Foreclosure Fraud Complaint Vs Wells Fargo

IN THE CHANCERY COURT FOR THE STATE OF TENNESSEE SIXTEENTH JUDICIAL DISTRICT, RUTHERFORD COUNTY
AT MURFREESBORO David B. Starkey 3624 Lascassas Pike Murfreesboro, TN., 37130 Plaintiff, Pro Se ) CASE NO: 13CV-26 ) ) Second Amended Complaint ) ) JURY TRIAL DEMANDED VS. ) ON ALL ISSUES SO ) TRIABLE WELLS FARGO BANK N.A. ) IKE MOSES (AGENT OF WELLS) ) WILSON AND ASSOCIATES, PLLC ) FEDERAL HOME LOAN ) MORTGAGE CORPORATION ) ) DOES 1-1000 INCLUSIVE ) 3624 LASCASSAS PIKE, ) MURFREESBORO, TN. 37130 ) _________________________________________________________ _________________________________________________________ 1. This Chancery Court has Jurisdiction and Venue over this matter. (T.C.A. 29-14-103 and T.C.A. 16-11-101) 2. At all relevant times, Plaintiff has been, and continues to be, a resident of the County of Rutherford, State of Tennessee, and is the title owner of the real property situated at 3624 LASCASSAS PIKE, MURFREESBORO, TN 37130 (Property). Plaintiff is a natural person and a resident of the State of Tennessee. 3. Defendant WELLS FARGO BANK N.A. (Wells) is and was, at all times material, a corporation organized in the State of Delaware doing business in the State of Tennessee county of Rutherford. Wells is and was, at all times material hereto, the alleged "loan originator" and "servicer" of the subject loan.
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4. Defendant IKE MOSES (Ike) is and was, at all times material the originating agent employed by Defendant WELLS FARGO BANK N.A. doing business in Rutherford County Tennessee and having his office at 3243 E. 35th St., St. Louis MO 63376. Defendant IKE MOSES is and was, at all times material hereto, the agent of the alleged "loan originator" of the subject loan. 5. Defendant, WILSON & ASSOCIATES, P.L.L.C (Wilson) is a Tennessee corporation, and acts as a Debt Collector and acting as a substitute trustee engaged in the business of conducting non-judicial foreclosures of real property in Rutherford County Tennessee. 6. Defendant FEDERAL HOME LOAN MORTGAGE CORPORATION (FHLMC), known as Freddie Mac, is a public government sponsored enterprise (GSE), headquartered in unincorporated Fairfax County, Virginia at 8200 Jones Branch Dr. Mc Lean, VA 22102-3110. FHLMC buys Promissory Notes and Deeds of Trust on the secondary market, pools them, and sells them as mortgage-backed securities (MBS) to investors on the open market. FHLMC at all times material hereto was purchasing Promissory Notes and Deeds of Trust with property located in Rutherford County Tennessee. FACTUAL ALLEGATIONS 7. Plaintiff makes no admissions unless expressly admitted herein. 8. Around May of 2007 Plaintiff responded to an online internet solicitation from Defendant Ike acting as agent for Defendant Wells that was offering Plaintiff a home loan from Defendant Wells. 9. Plaintiff was led to believe by Defendant Ike that he would be engaging in a mortgage loan transaction with Defendant Wells as the lender of funds on or about June 7, 2007.
10. All documents used by Defendant Ike to facilitate the purported home loan for Plaintiff were completed by Defendant Ike. 11. Upon information and belief Defendant Wells used Plaintiffs note as value" and then used a portion of the proceeds acquired to appear as a loan from Defendant Wells for the acquisition of Plaintiffs Property. Defendant Wells did not use their funds to facilitate the alleged loan and thereby intentionally misrepresented itself as the lender in the transaction. 12. The purported mortgage loan transaction was not a loan from Defendant Wells, but consisted merely of transfers and exchanges of credits amongst bookkeeping entries ultimately using funds in a large pool of funds provided by investors in Mortgage Backed Securities (MBS). 13. Said bookkeeping entries did not follow regulations for Generally Accepted Accounting Principles (GAAP). But used off balance sheet transactions. 14. The purported mortgage loan transaction with Defendant Wells was and is by information and belief part of a securitization scheme whereby investors in Mortgage Backed Securities (MBS) were the source of funds for Plaintiffs loan and not Defendant Wells.
15. Plaintiff denies there was a loan from Defendant Wells to him
as is alleged in Defendants unverified copies of alleged promissory note and Deed of Trust (DOT).
16. By information and belief Defendant Wells misrepresentation

of themselves as the lender and source of funds for Plaintiffs loan has led to the recording of a false DOT in the Rutherford County Property Records ultimately placing a cloud upon the Plaintiffs title to his property.
17. The purported loan transaction between Plaintiff and Defendant

