IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI UNITED STATES OF AMERICA Fredrick Smith

Plaintiff, vs. Bank of America; Mortgage Electronic Registration System; Morgan Stanly ABS Capital 1 Inc.; Wells Fargo Bank, National Bank; WMC Mortgage Corp.; Recon Trust Company, N.A. Substitute Trustee; Lem Adams III, Trustee and John Does 1-20 Defendants, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Civil Action No.:

__________

COMPLAINT TO RESTRICT AND PROHIBIT FORECLOSURE, MOTION TO SET ASIDE FORECLOSURE & FOR DAMAGES AND DEMAND FOR TRIAL

COMES

NOW,

Fredrick

Smith,

Plaintiff,

and

asks

for

COMPLAINT

TO

RESTRICT AND PROHIBIT FORECLOSURE, MOTION TO SET ASIDE FORECLOSURE & FOR DAMAGES AND DEMAND FOR TRIAL and seeks an order of the Court prohibiting Foreclosure sale and award damages. In support of this

Complaint, the Plaintiff would show unto the Court the follows:

THE PARTIES 1. At all times herein mentioned Plaintiff was and is a

natural person, residing in Desoto Count, Mississippi. 2. Defendant, systems, ´MERS´ is Mortgage is upon Electronic information Registration and belief a

Inc.

´MERS´

separate corporation that is acting solely as a nominee for the Lender and Lender¶s successors and assigns. ´MERS´ is the beneficiary under this Security instrument. MERS is a
Page 1 of 25

Delaware

corporation

engaged

in

the

business

of

holding

title to mortgages. ³MERS´ conducts business in the State of Mississippi as evidenced by the inclusion of its name on the Assignment of Deed of Trust to ³ADAMS´ recorded April 26, 2005 in the Desoto County Recorder's Office. 3. Defendant, ´MERS´ LEM ADAMS solely III as a (³ADAMS") nominee is for Trustee ´MERS´ for and the it¶s on

benefit of Mortgage Electronic Registration systems, Inc., acting successors and assigns. ³ADAMS" is party to this action only in the capacity of Substitute Trustee of Plaintiff¶s Deed of Trust, and the relief sought against Defendant ³Adams´ is injunctive relief prohibiting foreclosure sale & decree for trial.
4.

Defendant, WELLS FARGO BANK, NATIONAL ASSOCIATION (³WELLS FARGO N.A."), is current Beneficiary of said Deed of Trust and which designates its main office as Sioux Falls, South Dakota. WELLS FARGO N.A. address is 101 N. Phillips Avenue, Sioux Falls, South Dakota, 57104.

5.

Defendant, substitute of Bank

RECONTRUST Trustee of as

COMPANY, evidenced N.A. laws

N.A. by

(³RECONTRUST"), instrument is filed

is on and

January 28, 2010. RECONTRUST is a wholly-owned subsidiary America the RECONTRUST of organized existing under CALIFORNIA. RECONTRUST,

Corporate Headquarters address is 1800 Tapo Canyon Road, Simi Valley, CA 93063. 6. Defendant, believed to MORGAN owe STANLEY its ABS CAPITAL to the I, laws INC. of (³MORGAN is the State

STANLEY"), is beneficiary of said Deed of Trust and existing
Page 2 of 25

DELEWARE. MORGAN STANLEY¶S Corporate Headquarters address is 1585 Broadway New York, New York 10036. 7. Defendant, WMC MORTGAGE CORP. (³WMC MORTGAGE") is organized and is believed to owe its existing to the laws of the State CALIFORNIA. WMC MORTGAGE address is P.O. Box 54089 LOS ANGLES, CA 90054-0089. 8. Defendant; Option 5900. 9. Defendant through Bank its of America of Home Loans is a subsequent Loans is One Option was One Mortgage by ³OPTION American ONE´ is/was the

original lender of Plaintiff¶s loan. On April 30, 2008, acquired Home Mortgage Servicing, Inc. 1255 Route 70 # 12s Lakewood, NJ 08701-

assignee and/or successor to Defendant Option One Mortgage, accusation Countrywide Home believed to be the Substitute Trustee under the Deed of Trust is upon reason and belief headquarter in Calabasas, California.

