2013 WELLS FARGO AMENDED CONSENT ORDER- IFR-OR THE CANCELLED FREE FORECLOSURE REVIEW PROGRAM
Foreclosure Fraud Complaint vs Wells Fargo
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3624 2nd Amended Complaint 13CV-26 Page 1
IN THE CHANCERY COURT FOR THE STATE OF TENNESSEE
SIXTEENTH JUDICIAL DISTRICT, RUTHERFORD COUNTY
AT MURFREESBORO
David B. Starkey ) CASE NO: 13CV-26
3624 Lascassas Pike )
Murfreesboro, TN., 37130 ) Second Amended Complaint
Plaintiff, Pro Se )
) JURY TRIAL DEMANDED
VS. ) ON ALL ISSUES SO
) TRIABLE
WELLS FARGO BANK N.A. )IKE MOSES (AGENT OF WELLS) )
WILSON AND ASSOCIATES, PLLC )
FEDERAL HOME LOAN )
MORTGAGE CORPORATION )
)
DOES 1-1000 INCLUSIVE )
3624 LASCASSAS PIKE, )
MURFREESBORO, TN. 37130 ) _________________________________________________________
_________________________________________________________
1. This Chancery Court has Jurisdiction and Venue over this
matter. (T.C.A. 29-14-103 and T.C.A. 16-11-101)
2. At all relevant times, Plaintiff has been, and continues to be, a
resident of the County of Rutherford, State of Tennessee, and is
the title owner of the real property situated at 3624
LASCASSAS PIKE, MURFREESBORO, TN 37130
(Property). Plaintiff is a natural person and a resident of the
State of Tennessee.
3. Defendant WELLS FARGO BANK N.A. (Wells) is and was, at
all times material, a corporation organized in the State of
Delaware doing business in the State of Tennessee county of Rutherford. Wells is and was, at all times material hereto, the
alleged "loan originator" and "servicer" of the “subject loan”.
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3624 2nd Amended Complaint 13CV-26 Page 2
4. Defendant IKE MOSES (Ike) is and was, at all times material
the “originating” agent employed by Defendant WELLS
FARGO BANK N.A. doing business in Rutherford County
Tennessee and having his office at 3243 E. 35th
St., St. Louis
MO 63376. Defendant IKE MOSES is and was, at all timesmaterial hereto, the agent of the alleged "loan originator" of the
“subject loan”.
5. Defendant, WILSON & ASSOCIATES, P.L.L.C (Wilson) is a
Tennessee corporation, and acts as a Debt Collector and acting
as a substitute trustee engaged in the business of conducting
non-judicial foreclosures of real property in Rutherford County
Tennessee.
6. Defendant FEDERAL HOME LOAN MORTGAGE
CORPORATION (FHLMC), known as Freddie Mac, is a public
government sponsored enterprise (GSE), headquartered in
unincorporated Fairfax County, Virginia at 8200 Jones Branch
Dr. Mc Lean, VA 22102-3110. FHLMC buys Promissory
Notes and Deeds of Trust on the secondary market, pools them,
and sells them as mortgage-backed securities (MBS) to
investors on the open market. FHLMC at all times material
hereto was purchasing Promissory Notes and Deeds of Trust
with property located in Rutherford County Tennessee.
FACTUAL ALLEGATIONS
7.
Plaintiff makes no admissions unless expressly admitted herein.
8. Around May of 2007 Plaintiff responded to an online internet
solicitation from Defendant Ike acting as agent for Defendant
Wells that was offering Plaintiff a home loan from Defendant
Wells.
9. Plaintiff was led to believe by Defendant Ike that he would be
engaging in a “mortgage loan transaction” with DefendantWells as the “lender of funds” on or about June 7, 2007.
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10. All documents used by Defendant Ike to facilitate the purported
“home loan” for Plaintiff were completed by Defendant Ike.
11. Upon information and belief Defendant Wells used Plaintif f’s
note as “value" and then used a portion of the proceeds acquired
to appear as a “loan” from Defendant Wells for the acquisitionof Plaintiffs Property. Defendant Wells did not use their funds
to facilitate the alleged loan and thereby intentionally
misrepresented itself as the “lender” in the transaction.
12. The purported “mortgage loan transaction” was not a loan from
Defendant Wells, but consisted merely of transfers and
exchanges of credits amongst bookkeeping entries ultimately
using funds in a large pool of funds provided by “investors” inMortgage Backed Securities (MBS).
13. Said bookkeeping entries did not follow regulations for
Generally Accepted Accounting Principles (GAAP). But used
“off balance sheet transactions”.
14. The purported “mortgage loan transaction” with Defendant
Wells was and is by information and belief part of a
securitization scheme whereby investors in Mortgage Backed
Securities (MBS) were the source of funds for Plaintiffs “loan”
and not Defendant Wells.
15. Plaintiff denies there was a loan from Defendant Wells to him
as is alleged in Defendants unverified copies of alleged
promissory note and Deed of Trust (DOT).
16. By information and belief Defendant Wells misrepresentation
of themselves as the “lender” and source of funds for Plaintiffs
“loan” has led to the recording of a false DOT in the
Rutherford County Property Records ultimately placing a cloud
upon the Plaintiffs title to his property.
17. The purported loan transaction between Plaintiff and DefendantWells lacked any consideration from Wells.
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18. By information and belief Defendant Wells is not the true
lender for Plaintiffs “purported loan transaction” therefore, they
are not the true beneficiary of any Promissory Note or Deed of
Trust associated with Plaintiffs Property.
19. Plaintiff denies the alleged “Note” and the alleged DOT. Thetrue lender was not identified and the “Note” was then
securitized. Therefore the terms of the “Loan” reflect a
transaction that did not occur. The true transaction is
undocumented.
20. Plaintiff denies the alleged “Note” since it is not evidence of
the actual transaction.
21. Plaintiff denies the alleged DOT because it secures the
defective “Note”.
22. By information and belief Defendant Wells has recorded a
fraudulent Deed of Trust Document in the property records of
Rutherford County claiming to be the “lender” and therefore
clouding the title to Plaintiffs Property.
23. Plaintiff never received an executed copy of the alleged
promissory note or agreement that possesses Plaintiffs bona fide
signature or a receipt for signing said note or a check in return
for signing said note.
24. Defendant Wells has not established the validity of the alleged
promissory note or its existence.
25. By information and belief Defendant Wells took Plaintiffs
promissory note, materially altered it and then transferred it to
Federal Home Loan Mortgage Corporation FHLMC (see
Exhibits D & E).
26. By information and belief FHLMC securitized Plaintiffs loan
placed it in a “pool” of notes and sold it as a Mortgage BackedSecurity (MBS).
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27. Defendant Wells is not the holder in due course or the agent for
the holder in due course of Plaintiffs promissory note. And
cannot show through GAAP that they obtained Plaintiffs note
by providing any compensation or consideration to Plaintiff.
28. Defendant Wells has not produced the original promissory notewith Plaintiff’s name on it and any alleged “assignments” for
Plaintiff to examine despite numerous written requests from
Plaintiff (see Exhibits A, C, N & O).
29. It is essential for the Plaintiff to establish that the entity that is
demanding payment of a negotiable note, or to whom payment
is made, is the duly qualified holder of the note. Plaintiff is
exposed to the risk of double payment, or at least to the expenseof litigation incurred to prevent duplicative satisfaction of the
instrument. Plaintiff has a recognizable interest in demanding
proof of the chain of title and the holder in due course of his
promissory note.
30. Plaintiffs purported “loan transaction” was and is subject to
undisclosed agreements to which Plaintiff was not a party, in
violation of TCA Title 47 and Tennessee and Federal statutes.
31. Plaintiff denies that any default on above mentioned alleged
loan exists.
32. By information and belief third party payments have been made
on the obligation and money has changed hands.
33. No full accounting or proof of loss by any Defendant has been
provided in support of the alleged default despite numerous
requests by Plaintiff. (See Exhibits A, C, N and O)
34. August 02, 2012: Defendant Wells received the first of threeQualified Written Requests (QWR) from Plaintiff pursuant tothe Real Estate Settlement Procedures Act (RESPA)12 U.S.C. §
2605 and a Debt Validation Letter (DVL) pursuant to the Fair Debt Collection Practices Act (FDCPA). (Exhibit A)
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35. Plaintiffs QWR’s were an effort to obtain the principal balanceclaimed owed, an accounting, proof of loss, validation of thedebt claimed and the Holder of Plaintiffs note concerning Plaintiffs property and Defendant Wells account #0073690109.
36. September 1, 2012: Wells improperly responded to the firstQWR. (Exhibit AA) and informed Plaintiff that additionalinformation may be had by calling their Subpoena Line.
37. Defendant Wells dishonored the statutory requests and provided
no 20-day acknowledgement and only a partial and insufficient
60-day response to the QWR and DVL.
38. Defendant has produced no enforceable original note with any
assignment or allonge proving up the chain of title.
39. April 19, 2013 The Department of Treasury Office of theComptroller of Currency issued a letter to Defendant Wells andthe other national banks issuing Operating standards for
scheduled foreclosure sales (see Exhibit AAA). On page 2under the heading of Minimum Pre-Foreclosure Sale Review Standards:
1. Is the loan’s default status accurate?
2. Does the servicer have and can demonstrate the appropriatelegal authority to foreclose (documented assignments, note
endorsements, and other necessary legal documentation, asapplicable)?
40. Defendant Wells refuses to answer plaintiff’s questionsconcerning any default and the principal balance claimed owed,an accounting, proof of loss, validation of the debt claimed andthe Holder of Plaintiffs note concerning Plaintiffs property andDefendant Wells account #0073690109 (Exhibit A, C, N, O)
Defendant Wells responded to Exhibit A by saying : “plaintiff’squestions were too broad”.
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41. Defendant Wells did send a purported “true and exact”photocopy of the alleged note (Exhibit B) in response toPlaintiffs 1st QWR.
42. Plaintiff denies that the alleged “copy” of the alleged “note” is atrue and correct representation of plaintiff’s original note.
43. September 19, 2012: Defendant Wells received a second QWR from Plaintiff again attempting to obtain the informationrequested pursuant to the above mentioned acts (Exhibit C).
44. On page 22 of Plaintiffs 2nd QWR, Dated September 19, 2012,under paragraph 1 of Default Provisions Plaintiff rescinded any and all power of attorney associated with the above referencedaccount # 708-0073690109 (See Exhibit C).
45. All questions not answered in the first QWR were asked againin the second QWR (Exhibit C) including the request for the
alleged default accounting and the legal authority to foreclose orOwner and Holder in due course of the Plaintiffs promissory note. None of which was revealed by Defendant Wells in theirpartial response to Plaintiffs first QWR.
46. October 30, 2012: Plaintiff also received an improper responseto his second QWR from Defendant Wells dated October 26,2012 (Exhibit D).
47. Defendant Wells once again dishonored the statutory requests
and provided no 20-day acknowledgement and only a partial and
improper 60-day response to the QWR and DVL.
48. Defendant Wells partial response was dated far outside thetwenty day response required by the above mentioned acts.
49. Plaintiff did not receive any answer to any of his questionsabout accounting, proof of loss or Owner and Holder in duecourse of his promissory note.
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50. In Defendant Wells partial response to Plaintiffs second QWR Plaintiff was informed that Federal Home Loan MortgageCorporation (FHLMC) or Freddie Mac was the “investor” forthe alleged loan (see Exhibit D pg. 1 paragraph 2).
