Here is my First Draft of a Complaint. I am doing the drafting myself. I will next draft the following
Motion for TRO;
Affidavit of Petitioner;
TRO with bond;
Motion for Preliminary Injunction;
Notice of Motion for Preliminary Injunction;
Order for Preliminary Injunction; and
Briefs with perfunctory Rule 65 language for quick adaptation.
Comments and encouragement are welcome.
_____________________________________________________________________
1)Fraud of the Lender to induce the Borrower to sign the Mortgage and Note. Accordingly, the Mortgage and Note are invalid UCC 3-305(iii).
In that on or before September 12th 200* Lender or its Agent advised Borrower that a new mortgage and note was required upon transfer of the property. The Lender or its Agent failed to advise Borrower that an exception to that requirement is the transfer of property or interest in property between one spouse and the other.
The Borrower was the only borrower on the prior note and mortgage with the spouse having joint title to the property. - Exhibits A, B, C:
Federal Law 12 USC § 1701j-3(d)(7) provides an exemption:
(7)a transfer resulting from a decree of dissolution of marriage. Legal separation agreement, or from an incidental property agreement, by which the spouse of the borrower becomes the owner of the property.
Accordingly it cannot be proved that the Plaintiff or any other Person is entitled to enforce the instrument.
2)Lender was not a person and had no legal capacity to act.
UCC § 1-201(b) (27) provides the following meaning of Person:
"Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, governmental subdivision, agency, or instrumentality, public corporation, or any other legal or commercial entity.
Extract from the Dead of Trust - Exhibit D:
Borrower is the trustor under this security instrument
(C) “Lender” is *************************
is a CORPORATION
organized and existing under the laws of ********
************ Secretary of State Corporate Records do not list a Corporation named ********************** until December 2008. – Exhibit E:
UCC § 3-305 (a) (1) (ii) provides a defense:
(1)a defense of the obligor based on (i) infancy of the obligor to the extent it is a defense to a simple contract, (ii) duress, lack of legal capacity, or illegality of the transaction which, under other law, nullifies the obligation of the obligor, (iii) fraud that induced the obligor to sign the instrument with neither knowledge nor reasonable opportunity to learn of its character or its essential terms, or (iv) discharge of the obligor in insolvency proceedings;
The Note Mortgage and Deed of Trust are a nullity
3)Moot Transfer or Assignments of Rights, Ownership or Beneficial interest in an instrument.
UCC § 3-203 mandates that only a Person may Transfer or Assign Rights, Ownership or Beneficial interest in an instrument.
Accordingly, no transfer occurred.
4)************* [a CORPORATION organized and existing under the laws of *********** ] was not authorized to do business in ********** in 200*.
**************** Secretary of State Corporate Records do not list a Corporation Name of ****************8. - Exhibit F:
5)***************** [a CORPORATION organized and existing under the laws of NEW YORK ] was not authorized to undertake Lending in ************.
***************** Commissioner of Banks Records do not list a Corporation Name of ********************. - Exhibit F2
6)Fraud as to the character of the document. Illegality and false representation (fraud) perpetrated in the transaction.
UCC § 3-305 (a) (1) (iii) provides a defense:
(1) a defense of the obligor based on (i) infancy of the obligor to the extent it is a defense to a simple contract, (ii) duress, lack of legal capacity, or illegality of the transaction which, under other law, nullifies the obligation of the obligor, (iii) fraud that induced the obligor to sign the instrument with neither knowledge nor reasonable opportunity to learn of its character or its essential terms, or (iv) discharge of the obligor in insolvency proceedings;
A)**************** in creating the document using a variation of their DBA “*******************” and representing that as a CORPORATION hid the character of the instrument and prevented the Borrower from (a) knowing the character of the Lender (b) performing reasonable due diligence.
B)The Lender did not disclose the SOURCE of the money for the transaction.
C)The Lender did not inform the NOTE issuer that the money for the transaction was provided at no cost to the Lender.
D)The Lender did not disclose that the NOTE would be sold at the earliest possible convenience, and that such sale and receipt of money from a third party payed off the NOTE and Satisfied the Mortgage.
