EFILED Document

CO DATE FILED:
Saguache September
County 10, 2010
District Court 5:44
12th JDPM
DISTRICT COURT, SAGUACHE COUNTY, STATE OF Filing Date: Sep 10 2010 3:44PM MDT
COLORADO Filing ID: 33177720
Court address: Review Clerk: Bandy Albert
P.O. Box 197
501 4th Street
Saguache, CO 81149

Plaintiff: BRUCE C. McDONALD

v.
S COURT USE ONLY S
Defendants: ONE WEST BANK and FEDERAL HOME LOAN
MORTGAGE CORPORATION

Attorney for Plaintiff Case Number: 2010CV6

Name: LESTER, SIGMOND, ROONEY & SCHWIESOW

By: Erich Schwiesow
Address: 311 San Juan Avenue Division: Courtroom:
P.O. Box 1270
Alamosa, Colorado 81101

Phone Number: (719) 589-6626 E-Mail: attorneys@lsrslaw.com

FAX Number: (719) 589-5555 Atty. Reg.#: 23385

AMENDED COMPLAINT

COMES NOW Plaintiff, by and through his attorneys, the law firm of Lester, Sigmond,
Rooney & Schwiesow, and as his Complaint against the Defendants alleges that:

I. PARTIES

1. Plaintiff is a resident of Saguache County, Colorado.

2. Defendant One West Bank, FSB, (hereinafter ONEWEST) is a Delaware

corporation doing business in Colorado.

3. Defendant Federal Home Loan Mortgage Corporation (Freddie Mac) is a

federally chartered institution having and doing business in Colorado.

II. JURISDICTION AND VENUE

4. This Court has jurisdiction over the parties to and subject matter of this
Complaint.

5. Venue is proper in this Court pursuant to C.R.C.P. 98, as this matter concerns title
to real property located in Saguache County, Colorado.

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 III. GENERAL AVERMENTS

6. On August 11, 2009, Plaintiff Bruce McDonald (hereinafter MR.

McDONALD) received a combined notice of foreclosure and sale form the Saguache County
Public Trustee on behalf of ONEWEST, giving notice that a sale of MR. McDONALDs
property at 4434 Rarity Court, Crestone, Colorado, (hereinafter property or the property or
the subject property) was scheduled for December 3, 2009.

7. The property is and was subject to a deed of trust to the public trustee for the
benefit of IndyMac Bank, FSB, to secure a promissory note to IndyMac Bank, FSB, dated May
27, 2003, in the original principal amount of $198,000.

8. ONEWEST purported to be the successor in interest to IndyMac Bank, FSB.

9. The original promissory note has never been indorsed from the original payee to
ONEWEST.

10. ONEWEST was not the owner of the subject promissory note.

11. On September 11, 2009, ONEWEST filed a motion for Order Authorizing Sale
with Saguache County District Court, Case No. 09CV42.

12. On February 4, 2010, this Court issued an Order Authorizing Sale in Case No.
2009CV42.

13. Pursuant to the provisions of C.R.C.P. 120, the Order Authorizing Sale is without
prejudice to the rights of any party, and is not appealable.

14. A Public Trustees Sale for the subject property was held on March 4, 2010,
conducted pursuant to the Order Authorizing Sale entered in Case No. 2009CV42, at which the
property was acquired by OneWest Bank with a credit bid that left a deficiency.

15. Subsequently the Saguache County Public Trustee issued a Certificate of

Purchase for the property to ONEWEST.

16. ONEWEST assigned the Certificate of Purchase issued to it following the Public
Trustees sale on March 4, 2010 to FREDDIE MAC on April 13, 2010 for a consideration of
$10.

17. When FREDDIE MAC took title to the property, Freddie Mac had notice of
Plaintiffs remaining claims to the property and objections to the validity of the authorization of
the Public Trustees Sale because a Notice of Lis Pendens had been filed for this case 2010CV6
and recorded with the Saguache County Clerk and Recorder on March 3, 2010, at Reception

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 No. 366137.

