robert p. marley v. bank of america, n.a., bank of new york mellon, mers, et al

7/31/2019 Robert P. Marley v. Bank of America, N.A., Bank of New York Mellon, MERS, et al

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UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

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

FIRST VERIFIED SUPPLEMENTAL COMPLAINT

The plaintiff, Robert P. Marley, respectfully submits this Supplemental Complaint in

accord with F.R.Civ.P. Rule 15(d) to supplement the First Verified Amended Complaint filed on

June 6, 2011. On reason for the supplement is to introduce theAffidavitof John OBrien, the

Southern Essex County Registrar of Deeds as it relates to the False Assignment filed on July 13,

2011, marked asExhibit 36incorporated by reference herein, bringing to the attention of this

Honorable Court, the Defendants Deceptive Acts.

Robert P. Marley,

Plaintiff,

V.

Bank of America, N.A.,

BAC Home Loans Servicing LP, f/k/a

Countrywide,now merged into Bank of

America, N.A.(BANA)

Bank of New York Mellon, Trustee of

CWMBS CHL Mortgage Pass

Through Certificate 2004-29,

Mortgage Electronic Registration Systems

Inc., Merscorp Inc., as Grantee

John and Jane Does 1-1000 Unknown

Agents, Employees, Purported, Putative

Grantees, Owners of Security Interest In

Plaintiffs Property, et al, Individually,

Jointly and Severally,

Defendants.


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INTRODUCTION

1) Plaintiff avers that the Defendants, all of them, have knowingly acted in concerttogether and continually conspired to take Plaintiffs property in a continuing securitization

scheme based on Deceptive Acts and Practices, Forgery, False and Misleading Documents and

False and Misleading Statements since this action was initiated and subsequent to the filing of

the First Verified Amended Complaint.

2) Plaintiff is supplementing certain Counts in the First Verified AmendedComplaint to include the False and Misleading assignment filed in the Registry of Deeds on July

13, 2011. Plaintiff brings additional Counts against all Defendants. Furthermore, Plaintiff claims

the purported Mortgage Contract is Void or Voidable. The Plaintiff has discovered the

Defendants intentionally concealed Material Facts that were germane to the subject matter of the

Mortgage contract and the decision making process (Meeting of the Minds) prior to entering the

purported Mortgage Contract which material facts Plaintiff needed to make an informed choices

whether or not he would enter into said Contract.

3) The violations alleged herein arise from the same case in controversy and becameknown, actionable and verifiable beginning in February 2011. Moreover, the contract claims are

not and would not be barred pursuant to theLimitation of Actions, M.G.L. c. 260 12 provides:

If a person liable to a personal action fraudulently conceals the cause of

such action from the knowledge of the person entitled to bring it, the period

prior to the discovery of his cause of action by the person so entitled shall be

excluded in determining the time limited for the commencement of theaction.

4) This Supplemental Pleading brings claims for violations that BANA intentionallyconcealed from Plaintiff prior to, during, and after the consummation of the purported Mortgage

Loan Contract and claims that arose subsequent to the commencement of this action and thus far


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completes the complaint until formal discovery is ordered. Whereas, the Defendants in this case

have refused to resolve this matter and continue on a path of skullduggery, albeit in light of the

prima facia evidence submitted by Plaintiff, he now files this Supplemental Pleading.

5) There are various controlling documents that make up the securitized pools; theyare, inter alia: The POOLING AND SERVICING AGREEMENT (PSA)

1filed under oath with

the Securities and Exchange Commission (SEC); The REGISTRATION STATEMENT (RS)

filed under oath with the SEC; The PROSPECTUS SUPPLEMENT (PS) filed under oath with

the SEC; The FREE WRITING PROSPECTUS (FWP) filed under oath with the SEC; The

ISDA(R)International Swap Dealers Association, Inc. MASTER AGREEMENT (MA); The

MORTGAGE LOAN PURCHASE AND ASSIGNMENT AGREEMENT (MLPAA); The SALE

AND SERVICING AGREEMENT (SSA); The INDENTURE for the Trust Administrator and

the Indentured Trustee (IND); The AMENDED AND RESTATED TRUST AGREEMENT

(ARTA); The INDEMNIFICATION AND CONTRIBUTION AGREEMENT (ICA) and The

UNDERWRITING AGREEMENT (UA). Plaintiff is in possession of all documents.

6) Above are the basic controlling TRUST documents created and governed underNew York Law that mandates how, the TRUST is structured and controlled, and mandates the

duties and obligations for the Players of the TRUST.

7) Throughout these TRUST documents Plaintiffs purported Mortgage Loan (Noteand Mortgage), among others, are the target of assets at issue and discussed at length albeit,

without Plaintiffs consent or knowledge or any disclosure in the lending process whatsoever as

it relates to the Defendants scheme to glean a profit therefrom.

8) Whereas the Defendants did not have the Plaintiffs consent, one cannot logicallyargue that the Plaintiff does not have an interest or right to marshal out the violations of the

1http://www.sec.gov/Archives/edgar/data/906410/000090514805001084/efc5-0424_5640752v7ex991.txt
http://www.sec.gov/Archives/edgar/data/906410/000090514805001084/efc5-0424_5640752v7ex991.txthttp://www.sec.gov/Archives/edgar/data/906410/000090514805001084/efc5-0424_5640752v7ex991.txthttp://www.sec.gov/Archives/edgar/data/906410/000090514805001084/efc5-0424_5640752v7ex991.txthttp://www.sec.gov/Archives/edgar/data/906410/000090514805001084/efc5-0424_5640752v7ex991.txt


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mandates set forth under New York Laws in these documents when in all these documents the

entire scheme involves Plaintiffs purported mortgage and note.

9) Regardless of whether or not Plaintiff is a beneficial party to the TRUST, theDefendants MUST adhere to their own TRUST Documents as required by New York Law, in

that, any action to the contrary is void.2Bank of New York Mellon (BONY) was required to

insure all their ducks were in order to insure the TRUST assets were truly assets of the TRUST

and did not; and therefore, will never have the assets.

10) The Plaintiff is not suing to enforce the contracts of the corporations for theirBreach. He is merely pointing out the violation of those contracts to demonstrate no party herein

has a claim in Plaintiff Mortgage Loan or Property since they failed to adhere to their own

TRUST documents, IRS 860A-G. New York Law deems their actions void and therefore

Plaintiff is entitled to an injunction against all parties who would now lay claim to Plaintiffs

property.

11) However, Plaintiff has found at least one Court that has ruled Borrowers are athird party beneficiary to the Trust. SeeHorace v. LaSalle Bank National, Circuit Court Russell

County, Alabama Case No: CV-08-362. See, attached herewith marked as Exhibit _

incorporated by reference herein.

The Court Order states in Part:

Following hearing and review of all submissions from the parties the Court

has come to two conclusions necessary for the disposition of this case: First,

2New York Code - Estates, Powers and Trusts Article 7 7-2.4Act of trustee in contravention of trust if thetrust is expressed in the instrument creating the estate of the trustee, every sale, conveyance or other act of thetrustee in contravention of the trust, except as authorized by this article and by any other provision of law, is void.

PSA SECTION 10.03 Governing Law: THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCEWITH AND GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLETO AGREEMENTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK AND THEOBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO AND THE CERTIFICATEHOLDERSSHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.


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the Court is surprised to the point of astonishment that the defendant trust

(LaSalle Bank National Association) did not comply with the terms of its own

Pooling and Servicing Agreement and further did not comply with New York

Law in attempting to obtain assignment of plaintiff Horace's note and

mortgage. Second, plaintiff Horace is a third party beneficiary of the Pooling

and Servicing Agreement created by the defendant trust (LaSalle Bank

National Association). Indeed without such Pooling and Servicing

Agreements, plaintiff Horace and other mortgagors similarly situated would

never have been able to obtain financing.

12) Plaintiff alleges that the Defendants named herein, officers, agents, employeesand subsidiaries of Bank of America, collectively (BANA), have attempted by deceptive acts and

practices, fraud, forgery, uttering, falsifying Public Records and Intentional Misrepresentation, to

deceptively deprive, with malice and reckless disregard for Plaintiffs welfare, in a continuing

scheme, and without legal authority, to deprive Plaintiff of his property and have all knowingly

and willfully aided and abetted each other to facilitate a crime under M.G.L. c. 266 35A,3

G.L.

c.267 1, G.L. c. 267 5, and as such have violated M.G.L. c. 93A 2 & 9.

13) Any allegations about acts of any corporate or other business Defendants meansthat the corporation or other business did the alleged acts through its officers, directors,

employees, agents and/or representatives while they were acting within the actual or apparent

scope of their authority.

14) At all relevant times, each Defendant committed acts, caused or directed others tocommit the acts, or permitted others to commit the acts alleged in this Pleading; additionally,

3

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


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some of the Defendants acted as the agent for other Defendants, and all of the Defendants acted

within the scope of their agency as if acting as the agent of another.

15) Knowing or realizing that other Defendants were engaging in or planning toengage in unlawful conduct, each Defendant nevertheless facilitated the commission of those

unlawful acts.

16) Each Defendant intended to and did encourage, facilitate or assist in thecommission of the unlawful acts, and thereby aided and abetted the other Defendants in the

unlawful conduct.