51. Research into the FHLMC website discovered that FHLMCclaimed “ownership” of Plaintiffs “mortgage” (see Exhibit E).
52. It is essential for the Plaintiff to establish that the entity that is
demanding payment of a negotiable note, or to whom payment
is made, is the duly qualified holder of the note. Plaintiff is
exposed to the risk of double payment, or at least to the expense
of litigation incurred to prevent duplicative satisfaction of the
instrument. These risks provide Plaintiff with a recognizableinterest in demanding proof of the chain of title.
53. December 12, 2012: Plaintiff received a Notice of Trustee’sSale (NTS) from Defendant Wilson (see Exhibit F).
54. In Wilsons NTS, Defendant Wilson claims: “default has
occurred,”
and Wilson was now appointed Successor Trustee.”
55. In Wilsons NTS, Defendant Wilson stated that the “entireindebtedness has been declared due and payable” and that theProperty would be sold January 9, 2013.
56. In NTS Wilson stated that they mailed Plaintiff a HB -3588letter and that notice of sale has been inserted in the local paper
on December 14th, 21st and 28th.
57. Plaintiff denies that Defendant Wilson provided him with aHB -3588 letter.
58. Plaintiff denies any default on the subject loan has occurred.
59. On page 22 of Plaintiffs 2nd QWR, Dated September 19, 2012,under paragraph 1 of Default Provisions Plaintiff rescinded any and all power of attorney associated with the above referencedaccount # 708-0073690109 (see Exhibit C).
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60. Defendant Wells had no Power of Attorney to appoint aSuccessor Trustee to Plaintiffs DOT and no proof of default todo so.
61. December 17, 2012: Plaintiff filed an Affidavit of Notice of Revocation of Power of Attorney and Termination of Attorney in Fact (RPA) in the Rutherford County Tennessee property records at Book 1181, Page 1238 (see Exhibit G).
62. Affidavit of RPA was filed with regard to the Deed of Trust(DOT) recorded in Book 752 Page 2085 of the RutherfordCounty of Tennessee property records (See Exhibit H).
63. This Affidavit of RPA pertained to the Transfer of rights in theproperty and the illegal waivers of borrower’s rights clauses onsaid DOT.
a. Per Code of Federal Regulations § 617.7010 Title 12 -
Banks and Banking Title PART 617 - BORROWERS
RIGHTS-Subpart A - General Item (c), the borrower'swritten waiver must contain a statement that the
borrower was represented by legal counsel in connection
with execution of the waiver (see Exhibit I).
Plaintiff was not represented by legal counsel in any meeting
with Defendants and there was no statement that the borrower
was represented by legal counsel in connection with execution
of any waivers on any paperwork in reference to the abovementioned transactions.
64. December 17, 2012: Defendant Wilson prepared and filed an
Appointment of Successor Trustee (AST) in the Rutherford
County of Tennessee property records at Book 1181, Page 1141
(see Exhibit J).
65. Because Defendant Wells has failed to, or cannot, provide anyevidence that it has an identifiable interest of any kind in my
Note, that it has the right to enforce my Note, or that it even
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knows the identity of such a person (see Exhibit A, C, N, O),
upon information and belief, I therefore deny that Defendant
Wells has demonstrated any condition or circumstance that
would have permitted it to initiate an appointment of a
Successor Trustee or any other terms under my Promissory Note
or Deed of Trust.
66. Upon information and belief, the alleged successor trustee did
not use internal policies or procedures that would permit it to
determine whether the person engaging it to initiate the
foreclosure process under my Security Instrument actually is the
Owner and Holder in Due Course of my Note or its duly
appointed servant.
67. Defendant Wilson filed the AST (Exhibit J) after Plaintiff had
filed his Affidavit of Revocation of Power of Attorney (Exhibit
G) regarding the DOT (Exhibit H) referencing his property. And
3 months after plaintiff had originally rescinded the power of
attorney through default provisions in his second QWR (Exhibit
C page 22).
68. Defendant Wells has not verified that it was “the lender” in any
transaction with Plaintiff. And according to the alleged DOT
(Exhibit H pg. 13 #24) only the “lender” may appoint a
successor trustee.
69. Plaintiff has made several attempts to determine the alleged
“lender” status of Defendant Wells with regards to his “note”
(see Exhibits A, C, N & O).
70. Defendant Wells claims to be the “servicer” of the “note”, not
the “Holder in due course”, the “Owner” or the “lender” or the
person entitled to enforce the note.
71. Defendant Wells does not have “lender” status or evidence of
default or power of attorney to appoint Defendant Wilson to bea “successor trustee”.
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72. Defendant Wilson had no authority to file the fraudulent
appointment of successor trustee in the Rutherford County land
records.
73. By information and belief the trustee must act as a neutral figure
and perform his duties properly, which prohibits him fromacting as the agent of the alleged beneficiary. When the trustee
is not given a copy of a properly endorsed note and a cognizable
chain of the deed of trust, he is most assuredly not performing
under his duties to the deed of trust.
74. Defendant Wilson was not legally appointed a successor trustee
and Defendant Wells does not have “lender” status and
therefore had no legal basis to “appoint Defendant Wilson as“successor trustee”, issue any default, acceleration or notice of
sale according to the Deed of Trust (see exhibit H).
75. The DOT (see Exhibit H) recorded in Rutherford County
Record Book 752, Page 2097 paragraph 24:
“Substitute Trustee. Lender, at its option, may from
time to time remove Trustee and appoint a successor
trustee to any Trustee appointed hereunder by an
instrument recorded in the county in which this
Security Instrument is recorded.”
76. AST was allegedly signed by one Carol Adams as Vice
President Loan Documentation for Defendant Wells (see
Exhibit J p2).
77. Plaintiff denies this signature to be a true signature of Carol
Adams alleged Vice President Loan Documentation of
Defendant Wells and also denies that Carol Adams was an
employee of Defendant Wells at the time her signature was
allegedly placed on the fraudulent AST.
78. By information and belief said Carol Adams has not worked for Defendant Wells since December 2010 (see Exhibit K p2).
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79. Wells Fargo has been censured across the country and sued by
all fifty State Attorney Generals for submitting false, fraudulent,
forged and fabricated documents. This practice is pervasive in
courts across the country. See the statement of Honorable
Arthur M. Schack, New York State Supreme Court made before
the US House of Representatives Committee on Oversight andGovernment Reform (Exhibit KK).
80. Defendant Wells has not confirmed verified or proved its
“lender” status with authority to appoint a successor trustee (see
Exhibits A, C, N and O).
81. By information and belief, the Appointment of Successor
Trustee by Defendants Wells and Wilson is fraudulent and void.
82. December 21, 2012: Plaintiff recorded an Affidavit of Forgery
(AF) at Book 1182, Page 3247 of the Rutherford County
Tennessee property records with regard to Wilsons
Appointment of Successor Trustee (see Exhibit L).
83.Plaintiff denies the truthfulness of the contents of WilsonsAppointment of Successor Trustee that was recorded December
17, 2012 at 9:00 am, in Record Book 1181, Page 1147, Official
Records of Rutherford County, Tennessee (see Exhibit J)
84. Defendant Wells allegedly sold Plaintiffs note to FHLMC (see
Exhibit D pg.1 para.2 and Exhibit E).
85. Defendant Wells failed to execute an assignment of Deed of
Trust in the Rutherford County property records documenting
the sale of Plaintiffs note to FHLMC or its effect upon the Deed
of Trust further clouding Plaintiffs title to the subject property.
86. Wells Fargo Bank N.A., used funds from investors in MBS to
obtain Plaintiffs Note simultaneously transferring ownership of
that Note to FHLMC. Any “rights” Defendant Wells may have
claimed under Plaintiffs Note and Deed of Trust wereextinguished at that time.
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87. The Promissory note was sold/transferred and Defendant Wells
could no longer be considered “the lender ”. And in fact has not
proved that it ever was the source of funds or (lender) for
Plaintiffs home loan despite numerous requests from Plaintiff
for that proof (Exhibit A, C, N, & O).
88. When a promissory note is sold the originating lender on the
Promissory Note ceases to be the lender if it ever was.
89. When Defendant Wells Negotiated Plaintiffs note and assigned
the note and DOT to FHLMC there was no longer a “lender”
with a power of appointment under the DOT contract.
90. Defendant Wells allegedly sold Plaintiffs Note. Subsequentalleged assignees or “holders” are not “Lenders”; instead, they
are purchasers if in fact they are truly a holder-in-due-course.
91. At the time Defendant Wilson was allegedly appointed as
successor trustee it was not done by an entity that had the power
to do so.
92. There are statutory violations in Defendant Wilsons notice of
the trustee’s sale. Sale was advertised before trustee was legally
appointed or recorded and no “lender” or beneficiary or agent of
Defendant Wells could appoint a trustee.
93. There is no indication an authorized officer claiming power to
substitute the Trustee ever signed or knew about this instrument.
94. Plaintiff requests that Carol Adams alleged Vice President of
Defendant Wells witness her signature on the Appointment of
Successor Trustee document.
95. AST is allegedly notarized by a North Carolina notary who
claims that Carol Adams “ personally came before me this day
and acknowledged that she is the Vice President Loan
Documentation, of Wells Fargo Bank, N.A.” (see Exhibit J pg.2). No Drivers license or identification was presented.
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96. Plaintiff denies the validity of the signature and notarization
placed upon the AST and humbly requests that alleged notary
Patricia A. Siewert witness her signature and testify to the
presence of Carol Adams at the signing of the AST.
97. Wells Fargo Bank has been censured across the country andsued by all fifty State Attorney Generals for submitting false,
fraudulent, forged and fabricated documents.
98. The United States of America Department of the Treasury
Comptroller of the Currency issued a “Consent Order” (Exhibit
LL) to Defendant Wells where they found (page 2 Article 1
Comptroller Findings #2 ) that Wells:
a. filed or caused to be filed in state and federal courts
affidavits executed by its employees or employees of
third-party service providers making various assertions,
such as ownership of the mortgage note and mortgage,
the amount of the principal and interest due, and the fees
and expenses chargeable to the borrower, in which the
affiant represented that the assertions in the affidavit
were made based on personal knowledge or based on a
review by the affiant of the relevant books and records,
when, in many cases, they were not based on such
personal knowledge or review of the relevant books and
records;
b. filed or caused to be filed in state and federal courts, or
in local land records offices, numerous affidavits or other mortgage-related documents that were not properly
notarized, including those not signed or affirmed in the
presence of a notary;
c. litigated foreclosure proceedings and initiated non-
judicial foreclosure proceedings without always ensuring
that either the promissory note or the mortgage
document were properly endorsed or assigned and, if necessary, in the possession of the appropriate party at
the appropriate time;
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99. Plaintiff denies all aspects of the alleged Appointment of
Successor Trustee filed in the Rutherford County Tennessee
property records by Defendants Wells and Wilson.
100.December 21, 2012: Plaintiff filed a UCC financial statement
registering his claim and securing his continued interest in the property and “note” registered at Book 1182, Page 3256 of the
Rutherford County Tennessee property records (see Exhibit M).