7)Business records not to be relied upon.
The correspondence sent to the Borrower with erroneous personal information in Exhibit I:, inclusion of “Spouse of ****************” of which there is no such person in correspondence; and correspondence sent to “Spouse of *****************” of which there is no such person; indicate that the Business records of the Plaintiff are not to be relied upon.
8)Failure to Respond to a request for information pursuant to N.C.G.S. 45-93
Borrower Attests Exhibit J, that information pursuant to N.C.G.S 45-93 was requested on Saturday July 18th 2009.
Exhibit K: was deposited in the Federal Express deposit receptical in the ********** shopping center. The Federal Express envelope was pre-addressed and prepaid, next day delivery by CLAIMANT for the return for the proposed forbearance agreement. The forbearance agreement covering letter required that the signed agreement must be sent no later than July 20th 200*. On July 21st 200* Borrower called CLAIMANT to confirm receipt of that delivery. The CLAIMANT agent confirmed delivery and stated that as delivery had not been received by July 20th that the document would undergo a separate handling process.
Exhibit K4 is the Third Party Pre-Paid Shipping Docket
Exhibit K2 is the Federal Express Tracking document showing signed delivery and receipt on July 21st 200* at 10:08 AM by *. ****
9)No Standing due to Lack of Proof of a Debt.
In forgoing a response to the request for information pursuant to N.C.G.S. 45-93 Plaintiff has forgone STANDING pursuant to UCC § 3-301, and UCC § 3-309.
10)Court has no subject matter Jurisdiction on Notes sold as Investor Loans
If as the discovery documents would have shown, and is as indicated by the description in the proposed Forbearance Agreement Exhibit LG as “Investor Loan # ******” the original Lender, sold the NOTE as an “Investor Loan”, consequently, the right to enforce the NOTE has lapsed through a foreclosure or court proceeding; pursuant to the fact that the UCC § 3-301 and UCC § 3-309(a)(2) bars such claimant from invoking the court's subject matter jurisdiction of the case.
An assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity.
"[Fn3 Jackson v. Blodget, 5 Cowan 205; Jackson v. Willard, 4 Johnson 43.] Quotation and Footnote from:Carpenter v. Longan, 83 U.S. (16 Wall.) 271, 274 (1872).
Standing in a court to enforce the instrument in foreclosure is impossible.
11)Not in Default – NOTE Paid in Full and Mortgage Satisfied
The Lender Disclosed in the NOTE that the NOTE may be transferred. The Description in
the proposed Forbearance Agreement Exhibit LG as “Investor Loan # ***********” shows that the NOTE was so transferred.
The sale and receipt of money from a third party as “Investor Loan # **********” payed off the NOTE and Satisfied the Mortgage.
Exhibit N: Affidavit by Todd Walker describes the processes used in by banks that transfer a Note as collatoralized debt instrument such as “Investor Loans” , the result is that the Lender immediately receives payment in full on the NOTE. The conclusion of which is:
Plaintiff is using the Defendant's NOTE for its own purpose, and it remains to be proven whether the Plaintiff has incurred any financial loss or actual damages.
Accordingly, the lack of proof of debt, timely created the reasonable belief that the Note had been paid in full.
12)Falsely Claimed Knowledge of no Written Requests for information pursuant to **G.S. 45-93
The Notice of Hearing, Exhibit H: claims in paragraph 3.:
3.The holder or servicer acting on the holder's behalf, has confirmed in writing to the substitute trustee that the holder or servicer acting on the holder's behalf, has no knowledge of borrower making any written request(s) for information pursuant to ** 45-93 within two years preceding the the of written statement.
Borrower Attests Exhibit J, that information pursuant to **G.S 45-93 was requested on Saturday July 18th 200*.
Exhibit K: was deposited in the Federal Express deposit receptical in the ********** shopping center. The Federal Express envelope was pre-addressed and prepaid, next day delivery by CLAIMANT for the return for the proposed forbearance agreement. The forbearance agreement covering letter required that the signed agreement must be sent no later than July 20th 200*. On July 21st 200* Borrower called CLAIMANT to confirm receipt of that delivery. The CLAIMANT agent confirmed delivery and stated that as delivery had not been received by July 20th that the document would undergo a separate handling process.
