Anda di halaman 1dari 55

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

Robert P. Marley, Plaintiff, V. Bank of America, N.A., BAC Home Loans Servicing LP, f/k/a Countrywide, now merged into Bank of America, N.A.(BANA) Bank of New York Mellon, Trustee of CWMBS CHL Mortgage Pass Through Certificate 2004-29, Mortgage Electronic Registration Systems Inc., Merscorp Inc., as Grantee John and Jane Does 1-1000 Unknown Agents, Employees, Purported, Putative Grantees, Owners of Security Interest In Plaintiffs Property, et al, Individually, Jointly and Severally, Defendants.

CIVIL ACTION NO: 1:10-CV-10885- GAO

FIRST VERIFIED SUPPLEMENTAL COMPLAINT The plaintiff, Robert P. Marley, respectfully submits this Supplemental Complaint in accord with F.R.Civ.P. Rule 15(d) to supplement the First Verified Amended Complaint filed on June 6, 2011. On reason for the supplement is to introduce the Affidavit of John OBrien, the Southern Essex County Registrar of Deeds as it relates to the False Assignment filed on July 13, 2011, marked as Exhibit 36 incorporated by reference herein, bringing to the attention of this Honorable Court, the Defendants Deceptive Acts.

INTRODUCTION 1) Plaintiff avers that the Defendants, all of them, have knowingly acted in concert

together and continually conspired to take Plaintiffs property in a continuing securitization scheme based on Deceptive Acts and Practices, Forgery, False and Misleading Documents and False and Misleading Statements since this action was initiated and subsequent to the filing of the First Verified Amended Complaint. 2) Plaintiff is supplementing certain Counts in the First Verified Amended

Complaint to include the False and Misleading assignment filed in the Registry of Deeds on July 13, 2011. Plaintiff brings additional Counts against all Defendants. Furthermore, Plaintiff claims the purported Mortgage Contract is Void or Voidable. The Plaintiff has discovered the Defendants intentionally concealed Material Facts that were germane to the subject matter of the Mortgage contract and the decision making process (Meeting of the Minds) prior to entering the purported Mortgage Contract which material facts Plaintiff needed to make an informed choices whether or not he would enter into said Contract. 3) The violations alleged herein arise from the same case in controversy and became

known, actionable and verifiable beginning in February 2011. Moreover, the contract claims are not and would not be barred pursuant to the Limitation of Actions, M.G.L. c. 260 12 provides: If a person liable to a personal action fraudulently conceals the cause of such action from the knowledge of the person entitled to bring it, the period prior to the discovery of his cause of action by the person so entitled shall be excluded in determining the time limited for the commencement of the action. 4) This Supplemental Pleading brings claims for violations that BANA intentionally

concealed from Plaintiff prior to, during, and after the consummation of the purported Mortgage Loan Contract and claims that arose subsequent to the commencement of this action and thus far
2

completes the complaint until formal discovery is ordered. Whereas, the Defendants in this case have refused to resolve this matter and continue on a path of skullduggery, albeit in light of the prima facia evidence submitted by Plaintiff, he now files this Supplemental Pleading. 5) There are various controlling documents that make up the securitized pools; they

are, inter alia: The POOLING AND SERVICING AGREEMENT (PSA)1 filed under oath with the Securities and Exchange Commission (SEC); The REGISTRATION STATEMENT (RS) filed under oath with the SEC; The PROSPECTUS SUPPLEMENT (PS) filed under oath with the SEC; The FREE WRITING PROSPECTUS (FWP) filed under oath with the SEC; The ISDA(R)International Swap Dealers Association, Inc. MASTER AGREEMENT (MA); The MORTGAGE LOAN PURCHASE AND ASSIGNMENT AGREEMENT (MLPAA); The SALE AND SERVICING AGREEMENT (SSA); The INDENTURE for the Trust Administrator and the Indentured Trustee (IND); The AMENDED AND RESTATED TRUST AGREEMENT (ARTA); The INDEMNIFICATION AND CONTRIBUTION AGREEMENT (ICA) and The UNDERWRITING AGREEMENT (UA). Plaintiff is in possession of all documents. 6) Above are the basic controlling TRUST documents created and governed under

New York Law that mandates how, the TRUST is structured and controlled, and mandates the duties and obligations for the Players of the TRUST. 7) Throughout these TRUST documents Plaintiffs purported Mortgage Loan (Note

and Mortgage), among others, are the target of assets at issue and discussed at length albeit, without Plaintiffs consent or knowledge or any disclosure in the lending process whatsoever as it relates to the Defendants scheme to glean a profit therefrom. 8) Whereas the Defendants did not have the Plaintiffs consent, one cannot logically

argue that the Plaintiff does not have an interest or right to marshal out the violations of the
1

http://www.sec.gov/Archives/edgar/data/906410/000090514805001084/efc5-0424_5640752v7ex991.txt

mandates set forth under New York Laws in these documents when in all these documents the entire scheme involves Plaintiffs purported mortgage and note. 9) Regardless of whether or not Plaintiff is a beneficial party to the TRUST, the

Defendants MUST adhere to their own TRUST Documents as required by New York Law, in that, any action to the contrary is void. 2 Bank of New York Mellon (BONY) was required to insure all their ducks were in order to insure the TRUST assets were truly assets of the TRUST and did not; and therefore, will never have the assets. 10) The Plaintiff is not suing to enforce the contracts of the corporations for their

Breach. He is merely pointing out the violation of those contracts to demonstrate no party herein has a claim in Plaintiff Mortgage Loan or Property since they failed to adhere to their own TRUST documents, IRS 860A-G. New York Law deems their actions void and therefore Plaintiff is entitled to an injunction against all parties who would now lay claim to Plaintiffs property. 11) However, Plaintiff has found at least one Court that has ruled Borrowers are a

third party beneficiary to the Trust. See Horace v. LaSalle Bank National, Circuit Court Russell County, Alabama Case No: CV-08-362. See, attached herewith marked as Exhibit _ incorporated by reference herein. The Court Order states in Part: Following hearing and review of all submissions from the parties the Court has come to two conclusions necessary for the disposition of this case: First,
2

New York Code - Estates, Powers and Trusts Article 7 7-2.4 Act of trustee in contravention of trust if the trust is expressed in the instrument creating the estate of the trustee, every sale, conveyance or other act of the trustee in contravention of the trust, except as authorized by this article and by any other provision of law, is void. PSA SECTION 10.03 Governing Law: THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.

the Court is surprised to the point of astonishment that the defendant trust (LaSalle Bank National Association) did not comply with the terms of its own Pooling and Servicing Agreement and further did not comply with New York Law in attempting to obtain assignment of plaintiff Horace's note and mortgage. Second, plaintiff Horace is a third party beneficiary of the Pooling and Servicing Agreement created by the defendant trust (LaSalle Bank National Association). Indeed without such Pooling and Servicing Agreements, plaintiff Horace and other mortgagors similarly situated would never have been able to obtain financing. 12) Plaintiff alleges that the Defendants named herein, officers, agents, employees

and subsidiaries of Bank of America, collectively (BANA), have attempted by deceptive acts and practices, fraud, forgery, uttering, falsifying Public Records and Intentional Misrepresentation, to deceptively deprive, with malice and reckless disregard for Plaintiffs welfare, in a continuing scheme, and without legal authority, to deprive Plaintiff of his property and have all knowingly and willfully aided and abetted each other to facilitate a crime under M.G.L. c. 266 35A, 3 G.L. c.267 1, G.L. c. 267 5, and as such have violated M.G.L. c. 93A 2 & 9. 13) Any allegations about acts of any corporate or other business Defendants means

that the corporation or other business did the alleged acts through its officers, directors, employees, agents and/or representatives while they were acting within the actual or apparent scope of their authority. 14) At all relevant times, each Defendant committed acts, caused or directed others to

commit the acts, or permitted others to commit the acts alleged in this Pleading; additionally,
3

G.L. c. 266 35A (b)(4) files or causes to be filed with a registrar of deeds any document that contains a material statement that is false or a material omission, knowing such document to contain a material statement that is false or a material omission, shall be punished by imprisonment in the state prison for not more than 5 years or by imprisonment in the house of correction for not more than 2 and one-half years or by a fine of not more than $10,000 in the case of a natural person or not more than $100,000 in the case of any other person, or by both such fine and imprisonment. Any person who engages in a pattern of residential mortgage fraud shall be punished by imprisonment in the state prison for not more than 15 years or by a fine of not more than $50,000, in the case of a natural person, or not more than $500,000 in the case of any other person, or by both such fine and imprisonment.

some of the Defendants acted as the agent for other Defendants, and all of the Defendants acted within the scope of their agency as if acting as the agent of another. 15) Knowing or realizing that other Defendants were engaging in or planning to

engage in unlawful conduct, each Defendant nevertheless facilitated the commission of those unlawful acts. 16) Each Defendant intended to and did encourage, facilitate or assist in the

commission of the unlawful acts, and thereby aided and abetted the other Defendants in the unlawful conduct. 17) All Defendants engaged in continuous and multiple unfair and deceptive trade

practices, fraud and misrepresentations that affected interstate commerce and proximately caused the herein injuries to the Plaintiff. 18) 12F states: As used in this section the following words shall, unless the context requires otherwise, have the following meanings: Organization, a corporation, government or governmental subdivision or agency, trust, estate, partnership, cooperative, or association. Person related to, with respect to an individual means (a) the spouse of the individual, (b) a brother, brother-in-law, sister, or sister-in-law of the individual, (c) an ancestor or lineal descendant of the individual or his spouse, and (d) any other relative, by blood or marriage, of the individual or his spouse who shares the same home with the individual. Person related to, with respect to an organization means (a) a person directly or indirectly controlling, controlled by or under common control with the organization, (b) an officer or director of the organization or a person performing similar functions with respect to the organization or to a person related to the organization, (c) the spouse of a person related to the organization, and (d) a relative by blood or marriage of a person related to the organization who shares the same home with him. Creditors in consumer loan transactions; defenses of borrower: M.G.L. c. 255

A creditor in consumer loan transactions shall be subject to all of the defenses of the borrower arising from the consumer sale or lease for which the proceeds of the loan are used, if the creditor knowingly participated in or was directly connected with the consumer sale or lease transaction. Without limiting the scope of the preceding paragraph, a creditor shall be deemed to have knowingly participated in or to have been directly connected with a consumer sale or lease transaction if: (a) he was a person related to the seller or lessor; (b) the seller or lessor prepared documents used in connection with the loan; (c) the creditor supplied forms to the seller or lessor which were used by the consumer in obtaining the loan; (d) the creditor was specifically recommended by the seller or lessor to the borrower and made two or more loans in any calendar year, the proceeds of which are used in transactions with the same seller or lessor, or with a person related to the same seller or lessor; or (e) the creditor was the issuer of a credit card which may be used by the consumer in the sale or lease transaction as a result of a prior agreement between the issuer and the seller or lessor.