101.December 23, 2012: Defendant Wells received Plaintiffs third
QWR with questions regarding the Property, the holder of the
note and full accounting of the alleged debt (see Exhibit
N).This third QWR is recorded at Book 1181, Page 1242 of the
Rutherford County Tennessee property records. Plaintiff requested for the third time information concerning the Owner
and Holder in due course of his promissory note as well as an
accounting and proof of loss regarding the alleged default
regarding his property.
102.Defendant Wells has not responded to Plaintiffs 3rd
QWR and
has failed to prove that it is the Owner or Holder or an agent of
the Owner or Holder in due course of Plaintiffs Promissory
Note.
103.December 17, 2012: Plaintiff mailed a Notice of Dispute and a
Demand for Validation and Proof of Claim (DVL) (See Exhibit
O), to Defendant Wilson/debt collector in response to Wilsons
Notice of Trustee Sale from December 12, 2012 (see Exhibit F)
stating Plaintiff was in default and his property would be soldat auction January 9, 2013. DVL Notice (Exhibit O) was
recorded in Rutherford County Tennessee property records at
Book 1182 Page 3249 December 21, 2012
104.January 2, 2013: Plaintiff mailed a Notice of Trustee
Obligations (NTO) to Defendants Wells, Wilson and Weiss
(see Exhibit P).
105.NTO was recorded in Rutherford County Tennessee Property
records at Book 1183 Page 1962 on December 26, 2012.
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106.On page 2 of NTO Plaintiff again gave notice of rescinding the
above referenced loan transaction with Defendant Wells.
Defendants were again notified by certified mail, return receipt
requested.
107.Plaintiff exercised his right to rescind the alleged loan
transaction under the three day, three year, usury and general
claims theories and causes of action.
108.January 2, 2013 Plaintiff sent a Notice of Rescission (NOR) to
Defendants Wells, Wilson, and Weiss and to FHLMC (Exhibit
Q).
109.NOR was recorded in the property records of Rutherford
County Tennessee at Book 1185 Page 1000.
110.NOR also served as a Demand letter citing possible causes of
action to be Appraisal Fraud, Usury, Common Law Fraud in
the Inducement, Common Law Fraud in the Execution,
Security Violation, Intentional Misrepresentation, Fair Debt
Collections Pr actices Act, Federal Trade Commission’s
Safeguard Rule, TILA, RESPA and RICO.
111.January 3, 2013: Plaintiff received a deficient response to his
DVL from Defendant Wilson which was dated December 31,
2012 (See Exhibit R).
112.Defendant Wilson’s deficient Response did not indicate the
amount of the alleged debt nor did it validate the alleged debt
as required by the above referenced Acts.
113.Defendant Wilson simply stated that “it appears that the debt is
valid.” (See Exhibit R Paragraph 1 lines 1&2)
114.Defendant Wilson also sent a purported “true copy” of thealleged Note in response to Plaintiffs DVL (see Exhibit S).
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115.Defendants Wells and Wilson have never proved foundation
standing or authority to bring any action under Plaintiffs
Promissory Note or Deed of Trust despite numerous attempts
by Plaintiff to obtain Verification of the debt, proof of loss,
Owner and Holder in due course of the Plaintiffs promissory
Note.
116.Defendant Wells claims to be the “servicer” of the “loan”, and
as such cannot institute or maintain any action under the Note
or DOT without proper authority from the Owner and Holder in
due course of the promissory note.
117.Defendant Wells refuses to explain the business relationships
among the securitization parties, remaining silent on thesubject, thereby denying and concealing the very existence of
the parties, the agreements among them, and the substantial
money that changed hands (Exhibits A, C, N, O).
118.Plaintiff has received conflicting representations as to the
alleged creditor’s identity, and believes there exists a title
defect or cloud on the title to his property.
119.Defendant Wells has not demonstrated actual loss or threatened
injury as a consequence of any unverified alleged default.
120.Defendant Wells has benefitted financially from the “loan
transaction” with Plaintiff.
121.Severance of the ownership and possession of the original noteand DOT has occurred.
122.Plaintiff alleges that the original promissory note no longer
exists and is invalid as it is based solely upon purported copies
which have no force and effect.
123.Plaintiff affirmatively asserts that the documents proffered and
actions of the parties are in fact part of a criminal joint venture
in which Plaintiff was the victim.
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124.Plaintiff denies that Defendant Wells and/or its agents have
ever disclosed/proved the true beneficiary on any document or
in any other media, oral or written in violation of TCA Title 47.
125.Plaintiff denies the validity of the deed of trust filed in the
Rutherford County property records by Defendant Wells because of the absence of a true beneficiary causing a fatal
defect in the instrument and ultimately clouding the title to
Plaintiffs property.
126.Plaintiff denies Defendant Wells has any legal right to declare a
default or acceleration or appoint a successor trustee or initiate
a power of sale provision in any Deed of Trust associated with
plaintiff’s property.
127.Plaintiff denies that a substitute trustee was ever appointed by
any person or entity authorized to do so.
128.Defendants have continued their collection efforts in spite of
providing no information, disclosure or evidence of any kind
establishing their purported rights to foreclose or collect againstthe Plaintiff.
129.Upon information and belief, I have no agreement with
Defendants; they are owed nothing by me; and Defendants do
not own or control any interest or right in my Promissory Note
that permits any of them to enforce my Note in accordance with
the constraints of TCA Title 47. Furthermore, these facts apply
equally to any company for which Defendants might claim theyare working for to enforce my DOT in any way shape or form.
130.Upon information and belief, my Note is not in default, I have
received no presentment per the constraints of the TCA to the
contrary, and I owe nothing to Defendants or any company they
purport to be working for.
131.Upon information and belief, I owe nothing to Defendants; Ihave seen no evidence or presentment that any amount is still
due under my Note. Furthermore, I maintain that the balance
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due under my Note is not relevant to the controlling question of
whether Defendants have any right by law to enforce my Note
pursuant to the TCA.
132.Upon information and belief, I deny that any past transactioninvolving my Note or DOT created in Defendants a legal right
to now make demands on me for payment related to my Note,
declare my Note in default, or otherwise enforce my Note per
the TCA, and Defendants have refused to provide genuine
evidence to the contrary. Accordingly, I owe Defendants
nothing, I owe nothing to whatever company Defendants may
allege to be serving, and Defendants have no right to enforce
my DOT when I owe nothing to it or whatever person for which it may be working.
133.Upon information and belief, I owe Defendants nothing; I owe
nothing respecting my Note to any company for which
Defendants might work; they have no right to enforce my Note
pursuant to the TCA; and they have no right to trigger the
power of sale under my DOT for the purpose of taking my
home via foreclosure under a mistaken or fraudulent claim that
they have the legal right to collect an unsatisfied obligation
owed by me.
134.Upon information and belief, the threatened foreclosure is in
violation of my rights because the power of sale pursuant to my
DOT has not been initiated by the person entitled to enforce my
Note pursuant to the TCA Title 47, or that person’s servant; thealleged trustee did not receive instructions to commence this
foreclosure from the person to whom the obligation of my Note
is owed, or that person’s servant; and I do not owe anything to
the person for whose benefit the threatened foreclosure is
allegedly being conducted. Accordingly, the threatened
foreclosure violates the terms of my Note and DOT, and it
violates Tennessee’s nonjudicial foreclosure law, which
necessary requires application of the TCA regarding the issueof who has a right to enforce my Note.
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135.Upon information and belief, Defendants have refused to, or
cannot, produce evidence that they have any right to enforce
my Note, for itself or any other person, even though I requested
that proof from Defendants. Accordingly, Defendants have
admitted pursuant to the TCA that I owe it nothing, that it has
no right or standing to make demands related to my Note, andthat I did not dishonor my Note as a result of refusing to
comply with Defendants unsupported and mistaken or
fraudulent demands,. Furthermore, I maintain that, because I
owe nothing to Defendants, or any company for which they
work, they have no right to foreclose on my house because it
can show no unsatisfied obligation that is secured by my DOT.
136.Defendants have failed or refused to comply with the requests Ihave made through my QWR’s to it. It has f ailed or refused to
produce genuine evidence establishing that it or any person it
knows is the Owner and Holder in due course with the rights of
an Owner of my Note.
137.Upon information and belief, I deny that Defendant Wells is the
Owner and Holder in due course of my Note or a servant of that
Owner following instructions issued by that Owner respecting
my Note and Security Instrument.
138.Upon information and belief, Defendants have admitted that
my Note is not in default, that I owe it nothing, and that I have
not dishonored or breached my Note by refusing to comply
with the demands they made on me.
139.Upon information and belief, Defendant Wells is not the real
party in interest because it has no economic or beneficial
interest in my Note and Security Instrument.
140.Defendant Wells lacks authority to discharge my obligation
under my Note or to otherwise settle the dispute before this
Court should settlement efforts be attempted during this
lawsuit.
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141.Defendant Wells is not the Owner and Holder in Due Course of
my promissory Note or is it that Owners servant with respect to
my Note and Security Instrument.
142.Two alleged “true copies” of my purported promissory note, as
they were sent to me by Defendant Wells and Defendant
Wilson in partial response to QWR’s are attached as Exhibits B
and S respectively hereto. They reflect no indorsements or
allonges but, upon information and belief, my note has been
sold, exchanged, traded assigned, or otherwise transferred since
then. See the claim of ownership by Federal Home Loan
Mortgage Corporation (FHLMC) at Exhibit E.
143.Upon information and belief, my Note has been sold, assigned,
exchanged, traded, or otherwise transferred many times since
its creation.
144.Upon information and belief, my Note is a negotiable
instrument pursuant to Tennessees’ version of the Uniform
Commercial Code TCA Title 47-3-104. As such, only the
person qualified by TCA 47-3-301 has the right to enforce the
Note, and necessarily the right to enforce my DOT, which is
only incidental to my Note.
145.Defendants have failed to, or cannot, provide verifiable and
complete information explaining how they acquired or obtained
an interest of any kind in my Note, even though I requested
such proof (Exhibits A, C, N, & O). Upon information and
belief, therefore, I deny that Defendants have any interest in my
Note, whether as owner, possessor, or person with a right to
enforce my Note pursuant to TCA 47-3-301.
146.Defendants have refused to, or cannot, identify the person who
has the right to enforce my Note pursuant to TCA 47-3-301,
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even though I have requested such proof (Exhibit A, C, N and
O). Upon information and belief, therefore, I deny that
Defendants are an agent or representative of any person
actually having the right to enforce my Note.
147.Defendants have failed to, or cannot, provide information
regarding the balance, if any, due under my Note, even though I
requested that information (Exhibits A, C, N, and O). I have
received no information regarding the balance due, if any,
under my Note from any person having demonstrated the right
to enforce my note pursuant to the strictures of TCA 47. I
therefore do not know if any amount is still due and I have not
received any presentment respecting my Note, as defined by
TCA 47- 3-501. Upon information and belief, therefore, I deny
that any balance is due under the Note, and furthermore, I
maintain that questions or answers about the amount still due, if
any, under my Note have no bearing on the crucial legal issue
of whether Defendants have any right to enforce any obligation
under my Note.
148.Upon information and belief, I deny that any default exists
under the Note or that the Note has been dishonored or
breached pursuant to TCA 47-3-502 as a result of my having
refused to comply with the unsupported claims of Defendants.
Furthermore, I maintain that no discussion of default or
dishonor bears on the question of law as to whether Defendantshave any right to enforce my Note pursuant to TCA 47-3.
