I

]\ORTH CAROI,INA WAKECOLINTY

) ) )

IN THE GENERALCOURTOF JUSI]CE SUPERIOR COURTDIVISION I1CVS

GRAHAMA. CRISPIN.
Plaintiff,

) ) )

v. BAC HOMELOANS SERVICING, and LP; SUBSTITUTE TRUSTEE SERVICES, INC.,

Defendants.

) ) ) ) ) ) )
) )

COMPLAINT and APPLICATION TO ENJOTN F'ORECLOSURE SALE and MOTTONFOR PRELIMINARY INJUNCTION
Jury Trial Demanded

Plaintiff, complainingof Defendant, allegesand says:

THE PARTIES, JURISDICTION, AND VENUE 1. Plaintiff, GrahamA. Crispin, is a citizenand residentof Wake County. 2. Defendant, BAC Home Loans Serving,LP ("BAC"), is a Texascorporation.BAC services federallyrelatedmortgageloansin North Carolinaand Wake County. 3. Substitute TrusteeServices, Inc., is aNorth Carolinacorporationwith its principal placeof business Fayetteville. in 4. This is an applicationto enjoin the foreclosure saleof real property,a residence located atl07 CandyApple Court, Cury,NC ("the House"),pursuant G.S. 5 45-21.34. to The foreclosure proceeding the captionand file number: has In the matter of the foreclosure a Deedof Trust executed GrahamA. Crispin of by in the original amountof $156,000 datedSeptember 12,2006,recorded Book in 01270,Page00525,Wake CountyRegistrySubstitute TrusteeServices, Inc., SubstituteTrustee File no.: 10 SP 4429

-25. Thisaction alsoalleqes violations Section of theRealEstate of 6 Settlement Procedures ("RESPA"), U.S.C. 2605, G.S.$ 45-93and94. Act 12 and $
6. The Court hasjurisdictionover the federalRESPAclaimspursuant 12 u.S.C. to

52 6 1 4 .
7. The amountin controversy rn excess $ 10.000. rs of 8. Venue is in this Court in that this actionconcerns ownershipof the House,which the is locatedin Wake County. STATEMENT OF FACTS 9. Plaintiff and his wife purchased Housein 2001. the 10. In2002. Plaintiff refinanced Housewith a loanto USAA Federal the Bank. Savinss
, v

Plaintiff was the soleborroweron the loan. 11. In 2006,Plaintiff and his wife became prior to divorce,and Plaintiff legally separated became soleownerof the House. the 12.Plaintiff was told by his mortgage brokerthat he needed refinancethe loan due to to the divorce. 13. On September 12,2006,Plaintiffrefinanced Housepursuant a promissoD'note the to payable "America'sWholesale to Lender." 14. At the sametime. Plaintiff executed deedof trust on the House. The deedof trust a wasrecorded book I2I70, page 525,in the Wake CountyRegistry. at 15. The beneficiary the deedof trustwas "America'sWholesale of Lender,"described as a "CORPORATION organizedand existingunderthe laws of NEW YORK." 16. TrusteeServices Carolina,LLC. is namedas the trusteeof the deedof trust. of

-J-

17. The settlement statement showed"America's WholesaleLender" as the lender. 18. A search the websiteof the New York StateDepartment Stateshows of of "America's WholesaleLender,Inc.," as a New York corporation. 19. On informationand belief, basedon a search the websiteof the North Carolirra of Commissioner Banks,no entity by the nameof America'sWholesaleLenderis registered of with the Cclmmissioner Banks or notedby the Commissioner Banks as exemptfrom state of of regulation. 20. In the summerof 2009, Plaintiff receiveda "HomesaverPaymentForbearance Agreement" showingBAC Home Loans Servicing, L.P. ("BAC") as the servicerof his loan. 21. The documentation sentby BAC in connection with the proposedforbearance agreement showedtwo different loan numbers,one of which was not on any documentation Plaintiff had received. 22. Plaintiff wished to enterinto a forbearance agreement, he returnedthe proposed and agreement BAC with somechanges. to 23. One of thosechanges was moving the paymentdue dateto anothertime of the month. 24. Because Plaintiff s documentation showedAmerica's WholesaleLenderas his lender and the proposedforbearance agreement not mention that company,Plaintiff amended did numerous items in the proposedforbearance agrcement orderto avoid duplicateremedies in to the servicer that were in the loan documents rremedies the lender. as to 25. Because proposedforbearance the agreement showedtwo different loan numbers, I'laintiff alsoaskedfor assurance BAC was the servicerof his loan, informationaboutthe that

