UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE ___________________________________ FnDoomed, Pro Se ) ) Plaintiff, ) v. ) ) Case Number: xxxxxxx J.P.

MORGAN CHASE N.A. and ) FEDERAL HOME LOAN ) MORTGAGE CORPORATION and ) HAUGHEY, PHILPOT & LAURENT P.A. ) ) Defendants. ) ___________________________________ )

NOW COMES the Plaintiff setting forth his arguments against the DEFENDANTS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS (“Defendants’ Memo”). I. INTRODUCTION The July 30, 2010 mortgage assignment (“the assignment”) alleges assignment of the Note and the Mortgage from MERS as Nominee for Crescent (“Crescent”) to Federal Home Loan Mortgage Corporation (“Freddie Mac”). The Plaintiff waives his challenge to the authority, capacity and authorization of the assignor in his amended complaint ¶ 26 but does not waive his right to evidence that the Note was properly transferred or negotiated to the Defendants, and does not waive his right to evidence that the Note is in default to the Defendants. II. AUTHORITIES ON THE NOTE, THE ALLONGE AND THE MORTGAGE

The Note The Uniform Commercial Code as adopted in New Hampshire and codified in NH RSA 382-A (“UCC”) 3-301 provides several ways to become a Person Entitled to Enforce an instrument. Defendants argue that they may be entitled via the first two, UCC 3-301 (i) and UCC 3-301 (ii), and therefore the Petition to Enjoin a Foreclosure Sale against them should be dismissed. Holdership of a note under UCC 3-301 (i) requires possession of the wet-ink note taken by negotiation with all indorsements of the Maker(s) and prior holders. The final indorsement may be made in blank or to the person claiming holdership. Subsumed within the concepts of negotiation are the questions of when and where indorsement and delivery occurred, because this affects rights and obligations of the parties, as well as the law controlling the transaction, and would be a question of material fact requiring some external evidence. The record is clear on these points: The allonge was not effective to indorse the Note and therefore Crescent never became a holder. Freddie Mac got the note from Crescent who was not a holder and therefore could not have negotiated the Note to Freddie Mac. Any claim under UCC 3-301(i) would fail as a matter of black-letter law. UCC 3-301 (ii) requires that the person so claiming must prove two things. First, the person must prove they are in possession of the original wet-ink note. Second, the person must prove the transaction through which they acquired the note from the holder. “Because the transferee is not a holder, there is no presumption under Section 3-308 that the transferee, by producing the instrument, is entitled to payment. The instrument, by its


terms, is not payable to the transferee and the transferee must account for possession of the unendorsed instrument by proving the transaction through which the transferee acquired it. Proof of a transfer to the transferee by a holder is proof that the transferee has acquired the rights of a holder.”

U.C.C. ARTICLE 3 OFFICIAL COMMENTS COMMENT § 3-203 Comment 2 (emphasis added). The Court of Appeals for the 1st Circuit agrees.
“Not being a holder, the FDIC had to show, as a prerequisite to enforcing the Note against the Houdes, that it was a transferee in possession entitled to the rights of a holder. See 11 M.R.S.A. § 3-1203. Comment 2 following § 3-1203 provides: If the transferee is not a holder because the transferor did not indorse, the transferee is nevertheless a person entitled to enforce the instrument ... if the transferor was a holder at the time of transfer.... Because the transferee is not a holder, there is no presumption ... that the transferee, by producing the instrument, is entitled to payment. The instrument, by its terms, is not payable to the transferee and the transferee must account for possession of the unindorsed instrument by proving the transaction through which the transferee acquired it. Proof of a transfer to the transferee by a holder is proof that the transferee has acquired the rights of a holder. At that point the transferee is entitled to the presumption.... (emphasis added) Thus, in order minimally to be entitled to the presumption under Maine law that it could enforce the Note, the FDIC was required (1) to prove a sufficient transfer from a holder (here MNB, to which the Note was made payable by the Houdes) to the FDIC in its present capacity as receiver of NMNB, and (2) to produce the Note at trial.”

FDIC v. Houde, 90 F. 3d 600 - Court of Appeals, 1st Circuit 1996.

As discussed supra, subsumed within the question of a transfer are the questions of when and where the transfer occurred because this would affect the rights and obligations of the parties as well as the law controlling the transaction, and so would be a question of material fact requiring some external evidence. Because Crescent was not a holder at the time of transfer, the Defendants can’t prove a transfer from a holder as required by the UCC and upheld in Houde. Any claim the Defendants make under UCC 3-301 (ii) would also fail as a matter of black-letter law.