149.Defendants have failed to, or cannot, provide the chain of
ownership and authority respecting my Note since its creation,
including the circumstances and details of each alleged transfer,
sale, or exchange, even though I requested same (Exhibits A, C,
N and O). Upon information and belief, I therefore deny thatDefendants have any legal interest in my Note, that I have any
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obligation to them pursuant to my Note, or that it even knows a
person with the right to enforce the Note.
150.Because Defendants have failed to, or cannot, provide any
evidence that they have an identifiable interest of any kind in
my Note, that it has the right to enforce my Note, or that it even
knows the identity of such a person, upon information and
belief, I therefore deny that Defendants have demonstrated any
condition or circumstance that would have permitted them to
initiate any action under the terms of my DOT.
151.TCA 47-3 requires anyone making demands under my Note to
first prove a right, recognized under TCA 47-3, to enforce the
Note. Defendants have failed to do that, and their failure, for
whatever reason, is a tacit admission that it has no right to
enforce my Note and that I do not owe anything to them or any
company for which they are acting as servant.
152.Upon information and belief, the alleged trustee attempting to
foreclose my home does not know the identity of the person
authorized by TCA 47-3 to enforce my Note.
153.Upon information and belief, the alleged trustee was not
appointed to that position by the owner/holder/beneficiary of
the Note or its duly appointed agent, and, accordingly the
alleged trustee has no authority to initiate or conduct a
foreclosure pursuant to the terms of my DOT and Tennessee
nonjudicial foreclosure law.
154.Upon information and belief, the alleged trustee has made no
effort to verify the identity of the owner/holder of the Note and
has therefore Breached its duty to that owner/holder and also to
Plaintiff by commencing and conducting the foreclosure process.
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155.Upon information and belief, the alleged trustee initiated the
threatened foreclosure for the purpose of delivering the
foreclosure sale proceeds or the title to my home to a person
other then the owner/holder of the note, contrary to the terms of
the Note, the DOT and Tennessee nonjudicial foreclosure law.
156.Upon information and belief, my DOT does not authorize the
alleged trustee to initiate a foreclosure of its own volition, and
yet it received no instruction to do so form the owner/holder or
its servant. Accordingly, no power of sale has been triggered,
so any attempted foreclosure is not valid or authorized.
157.Upon information and belief, I owe no debt to the alleged
trustee or whomever it claims to be serving.
158.Upon information and belief, the alleged trustee did not initiate
the subject foreclosure pursuant to the terms of the DOT and
the Note, and therefore is participating in a mistake or fraud
respecting the foreclosure of my home.
159.Upon information and belief, the alleged trustee has violated
the nonjudicial foreclosure statutes by having initiated a
foreclosure that is not authorized by the DOT or the Note it
secures; by having taken its instruction to commence the
foreclosure from a person who is not the owner/holder/lender
or the legal representative of such person ; by having
commenced the subject foreclosure when, in fact, the Note
served by the DOT is not in default or dishonored; and by
having commenced the subject foreclosure, not for the benefit
of the owner/holder, but instead for the purpose of delivering
the foreclosure sale proceeds or title to the house to a person
other than the owner/holder of the Note, in violation of
Tennessee nonjudicial foreclosure law.
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160.Upon information and belief, I deny that Defendant Wells
obtained possession of the physical Note via a voluntary
transfer of all the interests in my Note from a person who at
that time was the Owner and Holder in Due Course of my Note.
161.Upon information and belief, I deny that Defendant Wells has
possession of the true physical Note, or even knows its
whereabouts, and that it didn’t have possession of the Note
when it illegally commenced its foreclosure process and
fraudulent appointment of successor trustee.
162.Upon information and belief, I deny that Defendant Wells can
or is willing to produce the true Note for inspection during this
lawsuit.
163.Upon information and belief, I deny having received notice that
a default exists under my Note from a person who was at that
time the Owner and Holder in Due Course of my Note or that
Owners servant who was then following instruction of that
Owner to so inform me.
164.Upon information and belief, never having received notice of
default under my Note from the Owner and Holder in Due
Course of my Note or its duly appointed servant, I deny that
any condition exists under my Security Instrument that would
trigger a power of sale or foreclosure of my Property.
165.Upon information and belief, never having received notice of
default under my Note from the Owner and Holder in Due
Course of my Note or its servant, I deny that any refusal on my
part to make payments or to comply with any demand made by
Defendants in any way evidences my dishonor of my Note, the
creation of any delinquency, or a condition triggering any rightto foreclose or use a power of sale under the Security
Instrument.
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166.Upon information and belief, I deny that my opponent’s ability
to write demand letters and to make threats regarding my Note
and Security Instrument establishes in any way that it has a
right to enforce either.
167.Even though Defendants Wells and Wilson have admitted that
they have no right to enforce my Note and Security Instrument,
I nevertheless maintain that I have never received complete
accounting information from the Owner and Holder in Due
Course of my Note or its servant respecting the balance due, if
any, on my Note. I have received no information about
insurance proceeds, claim settlements, or indorsement warranty
payments having been received or sought by the Owner and
Holder in Due Course respecting my Note. Lacking
information to the contrary, I deny that any balance is still
owed regarding my Note.
168.Because Defendant Wells is not the Owner and Holder in Due
Course of my Note or a servant of that Owner, I further deny
that Defendants comments or questions about my Note elevate
in the least its legal status or right to enforce my Note pursuant
to the controlling law, i.e. Tennessee version of the Uniform
Commercial Code, TCA Title 47.
169.Any interpretation of my Note that potentially subjects me to
multiple claims regarding my Note was never intended and was
never disclosed to me as being a possible result by Defendants
Wells and Ike. I never knowingly intended to waive or disclaim
my right to only have to pay the one person entitled to enforce
my Note, and the “Lender” never discussed that possibility or
asked me to make such a waiver or disclaimer. Any
interpretation of my Note to the contrary would be a mistake, aviolation of my fundamental rights, and not reflective of the
intent and purpose of that agreement. Only the one true Owner
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and Holder in Due Course of my Note as defined by the UCC
and TCA Title 47, for a particular time has any right to enforce
my Note, and that is not Defendants Wells or Wilson.
170.Any interpretation of my Security Instrument that would permit
a person other than the Owner and Holder in Due Course of my
Note to initiate and prosecute the foreclosure of my Property or
appoint a successor trustee was never intended and was never
disclosed or addressed by Defendants Wells and Ike as a
possible result. Therefore, any such interpretation of the
purpose or intent of that document would be mistake, invalid
and inconsistent with my rights and any agreement I may have
intended to make with the purported “Lender”.
171.Defendant Wells and Ike never disclosed or addressed that by
executing its forms I would be construed to have relinquished
my right to only pay my obligation to the person legally
entitled to enforce it. That possibility was never mentioned by
Defendant Wells or Ike, and I never knowingly agreed to anysuch possibility. Further, I was never asked to, nor did I agree
to honor demands regarding my Note made by anyone who
didn’t prove the actual right by law to enforce my Note. Any
assertion to the contrary by Defendants will be mistake or
fraud, and inconsistent with any agreement I may have made
with the undisclosed “lender ”.
172.Upon information and belief, I have never knowingly agreed
that any person other than the Owner and Holder in Due Course
of my Note would have the right to foreclose my Property
pursuant to the Security Instrument I gave as collateral for my
Note. Defendants never addressed or disclosed the possibility
that, by signing its Security Instrument form, I would be
authorizing a person not entitled to enforce my Note, and notowed anything by me pursuant to my Note, to take my home.
That was never the intent or approved purpose of the Security
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Instrument. Any assertion to the contrary by Defendants will be
mistake or fraud, as the facts to be revealed in this lawsuit will
demonstrate, and inconsistent of any agreement I intended to
make with the undisclosed “Lender ”.
173.Defendants Wells and Ike prepared, provided, and required that
I use the forms which became my purported Note and Security
Instrument. Any ambiguity or vagueness within either
document must be construed against Defendants Ike and Wells
and its successors in order that my rights under those
agreements be properly understood and applied.
174.Upon information and belief, I deny the power of sale pursuant
to the Security Instrument was ever initiated by action of the
Owner and Holder in Due Course of my Note.
175.Plaintiff denies that the original trustee ever resigned or was
replaced.
176.Plaintiff denies that any substitute trustee ever became the
successor to the original trustee.
177.Plaintiff denies that any Defendant has, in good faith or
otherwise, ever acquired the right to sell the subject property or
seek possession thereof.
178. Plaintiff denies that Defendant Wells was in fact the lender or
creditor when the loan was originated.
179. Plaintiff denies that the Deed of Trust, Promissory note and
other closing documents accurately memorialized the closing of
the loan between Plaintiff and Defendants John Does 1-1000
who are now known to be unidentified investors who advanced
money to Defendant Wells which acted as a mortgage broker
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180.Upon information and belief, the alleged trustee has never been
instructed by the Owner and Holder in Due Course of my Note
to initiate a foreclosure.
181.Upon information and belief, the alleged trustee does not know
the identity of the Owner and Holder in Due Course of my
Note, and, therefore, does not know the person authorized to
issue instructions regarding the Security Instrument.
182.Upon information and belief, the alleged trustee doesn’t use
internal policies or procedures that would permit it to determine
whether the person engaging it to initiate the foreclosure
process under my Security Instrument actually is the Owner
and Holder in Due Course of my Note or a duly appointed
servant of that Owner.
183.Upon information and belief, the alleged trustee initiated these
foreclosure procedures of its own volition in violation of the
express terms of my Security Instrument and Tennessee
foreclosure law.
184.Upon information and belief, the alleged trustee knows that
public recording of documents does not ensure that the content
is accurate, truthful or authorized by law. Accordingly, I deny
that the alleged trustee acted, or is acting, in good faith to the
extent it initiated and continues to conduct this foreclosure
process alleging reliance on the fact that it can point to one or
more documents which have been publicly recorded.
185.Upon information and belief, Defendant Wells lacks standing
in this case, having no economic or beneficial interest in my
Note, and no complete dominion over it, including no right to
enforce my Note pursuant to the UCC and TCA Title 47.
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186.Even though Defendant Wells is listed as the Lender on the
alleged Promissory Note, upon information and belief, my Note
was sold one or more times to others and Defendant Wells no
longer owns or has full dominion over my Note, including no
right to enforce my Note per the UCC and TCA Title 47.
187.Tennessee law requires: (1) that original notes must be kept,
(2) that original notes must returned to the borrower upon
payment in full, (3) that original notes must be produced when
the lender or its representative has demanded payment and the
borrower requests to see proof of an original note’s
existence, and (4) that a lender’s representative show proof of authority to demand payment when the borrower requests
the lender’s representative to do so.
188.Moreover, in the event a mortgage lender or its representative
cannot prove that a Tennessee mortgage original note still
exists, Tennessee law requires proof of certain things before a
lost note will be deemed enforceable, just as the jurisdictions requiring judicial foreclosures do; and
furthermore, Tennessee courts also require compliance with
the Tennessee laws of trusts, assignments, and agency as they
pertain to real estate cases.
189.Defendants, and all of them, are included in each and all of
Plaintiff’s allegations as and where applicable.