JURISDICTION AND VENUE 10. The United States District Court for the Northern District of Mississippi III, § has 2 and jurisdiction 28 U.S.C. sale has based §1331. on on This "diversity jurisdiction´ pursuant to The United States Constitution, Article because the Court has real 28 jurisdiction over this action pursuant to 28 U.S.C. §2241 Pending foreclosure The Court Plaintiff¶s property is in violation of the Constitution and laws of United States. jurisdiction under U.S.C. § 1332, in that the amount in controversy is in
Page 3 of 25

excess in that

of

$75,000.00. Plaintiff by

The seeks

Plaintiff to

also

invokes

the of

jurisdiction of this Court pursuant to 28 U.S.C. §1343(4) the redress deprivation and rights guaranteed both the Constitution federal

statutes. Venue is appropriate in this District under 28 U.S.C. § 1391(b)(1),(b)(2), and (c). JUDICIAL NOTICE / COGNIZANCE WITH CLAIM OF RIGHTS 11. The Plaintiff, Fredrick Smith an American Citizens, hereby declare and give "Notice" that he invoke the powers and protections of the Constitution and Bill of Rights of the State Of Mississippi and the Constitution and Bill of Rights of the United States Of America, promised him, so that an unequivocally, and unconditionally fair, just, and unbiased proceeding and conclusion of this lawsuit shall be effected. FACTUAL ALLEGATIONS 12. Plaintiff, Fredrick Smith, is a natural person that resides at 7601 Broken Hickory Drive Walls, Mississippi 38680. 13. Plaintiff executed a Deed of Trust to Lem Adams III as Trustee Mortgage. 14. Subject Deed of Trust was filed on April 26, 2005 and for the benefit of MERS as Nominee for WMC

recorded in book 2203 at Page 503 in the Office of the Chancery Clerk of Desoto County, Mississippi. 15. On or about May 19, 2011, Defendant, ³Recontrust did notice the Plaintiff of pending foreclosure sale scheduled to be
Page 4 of 25

held June 9, 2011 on the court house steps of the Desoto Count Courthouse in Hernando, Mississippi. 16. Plaintiff, discovered that in order for Defendant to

recover on a promissory note the (1) Defendant must prove existence of the note, (2) prove that the Plaintiff signed the note, (3) that the Defendant is the owner or holder of the note in due course, and that a certain balance is due and owing on the note.

a) The note is specifically governed by federal law and Negotiable Instruments Law of this State [Mississippi Code Title 75] as is the validity of the Mortgage Security interest lien. b) Unequivocally the Court¶s rule that in order prove the ³instrument´, possession is mandatory. INJUNCTIVE RELIEF 17. Plaintiffs incorporate herein by reference the allegations made in paragraphs 1 through 16, inclusive, as though fully set forth herein. 18. Defendant MERS and its successors in interest, is and have been at all times pertinent hereto, and will in the future engage in conduct in direct violation of the Foreclosure Act, the UCC and the FDCA. 19. That unless enjoinment by this Court, Defendants will to

continue in their illegal practices as enumerated in this complaint to the detriment of the Plaintiff.

Page 5 of 25

20.

That

unless

enjoined

by

this

Court,

Plaintiff

is

in

imminent threat that the illegal actions of the Defendants will result in the loss of his home, and the eviction from his home and will suffer irreparable harm as a direct result of the wrongful conduct of the Defendants. 21. There is no adequate remedy at law for the damages which will be inflicted upon and suffered by plaintiff if the Defendants and their Successors in interest are not immediately enjoined from continuing with or commencing the foreclosure and eviction. 22. Plaintiff will likely prevail on his claim on the merits of the claim that the Defendants are violating and have violated the Foreclosure Act, the UCC and the FDCA. 23. Public granted policy in requires matter that to injunctive stop the relief must of be the

this

violations

Foreclosure Act, the UCC and the FDCA by the defendants and to prevent further loss and harm to the Plaintiff. DECLARATORY RELIEF 24. Plaintiffs incorporate herein by reference the allegations made in paragraphs 17 through 23, inclusive, as though fully set forth herein. 25. The dispute that and has arisen of between as to the Plaintiff duties and and

Defendants

each

them

the

obligations of the respective parties with regard to the loan or the foreclosure.

