admin | Wrongful Foreclosure Action

WRONGFUL FORECLOSURE SAMPLE

Attorney for plaintiff

IN THE SUPREME COURT OF STATE OF STATE

JOHN DOE ) CASE NO.______________

Plaintiff ) COMPLAINT FOR:

Vs. ) 1.LACK OF STANDING TO FORECLOSE

CHASE BANK U.S.A, N.A; DEUTSCHE BANK ) 2.FRAUD IN THE CONCEALMENT

NATIONAL TRUST CO; AND ALL PERSONS ) 3.FRAUD IN THE INDUCEMENT

UNKNOWN, CLAIMING ANY LEGAL OR ) 4.INTENTIONAL INFLICION OF

EQUITABLE RIGHT, TITLE, ESTATE, LIEN ) EMOTIONAL DISTRESS

OR INTEREST IN THE PROPERTY ) 5.SLANDER OF TITLE

DESCRIBED IN THE COMPLAINT ADVERSE ) 6.DECLARATORY RELIEF

TO PLAINTIFF’S TITLE, OR ANY CLOUD ON ) 7.VIOLATIONS OF TILA;

PLAINTIFF’S TITLE THERETO, AND DOES ) 8.VIOLATIONS OF RESPA;

1-100 INCLUSIVE ) 9.RECISSION

Defendants

________________________________________________________________________________________________COMES NOW the Plaintiff, (“JOHN DOE”), PLAINTIFF JOHN DOE (“Plaintiff”), complaining of the defendants as named above, and each of them, as follows:

I.PARTIES

Plaintiff is now, and at all times relevant to this action, a resident of Palm Beach County, State of Florida.
Defendant, Chase Bank U.S.A, N.A is a National Association organized and existing under the laws of United States having an address , street, city, state, zip code 11111.
Defendant, Deutsche Bank National Trust Co; was formerly known as Bankers Trust Company of California, National Association and changed its name in 2002. The company was founded in 1986 and is based in Los Angeles, California. Deutsche Bank National Trust Company operates as a subsidiary of Deutsche Bank Holdings, Inc. having an address 300 South Grand Avenue, 41st Floor, Los Angeles, CA 90071, United States. The Security instrument names Deutsche Bank National Trust Co. as the Trustee for JP Morgan Mortgage Acquisition Trust 2007-CH5.
Plaintiff does not know the true names, capacities, or basis for liability of Defendants sued herein as Does 1 through 100, inclusive, as each fictitiously named Defendant is in some manner liable to Plaintiff, or claims some right, title, or interest in the Property. Plaintiff will amend this Complaint to allege their true names and capacities when ascertained. Plaintiff is informed and believes, and therefore alleges, that at all relevant times mentioned in this Complaint, each of the fictitiously named Defendants are responsible in some manner for the injuries and damages to Plaintiff so alleged and that such injuries and damages were proximately caused by such Defendants, and each of them.
Plaintiff is informed and believes, and thereon alleges, that at all times herein mentioned, each of the Defendants were the agents, employees, servants and/or the joint-venturers of the remaining Defendants, and each of them, and in doing the things alleged herein below, were acting within the course and scope of such agency, employment and/or joint venture.
JURISDICTION
The transactions and events which are the subject matter of this Complaint all occurred within Palm Beach County, State of Florida.
The Property is located within Palm Beach County, State of Florida having an address address.