17)

All Defendants engaged in continuous and multiple unfair and deceptive trade

practices, fraud and misrepresentations that affected interstate commerce and proximately caused

the herein injuries to the Plaintiff.

18) Creditors in consumer loan transactions; defenses of borrower: M.G.L. c. 25512F states:

As used in this section the following words shall, unless the context requires

otherwise, have the following meanings:

Organization, a corporation, government or governmental subdivision or

agency, trust, estate, partnership, cooperative, or association.

Person related to, with respect to an individual means (a) the spouse of the

individual, (b) a brother, brother-in-law, sister, or sister-in-law of the

individual, (c) an ancestor or lineal descendant of the individual or his

spouse, and (d) any other relative, by blood or marriage, of the individual or

his spouse who shares the same home with the individual.

Person related to, with respect to an organization means (a) a person

directly or indirectly controlling, controlled by or under common control

with the organization, (b) an officer or director of the organization or a

person performing similar functions with respect to the organization or to a

person related to the organization, (c) the spouse of a person related to the

organization, and (d) a relative by blood or marriage of a person related to

the organization who shares the same home with him.


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A creditor in consumer loan transactions shall be subject to all of the

defenses of the borrower arising from the consumer sale or lease for which

the proceeds of the loan are used, if the creditor knowingly participated in or

was directly connected with the consumer sale or lease transaction.

Without limiting the scope of the preceding paragraph, a creditor shall bedeemed to have knowingly participated in or to have been directly connected

with a consumer sale or lease transaction if: (a) he was a person related to

the seller or lessor; (b) the seller or lessor prepared documents used in

connection with the loan; (c) the creditor supplied forms to the seller or

lessor which were used by the consumer in obtaining the loan; (d) the

creditor was specifically recommended by the seller or lessor to the borrower

and made two or more loans in any calendar year, the proceeds of which are

used in transactions with the same seller or lessor, or with a person related to

the same seller or lessor; or (e) the creditor was the issuer of a credit card

which may be used by the consumer in the sale or lease transaction as a

result of a prior agreement between the issuer and the seller or lessor.

JURISDICTION AND VENUE

19) See, First Verified Amended Complaint.FACTUAL ALLEGATIONS

I. The Mortgage Contract is Void or Voidable in that the Mortgage Contract isUncertain, Not Mutual, Misleading, Unfair, Unequal, and Unjust, Open to

Reasonable Doubt, Fraudulent and Misrepresented the TRUE Nature of the

Purported Loan and therefore Fraud in the Factum and Fraud in the

Inducement and Lacks Privity

20) The allegations made herein are in addition to and incorporated by reference intothe First Verified Amended Complaint date June 6, 2011 and vice versa. Liability attaches to all

agency Defendants, officers, agents and employees.

21) On September 30, 2010, Plaintiff sent Defendants Counsel, Neil Raphael, an e-mail and attached a copy of the Acts of 2010 Chapter 258, An Act Relative to Foreclosure,

enacted on August 7, 2010 and signed into law by the Governor on August 17, 2010 as


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emergency legislation putting all on notice of said Act. See, Letter attached herewith marked as

Exhibit 37incorporated by reference herein as though fully set forth hereat.

22) Bank of America has acquired all Players, companies and corporations in thisaction, i.e. Countrywide Financial, Countrywide Home Loans Inc., Countrywide Home loan

Servicing LP, BAC Home Loans Servicing LP, CWMBS Inc., and have assumed all their

liability and all references to the Bank of America entities will be referred to for Specificity, as

BANA as all entities are one and the same.

23) On December 3, 2004, Plaintiff purportedly entered into a Mortgage LoanContact with Omega Mortgage Corp (Omega) an agent (loan seller) for BANA.

24) The Mortgage, at P.7 20 States the note.can be sold one or more times..Plaintiff alleges this is a deceptive statement because BANA had already made the deal to

securitize the loan prior to Plaintiff entering into the contract and that statement should not have

been discretionary but determinative and stated, The Note [S]hall be Sold to BONY and turned

into a Certificate sold around the globe.

25) On December 3, 2004, Plaintiffs purported Mortgage loan was immediatelypurportedly sold and securitized after the closing by (BANA) and the loan was placed into a

Trust, CWMBS CHL Pass Through Certificate 2004-29 (TRUST) created by the terms set forth

inter alia, in a Pooling and Servicing Agreement (PSA) dated December 1, 2004. See TRUST

Deal DataExhibit 3-1attached to the First Verified Amended Complaint.

26) Plaintiff states that in a telephone conversation on March 22, 2011, he askedDenny Bey, President and CEO of Omega Mortgage Corp, if Omega had any interest whatsoever

in Plaintiffs Mortgage Loan or property at issue herein; Denny Bey stated Omega, had no stake

or claims in Plaintiffs property or the loan at issue.


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27) The Purported Mortgage states that, MERS is a separate corporation that isacting solely as a nominee for Lender and Lenders successors and assigns. MERS is the

Mortgagee under the security instrument. Plaintiff still does not understand what that statement

means.

28) The Purported Mortgage then states that, Lender is Omega Mortgage Corp.However, Omega was an agent of BANA. See UCC Contracts attached to Letter to the Court

dated September 26, 2011.4

29) Plaintiff alleges that BANA made this language deliberately deceptive andconfusing and that a Mortgagee is one who lends money or the creditor (Blacks Law).

30) Plaintiff alleges that it is impossible for Omega to be the lender and MERS to bethe Mortgagee whereas MERS lent nothing in this purported deal. Logically, MERS cannot be

both, the mortgagee and nominee, the (Principal and Agent).

31) Plaintiff alleges the BANA knew before the purported Mortgage Contract wasentered into they had already made a side deal prior to December 3, 2004 to entangle the

Plaintiffs Mortgage Loan and Property in theirdoomed securitization scheme yet did not

disclose and deceptivelyomittedthisMaterial Fact from the Mortgage Contract and

intentionally concealedthese Facts from the Plaintiff.5

32) Plaintiff alleges the reason MERS is named in the purported Mortgage is that, allloans that were going to be securitized by BANA, had to name MERS in the Document in order

that it fit within the scheme of the Undisclosed FACTthat the Loan was to be securitized and

therefore the undisclosed third parties would remain concealed in the Purported Mortgage

4See, http://corp.sec.state.ma.us/corp/CorpSearch/get_pdf.asp?pdftype=.pdfhttp://corp.sec.state.ma.us/corp/CorpSearch/get_pdf.asp?pdftype=.pdf5See, PSA, the TRUST was formed on December 1, 2004 and Plaintiffs purported loan was entered into on

December 3, 2004.
http://corp.sec.state.ma.us/corp/CorpSearch/get_pdf.asp?pdftype=.pdfhttp://corp.sec.state.ma.us/corp/CorpSearch/get_pdf.asp?pdftype=.pdfhttp://corp.sec.state.ma.us/corp/CorpSearch/get_pdf.asp?pdftype=.pdfhttp://corp.sec.state.ma.us/corp/CorpSearch/get_pdf.asp?pdftype=.pdfhttp://corp.sec.state.ma.us/corp/CorpSearch/get_pdf.asp?pdftype=.pdfhttp://corp.sec.state.ma.us/corp/CorpSearch/get_pdf.asp?pdftype=.pdf


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Contract and BANA could control their scheme and conceal the true deal from the Plaintiff and

the Public view in theFortress that is MERS.

33) Plaintiff alleges that the mere FACT there is a MIN number on the PurportedMortgage Contract

6is evidence that prior to entering the purported Contract, BANA knew the

loan would be securitized yet failed to disclose thisMaterial Fact to the Plaintiff.

34) Plaintiff alleges that theseMaterial Facts were not disclosed to the Plaintiff andintentionally concealed by BANA during the lending process, and the Mortgage Contract is

absent of any such language of thisMaterial Fact.

35)

Plaintiff alleges BANA used Omega as a straw to pedal their toxic loans for the

sole purposes of filling Pooled Assets through their securitization chain to generate servicing

fees among others and therefore, the true Parties (certificate holders) to the contract were not

disclosed in the purported Mortgage Contract.

36) Plaintiff alleges that the deal in the Mortgage Contract was a complete,intentional misrepresentation, of the true nature, subject matter, of the deal and BANA

fraudulently induced the Plaintiff into this deal with reckless disregard for his welfare. Below,

the evidence in this SEC case demonstrates BANA KNEW the Loans issued to borrowers like

the Plaintiff were not sustainable as early as 2003, yet in order to fill [m]ore Pools and continued

with their scheme, they did so at the Plaintiffs detriment.7Angelo Mozilo states that these loans

were the most toxic things he has ever seen in his life (emphasis added) yet BANA continued to

issue them to fill these POOLS with reckless disregard for the Plaintiffs welfare.