PETITION FOR VERIFICATION OF DEBT AND
PROOF OF LOSS
(For Defendants Wells, FHLMC, and Does)
190.Plaintiff hereby incorporates and alleges all of the facts statedhearin above, as though fully set forth at length hearin
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191.Plaintiff requests verification from Defendants Wells,
FHLMC, and Does pursuant to TCA Title 47 in order to
establish the true “lender” that can show the alleged amount of
the alleged debt and “proof of loss” trough GAAP, check and
wire transfers.
192.Plaintiff requests that Defendants produce The True Original
Wet Ink Signature Promissory Note signed by Defendants
Wells and FHLMC and the contracts involved in the transfer
and sale of Plaintiffs note to any entity in association to the
loan pursuant to TCA Title 47 and the UCC.
193.Defendant Wells and FHLMC to stipulate via affidavit that
they are in fact a Creditor in this loan/security instrument. ACreditor needs to show true double entry accounting debits of
the loss as a result of the issuance of the loan to Plaintiff
according to Generally Accepted Accounting Principles
(GAAP).
194.Plaintiff has reason to believe that Defendant Wells has sold his
Promissory Note to FHLMC and FHLMC has sold it under a
"mortgage backed securities instrument" to investors/Does
under a pooling of interest who have purchased “stocks”.
195.If Defendants cannot produce proof of claim and proof of loss,
they have no standing in this or any future controversy.
196.If Defendants are unable to produce proof of claim and proof of
loss, Plaintiff prays the court to order the Defendants to stop allaction against Plaintiff and grant rightful remedies due to
Plaintiff.
PETITION FOR DECLARATORY JUDGEMENT AS TO
HOLDER IN DUE COURSE OF PLAINTIFFS
PROMISSORY NOTE(Regarding Defendants Wells, FHLMC, Does and the Holder in
Due Course with Rights to Enforce the “Note”)
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197.Plaintiff hereby incorporates and alleges all of the facts stated
herein above, as though fully set forth at length herein.
198.Declaratory Judgment from the court is requested by Plaintiff
to declare if Wells or FHLMC or Does 1-1000 are the Owner
and legal holder in due course of the Plaintiffs Promissory Notewith the rights of the holder to enforce Plaintiffs DOT with any
action regarding Plaintiffs property at 3624 Lascassas Pike,
Murfreesboro, TN., 37130 (Property) pursuant to the Tennessee
version of the UCC (TCA Title 47).
199.Defendant Wilson alleges that Defendant Wells has initiated
foreclosure proceedings on the Plaintiff with regards to the
Property in its Notice of Trustee Sale.
200.Plaintiff is threatened with the loss of his residence, income,
continued emotional distress and place of business if Wells is
allowed to act as the holder in due course with the right to
foreclose on Plaintiffs property.
201.Defendants have scheduled the sale of plaintiff’s property.
202.There is a bona fide, actual, present, practical need for the
declaration sought in that the Plaintiffs residence and place of
business and only means of supporting his family is threatened
with a foreclosure sale and eviction.
203.The Courts declaration deals with present ascertainable facts
regarding the present controversy regarding Defendant Wellsrights to enforce provisions pertaining to Plaintiffs promissory
note and Deed of Trust pursuant to the UCC and TCA Title 47
and USC Title 18, Part 1, Chapter 101 § 2071.
204.If Defendant Wells cannot produce proof of claim in the form
of the true original wet ink promissory note and proof of the
right to enforce said note, they have no standing in this or any
future controversy and the right of the Plaintiff to retain his property with all the privileges, power and immunity against
the threat of Wells foreclosure will thereby be affirmed.
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205.If Defendant Wells is permitted to proceed without proof of the
legal standing to do so by production of the note and the right
to enforce said note they will be permitted to convert the
Plaintiffs property and monies.
206.Plaintiff has an actual, present, adverse and antagonistic interestin Defendant Wells claiming to be agent of the holder in due
course of Plaintiffs note. He is threatened with the loss of his
business and residence and means of his families support.
207.Plaintiff denies Defendant Wells is the Owner and Holder in
due course or the agent of the Holder with the rights and
privileges due the Holder.
208.TCA Title 47 requires Wells to produce the true originalnegotiable note in court when seeking recovery upon it or whenasked as well as the proof of loss and right to enforce the“note”.
209.This requirement is drawn from TCA 47-3-301 and TCA 47-3-308 (b). TCA 47-3-301 (i) requires that a party claiming to be a
"holder" of a note (as Wells claims to be here), be in possessionof the note in order to be entitled to enforce it. When thatenforcement right is asserted in a court proceeding, Wells mustthen produce the true note in court.
210.The Tennessee Declaratory Judgment Act provides that:
any person interested under a deed, will, written
contract, or other writings constituting a contract, or whose rights, status, or other legal relations are affected
by a statute, municipal ordinance, contract, or franchise,
may have determined any question of construction or
validity arising under the instrument, statute, ordinance,
contract or franchise and obtain a declaration of rights, status or
other legal relations there under .
211.If Defendants are unable to produce proof of claim as Owner or Holder in due course or Agent of the Owner or Holder in due
course with the rights of the holder of the original promissory
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note, Plaintiff prays the court to make a declaratory judgment
to that effect and order the Defendants to stop all action against
Plaintiff and grant rightful remedies due to Plaintiff.
PETITION FOR DECLARATORY
JUDGEMENT REGARDING APPOINTMENT
OF DEFENDANT WILSON AS SUCCESSOR
TRUSTEE
(RE: Defendant Wilson Trustee)
212.Plaintiff hereby incorporates and alleges all of the facts stated
herein above, as though fully set forth at length herein.
213.Declaratory Judgment from the court is requested by Plaintiff
to declare if Defendant Wilson has been legally appointed and
therefore has legal standing to act as Successor Trustee to
Plaintiffs DOT pertaining to Plaintiffs property at 3624
Lascassas Pike, Murfreesboro, TN., 37130 (Property).
214.Declaratory Judgment from the court is requested by Plaintiff
to declare if Defendant Wilson has adhered to Tennessee
statutes for the notice requirements to legally initiate a
foreclosure action.
215.Defendant Wilson has initiated foreclosure proceedings on the
Plaintiff with regards to the Property.
216.Plaintiff is threatened with the loss of his residence and place of
business if Defendant Wilson is found to be the properlyappointed successor trustee to Plaintiffs DOT with the power of
sale provisions stipulated therein.
217.Defendant Wilson has threatened the sale of plaintiff’s
property.
218.There is a bona fide, actual, present, practical need for the
declaration sought.
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219.The Courts declaration deals with present ascertainable facts
regarding the present controversy regarding Defendant Wilsons
appointment of successor trustee document filed in the
Rutherford County Tennessee Property Records.
220.If Defendant Wilson has not been properly appointed as
successor trustee they have not adhered to Tennessee statutes
for the notice requirements to legally initiate a foreclosure
action.
221.If Defendant Wilson is permitted to proceed without proof of
the legal standing to do so by declaration of the court
concerning the validity of the Appointment of successor Trustee Document filed by Wilson in the Rutherford County
Property Records they will be permitted to convert the
Plaintiffs property and monies.
222.Plaintiff has an actual, present, adverse and antagonistic interest
in Defendant Wilson claiming to be the legally appointed
successor trustee to plaintiffs DOT securing plaintiffs property.
223.Plaintiff denies Defendant Wilson is a legally appointed
successor trustee to his DOT.
224.By information and belief the AST filed in the Rutherford
County Property records on the surface looks genuine enough
to qualify as having the apparent ability to fool most people.
225.This AST document significantly affects the Plaintiffs rights
concerning his property concerning the foreclosure of his
property and the threatened loss of his residence and business
location.
226.The AST document allegedly gives Defendant Wilson the legal
right to conduct a foreclosure sale of Plaintiffs real property
and to execute the legal power of sale provisions outlined in theDOT.
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227.By information and belief Defendant Wilson intended that the
Plaintiff and the Rutherford County Clerk and the Tennessee
Court regard the false AST as being genuine.
228.As a result of Defendant Wilsons admitted “preparation” of the
alleged Forgery concerning their Appointment of Successor Trustee, Plaintiff has suffered general and special damages in
an amount to be determined at trial.
229.The Tennessee Declaratory Judgment Act provides that:
any person interested under a deed, will, written
contract, or other writings constituting a contract, or
whose rights, status, or other legal relations are affected
by a statute, municipal ordinance, contract, or franchise,may have determined any question of construction or
validity arising under the instrument, statute, ordinance,
contract or franchise and obtain a declaration of rights, status or
other legal relations there under .
230.Plaintiff requests that the court make a declaratory judgment
that Defendant Wilson has not been legally/properly appointed
as successor trustee to the Plaintiffs DOT; that Defendant
Wilson has not adhered to proper foreclosure statutes pertaining
to notice of foreclosure and publication of foreclosure as well
as to their role in preparing and filing fraudulent documents
(the AST) in the Rutherford County Property Records. And to
that effect and order the Defendant to stop all action against
Plaintiff and grant rightful remedies due to Plaintiff.
PETITION FOR DECLARATORY JUDGEMENT TO
QUIET TITLE TO PLAINTIFFS PROPERTY
(Against all Defendants)
231. Plaintiff hereby incorporates and alleges all of the facts stated
herein above, as though fully set forth at length herein.
232.Plaintiff is and at all times herein mentioned the owner and/or entitled to possession of the property located at 3624
Lascassas Pike, Murfreesboro, TN., 37130.
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233.The basis of Plaintiffs title is a continuing possession of said
Property and continued interest through a UCC lien on the
“Note”(exhibit M) and a QUITCLAIM DEED (Exhibit T)
granting the above-described property in fee simple to the
David B. Starkey Revocable Living Trust and to Plaintiff DavidB. Starkey.
234.The alleged note and deed of trust have been separated. The
Note has been sold to Defendant FHLMC and subsequently to
investors in Mortgage Backed Securites (Defendants Does 1-
1000) and is therefore owned by shareholders of stocks. The
alleged Deed of Trust that is recorded in the Rutherford
County Property Records claims Wells Fargo as the “lender”/“beneficiary”/ “owner”. This is fraudulent and a cloud on
Plaintiffs Deed of Trust.
235.Plaintiff is informed and believes and on such information and
belief alleges that Defendants and DOES 1-1000 and all persons
claiming, by, through, or under such person, all persons
unknown, claiming any legal or equitable right, title, estate, lien,
or interest in the property described in the Complaint adverse toPlaintiffs' title thereto, claim an interest adverse to Plaintiff in
the above-described property as adverse interest the holder of a
deed of trust against the subject property.
236.A fraudulent DOT was recorded on June 11, 2007 in the
Official Records of the County of Rutherford, State of
Tennessee as document number 1501665. Some of the
Defendants and unknown defendants, specifically those
additionally designated as DOES1- 1000, inclusive claim
interests in the property adverse to Plaintiffs as assignees and
successors of Defendants.
237.Defendants Wells and Wilson have presented alleged “true and
exact” copies of Plaintiffs Promissory Note and DOT that
allude to a transaction that identifies Defendant Wells as the“lender” while in fact Defendant Wells was not the “lender”.
Therefore the DOT is invalid due to the fact that it secures a
fraudulent “Note”.
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238.By information and belief Defendant Wells has caused to be
filed in the Rutherford County Property records a false Deed of
Trust document alleging them to be the lender of proceeds
secured by plaintiff’s property at 3624 Lascassas Pike,
Murfreesboro, TN., 37130.
239.By information and belief Defendant FHLMC has claimed
ownership of Plaintiffs Promissory note and Deed of Trust (See
Exhibits D & E).