The Allonge The Defendants have advanced a theory of scrivener’s error on the allonge to the Note1, but the allonge is a contract that they may not challenge. “Indeed, an indorsement is a contract superimposed upon the check which is itself a contract. The indorsement contract itself creates certain statutory liabilities between the indorser and other parties in interest.” MOHAWK NAT. BANK v. Citizens Trust Co., 38 Misc. 2d 222 - NY: County Court 1963. “A valid indorsement is a contract as well of transfer as of provisional liability.” Nichols v. Fearson, 32 US 103 Supreme Court 1833. The Defendants lack standing to challenge the plain language of the allonge because they are not parties to the contract. See Warth v. Seldin, 422 US 490 - Supreme Court 1975. (“This Court has held that the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties”). Even if the Defendants could somehow overcome Warth v. Seldin and argue the rights and obligations of third parties, the record indicates that any alleged scrivener’s error would have happened nine years ago, and therefore any reformation action would be time-barred by the statute of limitations on contracts. NH RSA 508:4(I) provides “Except as otherwise provided by


All that the holder needed to do was to rubber stamp and sign the Note. The more likely reality is that the Note was never indorsed by the holder, not even with a defective allonge; and that the allonge was faked, forged or fabricated, and it is the forgery that contains the scrivener’s error. Note: The copy of the Note provided in response to Plaintiff’s QWR had no allonge. Further, Corporations such as DocX and Lender Processing Services are widely known to create such forgeries, forged to order and delivered in time for litigation. These forgeries are then used by attorneys to prosecute unlawful foreclosures. It may inform the Court to take judicial notice of the consent order captioned In the Matter of JPMorgan Chase Bank, N.A New York, NY, Case AA-EC-11-15, Article I Paragraph (2), where the OCC found that Chase routinely practiced several unsafe and unsound policies including the employment of insufficient affidavits, foreclosing without owning the debt, and failure to sufficiently oversee outside counsel and other third-party providers handling foreclosure-related services. The Plaintiff contends that the instant matter is one more case of the foreclosure abuses outlined therein.


law, all personal actions, except actions for slander or libel, may be brought only within 3 years of the act or omission complained of”. Even if the Defendants overcame these obstacles then they would have to prove fraud in alleging the unilateral mistake of the scrivener. “Reformation ordinarily applies to written instruments, and absent fraud, requires mutual mistake” Franklin Nat. Bank v. Austin, 99 NH 59 - NH: Supreme Court 1954. “Moreover, in the case of a unilateral mistake the remedy is rescission, not reformation” Midway Excavators, Inc. v. Chandler, Comm'r, 128 NH 654 - NH: Supreme Court 1986. There is simply no support for the Defendants’ contention of “mere scrivener’s error”. “The flaws in the notes should have been perceived quickly and readily cured. Instead, the record suggests that the failure to observe that Code formality was caused by nothing short of sheer carelessness.” Adams v. Madison Realty & Development, Inc., 853 F. 2d 163 - Court of Appeals, 3rd Circuit 1988. “Financial institutions, noted for insisting on their customers' compliance with numerous ritualistic formalities, are not sympathetic petitioners in urging relaxation of an elementary business practice. It is a tenet of commercial law that "holdership and the potential for becoming holders in due course should only be accorded to transferees that observe the historic protocol". Id. For all of the foregoing reasons, the Defendants are not persons entitled to enforce the Note under any provision of UCC 3-301. The Mortgage The Plaintiff and the Defendants agree that “Under New Hampshire law, the holder of a note and mortgage has the power to foreclose on the security” Defendants’ Memo Page 6.

"To have jurisdiction and authority to foreclose, a party must show that it is also the assignee of the underlying promissory note because foreclosure of a mortgage may not be brought by one who has no title to it and absent a transfer of the debt, the assignment of the mortgage is a nullity." Zecevic v. U.S. Bank Nat'l Assoc., No. 10-E-196, slip op. at *5 (N.H. Super. Jan. 20, 2011). The common law is that the mortgage follows the Note. See Carpenter v. Longan, 83 US 271 - Supreme Court 1873 (“The note and mortgage are inseparable; the former as essential, the latter as an incident. An assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity”). The New Hampshire Supreme Court has repeatedly upheld the common law of Carpenter. “As the trial court held, "by paying off the mortgage note to Bankers Trust, Ameriquest became the primary note holder on the property at 55 Main Street. Ameriquest secured the sole right of foreclosure on the property, which operated as collateral in the event Mr. and Ms. Chase did not meet the terms in the Security Instrument."” Chase v. Ameriquest Mortg. Co., 921 A. 2d 369 - NH: Supreme Court 2007 (Ameriquest took the note by subrogation and took the mortgage as an operation of the common law). See also Caraway v. Jean, 97 NH 506 - NH: Supreme Court 1952 (“We believe the transfer from the bank to the plaintiff of the debt must be deemed equitably to have carried with it the security of the mortgage.”). The mortgage follows the Note and the rights to the Note have not travelled to the Defendants, regardless of what the July 30, 2010 mortgage assignment says. As set forth in Carpenter and applied in New Hampshire, the Defendants were assigned only a nullity and not an enforceable mortgage.



