Upload
foreclosure-fraud
View
222
Download
0
Embed Size (px)
Citation preview
8/8/2019 Maria and Jose Perez v. Bac Home Loans Servicing Lp, Rec on Trust, Na
1/41
8/8/2019 Maria and Jose Perez v. Bac Home Loans Servicing Lp, Rec on Trust, Na
2/41
Jurisdiction and Venue
3. This action seeks damages within the jurisdiction of the
District Court. The District Court may quiet title and enter declaratory
relief. See Tex .Civ. Prac. & Rem. Code 37.0041
4. Venue is proper under the mandatory venue rules, C.P.R.C.
15.011(a) (5)2 as this action seeks to determine that Defendants have no
present right to foreclose on Plaintiffs home and to quiet title, remove
encumbrances and obtain damages arising from Defendants wrongful
efforts to collect a previously paid note and deed of trust covering Plaintiffs
home, property located in Seguin, Guadalupe County.
5. Plaintiffs request that the clerk of the Court prepare citation
and that same be served by the Clerk as authorized by the Texas rules by
certified mail, return receipt requested, to the parties and addressed as
follows:
A BAC Home Loans Servicing LP may be served by servingits registered agent for service of process to wit
BAC Home Loans Servicing LP% CT CORPORATION SYSTEM350 N. ST. PAUL ST. Suite 2900DALLAS, TX 75201
1 References to the Texas Civil Practices and Remedies Code will hereafter be CPRC.
2 See, CPRC Sec. 15.011. LAND. Actions for recovery of real property or an estate or
interest in real property, for partition of real property, to remove encumbrances from the title toreal property, for recovery of damages to real property, or to quiet title to real property shall bebrought in the county in which all or a part of the property is located.
2
8/8/2019 Maria and Jose Perez v. Bac Home Loans Servicing Lp, Rec on Trust, Na
3/41
B RECONTRUST, N.A. may be served by serving any officer oragent at its principal business address in the State of Texas, to wit
RECONTRUST N.A.2380 Performance Drive, TX 2-985-07-03
Richardson, TX 75082
Background
6 Recording acts, like Tex. Prop. Code chapter 13,3 provide
legal effect (actual and constructive actual notice) for real property deeds,
deeds of trust and assignments of the obligations secured by liens therein
created or retained against third parties without actual notice of the
instrument. The act of recording a document, for which fees are charged
by County Clerk of the County where the property is located, requires that
the instrument have certain formalities, including signature and
acknowledgement. These formalities have served Texans well for
generations providing a written paper trail by which owners and
mortgagees or assignees of either can be ascertained. And the fees for
recording of documents, while small per item in Texas4, represent a
3 Sec. 13.001. VALIDITY OF UNRECORDED INSTRUMENT. (a) A conveyance of real
property or an interest in real property or a mortgage or deed of trust is void as to a creditor or to a
subsequent purchaser for a valuable consideration without notice unless the instrument has beenacknowledged, sworn to, or proved and filed for record as required by law. (b) The unrecorded instrument
is binding on a party to the instrument, on the party's heirs, and on a subsequent purchaser who does not
pay a valuable consideration or who has notice of the instrument.
Sec. 13.002. EFFECT OF RECORDED INSTRUMENT. An instrument that is properly recorded
in the proper county is: (1) notice to all persons of the existence of the instrument; and (2) subject to
inspection by the public.
4 Other states may impose a transaction tax or stamp fee for recording of instruments varying
by the dollar amount of the stated transaction. Texas does not.
3
8/8/2019 Maria and Jose Perez v. Bac Home Loans Servicing Lp, Rec on Trust, Na
4/41
significant element of recovery of the costs of operating the county clerks
real property division.
7 At the risk of oversimplification, Wall Streets interest in
securitizing mortgages by creating mortgage backed securities to be sold
without specific reference to the underlying mortgage loans resulted in
efforts to free up transfer of interests in the loans (notes secured by deeds
of trust) by eliminating traditional elements of transactions in notes secured
by deeds of trust covering real property, specific endorsement of the note
and recorded assignment of the deed of trust in the county real property
records. The mortgage backed securities industry did so by avoiding that
paper work and even the nominal fees for recording of the assignment of
the mortgages by using a straw lender or nominee to be the named
beneficiary of the recorded original deed of trust when the loan was made.
