UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE KNOXVILLE DIVISION

Similar documents
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT KNOXVILLE

Case 3:11-cv BRW Document 1 Filed 10/03/11 Page 1 of 12 FILED

IN THE COMMON PLEAS COURT OF FAIRFIELD COUNTY, OHIO. Plaintiff, : Case No. 11 CV 233. v. : Judge Berens

Gurevich v JP Morgan Chase 2013 NY Slip Op 33290(U) July 22, 2013 Supreme Court, Richmond County Docket Number: /13 Judge: John A.

Div.: NOTICE OF RULE 120 HEARING April 17, :30 AM

Case: 1:13-cv Document #: 1 Filed: 09/13/13 Page 1 of 9 PageID #:1

REQUEST FOR LEAVE TO AMEND COMPLAINT. accordance with the amended complaint filed herewith.

CHAPTER DEEDS OF TRUST

Order: Order Regarding Motion to Dismiss for Failure to State a Claim

Case 2:10-cv ODW -FFM Document 29 Filed 04/12/11 Page 1 of 101 Page ID #:560

United States Bankruptcy Court. Northern District of California ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

GREATER ATLANTIC LEGAL SERVICES, INC.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF XXXXXXXXXX

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION MEMORANDUM

Referred to Committee on Judiciary. SUMMARY Revises provisions relating to the Foreclosure Mediation Program. (BDR 9-488)

FILED: RICHMOND COUNTY CLERK 06/03/ :22 PM INDEX NO /2015 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 06/03/2015

IN THE UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI. SAMUEL M. BROTHERS and LORA BROTHERS

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION at LEXINGTON

GREATER ATLANTIC LEGAL SERVICES, INC.

Land Trust Agreement. Certification and Explanation. Schedule of Beneficial Interests

UNITED STATES BANKRUPTCY COURT DISTRICT OF ARIZONA TUCSON DIVISION

UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK x In re: Chapter 11

STATE OF MICHIGAN COURT OF APPEALS


PlainSite. Legal Document

SECURITY AGREEMENT :v2

IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON October 13, 2010 Session

Case VFP Doc 543 Filed 03/10/16 Entered 03/10/16 18:15:46 Desc Main Document Page 1 of 13

IN THE UNITED STATES BANKRUPTCY COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION ) ) ) ) ) )

Telephone: Facsimile: NOTICE OF RULE 120 MOTION FOR ORDER AUTHORIZING SALE RESPONSE DEADLINE November 16, 2018

Filing # E-Filed 09/22/ :42:05 PM

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT KNOXVILLE

ANSWER OF RESPONDENT JUDGE JOHN A. BESSEY. Now comes Respondent Judge John A. Bessey (Respondent) and for his answer to the Complaint


Case 2:15-cr SVW Document 173 Filed 03/31/17 Page 1 of 61 Page ID #:2023

Signed July 27, 2018 United States Bankruptcy Judge

SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C FORM 8-K CURRENT REPORT

Case 1:18-cv Document 1 Filed 04/26/18 Page 1 of 10 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

GREATER ATLANTIC LEGAL SERVICES, INC.

PRELIMINARY STATEMENT

Bank of N.Y. Mellon v Wass 2015 NY Slip Op 30727(U) May 1, 2015 Supreme Court, Suffolk County Docket Number: Judge: Arthur G.

PROMISSORY NOTE SECURED BY DEED OF TRUST. Date: City of Milpitas, CA 95035

Case 1:17-cv DPG Document 48 Entered on FLSD Docket 03/30/2018 Page 1 of 5 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

Case Document 763 Filed in TXSB on 11/06/18 Page 1 of 18

thejasminebrand.com thejasminebrand.com

Case Doc 554 Filed 08/07/15 Entered 08/07/15 18:36:50 Desc Main Document Page 1 of 15

GREATER ATLANTIC LEGAL SERVICES, INC.

GREATER ATLANTIC LEGAL SERVICES, INC.

GREATER ATLANTIC LEGAL SERVICES, INC.

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, NORTH CENTRAL DISTRICT ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE

Case 1:11-cv LG -RHW Document 32 Filed 12/08/11 Page 1 of 11

Case pwb Doc 1093 Filed 11/20/14 Entered 11/20/14 11:00:52 Desc Main Document Page 1 of 8

Obligation of good faith.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON

SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF STANISLAUS

Case 5:18-cv C Document 53 Filed 10/26/18 Page 1 of 79 PageID 669

SECURITY SHARING AGREEMENT. THIS SECURITY SHARING AGREEMENT (this Agreement) is made as of June 25, 2014.