Page 6 of 25

26.

These disputes concern but are not limited to the ownership rights and the validity of the commencement of the foreclosure process.

27.

Plaintiff further alleges that a declaration of rights and duties of the parties herein are essential to determine the actual status and validity of the loan, deed of trust, nominated beneficiaries, actual beneficiaries, loan servicers, trustees instituting foreclosure proceedings and related matter. FRAUD AND MISREPRESENTATION

28.

Plaintiffs incorporate herein by reference the allegations made in paragraphs 23 through 27, inclusive, as though fully set forth herein.

29.

Defendants and all of them concealed material facts known to them but not to Plaintiffs regarding sales and assignments of the Note, transfers of the Note, and charges with the intent to defraud Plaintiffs.

30.

Defendants

and

each

of

them

made

false with

representations, of the

concealments thereon, well as

and

non-disclosures the unsuspecting As a has

knowledge

misrepresentations, intending to induce Plaintiff' reliance which mental Plaintiff result suffered of justifiably Defendants relied upon, resulting in general and special damages as distress. fraudulent at trial. conduct, Plaintiff compensatory,

general and special damages in an amount according to proof

Page 7 of 25

31.

Defendants made the above-referenced false representations, concealments reliance, and non-disclosures intending the unsuspecting with to knowledge of the misrepresentations, which induce Plaintiffs Plaintiffs' justifiably

relied upon, resulting in damage to his credit standing, costs and loss of their property. Plaintiffs was unaware of the true facts. Had Plaintiff known the true facts, Plaintiff, among other things, would not have maintained the Foreclosing Defendants as their lender, servicer and trustee (and their alleged agents) and/or would have taken legal action immediately to save his home. 32. As a result of the Defendants¶ fraudulent conduct,

Plaintiff has suffered compensatory, general and special damages in an amount to proof. Additionally, the Defendants acted with malice, fraud and/or oppression and, thus, Plaintiffs are entitled to an award of punitive damages. 33. The integrity of the civil litigation process depends on 'truthful disclosure" of facts. A system that depends on an adversary's failure. 1998). 34. The court's power to impose an involuntary dismissal exists because 2002). WRONGFUL FORECLOSURE no litigant has the right to trifle with the courts. Morgan v. Campbell, 816 SO.2d 251,252 (Fla. 2nd DCA ability v. to uncover 706 falsehoods 43, 47 is doomed 5th for DCA Cox Burke, SO.2d (Fla.

Page 8 of 25

35.

Plaintiffs incorporate herein by reference the allegations made in paragraphs 28 through 34, inclusive, as though fully set forth herein.

36.

Defendant MERS was not and never been a Beneficiary of this loan or any other. MERS is solely a registration service for tracking Trust Deeds and mortgages and also the Notes. MERS records Trust Deeds in their name as a ³nominee´, with no actual ownership interest in the Loan, the purpose is allegedly instruments to allow the the sale need and for transfer further of these without recordation,

however what actually occurs is that the real Beneficiary remains obscured, and unknown. In addition, MERS is not a trustee and has no right to collect any payments on the Note, neither does MERS have any right to enforce the notes or to be a party in any Foreclosure proceedings. Yet, MERS has represented itself in this case to be the beneficiary and in that ³stated´ but ³false´ capacity has unlawfully nominated a successive trustee. 37. Plaintiffs¶ alleges on information and belief that the loan was sold or transferred without notifying the Plaintiffs in writing. Therefore, the loan is void of legal rights to enforce it. 38. Plaintiffs allege that while MERS remain on title as a ³nominee´ for the Trust Deed and Note both are sold on several occasions afterward and ultimately bundled as a security and sold to a final investor.

