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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
28. Plaintiffs incorporate herein by reference the allegationsmade in paragraphs 23 through 27, inclusive, as though
fully set forth herein.
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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35. Plaintiffs incorporate herein by reference the allegationsmade in paragraphs 28 through 34, inclusive, as though
fully set forth herein.
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
41. Plaintiffs incorporate herein by reference the allegationsmade in paragraphs 35 through 40, inclusive, as though
fully set forth herein.
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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55. Plaintiffs incorporate herein by reference the allegationsmade in paragraphs 47 through 54, inclusive, as though
fully set forth herein.
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
64. Plaintiffs incorporate herein by reference the allegationsmade in paragraphs 55 through 63, inclusive, as though
fully set forth herein.
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
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