Ohio -Deutsche v Holden Answer and Counterclaims - Fraud on the Court

8/2/2019 Ohio -Deutsche v Holden Answer and Counterclaims - Fraud on the Court

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IN THE COURT OF COMMON PLEASSUMMIT COUNTY, OHIO

GLENN E. HOLDEN, et al.,

JUDGE COSGROVE

DEFENDANTS GLENN AND ANNHOLDEN'S ANSWER ANDCOUNTERCLAIMSJURY DEMANDENDORSED HEREONefendants.

Plaintiff,v.

DEUTSCHE BANK NATIONAL TRUST )COMPANY AS TRUSTEE FOR )SOUNDVIEW HOME LOAN TRUST )2005-4, ASSET-BACKE:P CERTIFICATES,)SERIES 2005-4, C/O CHASE MANHATTAN)MORTGAGE COMPANY )

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NOW COMES Defendants Glenn and Ann Holden, by and through counsel, and for heranswer to plaintiffs Complaint states as follows:

BACKGROUND1. Denied.2. Denies that the note is secured by a mortgage and denies that the mortgage is a valid first

lien on the property.3. Admits that the mortgage was filed for record, but denies that Plaintiff has complied with

all conditions precedent, denies that the mortgage was ever validly assigned to thePlaintiff and denies that Plaintiff is entitled to have the mortgage foreclosed.

4. Denied.5. Denied for lack of knowledge as to whether the mortgage is a valid lien on the property.6. Denies that all conditions precedent were complied with.7. Denied for lack of knowledge.


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COUNT ONE8. Defendants incorporate all their previous admission and denials.9. Admits that Defendants Glenn Holden was discharged in bankruptcy, but denies that

( amount Plaintiffclaims is due.10. Denied for lack of knowledge.

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COUNT TWO

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11. Defendants incorporate their previous admissions and denials.12. Denied for lack of knowledge as to whether the mortgage is a valid lien.13. Denied.

PRAYER FOR RELIEF14. Defendants deny that Plaintiff is entitled to the requested relief.

First Affirmative Defense15. Plaintiff failed to state a claim upon which reliefcan be granted.

Second Affirmative Defense

16. Plaintiff has breached the agreement, either directly or indirectly, and is not entitled to therequested relief.

Third Affirmative Defense10. Plaintiff and/or its servicing agent may have violated 12 U.S.C. 2601 et. seq.

Fourth Affirmative Defense11. Plaintiffs damages may be a result of abuse, neglect, modification and/or alteration by the

Plaintiffand therefore is not entitled to request relief.Fifth Affirmative Defense

12. Claims for recoupment and/or set-off available may exist under the federal Fair DebtCollection Practices Act 15 U.S.C.A. 1692 et. seq. Truth in Lending Act, and the Consumer


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Sales Practice Act, R.C. 1345 et. seq.Sixth Affirmative Defense

13. This note and mortgage have been securitized and sold one or more times which resultedin a severance of the note and mortgage.

Seventh Affirmative Defense14. The balance may not be accurate, and therefore a complete accounting of payments is

warranted.Eighth Affirmative Defense

15. Plaintiff is not the real party in interest and lacks standing to bring said claim and is notentitled to enforce the mortgage.

Ninth Affirmative Defense16. Plaintiff is not a holder of the original note because it was never indorsed by the

original lender and Plaintiffis not entitled to enforce the note because Plaintiffnever pledpossession.

Tenth Affirmative Defense17. Plaintiffs claims may be barred by accord and satisfaction, arbitration and award, failure

to mitigate damages, waiver, estoppel, laches, release, statute of limitations, or otheraffirmative defenses set forth in Rule 8(C)ofOhio's Rules ofCivilProcedure.

Eleventh Affirmative Defense18. The Plaintiffhas committed fraud because this case was brought c/o Chase Manhattan

Mortgage Corporation, which was merged out of business at the time the complaint was filed.The promissory note is'payable to NovaStar Mortgage, Inc and was never negotiated toPlaintiff. Plaintiff is suing as Deutsche Bank National Trust Company, as Trustee for


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Soundview Home Loan Trust 2005-4, Asset-Backed Certificates, Series 2005-4. However,that trust is governed by a Pooling and Servicing Agreement which lists a cut of f date fortransfers to the trust as November 1,2005. The assignment ofmortgage (drafted by Plaintiffscounsel) attached as Exhibit C'to the complaint was executed on September 17,2010 pearlyfive years past the cut of f date!

