collette v jpmc

8/4/2019 Collette v JPMC

1/26

Page 1Complaint: TIM A. COLLETTE v. SHAPIRO & SUTHERLAND, et al. Declaratory and Injunctive Relief for EquitableRedemption Due to Wrongful Foreclosure; Breach of Contract; Unlawful Debt Collection; and Quiet Title

Bowles Fernandez Law LLC5200 SW Meadows Road Suite 150

Lake Oswego, Oregon 97035

503.726.5930

John Bowles, OSB #971497

Bowles Fernndez Law LLC

5200 SW Meadows Rd., Ste. 150

Lake Oswego, OR 97035

Phone: [email protected]

Attorney for Plaintiff

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

EUGENE DIVISION

TIM A. COLLETTE,

Plaintiff

v.

KELLY D. SUTHERLAND of SHAPIRO &SUTHERLAND, as Successor Trustee, and JPMORGAN CHASE BANK, NA, purchaser ofcertain assets of WASHINGTON MUTUALBANK FKA WASHINGTON MUTUALBANK, F.A.,

Defendants.

)))))))))))))

)))

Case No. __________________________

COMPLAINT:DECLARATORY AND INJUNCTIVERELIEF FOR EQUITABLE REDEMPTIONDUE TO WRONGFUL FORECLOSURE;BREACH OF CONTRACT; UNLAWFULDEBT COLLECTION; AND QUIET TITLE

Money Damages Claimed: $250,000.00

Plaintiff TIM A. COLLETTE, by and through his undersigned attorney, John Bowles, sues

defendants KELLY D. SUTHERLAND of SHAPIRO & SUTHERLAND S&S JP

MORGAN CHASE BANK, NA, purchaser of certain assets of WASHINGTON MUTUAL BANK FKA

WASHINGTON MUTUAL BANK, F.A. CHASEand seeks declaratory and injunctive

relief enjoining any further sale

sale conducted on August 9, 2011; monetary damages sufficient to permit him to recover title to his

property, or, in the alternative, to redeem equitably www.S

topForec

losureF rau

d .com


2/26




503.726.5930

title as the actual owner of the property; and additional monetary damages resulting from unlawful debt

collection, and as grounds states herein:

A. Jurisdiction1. The residential real property that is the subject of this action (herein referred to as the

20565 BOYD COURT, BEND, OR 97701, and is legally described as set

below.

2. Jurisdiction in this Court arises under 28 U.S.C. 1331 and 1332(a) and supplementaljurisdiction exists for the state law claims pursuant to 28 U.S.C. 1367. Venue in this District is

proper in that Defendants transact business in the State of Oregon, Plaintiff resides in the State of

Oregon, and the subject property is located in the State of Oregon.

B. Parties3. Plaintiff TIM A. COLLETTE is and was at all material times a sui jurisresident of the

State of Oregon over the age of eighteen (18), and was the legal owner of the residential real estate

property identified herein infra. At all material times hereto, Plaintiff purchased the Property on or

about June 30, 2006 under loan #3062796721 (hereinafter referred

$232,765.00. Plaintiff had previously paid the sum of $127,000.00 in cash towards the purchase of

the Property. Non-Party WASHINGTON MUTUAL BANK, F.A. WAMU-FA,

, attached hereto as Exhibit 1, and incorporated herein. The DOT

purports to grant a beneficial interest in favor of Non-Party WAMU-FA. The Note is solely

between Plaintiff and Non-Party WAMU-FA. Neither the Note nor the DOT was ever assigned to

any party, including CHASE. There are a number of significant and fatal problems with thewww.S

topForec

losureF rau

d .com


3/26




503.726.5930

purported Note and DOT as set forth below.

4. At all material times hereto, Defendant S&S is actively engaged in the business of-judicial foreclosure actions in a

number of states, including Oregon. Defendant S&S represents that it was assigned powers as a

dated October 7, 2010 naming

Defendant CHASE as Beneficiary. The Appointment of Successor Trustee was recorded on

October 7, 2010 in Deschutes County under Recording No. 2010-40078. SeeExhibit 2

incorporated herein. Pursuant to the alleged authority conferred by the October 7, 2010

Appointment of Successor Trustee, Defendant S&S executed a Notice of Default and Election to

Sell on October 7, 2010 and recorded said Notice on October 7, 2010 under Deschutes

Recording No. 2010-40079. SeeExhibit 3Though Plaintiffcounsel sent

it various warnings about the defective nature of its foreclosure process and the dubious nature of

, which

attempted to deprive Plaintiff of his ownership interest in the property.