6See, PSA 2.01 (B) (ii) and in the case of each MERS Mortgage Loan, the original Mortgage, noting the presence

of the MIN of the Mortgage Loans and either language indicating that the Mortgage Loan is a MOM Loan if theMortgage Loan is a MOM Loan or if the Mortgage Loan was not a MOM Loan at origination, the original Mortgageand the assignment thereof to MERS, with evidence of recording indicated thereon, or a copy of the Mortgagecertified by the public recording office in which such Mortgage has been recorded.7See,http://www.sec.gov/litigation/complaints/2009/comp21068.pdf
http://www.sec.gov/litigation/complaints/2009/comp21068.pdfhttp://www.sec.gov/litigation/complaints/2009/comp21068.pdfhttp://www.sec.gov/litigation/complaints/2009/comp21068.pdfhttp://www.sec.gov/litigation/complaints/2009/comp21068.pdf


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37) Accordingly, BANA knew the loans they were pedaling to fill the Pools were adetriment to society as a whole as early as 1997 because they were put on notice in 1997 and

then again in Feb. of 2003 respectively by the Massachusetts Division of Banks and the OCC.8

38) Plaintiff alleges that BANA did not have skin in the purported Loan at issue, andtherefore, no equity in the Mortgage Contract and was using money committed to BANA as

credit byForeign Banks to fund their loans and therefore nothing to lose and everything to gain

by issuing these toxic Loans. See, Revolving Credit Agreement9

and Commitment Schedules

10incorporated by reference herein. This has been one Giant Ponzi scheme. The Court will note

that BONY is a party to the monies committed for BANAs securitization chain

11

. BONY is a

Short Term Lender. See footnote (11). BONY was funding loans for which it would ultimately

be the Trustee. This is just a small example of the monies committed to BANA.

a) In 2004, Countrywide Home Loans Inc. was a subsidiary of CountrywideFinancial Corp., a National Bank, and in 2006, Countrywide Financial Corp. notified regulators

of its intent to convert its existing national bank charter to a federal savings bank charter to

conduct its banking services. In 2007 their charter was converted.12

b) In February of 2009 Countrywide Bank, FSB, filed an application to become aNational Association, and in April of 2009, Countrywide Bank, NA merged into Bank of

America, N.A. Similarly, on July 1, 2011, BAC Home Loans Servicing, L.P. (f/k/a Countrywide

Home Loans Servicing, L.P.) merged into Bank of America, N.A. Because of these mergers,

8See,http://www.mass.gov/ocabr/business/banking-services/industry-letters/subprime-lending.html

See,http://www.occ.gov/static/news-issuances/news-releases/2003/nr-occ-2003-8-advisory-ltr-2003-2.pdf9See,http://www.sec.gov/Archives/edgar/data/25191/000095012904009372/v03631exv10w1.htm

10See,http://www.sec.gov/Archives/edgar/data/25191/000095014804000570/v96832exv10w79.txt

http://www.sec.gov/Archives/edgar/data/25191/000095012904005700/v00655exv10w102.txthttp://www.sec.gov/Archives/edgar/data/25191/000095012904005700/v00655exv10w103.txt

11See, Page 75http://www.sec.gov/Archives/edgar/data/25191/000095012904005700/v00655exv10w101.txt

12http://www.ots.treas.gov/_files/777014.html
http://www.mass.gov/ocabr/business/banking-services/industry-letters/subprime-lending.htmlhttp://www.mass.gov/ocabr/business/banking-services/industry-letters/subprime-lending.htmlhttp://www.mass.gov/ocabr/business/banking-services/industry-letters/subprime-lending.htmlhttp://www.occ.gov/static/news-issuances/news-releases/2003/nr-occ-2003-8-advisory-ltr-2003-2.pdfhttp://www.occ.gov/static/news-issuances/news-releases/2003/nr-occ-2003-8-advisory-ltr-2003-2.pdfhttp://www.occ.gov/static/news-issuances/news-releases/2003/nr-occ-2003-8-advisory-ltr-2003-2.pdfhttp://www.sec.gov/Archives/edgar/data/25191/000095012904009372/v03631exv10w1.htmhttp://www.sec.gov/Archives/edgar/data/25191/000095012904009372/v03631exv10w1.htmhttp://www.sec.gov/Archives/edgar/data/25191/000095012904009372/v03631exv10w1.htmhttp://www.sec.gov/Archives/edgar/data/25191/000095014804000570/v96832exv10w79.txthttp://www.sec.gov/Archives/edgar/data/25191/000095014804000570/v96832exv10w79.txthttp://www.sec.gov/Archives/edgar/data/25191/000095012904005700/v00655exv10w102.txthttp://www.sec.gov/Archives/edgar/data/25191/000095012904005700/v00655exv10w102.txthttp://www.sec.gov/Archives/edgar/data/25191/000095012904005700/v00655exv10w103.txthttp://www.sec.gov/Archives/edgar/data/25191/000095012904005700/v00655exv10w103.txthttp://www.sec.gov/Archives/edgar/data/25191/000095012904005700/v00655exv10w101.txthttp://www.sec.gov/Archives/edgar/data/25191/000095012904005700/v00655exv10w101.txthttp://www.ots.treas.gov/_files/777014.htmlhttp://www.ots.treas.gov/_files/777014.htmlhttp://www.ots.treas.gov/_files/777014.htmlhttp://www.ots.treas.gov/_files/777014.htmlhttp://www.sec.gov/Archives/edgar/data/25191/000095012904005700/v00655exv10w101.txthttp://www.sec.gov/Archives/edgar/data/25191/000095012904005700/v00655exv10w103.txthttp://www.sec.gov/Archives/edgar/data/25191/000095012904005700/v00655exv10w102.txthttp://www.sec.gov/Archives/edgar/data/25191/000095014804000570/v96832exv10w79.txthttp://www.sec.gov/Archives/edgar/data/25191/000095012904009372/v03631exv10w1.htmhttp://www.occ.gov/static/news-issuances/news-releases/2003/nr-occ-2003-8-advisory-ltr-2003-2.pdfhttp://www.mass.gov/ocabr/business/banking-services/industry-letters/subprime-lending.html


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Bank of America, N.A. assumed all of the liabilities of Countrywide Bank, NA and BAC Home

Loans Servicing, L.P. (f/k/a Countrywide Home Loans Servicing, L.P.)

c) In an interview published on February 22, 2008 in the legal publication CorporateCounsel, a Bank of America spokesperson acknowledged Countrywides liabilities: Handling all

this litigation wont be cheap, even for Bank of America, the soon-to-be largest mortgage lender

in the country. Nevertheless, the banking giant says that Countrywides legal expenses were not

overlooked during negotiations. We bought the company and all of its assets and liabilities,

spokesman Scott Silvestri says. We are aware of the claims and potential claims against the

company and have factored these into the purchase. See,Amy Miller, Countrywide in

Crosshairs as Mortgage Crisis Fuels Litigation, Corporate Counsel, Feb. 22, 2008.13

39) Plaintiff alleges at no time during the lending process did BANA ever disclosed toPlaintiffs, his Identity, FICO scores, Property and purported Mortgage Loan was going to be

used in a securitization scheme unheralded in the annals of the world and the purported

Mortgage Contract is absent of such disclosure or language.

40) Plaintiff alleges that BANA never disclosed to him that his loan payments werenot going to be used to his purported mortgage loan and that said payment was going to be used

to cover payments to investors in certificates backed by his purported loan and further, that His

loan payments were to be commingled with hundreds of other loan payments.

41) Plaintiff alleges BANA never disclose to him, there were third party co-obligatorsin this deal that required them to make the loan payments to the owners of the Note and

Mortgage and that there could never be a default on the debt whereas the true creditor would and

could never suffer a loss by way of default.14

13http://www.law.com/jsp/cc/PubArticleCC.jsp?id=1203602189184

14PSA SECTION 4.01: Advances:
http://www.law.com/jsp/cc/PubArticleCC.jsp?id=1203602189184http://www.law.com/jsp/cc/PubArticleCC.jsp?id=1203602189184http://www.law.com/jsp/cc/PubArticleCC.jsp?id=1203602189184http://www.law.com/jsp/cc/PubArticleCC.jsp?id=1203602189184


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42) Plaintiff alleges BANA never disclosed that the True Creditor (certificate holders)would never suffer a loss in the Mortgage Contract because of guaranties represented in the side

contracts (which all allude to the Plaintiff and his property) that all parties but for the Plaintiff

would be made financially whole if this scheme fell apart.15

BANA even has an Insurance Policy

for Errors and Omissions. The schemers protected themselves from any wrongdoing but

provided none for the Plaintiff.

43) Plaintiff alleges the only interest BANA had in this deal, was the collection ofServicing fees, late fees, and insurance fees among others, had risked nothing, were not real

parties to the Mortgage contract, after a default would tried to reattach itself to the obligation,

and then, foreclose, collect on all the insurance policies, file a 1099A with the IRS for the

purported loss, and in the end, acquire a FREE HOUSE.

(a) The Master Servicer shall determine on or before each Master Servicer Advance Date whether it is required tomake an Advance pursuant to the definition thereof. If the Master Servicer determines it is required to makean Advance, it shall, on or before the Master Servicer Advance Date, either (i) deposit into the Certificate Accountan amount equal to the Advance or (ii) make an appropriate entry in its records relating to the Certificate Accountthat any Amount Held for Future Distribution has been used by the Master Servicer in discharge of its obligation to

make any such Advance. Any funds so applied shall be replaced by the Master Servicer by deposit in the CertificateAccount no later than the close of business on the next Master Servicer Advance Date. The Master Servicer shall beentitled to be reimbursed from the Certificate Account for all Advances of its own funds made pursuant to thisSection as provided in Section 3.08. The obligation to make Advances with respect to any Mortgage Loan shallcontinue if such Mortgage Loan has been foreclosed or otherwise terminated and the related Mortgaged

Property has not been liquidated.

