case file arizona quiet title removal_ remand and commentary forde v first horizon home loan

8/8/2019 CASE FILE Arizona Quiet Title REMOVAL_ REMAND and Commentary Forde v First Horizon Home Loan

http://slidepdf.com/reader/full/case-file-arizona-quiet-title-removal-remand-and-commentary-forde-v-first 1/70

EW QUIET TITLE SUIT FILED I N MAR ICOPA COUNTY, AZ ON THE HEELS OF A QUIET TITLECTION THAT WAS REMANDED BACK TO SUPERIOR COURT IN PHOENIX

December 10th, 2010

By Dave Krieger

he case is Easton v. Bosco et al with a case number of CV2010-054748; filed four days after U.S. Distrourt Judge Mark E. Aspey remanded a quiet title action back to the State Superior Court for Maricopa

ounty, previously removed by Defendants First Horizon Home Loan Corporation and others to federalourt, which the author views as a typical move to hide from state court discovery actions. Read more…

he case is Forde v. First Horizon Home Loan Corporation et al, CV2010-01922, filed pro se August 3, 20y Barbara J. Forde. The author feels the significance of this case smacks to the heart of jurisdictional

ssues as to which court has the right to hear the case based on what merits. The Plaintiff in this actionited breach of contract based on negligence and fraud. The trustee, Quality Loan Service Corporation wlso named in the suit. On September 22, 2010, the Defendants, who like in most instances assertediversity jurisdiction and the amount in controversy as the sole basis for their removal to federal court, fmotion to strike the complaint under Rule 8(a)(2) and (d)(1) of the Federal Rules of Civil Procedure.

he author sees this remand ruling as a plus for judicial expediency in quiet title actions throughout the

ircuit. Judge Aspey even cited that there were no federal questions up for decision which would conferurisdiction to the U.S. District Court. On December 3, 2010, Judge Aspey issued the remand order, toreduce litigation costs and eliminate any need to certify novel state-law issues to the Arizona Supremeourt or speculate how the Arizona Supreme Court would rule on those issues.”

After citing eight pages of case law and abstentions, the court denied all of the Defendants’ pendingmotions without prejudice. The key significance here is why lenders as national associations feel the needemove quiet title actions to federal court, when the Plaintiff has listed no federal questions which wouldive a federal judge cause to keep the case. One also has to question what authority a federal judge woave to quiet title on property situated in a county that is not in a federal territory. This judge appears tnderstand the fundamentals of a quiet title action very well.

here are also numerous state case laws that protect the property owners from foreclosure in the event uiet title action has been filed, abating ejectment if there are title issues involved. This would furthertrengthen the author’s contention that quiet title issues are going to become commonplace very soon ahat the state courts had better take these filings seriously. In the Easton case, there appear to beonflicting issues with assignments amidst a potential wrongful foreclosure. A lis pendens has also beenled in the case by the Plaintiff’s counsel, Scottsdale attorney, Beth Findsen, of which there are at leastight key defendants involved. The trustee in that case is also a defendant.

https://cloudedtitles.com/2010/12/new-quiet-title-suit-filed-in-maricopa-county-az-on-the-heels-of-a-quiet-title-action-that-was-remanded-back-to-superior-court-in-phoenix/#more-347

https://cloudedtitles.com/2010/12/new-quiet-title-suit-filed-in-maricopa-county-az-on-the-heels-of-a-quiet-title-action-that-was-remanded-back-to-superior-court-in-phoenix/#more-347



Arizona Judge Remands Foreclosure UnderAbstention Doctrines

xcellent news for Arizonans battling foreclosure! We have continuously argued against removal basedolely on diversity because the state law issues in these foreclosure cases are predominant, and it ismportant for the state to have a cohesive scheme regarding its real property laws, and novel issues of tate law interplay. And we’ve seen what kind of distastrous rulings ensue when our federal courts start

making creative Erie estimations of how the AZ State Supreme Court would rule on many critical issues otate property law. Bad law makes an impact for years to come. So of course the banks love to dragomeowners into federal court.

here have been other remands by federal court judges, however, in the case I’m about to discuss, Judgspey actually analyzed the issue under several abstention doctrines.

Magistrate Judge Aspey issued a well reasoned remand order in favor of homeowner/attorney, Barbaraorde. In so doing, he reasoned that the federal court should abstain from hearing the case under theurford absention doctrine, Younger abstention, and Rooker-Feldman. He also stated that the issue coue raised sua sponte. Full opinion here: Aspey AZ Order-to-Remand-Case-to-State-Court[1] Thettorney’s comments here.

ongratulations Barbara!

ere’s a passage from the order:

he Court concludes judicial economy, fairness, comity,the existence of novelssues under Arizona law, and thenecessity for the Court to interpret Arizonatate statutes weigh heavily in favor of the Court declining jurisdiction ovhis matter. Remand at this time will reduce litigation costs and eliminate eed to certify novel state-law issues to the Arizona Supreme Court orpeculate how the Arizona Supreme Court would rule on those issues.

http://findsenlaw.wordpress.com/2010/12/08/arizona-judge-remands-foreclosure-under-abstention-doctrines/


http://findsenlaw.files.wordpress.com/2010/12/aspey-az-order-to-remand-case-to-state-court1.pdf

http://http//foreclosureblues.wordpress.com/2010/12/08/federal-magistrate-remands-foreclosure-suit-to-state-court-in-arizona-by-attorney-barbara-forde/

http://http//foreclosureblues.wordpress.com/2010/12/08/federal-magistrate-remands-foreclosure-suit-to-state-court-in-arizona-by-attorney-barbara-forde/

http://findsenlaw.files.wordpress.com/2010/12/aspey-az-order-to-remand-case-to-state-court1.pdf





Federal Magistrate Remands Foreclosure Suit to State Court inArizona

8 Dec

Good news for homeowner lit igants in federal court! A Federal Magistrate in Arizona Districourt understands that the state law issues in foreclosure actions must be decided by Stateourts. My litigation against First Horizon, MetLife, Bank of New York Mellon, MERS, and Quality Loanervice, has been remanded back to the state court.

Order to Remand Case to State Court

Remand is especially important in Arizona, where there is no state court case law on the subject. Theederal courts have had no choice but to guess what the state court would do, because the lenders,ervicers and others remove the cases to federal court as a matter of course.

n my case, I argued principally that the case should be remanded to state court because foreclosures amatters of statewide concern, that the issues are of substantial public importance which transcend myarticular case, and that the state courts have not decided the issue. This is Burford abstention. The

Magistrate Judge understood this, and ordered remand on that basis.

Magistrate Judge Aspey did not stop there, however. He stated that abstention doctrine can be raised suponte, meaning even if a party doesn’t argue it, the court can point it out. So he then analyzed and wento detail on Younger abstention, as well as Rooker-Feldman abstention, and found that both thesebstention doctrines applied to my case, as well.

lso pending was a motion to strike my entire complaint, filed by the lender/servicer defendants Firstorizon, MetLife, and Bank of New York as Trustee, and MERS, because it is “too long”, and a motion toismiss from the foreclosure mill trustee, QLS. Both motions were denied, without prejudice.

he decision was very well written and researched. I applaud Magistrate Aspey for taking the time tonalyze the matter thoroughly and prepare a well thought out decision. It is definitely time for our stateourts to render decisions on these matters. They’ve been unable to, due to the campaign of the banks,ervicers, and trustees, to drag everyone into federal court here in Arizona.

And because this was federal court, and these abstention doctrines were created and/or analyzed in Unittates Supreme Court cases, these abstention arguments and analysis can be used across the United Sty borrowers who want to stay in state court. This decision is a keeper!

ow I can proceed to discovery and resolution on the merits. Or perhaps, just perhaps, I can get the eahe Defendants, and we can arrive at a resolution that in my opinion should have occurred in 2008.

More to come!

http://legalforeclosurehelpnow.com/?p=125


http://legalforeclosurehelpnow.com/%3Ca%20title=

http://legalforeclosurehelpnow.com/%3Ca%20title=





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1 A motion (Doc. 12) to dismiss Quality Loan Service Corporatioas a party to this matter and Defendants’ motion to strike (Doc. 8are also pending.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

BARBARA J. FORDE, ))

Plaintiff, ) CIV 10-01922 PHX MEA )

v. ) ORDER

)FIRST HORIZON HOME LOAN )CORPORATION, METLIFE HOME )LOANS, BANK OF NEW YORK )

MELLON, MORTGAGE ELECTRONIC )REGISTRATION SYSTEMS, INC., )QUALITY LOAN SERVICE )CORPORATION, )

)Defendants. )

_____________________________ )

All of the parties to this matter have agreed

magistrate judge jurisdiction over the proceedings, includi

the entry of final judgment. Before the Court is Plaintiff

motion (Doc. 10) to remand this matter to the state court.1

On August 3, 2010, Plaintiff, proceeding pro se, file

a complaint to quiet title to real property in the Marico

County Superior Court. Plaintiff also alleged Defendants we

liable to her for monetary damages based on Defendants’ brea

of contract. The complaint further asserted causes of acti

Case 2:10-cv-01922-MEA Document 27 Filed 12/06/10 Page 1 of 11



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based on negligence and fraud. The claims derive from

$650,000 residential home loan to Plaintiff from First Horiz

Home Loan Corporation. The complaint filed in state court al

sought injunctive relief, i.e., to vacate a substitution trustee and assignment of deed of trust and Notice of Trustee

Sale.

On September 20, 2010, Defendants Metlife Home Loan

Bank of New York Mellon, First Horizon Home Loans, and Mortga

Electronic Registration Systems Incorporated, filed a Notice

Removal in this Court. Defendants assert complete diversity

the parties and the amount in controversy as the sole basis f

the Court’s jurisdiction over the complaint filed by Plainti

in state Superior Court. On September 22, 1010, the

Defendants filed a motion to strike the complaint filed in t

state Superior Court, citing Rules 8(a)(2) and (d)(1) of t

Federal Rules of Civil Procedure.

Plaintiff filed a motion to remand her suit to t

state court on September 24, 2010, arguing that Defendan

failed to comply with the technical requirements for remova

Defendants filed a response to the motion to remand (Doc. 13

In her reply to the response to her motion to remand, Plainti

concedes that Defendants have met the technical requirements f

removal, but Plaintiff now contends that the case should

remanded to the state court because of the nature of the caus

of action. See Doc. 22. The Court notes that no party to th

matter indicates there are or have been federal questions

this matter which would confer jurisdiction on a basis oth




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than diversity.

The Court concludes judicial economy, fairness, comit

the existence of novel issues under Arizona law, and t

necessity for the Court to interpret Arizona state statutweigh heavily in favor of the Court declining jurisdiction ov

this matter. Remand at this time will reduce litigation cos

and eliminate any need to certify novel state-law issues to t

Arizona Supreme Court or speculate how the Arizona Supreme Cou

would rule on those issues.

The Court acknowledges that it has a “virtual

unflagging obligation” to exercise its jurisdiction. Colora

River Water Conservation Dist. v. United States, 424 U.S. 80

817-18, 96 S. Ct. 1236, 1246-47 (1976). The United Stat

District Courts have an obligation and a duty to decide cas

properly before them, and “[a]bstention from the exercise

federal jurisdiction is the exception, not the rule.” Id., 4

U.S. at 813, 96 S. Ct. at 1244. However, in certain exception

circumstances, the Court can and should decline to exerci

jurisdiction. “Pragmatic considerations of judicial efficienc

as well as reasons of comity between federal and state courts

have led the United States Supreme Court to construct sever

abstention doctrines. Hanlin Grp., Inc. v. Power Auth. of t

State of New York, 703 F. Supp. 305, 307 (S.D.N.Y. 1989).

A District Court may abstain from consideration of t

merits of a diversity case because of unclear state la

Railroad Comm’n of Texas v. Pullman Co., 312 U.S. 496, 499-50

61 S. Ct. 643, 644-45 (1941); Louisiana Power & Light Co.




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City of Thibodaux, 360 U.S. 25, 28-29, 79 S. Ct. 1070, 1073-

(1959). Abstention is also proper when necessary to avo

needless conflict with state administrative procedures. S

Burford v. Sun Oil Co., 319 U.S. 315, 327, 63 S. Ct. 1098, 11(1943). The Court may properly abstain from exercisi

diversity jurisdiction when a similar legal action is pending

state court. See Colorado River Water Conservation Dist., 4

U.S. at 817-18, 96 S. Ct. at 1246-47. When the requirements f

abstention are present, the District Court’s decision to absta

from exercising diversity jurisdiction is a matter within t

Court’s discretion. See Fireman’s Fund Ins. Co. v. Quackenbus

87 F.3d 290, 294 (9th Cir. 1996).

Burford abstention

[T]he Supreme Court has stated that Burfordabstention is appropriate in two situations.First, federal courts should abstain fromdeciding difficult questions of state lawbearing on policy problems of substantialpublic import whose importance transcends theresult in the case then at bar. We shouldalso abstain from the exercise of federalreview that would be disruptive of stateefforts to establish a coherent policy withrespect to a matter of substantial publicconcern.

International Coll. of Surgeons v. City of Chicago, 153 F.

356, 362 (7th Cir. 1998) (internal citations and quotatio

omitted).