JURISDICTION AND VENUE 19) See, First Verified Amended Complaint. FACTUAL ALLEGATIONS I. The Mortgage Contract is Void or Voidable in that the Mortgage Contract is Uncertain, Not Mutual, Misleading, Unfair, Unequal, and Unjust, Open to Reasonable Doubt, Fraudulent and Misrepresented the TRUE Nature of the Purported Loan and therefore Fraud in the Factum and Fraud in the Inducement and Lacks Privity

20)

The allegations made herein are in addition to and incorporated by reference into

the First Verified Amended Complaint date June 6, 2011 and vice versa. Liability attaches to all agency Defendants, officers, agents and employees. 21) On September 30, 2010, Plaintiff sent Defendants Counsel, Neil Raphael, an e-

mail and attached a copy of the Acts of 2010 Chapter 258, An Act Relative to Foreclosure, enacted on August 7, 2010 and signed into law by the Governor on August 17, 2010 as
7

emergency legislation putting all on notice of said Act. See, Letter attached herewith marked as Exhibit 37 incorporated by reference herein as though fully set forth hereat. 22) Bank of America has acquired all Players, companies and corporations in this

action, i.e. Countrywide Financial, Countrywide Home Loans Inc., Countrywide Home loan Servicing LP, BAC Home Loans Servicing LP, CWMBS Inc., and have assumed all their liability and all references to the Bank of America entities will be referred to for Specificity, as BANA as all entities are one and the same. 23) On December 3, 2004, Plaintiff purportedly entered into a Mortgage Loan

Contact with Omega Mortgage Corp (Omega) an agent (loan seller) for BANA. 24) The Mortgage, at P.7 20 States the note. can be sold one or more times..

Plaintiff alleges this is a deceptive statement because BANA had already made the deal to securitize the loan prior to Plaintiff entering into the contract and that statement should not have been discretionary but determinative and stated, The Note [S]hall be Sold to BONY and turned into a Certificate sold around the globe. 25) On December 3, 2004, Plaintiffs purported Mortgage loan was immediately

purportedly sold and securitized after the closing by (BANA) and the loan was placed into a Trust, CWMBS CHL Pass Through Certificate 2004-29 (TRUST) created by the terms set forth inter alia, in a Pooling and Servicing Agreement (PSA) dated December 1, 2004. See TRUST Deal Data Exhibit 3-1 attached to the First Verified Amended Complaint. 26) Plaintiff states that in a telephone conversation on March 22, 2011, he asked

Denny Bey, President and CEO of Omega Mortgage Corp, if Omega had any interest whatsoever in Plaintiffs Mortgage Loan or property at issue herein; Denny Bey stated Omega, had no stake or claims in Plaintiffs property or the loan at issue.

27)

The Purported Mortgage states that, MERS is a separate corporation that is

acting solely as a nominee for Lender and Lenders successors and assigns. MERS is the Mortgagee under the security instrument. Plaintiff still does not understand what that statement means. 28) The Purported Mortgage then states that, Lender is Omega Mortgage Corp.

However, Omega was an agent of BANA. See UCC Contracts attached to Letter to the Court dated September 26, 2011.4 29) Plaintiff alleges that BANA made this language deliberately deceptive and

confusing and that a Mortgagee is one who lends money or the creditor (Blacks Law). 30) Plaintiff alleges that it is impossible for Omega to be the lender and MERS to be

the Mortgagee whereas MERS lent nothing in this purported deal. Logically, MERS cannot be both, the mortgagee and nominee, the (Principal and Agent). 31) Plaintiff alleges the BANA knew before the purported Mortgage Contract was

entered into they had already made a side deal prior to December 3, 2004 to entangle the Plaintiffs Mortgage Loan and Property in their doomed securitization scheme yet did not disclose and deceptively omitted this Material Fact from the Mortgage Contract and intentionally concealed these Facts from the Plaintiff.5 32) Plaintiff alleges the reason MERS is named in the purported Mortgage is that, all

loans that were going to be securitized by BANA, had to name MERS in the Document in order that it fit within the scheme of the Undisclosed FACT that the Loan was to be securitized and therefore the undisclosed third parties would remain concealed in the Purported Mortgage

See, http://corp.sec.state.ma.us/corp/CorpSearch/get_pdf.asp?pdftype=.pdf http://corp.sec.state.ma.us/corp/CorpSearch/get_pdf.asp?pdftype=.pdf 5 See, PSA, the TRUST was formed on December 1, 2004 and Plaintiffs purported loan was entered into on December 3, 2004.

Contract and BANA could control their scheme and conceal the true deal from the Plaintiff and the Public view in the Fortress that is MERS. 33) Plaintiff alleges that the mere FACT there is a MIN number on the Purported

Mortgage Contract6 is evidence that prior to entering the purported Contract, BANA knew the loan would be securitized yet failed to disclose this Material Fact to the Plaintiff. 34) Plaintiff alleges that these Material Facts were not disclosed to the Plaintiff and

intentionally concealed by BANA during the lending process, and the Mortgage Contract is absent of any such language of this Material Fact. 35) Plaintiff alleges BANA used Omega as a straw to pedal their toxic loans for the

sole purposes of filling Pooled Assets through their securitization chain to generate servicing fees among others and therefore, the true Parties (certificate holders) to the contract were not disclosed in the purported Mortgage Contract. 36) Plaintiff alleges that the deal in the Mortgage Contract was a complete,

intentional misrepresentation, of the true nature, subject matter, of the deal and BANA fraudulently induced the Plaintiff into this deal with reckless disregard for his welfare. Below, the evidence in this SEC case demonstrates BANA KNEW the Loans issued to borrowers like the Plaintiff were not sustainable as early as 2003, yet in order to fill [m]ore Pools and continued with their scheme, they did so at the Plaintiffs detriment.7 Angelo Mozilo states that these loans were the most toxic things he has ever seen in his life (emphasis added) yet BANA continued to issue them to fill these POOLS with reckless disregard for the Plaintiffs welfare.

See, PSA 2.01 (B) (ii) and in the case of each MERS Mortgage Loan, the original Mortgage, noting the presence of the MIN of the Mortgage Loans and either language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan or if the Mortgage Loan was not a MOM Loan at origination, the original Mortgage and the assignment thereof to MERS, with evidence of recording indicated thereon, or a copy of the Mortgage certified by the public recording office in which such Mortgage has been recorded. 7 See, http://www.sec.gov/litigation/complaints/2009/comp21068.pdf

10

37)

Accordingly, BANA knew the loans they were pedaling to fill the Pools were a

detriment to society as a whole as early as 1997 because they were put on notice in 1997 and then again in Feb. of 2003 respectively by the Massachusetts Division of Banks and the OCC.8 38) Plaintiff alleges that BANA did not have skin in the purported Loan at issue, and

therefore, no equity in the Mortgage Contract and was using money committed to BANA as credit by Foreign Banks to fund their loans and therefore nothing to lose and everything to gain by issuing these toxic Loans. See, Revolving Credit Agreement9 and Commitment Schedules
10

incorporated by reference herein. This has been one Giant Ponzi scheme. The Court will note

that BONY is a party to the monies committed for BANAs securitization chain11. BONY is a Short Term Lender. See footnote (11). BONY was funding loans for which it would ultimately be the Trustee. This is just a small example of the monies committed to BANA. a) In 2004, Countrywide Home Loans Inc. was a subsidiary of Countrywide

Financial Corp., a National Bank, and in 2006, Countrywide Financial Corp. notified regulators of its intent to convert its existing national bank charter to a federal savings bank charter to conduct its banking services. In 2007 their charter was converted.12 b) In February of 2009 Countrywide Bank, FSB, filed an application to become a

National Association, and in April of 2009, Countrywide Bank, NA merged into Bank of America, N.A. Similarly, on July 1, 2011, BAC Home Loans Servicing, L.P. (f/k/a Countrywide Home Loans Servicing, L.P.) merged into Bank of America, N.A. Because of these mergers,

See, http://www.mass.gov/ocabr/business/banking-services/industry-letters/subprime-lending.html See, http://www.occ.gov/static/news-issuances/news-releases/2003/nr-occ-2003-8-advisory-ltr-2003-2.pdf 9 See, http://www.sec.gov/Archives/edgar/data/25191/000095012904009372/v03631exv10w1.htm 10 See, http://www.sec.gov/Archives/edgar/data/25191/000095014804000570/v96832exv10w79.txt http://www.sec.gov/Archives/edgar/data/25191/000095012904005700/v00655exv10w102.txt http://www.sec.gov/Archives/edgar/data/25191/000095012904005700/v00655exv10w103.txt
11 12

See, Page 75 http://www.sec.gov/Archives/edgar/data/25191/000095012904005700/v00655exv10w101.txt http://www.ots.treas.gov/_files/777014.html

11

Bank of America, N.A. assumed all of the liabilities of Countrywide Bank, NA and BAC Home Loans Servicing, L.P. (f/k/a Countrywide Home Loans Servicing, L.P.) c) In an interview published on February 22, 2008 in the legal publication Corporate

Counsel, a Bank of America spokesperson acknowledged Countrywides liabilities: Handling all this litigation wont be cheap, even for Bank of America, the soon-to-be largest mortgage lender in the country. Nevertheless, the banking giant says that Countrywides legal expenses were not overlooked during negotiations. We bought the company and all of its assets and liabilities, spokesman Scott Silvestri says. We are aware of the claims and potential claims against the company and have factored these into the purchase. See, Amy Miller, Countrywide in Crosshairs as Mortgage Crisis Fuels Litigation, Corporate Counsel, Feb. 22, 2008.13 39) Plaintiff alleges at no time during the lending process did BANA ever disclosed to

Plaintiffs, his Identity, FICO scores, Property and purported Mortgage Loan was going to be used in a securitization scheme unheralded in the annals of the world and the purported Mortgage Contract is absent of such disclosure or language. 40) Plaintiff alleges that BANA never disclosed to him that his loan payments were

not going to be used to his purported mortgage loan and that said payment was going to be used to cover payments to investors in certificates backed by his purported loan and further, that His loan payments were to be commingled with hundreds of other loan payments. 41) Plaintiff alleges BANA never disclose to him, there were third party co-obligators

in this deal that required them to make the loan payments to the owners of the Note and Mortgage and that there could never be a default on the debt whereas the true creditor would and could never suffer a loss by way of default.14

13 14

http://www.law.com/jsp/cc/PubArticleCC.jsp?id=1203602189184 PSA SECTION 4.01: Advances:

12

42)

Plaintiff alleges BANA never disclosed that the True Creditor (certificate holders)

would never suffer a loss in the Mortgage Contract because of guaranties represented in the side contracts (which all allude to the Plaintiff and his property) that all parties but for the Plaintiff would be made financially whole if this scheme fell apart.15 BANA even has an Insurance Policy for Errors and Omissions. The schemers protected themselves from any wrongdoing but provided none for the Plaintiff. 43) Plaintiff alleges the only interest BANA had in this deal, was the collection of

Servicing fees, late fees, and insurance fees among others, had risked nothing, were not real parties to the Mortgage contract, after a default would tried to reattach itself to the obligation, and then, foreclose, collect on all the insurance policies, file a 1099A with the IRS for the purported loss, and in the end, acquire a FREE HOUSE.