See also, SALE AND SERVICING AGREEMENT:Advance: With respect to each Servicer Remittance Date and each Mortgage Loan, an amount equal to the

Scheduled Payment (with the interest portion of such Scheduled Payment adjusted to the Mortgage Loan RemittanceRate, in the case of the Servicer, or to the Net Mortgage Rate, in the case of the Master Servicer) that was due on theMortgage Loan on the Due Date in the related Collection Period, and that (i) was delinquent at the close of businesson the related Determination Date and (ii) was not the subject of a previous Advance, but only to the extent that such

amount is expected, in the reasonable judgment of the Servicer or Master Servicer, as applicable, to be recoverablefrom collections or other recoveries in respect of such Mortgage Loan.

15Nonrecoverable Advance: Any Servicing Advance or Advance previously made or proposed to be made in

respect of a Mortgage Loan by the Servicer which, in the reasonable discretion of the Servicer will not or, in the caseof a proposed Servicing Advance or Advance, would not, ultimately be recoverable by the Servicer from the relatedMortgagor, related Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds, REO Disposition Proceedsor otherwise. The determination by the Servicer that all or a portion of a Servicing Advance or Advance would be a

Nonrecoverable Advance shall be evidenced by an Officers Certificate delivered to the Master Servicer setting

forth such determination and a reasonable explanation thereof.


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44) Plaintiff alleges that all the investors (Creditors) lawsuits throughout the countryare either, won or settledbased on Plaintiffs toxic loan.

45) Plaintiff alleges BANA never inform Him that his purported mortgage NOTEwould be scattered across the globe, tangled with thousands of certificates and the possibility

some Terrorist or Communist would own a piece of his property. Nor, that he would be

prohibited from addressing the many holders or owners of the purported note and mortgage, the

debt, in the case of financial hardship and the need for relief.

46) Plaintiff alleges there was no possible way he could have known or been expectedto know theMaterial Facts that BANA intentionally omittedfrom the purported Mortgage

Contract.

47) Plaintiff alleges he made every attempt to discover who the owner or holder indue course of the purported debt was and who owned the mortgage and in response, met with

false and misleading statements and given false and misleading documents by BANA.

48) Plaintiff alleges that among the many phone calls to BANA and after he sent aQualified Written Request pursuant to 12 USC 2605(e) and two Debt Validation letters to

BANA, they still refused to disclose the owner or holder in due course of the purported note and

Mortgage.

49) Counsel for the BANA finally informed Plaintiff days before the February 2011hearing to reopen the bankruptcy what TRUST the Plaintiffs purported mortgage loan was

included and that in fact BONY was the Trustee for said TRUST.

50) Once Plaintiff obtained the name of the TRUST, he was off and running and hisinvestigation has partially revealed the nature ofBANAs scheme whereupon he uncovered the

concealed violations. Further discovery and investigation is required.


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51) Plaintiff alleges that, prior to being informed by BANA Counsel as to the nameof the TRUST, Plaintiff could not have Uncovered or Known of the herein concealed violations

or that any existed. Nor could Plaintiff have uncovered all the concealed Players in this scheme,

whereas the alleged violation and the scheme are hidden in the TRUST documents and the

Fortress that is the Mortgage Electronic Registration System (MERS). In order to access the

TRUST documents you need the name of the TRUST. Unlike the many County Registry of

Deeds, No American Citizen (mortgagor) can access MERS records by design.

52) Plaintiff alleges that theMaterial Facts of this scheme were not disclosed byBANA prior to, during or after entering into the purported mortgage contract and the Plaintiff

would never have uncovered this scheme if not for the illegal foreclosure attempt.

53) The Plaintiff states he never made an agreement with BANA or ever gave hisconsent to be a party to this securitization scheme. Plaintiff relied on the Misleading Contract

supplied by BANA and [h]ad a Justifiable Right to rely on the misleading contract and said

reliance has caused Plaintiff to suffer damage as a direct and proximate result of said reliance.

54) Plaintiff states he would never have entered into the purported mortgage loan hadBANA disclosed to him the true nature of the securitization scheme and how much money others

would make from Plaintiffs purported mortgage loan all the while, being made a monetary slave

to this scheme.

55) Plaintiff alleges that BANA Fraudulently induced him to enter the purportedmortgage contract to Plaintiffs detriment.

56) Plaintiff alleges he would never have entered this Contract with BANA had thetrue subject matter been disclosed.


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57) Plaintiff alleges that BANA knew the purported Mortgage Contract wasoppressive and unconscionable. Whereas Plaintiff would pay up to 40 years to fill the pockets of

others with his hard-earned money, all the while, the purported lender had no money in the deal

and in return, Plaintiff would gain nothing in equity, because Appraisal Fraud usurped all the

equity from Plaintiffs property.

a) In 1998, the town of Lynnfield assessed the Plaintiffs property at $222,510.00See,Exhibit 38attached herewith and incorporated by reference herein.

16

b) In 1999, the appraisal fraud kicked in and property values were on the rise.Plaintiffs property was now assessed at $259,100.00; in 2001 - $285,000.00; in 2002

- $353,500.00; immediately after Plaintiff purchased the property the assessment

skyrocketed to $505,100.00 and by 2008 had reach an unsustainable $535,000.00.

c) On or about November 22, 2004, BANAs appraisers appraised Plaintiffsproperty at $640,000.00, $277,700.00 more than the assessed value of $362,300.00 in

2004.

d) Plaintiffs inflated purchase price for his property was $585,000.00.e) Since BANAs appraisal, the properties market value has fluctuated from$327,000 to $448,000.00 and back again and the Last compatible Home in the

Plaintiffs Neighborhood sold on July 7, 2011 for $305,500.00. There is a home right

across the street from Plaintiff, which is on Zillow Zestimate for sale for $216,000;

the housing market continues to decline with every passing month and there is no end

in sight. See projected decline inExhibit 39 infra.

f) The Plaintiffs property is currently assessed by the Town at $440,500.00; stillovervalued.

16http://lynnfield.patriotproperties.com/g_previous.asp
http://lynnfield.patriotproperties.com/g_previous.asphttp://lynnfield.patriotproperties.com/g_previous.asphttp://lynnfield.patriotproperties.com/g_previous.asphttp://lynnfield.patriotproperties.com/g_previous.asp


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g) Plaintiff has approximately $407,000.00 invested in his property and this does notinclude the six years of inflated taxes related to the Appraisal Fraud and insurance

paid or the money required to maintain the property and a $50,000.00 line of credit

fully extended.

h) Attached herewith marked asExhibit 39incorporated herein is a chart thatdemonstrates the track of the housing market as far back as 1890. From 1950 to 1999,

the market was stable but for the two minor booms; in walks the Gramm Act of 1999,

becoming effective in 2000 and a MONSTER was unleashed when the handcuffs

were removed from Wall Street and Banks like BANA.

i) Appraisal Fraud and the Securitization Scheme was the catalyst that set thismonumental Fraud into action and falsely sent home prices into the stratosphere,

which ultimately destroyed our Country and financially devastated the American

Citizen and the Plaintiff.

j) The actual value of Plaintiffs property is what it was before the appraisal fraudkicked in, $222,510.00 and the Plaintiff has paid off this amount.

k) In matters of equity, the Plaintiff should recover the balance in the deficiency.l) BANA nor BONY are not entitled to a turnover of the property upon voiding theMortgage Contract because the Plaintiff has more money invested in said property

than the property is worth.

58) Plaintiff states he would never have purchased the property for the purchase pricehad he known of the rampant appraisal fraud at work. Nothing can justify the outrageous


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increase in the value of Plaintiffs property in a five-year span in comparison to the attached

chart.

59) The Plaintiff received a copy of the appraisal under the cover of confidentialityand therefore, not included as an exhibit; it is available for the Court. BANA refused to give it to

Plaintiff per his QWR and Debt Validation Letter however, after much persistence; Counsel for

the BANA relented and on November 8, 2010, gave Plaintiff a copy.

60) Eleven Thousand Honest Appraisers, throughout the countryincluding manyfrom Massachusettssigned a Petition, wherein they claimed they were forced to inflate home

appraisals with threat if they refused, by the withholding of business if they refused to inflate

values; the withholding of business if they refused to guarantee a predetermined value; the

withholding of business if they refuse to ignore deficiencies in the property; refusing to pay for

an appraisal that does not give them what they want; black listing honest appraisers in order to

use "rubber stamp" appraisers, etc..17

61) Said Petition prompted Congress to enact new legislation related to Banks andAppraisers and has brought the FBI to bear on the criminals for appraisal Fraud among others.18

62) It is widely known that from 1999 to present, appraisal fraud has been pervasive19

and regardless of new restriction appraisal fraud continues at an alarming rate.

63) The Plaintiff has contacted many of the Massachusetts Appraisers, who signed thePetition, and many are willing to testify in relation to the above Petition and the facts attested to

therein.

