they were originated and funded were

sold on multiple occasions, bundled into a group of Trust

Deeds and subsequently sold to investors as a Derivative,

Mortgage Backed Security, and that therefore none of

these defendants, and each of them, owned this loan, or

Note and cannot be and are not the Beneficiary, or lawfully

appointed trustee, and have no right to declare a default,

to cause notices of default to issue or to be recorded, or


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to foreclose on Plaintiffs interest in the subject

property, Defendants, and each of them, were not the Note

Holder or the Note holder in due course or any Beneficiary

at any time in regards to this loan.

61. Defendant, MERS, never owned the Note so it has no standingto assign the Note. The mortgage follows the Note. The Note

does not follow the mortgage. The mortgage got assigned to

one entity, while the Note got assigned to a completely

different entity. This bifurcation means the Note is no

longer secured by the mortgage.

62. Defendants, and each of them, misrepresented factsintending either to force Plaintiff to pay large sums of

money to Defendants and each of them to which they were not

entitled under the law, or to abandon Plaintiffs property

to foreclosure sale.

63. The true facts were that they were not in possession of thenote and they were either holders of the note or non-

holders of the note entitled to payment, as those terms in

Commercial Code 3301, 3309, and therefore they were

proceeding to foreclose non-judically without under the

law. Further they added costs and charges to the payoff

amount of the note that were not justified and proper under

the terms of the note or the law.

FEDERAL RESERVE NOTES ARE NOT MONEY BY LAW

And no such association shall issue post notes or any other

notes to circulate as money than such as are authorized by the

forgoing provisions of this act Section 23 page 106 of the 38th

Congress.


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a)The Federal Reserve Bank in its booklet; MODERN MONEYMECHANICS page 3, states; In the United States neither

paper currency nor deposits have as commodities.

Intrinsically, a dollar bill is just a piece of paper,

deposits merely book entries.

b)The giving a (federal reserve) note does not constitutepayment. See Echart v Commissioners C.C.A., 42 Fd2d 158.

c)The use of a (federal reserve) 'Note' is only a promisetopay. See Fidelity Savings v Grimes, 131 P2d 894.

d)Legal Tender (federal reserve) Notes are not good andlawful money of the United States. See Rains v State, 226

S.W. 189.

e)That (federal reserve) 'Notes do

notoperate as payment inthe absences of an agreement that they shall constitute

payment.' See BlachshearMfg. Co. v Harrell, 2 S.E. 2d

766.

f)Federal Reserve Notes arevalueless. See IRS CodesSection 1.1001-1 (4657) C.C.H.).

DEFENDANTS LACK STANDING TO COMMENCE FORECLOSURE ACTION



65. At the heart of the protections given to homeowners andborrowers by the State of Mississippi, and commands that

FORECLOSURE PROHIBITED. See, In re Jacobson, 2009 WL 567188

(Bkrtcy. W.D. Wash.) (holding that an entity that claims to

be only a servicer for deed of trust note is not a real

party in interest, and alleged servicing agent failed to

establish that it had standing to enforce deed of trust);


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In re Hwang, 396 B. R. 757 (C. D. Ca., 2008) (holding that

mortgage note could not be enforced by a bank that had

previously assigned its rights under note to another

entity, and retained only loan servicing rights, unless

there was joinder of the party that owned the note

following the assignment).

66. Defendants and all of them is/are not the agent of theowner or holder of the original and mortgage and all

relevant assignment(s), if any, and neither the holder nor

the owner of the note, if different from the holder, have

joined this action as Defendants.

67. Defendants and all of them are not the owner and holder ofthe mortgage and note executed by Plaintiff, and has no

grounds to commence a foreclosure action against Plaintiff.

See, In re Hwang, 396 B. R. 757 (C. D. Ca., 2008) (holding

that bank to which mortgage note was payable, and which was

in physical possession of the note, qualified as the

holder of the note, even though it had assigned its

rights under the note to another entity); Oklahoma UCC 3-

301, 3-305, and 1-201 (for the note to be enforced, the

entity asserting the status of holder must be in physical

possession of the instrument).

68. Defendant, MERS if it is the proper servicing agent forPlaintiffs note, has not properly communicated

instructions to Plaintiff that it is the last entity to

whom the Plaintiff have been instructed to make payments,

and that it is still the holder of the note.


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69. Defendants cause of action is barred in whole or in partdue to Defendants violation of state and federal Truth in

Lending Acts.

70. Said violation, in addition to the fact that Plaintiff didnot properly receive Notices Right to cancel, constitute

violation of 15 U S C sec. 1635(a) and (b) and 12 CFR sec.

226.23(b) and are thus a legal basis for and legally extend

Plaintiff right to exercise the remedy of rescission.

71. Defendants assigned the Note and mortgage to parties whodid not take instruments in good faith or without notice

that the instruments were invalid or that Plaintiff had a

claim in recoupment. Defendants and all of them are not

holders in due course and are thus liable to Plaintiff

individually, jointly and severally.

72. On information and belief and given that the consumercredit transaction was an inter-temporal transaction with

multiple assignments as part of an aggregation and the

creation of a REMIC tranche itself a part of a

predetermined and identifiable CMO, all defendants share in

the illegal proceeds of the transaction; conspired with

each other to defraud the Plaintiff out of the proceeds of

the loan; acted in concert to wrongfully deprive the

Plaintiff of his residence; acted in concert and conspiracy

to essentially steal the Plaintiffs home and/or convert the

Plaintiffs home without providing Plaintiff reasonable

equivalent value in exchange; and conducted an illegal

enterprise within the meaning of RICO statute.