(a) The Master Servicer shall determine on or before each Master Servicer Advance Date whether it is required to make an Advance pursuant to the definition thereof. If the Master Servicer determines it is required to make an Advance, it shall, on or before the Master Servicer Advance Date, either (i) deposit into the Certificate Account an amount equal to the Advance or (ii) make an appropriate entry in its records relating to the Certificate Account that any Amount Held for Future Distribution has been used by the Master Servicer in discharge of its obligation to make any such Advance. Any funds so applied shall be replaced by the Master Servicer by deposit in the Certificate Account no later than the close of business on the next Master Servicer Advance Date. The Master Servicer shall be entitled to be reimbursed from the Certificate Account for all Advances of its own funds made pursuant to this Section as provided in Section 3.08. The obligation to make Advances with respect to any Mortgage Loan shall continue if such Mortgage Loan has been foreclosed or otherwise terminated and the related Mortgaged Property has not been liquidated. See also, SALE AND SERVICING AGREEMENT: Advance: With respect to each Servicer Remittance Date and each Mortgage Loan, an amount equal to the Scheduled Payment (with the interest portion of such Scheduled Payment adjusted to the Mortgage Loan Remittance Rate, in the case of the Servicer, or to the Net Mortgage Rate, in the case of the Master Servicer) that was due on the Mortgage Loan on the Due Date in the related Collection Period, and that (i) was delinquent at the close of business on the related Determination Date and (ii) was not the subject of a previous Advance, but only to the extent that such amount is expected, in the reasonable judgment of the Servicer or Master Servicer, as applicable, to be recoverable from collections or other recoveries in respect of such Mortgage Loan.
15

Nonrecoverable Advance: Any Servicing Advance or Advance previously made or proposed to be made in respect of a Mortgage Loan by the Servicer which, in the reasonable discretion of the Servicer will not or, in the case of a proposed Servicing Advance or Advance, would not, ultimately be recoverable by the Servicer from the related Mortgagor, related Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds, REO Disposition Proceeds or otherwise. The determination by the Servicer that all or a portion of a Servicing Advance or Advance would be a Nonrecoverable Advance shall be evidenced by an Officers Certificate delivered to the Master Servicer setting forth such determination and a reasonable explanation thereof.

13

44)

Plaintiff alleges that all the investors (Creditors) lawsuits throughout the country

are either, won or settled based on Plaintiffs toxic loan. 45) Plaintiff alleges BANA never inform Him that his purported mortgage NOTE

would be scattered across the globe, tangled with thousands of certificates and the possibility some Terrorist or Communist would own a piece of his property. Nor, that he would be prohibited from addressing the many holders or owners of the purported note and mortgage, the debt, in the case of financial hardship and the need for relief. 46) Plaintiff alleges there was no possible way he could have known or been expected

to know the Material Facts that BANA intentionally omitted from the purported Mortgage Contract. 47) Plaintiff alleges he made every attempt to discover who the owner or holder in

due course of the purported debt was and who owned the mortgage and in response, met with false and misleading statements and given false and misleading documents by BANA. 48) Plaintiff alleges that among the many phone calls to BANA and after he sent a

Qualified Written Request pursuant to 12 USC 2605(e) and two Debt Validation letters to BANA, they still refused to disclose the owner or holder in due course of the purported note and Mortgage. 49) Counsel for the BANA finally informed Plaintiff days before the February 2011

hearing to reopen the bankruptcy what TRUST the Plaintiffs purported mortgage loan was included and that in fact BONY was the Trustee for said TRUST. 50) Once Plaintiff obtained the name of the TRUST, he was off and running and his

investigation has partially revealed the nature of BANAs scheme whereupon he uncovered the concealed violations. Further discovery and investigation is required.

14

51)

Plaintiff alleges that, prior to being informed by BANA Counsel as to the name

of the TRUST, Plaintiff could not have Uncovered or Known of the herein concealed violations or that any existed. Nor could Plaintiff have uncovered all the concealed Players in this scheme, whereas the alleged violation and the scheme are hidden in the TRUST documents and the Fortress that is the Mortgage Electronic Registration System (MERS). In order to access the TRUST documents you need the name of the TRUST. Unlike the many County Registry of Deeds, No American Citizen (mortgagor) can access MERS records by design. 52) Plaintiff alleges that the Material Facts of this scheme were not disclosed by

BANA prior to, during or after entering into the purported mortgage contract and the Plaintiff would never have uncovered this scheme if not for the illegal foreclosure attempt. 53) The Plaintiff states he never made an agreement with BANA or ever gave his

consent to be a party to this securitization scheme. Plaintiff relied on the Misleading Contract supplied by BANA and [h]ad a Justifiable Right to rely on the misleading contract and said reliance has caused Plaintiff to suffer damage as a direct and proximate result of said reliance. 54) Plaintiff states he would never have entered into the purported mortgage loan had

BANA disclosed to him the true nature of the securitization scheme and how much money others would make from Plaintiffs purported mortgage loan all the while, being made a monetary slave to this scheme. 55) Plaintiff alleges that BANA Fraudulently induced him to enter the purported

mortgage contract to Plaintiffs detriment. 56) Plaintiff alleges he would never have entered this Contract with BANA had the

true subject matter been disclosed.

15

57)

Plaintiff alleges that BANA knew the purported Mortgage Contract was

oppressive and unconscionable. Whereas Plaintiff would pay up to 40 years to fill the pockets of others with his hard-earned money, all the while, the purported lender had no money in the deal and in return, Plaintiff would gain nothing in equity, because Appraisal Fraud usurped all the equity from Plaintiffs property. a) In 1998, the town of Lynnfield assessed the Plaintiffs property at $222,510.00 See, Exhibit 38 attached herewith and incorporated by reference herein.16 b) In 1999, the appraisal fraud kicked in and property values were on the rise. Plaintiffs property was now assessed at $259,100.00; in 2001 - $285,000.00; in 2002 - $353,500.00; immediately after Plaintiff purchased the property the assessment skyrocketed to $505,100.00 and by 2008 had reach an unsustainable $535,000.00. c) On or about November 22, 2004, BANAs appraisers appraised Plaintiffs property at $640,000.00, $277,700.00 more than the assessed value of $362,300.00 in 2004. d) Plaintiffs inflated purchase price for his property was $585,000.00. e) Since BANAs appraisal, the properties market value has fluctuated from $327,000 to $448,000.00 and back again and the Last compatible Home in the Plaintiffs Neighborhood sold on July 7, 2011 for $305,500.00. There is a home right across the street from Plaintiff, which is on Zillow Zestimate for sale for $216,000; the housing market continues to decline with every passing month and there is no end in sight. See projected decline in Exhibit 39 infra. f) The Plaintiffs property is currently assessed by the Town at $440,500.00; still overvalued.
16

http://lynnfield.patriotproperties.com/g_previous.asp

16

g) Plaintiff has approximately $407,000.00 invested in his property and this does not include the six years of inflated taxes related to the Appraisal Fraud and insurance paid or the money required to maintain the property and a $50,000.00 line of credit fully extended. h) Attached herewith marked as Exhibit 39 incorporated herein is a chart that demonstrates the track of the housing market as far back as 1890. From 1950 to 1999, the market was stable but for the two minor booms; in walks the Gramm Act of 1999, becoming effective in 2000 and a MONSTER was unleashed when the handcuffs were removed from Wall Street and Banks like BANA. i) Appraisal Fraud and the Securitization Scheme was the catalyst that set this monumental Fraud into action and falsely sent home prices into the stratosphere, which ultimately destroyed our Country and financially devastated the American Citizen and the Plaintiff. j) The actual value of Plaintiffs property is what it was before the appraisal fraud kicked in, $222,510.00 and the Plaintiff has paid off this amount. k) In matters of equity, the Plaintiff should recover the balance in the deficiency. l) BANA nor BONY are not entitled to a turnover of the property upon voiding the

Mortgage Contract because the Plaintiff has more money invested in said property than the property is worth.

58)

Plaintiff states he would never have purchased the property for the purchase price

had he known of the rampant appraisal fraud at work. Nothing can justify the outrageous

17

increase in the value of Plaintiffs property in a five-year span in comparison to the attached chart. 59) The Plaintiff received a copy of the appraisal under the cover of confidentiality

and therefore, not included as an exhibit; it is available for the Court. BANA refused to give it to Plaintiff per his QWR and Debt Validation Letter however, after much persistence; Counsel for the BANA relented and on November 8, 2010, gave Plaintiff a copy. 60) Eleven Thousand Honest Appraisers, throughout the countryincluding many

from Massachusettssigned a Petition, wherein they claimed they were forced to inflate home appraisals with threat if they refused, by the withholding of business if they refused to inflate values; the withholding of business if they refused to guarantee a predetermined value; the withholding of business if they refuse to ignore deficiencies in the property; refusing to pay for an appraisal that does not give them what they want; black listing honest appraisers in order to use "rubber stamp" appraisers, etc..17 61) Said Petition prompted Congress to enact new legislation related to Banks and

Appraisers and has brought the FBI to bear on the criminals for appraisal Fraud among others. 18 62)
19

It is widely known that from 1999 to present, appraisal fraud has been pervasive

and regardless of new restriction appraisal fraud continues at an alarming rate. 63) The Plaintiff has contacted many of the Massachusetts Appraisers, who signed the

Petition, and many are willing to testify in relation to the above Petition and the facts attested to therein.

17 18

The Petition may be viewed here at: http://appraiserspetition.com/ http://www.fbi.gov/stats-services/publications/mortgage-fraud-2010/mortgage-fraud-report-2010 19 See, Washington Post, Kenneth R. Harney May 1, 2010-Despite 2009 restrictions, mortgage and appraisal fraud spiked: http://www.washingtonpost.com/wpdyn/content/article/2010/04/30/AR2010043000041.html.

18

64)

Joyce Horgan, BANAs appraiser, is not a signatory on the petition and recently

reprimanded20 by the regulatory authorities in the State of Massachusetts. 65) Plaintiff alleges that the Mortgage Contract is void or voidable because the

purported Mortgage Contract is incomplete because of BANAs failure to fully disclose the deal; the contract is uncertain because BANA omitted the true parties and nature of the deal; the contract is not mutual because Plaintiff never agreed to the undisclosed terms concealed by BANA; the contract is unfair, unequal and unjust because of Appraisal fraud perpetrated and perpetuated by BANA and it was never disclosed that BANA had no consideration in the deal and that the loan immediately went off the books of the phony lender therefore, earned billions in servicing fees because through their securitization chain BANA kept the servicing rights to the loan; Accordingly, BANAs very deception makes the contract is unjust; The Contract is a complete Deliberate Misrepresentation of the Material Facts of the true deal which BANA made prior to signing the contract and these Material Facts were never disclosed; Because of BANAs deception and intentional omissions, the contract is fraught with fraud, illegalities and is oppressive; BANA failed to disclose all Material Facts about the subject matter of the Contract; BANA had actual knowledge of the Material Facts prior to entering the Contract which BANA knowingly omitted; BANAs failure to disclose the Material Facts caused the Plaintiff to have a false impression of the deal and the terms of the Contract; When BANA failed to disclose all the Material Facts, BANA KNEW the failure would create a false impression; When BANA failed to disclose the Material Facts, BANAs intended that plaintiff rely on the resulting false impression; The Plaintiff did relied and had a justifiable right to rely on the false impression; and

20

http://www.realmarketing.com/license_lookup/massachusetts_real_estate_appraiser_license_lookup.htm type in last and first name and a brief description appears.

19

The plaintiff has been damaged as a direct and proximate result of the reliance upon the false impression. 66) The Plaintiff alleges he is entitle to the damage he suffered by the difference in

the amount of money between the actual value before the appraisal fraud began and the appraised value at the time the purported mortgage contract was entered into in an amount certain or to be proven.