5. At all material times hereto, Defendant CHASE is and has been a national association,alternatively representing itself as lender, loan servicer, loan originator and beneficiary within and

outside of the United States and including the State of Oregon. SeeExhibit 4

acquired certain assets of Non-Party WAMU-FA pursuant to the Purchase and Assumption

Agreement1, but it appears that the FDIC, as of the date of this Complaint, has not yet reached a

final decision on the full extent of assets sold to Non-Party WAMU-FA. Plaintiff notes that

1The Pu the accuracy of which cannot be

reasonably questioned. Fed. R. Evid. 201(a). It is available to the general public at the following FDIC website:http://www.fdic.gov/about/freedom/Washington_Mutual_P_and_A.pdf, last viewed September 26, 2011. There is

acqui www

.StopF

oreclosure

F raud .co

m
http://www.fdic.gov/about/freedom/Washington_Mutual_P_and_A.pdfhttp://www.fdic.gov/about/freedom/Washington_Mutual_P_and_A.pdfhttp://www.fdic.gov/about/freedom/Washington_Mutual_P_and_A.pdf


4/26




503.726.5930

CHASE through its counsel

Purchase and Assumption Agreement], JPMC [Defendant CHASE here] did not

[WAMU] successor in interest. Since its closure, the FDIC h

original) Deutsche Bank National Trust Company, etc. v. Federal Deposit Insurance Corporation

and JPMorgan Chase Bank National Association et al., Case No. 1:09-cv-1656 (RMC) Document

55-1 at 33 (D.D.C., April 11, 2010).

6. At all material times hereto, Non-Party WAMU-FA was incapable of originating the. The Note and DOT were

executed on June 29, 2006 and recorded June 30, 2006. Non-Party WAMU-FA, however, had

changed its legal over a year earlier on April 4, 2005 and was

incapable of originating loans under this name after this date. SeeExhibit 5Non-Party

WAMU-FA expressly stated in its official Securities and Exchange Commission Annual Report for

the year ending December 31, 2005 that Non-Party WAMU-FA changed its name to Washington

Mutual Bank. SeeExhibit 6Thus, it had no legal power to originate mortgage loans in that

name after April 4, 2005. The Loan, Note and DOT, however, were made in this name over a year

afterNon-Party WAMU-FA no longer legally existed under this name. It appears, however, that

numerous loans in the name of Non-Party WAMU-FA continued to be made after it had ceased

operations until September 25, 2008, when the FDIC seized the two remaining Washington Mutual

Bank entities (Washington Mutual Bank and Washington Mutual Bank, FSB).

7. Alternatively, even if Non-Party WAMU-loan under the wrong name, there is no evidence that CHASE actually is the owner of the debt and

thus entitled to enforce the Note.www.S

topForec

losureF rau

d .com


5/26




503.726.5930

8. Non-Party FANNIE MAE is a Government-Sponsored Entity that is in the business ofpurchasing and holding mortgages. Non-Party FANNIE MAE, through its publicly available

website search engine, claimed before and after the Trustee sale that it is the owner of the subject

Note, despite the fact that no recorded assignment of the DOT names Non-Party FANNIE MAE as

an assignee.

9. The Trust Deed possesses a defect fatal to the non-judicial foreclosure process because atthe time of its creation Non-Party WAMU-FA was not a functional entity, was not authorized to

engage in originating loans, and therefore could not have created a valid security instrument under

ORS 86.705(5). As the subject DOT is facially invalid and void ab initio, the Appointment of

Successor Trustee is similarly invalid and void ab initiosince any purported authority accruing to

the Successor Trustee is tainted by the underlying invalidity of the DOT.

C. Material Facts Common to All Counts10.On or about June 30, 2006, Plaintiff purchased and encumbered the Property with a 40 year

ARM on a principal balance of $232,765.00.

11.was purportedly Non-PartyWAMU-FA.

12.CHASE claimed in the NOD that it was the owner of the beneficial interest in the Loan andforeclosed the Loan in this capacity.

13.CHASE is not the successor by merger with Non-Party WAMU-FA and thus any transfer ofits assets to CHASE must be effected by negotiation of the Note and assignment of the DOT,

which must be recorded in order to proceed with non-judicial foreclosure. Failure towww.S

topForec

losureF rau

d .com


6/26




503.726.5930

negotiate the Note to CHASE deprives CHASE of constitutional standing to conduct a

foreclosure or indeed take any action with respect to it.

14.At all material times hereto, Plaintiff has never been provided with any assignment or otherdocument demonstrating transfer of the full and unencumbered interest in boththe Note and

the Deed of Trust from the original lender Non-Party WAMU-FA to CHASE, Non-Party

FANNIE MAE or any other party.