THE DEFENDANTS’ MOTION TO DISMISS COMPLAINT 1 In support of their motion to dismiss Complaint 1 (petition to enjoin) the Defendants

employ a shell game with agency principles when they assert that: “JP Morgan Chase and FHLMC are entitled to foreclose … FnDoomed’s allegations are not sufficient to challenge JP Morgan Chase’s right to foreclose on the mortgage. FnDoomed has not alleged that JP Morgan Chase is not in possession of the original note and mortgage, only that FHLMC is not “properly in possession of the note or mortgage. …. The Amended Petition does not allege that JP Morgan Chase cannot enforce the mortgage only that FHLMC may not. Thus, the petition to enjoin enforcement must fail.” Defendants’ Memo, page 6.

Freddie Mac is the principal and alleged creditor. Chase is the agent of the principal. Chase hired Haughey Philpot & Laurent (“Haughey”) to pursue foreclosure on behalf of the supposed creditor. Chase has no rights of its own in the matter of the foreclosure. The Defendants’ Memo itself asserts several times that Chase works on behalf of the principal, Id. Page 7. The Defendants are all working for the benefit of the principal, and it should be enough that the Plaintiff challenges the rights of the principal, Freddie Mac. If the Honorable Court agrees with the Defendants’ contention that to proceed the Plaintiff must challenge each combination of defendants propounded supra because the Defendants may hold the Note jointly Id. Page 6, or that they may hold the Note for their own benefit Id., then the Plaintiff contends that the deficiency is a simple technical matter to be dealt with in an amended complaint if the Court grants leave.


All of Plaintiff’s arguments against the foreclosure apply equally well to Chase, Haughey or any other party in this matter, and Plaintiff’s Petition to Enjoin a Foreclosure Sale should not be dismissed. IV. THE DEFENDANTS’ MOTION TO DISMISS COMPLAINT 2, COUNT 1. As a preliminary matter the Plaintiff requests judicial notice that the date May 4, 2011 referenced in the Amended Complaint ¶ 60 is a typographical error. Reference to the exhibit cited in the allegation shows that the correct date is May 4, 2012. Affidavit/Exhibits CHASE PAPERS, exhibit 12. “It is a well-settled rule that when a written instrument contradicts allegations in the complaint to which it is attached, the exhibit trumps the allegations” Northern Indiana Gun & Outdoor Shows, Inc. v. City of South Bend, 163 F.3d 449, 454 (7th Cir.1998). The FDCPA is a consumer protection Act that requires the Plaintiff to establish that he was the object of collection activity arising out of a consumer debt, and that those accused of violating the FDCPA are debt collectors, and the debt collectors violated a provision of the FDCPA. The debt at issue relates to what used to be the Plaintiff’s family’s home, so the first element of an FDCPA claim is satisfied. The FDCPA generally defines three kinds of people: debtors, creditors, and debt collectors. Under the FDCPA when one is not a debtor and not a creditor, one must by default be a debt collector. The Plaintiff has adequately alleged that Defendants fall into the third category of debt collectors because they are strangers to the debt, which means they are not entitled to payment on the debt, nor entitled to enforce it, nor entitled to transact upon it in any way. Amended Petition ¶ 18-22. See Also Black’s Law Dictionary (9th Edition) (a “stranger” is


