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IN THE UNITED STATES DISTRICT COURT
4 IN AND FOR THE DISTRICT OF ARIZONA
5 Your Name here , pro se and ) Case no: ???????????
Your Name here, pro se
Plaintiffs, )
6 Vs. )
7 BRIAN T. MOYNIHAN, and/or his )
successor, individually, and in his
official capacity as PRES/CEO OF )
8 COMPLAINT
BAC HOME LOANS SERVICNG, )
9 LP, )
JAMES F. TAYLOR and/or his )
10 successor, individually, and in his ) (Oral argument requested)
11 official capacity as PRES. OF FIN. & )
ADMIN. OF RECONTRUST
COMPANY, N.A., )
12 )
13 BRIAN T. MOYNIHAN, and/or his )
successor, individually, and in his
official capacity as PRES/CEO OF ) (Assigned to Hon. ??????????)
14 BANK OF AMERICA, )
15 )
ANGELO MOZILO, and/or his
successor, individually, and in his )
16 official capacity as former PRES/CEO )
17 OF COUNTRYWIDE HOME )
LOANS, INC.,
)
18 R.K. ARNOLD and/or his successor, )
19 individually, and in his official capacity )
as PRES/CEO OF MORTGAGE
ELECTRONIC REGISTRATION )
20 SYSTEMS, INC., )
21 MICHAEL R. ZARRO JR. and/or his )
successor, individually, and in his )
22 official capacity as PRES/CEO EMC )
23 MORTGAGE CORPORATION, )
MARY HAGGERTY and/or her )
24 successor, individually, and in her )
25 official capacity as PRES/CEO BEAR )
STERNS RESIDENTIAL
MORTGAGE CORPORATION, )
26
)
27 AND JOHN DOES (Investors) 1- )
10,000,
28 Et al, Defendant. )
1
Your Name here pro se, and Your Name here, pro se (“Plaintiff”), hereby
2
files their Complaint.
3
Plaintiff states on and for the record, and as an offer of proof, in
4
accordance with the testimony of a certified forensic examiner, Plaintiff
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believes that Defendants jointly and/or separately have violated: A.R.S. §§ 39-
6
161, 33-420, 13-2301 et seq, 33-801 et seq and/or other Arizona laws and if true;
7
Plaintiff believes Defendants have knowingly, intelligently and willfully with
8
full knowledge of the consequences thereof permanently forsaken the right
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and/or standing to foreclose on Plaintiff’s real property.
10
Pursuant to 18 U.S.C. § 4, Plaintiff hereby notifies this Court of
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numerous felonies Plaintiff believes the evidence proves Defendants have
12
committed, by and through their corporate entities.
13 See Branzburg v. Hayes, 408 U.S. 665, 696-97 (1972) (citation omitted):
14
“Such activity has been a federal crime since the First Congress, for “the
common law recognized a duty to raise the `hue and cry’ and report
15 felonies to the authorities. . . . It is apparent from this statute, as well as
16
from our history and that of England, that concealment of crime and
agreements to do so are not looked upon with favor. Such conduct
17 deserves no encomium.”
18
The Courts have concluded that ‘misprision of felony’ is a crime of:
19 “moral turpitude because it necessarily involves an affirmative act of
20 concealment or participation in a felony, behavior that runs contrary to
accepted societal duties and involves dishonest or fraudulent activity.”
21
The Supreme Court observed that:
22 “Concealment of crime has been condemned throughout our history…
23 Although the term “misprision of felony” now has an archaic ring, gross
indifference to the duty to report known criminal behavior remains a badge
24 of irresponsible citizenship.”
25 Plaintiff hereby alleges as follows:
26 PREFATORY STATEMENT
27 1. Upon information and belief, Plaintiff has discovered that
28
2
1
Bank of America is not the Real Party of Interest.
2
2. Plaintiff has discovered no valid assignment assigning any rights for
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their Deed of Trust to Bank of America has been recorded.
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3. Therefore, upon information and belief, there is a broken chain of
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title to which none of Defendants by and through their Corporations have any
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right and/or authority to hold the Trustee Sale currently scheduled for August 24,
7
2010.
8
4. At issue is the fact Defendants’ Corporations are attempting to act
9
as, either the Beneficiary or Trustee with the Power of Sale, when it appears that
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none of the Defendant’s Corporations possess any rights or authority to foreclose
11
on Plaintiff’s property.
12
5. Pursuant to, inter alia, U.C.C. and/or, inter alia, A.R.S. Title 47,
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Plaintiff hereby questions the authenticity and validity of the signatures of all
14
parties, therefore requiring any and all said parties to provide evidence of
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authenticity and validity for any and all signatures on any and all documents and/or
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pleadings.
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6. Pursuant to, inter alia, A.R.S. §§ 39-161, 13-2301et seq, 33-801 et seq,
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33-420 and others, Plaintiff questions the authenticity and validity of all recorded
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and/or notarized documents.