The Supreme Court has characterized Burford abstenti

as appropriate where the “exercise of federal review of t

question in a case and in similar cases would be disruptive

state efforts to establish a coherent policy with respect to




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matter of substantial public concern.” Colorado River, 424 U.

at 814, 96 S. Ct. at 1244. See also Allegheny County v. Fra

Mashuda Co., 360 U.S. 185, 189, 79 S. Ct. 1060, 1063 (1959

The purpose of Burford abstention is to “avoid resolvidifficult state law issues involving important public polici

or avoid interfering with state efforts to maintain a cohere

policy in an area of comprehensive regulation

administration.” American Disposal Serv., Inc. v. O’Brien, 8

F.2d 84, 87 (2d Cir. 1988). See also City of Tucson v. U.

West Commc’ns, Inc., 284 F.3d 1128, 1132 (9th Cir. 2002). T

propriety of Burford abstention may be raised sua sponte. Se

e.g., National Commc’n Sys., Inc. v. Michigan Pub. Serv. Comm’

789 F.2d 370, 372 (6th Cir. 1986); Chandler v. Omnicare/The HM

Inc., 756 F. Supp. 187, 189-90 (D.N.J. 1990).

While District Courts may abstain from hearing a matt

to avoid interfering with complex state administrati

processes, abstention is not required “whenever there exis

such a process, or even in all cases where there is a ‘potenti

for conflict’ with state regulatory law or policy.” New Orlea

Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.

350, 362, 109 S. Ct. 2506, 2515 (1989). Moreover, a Distri

Court should not abstain merely because there are complex a

difficult issues of state law involved in the controversy befo

it. Meredith v. Winter Haven, 320 U.S. 228, 236, 64 S. Ct.

12 (1943).

When deciding whether to invoke Burford abstention t

Court must consider the underlying rationale of administrati




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abstention. Federal courts evaluating the wisdom of abstaini

pursuant to Burford have considered whether the case before t

court is based on federal or state law; the degree

specificity of the state regulatory scheme at issue; tnecessity of discretionary interpretation of state statutes

resolve the matter; and whether the subject matter of t

litigation is traditionally one of state concern. See, e.g

Wilson v. Valley Elec. Membership Corp., 8 F.3d 311, 314 (5

Cir. 1993); Bethphage Lutheran Serv., Inc. v. Weicker, 777

Supp. 1093, 1098 (D. Conn. 1991). Abstention in a diversi

matter is warranted when the state has concentrated sui

involving the local issue in a particular court; the feder

issues are not easily separated from complicated state l

issues with which the state courts may have special competenc

and federal review might disrupt state efforts to establish

coherent policy. Poulos v. Caesars World, Inc., 379 F.3d 65

671 (9th Cir. 2004); City of Tucson, 284 F.3d at 1133; Unit

States v. Morros, 268 F.3d 695, 705 (9th Cir. 2001).

The issues involved in this suit, i.e., Defendant

compliance with state law regarding real property mortgages a

foreclosure, are issues subject to specific Arizona statuto

and regulatory schemes and involving complex sta

administrative processes. Because Burford abstention “

concerned with protecting complex state administrative process

from undue federal interference,” Tucker v. First Md. Sav.

Loan, Inc., 942 F.2d 1401, 1404 (9th Cir. 1991) (intern

quotation marks omitted), the Court concludes it should absta




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from exercising diversity jurisdiction over the complaint

this matter.

Younger Abstention

The “Younger” doctrine of abstention, which providthat federal courts are not to interfere with pending sta

criminal proceedings, also applies to civil cases and sta

administrative proceedings. See Middlesex County Ethics Com

v. Garden State Bar Ass’n, 457 U.S. 423, 432, 102 S. Ct. 251

2521 (1982); Huffman v. Pursue Ltd., 420 U.S. 592, 604-05, 95

Ct. 1200, 1208 (1975); Younger v. Harris, 401 U.S. 37, 40-41,

S. Ct. 748-49 (1971). As with Burford abstention, the Court m

raise the issue of Younger abstention sua sponte. SeeO’Neil

v. Coughlan, 511 F.3d 638, 641-43 (6th Cir. 2008); Morrow

Winslow, 94 F.3d 1386, 1390-91 (10th Cir. 1996); O’Neill v. Ci

of Philadelphia, 32 F.3d 785, 786 n.1 (3d Cir. 1994).

Under the Younger doctrine, a federal District Cou

must abstain from hearing a federal case when that ca

interferes with state judicial proceedings. Additionally, t

District Courts are prevented from enjoining pending sta

judicial proceedings, absent extraordinary circumstances. S

Middlesex County Ethics Comm., 457 U.S. at 437, 102 S. Ct.

2524. Younger abstention is appropriate when: (1) there a

ongoing state proceedings that are judicial in nature; (2) t

state proceedings implicate important state interests; and (

the state proceedings provide an adequate opportunity to rai

any federal claims. See, e.g., Lazaridis v. Wehmer, 591 F.

666, 670 (3d Cir. 2010).




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It appears that there are on-going state proceedin

for the foreclosure of Plaintiff’s real property. Additionall

Arizona has an important interest in resolving real proper

issues. A ruling on the issues in Plaintiff’s complaint by tArizona courts implicates the important interest of preservi

the authority of the state’s judicial system free fr

interference by the District Court. See, e.g., Prindable v

Association of Apartment Owners of 2987 Kalakaua, 304 F. Sup

2d 1245, 1262 (D. Haw. 2003) (finding foreclosure and ejectme

proceedings are important state interests under the Young

doctrine).

Plaintiff’s complaint raises no potential feder

claims. Accordingly, pursuant to Younger and its progeny, t

Court should abstain from reaching the merits of this matte

See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 15, 107 S. C

1519, 1528 (1987).

Rooker-Feldman abstention

The fact that a foreclosure judgment has been enter

against Plaintiff by a state court is sufficient to invoke t

doctrine of “Rooker-Feldman” abstention. The District Cou

should decline jurisdiction over any claims relying

allegations of wrongful foreclosure.

The doctrine established by the Rooker and Feldm

cases essentially holds that the federal District Court does n

have subject matter jurisdiction over cases brought

“state-court losers” complaining of injuries caused by sta

court judgments, or over cases inviting the District Court




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review and reject state court judgments. See Exxon Mobil Cor

v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S. Ct. 151

1522 (2005). The doctrine is generally applied in cases where

the plaintiff files a suit in the federal court to vacatestate court’s foreclosure.

The Rooker Feldman doctrine allows federal courts

decline diversity jurisdiction when

(1) the party in federal court is the same asthe party in state court; (2) the prior statecourt ruling was a final or conclusivejudgment on the merits; (3) the party seekingrelief in federal court had a reasonableopportunity to raise its federal claims inthe state court proceeding; and (4) the issuebefore the federal court was eitheradjudicated by the state court or wasinextricably intertwined with the statecourt’s judgment.

Storck v. City of Coral Springs, 354 F.3d 1307, 1310 n.1 (11

Cir. 2003) (quotation marks and citation omitted). The Supre

Court clarified the reach of the Rooker-Feldman doctrine

Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 1

S. Ct. 1517 (2005). The Supreme Court carefully prescribed t

circumstances in which the doctrine applies: (1) there was

state court action; (2) one party lost; (3) judgment was enter

in the state court action against the losing party; (4) t

losing party commenced a new action complaining of injuri

caused by the state court judgment; and (5) the new acti

invited the district court to review and reject the state cou

judgment. Exxon Mobil Corp., 544 U.S. at 284, 125 S. Ct.

1522.




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Citing the Rooker-Feldman doctrine, in a string

recent unpublished decisions the federal courts have uniform

determined that federal suits seeking the recision of a mortga

loan contract, or alleging that a lender’s malfeasance resultin a foreclosure, belong in the state courts. The courts ha

reached this conclusion even when the plaintiff originates t

suit in federal court and asserts a claim based on the feder

Truth in Lending Act (“TILA”). See, e.g., Parker v. Potter, 3

Fed. App. 945 (11th Cir. 2010); Dempsey v. JP Morgan Chase Ban

N.A., 272 Fed. App. 499, 502 (7th Cir. 2008); Jacobowitz v.

& T Mortg. Corp., 2010 WL 1063895, at *2 (3d Cir.). See al

Battah v. ResMAE Mortg. Corp., ___ F. Supp. 2d ___, 2010

4260530, at *3 (E.D. Mich. 2010).

In the context of a state court foreclosureproceeding, Rooker-Feldman prohibits claimsbrought in federal court that may “succeedonly to the extent that the state courtwrongly decided the foreclosure action.”Postma v. First Federal Sav. & Loan of SiouxCity, 74 F.3d 160, 162 (8th Cir. 1996).District courts within the Fourth Circuithave consistently reached the sameconclusion. See, e.g., Turner v. E. SavingsBank, FSB, No. 09cv2637, 2010 WL 1409858, at*3 (D. Md. Apr. 2, 2010); Brumby v. DeutscheBank Nat. Trust Co., No. 1:09cv144, 2010 WL617368, at *3-4 (M.D.N.C. Feb. 17, 2010);Lawson v. Allegacy Fed. Credit Union, No.1:08cv832, 2009 WL 3381532, at *2 (M.D.N.C.Oct. 16, 2009); Nott v. Bunson, No. 09cv2613,2009 WL 3271285, at *2 (D. Md. Oct. 9, 2009).

Poindexter v. Wells Fargo Bank, N.A., 2010 WL 3023895, at

(W.D.N.C.).




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Conclusion

Given the nature of the Arizona foreclosure process,

is difficult to determine when the rights of the parti

regarding the subject residential property are completedetermined. The Court is left with a single conclusion bas

upon alternative doctrines. Because this matter involv

evolving issues of state administrative law, the notions

comity and judicial economy implicate Burford abstentio

Pursuant to the Rooker-Feldman doctrine, the Court shou

decline to conduct an appellate-like review over the ord

authorizing the sale of the real property. Alternatively,

there has been no final determination of the rights of t

parties because the foreclosure process has not been conclude

then the Court should abstain under the Younger doctrine.

Accordingly,

IT IS ORDERED that Plaintiff’s motion (Doc. 10)

remand this matter to state court is granted. The Clerk of th

Court shall engage in the process required for remand of th

matter to the state Superior Court from which it was removed

IT IS FURTHER ORDERED that the pending motions at Do

8 and Doc. 12 are denied without prejudice.

DATED this 3rd day of December, 2010.




IN THE UNITED STATE DISTRICT COURT FOR THE

DISTRICT OF ARIZONA

Barbara J. Forde, a married woman dealing with her sole

and separate property, Plaintiff,

v.

First Horizon Home Loan Corporation et al ,

Defendants

NOTICE OF REMOVAL



1335176.1 09/07/2010 1

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GUST ROSENFELD P.L.C.One East Washington Street, Suite 1600Phoenix, AZ 85004-2553Telephone No. 602-257-7496Facsimile No. 602-254-4878

Richard A. [email protected] M. McNichol - [email protected]

Attorneys for Attorneys for Defendants First Horizon Home Loans, a division of First Tennessee Bank National Association; MetLife Home Loans, a division of MetLife Bank N.A.; The Bank of New

York Mellon f/k/a The Bank of New York, as Trustee for the Holders of the Certificates, First

Horizon Mortgage Pass-Through Certificates Series FH05-FA8; and Mortgage Electronic

Registration Systems, Inc.

IN THE UNITED STATE DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Barbara J. Forde, a married woman dealingwith her sole and separate property,

Plaintiff,

v.

First Horizon Home Loan Corporation, aKansas Corporation; Metlife Home Loans,

a division of Metlife Bank, NA; The Bank of New York Mellon f/k/a The Bank of New York, as Trustee for the Holders of the Certificates, First Horizon MortgagePass-Through Certificates Series FH05-FA8; First Horizon Home Loans, adivision of First Tennessee Bank NationalAssociation; Mortgage ElectronicRegistration Systems, Inc., a DelawareCorporation; Quality Loan ServiceCorporation, a California Corporation;John and Jane Does 1-15, XYZ

Corporations 1-15; ABC Limited LiabilityCompanies 1-15; and 123 BankingAssociations 1-15,

Defendants.

)))))))))

))))))))))))

)))))))

No.

NOTICE OF REMOVAL




1335176.1 09/07/2010 2

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Defendants First Horizon Home Loans, a division of First Tennessee

Bank National Association; MetLife Home Loans, a division of MetLife Bank N.A.;

The Bank of New York Mellon f/k/a The Bank of New York, as Trustee for the Holders

of the Certificates, First Horizon Mortgage Pass-Through Certificates Series FH05-FA8;

and Mortgage Electronic Registration Systems, Inc., by and through their undersigned

attorneys, and pursuant to 28 U.S.C. § 1446, removes this case from the Superior Court

of the State of Arizona, in and for the County of Maricopa (Maricopa Case No.

CV2010-053734), in which it is currently pending, to the United States District Court

for the District of Arizona.

1. This action is removable pursuant to 28 U.S.C. § 1332 and § 1441,

governing removal for diversity of citizenship-based cases. The plaintiff resides in

Arizona. None of the Defendants are incorporated in or have their principal place of

business in Arizona. Defendant First Horizon Home Loans is a division based in Texas

of First Tennessee Bank National Association whose principal place of business is

Tennessee; Defendant MetLife Home Loans is a division of MetLife Bank N.A. whose

principal place of business is in New Jersey; The Bank of New York Mellon f/k/a The

Bank of New York, as Trustee for the Holders of the Certificates, First Horizon

Mortgage Pass-Through Certificates Series FH05-FA8's principal place of business is in

New York; and Mortgage Electronic Registration Systems, Inc., is a Delaware legal

entity which has its principal place of business in Washington D.C. (collectively, the

“Defendants”).