1. One who is not party to a given transaction … or 2. One not standing toward another in some relation implied in the context; especially one who is not in privity). Further, adopting for the sake of argument the Defendants alleged sequence of events in declaring the note in default, and then assigning it to Freddie Mac (Amended Complaint ¶ 29, 7), then the alleged debt was already in default when the Defendants took the debt, which also classifies Defendants as debt collectors under the FDCPA. The Defendants can be nothing else but debt collectors under the FDCPA, and so the second element of an FDCPA claim has been satisfied. The Defendants rely on Beadle v. Haughey, Dist. Court, D. New Hampshire 2005, for the proposition that they are immune to FDCPA complaints because security enforcement actions are not debt collection activities under the FDCPA (“the proposition”). The Plaintiff contends that Beadle is outdated and the Defendants reliance on Beadle is misplaced for at least three reasons. First, in Beadle the attorneys accused of violating the FDCPA were not accused of being strangers to the debt, and were presumed to be pursuing lawful foreclosures on behalf of valid creditors. As strangers to the debt, these Defendants were doing none of the above. Any debt collection activity of any debt by any means by these Defendants in the instant case manifestly violates the FDCPA because unlawful activity is unfair by its nature. Second, while the 1st Circuit has not had opportunity to decide any on-point cases that the Plaintiff can find regarding the proposition, the extra-jurisdictional appellate authorities are piling up against Beadle in at least six other circuits.


The more persuasive authorities can be found in e.g. Piper v. Portnoff Law Associates, Ltd., 396 F. 3d 227 - Court of Appeals, 3rd Circuit 2005 (“We agree with the District Court that "[i]f a collector were able to avoid liability under the FDCPA simply by choosing to proceed in rem rather than in personam, it would undermine the purpose of the FDCPA”). See Also e.g. Wilson v. Draper & Goldberg, PLLC, 443 F. 3d 373 - Court of Appeals, 4th Circuit 2006 (“Defendants' argument, if accepted, would create an enormous loophole in the Act immunizing any debt from coverage if that debt happened to be secured by a real property interest and foreclosure proceedings were used to collect the debt”). See Also e.g. Kaltenbach v. Richards, 464 F. 3d 524 - Court of Appeals, 5th Circuit 2006 (“We therefore hold that a party who satisfies § 1692a(6)'s general definition of a "debt collector" is a debt collector for the purposes of the entire FDCPA even when enforcing security interests”). See Also e.g. Wallace v. WASHINGTON MUTUAL BANK, FA, Court of Appeals, 6th Circuit 2012 (“Plaintiff alleges that the statement in the foreclosure complaint that Lerner, Sampson filed against her on behalf of Washington Mutual contained the false statement that Washington Mutual was the holder of her mortgage. District courts have decided, and we agree, that a clearly false representation of the creditor's name may constitute a "false representation . . . to collect or attempt to collect any debt" under Section 1692e”). See Also e.g. Maynard v. Cannon, Court of Appeals, 10th Circuit 2010 (“For the purposes of this case, we assume non-judicial foreclosures are covered by the FDCPA”). See Also e.g. Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211 (11th Cir. 2012) (“The rule the Ellis law firm asks us to adopt would exempt from the provisions of § 1692e any communication that attempts to enforce a security interest regardless of whether it also attempts to collect the underlying debt. That rule would create a loophole in the FDCPA. A big one. In every case involving a secured debt, the proposed rule would allow the party


demanding payment on the underlying debt to dodge the dictates of § 1692e by giving notice of foreclosure on the secured interest. The practical result would be that the Act would apply only to efforts to collect unsecured debts. So long as a debt was secured, a lender (or its law firm) could harass or mislead a debtor without violating the FDCPA. That can't be right. It isn't. A communication related to debt collection does not become unrelated to debt collection simply because it also relates to the enforcement of a security interest. A debt is still a "debt" even if it is secured”). Third, Beadle relies in turn on decisions coming out of other district courts for the proposition in the 3rd (1990), 4th (1998), 5th (2003), 7th (2004) and 9th (2009) circuits, where the Court of Appeals for at least the 3rd, 4th, and 5th circuits have later ruled directly against the proposition as shown supra, and therefore against their constituent district decisions and against Beadle by extension. Accordingly, the last factor of conduct in violation of the FDCPA is satisfied. For all of the foregoing reasons supra, the Defendants should not be allowed to escape the FDCPA simply because the debt being collected (to which they aren’t entitled) happens to have an unenforceable mortgage attached. Allowing such a result allows any person to pursue a foreclosure against any other person, as long as those foreclosing seem to have a security interest, regardless of a debt’s true status. In the instant matter both assignor and assignee were represented by the same debt collector law firm, who is also a codefendant in the instant case, and so only the FDCPA stands in the way to protect the Plaintiff from the abusive and unlawful practices of the Defendants.


