Class Action Chase Home Fiance LLC

Case 8:11-ap-01127-TA Doc 1 Filed 03/12/11 Entered 03/12/11 12:18:19 Desc
Main Document Page 1 of 18
1 GLOBAL CAPITAL LAW, P.C.

Gary Harre [86938]
2 Diane Beall [86877]
8700 Warner Ave, Ste 200
3 Fountain Valley, CA 92708
Telephone: (714) 907-4182
4 Facsimile: (714) 907-4175
Email: ghcmecf@gmail.com
5
Attorney For Debtor, NELSON VO
6
7
UNITED STATES BANKRUPTCY COURT
8 CENTRAL DISTRICT OF CALIFORNIA
SANTA ANA DIVISION
9
10
)
11 In re ) Case No. 8:10-bk-26258-TA
)
12 ) CHAPTER 13
NELSON VO, an Individual; )
13 ) ADVERSARY PROCEEDING
Plaintiff, )
14 )
) ADV. NO. _______________________
15 -vs.- )
)
16 CHASE HOME FINANCE, LLC, AS ) CLASS ACTION
SERVICING AGENT TO ARGENT )
17 MORTGAGE COMPANY, LLC; ) JURY TRIAL DEMANDED
)
18 Defendants. )
)
19
20 ORIGINAL COMPLAINT
21 TO THE HONORABLE JUDGE OF SAID COURT:
22 Comes now, NELSON VO, by and through his counsel, files this Original
23 Complaint and Application for Injunctive Relief against Defendant, CHASE
24 HOME FINANCE, LLC (“Chase” or “ Defendant,” or “ Defendant Chase”),
25 complaining of Chase’s pattern and practice of violating the provisions of the
26 United States Bankruptcy Code. In support of the pleadings, Plaintiff respectfully
27 shows the court as follows:
28 //
1
Original Complaint
1
I. PRELIMINARY STATEMENT
2
1. This class action is brought by Plaintiff to remedy Defendant Chase’s
3
consistent pattern and practice of disregard for the provisions of the United
4
States Bankruptcy Code.
5
2. Specifically, this class action is brought to remedy Defendant’s
6
pattern and practice of abusing the entire bankruptcy process by filing false and
7
misleading Proofs of Claim in bankruptcy cases.
8
3. Chase specifically and purposely disregards the Bankruptcy Code
9
and, through false, fraudulent, misleading and undocumented Proofs of Claim,
10
illegally collects or attempts to collect amounts from debtor that Chase cannot
11
document and/or are not actually owed. Defendant’s routine and persistent
12
filing of undocumented and false Proofs of Claim is an abuse of process and is in
13
violation of the Bankruptcy Code and Rules.
14
4. Plaintiff seeks a finding that Defendant’s acts are in violation of the
15
Code and Rules, and that Plaintiff and class members are entitled to declaratory
16
and injunctive relief, monetary, actual and punitive damages, and attorneys’
17
fees, a finding of contempt and the issuance of sanctions against Defendants
18
Chase for practices and failure to abide by the requirements of the Bankruptcy
19
Code. The practices complained of herein represent common policies and
20
practices of Defendant and similarly affect all members of the proposed class.
21
This Court has jurisdiction over this Adversary Proceeding pursuant to 28
22
U.S.C. §§151, 157 and 1334(b). Venue is proper pursuant to 28 U.S.C. §1409.
23
II. PRELIMINARY STATMENT
24
5. Jurisdiction of this action arises under 28 U.S.C. § 1334, 11 U.S.C.
25
§§ 501 and 502 and Federal Rules of Bankruptcy Procedure 3001. Plaintiff
26
asserts claims against Defendant for violation of the Bankruptcy Code, 11
27
U.S.C. § 101 et seq.
28
2
Original Complaint
1
6. Venue is proper in this district pursuant to 28 U.S.C. §1409; and
2
because a substantial portion of the events giving rise to Plaintiff’s claims
3
occurred in this district. Plaintiff filed for bankruptcy protection in this district,
4
Chase filed its Proof of Claim in this district, and Defendant transacts business
5
in this district.
6
7. Plaintiff’s action for declaratory relief is authorized by 28 U.S.C. §§
7
2201 and 2202. Plaintiff’s actions for a finding of contempt of provisions of the
8
Bankruptcy Code are authorized by 11 U.S.C. §§ 105, 501, and 502 and Federal
9
Rules of Bankruptcy Procedure 3001. Plaintiff’s Request for Injunctive Relief is
10
authorized by 11 U.S.C. §§ 105, 501 and 502, Fed. R. Civ. P. 65 and Federal
11
Rule of Bankruptcy Procedure 7065. Plaintiff’s Request for Class Relief is
12
authorized by Federal Rule of Civil Procedure 23 and Federal Rule of
13
Bankruptcy Procedure 7023.
14
III. PARTIES
15
8. Plaintiff Nelson Vo resided at 60 Bombay, Irvine, California.
16
9. Defendant is, on information and belief, a subsidiary of a Federal
17
Savings Bank with its office in Columbus, OH, which may be served with
18
process by serving its registered agent, C.T. Corporation System in Los Angeles,
19
California, by certified mail, restricted delivery, return receipt requested.
20
IV. NATURE OF THE ACTION
21
10. A creditor may file Proof of Claim. 11 U.S.C. § 501. Fed. R. Bankr. P.
22
3003(c)(1). A Proof of Claim is a written statement setting forth a creditor’s
23