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JURISDICTION AND PARTIES
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7. Plaintiff is suing each of the Defendants and/or their successor,
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individually in their official capacity as President/ CEO, and/or President of Finance
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and Administration, and former President/CEO of their Corporations .
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8. Plaintiff is holding each of the Defendants and/or their successor
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accountable for what harm their Corporation has done to them.
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9. Each one of the Defendants and/or their successor, by and through
2
their Corporation (“Defendants”) has caused events to occur within the
3
jurisdiction of the Court from which Plaintiff’s complaint arises.
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10. At all relevant times, the Defendants committed the acts, caused or
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directed others to commit the acts, or permitted others to commit the acts alleged
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in this Complaint. Any allegations about the acts of the Corporations means that
7
those acts were committed through their officers, directors, employees, agents,
8
and/or representatives while those individuals were acting within the actual or
9
implied scope of their authority.
10
11. Plaintiff is a married couple and citizens and civilians of the State of
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Arizona.
12
12. At all times material hereto, Bear Stearns Residential Mortgage
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Corporation (“Bear Sterns”) is a corporation that may be authorized to do business
14
in Arizona.
15
13. The Defendant, Mary Haggerty and or her successor or predecessor,
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by and through her corporation , Bear Sterns caused events to occur within the
17
jurisdiction of the Court from which the Plaintiff’s complaint arises.
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14. At all times material hereto, EMC Mortgage Corporation (“EMC”) is
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a corporation that may be authorized to do business in Arizona.
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15. The Defendant, Michael R. Zarro Jr. and or his successor or
21
predecessor, by and through his corporation , EMC caused events to occur within
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the jurisdiction of the Court from which the Plaintiff’s complaint arises.
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16. At all times material hereto Mortgage Electronic Registration
24
Systems Inc. (“MERS”) which has been a Delaware corporation that is neither
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registered nor authorized to do business within the state of Arizona, as set forth in
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the records of the Arizona Secretary of State .
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17. The Defendant R.K. Arnold and or his successor or predecessor, by
2
and through his corporation, MERS has caused events to occur within the
3
jurisdiction of the Court from which the Plaintiff’s complaint arises.
4
18. At all times material hereto, Countrywide Home Loans, Inc.
5
(“Countrywide”) , a corporation that may be authorized to do business in Arizona .
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19. The Defendant Angelo Mozilo, and or his successor or predecessor,
7
by and through his corporation, Countrywide, caused events to occur within the
8
jurisdiction of the Court from which the Plaintiff’s complaint arises.
9
20. At all times material hereto Recontrust Company, N.A.
10
(“Recontrust”), a foreign corporation, neither registered nor authorized to do
11
business within the state of Arizona , as set forth in the records of the Arizona
12
Secretary of State.
13
21. The Defendant, James F. Taylor , by and through his corporation,
14
Recontrust , caused events to occur within the jurisdiction of the Court from
15
which the Plaintiff’s complaint arises.
16
22. At all times material hereto BAC Home Loans Servicing, LP
17
(“BAC”), has been a foreign corporation that may be authorized to do business in
18
this state.
19
23. The Defendant Brian T. Moynihan and or his successor or
20
predecessor, by and through his corporation , BAC has caused events to occur
21
within the jurisdiction of the Court from which the Plaintiff’s complaint arises.
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24. At all times material hereto Bank of America , has been a foreign
23
corporation, neither registered nor authorized to do business within the state of
24
Arizona, as set forth in the records of the Arizona Secretary of State.
25
25. The Defendant Brian T. Moynihan and or his successor or
26
predecessor, by and through his corporation Bank of America, has caused events
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to occur within the jurisdiction of the Court from which the Plaintiff’s complaint
2
arises.
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26. This Court has secondary jurisdiction over this action pursuant to 28
4
U.S.C. § 1331 and venue lies in the Court pursuant to 28 U.S.C. § 1331; as
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Arizona has primary jurisdiction pursuant to A.R.S. § 12-123, and venue lies in
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the Arizona Court pursuant to A.R.S. § 12-401.
7
CLAIM FOR DECLARATORY RELIEF
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27. Plaintiff reaffirms and realleges paragraphs 1 through 26 hereinabove
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as if set forth more fully hereinbelow.
10
28. On or about March 28, 1997, the Plaintiff purchased certain
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residential real property located within the jurisdiction of this Court, located at
12
Your address here (“property”).
13
29. Plaintiff purchased the property through the sale of Plaintiff’s
14
Promissory Note to Norwest Mortgage Inc.