-4identity theholderof thenoteanddocumentation BAC's authoritv of of from theholder enter to into theforbearance agreement.
26. BAC did not respondto Plaintiff s proposalaboutthe forbearance agreement, it and did not provide any of the information and documentation Plaintiff requestedor address his concerns aboutthe identitv of the lender.

27. In July2010,Plaintiffreceived Noticeof Intention CollectAttorney "a to Fees" from thelaw firm of Hutchens, Senter Brittonin Fayetteville, & purporting act on behalfof either to BAC or Substitute Trustee Services. or both. Inc..
28. In response, Plaintiff senta request Hutchens, to Senter& Britton for information required be providedby Section6 of the federalRealEstate to Procedures Act, 12tJ.S.C.$ 2605, arrd N.C. Gen.Stat.$ 45-93. 29. BAC did not respondto this request, either. 30. Plaintiff still did not have sufficientinformationaboutthe holder of his note.anclin July 2010,he senta "Motion to Compel" to Hutchens, Senter& Britton. 31. Plaintiffls Motion also requested informationrequiredto be providedby Section6 of the federal RealEstate Procedures Act, 12 U.S.C,$ 2605,andN.C. Gen. Stat.$ 45-93. 32. In response the Motion, by letterdatedSeptember z}I},Hutchens, Senter to 10, & Brittonprovidedan "Affidavit of Default," datedAugust 23,2010, statingthat BAC was both the holderof Plaintiff s note and the servicer. 33. The HutchensSenter& Britten letteralso includeda copy of an assignment the of Deedof Trust from "Countrywide Home Loans,Inc.," to "CountrywideHome Loans Servicing,

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L.P.," but no informationon any relationship between theseentitiesof America's Wholesale Lender. 34. On July 30,2010, an "Appointment Substitute of Trustee"was filed at Book 14019. Page1555,in the Wake County Registry. This Cocument asserted that "BAC Home Loans Servicing, FKA CountrywideHome LoansServicing, LP LP" was the holder, and that BAC had appoirited Substitute TrusteeServices, Inc., as the substitute trusteeon Plaintiff s Deedof Trust. 35. The Notice of Foreclosure HearingvrasFiled on September 2010,statingthe holder 8, of the noteas "BAC Home Loans Servicing,LP FKA CountrywideHome Loans Servicing, LP," with an address Richardson, in Texas,and Substitute TrusteeServices, Inc., asthe trustee. 36. The foreclosure hearinghasbeencontinued numerous times, from September 8, 2010,to November3,2070, then to January 3,2011, thento March 16,2011, thento May 16, 2011,andthento August 1, 2011. 37. On two of theseoccasions, Plaintiff did not receiveany notice of continuance. Piaintiff and his counselappeared the appointedhour, only to find no hearingwould take place at and that the Clerk of Court of Wake County had no knowledgeabout the stafusof the hearing. On oneoccasion, paralegalfrom Hutchens, a Senter& Britton was at the clerk's office on other business, when askedto confirm the continLrance, did so with a note on the back of tris ffid he business card. On the other occasion, one from HutchensSenter& Britton was at the clerk's no office, no motion for continuance had beenfiled. and the clerk's office also had no knowledee of the status. 38. On otheroccasions where Plaintiff did receivenotice,it was because Plaintiff or his counselinitiated contactwith the foreclosureattcrney.

