Legal Compliant regadring objection to Contract for deed Cancellation
yusuf4Page | 1
Plaintiff in Pro Se,
ClearChoice Community Services Inc.
2736 Lyndale Ave S Suit e202
Minneapolis MN 55408
Telephone No.9522220251
STATE OF MINNESOTA |
|
DISTRICT COURT |
County of Hennepin
|
|
Judicial District: Court File number: Case Type:
|
ClearChoice Community Services Inc.
Plaintiff Pro Se
V
Caskecla Investment
THEODORE J MEYERS
JOHN DOE I-XX, et al.
Defendants
PARTIES TO THE ACTION
1. Plaintiff Pro se, ClearChoice Community Services Inc. (herein referred as Borrower/Plaintiffs) all times relevant have resided at 4816 Nicollet Ave S Minneapolis MN 55419
2. Defendant Caskecla Investment (herein after refreed to as Lender) having its place of business at 8271 SE Sanctuary Drive, Hobe Sound FL 33455
3. Defendant THEODORE J. MEYERS having its place of business at 1755 St. Marys Street lcon Heights MN 55113
4. Any allegations about acts of any corporate or other business of Defendants means that 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 ostensible scope of their authority.
5. At all relevant times, each Defendant committed acts, caused or directed others to commit the acts, or permitted others to commit the acts alleged in this Complaint; additionally, some of the Defendants acted as the agent for other Defendants, and all of the Defendants in connivance with each other acted within the scope of their agency as if acting as the agent of another.
6. Knowing or realizing that other Defendants were engaging in or planning to engage in unlawful conduct, each Defendant nevertheless cilitated the commission of those unlawful acts.
7. Each Defendant intended to and did encourage, cilitate or assist in the commission of the unlawful acts, and thereby aided and abetted the other Defendants in the unlawful conduct.
I. CTUAL BACKGROUND:
(a) In the present case, the Deed of Trust for the Property listed the borrower, as "ClearChoice Community Services Inc.," and listed the Lender, as "Caskecla Investment, “ The Caskecla Investment, was renamed Caskecla Investment and later on was closed by the Office of Thrift Supervision and the Federal Deposit Insurance Corporation who was named receiver. The Defendant JP Morgan Chase claims to be the owner of the subject property pursuant to terms of a Purchase and Assumption Agreement between the Federal Deposit Insurance Corporation as receiver. The Plaintiff dispute the Defendants Claims of ownership based on the loan being securitized. The Defendants who themselves made their employees sign as employees of the lender to put their own signatures and thus forged the documents and got it signed as a robo-signer. While doing so, the Defendants forged with several documents. The instant complaint is based on the Counts stated below in the Complaint.
II. SPECIFIC ALLEGALTIONS AGAINST THE DEFENDANTS:
(a) As the loan is securitized and there is no proof of any specific authorization having made, from the securitized owners in vor of Lender, any specific assignment or transfer done by the Federal Deposit Insurance Corporation in the absence of authorization from Securitized Owner is illegal. Lender did not follow the securitization rules and fraudulently stepped into the shoes of Securitized Owner.
(b) The note and mortgage deed were severed many years earlier to the date of assignment. Generally, if the Deed of Trust and the Note are not together with the same entity, there can be no enforcement of the Note. The Deed of Trust enforces the Note, and provides the capability for the lender to foreclose on the property. Thus, if the Deed of Trust and the Note are separated, foreclosure cannot occur: The Note cannot be enforced by the Deed of Trust if each contains a different mortgagee/beneficiary; and, if the Deed of Trust is not itself a legally enforceable instrument, there can be no valid foreclosure on the homeowners’ property. Legal precedence of recent public law cases exist for these conclusions: Respectively: Saxon vs. Hillery, CA Dec 2008, Contra Costa County Superior Court and in re Hudson, 643 S.E. 2d 485 (N.C. Ct. App 2007).
