NEW QUI ET TI TLE SUI T FI LED I N MARI COPA COUNTY, AZ ON THE HEELS OF A QUI ET TI TLE

ACTI ON THAT WAS REMANDED BACK TO SUPERI OR COURT I N PHOENI X
December 10t h, 2010
By Dave Krieger
The case is East on v. Bosco et al wit h a case number of CV2010-054748; filed four days aft er U.S. Dist rict
Court Judge Mark E. Aspey remanded a quiet t it le act ion back t o t he St at e Superior Court for Maricopa
Count y, previously removed by Defendant s First Horizon Home Loan Corporat ion and ot hers t o federal
court , which t he aut hor views as a t ypical move t o hide from st at e court discovery act ions. Read more…
The case is Forde v. First Horizon Home Loan Corporat ion et al, CV2010-01922, filed pro se August 3, 2010
by Barbara J. Forde. The aut hor feels t he significance of t his case smacks t o t he heart of j urisdict ional
issues as t o which court has t he right t o hear t he case based on what merit s. The Plaint iff in t his act ion
cit ed breach of cont ract based on negligence and fraud. The t rust ee, Qualit y Loan Service Corporat ion was
also named in t he suit . On Sept ember 22, 2010, t he Defendant s, who like in most inst ances assert ed
diversit y j urisdict ion and t he amount in cont roversy as t he sole basis for t heir removal t o federal court , filed
a mot ion t o st rike t he complaint under Rule 8(a)(2) and (d)(1) of t he Federal Rules of Civil Procedure.
The aut hor sees t his remand ruling as a plus for j udicial expediency in quiet t it le act ions t hroughout t he 9t h
Circuit . Judge Aspey even cit ed t hat t here were no federal quest ions up for decision which would confer
j urisdict ion t o t he U.S. Dist rict Court . On December 3, 2010, Judge Aspey issued t he remand order, t o
“ reduce lit igat ion cost s and eliminat e any need t o cert ify novel st at e-law issues t o t he Arizona Supreme
Court or speculat e how t he Arizona Supreme Court would rule on t hose issues.”
Aft er cit ing eight pages of case law and abst ent ions, t he court denied all of t he Defendant s’ pending
mot ions wit hout prej udice. The key significance here is why lenders as nat ional associat ions feel t he need t o
remove quiet t it le act ions t o federal court , when t he Plaint iff has list ed no federal quest ions which would
give a federal j udge cause t o keep t he case. One also has t o quest ion what aut horit y a federal j udge would
have t o quiet t it le on propert y sit uat ed in a count y t hat is not in a federal t errit ory. This j udge appears t o
underst and t he fundament als of a quiet t it le act ion very well.
There are also numerous st at e case laws t hat prot ect t he propert y owners from foreclosure in t he event a
quiet t it le act ion has been filed, abat ing ej ect ment if t here are t it le issues involved. This would furt her
st rengt hen t he aut hor’s cont ent ion t hat quiet t it le issues are going t o become commonplace very soon and
t hat t he st at e court s had bet t er t ake t hese filings seriously. I n t he East on case, t here appear t o be
conflict ing issues wit h assignment s amidst a pot ent ial wrongful foreclosure. A lis pendens has also been
filed in t he case by t he Plaint iff’s counsel, Scot t sdale at t orney, Bet h Findsen, of which t here are at least
eight key defendant s involved. The t rust ee in t hat case is also a defendant .
Ar i zona Judge Remands For ecl osur e Under
Abst ent i on Doct r i nes
Excellent news for Arizonans bat t ling foreclosure! We have cont inuously argued against removal based
solely on diversit y because t he st at e law issues in t hese foreclosure cases are predominant , and it is
import ant for t he st at e t o have a cohesive scheme regarding it s real propert y laws, and novel issues of
st at e law int erplay. And we’ve seen what kind of dist ast rous rulings ensue when our federal court s st art
making creat ive Erie est imat ions of how t he AZ St at e Supreme Court would rule on many crit ical issues of
st at e propert y law. Bad law makes an impact for years t o come. So of course t he banks love t o drag
homeowners int o federal court .
There have been ot her remands by federal court j udges, however, in t he case I ’m about t o discuss, Judge
Aspey act ually analyzed t he issue under several abst ent ion doct rines.
Magist rat e Judge Aspey issued a well reasoned remand order in favor of homeowner/ at t orney, Barbara
Forde. I n so doing, he reasoned t hat t he federal court should abst ain from hearing t he case under t he
Burford absent ion doct rine, Younger abst ent ion, and Rooker -Feldman. He also st at ed t hat t he issue could
be raised sua spont e. Full opinion here: Aspey AZ Order -t o-Remand-Case-t o-St at e-Court [ 1] The
at t orney’s comment s here.
Congrat ulat ions Barbara!
Here’s a passage from t he order:
The Court concludes judicial economy, fairness, comity,the existence of novel
issues under Arizona law, and thenecessity for the Court to interpret Arizona
state statutes weigh heavily in favor of the Court declining jurisdiction over
this matter. Remand at this time will reduce litigation costs and eliminate any
need to certify novel state-law issues to the Arizona Supreme Court or
speculate how the Arizona Supreme Court would rule on those issues.
Feder al Magi st r at e Remands For ecl osur e Sui t t o St at e Cour t i n
Ar i zona
08 Dec
Good news f or homeowner l i t i gant s i n f eder al cour t ! A Feder al Magi st r at e i n Ar i zona Di st r i ct
Cour t under st ands t hat t he st at e l aw i ssues i n f or ecl osur e act i ons must be deci ded by St at e
Cour t s. My lit igat ion against First Horizon, Met Life, Bank of New York Mellon, MERS, and Qualit y Loan
Service, has been remanded back t o t he st at e court .
Order to Remand Case to State Court
Remand is especially import ant in Arizona, where t here is no st at e court case law on t he subj ect . The
federal court s have had no choice but t o guess what t he st at e court would do, because t he lenders,
servicers and ot hers remove t he cases t o federal court as a mat t er of course.
I n my case, I argued principally t hat t he case should be remanded t o st at e court because foreclosures are
mat t ers of st at ewide concern, t hat t he issues are of subst ant ial public import ance which t ranscend my
part icular case, and t hat t he st at e court s have not decided t he issue. This is Burford abst ent ion. The
Magist rat e Judge underst ood t his, and ordered remand on t hat basis.
Magist rat e Judge Aspey did not st op t here, however. He st at ed t hat abst ent ion doct rine can be raised sua
spont e, meaning even if a part y doesn’t argue it , t he court can point it out . So he t hen analyzed and went
int o det ail on Younger abst ent ion, as well as Rooker -Feldman abst ent ion, and found t hat bot h t hese
abst ent ion doct rines applied t o my case, as well.
Also pending was a mot ion t o st rike my ent ire complaint , filed by t he lender/ servicer defendant s First
Horizon, Met Life, and Bank of New York as Trust ee, and MERS, because it is “ t oo long” , and a mot ion t o
dismiss from t he foreclosure mill t rust ee, QLS. Bot h mot ions were denied, wit hout prej udice.
The decision was very well writ t en and researched. I applaud Magist rat e Aspey for t aking t he t ime t o
analyze t he mat t er t horoughly and prepare a well t hought out decision. I t is definit ely t ime for our st at e
court s t o render decisions on t hese mat t ers. They’ve been unable t o, due t o t he campaign of t he banks,
servicers, and t rust ees, t o drag everyone int o federal court here in Arizona.
And because t his was federal court , and t hese abst ent ion doct rines were creat ed and/ or analyzed in Unit ed
St at es Supreme Court cases, t hese abst ent ion argument s and analysis can be used across t he Unit ed St at es
by borrowers who want t o st ay in st at e court . This decision is a keeper!
Now I can proceed t o discovery and resolut ion on t he merit s. Or perhaps, j ust perhaps, I can get t he ear of
t he Defendant s, and we can arrive at a resolut ion t hat in my opinion should have occurred in 2008.
More t o come!
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1
A motion (Doc. 12) to dismiss Quality Loan Service Corporation
as a party to this matter and Defendants’ motion to strike (Doc. 8)
are also pending.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
BARBARA J. FORDE, )
)
Plaintiff, ) CIV 10-01922 PHX MEA
)
v. ) ORDER
)
FIRST HORIZON HOME LOAN )
CORPORATION, METLIFE HOME )
LOANS, BANK OF NEW YORK )
MELLON, MORTGAGE ELECTRONIC )
REGISTRATION SYSTEMS, INC., )
QUALITY LOAN SERVICE )
CORPORATION, )
)
Defendants. )
_____________________________ )
All of the parties to this matter have agreed to
magistrate judge jurisdiction over the proceedings, including
the entry of final judgment. Before the Court is Plaintiff’s
motion (Doc. 10) to remand this matter to the state court.
1