Using this short cut, assignments of notes secured by deeds of trust
(mortgages) were no longer recorded in the real property records where
the property securing the loan was located.
8 Mortgage Electronic Registration Systems, Inc. (MERS)
entered into the business of being the recorded entity as nominee for the
true lender. According to MERS statements about its history, MERS has
saved lenders billions in recording fees. But at the price that there is no
open public record to inspection of who was or is the actual assignee of
the loans secured by real property. Recordkeeping of who the owner of
4
8/8/2019 Maria and Jose Perez v. Bac Home Loans Servicing Lp, Rec on Trust, Na
5/41
the real property secured loan was, or transfers of the ownership of
interests in the loan from time to time, would be handled by some other
facility or means not accessible to the public. Texas recognized the
market imperative created by securitization, adopting a new set of
definitions to include a book entry system and mortgage servicer into its
lexicon, expansively defining both Mortgagee and Mortgage Servicer,
giving them rights and responsibilities and after notice allowing the
Mortgagees enforcement of contract liens by non-judicial sale5.
The Perezs Morgan Loan
9 In 2007 Maria and Jose Perez purchased the property and
improvements commonly called 148 Tonto Trails, Sequin, Texas and
legally described as: LOT: 107 BLK: ADDN: GERONIMO'S HAVEN #3
(the Property). This purchase was financed in part by a note payable to
Mortgage Electronic Registration Systems, Inc., as nominee for Morgan
Financial d/b/a Morgan Funding and secured by a deed of trust covering
the Property recorded at Real Property Records Book 2559 at page 512
(the Morgan Loan). There are, on information and inspection of the real
property record of Guadalupe County, no recorded assignments or
transfers of the Morgan Loan to BAC.
5 Tex. Prop. Code Art 51.0001 added Mortgage servicer means the last person to whom a
mortgagor has been instructed by the current mortgagee to send payments for the debt secured by a security
instrument. A mortgagee may be the mortgage servicer. "Mortgagee" means: (A) the grantee, beneficiary,
owner, or holder of a security instrument; (B) a book entry system; or (C) if the security interest has been
assigned of record, the last person to whom the security interest has been assigned of record.
(5) "Mortgagor" means the grantor of a security instrument.
5
8/8/2019 Maria and Jose Perez v. Bac Home Loans Servicing Lp, Rec on Trust, Na
6/41
10 In August 2009 Plaintiffs paid the Morgan Loan in full with the
proceeds of a refinancing loan. This payment is shown by the records of
Orange County Title Company of Texas (see Business Record Affidavit
attached and incorporated herein) documenting payoff of the Morgan Loan
by the title companys wire transfer of funds effected on August 5, 2009.
The payoff was made to the Mortgage Servicer of the Morgan Loan, Taylor
Bean & Whitaker.
BAC attempts to collect the Perezs Morgan Loan
11 BAC claims to have received rights in the Morgan Loan from
Taylor Bean & Whitaker as of September 1, 2009.6 Notwithstanding that
by then the Morgan Loan was fully paid BAC has attempted repeatedly to
collect the paid off Morgan Loan.
6. Since September 2009 BAC has sent collection letters,
dunning statements and threatening letters to Plaintiff demanding payment
of the Morgan Loan. Among the letters sent to Plaintiff after the Morgan
Loan was paid off were two sets of notices that the Morgan Loan shortly
would be transferred to HUD and that Plaintiff were going to lose their
home.
6 Letter Notice from BAC dated 8-21-09 attached, stating:
6
8/8/2019 Maria and Jose Perez v. Bac Home Loans Servicing Lp, Rec on Trust, Na
7/41
8/8/2019 Maria and Jose Perez v. Bac Home Loans Servicing Lp, Rec on Trust, Na
8/41
agreement and required notices must be correctly completed before
enforcement (administration) of the deed of trust.7
10. The notice and demands issued by Defendants to Plaintiff on
the Morgan Loan have caused Plaintiffs to suffer emotional distress,
mental anguish, lose sleep and incur expenses. The notices are wrongful
as the Morgan Loan was paid.