(c) As such plaintiff hereby strongly contends that the illegal act of severance of NOTE AND MORTGAGE Deed gained momentum at the very moment of the Date of the loan, coupled with an ulterior motive to dis-house the Plaintiff anyhow, is void and unenforceable, and finds no legacy in the eyes of law and also considered to be void ab initio.
(d) There are several instances of robo-signing in the Appointment of Successor Trustee and Trustee’s Deed etc
(e) A full fledged discovery is very essential so that ends of justice is not defeated.
III COUNTS
j) Count I:
SECURITIZATION:
SECURITIZATION:
a) A mortgage was formed between the Original lender and the Plaintiff herein. The original lender wanted to recoup its funds. To take advantage of this and the tax benefits of securitization it formed an SPV, a (Special Purpose Vehicle) which is just like a shell company. It also theoretically reduced the liability of the original lender to the mortgage deult. After this the two documents that the Plaintiff signed (the promissory note and the title deed) got SEPARATED. The trust deed remained with its trustee. The promissory note—the asset that pays money—was SOLD to the SPV. The original note was paid off by the SPV and the stream of payments became the property of the SPV. Hence the original lender had reimbursed its loan amount in full, immediately, when loan in question was disbursed and thus had no legal standing to the loan in question and no longer had ANY interest in the mortgage. Once a loan has been written off, it is discharge. Once a loan has been securitized, reattachment is impossible.
b) The SPV formed a new trust entity. This trust entity was defined by the IRS as a REMIC (Real Estate Mortgage Investment Conduit) which had to adhere to the laws regarding such a trust. The benefit of doing this was that when the SPV transfers the mortgages into the Trust NO TAXES MUST BE PAID ON THE TRANSFER. This makes the trust much more efficient and profitable vehicle for investors. REMICs, in turn, cannot retain any ownership interest in any of the underlying mortgages. The Trust, then, is as its name states a Conduit where money flows in from the person who pays their mortgage and out to the investor as a payment. The right to receive those payments was purchased when the security to the trust was purchased. Proceeds from that went back to the SPV who used them to purchase the mortgages from the original lender.
c) The REMIC holds all the loans together into a pooling and servicing agreement. However, because they chose to avoid the IRS tax rules for double taxing, they pass on the real party of interest/ownership of the asset to the individual shareholders. So neither the REMIC nor the Trustee may foreclose
Now comes the question who owns the mortgage then:
d) The Original Lender who took interest in the property as collateral on its loan to the Plaintiff. When the original lender sold the mortgage to the SPV its legal interest in the loan amount and collateral security was lost and extinguished, at the very moment when mortgage was sold to SPV.. Ownership of the promissory note WAS transferred to the SPV who is now the note holder. The SPV formed the REMIC trust and transferred the note into the trust, thereafter it irrevocably changed the nature of the Plaintiff’s mortgage. Hence it became a Security. Once again, the SPV transferred the note and paid taxes on the transfer. The mortgage now in the trust became for all purposes a blended group of monthly payments. These payment streams become the source of funds that the trustee pays out to investors. In essence the trustee—when certificates, stocks or bonds to the trust are sold—sells a beneficial interest in the mortgage. That is not ownership of any portion or any segment of the revenue stream but rather is simply a security.
e) Because of the tax exemption of the REMIC it is PROHIBITED from retaining any ownership of the underlying assets it no longer holds any ownership to the note on the day it is formed. The investors in the trust do not hold any interest in the note either; they only hold the security which was sold to them. So the ownership of the note EXTINGUISHED when it entered into the trust in order to obtain the flow of cash back to the original lender and the tax-preferred investment proceeds to the investors. The trust is set up and cannot take an active role in the collection of the funds. It is a shell entity ONLY. Therefore it appoints a servicer to collect the payments every month.