2. Defendant Quality Loan Service Corporation is a California legal entity

which has its principal place of business in California. Defendant Quality Loan Service

Corporation is separately represented and has consented to this removal.

. . .




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3. Diversity of citizenship is found pursuant to 28 U.S.C. § 1332(a)(1).

4. On or about August 3, 2010, plaintiff commenced this action in the

Superior Court of the State of Arizona in and for the County of Maricopa, case number

CV2010-053734.

5. Some of the Defendants received a copy of the complaint as early as

August 6, 2010, by purported service.

6. This Notice of Removal is being filed within thirty (30) days (absent final

weekend and holiday) of the first purported service of the complaint, and is, therefore,

timely and proper pursuant to the provisions of 28 U.S.C. § 1446(b).

7. Attached are copies of all process and pleadings related to this action that

have been received by the Defendants.

8. The plaintiff alleges in the complaint that she is entitled to unspecified

damages, but seeks relief as to a $650,000 loan secured by real property, which relief

thus may exceed $75,000.

9. Written notification of the filing of this notice of removal, together with a

copy of this Notice of Removal, will be provided to the plaintiff and the other

Defendant and will be filed with the Superior Court of the State of Arizona in and for

the County of Maricopa, pursuant to 28 U.S.C. § 1446(d).

10. No prohibition exists that would prevent removal of this action.

. . .




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WHEREFORE, Defendants request that this action proceed in this court

as an action properly removed to it.

Dated: September 7, 2010.

GUST ROSENFELD P.L.C.

By s/Christopher M. McNichol 011023Richard A. SegalChristopher M. McNicholAttorneys for Defendants First HorizonHome Loans, a division of FirstTennessee Bank National Association;MetLife Home Loans, a division of MetLife Bank N.A.; The Bank of New

York Mellon f/k/a The Bank of NewYork, as Trustee for the Holders of theCertificates, First Horizon MortgagePass-Through Certificates Series FH05-FA8; and Mortgage ElectronicRegistration Systems, Inc.

Original efiled and copyprovided on September 7, 2010, to:

Barbara J. Forde20247 N. 86th StreetScottsdale, AZ 85255Plaintiff

Paul M. Levine, Esq.McCarthy, Holthus & Levine8502 E. Via de Ventura, Suite 200Scottsdale, Arizona 85258 Defendant Quality Loan Service Corporation s/ C.L. Scherff




~ J S 44 (Rev. 12/07) CIVIL COVER SHEET

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the fil ing and service of pleadings or other papers as required by law, except as proviby local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of mitiatthe civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

I. (a) P L A I N T I F F S

Barbara J. Forde

D E F E N D A N T S

First Horizon Home Loan Corporation, et al.

(b) County of Residence of First Listed Plaintiff _M__a _ r . . . ; i c ; . . ; o ; . . & p ; . . ; a ~ _____ County of Residence of First Listed Defendant

(EXCEPT IN U.S. PLAINTIFF CASES)

(c ) Attorney's (Finn Name, Address, and Telephone Number)

Barbara J. Forde, 20247 N. 86th Street, Scottsdale, AZ 85255

602-721-3177

(IN U.S . PLAINTIFF CASES ONLy)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCA TION OF THE

LAND INVOLVED.

Attorneys (lfKnown)

Richard A. Segal and Christopher M. McNichol, Gust

Rosenfeld. One East Washin ton Ste 1600 Phoenix, AZ

II. B A S I S O F J U R I S D I C T I O N (Place an "X" in One Box Only) III. C I T I Z E N S H I P O F P R I N C I P A L PARTIES(Place an "X" in One Box for Plain

o I u.s.Government

Plaintiff

o 2 U.S. Government

Defendant

o 110 Insurance

o 120 Marine

o 130 Miller Act

o 140 Negotiable Instrument

o 150 Recovery of Overpayment

& Enforcement of Judgment

o 151 Medicare Act

o 152 Recovery of Defaulted

Student Loans

(Excl. Veterans)

o 153 Recovery of Overpayment

of Veteran's Benefits

o 160 Stockholders' Suits

190 Other Contract

o 195 Contract Product Liability

o 196 Franchise

o 220 Foreclosure

o 230 Rent Le ase & Ejectment

o 240 Torts to Land

o 245 Tort Product Liability

o 290 AlI Other Real Property

o 3 Federal Question

(U.S. Govenunent Not a Party)

a 4 Diversity

(Indicate Citizenship of Parties in Item 1II)

(For Diversity Cases Only)

PTFCitizen of This State I

and One Box for Defendant)

DEF PTF DEF

o 1 Incorporated or Principal Place 0 4 0 4

of Business In This State

Citizen of Another State o 2 0 2 Incorporated and Principal Place

of Business In Another State

o 5 i'!II 5

o o 3 Foreign Nation o 6 0 6

400 State Reapportionment

410 Antitrust

430 Banks and Banking

450 Commerce

460 Deportation

470 Racketeer Influenced and

Corrupt Organizations

o 480 Consumer Credit

o 490 Cable/Sat TV

o 810 Selective ServiceF " ' ; ' ; ' ' ; ' ' ; ; ~ ~ : - = : ~ - - - - - i - - : : : " : ' : = ' ' ' : ' ' ' ' : ' " - = = - = - : = o : - - - - i 850 SecuritieslCommoditiesl

ther Immillllltion

elias

Exchange

o 875 Customer Challenge

12 US C 3410

o 890 Other Statutory Actions

o 891 Agricultural Acts~ ~ ~ ~ ~ ~ ~ " " " " , = ~ . . - 0 4 892 Economic Stabilization A

o 893 Environmental Matters

o 894 Energy Allocation Act

o 895 Freedom oflnfonnation

Act

o 900Appeal of Fee Detennina

Under Equal Access

to Justice

o 950 Constitutionality of

State Statutes

V. O R I G I N

01 OriginalProceeding

(Place an "X" in One Box Only)

2 Removed from 0 3 Remanded from 0 4 Reinstated or 0 5 Transferred from 0 6 MultidistrictState Court Appellate Court Reopened another dlstnct Litigation

o 7

Appeal to DistrJudge fromMagistrate

s eel Jud ment

C Q B t ~ . T S \ P ~ k ~ t J ~ ~ ~ n f ~ J Y 1 , i c f 4 ~ ~ ~ r ~ A ~ , . 4 ~ ~ n o t cite jurisdictional statu tes unless diversity):

VI. C A U S E O F A C T I O N I-B-r-ie-f-de-s-cr-ip-ti-o-n-of-c-a-us-e-:----------------------------------breach ot contract, qu iet title, negligence, traud

VII. R E Q U E S T E D IN

C O M P L A I N T :

VIII. R E L A T E D C A S E ( S )

IF ANY

DATE

09/07/2010

FOR OFFICE USE ONLY

o CHECK IF THIS IS A CLASS ACTION DEMAND S

UNDER F.R.CP. 23 650,000.00

(See instructions) :

RECEIPT # AMOUNT APPL YING IFP

CHECK YES only if demanded in complaint:

JURY DEMAND: Yes 0 No

DOCKET NUMBER

JUDGE MAG. JUDGE

-------------

Case 2:10-cv-01922-MEA Document 1-1 Filed 09/07/10 Page 1 of 1



CMM:cls 1335420 9/7/2010

Page 1 of 2

SUPPLEMENTAL CIVIL COVER SHEET

FOR CASES REMOVED FROM ANOTHER JURISDICTION

This form must be attached to the Civil Cover Sheet at the time the case is filed in theUnited States District Clerk's Office.

Additional sheets may be used as necessary.

1. Style of the Case:

Please include all Plaintiff(s), Defendant(s), Intervenor(s),

Counterclaimant(s), Crossclaimant(s) and Third Party Claimant(s) still

remaining in the case and indicate their party type. Also, please list theattorney(s) of record for each party named and include their bar number,

firm name, correct mailing address, and phone number (including area

code).

Party Party Type Attorney(s)

Barbara J. Forde Plaintiff Pro Per20247 N. 86th Street

Scottsdale, AZ 85255

Tel: (602) [email protected]

Attorneys for DefendantsFirst Horizon Home Loans, adivision of First TennesseeBank National Association;

MetLife Home Loans, adivision of MetLife Bank N.A.; The Bank of New York Mellon f/k/a The Bank of New York, as Trustee for theHolders of the Certificates,First Horizon Mortgage Pass-Through Certificates SeriesFH05-FA8; and MortgageElectronic RegistrationSystems, Inc.

Defendants Richard A. Segal - 000877

Christopher M. McNichol – 011023Gust Rosenfeld, PLC

One East Washington, Suite 1600

Phoenix, AZ 85004-2553Tel: (602) 257-7422

[email protected]

[email protected]

Quality Loan ServiceCorporation Defendant Paul M. Levine, Esq.McCarthy, Holthus & Levine8502 E Via de Ventura, Suite 200

Scottsdale, Arizona 85258

Tel: (602) [email protected]




CMM:cls 1335420 9/7/2010

Page 2 of 2

2. Jury Demand:

Was a Jury Demand made in another jurisdiction? X Yes

3. Answer:

Was an Answer made in another jurisdiction? X No

4. Served Parties:

The following parties have been served at the time this case was removed:

Party Date Served Method of Service

MetLife Home Loans, a

division of MetLife Bank, NA

08/06/10 Personal in Texas

First Horizon Home Loans, a

division of First TennesseeBank National Association

08/06/10 Personal in Texas

Quality Loan ServiceCorporation

Unknown Unknown

5. Unserved Parties:

The following parties have not been served at the time this case was removed:

The Bank of New York Mellon f/k/a The Bank of New York, as Trustee for the

Holders of the Certificates; and Mortgage Electronic Registration Systems, Inc.

6. Nonsuited, Dismissed or Terminated parties:

Please indicate changes from the style of the papers from another jurisdiction andthe reason for the change: N/A.

7. Claims of the Parties:

The filing party submits the following summary of the remaining claims of each

party in this litigation:

Party Claim(s)

Plaintiff Breach of Contract; Quiet Title, Negligence andFraud

Pursuant to 28 U.S.C. § 1446(a) a copy of all process, pleadings and orders served inanother jurisdiction (State Court) shall be filed with this removal.




1 Barbara J. FWde, #013220

20247 N. 86 Street2 Scottsdale, AZ 85255

(602) 721-31773 Pro Se Plaintiff

COpy

AUG 0 3 2010

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SUPERIOR COURT OF ARIZONA

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MARICOPA COUNTY

BARBARA J. FORDE, a married woman CV '2DID - Q5313 ,4dealing with her sole and separate No.

property,

Plaintiff,

v.

FIRST HORIZON HOME LOAN

CORPORATION, a Kansas Corporation;METLIFE HOME LOANS, a division ofMETLIFE BANK, NA ; THE BANK OF

NEW YORK MELLON fIkIa THE

BANK OF NEW YORK, as Trustee forthe HOLDERS OF THE

CERTIFICATES, FIRST HORIZON

MORTGAGE PASS-THROUGHCERTIFICATES SERIES FH05-FA8;

FIRST HORIZON HOME LOANS, adivision of FIRST TENNESSEE BANK

NATIONAL ASSOCIATION;

MORTGAGE ELECTRONIC

REGISTRATION SYSTEMS, INC., aDelaware Corporation; QUALITY LOAN

SERVICE, CORPORATION, a CaliforniaCorporation; JOHN AND JANE DOES lIS, XYZ CORPORATIONS 1-15; ABC

LIMITED LIABILITY COMPANIES lIS; and 123 BANKING ASSOCIATIONS

1-15,

Defendants.

COMPLAINT FOR INJUNCTIVERELIEF AGAINST ALLDEFENDANTS; VACATESUBSTITUTION OF TRUSTEE,ASSIGNMENT OF DEED OF TRUST,and NOTICE OF TRUSTEE'S SALE;QUIET TITLE TO PLAINTIFF;BREACH OF DUTY OF GOODFAITH AND FAIR DEALING;NEGLIGENT PERFORMANCE OFUNDERTAKlNG;FRAUDULENTMISREPRESENTATION/

FRAUDULENT CONCEALMENT;FRAUD; CONSUMER FRAUD

JURY TRIAL DEMANDED

COMES NOW Plaintiff Barbara J. Forde, and for her cause of action against Defendants




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1 and alleges as follows:

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1. At all times mentioned herein, Plaintiff has been in possession of her property a

20247 North 86th Street, Scottsdale, Arizona, 85255 (the "Property"). She is a resident o

Maricopa County, Arizona and has held title to the Property since March of 2002.

2. Venue is proper in this Court, as the Property is located within its jurisdiction in

Maricopa County, Arizona, and because Plaintiffs are still in possession of said Property, mor

fully described as:

LOT 21, OF GRAYHAWK PARCEL 3j, ACCORDING TO THE PLAT OFRECORD IN THE OFFICE OF THE COUNTY RECORDER OF MARICOPACOUNTY, ARIZONA, RECORDED IN BOOK 536 OF MAPS, PAGE 15

[exception deleted].