On August 3, 2010, Plaintiff, proceeding pro se, filed
a complaint to quiet title to real property in the Maricopa
County Superior Court. Plaintiff also alleged Defendants were
liable to her for monetary damages based on Defendants’ breach
of contract. The complaint further asserted causes of action
Case 2:10-cv-01922-MEA Document 27 Filed 12/06/10 Page 1 of 11
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-2-
based on negligence and fraud. The claims derive from a
$650,000 residential home loan to Plaintiff from First Horizon
Home Loan Corporation. The complaint filed in state court also
sought injunctive relief, i.e., to vacate a substitution of
trustee and assignment of deed of trust and Notice of Trustee’s
Sale.
On September 20, 2010, Defendants Metlife Home Loans,
Bank of New York Mellon, First Horizon Home Loans, and Mortgage
Electronic Registration Systems Incorporated, filed a Notice of
Removal in this Court. Defendants assert complete diversity of
the parties and the amount in controversy as the sole basis for
the Court’s jurisdiction over the complaint filed by Plaintiff
in state Superior Court. On September 22, 1010, these
Defendants filed a motion to strike the complaint filed in the
state Superior Court, citing Rules 8(a)(2) and (d)(1) of the
Federal Rules of Civil Procedure.
Plaintiff filed a motion to remand her suit to the
state court on September 24, 2010, arguing that Defendants
failed to comply with the technical requirements for removal.
Defendants filed a response to the motion to remand (Doc. 13).
In her reply to the response to her motion to remand, Plaintiff
concedes that Defendants have met the technical requirements for
removal, but Plaintiff now contends that the case should be
remanded to the state court because of the nature of the causes
of action. See Doc. 22. The Court notes that no party to this
matter indicates there are or have been federal questions in
this matter which would confer jurisdiction on a basis other
Case 2:10-cv-01922-MEA Document 27 Filed 12/06/10 Page 2 of 11
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-3-
than diversity.
The Court concludes judicial economy, fairness, comity,
the existence of novel issues under Arizona law, and the
necessity for the Court to interpret Arizona state statutes
weigh heavily in favor of the Court declining jurisdiction over
this matter. Remand at this time will reduce litigation costs
and eliminate any need to certify novel state-law issues to the
Arizona Supreme Court or speculate how the Arizona Supreme Court
would rule on those issues.
The Court acknowledges that it has a “virtually
unflagging obligation” to exercise its jurisdiction. Colorado
River Water Conservation Dist. v. United States, 424 U.S. 800,
817-18, 96 S. Ct. 1236, 1246-47 (1976). The United States
District Courts have an obligation and a duty to decide cases
properly before them, and “[a]bstention from the exercise of
federal jurisdiction is the exception, not the rule.” Id., 424
U.S. at 813, 96 S. Ct. at 1244. However, in certain exceptional
circumstances, the Court can and should decline to exercise
jurisdiction. “Pragmatic considerations of judicial efficiency,
as well as reasons of comity between federal and state courts”,
have led the United States Supreme Court to construct several
abstention doctrines. Hanlin Grp., Inc. v. Power Auth. of the
State of New York, 703 F. Supp. 305, 307 (S.D.N.Y. 1989).
A District Court may abstain from consideration of the
merits of a diversity case because of unclear state law.
Railroad Comm’n of Texas v. Pullman Co., 312 U.S. 496, 499-500,
61 S. Ct. 643, 644-45 (1941); Louisiana Power & Light Co. v.
Case 2:10-cv-01922-MEA Document 27 Filed 12/06/10 Page 3 of 11
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-4-
City of Thibodaux, 360 U.S. 25, 28-29, 79 S. Ct. 1070, 1073-74
(1959). Abstention is also proper when necessary to avoid
needless conflict with state administrative procedures. See
Burford v. Sun Oil Co., 319 U.S. 315, 327, 63 S. Ct. 1098, 1104
(1943). The Court may properly abstain from exercising
diversity jurisdiction when a similar legal action is pending in
state court. See Colorado River Water Conservation Dist., 424
U.S. at 817-18, 96 S. Ct. at 1246-47. When the requirements for
abstention are present, the District Court’s decision to abstain
from exercising diversity jurisdiction is a matter within the
Court’s discretion. See Fireman’s Fund Ins. Co. v. Quackenbush,
87 F.3d 290, 294 (9th Cir. 1996).
Burford abstention
[T]he Supreme Court has stated that Burford
abstention is appropriate in two situations.
First, federal courts should abstain from
deciding difficult questions of state law
bearing on policy problems of substantial
public import whose importance transcends the
result in the case then at bar. We should
also abstain from the exercise of federal
review that would be disruptive of state
efforts to establish a coherent policy with
respect to a matter of substantial public
concern.
International Coll. of Surgeons v. City of Chicago, 153 F.3d
356, 362 (7th Cir. 1998) (internal citations and quotations
omitted).
The Supreme Court has characterized Burford abstention
as appropriate where the “exercise of federal review of the
question in a case and in similar cases would be disruptive of
state efforts to establish a coherent policy with respect to a
Case 2:10-cv-01922-MEA Document 27 Filed 12/06/10 Page 4 of 11
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-5-
matter of substantial public concern.” Colorado River, 424 U.S.
at 814, 96 S. Ct. at 1244. See also Allegheny County v. Frank
Mashuda Co., 360 U.S. 185, 189, 79 S. Ct. 1060, 1063 (1959).
The purpose of Burford abstention is to “avoid resolving
difficult state law issues involving important public policies
or avoid interfering with state efforts to maintain a coherent
policy in an area of comprehensive regulation or
administration.” American Disposal Serv., Inc. v. O’Brien, 839
F.2d 84, 87 (2d Cir. 1988). See also City of Tucson v. U.S.
West Commc’ns, Inc., 284 F.3d 1128, 1132 (9th Cir. 2002). The
propriety of Burford abstention may be raised sua sponte. See,
e.g., National Commc’n Sys., Inc. v. Michigan Pub. Serv. Comm’n,
789 F.2d 370, 372 (6th Cir. 1986); Chandler v. Omnicare/The HMO,
Inc., 756 F. Supp. 187, 189-90 (D.N.J. 1990).
While District Courts may abstain from hearing a matter
to avoid interfering with complex state administrative
processes, abstention is not required “whenever there exists
such a process, or even in all cases where there is a ‘potential
for conflict’ with state regulatory law or policy.” New Orleans
Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S.
350, 362, 109 S. Ct. 2506, 2515 (1989). Moreover, a District
Court should not abstain merely because there are complex and
difficult issues of state law involved in the controversy before
it. Meredith v. Winter Haven, 320 U.S. 228, 236, 64 S. Ct. 7,
12 (1943).
When deciding whether to invoke Burford abstention the
Court must consider the underlying rationale of administrative
Case 2:10-cv-01922-MEA Document 27 Filed 12/06/10 Page 5 of 11
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-6-
abstention. Federal courts evaluating the wisdom of abstaining
pursuant to Burford have considered whether the case before the
court is based on federal or state law; the degree of
specificity of the state regulatory scheme at issue; the
necessity of discretionary interpretation of state statutes to
resolve the matter; and whether the subject matter of the
litigation is traditionally one of state concern. See, e.g.,
Wilson v. Valley Elec. Membership Corp., 8 F.3d 311, 314 (5th
Cir. 1993); Bethphage Lutheran Serv., Inc. v. Weicker, 777 F.
Supp. 1093, 1098 (D. Conn. 1991). Abstention in a diversity
matter is warranted when the state has concentrated suits
involving the local issue in a particular court; the federal
issues are not easily separated from complicated state law
issues with which the state courts may have special competence;
and federal review might disrupt state efforts to establish a
coherent policy. Poulos v. Caesars World, Inc., 379 F.3d 654,
671 (9th Cir. 2004); City of Tucson, 284 F.3d at 1133; United
States v. Morros, 268 F.3d 695, 705 (9th Cir. 2001).
The issues involved in this suit, i.e., Defendants’
compliance with state law regarding real property mortgages and
foreclosure, are issues subject to specific Arizona statutory
and regulatory schemes and involving complex state
administrative processes. Because Burford abstention “is
concerned with protecting complex state administrative processes
from undue federal interference,” Tucker v. First Md. Sav. &
Loan, Inc., 942 F.2d 1401, 1404 (9th Cir. 1991) (internal
quotation marks omitted), the Court concludes it should abstain
Case 2:10-cv-01922-MEA Document 27 Filed 12/06/10 Page 6 of 11
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-7-
from exercising diversity jurisdiction over the complaint in
this matter.
Younger Abstention
The “Younger” doctrine of abstention, which provides
that federal courts are not to interfere with pending state
criminal proceedings, also applies to civil cases and state
administrative proceedings. See Middlesex County Ethics Comm.
v. Garden State Bar Ass’n, 457 U.S. 423, 432, 102 S. Ct. 2515,
2521 (1982); Huffman v. Pursue Ltd., 420 U.S. 592, 604-05, 95 S.
Ct. 1200, 1208 (1975); Younger v. Harris, 401 U.S. 37, 40-41, 91
S. Ct. 748-49 (1971). As with Burford abstention, the Court may
raise the issue of Younger abstention sua sponte. See O’Neill
v. Coughlan, 511 F.3d 638, 641-43 (6th Cir. 2008); Morrow v.
Winslow, 94 F.3d 1386, 1390-91 (10th Cir. 1996); O’Neill v. City
of Philadelphia, 32 F.3d 785, 786 n.1 (3d Cir. 1994).
Under the Younger doctrine, a federal District Court
must abstain from hearing a federal case when that case
interferes with state judicial proceedings. Additionally, the
District Courts are prevented from enjoining pending state
judicial proceedings, absent extraordinary circumstances. See
Middlesex County Ethics Comm., 457 U.S. at 437, 102 S. Ct. at
2524. Younger abstention is appropriate when: (1) there are
ongoing state proceedings that are judicial in nature; (2) the
state proceedings implicate important state interests; and (3)
the state proceedings provide an adequate opportunity to raise
any federal claims. See, e.g., Lazaridis v. Wehmer, 591 F.3d
666, 670 (3d Cir. 2010).
Case 2:10-cv-01922-MEA Document 27 Filed 12/06/10 Page 7 of 11
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-8-
It appears that there are on-going state proceedings
for the foreclosure of Plaintiff’s real property. Additionally,
Arizona has an important interest in resolving real property
issues. A ruling on the issues in Plaintiff’s complaint by the
Arizona courts implicates the important interest of preserving
the authority of the state’s judicial system free from
interference by the District Court. See, e.g., Prindable v.
Association of Apartment Owners of 2987 Kalakaua, 304 F. Supp.
2d 1245, 1262 (D. Haw. 2003) (finding foreclosure and ejectment
proceedings are important state interests under the Younger
doctrine).
Plaintiff’s complaint raises no potential federal
claims. Accordingly, pursuant to Younger and its progeny, the
Court should abstain from reaching the merits of this matter.
See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 15, 107 S. Ct.
1519, 1528 (1987).
Rooker-Feldman abstention
The fact that a foreclosure judgment has been entered
against Plaintiff by a state court is sufficient to invoke the
doctrine of “Rooker-Feldman” abstention. The District Court
should decline jurisdiction over any claims relying on
allegations of wrongful foreclosure.
The doctrine established by the Rooker and Feldman
cases essentially holds that the federal District Court does not
have subject matter jurisdiction over cases brought by
“state-court losers” complaining of injuries caused by state
court judgments, or over cases inviting the District Court to
Case 2:10-cv-01922-MEA Document 27 Filed 12/06/10 Page 8 of 11
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-9-
review and reject state court judgments. See Exxon Mobil Corp.
v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S. Ct. 1517,
1522 (2005). The doctrine is generally applied in cases wherein
the plaintiff files a suit in the federal court to vacate a
state court’s foreclosure.
The Rooker Feldman doctrine allows federal courts to
decline diversity jurisdiction when
(1) the party in federal court is the same as
the party in state court; (2) the prior state
court ruling was a final or conclusive
judgment on the merits; (3) the party seeking
relief in federal court had a reasonable
opportunity to raise its federal claims in
the state court proceeding; and (4) the issue
before the federal court was either
adjudicated by the state court or was
inextricably intertwined with the state
court’s judgment.
Storck v. City of Coral Springs, 354 F.3d 1307, 1310 n.1 (11th
Cir. 2003) (quotation marks and citation omitted). The Supreme
Court clarified the reach of the Rooker-Feldman doctrine in
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 125
S. Ct. 1517 (2005). The Supreme Court carefully prescribed the
circumstances in which the doctrine applies: (1) there was a
state court action; (2) one party lost; (3) judgment was entered
in the state court action against the losing party; (4) the
losing party commenced a new action complaining of injuries
caused by the state court judgment; and (5) the new action
invited the district court to review and reject the state court
judgment. Exxon Mobil Corp., 544 U.S. at 284, 125 S. Ct. at
1522.
Case 2:10-cv-01922-MEA Document 27 Filed 12/06/10 Page 9 of 11
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-10-
Citing the Rooker-Feldman doctrine, in a string of
recent unpublished decisions the federal courts have uniformly
determined that federal suits seeking the recision of a mortgage
loan contract, or alleging that a lender’s malfeasance resulted
in a foreclosure, belong in the state courts. The courts have
reached this conclusion even when the plaintiff originates the
suit in federal court and asserts a claim based on the federal
Truth in Lending Act (“TILA”). See, e.g., Parker v. Potter, 368
Fed. App. 945 (11th Cir. 2010); Dempsey v. JP Morgan Chase Bank,
N.A., 272 Fed. App. 499, 502 (7th Cir. 2008); Jacobowitz v. M
& T Mortg. Corp., 2010 WL 1063895, at *2 (3d Cir.). See also
Battah v. ResMAE Mortg. Corp., ___ F. Supp. 2d ___, 2010 WL
4260530, at *3 (E.D. Mich. 2010).
In the context of a state court foreclosure
proceeding, Rooker-Feldman prohibits claims
brought in federal court that may “succeed
only to the extent that the state court
wrongly decided the foreclosure action.”
Postma v. First Federal Sav. & Loan of Sioux
City, 74 F.3d 160, 162 (8th Cir. 1996).
District courts within the Fourth Circuit
have consistently reached the same
conclusion. See, e.g., Turner v. E. Savings
Bank, FSB, No. 09cv2637, 2010 WL 1409858, at
*3 (D. Md. Apr. 2, 2010); Brumby v. Deutsche
Bank Nat. Trust Co., No. 1:09cv144, 2010 WL
617368, at *3-4 (M.D.N.C. Feb. 17, 2010);
Lawson v. Allegacy Fed. Credit Union, No.
1:08cv832, 2009 WL 3381532, at *2 (M.D.N.C.
Oct. 16, 2009); Nott v. Bunson, No. 09cv2613,
2009 WL 3271285, at *2 (D. Md. Oct. 9, 2009).
Poindexter v. Wells Fargo Bank, N.A., 2010 WL 3023895, at *2
(W.D.N.C.).
Case 2:10-cv-01922-MEA Document 27 Filed 12/06/10 Page 10 of 11
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-11-
Conclusion
Given the nature of the Arizona foreclosure process, it
is difficult to determine when the rights of the parties
regarding the subject residential property are completely
determined. The Court is left with a single conclusion based
upon alternative doctrines. Because this matter involves
evolving issues of state administrative law, the notions of
comity and judicial economy implicate Burford abstention.
Pursuant to the Rooker-Feldman doctrine, the Court should
decline to conduct an appellate-like review over the order
authorizing the sale of the real property. Alternatively, if
there has been no final determination of the rights of the
parties because the foreclosure process has not been concluded,
then the Court should abstain under the Younger doctrine.
Accordingly,
IT IS ORDERED that Plaintiff’s motion (Doc. 10) to
remand this matter to state court is granted. The Clerk of the
Court shall engage in the process required for remand of this
matter to the state Superior Court from which it was removed.
IT IS FURTHER ORDERED that the pending motions at Doc.
8 and Doc. 12 are denied without prejudice.
DATED this 3
rd
day of December, 2010.
Case 2:10-cv-01922-MEA Document 27 Filed 12/06/10 Page 11 of 11


IN THE UNITED STATE DISTRICT COURT FOR THE
DISTRICT OF ARIZONA
Barbara J. Forde, a married woman dealing with her sole
and separate property, Plaintiff,
v.
First Horizon Home Loan Corporation et al ,
Defendants

NOTI CE OF REMOVAL

1335176.1 09/07/2010 1
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
GUST ROSENFELD P.L.C.
One East Washington Street, Suite 1600
Phoenix, AZ 85004-2553
Telephone No. 602-257-7496
Facsimile No. 602-254-4878
Richard A. Segal-000877
rasegal@gustlaw.com
Christopher M. McNichol - 011023
mcnichol@gustlaw.com

Attorneys for Attorneys for Defendants First Horizon Home Loans, a division of First Tennessee Bank
National Association; MetLife Home Loans, a division of MetLife Bank N.A.; The Bank of New
York Mellon f/k/a The Bank of New York, as Trustee for the Holders of the Certificates, First
Horizon Mortgage Pass-Through Certificates Series FH05-FA8; and Mortgage Electronic
Registration Systems, Inc.

IN THE UNITED STATE DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

Barbara J. Forde, a married woman dealing
with her sole and separate property,

Plaintiff,

v.

First Horizon Home Loan Corporation, a
Kansas Corporation; Metlife Home Loans,
a division of Metlife Bank, NA; The Bank
of New York Mellon f/k/a The Bank of
New York, as Trustee for the Holders of
the Certificates, First Horizon Mortgage
Pass-Through Certificates Series FH05-
FA8; First Horizon Home Loans, a
division of First Tennessee Bank National
Association; Mortgage Electronic
Registration Systems, Inc., a Delaware
Corporation; Quality Loan Service
Corporation, a California Corporation;
John and Jane Does 1-15, XYZ
Corporations 1-15; ABC Limited Liability
Companies 1-15; and 123 Banking
Associations 1-15,

Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)


No.

NOTICE OF REMOVAL





Case 2:10-cv-01922-MEA Document 1 Filed 09/07/10 Page 1 of 4

1335176.1 09/07/2010 2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Defendants First Horizon Home Loans, a division of First Tennessee
Bank National Association; MetLife Home Loans, a division of MetLife Bank N.A.;
The Bank of New York Mellon f/k/a The Bank of New York, as Trustee for the Holders
of the Certificates, First Horizon Mortgage Pass-Through Certificates Series FH05-FA8;
and Mortgage Electronic Registration Systems, Inc., by and through their undersigned
attorneys, and pursuant to 28 U.S.C. § 1446, removes this case from the Superior Court
of the State of Arizona, in and for the County of Maricopa (Maricopa Case No.
CV2010-053734), in which it is currently pending, to the United States District Court
for the District of Arizona.
1. This action is removable pursuant to 28 U.S.C. § 1332 and § 1441,
governing removal for diversity of citizenship-based cases. The plaintiff resides in
Arizona. None of the Defendants are incorporated in or have their principal place of
business in Arizona. Defendant First Horizon Home Loans is a division based in Texas
of First Tennessee Bank National Association whose principal place of business is
Tennessee; Defendant MetLife Home Loans is a division of MetLife Bank N.A. whose
principal place of business is in New Jersey; The Bank of New York Mellon f/k/a The
Bank of New York, as Trustee for the Holders of the Certificates, First Horizon
Mortgage Pass-Through Certificates Series FH05-FA8's principal place of business is in
New York; and Mortgage Electronic Registration Systems, Inc., is a Delaware legal
entity which has its principal place of business in Washington D.C. (collectively, the
“Defendants”).
2. Defendant Quality Loan Service Corporation is a California legal entity
which has its principal place of business in California. Defendant Quality Loan Service
Corporation is separately represented and has consented to this removal.