The Defendants do not deny that any of the causes of action giving rise to the alleged FDCPA violations have occurred, only that most of them are time-barred by the FDCPA’s one year limitations period, and therefore only one violation remains. Having already judicially noticed the typo supra, the Plaintiff asserts that two causes of action are not time-barred. Moreover, just because the allegations may be time-barred by the FDCPA does not mean that they didn’t happen. Having no rights whatsoever to the debt, the Defendants collected money, tricked the Plaintiff into “default”, ran him through their fraudulent loan modification schemes, tried to steal his home twice, publically shamed and humiliated him, affected his health, ruined his credit, drove him into bankruptcy, contributed to his divorce, contributed to the alienation of his children (who now live in Montana) and generally destroyed his life. The Plaintiff has suffered continually in his dealings with the Defendants and suffers continuing harm today. The Plaintiff will carry the emotional scars of this entire experience for the rest of his life. “The FCPDA allows aggrieved debtors to file suit "within one year from the date on which the violation occurs."” Padilla v. Payco General American Credits, 161 F. Supp. 2d 264 Dist. Court, SD New York 2001. “However, the statute of limitations is not intended to deprive plaintiffs of the use of evidence of violations that took place more than a year before filing”. Id. “Finally, even if the statute of limitations were to bar liability for conduct outside the limitations period, evidence of pre-limitations period calls would likely be admissible to show background, to establish a foundation for other evidence, as well as to show Plaintiff's vulnerable state of mind and establish the extent of general damages.” Joseph v. JJ Mac Intyre Companies, LLC, 281 F. Supp. 2d 1156 - Dist. Court, ND California 2003.


If this Honorable Court concludes that the FDPCA does not apply to these defendants then the Plaintiff asserts that his invocation of the FDCPA can be easily corrected in an amended complaint if the Court grants leave. For all of the foregoing reasons the Plaintiff’s FDCPA complaint should not be dismissed. V. THE DEFENDANTS’ MOTION TO DISMISS COMPLAINT 2, COUNT 2. The Defendants assert that the Plaintiff’s RESPA claims should be estopped because the Plaintiff did not list a cause of action under RESPA on his bankruptcy schedules. The Defendants rely on Marley v. Bank of America, No. 10-10885-GAO (D. Mass. Dec. 16, 2010) for their estoppel argument, but their reliance is misplaced because Marley’s causes of action arose prior to his filing for bankruptcy protection, while the Plaintiff’s cause of action arose post-filing. The Defendants concede that the cause of action in the instant case arose post-filing, but argue from a footnote that the same principles from Marley should apply here, because claims arising before conversion are viewed as arising pre-petition, and cite 11 U.S.C. § 348 for that narrow interpretation. See Defendants’ Memo Page 12. A plain reading of the code implies that such an interpretation can be construed, but only when the conversion from Chapter 13 was in bad faith. The code states in relevant parts with emphasis added: 11 USC § 348 - Effect of conversion
(a)Conversion of a case … does not effect a change in the date of the filing of the petition, …. (f) (1)Except as provided in paragraph (2), when a case under chapter 13 of this title is converted to a case under another chapter under this title—


(A) property of the estate in the converted case shall consist of property of the estate, as of the date of filing of the petition, … (2) If the debtor converts a case under chapter 13 of this title to a case under another chapter under this title in bad faith, the property of the estate in the converted case shall consist of the property of the estate as of the date of conversion.

When read as a whole, the bankruptcy code obviously contemplated the Plaintiff’s exact circumstance that a cause of action could accrue post-filing but pre-conversion, and provides for the Defendants’ narrow interpretation only where the Plaintiff’s conversion was done in bad faith. The authorities agree with the Plaintiff’s position that his RESPA claim was his property and was never property of the estate, and could not become property of the estate unless the Plaintiff converted in bad faith. See e.g. In re Salazar, 465 BR 875 - Bankr. Appellate Panel, 9th Circuit 2012 (“Because the Salazars had spent the Prepetition Refund before the date they converted their case to chapter 7, the plain meaning of the language used in § 348(f)(1)(A) excluded the Prepetition Refund from property of the chapter 7 estate.”) See Also IN RE RAMON, Bankr. Court, D. Puerto Rico 2012 (“The case was converted from chapter 13 to chapter 7 on August 3, 2011. As of this date, there are no allegations by any party in interest that the case was converted in bad faith. … What is property of the estate in this case converted from chapter 13 to chapter 7 is whatever was property of the estate as of petition date, that is, March 3, 2008”). See Also In re Page, 250 BR 465 - Bankr. Court, D. New Hampshire 2000 (“It is the Debtor's position that § 348(f) mandates that the trustee is bound by the value of the real estate as of the date of the original petition, … The Court agrees with the Debtor …”).