f) In this proceeding the servicer, Lender Chase, as claimed, presents documents to the court (or the trustee of the deed in a non-judicial foreclosure state) that state that THEY are the owner of the note and have a legal standing to foreclose. This is not true, is not legally possible, and is fraudulent. The servicer is the agent of the Trust and will use that to claim that they are foreclosing on behalf of the trust. The problem is that the Trust itself cannot hold ownership of the note because of its tax-preferred REMIC status! What about if they state that they are representatives of the investors? The investors have no ownership interest in the underlying mortgages, they only have ownership interest in the securities that were issued to fund the trust! So who does Plaintiff owe? The answer is that the Plaintiff does not owe anything to Lender. The process of a note becoming a Security is final and irreversible. One cannot unscramble the eggs. A Security cannot be used to foreclose. The Kansas Federal Court Ruling decided once a note was securitized it was no longer a note and would NEVER be a note again. It becomes a Security. (Landmark National v. Kesler, 2009 Kan. LEXIS 834.)
g) Plaintiff’s loan was immediately sold and securitized after closing by the original lender and placed into a Pooling and Servicing Agreement and converted into a Security of a Pass through Vehicle.
h) Under the terms of the Pooling and Servicing Agreement of the original lender, the servicer can buy back the Note as a non-performing non-secured debt like collection agencies that buy non-performing credit card debts. This purchase is of a discharged asset and cannot be re-adhered to the original Mortgage, since the original Note was a one-of-a-kind instrument, not part of the discharged asset. Therefore the purchaser of the discharged asset can never be the holder-in-due-course of the original Note.
i) Under the UCC, the original Promissory Note is the only valid and legally binding chain of title for the Note. The numerous attempts by Defendant Lender to claim ownership of the original Note by the purchaser of the discharged asset is fraudulent and is characterized as “reverse engineering.” There is no perfection of title. Plaintiff’s Note was unduly confusing and written in such a manner as to confuse Plaintiff and for the purpose of drawing Plaintiff into a deult.
j) At the time Plaintiff signed the Note and Mortgage, he was unknowingly converting his property into an asset of a MBS and was deliberately induced into signing a Negotiable Instrument, which was never intended as such, but was intended as collateral for a MBS. The alleged Note in question started its life as a negotiable instrument, similar to a check. The negotiation and enforceability of the Note is governed by Article 3 of the Uniform Commercial Code. The note that had been executed with the Mortgage became part of a pool of mortgages losing its individual identity as a note between a lender and a borrower; it merged with other unknown notes as a total obligation due to the investor or investors; it is no longer a negotiable instrument, rather, collateral for a federally regulated Security under the confines of the SEC.
COUNT II:
DISCOVERY:
(a) In order to bring out the truth and to prove the frauds of the Defendants full fledged discovery is very essential, for which the Plaintiff would also like to move a motion. Some of the discoveries have been enumerated below. Apart from the below mentioned discoveries there are other discoveries also for which the Plaintiff would move a motion.
· Who are the real Owners?
· If Lender is claiming to be the owner of the subject property, he should produce the proof of his ownership.
· Lender must produce the Pooling and Servicing Agreement.
COUNT III:
FRAUDS COMMITTED BY THE DEFENDANTS:
(A) EXHIBIT A: MORTGAGE DEED AND EXHIBIT A1 FRAUDS COMMITTED BY CHASE HOME FINANCE LTD:
(i) There is no assignment by the Original Lender in vor of the Foreclosing Lender. Thus, if Lender is claiming to be the owner of the subject property, it should produce the original promissory note and the Mortgage Deed duly signed by the Plaintiff, which in turn will proof their being the real owners.
(ii) Under the circumstances stated above, the Plaintiff contests that the Defendant is neither the Real Party in Interest, nor does have any kind of legal standing.
(iii) A longstanding and unchanged bedrock principle in American jurisprudence holds that a mortgagee has no rights without the note. Carpenter v. Longan, 83 U.S. 271, 274, (1872) (“the note and mortgage are inseparable…, the assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity.”)