15.At no time between the recording of the DOT on June 30, 2006 and the filing of thisComplaint has Non-Party WAMU-FA recorded any assignment of its interest to any party,

nor are there any assignments whatsoever of the DOT in the public record after the recording

of the DOT.

16.At all material times hereto, Defendant S&S was without power to act pursuant to ORS86.790(3), which provides that:

a. Only the beneficiary under the Deed of Trust may appoint a successor trustee and;b. Unless the appointment of a successor trustee is recorded in the mortgage records of

the county where the trust deed is recorded, the successor trustee does not acquire the

powers of the original trustee.

17.Defendant S&S was without power to act because the DOT was defective under ORS86.705(5) since it could secure no obligation of Plaintiff/grantor to Non-Party WAMU-FA. It

also follows that ORS 86.790(3) could not be satisfied because Non-Party WAMU-FA was

not a valid beneficiary and thus had no power to appoint Defendant S&S as Successor

Trustee.www.S

topForec

losureF rau

d .com


7/26




503.726.5930

18.Moreover, Defendant S&S was without power to act because the appointment of successortrustee is not valid until recorded.

19.Even assuming arguendothat the appointment of successor trustee was valid notwithstanding(3), S&S stilllacks the authority to act

pursuant to the Notice of Default because the Notice of Default was executed on October 6,

2010, prior tothe recording of the Appointment of Successor Trustee on October 7, 2010.

20.At all material times hereto, all parties subsequent to the creation of the Deed of Trust arefalsely claiming rights to enforcement of powers incident to either the Note or Deed of Trust

because an unrecorded and broken chain of assignment exists.

21.assignment from Non-Party WAMU-FA to any of the parties attempting to enforce the power

of sale.

22.In addition, the chain of assignment is broken because at its very inception the DOT isdefective as a result of Non-Party WAMU-FA falsely representing itself as the Lender and

Beneficiary when it did not exist under that name and was incapable of originating the Loan.

As the wrong beneficiary was named, the DOT was defective from the outset, meaning the

chain of assignments is and has been broken since June 29, 2006.

23.As of the date of this filing, Non-Party WAMU-FA would still be the only party whosebeneficial interest, if any, can be traced through the deed records of DESCHUTES County.

Yet Non-Party WAMU-FA does not hold a valid interest in the DOT owing to the facts

alleged above.

24.Even assuming arguendothat Defendant CHASE, as alleged successor in interest to Non-www.S

topForec

losureF rau

d .com


8/26




503.726.5930

Party WAMU-FA validly acceded to its interests, a successor in interest can only receive as

much interest as was held by its predecessor in interest. As Non-Party WAMU-FA was

nevera valid beneficiary and neverheld any valid beneficial interest, Defendant CHASE, as

successor in interest to Non-Party WAMU-FA, even assuming it validly obtained its

interests, could obtain no interest greater than that held by Non-Party WAMU-

FA. Simply put, as Non-Party WAMU-FA held no valid interest in the Note, Defendant

CHASE holds nothing as well. (This is in addition to the fact that nowhere has CHASE

without which it had no constitutional standing to conduct this foreclosure.)

25.Equally fatal to the present foreclosure action is the fact that there have been unrecordedassignments of the DOT that have occurred between the date of the original DOT on June 29,

2006 and today.

26.ORS 86.735(1) requires that all assignments of the DOT be recorded in the county in whichthe property is situated as a precondition to any non-judicial foreclosure.

27.Non-Party FANNIE MAE reported prior to the Trustee Sale and continues to report after theTrustee Sale that it is the true owner of the Note.

28.Non-Party FANNIE sources.

29.Non-Party not only evidence of an unrecorded assignment of theDOT that violates the requirements of ORS 86.735(1) but also evidence that CHASE was not

a holder of the Note and had no standing to conduct the foreclosure sale.www.S

topForec

losureF rau

d .com


9/26




503.726.5930

30.-to record an assignment of the Trust Deed renders the entire non-judicial foreclosure process

void ab initiobecause it violates a necessary precondition of a non-judicial foreclosure

pursuant to ORS 86.735(1). See Staffordshire Investments, Inc. v. Cal -Western Reconveyance

Corporation, 209 Or. App. 258 (2006); Burgett v. MERS, 2010 WL 4282105, at 2 (D. Or.

Oct. 20); In re McCoy, 2011 WL 477820, at 4 (Bankr. D. Or. Feb. 7); Hooker v. Northwest

Trustee Svcs., Civ. No. 10-3111-PA, May 25, 2011 Order at 8 (D. Or. 2011).

