Beruflich Dokumente
Kultur Dokumente
Plaintiffs,
vs.
COUNTRYWIDE BANK, FSB;
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.;
BAC HOME LOANS SERVICING, LP,
FKA COUNTRYWIDE HOME LOANS
SERVICING, LP; BANK OF AMERICA,
N.A., successor by merger to BAC HOME
LOANS SERVICING, LP, FKA
COUNTRYWIDE HOME LOANS
SERVICING, LP; Cynthia Santos, an
individual; and Does 1-5, inclusive,
Defendants.
COMES NOW, Jerry Lee Gaskins and Edith Magliore, by and through their
attorney of record, Laura M. Rys, Esq., NJ Bar Id 012381993, (hereinafter,
Plaintiffs), complaining and alleging as follows:
Page
1
I.
1.
INTRODUCTION
declaratory relief with regard to a federally judicially created rule of law. Put
simply, the beneficial interests in the Promissory Note and the Mortgage have
been irrevocably split, rendering the Mortgage in this case unenforceable
and the NOTE unsecured, but still enforceable.
2.
Worse, MERS and BAC Home Loans and their agents have
engaged in outright fraud to appear to have the right, title and authority they
claim while actively attempting to sell the real property the Mortgage used to
secure.
II.
3.
PARTIES
Plaintiffs Gerry Lee Gaskins and Edith Magliore (Plaintiffs) are both
citizens of the State of New Jersey, Essex County, who, at all times relevant to this
Verified First Amended Complaint, has been the recorded owner of the real property
located at 225 Hartshorn Drive, Short Hills, NJ 07078-3225.
4.
Savings Bank who merged with the Red Oak Merger Corporation in 2008, thereafter
ceasing to exist.
5.
Inc. (MERS) is a corporation organized and existing under the laws of Delaware, its
principal place of business located at 1818 Library Street, Suite 300, Reston, VA
20190.
Page
2
6.
Defendant
BAC
HOME
LOANS
SERVICING,
LP,
FKA
Association, organized and operating under the National Bank Act, claiming status as
successor by merger to BAC, with BofAs principle place of business located at 100
North Tryon St., 18th Fl, Charlotte, North Carolina, 28255.
9.
reside in the State of California, employed by Defendant MERS, and is sued in her
individual capacity as citizen of the State of California.
10.
numerous individual defendants who have taken culpable actions as agents, assigns,
attorney in fact, and authorized representatives of other named, corporate defendants,
so Plaintiff names those Defendants as DOES 1-5.
III.
11.
This Court has Subject Matter jurisdiction over the claims in this case
Page
3
12.
This Court has further jurisdiction in this case with regard to all
Defendants under and pursuant to 28 U.S.C., 1332 and Article III, Section 2, of the
United States Constitution, diversity of jurisdiction, as follows: MERS & BAC because
MERS is organized and operating from Delaware, BAC is organized and operating
from the State of Texas, with its new merged into corporation, Defendant Bank of
America, N.A being based out of Triton, North Carolina, and further being a National
Association, a creature of federal law organized and operating under the National
Bank Act, Defendants SANTOS and UNSWORTH are citizens of the State of
California, with UNSWORTH an official California State notary public, and the
Plaintiffs are a Citizen of the State of New Jersey.
13.
This Court has further jurisdiction in this case under and pursuant to 28
U.S.C. 1331 and 1332, with regard to all Defendants, as a federally judicially
created rule law forms an essential element, substantial ingredient and/or a potential
ingredient of the original cause in this case.
14.
This Court has further jurisdiction in this case with regard to all
personal jurisdiction over all Defendants, and Venue is proper, as each could be
subjected to the jurisdiction of New Jersey State, the district this Court, Plaintiffs, and
the Subject Property are all located.
IV.
FACTUAL ALLEGATIONS
Page
4
16.
Plaintiffs are the recorded owner of the real property at issue in this case,
18.
solely as nominee for CWB, and there are no documents on record which evidence
Defendant MERS having any interest whatsoever in the Plaintiffs NOTE.
19.
On October 24, 2007, the Mortgage was recorded in book 12095, page
3528, under Instrument No. 7128773, in the Essex County Recorders Office. Id.