11. BAC and RECON are debt collectors of the Morgan Loan and
Plaintiffs are consumers as such terms are defined by fair debt collection
practices laws. Plaintiffs have been damaged by Defendants conduct and
breach of the contract, the Morgan Loan which Defendants are wrongfully
seeking to collect.
12. Plaintiffs prior to commencement of this suit made demand on
Defendants to withdraw the notice of November 2010 foreclosure sale of
the Property and verify the amount of the obligation Defendants were
seeking to collect. Such demand was made under the Federal Fair Debt
Collection Practices Act and required response within five days of the
demand.
7Texas law was amended to recognize the role of the mortgage servicer and the servicers power to
administer or enforce the deed of trust. Tex. Property Code, Sec. 51.0025 provides: ADMINISTRATION
OF FORECLOSURE BY MORTGAGE SERVICER. A mortgage servicer may administer the foreclosure
of property under Section 51.002 on behalf of a mortgagee if: (1) the mortgage servicer and the mortgagee
have entered into an agreement granting the current mortgage servicer authority to service the mortgage;
and (2) the notices required under Section 51.002(b) disclose that the mortgage servicer is representing the
mortgagee under a servicing agreement with the mortgagee and the name of the mortgagee and: (A) the
address of the mortgagee; or (B) the address of the mortgage servicer, if there is an agreement granting a
mortgage servicer the authority to service the mortgage.
8
8/8/2019 Maria and Jose Perez v. Bac Home Loans Servicing Lp, Rec on Trust, Na
9/41
13. Defendants did not withdraw the notice of foreclosure.
Defendants did not verify the obligation or existence of any debt secured
by the Morgan Loans deed of trust.
14. All predicates to suit have occurred.
15. Plaintiff has been required to engage the undersigned
attorney, licensed to practice law in the State of Texas. Plaintiffs rights to
recovery of attorney fees from Defendants arise under: C.P.R.C. 37.009
(declaratory judgment); 38.001 (contract), and 15 USC 1692 et seq
(FDCPA).
FIRST CAUSES OF ACTION DECLARATORY RELIEFTO REMOVE ENCUMBERACE OR QUIET TITLE
16. Plaintiffs incorporate all prior allegations of this petition.
17. Defendants are wrongfully seeking to enforce the deed of trust
executed as part of the Morgan Loan. As applied that deed of trust is a
cloud on Plaintiffs title to the Property and must be declared inoperative.
18. Plaintiffs are entitled to receive and here demand that
Defendants withdraw their claims to hold any note or right to enforce the
Morgan Loan, and that Court enter its judgment declaring that Defendant
BAC has no right to recover from Plaintiff on the Morgan Loan, declaring
and removing liens securing the Morgan Loan from the title to the Property
save as it may be equitably held by their refinancing lender.
9
8/8/2019 Maria and Jose Perez v. Bac Home Loans Servicing Lp, Rec on Trust, Na
10/41
19. Plaintiffs seek recovery from Defendants of their reasonable
and necessary attorney fees and contingent awards of attorney fees in the
event Defendants or any of them undertake unsuccessful appeals or
proceed for or obtain discretionary review in the Supreme Court.
SECOND CAUSES OF ACTION MONEY DAMAGES
20. Plaintiffs incorporate all prior allegations of this petition.
21. Defendants efforts and communications seeking to collect the
Morgan Loan after it was paid off breached the contract that was the
Morgan Loan causing Plaintiffs damages and consequential damages
foreseeable at the time of the contract.
22. Plaintiffs seek recovery of reasonable attorney fees through
judgment and conditional awards of attorney fees should Defendants or
either of them prosecute unsuccessful appeal of the judgment rendered
including but not limited to proceedings for discretionary review and further
proceedings, if any in the Supreme Court of Texas.
23. Defendants efforts and communications seeking to collect the
Morgan Loan after it was paid off were wrongful under violation of the
Texas and Federal Fair Debt Collection Practices Acts proximately causing
Plaintiffs actual damages and if no actual damages be proved, Plaintiffs
seek statutory damages.