II.

Defendants Have Committed Deceptive acts and Practices, Falsified Documents, Forged Documents, Fraudulently Tampered with the Collateral Mortgage File, and knowingly Filed a False Document in a Massachusetts Registry of Deeds Among Others 67) Plaintiff repeats, realleges and incorporates all supra paragraphs of this Pleading,

the First Verified Amended Complaint and all previously filed pleadings as though fully set forth herein. 68) Massachusetts Regulation 940 C.M.R. 3.16 states that an act or practice is in

violation of Chapter 93A if it is oppressive or unconscionable; it violates any statute, rule, regulation or law which is intended to protect the public's health, safety or welfare. M.G.L. c. 266 35A is mean to protect the Public Safety. 69) Plaintiff alleges that on February 16, 2010, BANA initiated an illegal foreclosure

process when clearly they were not the holder in due course of the Note and Mortgage. 70) Plaintiff alleges that on February 16, and again on April 8, 2010 BANA tried to

collect on a debt whereas no debt is due to BANA with the threat of foreclosure and the taking of Plaintiffs property. 71) Plaintiff alleges BANA states the Note (debt) was discharge in December of 2008

in a chapter 7 bankruptcy proceeding.


20

72)

Plaintiff states that all the claims made herein were not known or actionable prior

to the filing of the chapter 7 Bankruptcy nor could they have been known or actionable because BANA concealed the evidence and the identity of the TRUST. Further, some of the unlawful actions herein took place well after the bankruptcy discharge. 73) Plaintiff alleges at no time prior to the discharge or during the bankruptcy period

did BANA disclosed to the Plaintiff, Trustee, or Plaintiffs Counsel, who the true owner of the purported debt was or that the debt was, securitized. 74) creditors. 75) Plaintiff alleges BANA deliberately avoided the Plaintiffs bankruptcy to conceal Plaintiff alleges No Creditor appeared at the bankruptcy during the meeting of the

and insure the identities of the real parties in interest would remain concealed thereby concealing some of the violations herein. 76) Plaintiff alleges BANA did not file a Proof of claim because they knew they could

not, and if they did the violations and the true creditor would have been revealed. 77) BANA had a duty to notify the Plaintiff and the Bankruptcy Court of the identity

of the owner of the debt, they did not and knowingly concealed the names of the purported holder in due course of the note and mortgagee. 78) Plaintiff alleges that prior to or during the bankruptcy; BANA was not the

creditor, the mortgagee, or the holder of the Note and had no standing in the bankruptcy and none now.

21

79)

Plaintiff alleges that because BANA deliberately avoided the bankruptcy

proceedings they are entitled to no consideration and that if the Plaintiff were to gain some type of windfall because BANA failed to partake; it is a windfall BANA created.21 80) Plaintiff states it would be Fundamentally Unfair, fly in the face of Logic and

Public Policy to punish the Plaintiff for any procedural errors or omission during the bankruptcy period that BANA silence created. 81) Moreover, even had BANA participated at the bankruptcy, they would have had

no valid claim because BANA never perfected their security interest and therefore had no priority over the original mortgage recorded in the public record on December 6, 2004.22 82) Plaintiff alleges that when the bankruptcy discharge issued, the Plaintiff left with

all his rights intact. 83) Plaintiff alleges that because BANA or BONY never perfected priority or title

prior to or during the bankruptcy, and the note discharged, the note and mortgage are forever, separated and therefore, cannot be reunited. 84) In Massachusetts, the Mortgage is defeasible upon the extinguishment of the debt

(Note) and BANA admits the note was discharged and therefore, at a minimum, the only claim Defendants might have is an In Rem action in State Court. However, in order to proceed, they would have to demonstrate a valid lien, moreover, standing. Plaintiff alleges no such standing or

21

See, Bigelow v. RKO Radio Pictures, Inc., 327 US 251 - Supreme Court (1946), The most elementary conceptions of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty which his own wrong has created. See Package Closure Corp. v. Sealright Co., 141 F.2d 972, 979. That principle is an ancient one, Armory v. Delamirie, 1 Strange 505. 22 See, In re Lazarus, 478 F. 3d 12 -15 Court of Appeals, 1st Circuit 2007, Perfection, in this case, required the filing of the mortgage with the local registry of deeds. Because this filing occurred 14 days after the initial transfer of funds, section 547(e) requires that the transfer be deemed to have occurred on the date of perfection. The mortgage, therefore, secured a debt antecedent to the transfer rather than simultaneous with it. GAMC does not dispute this reading of the statute.

22

lien is evident because there are no recorded conveyances in the Registry of Deeds to any party herein that is lawful and no lien has been perfected and cannot be perfected now. 85) Plaintiff alleges that the only recorded mortgage dated December 6, 2004 and the

mortgagee, Omega, would be the only entity under the mortgage to take action however, Omega has already admitted it has no claim to Plaintiffs property or estate, moreover, the mortgage Contract is void or voidable. 86) Plaintiff alleges that BANAs attempt to collect a debt that was not due to them

violates FDCPA. 87) On May 13, 2010, Plaintiff filed suit to stop the illegal foreclosure and the

attempted debt collection initiated by BANA. 88) 89) On May 26, 2010, BANA removed Plaintiffs case to this Honorable Court. On December 16, 2010, this Honorable Court denied all pending motion without

prejudice and stayed the case for 90 days to allow Plaintiff the opportunity to reopen the bankruptcy and bring some of his claims that were rooted in the bankruptcy past not disclosed on His schedule of assets. Plaintiff has abandoned all claims so rooted. 90) Subsequently, The Bankruptcy Court stated it saw no reason to reopen the

bankruptcy and therefore, the assets are deemed abandoned and the bankruptcy is forever closed whereas the bankruptcy court was privy to all the counts in the original complaint and saw no reason to reopen nor has the Trustee file an interpleader or intervener. 91) Accordingly, on June 6, 201, Plaintiff gutted the original complaint, and filed an

amended complaint by leave of the Court and only raised minimal claims and Defendants that arose and became known and actionable after the bankruptcy discharge in December of 2008. At issue among others, is the discovery of the Milestones Report which evidences the only sale or

23

transfer of the purported mortgage loan to BONY the day after this Honorable Court denied the Defendants motion to dismiss. 92) The reason Plaintiff only brought minimal claims and Defendants was to simplify

this matter and allow BANA to settle the matter and further, not to burden this already burdened Court. 93) Plaintiff has been very cautious not to bring any frivolous claims and therefore,

the claims he brings now are grounded in prima facia evidence, these claims were discovered and became actionable after the discharge of his bankruptcy. BACKGROUNDREMICS 94) REMICs are widely used securitization vehicles for mortgages and are governed

by sections 860A through 860G of the Internal Revenue Code 95) Section 860D(a)(4) of the Code provides that an entity qualifies as a REMIC only

if, among other things, as of the close of the third month beginning after the startup day and at all times thereafter, substantially all of its assets consist of qualified mortgages and permitted investments. This asset test is satisfied if the entity owns no more than a de minimis amount of other assets. See 1.860D1(b)(3)(i) of the Income Tax Regulations. As a safe harbor, the amount of assets other than qualified mortgages and permitted investments is de minimis if the aggregate of the adjusted bases of those assets is less than one percent of the aggregate of the adjusted bases of all of the entitys assets. 1.860D1(b)(3)(ii). 96) With limited exceptions, a mortgage loan is not a qualified mortgage unless it is

transferred to the REMIC on the startup day in exchange for regular or residual interests in the REMIC. See section 860G (a)(3)(A)(i).

24

97)

The legislative history of the REMIC provisions indicates that Congress intended

the provisions to apply only to an entity that holds a substantially fixed pool of real estate mortgages and related assets and that has no powers to vary the composition of its mortgage assets. S. Rep. No. 99313, 99th Cong., 2d Sess. 79192; 19863 (Vol. 3) C.B. 79192. 98) Section 860F(a)(1) imposes a tax on a REMIC equal to 100 percent of the net

income derived from prohibited transactions. The disposition of a qualified mortgage is a prohibited transaction unless the disposition is pursuant to (i) the substitution of a qualified replacement mortgage for a qualified mortgage; (ii) a disposition incident to the foreclosure, default, or imminent default of the mortgage;(iii) the bankruptcy or insolvency of the REMIC; or (iv) a qualified liquidation. Section 860F(a)(2)(A). BACKGROUNDTRUSTS 99) Section 301.7701-2(a) of the Procedure and Administration Regulations defines a

business entity as any entity recognized for federal tax purposes (including an entity with a single owner that may be disregarded as an entity separate from its owner under 301.7701-3) that is not properly classified as a trust under 301.7701-4 or otherwise subject to special treatment under the Code. 100) Section 301.7701-4(a) provides that an arrangement is treated as a trust if the

purpose of the arrangement is to vest in trustees responsibility for the protection and conservation of property for beneficiaries who cannot share in the discharge of this responsibility and, therefore, are not associates in a joint enterprise for the conduct of business for profit. 101) Section 301.7701-4(c) provides that an investment trust is not classified as a

trust if there is a power under the trust agreement to vary the investment of the certificate holders.
25

102)

On March 22, 2011, Plaintiff discovered there was never a legal or enforceable

assignment of the note and conveyance of mortgage to BONY by way of the discovery of the Milestones Report. BANA was required to record the assignments and conveyances in the Registry of Deeds and on MERS and did not and further, agreed not to alter the record.23 103) Plaintiff alleges that on December 17, 2010, BANA created an Option 2

Beneficial Rights Transfer (sale) to BONY. BONY accepted the Sale after the TRUST funded and after the 90-day period expired, provided by IRS 860. Notwithstanding, Plaintiffs purported Loan was used to create certificates sold on the stock market. Plaintiff has taken steps to rectify that. See, attached letter from the Secretary of State, Securities Division marked as Exhibit 40 incorporated by reference herein. 104) 105) 106) Notice to the Plaintiff by BONY of the above transfer is required by law. Plaintiff alleges he never received Notice from BANA or BONY. Plaintiff alleges the Defendant BANA knew this sale to BONY six years after the

TRUST had funded was illegal and void pursuant to New York Law and not a qualified mortgage pursuant IRS 860 and therefore, should never have been included in the TRUST. 107) BANA claims Plaintiffs purported Loan is in default and therefore, knew no

transfer to BONY could have taken place because the Mortgage Loan was not a qualified Mortgage pursuant to IRS 860 et seq., the PSA and void pursuant to New York law.

23

PSA 2.01: In addition, in connection with the assignment of any MERS Mortgage Loan, each Seller agrees that it will cause, at the Trustees expense, the MERS(R) System to indicate that the Mortgage Loans sold by such Seller to the Depositor have been assigned by that Seller to the Trustee in accordance with this Agreement for the benefit of the Certificateholders by including (or deleting, in the case of Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files the information required by the MERS(R) System to identify the series of the Certificates issued in connection with such Mortgage Loans. Each Seller further agrees that it will not, and will not permit the Master Servicer to, and the Master Servicer agrees that it will not, alter the information referenced in this paragraph with respect to any Mortgage Loan sold by such Seller to the Depositor during the term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement.