(a) Not one of the exhibits mentioned in this Complaint presents one assignment in vour of Lender, and under this umbrella of ambiguity – to put it mildly, Defendant cannot establish a right to foreclose, or the right to prosecute the Unlawful Detainer complaint.
(b) The Defendant is a habitual offender of committing mortgage related frauds and there are several complaint lodged against them and is also reported on google which is exhibited here as Exhibit A1.
EXHIBIT B: LOAN MODIFICATION:
The Plaintiff has approached the Defendant for modification of his loan. The Defendant constantly and repeatedly continued to talk about the loan modification of the Plaintiff’s loan. Later on the Defendant with a malafide intent in spite of loan modification conducted a foreclosure sale to grab Plaintiff’s property. The defendants with ulterior motive used a dilatory modified technique to grab the subject property.
(A) EXHIBIT C: FRAUD BY ATTORNEY, SHAPIRO AND ZIELKE:
The Attorney of the Defendant’s are also helping the Defendant’s in committing the fraud by not verifying the authenticity of the documents and signing it without application of their mind which tantamouts to violation of truth. The Attorney without verifying the contents of the documents had signed the documents, which in turn is causing grave hardships for the Plaintiff. The Attorney also misled the Court knowingly, by making an impression of the Defendants being the real and actual owner of the property. The Attorney of the Defendant is also involved in making forged documents in several cases which has been reported in Google.
COUNT IV
COMMON LAW FRAUD AND INJURIOUS LSEHOOD
Plaintiff incorporate by this reference each paragraph of this Complaint as if set forth fully herein.
(a) The publicly filed lse mortgage assignments enabled all of the Defendants to perpetrate the fraudulent foreclosure.
(b) All of the Defendants knew or should have known the material representations were lse. The material representations to the Plaintiff were made so that the Court and the Plaintiff would believe that the Defendants had a legitimate claim in the property. The Plaintiff relied on such and the Plaintiff was injured as a result with the cing of foreclosure litigation. Defendants fraudulently concealed their wrongdoings and prevented Plaintiff from discovering their cause of action.
(c) Plaintiff has been injured by the fraud by Defendants and has remained in ignorance of it without any ult or want of diligence or care on his part.
(d) Defendants made many misleading statements that the loan contained certain terms desirable to the consumer when it did not.
(e) Defendants’ use of deceit or trickery caused Plaintiff to act to their disadvantage.
COUNT V:
VIOLATIONS OF THE IR DEBT COLLECTIONS PRACTICES ACT ("FDCPA") 15 USC § 1692
Plaintiff incorporate by this reference each paragraph of this Complaint as if set forth fully herein.
(a) Defendants misrepresented the character and legal status of the unlawful debt in violation of 15 USC 1692(e)(2), by sending lse correspondence to Plaintiff and third persons and assisting in the filing of an Dispossessory action in Gwinnett County.
(b) Defendants threatened to take and did take actions that they could not legally take without the lsities committed upon the Plaintiff in violation of 15 USC 1692(e)(5).
(c) Defendants engaged in conduct that disgraced the Plaintiff in violation of 15 USC 1692(e)(7), by sending lse correspondence to Plaintiff and third persons and assisting in the filing of a Dispossessory action in Gwinnett County.
(d) Defendants stated numerous times that they were the lawful owners in interest of the debt or empowered to speak on behalf of the owner in interest, yet knew or should have known that they were not, and as such violated 15 USC 1692(e)(5).
(e) All Defendants engaged in unir and deceptive means and attempts to collect the alleged debt in violation of 15 USC 1692 (f).
(f) Defendants attempted to collect the alleged debt in a manner and amount not authorized by the original MORTGAGE and Note in violation of 15 USC 1692(f)(1).
(g) Defendants threatened to unlawfully repossess the Plaintiff’s property in violation of 15 USC 1692(f)(8).
(h) Plaintiff suffered actual damages from these violations.