31.-judicial foreclosure is fatally defective on a number of levels as set forthabove. Given the strict compliance requirements imposed on non-judicial foreclosures, any

of the above--judicial foreclosure efforts.

32.At all times material hereto, Defendants are claiming a right to foreclosure non-judicially as aresult of the power of sale clause as provided in Section 22 of the DOT, which is a

contractual agreement.

33.contained in the DOT compliance with applicable law.

34.The power of sale in the DOT is a contractual remedy, the exercise of which is limited andconditioned by statute.

35.Defendants have wrongfully invoked the power of sale because Defendants have failed tocomply with the preconditions necessary to invoke this power.

36.-judicial foreclosure statutes constitutes a breach ofcontract because Defendants have sought a remedy under the DOT to which they are notwww.S

topForec

losureF rau

d .com


10/26




503.726.5930

entitled and because Defendants have sought to foreclose non-judicially without meeting the

requirements set forth in ORS 86.735(1).

37.Defendants have wrongfully and intentionally exercised a remedy that arises as a result of anexpress contract provision.

38.As Defendants exercise of said remepower of sale constitutes a breach of contract.

39.As Section 22 of the DOT specifically provides that Lender is entitled to collect all expenses,including attorney fees, in the event that Lender prevails in its exercise of the power of sale,

Plaintiff is also entitled to its attorney fees in the event Defendants exercise of the power of

sale is deemed wrongful because ORS 20.096 specifically provides:

In any action or suit in which a claim is made based on a contract that specificallyprovides that attorney fees and costs incurred to enforce the provisions of thecontract shall be awarded to one of the parties, the party that prevails on the claimshall be entitled to reasonable attorney fees in addition to costs anddisbursements, without regard to whether the prevailing party is the partyspecified in the contract and without regard to whether the prevailing party is a

party to the contract.

40.As Defendants remedy arises out of the DOT contract, and as the contract at issuespecifically provides for an award to Defendant CHASE of attorney fees and costs incurred

to enforce the provisions of the contract, Plaintiff is entitled to an award of its fees if it

prevails in voiding, invalidating, or setting aside the remedy chosen by Defendant

and proceed under the power of sale contained in

the DOTuse

claim clearly falls within ORS 20.096 because Defendants claim of the right to foreclose

non-judicially arises purely based on a contract that specifically provides for an award ofwww.S

topForec

losureF rau

d .com


11/26




503.726.5930

attorney fees.

41.Controlling Supreme Court precedent provides for this Court to award attorney fees pursuantto these provisions of Oregon law. Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240,

259. n.31 (1975).

to a valid federal statute or rule of court, and usually it will not, state law denying the right to

). See alsothe Oregon case of, 704 F.2d 426, 435 (9th

in reference

to ORS 20.096.)

FIRST CLAIM FOR RELIEF

COUNT 1: WRONGFUL FORECLOSURE - DEFECTIVE APPOINTMENT OF SUCCESSOR

TRUSTEE

42.Plaintiff re-alleges the paragraphs set forth above and incorporates them herein by reference.43.Assuming that WAMU-FA was the Lender under a valid DOT, the DOT is a contract binding

upon the Lender, as well as its successors and assigns, and the Plaintiff.

44.The foreclosure process initiated by Defendant should be declared invalid because DefendantS&S was never properly appointed as Successor Trustee by reason of the following:

a. Pursuant to ORS 86.705(1), the beneficiary of a DOT is the person for whose benefitthe DOT is recorded.

b. Non-Party WAMU-FA was not, and could not have been the person for whose benefitthe DOT was recorded because Non-Party WAMU-FA did not exist as a valid entitywww.S

topForec

losureF rau

d .com


12/26




503.726.5930

capable of acting as beneficiary at the time the Loan was originated or at the time the

DOT was recorded.

c. Pursuant to ORS 86.790(3) the power to appoint a successor trustee is vested in thebeneficiary.

d. Non-Party WAMU-FA does not and cannot meet the statutory definition of abeneficiary and as a result, Defendant CHASE, as successor to Non-Party WAMU-

FA cannot meet the statutory definition of a beneficiary either.

e. Neither Non-Party WAMU-FA nor Defendant CHASE ever had the power to appointa Successor Trustee.

f. Under the DOT, only the Lender has the power to appoint a successor trustee. Asdescribed herein, there is no evidence that Defendant CHASE is the successor in

interest to the Lender under the DOT.

45.As Defendant S&S was never properly appointed as Successor Trustee, Defendant S&S waslegally incapable of issuing the Notice of Default and Election to Sell.