Wells lacked any consideration from Wells.
18. By information and belief Defendant Wells is not the true lender for Plaintiffs purported loan transaction therefore , they are not the true beneficiary of any Promissory Note or Deed of Trust associated with Plaintiffs Propert y. 19. Plaintiff denies the alleged Note and the alleged DOT. The true lender was not identified and the Note was then securitized. Therefore the terms of the Loan reflect a transaction that did not occur. The true transaction is undocumented. 20. Plaintiff denies the alleged Note since it is not evidence of the actual transaction. 21. Plaintiff denies the alleged DOT because it secures the defective Note. 22. By information and belief Defendant Wells has recorded a fraudulent Deed of Trust Document in the property records of Rutherford County claiming to be the lender and therefore clouding the title to Plaintiffs Property. 23. Plaintiff never received an executed copy of the alleged promissory note or agreement that possesses Plaintiffs bona fide signature or a receipt for signing said note or a check in return for signing said note. 24. Defendant Wells has not established the validity of the alleged promissory note or its existence. 25. By information and belief Defendant Wells took Plaintiffs promissory note, materially altered it and then transferred it to Federal Home Loan Mortgage Corporation FHLMC (see Exhibits D & E). 26. By information and belief FHLMC securitized Plaintiffs loan placed it in a pool of notes and sold it as a Mortgage Backed Security (MBS).
27. Defendant Wells is not the holder in due course or the agent for the holder in due course of Plaintiffs promissory note. And cannot show through GAAP that they obtained Plaintiffs note by providing any compensation or consideration to Plaintiff. 28. Defendant Wells has not produced the original promissory note with Plaintiffs name on it and any alleged assignments for Plaintiff to examine despite numerous written requests from Plaintiff (see Exhibits A, C, N & O). 29. It is essential for the Plaintiff to establish that the entity that is demanding payment of a negotiable note, or to whom payment is made, is the duly qualified holder of the note. Plaintiff is exposed to the risk of double payment, or at least to the expense of litigation incurred to prevent duplicative satisfaction of the instrument. Plaintiff has a recognizable interest in demanding proof of the chain of title and the holder in due course of his promissory note. 30. Plaintiffs purported loan transaction was and is subject to undisclosed agreements to which Plaintiff was not a party, in violation of TCA Title 47 and Tennessee and Federal statutes. 31. Plaintiff denies that any default on above mentioned alleged loan exists. 32. By information and belief third party payments have been made on the obligation and money has changed hands. 33. No full accounting or proof of loss by any Defendant has been provided in support of the alleged default despite numerous requests by Plaintiff. (See Exhibits A, C, N and O)
34. August 02, 2012: Defendant Wells received the first of three Qualified Written Requests (QWR) from Plaintiff pursuant to the Real Estate Settlement Procedures Act (RESPA)12 U.S.C. 2605 and a Debt Validation Letter (DVL) pursuant to the Fair Debt Collection Practices Act (FDCPA). (Exhibit A)
35. Plaintiffs QWRs were an effort to obtain the principal balance claimed owed, an accounting, proof of loss, validation of the debt claimed and the Holder of Plaintiffs note concerning Plaintiffs property and Defendant Wells account #0073690109. 36. September 1, 2012: Wells improperly responded to the first QWR. (Exhibit AA) and informed Plaintiff that additional information may be had by calling their Subpoena Line.
37. Defendant Wells dishonored the statutory requests and provided no 20-day acknowledgement and only a partial and insufficient 60-day response to the QWR and DVL.
38. Defendant has produced no enforceable original note with any assignment or allonge proving up the chain of title. 39. April 19, 2013 The Department of Treasury Office of the Comptroller of Currency issued a letter to Defendant Wells and the other national banks issuing Operating standards for scheduled foreclosure sales (see Exhibit AAA). On page 2 under the heading of Minimum Pre-Foreclosure Sale Review Standards: 1. Is the loans default status accurate? 2. Does the servicer have and can demonstrate the appropriate legal authority to foreclose (documented assignments, note endorsements, and other necessary legal documentation, as applicable)? 40. Defendant Wells refuses to answer plaintiffs questions concerning any default and the principal balance claimed owed, an accounting, proof of loss, validation of the debt claimed and the Holder of Plaintiffs note concerning Plaintiffs property and Defendant Wells account #0073690109 (Exhibit A, C, N, O) Defendant Wells responded to Exhibit A by saying: plaintiffs questions were too broad.
41. Defendant Wells did send a purported true and exact photocopy of the alleged note (Exhibit B) in response to Plaintiffs 1st QWR. 42. Plaintiff denies that the alleged copy of the alleged note is a true and correct representation of plaintiffs original note. 43. September 19, 2012: Defendant Wells received a second QWR from Plaintiff again attempting to obtain the information requested pursuant to the above mentioned acts (Exhibit C). 44. On page 22 of Plaintiffs 2nd QWR, Dated September 19, 2012, under paragraph 1 of Default Provisions Plaintiff rescinded any and all power of attorney associated with the above referenced account # 708-0073690109 (See Exhibit C). 45. All questions not answered in the first QWR were asked again in the second QWR (Exhibit C) including the request for the alleged default accounting and the legal authority to foreclose or Owner and Holder in due course of the Plaintiffs promissory note. None of which was revealed by Defendant Wells in their partial response to Plaintiffs first QWR. 46. October 30, 2012: Plaintiff also received an improper response to his second QWR from Defendant Wells dated October 26, 2012 (Exhibit D). 47. Defendant Wells once again dishonored the statutory requests and provided no 20-day acknowledgement and only a partial and improper 60-day response to the QWR and DVL. 48. Defendant Wells partial response was dated far outside the twenty day response required by the above mentioned acts. 49. Plaintiff did not receive any answer to any of his questions about accounting, proof of loss or Owner and Holder in due course of his promissory note.
50. In Defendant Wells partial response to Plaintiffs second QWR Plaintiff was informed that Federal Home Loan Mortgage Corporation (FHLMC) or Freddie Mac was the investor for the alleged loan (see Exhibit D pg. 1 paragraph 2). 51. Research into the FHLMC website discovered that FHLMC claimed ownership of Plaintiffs mortgage (see Exhibit E).
52. It is essential for the Plaintiff to establish that the entity that is demanding payment of a negotiable note, or to whom payment is made, is the duly qualified holder of the note. Plaintiff is exposed to the risk of double payment, or at least to the expense of litigation incurred to prevent duplicative satisfaction of the instrument. These risks provide Plaintiff with a recognizable interest in demanding proof of the chain of title.
53. December 12, 2012: Plaintiff received a Notice of Trustees Sale (NTS) from Defendant Wilson (see Exhibit F). 54. In Wilsons NTS, Defendant Wilson claims: default has occurred, and Wilson was now appointed Successor Trustee. 55. In Wilsons NTS, Defendant Wilson stated that the entire indebtedness has been declared due and payable and that the Property would be sold January 9, 2013. 56. In NTS Wilson stated that they mailed Plaintiff a HB -3588 letter and that notice of sale has been inserted in the local paper on December 14th, 21st and 28th. 57. Plaintiff denies that Defendant Wilson provided him with a HB -3588 letter. 58. Plaintiff denies any default on the subject loan has occurred. 59. On page 22 of Plaintiffs 2nd QWR, Dated September 19, 2012, under paragraph 1 of Default Provisions Plaintiff rescinded any and all power of attorney associated with the above referenced account # 708-0073690109 (see Exhibit C).
60. Defendant Wells had no Power of Attorney to appoint a Successor Trustee to Plaintiffs DOT and no proof of default to do so. 61. December 17, 2012: Plaintiff filed an Affidavit of Notice of Revocation of Power of Attorney and Termination of Attorney in Fact (RPA) in the Rutherford County Tennessee property records at Book 1181, Page 1238 (see Exhibit G). 62. Affidavit of RPA was filed with regard to the Deed of Trust (DOT) recorded in Book 752 Page 2085 of the Rutherford County of Tennessee property records (See Exhibit H). 63. This Affidavit of RPA pertained to the Transfer of rights in the property and the illegal waivers of borrowers rights clauses on said DOT. a. Per Code of Federal Regulations 617.7010 Title 12 Banks and Banking Title PART 617 - BORROWERS RIGHTS-Subpart A - General Item (c), the borrower's written waiver must contain a statement that the borrower was represented by legal counsel in connection with execution of the waiver (see Exhibit I).
Plaintiff was not represented by legal counsel in any meeting with Defendants and there was no statement that the borrower was represented by legal counsel in connection with execution of any waivers on any paperwork in reference to the above mentioned transactions. 64. December 17, 2012: Defendant Wilson prepared and filed an Appointment of Successor Trustee (AST) in the Rutherford County of Tennessee property records at Book 1181, Page 1141 (see Exhibit J). 65. Because Defendant Wells has failed to, or cannot, provide any evidence that it has an identifiable interest of any kind in my Note, that it has the right to enforce my Note, or that it even
knows the identity of such a person (see Exhibit A, C, N, O), upon information and belief, I therefore deny that Defendant Wells has demonstrated any condition or circumstance that would have permitted it to initiate an appointment of a Successor Trustee or any other terms under my Promissory Note or Deed of Trust. 66. Upon information and belief, the alleged successor trustee did not use internal policies or procedures that would permit it to determine whether the person engaging it to initiate the foreclosure process under my Security Instrument actually is the Owner and Holder in Due Course of my Note or its duly appointed servant. 67. Defendant Wilson filed the AST (Exhibit J) after Plaintiff had filed his Affidavit of Revocation of Power of Attorney (Exhibit G) regarding the DOT (Exhibit H) referencing his property. And 3 months after plaintiff had originally rescinded the power of attorney through default provisions in his second QWR (Exhibit C page 22). 68. Defendant Wells has not verified that it was the lender in any transaction with Plaintiff. And according to the alleged DOT (Exhibit H pg. 13 #24) only the lender may appoint a successor trustee. 69. Plaintiff has made several attempts to determine the alleged lender status of Defendant Wells with regards to his note (see Exhibits A, C, N & O). 70. Defendant Wells claims to be the servicer of the note, not the Holder in due course, the Owner or the lender or the person entitled to enforce the note. 71. Defendant Wells does not have lender status or evidence of default or power of attorney to appoint Defendant Wilson to be a successor trustee.
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72. Defendant Wilson had no authority to file the fraudulent appointment of successor trustee in the Rutherford County land records. 73. By information and belief the trustee must act as a neutral figure and perform his duties properly, which prohibits him from acting as the agent of the alleged beneficiary. When the trustee is not given a copy of a properly endorsed note and a cognizable chain of the deed of trust, he is most assuredly not performing under his duties to the deed of trust. 74. Defendant Wilson was not legally appointed a successor trustee and Defendant Wells does not have lender status and therefore had no legal basis to appoint Defendant Wilson as successor trustee, issue any default, acceleration or notice of sale according to the Deed of Trust (see exhibit H). 75. The DOT (see Exhibit H) recorded in Rutherford County Record Book 752, Page 2097 paragraph 24: Substitute Trustee. Lender, at its option, may from time to time remove Trustee and appoint a successor trustee to any Trustee appointed hereunder by an instrument recorded in the county in which this Security Instrument is recorded. 76. AST was allegedly signed by one Carol Adams as Vice President Loan Documentation for Defendant Wells (see Exhibit J p2). 77. Plaintiff denies this signature to be a true signature of Carol Adams alleged Vice President Loan Documentation of Defendant Wells and also denies that Carol Adams was an employee of Defendant Wells at the time her signature was allegedly placed on the fraudulent AST. 78. By information and belief said Carol Adams has not worked for Defendant Wells since December 2010 (see Exhibit K p2).