Page 9 of 25

39.

None their

of

the

Defendants

contacted

Plaintiffs none

to

discuss of the

financial

situation.

Moreover,

Foreclosing Defendants explored options with Plaintiffs to avoid foreclosure. Accordingly, the Defendants and all of them did not fulfill their legal obligation to Plaintiffs. 40. Thus, the Defendants and all of them are engaged in a

fraudulent foreclosure of the Subject Property in that the Defendants do not have the legal authority to foreclose on the Subject Property. As a result of the above alleged wrongs, Plaintiffs have suffered general and special damages in an amount to be determined at trial. SLANDER OF TITLE 41. Plaintiffs incorporate herein by reference the allegations made in paragraphs 35 through 40, inclusive, as though fully set forth herein. 42. Defendant MERS, purportedly but falsely acting as either the trustee or the agent of the beneficiary of the Deed of Trust or the agent of WMC MORTGAGE, wrongfully and without privilege, caused a Notice of Default to be recorded against the Subject Property. 43. Defendant, MERS again purportedly but falsely acting as

either the trustee or the agent of the beneficiary of the Deed of Trust or the agent of WMC MORTGAGE, wrongfully and without privilege, caused a Notice of Trustee¶s Sale to be recorded against the Subject Property.

Page 10 of 25

44.

Defendants, and all of them were ever a of trustee, any beneficiary Deed of

whether jointly or severally, or assignee of any the Trust recorded against

beneficiary

Subject Property. Accordingly, they wrongfully caused the recording of the Notice of Default, Notice of Trustee¶s Sale and Trustee¶s Deed Upon Sale against the Subject Property. 45. By doing the acts described above, Defendants and all of them have slandered Plaintiffs¶ title to the Subject Property. 46. The conduct of the Defendants caused Plaintiff to suffer general and special damages in an amount to be proven at trial.

ACTION FOR DAMAGES FOR UNLAWFUL INTERFERENCE WITH POSSSESSORY INTEREST 47. Plaintiffs incorporate herein by reference the allegations made in paragraphs 41 through 46, inclusive, as though fully set forth herein. 48. Plaintiff is in formed and believes, and thereupon alleges that said alleged promissory note was never executed by the Plaintiff, or if it was executed, has long since been lost or intentionally destroyed, or paid in full, or assigned to a third party, such that Defendants, and each of them, lacks or lacked standing to initiate a foreclosure proceeding against the subject property.

Page 11 of 25

49.

Plaintiff is in formed and believes, and thereupon alleges that none of the alleged beneficiaries or representatives of the Beneficiary have the original note to prove that they are in fact the party authorized to conduct the foreclosure.

50.

Plaintiff is in formed and believes, and thereupon alleges that Defendant(s), through Code their Title agent 75 and/or the assigns Uniform violated Mississippi and

Commercial Code section 3-305(a), in that they materially altered a contract without the knowledge or consent of the Plaintiff, committed Fraud in the factum, rendering the transaction illegal, and thus this transaction stands as fraud which induced Plaintiff to enter the contract upon terms and conditions other than agreed upon. The Law is expressed as, ³§ 3-305. Defense and claims in recoupment.

(a) General rule: Except as stated in subsection (b), the Right to enforce the obligation of an instrument is subject to the following: (1) a defense of the obligator based on: (ii) lack of legal capacity or illegality of the transaction WHICH UNDER LAW, nullifies the obligation of the obligator; (iii) fraud that induced the obligor to sign the instrument with neither knowledge nor reasonable opportunity to learn of its character or its essential terms;

51.