15
30. Upon information and belief, the Promissory Note was not integral
16
to the Deed of Trust. Plaintiff recently learned that since a Deed of Trust must be
17
evidenced by a Promissory Note, it appears, a Deed of Trust not integral to a
18
Promissory Note may be unenforceable and invalid. (The term “dormant Deed of
19
Trust” will be referred to as the purported unenforceable and invalid Deed of
20
Trust).
21
31. The first dormant Deed of Trust was recorded on April 1, 1997 as
22
Maricopa County recorded document no. ????????? (A copy of the 1 st dormant
23
Deed of Trust is attached hereto as Exhibit 1).
24
32. On or about July14, 2005, Plaintiff refinanced the property through
25
the sale of the Promissory Note to Federal Savings Bank.
26
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33. The dormant Deed of Trust was recorded on July 20, 2005 as
2
Maricopa County recorded document no. ????????? (A copy of the dormant Deed
3
of Trust is attached hereto as Exhibit 2)
4
34. On or about December 1, 2006, Plaintiff refinanced the property
5
pursuant to the Promissory Note to Bear Sterns Residential Mortgage
6
Corporation, (“Bear Sterns”).
7
35. The dormant Deed of Trust was recorded on December 6, 2006 as
8
Maricopa County recorded document no. ??????????? (A copy of the dormant
9
Deed of Trust is attached hereto as Exhibit 3).
10
36. Pursuant to the terms of the dormant Deed of Trust, Bear Sterns
11
appointed MERS to act as the Nominee for the purported Lender and purported
12
Beneficiary of the dormant Deed of Trust. (See: Exhibit 3)
13
37. At some point of time, Plaintiff was notified that his Promissory Note
14
with Bear Sterns was transferred to EMC.
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38. At some point of time, Plaintiff was notified that Countrywide was the
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servicer of the Promissory Note.
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39. On or about July 2008, Bank of America acquired Countrywide via a
18
merger, and Plaintiff was informed that BAC was the servicer of the Promissory
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Note.
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40. On or about July 2009, Plaintiff inquired about modifying his current
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purported mortgage. Plaintiff was told by an agent of Bank of America that they
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were not eligible for a modification until they missed three monthly payments.
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41. Plaintiff was referred to Community Services of Arizona by a Bank of
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America agent for the Foreclosure Intervention Program. (See: Exhibit 4)
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42. On or about November 2009, Plaintiff was told by an agent from
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Community Services of Arizona they were denied a loan modification.
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43. On or about May 2010, Plaintiff was informed by a Bank of America
2
agent that his Promissory Note was not able to be modified due to the terms of the
3
purported mortgage pooling and servicing agreement.
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44. On or about June 2010, Plaintiff hired Charles J. Horner and Associates
5
(“Horner”) to conduct a Forensic Examination of documents from Bear Sterns and
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the current recorded foreclosure documents.
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45. On June 17, 2010 Plaintiff received the Forensic Examination from
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Horner. It indicated multiple counts of TILA; RESPA 3500.10; 12 C.F.R.;.; C.F.R.
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§ 226.17- § 226.23; 15 U.S.C.; 18 U.S.C.; F.T.C. § 5; and FCRA 15 U.S.C. 1681 §
10
212 subsection 609(g); violations against BEAR STEARNS (A copy of the
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Forensic Examination is attached hereto as Exhibit 5, see: pages 1-6).
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46. Upon information and belief, pursuant to Horner’s Examination, the
13
discovery of numerous violations, may cause the ORIGINAL contract/Deed of
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Trust/Promissory Note to be void in their entirety.
15
47. The Forensic Examination indicates the following violations were
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committed by Grand Canyon Title; RESPA 3500.10: (See: Exhibit 5pgs. 5-6)
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48. The Horner Forensic Examination indicated evidence of Presentment
18
of false instrument for filing, Mail Fraud and Swindles, and Deceptive Business
19
Acts resulting in violations of A.R.S. §§ 33-706; 39-161; 33-804;33-808; USC §
20
1341, regarding the foreclosure documents, may have been committed by
21
Recontrust. (See: Exhibit 5, pages 6-10).
22
49. Pursuant to Horner’s examination, there is a missing Assignment of
23
Deed of Trust assigning beneficial rights to Bank of America.
24
50. Pursuant to the document, MERS, as nominee for Bear Sterns signed
25
a Corporate Assignment of Deed of Trust dated January 21, 2010 assigning the
26
beneficial rights of the Deed of Trust to BAC. (A copy of the Corporate Assignment
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of Deed of Trust is attached hereto as Exhibit 6).
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51. Pursuant to Horner’s examination, JP Morgan Chase acquired Bear
2
Sterns in March 2008 and there is no assignment from JP Morgan Chase to Bank of
3
America. (See: Exhibit 5, page 6).
4
52. Upon information and belief, pursuant to A.R.S. 33-706, Bank of
5
America has no standing as beneficiary to commence a foreclosure.