24. Plaintiffs seek recovery of reasonable attorney fees through
judgment and conditional awards of attorney fees should Defendants or
10
8/8/2019 Maria and Jose Perez v. Bac Home Loans Servicing Lp, Rec on Trust, Na
11/41
either of them prosecute unsuccessful appeal of the judgment rendered
including but not limited to proceedings for discretionary review and further
proceedings, if any in the Supreme Court of Texas.
25. Defendants efforts and communications seeking to collect the
Morgan Loan after it was paid off breached a civil duty owed by
Defendants to Plaintiffs not negligently issue notices or statements that are
factually wrong or to seek to foreclose on a paid debt. Defendants breach
proximately caused Plaintiffs damages.
26. Defendants efforts and communications seeking to collect the
Morgan Loan after it was paid off acts were negligent, grossly negligent or
intentional actions seeking to extort or wrongfully obtain money not due
from Plaintiff through the use of false, confusing or erroneous demands for
payment, notices Plaintiffs would shortly have to quit living in their home,
and threatened non-judicial foreclosure of Plaintiffs home producing or
causing Plaintiffs damages.
27. Plaintiffs seek actual and exemplary damages.
28. Prior to trial and after passage of such time, if any, as may be
required by minimum notice provisions of the Deceptive Trade Practices
Act8, Plaintiff reserves the right to add damage claims arising under the
DTPA.
8 Tex. Bus. & Com. Code Art 17.41 et seq, (hereafter DTPA).
11
8/8/2019 Maria and Jose Perez v. Bac Home Loans Servicing Lp, Rec on Trust, Na
12/41
Causes of Action for InjunctionRestraining BAC, RECON or their privies from Non-judicial
Foreclosures In whole or in Part
29. Plaintiffs incorporate all prior allegations of this petition.
30. Defendants and all persons in privity with Defendants,
including but not limited to their respective agents, servants or employees
and parent Bank of America are seeking to collect a paid debt and have
threatened Plaintiffs with foreclosure of their home. A non-judicial
foreclosure sale was noticed by RECON for November 2, 2010.
31. The Morgan Loan as sought to be enforced by Defendants
constitutes a cloud on Plaintiffs title. Defendants foreclosure pendete lite
would further cloud Plaintiffs title to their home and frustrate or render
ineffectual complete relief available by declaratory judgment or quiet title
actions.
32. The Court is authorized in the circumstances to issue an
injunction to preserve the subject matter of the suit until the suit is resolved
by judgment. See CPRC 65.011(2) an d (4)
33. While Bank of America has unilaterally announced a
moratorium on its agents conduct of foreclosures on its behalf, that
moratorium may end as quickly as it was announced requiring the Courts
intervention. Plaintiffs lack an adequate remedy at law to protect their
home and continued occupancy of their home
12
8/8/2019 Maria and Jose Perez v. Bac Home Loans Servicing Lp, Rec on Trust, Na
13/41
34. Plaintiffs as shown by the pay off documents are likely to
prevail on the merits of this action while Defendants will not be damaged in
the slightest by being required to establish that there is any debt obligation
on the Morgan Loan.
35. Proof of fact, that there is a debt in default secured by real
property is elemental before a foreclosure may occur. Moreover
confirmation of debt is a duty imposed on demand by the Federal Fair Debt
Collection Practices Act.
36. No public interest is harmed by the issue of preliminary
injunction. In fact the public interest is served by restraining reckless debt
collectors employing the non-judicial foreclosure statutes of this State in
the terroristic manner employed by Defendants in this case.
37. Noticed foreclosure sales can be passed and re-noticed for
subsequent months. Unless Defendants are restrained from foreclosure
through Judgment by Preliminary Injunction, Plaintiffs will be continuously
at risk of foreclosure on the paid off Morgan Loan.
38. Also as shown by Bank of Americas self declared moratorium
to clarify its entities foreclosure paperwork BAC has serious systemic
paperwork problems not only in Texas but across the United States.
These problems, arising from use of MERS or other shortcuts to a prudent
foreclosure, on information and belief led to BAC and RECON issue of
wrongful foreclosure demand letters, such as those sent to Plaintiff - a
13
8/8/2019 Maria and Jose Perez v. Bac Home Loans Servicing Lp, Rec on Trust, Na
14/41
deceptive trade practice violation, or by foreclosures or seizures of
property where no debt was due.
