UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE KNOXVILLE DIVISION

Size: px

Start display at page:

Download "UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE KNOXVILLE DIVISION"

Clemence Long
5 years ago
Views:

1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE KNOXVILLE DIVISION HOLLIS H. MALIN, JR. and ) LINDA D. MALIN, ) ) Plaintiffs, ) ) v. ) No. 3:11-cv-554 ) JP MORGAN; et al., ) ) Defendants. ) AMENDED COMPLAINT 1. COME NOW plaintiffs, Hollis H. Malin, Jr. and Linda D. Malin, (hereinafter plaintiff and/or borrower ), through counsel and file this Amended Complaint for damages, release of lien, interpleader and other relief, against Defendant JPMorgan Chase Bank, N.A., for itself and as successor by merger to Chase Home Finance, LLC (hereafter Chase and/or defendant ) and for their causes of action against the defendant would show as follows: I. PARTIES 2. Plaintiffs, husband and wife, are citizens and residents of the State of Tennessee, residing at 809 Dry Gap Pike, Knox County, Knoxville, Tennessee. 3. Defendant JPMorgan Chase Bank, N.A. is a National Banking Association organized under the laws of the United States with apparently its principal place of business in Columbus, Ohio, and doing business in Tennessee. All pleadings filed herein may be served on counsel of record. 4. Washington Mutual Bank, FA ( WAMU ) was formerly engaged in the business 1

2 of banking. WAMU was insured by the Federal Deposit Insurance Corporation ( FDIC ), which closed WAMU in September 2008 and purportedly transferred it s assets to one or more of the Defendants. II. FACTUAL BACKGROUND 5. Plaintiffs entered into a contract with WAMU on October 23, 2003, for a loan numbered ******7992, in the amount of $525,000.00, to purchase property located at 809 Dry Gap Pike, Knoxville, Tennessee, granting to the lender a note and deed of trust. These documents are herein referred to as the Contract. (See note and trust deed attached to the original complaint as Collective Exhibit A.) Said trust deed states Lender is a beneficiary under this security instrument. III. FIRST CAUSE OF ACTION FOR MISTAKEN AND ERRONEOUS REPRESENTATIONS AS TO STANDING TO FORECLOSURE 6. In pursuing non-judicial foreclosure, defendant has represented that they have the right to payment under a note and further have the right to conduct a non-judicial foreclosure sale as being in place of the original lender, and that they are also beneficiary of the trust deed holding said rights to foreclose. 7. However, upon information and belief, plaintiffs allege that the true facts are that defendants are not and were not in possession of the note secured by the subject property nor are they holders of a note entitled to payment as allowed under T.C.A , et seq., and , et seq., (Articles 3 and/or 9 of the Uniform Commercial Code), and otherwise and therefore, the defendant is proceeding to foreclose non-judicially without right under law. 2

3 8. Plaintiff is informed and believes, that thereupon alleges, that defendant MISTAKENLY AND ERRONEOUSLY claimed they had the right to foreclose on the subject property belonging to plaintiff, when in fact they did not have the lawful right. 9. On information and belief, plaintiffs allege that prior to the closure of WAMU by the FDIC, the Contract was assigned to and is currently held by WAMU Mortgage Pass-Through Certificates 2003-AR3 Trust. 10. Moreover, based on the business custom of WAMU, the Contract may have been further transferred and/or assigned as part a folio of commercial paper of Asset Backed Certificates or Trusts, in which the original legal debt instruments are held or have been repurchased from such Asset Backed Certificates or Trusts as: Alternative Loan Trust, CHL Mortgage Pass-Through Trust, CWABS Asset-Backed Certificates Trust, CWABS Inc., Asset-Backed Certificates, CWALT, Inc. Alternative Loan Trust, CWALT Inc Mortgage Pass- Through Certificates, CWHEQ Home Equity Loan Trust, CWMBS Inc.-CHL Mortgage Pass- Through, or a Master Trust or SPV (Special Purpose Vehicle) for which defendant, or a prior purchaser or maker of the loan has retained possession of the instruments of indebtedness. 11. Since only the lender as note holder or successor to the lender as note holder can be the beneficiary under the deed of trust, and since defendants have failed and refused to produce evidence that the Contract as been assigned to one or any of them, defendants are seeking to wrongfully foreclose. 12. Pursuant to T.C.A , absent being holder in due course or holder of the Debt Instruments, defendant lacks standing to enforce the rights of contract in this case and foreclosure against plaintiff s property by defendant is a mistaken and erroneous act jeopardizing 3

4 the title and possession of the plaintiffs to their property. 13. Accordingly, plaintiffs demand the right to have produced for the Court the original Deed of Trust and Promissory Note for examination by the plaintiffs and the Court for evidence of such markings, or an allonge, attached or reduced to computer disc showing what exchange, sale or transfer of the loan has been made by one or more of the holders of these instruments since the making of the loan and who actually is now the present legal and actual holder of this debt. 14. WHEREFORE, PREMISES CONSIDERED, plaintiffs pray the Court for the following relief: That defendant, individually and/or collectively, be prohibited from foreclosure of the subject property, and that plaintiffs be awarded any and all damages to which they may be entitled, including interest, cost and fees. IV. SECOND CAUSE OF ACTION FOR QUIET TITLE 15. Plaintiffs are the owners of the subject property by Deed executed by the Grantor, granting the subject property to plaintiffs, and recorded in the official records of the Knox County Register of Deeds. 16. Plaintiffs seek to quiet title against the claims of defendant. 17. Attached as Exhibit B hereto is a PDF document that is a scan of the purported original promissory note. 18. When a document is scanned into a computer, the computer sees the document as one image or layer. 19. When Exhibit B is opened, a program called Adobe Illustrator indicates that the 4