6
53. Pursuant to the document, Notary, Name of notary personally
7
witnessed the signature of ???????? as Assistant Secretary of MERS and verified the
8
same with her Texas driver’s license. (See: Exhibit 6).
9
54. According to Horner’s Forensic Examination, the Assigner, MERS
10
does not have offices in Tarrant County, Texas, from which Name of Notary could
11
have signed the Corporate Assignment of Deed of Trust of behalf of MERS. (See:
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Exhibit 6 and See: Exhibit 5, page 7).
13
55. Furthermore, pursuant to Horner’s Examination, a back ground
14
investigation of ??????? indicated that she is actually an employee of Recontrust,
15
who is a wholly owned subsidiary of Bank of America, and not an employee of
16
MERS. (See: Exhibit 5, page 7).
17
56. Pursuant to Horner’s examination, “This is now a case whereby a bank
18
has bestowed upon itself the powers of a beneficiary without authority to do so and
19
has further substituted the Trustee with Recontrust Company who is also an entity
20
owned by Bank of America.” (See: Exhibit 5, page 7).
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57. Pursuant to the document, ??????????, Assistant Secretary of BAC
22
Home Loans Servicing, LP signed a Substitution of Trustee Arizona in Tarrant
23
County, Texas dated January 21, 2010. (A copy of the Substitution of Trustee
24
Arizona is attached hereto as: Exhibit 7).
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58. Pursuant to the document, Notary, Name of notary, personally
26
witnessed the signature of ??????? and verified the same with his Texas driver’s
27
license. (See: Exhibit 7)
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59. Pursuant to Horner’s examination, the date of execution and the date of
2
recording are the exactly the same as that of the Assignment of Deed of Trust. (See:
3
Exhibits 6 and 7)
4
60. Upon information and belief, Recontrust has appointed oneself as the
5
Trustee.
6
61. Furthermore, Horner states, “In one instance, they[Recontrust] are
7
Assistant Secretary for MERS [Exhibit 6] and in another instance; they are Assistant
8
Secretary for BAC Home Loan Servicing [Exhibit 7] and they in yet another
9
instance, they are themselves.” (A copy of the Notice of Trustee Sale Arizona is
10
attached hereto as Exhibit 8)
11
62. Horner states, “The mere fact that they used the exact same notary in
12
the exact same State in the exact same County where neither MERS nor BAC have
13
offices displays a blatant and careless disregard for Arizona statutes and judicial
14
system whereby they believe they can escape with such acts.” (See: Exhibit 5 page
15
7)
16
63. Horner states, “Furthermore, the use of the same notary on all these
17
documents suggests a notary preference that is willing to commit perjury in the
18
acknowledgement of those instruments.” “It is quite obvious that the signees of
19
these documents are not who they alleged to be.” (See: Exhibit 5 page 7)
20
64. According to Horner, Recontrust Company, N.A . does have offices in
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Tarrant County, Texas.
22
65. Upon information and belief, pursuant to Horner’s Forensic
23
Examination, employees of Recontrust Company, N.A. have composed the
24
Corporate Assignment of Deed of Trust and possibly forged the signature of
25
??????????, as Assistant Secretary of Mortgage Electronic Registration Systems,
26
Inc.
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66. Upon information and belief, pursuant to Horner’s Forensic
2
Examination, employees of Recontrust Company, N.A . have composed the
3
Substitution of Trustee Arizona and possibly forged the signature of ?????????,
4
Assistant Secretary of BAC Home Loans Servicing LP.
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67. Horner discovered evidence of possible fraud committed by Notary
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Name of Notary who notarized the Corporate Assignment of Deed of Trust,
7
Substitution of Trustee Arizona, and Notice of Trustee Sale Arizona, all dated
8
January 21, 2010 in Tarrant County, Texas. (See: Exhibit 5 pages 6- 8 and See also:
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Exhibits 6, 7 and 8).
10
68. Pursuant to Horner’s Forensic Examination, Name of Notary, who
11
notarized the foreclosure documents dated January 21, 2010, is employed by
12
Recontrust and as such, does not have an unbiased interest in the instruments she is
13
acknowledging. (See: Exhibit 5 page 8).
14
69. Upon information and belief, Notary Name of notary may have not
15
personally witnessed the signatures of ??????? or ????????? as she claimed with her
16
notarization.
17
70. Upon information and belief fraud may have occurred regarding the
18
notarizations on the foreclosure documents; Plaintiff filed a complaint against the
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Notary Name of notary with the Secretary of State of Texas on June 28, 2010. (A
20
copy of the Notary complaint is attached hereto as Exhibit 9).
21
71. Upon information and belief fraud may have occurred regarding the
22
notarizations on the foreclosure documents; Plaintiff filed criminal charges against
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Notary, Name of notary. (A copy of the Criminal Offense Investigation Referral
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dated August 2, 2010 is hereby attached as Exhibit 10).