The Plaintiff’s conversion to Chapter 7 was not in bad faith and therefore any estoppel defense raised by the Defendants fails as a matter of law. Having set forth their estoppel defense, the Defendants argue the allegations: First, the allegations in paragraphs 70 and 71 do not state a claim because, on their face, they demonstrate compliance with RESPA by noting that certain required information was given (department contacts and an explanation of unavailability).9 With the referenced footnote 9 stating: In particular, paragraph 70 conveniently omits details FnDoomed himself included in paragraph 40 of the Amended Complaint that the “first level customer service department” gave him a contact in the bankruptcy department. Defendants’ Memo Page 11.

The allegation in ¶ 70 of the Amended Complaint was that the phone number provided in the QWR response was inadequate. Chase’s first-level customer service personnel (“customer service”) do not discuss QWRs, and refused to even speak with the Plaintiff because he was in bankruptcy. The Defendants contend that by customer service connecting the Plaintiff with Chase’s bankruptcy department that the mandates of RESPA were somehow fulfilled; but the interaction they pointed to (Amended Complaint ¶ 40) happened before the QWR was written (Id. ¶ 44) and had nothing to do with the QWR or Chase’s response, except to put the Plaintiff on notice that customer service would never speak with him now that he was in bankruptcy. The bankruptcy department merely recommended the Plaintiff pursue their bankruptcy modification which is what prompted the Plaintiff to write the QWR in the first place.


The allegation at Id. ¶ 71 was that the required answer to why a particular answer was proprietary, or why a particular answer was unavailable, was never reached in Chase’s QWR responses. The phrase “unavailable or proprietary” answers nothing, and does not provide the explanation required by RESPA (e)(2)(C)(i). Had the required explanations been included then the Plaintiff could have chosen a course of action to save his home based on the requested information but was precluded from doing so. Moreover, the “unavailable or proprietary” responses were blanket responses covering multiple specific questions, thereby making them doubly evasive or confusing. In example of the above, the Plaintiff requested some information as to how his loan was securitized and sold to investors (Aff. of QWR Page 14 #11, Page 15 #14). Since these are matters of public record and reporting to the Securities and Exchange Commission there is no way that such information is proprietary or unavailable. The Defendants then challenge the Plaintiff’s allegation that he was directed a nonexistent loan history reconciliation six times: The factual allegation in Paragraph 76 that Plaintiff “was directed to a nonexistent loan history reconciliation six times” is unsupported by the documents provided by FnDoomed that reveal multiple pages of transaction history on the loan. See attachments to FnDoomed “Aff. of QWR Response” 61-61i (Certified State Court Record part 4, doc. no. 8). Defendants’ Memo Page 11. The section pointed to by the Defendants is a confusing list of transactions that reconcile nothing with regard to a default, includes coded terms without a glossary to explain the terms as requested in the QWR, and does not cover the history of the loan because it appears to be


missing the first 186 transactions. A “loan history reconciliation” even if mismarked should reconcile the history of the loan starting from transaction #1. Anything less prevents the Plaintiff from ascertaining the exact status of the loan. The Defendants continue: Finally, FnDoomed, in paragraphs 72-75 attempts at best, to create noncompliance with the statute by alleging that the “QWR Response” was missing a page of information regarding assignment of the note that, according to FnDoomed’s own petition, had already been provided to the parties by JP Morgan Chase when it filed a secured claim with the bankruptcy court in November 2010, months before its response to FnDoomed’s “QWR” on January 20, 2011. See Amended Petition ¶¶ 9, 10. Defendants’ Memo Page 11. The allegations at ¶ 72-75 of the Amended Complaint go two ways. If the Defendants assert that the allonge to the Note was a fraud, then the Note in the answer to the QWR is correct. If the Defendants deny that the allonge to the Note is a fraud, then the copy of the Note in the answer to the QWR is by definition false or incomplete. Having dispensed with the Defendants estoppel defense and adequately pled all of the requirements of a RESPA claim, the Plaintiff contends that his RESPA claim should not be dismissed. VI. THE DEFENDANTS’ MOTION TO DISMISS COMPLAINT 2, COUNT 3 The Defendants move to dismiss the Plaintiff’s fraud claim owing to the Plaintiff’s failure to meet the heightened standard of pleading required by FRCP 9(b) when they state that the heightened standard: requires not only specifying the false statements and by whom they were made but also identifying the basis for inferring scienter. Although the rule itself is not pellucid, precedent in this circuit, as in a number of others is clear: The courts have uniformly held inadequate a complaint’s general averment of the defendant’s “knowledge” of


material falsity, unless the complaint also sets forth specific facts that make it reasonable to believe that the defendant knew that a statement was materially false or misleading.