Plaintiff is in formed and believes, and thereupon alleges that Defendant(s) violated the laws that Governs the note/
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mortgage security interest lien which is governed by the Statues at Large Public Law 13 of the 38th congress Stat 99118, the National Currency Act which is expressed as prima facie Law under the United States Code Title 12 Banks and Banking, Mississippi Code Title 75 Article 3 Negotiable Instruments and Article 8 Investments Securities.

a)The issues here are that the Plaintiff is asserting real defenses against the validity of the original negotiable instrument µcontract¶ which is the alleged promissory note¶. b)The first issue is consideration. There has been no loan or consideration in this contract in the amount of approximately $138,000.00. 52. Plaintiff is in formed and believes, and thereupon alleges that Defendants and all of them violated federal law in that Banks or Financial Institutions cannot, loan the capital stock of their directors, nor can they loan the money of their depositors, and they can only loan money pursuant to Public Law Volume 13 of the 39th Congress Stat 99-118. Defendants and all of them have not followed any of the provisions of this monetary law of the United States of America. 53. Plaintiff further allege on information and belief that the Banks or financial Institution directors cannot claim to the ignorance of this because each Director has an Oath which is recorded at the United States Office of

Follow Public Law Volume 13 of the 38th Congress Stat 99-118 Comptroller of Currency.

OATH OF DIRECTORS FILED WITH THE COMPTROLLER OF CURRENCY Page 13 of 25

³Each Director when appointed or Elected, shall take an oath that he will, so far as the duty devolves on him, diligently and honestly administer the affairs of such association, and will not knowingly violate, or willingly permit to be violated any provisions of this act, and that he is the bona fide owner, in his own right, of the number of shares of stock required by this act, subscribed by him, or standing in his name on the books of the association, and that the same is not hypothecated, or in any way pledged, as security for a loan or debt; which oath subscribed by himself, and certified by the officer before whom it is taken, shall be immediately transmitted to the comptroller of currency, and by him filed and preserved in his office.´ Section 9 page 102 of the 38th Congress.

54.

Plaintiff they knew

further or

allege

on

information that known enter by

and that

belief Banks

that and

Defendants and all of them further violated the law in that should have Financial for a 30 Institutions year mortgage cannot which into of mortgage law is

agreements beyond a 5 year period. The Plaintiff¶s note was operation fraudulent.
And be it further enacted, such associations shall not purchase or hold real estate in any other case or for any other purpose than as specified in this section. Nor shall it hold the possession of any real estate under mortgage, or hold the title and possession of any real estate purchased to secure debts due to it for a longer period than five years. Section 28 page 108 of the 38th Congress.

CONFLICT OF INTEREST

Page 14 of 25

55.

Plaintiffs incorporate herein by reference the allegations made in paragraphs 47 through 54, inclusive, as though fully set forth herein.

56.

The relationship of MERS to the mortgage transaction is not subject to any easy description. Landmark Nat. Bank v. Kesler, 216 P. 3d 158, 164 (Kan. 2009). The supreme court of Kansas and the Supreme Court of Nebraska have described MERS as follows: ³MERS´ is private corporation that administers the MERS system, a national electronic registry that tracks the transfer of ownership interest and servicing rights in mortgage loans. Through the MERS System, MERS becomes the mortgage of record for participating members through assignment of the members at county register of deeds offices. The lenders retain the promissory notes, as well as the servicing rights to the mortgages. The lenders can then sell these interests to investors without having to record the transaction in the public record. MERS is compensated for its services through fees charged to participating MERS members.´

Id. At 164 [quoting Mortgage Electronic Registration Systems, Inc. v. Nebraska Dept. of Banking and Finance, 704 N.W. 2d 784, 785 (Neb. 2005) 57. Plaintiff is informed and believe that directly after the