17 The Petition may be viewed here at:http://appraiserspetition.com/18

http://www.fbi.gov/stats-services/publications/mortgage-fraud-2010/mortgage-fraud-report-201019

See, Washington Post, Kenneth R. Harney May 1, 2010-Despite 2009 restrictions, mortgage and appraisal fraudspiked: http://www.washingtonpost.com/wpdyn/content/article/2010/04/30/AR2010043000041.html.
http://appraiserspetition.com/http://appraiserspetition.com/http://appraiserspetition.com/http://www.fbi.gov/stats-services/publications/mortgage-fraud-2010/mortgage-fraud-report-2010http://www.fbi.gov/stats-services/publications/mortgage-fraud-2010/mortgage-fraud-report-2010http://www.fbi.gov/stats-services/publications/mortgage-fraud-2010/mortgage-fraud-report-2010http://www.washingtonpost.com/wpdyn/content/article/2010/04/30/AR2010043000041.htmlhttp://www.washingtonpost.com/wpdyn/content/article/2010/04/30/AR2010043000041.htmlhttp://www.washingtonpost.com/wpdyn/content/article/2010/04/30/AR2010043000041.htmlhttp://www.fbi.gov/stats-services/publications/mortgage-fraud-2010/mortgage-fraud-report-2010http://appraiserspetition.com/


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64) Joyce Horgan, BANAs appraiser, is not a signatory on the petition and recentlyreprimanded

20by the regulatory authorities in the State of Massachusetts.

65) Plaintiff alleges that the Mortgage Contract is void or voidable because thepurported Mortgage Contract is incomplete because ofBANAs failure to fully disclose the deal;

the contract is uncertain because BANA omitted the true parties and nature of the deal; the

contract is not mutual because Plaintiff never agreed to the undisclosed terms concealed by

BANA; the contract is unfair, unequal and unjust because of Appraisal fraud perpetrated and

perpetuated by BANA and it was never disclosed that BANA had no consideration in the deal

and that the loan immediately went off the books of the phony lender therefore, earned billions in

servicing fees because through their securitization chain BANA kept the servicing rights to the

loan; Accordingly, BANAs very deception makes the contract is unjust; The Contract is a

complete Deliberate Misrepresentation of the Material Facts of the true deal which BANA made

prior to signing the contract and these Material Facts were never disclosed; Because ofBANAs

deception and intentional omissions, the contract is fraught with fraud, illegalities and is

oppressive; BANA failed to disclose all Material Facts about the subject matter of the Contract;

BANA had actual knowledge of the Material Facts prior to entering the Contract which BANA

knowingly omitted; BANAs failure to disclose the Material Facts caused the Plaintiff to have a

false impression of the deal and the terms of the Contract; When BANA failed to disclose all the

Material Facts, BANA KNEWthe failure would create a false impression; When BANA failed

to disclose the Material Facts, BANAs intendedthat plaintiff rely on the resulting false

impression; The Plaintiff did relied and had a justifiable right to rely on the false impression; and

20 http://www.realmarketing.com/license_lookup/massachusetts_real_estate_appraiser_license_lookup.htm

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


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The plaintiff has been damaged as a direct and proximate result of the reliance upon the false

impression.

66) The Plaintiff alleges he is entitle to the damage he suffered by the difference inthe amount of money between the actual value before the appraisal fraud began and the

appraised value at the time the purported mortgage contract was entered into in an amount

certain or to be proven.

II. Defendants Have Committed Deceptive acts and Practices, Falsified Documents,Forged Documents, Fraudulently Tampered with the Collateral Mortgage File,

and knowingly Filed a False Document in a Massachusetts Registry of DeedsAmong Others

67) Plaintiff repeats, realleges and incorporates all supra paragraphs of this Pleading,the First Verified Amended Complaint and all previously filed pleadings as though fully set forth

herein.

68) Massachusetts Regulation 940 C.M.R. 3.16 states that an act or practice is inviolation of Chapter 93A if it is oppressive or unconscionable; it violates any statute, rule,

regulation or law which is intended to protect the public's health, safety or welfare. M.G.L. c.

266 35A is mean to protect the Public Safety.

69) Plaintiff alleges that on February 16, 2010, BANA initiated an illegal foreclosureprocess when clearly they were not the holder in due course of the Note and Mortgage.

70) Plaintiff alleges that on February 16, and again on April 8, 2010 BANA tried tocollect on a debt whereas no debt is due to BANA with the threat of foreclosure and the taking of

Plaintiffs property.

71) Plaintiff alleges BANA states the Note (debt) was discharge in December of 2008in a chapter 7 bankruptcy proceeding.


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72) Plaintiff states that all the claims made herein were not known or actionable priorto the filing of the chapter 7 Bankruptcy nor could they have been known or actionable because

BANA concealed the evidence and the identity of the TRUST. Further, some of the unlawful

actions herein took place well after the bankruptcy discharge.

73) Plaintiff alleges at no time prior to the discharge or during the bankruptcy perioddid BANA disclosed to the Plaintiff, Trustee, or Plaintiffs Counsel, who the true owner of the

purported debt was or that the debt was, securitized.

74) Plaintiff alleges No Creditor appeared at the bankruptcy during the meeting of thecreditors.

75) Plaintiff alleges BANA deliberately avoided the Plaintiffs bankruptcy to concealand insure the identities of the real parties in interest would remain concealed thereby concealing

some of the violations herein.

76) Plaintiff alleges BANA did not file a Proof of claim because they knew they couldnot, and if they did the violations and the true creditor would have been revealed.

77) BANA had a duty to notify the Plaintiff and the Bankruptcy Court of the identityof the owner of the debt, they did not and knowingly concealed the names of the purported

holder in due course of the note and mortgagee.

78) Plaintiff alleges that prior to or during the bankruptcy; BANA was not thecreditor, the mortgagee, or the holder of the Note and had no standing in the bankruptcy and

none now.


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79) Plaintiff alleges that because BANA deliberately avoided the bankruptcyproceedings they are entitled to no consideration and that if the Plaintiff were to gain some type

of windfall because BANA failed to partake; it is a windfall BANA created.21

80) Plaintiff states it would be Fundamentally Unfair, fly in the face of Logic andPublic Policy to punish the Plaintiff for any procedural errors or omission during the bankruptcy

period that BANA silence created.

81) Moreover, even had BANA participated at the bankruptcy, they would have hadno valid claim because BANA never perfected their security interest and therefore had no

priority over the original mortgage recorded in the public record on December 6, 2004.

22

82) Plaintiff alleges that when the bankruptcy discharge issued, the Plaintiff left withall his rights intact.

83) Plaintiff alleges that because BANA or BONY never perfected priority or titleprior to or during the bankruptcy, and the note discharged, the note and mortgage are forever,

separated and therefore, cannot be reunited.

84) In Massachusetts, the Mortgage is defeasible upon the extinguishment of the debt(Note) and BANA admits the note was discharged and therefore, at a minimum, the only claim

Defendants might have is anIn Rem action in State Court. However, in order to proceed, they

would have to demonstrate a valid lien, moreover, standing. Plaintiff alleges no such standing or

21 See,Bigelow v. RKO Radio Pictures, Inc., 327 US 251 - Supreme Court (1946), The most elementaryconceptions of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty

which his own wrong has created. See Package Closure Corp. v. Sealright Co., 141 F.2d 972, 979. Thatprinciple is an ancient one,Armory v. Delamirie, 1 Strange 505.22See,In re Lazarus, 478 F. 3d 12 -15 Court of Appeals, 1st Circuit 2007, Perfection, in this case, required thefiling of the mortgage with the local registry of deeds. Because this filing occurred 14 days after the initial transferof funds, section 547(e) requires that the transfer be deemed to have occurred on the date of perfection. Themortgage, therefore, secured a debt antecedent to the transfer rather than simultaneous with it. GAMC does notdispute this reading of the statute.


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lien is evident because there are no recorded conveyances in the Registry of Deeds to any party

herein that is lawful and no lien has been perfected and cannot be perfected now.

85) Plaintiff alleges that the only recorded mortgage dated December 6, 2004 and themortgagee, Omega, would be the only entity under the mortgage to take action however, Omega

has already admitted it has no claim to Plaintiffs property or estate, moreover, the mortgage

Contract is void or voidable.

86) Plaintiff alleges that BANAs attempt to collect a debt that was not due to themviolates FDCPA.

87)

On May 13, 2010, Plaintiff filed suit to stop the illegal foreclosure and the

attempted debt collection initiated by BANA.

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

prejudice and stayed the case for 90 days to allow Plaintiff the opportunity to reopen the

bankruptcy and bring some of his claims that were rooted in the bankruptcy past not disclosed on

His schedule of assets. Plaintiff has abandoned all claims so rooted.

90) Subsequently, The Bankruptcy Court stated it saw no reason to reopen thebankruptcy and therefore, the assets are deemed abandoned and the bankruptcy is forever

closed whereas the bankruptcy court was privy to all the counts in the original complaint and saw

no reason to reopen nor has the Trustee file an interpleader or intervener.

91) Accordingly, on June 6, 201, Plaintiff gutted the original complaint, and filed anamended complaint by leave of the Court and only raised minimal claims and Defendants that

arose and became known and actionable after the bankruptcy discharge in December of 2008. At

issue among others, is the discovery of theMilestones Report which evidences the only sale or


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transfer of the purported mortgage loan to BONY the day after this Honorable Court denied the

Defendants motion to dismiss.