-639. At severaltimes, the foreclosure hearingwas postponed an indefinitedateto be to determined, with a hearingdateprovidedonly a few daysin advance.On someoccasions, even when a hearingdatewas set,when Plaintiff or his counselcontacted Hutchens,Senter& Britton shortly beforethe hearingto confirm the date,they were told it had been continued,eventhough noticehadnot beenprovided. 40. Meanwhile,as the foreclosure process was proceeding, Plaintiff persisted his in efforts to get a modification of the loan, but without success.His contactswent into a call center, and persons answeringthe telephonethere claimed not to have any authority or information. 4L Plaintiff repeatedly tried to get more informationaboutthe identity of the holderof his loan and the relationships, plus the nameof a personwho could assisthim in a modification of the loan. 42. On October73,2010, Plaintiff senta formal qualified written request BAC, asking, to amongotherthings,for the identity of the holderof the note and a personwith authorityto do a modification. 43. On November22,2010, Plaintiff received two responses from "Bank of America Home Loans," statingthat the owner of the note was not BAC, but FNMA (FannieMae), with an address Herndon.Va. in 44. The responses also stated"Natalie Nlendez, Foreclosure Specialist"in Jacksonville, Fla., asa'oservicer representative with the inforrnationand authorityto answerquestions and resolve issues." 45. Plaintiff called Ms. Mendez,who deniedhaving information and authorityto answer questions resolveissues. and

-746. OnNovember 17,2010, Plaintiffls counsel served discovery Hutchens, on Senter &
Britton, asking for the sameinformation as in the qualified written request,and information requiredin the foreclosure process. 47. In December2010, Hutchens,Senter Britton refusedto respondto the request, & statingthat discoverywas not availableandthey would not respond. 48. Also on November 17,20i0, Plaintitf s counsel served subpoena Bank of a on America, asking for documentationof the sameinformation as in the qualified written request, which is requiredin the foreclosure process. 49, Bank of America's response the subpoena to includedcopiesof documents provided to Plaintiff at the closingof his loan. 50. In response Plaintiff s requests, varioustimes,Hutchens,Senter& Britton sent to at Plaintiff additional copies of the Note and Deed of Trust, with no other information aboutthe identity of the holder, but with the loan numberblackedout. 51. On February ,201 1, Hutchens, 7 Senter Briton sentPlaintiff copiesof documents & purportingto show a chain of corporate namechanges,However,the only documentation regarding America's WholesaleLenderwas an internalmemorandum datedMay 25,1993, stating: The WholesaleDivision is now doing business o'America's as Wholesale Lender". CountrywideFunding Corporation filed a doing business Statement has As ("DBA") in everyjurisdiction wheresuchfilings arepennitted. The DBA allows Countrywide to do businessin eitherthe name "Countrywide Funding Corporation"or "America's Wholesale Lender." 52, No mentionwas madeof the New York corporation. 53. The entity whose"WholesaleDivision'o was referenced was not identified.

-854. A search the assumed of namerecordson the websiteof the Wake CountyRegister cll Deedsshowedno assumedname certificatefiied for "Countrywide Funding Corporation"or "America's Wholesale Lender" in Wake County, 55. A search the FannieMae Loan Lookup on www.fanniemae.com November24, on on 2010,revealed that FNMA was the holder of the loan. 56. A search the FannieMae Loan Lookup on www.fanniemae.com February on on 8, 2011,revealedthat FNMA was the holder of the loan. 57. A search the FannieMae Loan Lookup on www.fanniemae.com March 1, on on 2011,revealed that FNMA was not the holdero: the loan. 58. A search the FannieMae Loan Lookupon www.fanniemae.com June8,2010, on on revealed that FNMA was the holder of the loan. 59. Plaintiff sentanotherqualifiedwritten request, and on April 13,2011, Bank of Americaresponded that FNMA was the holder,andthat"NatalieMendez,Foreclosure Specialist" in Jacksonville, Fla., as a "servicerrepresentative with the informationand authorityto answer questions resolveissues." and 60. Ms. Mendez andthe otherpersons Plaintiff could reachby phoneasserted they that hard authorityto resolvethe issue. no 6I . On April 19, 2011,Piaintiff senta lefierto BAC, reciting the history of his attempts to get assistance modifuing the loan, and askingfor the nameof someone in who could assist. 62. Plaintiff s letter of April 19,201l,letter stated that it constituted noticepursuant to N.C. G.S. $ 45-94,that failure to respondmay resultin damages, including loss of his hometo foreclosure.