OPTION ONE caused ³MERS´ to go on title as the ³Nominee Beneficiary´ in order to hide the true identity of successive however, Beneficiaries as if when the loan the was sold. acted they were actual MERS,

beneficiary

although a Nominee is an entity in whose name a security is registered through true ownership is held by another party, in other words MERS is not the Beneficiary but is used to hide the true identity of the Beneficiary. Based on this
Page 15 of 25

failure to disclose, and the lack of consideration paid by MERS, Plaintiffs alleges that the Deed of Trust was never perfected and is a nullity as the recording separates the Debt from the Lien, and this is more so especially upon a sale of the Note and Trust Deed. 58. Plaintiffs further allege that MERS acts as a Nominee for more than one principal in the same transaction, and conceals the identity therefore if a Nominee is the same as an agent MERS cannot act as an agent for multiple Banks, insurance because of and a title serious companies Conflict and of Mortgage In Companies addition interest.

Plaintiff allege that a Deed of Trust cannot lawfully be held by a Nominee who has no financial interest in the instrument without disclosing the identity of the actual Beneficiary, and that if a party with no interest in the Note records it in their name the recorded deed is Nullity. 59. Plaintiffs further allege that ³MERS´ failure to transfer beneficial interests as the Note and deed was sold further renders the Deed recording a nullity. 60. Plaintiff is informed and believes and therefore alleges that the loans after they were originated and funded were sold on multiple occasions, bundled into a group of Trust Deeds and subsequently sold to investors as a Derivative, ³Mortgage Backed Security´, and that therefore none of these defendants, and each of them, owned this loan, or Note and cannot be and are not the Beneficiary, or lawfully appointed trustee, and have no right to declare a default, to cause notices of default to issue or to be recorded, or
Page 16 of 25

to

foreclose

on

Plaintiffs

interest

in

the

subject

property, Defendants, and each of them, were not the Note Holder or the Note holder in due course or any Beneficiary at any time in regards to this loan. 61. Defendant, MERS, never owned the Note so it has no standing to assign the Note. The mortgage follows the Note. The Note does not follow the mortgage. The mortgage got assigned to one entity, while the Note got assigned to a completely different entity. This bifurcation means the Note is no longer secured by the mortgage. 62. Defendants, and each of them, misrepresented facts

intending either to force Plaintiff to pay large sums of money to Defendants and each of them to which they were not entitled under the law, or to abandon Plaintiff¶s property to foreclosure sale. 63. The true facts were that they were not in possession of the note and they Code to were §§ either 3301, holders 3309, and of the note or nonwere the holders of the note entitled to payment, as those terms in Commercial proceeding therefore without they under foreclose non-judically

law. Further they added costs and charges to the payoff amount of the note that were not justified and proper under the terms of the note or the law. FEDERAL RESERVE NOTES ARE NOT MONEY BY LAW ³And no such association shall issue post notes or any other notes to circulate as money than such as are authorized by the forgoing provisions of this act´ Section 23 page 106 of the 38th Congress.
Page 17 of 25

a) The Federal Reserve Bank in its booklet; MODERN MONEY MECHANICS page 3, states; ³In the United States neither paper currency nor deposits have as commodities. Intrinsically, a dollar bill is just a piece of paper, deposits merely book entries.´ b) The ³giving a (federal reserve) note does not constitute payment.´ See Echart v Commissioners C.C.A., 42 Fd2d 158. c) The use of a (federal reserve) 'Note' is only a promise to pay. See Fidelity Savings v Grimes, 131 P2d 894. d) Legal Tender (federal reserve) Notes are not good and lawful money of the United States. See Rains v State, 226 S.W. 189. e) That (federal reserve) 'Notes do not operate as payment in the absences of an agreement that they shall constitute payment.' See Blachshear Mfg. Co. v Harrell, 2 S.E. 2d 766. f) ³Federal Reserve Notes are valueless. ³ See IRS Codes Section 1.1001-1 (4657) C.C.H.).