26

108)

Plaintiff alleges that BANA and BONY, knowing and willfully, with malice and

forethought, deceptively concealed this sale from the Plaintiff with reckless disregard for Plaintiffs welfare. BANA and BONYs deceptive intent was to place themselves in the position of holder in due course of the purported note and mortgage thereby allowing BANA and BONY to complete their illegal scheme at foreclosure thereby depriving Plaintiff of his property. 109) On March 27, 2011, Plaintiff put Brian Moynihan, Barbara Desoer and Counsel

on notice of this unlawful act. See, Letter attached herewith marked as Exhibit 41 incorporated by reference herein. BANA acknowledge receipt of this correspondence. 110) On July 15, 2011, Plaintiff discovered that BANA and MERS filed and recorded

an assignment of Mortgage in the Essex County Registry of Deeds. 111) Plaintiff alleges that on June 30, 2011 BANA and its officers, agents and

employees, Brain Moynihan, Barbara Desoer, Danilo Cuenca, Beverly Brooks and Irma Diaz Knowingly created an assignment of mortgage that was false, forged, and fraudulent assignment putting forth material statements that are false from MERS to BONY assigning BONY both the Note and mortgage. 112) The Plaintiff alleges BANA knowingly filed or caused to be filed in the Essex

County Registry of Deeds on July 13, 2011, a false document containing false material facts and statements knowing they were false and further, signed by a known robo-signer Beverly Brooks. See, Affidavit of John OBrien, Registrar of the Southern Essex County Registry of Deeds marked as Exhibit 36. Accordingly, Mr. OBrien has forwarded the Affidavit and accompanying documents to the Attorney General of Massachusetts and the District Attorneys Office for Essex Country for investigation and possible prosecute of the guilty parties herein for their criminal behavior.

27

113)

Plaintiff alleges, that the signer of the assignment is not Beverly Brooks and that

in light of the fact that Plaintiff has at least 15 different variations of her signature; she never appeared personally before the notary, Irma Diaz, and therefore, the document is a forgery not validly signed; violates the oath of perjury. The assignment recorded with intent to defraud the Plaintiff and this Honorable Court, in a vain attempt to demonstrate that BONY and BANA are legal parties to the note and mortgage. BANA and BONY ultimate intent was to put all the world on notice and to illegally deprive the Plaintiff of his property; Now a specific crime under G.L.c. 266 35A. 114) 115) The Law required notice to the Plaintiff of the above assignment. Plaintiff alleges he never received Notice from BANA or BONY of the

assignment filed on July 13, 2011. 116) On July 19, 2001, Plaintiff put Brian Moynihan, Barbara Desoer and Counsel on

notice of this unlawful act. See, Letter attached herewith marked as Exhibit 42 incorporated by reference herein. BANA acknowledge receipt of this correspondence 117) Plaintiff alleges BANA and BONY knew that they nor MERS had any authority

whatsoever to assign the note, is not a party to the note nor could MERS ever be a party to the Note nor could the Note be held in trust by any other party but for the TRUST on behalf of the Certificate holders.24 Moreover, how could they assign a discharged NOTE.

24

Indenture Agreement: ARTICLE TWO: THE NOTES: No Note shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose, unless there appears on such Note a certificate of authentication substantially in the form provided for herein executed by the Trust Administrator by the manual signature of one of its authorized signatories, and such certificate upon any Note shall be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered hereunder. Section 2.03. Limitation on Transfer of Notes. (a) No transfer of a Note in the form of a Definitive Note shall be made unless the Note Registrar shall have received a representation from the transferee of such Note, acceptable to and in form and substance satisfactory to the Note Registrar and the Depositor (such requirement is satisfied only by the Note Registrars receipt of a transfer affidavit from the transferee

28

118)

Plaintiff alleges All Defendants knew (in light of notice provided in the Exhibit

37) that the creation and recording of the above assignment constituted an unlawful act because it flew in the face of the herewith TRUST Documents and violated the mandates required by New York Law and IRS 860 and therefore, would violate M.GL. c. 266 35A thereby, violating M.G.L. c. 93A et seq... 119) However, regardless of the notice of G.L. c. 266 35A, BANA and MERS with

Bold Arrogance and complete defiance of the Law, the Plaintiff and this Honorable Court, filed the above assignment at issue thereby making the statement that they are above the LAW. 120) Plaintiff alleges that other than the above actions, there is no evidence anywhere

that the original lender [Omega Mortgage Corp] affixed an endorsement on the purported note to BANA or that BANA endorsed the Note to anyone or that the Mortgage was legally conveyed to the now purported holder-in-due-course or owner, BONY.

substantially in the form of Exhibit B hereto), to the effect that such transferee (i) is not acquiring such note for, or with the assets of, an employee benefit plan or other retirement arrangement that is subject to Section 406 of ERISA or to Section 4975 of the Code or to any substantially similar law ("Similar Law"), or any entity deemed to hold the plan assets of the foregoing (collectively, "Benefit Plans"), or (ii) its acquisition and holding of such Notes for, or with the assets of, a Benefit Plan will not result in a nonexempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code which is not covered under Prohibited Transaction Class Exemption ("PTCE") 84-14, PTCE 90-1, PTCE 91-38, PTCE 95-60, PTCE 96-23 or some other applicable exemption, and will not result in a non-exempt violation of any Similar Law. In the event that a Note is transferred to a Person that does not meet the requirements of this Section 2.03, such transfer shall be of no force and effect, shall be void ab initio, and shall not operate to transfer any rights to such Person, notwithstanding any instructions to the contrary to the Issuer, the Indenture Trustee or any intermediary; and the Trust Administrator shall not make any payments on such Note for as long as such Person is the Holder of such Note. Each Note shall contain a legend substantially similar to the applicable legend provided in Exhibit A hereto stating that transfer of such Notes is subject to certain restrictions as set forth herein. (b) Any purported transfer of a Note (or any interest therein) not in accordance with this Section 2.03 shall be null and void and shall not be given effect for any purpose hereunder.

29

121)

New York Law, IRS 860 and the TRUST documents require a specific period for

the mortgage and notes to be transfer into the TRUST and if not done in accordance, they are void and cannot take place after the 90-day period set forth in IRS 860 of the PSA. 25 122) Plaintiff alleges BONY was mandated to review and insure that it receive the

Mortgage and Note in accord with the TRUST document and did not. Because BONY failed to perform its fiduciary duties, the TRUST does not have Plaintiffs Note and Mortgage and never will. 123) Plaintiff alleges, as mandated, BANA failed to timely and legally, sell, transfer,

assign, set over and otherwise convey to the Depositor without recourse, all its respective right, title and interest in and to the related Mortgage Loans pursuant to the PSA, IRS 860 and New York Law.
25

PSA SECTION 2.01: Conveyance of Mortgage Loans: (a) Each Seller concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets over and otherwise conveys to the Depositor, without recourse, all its respective right, title and interest in and to the related Mortgage Loans, including all interest and principal received or receivable by such Seller, on or with respect to the applicable Mortgage Loans after the Cut-off Date and all interest and principal payments on the related Mortgage Loans received prior to the Cut-off Date in respect of installments of interest and principal due thereafter, but not including payments of principal and interest due and payable on such Mortgage Loans on or before the Cut-off Date. On or prior to the Closing Date, Countrywide shall deliver to the Depositor or, at the Depositors direction, to the Trustee or other designee of the Depositor, the Mortgage File for each Mortgage Loan listed in the Mortgage Loan Schedule (except that, in the case of the Delay Delivery Mortgage Loans (which may include both Countrywide Mortgage Loans and Park Granada Mortgage Loans), such delivery may take place within thirty (30) days following the Closing Date). Such delivery of the Mortgage Files shall be made against payment by the Depositor of the purchase price, previously agreed to by the Sellers and Depositor, for the Mortgage Loans. With respect to any Mortgage Loan that does not have a first payment date on or before the Due Date in the month of the first Distribution Date, Countrywide shall deposit into the Distribution Account on or before the Distribution Account Deposit Date relating to the first applicable Distribution Date, an amount equal to one months interest at the related Adjusted Mortgage Rate on the Cut-off Date Principal Balance of such Mortgage Loan. (b) Immediately upon the conveyance of the Mortgage Loans referred to in clause (a), the Depositor sells, transfers, assigns, sets over and otherwise conveys to the Trustee for the benefit of the Certificateholders, without recourse, all the right, title and interest of the Depositor in and to the Trust Fund together with the Depositors right to require each Seller to cure any breach of a representation or warranty made herein by such Seller, or to repurchase or substitute for any affected Mortgage Loan in accordance herewith. (c) In connection with the transfer and assignment set forth in clause (b) above, the Depositor has delivered or caused to be delivered to the Trustee (or, in the case of the Delay Delivery Mortgage Loans, will deliver or cause to be delivered to the Trustee) within thirty (30) days following the Closing Date for the benefit of the Certificateholders the following documents or instruments with respect to each Mortgage Loan so assigned:

30

124)

Plaintiffs alleges as mandated by law, BANA failed to timely and legally sell,

transfer, assign, set over and otherwise convey to the Trustee for the benefit of the Certificateholders, without recourse, all the right, title and interest of the Depositor in and to the Trust Fund pursuant to the PSA, IRS 860 and New York Law. 125) Plaintiff alleges that because BANA and BONY violated the TRUST documents,

IRS 860 and New York law, there was never a legal assignment or endorsement of the note and conveyance of mortgage to the TRUST within the mandated time frame; BANA and BONY KNEW no transfer, assignment or conveyance could take place after the allotted time frame. 126) BANA was required to endorse and convey all it rights in the Note and the

mortgage loan to the depositor BANA on the cutoff date (December 1, 2004). There had to be a true sale. 26 127) Plaintiff alleges that it was required that there be a bona fide sale of Plaintiffs

purported loan to the Trust and there was not. There is no sale unless there is a legal assignment and endorsement of the note and a legal recorded conveyance of the mortgage to perfect title for the certificate holders. Without a recorded Mortgage Deed, there was no priority over the original mortgage nor can one take place now. 128) Plaintiff alleges there were no legal assignments and endorsements of the Note

and no legal conveyance of the Mortgage prior to the illegal foreclosure attempt or prior to the commencement of this Action. The Public Record, including the Massachusetts Secretary of States Office UCC filing system and MERS are deficient of any recorded assignments or conveyances, until this Honorable Court denied BANAs motion to dismiss and Plaintiff amended the complaint.
26

Representations and Warranties of Countrywide: (7) Countrywide intends to treat the transfer of the Countrywide Mortgage Loans to the Depositor as a sale of the Countrywide Mortgage Loans for all tax, accounting and regulatory purposes.

31

129)

Plaintiff alleges the alleged loan was nevertheless included in the Trust registered

on the SEC as a Real Estate Mortgage Investment Conduit (REMIC) Trust. 130) Note. 131) Under the UCC, the Promissory Note is a one-of-a-kind instrument and any The subject purported Mortgage states that the Mortgage secures the Promissory

assignment must be as a permanent fixture onto the original Note much like a check. 132) 133) Plaintiff alleges there is no endorsement on the original Note. Plaintiff alleges, that the original Promissory Note has the only legally binding

chain of title, otherwise the instrument is faulty. 134) Plaintiff alleges for many reasons, all Defendants lack standing to enforce the

Note and therefore the mortgage is of no effect and therefore not a valid lien. 135) Under the UCC, the original Promissory Note is the only valid and legally binding

chain of title for the Note. 136) Plaintiff alleges the numerous attempts by BONY and BANA to claim ownership

of the original Note or Mortgage are fraudulent. 137) There is no perfection of title as admitted by BANA and BONY in there motion

to dismiss where Defendants suggest that at this late date they be allowed to perfect title. There can be no perfection at this late date. 138) MERS was established and up and running by 1997 by members of the mortgage

banking industry to create a centralized document custodial system through which mortgages can be easily transferred between members without having to record or pay county filing fees for such assignments.