PARTIES

3. At all relevant times, Defendant First Horizon Home Loans Corporation ("Firs

Horizon") is a Corporation formed under the laws of the state of Kansas, having an address o

4000 Horizon Way, Irving, Texas 75063. First Horizon is listed as the Lender in the origina

InterestFirst Note ("Note") dated August 1, 2005, and on the Deed of Trust ("DOT") date

August 1, 2005, recorded in the Maricopa County Recorder's Office at Document No. 2005

1125547 on August 8, 2005, allegedly securing the original principal amount of $650,000.00

First Horizon's authority to conduct business in Arizona was revoked on April 25, 2008.

4. On information and belief, MetLife Home Loans, a division of MetLife Bank

N.A. ("MetLife"), has been the servicer of the Note, or the lender. MetLife's principal place o

business is 4000 Horizon Way, Irving, Texas, 75063. MetLife Bank is a national bankin

association regulated by the Office of he Comptroller of the Currency ("OCC").

IIII

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'I

5. At all relevant times, Defendant Mortgage Electronic Registration Systems, Inc

("MERS") is a Corporation formed under the laws of the state of Delaware. MERS is listed a

the Beneficiary in the DOT, and "is a separate corporation that is acting solely as a nominee fo

Lender and Lender's successors and assigns." On information and belief, MERS has no authorit

to conduct business of any kind in Arizona.

6. On April 14, 2010, MERS assigned the DOT to The Bank of New York Mello

f/k/a The Bank ofNew York ("BNY Mellon"), as Trustee for the holders of the Certificates, Fir

Horizon Mortgage Pass-Through Certificates Series FH05-F A8, by First Horizon Home Loans,

division of First Tennessee Bank National Association, Master Servicer, in its capacity as agen

for the Trustee under the Pooling and Servicing Agreement. The Assignment was recorded o

April 15, 2010.

7. On information and belief, the First Horizon Mortgage Pass-Through Certificat

Series FH05-FA8 is governed by the First Horizon Alternative Mortgage Securities Trust 2005

FA8 (the "Trust"). This Trust contains assets of approximately $537,837,255, which may includ

the Note. The trustee of the Trust is BNY Mellon. On information and belief, BNY Mellon i

regulated by the OCC.

8. Plaintiff is unaware of the identity of the Certificate Holders for whom BNY

Mellon is Trustee, at present. If the Certificate Holders are indispensable parties, BNY Mello

must reveal their identities and Plaintiff will amend the Complaint to add them as defendants.

9. First Horizon Home Loans ("FHHL") is a trade name registered at the Arizon

Corporation Commission on July 26, 2007, and is owned by First Tennessee Bank Nationa

Association (First Tennessee"), domiciled in Tennessee. On information and belief, FHHL is

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division of First Tennessee and is the Master Servicer/agent for Trustee BNY Mellon under

Pooling and Servicing Agreement which may pertain to this loan. First Tennessee is regulated b

the OCC. FHHL is not registered as a subsidiary ofFirst Tennessee, with the OCC.

10. At all relevant times, Defendant Quality Loan Service, Corporation ("QLS") is

Corporation formed under the laws of the state of California, having a principal address of 214

5th

Avenue, San Diego, California 92101. QLS is conducting business in Arizona as a foreclosur

mill on behalfofFirst Horizon and, on information and belief, many other lenders.

11. Plaintiff is currently unaware of the identity and capacity of JOHN AND JAN

DOES 1 through 15, XYZ CORPORATIONS 1 through 15, XYZ LIMITED LIABILITY

COMPANIES 1 through 15, and 123 BANKING ASSOCIATIONS 1-15, but will amend th

Complaint when their identities have been ascertained. Plaintiff alleges upon information an

belief, however, that each and every presently unknown Defendant is in some manner responsibl

for the acts or conduct of other Defendants, or were andlor are responsible for the injuries

damages, and harm incurred by Plaintiff.

FACTS

12. On August 1, 2005, Plaintiff refmanced her home loan and entered into the Not

and DOT with First Horizon in the amount of $650,000.00. The Note is an interest-only Not

accruing interest at the rate of 6.625% for the fITst 10 years. First Horizon is the lender on th

Note. An unauthenticated copy of the Note is attached hereto as Exhibit "A."l First Horizon i

also listed as the lender on the Deed of Trust, but MERS is listed as nominee for Lender, and

MERS is the only beneficiary under the Deed of Trust. See Deed of Trust, attached hereto a

1In response to Plaintiff's dispute of a Debt Validation Notice, QLS sent Plaintiff this unauthenticated copy of the Note

Plaintiff is unaware if this is an actual copy of the original Note she signed; it certainly does not include copies of allonges o

endorsements, and therefore is an incomplete copy.

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Exhibit "B," showing First Horizon as the Lender, North American Title as the Trustee, and

MERS as the sole Beneficiary.

13. MERS was created by a group of lenders who selVtrade promissory notes secured

by deeds of trust/mortgages. The purpose for MERS is to save lenders, investors and others who

buy and/or sell mortgage loans, the effort and expense of recording an assignment of the deed o

trust or mortgage each time the note associated with that deed of trust or mortgage is sold.

14. Lenders capitalizing on the pooling of mortgages and packaging them for sale

would name MERS as nominee on the deed of trust or mortgage, with MERS as sole beneficiary

After that, regardless of how many times a note was sold or transferred, the deed o

trust/mortgage was not transferred with it. The deed of trust/mortgage remained in the name o

MERS.

15. Home loans which are set up with the deed of trust/mortgage going straight t

15 MERS as sole beneficiary, separate the note and the deed of trust/mortgage, from the closing dat

16 forward.

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16.

17.

MERS rarely, if ever, takes possession ofpromissory notes.

MERS has no financial interest in any promissory note, or deed of trust/mortgag

assigned to it. Its only function is to keep the security in its name to save those benefitting from

the buying and selling ofmortgage-backed securities, any recording fees.

18. MERS has saved lenders and others using its services over two billion dollar

($2,000,000,000) since its inception in 1999.

19. MERS requires those which use MERS' services to be members ofMERS.

20. Members of the public, whose deed of trust/mortgage are in MERS' name, ar

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blocked from access to the database which allegedly contains information about who owns th

promissory note related to the deed of trust/mortgage signed by the borrower, or any othe

information about a particular note and deed of trust, other than the name of the loan servicer.

21. As the economy took a turn for the worse in 2008, Plaintiff began to hav

difficulty making her mortgage payments and meeting other creditor obligations as they becam

due. She contacted First Horizon for assistance. First Horizon told Plaintiff that loa

modification programs were available for her, and mailed Plaintiff a loan modification packag

with a cover letter, dated December 4, 2008. The letter began, "We listen. We understand. W

care. Most importantly, we want to help you." The letter continued, "[w]e hope you feel a

strongly about protecting your home as we do about trying to help you." As a result, Firs

Horizon lead Plaintiff to believe that First Horizon was on her side, and had as much motivatio

to assist her in keeping her home as she did. A copy of this December 4, 2008, letter is attache

hereto as Exhibit "C."

22. Plaintiff submitted her loan modification package (the "First Package") to the Firs

Horizon Loss Mitigation Department on December 5, 2008, which according to First Horizon

required only a copy of the last two months' pay stubs and a hardship letter explaining the reason

for the delinquency. Plaintiff was promised that she would receive a response from First Horizo

within fifteen (15) days.

23. Plaintiff then received a notice from FHHL, dated December 9, 2008, that he

mortgage was two months in arrears. The notice invited Plaintiff to call First Horizon "to discus

alternatives to foreclosure." The letter listed 4 different possibilities of ways in which Plaintif

would be allowed to modify her loan and keep. her home. Because Plaintiff has just submitted he

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First Package, she took no action in response to this letter.

24. Plaintiff then received a letter from FHHL dated December 31, 2008, indicating

that if she did not bring the loan current within 30 days, by January 30, 2009, her home would be

put into foreclosure.

25. On January 8, 2009, Plaintiff refaxed her request for a loan modification

indicating that the First Package was already submitted on December 5, but that no one ha

responded within the promised 15 days. Plaintiff also provided a 3-page Borrower Financia

Statement on First Horizon Home Loan's own form. She pleaded for someone to acknowledge

her request.

26. On January 9, 2009, Loan Counselor Latoya N. Freeman of MetLife Home Loan

e-mailed Plaintiff, confirming receipt of the faxed First Package. Ms. Freeman stated that 3

months ofprofit and loss statements would be required, and invited Plaintiff to submit them.

27.Within two hours, Plaintiff provided the requested profit and loss statements to

Ms. Freeman via e-mail.

28. On January 13, 2009, Plaintiff e-mailed Ms. Freeman to confirm that she had

received the profit and loss statements. Ms. Freeman responded that she had, and that the file was

"waiting to be assigned to a specialist." Plaintiff then asked Ms. Freeman about the lette

claiming that foreclosure would begin on January 30, and whether that was suspended. Ms

Freeman responded, "as long as the specialist has it you will be ok. It takes 30/45day [sic] for

review once the specialist has it."

29. On January 20, 2009, Plaintiff received a letter dated January 13, 2009, from

FHHL. The letter acknowledged receipt of Plainti ffs "workout package," and continued, "[t]he

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loss mitigation most likely to be approved to assist you in retaining possession of your home wil

be directed towards the present hardship....

" Plaintiff was again lead to believe that she wouldb

granted a modification, and quickly.

30. On January 26, 2009, Plaintiff again e-mailed Ms. Freeman, asking fo

confirmation that the demand of payment in full by January 30 had been withdrawn. Ms

Freeman responded, "[t]here is a temporary hold on the account pending loss mitigation review i

you have any questions please call 800-364-7662 x33805. We cannot communicate by emaiL"

31. Plaintiff was accordingly denied access to any individual who could answer he

questions and give her information. Plaintiff respected Ms. Freeman's request, and called th

number given for status checks of the First Package, thereafter.

32. On March 11, 2009, Plaintiff spoke with Anthony, who told her that the Firs

Package was still under review, but that Justin Ailey was her processor. Plaintiff left a messag

for Mr. Ailey requesting status. Plaintiff tried againon

March18

and April 2, 2009, to reach Mr

Ailey but he never answered his extension. Plaintiff left messages each time. Mr. Ailey neve

communicated with Plaintiff in any manner regarding the First Package, in spite of her repeate

requests for information. After January 26, 2009, Plaintiff was never able to again contact

person at First Horizon with actual knowledge of the First Package, in spite of her best efforts t

do so.

33. On April 8, 2009, Jim Montes of QLS, appointed his employer QLS as th

substitute trustee, in place of North American Title, through a Substitution of Trustee (the "Firs

Substitution"). Mr. Montes purported to sign as "attorney in fact" for First Horizon Home Loans

a division of First Tennessee Bank National Association. The Substitution claimed that Firs

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Horizon Home Loans was the present Beneficiary under the Deed of Trust. This assertion was in

fact false; MERS was the Beneficiary. The false First Substitution was recorded on April 10

2009, at Doc. No. 20090320518.

34. Also on April 8, 2009, Jim Montes of QLS, acting under the false Firs

Substitution, signed and recorded a Notice of Trustee's Sale (the "First Notice"), setting a sale

date of July 10, 2009. The First Notice was recorded on April 10, 2009, at Doc. No

20090320519.

35. On April 11, 2009, Plaintiff received a telephone call from Kristin S. High o

MetLife Home Loans, asking if Plaintiff was going to pay the past due balance, of $29,696.62, in

fulL Plaintiff told Ms. High that she had a loan modification package pending with First Horizon

Ms. High told Plaintiff that not only had the First Package been denied, but that foreclosure

proceedings had already been initiated, and her loan sent to a foreclosure attorney on April 8.

36. Shocked that she had been given no notice that the First Package had been denied

and no opportunity to bring the loan current before foreclosure proceedings were initiated and

attorney's fees incurred, Plaintiff asked what she could do to prevent the loss of her home. Ms

High suggested that Plaintiff submit another workout package and request that the foreclosure be

postponed. Ms. High indicated that Plaintiff's package would be given high priority status and

would quickly be reviewed due to the pending foreclosure.

37. On April 13, 2009, based on the encouragement from Ms. High, Plaintiff again

submitted a workout package (the "Second Package") to First Horizon. Her fmancial status had

improved in that she had more income and debt had been reduced.

38. Plaintiff called First Horizon on April 13, 2009, and spoke with Joe. She asked i

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making a payment would help, and he responded that no payment except payment in full, now

including attorney's fees and costs, would be accepted.

39. Accordingly, Ms. High's initial question to Plaintiff on April 11, regardin

Plaintiff s intentions of bringing the past due balance current, was made in bad faith. Th

foreclosure had already begun and nothing short of full reinstatement and attorney's fees an

costs, would have been accepted.

40. Days after the April 11 telephone call, Plaintiff received two letters from FHHL

One letter notified Plaintiff that her loan had been sent to McCarthy & Holthus to initiat

foreclosure and suggested she contact the Loss Mitigation Department if full reinstatement wa

not possible. The other letter also stated her loan had been sent to an attorney for foreclosure, and

detailed 4 different ways in which Plaintiff could possibly "delay or even alleviate the curren

legal action ..." The letter urged Plaintiff to contact Loss Mitigation immediately to "discuss al

options available." Because Plaintiff had recently spoken to Ms. High, and submitted a new

Second Package on April 13, she took no action on these letters. Rather, Plaintiff relied on th

information provided by Ms. High, that her new Second Package would be given expedited

attention and her foreclosure would be postponed based on the Second Package submitted.