79. Wells Fargo has been censured across the country and sued by all fifty State Attorney Generals for submitting false, fraudulent, forged and fabricated documents. This practice is pervasive in courts across the country. See the statement of Honorable Arthur M. Schack, New York State Supreme Court made before the US House of Representatives Committee on Oversight and Government Reform (Exhibit KK). 80. Defendant Wells has not confirmed verified or proved its lender status with authority to appoint a successor trustee (see Exhibits A, C, N and O). 81. By information and belief, the Appointment of Successor Trustee by Defendants Wells and Wilson is fraudulent and void. 82. December 21, 2012: Plaintiff recorded an Affidavit of Forgery (AF) at Book 1182, Page 3247 of the Rutherford County Tennessee property records with regard to Wilsons Appointment of Successor Trustee (see Exhibit L). 83. Plaintiff denies the truthfulness of the contents of Wilsons Appointment of Successor Trustee that was recorded December 17, 2012 at 9:00 am, in Record Book 1181, Page 1147, Official Records of Rutherford County, Tennessee (see Exhibit J) 84. Defendant Wells allegedly sold Plaintiffs note to FHLMC (see Exhibit D pg.1 para.2 and Exhibit E). 85. Defendant Wells failed to execute an assignment of Deed of Trust in the Rutherford County property records documenting the sale of Plaintiffs note to FHLMC or its effect upon the Deed of Trust further clouding Plaintiffs title to the subject property. 86. Wells Fargo Bank N.A., used funds from investors in MBS to obtain Plaintiffs Note simultaneously transferring ownership of that Note to FHLMC. Any rights Defendant Wells may have claimed under Plaintiffs Note and Deed of Trust were extinguished at that time.
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87. The Promissory note was sold/transferred and Defendant Wells could no longer be considered the lender. And in fact has not proved that it ever was the source of funds or (lender) for Plaintiffs home loan despite numerous requests from Plaintiff for that proof (Exhibit A, C, N, & O). 88. When a promissory note is sold the originating lender on the Promissory Note ceases to be the lender if it ever was. 89. When Defendant Wells Negotiated Plaintiffs note and assigned the note and DOT to FHLMC there was no longer a lender with a power of appointment under the DOT contract. 90. Defendant Wells allegedly sold Plaintiffs Note. Subsequent alleged assignees or holders are not Lenders; instead, they are purchasers if in fact they are truly a holder-in-due-course. 91. At the time Defendant Wilson was allegedly appointed as successor trustee it was not done by an entity that had the power to do so. 92. There are statutory violations in Defendant Wilsons notice of the trustees sale. Sale was advertised before trustee was legally appointed or recorded and no lender or beneficiary or agent of Defendant Wells could appoint a trustee. 93. There is no indication an authorized officer claiming power to substitute the Trustee ever signed or knew about this instrument. 94. Plaintiff requests that Carol Adams alleged Vice President of Defendant Wells witness her signature on the Appointment of Successor Trustee document. 95. AST is allegedly notarized by a North Carolina notary who claims that Carol Adams personally came before me this day and acknowledged that she is the Vice President Loan Documentation, of Wells Fargo Bank, N.A. (see Exhibit J pg. 2). No Drivers license or identification was presented.
96. Plaintiff denies the validity of the signature and notarization placed upon the AST and humbly requests that alleged notary Patricia A. Siewert witness her signature and testify to the presence of Carol Adams at the signing of the AST. 97. Wells Fargo Bank has been censured across the country and sued by all fifty State Attorney Generals for submitting false, fraudulent, forged and fabricated documents. 98. The United States of America Department of the Treasury Comptroller of the Currency issued a Consent Order (Exhibit LL) to Defendant Wells where they found (page 2 Article 1 Comptroller Findings #2 ) that Wells: a. filed or caused to be filed in state and federal courts affidavits executed by its employees or employees of third-party service providers making various assertions, such as ownership of the mortgage note and mortgage, the amount of the principal and interest due, and the fees and expenses chargeable to the borrower, in which the affiant represented that the assertions in the affidavit were made based on personal knowledge or based on a review by the affiant of the relevant books and records, when, in many cases, they were not based on such personal knowledge or review of the relevant books and records; b. filed or caused to be filed in state and federal courts, or in local land records offices, numerous affidavits or other mortgage-related documents that were not properly notarized, including those not signed or affirmed in the presence of a notary; c. litigated foreclosure proceedings and initiated nonjudicial foreclosure proceedings without always ensuring that either the promissory note or the mortgage document were properly endorsed or assigned and, if necessary, in the possession of the appropriate party at the appropriate time;
99. Plaintiff denies all aspects of the alleged Appointment of Successor Trustee filed in the Rutherford County Tennessee property records by Defendants Wells and Wilson. 100.December 21, 2012: Plaintiff filed a UCC financial statement registering his claim and securing his continued interest in the property and note registered at Book 1182, Page 3256 of the Rutherford County Tennessee property records (see Exhibit M). 101.December 23, 2012: Defendant Wells received Plaintiffs third QWR with questions regarding the Property, the holder of the note and full accounting of the alleged debt (see Exhibit N).This third QWR is recorded at Book 1181, Page 1242 of the Rutherford County Tennessee property records. Plaintiff requested for the third time information concerning the Owner and Holder in due course of his promissory note as well as an accounting and proof of loss regarding the alleged default regarding his property. 102.Defendant Wells has not responded to Plaintiffs 3rd QWR and has failed to prove that it is the Owner or Holder or an agent of the Owner or Holder in due course of Plaintiffs Promissory Note. 103.December 17, 2012: Plaintiff mailed a Notice of Dispute and a Demand for Validation and Proof of Claim (DVL) (See Exhibit O), to Defendant Wilson/debt collector in response to Wilsons Notice of Trustee Sale from December 12, 2012 (see Exhibit F) stating Plaintiff was in default and his property would be sold at auction January 9, 2013. DVL Notice (Exhibit O) was recorded in Rutherford County Tennessee property records at Book 1182 Page 3249 December 21, 2012 104.January 2, 2013: Plaintiff mailed a Notice of Trustee Obligations (NTO) to Defendants Wells, Wilson and Weiss (see Exhibit P). 105.NTO was recorded in Rutherford County Tennessee Property records at Book 1183 Page 1962 on December 26, 2012.
106.On page 2 of NTO Plaintiff again gave notice of rescinding the above referenced loan transaction with Defendant Wells. Defendants were again notified by certified mail, return receipt requested. 107.Plaintiff exercised his right to rescind the alleged loan transaction under the three day, three year, usury and general claims theories and causes of action. 108.January 2, 2013 Plaintiff sent a Notice of Rescission (NOR) to Defendants Wells, Wilson, and Weiss and to FHLMC (Exhibit Q). 109.NOR was recorded in the property records of Rutherford County Tennessee at Book 1185 Page 1000. 110.NOR also served as a Demand letter citing possible causes of action to be Appraisal Fraud, Usury, Common Law Fraud in the Inducement, Common Law Fraud in the Execution, Security Violation, Intentional Misrepresentation, Fair Debt Collections Practices Act, Federal Trade Commissions Safeguard Rule, TILA, RESPA and RICO. 111.January 3, 2013: Plaintiff received a deficient response to his DVL from Defendant Wilson which was dated December 31, 2012 (See Exhibit R). 112.Defendant Wilsons deficient Response did not indicate the amount of the alleged debt nor did it validate the alleged debt as required by the above referenced Acts. 113.Defendant Wilson simply stated that it appears that the debt is valid. (See Exhibit R Paragraph 1 lines 1&2) 114.Defendant Wilson also sent a purported true copy of the alleged Note in response to Plaintiffs DVL (see Exhibit S).
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115.Defendants Wells and Wilson have never proved foundation standing or authority to bring any action under Plaintiffs Promissory Note or Deed of Trust despite numerous attempts by Plaintiff to obtain Verification of the debt, proof of loss, Owner and Holder in due course of the Plaintiffs promissory Note. 116.Defendant Wells claims to be the servicer of the loan, and as such cannot institute or maintain any action under the Note or DOT without proper authority from the Owner and Holder in due course of the promissory note. 117.Defendant Wells refuses to explain the business relationships among the securitization parties, remaining silent on the subject, thereby denying and concealing the very existence of the parties, the agreements among them, and the substantial money that changed hands (Exhibits A, C, N, O). 118.Plaintiff has received conflicting representations as to the alleged creditors identity, and believes there exists a title defect or cloud on the title to his property. 119.Defendant Wells has not demonstrated actual loss or threatened injury as a consequence of any unverified alleged default. 120.Defendant Wells has benefitted financially from the loan transaction with Plaintiff. 121.Severance of the ownership and possession of the original note and DOT has occurred. 122.Plaintiff alleges that the original promissory note no longer exists and is invalid as it is based solely upon purported copies which have no force and effect. 123.Plaintiff affirmatively asserts that the documents proffered and actions of the parties are in fact part of a criminal joint venture in which Plaintiff was the victim.
124.Plaintiff denies that Defendant Wells and/or its agents have ever disclosed/proved the true beneficiary on any document or in any other media, oral or written in violation of TCA Title 47. 125.Plaintiff denies the validity of the deed of trust filed in the Rutherford County property records by Defendant Wells because of the absence of a true beneficiary causing a fatal defect in the instrument and ultimately clouding the title to Plaintiffs property. 126.Plaintiff denies Defendant Wells has any legal right to declare a default or acceleration or appoint a successor trustee or initiate a power of sale provision in any Deed of Trust associated with plaintiffs property. 127.Plaintiff denies that a substitute trustee was ever appointed by any person or entity authorized to do so. 128.Defendants have continued their collection efforts in spite of providing no information, disclosure or evidence of any kind establishing their purported rights to foreclose or collect against the Plaintiff. 129.Upon information and belief, I have no agreement with Defendants; they are owed nothing by me; and Defendants do not own or control any interest or right in my Promissory Note that permits any of them to enforce my Note in accordance with the constraints of TCA Title 47. Furthermore, these facts apply equally to any company for which Defendants might claim they are working for to enforce my DOT in any way shape or form. 130.Upon information and belief, my Note is not in default, I have received no presentment per the constraints of the TCA to the contrary, and I owe nothing to Defendants or any company they purport to be working for. 131.Upon information and belief, I owe nothing to Defendants; I have seen no evidence or presentment that any amount is still due under my Note. Furthermore, I maintain that the balance
due under my Note is not relevant to the controlling question of whether Defendants have any right by law to enforce my Note pursuant to the TCA. 132.Upon information and belief, I deny that any past transaction involving my Note or DOT created in Defendants a legal right to now make demands on me for payment related to my Note, declare my Note in default, or otherwise enforce my Note per the TCA, and Defendants have refused to provide genuine evidence to the contrary. Accordingly, I owe Defendants nothing, I owe nothing to whatever company Defendants may allege to be serving, and Defendants have no right to enforce my DOT when I owe nothing to it or whatever person for which it may be working. 133.Upon information and belief, I owe Defendants nothing; I owe nothing respecting my Note to any company for which Defendants might work; they have no right to enforce my Note pursuant to the TCA; and they have no right to trigger the power of sale under my DOT for the purpose of taking my home via foreclosure under a mistaken or fraudulent claim that they have the legal right to collect an unsatisfied obligation owed by me. 134.Upon information and belief, the threatened foreclosure is in violation of my rights because the power of sale pursuant to my DOT has not been initiated by the person entitled to enforce my Note pursuant to the TCA Title 47, or that persons servant; the alleged trustee did not receive instructions to commence this foreclosure from the person to whom the obligation of my Note is owed, or that persons servant; and I do not owe anything to the person for whose benefit the threatened foreclosure is allegedly being conducted. Accordingly, the threatened foreclosure violates the terms of my Note and DOT, and it violates Tennessees nonjudicial foreclosure law, which necessary requires application of the TCA regarding the issue of who has a right to enforce my Note.