46.As Defendant S&S was never properly appointed as Successor Trustee, any and allforeclosure activity initiated by Defendant S&S pursuant to an invalid appointment of

successor trustee is equally invalid and cannot serve as a legitimate basis for a non-judicial

foreclosure.

/ / / / /

/ / / /

/ / / / /www.S

topForec

losureF rau

d .com


13/26




503.726.5930

SECOND CLAIM FOR RELIEF

COUNT 2: WRONGFUL FORECLOSURE DEFECTIVE NOTICE OF DEFAULT AND ELECTION

TO SELL

47.Plaintiff re-alleges the paragraphs set forth above and incorporates them herein by reference.48.The DOT provides in its Section 22 that if Lender invokes the power of sale, Lender will

execute or cause the Trustee to execute a written notice of default and election to sell, to be

recorded in the county where the property is located, and give notice of the sale in the

manner prescribed by Applicable Law.2 The only Applicable Law that prescribes the method

, as a contractual matter, Defendants have agreed to follow these procedures

with respect to the notice of default and election to sell and giving notice of sale, subject to

any requirements and limitations of Applicable Law.

49.NOD is invalid under the Act because, even assuming arguendothat theappointment of successor trustee was validly issued in spite of its defective nature under ORS

86.790(3), and ignoring the failure of a valid successor of Lender to make such an

appointment, the NOD was issued beforeDefendant S&S possessed the authority to issue it

because the Appointment of Successor Trustee does not become effective until it is recorded.

A Notice of Default and Election to Sell executed before the authority to execute it has

vested is therefore invalid. SeeExhibit 3Exhibit 4

50.Further, a condition precedent to the issuance of a Notice of Default and Election to Sell and2This term is defined in the DOT

ordinances and administrative rules and orders (that have the effect of law) as well as all applicable final, non- www

.StopF

oreclosure

F raud .co

m


14/26




503.726.5930

a condition precedent to the entire foreclosure process is that the Grantor be in default to the

owner under the obligation secured by the DOT. ORS 86.755(2). This requirement is also

found in Section

[t]he notice .

51.Owing to the fraudulent circumstances of the origination, and the complete absenceof any evidence that any Defendant has any claim to the Note or DOT, none of the parties

asserting a right to collect the payments has any lawful entitlement to assert a right to

payment or a right to foreclose. Therefore, there is no default as to the true owner because

none of the true owners of the obligation was a party to the foreclosure.

52.The NOD is also defective because if fails to include the necessary content set forth in ORS86.745(9)(a-d), as modified and effective March 4 and June 30, 2010, viz.:

a. Failure to include any contact information for the Oregon State Bar or free legal helpas required by ORS 86.745(9)(b).

b. Failu

required by ORS 86.745(9)(b).

c. Failure to include text that is substantially in the required statutory form or content

Sale. ORS 86.745(9)(c-d).

53.In addition, the NOD fails to contain the language the Lender contractually bound itself towww.S

topForec

losureF rau

d .com


15/26




503.726.5930

include in its notice to Plaintiff pursuant to Section 22 of the DOT. This section provides, in

relevant part, that prior to acceleration

notice shall further inform Borrower of the right to bring a court action to assert the non-

existence of a default orany other defenseof Borrowmphasis

added.) The NOD contains no such language nor has Lender or any other party provided

Plaintiff with notice of this right. The failure to provide such notice as required under the

DOT contract is not only a breach of contract by Lender, which initiated acceleration and

sale in contravention of this provision, but it also separately renders the notice defective on

its face.

54.NOD is prima facieinvalid, it cannot serve as a basis for a non-judicialforeclosure.

55.THI RD CLAIM FOR RELI EF

COUNT 3: WRONGFUL FORECLOSURE FAILURE TO COMPLY WITH ORS 86.735(1)

56.Plaintiff re-alleges the paragraphs set forth above and incorporates them herein by reference.57.Even assuming arguendo

NOD is valid despite the

manifest errors described herein

Defendants have failed to comply with ORS 86.735(1) and had no standing to conduct the

foreclosure.

58.ORS 86.735(1) requires as a precondition to the commencement of a non-judicial foreclosurewww.S

topForec

losureF rau

d .com


16/26




503.726.5930

process that all assignments of the Trust Deed be recorded in the county in which the

property is located.

59.Defendants have failed to record all assignments of the Trust Deed, including any assignmentto CHASE or to Non-Party FANNIE MAE.

60.At a minimum, there is at least one unrecorded assignment of the Trust Deed because there isno recorded assignment from the initial beneficiary Non-Party WAMU-FA to any other

party, including Defendant CHASE, which did notacquire Non-Party WAMU-FA by merger

or acquisition.