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72. Upon information and belief fraud may have occurred regarding the
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recorded foreclosure documents, Plaintiff filed criminal charges against R.K.
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Arnold, James F. Taylor, and Brian T. Moynihan. (A copy of the Consumer
2
Complaint Form dated August 7, 2010 is hereby attached as Exhibit 11).
3
73. Upon information and belief, Plaintiff is concerned that pursuant to
4
Horner’s Forensic Examination, Defendant’s Corporations may have filed and/or
5
recorded numerous forged, fraudulent, and/or false documents into the Maricopa
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County Recorder’s Office to steal Plaintiff’s property. (See: Exhibits 5, 6, 7, and 8)
7
74. A Notice of Completion has been recorded at the Pinal County
8
Recorders office evidencing the findings of Charles J. Horner and Associates, of
9
Presentment of false instrument for filing, Mail Fraud and Swindles, and Deceptive
10
Business Acts regarding the foreclosure documents. (A copy of the Notice of
11
Completion attached hereto as Exhibit 12).
12
75. Horner, informed Plaintiff that MERS has stated that they are not, and
13
was not, the true beneficiary thereby nullifying the nomination to BAC Home
14
Loans Servicing LP . See: Excerpt from the Mortgage Electronic Registration
15
Systems, Inc. website:
16
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“Normally, where the name of the grantee under the Trustee’s Deed upon
Sale is different than the name of the foreclosing entity, the Trustee’s Deed
18 upon Sale states that the "Grantee was not the foreclosing beneficiary."
19
This designation triggers the imposition of transfer taxes on the sale. It is
important to note that in a MERS foreclosure sale, even where the property
20 reverts, the name of the grantee will be different than the name of the entity
21 foreclosing. Nonetheless, the Trustee’s Deed upon Sale should state that "The
Grantee was the foreclosing beneficiary." This is because MERS merely
22 holds title as nominee for the true beneficiary; it is the true beneficiary that
23 has actually foreclosed and acquired title”.
76. In addition, pursuant to the Deed of Trust dated December 1, 2006,
24
(See: Exhibit 3), MERS acted solely as nominee for Bear Sterns recorded document
25
no. ??????????????.
26
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77. In that capacity, according to Horner, MERS initiated the foreclosure
2
process by executing and recording certain instruments which sets in place the
3
entities that carry out the process of foreclosure.
4
78. According to Horner, there are many judicial opinions in several
5
different states that MERS does not have the capacity as only a nominee to execute
6
the process of foreclosure or to assign security instruments from one beneficiary to
7
the other.
8
79. In Luis E. Gallardo, 10-04710-MM7, vs Movant US Bancorp,
9
National Association, as Trustee for CSMC Mortgage-Backed Pass-Through
10
Certificates, Series 2006-7, a recent San Diego Bankruptcy decision handed down
11
by the Honorable Judge Margaret M. Mann, Judge Mann ruled:
12
“Movant has not supplied evidence that establishes that Movant has
13
standing to seek stay relief. Movant has attached an "Assignment of
14
Deed of Trust" from MERS to Movant, which assigns the trust deed
15
and the related note. But, there is no evidence that MERS ever
16
received an assignment of the note or had the ability to assign the note
17
to Movant. The note attached to the motion does not indicate that the
18
note has been endorsed to Movant or endorsed in blank such that it
19
became bearer paper. Without evidence either that MERS could
20
properly assign the note, or that the note was endorsed to Movant or
21
in blank, Movant has not established standing to seek stay relief.”
22
80. Also pursuant to Horner “There have been many court decisions
23
of late which have acknowledged that MERS is not the owner of the
24
underlying note. For example; The United States Bankruptcy Court for the
25
Eastern District of California has issued a ruling dated May 20, 2010 in the
26
matter of In Re: Walker, Case No. 10-21656-E-11 which found that MERS
27
could not, as a matter of law, have transferred the note to Citibank from the
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original lender, Bayrock Mortgage Corp. The Court’s opinion is headlined
2
stating that MERS and Citibank are not the real parties in interest. The court
3
found that MERS acted “only as a nominee” for Bayrock under the Deed of
4
Trust and there was no evidence that the note was transferred. The opinion
5
also provides that “several courts have acknowledged that MERS is not the
6
owner of the underlying note and therefore could not transfer the note, the
7
beneficial interest in the deed of trust, or foreclose on the property secured by
8
the deed”, citing the well-known cases of In Re Vargas (California
9
Bankruptcy Court), Landmark v. Kesler (Kansas decision as to lack of
10
authority of MERS), LaSalle Bank v. Lamy (New York), and In Re
11
Foreclosure Cases (the “Boyko” decision from Ohio Federal Court). In
12
another case, a recent San Diego Bankruptcy decision handed down by the
13
Honorable Judge Margaret M. Mann, Judge Mann ruled “Movant has not
14
supplied evidence that establishes that Movant has standing to seek stay
15
relief. Movant has attached an "Assignment of Deed of Trust" from MERS to
16
Movant, which assigns the trust deed and the related note. But, there is no
17
evidence that MERS ever received an assignment of the note or had the
18
ability to assign the note to Movant. The note attached to the motion does not
19
indicate that the note has been endorsed to Movant or endorsed in blank such
20
that it became bearer paper. Without evidence either that MERS could
21
properly assign the note, or that the note was endorsed to Movant or in blank,
22
Movant has not established standing to seek stay relief.”