Twelfth Affirmative Defense19. Plaintiff is barred from enforcing the terms of the mortgage because Plaintiffhas unclean

hands.Thirteenth Affirmative Defense

20. The promissory note was sold to some entity other than the Plaintiff.Fourteenth Affirmative Defense

21. Plaintiffmay have failed to provide a proper notice of acceleration, which is a conditionprecedent to filing for foreclosure.

Fifteenth Affirmative Defense22. The mortgage may not have been properly notarized.

Sixteentb Affirmative Defense23. This lawsuit was filed in by Chase Manhattan Mortgage Company, an entity that no

longer exists, who posed as an agent of the trust.Seventeenth Affirmative Defense

24. Plaintiff has failed to join all necessary and indispensable parties to this action.Eighteenth Affirmative Defense

25. All or some of the signatures on Plaintiffs exhibits may not be valid or signed withproper authority.


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Nineteenth Affirmative Defense26. The assignments ofmortgage may have been robo-signed.

Twentieth Affirmative Defense27. Defendants Glenn and Ann Holden reserve the(right to add additional affirmative defenses

as they become available through discovery.

WHEREFORE, Defendants Glenn and Ann Holden respectfully request that this Courtdismiss the complaint.

COUNTERCLAIM

For their counterclaims, Glenn and Ann Holden state as follows:JURISDICTION

1. Glenn and Ann Holden (hereinafter "Holdens") own real property in SummitCounty, Ohio.

2. The Holdens are consumers as defined by the Fair Debt Collection Practices Act.(FDCPA)

3. The Holdens are also consumers as defined by the Ohio Consumer Sales PracticesAct. (OCSPA).

4. The Plaintiff is a debt collector as defined by the FDCPA and is attempting tocollect on a debt it does not own. In addition, Plaintiff is also a supplier as defined by the OhioConsumer Sales Practices Act "OCSPA".

5. The Summit County Court of Common Pleas has jurisdiction and venue becausesome or all of the Holdens' claims for reliefarose in Summit County.


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STATEMENT OF FACTS6. The Holdens' mortgage was assigned after they were allegedly in default.7. The assignment of mortgage attached to Plaintiffs Complaint as Exhibit C was

drafted by Plaintiffs counsel. (8. The assignment of mortgage was executed without authority from NovaStar

Mortgage, Inc.9. Plaintiff does not own Glenn and Ann Holden's note and mortgage so Plaintiff is

not attempting to collect its own debt.10. The actions by Plaintiff have caused the Holdens aggravation, humiliation,

embarrassment, loss of privacy, strain on personal relationships, loss of enjoyment of life,sleepless nights, worry and anxiety.

11. The actions by Plaintiff are believed to be a pattern and practice in consciousdisregard for the rights of Glenn and Ann Holden.

COUNT ONEFAIR DEBT COLLECTION PRACTICES ACT

15 V.S.C &1692 eta seq.12. The Holdens incorporate by reference paragraphs 1 through the preceding

paragraph as though fully stated herein.

12. The Plaintiffs foregoing acts in attempting to collect this debt constituteviolations of the Fair Debt Collection Practices Act, including but not limited to the followingsections:

a.) 1692d- any conduct the natural consequence of which is to harass, oppress, orabuse any person;


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b.) 1692e-any false, deceptive, or misleading representation or means in connectionwith the debt collection;

c.) 1692e(2)- misrepresented the character, amount, or legal status of the alleged debt;( (

d.) 1692f- any unfair or unconscionable means to collect or attempt to collect thealleged debt;

e.) 1692f(1)-Attempt to collect any amount not authorized by the agreement creatingthe debt or permitted by law.

13. The Holdens were harmed when Plaintiff made a false, deceptive or misleadingrepresentation by attaching Exhibit C to the Complaint in the attempt to collect adebt.

14. Exhibit C was executed without authority from the original lender.

15. On information and belief, Exhibit C was robo-signed.

16. Exhibit C gives a false impression to this Court that a valid transfer of mortgageoccurred.

17. Since the mortgage was never properly assigned, Plaintiff is not attempting tocollect its own debt.

18. Plaintiff has misrepresented the character, amount and legal status of this debt byattaching Exhibit C to the complaint.


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19. By attaching Exhibit C to the complaint , Plaintiff used an unconscionable means toattempt to collect a debt.

20. Th e assignment of mortgage was drafted after the Holdens were accused o f being in( (default.

21. Th e trust that Plaintiff is trustee of is governed by a Pooling and Servicing Agreementwhich lists a cut of f date for transfers to the trust as November 1, 2005.

22. The assignment of mortgage (drafted by Plaintiff s counsel) attached as Exhibit C tothe complaint was executed on September 17, 2010 nearly five years past the cut offdate!

