STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF CLINTON MOST PEOPLE Case #: 2010-_____________ Plaintiff

, vs. CITIMORTGAGE, INC., HUNTINGTON NATIONAL BANK, Defendants. _______________________________/

COMPLAINT FOR BREACH OF CONTRACT, MISREPRESENTATION, WRONGFUL FORECLOSURE AND EMERGENCY INJUNCTIVE RELIEF COMES NOW PLAINTIFF, MOST PEOPLE, (hereinafter also “PEOPLE”), and for his Complaint in support of his action to Enjoin Foreclosure and bring Affirmative Causes of Action including Misrepresentation, and Breach of Contract states as follows: NATURE OF ACTION
1.

Plaintiff brings this action to enjoin foreclosure instituted against him by The loan originator, Waterfield Financial, Inc. and agents acted

CitiMortgage, Inc.

unlawfully in inducing Plaintiff into a loan on or about October, 2003 with a lower interest rate and lower fees together with CitiMortgage’s and Huntington Bank’s failing to service the loan leading to damages by Plaintiff.
2.

CitiMortgage is not the holder of the note or owner of the mortgage.

CitiMortgage misrepresented facts that induced Plaintiff into (a) loan modification and (b) short-sale proceedings in which Plaintiff now has an offer for purchase on the property that will be imminently lost if Defendant, CitiMortgage does not honor its’ contracts to (a) service and modify the loan, and/or (b) provide a means by which Plaintiff can short-sell property to one or more Defendants.

1

however. loss mitigation. 10. 2 . 6.000.000. The “property” is a single-family home at County. husband and wife. Inc. Defendants knew Plaintiff’s wife was disabled and pregnant and forced Plaintiff into a loan that was higher-cost and higher interest.000 and the property has a present market value of approximately $170. The balance on CitiMortgage’s loan is approximately $180. short-sale. The property is owned by MOST Jurisdiction and Venue for this action are proper. Michigan 48820. 5. at closing. (“Huntington”) claims an interest as a second mortgagee with offices in Columbus. claiming an interest as a first mortgagee. The original purchase price of the property was approximately $250. misrepresentations and failures have and continue to cause irreparable harm to Plaintiff for which Plaintiff seeks remedial damages and injunction to prevent Defendants from foreclosure. Plaintiff was a resident of Clinton County and is a resident of Florida. 9. PEOPLE and MOST PEOPLE. Plaintiff made all payments through 2008 and suffered family hardships. Defendants and/or their predecessors and by agents offered Plaintiff a low- cost. In several attempts in late 2009.3. Plaintiff to perform these loan servicing functions. Ohio. Huntington National Bank. is an international mortgage and banking corporation with offices in Florida and Michigan. Defendants’ false and deceptive trade practices. 8. lower interest rate loan. Inc. Plaintiff contacted CitiMortgage and Defendants took financial information from Huntington for loan servicing to obtain refinancing. PARTIES & JURISDICTION 4. 11. FACTS RELATED TO ALL COUNTS 7. and/or loan modification instructions and parameters. Defendant CitiMortgage. Plaintiff re-alleges paragraphs 1-3 and incorporates same by reference.

12. 15. but Defendant has been unwilling to properly work with Plaintiff as they represented. In January. CitiMortgage. Plaintiff completed all forms online and in writing. 14. 2010. Plaintiff continued to inquire by phone and in writing with Plaintiff on the status of CitiMortgage’s plans. they would. Plaintiff disagrees with the monies being charged Plaintiff by Defendants. was additionally unavailable and could not explain why CitiMortgage had not responded to my letters requesting loan servicing or modification. On or about various times including. Such purchase possibilities are and remain at great risk because Defendants have not worked with Plaintiff. Plaintiff has obtained purchase offers to remedy this transaction to the benefit of Defendant. representative “Shawnica” stated that Wells Fargo was now the holder and investor of the note. 20. 17.400. 16. initially. 3 . Plaintiff relied on CitiMortgage’s representations exclusively and made all attempts to stay in contact with CitiMorgage’s Loss Mitigation Department. 13. but not limited to January and March. and that “HAMP” was available. CitiMortgage. again. 21. Defendants CitiMortgage and Huntington represented it had several programs and would (a) refinance and/or modify Plaintiff’s transaction. In 2009. 18. represented Plaintiff qualified and should wait and that the property would certainly not be going to Foreclosure. 19. Inc. CitiMortgage offered to “refinance” and reduce the mortgage interest rate by approximately 0. Defendants represented that Plaintiff qualified for these programs and induced Plaintiff to apply to programs and provide financial information to Defendants. CitiMortgage additionally sent papers and instructions to Plaintiff to obtain financial information and also directed Plaintiff to complete on-line forms. 2010 Defendant.50% in exchange for Plaintiff’s payment of approximately $5. 22. At that time.