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135.Upon information and belief, Defendants have refused to, or cannot, produce evidence that they have any right to enforce my Note, for itself or any other person, even though I requested that proof from Defendants. Accordingly, Defendants have admitted pursuant to the TCA that I owe it nothing, that it has no right or standing to make demands related to my Note, and that I did not dishonor my Note as a result of refusing to comply with Defendants unsupported and mistaken or fraudulent demands,. Furthermore, I maintain that, because I owe nothing to Defendants, or any company for which they work, they have no right to foreclose on my house because it can show no unsatisfied obligation that is secured by my DOT. 136.Defendants have failed or refused to comply with the requests I have made through my QWRs to it. It has failed or refused to produce genuine evidence establishing that it or any person it knows is the Owner and Holder in due course with the rights of an Owner of my Note. 137.Upon information and belief, I deny that Defendant Wells is the Owner and Holder in due course of my Note or a servant of that Owner following instructions issued by that Owner respecting my Note and Security Instrument. 138.Upon information and belief, Defendants have admitted that my Note is not in default, that I owe it nothing, and that I have not dishonored or breached my Note by refusing to comply with the demands they made on me. 139.Upon information and belief, Defendant Wells is not the real party in interest because it has no economic or beneficial interest in my Note and Security Instrument. 140.Defendant Wells lacks authority to discharge my obligation under my Note or to otherwise settle the dispute before this Court should settlement efforts be attempted during this lawsuit.
141.Defendant Wells is not the Owner and Holder in Due Course of my promissory Note or is it that Owners servant with respect to my Note and Security Instrument. 142.Two alleged true copies of my purported promissory note, as they were sent to me by Defendant Wells and Defendant Wilson in partial response to QWRs are attached as Exhibits B and S respectively hereto. They reflect no indorsements or allonges but, upon information and belief, my note has been sold, exchanged, traded assigned, or otherwise transferred since then. See the claim of ownership by Federal Home Loan Mortgage Corporation (FHLMC) at Exhibit E. 143.Upon information and belief, my Note has been sold, assigned, exchanged, traded, or otherwise transferred many times since its creation. 144.Upon information and belief, my Note is a negotiable instrument pursuant to Tennessees version of the Uniform Commercial Code TCA Title 47-3-104. As such, only the person qualified by TCA 47-3-301 has the right to enforce the Note, and necessarily the right to enforce my DOT, which is only incidental to my Note. 145.Defendants have failed to, or cannot, provide verifiable and complete information explaining how they acquired or obtained an interest of any kind in my Note, even though I requested such proof (Exhibits A, C, N, & O). Upon information and belief, therefore, I deny that Defendants have any interest in my Note, whether as owner, possessor, or person with a right to enforce my Note pursuant to TCA 47-3-301. 146.Defendants have refused to, or cannot, identify the person who has the right to enforce my Note pursuant to TCA 47-3-301,
even though I have requested such proof (Exhibit A, C, N and O). Upon information and belief, therefore, I deny that Defendants are an agent or representative of any person actually having the right to enforce my Note. 147.Defendants have failed to, or cannot, provide information regarding the balance, if any, due under my Note, even though I requested that information (Exhibits A, C, N, and O). I have received no information regarding the balance due, if any, under my Note from any person having demonstrated the right to enforce my note pursuant to the strictures of TCA 47. I therefore do not know if any amount is still due and I have not received any presentment respecting my Note, as defined by TCA 47- 3-501. Upon information and belief, therefore, I deny that any balance is due under the Note, and furthermore, I maintain that questions or answers about the amount still due, if any, under my Note have no bearing on the crucial legal issue of whether Defendants have any right to enforce any obligation under my Note. 148.Upon information and belief, I deny that any default exists under the Note or that the Note has been dishonored or breached pursuant to TCA 47-3-502 as a result of my having refused to comply with the unsupported claims of Defendants. Furthermore, I maintain that no discussion of default or dishonor bears on the question of law as to whether Defendants have any right to enforce my Note pursuant to TCA 47-3. 149.Defendants have failed to, or cannot, provide the chain of ownership and authority respecting my Note since its creation, including the circumstances and details of each alleged transfer, sale, or exchange, even though I requested same (Exhibits A, C, N and O). Upon information and belief, I therefore deny that Defendants have any legal interest in my Note, that I have any
obligation to them pursuant to my Note, or that it even knows a person with the right to enforce the Note. 150.Because Defendants have failed to, or cannot, provide any evidence that they have an identifiable interest of any kind in my Note, that it has the right to enforce my Note, or that it even knows the identity of such a person, upon information and belief, I therefore deny that Defendants have demonstrated any condition or circumstance that would have permitted them to initiate any action under the terms of my DOT. 151.TCA 47-3 requires anyone making demands under my Note to first prove a right, recognized under TCA 47-3, to enforce the Note. Defendants have failed to do that, and their failure, for whatever reason, is a tacit admission that it has no right to enforce my Note and that I do not owe anything to them or any company for which they are acting as servant. 152.Upon information and belief, the alleged trustee attempting to foreclose my home does not know the identity of the person authorized by TCA 47-3 to enforce my Note. 153.Upon information and belief, the alleged trustee was not appointed to that position by the owner/holder/beneficiary of the Note or its duly appointed agent, and, accordingly the alleged trustee has no authority to initiate or conduct a foreclosure pursuant to the terms of my DOT and Tennessee nonjudicial foreclosure law. 154.Upon information and belief, the alleged trustee has made no effort to verify the identity of the owner/holder of the Note and has therefore Breached its duty to that owner/holder and also to Plaintiff by commencing and conducting the foreclosure process.
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155.Upon information and belief, the alleged trustee initiated the threatened foreclosure for the purpose of delivering the foreclosure sale proceeds or the title to my home to a person other then the owner/holder of the note, contrary to the terms of the Note, the DOT and Tennessee nonjudicial foreclosure law. 156.Upon information and belief, my DOT does not authorize the alleged trustee to initiate a foreclosure of its own volition, and yet it received no instruction to do so form the owner/holder or its servant. Accordingly, no power of sale has been triggered, so any attempted foreclosure is not valid or authorized. 157.Upon information and belief, I owe no debt to the alleged trustee or whomever it claims to be serving. 158.Upon information and belief, the alleged trustee did not initiate the subject foreclosure pursuant to the terms of the DOT and the Note, and therefore is participating in a mistake or fraud respecting the foreclosure of my home. 159.Upon information and belief, the alleged trustee has violated the nonjudicial foreclosure statutes by having initiated a foreclosure that is not authorized by the DOT or the Note it secures; by having taken its instruction to commence the foreclosure from a person who is not the owner/holder/lender or the legal representative of such person ; by having commenced the subject foreclosure when, in fact, the Note served by the DOT is not in default or dishonored; and by having commenced the subject foreclosure, not for the benefit of the owner/holder, but instead for the purpose of delivering the foreclosure sale proceeds or title to the house to a person other than the owner/holder of the Note, in violation of Tennessee nonjudicial foreclosure law.
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160.Upon information and belief, I deny that Defendant Wells obtained possession of the physical Note via a voluntary transfer of all the interests in my Note from a person who at that time was the Owner and Holder in Due Course of my Note. 161.Upon information and belief, I deny that Defendant Wells has possession of the true physical Note, or even knows its whereabouts, and that it didnt have possession of the Note when it illegally commenced its foreclosure process and fraudulent appointment of successor trustee. 162.Upon information and belief, I deny that Defendant Wells can or is willing to produce the true Note for inspection during this lawsuit. 163.Upon information and belief, I deny having received notice that a default exists under my Note from a person who was at that time the Owner and Holder in Due Course of my Note or that Owners servant who was then following instruction of that Owner to so inform me. 164.Upon information and belief, never having received notice of default under my Note from the Owner and Holder in Due Course of my Note or its duly appointed servant, I deny that any condition exists under my Security Instrument that would trigger a power of sale or foreclosure of my Property. 165.Upon information and belief, never having received notice of default under my Note from the Owner and Holder in Due Course of my Note or its servant, I deny that any refusal on my part to make payments or to comply with any demand made by Defendants in any way evidences my dishonor of my Note, the creation of any delinquency, or a condition triggering any right to foreclose or use a power of sale under the Security Instrument.
166.Upon information and belief, I deny that my opponents ability to write demand letters and to make threats regarding my Note and Security Instrument establishes in any way that it has a right to enforce either. 167.Even though Defendants Wells and Wilson have admitted that they have no right to enforce my Note and Security Instrument, I nevertheless maintain that I have never received complete accounting information from the Owner and Holder in Due Course of my Note or its servant respecting the balance due, if any, on my Note. I have received no information about insurance proceeds, claim settlements, or indorsement warranty payments having been received or sought by the Owner and Holder in Due Course respecting my Note. Lacking information to the contrary, I deny that any balance is still owed regarding my Note. 168.Because Defendant Wells is not the Owner and Holder in Due Course of my Note or a servant of that Owner, I further deny that Defendants comments or questions about my Note elevate in the least its legal status or right to enforce my Note pursuant to the controlling law, i.e. Tennessee version of the Uniform Commercial Code, TCA Title 47. 169.Any interpretation of my Note that potentially subjects me to multiple claims regarding my Note was never intended and was never disclosed to me as being a possible result by Defendants Wells and Ike. I never knowingly intended to waive or disclaim my right to only have to pay the one person entitled to enforce my Note, and the Lender never discussed that possibility or asked me to make such a waiver or disclaimer. Any interpretation of my Note to the contrary would be a mistake, a violation of my fundamental rights, and not reflective of the intent and purpose of that agreement. Only the one true Owner
and Holder in Due Course of my Note as defined by the UCC and TCA Title 47, for a particular time has any right to enforce my Note, and that is not Defendants Wells or Wilson. 170.Any interpretation of my Security Instrument that would permit a person other than the Owner and Holder in Due Course of my Note to initiate and prosecute the foreclosure of my Property or appoint a successor trustee was never intended and was never disclosed or addressed by Defendants Wells and Ike as a possible result. Therefore, any such interpretation of the purpose or intent of that document would be mistake, invalid and inconsistent with my rights and any agreement I may have intended to make with the purported Lender. 171.Defendant Wells and Ike never disclosed or addressed that by executing its forms I would be construed to have relinquished my right to only pay my obligation to the person legally entitled to enforce it. That possibility was never mentioned by Defendant Wells or Ike, and I never knowingly agreed to any such possibility. Further, I was never asked to, nor did I agree to honor demands regarding my Note made by anyone who didnt prove the actual right by law to enforce my Note. Any assertion to the contrary by Defendants will be mistake or fraud, and inconsistent with any agreement I may have made with the undisclosed lender. 172.Upon information and belief, I have never knowingly agreed that any person other than the Owner and Holder in Due Course of my Note would have the right to foreclose my Property pursuant to the Security Instrument I gave as collateral for my Note. Defendants never addressed or disclosed the possibility that, by signing its Security Instrument form, I would be authorizing a person not entitled to enforce my Note, and not owed anything by me pursuant to my Note, to take my home. That was never the intent or approved purpose of the Security