III.INTRODUCTION

This is an action brought by Plaintiff for declaratory judgment, injunctive and equitable relief, and for compensatory, special, general and punitive damages.
Plaintiff, homeowner, disputes the title and ownership of the real property in question (the “Home”), which is the subject of this action, in that the originating mortgage lender, and others alleged to have ownership of Plaintiffs’ mortgage note and/or Deed of Trust, have unlawfully sold, assigned and/or transferred their ownership and security interest in a Promissory Note and Deed of Trust related to the Property, and, thus, do not have lawful ownership or a security interest in Plaintiff’s Home which is described in detail herein. For these reasons, the Court should Quiet Title to the property in Plaintiffs’ name.
Additionally, Plaintiff homeowner brings causes of action against all defendants for fraud, intentional infliction of emotional distress, rescission, declaratory relief based, and violations of T.I.L.A. and R.E.S.P.A., upon the facts and circumstances surrounding Plaintiffs’ original loan transaction and subsequent securitization. Defendants’ violations of these laws are additional reasons this Court should quiet title the property in Plaintiffs’ name and award damages, rescission, declaratory judgment, and injunctive relief as requested below.
From 1998 until the financial crash of 2008-2009, over 60 million home loans were sold by originating lender banks to investment banks to be securitized in a complex series of billions of transactions. The Plaintiff’s home loan was one of the 60 million notes.
The business of securitization is handled by a Real Estate Mortgage Investment Conduit (REMIC). In the United States a REMIC usually takes the form of a trust that was created by different entities. In most trusts most of these entities are affiliates of each other except the trustee.
As these practices were intentionally designed, it misleads the borrower and benefits the lenders.
Plaintiff alleges that Defendants, and each of them, cannot show proper receipt, possession, transfer, negotiations, assignment and ownership of the borrower’s original Promissory Note and Mortgage, resulting in imperfect security interests and claims.
Plaintiff further alleges that Defendants, and each of them, cannot establish possession and proper transfer and/or Endorsement of the Promissory Note and proper assignment of the Deed of Trust herein; therefore, none of the Defendants have perfected any claim of title or security interest in the Property. Defendants, and each of them, do not have the ability to establish that the mortgages that secure the indebtedness, or Note, were legally or properly acquired.
Plaintiff alleges that an actual controversy has arisen and now exists between the Plaintiff and Defendants, and each of them. Plaintiff desires a judicial determination and declaration of its rights with regard to the Property and the corresponding Promissory Note and Mortgage.
Plaintiff also seeks redress from Defendants identified herein for damages, for other injunctive relief, and for cancellation of written instruments based upon:
An invalid and unperfected security interest in Plaintiff’s Home hereinafter described;
An incomplete and ineffectual perfection of a security interest in Plaintiff’s Home.

IV.FACTUAL ALLEGATIONS

As per the Securitization Audit Report which has been attached herewith as Exhibit A, the loan that is the subject of this examination was granted on January 30, 2007. The promissory note names JOHN DOE as the borrower and Chase Bank USA, NA as the originating lender. It is an Adjustable Rate Note with a term of 30 years to mature on February 1, 2037. It has not been endorsed. A copy of the promissory note has been attached herewith as Exhibit B.
The Mortgage was executed on the same date. The parties are the borrower and the originating lender. Mortgage Electronic Registration Systems, Inc. (MERS) is not a party in this security instrument. This instrument secures the debt of the borrower to the lender including interest thereof. The mortgaged property is located at 262 Tequesta Circle, Jupiter FL 33469. It belongs in the jurisdiction of Palm Beach County. A copy of the Mortgage has been attached herewith as Exhibit C.
On August 4, 2009 an Assignment of Mortgage was executed by Chase Bank USA, NA. This document names Deutsche Bank National Trust Co. as Trustee for JP Morgan Mortgage Acquisition Trust 2007-CH5. This indicates that the subject loan was securitized into this trust. A copy of the Assignment of Mortgage has been attached herewith as Exhibit D.
JP Morgan Mortgage Acquisition Trust 2007-CH5 was established under a Pooling and Servicing Agreement dated as of June 1, 2007 by and among JP Morgan Acceptance Corp. I as depositor, JP Morgan Mortgage Acquisition Corp. as seller, JP Morgan Chase Bank, NA as servicer, Deutsche Bank National Trust Co. as trustee, and PentAlpha Surveillance, LLC as trust oversight manager.
The plaintiff states that the mortgage loan failed to provide a Truth in Lending disclosure only and not Notice of Right to Cancel. Due to this the plaintiff issued a notice of recession under 12 C.F.R. Code 1026.15(a)(3).
The plaintiff states that Chase failed to take a written loan application from her which constitutes a violation of ECOA. Chase mailed an initial loan application in response to the mortgage broker submitting the loan to file to Chase. It has shown that the plaintiff’s income increased 200% from 2005, with 5,500.00 from her employment and an additional 5,500.00 from “none” which does not appear on the mortgage broker’s version of the application. This constitutes fraud by an agent of the bank because the plaintiff gave him her correct income.
The plaintiff in her broker fee agreement settled on a lifetime interest rate cap of 6.875%. The mortgage note shows an actual cap of 7%. This cap difference constitutes a breach of contract by Chase. The note copy as on 2013 appears to have an allonge stapled holes in the shape of a Mortgage. Chase claimed in the foreclosure complaint that the note got lost in 2009, but produced an allonge to that note. This indicates the original note had no allonge to it, and attachment of the allonge attached to the foreclosure complaint has no staple marks in it and no allonge is attached to it which clearly suggests fraud by Chase.
Defendant Trust tried to collect a debt as its own which belonged to Chase. This constitutes an Unfair Trade Practice, Unfair Debt Collection Practice and fraud on the Court.
Chase’s agent encouraged the plaintiff to breach the note by failing to make mortgage payments as a preconditions for obtaining a loan modification, and then chase refused to make the loan modification available to the plaintiff even after she paid trial payments of 890.30 per month for three months as advised by Chase in order to qualify for the loan. But the plaintiff never received the loan modification packet.
Chase took the plaintiff’s money and continued sending the summons. This inducement by Chase caused plaintiff to default on the loan, and ruined her credit, and proximately caused the foreclosure and sale, impending eviction, making her a nervous wreck and injuring her financially.
The servicer escrowed taxes but not insurance from the inception of the loan to April 2007, leaving plaintiff with a huge negative balance of $5272, a payment she couldn’t possibly make along with the mortgage payment. This further constitutes to her default on the loan. Chase thereby breached the Regulations of RESPA requirement under 12 C.F.R. and 1024.17(i).
The plaintiff never received an Equal Credit Opportunity Act Disclosure for 2007 mortgage or modification as required by 12CFR 202.
Chase, a recipient of TARP funds, did not suspend the foreclosure action during loan modification negotiation as required by HAMP rules. Chase didn’t evaluate the plaintiff’s property for a short sale possibility, and didn’t recommend credit counseling as required by HUD ACT OF 1968.
Chase knowingly took unfair advantage of plaintiff’s lack of financial sophistication and her inability to protect her interests by making a predatory loan knowing she could not qualify for the payment scheme and putting her in financial jeopardy and worsening it with a modification scam. This made the loan unconscionable and Chase must have known from the beginning that it would engage in such scurrilous tactics.
The plaintiff has suffered extreme mental anguish and emotional stress, many sleepless nights and lost her ability to work effectively as a result of the incessant attack by the servicer throughout this loan modification and foreclosure ordeal. The plaintiff believes she has suffered Traumatic Stress Injury as a result.
FIRST CAUSE OF ACTION