-963. Bank of America againresponded FNMA was the holder, and that "Natalie that Mendez,Foreclosure Specialist"in Jacksonville, Fla., as a "servicerrepresentative with the informationand authority to answerquestionsand resolveissues." 64. More than 30 dayshavepassed, the enor hasnot beencorrected. and 65. On May 4,201 1, Plaintiff s counsel sentan email to the foreclosure attorneyat Hutchens Senter& Britton, askingfor help in locatinga personwho could assistwith a loan modification. 66. The attorneyrespondedthat he would look into this, but he has not further responded, otherthan to provide the same800 numberfor the call center. 67. Despitenumerousrequests documentation the identity of the holder of his for of note,Plaintiff hasreceivedno documentation showingthe holder of his note as anyoneotherthan America'sWholesale Lender,the New York corporation. 68. Defendanthas provided no information or documentationshowing that the New York corporation, America's WholesaleLender,Inc., hasassigned note and deedof trust to any of the the partiesnow seekingto forecloseor any of their predecessors successors interest. or in 69. The foreclosure notice states that BAC is the holder. 70. The only affidavit of defaultprovidedto Plaintiff states that BAC is the holder. TL BAC has statedthat FNMA is the holder. 72. FNMA hasnot filed any foreclosure proceeding againstthe Home. 73. FNMA has not appointedany substitute trustee.

-1074 On information belief,thebeneficiary thedeed trust,theNew York and of of corporation, America's Wholesale Lender, Inc.,hasnot appointed substitute any trustee filed or anyforeclosure proceedings against Home. the 75. TheDeedof Trustis indexed theWakeCounty by Register Deeds of with MERS (thelvlortgage Electronic Registration System) thegrantee. as
76. MERS' websiteservicerlocatordoesnot show a curent loan for the address of Plaintiff s house.

FIRST CAUSE OF ACTION Action to enjoin mortgageon equitable grounds 77. The allegations paragraphs in 1-76are incorporated here. 78. Pursuant G.S. $ 45-21.34,Plaintiffrequests to that the foreclosure salecontemplated in 10 SP 4429be temporarilyand permanentiy enjoinedon the following bases: a. The "America's Wholesale Lender"identifiedin the documents providedto Plaintiff appears be an assumedname and not an entity with legal capacity and thus not to capableof being beneficiaryof the note and deedof trust that are the subject of the foreclosure, of takiag title to property, enforcing the note and deedof trust, or otherwisetaking legal action. b. The beneficiaryof the note and deedof trust, the New York corporation, America'sWholesale Lender,was not formeduntil 2008,after the deedof trust was executed in 2006. Thus,the deedof trust had no beneficiary" c. The beneficiaryof the note and deedof trust, America's WholesaleLender. Inc., doesnot claim a default and hasnot initiatedany foreclosure proceedings againstthe House.

-11d. None theentities of claiming bethebeneficiary thenote deed trust to of and of

have assignment, agency,or any other authorityfrom the holder of the note, the New york corporation, America's WholesaleLender,to taheany action. e. The entity claiming to be the holderin the foreclosure proceeding not the is holder. f. The entity claiming seeking foreclose to hasnot beenthe hotderduringthe pendency the foreclosure of proceeding. g. BAC is not the holder and hasno authorityto appoint a substitutetrusteeon the deedof trust. Thus, the substitutetrusteeseekingto foreclosehas no authority to do so. h. Despiterepeated requests documentation the identitl' of the holder, for of Defendants and their agentsand attorneyshave failed to provide any such documentation. i. Due to all of the above,thereis no valid chain of holdersor ownersof the note or beneficiaries the deedof trust to the entity seeking foreclose. of to j Due to the all of the above,Substitute TrusteeServices, Inc., lacksauthorityto

act in regardto the foreclosure proceedings. k. BAC and its representatives affiliates have not provided the information and requiredby federaland statelaw to be provided to Plaintiff, or that the information providedwas incorrect. l. Unfair and deceptive tradepractices the part of both Defendants, on including: (1) Institutingforeclosure proceedings the name of or as successors in in interestof a party that was never the holder of the note;