32

139)

Nothing prevents the Banks through MERS from maintaining their own records

however, Plaintiff cannot find any law were the Banks through MERS was given the legal right to usurp state recording laws, nor can Plaintiff find when and where MERS was given legislative authority. 140) Plaintiff alleges he never executed a note naming MERS as a party, nor was

Plaintiff ever notified or informed of a transfer of the note to MERS as require by law. 141) Plaintiff alleges that no evidence exists to support any claim that MERS is or was

ever the holder in due course of the Note at issue in this action. 142) 143) On June 30, 2011, BANA requested and MERS assigned the note to BONY. Plaintiff alleges that MERS cannot assign the Note to any one or entity and the

mere fact MERS did so is Fraud, Forgery, Uttering, inter alia, all in an attempt to commit larceny and steal Plaintiffs property and his money. 144) Plaintiff alleges that regardless of what the PSA puts forth in relation to a MERS

mortgage and what MERS claims, in Massachusetts the conveyance of a mortgage is a conveyance of land and must be recorded in the registry in which the property is located to consummate the true sale and take priority over an existing lien. No such recording existed until after Plaintiff filed the amended complaint on June 6, 2011. 145) M.G.L. c. 183 1, provides that: A deed executed and delivered by the person,

or by the attorney of the person, having authority therefor, shall, subject to the limitations of section four, be sufficient, without any other act or ceremony, to convey land. 146) M.G.L. c. 183 2, provides that: A deed of quitclaim and release shall be

sufficient to convey all the estate which could lawfully be conveyed by a deed of bargain and sale.

33

147)

M.G.L. c. 183 3, provides that: An estate or interest in land created without an

instrument in writing signed by the grantor or by his attorney shall have the force and effect of an estate at will only, and no estate or interest in land shall be assigned, granted or surrendered unless by such writing or by operation of law. 148) M.G.L. c. 183 4, provides in pertinent part that, A conveyance of an estate in

fee simple, fee tail or for life, . for more than seven years from the making thereof, shall not be valid as against any person, except the grantor or lessor, his heirs and devisees and persons having actual notice of it, unless it, or an office copy as provided in section thirteen of chapter thirty-six, .is recorded in the registry of deeds for the county or district in which the land to which it relates lies. See Solans v. McMenimen 80 Mass. App. Ct. 178, 184 (2011), " A conveyance of an estate ... shall not be valid as against any person, except the grantor or lessor, his heirs and devisees and persons having actual notice of it, unless it ... is recorded in the registry of deeds." Citing G.L. c. 183, 4, as appearing in St.1973, c. 205. Tramontozzi v. D'Amicis, 344 Mass. 514, 517, 183 N.E.2d 295 (1962) (unrecorded mortgage is subject to defeat under G.L. c. 183, 4). 149) Plaintiff alleges that because no evident endorsements of the note or conveyances

of the mortgage were in record none can exist now with the fraudulent attempt to take priority over the only record recorded on December 6, 2004. 150) M.G.L. c. 233 78 prohibits the altering of business records after a lawsuit has

been commenced and this action commenced on May 13, 2010. The period for the Defendants to perfect their interest has long since come and gone and no want of trying can change this fact now.

34

151)

All the Defendants business records and documents must have been laid on the

table from whence this action was filed and to changed and alter them after this Defensive Action was filed is Fraud and is meant to knowingly, recklessly and with malice, deceive not only the Plaintiff but also this Honorable Court. 152) The mere fact that the assignment was file on July 13, 2011, assigning both the

Note and the mortgage to BONY has many consequences for the Defendants however, said action clearly evidences that BONY never had them when they created securities backed by Plaintiffs Mortgage in 2004. 153) Plaintiff alleges that BONY nor BANA will never have an interest in Plaintiffs

property or estate because there was never a legal, timely, enforceable assignment of the note and a conveyance of the mortgage to any party, no party herein or for that matter anywhere on the Planet, has a valid lien on Plaintiffs property. In addition, the assignment at issue is an unlawful lien on Plaintiffs property thereby creating a cloud on Plaintiff title.

SUPPLEMENTS TO COUNTS IN THE FIRST AMENDED COMPLAINT COUNT I BANA, BONY, AND MERS COMMITTED UNFAIR, DECEPTIVE ACTS AND PRACTICES, MADE FALSE AND MISLEADING STATEMENTS AND FABRICATED FALSE DOCUMENTS IN VIOLATION OF M.G.L. C. 93A 2 154) Plaintiff repeats, realleges and incorporates all supra and infra paragraphs of the

this Supplemental Pleading as though fully set forth herein and incorporates such into the First Verified Amended Complaint and vice versa.

35

155)

The violations herein arise from the same case in controversy filed on May 13,

2010 and are continuing violations, which occurred on the dates supra and infra primarily and substantially in Massachusetts. 156) Defendant BANA is engaged in trade or commerce in Massachusetts involved in

residential housing as a financial institution directly or indirectly affecting the people of this Commonwealth through lending and foreclosure. 157) Defendant BONY is engaged in trade or commerce in Massachusetts involved in

residential housing as a financial institution directly or indirectly affecting the people of this Commonwealth through lending and foreclosure. 158) Defendant MERS is engaged in trade or commerce in Massachusetts involved in

residential housing as a financial institution directly or indirectly affecting the people of this Commonwealth through lending and foreclosure. 159) On September 30, 2010, Plaintiff put the Defendants on Notice by letter to their

counsel of the Emergency Legislation that signed into law on August 17, 2010; (The Acts of 2010, Chapter 258, An Act Relative to Foreclosure) amending among others, M.G.L. c. 266 35A. Further, Plaintiff put Brain Moynihan and Barbara Desoer on notice of their unfair deceptive acts and practices and the unlawful acts perpetrated by their agents and employees. 160) Any violation of 209 CMR 18.00 et seq., 209 CMR 32.00 et seq., and 940 CMR

8.00 et seq., 940 CMR 3.16 is a violation of M.G.L. c. 93A 2. 161) Contrary to Massachusetts General Laws and Regulations, IRS 860, New York

Trust Law, and the governing Trust Documents for CWMBS CHL Pass Through Certificate 2004-29 (TRUST); on June 30, 2011 BANA, BONY and MERS, conspired to circumvent the law. BANA, BONY and MERS knowingly, willfully, wantonly, with malice and forethought

36

creating a document that was materially false, deceptive and misleading, said document was the assignment of Mortgage, from MERS to BONY and was created with the intent to harm the Plaintiff. 162) Contrary to IRS 860, New York Trust Law, and the governing Trust Documents

(PSA), on July 13, 2011 BANA, BONY and MERS conspired to circumvent the law by knowingly, willfully, wantonly, with malice and forethought, filed or caused to be filed a document that was material false and they knew it was a false, deceptive and misleading, an assignment of Mortgage, from MERS to BONY, in the Southern Essex County Registry of Deeds with the knowing intent to deceive the Plaintiff and deprive the Plaintiff of his Property. 163) BANA, BONY and MERS knew the Plaintiffs Mortgage Loan was included in

the TRUST, and knew they never legally assigned the note nor legally conveyed the mortgage to the TRUST pursuant to section 2.01 of the PSA or IRS 860G and therefore, the inclusion of Plaintiffs Loan was void pursuant to New York Estates, Powers & Trusts-Part 2- 7-2.4. Therefore, knew it would be unlawful to assign the Note and Mortgage to the TRUST, as a qualified Mortgage per the July 13, 2011 assignment especially in light of the fact that BANA declared the Loan in default in 2010. 164) Defendants, BANA, BONY and MERS knew or should have known their unfair

and deceptive acts and practices would foreseeably cause Plaintiff injuries and was meant to cause Plaintiff injury and Plaintiff has been injured as direct and proximate result of the Defendants unfair and deceptive acts. 165) The above assignment was Not only meant to deceive the Plaintiff; it was created

and filed, with the knowing intent to commit Fraud upon this Honorable Court to demonstrate the Defendants have standing as owners or holders in due course of the Note and Mortgage.

37

166)

BANA, BONY and MERS have violated and continues to violate the

Massachusetts Consumer Protection Act, G.L. c. 93A, 2 and applicable regulations promulgated by the Massachusetts Attorney General pursuant to G.L. c. 93A, 2(c) including, specifically without limitation: a. Contrary to 940 C.M.R. 3.16, BANA, BONY and MERS conduct violated existing statutes, rules, regulations or laws, meant for the protection of the public's health, safety or welfare as described herein; b. Contrary to 209 C.M.R. 32.39 (4) BANA and or BONY failed to provide disclosure of (a) (b) (c) and (d) of said regulation in relation to the assignment of Mortgage filed on July 13, 2011; c. Contrary to 940 C.M.R. 3.05 & 940 C.M.R. 8.06 , BANA and BONY made false and deceptive representations and failed to disclose relevant information as it related to their authority or agent of the Owner or Holder in Due Course of the Note and Mortgage at issue herein and deceptively filed a false document in the Registry of Deeds. d. Contrary to 209 CMR 18.16 (2)(a) & (10), BANA, BONY and MERS, filed the Assignment of Mortgage on July 13, 2011, in the Essex county Registry of Deeds. Accordingly, the above Defendants have created a false, deceptive, and misleading representation of the character, amount, and legal status of the purported debt, and is a false representation and a deceptive means to collect or attempt to collect the purported debt at issue herein. e. Contrary to 206 CMR 18.17 (6)(a)(b) & (c), on February 16, 2010, then again in April of 2010, BANA threatened to take a nonjudicial action to effect dispossession

38

or disablement of property when there was no present right to possession of the Plaintiffs property claimed as collateral through an enforceable security interest and the Plaintiffs property is exempt by law from such dispossession or disablement and the unlawful filing of the above assignment was a means to this end. f. Contrary to 209 CMR 18.21(9) & (10), BANA, BONY and MERS, knowingly or recklessly facilitated the illegal foreclosure of real property collateral and knowingly or recklessly facilitating the illegal repossession of chattel collateral. g. Contrary to 209 CMR 18.00 et seq., BANA tried to collect a debt were no debt was due them or any entity they claimed to represent. h. BANA, BONY and MERS actions were so unfair and deceptive it is immoral, unethical, oppressive, and unscrupulous; and falls within, at least, the penumbra of some common-law, statutory, or other established concept of unfairness and the above Assignment of Mortgage and the unlawful filing was committed knowingly or in reckless disregard for its truth or falsity. 167) The Plaintiff has been substantial injured by virtue of Defendants violations. Said

injuries include, are in addition to the First Verified Amended Complaint but are not limited to: 1. 2. 3. 168) Slander on Plaintiffs Deed; Costs to defend Property; and Significant stress and Emotional distress. BANA, BONY, MERS conduct was and is willful or knowing within the

meaning of the Massachusetts Consumer Protection Act, G.L. c. 93A, 9.