41. Plaintiff was sent, by certified mail, fifteen (15) identical packets from QLS, al

postmarked April 16, 2009, which enclosed the false First Substitution, the First Notice, an

unsigned Statement of Breach or Non-Performance, a Debt Validation Notice, an Importan

Notice Regarding Alternatives to Foreclosure, and a note from FHHL (the "First Foreclosure

Packet"). A copy of one of the fifteen packets is attached hereto as Exhibit "C."

42. The Debt Validation Notice in the First Foreclosure Packet, prepared by QLS, se

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forth the amount of delinquency and the principal balance owed, along with other costs. The

Notice indicated that MetLife Home Loans, a division ofMetLife Bank NA, was the creditor.

43. The Alternatives to Foreclosure Notice in the First Foreclosure Packet, prepared

by QLS, stated, "your lender is very interested in discussing options that may help you avoid

foreclosure, BUT YOU MUST TAKE IMMEDIATE ACTION AND CALL TODAY."

44. The Statement of Breach or Non-Perfonnance indicated that Plaintiff was i

breach of the loan. It was not signed; instead the name Rochelle Matkin was typed in, in the

signature blank. Rochelle Matkin was listed as "agent" of First Horizon Home Loans, a divisio

of First Tennessee Bank National Association. In fact Ms. Matkin works for QLS.

45. The note from FHHL in the First Foreclosure Packet stated, among other things

"DO YOU FEEL AS IF NO ONE CARES? FIRST HORIZON HOME LOANS CAN HELP...

[D]o not give up hope. A variety of assistance programs may be available.... Call our Los

Mitigation Department today.... Or to start the process immediately, fax the information .. .

Various options for keeping your home are listed, and the borrower is then urged to "HELP US

HELP YOU" by sending in all the infonnation listed for a modification of the loan.

46. Unable to reach anyone at Loss Mitigation to determine the status of her Secon

Package, fearing that the Second Package would be denied on the eve of foreclosure, completel

ignorant of the fact that the creditor was falsely identified, that the Note was unsecured due to it

separation from the DOT, that the First Substitution was false and improper, and the First Notice

therefore invalid, unaware of other material defects with the foreclosure, and in fear of losing he

home of seven years, Plaintiff called QLS on April 15, to determine the amount required for

payoff, to reinstate her loan.

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47. On April 21, 2009, QLS provided a total payoff amount of $33,694.52, which

included foreclosure attorney's fees and costs of$2,618.00.

48. Apparently due to Plaintiffs comment to Ms. High on April 11, that Plaintif

would submit another workout package, FHHL sent Plaintiff a cover letter and blank Borrowe

Financial Statement and form Hardship Letter, dated April 22, 2009. The letter began, "W

Listen. We understand. We care. Most importantly, we want to help you." The letter told

Plaintiff that if she provided the requested information, "we can begin working with you to find

solution." And again, "[w]e hope you feel as strongly about protecting your home as we do abou

trying to help you." Plaintiff had already submitted her Second Package on April 13, and so too

no action related to this correspondence.

49. Rather than risk losing her home at the eleventh hour, believing that th

foreclosure had legally been initiated, by parties legally entitled to foreclose, and unable to get the

expedited processing promised by Ms. High, Plaintiff liquidated her 401 (k) and used 100% o

those funds, along with other cash, to wire the reinstatement payoff amount of$33,729.52 to QLS

on May 5, 2009.

50. Had Plaintiff been aware of the illegal nature of the foreclosure proceedings, sh

would not have liquidated her 401(k) or paid the reinstatement amount, and would have instead

filed suit.

51. By letter dated May 5, 2009, First Horizon sent Plaintiff a confirmation of receip

ofher Second Package faxed on April 13, 2009. The letter gave the average review period for th

Second Package as being 15 to 30 days. By the time Plaintiff received this letter, she had already

wired the reinstatement payoff.

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52.

10,2009.

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2009.

54.

On May 26, 2009, QLS recorded a notice cancelling the trustee's sale set for July

Plaintiff made her monthly loan payments for June, July, August, and September

Because of continued income struggles, Plaintiff contacted a non-profi

organization, Money Management International, to seek help regarding her options for getting

First Horizon to agree to a modification of her loan. She spent 1 Yi hours on the phone with

Patrick Robbins on September 19, 2009, providing information to him so that he could send a

recommendation to First Horizon.

55. Mr. Robbins then made a certified Hope Now Referral to First Horizon and to

HUD recommending a Making Home Affordable Plan-Loan Modification to 31% of gros

monthly income, under President Obama's Plan, for which Plaintiff qualified. Mr. Robbins told

Plaintiff that she did not have to be delinquent on her loan payments to qualify.

56. As a result of the Hope Now Referral, First Horizon sent Plainti ff a new workou

package, with a cover letter dated September 18, 2009, indicating that First Horizon was using

Faslo Solutions, L.L.C. ("First American") to assist in evaluating Plaintiff 's loan. This was the

first time that First Horizon proactively contacted Plaintiff regarding her financial difficulties; she

believed that fmally, with the Hope Now Referral, First Horizon would act in good faith on he

modification request and she would receive the assistance she had been waiting for. The cove

letter stated, "[w]e will work with you in an effort to make your mortgage payment affordable."

The letter said Plaintiff wouldn't have to pay any fees for a modification. The letter continued

"[n]ow is the time to act. We are ready to help you."

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47. On April 21, 2009, QLS provided a total payoff amount of $33,694.52, which

included foreclosure attorney's fees and costs of$2,618.00.

48. Apparently due to Plaintiffs comment to Ms. High on April 11, that Plaintif

would submit another workout package, FHHL sent Plaintiff a cover letter and blank Borrowe

Financial Statement and form Hardship Letter, dated April 22, 2009. The letter began, "We

Listen. We understand. We care. Most importantly, we want to help you." The letter told

Plaintiff that if she provided the requested information, "we can begin working with you to find a

solution." And again, "[w]e hope you feel as strongly about protecting your home as we do abou

trying to help you." Plaintiff had already submjtted her Second Package on April 13, and so took

no action related to this correspondence.

49. Rather than risk losing her home at the eleventh hour, believing that the

foreclosure had legally been initiated, by parties legally entitled to foreclose, and unable to get the

expedited processing promised by Ms. High, Plaintiff liquidated her 401(k) and used 100%o

those funds, along with other cash, to wire the reinstatement payoff amount of $33,729.52 to QLS

on May 5, 2009.

50. Had Plaintiff been aware of the illegal nature of the foreclosure proceedings, she

would not have liquidated her 401(k) or paid the reinstatement amount, and would have instead

filed suit.

51. By letter dated May 5, 2009, First Horizon sent Plaintiff a confirmation of receip

of her Second Package faxed on April 13, 2009. The letter gave the average review period for the

Second Package as being 15 to 30 days. By the time Plaintiff received this letter, she had already

wired the reinstatement payoff.

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57. Plaintiff put together a comprehensive p a c k a g e ~ providing all information

requested, and sent the package (the "Third Package") by FedEx to First American in Westlake

Texas, as specified in the instructions from First Horizon. FedEx delivered the Third Package to

First American on October 6, 2009, at 8:33 a.m.

58. On October 14, 2009, Joe with First American telephoned Plaintiff. Joe asked i

Plaintiff was still interested in a loan modification, and Plaintiff told him, she was. Plaintiff wa

again reassured that First Horizon was fmally listening and that she would receive a reasonable

loan modification from First Horizon, as a result of the Hope Now Referral. Joe began to ask fo

all the information received at First American on October 6. Plaintiff told Joe they had already

received everything; he said it would take 2 weeks for the information to "upload" and that the

process would be quicker if she gave the information over the phone. Plaintiff complied

spending over an hour on the telephone giving Joe all the information that was already in the Firs

American offices.

59. After Plaintiff gave Joe at First American all the information he requested, Joe told

her it would take 30 to 45 days to determine which program she qualified for.

60. As of November 4, 2009, Plaintiff had not made her October loan payment. Sh

telephoned First American and told Perla that Plaintiff would be making the October and

November loan payments that week. Perla told Plaintiff that if she was current on her loan, Firs

American would not be able to modify her loan.

61. Plaintiff then asked Perla for confirmation that First American had all that wa

needed to analyze the Third Package. Perla told Plaintiff that a lease agreement for a renta

property was needed, as well as the gross year to date rental income for that property. Perl

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claimed that First American had been leaving messages about the missing documentation; in fac

no messages had been left. Plaintiff sent the requested information to First American on

November 6,2009.

62. Confused and alarmed that First American said she had to be delinquent to ge

assistance, Plaintiff called First Horizon on November 6, 2009, and spoke with Carol Lynn in the

loan servicing centeL Plaintiff asked if she would be denied a modification if she were current on

her loan. Plaintiff told Carol Lynn that under the Making Home Affordable plan, a borrower can

qualifY for a modification even if current on payments. Carol Lynn indicated that if the borrowe

is current, First Horizon believes the borrower does not need any help.

63. On November 19, 2009, Plaintiff called First American to check the Third Package

status. Mark told Plaintiff that her file was still under review, that she would hear within 30 days

and that First American had all information needed to analyze the loan.

64. Given her conversations with a First American employee and a First Horizon

employee who both told her she must be in default to qualifY for a modification, Plaintiff stayed

in default on her loan.

65. On January 5, 2010, Plaintiff called First American and requested a status of he

Third Package. She was told that someone noted on the account on December 16, 2009, tha

borrower should send complete profit and loss statement. Plaintiff asked who was supposed to

contact Plaintiff and notify her that this information was needed; the representative put Plaintif

on hold and never returned. Plaintiff called back and spoke with Sonya, who said nothing i

needed on the file and the Third Package is still under review. Plaintiff asked Sonja how Plaintif

is supposed to get information from First American on what further documents are needed; Sonja

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responded that notes are made in the file, but no requested from the borrower, until the borrowe

happens to call for the statusof

the pending application.

66. Not wanting her loan to go into foreclosure status, Plaintiff attempted to make an

online payment which was rejected by First Horizon, and returned. Plaintiff called and spoke

with Eric who took an electronic payment covering two months of accrued charges, on January

19,2010.

67. Also on January 19, Plaintiff called regarding the status of her Third Package, and

was told by Perla that the Third Package was under review, and that it would take 2 to 6 weeks

for verification from the date of September 18, 2009, then 30 to 45 business days for processing

after that. Perla said that as of November 10, all necessary information had been received. Sh

was completely unable to state where in the process Plaintiff's loan was, saying there was "no

way to tell."

68. On January 26, 2010, Plaintiff again called for status. She was told by Anacar

that by February 24, 2010 at the latest, Plaintiff would receive an answer. Anacari then told

Plaintiff that she needed to submit profit and loss statements for all of 2009, by month. When

Plaintiff asked why she was not told this on January 19 when she called, Anacari simply said

"Sorry."

69. By this time, Plaintiff realized that without the help of someone experienced in

working with lenders on workouts, she would find herself in the same situation she had been

before: First Horizon acting as though it is working on her workout, providing no information

and then declining the workout before she had an opportunity to determine why or provide the

information for which the application was denied. Plaintiff hired Michael Hirschtick ofNationa

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Credit Rescue to take over working with First AmericanlFirst Horizon, on February 2, 2010.

70.It

seemed at this point that First AmericanlFirst Horizon would continue to ignore

Plaintiff s Third Package, and lie to her about the time by which it would be reviewed and acted

upon, unless a deadline was in place. Plaintiff believed she would have to let her home go into

foreclosure status before her workout file would be given priority and reviewed and acted upon

by the defendants.

71. On February 22, 2010, First Horizon requested that Mr. Hirschtick essentially

resend all the documents which had already been sent. The Third Package was resent on

February 23, 2010. First Horizon used this as an excuse to "reset" the age of Plaintiff's Third

Package, claiming hereafter that it was submitted to First Horizon on March 2, 2010, when in fact

Plaintiff's Third Package has been pending with First Horizon since October 6, 2009.

72. On March 8, 2010, in spite of all the promises from First Horizon about its desire

to help Plaintiff, and that it would "work with you in an effort to make your mortgage paymen

affordable," and in spite of the Hope Now Referral, Plaintiff received a letter from FHHL, via

certified mail, demanding payment in full of all arrearages by April 1, 2010, or foreclosure would

be initiated.

73. On March 13,2010, Plaintiff received a call from Brandon, work LD. VKC, from

MetLife. Brandon asked if Plaintiff could make a mortgage payment. At this point, Plaintif

feared that if she made a payment, her Third Package would be placed on hold, or put at a low

priority, or First Horizon would simply continue with foreclosure anyway, or decline her Third

Package because she was able to make a payment. Plaintiff told Brandon she had to hire

someone to work with First HorizonlFirst American because no one will listen, answer the phone

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or respond to her.

74. Brandonof

MetLife checked on her Third Package, told herMr.

Hirschtick had

sent a new package on March 2, and that it would be assigned to a processor within 10 business

days. He told her that by Monday or Tuesday a processor would be assigned. Plaintiff expressed

frustration with the inability to speak with someone who knows what is going on, and her

experience of calling to be sure everything First American needs is present, only to call the nex

time and find out First American claims something was needed 30 days ago, that was neve

requested. All Brandon did was apologize for Plaint iff s getting the runaround on her Third

Package.