LACK OF STANDING TO FORECLOSE

No Defendant has Standing to Foreclose
Plaintiff re-alleges and incorporates by reference all preceding paragraphs as though fully set forth herein.
An actual controversy has arisen and now exists between plaintiff and Defendants specified hereinabove, regarding their respective rights and duties, in that Plaintiff contends that defendants and each of them, do not have the right to foreclose on the Property, or cannot prove to the court they have valid interest. Thus, the purported power of sale by the above specified Defendants, and each of them, no longer applies.
Plaintiff is informed and believes and there upon alleges that the only individual who has standing to foreclose is the holder of the note because they have beneficial interest. The only individuals who are the holder of the note are the certificate holders of the securitized trust because they are the end users and pay taxes on their interest gains; furthermore, all of the banks or other entities holding the note in the middle of the chain of transfers were paid in full.
Plaintiff further contends that the above specified Defendants, and each of them, do not have the right to foreclose on the Property because said Defendants, and each of them, did not properly comply with the terms of Defendants’ own securitization requirements and falsely or fraudulently prepared documents required for Defendants, and each of them, to foreclose as a calculated and fraudulent business practice.
With securitization the mortgage is converted into something different from what was originally represented to the mortgagor/homeowner. For one thing, since the party (or parties) taking action to foreclose does not actually hold any legal or equitable interest in any securitized mortgage, they have not realized any loss or damages resulting from the purported default. Therefore, it also follows that the foreclosing party avoids the liability, which could result if a class of certificate holders claimed wrongful injury resulting from a modification made to achieve an alternate dispute resolution.
Securitization also makes the deed and note unalienable. The reason is simple; once certificates have been issued, the note cannot be transferred, sold or conveyed; at least not in the sense that such a transfer, sale, or conveyance should be considered lawful, legal, and legitimate. This is because the securitized note forever hangs the nature of that instrument in an irreversible manner.
Plaintiff alleges that the Defendants’ actions in the processing, handling and attempted foreclosure of this loan involved numerous fraudulent, false, deceptive and misleading practices, including, but not limited to, violations of federal laws designed to protect borrowers, which has directly caused Plaintiffs to be at an equitable disadvantage to Defendants, and each of them. Plaintiff further requests that title to the Property remain in its name, with said Mortgage remaining in beneficiaries’ name, during the pendency of this litigation, and deem that any attempted sale of the Property is “unlawful and void”.
Any attempt to transfer the beneficial interest of a trust deed without actual ownership of the underlying note, is void under law. Therefore, defendant cannot establish that it is entitled to assert a claim in this case. For this reason, as well as the other reasons set forth herein below, defendant cannot transfer an interest in real property, and cannot recover anything from Plaintiff.
Defendants, and each of them, through the actions alleged above, have or claim the right to illegally commence foreclosure under the Note on the Property via a foreclosure action supported by false or fraudulent documents. Said unlawful foreclosure action has caused and continues to cause Plaintiff’s great and irreparable injury in that real property is unique.
The wrongful conduct of the above specified Defendants, and each of them, unless restrained and enjoined by an Order of the Court, will continue to cause great and irreparable harm to Plaintiff. Plaintiff will not have the beneficial use and enjoyment of its Home and will lose the Property.
Plaintiff has no other plain, speedy or adequate remedy and the injunctive relief prayed for below is necessary and appropriate at this time to prevent irreparable loss to Plaintiff. Plaintiff has suffered and will continue to suffer in the future unless Defendants’ wrongful conduct is restrained and enjoined because real property is inherently unique and it will be impossible for Plaintiff to determine the precise amount of damage it will suffer.