23
81. Upon information and belief pursuant to inter alia, U.C.C. §3-302(d, e,
24
g) only a Holder in Due Course and not a Holder has the right to foreclose on
25
Plaintiff’s property. Therefore, since Plaintiff’s Promissory Note was transferred, it
26
appears to Plaintiff that no entity exsists today with the right to commence a non-
27
judicial foreclosure on Plaintiff’s property.
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82. Upon information and belief, Bank of America is not the true Holder in
2
Due Course or the real party in interest with standing to act as beneficiary of
3
Plaintiff’s Deed of Trust.
4
83. Upon information and belief, Bank of America has not put assets at
5
risk or provided consideration in this matter, and does not have standing as a real
6
party of interest.
7
84. Upon information and belief, BAC is not a true Holder in Due Course
8
or the real party in interest with standing to act as beneficiary of Plaintiff’s Deed of
9
Trust.
10
85. Upon information and belief, BAC has not put assets at risk or
11
provided consideration in this matter, and does not have standing as a real party of
12
interest.
13
86. Upon information and belief, BAC is not a valid nominee for the
14
current purported Beneficiary of Plaintiff’s dormant Deed of Trust as defined by
15
A.R.S. § 33-801. (See: Exhibit 5and 3)
16
87. Upon information and belief Recontrust does not have standing to act
17
as successor trustee with the power of sale.
18
88. Upon information and belief, Plaintiff contends they did a currency
19
exchange and not a Loan pursuant to Money Transmitter Law by selling the
20
Promissory Bear Sterns as described in the memorandum decision by U.S.D.C.,
21
District of Connecticut, District Judge MARK R. KRAVITZ:
22 See: RAYMOND WINTSON McLAUGHLIN and Shakir Ra-Ade Bey,
23
Plaintiffs, v. CITIMORTGAGE, INC., Defendant. No. 3:09CV1762 (MRK),
United States District Court, D. Connecticut. June 11, 2010.
24 “Private parties may enter into transactions to trade whatever they agree on
25
as having equal value; they are not limited to gold and silver coins. Here, the
Mortgage Company traded its check for [the] promise to pay on the
26 promissory note executed at the time of the mortgage's creation.
27 [Plaintiff] in turn traded the check for the house. Neither transaction
implicates or violates a constitutional restriction on the states.” (Emphasis
28 added).
15
1
89. Upon information and belief, Plaintiff contends, Judge Kravitz’s
2
statement: “promissory note executed at the time of the mortgage's creation” is the
3
court’s acknowledgement that the Promissory Note was not a part of the Deed of
4
Trust.
5
90. Upon information and belief, Plaintiff has not found any evidence that
6
they ever received a loan from Bear Sterns in which to be in default of.
7
91. Upon information and belief, the Deed of Trust and the Promissory
8
Note were not integral, therefore, the Deed of Trust may be unenforceable See:
9
Carpenter v Longan, 83 U.S. 16 Wall. 271 (1872).
10
92. Based upon the forgoing, a controversy exists as to whether or not any
11
of the Defendants are qualified or entitled to sell Plaintiff’s Property as permitted by
12
A.R.S. § 33-807.
13
93. Plaintiff contends, that there exists a broken chain of ownership and
14
that none of the Defendant’s Corporations have the right to act as the Trustee or
15
Beneficiary of the Plaintiff’s Deed of Trust pursuant to A.R.S. § 33-301et seq.
16
94. By reason of the foregoing a declaratory judgment is both necessary
17
and proper in order to set forth and determine the rights, obligations and liabilities
18
that exist among the parties to the Agreements.
19
95. The Plaintiff has incurred Court costs and fees in this matter.
20
96. Should Plaintiff prevail in this matter they are entitled to an award of
21
Court costs and fees pursuant to F.R.Civ.P.
22
97. Plaintiff has filed contemporaneously herewith a Motion for a
23
Temporary Restraining Order to enjoin the Defendants from conducting a Trustee’s
24
Sale unless and until such time that the Defendant’s can establish to this Court that
25
they are qualified to act and exercise the powers and remedies of the Trustee, and
26
Beneficiary pursuant to ARS §§ 33-801 et seq.