92) The reason Plaintiff only brought minimal claims and Defendants was to simplifythis matter and allow BANA to settle the matter and further, not to burden this already burdened

Court.

93) Plaintiff has been very cautious not to bring any frivolous claims and therefore,the claims he brings now are grounded in prima facia evidence, these claims were discovered and

became actionable after the discharge of his bankruptcy.

BACKGROUNDREMICS

94) REMICs are widely used securitization vehicles for mortgages and are governedby sections 860A through 860G of the Internal Revenue Code

95) Section 860D(a)(4) of the Code provides that an entity qualifies as a REMIC onlyif, among other things, as of the close of the third month beginning after the startup day and at all

times thereafter, substantially all of its assets consist of qualified mortgages and permitted

investments. This asset test is satisfied if the entity owns no more than a de minimis amount of

other assets. See 1.860D1(b)(3)(i) of the Income Tax Regulations. As a safe harbor, the

amount of assets other than qualified mortgages and permitted investments is de minimis if the

aggregate of the adjusted bases of those assets is less than one percent of the aggregate of the

adjusted bases ofall of the entitys assets. 1.860D1(b)(3)(ii).

96) With limited exceptions, a mortgage loan is not a qualified mortgage unless it istransferred to the REMIC on the startup day in exchange for regular or residual interests in the

REMIC. See section 860G (a)(3)(A)(i).


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97) The legislative history of the REMIC provisions indicates that Congress intendedthe provisions to apply only to an entity that holds a substantially fixed pool of real estate

mortgages and related assets and that has no powers to vary the composition of its mortgage

assets. S. Rep. No. 99313, 99th Cong., 2d Sess. 79192; 19863 (Vol. 3) C.B. 79192.

98) Section 860F(a)(1) imposes a tax on a REMIC equal to 100 percent of the netincome derived from prohibited transactions. The disposition of a qualified mortgage is a

prohibited transaction unless the disposition is pursuant to (i) the substitution of a qualified

replacement mortgage for a qualified mortgage; (ii) a disposition incident to the foreclosure,

default, or imminent default of the mortgage;(iii) the bankruptcy or insolvency of the REMIC; or

(iv) a qualified liquidation. Section 860F(a)(2)(A).

BACKGROUNDTRUSTS

99) Section 301.7701-2(a) of the Procedure and Administration Regulations defines abusiness entity as any entity recognized for federal tax purposes (including an entity with a

single owner that may be disregarded as an entity separate from its owner under 301.7701-3)

that is not properly classified as a trust under 301.7701-4 or otherwise subject to special

treatment under the Code.

100) Section 301.7701-4(a) provides that an arrangement is treated as a trust if thepurpose of the arrangement is to vest in trustees responsibility for the protection and

conservation of property for beneficiaries who cannot share in the discharge of this responsibility

and, therefore, are not associates in a joint enterprise for the conduct of business for profit.

101) Section 301.7701-4(c) provides that an investment trust is not classified as atrust if there is a power under the trust agreement to vary the investment of the certificate

holders.


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102) On March 22, 2011, Plaintiff discovered there was never a legal or enforceableassignment of the note and conveyance of mortgage to BONY by way of the discovery of the

Milestones Report. BANA was required to record the assignments and conveyances in the

Registry of Deeds and on MERS and did not and further, agreed not to alter the record.23

103) Plaintiff alleges that on December 17, 2010, BANA created an Option 2Beneficial Rights Transfer (sale) to BONY. BONY accepted the Sale after the TRUST funded

and after the 90-day period expired, provided by IRS 860. Notwithstanding, Plaintiffs purported

Loan was used to create certificates sold on the stock market. Plaintiff has taken steps to rectify

that. See, attached letter from the Secretary of State, Securities Division marked as Exhibit 40

incorporated by reference herein.

104) Notice to the Plaintiff by BONY of the above transfer is required by law.105) Plaintiff alleges he never received Notice from BANA or BONY.106) Plaintiff alleges the Defendant BANA knew this sale to BONY six years after the

TRUST had funded was illegal and void pursuant to New York Law and not a qualified

mortgage pursuant IRS 860 and therefore, should never have been included in the TRUST.

107) BANA claims Plaintiffs purported Loan is in default and therefore,knew notransfer to BONY could have taken place because the Mortgage Loan was not a qualified

Mortgage pursuant to IRS 860 et seq., the PSA and void pursuant to New York law.

23

PSA 2.01: In addition, in connection with the assignment of any MERS Mortgage Loan, each Seller agreesthat it will cause, at the Trustees expense, the MERS(R) System to indicate that the Mortgage Loans sold by

such Seller to the Depositor have been assigned by that Seller to the Trustee in accordance with this

Agreement for the benefit of the Certificateholders by including (or deleting, in the case of Mortgage Loans

which are repurchased in accordance with this Agreement) in such computer files the information required

by the MERS(R) System to identify the series of the Certificates issued in connection with such Mortgage

Loans. Each Seller further agrees that it will not, and will not permit the Master Servicer to, and the Master

Servicer agrees that it will not, alter the information referenced in this paragraph with respect to any

Mortgage Loan sold by such Seller to the Depositor during the term of this Agreement unless and until such

Mortgage Loan is repurchased in accordance with the terms of this Agreement.


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108) Plaintiff alleges that BANA and BONY, knowing and willfully, with malice andforethought, deceptively concealed this sale from the Plaintiff with reckless disregard for

Plaintiffs welfare. BANA and BONYs deceptive intent was to place themselves in the position

of holder in due course of the purported note and mortgage thereby allowing BANA and BONY

to complete their illegal scheme at foreclosure thereby depriving Plaintiff of his property.

109) On March 27, 2011, Plaintiff put Brian Moynihan, Barbara Desoer and Counselon notice of this unlawful act. See, Letter attached herewith marked asExhibit 41

incorporated by reference herein. BANA acknowledge receipt of this correspondence.

110)

On July 15, 2011, Plaintiff discovered that BANA and MERS filed and recorded

an assignment of Mortgage in the Essex County Registry of Deeds.

111) Plaintiff alleges that on June 30, 2011 BANA and its officers, agents andemployees, Brain Moynihan, Barbara Desoer,Danilo Cuenca, Beverly Brooks and Irma Diaz

Knowingly created an assignment of mortgage that was false, forged, and fraudulent assignment

putting forth material statements that are false from MERS to BONY assigning BONY both the

Note and mortgage.

112) The Plaintiff alleges BANA knowingly filed or caused to be filed in the EssexCounty Registry of Deeds on July 13, 2011, a false document containing false material facts and

statements knowing they were false and further, signed by a known robo-signer Beverly Brooks.

See,Affidavit of John OBrien, Registrar of the Southern Essex County Registry of Deeds

marked asExhibit 36. Accordingly, Mr. OBrien has forwarded the Affidavit and

accompanying documents to the Attorney General of Massachusetts and the District Attorneys

Office for Essex Country for investigation and possible prosecute of the guilty parties herein for

their criminal behavior.


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113) Plaintiff alleges, that the signer of the assignment is not Beverly Brooks and thatin light of the fact that Plaintiff has at least 15 different variations of her signature; she never

appeared personally before the notary, Irma Diaz, and therefore, the document is a forgery not

validly signed; violates the oath of perjury. The assignment recorded with intent to defraud the

Plaintiff and this Honorable Court, in a vain attempt to demonstrate that BONY and BANA are

legal parties to the note and mortgage. BANA and BONY ultimate intent was to put all the

world on notice and to illegally deprive the Plaintiff of his property; Now a specific crime under

G.L.c. 266 35A.

114)

The Law required notice to the Plaintiff of the above assignment.

115) Plaintiff alleges he never received Notice from BANA or BONY of theassignment filed on July 13, 2011.

116) On July 19, 2001, Plaintiff put Brian Moynihan, Barbara Desoer and Counsel onnotice of this unlawful act. See, Letter attached herewith marked asExhibit 42incorporated

by reference herein. BANA acknowledge receipt of this correspondence

117) Plaintiff alleges BANA and BONY knew that they nor MERS had any authoritywhatsoever to assign the note, is not a party to the note nor could MERS ever be a party to the

Note nor could the Note be held in trust by any other party but for the TRUST on behalf of the

Certificate holders.24

Moreover, how could they assign a discharged NOTE.

24Indenture Agreement: ARTICLE TWO: THE NOTES: No Note shall be entitled to any benefit under

this Indenture or be valid or obligatory for any purpose, unless there appears on such Note a certificate ofauthentication substantially in the form provided for herein executed by the Trust Administrator by themanual signature of one of its authorized signatories, and such certificate upon any Note shall beconclusive evidence, and the only evidence, that such Note has been duly authenticated and deliveredhereunder.

Section 2.03. Limitation on Transfer of Notes. (a) No transfer of a Note in the form of a Definitive Noteshall be made unless the Note Registrar shall have received a representation from the transferee of suchNote, acceptable to and in form and substance satisfactory to the Note Registrar and the Depositor (suchrequirement is satisfied only by the Note Registrars receipt of a transfer affidavit from the transferee


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118) Plaintiff alleges All Defendants knew (in light of notice provided in theExhibit37) that the creation and recording of the above assignment constituted an unlawful act

because it flew in the face of the herewith TRUST Documents and violated the mandates

required by New York Law and IRS 860 and therefore, would violate M.GL. c. 266 35A

thereby, violating M.G.L. c. 93A et seq...