claim. A Proof of Claim shall conform substantially to the appropriate official
24
form. Fed. R. Bankr. P. 3001(a). When a claim is based on writing, the original
25
or duplicate shall be filed with the Proof of Claim. Fed. R. Bankr. P. 3001(c). If
26
a security interest in property of the debtor is claimed, the Proof of Claim shall
27
be accompanied by evidence that the security interest has been perfected. Fed.
28
3
Original Complaint
1
R. Bankr. P. 3001(d). In addition, the Official Form requires that the claimant
2
attach supporting documents, such as a Promissory Note, Purchase Orders,
3
Invoices, and itemized statements of running accounts, contracts, judgments,
4
mortgages, security agreement and evidence of perfection of lien. Official Form
5
B10. The Advisory Committee Note related to this portion of one version of
6
Official Form B10 states: “If the claim includes prepetition interest or other
7
charges such as attorney’s fees, a statement giving a detailed breakdown of the
8
elements of the claim is required.” A Proof of Claim that is executed and filed in
9
accordance with the Federal Rules of Bankruptcy Procedure constitutes “prima
10
facie evidence” of the validity and the amount of the claim. Fed. R. Bankr. P.
11
3001(b). A claim, proof of which is filed under 11 U.S.C. § 501, is deemed
12
allowed, unless a party in interest objects. 11 U.S.C. § 502. The penalty for
13
filing a fraudulent claim is a fine of up to $500,000 or imprisonment for five
14
years, or both. 18 U.S.C §§ 152 and 3571.
15
11. Despite these mandates, Chase has engaged in a pattern and
16
practice of abusing debtors who have filed for protection under Chapter 13 of
17
the United States Bankruptcy code (the “Code”) by filing false, fraudulent,
18
misleading and undocumented Proofs of Claim in the nation’s Bankruptcy
19
Courts.
20
12. Chase, and its affiliates under the Chase umbrella, have been
21
operating under the assumption that the fees and costs in their Proofs of Claim
22
in consumer cases are invulnerable to challenge because debtors lack the
23
sophistication, the debtors’ bar lacks the financial motivation, and the
24
Bankruptcy Courts lack the time to call them to task on their false Proofs of
25
Claim. In re Prevo, 394 B.R. 847, 848-49 (Bankr. S.D. Tex. 2008).
26
13. Indeed, Chase, and other members of the mortgage industry, are
27
intentionally trying to game the system by filing Proofs of Claim with
28
4
Original Complaint
1
undocumented and excessive fees, and misleading or false information, and
2
then (sometimes, but not always) reducing those fees only after being exposed by
3
debtors’ counsel through and objection. The system cannot work if lenders
4
violate the Code and Rules in the first place by filing false and misleading
5
claims, only to amend them if “caught” by the debtors’ bar with and objection,
6
or, worse, litigate the debtor to death over claims that were not even legitimate
7
when filed. Such a “system,” if it can be called that, is inherently unfair to the
8
debtors and their counsel because they are forced to litigate claims that were
9
false and fraudulent, and not filed in accordance with the rules/ in the first
10
place. The economics of such matters makes it likely, much more often than
11
not, that the debtors and the trustees will simply pay the claims, even if they are
12
false.
13
14. Indeed, although debtors bear the initial burden of raising objections
14
to claims, they should not be saddled with expenses incurred in filing objections
15
to claims, they should not be saddled with expenses incurred in filing objections
16
to Proofs of Claim that were false and fraudulent when filed in the first place.
17
Lenders must take some responsibility for complying with the minimum
18
requirements for filing a Proof of Claim by attaching supporting documents in
19
the first instance before the issue is raised by debtors’ counsel. Tate v. Nations
20
Bank Corp. (In re Tate), 253 B.R. 653, 666 (Bankr. W.D. N.C. 2000). In
21
addition, the Court has a duty to protect debtors from paying unsupported and
22
potentially overreaching charges, and it cannot do so if the claim is false,
23
fraudulent, misleading and unsupported. See Prevo, 394 B.R. at 850.
24
15. By this suit, Plaintiff seeks to remedy Chase’s consistent pattern and
25
practice of disregard for federal law and to prevent its wrongful filing of Proofs of
26
Claim in the United States Bankruptcy Courts. Individually, and on behalf of
27
the entire class, Plaintiffs seek a finding that Defendant’s acts are in violation of
28
5
Original Complaint
1
the Bankruptcy Code, and an abuse of the Bankruptcy Courts of this country.
2
Plaintiff further seeks declaratory and injunctive relief, monetary, actual and