(i) Pursuant to 15 USC 1692(k), Plaintiff are entitled to actual damages, statutory damages as set forth herein, and reasonable attorney fees and costs.
(j) Because the conduct of the Defendants was frequent and persistent and because the nature of the violations of the FDCPA were so egregious and because the FDCPA violations were a part of a deliberate scheme, Plaintiff are entitled to the maximum possible relief permitted under 15 USC 1692k(a).
In the case of of America National Trust & Savings Association v. Reidy, 15 Cal. 2d. 243, 248 (1940), the Court held:
“It is the general rule that courts have power to vacate a foreclosure sale where there has been fraud in the procurement of the foreclosure decree or where the sale has been improperly, unirly or unlawfully conducted, or is tainted by fraud, or where there has been such a mistake that to allow it to stand would be inequitable to purchaser and parties. Sham bidding and the restriction of competition are condemned, and inadequacy of price when coupled with other circumstances of fraud may also constitute ground for setting aside the sale”. (Haley v. Bloomquist, 204 Cal. 253 [268 Pac. 365]; Dealey v. East San Mateo Land Co., 21 Cal. App. 39 [130 Pac. 1066]; Bernheim v. Cerf, 123 Cal. 170 [55 Pac. 759]; Packard v. Bird, 40 Cal. 378; Goodenow v. Ewer, 16 Cal. 461 [76 Am. Dec. 540].).
In case of BAC Home Loans Servicing & CountryWide Home Loans Servicing v. Bill R. Stentz, CIVIL DIVISION: CASE NO. 51...2009-CA...7656-ES; DIVISION J4, it was held that “The Plaintiff has iled to plead in its complaint that it is the owner of the mortgage; and contrary to Plaintiff's allegations, it is not the holder of the mortgage as that instrument is vested -in -the name of MERS and there is no attachment of an assignment to the Plaintiff…… Plaintiff must specifically identify both the owner and holder of the note and mortgage. It is not enough for Plaintiff to only plead that it holds the note and mortgage …… Plaintiff must, ultimately prove ownership as well, see: Dykes v. Trust Savings, 567 So. 2d 958 (Fla. 2nd DCA, 1990) which holds that to grant a judgment of foreclosure in vor of Plaintiff the trial court would have to find among other things, that the Plaintiff owned the mortgage. Dykes at page 959…… If Plaintiff is not the owner of the note it must specifically plead ultimate cts, identifying the owner and Plaintiffs authority to act as a representative for same attaching such proof of said representative authority whether it be by power of attorney or other written agency agreement…….”.
K) In the alternative, Defendants should be estopped from relying on any statutes of limitations. Defendants have been under a continuing duty to disclose the true character, nature, and quality of their financial services and debt collection practices. Defendants owed Plaintiff an affirmative duty of full and ir disclosure, but knowingly iled to honor and discharge such duty. The Plaintiff claims are subject to equitable tolling because defendants' alleged misrepresentations that Lender was the owner and holder of their notes were concealed by the defendants and could not be reasonably discovered by plaintiffs.
L) The plaintiff requests the plea for a ir trial by jury and also requests the court to discover true cts by sending proper discovery to have a free and ir trial.
M) All the defendants, including the foreclosing lender, are the habitual offenders. In United States there are numerous cases going on against them on the various ground including fraud.
N) The borrower wish to declare the loan to be null and void and demand treble damages for the ce value of the note. The borrower has been the subject of various kinds of fraud by the lender. During the appraisal the original loan transaction and application were lsified by the ‘lender’ (the party named at closing as the beneficiary under the Trustee or the mortgagee, and the party named on the promissory note that was allegedly secured by the mortgage or terms of the deed of trust), its agents, servants and employees as to ir market value of the property, the borrower’s ability to repay and the prospective terms and fees associated with the loan. The borrower reasonably relied upon this appraisal, believing that the ‘lender’ was at risk and had performed due diligence and conformed with underwriting practices conforming with industry standards, when in ct the ‘lender’ was not at risk, the loan was in essence ‘table funded’ and the real lender was hidden from the borrower.