. . .
Case 2:10-cv-01922-MEA Document 1 Filed 09/07/10 Page 2 of 4

1335176.1 09/07/2010 3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
3. Diversity of citizenship is found pursuant to 28 U.S.C. § 1332(a)(1).
4. On or about August 3, 2010, plaintiff commenced this action in the
Superior Court of the State of Arizona in and for the County of Maricopa, case number
CV2010-053734.
5. Some of the Defendants received a copy of the complaint as early as
August 6, 2010, by purported service.
6. This Notice of Removal is being filed within thirty (30) days (absent final
weekend and holiday) of the first purported service of the complaint, and is, therefore,
timely and proper pursuant to the provisions of 28 U.S.C. § 1446(b).
7. Attached are copies of all process and pleadings related to this action that
have been received by the Defendants.
8. The plaintiff alleges in the complaint that she is entitled to unspecified
damages, but seeks relief as to a $650,000 loan secured by real property, which relief
thus may exceed $75,000.
9. Written notification of the filing of this notice of removal, together with a
copy of this Notice of Removal, will be provided to the plaintiff and the other
Defendant and will be filed with the Superior Court of the State of Arizona in and for
the County of Maricopa, pursuant to 28 U.S.C. § 1446(d).
10. No prohibition exists that would prevent removal of this action.






. . .
Case 2:10-cv-01922-MEA Document 1 Filed 09/07/10 Page 3 of 4

1335176.1 09/07/2010 4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
WHEREFORE, Defendants request that this action proceed in this court
as an action properly removed to it.
Dated: September 7, 2010.
GUST ROSENFELD P.L.C.


By s/Christopher M. McNichol 011023
Richard A. Segal
Christopher M. McNichol
Attorneys for Defendants First Horizon
Home Loans, a division of First
Tennessee Bank National Association;
MetLife Home Loans, a division of
MetLife Bank N.A.; The Bank of New
York Mellon f/k/a The Bank of New
York, as Trustee for the Holders of the
Certificates, First Horizon Mortgage
Pass-Through Certificates Series FH05-
FA8; and Mortgage Electronic
Registration Systems, Inc.

Original efiled and copy
provided on September 7, 2010, to:

Barbara J. Forde
20247 N. 86
th
Street
Scottsdale, AZ 85255
Plaintiff

Paul M. Levine, Esq.
McCarthy, Holthus & Levine
8502 E. Via de Ventura, Suite 200
Scottsdale, Arizona 85258
Defendant Quality Loan Service Corporation

s/ C.L. Scherff
Case 2:10-cv-01922-MEA Document 1 Filed 09/07/10 Page 4 of 4
44 (Rev. 12/07)
CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the fil ing and service of pleadings or other papers as required by law, except as provided
by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of mitiating
the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)
I. (a) PLAINTIFFS
Barbara J. Forde
DEFENDANTS
First Horizon Home Loan Corporation, et al.
(b) County of Residence of First Listed Plaintiff _M ___ _____ _ County of Residence of First Listed Defendant
(EXCEPT IN U.S. PLAINTIFF CASES)
(c) Attorney's (Finn Name, Address, and Telephone Number)
Barbara J. Forde, 20247 N. 86th Street, Scottsdale, AZ 85255
602-721-3177
(IN U.S. PLAINTIFF CASES ONLy)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCA TION OF THE
LAND INVOLVED.
Attorneys (lfKnown)
Richard A. Segal and Christopher M. McNichol, Gust
Rosenfeld. One East Washin ton Ste 1600 Phoenix, AZ
II. BASIS OF JURISDICTION (Place an "X" in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an "X" in One Box for Plaintiff
o I u.s. Government
Plaintiff
o 2 U.S. Government
Defendant
o 110 Insurance
o 120 Marine
o 130 Miller Act
o 140 Negotiable Instrument
o 150 Recovery of Overpayment
& Enforcement of Judgment
o 151 Medicare Act
o 152 Recovery of Defaulted
Student Loans
(Excl. Veterans)
o 153 Recovery of Overpayment
of Veteran' s Benefits
o 160 Stockholders' Suits
190 Other Contract
o 195 Contract Product Liability
o 196 Franchise
o 220 Foreclosure
o 230 Rent Lease & Ejectment
o 240 Torts to Land
o 245 Tort Product Liability
o 290 AlI Other Real Property
o 3 Federal Question
(U.S. Govenunent Not a Party)
a 4 Diversity
(Indicate Citizenship of Parties in Item 1II)
(For Diversity Cases Only)
PTF
Citizen of This State I
and One Box for Defendant)
DEF PTF DEF
o 1 Incorporated or Principal Place 0 4 0 4
of Business In This State
Citizen of Another State o 2 0 2 Incorporated and Principal Place
of Business In Another State
o 5 i'!II 5
o o 3 Foreign Nation o 6 0 6
400 State Reapportionment
410 Antitrust
430 Banks and Banking
450 Commerce
460 Deportation
470 Racketeer Influenced and
Corrupt Organizations
o 480 Consumer Credit
o 490 Cable/Sat TV
o 810 Selective Service
850 SecuritieslCommoditiesl
ther Immillllltion
elias
Exchange
o 875 Customer Challenge
12 USC 3410
o 890 Other Statutory Actions
o 891 Agricultural Acts
892 Economic Stabilization Act
o 893 Environmental Matters
o 894 Energy Allocation Act
o 895 Freedom oflnfonnation
Act
o 900Appeal of Fee Detennination
Under Equal Access
to Justice
o 950 Constitutionality of
State Statutes
V. ORIGIN
01 Original
Proceeding
(Place an "X" in One Box Only)
2 Removed from 0 3 Remanded from 0 4 Reinstated or 0 5 Transferred from 0 6 Multidistrict
State Court Appellate Court Reopened another dlstnct Litigation
o 7
Appeal to District
Judge from
Magistrate
s eel Jud ment
cite jurisdictional statutes unless diversity):
VI. CAUSE OF ACTION I-B-r-ie-f-de-s-cr-ip-ti-o-n-of-c-a-us-e-: -----------------------------------
breach ot contract, quiet title, negligence, traud
VII. REQU ESTED IN
COMPLAINT:
VIII. RELATED CASE(S)
IF ANY
DATE
09/07/2010
FOR OFFICE USE ONLY
o CHECK IF THIS IS A CLASS ACTION DEMAND S
UNDER F.R.CP. 23 650,000.00
(See instructions) :
RECEIPT # AMOUNT APPL YING IFP
CHECK YES onl y if demanded in complaint:
JURY DEMAND: Yes 0 No
DOCKET NUMBER
JUDGE MAG. JUDGE
---------------
Case 2:10-cv-01922-MEA Document 1-1 Filed 09/07/10 Page 1 of 1
CMM:cls 1335420 9/7/2010
Page 1 of 2
SUPPLEMENTAL CIVIL COVER SHEET
FOR CASES REMOVED FROM ANOTHER JURISDICTION

This form must be attached to the Civil Cover Sheet at the time the case is filed in the
United States District Clerk's Office.

Additional sheets may be used as necessary.

1. Style of the Case:

Please include all Plaintiff(s), Defendant(s), Intervenor(s),
Counterclaimant(s), Crossclaimant(s) and Third Party Claimant(s) still
remaining in the case and indicate their party type. Also, please list the
attorney(s) of record for each party named and include their bar number,
firm name, correct mailing address, and phone number (including area
code).

Party Party Type Attorney(s)
Barbara J. Forde

Plaintiff Pro Per
20247 N. 86
th
Street
Scottsdale, AZ 85255
Tel: (602) 721-3177
bforde@cox.net

Attorneys for Defendants
First Horizon Home Loans, a
division of First Tennessee
Bank National Association;
MetLife Home Loans, a
division of MetLife Bank
N.A.; The Bank of New York
Mellon f/k/a The Bank of
New York, as Trustee for the
Holders of the Certificates,
First Horizon Mortgage Pass-
Through Certificates Series
FH05-FA8; and Mortgage
Electronic Registration
Systems, Inc.

Defendants Richard A. Segal - 000877
Christopher M. McNichol – 011023
Gust Rosenfeld, PLC
One East Washington, Suite 1600
Phoenix, AZ 85004-2553
Tel: (602) 257-7422
rasegal@gustlaw.com
mcnichol@gustlaw.com


Quality Loan Service
Corporation
Defendant Paul M. Levine, Esq.
McCarthy, Holthus & Levine
8502 E Via de Ventura, Suite 200
Scottsdale, Arizona 85258
Tel: (602) 230-8726
PLevine@mhlevine.com



Case 2:10-cv-01922-MEA Document 1-2 Filed 09/07/10 Page 1 of 2
CMM:cls 1335420 9/7/2010
Page 2 of 2
2. Jury Demand:

Was a Jury Demand made in another jurisdiction? X Yes

3. Answer:

Was an Answer made in another jurisdiction? X No

4. Served Parties:

The following parties have been served at the time this case was removed:

Party Date Served Method of Service

MetLife Home Loans, a
division of MetLife Bank, NA
08/06/10 Personal in Texas
First Horizon Home Loans, a
division of First Tennessee
Bank National Association
08/06/10 Personal in Texas
Quality Loan Service
Corporation
Unknown Unknown

5. Unserved Parties:

The following parties have not been served at the time this case was removed:

The Bank of New York Mellon f/k/a The Bank of New York, as Trustee for the
Holders of the Certificates; and Mortgage Electronic Registration Systems, Inc.

6. Nonsuited, Dismissed or Terminated parties:

Please indicate changes from the style of the papers from another jurisdiction and
the reason for the change: N/A.

7. Claims of the Parties:

The filing party submits the following summary of the remaining claims of each
party in this litigation:

Party Claim(s)

Plaintiff Breach of Contract; Quiet Title, Negligence and
Fraud

Pursuant to 28 U.S.C. § 1446(a) a copy of all process, pleadings and orders served in
another jurisdiction (State Court) shall be filed with this removal.