61.Thus, in addition to the invalid and improper assignments, appointments and numerousviolations of ORS 86 already set forth, Defendants have failed to comply with ORS

86.735(1) in a way fatal to their action for a non-judicial foreclosure.

62.Not only are the appointment of successor trustee and assignment of the DOT defective as setforth above, but the DOT also intentionally and materially misrepresents the name and

identity

FOURTH CLAIM FOR RELI EF

COUNT 4: LACK OF STANDING TO CONDUCT FORECLOSURE

63.Non-Party FANNIE MAE reported both before and after the Trustee sale that it is the trueowner of the Loan. Non-Party FANNIE MAE

from various sources

evidence to support it. Nor is there any assignment of the DOT to Defendant CHASE to

support its claims.www.S

topForec

losureF rau

d .com


17/26




503.726.5930

64.Non-Party FANNIE MAEfurther misrepresentation of the identityof the actual Note owner and creates a competing claim for the ownership of obligations

secured by the DOT.

65.The non-judicial foreclosure action was conducted by Defendant S&S in the name ofDefendant CHASE. It appears, however, that none of the parties involved was, in fact, the

real party in interest, while Non-Party FANNIE MAE, despite its competing claim, was

neither a party to the non-judicial foreclosure activity nor is the beneficiary under any

recorded assignment.

66.The absence of any assignment to Defendant CHASE, coupled with the competing claim byNon-Party FANNIE MAE, made both before and after the Trustee sale on August 9, 2011,

together preclude CHASE from asserting that it had standing to complete this foreclosure.

Only the holder of the Note can be the real party in interest with an enforceable interest in the

Loan and only that party has the power to act pursuant to the DOT. See In Re Veal, 450 B.R.

897, at 921 (B.A.P. 9th Cir. June 10, 2011) (AHMSI not entitled to enforce the mortgage note

Accord Foust v. Wells

Fargo, No. 55520, 2011 WL 3298915 at *5 (Nev. J

by a deed of trust and mortgage note, a person must be entitled to enforce the note pursuant

ORS 73. See alsoRestatement

may be enforced only by, or in behalf of, a person who is entitled to enforce the obligation

.Carpenter v. Longan, 83 U.S. 271, 274-75 (1872) [T]he note and

mortgage are inseparable; the former as essential, the latter as an incident. An assignment ofwww.S

topForec

losureF rau

d .com


18/26




503.726.5930

).

67.Non-Party FANNIE MAEraises serious questions about the validity of, a claim that requires factual proof

beyond a mere assertion. Accord Javaheri v. JP Morgan Chase Bank, N.A. et al., Case No.

CV10-08185 ODW (FFMx), June 2, 2011 Order at *7 (C.D. Cal. 2011)

that the P&A Agreement suffices to establish its ownership of the Note is insufficient to

support a motion to dismiss where there was factual allegation of ownership by another entity

and no recording of its claim to ownership, together with the fact that the P&A Agreement

FIFTH CLAIM FOR RELIEF

COUNT 5: UNLAWFUL DEBT COLLECTION

(Defendants CHASE and S&S)

68.Plaintiff re-alleges the preceding paragraphs set forth above and incorporates them herein byreference.

69.S&S acknowledges in its NOD that the Fair Debt Collection Practices Act requires that we state the following: This is an attempt to collect a debt, and any information

70.Plaintiff also alleges a violation of 15 U.S.C. 1692f(6), which provides that a debt collector-judicial action to effect

dispossession or disablement of property if(A) there is no present right to possession of the

Seewww.S

topForec

losureF rau

d .com


19/26




503.726.5930

Lettenmaier v. Freddie Mac, Civ. No. CV-11-156-HZ, May 20, 2011 Order at *19-20 (D. Or.

2011). This is precisely the circumstance in the present case, where CHASE is not the owner

of the Loan, had no right to possession of the Property, Defendant CHASE and its agent,

Defendant S&S, knew or should have known this fact, yet they wrongfully conducted a non-

judicial foreclosure to dispossess Plaintiff of his home.

71.Plaintiff seeks actual damages in an amount no less than what would be required for Plaintiffto recover his cash downpayment and subsequent payments, and to permit him to recover full

title and possession of his home, including any costs or fees attributed to him in connection

with this unlawful foreclosure, as well as any costs associated with repairing his credit to the

extent damaged by this foreclosure, together with attorney fees and costs pursuant to 15

U.S.C. 1692k(a) and (b).

SIXTH CLAIM FOR RELI EF

COUNT 6: INJUNCTIVE RELIEF

72.Plaintiff re-alleges the preceding paragraphs set forth above and incorporates them herein byreference.

