STATE OF MICHIGAN

IN THE 6TH JUDICIAL CIRCUIT COURT

DAVID C. PHILLIPS,
Plaintiff,
-vs-

Case No. CZ

BANK OF AMERICA, NA
Defendant.
____________________________/
Horace D. Cotton (P33268)
Attorney for Plaintiff
24151 Telegraph Rd., Suite 210
Southfield, MI 48075
(313) 595-1517
____________________________/
VERIFIED COMPLAINT
There is no other pending or resolved civil action arising out of the transaction or occurrence alleged in the complaint.

NOW COMES Plaintiff David C. Phillips, by and through his attorney, Horace D. Cotton
states the following for his complaint against the defendant:
PARTIES AND JURISDICTION
1.

Plaintiff, David C. Phillips (Phillips) is an individual residing in Oakland

County, Michigan.
2.

Defendant, Bank of America, N.A. (BofA) is a foreign banking corporation that

conducts business in Oakland County, Michigan.

3.

This complaint involves a condominium unit (the Property) commonly known

as 16400 North Park Drive, Unit 504, Southfield, MI 48075, formerly owned by Plaintiff.
4.

Jurisdiction in this Court is proper pursuant to MCL 600.2932 and MCL 600.605.
1

5.

Venue is proper in this Court pursuant to MCL 600.1605 and MCL 600.1621.

6.

Phillips purchased the property on or about January 31, 2006 with a mortgage
loan from Countrywide Home Loan d/b/a Americas Wholesale Lender. The
Mortgage Electronic Registration Systems, Inc., was listed as the mortgagor as
Nominee for the lender. (Exhibit 1)

7.

On of about July 1, 2008 BofA acquired the assets of Countrywide Home Loans
through a stock purchase.

8.

As a result of the decreased income, Phillips defaulted on his mortgage.

9.

As a result of Phillips default, BofA accelerated the mortgage balance and

commenced foreclosure by advertisement of Plaintiffs mortgage.

10.

As of the date of the filing of this complaint, BofA has not filed a notice of
transfer, sale or assignment in the Oakland County Register of Deeds and is not
indicated in the chain of title for the subject property.

11.

A Sheriffs Sale of Plaintiffs property was held on August 14, 2012 and BofA
was the winning bidder at the Foreclosure auction. (Exhibit 2)

COUNT I
Wrongful Foreclosure-Violation of MCL 600.3204
12.

Plaintiff incorporates the previous paragraphs by reference.

13.

Pursuant to MCL 600.3204, an assignee may only foreclose on a property if the

Notice of Transfer, Sale or Assignment is recorded in the Register of Deeds for
the county in which the property is located.

14.

Defendant, BofA, failed to record a notice a notice of transfer, sale or assignment

in the Oakland County Register of Deeds prior to the Sheriffs sale.

15.

BofA improperly instituted non-judicial foreclosure proceedings against

Plaintiffs property in violation of MCL 600.3204.
Count II
Action to Set Aside Sheriffs Sale

16.

Plaintiff incorporates the previous paragraphs by reference.

17.

BofA never had the legal authority to foreclose, because BofAs interest as
successor to Countrywide was never acknowledged and recorded in accordance
with MCL 600.3204, resulting in the non-judicial foreclosure sale being void ab
initio.

18.

Although the Sheriffs deed appears valid on its face, it is invalid and of no legal
force and effect because BofA failed to file a notice of assignment with the
Oakland County Register of Deeds.

19.

BofAs prosecution of the non-judicial foreclosure of Plaintiffs property was at

all times void.

20.

Plaintiff is entitled to the entry of an order ruling that the Sheriffs Deed is void ab
initio and setting aside the Sheriffs Deed.
COUNT II
Quiet Title

(As to BofA, all persons unknown, claiming any legal or equitable right, title, estate,
lien, or interest in the property described in the complaint adverse to plaintiffs title, or
any cloud on plaintiffs title thereto)
21.