Case 2:10-cv-01922-MEA Document 1-2 Filed 09/07/10 Page 2 of 2
1 Barbara J. FWde, #013220
20247 N. 86 Street
2 Scottsdale, AZ 85255
(602) 721-3177
3 Pro Se Plaintiff
COpy
AUG 0 3 2010
4
5
6
7
8
9
SUPERIOR COURT OF ARIZONA
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
MARICOPA COUNTY
BARBARA J. FORDE, a married woman CV '2 DID - Q 5 313 ,4
dealing with her sole and separate No.
property,
Plaintiff,
v.
FIRST HORIZON HOME LOAN
CORPORATION, a Kansas Corporation;
METLIFE HOME LOANS, a division of
METLIFE BANK, NA; THE BANK OF
NEW YORK MELLON fIkIa THE
BANK OF NEW YORK, as Trustee for
the HOLDERS OF THE
CERTIFICATES, FIRST HORIZON
MORTGAGE PASS-THROUGH
CERTIFICATES SERIES FH05-FA8;
FIRST HORIZON HOME LOANS, a
division of FIRST TENNESSEE BANK
NATIONAL ASSOCIATION;
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC., a
Delaware Corporation; QUALITY LOAN
SERVICE, CORPORATION, a California
Corporation; JOHN AND JANE DOES l-
IS, XYZ CORPORATIONS 1-15; ABC
LIMITED LIABILITY COMPANIES l-
IS; and 123 BANKING ASSOCIATIONS
1-15,
Defendants.
COMPLAINT FOR INJUNCTIVE
RELIEF AGAINST ALL
DEFENDANTS; VACATE
SUBSTITUTION OF TRUSTEE,
ASSIGNMENT OF DEED OF TRUST,
and NOTICE OF TRUSTEE'S SALE;
QUIET TITLE TO PLAINTIFF;
BREACH OF DUTY OF GOOD
FAITH AND FAIR DEALING;
NEGLIGENT PERFORMANCE OF
UNDERTAKlNG;FRAUDULENT
MISREPRESENTATION/
FRAUDULENT CONCEALMENT;
FRAUD; CONSUMER FRAUD
JURY TRIAL DEMANDED
COMES NOW Plaintiff Barbara J. Forde, and for her cause of action against Defendants,
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 1 of 48
• 1
1 and alleges as follows:
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
1.
At all times mentioned herein, Plaintiff has been in possession of her property at
20247 North 86
th
Street, Scottsdale, Arizona, 85255 (the "Property"). She is a resident of
Maricopa County, Arizona and has held title to the Property since March of 2002.
2.
Venue is proper in this Court, as the Property is located within its jurisdiction in
Maricopa County, Arizona, and because Plaintiffs are still in possession of said Property, more
fully described as:
LOT 21, OF GRAYHAWK PARCEL 3j, ACCORDING TO THE PLAT OF
RECORD IN THE OFFICE OF THE COUNTY RECORDER OF MARICOPA
COUNTY, ARIZONA, RECORDED IN BOOK 536 OF MAPS, PAGE 15
[exception deleted].
PARTIES
3.
At all relevant times, Defendant First Horizon Home Loans Corporation ("First
Horizon") is a Corporation formed under the laws of the state of Kansas, having an address of
4000 Horizon Way, Irving, Texas 75063. First Horizon is listed as the Lender in the original
InterestFirst Note ("Note") dated August 1, 2005, and on the Deed of Trust ("DOT") dated
August 1, 2005, recorded in the Maricopa County Recorder's Office at Document No. 2005-
1125547 on August 8, 2005, allegedly securing the original principal amount of $650,000.00.
First Horizon's authority to conduct business in Arizona was revoked on April 25, 2008.
4.
On information and belief, MetLife Home Loans, a division of MetLife Bank,
N.A. ("MetLife"), has been the servicer of the Note, or the lender. MetLife's principal place of
business is 4000 Horizon Way, Irving, Texas, 75063. MetLife Bank is a national banking
association regulated by the Office of the Comptroller of the Currency ("OCC").
IIII
-2-
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 2 of 48
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
'I
5. At all relevant times, Defendant Mortgage Electronic Registration Systems, Inc.,
("MERS") is a Corporation formed under the laws of the state of Delaware. MERS is listed as
the Beneficiary in the DOT, and "is a separate corporation that is acting solely as a nominee for
Lender and Lender's successors and assigns." On information and belief, MERS has no authority
to conduct business of any kind in Arizona.
6. On April 14, 2010, MERS assigned the DOT to The Bank of New York Mellon
f/k/a The Bank of New York ("BNY Mellon"), as Trustee for the holders of the Certificates, First
Horizon Mortgage Pass-Through Certificates Series FH05-F A8, by First Horizon Home Loans, a
division of First Tennessee Bank National Association, Master Servicer, in its capacity as agent
for the Trustee under the Pooling and Servicing Agreement. The Assignment was recorded on
April 15, 2010.
7. On information and belief, the First Horizon Mortgage Pass-Through Certificate
Series FH05-F A8 is governed by the First Horizon Alternative Mortgage Securities Trust 2005-
FA8 (the "Trust"). This Trust contains assets of approximately $537,837,255, which may include
the Note. The trustee of the Trust is BNY Mellon. On information and belief, BNY Mellon is
regulated by the OCC.
8. Plaintiff is unaware of the identity of the Certificate Holders for whom BNY
Mellon is Trustee, at present. If the Certificate Holders are indispensable parties, BNY Mellon
must reveal their identities and Plaintiff will amend the Complaint to add them as defendants.
9. First Horizon Home Loans ("FHHL") is a trade name registered at the Arizona
Corporation Commission on July 26, 2007, and is owned by First Tennessee Bank National
Association (First Tennessee"), domiciled in Tennessee. On information and belief, FHHL is a
- 3 -
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 3 of 48
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
t
division of First Tennessee and is the Master Servicer/agent for Trustee BNY Mellon under a
Pooling and Servicing Agreement which may pertain to this loan. First Tennessee is regulated by
the OCC. FHHL is not registered as a subsidiary of First Tennessee, with the OCC.
10. At all relevant times, Defendant Quality Loan Service, Corporation ("QLS") is a
Corporation formed under the laws of the state of California, having a principal address of 2141
5
th
Avenue, San Diego, California 92101. QLS is conducting business in Arizona as a foreclosure
mill on behalf of First Horizon and, on information and belief, many other lenders.
11. Plaintiff is currently unaware of the identity and capacity of JOHN AND JANE
DOES 1 through 15, XYZ CORPORATIONS 1 through 15, XYZ LIMITED LIABILITY
COMPANIES 1 through 15, and 123 BANKING ASSOCIATIONS 1-15, but will amend the
Complaint when their identities have been ascertained. Plaintiff alleges upon information and
belief, however, that each and every presently unknown Defendant is in some manner responsible
for the acts or conduct of other Defendants, or were andlor are responsible for the injuries,
damages, and harm incurred by Plaintiff.
FACTS
12. On August 1, 2005, Plaintiff refmanced her home loan and entered into the Note
and DOT with First Horizon in the amount of $650,000.00. The Note is an interest-only Note
accruing interest at the rate of 6.625% for the fITst 10 years. First Horizon is the lender on the
Note. An unauthenticated copy of the Note is attached hereto as Exhibit "A."l First Horizon is
also listed as the lender on the Deed of Trust, but MERS is listed as nominee for Lender, and
MERS is the only beneficiary under the Deed of Trust. See Deed of Trust, attached hereto as
1
In response to Plaintiff's dispute of a Debt Validation Notice, QLS sent Plaintiff this unauthenticated copy of the Note.
Plaintiff is unaware if this is an actual copy of the original Note she signed; it certainly does not include copies of allonges or
endorsements, and therefore is an incomplete copy.
-4-
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 4 of 48
1
2
3
4
5
6
7
8
9
10
11
12
13
14
Exhibit "B," showing First Horizon as the Lender, North American Title as the Trustee, and
MERS as the sole Beneficiary.
13.
MERS was created by a group of lenders who selVtrade promissory notes secured
by deeds of trust/mortgages. The purpose for MERS is to save lenders, investors and others who
buy and/or sell mortgage loans, the effort and expense of recording an assignment of the deed of
trust or mortgage each time the note associated with that deed of trust or mortgage is sold.
14. Lenders capitalizing on the pooling of mortgages and packaging them for sale,
would name MERS as nominee on the deed of trust or mortgage, with MERS as sole beneficiary.
After that, regardless of how many times a note was sold or transferred, the deed of
trust/mortgage was not transferred with it. The deed of trust/mortgage remained in the name of
MERS.
15.
Home loans which are set up with the deed of trust/mortgage going straight to
15 MERS as sole beneficiary, separate the note and the deed of trust/mortgage, from the closing date
16 forward.
17
18
19
20
21
22
23
24
25
26
16.
17.
MERS rarely, if ever, takes possession of promissory notes.
MERS has no financial interest in any promissory note, or deed of trust/mortgage
assigned to it. Its only function is to keep the security in its name to save those benefitting from
the buying and selling of mortgage-backed securities, any recording fees.
18.
MERS has saved lenders and others using its services over two billion dollars
($2,000,000,000) since its inception in 1999.
19. MERS requires those which use MERS' services to be members ofMERS.
20. Members of the public, whose deed of trust/mortgage are in MERS' name, are
- 5 -
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 5 of 48
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
blocked from access to the database which allegedly contains information about who owns the
promissory note related to the deed of trust/mortgage signed by the borrower, or any other
information about a particular note and deed of trust, other than the name of the loan servicer.
21. As the economy took a turn for the worse in 2008, Plaintiff began to have
difficulty making her mortgage payments and meeting other creditor obligations as they became
due. She contacted First Horizon for assistance. First Horizon told Plaintiff that loan
modification programs were available for her, and mailed Plaintiff a loan modification package
with a cover letter, dated December 4, 2008. The letter began, "We listen. We understand. We
care. Most importantly, we want to help you." The letter continued, "[w]e hope you feel as
strongly about protecting your home as we do about trying to help you." As a result, First
Horizon lead Plaintiff to believe that First Horizon was on her side, and had as much motivation
to assist her in keeping her home as she did. A copy of this December 4, 2008, letter is attached
hereto as Exhibit "C."
22.
Plaintiff submitted her loan modification package (the "First Package") to the First
Horizon Loss Mitigation Department on December 5, 2008, which according to First Horizon,
required only a copy of the last two months' pay stubs and a hardship letter explaining the reason
for the delinquency. Plaintiff was promised that she would receive a response from First Horizon
within fifteen (15) days.
23. Plaintiff then received a notice from FHHL, dated December 9, 2008, that her
mortgage was two months in arrears. The notice invited Plaintiff to call First Horizon "to discuss
alternatives to foreclosure." The letter listed 4 different possibilities of ways in which Plaintiff
would be allowed to modify her loan and keep. her home. Because Plaintiff has just submitted her
- 6-
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 6 of 48
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
First Package, she took no action in response to this letter.
24. Plaintiff then received a letter from FHHL dated December 31, 2008, indicating
that if she did not bring the loan current within 30 days, by January 30, 2009, her home would be
put into foreclosure.
25. On January 8, 2009, Plaintiff refaxed her request for a loan modification,
indicating that the First Package was already submitted on December 5, but that no one has
responded within the promised 15 days. Plaintiff also provided a 3-page Borrower Financial
Statement on First Horizon Home Loan's own form. She pleaded for someone to acknowledge
her request.
26. On January 9, 2009, Loan Counselor Latoya N. Freeman of MetLife Home Loans
e-mailed Plaintiff, confirming receipt of the faxed First Package. Ms. Freeman stated that 3
months of profit and loss statements would be required, and invited Plaintiff to submit them.
27. Within two hours, Plaintiff provided the requested profit and loss statements to
Ms. Freeman via e-mail.
28. On January 13, 2009, Plaintiff e-mailed Ms. Freeman to confirm that she had
received the profit and loss statements. Ms. Freeman responded that she had, and that the file was
"waiting to be assigned to a specialist." Plaintiff then asked Ms. Freeman about the letter
claiming that foreclosure would begin on January 30, and whether that was suspended. Ms.
Freeman responded, "as long as the specialist has it you will be ok. It takes 30/45day [sic] for a
review once the specialist has it."
29. On January 20, 2009, Plaintiff received a letter dated January 13, 2009, from
FHHL. The letter acknowledged receipt of Plaintiffs "workout package," and continued, "[t]he
- 7 -
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 7 of 48

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
loss mitigation most likely to be approved to assist you in retaining possession of your home will
be directed towards the present hardship .... " Plaintiff was again lead to believe that she would be
granted a modification, and quickly.
30. On January 26, 2009, Plaintiff again e-mailed Ms. Freeman, asking for
confirmation that the demand of payment in full by January 30 had been withdrawn. Ms.
Freeman responded, "[t]here is a temporary hold on the account pending loss mitigation review if
you have any questions please call 800-364-7662 x33805. We cannot communicate by emaiL"
31.
Plaintiff was accordingly denied access to any individual who could answer her
questions and give her information. Plaintiff respected Ms. Freeman's request, and called the
number given for status checks of the First Package, thereafter.
32.
On March 11, 2009, Plaintiff spoke with Anthony, who told her that the First
Package was still under review, but that Justin Ailey was her processor. Plaintiff left a message
for Mr. Ailey requesting status. Plaintiff tried again on March 18 and April 2, 2009, to reach Mr.
Ailey but he never answered his extension. Plaintiff left messages each time. Mr. Ailey never
communicated with Plaintiff in any manner regarding the First Package, in spite of her repeated
requests for information. After January 26, 2009, Plaintiff was never able to again contact a
person at First Horizon with actual knowledge of the First Package, in spite of her best efforts to
do so.
33. On April 8, 2009, Jim Montes of QLS, appointed his employer QLS as the
substitute trustee, in place of North American Title, through a Substitution of Trustee (the "First
Substitution"). Mr. Montes purported to sign as "attorney in fact" for First Horizon Home Loans,
a division of First Tennessee Bank National Association. The Substitution claimed that First
- 8 -
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 8 of 48

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Horizon Home Loans was the present Beneficiary under the Deed of Trust. This assertion was in
fact false; MERS was the Beneficiary. The false First Substitution was recorded on April 10,
2009, at Doc. No. 20090320518.
34. Also on April 8, 2009, Jim Montes of QLS, acting under the false First
Substitution, signed and recorded a Notice of Trustee's Sale (the "First Notice"), setting a sale
date of July 10, 2009. The First Notice was recorded on April 10, 2009, at Doc. No.
20090320519.
35. On April 11, 2009, Plaintiff received a telephone call from Kristin S. High of
MetLife Home Loans, asking if Plaintiff was going to pay the past due balance, of $29,696.62, in
fulL Plaintiff told Ms. High that she had a loan modification package pending with First Horizon.
Ms. High told Plaintiff that not only had the First Package been denied, but that foreclosure
proceedings had already been initiated, and her loan sent to a foreclosure attorney on April 8.
36. Shocked that she had been given no notice that the First Package had been denied,
and no opportunity to bring the loan current before foreclosure proceedings were initiated and
attorney's fees incurred, Plaintiff asked what she could do to prevent the loss of her home. Ms.
High suggested that Plaintiff submit another workout package and request that the foreclosure be
postponed. Ms. High indicated that Plaintiff's package would be given high priority status and
would quickly be reviewed due to the pending foreclosure.
37. On April 13, 2009, based on the encouragement from Ms. High, Plaintiff again
submitted a workout package (the "Second Package") to First Horizon. Her fmancial status had
improved in that she had more income and debt had been reduced.
38. Plaintiff called First Horizon on April 13, 2009, and spoke with Joe. She asked if
- 9-
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 9 of 48