Exhibit K4 is the Third Party Pre-Paid Shipping Docket
Exhibit K2 is the Federal Express Tracking document showing signed delivery and receipt on July 21st 200* at 10:08 AM by *.****
Accordingly, one, or several of the following must be true:
(1).Falsely Claimed Knowledge of no Written Requests
(2).Business Records Not to be Relied Upon
13)Conflict of interest, Predatory Acts and Omissions of the Substitute Trustee
A substitute trustee has a fiduciary duty owed to both parties and may not advocate for a
lender without violating that duty. (see CPR’s 94, 137, 166, 218, 220). The ethical
prohibition against trustees advocating for the lender is frequently violated and grounds for
challenging the entire foreclosure. (CPR 220 states that no other member of the Trustee’s
law firm may represent the lender unless the trustee has resigned at an early stage in the
proceedings.)
A) The Substitute Trustee has been provided a Limited Power of Attorney by the Plaintiff In addition to the appointment as a substitute Trustee, *********** County, ***** *********** Register of Deeds records at “BOOK: ******** PAGE: ***********” Exhibit L:, the Limited Power of Attorney from ***********. which states:
“FURTHER, the Attorney(s)-In-Fact is authorized to execute, acknowledge and deliver any instrument under seal or otherwise, and to do all things necessary to carry out the intent hereof, hereby granting full power and authority to act in and concerning the conduct of foreclosures and related proceedings as fully and effectually as the Principal may do if personally present, limited however for the purpose for which this authorization is executed, and subject to the terms and conditions set forth herein and in accordance with the standard of care of a fiduciary agent”
The statement “limited however for the purpose for which this authorization is executed,” does not refer to or define any limited purpose; such as to act only as Substitute Trustee. Rather the Term “FURTHER” demands the Attorney act “ fully and effectually as the Principal”.
Predatory Acts:
In acting “fully and effectively” as the Lenders Attorney in Fact, the Substitute Trustee acting beyond those reasonably justifiable acts of a Substitute Trustee, has sent many multiple copies of documents to the Defendant and duplicating all documents to a non existent spouse at all addresses, that spouse was or should have been known not to exist in the knowledge of the Substitute Trustee. Letters were received, far in excess of the requirement to communicate effectively and to such a daunting degree as to harass the Defendant.
Conspiring with Third Parties to harass the Defendant. John Doe released personal contact information in conjunction with information regarding the “Notice of Hearing” that was filed in ********* County on August 3rd 20** at 2:15 PM. The letters of Exhibit N: offered purchase on the assumption of personal financial distress by the Defendant, the postage dates of several being August 3rd indicate that information was not from public records, but available and released by John Doe in sufficient time to have those letters mailed by August 3rd.
Receipt of those letters in advance of receipt of the “Notice of Hearing Prior to Foreclosure” was distressing to the Defendant and in reasonable belief was understood to be predatory and designed to cause distress; especially so in they were received prior to knowledge of and the release of public records of the Hearing.
Omission to Act:
In Exhibit K5 Defendant requested acknowledgement of receipt of the notice by August 11th 20**. No Acknowledgment was received.
The request in Exhibit K5 to cease contact with the Defendant in relation to the collection activity was not acted upon in a timely manner. Upon communication with the ************** agent on August 18th 20** the agent advised that there was no notation “Do Not Call” and she would notate the record. On August 19th on a further call from a ************* agent, [B*****; Employee # ****] he confirmed that the Attorney acting on behalf of ************** was indeed *************. The Substitute Trustee failed to timely communicate a request to cease and desist credit collection communications.
Upon seeking instructions from a staff member of *************** on Wednesday 11th at 1:43 PM, on what action to take for a Return of Service form left at the front door of *** ******* ******, which document was not sufficiently attached to any one of documents at that front door, Defendant invited and received a promise or return a phone call with appropriate instructions. No call was returned.
Accordingly, the grounds for the entire Foreclosure are challenged base upon lack of Neutrality.