make payments. but that CitiMortgage was “overrun with papers to process.S. CitiMortgage never completed the loss mitigation process.” 24. 2010 from Plaintiff and gave the direct impression that the application was in order. 28. CitiMortgage stated loan counselor “Tim” would be contacting Plaintiff in 45- 60 days. Despite repeated attempts by Plaintiff to work with Defendants.23. and able to work with Defendants.” and never suggested or demanded the new payment during the loss mitigation servicing it requested. Efforts to contact the Loss Mitigation Department have gone unanswered. Defendants failed to follow through. 31. 27. Government’s program to secure homes (HAMP) and Plaintiff should wait until that program contacted Plaintiff. Orlans represents it “has a sale date of August 4. willing. 29. 4 . “ 26.00 monthly payments. 32. and not to worry . 2010. Plaintiff was ready. Plaintiff re-alleges paragraphs 1-3. CitiMortgage stated it was participating in the U. 25. CitiMortgage later stated it would authorize $800. CitiMortgage did not demand payment and suggested there was nothing further for Plaintiff to do to obtain a loss mitigation procedure. In fact 30. a law firm whom has indicated it would publish and sell the property. failed to have a “loan counselor call. however. CitiMortgage stated it received a second application on April 12. Orlans. On April 15. 7-32 and incorporates same by reference. CitiMortgage without prior notice. Plaintiff contacted “David” with CitiMortgage whom confirmed CitiMortgage had Plaintiff’s paperwork and that Plaintiff “shouldn’t worry. COUNT I – WRONGFUL FORECLOSURE – LACK OF STANDING 33. and assist Defendants.” because Plaintiff was “in the program and should wait for the counselor to contact Plaintff. placed the property with. . 2010” further stating it can do nothing without the approval of the CitiMortgage Loss Mitigation Department. .

448 Mich 671. Defendants have failed to establish that they are the holder of the note or the owner of the mortgage contract.3204 provides in pertinent part that (1) a party may foreclose a mortgage by advertisement if all of the following circumstances exist: A default in a condition of the mortgage has occurred. 678 (1995). 38. c. Defendants are not eligible to foreclose the property because it does not own the indebtedness according to the statute. Inc.” Davenport vs. No. Plaintiff re-alleges paragraphs 1-3. Mich App. COUNT II .. Inc. 7-39 and incorporates same by reference. Plaintiff engaged in mortgage business with Waterfield Financial. . d. Arnold v.34. Accordingly. however. . 35. MCL 6003204(1)(d). Ct. . by which the power to sell became operative. a record chain of title shall exist PRIOR to the date of sale . evidencing the assignment of the mortgage to the party foreclosing the mortgage . One whom is not the record holder of a mortgage may not foreclose. or Huntington National Bank. HSBC BANK USA. Defendant commits structural errors “in the very heart of the Defendant’s ability to foreclose by advertisement in the first instance. . . a. The party foreclosing the mortgage is either the owner of the indebtedness or of an interest in the indebtedness secured by the mortgage or the servicing agent of the mortgage.FAILURE TO ADHERE TO CONDITIONS PRECEDENT 40. DMR Financial Services. . No chain of title has been established. Id. When the foreclosing entity fails to perform according to this statute. 36. MCL §600. 273897 (2007 from Wayne Circuit Court). and Union Federal Savings Bank. Inc. . did not engage in loan origination transactions with CitiMortgage. If the party foreclosing a mortgage by advertisement is not he original mortgagee. as “only the record holder of the mortgage has the power to foreclose. 5 . 37. . 39.

2008. 43. CitiMortgage. Therefore. On two prior occasions. In November. In February.5 Billion in taxpayer funds and pledged to utilize these monies in relief of their clients’ mortgages. Treasury in which CitiMortgage received approximately $3. pursuant to its Contract including. Mortgage Acceleration is improper in this case and should be reversed. 2010. 49. . Plaintiff re-alleges paragraphs 1-3. Defendant induced Plaintiff into making a single further 6 payment in exchange for loss mitigation. Citimortgage represented that Plaintiff was eligible for and had been engaged in this program by virtue of Plaintiff’s application.S. is believed to have contracted with the U. Any notice Defendants may have given were waived after Defendants continued to accept payments post-acceleration and continue to lead Plaintiff into believing Defendant would not foreclose. In January and February. the failure of the Defendant Mortgagee to disclose terms and conditions of the loan modifications offered. COUNT III – BREACH OF COMPLIANCE WITH FEDERAL RELIEF HAMP/TARP PROGRAM 46. 45. Defendant has failed to provide notice to Plaintiff as to the substance of their Plaintiff received no Notice of Acceleration from Defendant. to provide and adhere to many federal and contracted material loan servicing obligations. Additionally. Defendant’s foreclosure involves a condition precedent to acceleration of the subject mortgage and principle is the timely notice to the mortgagor that acceleration of the principal and interest balance would be in effect. 2010.41. 42. Inc. claim. WHEREFORE. 7-45 and incorporates same by reference. Defendants have failed. loss mitigation representatives stated Plaintiff would be put into this program upon application for loss mitigation with CitiMortgage. 48. 44. as a condition precedent to Mortgage Contract. 47. together with any other relief determined by this Court. Plaintiff respectfully request that Foreclosure be abated and stayed. but not limited to.