240.By information and belief Defendant FHLMC has placed
Plaintiffs Note into a pool of MBS where “investors”
(Defendants Does 1-1000) have purchased Plaintiffs
Promissory Note and therefore his DOT.
241.Plaintiff is informed and believes and thereupon alleges that
Defendants, and each of them, claim an interest in the
property adverse to plaintiff herein. However, the claim of
said Defendants are without any right whatsoever, and said
Defendants have no legal or equitable right, claim, or interest
in said property.
242.Regarding Plaintiffs’ Promissory Note, Plaintiff would show
that the Promissory Note is not presumed to be enforceable,
and that the Defendants have the minimum burden of
proving its enforceability under T.C.A. § 47-3-501 and
perhaps have the greater burden of proving its enforceability
under T.C.A. § 47-3-309 if the note is missing.
243.Defendant Wells has admitted in writing that Wells has sold
Plaintiffs’ note, but claims it still possesses the note, and still
claims it has the right to make demand for payment under said
note as the servicer for the holder of the note.
244.Though Plaintiffs have made repeated demands on Defendant
Wells to “exhibit” the Promissory Note, and to present Plaintiff
with reasonable evidence that Wells has the authority to makedemands upon the Plaintiff if it does not own the note, both
being required by T.C.A. § 47-3-501(b)(2), Defendant
Wells continually refuses to comply.
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245.Plaintiff would show that because Defendant Wells refuses to
comply with T.C.A. § 47- 3-501(b)(2), Plaintiff is entitled to
the relief provided to them pursuant to T.C.A. § 47-3-
501(b)(3). They therefore request that this court enter an order
determining that Plaintiff can and has refused to make
payment on the note without dishonor, until such time asDefendant Wells exhibits the note as required by the statute
and shows reasonable evidence it possesses the authority to
make demand on the note owner’s behalf.
246.Moreover, should Defendant Wells be unable to exhibit the
original Promissory Note as required by T.C.A. § 47-3-
501(b)(2), because the first mortgage note has been lost or
destroyed, Plaintiffs would again demand that before DefendantWells be permitted to make further demand for payment upon
the Plaintiff, that Defendant Wells first prove that the note is
enforceable under T.C.A. § 47-3-309(a) and give Plaintiff
adequate protection under T.C.A. § 47-3-309(b) before they
are permitted to show authority to demand payment; and,
Plaintiffs’ aver it is Defendant Wells burden to do so.
247.Should Defendant Wells be unable to exhibit the Promissory Note but nevertheless be able to meet its burden of proving the
enforceability of the Promissory Note under T.C.A. § 47-3-
309(a), and should Defendant Wells be able to meet its burden
of showing the authority to continue to demand payment of the
Plaintiffs, Plaintiffs still request the court to enter an order that
Plaintiffs be given adequate protection against any loss
Plaintiffs might have by reason of a claim of another person in
accordance with T.C.A. § 47-3-309(b).
248.Should Defendant Wells fail to produce the true original
Promissory Note for Plaintiffs’ inspection, or should
Defendant Wells fail to meet its burden of proving the
enforceability of the Promissory Note, or should it fail to meet
its burden of proving it has the authority to demand payment
of the Plaintiff on said note, or should it fail to give any
adequate protection the court requires, the Plaintiffs request this
court issue a cease and desist order to Defendant Wells from
further demanding payment of Plaintiffs on said note.
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249.Plaintiff therefore seeks a declaration that the title to the
subject property is vested in plaintiff alone and that the
defendants herein, and each of them, be declared to have no
estate, right, title or interest in the subject property and that
said defendants, and each of them, be forever enjoined fromasserting any estate, right, title or interest in the subject
property adverse to plaintiff herein.
250.WHEREFORE, plaintiff prays judgment against defendants
and each of them, as follows:
224.1- For an order compelling said Defendants, and
each of them, to transfer legal title and possession of the
subject property to Plaintiff herein
224.2- For a declaration and determination that Plaintiff
is the rightful holder of title to the property and that
Defendants herein, and each of them, be declared to have
no estate, right, title or interest in said property.
224.3- For a judgment forever enjoining said defendants,
and each of them, from claiming any estate, right, title or
interest in the subject property
224.4- For such other and further relief as the court may
deem proper
FIRST CAUSE OF ACTION
TEMPORARY AND PERMANENT INJUNCTIVE RELIEF
(Asserted against all Defendants)
251.Plaintiff hereby incorporates and alleges all of the facts stated
herein above, as though fully set forth at length herein.
252.The Promissory Note and Deed of Trust in this action was
obtained by fraud. Defendant Ike represented to Plaintiff that
Defendant Wells was loaning its money to fund the purchase of
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Plaintiffs property when in fact Defendant Wells did not “loan”
any of its money but transferred funds from investors in
Mortgage Backed Securities to “fund” the “loan”.
253.Defendant Ike, acting as Defendant Wells agent in purported
“loan” acted fraudulently from Plaintiffs first encounter sometime around April of 2007 through the alleged loan
closing and recording of the alleged DOT sometime in June of
2007. His actions consisted of falsifying and submitting loan
applications and fraudulently representing Defendant Wells as
a “lender” in the “loan” transaction and preparing all
documentation/paperwork regarding said “loan”.
254.By information and belief Defendant Wells was not and is notthe “lender” in any transaction regarding the Plaintiffs
Promissory Note or Deed of Trust and has no right to initiate
any power of sale or any other clause on the Plaintiffs Deed of
Trust which was obtained through fraud.
255.By information and belief there has been a total failure of
consideration from Defendant Wells with regard to Plaintiffs
Promissory Note and Deed of Trust. Defendant Wells was notthe lender in the transaction documented by Plaintiffs
Promissory Note and Deed of Trust.
256.By information and belief the alleged debt secured by Plaintiffs
Deed of Trust has been fully paid when it was purchased by
FHLMC and also through subsequent Credit Default Swaps,
Insurance Proceeds, TARP funds and other third party
payments to be proved at trial.
257.This is an action for temporary and permanent injunctive relief
to cease and halt all foreclosure activity by the Defendants; for
temporary, preliminary injunctive relief during the pendency of
this litigation and, upon prevailing on the merits, for permanent
injunctive relief.
258.Plaintiff has a clear legal right to seek temporary and
permanent injunctive relief as his interest in monies and real
property is being jeopardized by the actions of the Defendants.
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259.Plaintiffs Property not only serves as his residence but it is also
his place of business.
260.If temporary relief is not granted to Plaintiff he will be faced
with the loss of all income and means to support his family.
261.If injunctive relief is not granted to Plaintiff he will be faced
with the loss of medical equipment and medical records
covered under the Health Insurance Portability and
Accountability Act.
262.Plaintiff is faced with the imminent likelihood of irreparable
harm if the injunctive relief order is not issued. Among theimminent likelihood of irreparable harm Plaintiff is faced with
if the Injunctive Relief order is not granted is:
(A) Going out of business because the subject property is
where the Plaintiff operates his place of business, see Sisay v.
Smith, 2009 WL 361414 at *17 (6th Cir. 2009);
(B) Financial ruin if Defendant Wells is allowed to forecloseon the subject property and evict Plaintiff from his place of
business. see Performance Unlimited, Inc. v. Questar
Publishers, Inc., 52 F.3d 1373, 1382 (6th Cir. 1995);
(C) Competitive losses because the plaintiff will not be able to
operate his business and compete with surrounding
Chiropractic Physicians. see Basicomputer Corp., 973 F.2d at
511-12; and
(D) Interference with customer relationships and the loss of
goodwill with Plaintiffs patients due to the loss of a place to
administer care to said patients and fulfill obligations to those
patients who rely on Plaintiff for their care.
263.Defendants concerted and well-entrenched pattern of criminal
activity specifically engaging to wrongfully and through
fraudulent means take possession, custody, and control of
certain monies and real property of the Plaintiff will cause
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Plaintiff the loss of his property and place of business and only
means of support.
264.Plaintiff has no adequate remedy at law to redress the harm
arising out of the loss of his unique residential real property and
place of business caused by the actions and conduct of theDefendants as set forth and identified hereinabove, and no
adequate remedy at law to compel the turnover of the Plaintiffs’
property if wrongfully misappropriated by the Defendants as
identified hereinabove.
265.Any alleged harm to the Defendants, which consist of one of
the largest investment banks in the world and its related
servicing entity, with the granting of this relief is greatly andsubstantially outweighed by the actual and irreparable harm to
Plaintiff in the event that the relief requested herein is not
granted.
266.The granting of the relief requested herein is in the public
interest, as the consuming public of homeowners, including the
Plaintiff, has been, is being, and will continue to be harmed by
the fraudulent conduct of the Defendants (see Exhibits KK andLL).
267.Granting temporary relief will not contravene any substantial
public interest. It will not affect the legitimate interests of any
disinterested person.
268.Plaintiff has a substantial likelihood of success based on the
allegations set forth above and below. The facts alleged by
Plaintiff are not speculative but supported by numerous law
suits throughout the country and by all fifty State Attorney
Generals as well as documentation filed in the public property
records of Rutherford County Tennessee and elsewhere.
269.WHEREFORE, Plaintiffs requests that this Court immediately
grant the relief requested herein and immediately enter an
Order for Temporary Injunctive Relief which commands that
all foreclosure activity being engaged in by the Defendants be
immediately enjoined for the pendency of this litigation
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through trial and any appeal(s), and that permanent injunction
forever barring the Defendants from engaging in any illegal or
unlawful foreclosure activity be entered thereafter upon
Plaintiffs demonstration of the ultimate facts alleged above by a
preponderance of the admissible evidence.
SECOND CAUSE OF ACTION
PRELIMINARY INJUNCTION
(Asserted against all Defendants)
270.Plaintiffs hereby incorporate and allege all of the facts statedherein above, as though fully set forth at length herein.
271.To maintain the status quo between the parties while the matter
is pending, Plaintiff seeks an order from the court to retain title
to the subject real property and to remain in actual possession
of the premises, by enjoining the Defendants and their agents
from seeking to evict the Plaintiff from his home and place of
business.
272.Based on the factual allegations alleged herein, the Plaintiff has
a meritorious case against the defendants, and is likely to
prevail at trial based on those factual allegations and proof of
sustained damages, and they would suffer severe hardship if
defendants are allowed to take action to foreclose and/or evict
the Plaintiff while this contractual dispute is pending.
273.Wherefore, Plaintiff seeks an order from the court upon motion
for a preliminary injunction to protect their interests in the
subject real properties which form the basis of this action, as
severe and irreparable harm will be suffered by the Plaintiff,
should he lose his home and place of business, which is not
only the basis for his claims against the defendants, but is also
unique and irreplaceable.
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THIRD CAUSE OF ACTION
LACK OF STANDING(Asserted Against Defendants Wells and FHLMC)
274.Plaintiff hereby incorporates and alleges all of the facts stated
above, as though fully set forth at length herein.
275.Plaintiff requests that the Court enter an Order declaring that
Defendant Wells lacks standing to foreclose on Plaintiff’s
residence or to enforce any provisions regarding Plaintiff’s
Deed of Trust.
276.Defendant does not have standing to seek foreclosure on
Plaintiffs residence and office and real property.