DEFENDANTS LACK STANDING TO COMMENCE FORECLOSURE ACTION 64. Plaintiffs incorporate herein by reference the allegations made in paragraphs 55 through 63, inclusive, as though fully set forth herein. 65. At the heart of the protections given to homeowners and borrowers by the State of Mississippi, and commands that FORECLOSURE PROHIBITED. See, In re Jacobson, 2009 WL 567188 (Bkrtcy. W.D. Wash.) (holding that an entity that claims to be only a servicer for deed of trust note is not a real party in interest, and alleged servicing agent failed to establish that it had standing to enforce deed of trust);
Page 18 of 25

In re Hwang, 396 B. R. 757 (C. D. Ca., 2008) (holding that mortgage note could not be enforced by a bank that had previously entity, there and was assigned retained joinder its only the of rights loan under that note owned to another unless note the servicing rights,

party

following the assignment). 66. Defendants and all of them is/are not the agent of the owner or holder of the original and mortgage and all relevant assignment(s), if any, and neither the holder nor the owner of the note, if different from the holder, have joined this action as Defendants. 67. Defendants and all of them are not the owner and holder of the mortgage and note executed by Plaintiff, and has no grounds to commence a foreclosure action against Plaintiff. See, In re Hwang, 396 B. R. 757 (C. D. Ca., 2008) (holding that bank to which mortgage note was payable, and which was in physical of possession the note, of even the note, it qualified had as the its ³holder´ though assigned

rights under the note to another entity); Oklahoma UCC §§3301, 3-305, and 1-201 (for the note to be enforced, the entity asserting the status of holder must be in physical possession of the instrument). 68. Defendant, MERS if it is the proper servicing agent for Plaintiff¶s note, has not properly communicated instructions to Plaintiff that it is the last entity to whom the Plaintiff have been instructed to make payments, and that it is still the holder of the note.

Page 19 of 25

69.

Defendant¶s cause of action is barred in whole or in part due to Defendant¶s violation of state and federal Truth in Lending Acts.

70.

Said violation, in addition to the fact that Plaintiff did not properly receive Notices Right to cancel, constitute violation of 15 U S C sec. 1635(a) and (b) and 12 CFR sec. 226.23(b) and are thus a legal basis for and legally extend Plaintiff right to exercise the remedy of rescission.

71.

Defendants assigned the Note and mortgage to parties who did not take instruments in good faith or without notice that the instruments were invalid or that Plaintiff had a claim in recoupment. Defendants and all of them are not holders in due course and are thus liable to Plaintiff individually, jointly and severally.

72.

On

information

and

belief as

and of

given an

that

the

consumer and of the a

credit transaction was an inter-temporal transaction with multiple creation the the assignments of a part aggregation a part REMIC of tranche the itself

predetermined and identifiable CMO, all defendants share in illegal loan; proceeds acted in transaction; to conspired deprive with the each other to defraud the Plaintiff out of the proceeds of concert wrongfully Plaintiff of his residence; acted in concert and conspiracy to essentially steal the Plaintiffs home and/or convert the Plaintiff¶s equivalent home value without in providing and Plaintiff conducted reasonable an illegal exchange;

enterprise within the meaning of RICO statute.

Page 20 of 25

73.

The Supreme Court found that the Plaintiff in a civil RICO action need establish only a criminal "violation" and not a criminal conviction. Further, the Court held that the Defendant need only have caused harm to the Plaintiff by the commission of a predicate offense in such a way as to constitute a "pattern of Racketeering activity." That is, the Plaintiff need not demonstrate that the Defendant is an organized crime figure, a mobster in the popular sense, or that the Plaintiff has suffered some type of special Racketeering injury; all that the Plaintiff must show is what the Statute specifically requires. The RICO Statute and the civil remedies for its violation are to be liberally construed to effect the congressional purpose as broadly formulated in the Statute. Sedima, SPRL v. Imrex Co., 473 US 479 (1985).

74.

On

information

and

belief

and

given

the

volume

of

residential loan transactions solicited and processed by the defendants, the Defendants have engaged in two of more instances of racketeering activity involving different victims but utilizing the same methods and means.

75.