18. FREDDIE MAC was also given notice on May 7, 2010 of an impending lawsuit
soon to be filed in United States District Court, Denver. The case was filed July 22, 2010, Case
No. 10-CV-01749-RPM-KLM.

19. ONEWEST acquired MR. McDONALDs property through an improper

foreclosure action and therefore the foreclosure, the Trustee Sale and the assignment of
Certificate of Purchase to FREDDIE MAC is void.

20. ONEWEST deliberately misled this Court in case 2009CV42 by fraudulently

asserting that they were the real party in interest, the sole owner and beneficiary of the loan
MR. McDONALD originally took out with IndyMac Bank, FSB on or about May 27, 2003.

21. Throughout the proceedings of 2009CV42 ONEWEST staunchly asserted that no

other party had any ownership interest in MR. McDONALDs property.

22. ONEWEST knew or should have known prior to filing their motion for an Order
Authorizing Sale in Case No. 2009CV42 that they were not a real party in interest because, as a
screen shot provided by the FDIC shows, their own database records disclosed this fact, (said
screen shot is attached hereto as Plaintiffs Exhibit A.)

23. ONEWEST did not meet the most basic requirements for standing necessary to
bring a foreclosure action against MR. McDONALD in this Court, that all actions must be
prosecuted in the name of the real party in interest.

24. MR. McDONALD properly raised the issue of whether ONEWEST was the real
party in interest at the beginning of proceedings in case No. 2009CV42.

25. Throughout case 2009CV42 ONEWEST insisted that they acquired MR.
McDONALDs loan from the assets of IndyMac Bank through a Purchase Agreement with the
FDIC who was acting as receiver for the bankruptcy of IndyMac Bank.

26. ONEWEST deliberately mislead this court stating that MR. McDONALDs loan
was one of those assets.

27. ONEWESTS own records, as shown in Exhibit A reveals that IndyMac Bank
sold MR. McDONALDs loan to FREDDIE MAC in September 2004 so it was not and could
not have been an asset of IndyMac Bank as ONEWEST claimed.

28. Additional confirmation that ONEWEST was only operating in the capacity of a
Servicing Agent with respect to McDONALDs loan is shown in a letter from the FDIC, (said
FDIC letter is attached hereto as Plaintiffs Exhibit B).

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 29. Confirmation that ONEWEST was operating in the capacity of a servicing agent
also appears in a letter from IndyMac Mortgage Services, a division of ONEWEST, that states
that FREDDIE MAC is the investor of the loan and ONEWEST is responsible for servicing,
(said IndyMac letter is attached hereto as Plaintiffs Exhibit C).

30. ONEWEST had no valid ownership interest in MR. McDONALDs property

therefore they could not have suffered any injury in fact. The party bringing the action must be
an actual aggrieved party entitled to pursue a remedy. As a result, this Court lacked
jurisdiction over the parties in case No. 2009CV42 because there was never any injured party, a
real party in interest before the Court.

31. At the time of the Motion for an Order Authorizing Sale in 2009CV42, MR.
McDONALD also had a second mortgage with IndyMac Bank. See Exhibit G, attached.

32. Upon information and belief an institution other then ONEWEST is purported to
own MR. McDONALDs second mortgage as well. ONEWEST failed to provide notice of the
motion for order authorizing sale as required by statute.

33. In addition, the evidence shows that the Certificate of Qualified Holder
ONEWEST filed with the Saguache County Public Trustee is fraudulent, (said Certificate is
attached hereto as Plaintiffs Exhibit D).

34. ONEWEST certified to the Saguache County Public Trustee that these two
statements were true and correct:

a. That they were the holder of the evidence of debt.

b. That they were the current beneficiary of the Deed of Trust.

Both of these statements are absolutely false.

35. ONEWEST was not a Qualified Holder by any definition found in Colorado
statutes, and was not the current beneficiary of the Deed of Trust.