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
making a payment would help, and he responded that no payment except payment in full, now
including attorney's fees and costs, would be accepted.
39. Accordingly, Ms. High's initial question to Plaintiff on April 11, regarding
Plaintiff s intentions of bringing the past due balance current, was made in bad faith. The
foreclosure had already begun and nothing short of full reinstatement and attorney's fees and
costs, would have been accepted.
40. Days after the April 11 telephone call, Plaintiff received two letters from FHHL.
One letter notified Plaintiff that her loan had been sent to McCarthy & Holthus to initiate
foreclosure and suggested she contact the Loss Mitigation Department if full reinstatement was
not possible. The other letter also stated her loan had been sent to an attorney for foreclosure, and
detailed 4 different ways in which Plaintiff could possibly "delay or even alleviate the current
legal action .... " The letter urged Plaintiff to contact Loss Mitigation immediately to "discuss all
options available." Because Plaintiff had recently spoken to Ms. High, and submitted a new
Second Package on April 13, she took no action on these letters. Rather, Plaintiff relied on the
information provided by Ms. High, that her new Second Package would be given expedited
attention and her foreclosure would be postponed based on the Second Package submitted.
41. Plaintiff was sent, by certified mail, fifteen (15) identical packets from QLS, all
postmarked April 16, 2009, which enclosed the false First Substitution, the First Notice, an
unsigned Statement of Breach or Non-Performance, a Debt Validation Notice, an Important
Notice Regarding Alternatives to Foreclosure, and a note from FHHL (the "First Foreclosure
Packet"). A copy of one of the fifteen packets is attached hereto as Exhibit "C."
42. The Debt Validation Notice in the First Foreclosure Packet, prepared by QLS, set
- 10-
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 10 of 48
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
forth the amount of delinquency and the principal balance owed, along with other costs. The
Notice indicated that MetLife Home Loans, a division of MetLife Bank NA, was the creditor.
43. The Alternatives to Foreclosure Notice in the First Foreclosure Packet, prepared
by QLS, stated, "your lender is very interested in discussing options that may help you avoid
foreclosure, BUT YOU MUST TAKE IMMEDIATE ACTION AND CALL TODAY."
44. The Statement of Breach or Non-Perfonnance indicated that Plaintiff was in
breach of the loan. It was not signed; instead the name Rochelle Matkin was typed in, in the
signature blank. Rochelle Matkin was listed as "agent" of First Horizon Home Loans, a division
of First Tennessee Bank National Association. In fact Ms. Matkin works for QLS.
45. The note from FHHL in the First Foreclosure Packet stated, among other things,
"DO YOU FEEL AS IF NO ONE CARES? FIRST HORIZON HOME LOANS CAN HELP ....
[D]o not give up hope. A variety of assistance programs may be available.... Call our Loss
Mitigation Department today.... Or to start the process immediately, fax the information .... "
Various options for keeping your home are listed, and the borrower is then urged to "HELP US
HELP YOU" by sending in all the infonnation listed for a modification of the loan.
46.
Unable to reach anyone at Loss Mitigation to determine the status of her Second
Package, fearing that the Second Package would be denied on the eve of foreclosure, completely
ignorant of the fact that the creditor was falsely identified, that the Note was unsecured due to its
separation from the DOT, that the First Substitution was false and improper, and the First Notice
therefore invalid, unaware of other material defects with the foreclosure, and in fear of losing her
home of seven years, Plaintiff called QLS on April 15, to determine the amount required for a
payoff, to reinstate her loan.
- 11 -
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 11 of 48
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
47. On April 21, 2009, QLS provided a total payoff amount of $33,694.52, which
included foreclosure attorney's fees and costs of$2,618.00.
48. Apparently due to Plaintiffs comment to Ms. High on April 11, that Plaintiff
would submit another workout package, FHHL sent Plaintiff a cover letter and blank Borrower
Financial Statement and form Hardship Letter, dated April 22, 2009. The letter began, "We
Listen. We understand. We care. Most importantly, we want to help you." The letter told
Plaintiff that if she provided the requested information, "we can begin working with you to find a
solution." And again, "[w]e hope you feel as strongly about protecting your home as we do about
trying to help you." Plaintiff had already submitted her Second Package on April 13, and so took
no action related to this correspondence.
49. Rather than risk losing her home at the eleventh hour, believing that the
foreclosure had legally been initiated, by parties legally entitled to foreclose, and unable to get the
expedited processing promised by Ms. High, Plaintiff liquidated her 401 (k) and used 100% of
those funds, along with other cash, to wire the reinstatement payoff amount of$33,729.52 to QLS
on May 5, 2009.
50. Had Plaintiff been aware of the illegal nature of the foreclosure proceedings, she
would not have liquidated her 401(k) or paid the reinstatement amount, and would have instead
filed suit.
51. By letter dated May 5, 2009, First Horizon sent Plaintiff a confirmation of receipt
of her Second Package faxed on April 13, 2009. The letter gave the average review period for the
Second Package as being 15 to 30 days. By the time Plaintiff received this letter, she had already
wired the reinstatement payoff.
- 12-
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 12 of 48
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
52.
10,2009.
53.
2009.
54.
On May 26, 2009, QLS recorded a notice cancelling the trustee's sale set for July
Plaintiff made her monthly loan payments for June, July, August, and September,
Because of continued income struggles, Plaintiff contacted a non-profit
organization, Money Management International, to seek help regarding her options for getting
First Horizon to agree to a modification of her loan. She spent 1 Yi hours on the phone with
Patrick Robbins on September 19, 2009, providing information to him so that he could send a
recommendation to First Horizon.
55. Mr. Robbins then made a certified Hope Now Referral to First Horizon and to
HUD recommending a Making Home Affordable Plan-Loan Modification to 31 % of gross
monthly income, under President Obama's Plan, for which Plaintiff qualified. Mr. Robbins told
Plaintiff that she did not have to be delinquent on her loan payments to qualify.
56. As a result of the Hope Now Referral, First Horizon sent Plaintiff a new workout
package, with a cover letter dated September 18, 2009, indicating that First Horizon was using
Faslo Solutions, L.L.C. ("First American") to assist in evaluating Plaintiff's loan. This was the
first time that First Horizon proactively contacted Plaintiff regarding her financial difficulties; she
believed that fmally, with the Hope Now Referral, First Horizon would act in good faith on her
modification request and she would receive the assistance she had been waiting for. The cover
letter stated, "[w]e will work with you in an effort to make your mortgage payment affordable."
The letter said Plaintiff wouldn't have to pay any fees for a modification. The letter continued,
"[n]ow is the time to act. We are ready to help you."
- 13 -
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 13 of 48
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
47.
On April 21, 2009, QLS provided a total payoff amount of $33,694.52, which
included foreclosure attorney's fees and costs of$2,618.00.
48. Apparently due to Plaintiffs comment to Ms. High on April 11, that Plaintiff
would submit another workout package, FHHL sent Plaintiff a cover letter and blank Borrower
Financial Statement and form Hardship Letter, dated April 22, 2009. The letter began, "We
Listen. We understand. We care. Most importantly, we want to help you." The letter told
Plaintiff that if she provided the requested information, "we can begin working with you to find a
solution." And again, "[ w]e hope you feel as strongly about protecting your home as we do about
trying to help you." Plaintiff had already submjtted her Second Package on April 13, and so took
no action related to this correspondence.
49. Rather than risk losing her home at the eleventh hour, believing that the
foreclosure had legally been initiated, by parties legally entitled to foreclose, and unable to get the
expedited processing promised by Ms. High, Plaintiff liquidated her 401(k) and used 100% of
those funds, along with other cash, to wire the reinstatement payoff amount of $33,729.52 to QLS
on May 5, 2009.
50. Had Plaintiff been aware of the illegal nature of the foreclosure proceedings, she
would not have liquidated her 401(k) or paid the reinstatement amount, and would have instead
filed suit.
51. By letter dated May 5, 2009, First Horizon sent Plaintiff a confirmation of receipt
of her Second Package faxed on April 13, 2009. The letter gave the average review period for the
Second Package as being 15 to 30 days. By the time Plaintiff received this letter, she had already
wired the reinstatement payoff.
- 12-
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 14 of 48
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
57. Plaintiff put together a comprehensive p a c k a g e ~ providing all information
requested, and sent the package (the "Third Package") by FedEx to First American in Westlake,
Texas, as specified in the instructions from First Horizon. FedEx delivered the Third Package to
First American on October 6, 2009, at 8:33 a.m.
58. On October 14, 2009, Joe with First American telephoned Plaintiff. Joe asked if
Plaintiff was still interested in a loan modification, and Plaintiff told him, she was. Plaintiff was
again reassured that First Horizon was fmally listening and that she would receive a reasonable
loan modification from First Horizon, as a result of the Hope Now Referral. Joe began to ask for
all the information received at First American on October 6. Plaintiff told Joe they had already
received everything; he said it would take 2 weeks for the information to "upload" and that the
process would be quicker if she gave the information over the phone. Plaintiff complied,
spending over an hour on the telephone giving Joe all the information that was already in the First
American offices.
59. After Plaintiff gave Joe at First American all the information he requested, Joe told
her it would take 30 to 45 days to determine which program she qualified for.
60. As of November 4, 2009, Plaintiff had not made her October loan payment. She
telephoned First American and told Perla that Plaintiff would be making the October and
November loan payments that week. Perla told Plaintiff that if she was current on her loan, First
American would not be able to modify her loan.
61. Plaintiff then asked Perla for confirmation that First American had all that was
needed to analyze the Third Package. Perla told Plaintiff that a lease agreement for a rental
property was needed, as well as the gross year to date rental income for that property. Perla
- 14 -
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 15 of 48
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
claimed that First American had been leaving messages about the missing documentation; in fact
no messages had been left. Plaintiff sent the requested information to First American on
November 6,2009.
62. Confused and alarmed that First American said she had to be delinquent to get
assistance, Plaintiff called First Horizon on November 6, 2009, and spoke with Carol Lynn in the
loan servicing centeL Plaintiff asked if she would be denied a modification if she were current on
her loan. Plaintiff told Carol Lynn that under the Making Home Affordable plan, a borrower can
qualifY for a modification even if current on payments. Carol Lynn indicated that if the borrower
is current, First Horizon believes the borrower does not need any help.
63. On November 19, 2009, Plaintiff called First American to check the Third Package
status. Mark told Plaintiff that her file was still under review, that she would hear within 30 days,
and that First American had all information needed to analyze the loan.
64. Given her conversations with a First American employee and a First Horizon
employee who both told her she must be in default to qualifY for a modification, Plaintiff stayed
in default on her loan.
65. On January 5, 2010, Plaintiff called First American and requested a status of her
Third Package. She was told that someone noted on the account on December 16, 2009, that
borrower should send complete profit and loss statement. Plaintiff asked who was supposed to
contact Plaintiff and notify her that this information was needed; the representative put Plaintiff
on hold and never returned. Plaintiff called back and spoke with Sonya, who said nothing is
needed on the file and the Third Package is still under review. Plaintiff asked Sonja how Plaintiff
is supposed to get information from First American on what further documents are needed; Sonja
- 15 -
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 16 of 48
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
responded that notes are made in the file, but no requested from the borrower, until the borrower
happens to call for the status of the pending application.
66. Not wanting her loan to go into foreclosure status, Plaintiff attempted to make an
online payment which was rejected by First Horizon, and returned. Plaintiff called and spoke
with Eric who took an electronic payment covering two months of accrued charges, on January
19,2010.
67. Also on January 19, Plaintiff called regarding the status of her Third Package, and
was told by Perla that the Third Package was under review, and that it would take 2 to 6 weeks
for verification from the date of September 18, 2009, then 30 to 45 business days for processing
after that. Perla said that as of November 10, all necessary information had been received. She
was completely unable to state where in the process Plaintiff's loan was, saying there was "no
way to tell."
68. On January 26, 2010, Plaintiff again called for status. She was told by Anacari
that by February 24, 2010 at the latest, Plaintiff would receive an answer. Anacari then told
Plaintiff that she needed to submit profit and loss statements for all of 2009, by month. When
Plaintiff asked why she was not told this on January 19 when she called, Anacari simply said,
"Sorry."
69. By this time, Plaintiff realized that without the help of someone experienced in
working with lenders on workouts, she would find herself in the same situation she had been
before: First Horizon acting as though it is working on her workout, providing no information,
and then declining the workout before she had an opportunity to determine why or provide the
information for which the application was denied. Plaintiff hired Michael Hirschtick of National
- 16-
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 17 of 48
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Credit Rescue to take over working with First AmericanlFirst Horizon, on February 2, 2010.
70. It seemed at this point that First AmericanlFirst Horizon would continue to ignore
Plaintiff s Third Package, and lie to her about the time by which it would be reviewed and acted
upon, unless a deadline was in place. Plaintiff believed she would have to let her home go into
foreclosure status before her workout file would be given priority and reviewed and acted upon
by the defendants.
71. On February 22, 2010, First Horizon requested that Mr. Hirschtick essentially
resend all the documents which had already been sent. The Third Package was resent on
February 23, 2010. First Horizon used this as an excuse to "reset" the age of Plaintiff's Third
Package, claiming hereafter that it was submitted to First Horizon on March 2, 2010, when in fact
Plaintiff's Third Package has been pending with First Horizon since October 6, 2009.
72. On March 8, 2010, in spite of all the promises from First Horizon about its desire
to help Plaintiff, and that it would "work with you in an effort to make your mortgage payment
affordable," and in spite of the Hope Now Referral, Plaintiff received a letter from FHHL, via
certified mail, demanding payment in full of all arrearages by April 1, 2010, or foreclosure would
be initiated.
73. On March 13,2010, Plaintiff received a call from Brandon, work LD. VKC, from
MetLife. Brandon asked if Plaintiff could make a mortgage payment. At this point, Plaintiff
feared that if she made a payment, her Third Package would be placed on hold, or put at a low
priority, or First Horizon would simply continue with foreclosure anyway, or decline her Third
Package because she was able to make a payment. Plaintiff told Brandon she had to hire
someone to work with First HorizonlFirst American because no one will listen, answer the phone,
- 17 -
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 18 of 48
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
or respond to her.
74. Brandon of MetLife checked on her Third Package, told her Mr. Hirschtick had
sent a new package on March 2, and that it would be assigned to a processor within 10 business
days. He told her that by Monday or Tuesday a processor would be assigned. Plaintiff expressed
frustration with the inability to speak with someone who knows what is going on, and her
experience of calling to be sure everything First American needs is present, only to call the next
time and find out First American claims something was needed 30 days ago, that was never
requested. All Brandon did was apologize for Plaintiff s getting the runaround on her Third
Package.
75. Mr. Hirschtick took over handling the workout with First HorizonIFHHL/MetLife,
on Plaintiff's behalf. Over the course of the next 6 months, up to the time of filing this
Complaint, First Horizon, FHHL, MetLife, and their agents, have negligently and/or intentionally
obfuscated the process and been extremely difficult to contact; made no less than 11 promises
that the Third Package would be assigned to a processor within 1 week, and/or that the file would
be "escalated" resulting in expedited review; told the Plaintiff's agent on many occasions that all
documentation was needed only to revoke that representation and demand more information in an
apparent attempt to buy more delay time; admitted that First American, an agent hired to handle
the loan modification packages, was negligent and wholly unable to perform under their
agreement and was terminated; failed to adequately supervise their agent with respect to
processing the loan modification packages resulting in the loss of precious time to homeowners
seeking assistance and in the issuance of false declination letters; and admitted that they shut their
fax machine off at night, and when it is on it will accept only 20 pages at a time.
- 18 -
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 19 of 48
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
76. First HorizonIFHHLlMetLife's promises regarding analysis and assignment of the
file, made to Plaintiff, include, but are not limited to, the following: December 5, 2008- will
process within 15 days; January 13, 2009- 30 to 45 days after assignment to a specialist; May 5,
2009- 15 to 30 days to process; October 14, 2009- 30 to 45 days to process; November 19, 2009-
30 days to process; January 19, 2010- 2 to 6 weeks from September 19, 2009 to perform
verification, then 30 to 45 business days to process; January 26, 2010- will have an answer to the
package by February 24, 2010; March 13, 2010- will be assigned to a processor in 10 days; April
5, 2010- will be assigned to a processor in 10 to 15 days; July 28, 2010- will be assigned to a
processor within 10 to 15 days after information requested is "uploaded" into system.
77. First HorizonIFHHLlMetLife' s promises regarding assignment within a week
and/or escalation of the file were made to Mr. Hirschtick on no less than the following dates:
April 28, May 7, May 19, May 24, May 28, June 3, June 15, July 1, July 8, July 15, and July 20,
2010. Attached hereto as Exhibit "D" is a complete list of the telephone contact Mr. Hirschtick
has made with First HorizonIFHHLlMetLife and their agents on Plaintiff s behalf, and the
responses he has received during those calls, through July 22, 2010.
78. On March 23, 2010, in spite of all the calls Mr. Hirschtick made to First
American/First Horizon on a weekly basis, in spite of providing all information requested, and in
spite of continuing to be told that no processor had even been assigned to the Third Package, First
Horizon sent a letter to Plaintiff telling her that her request for Loss Mitigation Assistance had
been declined. Mr. Hirschtick called to determine what the letter was about, and was told that the
letter was sent in error. First Horizon told Mr. Hirschtick to ignore the letter, that it was false.
IIII
- 19 -
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 20 of 48
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
79. On April 5, Colleena from First Horizon's default resolution department called and
asked what Plaintiff s intentions were regarding the past due balance. Plaintiff told her she had a
loan modification package pending with First Horizon since last October. Colleena checked the