73.This is an action for preliminary injunctive relief that is brought pursuant to applicable lawand FRCP Rule 65.

74.Plaintiff has set forth that the Defendants have unlawfully sold his home at a trustee sale. Asis routine industry practice in residential foreclosures, it is entirely foreseeable that

Defendant CHASE will next seek to evict Plaintiff from his home pursuant to an FED action

www.S

topForec

losureF rau

d .com


20/26




503.726.5930

in good faith in order to insulate the sale under the provisions of ORS 86.780, which would

preclude Plaintiff from any chance of recovering title and possession of his home.

75.Such actions by CHASE will constitute actions in violation ofs legal rights, actionsspecifically intended to subvert the legislative purpose intended in creating non-judicial

foreclosure as an alternative to requiring a judicial proceeding when foreclosing a security

interest as a result of an alleged default by the debtor and, as a result, if Defendant CHASE is

not restrained by Order of this Court, Plaintiff will suffer immediate and irreparable injury,

loss, and damage.

76.Plaintiff intends to file, simultaneously with an application for a preliminary restrainingorder, his Affidavit demonstrating irreparable harm if a preliminary restraining order staying

any FED action against him and any further sale of his home is not granted.

77.Plaintiff has a clear legal right to preliminary injunctive relief as Plaintiff owns the Propertyand as Defendant CHASE is asserting adverse rights of ownership and possession to it

without having satisfied the necessary legal requirements for a non-judicial foreclosure or

standing requirements and without any evidence that it owns the full and unencumbered

interest in either the Note or the Deed of Trust, and is thus not entitled to take possession,

custody or control of the Property.

78.The specific facts set forth in this Complaint and the forthcoming supporting Affidavitdemonstrate that unless a preliminary injunction stays Defendant CHAS

, Plaintiff will suffer the

irreparable injury, loss, and damage which is a unique form of damage personal to Plaintiff,

because it is not simply chattel, but is his homeof almost five years.www.S

topForec

losureF rau

d .com


21/26




503.726.5930

79.As Defendant CHASE has failed ownership interests in either the Note or the Deed of Trust,it did not possess legal standing to lawfully foreclose on Property, and as a result,

Defendant CHASE as the purported purchaser does not have a valid claim for possession.

80.Furthermore, there is no harm to Defendant CHASE through the granting of the requestedrelief because Plaintiff currently owes it nothing. CHASE currently holds purported title to

the propertyalbeit illegallyand all parties will remain in the same position since the

conclusion of the trustee sale. The balance of equitie

any harm claimed by Defendants is

substantially outweighed by the irreparable harm eviction and permanent loss of his home

to the Plaintiff if the requested relief is denied.

81.There is substantial interest to the Court in protecting the interest by granting the requested relief, as not only Plaintiff, but the public in general will be

harmed by the unlawful, deceptive, bad faith, and illegal conduct of the Defendants if the

relief requested is not granted. While Defendants may claim that the public interest is better

served by upholding the sanctity of contracts and the consequences of failing to pay debts

undertaken, granting the relief sought better serves this purpose by sending the public a

message that lenders too must follow the letter of law before they can be allowed to deprive

borrowers of their homes.

82.As there are various defects rendering the non-judicial foreclosure void ab initio, each ofwhich alone would be fatal to its conduct, Plaintiff has a substantial likelihood of success on

the merits.

83.Because Defendants do not have any demonstrable legal interest in either the Note or thewww.S

topForec

losureF rau

d .com


22/26




503.726.5930

Deed of Trust, and because any non-judicial foreclosure was void ab initioand as a result no

harm will occur to Defendants in granting the requested relief, and that restraint of

Defendants should be limited to judicial remedies, Plaintiff requests that the Court, pursuant

to FRCP Rule 65(c), consider it proper under these circumstances that Plaintiff not post

security in any amount.

WHEREFORE, Plaintiff respectfully asks the Court to take immediate jurisdiction of this

matter and enter an Order granting preliminary injunctive relief expressly precluding any attempt to

evict Plaintiff from his home and any further attempts to transfer interests in the subject Property, Note,

or DOT until such time as a hearing may be heard and allow Plaintiff to present evidence of the claims

Plaintiff has alleged in this Complaint.

WHEREFORE, Plaintiff asks the Court to enjoin any further attempts by any of the Defendants

or their agents from further initiating non-judicial foreclosure attempts but relegate Defendants to

use of judicial foreclosure action to foreclose any alleged breach or payment default.