3
punitive damages, reasonable attorneys’ fees, a finding of contempt and the
4
issuance of sanctions against Chase for its actions.
5
V. SUMMARY OF THE CLAIMS & CLASS ACTION ALLEGATIONS
6
16. Chase, and its affiliates, is among the largest mortgage lenders in the
7
nation. Through its lending activities, Chase is, and has been, a creditor in
8
thousands of consumer bankruptcy proceedings throughout the country. The
9
dollar amount of Defendant’s debt that has been subjected to consumer
10
bankruptcy proceedings under the Code is in the millions of dollars.
11
Defendant’s business practices are subject to, among other things, the Code and
12
the Rules.
13
17. For a number of years, Chase has engaged in a common course of
14
conduct to ignore the mandates of the Code by systematically filing false,
15
misleading and undocumented Proofs of Claim. Chase purposely does not have
16
policies and procedures in place to file accurate and documented claims. Even
17
after objections are filed, Chase either withdraws or amends the claim, and/or
18
Chase and its counsel engage in unconscionable litigation over the claim, still
19
refusing to provide the required documentation. As described in more detail
20
herein, all such actions are in direct violation of the Code and Rules, and
21
constitute an abuse of process.
22
18. Chase’s fraudulent practices are made with reckless disregard for
23
the truth and the mandates of the Code.
24
19. This process of false, misleading, and undocumented claims occurs
25
numerous times throughout the United States at a tremendous and
26
unconscionable cost to unsophisticated consumer debtors, their counsel, their
27
creditors, the bankruptcy court systems in which they operate, and the rule of
28
6
Original Complaint
1
law und the Bankruptcy Code.
2
20. Through its actions, on information and belief, Chase has wrongfully
3
collected or attempted to collect millions of dollars of debt in bankruptcy
4
proceedings, and have caused millions of dollars in damage to debtors and their
5
counsel in paying and/or responding to Chase’s false claims. Chase’s policies
6
and practices are manifestly unlawful in that they cause Chase to (a) conceal
7
from all parties the nature of the claimed debts and the required documentation
8
for the claimed debts, (b) deprived debtors, their counsel, the Trustees and the
9
Courts of the ability to analyze the claims and determine if the amounts claimed
10
are accurate and justified, (c) commit perjury in the United States Bankruptcy
11
Courts of America, (d) destroy the debtor’s ability to formulate an accurate
12
reorganization plan based on actual, documented debt, and (e) deprive other
13
creditors of money from the estate because the Trustee pays money from the
14
estate to Chase, based on its false and fraudulent Proofs of Claim. Indeed,
15
Chase’s actions destroy a key component of the bankruptcy processes in
16
America. By its actions, Chase has shown it is not only indifferent to the
17
requirements of the United States Bankruptcy Courts of the country.
18
21. Section 105 may be used to sanction the filing of a false or
19
fraudulent Proof of Claim because it is violative of the Bankruptcy Code and
20
abusive of the bankruptcy process. In re Verona, 388 B.R. 705, 716 (Bankr.E.D.
21
Va. 2008). The filing of a false or fraudulent claim in a bankruptcy case “would
22
unquestionably constitute an abuse of the claims process as well as an
23
attempted fraud upon the court.” Id. Filing a false or fraudulent claim in a
24
bankruptcy “is also violative of any number or specific Bankruptcy Code
25
provisions, warranting the imposition of sanctions.” Id.
26
22. The bankruptcy system simply cannot operate if mortgage lenders
27
can force debtors to spend thousands of dollars litigating a claim to force the
28
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Original Complaint
1
lender to provide information regarding the claim, which the lender was
2
supposed to include with the claim. The system especially cannot operate if
3
they claims filed by the lenders are false and fraudulent in the first place.
4
VI. SPECIFIC ALLEGATIONS AS TO PLANTIFF NELSON VO
5
23. On November 22, 2004, Plaintiff executed and delivered to Argent
6
Mortgage Company, LLC, a Promissory Note in the principal face amount of
7
$710,000.00. The Note was secured by a Deed of Trust.
8
24. On November 15, 2010, the Debtor filed Case No. 08:10-bk-26258.
9
25. On December 27, 2010, Chase filed a Proof of Claim, Claim No. 5. In
10
the “Proof of Claim Addendum” in Exhibit A of the Proof of Claim, Claim No. 5
11
the facts are set forth as follows:
12
13 Total Debt as of:

Interest rate: 9.1250%
14 Principal Balance: $676,558.92
15 Interest from last installment: $75,274.94
Escrow Advance: $6,576.078*
16 Total Debt: $758,409.93
17 Total Arrearages as of:

18 Payments:
19 From: 08/01/09 – 12/01/09
5 payments @ $6,794.41 $33,972.05
20 From: 01/01/10 – 06/01/10
6 payments @ $6,338.61 $38,031.66
21 From: 07/01/10 – 11/01/10
5 payments @ $5,903.66 $29,518.30
22
23 Total Arrearages: $101,522.01

*see Escrow Transaction History page of “POC Addendum”
24
26. The claim had no supporting documentation for the amounts
25
claimed and did not make sense.
26
27. The claim is being made by Chase Home Finance, LLC, as Servicing
27
Agent to Argent Mortgage Company, LLC (“Argent”). However, the copy of non
28
8
Original Complaint
1
original copy of Promissory Note indicated that Argent Mortgage Company, LLC,
2
had endorsed the Note without recourse to Ameriquest Mortgage Company
3
(“Americquest”). The endorsement was made by Wayne Lee, President.
4
28. Thereafter, Ameriquest Mortgage Company endorsed the Note in
5
blank to unknown party. Again, the endorsement was made by Wayne Lee,
6
President/C.E.O.
7
29. Furthermore, there is no documented agency agreement between
8
Chase and Argent, who no longer have interest in the Promissory Note.
9
30. Attached to the Claim is the Deed of Trust, which indicated that
10
Argent was the Lender and Beneficiary under the Deed of Trust. However, there
11
is no assignment of such beneficial interest in the Deed of Trust that was ever
12
assigned to anyone.
13
VII. CLASS ACTION ALLEGATIONS
14
31. Because Chase’s wrongful conduct is widespread and uniform,
15
Plaintiff would show the Court that this case should be certified for class action
16
treatment pursuant to Rule 23(a) and 23(b)(3) and/or (b)(2), Fed. R. Civ. P.
17
32. The class Plaintiff seeks to represent consists of:
18
19 Individual debtors who filed for protection under the United