SECURITY AGREEMENT AND ASSIGNMENT OF ACCOUNT

KARL and FABIANA STAUFFER, Plaintiffs/Appellants, PREMIER SERVICE MORTGAGE, LLC, et al., Defendants/Appellees. No. 1 CA-CV

CHASE ISSUANCE TRUST FOURTH AMENDED AND RESTATED TRUST AGREEMENT. by and between. CHASE CARD FUNDING LLC, as Transferor and Beneficiary.

SUMMARY OF YOUR LEGAL RIGHTS AND OPTIONS IN THE SETTLEMENT

Avoiding Probate with Small Estates with Real Property Packet

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION : : : : : : : : : : : : ORDER

LAND TRUST AGREEMENT W I T N E S S E T H

FILED: NASSAU COUNTY CLERK 07/11/ :53 AM INDEX NO /2017 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 07/11/2018

UNITED STATES DISTRICT COURT DISTRICT OF OREGON

UNITED STATES BANKRUPTCY COURT DISTRICT OF DELAWARE CASE # ADVERSARY # 7001(2)

Third District Court of Appeal State of Florida, January Term, A.D. 2012

IN THE COURT OF COMMON PLEAS OF CARBON COUNTY, PENNSYLVANIA CIVIL DIVISION

PROMISSORY NOTE SECURED BY DEED OF TRUST Condominium Conversion BMR Program

Ventures Trust 2013-I-H-R v Tsimmer 2017 NY Slip Op 30570(U) March 23, 2017 Supreme Court, New York County Docket Number: /15 Judge: Barbara

Court of Common Pleas

A federal court authorized this notice. This is not a solicitation from a lawyer.

Declaration of Trust Establishing, Nominee Trust

Illinois Official Reports

BA CREDIT CARD TRUST FOURTH AMENDED AND RESTATED TRUST AGREEMENT. dated as of October 1, between

FILED: KINGS COUNTY CLERK 04/21/ :00 PM INDEX NO /2015 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 04/21/2017

mg Doc 8303 Filed 03/13/15 Entered 03/13/15 16:14:27 Main Document Pg 1 of 23

(Reprinted with amendments adopted on May 17, 2017) SECOND REPRINT S.B. 33. Referred to Committee on Judiciary

Senate Bill No. 306 Senators Ford and Hammond

NC General Statutes - Chapter 44A Article 2 1

Case 1:14-cv JCC-IDD Document 7 Filed 10/14/14 Page 1 of 9 PageID# 39

UNITED STATES BANKRUPTCY COURT NORTHISN DISTRICT OF CALIFORNIA

mkv Doc 458 Filed 04/12/17 Entered 04/12/17 14:12:28 Main Document Pg 1 of 5 : : : : : : : )

DEED OF TRUST. TITLE SERVICES, LLC., an Idaho Limited Liability company (dba Lawyers Title of Treasure Valley), herein called TRUSTEE, and

rdd Doc 381 Filed 09/01/17 Entered 09/01/17 17:18:41 Main Document Pg 1 of 27

SECURITY AGREEMENT. NOW, THEREFORE, the Debtor and the Secured Party, intending to be legally bound, hereby agree as follows:

BYLAWS OF WOODBRIDGE PARK PROPERTY OWNERS ASSOCIATION, INC., A NORTH CAROLINA NON-PROFIT CORPORATION

IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI BURNETTE AVAKIAN, AS EXECUTRIX OF THE ESTATE OF NORAIR AVAKIAN, DECEASED NO.

STATE OF MICHIGAN COURT OF APPEALS

scc Doc 812 Filed 02/10/12 Entered 02/10/12 16:44:16 Main Document Pg 1 of 5

GREATER ATLANTIC LEGAL SERVICES, INC.

A federal court authorized this notice. This is not a solicitation from a lawyer.

AGREEMENT AND DECLARATION OF TRUST

Case Doc 116 Filed 04/19/11 Entered 04/19/11 14:14:10 Desc Main Document Page 1 of 18 UNITED STATES BANKRUPTCY COURT DISTRICT OF MINNESOTA

GREATER ATLANTIC LEGAL SERVICES, INC.

Transcription:

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

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 47-3-101, et seq., and 47-3-101, 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

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. 47-3-302, 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

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

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

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

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

mortgage payments pursuant to T.C.A. 25-1-105; 7. For all other relief the Court may deem just and proper. Respectfully submitted this 22 nd day of January, 2013. /s/ J. Myers Morton J. Myers Morton BPR#: 013357 MORTON & MORTON, PLLC Attorney for Plaintiffs 1518 N. Broadway Knoxville, Tennessee, 37917 Telephone: (865) 523-2000 Facsimile: (865) 546-4860 myersmorton@comcast.net 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 email, 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 37203 This 22 nd day of January, 2013. s/ J. Myers Morton 8