27
/
28
16
1
//
2
RELIEF REQUESTED
3
WHEREFORE, Plaintiff respectfully requests that this Court enter
4
judgment as follows:
5
A. Interpret the Plaintiff’s Deed of Trust;
6
B. Determine and declare if the Defendants do have the right pursuant
7
to ARS § 33-801 et seq. to act as the Trustee and Beneficiary of the
8
Plaintiff’s Deed of Trust and exercise any rights or obtain any remedies
9
thereto;
10
C. Enter a temporary restraining order enjoining the Defendants from
11
exercising the power of the Trustee and Beneficiary of the Plaintiff’s Deed
12
of Trust pursuant to ARS § 33-801 et seq., until such time that Defendants
13
can clearly establish by documentary evidence that they have the right to
14
do so;
15
D. Order that Defendants correct all filings with the Maricopa County
16
Recorder’s Office;
17
E. Award Plaintiff their court costs and fees incurred herein;
18
19
DATED: the 9th day of August, in the year of Our Lord, 2010

20
BY: ____________________________, agent
21 Your Name here, pro se
Signed reserving all my rights at UCC 1-308
22
23
BY: ____________________________, agent
24 Your Name here,, pro se
Signed reserving all my rights at UCC 1-308
25
26
VERIFIED STATEMENT
27
28
17
1
The undersigned Plaintiff, Your Name here,,, pro se, a man, and a civilian,
2
hereinafter “Plaintiff”, does solemnly declare and state as follows:
3
1. Plaintiff is competent to state the matters set forth herein.
4
2. Plaintiff has knowledge of the facts stated herein.
5
3. All the facts herein are true, correct and complete, not misleading, to
6
the best of Plaintiffs knowledge and belief, and admissible as evidence, and if called
7
upon as a witness, Plaintiff will testify to their veracity.
8
9 BY: ____________________________, agent
10
Your Name here,,, pro se
Signed reserving all my rights at UCC 1-308
11
12
VERIFIED STATEMENT
13
The undersigned Plaintiff, Your Name here,, pro se, a woman, and a civilian,
14
hereinafter “Plaintiff”, does solemnly declare and state as follows:
15
1. Plaintiff is competent to state the matters set forth herein.
16
2. Plaintiff has knowledge of the facts stated herein.
17
3. All the facts herein are true, correct and complete, not misleading, to
18
the best of Plaintiffs knowledge and belief, and admissible as evidence, and if called
19
upon as a witness, Plaintiff will testify to their veracity.
20
21
BY: ____________________________, agent
Your Name here,, pro se
22 Signed reserving all my rights at UCC 1-308
23
24
25
26 CERTIFICATE OF SERVICE

27 ORIGINAL and ONE COPY delivered to UNITED STATES DISTRICT


COURT, DISTRICT OF ARIZONA, this 9th day of August, 2010.
28
18
1
2
I HEREBY CERTIFY that a true and correct copy of the above SECOND
AMENDED COMPLAINT has been furnished by Certified U.S. Mail on this 9th
3 day of August, 2010 to:
4
Certified Mail Return Receipt # 0000 0000 0000 0000 0000
5 BRYAN CAVE LLP
6 Robert W. Shely
Gregory B. Iannelli
7 Two N. Central Avenue Suite 2200
8 Phoenix, AZ 85004-4406
Attorneys for Defendants:
9 Brian T. Moynihan,
10 James F. Taylor,
Angelo Mozilo,
11 R.K. Arnold
12
Certified Mail Return Receipt # 0000 0000 0000 0000 0000
13 MAYNARD CRONIN ERICKSON
CURRAN & SPARKS, P.L.C.
14 Douglas C. Erickson
Jennifer A. Sparks
15 3200 N. Central Avenue
Suite 1800
16 Phoenix, AZ 85012
Attorneys for Defendant:
17
18
SERVICE BY PROCESS SERVER TO:
19
Name of Defendant here
20 Address of Defendant here
Address of Defendant here
21
Name of Defendant here
22 Address of Defendant here
Address of Defendant here
23
24 Name of Defendant here
Address of Defendant here
25 Address of Defendant here
26
Name of Defendant here
27 Address of Defendant here
Address of Defendant here
28
19
1
Name of Defendant here
2 Address of Defendant here
Address of Defendant here
3
4
BY: ____________________________, agent
Your Name here,,, pro se
5 Signed reserving all my rights at UCC 1-308

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
CASES IN SUPPORT OF PLAINTIFF’S ALLEGATIONS
22
23
Carpenter v. Longan, 83 U.S. 16 Wall. 271

24 Wells Fargo, Litton Loan v. Farmer, 867 N.Y.S.2d