States Bankruptcy Code after January 1, 2009, and in which
20 Chase filed a proof of claim.
21
33. The class is so numerous, numbering in the tens of thousands of
22
members, with class members throughout the country, that joinder of all class
23
members is impracticable. A class action is the only feasible method of
24
adjudicating the rights of the affected borrowers, and, absent allowance of
25
certification of a class action, a failure of justice will result.
26
34. The Plaintiff’s claims are likewise, typical of those of the un-named
27
class members. The Plaintiff has been subjected to the same misconduct as the
28
9
Original Complaint
1
members of the proposed class. They seek similar remedies for themselves and
2
the absent class members.
3
35. This plaintiff will fairly and adequately protect the interests of all
4
class members and in the administration of all matters relating to claims stated
5
herein. Moreover, they are prepared and willing to obtain redress of the wrongs
6
committed by Defendant and will adequately protect the interests of the class.
7
36. To that end, Plaintiff has retained capable counsel experienced in
8
bankruptcy matters, Federal Consumer Law and complex consumer class-action
9
litigation. Neither the Plaintiff, nor his counsel, has any conflicts that would
10
interfere with the vigorous prosecution of this action.
11
37. The questions of law and fact common to all class members which
12
predominate over those pertaining to individual class members only include, but
13
are not limited to, whether Chase engaged and engages in the policies and
14
practices complained of and whether such actions violate the Code and the
15
Rules and Constitute an abuse of process as alleged herein. In addition, Chase,
16
in pursuing the procedures challenged herein, has acted and refused to act on
17
grounds generally applicable to the class as a whole.
18
38. A class action is superior to other available methods for the fair and
19
efficient adjudication of this controversy in that (a) the class necessarily consists
20
of persons in unfavorable economic circumstances who are not able to pay to
21
maintain individual actions against Defendant, (b) many class members and
22
their counsel will not be able to recognize that Defendant’s Proof of Claim are
23
fraudulent and/or false, (c) many class members and Trustees will not challenge
24
Defendant’s false and fraudulent claims, even if they suspect the claims are
25
false or fraudulent, and (d) there is no reason that the Bankruptcy Courts
26
should be burdened with multiple lawsuits challenging Defendant’s practices.
27
//
28
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Original Complaint
1
VIII. REQUEST FOR RELIEF
2
RELIEF FOR FALSE, MATERIALLY
3 INACCURATE AND/OR
4 MISLEADING REPRESENTATIONS OF FACT
39. Plaintiff hereby repeats and reasserts the allegations contained in
5
the preceding paragraphs, as if fully set forth herein.
6
40. Chase authorized, directed and caused the filing of the Proof of
7
Claim.
8
41. Chase authorized, directed and caused the filing of the Proof of Claim
9
that contained false, materially inaccurate and/or misleading representations of
10
fact. Chase filed its Proof of Claim in an attempt to obtain money or property
11
from the Debtor and/or the bankruptcy estate. Chase’s conduct and practices
12
in filing the Proof of Claim created unnecessary delay and expense in the
13
administration of this bankruptcy case. Chase’s conduct and practices in filing
14
the Proof of Claim are sanctionable under the Court’s inherent powers and
15
under 11 U.S.C § 105.
16
42. Plaintiff and the class ask this Court to find Defendant in contempt
17
pursuant to its inherent powers and 11 U.S.C. § 105(a) due to its repeated
18
wrongful actions. Based upon such findings, Plaintiff seeks an award of actual
19
damages, sanctions, punitive damages, attorneys’ fees and costs.
20
21 RELIEF FOR REPEATED FAILURE TO ENSURE