status, and saw the Third Package on file. First Horizon's representative said that it would take
10 to 15 days for a processor to be assigned, and then 60 to 90 business days for final resolution.
80. During the call on April 5, the First Horizon representative said nothing to Plaintiff
about the intent to send the loan to foreclosure.
81. On April 12, FHHL sent Plaintiff two different letters. One letter notified Plaintiff
that her loan had been sent to McCarthy & Holthus to initiate foreclosure and suggested she
contact the Loss Mitigation Department if full reinstatement was not possible. The other letter
also stated her loan had been sent to an attorney for foreclosure, and detailed 4 different ways in
which Plaintiff could possibly "delay or even alleviate the current legal action .... " The letter
urged Plaintiff to contact Loss Mitigation immediately to "discuss all options available."
82. On infonnation and belief, the Defendants have a policy and/or practice of: 1)
refusing to assist any homeowner who is current on their payments in spite of numerous available
programs which allow borrowers to be current and modify their loans; 2) luring borrowers into
default by telling them that no help can be provided if the borrower is current; 3) leading
borrowers to believe that once in default, they will qualify for and be given a loan modification,
with their constant messages regarding how much they "care," "listen," "understand," and "are
ready to help you," knowing that these representations are false; 4) promising a response to a loan
modification, or assignnlent of a processor to a workout package, within a small number of days
(usually 10 to 15 days) with knowledge that this representation is false, and with specific intent
- 20-
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 21 of 48
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
that the borrower rely on the representation by taking no further action and making no mortgage
payments; 5) holding the loan modification package, without assigning a processor, long enough
that the information becomes stale so that more recent documents can be demanded, resulting in
further delay for the documents to "upload" into their system and refusing to assign a processor
until the documents have been "uploaded,"; 6) waiting for the borrower to be so far in arrears due
to the borrower's reliance and belief that defendants will stand by their word and act in good
faith, that it is impossible for the borrower to come current; 7) placing the loan into foreclosure,
all the while assuring the borrower that the workout package will be analyzed in short order,
knowing that this representation is false; 8) knowingly processing the foreclosure paperwork in
violation of the law, all the while hoping that borrowers don't have the knowledge to defend or
the money to hire an attorney to defend; 9) considering its own interests as servicer of the loan
above the interests of the borrower or the investor, 10) continuing, even after a trustee's sale is
noticed, to lead the borrower to believe that its workout package will be analyzed, that the
borrower has options short of full reinstatement, and that the lender "is very interested in
discussing options that may help you avoid foreclosure," and that they want the borrower to "help
us help you," knowing that the borrower will rely on these representations which are false; and
11) waiting until just before the trustee's sale to deny the workout package, and foreclose before
the borrower can take any further action, or simply foreclose in spite of a pending workout
package.
83.
On April 14, 2010, MERS purportedly assigned its beneficial interest in the DOT
to BNY Mellon by way of an Assignment of Deed of Trust ("Assignment"). The Assignment
claims that it is assigning not only the beneficial interest under the Deed of Trust, but also "the
- 21 -
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 22 of 48
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Promissory Note secured by said Deed of Trust .... " A copy of the Assignment is attached hereto
in Exhibit "E."
84. The Assignment was recorded on April 15,2010, at Doc. No. 20100317611. Tim
Bargenquast, described as Vice President of MERS, signed the Assignment. On information and
belief, Bargenquast is not now, and never has been, an employee of MERS.
85. In fact, Tim Bargenquast is a Support Staff Manager for QLS. Bargenquast is not
an Officer of, or even employed by, a member of MERS. Bargenquast is not even an Officer of
QLS. Bargenquast cannot legally be appointed as a certifying officerlagent of MERS.
86. Accordingly, the Assignment of DOT signed by Bargenquast on April 14, 2010,
recorded on April 15, 2010, is void and of no force and effect.
87. On May 15, 2010, Plaintiff received two notices from FHHL, dated May 4,2010.
The notices were identical, and both stated that Plaintiff s Loss Mitigation Assistance package
had been declined. Shocked, because her Third Package had never even been assigned to a
processor, Plaintiff sent the notices to Mr. Hirschtick.
88.
On May 17, Mr. Hirschtick called First Horizon, and was told that the letter was
sent in error by First American, which no longer even performs any work for First Horizon. Mr.
Hirchstick was told that First American was unable to handle the volume or detail work required
to adequately analyze workout packages, and so its contract with First Horizon had been
terminated. First Horizon told Mr. Hirschtick to ignore the letter, that it was erroneously issued
and false. Mr. Hirschtick was told to call back later in the week to find out to whom the
Plaintiff s Third Package had been assigned.
/11/
- 22-
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 23 of 48
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
89. On May 27, 2010, another Notice of Substitution of Trustee (the "Second
Substitution") was recorded against Plaintiffs property. The Second Substitution was
purportedly made by The Bank of New York Mellon f/k/a The Bank of New Y o r ~ executed by
Marcia Williams, designated as Assistant Vice President. The Second Substitution claims that
BNY Mellon is the beneficiary under the Deed of Trust, and purports to substitute QLS as trustee.
On infonnation and belief, Ms. Williams is employed by First Horizon, not BNY Mellon.
90. The Second Substitution was not signed by an authorized officer of BNY Mellon,
accordingly, it is void.
91.
On May 26, 2010, Earl Hopida, designated as an Assistant Vice President of QLS,
signed a Notice of Trustee's Sale (the "Second Notice"), claiming to be the trustee under the
Deed of Trust, and claiming to act on behalf of the alleged beneficiary under the Deed of Trust,
BNY Mellon. The Notice was recorded on May 27,2010, at Doc. No. 20100450248.
92. Mr. Hopida is variously described on the Notices of Trustee's Sale that he signs on
behalf ofQLS's foreclosure mill practice, as a Vice President and as an Assistant Vice President.
93.
The Second Notice is void and of no force and effect, because the Assignment is
void and the Second Substitution is void.
94. No filing has been made at the Maricopa County Recorder's office showing a
resignation of North American Title as the original Trustee under the Deed of Trust, and a new
appointment of Trustee, for QLS.
95. The Second Substitution is void because North American Title did not resign,
because the Assignment to BNY Mellon is void because Ms. Williams is an employee of First
Horizon, and because the beneficiary under the DOT did not appropriately appoint QLS.
- 23-
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 24 of 48
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
96. Competing Substitutions of Trustee are on record at the Maricopa County
Recorder's Office, appointing QLS as trustee, by two different alleged beneficiaries, on two
different dates, namely April 10, 2009, and May 27, 2010. QLS has never filed a resignation as
Trustee under the Deed of Trust pursuant to the April 10, 2009 appointment.
97. Plaintiff was sent, by regular and by certified mail, thirteen (13) identical packets
from QLS, all postmarked June 3, 2010, which enclosed the Second Substitution, the Second
Notice, an unsigned Statement of Breach or Non-Performance, a Debt Validation Notice, an
Important Notice Regarding Alternatives to Foreclosure, and a note from FHHL (the "Second
Foreclosure Packet"). A copy of one of the thirteen packets is attached hereto as Exhibit "E."
98. The Debt Validation Notice in the Second Foreclosure Packet, prepared by QLS,
set forth the amount of delinquency and the principal balance owed, along with other costs. The
Notice indicates that MetLife Home Loans, a division of MetLife Bank NA, is the creditor.
99. The Important Notice Regarding Alternatives to Foreclosure in the Second
Foreclosure Packet, prepared by QLS, states, "your lender is very interested in discussing options
that may help you avoid foreclosure, BUT YOU MUST TAKE IMMEDIATE ACTION AND
CALL TODAY."
100. The Statement of Breach or Non-Performance in the Second Foreclosure Packet
states that Plaintiff is in breach of the loan. It is not signed; instead the name Chris Thurman is
typed in, in the signature blank. Chris Thurman is listed as "agent" of First Horizon Home Loans,
a division of First Tennessee Bank National Association. On information and belief, Mr.
Thurman works for QLS.
IIII
- 24-
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 25 of 48
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
101. The note from FHHL in the Second Foreclosure Packet states, among other things,
"DO YOU FEEL AS IF NO ONE CARES? FIRST HORIZON HOME LOANS CAN HELP ....
[D]o not give up hope. A variety of assistance programs may be available.... Call our Loss
Mitigation Department today.... Or to start the process immediately, fax the information .... "
Various options for keeping your home are listed, and the borrower is then urged to "HELP US
HELP YOU" by sending in all the information listed for a modification of the loan.
1 02. Because Plaintiff s Third Package was already pending, Plaintiff was disappointed
that FHHL did not make any mention of it. Because her Third Package had been pending for
over three months, and Mr. Hirschtick was in constant contact, Plaintiff did not contact FillIL in
response to this note.
103. On June 22, 2010, Plaintiff sent QLS a dispute of the Debt Validation Notice, and
requested documents.
104. QLS responded to Plaintiff's Debt dispute letter by letter dated July 2, 2010. In
that letter, QLS provides a copy of the Note, and claims that MetLife is in possession of the
original promissory note. QLS also states that its authority to proceed with, or halt, the
foreclosure sale comes from BNY Mellon. QLS stated that it would be proceeding with the
foreclosure sale on August 27, 2010, as scheduled. A copy of the letter from QLS is attached
hereto as exhibit "F."
105. Plaintiff has therefore been provided information indicating that Defendants do not
know who is in possession of the Note, and Plaintiff now doubts that the original Note exists any
longer. QLS claims that MetLife is the creditor and is in possession of the Note; MERS
purported to assign the Note to BNY Mellon in the Assignment, and the description of the alleged
- 25-
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 26 of 48
1
2
3
4
5
6
7
8
9
10
11
12
13
14
current beneficiary of the DOT indicates that the Note was sold into a pool as a part of a
mortgage-backed security, and is subject to a Pooling and Servicing Agreement ("PSA"). The
mortgage pool could contain tens, hundreds, or thousands of investors, all with a claim to a
portion of the Note.
1 06. If any of these defendants are allowed to enforce the Note without producing the
original with all endorsements and allonges showing that particular defendant's authority to
enforce the Note, Plaintiff is in jeopardy of other individuals and/or entities appearing at a later
date and claiming legitimate and legal entitlement to payment under the Note. This will result in
double liability for the Note, or more.
107. On July 7,2010, Plaintiff sent FHHL a Qualified Written Request ("QWR"), under
12 U.S.C. § 2605(e), via certified mail and regular mail, seeking information about her loan, its
servicing, ownership, and other critical issues. A copy of Plaintiff s Q WR is attached hereto as
15 Exhibit "G."
16 108. On July 12, 2010, Plaintiff sent Quit Claim Deeds and cashier's checks for $5.00
17
18
19
20
21
22
23
24
25
26
to each of the following defendants: FHHL, MetLife, First Horizon, and BNY Mellon.
109. On July 28, 2010, Plaintiff received the $5.00 cashier's check payable to MetLife,
stapled to a letter dated July 21, 2010, which purports, in the letterhead, to be from both First
Horizon Home Loans, and FHHL. Although the letter contains boxes to check in order to tell the
recipient what the letter is about, none of the boxes are checked. In this one piece of
correspondence, three different defendants are referenced. This letter only contributes to the
confusion regarding who owns the Note, and who is the proper party to contact regarding
Plaintiffs Third Package. A copy of the July 21,2010 letter and the returned cashier's check is
- 26-
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 27 of 48
1 attached hereto as Exhibit "H."
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
110. Also on July 28, 2010, Plaintiff received a letter dated July 15, 2010, which
purports to be from both First Horizon Home Loans and FHHL. This letter simply states that
correspondence has been received, and that a response will be sent within 60 days. On July 28,
Plaintiff called the number given on the letter., as the one to call with any questions. Chanel
answered, and Plaintiff stated that since she has submitted so many documents to First Horizon
and FHHL, that she cannot tell to what this letter pertains. Chanel told Plaintiff she could not
find any such letter, and became irate with Plaintiff when Plaintiff stated that the letter came from
First Horizon, so there must be a record, and Plaintiff needed to know to what the letter pertained.
Plaintiff asked to speak with a supervisor; none were available. Chanel took Plaintiff s name and
number for a supervisor to call back. To date, no supervisor has ever called.
111. As of July 28,2010, less than 30 days before the Trustee's Sale date of August 27,
2010, defendants have failed to post the Property with the Notice of Trustee's Sale as required by
A.R.S. § 33-808(A)(3).
COUNT ONE
VACATE SUBSTITUTIONS OF TRUSTEE, ASSIGNMENT OF DEED OF TRUST,
AND VACATE NOTICE OF TRUSTEE'S SALE
(ALL DEFENDANTS)
112. Plaintiff repeats and realleges every allegation above as if fully set forth herein.
113. The appointment of QLS as Substitute Trustee on April 10, 2009, and again on
23 May 27, 2010, was improper.
24
25
26
114. The First Substitution and the Second Substitution did not comply with A.R.S.
§33-804(D), which states:
- 27-
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 28 of 48
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
A notice of substitution of trustee shall contain a description of the basis for the
successor trustee's qualification pursuant to section 33-803, subsection A. A
notice of substitution of trustee shall be sufficient if acknowledged by all
beneficiaries under the trust deed or their agents as authorized in writing and if
prepared in substantially the following form ....
115. The First Substitution was not prepared by MERS, which was the sale
beneficiary under the DOT; it was signed by a representative of QLS, Jim Montes,
purporting to sign for FHHL, which was not the beneficiary under the DOT. The First
Substitution was signed by QLS, appointing itself as trustee.
116. The Second Substitution was purportedly signed by BNY Mellon but in
fact was signed by Marcia Williams, an employee of First Horizon. First Horizon was not
the beneficiary under the DOT, nor was BNY Mellon, as the purported April 14, 2010
assignment of the DOT from MERS to BNY Mellon was voi<L having been signed by a
low-level employee of QLS, Tim Bargenquast.
117. The appointment of QLS as Substitute Trustee must also fail under Arizona
Revised Statutes §33-804(F), which states:
Resignation by a trustee is made by recordation of a notice of resignation in
the office of the county recorder of each county in which· the trust property or
some part of the trust property is situated at the time of the resignation. Written
notice shall be given through registered or certified mail, with postage prepaid, to
the trustor and the beneficiary.
118. A trustee must resign before a new trustee may be appointed.
119. No filing has been made at the Maricopa County Recorder's office showing a
23 resignation of North American Title, and a new appointment ofQLS.
24
25
26
120. Since North American Title has not resigned as required by A.R.S. §33-804(F) and
no resignation has been duly recorded as required, both Substitutions of Trustee appointing QLS
- 28-
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 29 of 48
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
must faiL No provisions in A.R.S. § 33-804, or any other applicable statute, allow more than one
trustee on one property at the same time.
121. Defendants have failed to properly post the Property with the Second Notice, as
required by A.R.S. § 33-808(A)(3).
122. The DOT signed by Plaintiff on August 1, 2005, shows MERS as the sole
beneficiary, and states MERS is "acting solely as a nominee for [First Horizon] .... "
123. MERS has no authority to conduct business of any kind in the State of Arizona;
any document signed and/or recorded by MERS in Arizona is void and of no force and effect.
124. MERS has never had any interest in, or been a holder of, the Note.
125. Any attempt to assign the beneficial interest in the DOT to another, without
simultaneously being the holder of the Note, is void.
126. MERS has no authority to assign the deed of trust.
127. The Note and DOT were separated at loan inception.
128. No defendant has been both the holder of the Note and the beneficiary of the DOT
simultaneously.
129. The Assignment of the DOT from MERS to BNY Mellon, was signed by a low
level employee of QLS, Tim Bargenquast, but he purports to be signing as Vice President of
MERS.
130. The Assignment of the DOT from MERS to BNY Mellon is void.
131. Therefore, the First and Second Substitutions of Trustee are void, the Assignment
is void, and the Notices of Trustee's Sale are void. In addition, the Trustee's Sale must be
vacated for failure to post the Property under A.R.S. § 33-808(A)(3).
- 29-
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 30 of 48
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
132. All defendants have breached their obligations as set forth in, among other laws,
Arizona statutes relating to foreclosures; defendants have also breached their obligations to the
Plaintiff, by allowing their agents/employees to sign documents without legal authority, thereby
initiating a trustee's sale, with the goal of taking Plaintiff s home, without legal basis.
133. The Trustee's Sale set for August 27,2010 must be vacated and cancelled.
134. Plaintiff is entitled to her attorney's fees and costs arising out of this claim,
pursuant to the contracts between the parties and A.R.S. § 12.341.01.
COUNT TWO
QIDETTITLE
(ALL DEFENDANTS)
135. Plaintiff repeats and realleges every allegation above as if fully set forth herein.
136. At the time the loan closed on August 1, 2005, and thereafter, the Note gave First
Horizon the right to payments.
137. Plaintiff has been given conflicting information about the holder of the Note. QLS
has told Plaintiff that MetLife has the Note, the Assignment claims that MERS assigned the Note
to BNY Mellon, and the description of the alleged current beneficiary of the DOT indicates that
the Note was sold into a pool as a part of a mortgage-backed security with an undisclosed number
of holders/investors of the Certificates, called the First Horizon Mortgage Pass-Through
Certificates Series FH05-F A8. This Certificate Series is subject to a PSA.
138. On information and belief, the First Horizon Mortgage Pass-Through Certificate
Series FH05-F A8 is governed by the First Horizon Alternative Mortgage Securities Trust 2005-
FA8 (the "Trust"). This Trust contains assets of approximately $537,837,255, including the Note.
The trustee of the Trust is BNY Mellon.
- 30-
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 31 of 48
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
139. Plaintiff has no knowledge of, and no way to detennine, who the legal holder of
the Note is, who is entitled to payments, and whether the Note still exists.
140. Plaintiff is in jeopardy, as the true holder of the Note and potentially dozens or
even thousands of third parties could come forward claiming an unsatisfied interest in the Note,
and mayor may not be subject to Plaintiff's various affirmative defenses and counterclaims.
Plaintiff is entitled to proof of the true holder of the Note to avoid this imminent danger.
141. At the time the loan closed on August 1, 2005, MERS was the sole beneficiary
under the DOT. MERS remained the sole beneficiary until at least April 15, 2010. The Deed of
Trust was entered on the MERS system with MIN # 100085200547038630.
142. The DOT does not give MERS any greater rights than normally given a nominee.
The DOT says that MERS acts solely as nominee for Lender. There is no express grant of any
right to MERS to transfer or sell the DOT or the Note, or assign its duties as a nominee, nor does
MERS obtain any right to Plaintiff s payments or to serve in the role of receiving or servicing the
Note payments.