O) The plaintiff requests the plea for a ir trial by jury and also requests the court to discover true cts by sending proper discovery to have a free and ir trial.
JURISDICTION AND VENUE
a) Jurisdiction of this Court is under 28 U.S.C. § 1331, 12 U.S.C. 2601 et seq. (Real Estate Settlement Procedures Act); and 15 U.S.C. § 1692 et seq. (ir Debt Collection Practices Act), and over the statutory and common-law violations of Minnesota and common law.
b) Venue is proper in this district because all defendants conducted business in Minnesota. and the subject Note and Mortgage was executed in Minnesota.
WHEREFORE, Plaintiff prays judgment against Defendants as follows:
(a) Plaintiff seeks a declaratory judgment against Defendants stating that Defendants have violated Plaintiff’s rights and that the Defendants had and have no right to hold mortgages in the name of and/or foreclose on the Plaintiff’s property and that the Defendants are entitled to no further payments from the Plaintiff or recognition in Plaintiff’s Title to his property.
(b) All resultant actions from foreclosure be nullified.
(c) The Plaintiff are entitled to a reformation of these notes as unsecured notes or as partially or wholly discharged notes and a right to reformation of the contracts with the persons or entities who are owed obligations because of funding of the loans of the Plaintiff.
(d) Judgment against Defendants as Jointly and Severally Liable for all issues in excess of $100,000.00.
(e) Costs and attorneys fees pursuant to 18 USC § 1964(c) and relevant Minnesota law;
(f) Actual and statutory damages for violations of FDCPA pursuant to 15 USC § 1692(k) and relevant Minnesota law;
(g) Costs and Attorneys Fees pursuant to 15 USC § 1692(k) and relevant Minnesota law;
(h) Rescission of the entire Mortgage and note amounting to clear title to property with fixtures as a result of the aforementioned, and
(i) Damages for the Unir and Deceptive Acts and Practices and
(j) Damages in the amount of three times the interest paid and clear title to the property stemming from the exorbitant interest, and
(k) Judgment against Defendants for return of the down payment, and other payments, as well as interest on the above amount, and
(l) Cost of litigation as provided in Title 15 United States Code, Section 1601 et. seq.,
(m) Pre-Judgment and post judgment interest at the maximum rate allowable by law;
(n) Compensatory damages;
(o) Punitive damages as allowed by law;
(p) Set aside foreclosure, trustee sale and eviction & stop all foreclosure/eviction proceedings
(q) Such other and further relief available under all applicable under state and federal laws and any relief the court deems just and appropriate;
TRIAL BY JURY
Plaintiff request trial by Jury
VERIFICATION
COMES NOW the Plaintiff in the titled action who states under oath that the information contained in the Answer is true to the best of her knowledge information and belief.
Respectfully submitted this, 25th day of July, 2015 year
Plaintiff in Pro Se,
ClearChoice Community Services Inc
704 E 134th St Burnsville,
MN 55337
Telephone no.9522220251
State of Minnesota
County of DAKOTA
SWORN to and SUBSCRIBED before me, the undersigned authority, on
The, 25th day of July, 2015 year.
By: _______________________________
Plaintiff in Pro Se,
ClearChoice Community Services Inc.
4816 Nicollet Ave S
Minneapolis MN 55337
________________________________________
Notary Public, State of Minnesota
Case No.:
COMPLAINT FOR:-Fraud
Wrongful CONTRACT FOR DEED CANCELLATION
TO SET ASIDE FORECLOSURE, Trustee’S SalE AND ACTIONS LLING THEREUPON
SECURITIZATION
DISCOVERY
TRUSTEE DEED UPON SALE VOID
CANCEL ASSIGMNET OF DEED OF TRUST
Complaint of Plaintiff Against Defendant’s Page 1