119) However, regardless of the notice of G.L. c. 266 35A, BANA and MERS withBold Arrogance and complete defiance of the Law, the Plaintiff and this Honorable Court, filed

the above assignment at issue thereby making the statement that they are above the LAW.

120)

Plaintiff alleges that other than the above actions, there is no evidence anywhere

that the original lender [Omega Mortgage Corp] affixed an endorsement on the purported note to

BANA or that BANA endorsed the Note to anyone or that the Mortgage was legally conveyed to

the now purported holder-in-due-course or owner, BONY.

substantially in the form of Exhibit B hereto), to the effect that such transferee (i) is not acquiring such notefor, or with the assets of, an employee benefit plan or other retirement arrangement that is subject toSection 406 of ERISA or to Section 4975 of the Code or to any substantially similar law ("Similar Law"),or any entity deemed to hold the plan assets of the foregoing (collectively, "Benefit Plans"), or (ii) itsacquisition and holding of such Notes for, or with the assets of, a Benefit Plan will not result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code which is notcovered under Prohibited Transaction Class Exemption ("PTCE") 84-14, PTCE 90-1, PTCE 91-38, PTCE95-60, PTCE 96-23 or some other applicable exemption, and will not result in a non-exempt violation ofany Similar Law. In the event that a Note is transferred to a Person that does not meet the requirements of

this Section 2.03, such transfer shall be of no force and effect, shall be void ab initio, and shall not operateto transfer any rights to such Person, notwithstanding any instructions to the contrary to the Issuer, theIndenture Trustee or any intermediary; and the Trust Administrator shall not make any payments on suchNote for as long as such Person is the Holder of such Note. Each Note shall contain a legend substantiallysimilar to the applicable legend provided in Exhibit A hereto stating that transfer of such Notes is subject tocertain restrictions as set forth herein.

(b) Any purported transfer of a Note (or any interest therein) not in accordance with this Section

2.03 shall be null and void and shall not be given effect for any purpose hereunder.


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121) New York Law, IRS 860 and the TRUST documents require a specific period forthe mortgage and notes to be transfer into the TRUST and if not done in accordance, they are

void and cannot take place after the 90-day period set forth in IRS 860 of the PSA.25

122) Plaintiff alleges BONY was mandated to review and insure that it receive theMortgage and Note in accord with the TRUST document and did not. Because BONY failed to

perform its fiduciary duties, the TRUST does not have Plaintiffs Note and Mortgage and never

will.

123) Plaintiff alleges, as mandated, BANA failed to timely and legally, sell, transfer,assign, set over and otherwise convey to the Depositor without recourse, all its respective right,

title and interest in and to the related Mortgage Loans pursuant to the PSA, IRS 860 and New

York Law.

25PSA SECTION 2.01: Conveyance of Mortgage Loans:

(a) Each Seller concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets

over and otherwise conveys to the Depositor, without recourse, all its respective right, t itle and interest inand to the related Mortgage Loans, including all interest and principal received or receivable by suchSeller, on or with respect to the applicable Mortgage Loans after the Cut-off Date and all interest andprincipal payments on the related Mortgage Loans received prior to the Cut-off Date in respect of

installments of interest and principal due thereafter, but not including payments of principal and interestdue and payable on such Mortgage Loans on or before the Cut-off Date. On or prior to the Closing Date,Countrywide shall deliver to the Depositor or, at the Depositors direction, to the Trustee or other designeeof the Depositor, the Mortgage File for each Mortgage Loan listed in the Mortgage Loan Schedule (exceptthat, in the case of the Delay Delivery Mortgage Loans (which may include both Countrywide MortgageLoans and Park Granada Mortgage Loans), such delivery may take place within thirty (30) days followingthe Closing Date). Such delivery of the Mortgage Files shall be made against payment by the Depositor ofthe purchase price, previously agreed to by the Sellers and Depositor, for the Mortgage Loans. With respectto any Mortgage Loan that does not have a first payment date on or before the Due Date in the month of thefirst Distribution Date, Countrywide shall deposit into the Distribution Account on or before theDistribution Account Deposit Date relating to the first applicable Distribution Date, an amount equal to onemonths interest at the related Adjusted Mortgage Rate on the Cut-off Date Principal Balance of suchMortgage Loan.

(b) Immediately upon the conveyance of the Mortgage Loans referred to in clause (a), the Depositor sells,transfers, assigns, sets over and otherwise conveys to the Trustee for the benefit of the Certificateholders,without recourse, all the right, title and interest of the Depositor in and to the Trust Fund together with theDepositors right to require each Seller to cure any breach of a representation or warranty made here in bysuch Seller, or to repurchase or substitute for any affected Mortgage Loan in accordance herewith.(c) In connection with the transfer and assignment set forth in clause (b) above, the Depositor has deliveredor caused to be delivered to the Trustee (or, in the case of the Delay Delivery Mortgage Loans, will deliveror cause to be delivered to the Trustee) within thirty (30) days following the Closing Date for the benefit ofthe Certificateholders the following documents or instruments with respect to each Mortgage Loan soassigned:


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124) Plaintiffs alleges as mandated by law, BANA failed to timely and legally sell,transfer, assign, set over and otherwise convey to the Trustee for the benefit of the

Certificateholders, without recourse, all the right, title and interest of the Depositor in and to the

Trust Fund pursuant to the PSA, IRS 860 and New York Law.

125) Plaintiff alleges that because BANA and BONY violated the TRUST documents,IRS 860 and New York law, there was never a legal assignment or endorsement of the note and

conveyance of mortgage to the TRUST within the mandated time frame; BANA and BONY

KNEW no transfer, assignment or conveyance could take place after the allotted time frame.

126)

BANA was required to endorse and convey all it rights in the Note and the

mortgage loan to the depositor BANA on the cutoff date (December 1, 2004). There had to be a

true sale.26

127) Plaintiff alleges that it was required that there be a bona fide sale of Plaintiffspurported loan to the Trust and there was not. There is no sale unless there is a legal assignment

and endorsement of the note and a legal recorded conveyance of the mortgage to perfect title for

the certificate holders. Without a recorded Mortgage Deed, there was no priority over the

original mortgage nor can one take place now.

128) Plaintiff alleges there were no legal assignments and endorsements of the Noteand no legal conveyance of the Mortgage prior to the illegal foreclosure attempt or prior to the

commencement of this Action. The Public Record, including the Massachusetts Secretary of

States Office UCC filing system and MERS are deficient of any recorded assignments or

conveyances, until this Honorable Court denied BANAs motion to dismiss and Plaintiff

amended the complaint.

26Representations and Warranties of Countrywide: (7) Countrywide intends to treat the transfer of the

Countrywide Mortgage Loans to the Depositor as a sale of the Countrywide Mortgage Loans for all tax,accounting and regulatory purposes.


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129) Plaintiff alleges the alleged loan was nevertheless included in the Trust registeredon the SEC as a Real Estate Mortgage Investment Conduit (REMIC) Trust.

130) The subject purported Mortgage states that the Mortgage secures the PromissoryNote.

131) Under the UCC, the Promissory Note is a one-of-a-kind instrument and anyassignment must be as a permanent fixture onto the original Note much like a check.

132) Plaintiff alleges there is no endorsement on the original Note.133) Plaintiff alleges, that the original Promissory Note has the only legally binding

chain of title, otherwise the instrument is faulty.

134) Plaintiff alleges for many reasons, all Defendants lack standing to enforce theNote and therefore the mortgage is of no effect and therefore not a valid lien.

135) Under the UCC, the original Promissory Note is the only valid and legally bindingchain of title for the Note.

136) Plaintiff alleges the numerous attempts by BONY and BANA to claim ownershipof the original Note or Mortgage are fraudulent.

137) There is no perfection of title as admitted by BANA and BONY in there motionto dismiss where Defendants suggest that at this late date they be allowed to perfect title. There

can be no perfection at this late date.

138) MERS was established and up and running by 1997 by members of the mortgagebanking industry to create a centralized document custodial system through which mortgages can

be easily transferred between members without having to record or pay county filing fees for

such assignments.


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139) Nothing prevents the Banks through MERS from maintaining their own recordshowever, Plaintiff cannot find any law were the Banks through MERS was given the legal right

to usurp state recording laws, nor can Plaintiff find when and where MERS was given legislative

authority.

140) Plaintiff alleges he never executed a note naming MERS as a party, nor wasPlaintiff ever notified or informed of a transfer of the note to MERS as require by law.

141) Plaintiff alleges that no evidence exists to support any claim that MERS is or wasever the holder in due course of the Note at issue in this action.

142)

On June 30, 2011, BANA requested and MERS assigned the note to BONY.

143) Plaintiff alleges that MERS cannot assign the Note to any one or entity and themere fact MERS did so is Fraud, Forgery, Uttering, inter alia, all in an attempt to commit larceny

and steal Plaintiffs property and his money.

144) Plaintiff alleges that regardless of what the PSA puts forth in relation to a MERSmortgage and what MERS claims, in Massachusetts the conveyance of a mortgage is a

conveyance of land and must be recorded in the registry in which the property is located to

consummate the true sale and take priority over an existing lien. No such recording existed until

after Plaintiff filed the amended complaint on June 6, 2011.