75. Mr. Hirschtick took over handling the workout with First HorizonIFHHL/MetLife

on Plaintiff's behalf. Over the course of the next 6 months, up to the time of filing thi

Complaint, First Horizon, FHHL, MetLife, and their agents, have negligently and/or intentionally

obfuscated the process and been extremely difficult to contact; made no less than 11 promise

that the Third Package would be assigned to a processor within 1 week, and/or that the file would

be "escalated" resulting in expedited review; told the Plaintiff's agent on many occasions that al

documentation was needed only to revoke that representation and demand more information in an

apparent attempt to buy more delay time; admitted that First American, an agent hired to handle

the loan modification packages, was negligent and wholly unable to perform under their

agreement and was terminated; failed to adequately supervise their agent with respect to

processing the loan modification packages resulting in the loss of precious time to homeowner

seeking assistance and in the issuance of false declination letters; and admitted that they shut thei

fax machine of f at night, and when it is on i t will accept only 20 pages at a time.

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76. First HorizonIFHHLlMetLife's promises regarding analysis and assignment of th

file, made to Plaintiff, include, but are not limited to, the following: December 5, 2008- wil

process within 15 days; January 13, 2009- 30 to 45 days after assignment to a specialist; May 5

2009- 15 to 30 days to process; October 14, 2009- 30 to 45 days to process; November 19, 2009

30 days to process; January 19, 2010- 2 to 6 weeks from September 19, 2009 to perform

verification, then 30 to 45 business days to process; January 26, 2010- will have an answer to th

package by February 24, 2010; March 13, 2010- will be assigned to a processor in 10 days; Apri

5, 2010- will be assigned to a processor in 10 to 15 days; July 28, 2010- will be assigned to

processor within 10 to 15 days after information requested is "uploaded" into system.

77. First HorizonIFHHLlMetLife' s promises regarding assignment within a wee

and/or escalation of the file were made to Mr. Hirschtick on no less than the following dates

April 28, May 7, May 19, May 24, May 28, June 3, June 15, July 1, July 8, July 15, and July 20

2010. Attached hereto as Exhibit "D" is a complete list of the telephone contact Mr. Hirschtick

has made with First HorizonIFHHLlMetLife and their agents on Plaintiff s behalf, and th

responses he has received during those calls, through July 22, 2010.

78. On March 23, 2010, in spite of all the calls Mr. Hirschtick made to Firs

American/First Horizon on a weekly basis, in spite of providing all information requested, and in

spite of continuing to be told that no processor had even been assigned to the Third Package, Firs

Horizon sent a letter to Plaintiff telling her that her request for Loss Mitigation Assistance had

been declined. Mr. Hirschtick called to determine what the letter was about, and was told that the

letter was sent in error. First Horizon told Mr. Hirschtick to ignore the letter, that it was false.

IIII

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79. On April 5, Colleena from First Horizon's default resolution department called and

asked what Plaintiff s intentions were regarding the past due balance. Plaintiff told her she had a

loan modification package pending with First Horizon since last October. Colleena checked the

status, and saw the Third Package on file. First Horizon's representative said that it would take

10 to 15 days for a processor to be assigned, and then 60 to 90 business days for final resolution.

80. During the call on April 5, the First Horizon representative said nothing to Plaintif

about the intent to send the loan to foreclosure.

81. On April 12, FHHL sent Plaintiff two different letters. One letter notified Plaintif

that her loan had been sent to McCarthy & Holthus to initiate foreclosure and suggested she

contact the Loss Mitigation Department if full reinstatement was not possible. The other letter

also stated her loan had been sent to an attorney for foreclosure, and detailed 4 different ways in

which Plaintiff could possibly "delay or even alleviate the current legal action ...." The lette

urged Plaintiff to contact Loss Mitigation immediately to "discuss all options available."

82. On infonnation and belief, the Defendants have a policy and/or practice of: 1

refusing to assist any homeowner who is current on their payments in spite of numerous available

programs which allow borrowers to be current and modify their loans; 2) luring borrowers into

default by telling them that no help can be provided if the borrower is current; 3) leading

borrowers to believe that once in default, they will qualify for and be given a loan modification,

with their constant messages regarding how much they "care," "listen," "understand," and "are

ready to help you," knowing that these representations are false; 4) promising a response to a loan

modification, or assignnlent of a processor to a workout package, within a small number of days

(usually 10 to 15 days) with knowledge that this representation is false, and with specific intent

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that the borrower rely on the representation by taking no further action and making no mortgage

payments; 5) holding the loan modification package, without assigning a processor, long enough

that the information becomes stale so that more recent documents can be demanded, resulting in

further delay for the documents to "upload" into their system and refusing to assign a processo

until the documents have been "uploaded,"; 6) waiting for the borrower to be so far in arrears due

to the borrower's reliance and belief that defendants will stand by their word and act in good

faith, that it is impossible for the borrower to come current; 7) placing the loan into foreclosure

all the while assuring the borrower that the workout package will be analyzed in short order

knowing that this representation is false; 8) knowingly processing the foreclosure paperwork in

violation of the law, all the while hoping that borrowers don't have the knowledge to defend o

the money to hire an attorney to defend; 9) considering its own interests as servicer of the loan

above the interests of the borrower or the investor, 10) continuing, even after a trustee's sale i

noticed, to lead the borrower to believe that its workout package will be analyzed, that the

borrower has options short of full reinstatement, and that the lender "is very interested in

discussing options that may help you avoid foreclosure," and that they want the borrower to "help

us help you," knowing that the borrower will rely on these representations which are false; and

11) waiting until just before the trustee's sale to deny the workout package, and foreclose before

the borrower can take any further action, or simply foreclose in spite of a pending workou

package.

83. On April 14, 2010, MERS purportedly assigned its beneficial interest in the DOT

to BNY Mellon by way of an Assignment of Deed of Trust ("Assignment"). The Assignmen

claims that it is assigning not only the beneficial interest under the Deed of Trust, but also "the

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Promissory Note secured by said Deed ofTrust ... ." A copy of the Assignment is attached hereto

in Exhibit "E."

84. The Assignment was recorded on April 15,2010, at Doc. No. 20100317611. Tim

Bargenquast, described as Vice President of MERS, signed the Assignment. On information and

belief, Bargenquast is not now, and never has been, an employee ofMERS.

85. In fact, Tim Bargenquast is a Support Staff Manager for QLS. Bargenquast is no

an Officer of, or even employed by, a member of MERS. Bargenquast is not even an Officer o

QLS. Bargenquast cannot legally be appointed as a certifying officerlagent ofMERS.

86. Accordingly, the Assignment of DOT signed by Bargenquast on April 14, 2010

recorded on April 15, 2010, is void and of no force and effect.

87. On May 15, 2010, Plaintiff received two notices from FHHL, dated May 4,2010

The notices were identical, and both stated that Plaintiff s Loss Mitigation Assistance package

had been declined. Shocked, because her Third Package had never even been assigned to

processor, Plaintiff sent the notices to Mr. Hirschtick.

88. On May 17, Mr. Hirschtick called First Horizon, and was told that the letter wa

sent in error by First American, which no longer even performs any work for First Horizon. Mr

Hirchstick was told that First American was unable to handle the volume or detail work required

to adequately analyze workout packages, and so its contract with First Horizon had been

terminated. First Horizon told Mr. Hirschtick to ignore the letter, that it was erroneously issued

and false. Mr. Hirschtick was told to call back later in the week to find out to whom the

Plaintiff s Third Package had been assigned.

/11/

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89. On May 27, 2010, another Notice of Substitution of Trustee (the "Second

Substitution") was recorded against Plaintiffs property. The Second Substitution wa

purportedly made by The Bank of New York Mellon f/k/a The Bank of New Y o r ~ executed b

Marcia Williams, designated as Assistant Vice President. The Second Substitution claims tha

BNY Mellon is the beneficiary under the Deed of Trust, and purports to substitute QLS as trustee

On infonnation and belief, Ms. Williams is employed by First Horizon, not BNY Mellon.

90. The Second Substitution was not signed by an authorized officer of BNY Mellon

accordingly, it is void.

91. On May 26, 2010, Earl Hopida, designated as an Assistant Vice President of QLS

signed a Notice of Trustee's Sale (the "Second Notice"), claiming to be the trustee under th

Deed of Trust, and claiming to act on behalf of the alleged beneficiary under the Deed of Trust

BNY Mellon. The Notice was recorded on May 27,2010, at Doc. No. 20100450248.

92. Mr. Hopida is variously described on the Notices of Trustee's Sale that he signs on

behalfofQLS's foreclosure mill practice, as a Vice President and as an Assistant Vice President.

93. The Second Notice is void and of no force and effect, because the Assignment i

void and the Second Substitution is void.

94. No filing has been made at the Maricopa County Recorder's office showing a

resignation of North American Title as the original Trustee under the Deed of Trust, and a new

appointment of Trustee, for QLS.

95. The Second Substitution is void because North American Title did not resign

because the Assignment to BNY Mellon is void because Ms. Williams is an employee of Firs

Horizon, and because the beneficiary under the DOT did not appropriately appoint QLS.

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96. Competing Substitutions of Trustee are on record at the Maricopa County

Recorder's Office, appointing QLS as trustee, by two different alleged beneficiaries, on two

different dates, namely April 10, 2009, and May 27, 2010. QLS hasnever filed a resignation a

Trustee under the Deed ofTrust pursuant to the April 10, 2009 appointment.

97. Plaintiff was sent, by regular and by certified mail, thirteen (13) identical packet

from QLS, all postmarked June 3, 2010, which enclosed the Second Substitution, the Second

Notice, an unsigned Statement of Breach or Non-Performance, a Debt Validation Notice, an

Important Notice Regarding Alternatives to Foreclosure, and a note from FHHL (the "Second

Foreclosure Packet"). A copy of one of the thirteen packets is attached hereto as Exhibit "E."

98. The Debt Validation Notice in the Second Foreclosure Packet, prepared by QLS

set forth the amount of delinquency and the principal balance owed, along with other costs. Th

Notice indicates that MetLife Home Loans, a division of MetLife Bank NA, is the creditor

99. The Important Notice Regarding Alternatives to Foreclosure in the Secon

Foreclosure Packet, prepared by QLS, states, "your lender is very interested in discussing option

that may help you avoid foreclosure, BUT YOU MUST TAKE IMMEDIATE ACTION AND

CALL TODAY."

100. The Statement of Breach or Non-Performance in the Second Foreclosure Packe

states that Plaintiff is in breach of the loan. It is not signed; instead the name Chris Thurman i

typed in, in the signature blank. Chris Thurman is listed as "agent" ofFirst Horizon Home Loans

a division of First Tennessee Bank National Association. On information and belief, Mr

Thurman works for QLS.

IIII

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101. The note from FHHL in the Second Foreclosure Packet states, among other things

"DO YOU FEEL AS IF NO ONE CARES? FIRST HORIZON HOME LOANS CAN HELP...

[D]o not give up hope. A variety of assistance programs may be available.... Call our Los

Mitigation Department today.... Or to start the process immediately, fax the information .. .

Various options for keeping your home are listed, and the borrower is then urged to "HELP US

HELP YOU" by sending in all the information listed for a modification of the loan.

102. Because Plaintiff s Third Package was already pending, Plaintiff was disappointe

that FHHL did not make any mention of it. Because her Third Package had been pending fo

over three months, and Mr. Hirschtick was in constant contact, Plaintiff did not contact FillIL i

response to this note.

103. On June 22, 2010, Plaintiff sent QLS a dispute of the Debt Validation Notice, an

requested documents.

104. QLS responded to Plaintiff's Debt dispute letter by letter dated July 2, 2010. I

that letter, QLS provides a copy of the Note, and claims that MetLife is in possession of th

original promissory note. QLS also states that its authority to proceed with, or halt, th

foreclosure sale comes from BNY Mellon. QLS stated that it would be proceeding with th

foreclosure sale on August 27, 2010, as scheduled. A copy of the letter from QLS is attache

hereto as exhibit "F."

105. Plaintiff has therefore been provided information indicating that Defendants do no

know who is in possession of the Note, and Plaintiff now doubts that the original Note exists any

longer. QLS claims that MetLife is the creditor and is in possession of the Note; MERS

purported to assign the Note to BNY Mellon in the Assignment, and the description of the alleged

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current beneficiary of the DOT indicates that the Note was sold into a pool as a part of

mortgage-backed security, and is subject to a Pooling and Servicing Agreement ("PSA"). Th

mortgage pool could contain tens, hundreds, or thousands of investors, all with a claim to

portion of the Note.

106. If any of these defendants are allowed to enforce the Note without producing th

original with all endorsements and allonges showing that particular defendant's authority t

enforce the Note, Plaintiff is in jeopardy of other individuals and/or entities appearing at a late

date and claiming legitimate and legal entitlement to payment under the Note. This will result i

double liability for the Note, or more.

107. On July 7,2010, Plaintiff sent FHHL a Qualified Written Request ("QWR"), unde

12 U.S.C. § 2605(e), via certified mail and regular mail, seeking information about her loan, it

servicing, ownership, and other critical issues. A copy of Plaintiff s QWR is attached hereto a

15Exhibit "G."

16 108. On July 12, 2010, Plaintiff sent Quit Claim Deeds and cashier's checks for $5.0

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to each of the following defendants: FHHL, MetLife, First Horizon, and BNY Mellon.