THE ACCURACY OF PLEADINGS AND ACCOUNTS
22
23
the preceding paragraphs, as if fully set forth here.
24
44. Chase directed and caused the filing of the Proof of Claim that
25
contained allegations that were inaccurate and/or misleading concerning the
26
Debtor’s obligations in this case.
27
45. Chase’s conduct and practices in authorizing, directing and causing
28
11
Original Complaint
1
the filing of its Proof of Claim are indicative of a repeated failure to ensure the
2
accuracy of its pleadings and accounts. Chase filed the Proof of Claim in an
3
attempt to obtain money or property from the debtor and/or the bankruptcy
4
estate. Chase’s conduct and practices have created unnecessary delay and
5
expense in the administration of this bankruptcy case. By its conduct, Chase
6
has acted in bad faith in the conduct of litigation before the Court and the rules
7
are not up to the task of adequately sanctioning such conduct.
8
46. By its conduct, Chase has abused the bankruptcy process and its
9
conduct and practices are sanctionable under the Court’s inherent powers and
10
11 U.S.C § 105(a).
11
47. Plaintiff and the class ask the Court to find Defendant in contempt
12
13
wrongful actions. Based upon such findings, Plaintiff seeks an award of actual
14
15
RELIEF FOR CONTEMPT, ABUSE OF PROCESS, AND RELIEF
16 PURSUANT TO COURT’S INHERENT POWES AND 11 U.S.C. § 105(a)
17 48. Plaintiff hereby repeats and reasserts the allegations contained in
18 the preceding paragraphs, as if fully set forth here.
19 49. Chase directed and caused the filing of the Proof of Claim that
20 contained allegations that were false, fraudulent, undocumented, inaccurate
21 and/or misleading concerning the Debtor’s obligations in this case.
22 50. Chase filed the Proof of Claim in an attempt to obtain money or
23 property from the debtor and/or the bankruptcy estate. Such conduct,
24 including unjustified litigation, has created unnecessary delay and expense in
25 the administration of this bankruptcy case. By its conduct and practices, Chase
26 has acted in bad faith of such a nature that the rules are not up to the task of
27 adequately sanctioning Chase for its conduct. Chase’s conduct and practices
28
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Original Complaint
1
are sanctionable under the Court’s inherent powers and under 11 U.S.C. §
2
105(a).
3
51. Plaintiff and the class ask this Court to find Defendant in contempt
4
5
wrongful actions. Based upon such findings, Plaintiffs seek an award of actual
6
7
RELIEF FOR VIOLATION
8 OF THE BANKRUPTCY CODE AND RULES
11 53. Chase’s actions violate 11 U.S.C. §§ 501, 502 and Bankruptcy Rule
12 3001. Plaintiff request that the Court award actual damages, punitive damages
13 and attorneys’ fees for Chase’s violations of the Code and the Rules.
14 OBJECTION TO CLAIM 5 and CLAIM 6
17 55. 11 U.S.C. §§ 501 and 502 and the Federal Rules of
18 Bankruptcy Procedure (“FRBP” or “Bankruptcy Rules”) 3001, 3002, 3003, 3005,
19 3006, 3007 and 3008 govern the way in which creditors and equity security
20 holders present their claims or interests to the bankruptcy court, and provide
21 the guidelines within which such claims are allowed or disallowed in the
22 bankruptcy proceeding.
23 56. Creditors filing a Proof of Claim based on a writing must attach
24 either the original, or a copy, of the writing. Rule 3001(c). In re Stauder, 396
25 B.R. 609 (Bankr. M.D. Pa. 2008) (when the claim does not attach the
26 documentation required by Bankruptcy Rule 3001(c) the claim cannot
27 serve as prima facie proof of its validity); In re Rogers, 391 B.R. 317 (M.D.
28
13
Original Complaint
1
La. 2008); In re Brooks, 2008 WL 2993948 (Bankr. E.D. Pa. 2008); In re
2
Reyna, 2008 WL 2961973 (Bankr. W.D. Tex. 2008). If the claim includes pre-
3
petition interest, attorneys’ fees, or other charges, a statement providing a
4
breakdown of the elements of the claim is required.
5
57. A security interest in the property of the debtor is claimed, however,
6
CHASE identified itself as servicer to Argent Home Mortgage, LLC, without any
7
supporting document to demonstrate authority as Servicer to act on the behalf
8