5 document is compiled from at least 4 different documents or "layers". When these layers are toggled on and off, different parts of the signature and text disappear in different places. 20. There is a question whether or not Exhibit B is a scan of plaintiffs original promissory note. 21. Defendant holds itself out as the holder of plaintiffs original promissory note as bearer paper and therefore entitled to enforce plaintiffs deed of trust of record in the Knox County Register of Deeds. Defendant purports to therefore be able through non-judicial foreclosure to obtain fee simple ownership of plaintiffs home, when in fact, plaintiffs allege that defendants have no right, title, interest or estate in the subject property, and no right to conduct a foreclosure sale as either beneficiary or trustee, and plaintiffs interest is adverse to defendants claims that they have a right to ownership and to conduct a sale of the subject property. 22. Plaintiffs therefore seek a judicial declaration that not only is the purported original promissory note in the possession of defendant a computer forgery, that defendant is obstructing the administration of justice by espousing a forged promissory note as the original, that defendant therefore does not have standing to foreclose on the subject deed of trust, that the title to the subject property is vested in plaintiffs alone, and that defendant be declared to have no estate, right, title, or interest in the subject property and that said defendant be forever enjoined from asserting any estate, right, title or interest in the subject property. V. 5

6 THIRD CAUSE OF ACTION FOR INTERPLEADER 23. That plaintiffs have obtained a discharge in bankruptcy of their debt and obligations arising under the above referenced promissory note in the U.S. Bankruptcy Court of Eastern Tennessee docket number 3:11-bk-3075, and defendant will be unable to obtain a money judgment against plaintiffs for any amount as a result. 24. That the original monthly mortgage payment amount was $1,749.57, per month, and plaintiffs admit they while they are no longer legally liable under the provisions of their promissory note and deed of trust to make that monthly payment, they feel they owe at least part of the purchase price should they prevail and Chase be found to not have standing to foreclose. That starting February 22, 2013, plaintiffs interplead one (1) monthly payment of $1,749.57, followed on the 22 nd of each month thereafter with monthly payment payments of $1,749.57, to the court, and will pray for a setoff for their damages. 25. That to the extent plaintiffs are successful in proving Chase does not have standing to foreclose on the subject deed of trust, the Court determine to whom the funds are owed, including returning the funds to plaintiffs. 26. That to the extent plaintiffs are unsuccessful and it be finally determined that Chase has standing to foreclose, that all funds paid into the court be returned to plaintiffs. WHEREFORE, PREMISES CONSIDERED, plaintiffs pray that defendant be prohibited from foreclosure of the subject property and that plaintiffs be awarded any and all damages to which they may be entitled, including interests, costs and fees. 6

7 JURY DEMAND Plaintiffs demand trial by jury to determine if the original promissory note is a computer forgery and if defendant has standing to foreclose on the subject property as required under the 7 th Amendment to the Constitution of the United States of America. PRAYERS WHEREFORE, PLAINTIFFS PRAY FOR JUDGMENT AGAINST DEFENDANT AS FOLLOWS: 1. That the foreclosure or attempted foreclosure is deemed illegal, void and/or be set aside; 2. That the court declare that the title to the subject propertyis vested into the plaintiffs alone, that the defendant herein be declared to have no estate, right, title or interest in the subject property and that said defendant be forever enjoined from asserting any estate, right title, or interest in the subject property adverse to plaintiffs therein. 3. A permanent injunction precluding defendant from engaging in the wrongful conduct identified herein. 4. For compensatory damages against defendants not less then $500,000.00; 5. To the extent defendant is a party of the computer forgery for punitive and/or exemplary damages against defendants in the sum according to proof at trial, 6. That defendant be required to interplead and settle their rights to said monthly, mortgage payments and that plaintiff may be at liberty to pay the same into the Court; That plaintiffs be awarded a setoff against the interplead, monthly 7

8 mortgage payments pursuant to T.C.A ; 7. For all other relief the Court may deem just and proper. Respectfully submitted this 22 nd day of January, /s/ J. Myers Morton J. Myers Morton BPR#: MORTON & MORTON, PLLC Attorney for Plaintiffs 1518 N. Broadway Knoxville, Tennessee, Telephone: (865) Facsimile: (865) CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing document has been furnished to the following by the Court s ECF system, by , and placing same in the U. S. Mail, postage prepaid and addressed as follows: Michael D. Hornback Wyatt, Tarrant & combs, LLP 2525 West End Avenue, Suite 1500 Nashville, Tennessee This 22 nd day of January, s/ J. Myers Morton 8

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT KNOXVILLE

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT KNOXVILLE HOLLIS H. MALIN, JR. and ) LINDA D. MALIN ) ) Plaintiffs, ) ) v. ) No. 3:11-CV-554 ) JP MORGAN CHASE BANK, N.A., as ) successor in