109. On July 28, 2010, Plaintiff received the $5.00 cashier's check payable to MetLife

stapled to a letter dated July 21, 2010, which purports, in the letterhead, to be from both Firs

Horizon Home Loans, and FHHL. Although the letter contains boxes to check in order to tell th

recipient what the letter is about, none of the boxes are checked. In this one piece o

correspondence, three different defendants are referenced. This letter only contributes to th

confusion regarding who owns the Note, and who is the proper party to contact regardin

Plaintiffs Third Package. A copy of the July 21,2010 letter and the returned cashier's check i

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110. Also on July 28, 2010, Plaintiff received a letter dated July 15, 2010, whic

purports to be from both First Horizon Home Loans and FHHL. This letter simply states tha

correspondence has been received, and that a response will be sent within 60 days. On July 28

Plaintiff called the number given on the letter., as the one to call with any questions. Chane

answered, and Plaintiff stated that since she has submitted so many documents to First Horizon

and FHHL, that she cannot tell to what this letter pertains. Chanel told Plaintiff she could no

find any such letter, and became irate with Plaintiff when Plaintiff stated that the letter came from

First Horizon, so there must be a record, and Plaintiff needed to know to what the letter pertained

Plaintiff asked to speak with a supervisor; none were available. Chanel took Plaintiff s name and

number for a supervisor to call back. To date, no supervisor has ever called.

111. As of July 28,2010, less than 30 days before the Trustee's Sale date of August 27

2010, defendants have failed to post the Property with the Notice of Trustee's Sale as required b

A.R.S. § 33-808(A)(3).

COUNT ONE

VACATE SUBSTITUTIONS OF TRUSTEE, ASSIGNMENT OF DEED OF TRUST,

AND VACATE NOTICE OF TRUSTEE'S SALE

(ALL DEFENDANTS)

112. Plaintiff repeats and realleges every allegation above as if fully set forth herein.

113. The appointment of QLS as Substitute Trustee on April 10, 2009, and again on

23 May 27, 2010, was improper.

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114. The First Substitution and the Second Substitution did not comply with A.R.S

§33-804(D), which states:

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A notice of substitution of trustee shall contain a description of the basis for the

successor trustee's qualification pursuant to section 33-803, subsection A. A

noticeof

substitutionof

trustee shall be sufficientif

acknowledged by allbeneficiaries under the trust deed or their agents as authorized in writing and if

prepared in substantially the following form ... .

115. The First Substitution was not prepared by MERS, which was the sale

beneficiary under the DOT; it was signed by a representative of QLS, Jim Montes,

purporting to sign for FHHL, which was not the beneficiary under the DOT. The First

Substitution was signed by QLS, appointing itselfas trustee.

116. The Second Substitution was purportedly signed by BNY Mellon but in

fact was signed by Marcia Williams, an employee ofFirst Horizon. First Horizon was not

the beneficiary under the DOT, nor was BNY Mellon, as the purported April 14, 2010

assignment of the DOT from MERS to BNY Mellon was voi<L having been signed by a

low-level employee ofQLS, Tim Bargenquast.

117. The appointmentof

QLS as Substitute Trustee must also fail under Arizon

Revised Statutes §33-804(F), which states:

Resignation by a trustee is made by recordation of a notice of resignation in

the office of the county recorder of each county in which· the trust property or

some part of the trust property is situated at the time of the resignation. Written

notice shall be given through registered or certified mail, with postage prepaid, to

the trustor and the beneficiary.

118. A trustee must resign before a new trustee may be appointed.

119. No filing has been made at the Maricopa County Recorder's office showing a

23 resignation of North American Title, and a new appointment ofQLS.

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120. Since North American Title has not resigned as required by A.R.S. §33-804(F) and

no resignation has been duly recorded as required, both Substitutions of Trustee appointing QLS

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132. All defendants have breached their obligations as set forth in, among other laws

Arizona statutes relating to foreclosures; defendants have also breached their obligations to the

Plaintiff, by allowing their agents/employees to sign documents without legal authority, thereby

initiating a trustee 's sale, with the goal of taking Pla int iff s home, without legal basis.

133. The Trustee's Sale set for August 27,2010 must be vacated and cancelled.

134. Plaintiff is entitled to her attorney's fees and costs arising out of this claim

pursuant to the contracts between the parties and A.R.S. § 12.341.01.

COUNT TWO

QIDETTITLE

(ALL DEFENDANTS)

135. Plaintif f repeats and realleges every allegation above as if fully set forth herein.

136. At the time the loan closed on August 1, 2005, and thereafter, the Note gave Firs

Horizon the right to payments.

137. Plaintiff has been given conflicting information about the holder of the Note. QLS

has told Plaintiff that MetLife has the Note, the Assignment claims that MERS assigned the Not

to BNY Mellon, and the description of the alleged current beneficiary of the DOT indicates tha

the Note was sold into a pool as a part of a mortgage-backed security with an undisclosed numbe

of holders/investors of the Certificates, called the First Horizon Mortgage Pass-Throug

Certificates Series FH05-F A8. This Certificate Series is subject to a PSA.

138. On information and belief, the First Horizon Mortgage Pass-Through Certificat

Series FH05-F A8 is governed by the First Horizon Alternative Mortgage Securities Trust 2005

FA8 (the "Trust"). This Trust contains assets of approximately $537,837,255, including the Note

The trustee of the Trust is BNY Mellon.

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139. Plaintiff has no knowledge of, and no way to detennine, who the legal holder o

the Note is, who is entitled to payments, and whether the Note still exists.

140. Plaintiff is in jeopardy, as the true holder of the Note and potentially dozens o

even thousands of third parties could come forward claiming an unsatisfied interest in the Note

and mayor may not be subject to Plaintiff's various affirmative defenses and counterclaims

Plaintiff is entitled to proof of the true holder of the Note to avoid this imminent danger.

141. At the time the loan closed on August 1, 2005, MERS was the sole beneficiary

under the DOT. MERS remained the sole beneficiary until at least April 15, 2010. The Deed o

Trust was entered on the MERS system with MIN # 100085200547038630.

142. The DOT does not give MERS any greater rights than normally given a nominee

The DOT says that MERS acts solely as nominee for Lender. There is no express grant of any

right to MERS to transfer or sell the DOT or the Note, or assign its duties as a nominee, nor does

MERS obtain any right to Plaintiff s payments or to serve in the role of receiving or servicing th

Note payments.

143. The Assignment recorded on April 15, 2010, which purports to assign the DOT

and the Note from MERS to BNY Mellon under the signature of Bargenquast, is void. Th

Assignment as it relates to the Deed of Trust is void because Bargenquast, a low level employe

of QLS, is not a legally appointed certifying officer of MERS, and because MERS has no

authority to assign the DOT. The Assignment is further void because MERS has no authority to

assign the DOT. The Assignment as it relates to the Note is void because MERS has never had

an interest in the Note to assign, nor does it have the authority to assign the Note.

144. A note and deed of trust are inseparable. If a note and deed of trust are separated

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in that the holder of the note and the beneficiary of the deed of trust are not the same individual o

entity, the note becomes unsecured.

145. Upon closing in August of 2005, the holder of the Note was First Horizon. The

beneficiary of the DOT was MERS. The Note and DOT have been separated since the inception

of this loan.

7 146. The assignment of a deed of trust without a legal transfer of the debt, transfer

8 nothing.

9 147. The Assignment of the DOT is invalid. There has been no evidence to show tha

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First Horizon had given authority for MERS to assign it; further, the purported Assignment i

signed by an employee of QLS. In addition, the DOT is a nullity. Having been separated from

the debt in August of2005, the DOT secures nothing.

148. The Assignment of the Note is invalid; MERS is not the holder of the Note, an

15 assignment is not the proper method for transfer of a note, and the purported Assignment i

16 signed by an employee ofQLS. QLS has never been the holder of the Note.

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149. Defendants seek to enforce the Note and DOT. The Note having been unsecured

since the date of loan closing, August 1, 2005, no Defendant may legally pursue foreclosure

pursuant to the Deed ofTrust.

150. No Defendant has standing to pursue foreclosure, as no one Defendant is both the

beneficiary of the DOT and also the holder of the Note.

151. Various defendants have filed documents against the Property, without the lega

authority to do so. Those documents include, but are not limited to, the First and Second

Substitutions of Trustee, the Assignment of Deed of Trust, and the First and Second Notices o

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152. Plaintiff is entitled to an order from this Court that the Plaintiffs estate in th

Property be established in her, that title be quieted in her name, that all illegally recorded

documents be declared null and void with filings at the Maricopa County Recorder's Office to

that effect, and that all Defendants be barred and forever estopped from having or claiming any

right or title to the Property, adverse to Plaintiff, and that the Deed of Trust be declared void and

of no force and effect, and be released by a recording at the Maricopa County Recorder's Office.

153. Pursuant to A.R.S. § 12-1103(B), Plaintiff is further entitled to her attorney's fee

and costs against Defendants FHHL, MetLife, BNY Mellon, and First Horizon, as she tendered

quit claim deed and $5 to each entity, more than 20 days before the filing of this Complaint.

COUNT THREE

BREACH OF THE DUTY OF GOOD FAITH AND FAIR DEALING

(FIRST HORIZON, FHHL, METLIFE, MERS, BNY MELLON)


155. Defendants are obligated under the Note and DOT, and the common law, to act in

good faith and to deal fairly with Plaintiff.

156. The purpose of the covenant is to guarantee that the parties remain faithful to the

intended and agreed expectations of the parties in their performance.

157. The duty of good faith extends beyond the written words of the contracts.

158. When a party or parties to a contract manipulate bargaining power to its/their own

advantage, injuring the other party, the party/parties with bargaining power breach its/their duty

of good faith.

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159. Plaintiff reasonably expected that the defendants would use good faith and deal

fairly in processing her loan modification package, and, based on their written and verbal

communications with her, that their goal was to help her keep her home, which would inure to her

benefit and well as theirs.

160. Defendants and/or their agents routinely and regularly breach their duty of good

faith and fair dealing by:

a. failing to perform loan servicing and process loan modification requests consistent

9 with their responsibilities and representations, to Plaintiffs;

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b. failing to properly supervise employees/executives including, without limitation,

loss mitigation/loan modification and collection personnel and foreclosure attorneys;

c. failing to employ adequate and competent staff to timely review loan

modifications ;

d. failing to purchase and maintain adequate office equipment and to keep it

operating, to keep up with the demands of the loan modification packages being submitted by

borrowers at defendants' invitation;

e. routinely demanding information already in its files;

f. making inaccurate calculations and determinations ofPlaintiff's eligibility for loan

modification programs, including telling Plaintiff she must be in default to qualify;

g. failing to follow through on written, verbal and implied promises, including

without limitation the time frame within which the package will be processed;

h. failing to follow through on contractual obligations, including without limitation

taking action to foreclose in direct contravention of contract terms;

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1. luring Plaintiff into default and engaging in dilatory tactics, resulting in Plaintiffs

delinquency being so great that she cannot reinstate her loan;

J. participating in a system of loan documentation, processing, and servicing, which

hides from the borrower the identity of the holder of the note, and the beneficiary of the deed of

trust, supported by a continuing refusal on the part of all defendants, to provide any information

regarding these issues, to the borrower.

161. As a result of these failures to act in good faith and the absence of fair dealing,

9 defendants have caused Plaintiffs harm.

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162. As this claim arises out of the contracts between the parties, Plainti ff is entitled to

her attorney's fees and costs incurred in having to bring this claim, pursuant to the terms of the

contracts as well as A.R.S. § 12-341.01.

COUNT FOUR

NEGLIGENT PERFORMANCE OF UNDERTAKING

(GOOD SAMARITAN DOCTRINE)

(FIRST HORIZON, FHHL, METLIFE)


164. Defendants voluntarily put in place, a loan modification program available to their

borrowers. Borrowers experiencing problems paying their mortgage were encouraged, even

urged, to submit a modification package.

165. Pursuant to defendants' program, defendants undertook to modify Plaintiff sloan.

Defendants sent numerous correspondence and notes, and had many conversations with Plaintiff,

in which Defendants encouraged Plaintiff to submit a modification package, and in which

defendants assured Plaintiff, over and over again, that defendants "care," understand," "l isten,"

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and "want to help."

166. Defendants indicated multiple times that many modification options were available

to Plaintiff, and that they wanted to help Plaintiff.

167. Plaintiffwas told she had to be in default to receive help; Plaint iff defaulted as a

result.

168. In spite ofpromises to help Plaintiff, defendants did not have adequate staffing,

resources, or equipment to administer its own loan modification program.

169. Defendants negligently hired third parties to administer the program. Defendants

terminated the third parties' contracts due to the negligent administration of the program by those

third parties.

170. Defendants failed to employ adequate and competent staff, and failed to timely

review loan modifications requests.

171. Defendants failed to purchase and maintain adequate office equipment and to keep

it operating, to keep up with the demands of the loan modification packages being submitted by

borrowers at defendants' invitation.

172. Defendants routinely demanded information already in its files.

173. Defendants made inaccurate calculations and determinations ofPlaintiffs

eligibility for loan modification programs, including telling Plaintiff she must be in default to

qualify.

174. Defendants failed to follow through on written, verbal and implied promises.,

including without limitation the time frame within which Plaintiffs package would be processed.

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175. Defendants engaged in dilatory tactics, resulting in Plaintif f's delinquency being

so great that she cannot reinstate her loan, and resulting in a Trustee's Sale being set on the

Property.