36. The original Deed of Trust presented by ONEWEST showed IndyMac Bank,
F.S.B. as the beneficiary not ONEWEST. Exhibit A also shows that FREDDIE MAC was
the beneficiary as of 2004, not IndyMac Bank or ONEWEST.

37. The meaning of HOLDER can be found in C.R.S. 38-38-100.3:

The following persons are presumed to be the holder of an evidence of debt:

(a) The person who is the obligee of and who is in possession of an original
evidence of debt;
(b) The person in possession of an original evidence of debt together with the

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 proper indorsement or assignment thereof to such person in accordance
with section 38-38-101(6);
(c) The person in possession of a negotiable instrument evidencing a debt, which
has been duly negotiated to such person or to bearer or indorsed in blank, or
(d) The person in possession of an evidence of debt with authority, which may be
granted by the original evidence of debt or deed of trust, to enforce the
evidence of debt as agent, nominee, or trustee or in a similar capacity for the
obligee of the evidence of debt.

38. None of these definitions of a HOLDER applies to ONEWEST.

39. ONEWEST never represented themselves to be only functioning in the capacity

of a servicing agent that had been granted the authority to enforce the note on behalf of another.
They always insisted they were the only real party in interest.

40. In addition, the evidence shows that ONEWEST filed a fraudulent credit bid with
the Saguache Public Trustee in order to acquire Mr. McDONALDs property at the Trustee sale
that occurred on March 4. 2010. The bid fraudulently states that ONEWEST is the HOLDER,
(said credit bid is attached hereto as EXHIBIT E).

41. Only a HOLDER is permitted to submit a credit bid at a Trustee sale.

42. In addition, upon information and belief, FREDDIE MAC sold its interest in MR.
McDONALDs property quite some time ago.

43. In a letter from FREDDIE MAC to the Florida Supreme Court they disclose that
their mission is to buy mortgages and bundle them into mortgage related securities that are
then sold to investors, (said letter is attached hereto as Exhibit F).

44. The letter from FREDDIE MAC also discloses that FREDDIE MAC is not an
innocent party to any of what had transpired in Case 2009CV42, that FREDDIE MAC is fully
aware that the servicing agents that are foreclosing do not have any ownership interest in the
properties they are foreclosing upon.

45. To date its not clear who, if anybody, owns MCDONALDs Note or who holds
good title.

IV. CLAIM FOR RELIEF

46. Plaintiff hereby incorporates by reference paragraphs 1 through 45, above, as

though fully set forth herein.

47. Because ONEWEST was not the owner of the Note in question, they were not
entitled to payment of the Note and did not have standing to initiate a foreclosure action against

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 MR. McDONALD. Therefore the sale conducted pursuant to the Order Authorizing Sale
entered in Case No. 2009CV42 on March 4, 2010, is void, and ONEWEST cannot have
acquired good title to the subject property through said sale.

48. Because ONEWEST did not have good title to the subject property, ONEWEST
could not and did not convey good title to FREDDIE MAC.

49. FREDDIE MAC had notice, through the Notice of Lis Pendens filed on March 3,
2010, of Plaintiffs remaining claims to the subject property and the issues with ONEWESTs
title to the subject property prior to the assignment from ONEWEST.

50. Mr. McDONALD remains the owner of the property as the foreclosure sale that
purported to divest him of title is void.

WHEREFORE, Plaintiff prays for the following relief:

a. That this Court enter an order quieting title to the subject property in Plaintiff.

b. For costs, attorneys fees, and such other and further relief as the Court deems
appropriate.

Dated this 10th day of September 2010.

LESTER, SIGMOND, ROONEY & SCHWIESOW

By: /S/ Erich Schwiesow

Duly signed original at the law offices of Lester,
Sigmond, Rooney & Schwiesow

Plaintiffs Address:
P.O. Box 1086
Crestone, Colorado 81131