143. The Assignment recorded on April 15, 2010, which purports to assign the DOT
and the Note from MERS to BNY Mellon under the signature of Bargenquast, is void. The
Assignment as it relates to the Deed of Trust is void because Bargenquast, a low level employee
of QLS, is not a legally appointed certifying officer of MERS, and because MERS has no
authority to assign the DOT. The Assignment is further void because MERS has no authority to
assign the DOT. The Assignment as it relates to the Note is void because MERS has never had
an interest in the Note to assign, nor does it have the authority to assign the Note.
144. A note and deed of trust are inseparable. If a note and deed of trust are separated,
- 31 -
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 32 of 48
1
2
3
4
5
6
in that the holder of the note and the beneficiary of the deed of trust are not the same individual or
entity, the note becomes unsecured.
145. Upon closing in August of 2005, the holder of the Note was First Horizon. The
beneficiary of the DOT was MERS. The Note and DOT have been separated since the inception
of this loan.
7 146. The assignment of a deed of trust without a legal transfer of the debt, transfers
8 nothing.
9 147. The Assignment of the DOT is invalid. There has been no evidence to show that
10
11
12
13
14
First Horizon had given authority for MERS to assign it; further, the purported Assignment is
signed by an employee of QLS. In addition, the DOT is a nullity. Having been separated from
the debt in August of2005, the DOT secures nothing.
148. The Assignment of the Note is invalid; MERS is not the holder of the Note, an
15 assignment is not the proper method for transfer of a note, and the purported Assignment is
16 signed by an employee of QLS. QLS has never been the holder of the Note.
17
18
19
20
21
22
23
24
25
26
149. Defendants seek to enforce the Note and DOT. The Note having been unsecured
since the date of loan closing, August 1, 2005, no Defendant may legally pursue foreclosure
pursuant to the Deed of Trust.
150. No Defendant has standing to pursue foreclosure, as no one Defendant is both the
beneficiary of the DOT and also the holder of the Note.
151. Various defendants have filed documents against the Property, without the legal
authority to do so. Those documents include, but are not limited to, the First and Second
Substitutions of Trustee, the Assignment of Deed of Trust, and the First and Second Notices of
- 32-
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 33 of 48
1 Trustee's Sale.
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
152. Plaintiff is entitled to an order from this Court that the Plaintiffs estate in the
Property be established in her, that title be quieted in her name, that all illegally recorded
documents be declared null and void with filings at the Maricopa County Recorder's Office to
that effect, and that all Defendants be barred and forever estopped from having or claiming any
right or title to the Property, adverse to Plaintiff, and that the Deed of Trust be declared void and
of no force and effect, and be released by a recording at the Maricopa County Recorder's Office.
153. Pursuant to A.R.S. § 12-1103(B), Plaintiff is further entitled to her attorney's fees
and costs against Defendants FHHL, MetLife, BNY Mellon, and First Horizon, as she tendered a
quit claim deed and $5 to each entity, more than 20 days before the filing of this Complaint.
COUNT THREE
BREACH OF THE DUTY OF GOOD FAITH AND FAIR DEALING
(FIRST HORIZON, FHHL, METLIFE, MERS, BNY MELLON)
154. Plaintiff repeats and realleges every allegation above as if fully set forth herein.
155. Defendants are obligated under the Note and DOT, and the common law, to act in
good faith and to deal fairly with Plaintiff.
156. The purpose of the covenant is to guarantee that the parties remain faithful to the
intended and agreed expectations of the parties in their performance.
157. The duty of good faith extends beyond the written words of the contracts.
158. When a party or parties to a contract manipulate bargaining power to its/their own
advantage, injuring the other party, the party/parties with bargaining power breach its/their duty
of good faith.
- 33 ..
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 34 of 48
1
2
3
4
5
6
7
8
159. Plaintiff reasonably expected that the defendants would use good faith and deal
fairly in processing her loan modification package, and, based on their written and verbal
communications with her, that their goal was to help her keep her home, which would inure to her
benefit and well as theirs.
160. Defendants and/or their agents routinely and regularly breach their duty of good
faith and fair dealing by:
a. failing to perform loan servicing and process loan modification requests consistent
9 with their responsibilities and representations, to Plaintiffs;
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
b. failing to properly supervise employees/executives including, without limitation,
loss mitigation/loan modification and collection personnel and foreclosure attorneys;
c. failing to employ adequate and competent staff to timely review loan
modifications ;
d. failing to purchase and maintain adequate office equipment and to keep it
operating, to keep up with the demands of the loan modification packages being submitted by
borrowers at defendants' invitation;
e. routinely demanding information already in its files;
f. making inaccurate calculations and determinations of Plaintiff's eligibility for loan
modification programs, including telling Plaintiff she must be in default to qualify;
g. failing to follow through on written, verbal and implied promises, including
without limitation the time frame within which the package will be processed;
h.
failing to follow through on contractual obligations, including without limitation
taking action to foreclose in direct contravention of contract terms;
- 34-
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 35 of 48
1
2
3
4
5
6
7
8
1. luring Plaintiff into default and engaging in dilatory tactics, resulting in Plaintiff s
delinquency being so great that she cannot reinstate her loan;
J.
participating in a system of loan documentation, processing, and servicing, which
hides from the borrower the identity of the holder of the note, and the beneficiary of the deed of
trust, supported by a continuing refusal on the part of all defendants, to provide any information
regarding these issues, to the borrower.
161. As a result of these failures to act in good faith and the absence of fair dealing,
9 defendants have caused Plaintiffs harm.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
162. As this claim arises out of the contracts between the parties, Plaintiff is entitled to
her attorney's fees and costs incurred in having to bring this claim, pursuant to the terms of the
contracts as well as A.R.S. § 12-341.01.
COUNT FOUR
NEGLIGENT PERFORMANCE OF UNDERTAKING
(GOOD SAMARITAN DOCTRINE)
(FIRST HORIZON, FHHL, METLIFE)
163. Plaintiff repeats and realleges every allegation above as if fully set forth herein.
164. Defendants voluntarily put in place, a loan modification program available to their
borrowers. Borrowers experiencing problems paying their mortgage were encouraged, even
urged, to submit a modification package.
165. Pursuant to defendants' program, defendants undertook to modify Plaintiff sloan.
Defendants sent numerous correspondence and notes, and had many conversations with Plaintiff,
in which Defendants encouraged Plaintiff to submit a modification package, and in which
defendants assured Plaintiff, over and over again, that defendants "care," understand," "listen,"
- 35 -
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 36 of 48
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
and "want to help."
166. Defendants indicated multiple times that many modification options were available
to Plaintiff, and that they wanted to help Plaintiff.
167. Plaintiffwas told she had to be in default to receive help; Plaintiff defaulted as a
result.
168. In spite of promises to help Plaintiff, defendants did not have adequate staffing,
resources, or equipment to administer its own loan modification program.
169. Defendants negligently hired third parties to administer the program. Defendants
terminated the third parties' contracts due to the negligent administration of the program by those
third parties.
170. Defendants failed to employ adequate and competent staff, and failed to timely
review loan modifications requests.
171. Defendants failed to purchase and maintain adequate office equipment and to keep
it operating, to keep up with the demands of the loan modification packages being submitted by
borrowers at defendants' invitation.
172. Defendants routinely demanded information already in its files.
1 73. Defendants made inaccurate calculations and determinations of Plaintiff s
eligibility for loan modification programs, including telling Plaintiff she must be in default to
qualify.
174. Defendants failed to follow through on written, verbal and implied promises.,
including without limitation the time frame within which Plaintiff s package would be processed.
IIII
- 36-
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 37 of 48
1
2
3
4
5
6
7
8
175. Defendants engaged in dilatory tactics, resulting in Plaintiff's delinquency being
so great that she cannot reinstate her loan, and resulting in a Trustee's Sale being set on the
Property.
176. Defendants' negligence resulted in such delay that her First Package was denied, a
call placed to her demanding the balance in full, and notification that the First Trustee's Sale had
been noticed, all in the same phone call.
177. Defendants' negligence resulted in Plaintiff's need to liquidate her 401(k) in order
9 to bring her loan current and keep her home.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
178. Plaintiff relied on the defendants to administer the loan modification program, and
process her application for a loan modification, in a timely manner and with due care.
179. Defendants' negligence in administering its loan modification program has
resulted in economic harm to the Plaintiff.
180. Plaintiffhas suffered monetary damages from liquidation of her 401(k) in poor
economic times, adverse tax consequences from the early liquidation, severe and potentially
permanent damage to her credit rating, and other harm.
181. Plaintiff is entitled to damages from the defendants as a result of their negligent
administration of their loan modification program.
COUNT FIVE
FRAUDULENT MISPREPRESENTATIONIFRAUDULENT CONCEALMENT
(ALL DEFENDANTS)
182. Plaintiff repeats and realleges every allegation above as if fully set forth herein.
- 37-
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 38 of 48
1
2
3
4
5
6
183. Defendants invited Plaintiff to submit a loan modification package and lead her to
believe that they were interested in helping her keep her home.
184. Defendants told Plaintiff she would not receive a modification of her loan unless
she was in default, which caused Plaintiff to default on her loan.
185. Defendants put Plaintiff in a position where she was at the mercy of their good
7 faith, fair dealing, and honesty.
8 186. Defendants knew the truth, but misrepresented and concealed the truth from
9 Plaintiff, including but not limited to, the following truths:
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
a.
defendants could offer Plaintiff a loan modification program without her being in
default;
b. defendants allowed unauthorized signatures on the documents, including
documents required to be recorded at the county recorder's office to initiate and schedule the
foreclosure, resulting in the noticing of a void trustee's sale;
c. defendants did not have adequate and competent staff to timely and properly
process her loan modification package;
d.
defendants negligently hired others to process the loan modification packages, who
themselves were negligent, costing Plaintiff months of delinquency on her loan;
e. defendants did not even have adequate office equipment to keep up with the
demands of the loan modification packages being submitted by borrowers at defendants'
invitation, and defendants would turn their facsimile machines off at night and program them to
reject any pages faxed after the twentieth page;
f.. defendants would routinely demand information already sent to them/in their files;
- 38-
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 39 of 48
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
g. defendants would fail to follow through on written, verbal and implied promises,
including without limitation the continual promises that Plaintiff's loan modification would be
assigned to a processor within one week, that the file would be "escalated," or that First
HorizonlFHHLlMetLife cares, wants to help, and wants borrowers to keep their homes;
h. defendants would fail to follow through on contractual obligations, including
without limitation, take action to foreclose through the use of unauthorized signatures;
. 1. defendants would lure Plaintiff into default and engage in dilatory tactics, resulting
in Plaintiff's delinquency being so great that she cannot reinstate her loan;
J. defendants' employees in the loss mitigationlIoan modification department knew
the status of her loan modification package but claimed ignorance each time Plaintiff or her agent
called;
k. defendants delayed in assigning the loan modification packages to processors until
the infonnation in the package was stale, requiring supplementation, which would then allow
defendants more delay due to alleged "uploading" time for documents, with another 10 to 15 days
before a processor would be assigned;
1. defendants were participating in a system of loan documentation, processing, and
servicing, which hides from the borrower the identity of the holder of the note, and the
beneficiary of the deed of trust, supported by a continuing refusal on the part of all defendants, to
provide any infonnation regarding these issues, to the borrower.
187. Defendants prevented Plaintiff from learning any of these truths.
188. As a result of defendants' fraudulent misrepresentations/concealment, Plaintiffhas
suffered pecuniary loss.
- 39-
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 40 of 48
1
2
3
4
5
6
7
8
9
10
COUNT SIX
FRAUD
(ALL DEFENDANTS)
189. Plaintiff repeats and realleges every allegation above as if fully set forth herein.
190. Beginning at least with a modification package sent to Plaintiff in December of
2008, and through the present, defendants have engaged in a systematic process of making false
and misleading representations to Plaintiff to cause her to believe that the defendants "listen,"
"understand," "care," and "want to help" Plaintiff modify her loan.
191. Plaintiff was further mislead into believing that the defendants would exercise due
11 care with respect to her loan modification requests, follow the law, and legally and appropriately
12 administer their loan modification program or fulfill their legal duties, as the case may be.
13
14
15
16
17
18
19
192. The representations made to Plaintiff include, but are not limited to:
a. defendants could not offer Plaintiff a loan modification program without her being
in default;
b. defendants had adequate and competent staff to timely and properly process her
loan modification package, free of negligence or intentional misconduct;
c. defendants hired agents to process the loan nlodification packages, who would
20 timely and appropriately do so, to the benefit of Plaintiff;
21
22
23
24
25
d. defendants had the resources, including adequate office equipment, to keep up
with the demands of the loan modification packages being submitted by borrowers at defendants'
invitation;
e. defendants would timely place all information from Plaintiff, including
26 supplemental information provided, into her file, and would not ask for information already
- 40-
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 41 of 48
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
provided;
f. defendants would follow through on w r i t t e n ~ verbal and implied promises,
including without limitation the eleven promises made to Mr. Hirschtick that Plaintiff's loan
modification would be assigned to a processor within one week, and that the file would be
"escalated/' for expedited review;
g. defendants' employees in the loss mitigation/loan modification department had no
way of telling, when Plaintiff or her agent called, what the status of her loan modification
package was;
h. the foreclosure documents filed in April of2009 and again in May of2010, were
legal, contained authorized signatures, and properly initiated the foreclosure process which would
legally result in Plaintiff s losing her home;
1. that in spite of foreclosure being initiated, defendants wanted to help, discuss
alternatives to foreclosure, were willing to modifY her loan, and could delay or even alleviate the
foreclosure; and
J. that if Plaintiff could just wait one week, that her package would get attention and
defendants would help her.
193. All of these representations were false when made, or believed to be true, and
subsequently learned to be false.
194. All of these representations were material.
195. Defendants knew that the representations were false, were unaware of whether the
representations were true or not, or believed them to be true but defendants later learned the
representations were false.
- 41 -
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 42 of 48
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
196. The defendants intended Plaintiff to rely on their representations, and therefore
take no other action to protect herself from delinquency, default or foreclosure.
197. Plaintiff was not aware that the representations were false, and she was never
notified by defendants that any representations made by them were later determined to be false.
198. Plaintiff relied the truthfulness of the representations.
199. Plaintiff had a right to rely on defendants' representations.
200. As a result, Plaintiff suffered damages.
201. Defendants actions were with malice, ill will, and a wonton disregard for the rights
of the Plaintiff. Plaintiff is entitled to punitive damages from the defendants.
COUNT SEVEN
CONSUMER FRAUD
(ALL DEFENDANTS)
202. Plaintiff repeats and realleges every allegation above as if fully set forth herein.
203. The defendants use deception, false promises, misrepresentations, concealment,
and suppression or omission of material facts, when they engage in the pattern and practice of
allowing documents to be signed by individuals without legal authority, allowing those false
documents to be recorded at the Maricopa County Recorder's Office, and proceeding with
trustee's sales pursuant to void documents, in violation of Arizona law.
204. Defendants First Horizon, FHHL, and MetLife also use deception, false promises,
23 misrepresentations, concealment, and suppression or omission of material facts, when they and/or
24 their agents:
25
26
a. promise to make a good faith analysis of Plaintiff's loan modification requests;
- 42 ..
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 43 of 48
1
2
3
4
5
6
7
b. lured Plaintiff into defaulting by leading her to believe that was the only way they
could help her;
c. promised in excess of 11 times in three months, with respect to the Third Package,
that her modification package would be assigned to a negotiator and an answer would be provided
shortly;
d. promised that all documents needed to process the package were received, only to
8 later request more documents;
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
e. imply, through offering and encouraging participation in their loan modification
program, that they actually have competent staff and sufficient office equipment and resources to
handle loan modification requests;
f. hire agents who negligently handle the loan modification program, causing many
precious months in delay of processing loan modification packages;
g. delay in assigning a processor to a loan modification package until the information
provided was stale, demand supplementary documents, which in turn allows defendants to claim
delays associated with "uploading" the supplemental documents into the file, which in turn delays
the assignment of a processor;
h. send out, or allowed their agents to send out, declination letters which are false;
and
1. participate in a system of loan documentation, processing, and servicing, which
hides from the borrower both the identity of the holder of the note and the beneficiary of the
DOT, supported by a continuing refusal on the part of all interested parties, to provide any
information regarding these issues, to the borrower.
- 43 -
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 44 of 48
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
205. This deception, these false promises and misrepresentations, concealment, and
suppression or omission of material facts; were made in connection with the intended sale of
merchandise, the defInition of which includes real estate.
206. Defendants engaged in this course of conduct with the intent that Plaintiff would
rely on their false promises, deception, misrepresentations and concealment, go into default, seek
a loan modification, and ultimately lose her home in foreclosure.
207. As a consequence, Plaintiff suffered damages and injury.
208. Plaintiff is entitled to punitive damages against all defendants for their wanton and
reckless conduct which shows spite and ill will, and demonstrates a reckless indifference to
Plaintiff s interests.
COUNT EIGHT
TEMPORARY RESTRAINING ORDER; PRELIMINARY INJUNCTION;