VI.SECOND CAUSE OF ACTION

FRAUD IN THE CONCEALMENT

Plaintiff re-alleges and incorporates by reference all preceding paragraphs as though fully set forth herein.
Defendants concealed the fact that the Loans were securitized as well as the terms of the Securitization Agreements, including, inter alia: (1) Financial Incentives paid; (2) existence of Credit Enhancement Agreements, and (3) existence of Acquisition Provisions. By concealing the securitization, Defendant concealed the fact that Borrower’s loan changed in character inasmuch as no single party would hold the Note but rather the Notes would be included in a pool with other notes, split into tranches, and multiple investors would effectively buy shares of the income stream from the loans. Changing the character of the loan in this way had a materially negative effect on Plaintiff that was known by Defendant but not disclosed.
Defendant knew or should have known that had the truth been disclosed, Plaintiff would not have entered into transactions related to the property.
Defendants intended to induce Plaintiff based on these misrepresentations and improper disclosures.
Plaintiff’s reasonable reliance upon the misrepresentations was detrimental. But for failure to disclose the true and material terms of the transaction, Plaintiff could have been alerted to issues of concern. Plaintiff would have known of Defendants true intentions and profits from the property transactions. Plaintiff would have known that the actions of Defendant would have an adverse effect on the value of Plaintiff’s home.
Defendants’ failure to disclose the material terms of the transaction induced Plaintiff to enter into the loans and accept the Services as alleged herein.
Defendants were aware of the misrepresentations and profited from them.
As a direct and proximate result of the misrepresentations and concealment Plaintiff were damaged in an amount to be proven at trial, including but not limited to costs of Loan, damage to Plaintiff’s financial security, emotional distress, and Plaintiff have incurred costs and attorney’s fees.
Defendants are guilty of malice, fraud and/or oppression. Defendants’ actions were malicious and done willfully in conscious disregard of the rights and safety of Plaintiff in that the actions were calculated to injure Plaintiff. As such Plaintiff is entitled to recover, in addition to actual damages, punitive damages to punish Defendants and to deter them from engaging in future misconduct.

VII.THIRD CAUSE OF ACTION

FRAUD IN THE INDUCEMENT

Plaintiff re-alleges and incorporates by reference all preceding paragraphs as though fully set forth herein.
Defendants, intentionally misrepresented to Plaintiff those Defendants were entitled to exercise the power of sale provision contained in the Deed of Trust. In fact, Defendants were not entitled to do so and have no legal, equitable, or actual beneficial interest whatsoever in the Property.
Defendants misrepresented that they are the “holder and owner” of the Note and the beneficiary of the Deed of Trust. However, this was not true and was a misrepresentation of material fact. Defendants were attempting to collect on a debt to which they have no legal, equitable, or pecuniary interest in. This type of conduct is outrageous. Defendants are fraudulently foreclosing on the Property which they have no monetary or pecuniary interest. This type of conduct is outrageous.
Defendant’s failure to disclose the material terms of the transaction induced Plaintiff to accept the Services as alleged herein.
The material misrepresentations were made by Defendants with the intent to cause Plaintiff to reasonably rely on the misrepresentation in order to induce the Plaintiff to rely on the misrepresentations and foreclosure on the Property. This material misrepresentation was made with the purpose of initiating the securitization process as illustrated above, in order to profit from the sale of the Property by selling the note to sponsors who then pool the note and sell it to investors on Wall Street and other New York investment banks.
Defendants were aware of the misrepresentations and profited from them.
As a direct and proximate result of the misrepresentations and concealment, Plaintiff was damaged in an amount to be proven at trial, including but not limited to costs of Loan, damage to Plaintiff’s financial security, emotional distress, and Plaintiff has incurred costs and attorney’s fees.
Defendants are guilty of malice, fraud and/or oppression. Defendants’ actions were malicious and done willfully in conscious disregard of the rights and safety of Plaintiff in that the actions were calculated to injure Plaintiff. As such Plaintiff is entitled to recover, in addition to actual damages, punitive damages to punish Defendants and to deter them from engaging in future misconduct.