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73. The Supreme Court found that the Plaintiff in a civil RICOaction need establish only a criminal "violation" and not a

criminal conviction. Further, the Court held that the

Defendant need only have caused harm to the Plaintiff by

the commission of a predicate offense in such a way as to

constitute a "pattern of Racketeering activity." That is,

the Plaintiff need not demonstrate that the Defendant is an

organized crime figure, a mobster in the popular sense, or

that the Plaintiff has suffered some type of special

Racketeering injury; all that the Plaintiff must show is

what the Statute specifically requires. The RICO Statute

and the civil remedies for its violation are to be

liberally construed to effect the congressional purpose as

broadly formulated in the Statute. Sedima, SPRL v. Imrex

Co., 473 US 479 (1985).

74. On information and belief and given the volume ofresidential loan transactions solicited and processed by

the defendants, the Defendants have engaged in two of more

instances of racketeering activity involving different

victims but utilizing the same methods and means.

75. Plaintiffs incorporate herein by reference the allegationsmade in paragraphs 1 through 74, inclusive, as though fully

set forth herein.

PREMISES CONSIDERED, YOUR PLAINTIFF PRAYS:

WHEREFORE, Plaintiffs having set forth the claims for relief

against Defendants, respectfully pray that this Court grant the

following relief against the Defendants:


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1. For exemplary and punitive damages;

2. Actual Economic and Non-Economic Damages;

4. For a declaration of the rights of the parties relative to

Plaintiffs Home, including a declaration that Defendants have

no enforceable lien against Plaintiffs Home;

5. For a preliminary injunction and permanent injunction

enjoining all Defendants, their agents, assigns, and all person

acting under, for, or in concert with them, from foreclosing on

Plaintiffs Home or from conducting at trustees sale or causing

a trustees sale to be conducted relative to Plaintiffs Home.

6. Cancellation of the sale and restitution of the home to the

Plaintiffs; and

7. For damages as provided by statute;

8. For an Order enjoining Defendants from continuing to violate

the statutes alleged herein;

9. For an Order, requiring Defendant to reinstate Plaintiff on

title to his Property, and or a restraining order preventing

Defendants and his, hers, or its agents, employees, officers,

attorneys, and representatives from engaging in or performing

any of the following acts: (i) offering, or advertising this

property for sale and (ii) attempting to transfer title to this

property and or (iii) holding any auction therefore;


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10. For such other and further relief as the court may deem just

and proper.

RESPECTFULLY SUBMITTED this _______day of _________, 2011.

ALL RIGHTS RESERVEDWITHOUT PREJUDICEWAIVING NONE

_____________________________ Date ___________Fredrick Smithc/o 7601 Broken Hickory DriveWalls, Mississippi 38680

AFFIDAVIT OF TRUTH

STATE OF TENNESSEE

COUNTY OF SHELBY

Fredrick Smith, plaintiff herein, makes oath that the facts

stated in the above petition are true to the best of his

knowledge and belief.

_________________Fredrick Smith

STATE OF TENNESSEE

COUNTY OF SHELBY

On this______day of ______, 2011, Personally appeared before me,

Fredrick Smith, who on oath, sates that the contents of the

foregoing are true to the best of his knowledge, information and

belief.

WITNESS my hand and seal at Memphis, Tennessee this date.

___________________Notary Public


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FIAT

TO: CLERK OF COURT

Issue the Temporary Restraining order enjoining Defendants from

proceeding with any action to evict Plaintiff from the real

property located at c/o 7601 Broken Hickory Drive, Walls,

Mississippi 38680 as prayed for in this complaint and issue

notice setting this matter for hearing on this _____ day

of_________, 2011, at________a.m./p.m.

_____________________________ Date _______

Chancellor

CERTIFICATE OF SERVICE

I, FREDRICK SMITH, being the plaintiff herein named, hereby

certify that on the ________ day of ___________, 2011, I timely

served one copy of the plaintiffs NOTICE OF PENDENCY ACTION for

civil docket No. _____________, to Defendant(s), addressed asshown below and mailed with correct postage affixed First Class

Mail from a U.S. Postal Service mail drop:

Mortgage Electronic Registration Systems, Inc.1818 Library Street, Suite 300Reston, VA 20190

LEM ADAMS III2001 Creek Cove Suite ABrandon, Mississippi 39042

WELLS FARGO N.A.101 N. Phillips AvenueSioux Falls, South Dakota, 57104

RECONTRUST COMPANY, N.A.1800 Tapo Canyon Road,


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Simi Valley, CA 93063

MORGAN STANLEY ABS CAPITAL I, INC.1585 BroadwayNew York, New York 10036

WMC MORTGAGE CORP.P.O. Box 54089LOS ANGLES, CA 90054-0089

American Home Mortgage Servicing, Inc.1255 Route 70 # 12sLakewood, NJ 08701-5900

Bank of America Home Loans23631 Calabasas Rd,Calabasas, CA 91302

01 Freds Complaint

Documents

Transcript of 01 Freds Complaint