(ALL DEFENDANTS)
209. Plaintiff repeats and realleges every allegation above as if fully set forth herein.
210. If Arizona were a judicial foreclosure state, the issue of the burden of proof would
be on the party seeking affirmative relief, the creditor.
211. The purpose of the non-judicial foreclosure statutes is judicial economy. But those
statutes are now allowing the lenders and their business associates who failed to properly
document matters in their rush to profit, take homes from hard-working people, without proving
standing, entitlement to payment, or appropriate documentation to proceed.
212. Plaintiff is bringing this cause of action to stop the improper sale of her home, and
this cause of action is intended to be an express denial of the Defendant's claims against the
- 44-
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 45 of 48
1
2
3
4
5
6
7
Property. Plaintiff denies that defendants are the "lender" or "creditor" and that Plaintiff owes
any of the Defendants any obligation of payment, without strict proof thereof.
213. Defendants are improperly attempting to sell her property usmg tactics and
procedures that do not comply with Arizona law, and without standing or legal authority to do so,
as set forth in detail in the factual section and in the claims asserted above.
214. Plaintiffs request that this Court not allow the proposed sale to occur until a full
8 hearing on the asserted claims have been heard, and evidence as to the Defendants' standing to
9 litigate and continue in this case has been presented.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
215. Plaintiff will suffer immediate and irreparable injury, harm, loss and damage if the
Trustee's Sale is not cancelled, and this Complaint is not allowed to proceed on its merits.
216. On information and belief: the Note has been sold many times to entities that have
securitized the Note. As set forth above, Plaintiff has been given conflicting information from the
various defendants regarding the identity of the entity entitled to enforce the Note. If, as QLS
asserts, the Note is in a securitized mortgage pool, it is governed by a Pooling and Service
Agreement ("PSA"). Plaintiff has requested a copy of the PSA from First Horizon, but no copy
has been received.
217. On information and belief, if the Note is in a securitized mortgage pool, the
governing PSA states that there must be two recorded sales between the loan's origination and its
being placed into the mortgage pool. There likely exists evidence that the investors of the
mortgage pool are the real holders of the Note.
218. Because of the default on this loan in 2009 and 2010, there likely also exists
evidence that the Note has already been paid off by credit default swaps purchased by the
- 45-
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 46 of 48
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
mortgage pool. In that e v e n ~ any real party in interest may be an insurance company with a
subrogation claim, but none of the defendants herein.
WHEREFORE, Plaintiff requests the following relief:
1. For a Declaration and Order that the Assignment of the Deed of Trust from MERS
to BNY Mellon be declared null and void, of no force and effect, and in violation of Arizona law;
2. For a Declaration and Order that the Statement of Breach or Non-Performance and
Election to Sell under Deed of Trust be declared null and void, of no force and effect, and in
violation of the requirement that it be signed, and signed by the lender;
3.
For a Declaration and Order that the First and Second Substitutions of Trustee are
declared null and void, of no force and effect, and in violation of Arizona law;
4. For a Declaration and Order that the First and Second Notices of Trustee's Sales
are declared null and void, of no force and effect, and in violation of Arizona law;
5. For a Declaration and Order that the Trustee's Sale scheduled for August 27,2010,
be cancelled and cancellation of same be recorded at the Maricopa County Recorder's Office
immediately, and that a Trustee's Sale not again be rescheduled on the Property unless Plaintiff
loses on the merits of all her claims;
6. For a Declaration and Order that each of the defendants must prove that it is the
legal holder of the Note, and therefore legitimately able to pursue collection of the Note;
7. For a Declaration and Order that because the Note and DOT, which are
inseparable to be enforceable, have been separated since the inception of this loan, rendering the
Note unsecured and the DOT of no force and effect, and ordering that title to the Property is
quieted in favor of Plaintiff;
- 46-
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 47 of 48
1
2
3
4
5
6
8. For damages sustained by the Plaintiff as a result of the negligence andlor
intentional conduct of the defendants, or otherwise, as allowed by law;
9. For punitive damages to deter the defendants and punish them for the torts they
have engaged in at Plaintiff's expense;
10. For judgment for Plaintiffs' legal fees and costs incurred, pursuant to ARS § 12-
7 341.01, as this matter arises out of a contract, and pursuant to A.R.S. § 12-1103(B).
8
11. For interest on the reasonable attorney's fees, court costs, and other costs of
9 collection at the highest legal rate from the date of entry of judgment herein until paid in full; and
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
11. For such other and further relief as the Court deems just and proper.
JURy DEMAND
Plaintiff demands a trial by jury as a matter of right.
I declare under penalty of peIjury that the foregoing is true and correct to the best of my
knowledge.
DATED this 3
rd
day of August, 2010.
Barbara J. Forde, Esq.
20247 N. 86
th
Street
Scottsdale, AZ 85255
Pro Se Plaintiff
- 47-
Case 2:10-cv-01922-MEA Document 1-3 Filed 09/07/10 Page 48 of 48

Sign up to vote on this title
UsefulNot useful