Instrument. Any assertion to the contrary by Defendants will be mistake or fraud, as the facts to be revealed in this lawsuit will demonstrate, and inconsistent of any agreement I intended to make with the undisclosed Lender. 173.Defendants Wells and Ike prepared, provided, and required that I use the forms which became my purported Note and Security Instrument. Any ambiguity or vagueness within either document must be construed against Defendants Ike and Wells and its successors in order that my rights under those agreements be properly understood and applied. 174.Upon information and belief, I deny the power of sale pursuant to the Security Instrument was ever initiated by action of the Owner and Holder in Due Course of my Note. 175.Plaintiff denies that the original trustee ever resigned or was replaced. 176.Plaintiff denies that any substitute trustee ever became the successor to the original trustee. 177.Plaintiff denies that any Defendant has, in good faith or otherwise, ever acquired the right to sell the subject property or seek possession thereof. 178. Plaintiff denies that Defendant Wells was in fact the lender or creditor when the loan was originated. 179. Plaintiff denies that the Deed of Trust, Promissory note and other closing documents accurately memorialized the closing of the loan between Plaintiff and Defendants John Does 1-1000 who are now known to be unidentified investors who advanced money to Defendant Wells which acted as a mortgage broker
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180.Upon information and belief, the alleged trustee has never been instructed by the Owner and Holder in Due Course of my Note to initiate a foreclosure. 181.Upon information and belief, the alleged trustee does not know the identity of the Owner and Holder in Due Course of my Note, and, therefore, does not know the person authorized to issue instructions regarding the Security Instrument. 182.Upon information and belief, the alleged trustee doesnt use internal policies or procedures that would permit it to determine whether the person engaging it to initiate the foreclosure process under my Security Instrument actually is the Owner and Holder in Due Course of my Note or a duly appointed servant of that Owner. 183.Upon information and belief, the alleged trustee initiated these foreclosure procedures of its own volition in violation of the express terms of my Security Instrument and Tennessee foreclosure law. 184.Upon information and belief, the alleged trustee knows that public recording of documents does not ensure that the content is accurate, truthful or authorized by law. Accordingly, I deny that the alleged trustee acted, or is acting, in good faith to the extent it initiated and continues to conduct this foreclosure process alleging reliance on the fact that it can point to one or more documents which have been publicly recorded. 185.Upon information and belief, Defendant Wells lacks standing in this case, having no economic or beneficial interest in my Note, and no complete dominion over it, including no right to enforce my Note pursuant to the UCC and TCA Title 47.
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186.Even though Defendant Wells is listed as the Lender on the alleged Promissory Note, upon information and belief, my Note was sold one or more times to others and Defendant Wells no longer owns or has full dominion over my Note, including no right to enforce my Note per the UCC and TCA Title 47. 187.Tennessee law requires: (1) that original notes must be kept, (2) that original notes must returned to the borrower upon payment in full, (3) that original notes must be produced when the lender or its representative has demanded payment and the borrower requests to see proof of an original notes existence, and (4) that a lenders representative show proof of authority to demand payment when the borrower requests the lenders representative to do so. 188.Moreover, in the event a mortgage lender or its representative cannot prove that a Tennessee mortgage original note still exists, Tennessee law requires proof of certain things before a lost note will be deemed enforceable, just as the jurisdictions requiring judicial foreclosures do; and furthermore, Tennessee courts also require compliance with the Tennessee laws of trusts, assignments, and agency as they pertain to real estate cases. 189.Defendants, and all of them, are included in each and all of Plaintiffs allegations as and where applicable.
PETITION FOR VERIFICATION OF DEBT AND PROOF OF LOSS (For Defendants Wells, FHLMC, and Does)
190.Plaintiff hereby incorporates and alleges all of the facts stated hearin above, as though fully set forth at length hearin
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191.Plaintiff requests verification from Defendants Wells, FHLMC, and Does pursuant to TCA Title 47 in order to establish the true lender that can show the alleged amount of the alleged debt and proof of loss trough GAAP, check and wire transfers. 192.Plaintiff requests that Defendants produce The True Original Wet Ink Signature Promissory Note signed by Defendants Wells and FHLMC and the contracts involved in the transfer and sale of Plaintiffs note to any entity in association to the loan pursuant to TCA Title 47 and the UCC. 193.Defendant Wells and FHLMC to stipulate via affidavit that they are in fact a Creditor in this loan/security instrument. A Creditor needs to show true double entry accounting debits of the loss as a result of the issuance of the loan to Plaintiff according to Generally Accepted Accounting Principles (GAAP). 194.Plaintiff has reason to believe that Defendant Wells has sold his Promissory Note to FHLMC and FHLMC has sold it under a "mortgage backed securities instrument" to investors/Does under a pooling of interest who have purchased stocks. 195.If Defendants cannot produce proof of claim and proof of loss, they have no standing in this or any future controversy. 196.If Defendants are unable to produce proof of claim and proof of loss, Plaintiff prays the court to order the Defendants to stop all action against Plaintiff and grant rightful remedies due to Plaintiff.
PETITION FOR DECLARATORY JUDGEMENT AS TO HOLDER IN DUE COURSE OF PLAINTIFFS PROMISSORY NOTE (Regarding Defendants Wells, FHLMC, Does and the Holder in Due Course with Rights to Enforce the Note)
197.Plaintiff hereby incorporates and alleges all of the facts stated herein above, as though fully set forth at length herein. 198.Declaratory Judgment from the court is requested by Plaintiff to declare if Wells or FHLMC or Does 1-1000 are the Owner and legal holder in due course of the Plaintiffs Promissory Note with the rights of the holder to enforce Plaintiffs DOT with any action regarding Plaintiffs property at 3624 Lascassas Pike, Murfreesboro, TN., 37130 (Property) pursuant to the Tennessee version of the UCC (TCA Title 47). 199.Defendant Wilson alleges that Defendant Wells has initiated foreclosure proceedings on the Plaintiff with regards to the Property in its Notice of Trustee Sale. 200.Plaintiff is threatened with the loss of his residence, income, continued emotional distress and place of business if Wells is allowed to act as the holder in due course with the right to foreclose on Plaintiffs property. 201.Defendants have scheduled the sale of plaintiffs property. 202.There is a bona fide, actual, present, practical need for the declaration sought in that the Plaintiffs residence and place of business and only means of supporting his family is threatened with a foreclosure sale and eviction. 203.The Courts declaration deals with present ascertainable facts regarding the present controversy regarding Defendant Wells rights to enforce provisions pertaining to Plaintiffs promissory note and Deed of Trust pursuant to the UCC and TCA Title 47 and USC Title 18, Part 1, Chapter 101 2071. 204.If Defendant Wells cannot produce proof of claim in the form of the true original wet ink promissory note and proof of the right to enforce said note, they have no standing in this or any future controversy and the right of the Plaintiff to retain his property with all the privileges, power and immunity against the threat of Wells foreclosure will thereby be affirmed.
205.If Defendant Wells is permitted to proceed without proof of the legal standing to do so by production of the note and the right to enforce said note they will be permitted to convert the Plaintiffs property and monies. 206.Plaintiff has an actual, present, adverse and antagonistic interest in Defendant Wells claiming to be agent of the holder in due course of Plaintiffs note. He is threatened with the loss of his business and residence and means of his families support. 207.Plaintiff denies Defendant Wells is the Owner and Holder in due course or the agent of the Holder with the rights and privileges due the Holder. 208.TCA Title 47 requires Wells to produce the true original negotiable note in court when seeking recovery upon it or when asked as well as the proof of loss and right to enforce the note. 209.This requirement is drawn from TCA 47-3-301 and TCA 47-3308 (b). TCA 47-3-301 (i) requires that a party claiming to be a "holder" of a note (as Wells claims to be here), be in possession of the note in order to be entitled to enforce it. When that enforcement right is asserted in a court proceeding, Wells must then produce the true note in court. 210.The Tennessee Declaratory Judgment Act provides that: any person interested under a deed, will, written contract, or other writings constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations there under. 211.If Defendants are unable to produce proof of claim as Owner or Holder in due course or Agent of the Owner or Holder in due course with the rights of the holder of the original promissory
note, Plaintiff prays the court to make a declaratory judgment to that effect and order the Defendants to stop all action against Plaintiff and grant rightful remedies due to Plaintiff. PETITION FOR DECLARATORY JUDGEMENT REGARDING APPOINTMENT OF DEFENDANT WILSON AS SUCCESSOR TRUSTEE (RE: Defendant Wilson Trustee) 212.Plaintiff hereby incorporates and alleges all of the facts stated herein above, as though fully set forth at length herein. 213.Declaratory Judgment from the court is requested by Plaintiff to declare if Defendant Wilson has been legally appointed and therefore has legal standing to act as Successor Trustee to Plaintiffs DOT pertaining to Plaintiffs property at 3624 Lascassas Pike, Murfreesboro, TN., 37130 (Property). 214.Declaratory Judgment from the court is requested by Plaintiff to declare if Defendant Wilson has adhered to Tennessee statutes for the notice requirements to legally initiate a foreclosure action. 215.Defendant Wilson has initiated foreclosure proceedings on the Plaintiff with regards to the Property. 216.Plaintiff is threatened with the loss of his residence and place of business if Defendant Wilson is found to be the properly appointed successor trustee to Plaintiffs DOT with the power of sale provisions stipulated therein. 217.Defendant Wilson has threatened the sale of plaintiffs property. 218.There is a bona fide, actual, present, practical need for the declaration sought.
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219.The Courts declaration deals with present ascertainable facts regarding the present controversy regarding Defendant Wilsons appointment of successor trustee document filed in the Rutherford County Tennessee Property Records. 220.If Defendant Wilson has not been properly appointed as successor trustee they have not adhered to Tennessee statutes for the notice requirements to legally initiate a foreclosure action. 221.If Defendant Wilson is permitted to proceed without proof of the legal standing to do so by declaration of the court concerning the validity of the Appointment of successor Trustee Document filed by Wilson in the Rutherford County Property Records they will be permitted to convert the Plaintiffs property and monies. 222.Plaintiff has an actual, present, adverse and antagonistic interest in Defendant Wilson claiming to be the legally appointed successor trustee to plaintiffs DOT securing plaintiffs property. 223.Plaintiff denies Defendant Wilson is a legally appointed successor trustee to his DOT. 224.By information and belief the AST filed in the Rutherford County Property records on the surface looks genuine enough to qualify as having the apparent ability to fool most people. 225.This AST document significantly affects the Plaintiffs rights concerning his property concerning the foreclosure of his property and the threatened loss of his residence and business location. 226.The AST document allegedly gives Defendant Wilson the legal right to conduct a foreclosure sale of Plaintiffs real property and to execute the legal power of sale provisions outlined in the DOT.
227.By information and belief Defendant Wilson intended that the Plaintiff and the Rutherford County Clerk and the Tennessee Court regard the false AST as being genuine. 228.As a result of Defendant Wilsons admitted preparation of the alleged Forgery concerning their Appointment of Successor Trustee, Plaintiff has suffered general and special damages in an amount to be determined at trial. 229.The Tennessee Declaratory Judgment Act provides that: any person interested under a deed, will, written contract, or other writings constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations there under. 230.Plaintiff requests that the court make a declaratory judgment that Defendant Wilson has not been legally/properly appointed as successor trustee to the Plaintiffs DOT; that Defendant Wilson has not adhered to proper foreclosure statutes pertaining to notice of foreclosure and publication of foreclosure as well as to their role in preparing and filing fraudulent documents (the AST) in the Rutherford County Property Records. And to that effect and order the Defendant to stop all action against Plaintiff and grant rightful remedies due to Plaintiff. PETITION FOR DECLARATORY JUDGEMENT TO QUIET TITLE TO PLAINTIFFS PROPERTY (Against all Defendants) 231. Plaintiff hereby incorporates and alleges all of the facts stated herein above, as though fully set forth at length herein. 232.Plaintiff is and at all times herein mentioned the owner and/or entitled to possession of the property located at 3624 Lascassas Pike, Murfreesboro, TN., 37130.