SEVENTH CLAIM FOR RELIEF

COUNT 7: DECLARATORY RELIEF

84. This is an action for declaratory relief, which is being brought pursuant to 28 U.S.C. 2201(a) (The Federal Declaratory Judgment Act):

upon the filing of an appropriate pleading, may declare the rights and other legal relations

of any interested party seeking such declaration, whether or not further relief is or couldbe sought. Any such declaration shall have the force and effect of a final judgment or

85. There is an actual controversy in the present case regarding whether Defendant CHASEis the owner and beneficiary of the Note; whether the Trustee was legally appointed and authorized towww

.StopF

oreclosure

F raud .co

m


23/26




503.726.5930

undertake its foreclosure related actions; whether Defendant CHASE was entitled to conduct the

foreclosure; and whether Defendant CHASE is legally entitled to conduct an FED and third party sale.

86. In view of the fact that:a. The original Note and DOT were not executed in favor of any of the Defendants;

interest in either the Note or the DOT; and

c. There is no evidence of any assignment from Non-Party WAMU-FA to any person or party of

pursuant to ORS 86.735(1),

87. Plaintiff is in doubt and is uncertain as to his rights under the Note and DOT contracts;his legal rights and relations with respect to such contracts have been apparently altered by the actions of

the Defendants; and he is legally entitled, through this action for Declaratory Relief, to have such doubt

and uncertainty removed.

88. Plaintiff therefore asks this court to declare that Defendants have no legal or equitablerights in the Note or the DOT and that their lack of legal standing to institute, maintain, or enforce a

foreclosure on the Property entitles him to seek preliminary injunctive relief barring any Defendant from

seeking to evict him from the Property or from selling the Property in the future and to a declaration of

quiet title in his favor as against any competing adverse claims by Defendants.

1. As the disposition of this action on the merits will require the determination of multiple issues offact, Plaintiff demands trial by jury on all issues of fact pursuant to FRCP 38.

2. Plaintiff also demands an award of costs pursuant to FRCP 54(d)(1).1. WHEREFORE, Plaintiff prays for Order/Judgment in favor of Plaintiff and against

Defendants as follows:www.S

topForec

losureF rau

d .com


24/26




503.726.5930

2. In view of the fact that:(a) The original Note was not executed in favor of any of the Defendants; and(b) The Defendants foreclosed

demonstrated interest in either the Note or the Deed of Trust; and

(c) There is a serious question whether either Non-Party WAMU-FA or DefendantCHASE as purchaser of certain assets of Non-Party WAMU-FA has any valid or lawful

interest in the DOT and Note; and

(d) There is a serious question whether the original DOT is invalid for failure tocomply with ORS 86.705(5); and

(e) There is a serious question about the validity of the appointment of successortrustee, Defendant S&S; and

(f) There is a serious question about which of the competing parties, if any, has a

enforce the Note under the DOT is unresolved;

(g) The Defendants failed to provide the notice to which Plaintiff was due under theDOT contract terms when undertaking to exercise the power of sale; and

(h) There is a serious question whether the Defendants have recorded all assignmentsof the DOT as required by ORS 86.735(1);

The Plaintiff is in doubt and is uncertain as to his rights under the Note and the Deed of

Trust contracts; and Plaintiff is legally entitled, through this action for Declaratory Relief, to

have such doubt and uncertainty removed.www.S

topForec

losureF rau

d .com


25/26




503.726.5930

WHEREFORE, Plaintiff demands that the Court adjudge/order that:

A. Defendants had no constitutional or prudential standing or the proper legal,ownership, or equitable interest in either the Note or the Deed of Trust to institute or

maintain a foreclosure;

B. There was no legal conveyance of either the Note or the Deed of Trust from theoriginal lender to any of the Defendants;

C. There is no legal appointment of a successor trustee;D. The NOD is invalid on its face;E. Defendants oflegally defective and void ab initio

so as to preclude it from enforcement;

F. Plaintiff be awarded economic damages of no less than $250,000.00 or an amount tobe proven at trial for violations of the FDCPA;

G. Plaintiff be awarded monetary damages sufficient to permit him to recover title to hishome;

H. hat Plaintiff be grantedquiet title as against all competing adverse claims of the Defendants who are

wrongfully claiming ownership of his home;

/ / / / /

/ / / / /

/ / / / /

/ / / / /www.S

topForec

losureF rau

d .com


26/26


I. Plaintiff is entitled to enditures, reasonableattorney fees and prevailing party fee as provided by law.

Dated this 5th day of October, 2011.

_____________________________John Bowles, OSB No. [email protected] SW Meadows Road, Suite 150Lake Oswego, Oregon 97035503.726.5930

www.S

topForec

losureF rau

d .com

collette v jpmc

Documents