20.
sell Plaintiffs loan into a securitization transaction involving the pooling of a vast
number of loans, but failed to comply with numerous mandatory legal and contractual
requirements to actually do so.
21.
On May 17, 2011, the AOM was recorded under Instrument No.
MERS own CEO, R.K. Arnold testified, under oath, that MERS holds no beneficial or
other interest in the NOTEs the Deeds of Trust which it is named the nominee
beneficiary are an incident to:
By Mr. Wooten: But, I mean, your whole MERS as mortgagee
system is built upon the premise that you never make a loan?
Answer R.K.: We never make a loan.
Page
6
By Mr. Wooten: And you never have the right to collect any
money on any mortgage loan?
Answer R.K.: Do not.
Deposition at page 96
By Mr. Wooten: I want to ask you again, is it your position
that your company owns the lien?
. . .
Answer R.K.: We hold the lien interest.
By Mr. Wooten: What is - Answer R.K.: We're the mortgagee - By Mr. Wooten: I'm sorry. What is the lien interest?
Answer R.K.: It's the mortgage interest. We're the mortgagee
of record.
By Mr. Wooten: What is the mortgagee? I mean, is that the
person who has the lien?
Answer R.K.: It's bare legal title.
. . .
By R.K. Arnold: Well, there would need to be an assignment
out of MERS.
By Mr. Wooten: How would that be accomplished?
By R.K. Arnold: A MERS certifying officer of the member
would execute an assignment out of MERS and that would be
recorded in the land records.
By Mr. Wooten: And that certifying officer who made that
assignment, he would be -- he would be assigning everything
that MERS owned; right?
By R.K. Arnold: But he would be assigning the mortgage
interest.
By Mr. Wooten: And who owns that?
By R.K. Arnold: Well, the ownership of that is something that
I've had a problem with since the start of the deposition. It's -it's a -it's a status. It is the mortgagee. It's a legal interest.
Page
7
On the above factual basis, the Plaintiffs alleged Defendant MERS had
no interest at all in the NOTE, BAC received absolutely nothing with regard to the
NOTE via the AOM, but MERS did sell, (and BAC did receive), all of MERS interest
in the Mortgage via the AOM
26.
In this manner, the Defendants split the recorded interest in the NOTE
these facts, and the rights and obligations of Plaintiffs with regard to the DOT and
NOTE.
28.
29.
Paul Meyers, swearing to work for Ocwen Loan Servicing, LLC, as a Loan Analyst.
RJN Exhibit 5.
30.
Mr. Meyers swore Ocwen was the mortgage loan servicer of loan
number 7130620409, stating a true and correct copy of the NOTE was attached to his
affidavit. However, said affidavit is bearing a different Loan Number than exists on
the original NOTE, with three separate undated endorsements, with the last
indorsement in blank. 1
31.
Given the fact Countrywide Bank, FSB (CB FSB) is the stated
United States District Court for the Southern District of Mississippi, Hattiesburg
Division, In the Matter of: Clinton E. Kirby v. Bank of America, Case No. 2:09-CV00182-DCB-JMR. RJN Exhibit 6.
33.
1
2
Plaintiff moves for limited discovery requesting the original Note to be produced.
At a Recontrust Company, N.A. building.
Page
9
c. She does not know the name of the person who supposedly did place
the endorsement on the note;
d. The endorsement is placed on the notes with a rubber stamp onto
which is carved her name, and all the other information that appears
on the endorsement;
e. This endorsement stamp is a two-part stamp, the first part has
Laurie Meders Name for CB FSB, and the second has Michele
Sjolanders name for CHL.
34.
Inc. (using Laurie Meders name) and the Countrywide Home Loans, Inc. to blank
endorsement (using Michele Sjolanders name) is a single stamp that is purportedly
placed on notes by employees of Recontrust. That is why the two endorsements line up
perfectly.
35.
Mrs. Sjolander admitted that there is no way to know for sure when the
endorsement on the note was placed there, and she has no personal knowledge of when
or if the notes are actually stamped at the Recontrust vaults. See RJN Exhibit 6.
36.
There, CWB merged into the Red Oak Merger Corporation, (ROMC),
38.