Motion for TRO;
Affidavit of Petitioner;
TRO with bond;
Motion for Preliminary Injunction;
Notice of Motion for Preliminary Injunction;
Order for Preliminary Injunction; and
Briefs with perfunctory Rule 65 language for quick adaptation.
Comments and encouragement are welcome.
_____________________________________________________________________
1)Fraud of the Lender to induce the Borrower to sign the Mortgage and Note. Accordingly, the Mortgage and Note are invalid UCC 3-305(iii).
In that on or before September 12th 200* Lender or its Agent advised Borrower that a new mortgage and note was required upon transfer of the property. The Lender or its Agent failed to advise Borrower that an exception to that requirement is the transfer of property or interest in property between one spouse and the other.
The Borrower was the only borrower on the prior note and mortgage with the spouse having joint title to the property. - Exhibits A, B, C:
Federal Law 12 USC § 1701j-3(d)(7) provides an exemption:
(7)a transfer resulting from a decree of dissolution of marriage. Legal separation agreement, or from an incidental property agreement, by which the spouse of the borrower becomes the owner of the property.
Accordingly it cannot be proved that the Plaintiff or any other Person is entitled to enforce the instrument.
2)Lender was not a person and had no legal capacity to act.
UCC § 1-201(b) (27) provides the following meaning of Person:
"Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, governmental subdivision, agency, or instrumentality, public corporation, or any other legal or commercial entity.
Extract from the Dead of Trust - Exhibit D:
Borrower is the trustor under this security instrument
(C) “Lender” is *************************
is a CORPORATION
organized and existing under the laws of ********
************ Secretary of State Corporate Records do not list a Corporation named ********************** until December 2008. – Exhibit E:
UCC § 3-305 (a) (1) (ii) provides a defense:
(1)a defense of the obligor based on (i) infancy of the obligor to the extent it is a defense to a simple contract, (ii) duress, lack of legal capacity, or illegality of the transaction which, under other law, nullifies the obligation of the obligor, (iii) fraud that induced the obligor to sign the instrument with neither knowledge nor reasonable opportunity to learn of its character or its essential terms, or (iv) discharge of the obligor in insolvency proceedings;
The Note Mortgage and Deed of Trust are a nullity
3)Moot Transfer or Assignments of Rights, Ownership or Beneficial interest in an instrument.
UCC § 3-203 mandates that only a Person may Transfer or Assign Rights, Ownership or Beneficial interest in an instrument.
Accordingly, no transfer occurred.
4)************* [a CORPORATION organized and existing under the laws of *********** ] was not authorized to do business in ********** in 200*.
**************** Secretary of State Corporate Records do not list a Corporation Name of ****************8. - Exhibit F:
5)***************** [a CORPORATION organized and existing under the laws of NEW YORK ] was not authorized to undertake Lending in ************.
***************** Commissioner of Banks Records do not list a Corporation Name of ********************. - Exhibit F2
6)Fraud as to the character of the document. Illegality and false representation (fraud) perpetrated in the transaction.
UCC § 3-305 (a) (1) (iii) provides a defense:
(1) a defense of the obligor based on (i) infancy of the obligor to the extent it is a defense to a simple contract, (ii) duress, lack of legal capacity, or illegality of the transaction which, under other law, nullifies the obligation of the obligor, (iii) fraud that induced the obligor to sign the instrument with neither knowledge nor reasonable opportunity to learn of its character or its essential terms, or (iv) discharge of the obligor in insolvency proceedings;
A)**************** in creating the document using a variation of their DBA “*******************” and representing that as a CORPORATION hid the character of the instrument and prevented the Borrower from (a) knowing the character of the Lender (b) performing reasonable due diligence.
B)The Lender did not disclose the SOURCE of the money for the transaction.
C)The Lender did not inform the NOTE issuer that the money for the transaction was provided at no cost to the Lender.
D)The Lender did not disclose that the NOTE would be sold at the earliest possible convenience, and that such sale and receipt of money from a third party payed off the NOTE and Satisfied the Mortgage.