VIII.FOURTH CAUSE OF ACTION

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Plaintiff re-alleges and incorporates by reference all preceding paragraphs as though fully set forth herein.
The actions of Defendants, as set forth herein, have resulted in the Plaintiff being threatened with the loss of the Property.
This outcome has been created without any right or privilege on the part of the Defendants, and, as such, their actions constitute outrageous or reckless conduct on the part of Defendants.
Defendants intentionally, knowingly and recklessly misrepresented to the Plaintiff those Defendants were entitled to exercise the power of sale provision contained in the Deed of Trust. In fact, Defendants were not entitled to do so and have no legal, equitable, or actual beneficial interest whatsoever in the Property.
Defendants’ conduct – fraudulently attempting to foreclose or claiming the right to foreclose on a property in which they have no right, title, or interest – is so outrageous and extreme that it exceeds all bounds which is usually tolerated in a civilized community.
Such conduct was undertaken with the specific intent of inflicting major distress on the Plaintiff, such that Plaintiff would be so badly distressed and debilitated that it would be unable to exercise legal rights in the Property; the right to title of the Property, the right to cure the alleged default, right to verify the alleged debt that Defendants are attempting to collect, and right to clear title to the Property such that said title will regain its marketability and value.
At the time Defendants began their fraudulent foreclosure proceedings, Defendants were not acting in good faith while attempting to collect on the subject debt. Defendants, and each of them, committed the acts set forth above with complete; utter and reckless disregard of the probability of causing Homeowners to suffer severe emotional distress.
As an actual and proximate cause of Defendants’ attempt to fraudulently foreclose on Plaintiffs’ property or claim of the right to foreclose on Plaintiffs’ property, the Plaintiff has suffered severe loss and distress.
As a proximate cause of Defendants’ conduct, Plaintiff has experienced loss of productivity.
The conduct of Defendants, and each of them, as herein described, was so vile, base, contemptible, miserable, wretched, and loathsome that it would be looked down upon and despised by ordinary people. Plaintiff is therefore entitled to punitive damages in an amount appropriate to punish Defendants and to deter other from engaging in similar conduct.

IX.FIFTH CAUSE OF ACTION

SLANDER OF TITLE

Plaintiff re-alleges and incorporates by reference all preceding paragraphs as though fully set forth herein.
Plaintiff incorporates here each and every allegation set forth above. Defendants, and each of them, disparaged Plaintiff’s exclusive valid title by and through the preparing, posting, publishing, and recording of various documents for foreclosure.
Said Defendants knew or should have known that such documents were improper in that at the time of the execution and delivery of said documents, Defendants had no right, title, or interest in the Property. These documents were naturally and commonly to be interpreted as denying, disparaging, and causing doubt upon Plaintiff’s legal title to the Property. By posting, publishing, and recording said documents, Defendants’ disparagement of Plaintiff’s legal title was made to the world at large.
As a direct and proximate result of Defendants’ conduct in publishing these documents. Plaintiff’s title to the Property has been disparaged and slandered, and there is a cloud on Plaintiff’s title, and Plaintiff has suffered, and continues to suffer, damages in an amount to be proved at trial.
As a further proximate result of Defendants’ conduct, Plaintiff has incurred expenses in order to clear title to the Property. Moreover, these expenses are continuing, and Plaintiff will incur additional charges for such purpose until the cloud on Plaintiff’s title to the property has been removed. The amounts of future expenses and damages are not ascertainable at this time.
As a further direct and proximate result of Defendants’ conduct, Plaintiff has suffered humiliation, mental anguish, anxiety, depression, and emotional and physical distress, resulting in the loss of sleep and other injuries to his health and well-being, and continues to suffer such injuries on an ongoing basis. The amount of such damages shall be proven at trial.
At the time that the false and disparaging documents were created and published by the Defendants, Defendants knew the documents were false and created and published them with the malicious intent to injure Plaintiff and deprive them of their exclusive right, title, and interest in the Property, and to obtain the Property for their own use by unlawful means.
The conduct of the Defendants in publishing the documents was fraudulent, oppressive, and malicious. Therefore, Plaintiff is entitled to an award of punitive damages in an amount sufficient to punish Defendants for their malicious conduct and deter such misconduct in the future.