The reasonable basis for inferring scienter comes through well-established agency principles, mortgage servicing principles, Chase’s own behavior and even publically available information. Chase is the agent, mortgage servicer, and the only “face” of Freddie Mac accessible to the Plaintiff. Chase told the Plaintiff that non-HAMP modifications were available, yet kept directing Plaintiff to Chase’s HAMP website, and kept responding under HAMP-style letterhead. Even Chase’s own Executive Office represented that non-HAMP modifications were available, yet directed the Plaintiff to send her his HAMP application package, and responded under HAMPstyle letterhead. That was the whole basis of the fraud. Chase knew non-HAMP modifications would not be accepted by its principal. Chase promised non-HAMP modifications were coming, then led the Plaintiff to believe he was involved in non-HAMP processes that simply used the HAMP machinery for purposes of expedience, then one year later casually informed the Plaintiff that the investor (Freddie Mac) doesn’t participate in any of Chase’s non-HAMP modifications. Further, there are public documents put forth by Freddie Mac (e.g. Bulletin2 2009-6: Home Affordable Modification Program (03/11/09)) that instruct Chase on what kinds of modifications are acceptable, and these would be found out at discovery, and Plaintiff should be


This is a publically available bulletin on Freddie Mac’s website to “All Freddie Mac Servicers” informally discovered while Plaintiff was researching this memorandum, and the Plaintiff should be allowed to get that document (and others) into evidence to show conclusively that not only was Chase aware that Freddie Mac wouldn’t accept their non-HAMP modifications, but that they knew it at least as early as March 2009.


allowed such discovery in order to prove his allegation that Chase knew Freddie Mac wouldn’t accept any non-HAMP mortgage modifications from Chase well in advance of making the untrue statements to the Plaintiff. For all of the foregoing reasons, the Plaintiff asserts that the bar of alleging scienter has been sufficiently met. The Plaintiff is not alleging Fraud in the Inducement as the Defendants assert, the Plaintiff is alleging simple common law Fraud in that: he was told an initial untrue statement and several supporting untrue statements, by specific departments and personnel of Chase, in telephone conversations and dated letters, and led to believe he was in non-HAMP programs that simply used the HAMP machinery for purposes of expedience, and was intended to rely on those untrue statements, and did rely on those untrue statements to his detriment, and suffered damages by his reliance, and was ultimately shown the lie for what it was. The Plaintiff has alleged all the elements to meet the bar set by FRCP 9(b) and therefore the Plaintiff’s fraud claim should not be dismissed. If this Honorable Court agrees with the Defendants, then the Plaintiff contends that any deficiencies are mere technical problems to be addressed in an amended complaint if the Court grants leave. VII. APPLICABILITY OF THE NH CONSUMER PROTECTION ACT The Defendants argue that the Plaintiff’s CPA claims appear to be leftover and are to be disregarded, but the Plaintiff asserts that they are not leftover pleadings; however badly pled they may appear. It is the Plaintiff’s purpose to see the Defendants first convicted of violating the FDCPA, and RESPA, and to see the Defendants convicted of common law fraud, and to see the


Defendants convicted of any other violations identified through litigation; and then have this Honorable Court find that the CPA applies, and order that enhanced damages for willful and knowing violations are to be applied by the Court. It was also the Plaintiff’s intention to invoke the injunctive powers of the CPA to stop the Defendants foreclosure on his property without bond, due to the egregious nature of the circumstances. The Defendants argue that the Plaintiff’s allegations cannot be prosecuted under the CPA because they are immune to the CPA by virtue of NH RSA 358-A:3, which reads in relevant part with emphasis added: 358-A:3 Exempt Transactions; etc. – The following transactions shall be exempt from the provisions of this chapter: I. Trade or commerce that is subject to the jurisdiction of the bank commissioner … The Plaintiff submits that one of the transactions at issue is an FDCPA claim rooted in the Defendants’ unlawful attempts at non-judicial foreclosure. The transaction of a non-judicial foreclosure is not subject to the jurisdiction of the bank commissioner, but is subject to the exclusive jurisdiction of NH RSA 479:25 (Sale Under the Power). Likewise, the FDCPA claim itself is not under the jurisdiction of the bank commissioner. There is some precedent to classifying FDCPA violations as unfair and deceptive practices. “With some exceptions not relevant here, violations of the FDCPA are deemed to be unfair or deceptive acts or practices under the Federal Trade Commission Act” Jerman v. CARLISLE, McNELLIE, RINI, KRAMER, 130 S. Ct. 1605 - Supreme Court 2010. The Plaintiff cannot stress enough that the Defendants are strangers to the debt in every way, therefore every action that the Defendants have ever taken pertaining to the instant Note or