7)Business records not to be relied upon.
The correspondence sent to the Borrower with erroneous personal information in Exhibit I:, inclusion of “Spouse of ****************” of which there is no such person in correspondence; and correspondence sent to “Spouse of *****************” of which there is no such person; indicate that the Business records of the Plaintiff are not to be relied upon.
8)Failure to Respond to a request for information pursuant to N.C.G.S. 45-93
Borrower Attests Exhibit J, that information pursuant to N.C.G.S 45-93 was requested on Saturday July 18th 2009.
Exhibit K: was deposited in the Federal Express deposit receptical in the ********** shopping center. The Federal Express envelope was pre-addressed and prepaid, next day delivery by CLAIMANT for the return for the proposed forbearance agreement. The forbearance agreement covering letter required that the signed agreement must be sent no later than July 20th 200*. On July 21st 200* Borrower called CLAIMANT to confirm receipt of that delivery. The CLAIMANT agent confirmed delivery and stated that as delivery had not been received by July 20th that the document would undergo a separate handling process.
Exhibit K4 is the Third Party Pre-Paid Shipping Docket
Exhibit K2 is the Federal Express Tracking document showing signed delivery and receipt on July 21st 200* at 10:08 AM by *. ****
9)No Standing due to Lack of Proof of a Debt.
In forgoing a response to the request for information pursuant to N.C.G.S. 45-93 Plaintiff has forgone STANDING pursuant to UCC § 3-301, and UCC § 3-309.
10)Court has no subject matter Jurisdiction on Notes sold as Investor Loans
If as the discovery documents would have shown, and is as indicated by the description in the proposed Forbearance Agreement Exhibit LG as “Investor Loan # ******” the original Lender, sold the NOTE as an “Investor Loan”, consequently, the right to enforce the NOTE has lapsed through a foreclosure or court proceeding; pursuant to the fact that the UCC § 3-301 and UCC § 3-309(a)(2) bars such claimant from invoking the court's subject matter jurisdiction of the case.
An assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity.
"[Fn3 Jackson v. Blodget, 5 Cowan 205; Jackson v. Willard, 4 Johnson 43.] Quotation and Footnote from:Carpenter v. Longan, 83 U.S. (16 Wall.) 271, 274 (1872).
Standing in a court to enforce the instrument in foreclosure is impossible.
11)Not in Default – NOTE Paid in Full and Mortgage Satisfied
The Lender Disclosed in the NOTE that the NOTE may be transferred. The Description in
the proposed Forbearance Agreement Exhibit LG as “Investor Loan # ***********” shows that the NOTE was so transferred.
The sale and receipt of money from a third party as “Investor Loan # **********” payed off the NOTE and Satisfied the Mortgage.
Exhibit N: Affidavit by Todd Walker describes the processes used in by banks that transfer a Note as collatoralized debt instrument such as “Investor Loans” , the result is that the Lender immediately receives payment in full on the NOTE. The conclusion of which is:
Plaintiff is using the Defendant's NOTE for its own purpose, and it remains to be proven whether the Plaintiff has incurred any financial loss or actual damages.
Accordingly, the lack of proof of debt, timely created the reasonable belief that the Note had been paid in full.
12)Falsely Claimed Knowledge of no Written Requests for information pursuant to **G.S. 45-93
The Notice of Hearing, Exhibit H: claims in paragraph 3.:
3.The holder or servicer acting on the holder's behalf, has confirmed in writing to the substitute trustee that the holder or servicer acting on the holder's behalf, has no knowledge of borrower making any written request(s) for information pursuant to ** 45-93 within two years preceding the the of written statement.
Borrower Attests Exhibit J, that information pursuant to **G.S 45-93 was requested on Saturday July 18th 200*.
Exhibit K: was deposited in the Federal Express deposit receptical in the ********** shopping center. The Federal Express envelope was pre-addressed and prepaid, next day delivery by CLAIMANT for the return for the proposed forbearance agreement. The forbearance agreement covering letter required that the signed agreement must be sent no later than July 20th 200*. On July 21st 200* Borrower called CLAIMANT to confirm receipt of that delivery. The CLAIMANT agent confirmed delivery and stated that as delivery had not been received by July 20th that the document would undergo a separate handling process.