277.Defendants have failed to provide foundation, admissible
evidence or certified documentation that supports its assertion
of standing or authority to act as Holder in Due Course or as
“Servicer” appointed by a Holder in Due Course of Plaintiffs
Promissory Note pursuant to TCA § 47-3-501(b) (2).
278.Plaintiff hereby demands, pursuant to TCA § 47-3-501(b)(2)
that Defendant present and exhibit the original wet ink
promissory note that relates to the Plaintiffs property for this
Court’s inspection and present to this Court reasonable
evidence of their authority to exhibit and therefore enforce the
instrument.
279.If Defendant refuses to present the instrument to this Courtand its authority to enforce it then Defendant is in violation of
TCA § 47-3-501 and therefore has no standing in this case.
280.Defendant has not demonstrated that it is the holder in due
course of Plaintiffs Promissory Note or that it is the agent of
the holder in due course.
281.Plaintiff moves this Court to have Defendant stipulate andadmit on and for the record whether or not they are the
creditor and whether or not they are the holder in due course
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or if they contend that they are acting on authority of the
Holder in Due Course with the authority to enforce any clause
on Plaintiffs DOT or Promissory Note.
282.If Defendant refuses to admit as to whether they are or are not
the creditor and/or the holder in due course Plaintiff requeststhat the defendant be considered in contempt of court.
283.There is no evidence that Defendant Wells has been damaged.
284.There is no evidence of the existence or the identity of a true
holder in due course.
285.The wrong party is named as the lender on the alleged note
and the alleged deed of trust recorded in the RutherfordCounty Property records further clouding title to Plaintiffs
property.
286.The alleged note has allegedly been transferred to FHLMC.
287.FHLMC has allegedly deposited said note in a securitization
trust.
288.By transferring ownership and holding of the mortgage
promissory note to certificate holders of a publicly traded
security, the transfer negated the ability of the alleged lender,
trustee or servicing agent to act as the owner or holder of the
promissory note or its agent.
289.A DOT cannot be enforced on behalf of the owner and holder of a Promissory Note who does not actually own or hold the
Promissory Note.
290.There is a difference between what is required to enforce a
note and what is required to enforce a deed of trust in
foreclosure.
291.The alleged note and deed of trust have been separated. The Note has been sold to FHLMC and subsequently to investors
in Mortgage Backed Securities and is therefore owned by
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shareholders in stocks. The alleged Deed of Trust that is
Wells Fargo as the “lender”/ “beneficiary”/ “owner”. This is
fraudulent and a cloud on Plaintiffs Deed of Trust.
292.The promissory note as a note remains enforceable if it hasnot been paid, but the deed of trust does not.
293.The note is no longer secured by the Property.
294.Wherefore, Plaintiff seeks an order from the court declaring
that the Defendants lack standing to enforce any provision on
the Plaintiffs DOT or to foreclose on the Plaintiffs real
property.
295.Severe and irreparable harm through the loss of patients, the
loss of reputation, the loss of income, emotional distress and
family depression and anxiety will be suffered by the Plaintiff
and his family, should he lose his home and place of business,
which is not only the basis for his claims against the
defendants, but is also unique and irreplaceable.
FOURTH CAUSE OF ACTIONCOMMON LAW FRAUD IN THE INDUCEMENT
(Asserted Against Defendants Ike and Wells)
296.Plaintiff hereby incorporates and alleges all of the facts stated
herein above, as though fully set forth at length herein.
297.A special relationship existed between the Plaintiff andDefendant Ike who was acting as agent for Defendant Wells;where Plaintiff relied on the representations made by DefendantIke to council and inform him.
298.Defendant Ike exercised his dominion and influence over
Plaintiff due to his superior knowledge to that of the Plaintiff,and his access to material facts that were not accessible to thePlaintiff.
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299.Defendant Ike knew that Plaintiff was placing special trust inhim to counsel and inform him of matters of which DefendantIke had superior knowledge to that of Plaintiff and his access tomaterial facts that were not accessible to Plaintiff.
300.Defendant Wells knew that a special trust was given byPlaintiff to Defendant Ike as the agent of Defendant Wells dueto Defendants superior knowledge and experience and specialknowledge of material facts not available to Plaintiff.
301.Plaintiff reasonably relied to Plaintiff ’s detriment upon the
representations and good faith estimates and the duty of
Defendants Ike and Wells to act within their duties as
fiduciaries and representatives of the Plaintiff in executing a
loan that was vastly different from the loan the Plaintiff was promised or reasonably believed to be the case.
302.At all times and places through digital, written, or spokenconversation Defendants’ intent and subsequent action was torepresent Defendant Wells as the “lender ” in the purported“loan transaction”. These were intentional misrepresentationsof a material fact that Defendants knew was false.
303.The representation that Defendant Wells was the “lender” wasfalse. Defendant Wells was not the lender and did not use itsfunds to fund any loan to Plaintiff.
304.Defendant Wells aided by representations of its agentDefendant Ike was acting as a nominee for an undisclosed partyin a securitization scheme.
305.The representations of Defendants were material to Plaintiffs’decision to enter into the contract, and to sign the agreement.
306.At the time Defendants Wells and Ike made the representationsDefendants knew the representations were false andmisleading.
307.Defendant’s representations were made with the intent todeceive Plaintiff.
308.Defendants meant for Plaintiff to rely on the representation thatit was lending Wells funds to purchase his home.
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309.Plaintiff did not know the representations of Defendant Ike andWells were misleading or false.
310.Plaintiff reasonably relied on the representations of DefendantsIke and Wells.
311.Plaintiff’s reliance on the representations of Defendant Ike andWells which is one of the largest financial institutions in theworld with superior knowledge and experience in such matterswas fully justified.
312.At all times relevant, Defendants possessed superior knowledgeto that of the Plaintiff, and further had access to material facts
that were not accessible to the Plaintiff regarding their nefarious scheme.
313.Plaintiff believed he was making a sound investment based onDefendant’s inflated appraisal and the representation that hecould re-finance in the future and that Defendant Wells was the“lender” in the transaction.
314. Plaintiff has suffered economic, emotional and other damage as
a result of his reliance on Defendants Ike and Wells fraudulentmisrepresentations; among which are: loss of work and incomefrom lost work, the clouding/slander of title to Plaintiffs
property, not knowing the true lender or true owner that canissue satisfaction of the alleged debt or offer a loan modificationand severe emotional strain upon Plaintiff and Plaintiffsrelations with his wife and children and the cost of this action.
315.Defendant Wells did not use Defendant’s own money to fundthe “loan” and refuses to provide Plaintiff with an accountingof the alleged “loan” transaction despite multiple QualifiedWritten Requests.
316.Upon information and belief Defendant Wells used moneyfrom an undisclosed source to fund the “loan” and was not the“lender” as fraudulently represented by Defendant Ike andPlaintiffs Promissory Note and Deed of Trust.
317.Defendants Ike and Wells have unclean hands.
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318.Plaintiff would not have issued the promissory note toDefendant Wells at the request of Defendant Ike if he hadknown the true facts of the transaction.
319.Defendants made false and misleading representations andremained silent when they should have spoken.
320.Defendants falsely identified Defendant Wells as the lender inthe closing documents.
321.The alleged note falsely identifies Defendant Wells as thelender.
322.The DOT falsely identifies Defendant Wells as the lender.
323.Defendant Wells was not the lender (the source of the money) but merely the nominee for an undisclosed principal.
324.Defendants concealed, refused and failed to disclose or explainor account for its relationship with and among the varioussecuritization parties, remaining silent on the subject, therebydenying and concealing the very existence of the parties, theagreements among them, and the money that changed hands
despite numerous written requests by Plaintiff to obtain saiddisclosures.
325.Defendants made false and misleading representations andremained silent when they should have spoken:
326.Defendants represented that they followed the GenerallyAccepted Accounting Principles (GAAP) required for exchanging funds for a promissory note.
327.Wells did not follow GAAP.
328.As a result of the Defendants fraudulent inducement concerningthis contract, Plaintiff has suffered loss of income from work,the cost of bringing this action, loss of reputation, loss of
patients, emotional damages to himself and his family as wellas general and special damages in an amount to be determined
at trial.
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FIFTH CAUSE OF ACTION
NEGLIGENT MISREPRESENTATION
(Asserted Against Defendants Ike and Wells)
329.Plaintiff hereby incorporates and alleges all of the facts stated
herein above, as though fully set forth at length herein.
330.Plaintiff relied upon Defendants to guide him through the
process of getting a home mortgage loan. This reliance began
with Plaintiffs first contact with Defendant Ike in April of
2007. Plaintiff answered Defendants internet solicitation to
Plaintiff requesting that he apply for a home loan from
Defendant Wells where Defendant Wells was presented as the
“lender”.
331.Defendant Ike and Defendant Wells falsely represented
Defendant Wells as the “lender” of its funds to Plaintiff for a
home loan beginning from Defendants first contact with
Plaintiff due to Defendant Ike’s internet solicitation (April
2007), through the application process up to the “loan” closing
(June 2007). These false representations by Defendants were
made over the internet, phone and mail and continue to this day by Defendant Wells.
332.A special relationship existed between the Plaintiff andDefendant Ike who was acting as agent for Defendant Wells;where Plaintiff relied on the representations made by DefendantIke to council and inform him. This special relationship withDefendant Ike was warranted due to Defendants superior
knowledge to that of the Plaintiff, and his access to materialfacts that were not accessible to the Plaintiff regarding themortgage transaction.
333.The existence of that special relationship imposed uponDefendant Ike as agent for Defendant Wells a duty to fully andaccurately disclose all pertinent information pertaining to thehome loan allegedly made to Plaintiff.
334.That duty included, but was not limited to, true and correctinformation pertaining to the true “lender” and subsequentsecuritization of his note.
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335.Defendant Ikes Duty was to inform Plaintiff of the true sourceof funds for his “loan” and the existence of Credit DefaultSwaps (CDS), Mortgage Backed Securities (MBS), defaultinsurance and other third party payments.
336.Defendant Wells also had a duty to inform Plaintiff that it hasno legal right to foreclose upon Plaintiffs mortgage since his
promissory note became the basis for a Mortgage BackedSecurity (MBS) pool and ownership of the “Note” and DOThave been transferred to other owners, stockholders, trusteesand “servicers”.
337.Defendants Ike and Wells failed to disclose this material
information to the Plaintiff and omitted critical elements fromany disclosures that were made.
338.Plaintiff reasonably relied upon the material misrepresentations
of Defendants Ike and Wells to his detriment in choosing to
proceed with the “loan”.
339. Plaintiff has suffered economic, emotional and other damage as
a result of his reliance on Defendants Ike and Wells fraudulentmisrepresentations; among which are: loss of work and incomefrom lost work, the clouding/slander of title to Plaintiffs
property, not knowing the true lender or true owner that canissue satisfaction of the alleged debt or offer a loan modificationand severe emotional strain upon Plaintiff and Plaintiffsrelations with his wife and children and the cost of this action.
340.As a result of Defendants Ike and Wells materialmisrepresentations concerning this contract, Plaintiff hassuffered general and special damages in an amount to bedetermined at trial.
SIXTH CAUSE OF ACTION
UNJUST ENRICHMENT
(Asserted Against Defendants Ike and Wells)
341.All of the above Paragraphs of this Complaint are hereby
incorporated by reference as though fully set forth herein.