X.SIXTH CAUSE OF ACTION

DECLARATORY RELIEF

Plaintiff re-alleges and incorporates by reference all preceding paragraphs as though fully set forth herein.
An actual controversy has arisen and now exists between Plaintiff and Defendants concerning their respective rights and duties regarding the Note and Trust Deed.
Plaintiff contends that pursuant to the Loan, Defendants do not have authority to foreclose upon and sell the Property.
Plaintiff is informed and believes and upon that basis alleges that Defendants dispute Plaintiff’s contention and instead contend they may properly foreclose upon the Property.
Plaintiff therefore requests a judicial determination of the rights, obligations and interest of the parties with regard to the Property, and such determination is necessary and appropriate at this time under the circumstances so that all parties may ascertain and know their rights, obligations and interests with regard to the Property.
Plaintiff requests a determination of the validity of the Trust Deed as of the date the Notes were assigned without a concurrent assignation of the underlying Trust Deed.
Plaintiff requests a determination of whether any Defendant has authority to foreclose on the Property.
Plaintiff requests all adverse claims to the real property must be determined by a decree of this court.
Plaintiff requests the decree declare and adjudge that plaintiff is entitled to the exclusive possession of the property.
Plaintiff requests the decree declare and adjudge that plaintiff owns in fee simple, and is entitled to the quiet and peaceful possession of, the above-described real property.
Plaintiff requests the decree declare and adjudge that defendants, and each of them, and all persons claiming under them, have no estate, right, title, lien, or interest in or to the real property or any part of the property.
SEVENTH CAUSE OF ACTION.

VIOLATION OF TILA, 15 U.S.C. § 1601, ET. SEQ.

Plaintiff re-alleges and incorporates by reference all preceding paragraphs as though fully set forth herein.
Defendants violated TILA by failing to provide Plaintiff with accurate material disclosures required under TILA and not taking into account the intent of the State Legislature in approving this statute which was to fully inform home buyers of the pros and cons of adjustable rate mortgages in a language (both written and spoken) that they can understand and comprehend; and advise them to compare similar loan products with other lenders. It also requires the lender to offer other loan products that might be more advantageous for the borrower under the same qualifying matrix.
Any and all statute[s] of limitations relating to disclosures and notices required pursuant to 15 U.S.C. § 1601, et.seq. were tolled due to Defendants’ failure to effectively provide the required disclosures and notices.
As a direct and proximate result of Defendants’ violations Plaintiff has incurred and continue to incur damages in an amount according to proof but not yet ascertained including without limitation, statutory damages and all amounts paid or to be paid in connection with the transaction.
Defendants were unjustly enriched at the expense of Plaintiff who are therefore entitled to equitable restitution and disgorgement of profits obtained by Defendants.
Defendants’ actions in this matter have been willful, knowing, malicious, fraudulent and oppressive, entitling Plaintiff to punitive damages in an amount appropriate to punish Defendants and to deter others from engaging in the same behavior.

XII. EIGHT CAUSE OF ACTION.

VIOLATION OF RESPA, 1 U.S.C. § 2601 ET. SEQ.

Plaintiff re-alleges and incorporates by reference all preceding paragraphs as though fully set forth herein.
The loan to Plaintiff was a federally regulated mortgage loan as defined in RESPA.
Housing and Urban Development’s (HUD’s) 1999 Statement of Policy established a two-part test for determining the legality of lender payments to mortgage brokers for table funded transactions and intermediary transactions under RESPA:
a) Whether goods or facilities were actually furnished or services were actually performed for the compensation paid and;
b) Whether the payments are reasonably related to the value of the goods or facilities that were actually furnished or services that were actually performed.
In applying this test, HUD believes that total compensation should be scrutinized to assure that it is reasonably related to the goods, facilities, or services furnished or performed to determine whether it is legal under RESPA. The interest and income that Defendants have gained is disproportionate to the situation Plaintiffs find themselves in due directly to Defendant’s failure to disclose that they will gain a financial benefit while Plaintiffs suffer financially as a result of the loan product sold to Plaintiff.
Defendants violated RESPA because the payments between the Defendants were misleading and designed to create a windfall. These actions were deceptive, fraudulent and self-serving.
As a proximate result of Defendants’ actions, Plaintiff has been damaged in an amount not yet ascertained, to be proven at trial.