39

169)

The above Defendants still refuses to grant relief upon demand in light of

clear evidence of their wrong doing was and is in bad faith, with knowledge or reason to know that the act or practice complained of violated G.L. c. 93A, 2. 170) On February 28, 2011, Plaintiff in this matter sent BANA a demand for

relief pursuant to G.L. c. 93A; See, copy attached as Exhibit 1 to the First Verified Amended Complaint. Subsequently, after the discovery of the Milestone Report from MERS, Plaintiff further notified Defendants of their wrong doings, BANA responded by letter dated March 30, 2010. Then after the discovery of the above assignment Plaintiff again put the Defendants on notice, yet BANAs response and its counsels subsequent communications have not yielded a satisfactory offer of settlement to the Plaintiff in the February 28, 2011 letter in accordance with G.L. c. 93A, 9(2). No offer of settlement has been made to the Plaintiff, again done in bad faith. PRAYER FOR RELIEF WHEREFORE, the Plaintiffs respectfully request the following relief in Count I: A. B. Enter Judgment for the Plaintiff; Grant a final injunction enjoining all Defendants agents and employees,

affiliates, successors, assigns, and subsidiaries, from continuing to harm and to prevent irreparable harm to Plaintiff of loss of Property; C. D. Void the Mortgage Contract in ab initio; Issue an order for the Registry to expunge the record of the Mortgage Contract

and the assignment filed on July 13, 2011; E. Declare no entity as it relates to mortgage loan at issue now or in the future has a

valid claim in Plaintiffs property or estate;

40

F.

Award actual and/or statutory damages pursuant to M.G.L. c. 93A 9(3) to

the Plaintiff in an amount to be determined at trial; G. H. Award multiple damages pursuant to M.G.L. c. 93A 9(3) to the Plaintiffs; Award Plaintiff the costs of this action, including the fees and costs of experts

pursuant to M.G.L. c. 93A 9(3); I. J. K. and proper. COUNT III BONY VIOLATED 15 USC 1641, REGULATION Z 226.39 AND 209 CMR 32.39 Attorneys fees if the Court appoints counsel; Award damages for severe emotional distress; and Grant Plaintiff such other and further relief as this Honorable Court deems meet

171)

Plaintiff repeats, realleges and incorporates all supra and infra paragraphs of the

this Supplemental Pleading as though fully set forth herein and incorporates such into the First Verified Amended Complaint and vice versa. 172) Defendant BONY is a covered person as defined by Regulation Z 226.39 and

Massachusetts Regulation 209 CMR 32.39; 173) On July 13, 2011, there was an assignment of the Plaintiffs purported note and

mortgage from MERS to BONY. 174) BONY was required pursuant to 209 CMR 32.39 and Regulation Z section 226.39

and section 131(g) of 15 USC 1641 as amended to notify Plaintiff in writing within 30 days of the sale or transfer of the purported note and mortgage at issue herein. 175) Contrary to 209 CMR 32.39 and Reg. Z 226.39 BONY failed to notify Plaintiff

within 30 days of the sale and or transfer of the Note and Mortgage at issue herein.
41

176) 2. 177)

Plaintiff has a private right of action pursuant to 15 USC 1640(a) and G.L. c. 93A

As a direct result of BONY failure to notify the Plaintiff, as stated above,

Plaintiff has suffered damages. Federal Law provides no less than $400.00 and no more than $4,000.00. PRAYER FOR RELIEF WHEREFORE, the Plaintiffs respectfully request the following relief in Count III. A. B. C. D. E. Enter judgment for the Plaintiff; Award separate damages on both failures to Notify; actual damages to be determined at trial; costs; and interest; and Grant Plaintiff such other, legal, and equitable relief to which He may be

entitled or that this Honorable Court deems meet and proper.

COUNT VII BANA, BONY AND MERS VIOLATED THE FAIR DEBT COLLECTIONS PRACTICES ACT ("FDCPA") 15 USC 1692 178) Plaintiff repeats, realleges and incorporates all supra and infra paragraphs of the

this Supplemental Pleading as though fully set forth herein and incorporates such into the First Verified Amended Complaint and vice versa. 179) 180) Plaintiff is a consumer, as defined by 15 U.S.C. 1681a(c) and 1692a (3). BANA, BONY and MERS are debt collectors as defined by 15 U.S.C. 1692a

(3), and a persons as defined by 15 U.S.C. 1681a (b) and has conspired to attach themselves to a discharged debt.
42

181) (5). 182)

The account subject to this complaint is a debt, as defined by 15 U.S.C. 1692a

On February 16, 2010, BANA began its attempts to collect on a debt BANA

claims was extinguished by way of Plaintiffs bankruptcy, with the threat of foreclosure. 183) The Defendants BANA, BONY, and MERS, knowing they had no legal claim to

the alleged debt, set out and conspired to take Plaintiff property and money, contrary to Massachusetts General Laws and Regulations, IRS 860, New York Trust Law, and the governing Trust Documents for the TRUST. On June 30, 2011 BANA, BONY and MERS, knowingly and willfully, creating a document that was materially false, deceptive and misleading, notwithstanding, filed said document on July 13, 2011 in the Essex County Registry of Deeds knowing it was false. 184) BANA misrepresented the character and legal status of the unlawful debt in

violation of 15 USC 1692(e) (2), by sending false correspondence to Plaintiff and third persons and assisting in the attempted unlawful foreclosure. 185) BANA threatened to take and did take actions that it could not legally take

without the ruse and falsities committed upon the Plaintiff in violation of 15 USC 1692(e) (5). 186) BANA engaged in conduct that disgraced the Plaintiff in violation of 15 USC

1692(e) (7), by sending false correspondence to Plaintiff and third persons and assisting in the attempted unlawful foreclosure. 187) Although Plaintiff disputed the alleged debt many times, BANA communicated

false information to others, and failed to communicate that the debt was disputed when it was disputed, in violation of 15 USC 1692(e) (8).

43

188)

BANA stated numerous times that they were the lawful owners in interest of the

debt, yet knew or should have known that they were not, and as such violated 15 USC 1692(e)(5). 189) BANA engaged in unfair and deceptive means and attempts to collect the alleged

debt in violation of 15 USC 1692 (f). 190) BANA threatened and continue to threaten to unlawfully repossess the Plaintiffs

property in violation of 15 USC 1692(f) (8). 191) 192) Plaintiff suffered actual damages from these violations. Pursuant to 15 USC 1692(k), Plaintiff is entitled to actual damages, statutory

damages as set forth herein, and reasonable fees and costs. 193) Because the conduct of BANA was frequent and persistent and because the nature

of the violations of the FDCPA were so egregious and because the FDCPA violations were a part of a deliberate scheme, Plaintiff is entitled to the maximum possible relief permitted under 15 USC 1692k(a). PRAYER FOR RELIEF WHEREFORE, the Plaintiffs respectfully request the following relief in Count VII A) B) Actual damage sustained to be proven at trial; In the case of any action by an individual, such additional damages as the Court

may allow, not exceeding $1,000 per individual; and C) Grant Plaintiff such other, legal, and equitable relief to which He may be entitled

or that this Honorable Court deems meet and proper.

44

SUPPLEMENTAL CAUSES OF ACTION COUNT X MORTGAGE CONTRACT VOIDABLEMATERIAL MISREPRESENTATION 194) Plaintiff repeats, realleges and incorporates all supra and infra paragraphs of the

this Supplemental Pleading as though fully set forth herein and incorporates such into the First Verified Amended Complaint and vice versa. 195) The method of disclosure in a Mortgage Loan is set forth in M.G.L. c. 167E 8

(6) states: methods of disclosure to the mortgagor of the terms and conditions of the loan as required under chapter 140D; 209 CMR 32.00 is promulgated under M.G.L. c. 140D, 3 and 29. Further authority for disclosure is provided pursuant to 940 CMR 8.00 promulgated under M.G.L. c. 93A, 2(c). 940 CMR 8.05 (2) & (3) provides that; (2) It is an unfair or deceptive act or practice for a mortgage broker or lender to conceal or to fail to disclose to a borrower any fact relating to the loan transaction, disclosure of which may have influenced the borrower not to enter into the transaction with the broker or lender. (3) It is an unfair and deceptive act or practice for the mortgage broker or lender to fail to take reasonable steps to communicate the material facts of the transactions in a language that is understood by the borrower. 8.06: Prohibited Practices: (1) It is an unfair or deceptive act or practice for a mortgage broker or lender to make any representation or statement of fact if the representation or statement is false or misleading or has the tendency or capacity to be misleading, or if the mortgage broker or lender does not have sufficient information upon which a reasonable belief in the truth of the representation or statement could be based. Such claims or representations include, but are not limited to the availability, terms, conditions, or charges, incident to the mortgage transaction and the possibility of refinancing.

45

196)

Defendant BANA had a duty to disclose all Material Facts related to the subject

matter in the Mortgage Contract prior to Plaintiff entering into said Contract. 197) The prima facia evidence submitted herewith, demonstrates BANA knew the

material facts, germane to the Meeting of the Minds, the decision making process, that Plaintiff need in order to make an informed decision whether or not he would enter the Mortgage Contract. In order to do that, he needed to know the material facts of the subject matter and parties of this deal before Plaintiff sat down and signed the Mortgage Contract. 198) BANA knowingly misrepresented and intentionally omitted the Material Facts of

the subject matter as it related to the true nature of the Mortgage Contract. 199) BANA misrepresented the terms of the Mortgage Contract and therefore, not

mutually assented to with reasonable certainty. 200) BANA had a duty to disclose the parties involved in this deal whereas BANA had

prior knowledge of the parties. 201) BANA knowingly and intentionally omitted the real parties in interest in the

Mortgage Contract. 202) BANA was not the true party to the Mortgage Contract nor was MERS and

BANA intentionally omitted the true parties to the deal therefore; there was no Mutuality and therefore, no contract. 203) Mutuality means that the parties communicated their agreement to the terms

and conditions in the same sense and at the time of the alleged contract. There is no contract formed if only one party intends to be bound, or if the parties intend to be bound only at a later time.

46

204)

BANA knew that they were going to securitize the Mortgage Loan prior to

entering the contract and that BANA was a mere conduit to the TRUST (certificate holders) and knew when the loan went into default BANA would then try to reattach itself to the Mortgage Contract. 205) BANA knew this Mortgage Contract was toxic and was not sustainable before

BANA issued it as stated by CEO Angelo Mozilo yet did not disclose this material fact. 206) 207) BANA led Plaintiff to believe this was a regular loan and the best deal out there. BANA knew the Material Facts represented to the Plaintiff about the subject

matter of the Mortgage Contract was false. 208) BANA knew that if they disclosed the Material Facts of the subject matter of the

Mortgage Contract Plaintiff would not have entered said Contract. 209) BANA intentionally misrepresented, concealed and omitted the material facts of

the subject matter of the mortgage contract with the intent to induce the Plaintiff into the Mortgage Contract for no other reason but to get His signature on the Note in order to securitize the Mortgage Loan and BANA only interest was to generate fees for their coffers. 210) Had Plaintiff known the material facts of the subject matter of the Mortgage

Contract, he would not have entered said mortgage Contract. 211) Plaintiff entered the intentionally misrepresented Mortgage Contract to his

detriment and has suffered damage as a direct result of BANA intentional misrepresentations and omissions of the material facts related to the subject matter of the Contract. 212) Based on the foregoing, accordingly, the Mortgage Contract is Void ab initio. PRAYER FOR RELIEF WHEREFORE, the Plaintiffs respectfully request the following relief in Count X.