actually mislead Plaintiff severely. 7 . 58. Since Defendants breached their contract and obligation of good faith and fair dealing. Defendants breached their duties in servicing the loan transaction. 53. has not performed this function and in so doing has mislead taxpayers and Plaintiff re-alleges paragraphs 1-3. and in not properly explaining or servicing the provisions creating a false transaction when Plaintiff tendered monies. 56. the contract between Plaintiff and Defendant is void and/or voidable. Plaintiff has filed a separate motion to address CitiMortgage’s non- compliance with their commitment to honor the Treasury HAMP program.50. 54. and applications at request of Defendants and/or their predecessors. Plaintiff WHEREFORE. Implied in the contract between parties to a mortgage is an obligation of good faith and fair dealing that neither party will do anything having the effect of destroying or injuring the rights of the other party to receive the fruits of the contract. Citimortgage pledged it would do all that it could to assist borrowers. Defendants assert a mortgage contract to which the parties were bound. Plaintiff prays this Court shall ENJOIN Defendants from all foreclosure activities and calendar further proceedings such that Plaintiff may recover.BREACH OF CONTRACT & BREACH OF GOOD FAITH AND FAIR DEALING 52. Defendants breached their obligation of good faith by not explaining the terms of the loss mitigation transaction and options to Plaintiff. COUNT IV . however. information. 51. refusing to properly service the transaction and in so doing. In that contract were Defendants’ duties and provisions that included Defendants’ responsibility to service the loans they allegedly held. 7-51 and incorporates same by reference. 57. 55.

together with any other relief due and owing Plaintiff as determined by this Court. in fact. reasonably rely on Plaintiff’s representations and conduct before. 61. herein. COUNT V . relied upon both sets of material representations to his detriment—his home remains far from the value it was when the transaction began. 65. during. irreparable harm to Plaintiff and constitute unclean hands on the part of Defendants. Plaintiff requests this Honorable Court ENJOIN Defendants from foreclosure together with awarding any other relief in favor of Defendants that this Court determines just and appropriate. Defendants breaches and material misrepresentations have caused 60. Plaintiff did. and after the purported closing to the substantial detriment of Plaintiff. 63. in fact. Plaintiff. Plaintiff respectfully requests that Defendant Foreclosure be enjoined and stayed. WHEREFORE. 64. Defendants re-allege and incorporate paragraphs 1-3. Defendants and/or predecessors have been and/or will be unjustly enriched through the taking of monies through alleged and proposed transactions upon which Plaintiffs reasonably relied. Plaintiff may have benefitted also by Federal Loan Workout Programs such as HAMP/TARP to which Plaintiff relied upon being able to avail themselves of.ESTOPPEL/UNCLEAN HANDS 59. Defendants represented they would foster an opportunity in which to modify this loan transaction to which they relied.WHEREFORE. and respectfully request this Court provide relief in the following manner: 8 . and until such time the Defendants should be estopped from proceeding in foreclosure as a result. 7-58. Plaintiff has lost contracts for sale and purchase. Plaintiff also reasonably relied on Defendant’s servicing and working out loan modifications with Plaintiff as have in their course of prior dealing. and now faces foreclosure. 62.

including but not limited to the mortgage and note related to the closing Transaction herein above described. Order Defendants to take all actions necessary to terminate any security interest in Plaintiff’s property created under the transaction and that the Court declare the security interest void. Order Defendants to Comply with federal loan modification and refinancing standards provided for in the federal TARP/HAMP contract executed between the United States Treasury and Plaintiff as applicable. prosecuting or maintaining foreclosure proceedings on Plaintiff’s property or from otherwise taking any steps to deprive Plaintiffs of ownership of that property. to anyone of Defendants’ agents. (i) (j) RESPECTFULLY SUBMITTED.(a) (b) Assume jurisdiction of this case. (f) Alternatively. Award costs and reasonable attorneys fees to Plaintiffs as applicable. (h) Award actual damages in an amount to be established at trial and/or evidentiary hearings that are now requested. including the Plaintiff. Award such other and further relief as the Court determines just and proper. from instituting. Enjoin Defendants from mortgage foreclosure during the pendency of this action and permanently thereafter. Order Defendants to engage on the loss mitigation procedures Defendants offered such that Plaintiffs can recover. (g) Order the return to Plaintiffs of any money or property given by Plaintiff in expectation of loss mitigation and loan servicing in 2010. 9 . (c) (d) (e) Waive any Bond that may be required by Plaintiffs as Defendants’ security interest is protected in the property. in connection with the transaction.

P.__________________________________ MOST PEOPLE 121 North Street Quincy. N.A. _____________________________ MOST PEOPLE 10 . Troy. prepaid. Columbus. c/o Orlans. Michigan 48007-5041. and by Telefax on (248) 502-1401 Attorney for Defendant. to CitiMortgage. Box 5041. Florida 32351 CERTIFICATE OF SERVICE THIS IS TO CERTIFY that a true and correct copy of the foregoing has been sent via USPS. and Huntington National Bank.A. Ohio 43235 this 30th day of July. at 7450 Huntington Park Drive. 2010. at P. Inc.O.

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