XIII. NINTH CAUSE OF ACTION.

RECISSION

Plaintiff re-alleges and incorporates by reference all preceding paragraphs as though fully set forth herein.
Plaintiff is entitled to rescind the loan and all accompanying loan documents for all of the foregoing reasons: 1) TILA Violations; 2) Failure to provide a Mortgage Loan Origination Agreement; 3) Fraudulent Concealment; 4) Fraudulent Inducement; 5) making illegal or fraudulent transfers of the note and deed of trust; and 5) Public Policy Grounds, each of which provides independent grounds for relief.
The Truth in Lending Act, 15 U.S.C §1601, et.seq. extends Plaintiff’s right to rescind a loan to three years from the date of closing if the borrower received false or incomplete disclosures of either the loans terms or Borrower’s right to rescind. Here, Defendants have failed to properly disclose the details of the loan. Specifically, the initial disclosures do not initial TILA disclosures, and lack of diligence and collusion on the part of the broker, lender and underwriter to place Plaintiff in a loan which was not affordable and would ultimately benefit Defendants following the negative amortization that accrued.
The public interest would be prejudiced by permitting the alleged contract to stand; such action would regard an unscrupulous lender.
As a proximate result of Defendants’ actions, Plaintiff has been damaged in an amount not yet ascertained, to be proven at trial.

WHEREFORE, Plaintiff prays for rescission of the stated loan in its entirety.

PRAYER FOR RELIEF

WHEREFORE Plaintiff, will ask for the following for each Cause of Action to be awarded:

FIRST CAUSE OF ACTION – STANDING

For Compensatory Damages in an amount to be determined by proof at trial;
For Special Damages in an amount to be determined by proof at trial;
For General Damages in an amount to be determined by proof at trial;
For Punitive Damages as allowed by law;
For Restitution as allowed by law;
For Attorney’s Fees and Costs of this action;
For Declaratory Relief, including but not limited to the following Decrees of this Court that:
Plaintiff, Plaintiff is the prevailing party;
The Sponsor has no enforceable secured or unsecured claim against the Property;
The Depositor has no enforceable secured or unsecured claim against the Property;
The Mortgage Originator has no enforceable secured or unsecured claim against the Property;
Determines all adverse claims to the real property in this proceeding;
Plaintiff is entitled to the exclusive possession of the property;
Plaintiff owns in fee simple, and is entitled to the quiet and peaceful possession of, the above-described real property.
Defendants, and each of them, and all persons claiming under them, have no estate, right, title, lien, or interest in or to the real property or any part of the property.

SECOND CAUSE OF ACTION – FRAUD IN THE CONCEALMENT

For Compensatory Damages in an amount to be determined by proof at trial;
For Special Damages in an amount to be determined by proof at trial;
For General Damages in an amount to be determined by proof at trial;
For Punitive Damages as allowed by law;
For Restitution as allowed by law;

THIRD CAUSE OF ACTION – FRAUD IN THE INDUCEMENT

For Compensatory Damages in an amount to be determined by proof at trial;
For Special Damages in an amount to be determined by proof at trial;
For General Damages in an amount to be determined by proof at trial;
For Punitive Damages as allowed by law;
For Restitution as allowed by law;

FOURTH CAUSE OF ACTION – I.I.E.D.

For Compensatory Damages in an amount to be determined by proof at trial;
For Special Damages in an amount to be determined by proof at trial;
For General Damages in an amount to be determined by proof at trial;
For Punitive Damages as allowed by law;
For Restitution as allowed by law;

FIFTH CAUSE OF ACTION – SLANDER OF TITLE

For Compensatory Damages in an amount to be determined by proof at trial;
For Special Damages in an amount to be determined by proof at trial;
For General Damages in an amount to be determined by proof at trial;
For Punitive Damages as allowed by law;
For Restitution as allowed by law;
For Attorney’s Fees and Costs of this action;
For Declaratory Relief, including but not limited to the following Decrees of this Court that:
Plaintiff, Plaintiff is the prevailing party;
The Sponsor has no enforceable secured or unsecured claim against the Property;
The Depositor has no enforceable secured or unsecured claim against the Property;
The Mortgage Originator has no enforceable secured or unsecured claim against the Property;
Determines all adverse claims to the real property in this proceeding;
Plaintiff is entitled to the exclusive possession of the property;
Plaintiff owns in fee simple, and is entitled to the quiet and peaceful possession of, the above-described real property.
Defendants, and each of them, and all persons claiming under them, have no estate, right, title, lien, or interest in or to the real property or any part of the property.