the instant Mortgage was unlawful and by its very nature “unfair and deceptive”. The Defendants’ unlawful actions are so numerous that the Plaintiff tried to group them into the three broad categories for simple manageability, and alleged many other violations in the background. For example, the Defendants also violated NH RSA 358-C et seq. (“UDUCP”) IV and VII when they sent a letter about the debt to the Plaintiff and cc copied Karen Gorham of the NH Attorney General’s office, and also violated the same provisions when they cc copied the Office of the Comptroller of the Currency. Amended Petition ¶ 52. Debt collection is not under the jurisdiction of the banking commissioner when the debt collectors are strangers to the debt. The Defendants also committed “Invasion of Privacy – False Light” by taking out the newspaper ads in 2010. Amended Petition ¶ 57. This is a core requirement of NH RSA 479:25 and is therefore not under the jurisdiction of the banking commissioner. The Defendants also committed “Slander of Title” by recording a mortgage assignment without any legal basis for doing so. Amended Petition ¶ 27. Recording of mortgage assignments is under the exclusive jurisdiction of NH RSA 477:3-a, and not the banking commissioner. The Defendants also committed “Abuse of Process” by fraudulently employing the HAMP program, unlawfully employing the provisions of NH RSA 479:25 twice, and unlawfully recording the July 30, 2010 assignment. The Plaintiff contends that all of the Defendants violations alleged have been committed for the singular purpose of acquiring his home through an unlawful foreclosure. The Defendants knew beyond all doubt that they were strangers to the debt in every way, and had to foreclose and sell the house to cover up their unlawful acts.

The record shows that the instant note on its face is effectively bad paper from Crescent. The rhetorical question one must ask is why didn’t Freddie Mac pursue its rights against Crescent? The rhetorical answers are most likely “statute of limitations” and “laches”. The plaintiff requests judicial notice of the Defendants’ own websites. Freddie Mac3 has been doing business for over forty (40) years and its every core line of business is related to the debt underlying various mortgage markets. Freddie Mac has prosecuted hundreds of thousands of foreclosures over the last decade. Freddie Mac is an expert on the topic of promissory notes and their enforcement. Freddie Mac had to have seen the instant Note, and recognized immediately that it was bad paper as far as they were concerned. Chase4 is a leading global financial services firm with assets of $2.3 trillion dollars that operates in more than sixty (60) countries, and employs more than 240,000 people. Chase has been servicing its own paper, as well as the paper of others, for more than two hundred years. Chase has prosecuted thousands of foreclosures in recent times, and knows well the business of promissory notes. Chase knew or should have known on sight that the Note was effectively bad paper. Haughey5 is a NH foreclosure attorney and has managed and/or prosecuted hundreds of foreclosures across the state over the last decade. By profession and experience Haughey possesses a demonstrably sophisticated knowledge as to the enforcement of promissory notes, and likewise knew or should have known on sight that the Note was effectively bad paper.

3 4

Source: http://www.freddiemac.com/corporate/company_profile/ Source: http://www.jpmorganchase.com/corporate/About-JPMC/about-us.htm 5 Source: http://www.hpllaw.com/


As knowing strangers to the debt the Defendants all chose to take the law into their own hands and commit many unlawful acts. For all the foregoing reasons these Defendants should not be allowed to escape the CPA and the Plaintiff’s application of the CPA should not be disregarded, but if the Honorable Court concludes that the CPA does not apply, then the Plaintiff asserts that the invocation of the CPA is a correctable defect easily remedied in an amended complaint if the Court grants leave.

VIII. CONCLUSION WHEREFORE, for all the reasons set forth above the Plaintiff respectfully requests that this Honorable Court sustain the Plaintiff’s opposition and deny the Defendants motion to dismiss. Respectfully submitted, /s/ FnDoomed
FnDoomed 777 Any Road New Ipswich NH 03071

Dated: September 7, 2012

CERTIFICATE OF SERVICE I certify that on this day September 7, 2012 I forwarded a copy of the foregoing PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF OPPOSITION TO DEFENDANTS’ MOTION


TO DISMISS to all parties in the case electronically using CM/ECF, including XXXXX, counsel for Defendants JP Morgan Chase and Federal Home Loan Mortgage Corporation. /s/ FnDoomed


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