233.The basis of Plaintiffs title is a continuing possession of said Property and continued interest through a UCC lien on the Note(exhibit M) and a QUITCLAIM DEED (Exhibit T) granting the above-described property in fee simple to the David B. Starkey Revocable Living Trust and to Plaintiff David B. Starkey. 234.The alleged note and deed of trust have been separated. The Note has been sold to Defendant FHLMC and subsequently to investors in Mortgage Backed Securites (Defendants Does 11000) and is therefore owned by shareholders of stocks. The alleged Deed of Trust that is recorded in the Rutherford County Property Records claims Wells Fargo as the lender/ beneficiary/ owner. This is fraudulent and a cloud on Plaintiffs Deed of Trust. 235.Plaintiff is informed and believes and on such information and belief alleges that Defendants and DOES 1-1000 and all persons claiming, by, through, or under such person, all persons unknown, claiming any legal or equitable right, title, estate, lien, or interest in the property described in the Complaint adverse to Plaintiffs' title thereto, claim an interest adverse to Plaintiff in the above-described property as adverse interest the holder of a deed of trust against the subject property. 236.A fraudulent DOT was recorded on June 11, 2007 in the Official Records of the County of Rutherford, State of Tennessee as document number 1501665. Some of the Defendants and unknown defendants, specifically those additionally designated as DOES1- 1000, inclusive claim interests in the property adverse to Plaintiffs as assignees and successors of Defendants. 237.Defendants Wells and Wilson have presented alleged true and exact copies of Plaintiffs Promissory Note and DOT that allude to a transaction that identifies Defendant Wells as the lender while in fact Defendant Wells was not the lender. Therefore the DOT is invalid due to the fact that it secures a fraudulent Note.
238.By information and belief Defendant Wells has caused to be filed in the Rutherford County Property records a false Deed of Trust document alleging them to be the lender of proceeds secured by plaintiffs property at 3624 Lascassas Pike, Murfreesboro, TN., 37130. 239.By information and belief Defendant FHLMC has claimed ownership of Plaintiffs Promissory note and Deed of Trust (See Exhibits D & E). 240.By information and belief Defendant FHLMC has placed Plaintiffs Note into a pool of MBS where investors (Defendants Does 1-1000) have purchased Plaintiffs Promissory Note and therefore his DOT. 241.Plaintiff is informed and believes and thereupon alleges that Defendants, and each of them, claim an interest in the property adverse to plaintiff herein. However, the claim of said Defendants are without any right whatsoever, and said Defendants have no legal or equitable right, claim, or interest in said property. 242.Regarding Plaintiffs Promissory Note, Plaintiff would show that the Promissory Note is not presumed to be enforceable, and that the Defendants have the minimum burden of proving its enforceability under T.C.A. 47-3-501 and perhaps have the greater burden of proving its enforceability under T.C.A. 47-3-309 if the note is missing. 243.Defendant Wells has admitted in writing that Wells has sold Plaintiffs note, but claims it still possesses the note, and still claims it has the right to make demand for payment under said note as the servicer for the holder of the note. 244.Though Plaintiffs have made repeated demands on Defendant Wells to exhibit the Promissory Note, and to present Plaintiff with reasonable evidence that Wells has the authority to make demands upon the Plaintiff if it does not own the note, both being required by T.C.A. 47-3-501(b)(2), Defendant Wells continually refuses to comply.
245.Plaintiff would show that because Defendant Wells refuses to comply with T.C.A. 47- 3-501(b)(2), Plaintiff is entitled to the relief provided to them pursuant to T.C.A. 47-3501(b)(3). They therefore request that this court enter an order determining that Plaintiff can and has refused to make payment on the note without dishonor, until such time as Defendant Wells exhibits the note as required by the statute and shows reasonable evidence it possesses the authority to make demand on the note owners behalf. 246.Moreover, should Defendant Wells be unable to exhibit the original Promissory Note as required by T.C.A. 47-3501(b)(2), because the first mortgage note has been lost or destroyed, Plaintiffs would again demand that before Defendant Wells be permitted to make further demand for payment upon the Plaintiff, that Defendant Wells first prove that the note is enforceable under T.C.A. 47-3-309(a) and give Plaintiff adequate protection under T.C.A. 47-3-309(b) before they are permitted to show authority to demand payment; and, Plaintiffs aver it is Defendant Wells burden to do so. 247.Should Defendant Wells be unable to exhibit the Promissory Note but nevertheless be able to meet its burden of proving the enforceability of the Promissory Note under T.C.A. 47-3309(a), and should Defendant Wells be able to meet its burden of showing the authority to continue to demand payment of the Plaintiffs, Plaintiffs still request the court to enter an order that Plaintiffs be given adequate protection against any loss Plaintiffs might have by reason of a claim of another person in accordance with T.C.A. 47-3-309(b). 248.Should Defendant Wells fail to produce the true original Promissory Note for Plaintiffs inspection, or should Defendant Wells fail to meet its burden of proving the enforceability of the Promissory Note, or should it fail to meet its burden of proving it has the authority to demand payment of the Plaintiff on said note, or should it fail to give any adequate protection the court requires, the Plaintiffs request this court issue a cease and desist order to Defendant Wells from further demanding payment of Plaintiffs on said note.
249.Plaintiff therefore seeks a declaration that the title to the subject property is vested in plaintiff alone and that the defendants herein, and each of them, be declared to have no estate, right, title or interest in the subject property and that said defendants, and each of them, be forever enjoined from asserting any estate, right, title or interest in the subject property adverse to plaintiff herein. 250.WHEREFORE, plaintiff prays judgment against defendants and each of them, as follows: 224.1- For an order compelling said Defendants, and each of them, to transfer legal title and possession of the subject property to Plaintiff herein 224.2- For a declaration and determination that Plaintiff is the rightful holder of title to the property and that Defendants herein, and each of them, be declared to have no estate, right, title or interest in said property. 224.3- For a judgment forever enjoining said defendants, and each of them, from claiming any estate, right, title or interest in the subject property 224.4- For such other and further relief as the court may deem proper
FIRST CAUSE OF ACTION TEMPORARY AND PERMANENT INJUNCTIVE RELIEF (Asserted against all Defendants) 251.Plaintiff hereby incorporates and alleges all of the facts stated herein above, as though fully set forth at length herein. 252.The Promissory Note and Deed of Trust in this action was obtained by fraud. Defendant Ike represented to Plaintiff that Defendant Wells was loaning its money to fund the purchase of
Plaintiffs property when in fact Defendant Wells did not loan any of its money but transferred funds from investors in Mortgage Backed Securities to fund the loan. 253.Defendant Ike, acting as Defendant Wells agent in purported loan acted fraudulently from Plaintiffs first encounter sometime around April of 2007 through the alleged loan closing and recording of the alleged DOT sometime in June of 2007. His actions consisted of falsifying and submitting loan applications and fraudulently representing Defendant Wells as a lender in the loan transaction and preparing all documentation/paperwork regarding said loan. 254.By information and belief Defendant Wells was not and is not the lender in any transaction regarding the Plaintiffs Promissory Note or Deed of Trust and has no right to initiate any power of sale or any other clause on the Plaintiffs Deed of Trust which was obtained through fraud. 255.By information and belief there has been a total failure of consideration from Defendant Wells with regard to Plaintiffs Promissory Note and Deed of Trust. Defendant Wells was not the lender in the transaction documented by Plaintiffs Promissory Note and Deed of Trust. 256.By information and belief the alleged debt secured by Plaintiffs Deed of Trust has been fully paid when it was purchased by FHLMC and also through subsequent Credit Default Swaps, Insurance Proceeds, TARP funds and other third party payments to be proved at trial. 257.This is an action for temporary and permanent injunctive relief to cease and halt all foreclosure activity by the Defendants; for temporary, preliminary injunctive relief during the pendency of this litigation and, upon prevailing on the merits, for permanent injunctive relief. 258.Plaintiff has a clear legal right to seek temporary and permanent injunctive relief as his interest in monies and real property is being jeopardized by the actions of the Defendants.
259.Plaintiffs Property not only serves as his residence but it is also his place of business. 260.If temporary relief is not granted to Plaintiff he will be faced with the loss of all income and means to support his family. 261.If injunctive relief is not granted to Plaintiff he will be faced with the loss of medical equipment and medical records covered under the Health Insurance Portability and Accountability Act. 262.Plaintiff is faced with the imminent likelihood of irreparable harm if the injunctive relief order is not issued. Among the imminent likelihood of irreparable harm Plaintiff is faced with if the Injunctive Relief order is not granted is: (A) Going out of business because the subject property is where the Plaintiff operates his place of business, see Sisay v. Smith, 2009 WL 361414 at *17 (6th Cir. 2009); (B) Financial ruin if Defendant Wells is allowed to foreclose on the subject property and evict Plaintiff from his place of business. see Performance Unlimited, Inc. v. Questar Publishers, Inc., 52 F.3d 1373, 1382 (6th Cir. 1995); (C) Competitive losses because the plaintiff will not be able to operate his business and compete with surrounding Chiropractic Physicians. see Basicomputer Corp., 973 F.2d at 511-12; and (D) Interference with customer relationships and the loss of goodwill with Plaintiffs patients due to the loss of a place to administer care to said patients and fulfill obligations to those patients who rely on Plaintiff for their care. 263.Defendants concerted and well-entrenched pattern of criminal activity specifically engaging to wrongfully and through fraudulent means take possession, custody, and control of certain monies and real property of the Plaintiff will cause
Plaintiff the loss of his property and place of business and only means of support. 264.Plaintiff has no adequate remedy at law to redress the harm arising out of the loss of his unique residential real property and place of business caused by the actions and conduct of the Defendants as set forth and identified hereinabove, and no adequate remedy at law to compel the turnover of the Plaintiffs property if wrongfully misappropriated by the Defendants as identified hereinabove. 265.Any alleged harm to the Defendants, which consist of one of the largest investment banks in the world and its related servicing entity, with the granting of this relief is greatly and substantially outweighed by the actual and irreparable harm to Plaintiff in the event that the relief requested herein is not granted. 266.The granting of the relief requested herein is in the public interest, as the consuming public of homeowners, including the Plaintiff, has been, is being, and will continue to be harmed by the fraudulent conduct of the Defendants (see Exhibits KK and LL). 267.Granting temporary relief will not contravene any substantial public interest. It will not affect the legitimate interests of any disinterested person. 268.Plaintiff has a substantial likelihood of success based on the allegations set forth above and below. The facts alleged by Plaintiff are not speculative but supported by numerous law suits throughout the country and by all fifty State Attorney Generals as well as documentation filed in the public property records of Rutherford County Tennessee and elsewhere. 269.WHEREFORE, Plaintiffs requests that this Court immediately grant the relief requested herein and immediately enter an Order for Temporary Injunctive Relief which commands that all foreclosure activity being engaged in by the Defendants be immediately enjoined for the pendency of this litigation
through trial and any appeal(s), and that permanent injunction forever barring the Defendants from engaging in any illegal or unlawful foreclosure activity be entered thereafter upon Plaintiffs demonstration of the ultimate facts alleged above by a preponderance of the admissible evidence.
SECOND CAUSE OF ACTION PRELIMINARY INJUNCTION (Asserted against all Defendants)
270.Plaintiffs hereby incorporate and allege all of the facts stated herein above, as though fully set forth at length herein. 271.To maintain the status quo between the parties while the matter is pending, Plaintiff seeks an order from the court to retain title to the subject real property and to remain in actual possession of the premises, by enjoining the Defendants and their agents from seeking to evict the Plaintiff from his home and place of business. 272.Based on the factual allegations alleged herein, the Plaintiff has a meritorious case against the defendants, and is likely to prevail at trial based on those factual allegations and proof of sustained damages, and they would suffer severe hardship if defendants are allowed to take action to foreclose and/or evict the Plaintiff while this contractual dispute is pending. 273.Wherefore, Plaintiff seeks an order from the court upon motion for a preliminary injunction to protect their interests in the subject real properties which form the basis of this action, as severe and irreparable harm will be suffered by the Plaintiff, should he lose his home and place of business, which is not only the basis for his claims against the defendants, but is also unique and irreplaceable.