of Argent Mortgage Company, LLC to file this instant Proof of Claim.
9
58. Despite such unsupported authority, CHASE submitted evidence of
10
such proof by way of an unauthenticated copy of a Note (hereinafter “Note”)
11
dated November 22, 2004, purportedly executed by such Debtor to lender Argent
12
Mortgage Company, LLC. Also included was a purported Deed of Trust
13
(hereinafter “DOT”) as security interest on the same Debtor without showing
14
any authority to bring this claim; has standing; or that the security interest has
15
been perfected, as required under F.R.B.P. Rule 3001(d) and F.R.B.P. 3002; and
16
is facially defective and does not constitute prima facie validity of the claim.
17
59. In addition, Argent’s POC has indicated that their secured interest is
18
in the amount of $758,409.93, but there is no accurate accounting and basis as
19
to how Argent arrived at such an amount, or even how their indicated interest
20
rate was determined. Pursuant to 11 U.S.C. 502 (a), Debtor objects to Argent’s
21
POC as to the claim amount. Additionally, any arrearages, if any, are not
22
accurately itemized, nor does the POC reflect any itemized fees, current monthly
23
payment owed, along with an accurate interest rate from which to base any
24
payments owed. Argent’s POC is so devoid of detail that this Court must
25
consider it unenforceable against Nelson Vo.
26
60. The Promissory Note was made payable to Argent Mortgage
27
Company, LLC. Evidence as produced to support Argent’s POC did not indicate
28
14
Original Complaint
1
that the promissory had been endorsed back to Argent or any other named
2
entity. The Deed of Trust states that Argent is the Lender, and Beneficiary. No
3
recorded document suggests that Argent transferred its beneficial interest to
4
Chase Home Finance, LLC.
5
61. There is no evidence whatsoever supporting CHASE’s authority to file
6
this Proof of Claim. There is no attached Pooling and Servicing Agreement
7
(herein after known as "PSA") which identifies that CHASE is the servicing agent
8
for Argent Mortgage Company, LLC. Assuming arguendo that CHASE is the
9
servicer of this subject loan, there is no notice of change in servicer as required
10
under RESPA, and there is no documentation or amendment identifying CHASE
11
as the newly appointed party as servicer.
12
62. By filing a false and misleading claim, Chase has failed to establish
13
the prima facie validity of its claim. Plaintiff objects to the claim under 11 U.S.C.
14
§ 502 and request that the Court disallow it.
15
63. The documents in the record before this Court speak for themselves.
16
CHASE has not established standing as a “creditor” within the meaning of the
17
Bankruptcy Code; therefore CHASE lacks standing to file a Proof of Claim, or to
18
object to confirmation. CHASE is an unauthorized party and cannot file this
19
Proof of Claim since CHASE does not have standing as agent for Argent
20
Mortgage Company, LLC.
21
64. Therefore, Argent’s POC does not satisfy the requirements of Rule
22
3001(c) and thus, not prima facie evidence of a claim and must be disallowed.
23
REQUEST FOR DECLARATORY RELIEF
24
25
the preceding paragraphs, as it fully set forth here.
26
66. As outlined in the preceding counts and the preceding factual
27
allegations, the Defendant has violated § 501 of the Code and Bankruptcy Rule
28
15
Original Complaint
1
3001. Plaintiff seeks a declaration that Defendant’s filing and litigation of false
2
Proofs of Claim are per se an abuse of process, an abuse of the Bankruptcy
3
Code and Rules, and that such actions violate 11 U.S.C. §§ 501, 502 and
4
Bankruptcy Rule 3001.
5
REQUEST FOR INJUCTIVE RELIEF
6
7
the preceding paragraphs, as it fully set forth here.
8
68. Title 11 U.S.C. § 105(a) allows the Court to exercise its equitable
9
powers where necessary or appropriate to facilitate implementation of Code
10
provisions, including the imposition of temporary and permanent injunctions.
11
69. Unless restrained, Chase will, in all likelihood, continue to violate
12
Federal Law by filing false and undocumented Proofs of Claim and continuing in
13
unreasonable and abusive litigation with respect to such false, fraudulent,