Plaintiff incorporated the previous paragraphs by reference.

22.

Plaintiff is the equitable owner of the Subject property which has the following
legal description:

Land in the City of Southfield, Oakland, Michigan described as as:

Unit 44, North Park Place, according to the Master Deed recorded in Liber 7794, Pages
259 through 328, both inclusive and Restated by Master Deed recorded in Liber 35236,
Pages 793 through 835, both inclusive, and First Amendment to Restated Master Deed
recorded in Liber 35495, Pages 180 through 189, both inclusive Oakland Records, and
designated as Oakland County Condominium Subdivision Plan Number 304, together
with rights in general common elements and limited common elements as set forth in the
above described Master Deed and as described in Act 59 of the Public Acts of 1978, as
amended. Oakland County Records.
23.

Plaintiff seeks to quiet title against the claims of BofA, All persons unknown,
claiming any legal or equitable right, title, estate, lien or interest in the property
described in this complaint adverse to Plaintiffs title thereto; and does
(collectively referred to herein as the Title Defendants) as Title Defendants hold
themselves out as entitled to fee simple ownership of the subject property by and
through their purchase of the property at the Sheriffs Sale held on August 14,
2012. In fact the Title Defendants have no right to title or interest in the Subject
Property and no right to entertain any rights of ownership including the right to
foreclose by advertisement or offering the Subject Property for sale at a Sheriffs
Sale. Nevertheless, The Title Defendants proceeded with the non-judicial
foreclosure sale, illegally and with unclean hands.

24.

The Sheriffs sale is void because the requirements of MCL 600.3204 were not
complied with by BofA.

25.

Plaintiff seeks to quiet title as of August 12, 2012. Plaintiff seeks a judicial
declaration the title to the Subject property is vested in Plaintiff alone and that the

Title Defendants be declared to have no interest, estate, right or title in the subject
property.
26.

For the foregoing reasons, any and all claims, rights, titles, or interests in the
subject property, were wrongfully conveyed and transferred to BofA.

27.

Plaintiff remains as the true fee owner of the subject property and the legal and
equitable owner in fee simple and, as such, is entitled to have title to the subject
property restored and returned to him as the true and legal owner.

RELIEF REQUESTED
WHEREFORE, Plaintiff requests that the Court grant the following relief
A.

Retrain and enjoin Defendant Bank of America, its agents, attorneys,

assigns and any persons claiming through it from doing any act to interfere
with Plaintiffs possession and enjoyment of the Property, including
initiating or continuing any eviction proceedings with respect to the
Property.

B.

Restrain and enjoin Defendants, their agents, attorneys, assigns and any
persons claiming through it from doing any act to interfere with Plaintiff
possession and enjoyment of the Property.

C.

Quiet title in the Property to Plaintiff pursuant to MCL 600.2932;

Declare that Plaintiff has no obligation to reimburse Defendants for any

taxes, payments or other expenses they have incurred in connection with
the fraudulent conveyance and the mortgage based on the fraudulent
conveyance;

E.

A judgment against Defendants jointly and severally for damages suffered

by plaintiff as a result of the conduct by Defendants;

F.

Order that the sheriffs deed is void;

G.

Grant other relief as the Court deems equitable and proper and;

H.

Award Plaintiff whatever amount to which they are found to be entitled,

together with actual costs, including attorney fees incurred in bringing this
action.

I affirm that all of the allegations contained in this Complaint are true to the best of my
knowledge, information and belief.

___________________________________
David C. Phillips
Subscribed and Sworn to before me
On, February 10, 2013
________________________________
Phylis E. Osborne, Notary Public
Wayne County, Acting in Wayne County
My Commission Expires: 11/08/2019
_________________________
HORACE D. COTTON (P-33268)
Attorney for Plaintiff
24151 Telegraph Road, Suite 210
Southfield, MI 48075
(313) 595-1517
Dated: February 10, 2013