This fact is not apparent on the face of the NOTE, as only the rubber-
stamped endorsements of Michelle Sjolander and Laurie Meder appear the NOTE
submitted with the Affidavit of Paul Meyers does not contain an endorsement from the
ROMC nor any person acting on behalf of it.
39.
CAUSES OF ACTION
authenticating Santos signature, and acting as the required catalyst for the AOM to be
recorded in the Essex County Recorders Office.
43.
Page
11
44.
existed at the time of the AOM, and only the ROMC existed.
45.
On May 17, 2011, at 9:01 a.m., MERS caused the AOM to be recorded
as Instrument No. 11057955, Book 12312, Page 219 in the official records of the
Essex County Recorders Office, and in this manner, MERS communicated the written
misrepresentations on the AOM to Plaintiffs, the General Public, and the Essex
County Recorder.
46.
Plaintiffs and the Essex County Recorder justifiably relied upon MERS
Page
12
psychological distress, legal and other fees, and lost work from taking the time to
research and attempt to right the wrong committed by MERS.
49.
These representations were false, with the true facts being that MERS
never held all beneficial interests in the Mortgage nor any interest in the NOTE for
BAC to buy, CWB no longer existed, and the ROMC had never endorsed the NOTE.
54.
misrepresentations on the AOM to Plaintiffs, the General Public and the Essex County
Recorder. At the time of these representations, BAC knew they were false, yet made
and communicated or caused such to be communicated to Plaintiffs anyway, with the
intent Plaintiffs, the General Public and the Essex County Recorder rely upon the false
statements as being true, and that Plaintiffs suffer damages therefrom.
55.
Page
14
58.
The December 1, 2004 DEED is the recorded ownership, right, title and
The Mortgage dated August 27, 2007, recorded on October 24, 2007, as
Instrument No. 7128773 and the Assignment of Mortgage dated May 10, 2011,
recorded on May 10, 2011 as Instrument No. 11037955 directly affect and cloud
Plaintiffs title to the Subject Property in the official records of the Essex County
Recorders Office. RJN at Exhibit 2.
62.
The Plaintiffs and Defendants, and each of them, have genuine and
opposing direct and substantial interests, as outlined above and in throughout this
Complaint, of which a judicial determination by this Court regarding the applicability
of a federally judicially created rule of law and resulting rights of the parties in this
case subsequent to such application will be final and conclusive.
63.
Ownership interest of the NOTE at issue in this case has been split
irreversibly, and on the record, from the same beneficial interest in the Mortgage
securing that NOTE.
Page
15
64.
interests in the NOTE and Mortgage is the federal rule of law the Plaintiffs seek to
invoke in this case, based upon the extremely fact specific circumstances of this case.
65.
In 2011, CWB and CHL no longer existed, with only the ROMC the surviving entity.
66.
67.
NOTE whom MERS was working for at the time of the AOM in 2011, Defendant
MERS unilaterally purported to sell the NOTE For value received to Defendant
BAC. MERS did so while it held absolutely no right, title, interest in the NOTE. RJN
at Exhibit 3.
68.
corresponding transfer or sale of the underlying NOTE is insufficient for the assignee
on the AOM, (BAC), to enforce the NOTE.
WHEREFORE, Plaintiffs pray for Declaratory Judgment against Defendants
and each of them, as follows:
For the First Cause of Action, Count 1:
A. For an award of actual, consequential and compensatory damages against each
defendant jointly and severally in the amount of $1,300,000.00 or as proven at
trial;
B. For an award of exemplary and punitive damages against each defendant jointly
and severally in the amount of $3,900,000.00 or as proven at trial;
C. For an award of prejudgment interest according to the maximum rate of interest
permitted under law;
D. For costs of suit;
Page
16
Page
17
VERIFICATION
I, Jerry Lee Gaskins, and I, Edith Magliore, are the Plaintiffs in the aboveentitled action. We have each read the foregoing First Amended Complaint and know
the contents thereof. The same is true of our own knowledge, except as to those
matters which are therein alleged on information and belief, and as to those matters,
we believe it to be true.
By our signatures below, we do hereby declare under penalty of perjury
pursuant to the Laws of the State of New Jersey that all the statements in the
Complaint are true, correct and complete to the best of our firsthand knowledge,
understanding and belief.
EXECUTED
this
___ day
of
September,
2013,
in
the
City
Page
18
of