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THIRD CAUSE OF ACTION LACK OF STANDING (Asserted Against Defendants Wells and FHLMC) 274.Plaintiff hereby incorporates and alleges all of the facts stated above, as though fully set forth at length herein. 275.Plaintiff requests that the Court enter an Order declaring that Defendant Wells lacks standing to foreclose on Plaintiffs residence or to enforce any provisions regarding Plaintiffs Deed of Trust. 276.Defendant does not have standing to seek foreclosure on Plaintiffs residence and office and real property. 277.Defendants have failed to provide foundation, admissible evidence or certified documentation that supports its assertion of standing or authority to act as Holder in Due Course or as Servicer appointed by a Holder in Due Course of Plaintiffs Promissory Note pursuant to TCA 47-3-501(b) (2). 278.Plaintiff hereby demands, pursuant to TCA 47-3-501(b)(2) that Defendant present and exhibit the original wet ink promissory note that relates to the Plaintiffs property for this Courts inspection and present to this Court reasonable evidence of their authority to exhibit and therefore enforce the instrument. 279.If Defendant refuses to present the instrument to this Court and its authority to enforce it then Defendant is in violation of TCA 47-3-501 and therefore has no standing in this case. 280.Defendant has not demonstrated that it is the holder in due course of Plaintiffs Promissory Note or that it is the agent of the holder in due course. 281.Plaintiff moves this Court to have Defendant stipulate and admit on and for the record whether or not they are the creditor and whether or not they are the holder in due course
or if they contend that they are acting on authority of the Holder in Due Course with the authority to enforce any clause on Plaintiffs DOT or Promissory Note. 282.If Defendant refuses to admit as to whether they are or are not the creditor and/or the holder in due course Plaintiff requests that the defendant be considered in contempt of court. 283.There is no evidence that Defendant Wells has been damaged. 284.There is no evidence of the existence or the identity of a true holder in due course. 285.The wrong party is named as the lender on the alleged note and the alleged deed of trust recorded in the Rutherford County Property records further clouding title to Plaintiffs property. 286.The alleged note has allegedly been transferred to FHLMC. 287.FHLMC has allegedly deposited said note in a securitization trust. 288.By transferring ownership and holding of the mortgage promissory note to certificate holders of a publicly traded security, the transfer negated the ability of the alleged lender, trustee or servicing agent to act as the owner or holder of the promissory note or its agent. 289.A DOT cannot be enforced on behalf of the owner and holder of a Promissory Note who does not actually own or hold the Promissory Note. 290.There is a difference between what is required to enforce a note and what is required to enforce a deed of trust in foreclosure. 291.The alleged note and deed of trust have been separated. The Note has been sold to FHLMC and subsequently to investors in Mortgage Backed Securities and is therefore owned by
shareholders in stocks. The alleged Deed of Trust that is Wells Fargo as the lender/ beneficiary/ owner. This is fraudulent and a cloud on Plaintiffs Deed of Trust. 292.The promissory note as a note remains enforceable if it has not been paid, but the deed of trust does not. 293.The note is no longer secured by the Property. 294.Wherefore, Plaintiff seeks an order from the court declaring that the Defendants lack standing to enforce any provision on the Plaintiffs DOT or to foreclose on the Plaintiffs real property. 295.Severe and irreparable harm through the loss of patients, the loss of reputation, the loss of income, emotional distress and family depression and anxiety will be suffered by the Plaintiff and his family, should he lose his home and place of business, which is not only the basis for his claims against the defendants, but is also unique and irreplaceable. FOURTH CAUSE OF ACTION COMMON LAW FRAUD IN THE INDUCEMENT (Asserted Against Defendants Ike and Wells) 296.Plaintiff hereby incorporates and alleges all of the facts stated herein above, as though fully set forth at length herein. 297.A special relationship existed between the Plaintiff and Defendant Ike who was acting as agent for Defendant Wells; where Plaintiff relied on the representations made by Defendant Ike to council and inform him. 298.Defendant Ike exercised his dominion and influence over Plaintiff due to his superior knowledge to that of the Plaintiff, and his access to material facts that were not accessible to the Plaintiff.
299.Defendant Ike knew that Plaintiff was placing special trust in him to counsel and inform him of matters of which Defendant Ike had superior knowledge to that of Plaintiff and his access to material facts that were not accessible to Plaintiff. 300.Defendant Wells knew that a special trust was given by Plaintiff to Defendant Ike as the agent of Defendant Wells due to Defendants superior knowledge and experience and special knowledge of material facts not available to Plaintiff. 301.Plaintiff reasonably relied to Plaintiffs detriment upon the representations and good faith estimates and the duty of Defendants Ike and Wells to act within their duties as fiduciaries and representatives of the Plaintiff in executing a loan that was vastly different from the loan the Plaintiff was promised or reasonably believed to be the case. 302.At all times and places through digital, written, or spoken conversation Defendants intent and subsequent action was to represent Defendant Wells as the lender in the purported loan transaction. These were intentional misrepresentations of a material fact that Defendants knew was false. 303.The representation that Defendant Wells was the lender was false. Defendant Wells was not the lender and did not use its funds to fund any loan to Plaintiff. 304.Defendant Wells aided by representations of its agent Defendant Ike was acting as a nominee for an undisclosed party in a securitization scheme. 305.The representations of Defendants were material to Plaintiffs decision to enter into the contract, and to sign the agreement. 306.At the time Defendants Wells and Ike made the representations Defendants knew the representations were false and misleading. 307.Defendants representations were made with the intent to deceive Plaintiff. 308.Defendants meant for Plaintiff to rely on the representation that it was lending Wells funds to purchase his home.
309.Plaintiff did not know the representations of Defendant Ike and Wells were misleading or false. 310.Plaintiff reasonably relied on the representations of Defendants Ike and Wells. 311.Plaintiffs reliance on the representations of Defendant Ike and Wells which is one of the largest financial institutions in the world with superior knowledge and experience in such matters was fully justified. 312.At all times relevant, Defendants possessed superior knowledge to that of the Plaintiff, and further had access to material facts that were not accessible to the Plaintiff regarding their nefarious scheme. 313.Plaintiff believed he was making a sound investment based on Defendants inflated appraisal and the representation that he could re-finance in the future and that Defendant Wells was the lender in the transaction. 314.Plaintiff has suffered economic, emotional and other damage as a result of his reliance on Defendants Ike and Wells fraudulent misrepresentations; among which are: loss of work and income from lost work, the clouding/slander of title to Plaintiffs property, not knowing the true lender or true owner that can issue satisfaction of the alleged debt or offer a loan modification and severe emotional strain upon Plaintiff and Plaintiffs relations with his wife and children and the cost of this action. 315.Defendant Wells did not use Defendants own money to fund the loan and refuses to provide Plaintiff with an accounting of the alleged loan transaction despite multiple Qualified Written Requests. 316.Upon information and belief Defendant Wells used money from an undisclosed source to fund the loan and was not the lender as fraudulently represented by Defendant Ike and Plaintiffs Promissory Note and Deed of Trust. 317.Defendants Ike and Wells have unclean hands.
318.Plaintiff would not have issued the promissory note to Defendant Wells at the request of Defendant Ike if he had known the true facts of the transaction. 319.Defendants made false and misleading representations and remained silent when they should have spoken. 320.Defendants falsely identified Defendant Wells as the lender in the closing documents. 321.The alleged note falsely identifies Defendant Wells as the lender. 322.The DOT falsely identifies Defendant Wells as the lender. 323.Defendant Wells was not the lender (the source of the money) but merely the nominee for an undisclosed principal. 324.Defendants concealed, refused and failed to disclose or explain or account for its relationship with and among the various securitization parties, remaining silent on the subject, thereby denying and concealing the very existence of the parties, the agreements among them, and the money that changed hands despite numerous written requests by Plaintiff to obtain said disclosures. 325.Defendants made false and misleading representations and remained silent when they should have spoken: 326.Defendants represented that they followed the Generally Accepted Accounting Principles (GAAP) required for exchanging funds for a promissory note. 327.Wells did not follow GAAP. 328.As a result of the Defendants fraudulent inducement concerning this contract, Plaintiff has suffered loss of income from work, the cost of bringing this action, loss of reputation, loss of patients, emotional damages to himself and his family as well as general and special damages in an amount to be determined at trial.
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FIFTH CAUSE OF ACTION NEGLIGENT MISREPRESENTATION (Asserted Against Defendants Ike and Wells) 329.Plaintiff hereby incorporates and alleges all of the facts stated herein above, as though fully set forth at length herein. 330.Plaintiff relied upon Defendants to guide him through the process of getting a home mortgage loan. This reliance began with Plaintiffs first contact with Defendant Ike in April of 2007. Plaintiff answered Defendants internet solicitation to Plaintiff requesting that he apply for a home loan from Defendant Wells where Defendant Wells was presented as the lender. 331.Defendant Ike and Defendant Wells falsely represented Defendant Wells as the lender of its funds to Plaintiff for a home loan beginning from Defendants first contact with Plaintiff due to Defendant Ikes internet solicitation (April 2007), through the application process up to the loan closing (June 2007). These false representations by Defendants were made over the internet, phone and mail and continue to this day by Defendant Wells. 332.A special relationship existed between the Plaintiff and Defendant Ike who was acting as agent for Defendant Wells; where Plaintiff relied on the representations made by Defendant Ike to council and inform him. This special relationship with Defendant Ike was warranted due to Defendants superior knowledge to that of the Plaintiff, and his access to material facts that were not accessible to the Plaintiff regarding the mortgage transaction. 333.The existence of that special relationship imposed upon Defendant Ike as agent for Defendant Wells a duty to fully and accurately disclose all pertinent information pertaining to the home loan allegedly made to Plaintiff. 334.That duty included, but was not limited to, true and correct information pertaining to the true lender and subsequent securitization of his note.
335.Defendant Ikes Duty was to inform Plaintiff of the true source of funds for his loan and the existence of Credit Default Swaps (CDS), Mortgage Backed Securities (MBS), default insurance and other third party payments. 336.Defendant Wells also had a duty to inform Plaintiff that it has no legal right to foreclose upon Plaintiffs mortgage since his promissory note became the basis for a Mortgage Backed Security (MBS) pool and ownership of the Note and DOT have been transferred to other owners, stockholders, trustees and servicers. 337.Defendants Ike and Wells failed to disclose this material information to the Plaintiff and omitted critical elements from any disclosures that were made. 338.Plaintiff reasonably relied upon the material misrepresentations of Defendants Ike and Wells to his detriment in choosing to proceed with the loan. 339.Plaintiff has suffered economic, emotional and other damage as a result of his reliance on Defendants Ike and Wells fraudulent misrepresentations; among which are: loss of work and income from lost work, the clouding/slander of title to Plaintiffs property, not knowing the true lender or true owner that can issue satisfaction of the alleged debt or offer a loan modification and severe emotional strain upon Plaintiff and Plaintiffs relations with his wife and children and the cost of this action. 340.As a result of Defendants Ike and Wells material misrepresentations concerning this contract, Plaintiff has suffered general and special damages in an amount to be determined at trial. SIXTH CAUSE OF ACTION UNJUST ENRICHMENT (Asserted Against Defendants Ike and Wells) 341.All of the above Paragraphs of this Complaint are hereby incorporated by reference as though fully set forth herein.