47

A. B. C. D. E. F. G.

Enter judgment for the Plaintiff; Declare the Mortgage Contract Void ab initio; Actual damages to be determined at trial; General and Consequential Damages; Buyer's Damages; Damages Not Speculative; Grant Plaintiff such other, legal, and equitable relief to which He may be entitled

or that this Honorable Court deems meet and proper. COUNT XI FRAUD-CONSTRUCTIVE FRAUD AGAINST ALL DEFENDANTS 213) Plaintiff repeats, realleges and incorporates all supra and infra paragraphs of the

this Supplemental Pleading as though fully set forth herein and incorporates such into the First Verified Amended Complaint and vice versa. Plaintiff pleads here pursuant to F.R.Civ.P. Rule 9, with Specific Particularity. 214) They only element missing from actual fraud is Plaintiff did not rely on the

assignment of mortgage because he uncovered the Defendants scheme before they could complete their Fraud. Notwithstanding, even though Plaintiff did not rely on the assignment others have and the plaintiff has suffered damage because of that assignment. 215) BANA, BONY and MERS conduct is considered fraud under the law despite the

absence of all elements of fraud because it has the same consequences as an actual fraud would have and it is against public interests because of the violation of a public or private trust or confidence, the breach of a fiduciary duty, or the use of undue influence in the Public Record.

48

216)

This Honorable Court may decide from the methods used and the result that it

should treat the situation as if there was actual fraud even if, all the technical elements of fraud have not been proven. 217) Plaintiff filed suit on May 13, 2010 to stop an illegal foreclosure on His Property

and at that time, there was no record of an assignment or conveyances of the note and mortgage at issue herein in any public office. Plaintiff had and does frequently check the public records by searching the Essex County Registry of Deeds, the Uniform Commercial Code registration system at the Massachusetts Secretary of State Office and the MERS servicer ID page. 218) On September 30, 2010, Plaintiff put all the Defendants on notice of Emergency

Legislation as stated supra at 21. 219) On March 22, 2011, Plaintiff discovered that the day after this Honorable Court

denied BANA motion to dismiss on December 16, 2010, a sale of Plaintiff mortgage took place the next day, December 17, 2010 and was recorded on the Milestones Report secreted in MERS. 220) On March 27, 2011, Plaintiff put BANA President & CEOs Brian Moynihan and

Barbara Desoer on notice of the discovery of this unlawful act. See, letter attached herewith marked as Exhibits 41. 221) On June 6, 2011, Plaintiff filed his First Verified Amended Complaint. In that

complaint, Plaintiff claims there was never an assignment to BONY and therefore, they would never have standing to foreclosure, the Trust never had the note and mortgage and never would, making it impossible for any other entity to foreclose on the Trusts behalf. 222) On July 15, 2011, while researching the Essex County Registry of Deeds, Plaintiff

discovered that BANA requested, and MERS on June 30, 2011 created and a document that was material false, the Assignment of Mortgage, to BONY through an outside agency (CoreLogic) on

49

behalf of the above-mentioned Trust. See, Affidavit of John OBrien and Assignment attached herewith marked as Exhibit 36 incorporated by reference herein. 223) On July 19, 2011, Plaintiff again put BANA President & CEOs Brian Moynihan

and Barbara Desoer on Notice of this unlawful act. See, Letter herewith marked as Exhibit 42. 224) As mandated by New York Law and the controlling TRUST documents, BONY

did not have legal possession of the note and mortgage prior to the initiation of the attempted Illegal Foreclosure or before this defensive action was file. See, Milestone Report attached to the First Verified Amended Complaint (FVAC) marked as Exhibit 2 incorporated by reference herein. 225) The Deal Data Sheet marked as Exhibit 3-1 attached to the FVAC clearly

indicates Plaintiffs Mortgage Loan is within the TRUST. In order for the TRUST to have legal possession of Plaintiffs Mortgage Loan, a legal assignment and conveyance was require before December 17, 2010 and July 13, 2011. 226) The Assignment of Mortgage filed on July 13, 2011 on its face is fraudulent and a

forgery; in pertinent part the document states, For Value Received does hereby grant, sell, assign, transfer and convey unto.. This Assignment would be unremarkable but for the fact that MERS cannot own or sell anything and the Assignment was required by law to occur when the Mortgage Loan entered the securitization chain under the period set forth in the PSA. 227) There could be no assignment more than six years after the purported loan at issue

was included in the above-mentioned Trust. The PSA, IRS 860G, and New York Law, requires that on the closing date, the depositor divest itself of all dominion and control over the note and mortgage, and sells, transfers, assigns, sets over and otherwise conveys without recourse to the trustee in trust for the benefit of the certificateholders all right, title and interest of the depositor

50

in and to each Mortgage Loan and all right, title and interest in and to all other assets included in CHL Mortgage Pass-Through Trust 2004-29. 228) The Defendants have fraudulently tampered with and are altering the business

records after BANA initiated a foreclosure and after the Plaintiff raised a Defense by way of this suit and their attempts are in bad faith, not in the regular course of business and contrary to the Federal Rules of Evidence and M.G.L. c. 233 78. 229) BANA, BONY and MERS knew they had no demonstrable legal right or claim in

Plaintiff property or His estate prior to initiating the unlawful foreclosure process and was hoping this Honorable Court was going to dismiss this case last year and when that did not happen, the above Defendants conspired to steal Plaintiffs property. 230) After this Honorable Court denied BANA motion to dismiss, Defendants Brian

Moynihan, Barbara Desoer, BANA, BONY and MERS set out and began with malice and reckless disregard for Plaintiffs welfare to knowingly create and falsely fabricate a chain of title which would demonstrate their standing to foreclose on Plaintiffs property. 231) Had Plaintiff not been diligent and stayed one-step ahead of the above

Defendants, their subterfuge might have been successful. Since the Defendants know the Milestones Report is virtually impossible to obtain because they have it secreted in the fortress that is MERS, they thought they could do what they wanted with impunity and no one would be the wiser. 232) The Defendants Brian Moynihan, Barbara Desoer, BANA, BONY and MERS

knew the recording of the Assignment of Mortgage, assigning both the NOTE and mortgage in the Southern Essex County Registry of Deeds on July 13, 2011, and the Option 2 Beneficial Rights Batch Transfer on December 17, 2010, were fraudulent act, because they knew they were

51

not legally allowed to take such action in light of the law whereas Plaintiff made sure they were aware of the said laws before they committed this fraud. 233) The Defendants BANA, BONY and MERS made material statements of facts

they knew to be false and knowingly and intentionally filed or caused to be filed a false, forged and misleading document containing false material facts in a Massachusetts Registry of Deeds knowing the falsity of said material facts and did so wantonly and with reckless disregard for Plaintiffs welfare and knew said act would harm the Plaintiff. 234) The Defendants BANA, BONY and MERS intent was to demonstrate to the All

the World that BONY was the lawful holders in due course of the note and mortgage and the fraudulent assignment gave them the legal right to foreclose on Plaintiffs Property when in fact, BONY is not. Their intent was to have all the word and the Plaintiff rely on said assignment and the Plaintiff and all the world had a justifiably right and expectation to rely on said assignment. 235) The Defendants BANA, BONY and MERS, knowing filed the false and unlawful

lien on Plaintiffs Property slandering Plaintiffs title thereby creating a cloud on said title. 236) The Defendants BANA, BONY and MERS above actions were committed with

reckless disregard for the Plaintiffs welfare. 237) The Defendants BANA, BONY and MERS actions are knowingly, willful,

wanton, malicious, committed with knowledge of the assignment of mortgages falsity, with the intent to harm Plaintiff and has harmed Plaintiff, with the intent to deceive the Plaintiff and this Honorable Court, violates M.G.L. c. 266 35A, M.G.L. c.267 1, M.G.L. c. 267 5, and as such, BANA, BONY and MERS violated M.G.L. c. 93A 2 & 9. Their actions are egregious, outrageous, oppressive and reckless, beyond the bound of the decency of a civilized society, are

52

unfair and deceptive acts and practices and have been committed with the intent to illegally deprive the Plaintiff of His Property. 238) In this Count, the Plaintiff would ask this Honorable Court to consider the totality

of the Defendants actions, the fraud in the law, and find that the Defendants have in fact committed actionable fraud and find that an award of punitive damages be awarded to reflect the egregiousness of their actions and to deter further criminal behavior. Plaintiff finds himself in a gray area between criminal and civil misconduct; their action are clearly criminal however, as a mere citizen; cannot indict them. Punishment must be handed down as a deterrent to this continuing injustice that millions in our society have suffered. These People are not above the law. 239) BANA committed intrinsic fraud and extrinsic fraud on the Bankruptcy Court

since their silence amounts to a material misrepresentation to the Court and denied the Court the inherent right to administer justice, and denied the Plaintiff the right to enforce his rights and would now try to twist that around to the Plaintiff detriment. 240) BANA committed fraud in the factum and fraud in the inducement when they

suckered the Plaintiff into the mortgage loan at issue herein. 241) BANAs behavior throughout the Modification process was outrageous and they

tried to coerce Plaintiff into committing fraud to be considered for relief under HAMP. 242) When all the facts in this case are considered, this Honorable Court will be left

with one conclusion; from its conception, this ordeal has been a very long, illegal and outrageous nightmare for the Plaintiff and his Family and the Defendants herein are guilty as charged. PRAYER FOR RELIEF WHEREFORE, the Plaintiffs respectfully request the following relief in Count XI:

53

A. B. C.

Enter Judgment for the Plaintiff; Declare BANA, BONY and MERS committed Fraud; Grant a final injunction enjoining all Defendants agents and employees,

affiliates, successors, assigns, and subsidiaries, from continuing to harm and to prevent irreparable harm to Plaintiff of loss of Property; D. estate; E. Award actual and/or statutory damages to the Plaintiff in an amount to be Declare no entity now or in the future has a valid claim in Plaintiffs property or

determined at trial; F. G. H. I. Award Plaintiff His costs and Fees; Award damages for severe emotional distress; Award Punitive Damages that this Honorable Court deems just and proper; and Grant Plaintiff such other and further relief as this Honorable Court deems meet

and proper. Respectfully Submitted /s/Robert P. Marley _______________________ Robert P. Marley, Pro-se 18 Lakeview Drive Lynnfield, MA 01940 781-595-0685 C-781-844-3044 Marley0685@comcast.net Dated: December 12, 2011

54

Verification
I, Robert P. Marley, certify under the penalties of perjury that I have prepared and read the Supplemental Pleading, and that the facts stated herein are true to the best of my knowledge. Signed under the penalties of perjury on this 12 day of December, 2011. /s/Robert P. Marley ____________________________ Robert P. Marley, Pro se Dated: December 12, 2011

CERTIFICATE OF SERVICE
I hereby certify that a true copy of the above document was served upon each party through the attorney of record, Neil Raphael, by sending same by electronic means as agree by the parties on December 12, 2011, __________________________ Robert P. Marley, Pro se

55