Exhibit K4 is the Third Party Pre-Paid Shipping Docket
Exhibit K2 is the Federal Express Tracking document showing signed delivery and receipt on July 21st 200* at 10:08 AM by *.****
Accordingly, one, or several of the following must be true:
(1).Falsely Claimed Knowledge of no Written Requests
(2).Business Records Not to be Relied Upon
13)Conflict of interest, Predatory Acts and Omissions of the Substitute Trustee
A substitute trustee has a fiduciary duty owed to both parties and may not advocate for a
lender without violating that duty. (see CPR’s 94, 137, 166, 218, 220). The ethical
prohibition against trustees advocating for the lender is frequently violated and grounds for
challenging the entire foreclosure. (CPR 220 states that no other member of the Trustee’s
law firm may represent the lender unless the trustee has resigned at an early stage in the
proceedings.)
A) The Substitute Trustee has been provided a Limited Power of Attorney by the Plaintiff In addition to the appointment as a substitute Trustee, *********** County, ***** *********** Register of Deeds records at “BOOK: ******** PAGE: ***********” Exhibit L:, the Limited Power of Attorney from ***********. which states:
“FURTHER, the Attorney(s)-In-Fact is authorized to execute, acknowledge and deliver any instrument under seal or otherwise, and to do all things necessary to carry out the intent hereof, hereby granting full power and authority to act in and concerning the conduct of foreclosures and related proceedings as fully and effectually as the Principal may do if personally present, limited however for the purpose for which this authorization is executed, and subject to the terms and conditions set forth herein and in accordance with the standard of care of a fiduciary agent”
The statement “limited however for the purpose for which this authorization is executed,” does not refer to or define any limited purpose; such as to act only as Substitute Trustee. Rather the Term “FURTHER” demands the Attorney act “ fully and effectually as the Principal”.
Predatory Acts:
In acting “fully and effectively” as the Lenders Attorney in Fact, the Substitute Trustee acting beyond those reasonably justifiable acts of a Substitute Trustee, has sent many multiple copies of documents to the Defendant and duplicating all documents to a non existent spouse at all addresses, that spouse was or should have been known not to exist in the knowledge of the Substitute Trustee. Letters were received, far in excess of the requirement to communicate effectively and to such a daunting degree as to harass the Defendant.
Conspiring with Third Parties to harass the Defendant. John Doe released personal contact information in conjunction with information regarding the “Notice of Hearing” that was filed in ********* County on August 3rd 20** at 2:15 PM. The letters of Exhibit N: offered purchase on the assumption of personal financial distress by the Defendant, the postage dates of several being August 3rd indicate that information was not from public records, but available and released by John Doe in sufficient time to have those letters mailed by August 3rd.
Receipt of those letters in advance of receipt of the “Notice of Hearing Prior to Foreclosure” was distressing to the Defendant and in reasonable belief was understood to be predatory and designed to cause distress; especially so in they were received prior to knowledge of and the release of public records of the Hearing.
Omission to Act:
In Exhibit K5 Defendant requested acknowledgement of receipt of the notice by August 11th 20**. No Acknowledgment was received.
The request in Exhibit K5 to cease contact with the Defendant in relation to the collection activity was not acted upon in a timely manner. Upon communication with the ************** agent on August 18th 20** the agent advised that there was no notation “Do Not Call” and she would notate the record. On August 19th on a further call from a ************* agent, [B*****; Employee # ****] he confirmed that the Attorney acting on behalf of ************** was indeed *************. The Substitute Trustee failed to timely communicate a request to cease and desist credit collection communications.
Upon seeking instructions from a staff member of *************** on Wednesday 11th at 1:43 PM, on what action to take for a Return of Service form left at the front door of *** ******* ******, which document was not sufficiently attached to any one of documents at that front door, Defendant invited and received a promise or return a phone call with appropriate instructions. No call was returned.
Accordingly, the grounds for the entire Foreclosure are challenged base upon lack of Neutrality.