39. Texas gives a privilege allowing non-judicial foreclosure of
purchase money deeds of trust, but requires judicial foreclosure on an
expedited process to foreclose home equity loans. Defendants have
abused the privilege of non-judicial foreclosure and should be required to
proceed by judicial foreclosure generally to enforce any note secured by
Texas property until Defendants or its parent Bank of America can get its
act together to demonstrate that there is a debt unpaid, in default, held by
Defendants or its privies and to be administered or enforced by the party
seeking to administer or enforce the lien.
40. The DTPA authorizes a court to issue equitable relief when
the interests of the public at large are endangered by a defendants pattern
of reckless conduct. See DTPA 17.50(b) (2). Defendant Bank of America
and persons or entities in concert with it must be restrained from
conducting non-judicial foreclosures and required to proceed with bona
fide foreclosures only judicially wherein the Court will require proof of facts
that there is a debt secured by the property and that conduct of the
foreclosure meets legal requirements until they can satisfy the Attorney
General of the State of Texas that such relief is not necessary to protect
the consumers of this State. This Court may enter such an order at the
request of a private litigant, and in the circumstances of this case, must
14
8/8/2019 Maria and Jose Perez v. Bac Home Loans Servicing Lp, Rec on Trust, Na
15/41
enter its order requiring only judicial foreclosures. Notice of suit is being
given to the Attorney General of the State of Texas Consumer Protection
Division but class action status has not been requested at this time.
41. A bond of no greater than $100.00 should be ordered as a
condition of the issue of a temporary or preliminary injunction restraining
Defendants, those in privity with them as well as their agents, servants or
employees from taking any actions on the Morgan Loan against the
Property.
42. Defendants should be enjoined and restrained from
conducting any non-judicial foreclosures in the State of Texas but required
as a consequence of their violations of Texas Deceptive Trade Practices
Act and a bond of no greater than $100.00 should be ordered as a
condition of the issue of such a preliminary injunction.
. Prayer
Wherefore, Premises considered Plaintiffs pray that Defendants be
cited to appear and give answer herein, that upon just trial hereof, and that
consistent with their pleadings herein that Plaintiffs have and recover: their
actual damages, consequential damages, special damages and such
exemplary damages as may be adequate to deter and are constitutionally
appropriate to the Defendants and the wrongs established; reasonable
attorney fees, inclusive of conditional awards of attorney fees in the events
specified in this petition; costs of suit and reasonable disbursements
15
8/8/2019 Maria and Jose Perez v. Bac Home Loans Servicing Lp, Rec on Trust, Na
16/41
incurred in the prosecution hereof; pre and post judgment interest as
allowed by law; and such other and further relief at law or in equity to
which they may prove themselves entitled.
Plaintiffs further pray that prior to final trial the Court enter its:
a) Orders on notice to Defendants restraining Defendants, those
in privity with Defendants including but not limited to Bank of America and
their respective agents servants and employees from taking any action to
enforce the Morgan Loan or foreclose upon the Property through hearing
on such application and continuing until judgment in this case and directing
the clerk of this Court to issue the Order upon Plaintiffs cash deposit or
bond in the amount of $100.00, said deposit or bond to be conditioned as
required by law.
b) Order on notice to Defendants restraining Defendants, those
in privity with Defendants including but not limited to Bank of America and
their respective agents servants and employees from employing non-
judicial foreclosures under the Texas Property Code until adequate
showings eliminating violations of the Texas Deceptive Trade Practices Act
as stated herein have been made.
. Requests for Disclosure to All Defendants
Pursuant to Rule 194 Texas Rules of Civil Procedure (the Rule),each Defendant is requested to disclose within thirty days of service of thisrequest, the information or material described in Rule 194.2 subparts (a)-(l)inclusive.
16
8/8/2019 Maria and Jose Perez v. Bac Home Loans Servicing Lp, Rec on Trust, Na
17/41
17
. Requests for Admissions to All DefendantsPursuant to Rule 198 Texas Rules of Civil Procedure, each
Defendant is required no later than Fifty (50) days after service of theserequests upon you to admit or deny or explain in detail the reasons thatyou cannot admit or deny the request. Your response must fairly meet the
substance of the request. You may qualify an answer, admitting or denyinga request in part only when good faith requires it. If you fail to timelyrespond to the requests the request is considered admitted withoutnecessity of an other action.