23. Plaintiff knew this assignment o f mortgage was improper, but still used it in theattempt to obtain a judgment against the Holdens.

24. The Holdens were harmed by these violations by the actions o f the Plaintiff andare entitled to statutory damages, actual damages including damages for emotional distress, andattorneys fees and costs pursuant 15 U.S.C. 1692k(a).

COUNT T W OIN VASION O F PRIVACY BY INTRUSION UPON SECLUSION

25. The Holdens incorporate by reference paragraphs 1 through the precedingparagraph as though fully stated herein.

26. The Plain tif f intentionally interfered, physically or otherwise, with the solitude,seclusion, or private concerns or affairs o f Glenn and Ann Holden.


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27. The Holdens had a reasonable expectation of privacy in their solitude, seclusion,or private concerns or affairs.

28. The intrusion by the Plaintiff occurred in a way that would be highly offensive to( (a reasonable person in that position.

29. The Holdens were seriously damaged as a result and are entitled to damages, costsand attorneys fees.

COUNT THREE

CONSUMER SALES PRACTICES ACTOHIO REVISED CODE 1345.0130. The Holdens incorporate by reference paragraphs 1 through the preceding

paragraph as though fully stated herein.

31. The improper, illegal, and abusive debt collection practices committed by Plaintiffare in violation of the Fair Debt Collection Practices Act, which also constitute unfair anddecepti ve practices in violation of the Ohio Consumer Sales Practices Act.

32. Plaintiff violated R.C. 1345.02(B)(l0) by making a false representation that alegal obligation was owed by the Holdens to the Plaintiff.

33. The Holdens are entitled to actual damages multiplied by three and non-economicdamages including damages for mental anguish of $5000.

34. These violations are known violations of the OCSPA and therefore entitle theDefendant to reasonable attorneys fees and costs.


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COUNTFOURCOMMONLAW FRAUD

35. The Holdens reallege and incorporate by reference all the preceding paragraphs as iffully written herein. (

36. Plaintiffmade false representations "aboutbeing entitled to enforce the note andmortgage.

37. To overburdened judges, as well as many struggling homeowners desperate to savetheir homes, including Glenn and Ann Holden, the false assignment ofmortgage waseffective to deceive people as a transfer of rights related to the Holdens' mortgage.

38. The holder of the note and mortgage and identity of any party entitled to enforce ismaterial to the transaction at hand.

39. Plaintiffs representations were made falsely or with such utter disregard andrecklessness for whether it was true or false that knowledge should be inferred.

40. Plaintiffmade their misrepresentations with the intent that court officials and theHoldens would rely on it

41. The Holdens justifiably relied on the assignment ofmortgage.42. The Holdens had resulting injury proximately caused by their reliance on Plaintiffs

false assignment ofmortgage and misrepresentations.43. Plaintiff willfully behaved in bad faith by pretending to have a legal right to enforce

the Holdens' note and mortgage when Plaintiffdoes not.44. Plaintiff willfully intended to defraud the Holdens and this conduct has been so

egregious that punitive damages should be awarded.WHEREFORE, the Holdens pray for the following relief:

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a) damages in excess of$25,000 as to all counts as plead in the Counterclaim;b) as to Count Three actual damages times three;c) punitive damages;d) ( dismissal of the foreclosure, and (e) any other relief this Honorable Court deems appropriate.

Respectfully submitted,DANN, DOBERDRUK & WELLEN LLC~ o v t , M I ~Marc E. Dann (0039425)Grace M. Doberdruk (0085547)20521 Chagrin Blvd, Suite DShaker Heights, Ohio 44122216-373-0539 Telephone216-373-0536 [email protected]@dannlaw.comAttorneys for Defendants Glenn and Ann Holden

Jury DemandPlaintiffs hereby request a trial by jury on all issues, with the maximum number of jurors

permitted by law.

GRACE DOBERDRUK (0085547)


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CERTIFICATE OF SERVICEI hereby certify that a copy of the foregoing was served by mail this Co day ofMarch

2012 to the following address:John E. Codrea {David B. BokorMatthew P. CurryKristan A. PrillManley Deas Kochlaski LLCP.O. Box 165028Columbus, OH 43216-5028CitiFinancial, Inc.c/o CT Corporation System, Registered Agent1300 East Ninth StreetCleveland, OH 44114JP Morgan Chase Bank, N.A.c/o CT Corporation System, Registered Agent1300 East Ninth StreetCleveland, OH 44114

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Respectfully submitted,

~ 1 < ~Grace Doberdruk (0085547)DANN, DOBERDRUK & WELLEN LLC

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Ohio -Deutsche v Holden Answer and Counterclaims - Fraud on the Court