-12(2) In instituting foreclosure proceedings name or assuccessors in the of

in interest a nameof somethingwithout legal capacity hold the note or hold title to property. of to (3) Refusalto respond Plaintiff s reasonable to requests regardto the in "Homesaver PaymentForbearance Agreement." (4) Refusal to provide information requiredby statutecr pertinentto the process foreclosure beforethe clerk. (5) Refusalto provide the nameof a personwith information and authorityor otherwiseable to facilitate amodificationof the loan or forbearance agreement. (6) Repeatedcontinuarlces this matter without notice to Plaintiff, of causingPlaintiff and his counselto preparefor and appe at hearingsthat Defendants ar knew were not goingto be held. (7) Repeated continuances while failing to respondto ?laintiff s requests for forbearance modification; and other actionrs or described herein and to be shown at trial. (8) Repeatedcontinuances when Defendantsknew or shouldhaveknown they had no authority to forecloseon the House. (9) Otherwiseto be shown at the trial of this matter. 79. The rightsof the partieshavenot beenfixed pursuant G.S. $ 45-21.29A. to 80. Plaintiffls remedyat law is inadequate, unlessthe saleis enjoined,Plaintiff will and suffer irreparabledamage.

-1 3 SECONDCAUSEOF ACTION Violationof RESPASection 6 (BAC) 81. Theallegations paragraphs areincorporated in 1-80 here. 82, Section of RESPArequires 6 servicers provide to certain information borrowers to on receipt a qualifiedwrittenrequest of from thebonower. 83. Pursuant Section of RESPA, servicer to 6 the mustprovide'othe name telephone and number anindividualemployed or theofficeor department the sen'icer of by, of, who can provide assistance theborrower." to
84. BAC hasrepresented Plaintiff that it is the servicerof his loan. to 85. DespitePlaintiff s repeated requestsBAC hasfailed to provide the required informationfor any such individual. The only nameprovided,Natalie Mendez,hastold Plaintiff shecannotprovide suchassistance. 86. Plaintiff standsready,willing, and able,to enterinto a loan modificationor forbearance agreement sufficient to avoid foreclosure. 87. Plaintiff has beendamaged higherinterest by ratesand fees,costsof making request, attorney feesfor non-existent hearings, foreclosure by proceedings that could havebeenavoided by a loan modification, and other damages be proven at the trial of this matter. to

THIRD CAUSEOF ACTION Violationof N.C.Gen.Stat.$$ 45-93 (BAC) 88. Theallegations paragraphs areincorporated in 1-87 here.

-1489. G.S. 45-93requiresa servicerof a mortgage loan to respondto a borrower'srequest for information about a home loan accountby prrcvidinginformation that includes: "The identity, address, and other relevant information aboutthe currentholder, owner, or assignee of the loan,"and 'oThe telephone numberand mailing address a servicerrepresentative of with the informaticnand authorityto answerquestions resolvedisputes." and 90. BAC hasrepresented Plaintiff that it is the servicerof his loan, to 9I. DespitePlaintiff s repeated requests, BAC hasfailed to provide the required information for any servicerrepresentative with;he information and authoriti.'to answer questions resolvedisputes. The only nameprovided,Natalie Mendez,hastold Plaintiff she and doesnot have such information and authority. 92. Foreclosure proceedings havebeeninstitutedon the basisthat BAC is the holderof Plaintiff s note. If the informationprovidedby BAC to Plaintiff aboutthe identity of the holder of the noteis correct,then BAC is not the holderand hasno right to foreclose, 93. If BAC's information aboutthe identity of the hotderof the note is not correc.t, then RAC hasviolatedSection45-93. 94. The violation was intentional and the result of bad faith, basedorr repeated refusalto provide information over almost a year and other factorsto be shown at trial. 95. Plaintiff standsready,willing, and able,to enterinto a loan modificationor forbearance agreement sufficient to avoid foreclosure. 96. Plaintiff has beendamaged higherinterest by ratesand fees,costsof making request, attorney feesfor non-existent hearings, foreclosure by proceedings that could havebeenavoide4 by a loanmodification,and other damages be provenat the trial of this ma$ter. to