REQUEST No. 1.Admit that the Morgan Loan (as the term Morgan Loan is defined in
the forgoing petition) was paid in full.ANSWER
REQUEST No. 2.Admit that BAC Home Loans Servicing LP has no right to take
collection actions on the Morgan Loan or direct exercise of the deed oftrust on the Property (as such terms are defined in the foregoing petition)ANSWER
REQUEST No. 3 admit that Recontrust, N.A. and or its employees may notlawfully conduct a foreclosure of the Property or take collection actions onthe Morgan Loan (as such terms are defined in the forgoing petition.
ANSWER
This date: October 19, 2010________________Barry A. BrownSBOT NO. 03093000Suite 1100, The Arena Tower7322 Southwest FreewayHouston, Texas 77074Tel: 713 981 3880Fax: 713 981 3881e-mail: [email protected] For: Plaintiffs
Attachments:1. Business Record Affidavit2. Demand & Posting3. Verification
x/s Barry A. Brown
mailto:[email protected]:[email protected]:[email protected]8/8/2019 Maria and Jose Perez v. Bac Home Loans Servicing Lp, Rec on Trust, Na
18/41
8/8/2019 Maria and Jose Perez v. Bac Home Loans Servicing Lp, Rec on Trust, Na
19/41
8/8/2019 Maria and Jose Perez v. Bac Home Loans Servicing Lp, Rec on Trust, Na
20/41
8/8/2019 Maria and Jose Perez v. Bac Home Loans Servicing Lp, Rec on Trust, Na
21/41
8/8/2019 Maria and Jose Perez v. Bac Home Loans Servicing Lp, Rec on Trust, Na
22/41
8/8/2019 Maria and Jose Perez v. Bac Home Loans Servicing Lp, Rec on Trust, Na
23/41
8/8/2019 Maria and Jose Perez v. Bac Home Loans Servicing Lp, Rec on Trust, Na
24/41
8/8/2019 Maria and Jose Perez v. Bac Home Loans Servicing Lp, Rec on Trust, Na
25/41
8/8/2019 Maria and Jose Perez v. Bac Home Loans Servicing Lp, Rec on Trust, Na
26/41
8/8/2019 Maria and Jose Perez v. Bac Home Loans Servicing Lp, Rec on Trust, Na
27/41
8/8/2019 Maria and Jose Perez v. Bac Home Loans Servicing Lp, Rec on Trust, Na
28/41
8/8/2019 Maria and Jose Perez v. Bac Home Loans Servicing Lp, Rec on Trust, Na
29/41
8/8/2019 Maria and Jose Perez v. Bac Home Loans Servicing Lp, Rec on Trust, Na
30/41
8/8/2019 Maria and Jose Perez v. Bac Home Loans Servicing Lp, Rec on Trust, Na
31/41
8/8/2019 Maria and Jose Perez v. Bac Home Loans Servicing Lp, Rec on Trust, Na
32/41
8/8/2019 Maria and Jose Perez v. Bac Home Loans Servicing Lp, Rec on Trust, Na
33/41
8/8/2019 Maria and Jose Perez v. Bac Home Loans Servicing Lp, Rec on Trust, Na
34/41
8/8/2019 Maria and Jose Perez v. Bac Home Loans Servicing Lp, Rec on Trust, Na
35/41
8/8/2019 Maria and Jose Perez v. Bac Home Loans Servicing Lp, Rec on Trust, Na
36/41
8/8/2019 Maria and Jose Perez v. Bac Home Loans Servicing Lp, Rec on Trust, Na
37/41
8/8/2019 Maria and Jose Perez v. Bac Home Loans Servicing Lp, Rec on Trust, Na
38/41
8/8/2019 Maria and Jose Perez v. Bac Home Loans Servicing Lp, Rec on Trust, Na
39/41
8/8/2019 Maria and Jose Perez v. Bac Home Loans Servicing Lp, Rec on Trust, Na
40/41
8/8/2019 Maria and Jose Perez v. Bac Home Loans Servicing Lp, Rec on Trust, Na
41/41