Plaintiffs incorporate herein by reference the allegations made in paragraphs 1 through 74, inclusive, as though fully set forth herein. PREMISES CONSIDERED, YOUR PLAINTIFF PRAYS:

WHEREFORE, Plaintiffs having set forth the claims for relief against Defendants, respectfully pray that this Court grant the following relief against the Defendants:
Page 21 of 25

1. For exemplary and punitive damages; 2. Actual Economic and Non-Economic Damages; 4. For a declaration of the rights of the parties relative to Plaintiff¶s Home, including a declaration that Defendants have no enforceable lien against Plaintiff¶s Home; 5. For a preliminary injunction and permanent injunction enjoining all Defendants, their agents, assigns, and all person acting under, for, or in concert with them, from foreclosing on Plaintiff¶s Home or from conducting at trustee¶s sale or causing a trustee¶s sale to be conducted relative to Plaintiff¶s Home. 6. Cancellation of the sale and restitution of the home to the Plaintiffs; and 7. For damages as provided by statute; 8. For an Order enjoining Defendants from continuing to violate the statutes alleged herein; 9. For an Order, requiring Defendant to reinstate Plaintiff on title to his Property, and or a restraining order preventing Defendants and his, hers, or its agents, employees, officers, attorneys, and representatives from engaging in or performing any of the following acts: (i) offering, or advertising this property for sale and (ii) attempting to transfer title to this property and or (iii) holding any auction therefore;

Page 22 of 25

10. For such other and further relief as the court may deem just and proper. RESPECTFULLY SUBMITTED this _______day of _________, 2011. ALL RIGHTS RESERVED²WITHOUT PREJUDICE²WAIVING NONE _____________________________ Fredrick Smith c/o 7601 Broken Hickory Drive Walls, Mississippi 38680 Date ___________

AFFIDAVIT OF TRUTH

STATE OF TENNESSEE COUNTY OF SHELBY Fredrick Smith, plaintiff herein, makes oath that the facts stated in the above petition are true to the best of his knowledge and belief. _________________ Fredrick Smith

STATE OF TENNESSEE COUNTY OF SHELBY On this______day of ______, 2011, Personally appeared before me, Fredrick Smith, who on oath, sates that the contents of the foregoing are true to the best of his knowledge, information and belief. WITNESS my hand and seal at Memphis, Tennessee this date.

___________________ Notary Public

Page 23 of 25

FIAT TO: CLERK OF COURT Issue the Temporary Restraining order enjoining Defendants from proceeding with any action to evict Plaintiff from property notice located at c/o 7601 Broken Hickory on the real Walls, day Drive,

Mississippi 38680 as prayed for in this complaint and issue setting this matter for hearing this _____ of_________, 2011, at________a.m./p.m. _____________________________ Chancellor Date _______

CERTIFICATE OF SERVICE

I, FREDRICK SMITH, being the plaintiff herein named, hereby certify that on the ________ day of ___________, 2011, I timely served one copy of the plaintiff¶s NOTICE OF PENDENCY ACTION for civil docket No. _____________, to Defendant(s), addressed as shown below and mailed with correct postage affixed First Class Mail from a U.S. Postal Service mail drop:

Mortgage Electronic Registration Systems, Inc. 1818 Library Street, Suite 300 Reston, VA 20190 LEM ADAMS III 2001 Creek Cove Suite A Brandon, Mississippi 39042 WELLS FARGO N.A. 101 N. Phillips Avenue Sioux Falls, South Dakota, 57104 RECONTRUST COMPANY, N.A. 1800 Tapo Canyon Road, Page 24 of 25

Simi Valley, CA 93063 MORGAN STANLEY ABS CAPITAL I, INC. 1585 Broadway New York, New York 10036 WMC MORTGAGE CORP. P.O. Box 54089 LOS ANGLES, CA 90054-0089 American Home Mortgage Servicing, Inc. 1255 Route 70 # 12s Lakewood, NJ 08701-5900 Bank of America Home Loans 23631 Calabasas Rd, Calabasas, CA 91302

Page 25 of 25