342.The Promissory Note and DOT/contract regarding Plaintiffs property are invalid due to the fraudulent actions of Defendants that are more fully alleged above. Therefore there never has been a valid agreement between Plaintiff and Defendants. 343.Plaintiff denies the alleged Promissory Note and DOT. 344.Plaintiff denies that Defendant Wells is the true servicer of Plaintiffs Promissory Note or Deed of Trust with any appointment or contract with the Holder in Due Course of Plaintiffs Promissory Note. 345.Through their conduct as described herein, Defendant Wells was unjustly enriched at the expense of Plaintiff by improperly accepting his down payment, assorted fees and all mortgage payments under false pretenses (acting as the lender or servicer duly appointed by the lender, owner or Holder in Due Course of Plaintiffs Promissory Note). And by ultimately attempting to foreclose upon the home and business of the Plaintiff without legal authority to do so. 346.By information and belief Defendant Wells was also unjustly enriched through the fraudulent collection of Credit Default Swaps, Mortgage Insurance and TARP funds pertaining to Plaintiffs Promissory Note and DOT. 347.To permit Defendant Wells to retain their unjust gains would be against equity and good conscience, and would ratify the illegal actions taken by the Defendant to the detriment of the Plaintiff and the true lender and holder in due course. 348.Here, in order to avoid the unjust enrichment of the Defendant, Defendant should be ordered to pay back to Plaintiff any and all monies unjustly received from him and taking into account proceeds from improperly accepted mortgage payments and the unjust securitization of Plaintiffs Promissory Note and its sale to stockholders of MBSs. The unjust enrichment of Defendant Wells includes but is not limited to default insurance policies, CDSs, Federal Bailouts or TARP monies, any and all third party payments.
349.By their wrongful acts and omissions, Defendant Wells and their agents have been unjustly enriched at the expense of the Plaintiff, and thus Plaintiff has been unjustly deprived. 350.By reason of the foregoing, Plaintiff seeks restitution from the Defendants, and an order of this Court disgorging all profits, benefits, and other compensation obtained by the Defendants from their wrongful conduct. 351.As a result of Defendants unjust enrichment concerning this contract, Plaintiff has suffered general and special damages in an amount to be determined at trial.
SEVENTH CAUSE OF ACTION (FRAUD IN THE CONVEYANCE) (Asserted Against Defendants Ike and Wells) 352.Plaintiff re-alleges and incorporates the allegations contained in the preceding paragraphs as though set forth at length herein. 353.Defendants Ike and Wells purportedly assigned Plaintiffs DOT, together with Plaintiffs Promissory Note to Defendant FHLMC on or about June 7, 2007. 354.Defendant Ike fraudulently acted and conspired with Defendant Wells to record a public document which would assign property rights without the right and privilege to do so, and in doing so knowingly conspired without the right and privilege to do so as beneficiary under the DOT, as the note had already been assigned to FHLMC. 355.Upon information and belief, Plaintiff therefore alleges that Defendant Wells did not pay any consideration for the "Promissory Note". Assuming Arguendo that if FHLMC purchased the "Promissory Note" in 2007 and the investors in FHLMC MBSs paid Defendant Wells, such assignment would constitute fraudulent conveyance.
356.All Defendants mentioned herein participated in the fraud by processing falsified assignments of the DOT. 357.Defendant Wells falsely represented to Plaintiff that they received valid assignment of the Deed of Trust and enforceable endorsement of the Promissory Note to procure payments from Plaintiff that they were not entitled to receive. 358.The representations made by said Defendant was in fact false. The true facts were that Defendant Wells could not act to assign the DOT. In fact, Defendant Wells had no interest in the Promissory Note and could not assign or enforce the Promissory Note. 359.Plaintiff, at the time these representations were made by Defendant Ike and Wells and at the time Plaintiff took the actions alleged herein, was ignorant of the falsity of the Defendants' representations and believed them to be true. In reliance on these representations, Plaintiff was induced to make payments to Defendant Wells when they were not entitled to such money. 360.The aforementioned conducts of the Defendants were intentional misrepresentation, deceit, or concealment of material fact known to the Defendants with the intention on the part of the Defendants of thereby depriving the Plaintiffs of property or legal rights or otherwise causing injury, and was despicable conduct that subjected the Plaintiff to a cruel and unjust hardship in conscious disregard of the Plaintiffs' rights, so as to justify an award of exemplary and punitive damages. 361.As a result of Defendants fraud in the conveyance concerning this contract, Plaintiff has suffered general and special damages in an amount to be determined at trial.
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EIGHTH CAUSE OF ACTION BREACH OF FIDUCIARY DUTY (Against Defendant Wilson) 362.All of the above Paragraphs of this Complaint are hereby incorporated by reference as though fully set forth herein. 363.By information and belief a trustee under a deed of trust owes fiduciary duties both to the lender and to the borrower [Murray v. Wells Fargo Home Mortg., 953 A. 2d 308 (D.C. 2008)]. 364.By information and belief (a fiduciary relationship exists between the trustee of a deed of trust and the debtor and creditor: the trustee is considered to be the agent of both debtor and creditor and should perform the duties of the trust with impartiality and integrity); Sloop v. London, 219 S.E.2d 502, 504, 505 (N.C. Ct. App. 1975). 365.Defendant and alleged Successor Trustee Wilson, has an obligation not only to whom they perceive as the lender, but to perform due diligence as to the status of the note and the true owner of the note and the true party in interest who might be entitled to enforce the note or mortgage. 366.The DOT is a three party instrument by definition - the trustor, beneficiary, and the trustee. 367.There is no provision in a deed of trust which allows the trustee to abrogate his duties, which is what Defendant Wilson is trying to do. 368.Defendant Wilson is not performing its obligations to the trust, it is acting as an agent for Defendant Wells and not a trustee. An agent may not foreclose. 369.Agents may not foreclose, only duly appointed trustees may. 370.The choice of words, i.e., 'trustee' over 'agent' in the alleged DOT would make it clear it is dual, that is, a deed of trust trustee owes a fiduciary to both the lender and the borrower.
371.In Lewis v Jordan Investment, Inc., 725 A.2d 4955 (1999), recognized the long-standing tenet that a trustee has a dual fiduciary duty. 372."A trustee of deeds has the fiduciary obligation to comply with the powers and duties of the trust instrument, as well as the applicable statute under the Tennessee Code. Perry v. Virginia Mortgage & Inv. Co., 412 A.2d 1194, 1197 (D.C. 1980) (citations omitted). 373.The court has long recognized that trustees owe fiduciary duties to both the Note holder and the Borrower. S&G Inv., Inc. v. Home Fed. Sav. & Loan Ass'n, 164 U.S. App. D.C. 263, 27071 n. 21, 505 F.2d 370, 377-78 n. 21 (1974)" 374.Defendant Wilson is acting as the 'agent' of the alleged lender and not as a true alleged successor trustee. 375.Defendant Wilson as alleged successor trustee is acting at the instance of an alleged lender with no real evidence that the alleged lender has the right to command default / foreclosure. 376.Not only is Defendant Wilson the alleged successor trustee breaching its fiduciary to the borrower, it is breaching its fiduciary to the true beneficiary by not ascertaining that it is acting at the behest of the proper party. 377.Defendant Wilson cannot be said to be acting within or meeting its fiduciary when it is not demanding and being provided evidence of the instigator's authority to foreclose. 378.The Plaintiff/borrower is an intended beneficiary of the terms of the trust. 379.Defendant Wilson (alleged successor trustee) is not performing its fiduciary - to anyone when it institutes power of sale proceedings with no evidence of the instigator's authority.
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380.Plaintiff has repeatedly requested from Defendant Wilson and Defendant Wells that the true holder of the promissory note with authority to collect on the alleged default be identified. 381.Defendant Wilson and Defendant Wells have not identified the true holder of the note nor have they validated any debt. 382.Plaintiff has filed notices of trustee obligation and affidavits of forgery and debt validation letters in the Rutherford County Property Records in an attempt to get Defendant Wilson to perform its fiduciary duty. 383.By information and belief Defendant Wilson is attempting to convert monies from the foreclosure of Plaintiffs property. 384.By information and belief Defendant Wilson will receive a percentage of the proceeds from any foreclosure they may perform on Plaintiffs Property. 385.Plaintiff has been injured by the actions of Defendant Wilson and their Breaches of Fiduciary Duty through loss of work and time spent on research to defend against Defendants actions. Much stress and anxiety due to Defendant Wilsons illegal actions have led to emotional problems with Plaintiff and his relations with his wife and children. 386.Plaintiff has been subjected to emotional duress due to the illegal actions and lack of Fiduciary Duty performed by Defendant Wilson the alleged successor trustee to plaintiffs DOT. 387.Plaintiff has been forced to neglect his place of business located in the subject property and has been faced with the loss of his residence and place of business as well as income to support his family. 388.Plaintiff has suffered deleterious effects to his credit rating and reputation due to Defendant Wilson reporting to credit bureaus and in the newspapers that he is in default and his property is in Foreclosure.
389.Defendant has brought damage upon Plaintiff in the form of disgrace by improperly listing his residence and place of business in the newspapers for a trustee sale. 390.Plaintiff has been damaged emotionally and financially due to Defendant Wilsons actions and threatened foreclosure. 391.As a result of Defendant Wilsons Breach of Fiduciary Duty concerning the DOT, Plaintiff has suffered general and special damages in an amount to be determined at trial. 392.WHEREFORE, Plaintiff prays for judgment against Defendants, jointly and severally, and each of them as follows and as set forth in each cause of action to be determined at trial: A. General and special damages according to proof; B. Punitive damages 'according to proof; C. Statutory relief under the specific statutes cited above; D. Restitution damages according to proof; E. Pre- and post-judgment interest; and F. Attorney fees as authorized and provided for by statute, contract or otherwise;
Authorization Representative All rights reserved UCC 1-308
-------------------------------------David B. Starkey
NOTARY State of Tennessee County of Rutherford
Subscribed and Affirmed and having been duly sworn to before me, a Notary Public for the said county and state as above noted, do hereby state that the living man, David B. Starkey, personally appeared before me and signed the foregoing instrument. Witness my hand and official seal this _______day of, May, 2013.
Notary Public Signature
My Commission Expires _____________________________
[SEAL]
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SERVED VIA U.S. CERTIFIED MAIL TO:
IKE MOSES 3243 E. 35th St., St. Louis MO 63376. Certified Mail #:_________________________ WILSON AND ASSOCIATES, P.L.L.C. Edward D. Russell Creekside Crossing III 8 Cadillac Drive, Suite 120 Brentwood, TN 37027 Certified Mail #: _______________________
WELLS FARGO BANK N.A. C/O Atty. Brittany B. Simpson Baker Donelson Center, Suite 800 211 Commerce Street Nashville, Tennessee 37201 Certified Mail #:____________________ FEDERAL HOME LOAN MORTGAGE CORPORATION 8200 Jones Branch Dr. Mc Lean, VA 22102-3110. Certified Mail #: _____________________
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Foreclosure Fraud Complaint Vs Wells Fargo

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Foreclosure Fraud Complaint Vs Wells Fargo

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IN THE CHANCERY COURT FOR THE STATE OF TENNESSEE SIXTEENTH JUDICIAL DISTRICT, RUTHERFORD COUNTY

16. By information and belief Defendant Wells misrepresentation

17. The purported loan transaction between Plaintiff and Defendant

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3624 2nd Amended Complaint 13CV-26

3624 2nd Amended Complaint 13CV-26

3624 2nd Amended Complaint 13CV-26

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3624 2nd Amended Complaint 13CV-26

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3624 2nd Amended Complaint 13CV-26

SECOND CAUSE OF ACTION PRELIMINARY INJUNCTION (Asserted against all Defendants)

3624 2nd Amended Complaint 13CV-26

3624 2nd Amended Complaint 13CV-26

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3624 2nd Amended Complaint 13CV-26

Authorization Representative All rights reserved UCC 1-308

NOTARY State of Tennessee County of Rutherford

Notary Public Signature

My Commission Expires _____________________________

3624 2nd Amended Complaint 13CV-26

SERVED VIA U.S. CERTIFIED MAIL TO:

3624 2nd Amended Complaint 13CV-26

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