145) M.G.L. c. 183 1, provides that: A deed executed and delivered by the person,or by the attorney of the person, having authority therefor, shall, subject to the limitations of

section four, be sufficient, without any other act or ceremony, to convey land.

146) M.G.L. c. 183 2, provides that: A deed of quitclaim and release shall besufficient to convey all the estate which could lawfully be conveyed by a deed of bargain and

sale.


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147) M.G.L. c. 183 3, provides that: An estate or interest in land created without aninstrument in writing signed by the grantor or by his attorney shall have the force and effect of an

estate at will only, and no estate or interest in land shall be assigned, granted or surrendered

unless by such writing or by operation of law.

148) M.G.L. c. 183 4, provides in pertinent part that, A conveyance of an estate infee simple, fee tail or for life, . for more than seven years from the making thereof, shall not

be valid as against any person, except the grantor or lessor, his heirs and devisees and persons

having actual notice of it, unless it, or an office copy as provided in section thirteen of chapter

thirty-six, .is recorded in the registry of deeds for the county or district in which the land

to which it relates lies. See Solans v. McMenimen 80 Mass. App. Ct. 178, 184 (2011), " A

conveyance of an estate ... shall not be valid as against any person, except the grantor or lessor,

his heirs and devisees and persons having actual notice of it, unless it ... is recorded in the

registry of deeds." Citing G.L. c. 183, 4, as appearing in St.1973, c. 205. Tramontozzi v.

D'Amicis, 344 Mass. 514, 517, 183 N.E.2d 295 (1962) (unrecorded mortgage is subject to

defeat under G.L. c. 183, 4).

149) Plaintiff alleges that because no evident endorsements of the note or conveyancesof the mortgage were in record none can exist now with the fraudulent attempt to take priority

over the only record recorded on December 6, 2004.

150) M.G.L. c. 233 78 prohibits the altering of business records after a lawsuit hasbeen commenced and this action commenced on May 13, 2010. The period for the Defendants to

perfect their interest has long since come and gone and no want of trying can change this fact

now.
http://www.retrievelaw.com/case.asp?cmd=getcase&DocId=36384&Index=D%3a%5cdtSearch%5cINDEX%5cMA%5cMACASEMASSAPPCT&HitCount=54&hits=61+72+9b+b0+b7+c1+c8+f3+122+15a+18e+19e+1d4+1d9+1e4+1e7+1f1+202+204+224+22f+26f+2d9+2de+2e1+2f4+2fd+329+3fe+441+44d+5a7+67a+6d8+6da+6e5+6f4+728+74a+761+766+7d7+7f0+83e+848+868+88d+9c4+9f7+aca+bad+bfa+bfd+cc2+&hc=15783&req=mortgage+And+recordedhttp://www.retrievelaw.com/caselink.asp?series=Mass.&citationno=344+Mass.+514http://www.retrievelaw.com/caselink.asp?series=N.E.2d&citationno=183+N.E.2d+295http://www.retrievelaw.com/caselink.asp?series=N.E.2d&citationno=183+N.E.2d+295http://www.retrievelaw.com/caselink.asp?series=Mass.&citationno=344+Mass.+514http://www.retrievelaw.com/case.asp?cmd=getcase&DocId=36384&Index=D%3a%5cdtSearch%5cINDEX%5cMA%5cMACASEMASSAPPCT&HitCount=54&hits=61+72+9b+b0+b7+c1+c8+f3+122+15a+18e+19e+1d4+1d9+1e4+1e7+1f1+202+204+224+22f+26f+2d9+2de+2e1+2f4+2fd+329+3fe+441+44d+5a7+67a+6d8+6da+6e5+6f4+728+74a+761+766+7d7+7f0+83e+848+868+88d+9c4+9f7+aca+bad+bfa+bfd+cc2+&hc=15783&req=mortgage+And+recorded


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155) The violations herein arise from the same case in controversy filed on May 13,2010 and are continuing violations, which occurred on the dates supra and infra primarily and

substantially in Massachusetts.

156) Defendant BANA is engaged in trade or commerce in Massachusetts involved inresidential housing as a financial institution directly or indirectly affecting the people of this

Commonwealth through lending and foreclosure.

157) Defendant BONY is engaged in trade or commerce in Massachusetts involved inresidential housing as a financial institution directly or indirectly affecting the people of this


158) Defendant MERS is engaged in trade or commerce in Massachusetts involved inresidential housing as a financial institution directly or indirectly affecting the people of this


159) On September 30, 2010, Plaintiff put the Defendants on Notice by letter to theircounsel of the Emergency Legislation that signed into law on August 17, 2010; (The Acts of

2010, Chapter 258, An Act Relative to Foreclosure) amending among others, M.G.L. c. 266

35A. Further, Plaintiff put Brain Moynihan and Barbara Desoer on notice of their unfair

deceptive acts and practices and the unlawful acts perpetrated by their agents and employees.

160) Any violation of 209 CMR 18.00 et seq., 209 CMR 32.00 et seq., and 940 CMR8.00 et seq., 940 CMR 3.16 is a violation of M.G.L. c. 93A 2.

161) Contrary to Massachusetts General Laws and Regulations, IRS 860, New YorkTrust Law, and the governing Trust Documents for CWMBS CHL Pass Through Certificate

2004-29 (TRUST); on June 30, 2011 BANA, BONY and MERS, conspired to circumvent the

law. BANA, BONY and MERS knowingly, willfully, wantonly, with malice and forethought


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creating a document that was materially false, deceptive and misleading, said document was the

assignment of Mortgage, from MERS to BONY and was created with the intent to harm the

Plaintiff.

162) Contrary to IRS 860, New York Trust Law, and the governing Trust Documents(PSA), on July 13, 2011 BANA, BONY and MERS conspired to circumvent the law by

knowingly, willfully, wantonly, with malice and forethought, filed or caused to be filed a

document that was material false and they knew it was a false, deceptive and misleading, an

assignment of Mortgage, from MERS to BONY, in the Southern Essex County Registry of

Deeds with the knowing intent to deceive the Plaintiff and deprive the Plaintiff of his Property.

163) BANA, BONY and MERS knew the Plaintiffs Mortgage Loan was included inthe TRUST, and knew they never legally assigned the note nor legally conveyed the mortgage to

the TRUST pursuant to section 2.01 of the PSA or IRS 860G and therefore, the inclusion of

Plaintiffs Loan was void pursuant to New York Estates, Powers & Trusts-Part 2- 7-2.4.

Therefore, knew it would be unlawful to assign the Note and Mortgage to the TRUST, as a

qualified Mortgage per the July 13, 2011 assignment especially in light of the fact that BANA

declared the Loan in default in 2010.

164) Defendants, BANA, BONY and MERS knew or should have known their unfairand deceptive acts and practices would foreseeably cause Plaintiff injuries and was meant to

cause Plaintiff injury and Plaintiff has been injured as direct and proximate result of the

Defendants unfair and deceptive acts.

165) The above assignment was Not only meant to deceive the Plaintiff; it was createdand filed, with the knowing intent to commit Fraud upon this Honorable Court to demonstrate

the Defendants have standing as owners or holders in due course of the Note and Mortgage.


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166) BANA, BONY and MERS have violated and continues to violate theMassachusetts Consumer Protection Act, G.L. c. 93A, 2 and applicable regulations

promulgated by the Massachusetts Attorney General pursuant to G.L. c. 93A, 2(c) including,

specifically without limitation:

a. Contrary to 940 C.M.R. 3.16, BANA, BONY and MERS conduct violated existingstatutes, rules, regulations or laws, meant for the protection of the public's health,

safety or welfare as described herein;

b. Contrary to 209 C.M.R. 32.39 (4) BANA and or BONY failed to provide disclosureof (a) (b) (c) and (d) of said regulation in relation to the assignment of Mortgage filed

on July 13, 2011;

c. Contrary to 940 C.M.R. 3.05 & 940 C.M.R. 8.06 , BANA and BONY made falseand deceptive representations and failed to disclose relevant information as it related

to their authority or agent of the Owner or Holder in Due Course of the Note and

Mortgage at issue herein and deceptively filed a false document in the Registry of

Deeds.

d. Contrary to 209 CMR 18.16 (2)(a) & (10), BANA, BONY and MERS, filed theAssignment of Mortgage on July 13, 2011, in the Essex county Registry of Deeds.

Accordingly, the above Defendants have created a false, deceptive, and misleading

representation of the character, amount, and legal status of the purported debt, and is

a false representation and a deceptive means to collect or attempt to collect the

purported debt at issue herein.

e. Contrary to 206 CMR 18.17 (6)(a)(b) & (c), on February 16, 2010, then again inApril of 2010, BANA threatened to take a nonjudicial action to effect dispossession


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or disablement of property when there was no present right to possession of the

Plaintiffs property claimed as collateral through an enforceable security interest and

the Plaintiffs property is exempt by law from such dispossession or disablement and

the unlawful filing of the above assignment was a means to this end.

f. Contrary to 209 CMR 18.21(9) & (10), BANA, BONY and MERS, knowingly orrecklessly facilitated the i