14
undocumented, and misleading claims. As a result, Plaintiff and the class seek
15
a permanent injunction to enjoin further violations of the law by Chase.
16
REQUEST FOR ACTUAL
17 AND PUNITIVE DAMAGES
20 71. Through the filing of false, misleading and undocumented Proofs of
21 Claim, Chase has inflicted actual damages upon Plaintiffs and the absent class
22 members by collecting from them and their estate amounts not owned under the
23 law. Such amounts should be disgorged from Defendant and returned to the
24 debtors from whom they were wrongfully taken.
25 72. Plaintiff further seeks imposition of all available damages, penalties,
26 sanctions and punitive damages in an amount sufficient to deter Defendant
27 from future misconduct.
28
16
Original Complaint
1
REQUEST FOR ATTORNEYS’ FEES
2
3
the preceding paragraphs, as if fully set forth here.
4
74. As outlined in the preceding counts and the preceding factual
5
allegations, the Defendant has violated §§ 501, 502 of the Bankruptcy Code and
6
Bankruptcy Rule 3001.
7
75. Defendant’s violations can be remedied by the specific Code section
8
violated as well as under and pursuant to the Court’s inherent powers and 11
9
U.S.C. § 105.
10
76. Moreover, the Plaintiff has been forced to retain legal counsel and
11
have incurred reasonable and necessary attorneys’ fees on their own behalf and
12
that of the class. Such fees are properly taxed against Chase by virtue of its
13
flagrant abuse of the bankruptcy process and violation of 11 U.S.C. § 501 of the
14
Code and Bankruptcy Rule 3001.
15
77. Plaintiff and class members are entitled to attorney’s fees pursuant
16
to 11 U.S.C. § 105, the Court’s inherent contempt powers, and other sections
17
cited herein for this action and any appeals taken in this action.
18
IX. PRAYER
19
WHEREFORE, Plaintiff requests that this Court grant the following relief in
20
favor of Plaintiff and the members of the class:
21
a. Issuing a Declaratory Judgment declaring that Defendant’s conduct
22
constitutes the filing of false, fraudulent, and undocumented Proofs
23
of Claim, that the filing of such Proofs of Claim and subsequent
24
vexatious litigation constitute an abuse of process and an abuse of
25
the Bankruptcy Code and Rules;
26
b. Issuing a declaratory judgment declaring that Defendant’s conduct
27
violates 11 U.S.C. §§ 501 and 502 of the Bankruptcy Code, and
28
17
Original Complaint
1
Bankruptcy Rule 3001;
2
c. Enjoining Defendant from further filing false, fraudulent, misleading
3
and undocumented Proofs of Claim;
4
d. Awarding Plaintiff and class members compensatory damages,
5
including disgorgement, restitution and attorneys’ fees and costs,
6
and/or punitive damages and sanctions, for Defendant’s actions;
7
e. Awarding Plaintiff and class members pre-judgment and post-
8
judgment interest, as well as reasonable attorney’s fees, expert
9
witnesses’ fees, disbursements, accounting, class costs and other
10
costs of litigation;
11
f. Finding the Defendant in contempt under the Court’s inherent
12
powers and 11 U.S.C. § 105 for abuse of process, abuse of the
13
Bankruptcy Code, abuse of the Federal Bankruptcy Court system,
14
and abuse of the statutorily-mandated Bankruptcy Code sections
15
applicable, and awarding Plaintiffs and class members appropriate
16
relief including attorneys’ fees and costs, sanctions, and other such
17
relief deemed appropriate by this court; and
18
g. Awarding such other relief as this Court may deem just and proper.
19
Dated: 03/12/2011 Global Capital Law, P.C.
20
21
_______________________________
22 By Gary Harre, Esq.
Attorney for Plaintiff, NELSON VO
23
24
25
26
27
28
18
Original Complaint

Class Action Chase Home Fiance LLC

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Case 8:11-ap-01127-TA Doc 1 Filed 03/12/11 Entered 03/12/11 12:18:19 Desc

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1 GLOBAL CAPITAL LAW, P.C.

13 Total Debt as of:

17 Total Arrearages as of:

23 Total Arrearages: $101,522.01

19 Individual debtors who filed for protection under the United

21 RELIEF FOR REPEATED FAILURE TO ENSURE

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