25 Wells Fargo v. Reyes, 867 N.Y.S.2d 21.

26 HSBC Bank v. Peabody, 866 N.Y.S.2d 91 EquiFirst

27 Indymac Bank v. Boyd, 880 N.Y.S.2d 224

28 Indymac Bank v. Bethley, 880 N.Y.S.2d 873


20
1 HSBC Bank National Trust Co v. Torres, NY Slip Op 51471U
2 Wells Fargo v. Reyes, 867 N.Y.S.2d 21
3 Wells Fargo, Litton Loan v. Farmer, 867 N.Y.S.2d 21
4 United States v. Kis, 658 F.2d, 526 (7th Cir.).
5 Indymac Bank v. Bethley, 880 N.Y.S.2d 873
6 Heintz v. Jenkins, 514 U.S. 291; 115 S. Ct. 1489, 131 L. Ed. 2d 395
7 Lebanon Correctional Institution v. Court of Common Pleas 35 Ohio St.2d
8 Wells Fargo Bank, v. Byrd, 178 Ohio App.3d 285,
9 Stachnik v. Winkel, 394 Mich. 375, 387; 230 N.W.2d 529, 534
10 United States v. Kis, 658 F.2d, 526 (7th Cir.).
11 U.S. v. Tweel, 550 F.2d 297 (1977).
12 Menominee River Co. v. Augustus Spies L & C Co., 147 Wis. 559 at p. 572; 132
13 NW
14 In re Hwang, 396 B.R. 757, 766-67 (Bankr. C.D. Cal.).
15 Mortgage Electronic Registration Systems, Inc. v. Chong, 824 N.Y.S.2d 764
16 Landmark National Bank v. Kesler, 289 Kan. 528, 216 P.3d 158 20.LaSalle Bank v.
17 Ahearn, 875 N.Y.S.2d 595
18 Novastar Mortgage, Inc v. Snyder 3:07CV480
19 DLJ Capital, Inc. v. PA.R.S.ons, CASE NO. 07-MA-17
20 Everhome Mortgage Company v. Rowland, No. 07AP-615
21 In Lambert v. Firstar Bank, 83 Ark. App. 259, 127 S.W. 3d 523
22 Anheuser-Busch Brewing Company v. Emma Mason, 44 Minn. 318, 46 N.W.
23 Howard & Foster Co. vs. Citizens National Bank, 133 S.C. 202, 130 S.E.
24 I Morse. Banks and Banking 5th Ed. Sec 65;
25 Magee, Banks and Banking, 3rd Ed. Sec 248."
26 American Express Co. v. Citizens State Bank, 181 Wis. 172, 194 NW 427
27 National Bank of Commerce v. Atkinson, 55 F. 465
28
21
1 National Bank of Commerce v. Atkinson, 8 Kan. App. 30, 54 P. 8
2 First Nat'l Bank of Tallapoosa v. Monroe, 135 Ga 614, 69 S.E. 1123
3 Whipp v. Iverson, 43 Wis. 2d 166, 168 N.W.2d 201
4 Bankers Trust v. Nagler, 23 A.D.2d 645, 257 N.Y.S.2d 298
5 Leonard v. Springer, 197 Ill 532. 64 NE 299
6 Menominee River Co. v. Augustus Spies L & C Co.,147 Wis. 559 at p. 572;
7 Guardian Agency v. Guardian Mut. Savings Bank, 227 Wis. 550, 279 NW 79
8 Whipp v. Iverson, 43 Wis.2d 166, 279 N.W. 79
9 Durante Bros. & Sons, Inc. v. Flushing Nat 'l Bank, 755 F.2d 239
10 Sedima, SPRL v. Imrex Co., 473 U.S. 479, 105 S. Ct. 3275, 87 L. Ed. 2d 346
11 Wright v. Mid-Penn Consumer Discount Co., 133 B.R. 704 (Pa.).
12 Moore v. Mid-Penn Consumer Discount Co., Civil Action No. 90-6452 U.S.
13 MA.R.S.hall v. Security State Bank of Hamilton, 121 B.R. 814
14 Steinbrechis v. Mid-Penn Consumer Discount Co., 110 B.R. 155
15 Gearing v. Check Brokerage Corp., 233 F.3d 469 (7th Cir.).
16 Todd v. Weltman, Weinberg & Reis Co., L.P.A., 434 F.3d 432 (6th Cir.)
17 Delawder v. Platinum Financial, 1:04-cv- 680, 2005 U.S. Dist.
18 Griffith v. Javitch, Block & Rathbone, LLP, 1:04cv238 (S.D.Ohio,); Hartman v.
19 Asset Acceptance Corp., No. 1:03-cv-113, 2004 U.S. Dist.
20 Gionis v. Javitch, Block & Rathbone, 405 F. Supp. 2d 856 (S.D.Ohio.); Blevins v.
21 Hudson & Keyse, Inc., 395 F. Supp. 2d 655 (S.D.Ohio),
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