176. Defendants' negligence resulted in such delay that her First Package was denied, a

call placed to her demanding the balance in full, and notification that the First Trustee's Sale had

been noticed, all in the same phone call.

177. Defendants' negligence resulted in Plaintiff's need to liquidate her 401(k) in order

9 to bring her loan current and keep her home.

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178. Plaintif f relied on the defendants to administer the loan modification program, and

process her application for a loan modification, in a timely manner and with due care.

179. Defendants' negligence in administering its loan modification program has

resulted in economic harm to the Plaintiff.

180. Plaintiffhas suffered monetary damages from liquidation of her 401(k) in poor

economic times, adverse tax consequences from the early liquidation, severe and potentially

permanent damage to her credit rating, and other harm.

181. Plaintiff is entitled to damages from the defendants as a result of their negligent

administration of their loan modification program.

COUNT FIVE

FRAUDULENT MISPREPRESENTATIONIFRAUDULENT CONCEALMENT

(ALL DEFENDANTS)


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183. Defendants invited Plaintiff to submit a loan modification package and lead her to

believe that they were interested in helping her keep her home.

184. Defendants told Plaintiff she would not receive a modification of her loan unless

she was in default, which caused Plaintiff to default on her loan.

185. Defendants put Plaintiff in a position where she was at the mercy of their good

7 faith, fair dealing, and honesty.

8 186. Defendants knew the truth, but misrepresented and concealed the truth from

9 Plaintiff, including but not limited to, the following truths:

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a. defendants could offer Plaintiff a loan modification program without her being in

default;

b. defendants allowed unauthorized signatures on the documents, including

documents required to be recorded at the county recorder's office to initiate and schedule the

foreclosure, resultingin

the noticingof

a void trustee's sale;

c. defendants did not have adequate and competent staff to timely and properly

process her loan modification package;

d. defendants negligently hired others to process the loan modification packages, who

themselves were negligent, costing Plaintiff months ofdelinquency on her loan;

e. defendants did not even have adequate office equipment to keep up with the

demands of the loan modification packages being submitted by borrowers at defendants'

invitation, and defendants would turn their facsimile machines of f at night and program them to

reject any pages faxed after the twentieth page;

f.. defendants would routinely demand information already sent to them/in their files;

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g. defendants would fail to follow through on written, verbal and implied promises,

including without limitation the continual promises that Plaintiff's loan modification would be

assigned to a processor within one week, that the file would be "escalated," or that First

HorizonlFHHLlMetLife cares, wants to help, and wants borrowers to keep their homes;

h. defendants would fail to follow through on contractual obligations, including

without limitation, take action to foreclose through the use of unauthorized signatures;

. 1. defendants would lure Plaintiff into default and engage in dilatory tactics, resulting

in Plaintiff 's delinquency being so great that she cannot reinstate her loan;

J. defendants' employees in the loss mitigationlIoan modification department knew

the status ofher loan modification package but claimed ignorance each time Plaintiff or her agent

called;

k. defendants delayed in assigning the loan modification packages to processors until

the infonnation in the package was stale, requiring supplementation, which would then allow

defendants more delay due to alleged "uploading" time for documents, with another 10 to 15 days

before a processor would be assigned;

1. defendants were participating in a system of loan documentation, processing, and

servicing, which hides from the borrower the identity of the holder of he note, and the

beneficiary of the deed of trust, supported by a continuing refusal on the part of all defendants, to

provide any infonnation regarding these issues, to the borrower.

187. Defendants prevented Plaintiff from learning any of these truths.

188. As a result of defendants' fraudulent misrepresentations/concealment, Plaintiffhas

suffered pecuniary loss.

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COUNT SIX

FRAUD(ALL DEFENDANTS)

189. Plaint iff repeats and realleges every allegation above as if fully set forth herein.

190. Beginning at least with a modification package sent to Plaintif f in December of

2008, and through the present, defendants have engaged in a systematic process ofmaking false

and misleading representations to Plaintiff to cause her to believe that the defendants "listen,"

"understand," "care," and "want to help" Plaintiff modify her loan.

191. Plaint iff was further mislead into believing that the defendants would exercise due

11 care with respect to her loan modification requests, follow the law, and legally and appropriately

12 administer their loan modification program or fulfill their legal duties, as the case may be.

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192. The representations made to Plaintiff include, but are not limited to:

a. defendants could not offer Plaintiff a loan modification program without her being

in default;

b. defendants had adequate and competent staff to timely and properly process her

loan modification package, free of negligence or intentional misconduct;

c. defendants hired agents to process the loan nlodification packages, who would

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d. defendants had the resources, including adequate office equipment, to keep up

with the demands of the loan modification packages being submitted by borrowers at defendants'

invitation;

e. defendants would timely place all information from Plaintiff, including

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provided;

f. defendants would follow through onw r i t t e n ~

verbal and implied promises,

including without limitation the eleven promises made to Mr. Hirschtick that Plaintiff's loan

modification would be assigned to a processor within one week, and that the file would be

"escalated/' for expedited review;

g. defendants' employees in the loss mitigation/loan modification department had no

way of telling, when Plaintiffor her agent called, what the status ofher loan modification

package was;

h. the foreclosure documents filed in April of2009 and again in May of2010, were

legal, contained authorized signatures, and properly initiated the foreclosure process which would

legally result in Plaintiffs losing her home;

1. that in spite of foreclosure being initiated, defendants wanted to help, discuss

alternatives to foreclosure, were willing to modifY her loan, and could delay or even alleviate the

foreclosure; and

J. that if Plaintiff could just wait one week, that her package would get attention and

defendants would help her.

193. All of these representations were false when made, or believed to be true, and

subsequently learned to be false.

194. All of these representations were material.

195. Defendants knew that the representations were false, were unaware ofwhether the

representations were true or not, or believed them to be true but defendants later learned the

representations were false.

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196. The defendants intended Plaintiff to rely on their representations, and therefore

take no other action to protect herself from delinquency, default or foreclosure.

197. Plaintiff was not aware that the representations were false, and she was never

notified by defendants that any representations made by them were later determined to be false.

198. Plaintiff relied the truthfulness of the representations.

199. Plaintiff had a right to rely on defendants' representations.

200. As a result, Plaintiff suffered damages.

201. Defendants actions were with malice, ill will, and a wonton disregard for the right

of the Plaintiff. Plaintiff is entitled to punitive damages from the defendants.

COUNT SEVEN

CONSUMER FRAUD

(ALL DEFENDANTS)


203. The defendants use deception, false promises, misrepresentations, concealment,

and suppression or omission of material facts, when they engage in the pattern and practice of

allowing documents to be signed by individuals without legal authority, allowing those false

documents to be recorded at the Maricopa County Recorder's Office, and proceeding with

trustee's sales pursuant to void documents, in violation of Arizona law.

204. Defendants First Horizon, FHHL, and MetLife also use deception, false promises,

23 misrepresentations, concealment, and suppression or omission of material facts, when they and/or

24 their agents:

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a. promise to make a good faith analysis of Plaintiff's loan modification requests;

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b. lured Plaintiff into defaulting by leading her to believe that was the only way they

could help her;

c. promised in excess of 11 times in three months, with respect to the Third Package,

that her modification package would be assigned to a negotiator and an answer would be provide

shortly;

d. promised that all documents needed to process the package were received, only to

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e. imply, through offering and encouraging participation in their loan modification

program, that they actually have competent staffand sufficient office equipment and resources to

handle loan modification requests;

f. hire agents who negligently handle the loan modification program, causing many

precious months in delay ofprocessing loan modification packages;

g. delay in assigning a processor to a loan modification package until the information

provided was stale, demand supplementary documents, which in turn allows defendants to claim

delays associated with "uploading" the supplemental documents into the file, which in turn delay

the assignment of a processor;

h. send out, or allowed their agents to send out, declination letters which are false;

and

1. participate in a system of loan documentation, processing, and servicing, which

hides from the borrower both the identity of the holder of the note and the beneficiary of the

DOT, supported by a continuing refusal on the part of all interested parties, to provide any

information regarding these issues, to the borrower.

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205. This deception, these false promises and misrepresentations, concealment, and

suppression or omission ofmaterial facts; were made in connection with the intended sale of

merchandise, the defInition ofwhich includes real estate.

206. Defendants engaged in this course of conduct with the intent that Plaintiff would

rely on their false promises, deception, misrepresentations and concealment, go into default, seek

a loan modification, and ultimately lose her home in foreclosure.

207. As a consequence, Plaintiff suffered damages and injury.

208. Plaintiff is entitled to punitive damages against all defendants for their wanton and

reckless conduct which shows spite and ill will, and demonstrates a reckless indifference to

Plaintiff s interests.

COUNT EIGHT

TEMPORARY RESTRAINING ORDER; PRELIMINARY INJUNCTION;

P E ~ E N T I N S U N C T I O N (ALL DEFENDANTS)


210. If Arizona were a judicial foreclosure state, the issue of the burden of proofwoul

be on the party seeking affirmative relief, the creditor.

211. The purpose of the non-judicial foreclosure statutes is judicial economy. But thos

statutes are now allowing the lenders and their business associates who failed to properl

document matters in their rush to profit, take homes from hard-working people, without provin

standing, entitlement to payment, or appropriate documentation to proceed.

212. Plaintiff is bringing this cause of action to stop the improper sale of her home, an

this cause of action is intended to be an express denial of the Defendant's claims against th

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Property. Plaintiff denies that defendants are the "lender" or "creditor" and that Plaintiff owe

any of the Defendants any obligation ofpayment, without strict proof thereof.

213. Defendants are improperly attempting to sell her property usmg tactics and

procedures that do not comply with Arizona law, and without standing or legal authority to do so

as set forth in detail in the factual section and in the claims asserted above.

214. Plaintiffs request that this Court not allow the proposed sale to occur until a ful

8 hearing on the asserted claims have been heard, and evidence as to the Defendants' standing to

9 litigate and continue in this case has been presented.

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215. Plaintiff will suffer immediate and irreparable injury, harm, loss and damage if the

Trustee's Sale is not cancelled, and this Complaint is not allowed to proceed on its merits.

216. On information and belief: the Note has been sold many times to entities that hav

securitized the Note. As set forth above, Plaintiff has been given conflicting information from the

various defendants regarding the identity of the entity entitled to enforce the Note. If, as QLS

asserts, the Note is in a securitized mortgage pool, it is governed by a Pooling and Service

Agreement ("PSA"). Plaintiff has requested a copy of the PSA from First Horizon, but no copy

has been received.

217. On information and belief, if the Note is in a securitized mortgage pool, the

governing PSA states that there must be two recorded sales between the loan's origination and it

being placed into the mortgage pool. There likely exists evidence that the investors of the

mortgage pool are the real holders of the Note.

218. Because of the default on this loan in 2009 and 2010, there likely also exist

evidence that the Note has already been paid off by credit default swaps purchased by the

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mortgage pool. In that e v e n ~ any real party in interest may be an insurance company with a

subrogation claim, but none of the defendants herein.

WHEREFORE, Plaintiff requests the following relief:

1. For a Declaration and Order that the Assignment of the Deed ofTrust from MERS

to BNY Mellon be declared null and void, ofno force and effect, and in violation ofArizona law;

2. For a Declaration and Order that the Statement ofBreach or Non-Performance and

Election to Sell under Deed of Trust be declared null and void, of no force and effect, and in

violation of the requirement that it be signed, and signed by the lender;

3. For a Declaration and Order that the First and Second Substitutions ofTrustee ar

declared null and void, ofno force and effect, and in violation ofArizona law;

4. For a Declaration and Order that the First and Second Notices of Trustee's Sale

are declared null and void, ofno force and effect, and in violation ofArizona law;

5.For a Declaration and Order that the Trustee's Sale scheduled for August

27,2010

be cancelled and cancellation of same be recorded at the Maricopa County Recorder's Offic

immediately, and that a Trustee's Sale not again be rescheduled on the Property unless Plaintif

loses on the merits of all her claims;

6. For a Declaration and Order that each of the defendants must prove that it is the

legal holder of the Note, and therefore legitimately able to pursue collection of the Note;

7. For a Declaration and Order that because the Note and DOT, which are

inseparable to be enforceable, have been separated since the inception of this loan, rendering th

Note unsecured and the DOT of no force and effect, and ordering that title to the Property i

quieted in favor ofPlaintiff;

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8. For damages sustained by the Plaintiff as a result of the negligence andlo

intentional conduct of the defendants, or otherwise, as allowed by law;

9. For punitive damages to deter the defendants and punish them for the torts they

have engaged in at Plaintiff' s expense;

10. For judgment for Plaintiffs' legal fees and costs incurred, pursuant to ARS § 12

7 341.01, as this matter arises out of a contract, and pursuant to A.R.S. § 12-1103(B).

8 11. For interest on the reasonable attorney's fees, court costs, and other costs o

9 collection at the highest legal rate from the date of entry of udgment herein until paid in full; and

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11. For such other and further relief as the Court deems just and proper.

JURy DEMAND

Plainti ff demands a trial by jury as a matter of right.

I declare under penalty of peIjury that the foregoing is true and correct to the best of my

knowledge.

DATED this 3rd

day ofAugust, 2010.

Barbara J. Forde, Esq.

20247 N. 86

th

Street


case file arizona quiet title removal_ remand and commentary forde v first horizon home loan

Documents