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342.The Promissory Note and DOT/contract regarding Plaintiffs
property are invalid due to the fraudulent actions of Defendants
that are more fully alleged above. Therefore there never has
been a valid agreement between Plaintiff and Defendants.
343.Plaintiff denies the alleged Promissory Note and DOT.
344.Plaintiff denies that Defendant Wells is the true “servicer” of
Plaintiffs Promissory Note or Deed of Trust with any
appointment or contract with the Holder in Due Course of
Plaintiffs Promissory Note.
345.Through their conduct as described herein, Defendant Wells
was unjustly enriched at the expense of Plaintiff by improperlyaccepting his down payment, assorted fees and all mortgage
payments under false pretenses (acting as the lender or
“servicer” duly appointed by the “lender”, “owner” or Holder
in Due Course of Plaintiffs Promissory Note). And by
ultimately attempting to foreclose upon the home and business
of the Plaintiff without legal authority to do so.
346.By information and belief Defendant Wells was also unjustlyenriched through the fraudulent collection of Credit Default
Swaps, Mortgage Insurance and TARP funds pertaining to
Plaintiffs Promissory Note and DOT.
347.To permit Defendant Wells to retain their unjust gains would be
against equity and good conscience, and would ratify the illegal
actions taken by the Defendant to the detriment of the Plaintiff
and the true “lender” and holder in due course.
348.Here, in order to avoid the unjust enrichment of the Defendant,
Defendant should be ordered to pay back to Plaintiff any and
all monies unjustly received from him and taking into account
proceeds from improperly accepted mortgage payments and the
unjust securitization of Plaintiffs Promissory Note and its sale
to stockholders of MBS’s. The unjust enrichment of Defendant
Wells includes but is not limited to default insurance policies,
CDS’s, Federal Bailouts or TARP monies, any and all third
party payments.
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349.By their wrongful acts and omissions, Defendant Wells and
their agents have been unjustly enriched at the expense of the
Plaintiff, and thus Plaintiff has been unjustly deprived.
350.By reason of the foregoing, Plaintiff seeks restitution from theDefendants, and an order of this Court disgorging all profits,
benefits, and other compensation obtained by the Defendants
from their wrongful conduct.
351.As a result of Defendants unjust enrichment concerning this
contract, Plaintiff has suffered general and special damages in
an amount to be determined at trial.
SEVENTH CAUSE OF ACTION
(FRAUD IN THE CONVEYANCE)
(Asserted Against Defendants Ike and Wells)
352.Plaintiff re-alleges and incorporates the allegations contained in
the preceding paragraphs as though set forth at length herein.
353.Defendants Ike and Wells purportedly assigned Plaintiffs DOT,
together with Plaintiffs Promissory Note to Defendant FHLMC
on or about June 7, 2007.
354.Defendant Ike fraudulently acted and conspired with Defendant
Wells to record a public document which would assign property
rights without the right and privilege to do so, and in doing so
knowingly conspired without the right and privilege to do so as
beneficiary under the DOT, as the note had already been
assigned to FHLMC.
355.Upon information and belief, Plaintiff therefore alleges that
Defendant Wells did not pay any consideration for the
"Promissory Note". Assuming Arguendo that if FHLMC
purchased the "Promissory Note" in 2007 and the investors in
FHLMC MBS’s paid Defendant Wells, such assignment would
constitute fraudulent conveyance.
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356.All Defendants mentioned herein participated in the fraud by
processing falsified assignments of the DOT.
357.Defendant Wells falsely represented to Plaintiff that they
received valid assignment of the Deed of Trust and enforceable
endorsement of the Promissory Note to procure payments from
Plaintiff that they were not entitled to receive.
358.The representations made by said Defendant was in fact false.
The true facts were that Defendant Wells could not act to
assign the DOT. In fact, Defendant Wells had no interest in thePromissory Note and could not assign or enforce the
Promissory Note.
359.Plaintiff, at the time these representations were made by
Defendant Ike and Wells and at the time Plaintiff took the
actions alleged herein, was ignorant of the falsity of the
Defendants' representations and believed them to be true. In
reliance on these representations, Plaintiff was induced to make payments to Defendant Wells when they were not entitled to
such money.
360.The aforementioned conducts of the Defendants were
intentional misrepresentation, deceit, or concealment of
material fact known to the Defendants with the intention on the
part of the Defendants of thereby depriving the Plaintiffs of
property or legal rights or otherwise causing injury, and was
despicable conduct that subjected the Plaintiff to a cruel and
unjust hardship in conscious disregard of the Plaintiffs' rights,
so as to justify an award of exemplary and punitive damages.
361.As a result of Defendants fraud in the conveyance concerning
this contract, Plaintiff has suffered general and special damages
in an amount to be determined at trial.
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EIGHTH CAUSE OF ACTION
BREACH OF FIDUCIARY DUTY
(Against Defendant Wilson)
362.All of the above Paragraphs of this Complaint are hereby
incorporated by reference as though fully set forth herein.
363.By information and belief a trustee under a deed of trust owes
fiduciary duties both to the lender and to the borrower [Murray
v. Wells Fargo Home Mortg., 953 A. 2d 308 (D.C. 2008)].
364.By information and belief (a fiduciary relationship exists
between the trustee of a deed of trust and the debtor and
creditor: the trustee is considered to be the agent of both debtor and creditor and should perform the duties of the trust with
impartiality and integrity); Sloop v. London, 219 S.E.2d 502,
504, 505 (N.C. Ct. App. 1975).
365.Defendant and alleged Successor Trustee Wilson, has an
obligation not only to whom they perceive as the lender, but to
perform due diligence as to the status of the note and the true
owner of the note and the true party in interest who might beentitled to enforce the note or mortgage.
366.The DOT is a three party instrument by definition - the trustor,
beneficiary, and the trustee.
367.There is no provision in a deed of trust which allows the trustee
to abrogate his duties, which is what Defendant Wilson is
trying to do.
368.Defendant Wilson is not performing its obligations to the trust,
it is acting as an agent for Defendant Wells and not a trustee.
An agent may not foreclose.
369.Agents may not foreclose, only duly appointed trustees may.
370.The choice of words, i.e., 'trustee' over 'agent' in the alleged
DOT would make it clear it is dual, that is, a deed of trust
trustee owes a fiduciary to both the lender and the borrower.
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371.In Lewis v Jordan Investment, Inc., 725 A.2d 4955 (1999),
recognized the long-standing tenet that a trustee has a dual
fiduciary duty.
372."A trustee of deeds has the fiduciary obligation to comply withthe powers and duties of the trust instrument, as well as the
applicable statute under the Tennessee Code. Perry v. Virginia
Mortgage & Inv. Co., 412 A.2d 1194, 1197 (D.C. 1980)
(citations omitted).
373.The court has long recognized that trustees owe fiduciary duties
to both the Note holder and the Borrower. S&G Inv., Inc. v.
Home Fed. Sav. & Loan Ass'n, 164 U.S. App. D.C. 263, 270-71 n. 21, 505 F.2d 370, 377-78 n. 21 (1974)"
374.Defendant Wilson is acting as the 'agent' of the alleged lender
and not as a true alleged successor trustee.
375.Defendant Wilson as alleged successor trustee is acting at the
instance of an alleged lender with no real evidence that the
alleged lender has the right to command default / foreclosure.
376.Not only is Defendant Wilson the alleged successor trustee
breaching its fiduciary to the borrower, it is breaching its
fiduciary to the true beneficiary by not ascertaining that it is
acting at the behest of the proper party.
377.Defendant Wilson cannot be said to be acting within or meeting
its fiduciary when it is not demanding and being provided
evidence of the instigator's authority to foreclose.
378.The Plaintiff/borrower is an intended beneficiary of the terms
of the trust.
379.Defendant Wilson (alleged successor trustee) is not performing
its fiduciary - to anyone – when it institutes power of sale
proceedings with no evidence of the instigator's authority.
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380.Plaintiff has repeatedly requested from Defendant Wilson and
Defendant Wells that the true holder of the promissory note
with authority to collect on the alleged default be identified.
381.Defendant Wilson and Defendant Wells have not identified the
true holder of the note nor have they validated any debt.
382.Plaintiff has filed notices of trustee obligation and affidavits of
forgery and debt validation letters in the Rutherford County
Property Records in an attempt to get Defendant Wilson to
perform its fiduciary duty.
383.By information and belief Defendant Wilson is attempting to
convert monies from the foreclosure of Plaintiffs property.
384.By information and belief Defendant Wilson will receive a
percentage of the proceeds from any foreclosure they may
perform on Plaintiffs Property.
385.Plaintiff has been injured by the actions of Defendant Wilson
and their Breaches of Fiduciary Duty through loss of work and
time spent on research to defend against Defendants actions.Much stress and anxiety due to Defendant Wilsons illegal
actions have led to emotional problems with Plaintiff and his
relations with his wife and children.
386.Plaintiff has been subjected to emotional duress due to the
illegal actions and lack of Fiduciary Duty performed by
Defendant Wilson the alleged successor trustee to plaintiffs
DOT.
387.Plaintiff has been forced to neglect his place of business located
in the subject property and has been faced with the loss of his
residence and place of business as well as income to support his
family.
388.Plaintiff has suffered deleterious effects to his credit rating and
reputation due to Defendant Wilson reporting to credit bureaus
and in the newspapers that he is in default and his property is in
Foreclosure.
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389.Defendant has brought damage upon Plaintiff in the form of
disgrace by improperly listing his residence and place of
business in the newspapers for a trustee sale.
390.Plaintiff has been damaged emotionally and financially due toDefendant Wilsons actions and threatened foreclosure.
391.As a result of Defendant Wilsons Breach of Fiduciary Dutyconcerning the DOT, Plaintiff has suffered general and specialdamages in an amount to be determined at trial.
392.WHEREFORE, Plaintiff prays for judgment against
Defendants, jointly and severally, and each of them as followsand as set forth in each cause of action to be determined at trial:
A. General and special damages according to
proof;
B. Punitive damages 'according to proof;
C. Statutory relief under the specific statutescited above;
D. Restitution damages according to proof;
E. Pre- and post-judgment interest; and
F. Attorney fees as authorized and provided for
by statute, contract or otherwise;
Authorization Representative All rights reserved UCC 1-308
--------------------------------------David B. Starkey
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NOTARY
State of Tennessee
County of Rutherford
Subscribed and Affirmed and having been duly sworn to before me, a
Notary Public for the said county and state as above noted, do hereby
state that the living man, David B. Starkey, personally appeared before
me and signed the foregoing instrument. Witness my hand and official
seal this _______day of, May, 2013.
Notary Public Signature
My Commission Expires _____________________________ [SEAL]
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SERVED VIA U.S. CERTIFIED MAIL TO:
IKE MOSES
3243 E. 35th
St.,
St. Louis MO 63376. Certified Mail #:_________________________
WILSON AND ASSOCIATES, P.L.L.C.
Edward D. Russell
Creekside Crossing III
8 Cadillac Drive, Suite 120
Brentwood, TN 37027 Certified Mail #: _______________________
WELLS FARGO BANK N.A.
C/O Atty. Brittany B. Simpson
Baker Donelson Center, Suite 800
211 Commerce Street
Nashville, Tennessee 37201 Certified Mail #:____________________
FEDERAL HOME LOAN MORTGAGE CORPORATION
8200 Jones Branch Dr.
Mc Lean, VA 22102-3110. Certified Mail #: _____________________