-1 5 FOURTH CAUSE OF ACTION Unfair and Deceptive Trade Practices 97, The allegations paragraphs in 1-96areincorporated here. 98, Defendants'businesses in or affectingcommerce. are 99, The actionsof both Defendants described hereinconstituteunfair and deceptive trade practices violationof N.C. Gen.Stat.$ 75-1.1. in 100. Plaintiff has beendamaged higherinterestratesand fees,costsof making by request, attorneyfeesfor non-existent hearings, foreclosure proceedings by that could havebeen avoidedby a loan modification,and otherdamages be prol'en at the trial of this matter. to

MOTION FOR PRELIMINARY INJUNCTION Pursuant the First Claim for Reliefand G.S.45-2L34, Plaintiff movesthe Courtfor a to preliminaryinjunction,enjoining BAC and Substitute TrusteeServices, Inc., irom proceeding with the foreclosure saleand otherwiseactionstoward foreclosure 10 SP 4429during the in pendency this action and from charginginterestin excessof the pre-defaultrate, penalties, of and othercostsand feesresultingfrom defaultand foreclosure during the pendencyof this action. In supportof this motion, Plaintiff showsthe Coun: 1. The allegations aboveare incorporated into this Motion by reference. 2. Plaintiff hasno adequate remedyat law, in that the salecontemplared the by foreclosure proceedings will result in loss of his home,the House. 3. If the foreclosure saleis not temporarilyenjoined,Plaintiff lvill be ineparably damaged the loss of his home and equityto foreclosure. by 4. Plaintiff will post a reasonable bond.

-1 6 Wrerefore, Plaintiffrespectfully moves theCourtenjoinBAC HomeLoans, that Inc.,and Substitute Trustee Services, andanyone Inc., acting theirbehalf on from proceeding 10Sp with 4429andthe foreclosure contemplated sale thereby until this actionis resolved, for such and otherandfurtherrelief asthe Courtmaydeem andproper. just

W:{EREFORE,Plaintiff praysthe Courr: 1. For all relief requested the Motion for PreliminaryInjunction. in 2. For compensatory damages an amountto be proven at trial. in 3. That the foreclosure salebe pennanently enjoined. 4. For trebledamages pursuant G.S.75-16. to 5. That all issuesof fact be tried by a jury. 6, That the costsof this action be taxedto Defendant. 7, For reasonable attorney feespursuant 12 U.S.C,$ 2605(f),N.C. Gen.Stat.g 45-94, to andN,C. Gen.Stat.$ 75-16.1. 8. For such other and fuither damages the Court deemsjust and proper. as

rhis MdayofJune, 2orr

eQLi_6&L7*g!+r,
CelieB. fuchardson N.C. StateBar no. 25506 Attorney for Plaintiff

Richardson Law Group P . O .B o x 2 5 8 5 Chapel Hi-I,NC 27515 919-932-7718

-17 VERIFICATION I amthe Plaintiff in this matter. Thefactsasserted the Complaint true,or where in are alleged information belief,I believe on and themto betrue.

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SWORN AND SUBSCzuBED TO BEFORE ME. This I ' )'' ' dayof June, 2011.
I / ' t t t '

,' '. -.'' / :"-. //',

Gralam A. Crispin '',,,,

,,,:"i ,1' '-* / /4 L=- -/ ' t-,)iii/' -"t' ,',' / o./

l*iotary Public My commission expires:10-26-14,

CEJE RfCl[F[NS'l B.
IOTARYR,a.JC ORANGE COUNTY, N.C.