SIXTH CAUSE OF ACTION – DECLARATORY RELIEF

For Compensatory Damages in an amount to be determined by proof at trial;
For Special Damages in an amount to be determined by proof at trial;
For General Damages in an amount to be determined by proof at trial;
For Punitive Damages as allowed by law;
For Restitution as allowed by law;
For Attorney’s Fees and Costs of this action;
For Declaratory Relief, including but not limited to the following Decrees of this Court that:
Plaintiff, Plaintiff is the prevailing party;
The Sponsor has no enforceable secured or unsecured claim against the Property;
The Depositor has no enforceable secured or unsecured claim against the Property;
The Mortgage Originator has no enforceable secured or unsecured claim against the Property;
Determines all adverse claims to the real property in this proceeding;
Plaintiff is entitled to the exclusive possession of the property;
Plaintiff owns in fee simple, and is entitled to the quiet and peaceful possession of, the above-described real property.
Defendants, and each of them, and all persons claiming under them, have no estate, right, title, lien, or interest in or to the real property or any part of the property.

SEVENTH CAUSE OF ACTION – VIOLATION OF T.I.L.A.

For Compensatory Damages in an amount to be determined by proof at trial;
For Special Damages in an amount to be determined by proof at trial;
For General Damages in an amount to be determined by proof at trial;
For Punitive Damages as allowed by law;
For Restitution as allowed by law;
For Attorney’s Fees and Costs of this action;
For Declaratory Relief, including but not limited to the following Decrees of this Court that:
Plaintiff, Plaintiff is the prevailing party;
The Sponsor has no enforceable secured or unsecured claim against the Property;
The Depositor has no enforceable secured or unsecured claim against the Property;
The Mortgage Originator has no enforceable secured or unsecured claim against the Property;
Determines all adverse claims to the real property in this proceeding;
Plaintiffs are entitled to the exclusive possession of the property;
Plaintiffs own in fee simple, and is entitled to the quiet and peaceful possession of, the above-described real property.
Defendants, and each of them, and all persons claiming under them, have no estate, right, title, lien, or interest in or to the real property or any part of the property.

EIGHT CAUSE OF ACTION – VIOLATION OF R.E.S.P.A.

For Compensatory Damages in an amount to be determined by proof at trial;
For Special Damages in an amount to be determined by proof at trial;
For General Damages in an amount to be determined by proof at trial;
For Punitive Damages as allowed by law;
For Restitution as allowed by law;
For Attorney’s Fees and Costs of this action;
For Declaratory Relief, including but not limited to the following Decrees of this Court that:
Plaintiff, Plaintiff is the prevailing party;
The Sponsor has no enforceable secured or unsecured claim against the Property;
The Depositor has no enforceable secured or unsecured claim against the Property;
The Mortgage Originator has no enforceable secured or unsecured claim against the Property;
Determines all adverse claims to the real property in this proceeding;
Plaintiffs are entitled to the exclusive possession of the property;
Plaintiffs own in fee simple, and is entitled to the quiet and peaceful possession of, the above-described real property.
Defendants, and each of them, and all persons claiming under them, have no estate, right, title, lien, or interest in or to the real property or any part of the property.

NINTH CAUSE OF ACTION – RECISSION

For Compensatory Damages in an amount to be determined by proof at trial;
For Special Damages in an amount to be determined by proof at trial;
For General Damages in an amount to be determined by proof at trial;
For Punitive Damages as allowed by law;
For Restitution as allowed by law;
For Attorney’s Fees and Costs of this action;
For Declaratory Relief, including but not limited to the following Decrees of this Court that:
Plaintiff, Plaintiff is the prevailing party;
The Sponsor has no enforceable secured or unsecured claim against the Property;
The Depositor has no enforceable secured or unsecured claim against the Property;
The Mortgage Originator has no enforceable secured or unsecured claim against the Property;
Determines all adverse claims to the real property in this proceeding;
Plaintiff is entitled to the exclusive possession of the property;
Plaintiff owns in fee simple, and is entitled to the quiet and peaceful possession of, the above-described real property.
Defendants, and each of them, and all persons claiming under them, have no estate, right, title, lien, or interest in or to the real property or any part of the property.

Dated: _________________

_______________________________

JOHN DOE

Plaintiff in Pro Per

Wrongful Foreclosure Action

Author Archives: admin

Wrongful Foreclosure Sample