Collette V JPMC

Page 1 Complaint: TIM A. COLLETTE v. SHAPIRO & SUTHERLAND, et al.
Declaratory and Injunctive Relief for Equitable

Redemption Due to Wrongful Foreclosure; Breach of Contract; Unlawful Debt Collection; and Quiet Title
BowlesFernandez Law LLC
5200 SW Meadows Road Suite 150
Lake Oswego, Oregon 97035
503.726.5930

John Bowles, OSB #971497
Bowles Fernndez Law LLC
5200 SW Meadows Rd., Ste. 150
Lake Oswego, OR 97035
Phone: 503.726.5930
john@bowlesfernandez.com
Attorney for Plaintiff

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
EUGENE DIVISION
TIM A. COLLETTE,
Plaintiff
v.
KELLY D. SUTHERLAND of SHAPIRO &
SUTHERLAND, as Successor Trustee, and JP
MORGAN CHASE BANK, NA, purchaser of
certain assets of WASHINGTON MUTUAL
BANK FKA WASHINGTON MUTUAL
BANK, F.A.,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. __________________________

COMPLAINT:
DECLARATORY AND INJUNCTIVE
RELIEF FOR EQUITABLE REDEMPTION
DUE TO WRONGFUL FORECLOSURE;
BREACH OF CONTRACT; UNLAWFUL
DEBT COLLECTION; AND QUIET TITLE

Money Damages Claimed: $250,000.00

Plaintiff TIM A. COLLETTE, by and through his undersigned attorney, John Bowles, sues
defendants KELLY D. SUTHERLAND of SHAPIRO & SUTHERLAND (hereinaIter 'S&S) and JP
MORGAN CHASE BANK, NA, purchaser of certain assets of WASHINGTON MUTUAL BANK FKA
WASHINGTON MUTUAL BANK, F.A. (hereinaIter 'CHASE) and seeks declaratory and injunctive
relief enjoining any further sale oI PlaintiII`s property described below subsequent to the Ioreclosure
sale conducted on August 9, 2011; monetary damages sufficient to permit him to recover title to his
property, or, in the alternative, to redeem equitably PlaintiII`s ownership interest back into the chain oI
w
w
w
.
S
t
o
p
F
o
r
e
c
l
o
s
u
r
e
F
r
a
u
d
.
c
o
m

Page 2 Complaint: TIM A. COLLETTE v. SHAPIRO & SUTHERLAND, et al. Declaratory and Injunctive Relief for Equitable
503.726.5930
title as the actual owner of the property; and additional monetary damages resulting from unlawful debt
collection, and as grounds states herein:
A. Jurisdiction
1. The residential real property that is the subject of this action (herein referred to as the
'Property) is located at 20565 BOYD COURT, BEND, OR 97701, and is legally described as set
Iorth on the Trustee`s Notice oI Sale described herein below.
2. Jurisdiction in this Court arises under 28 U.S.C. 1331 and 1332(a) and supplemental
jurisdiction exists for the state law claims pursuant to 28 U.S.C. 1367. Venue in this District is
proper in that Defendants transact business in the State of Oregon, Plaintiff resides in the State of
Oregon, and the subject property is located in the State of Oregon.
B. Parties
3. Plaintiff TIM A. COLLETTE is and was at all material times a sui juris resident of the
State of Oregon over the age of eighteen (18), and was the legal owner of the residential real estate
property identified herein infra. At all material times hereto, Plaintiff purchased the Property on or
about June 30, 2006 under loan #3062796721 (hereinafter referred to as 'Loan) in the amount oI
$232,765.00. Plaintiff had previously paid the sum of $127,000.00 in cash towards the purchase of
the Property. Non-Party WASHINGTON MUTUAL BANK, F.A. (hereinaIter 'WAMU-FA),
allegedly originated PlaintiII`s Loan, and is reIerred to as 'Lender under Loan`s Note (the 'Note)
and Deed oI Trust (the 'DOT), attached hereto as 'Exhibit 1, and incorporated herein. The DOT
purports to grant a beneficial interest in favor of Non-Party WAMU-FA. The Note is solely
between Plaintiff and Non-Party WAMU-FA. Neither the Note nor the DOT was ever assigned to
any party, including CHASE. There are a number of significant and fatal problems with the
w
w
w
.
S
t
o
p
F
o
r
e
c
l
o
s
u
r
e
F
r
a
u
d
.
c
o
m

503.726.5930
purported Note and DOT as set forth below.
4. At all material times hereto, Defendant S&S is actively engaged in the business of
conducting 'Trustee`s Sales oI residential property incident to non-judicial foreclosure actions in a
number of states, including Oregon. Defendant S&S represents that it was assigned powers as a
'Successor Trustee under an Appointment oI Successor Trustee dated October 7, 2010 naming
Defendant CHASE as Beneficiary. The Appointment of Successor Trustee was recorded on
October 7, 2010 in Deschutes County under Recording No. 2010-40078. See 'Exhibit 2
incorporated herein. Pursuant to the alleged authority conferred by the October 7, 2010
Appointment of Successor Trustee, Defendant S&S executed a Notice of Default and Election to
Sell (the 'NOD) on October 7, 2010 and recorded said Notice on October 7, 2010 under Deschutes
Recording No. 2010-40079. See 'Exhibit 3 incorporated herein. Though Plaintiff`s counsel sent
it various warnings about the defective nature of its foreclosure process and the dubious nature of
its purported authority, S&S proceeded to hold the Trustee`s Sale on August 9, 2011, which
attempted to deprive Plaintiff of his ownership interest in the property.
5. At all material times hereto, Defendant CHASE is and has been a national association,
alternatively representing itself as lender, loan servicer, loan originator and beneficiary within and
outside of the United States and including the State of Oregon. See 'Exhibit 4. CHASE allegedly
acquired certain assets of Non-Party WAMU-FA pursuant to the Purchase and Assumption
Agreement
1
, but it appears that the FDIC, as of the date of this Complaint, has not yet reached a
final decision on the full extent of assets sold to Non-Party WAMU-FA. Plaintiff notes that

1
The Purchase and Assumption Agreement ('P&A) is a matter oI public record the accuracy of which cannot be
reasonably questioned. Fed. R. Evid. 201(a). It is available to the general public at the following FDIC website:
http://www.fdic.gov/about/freedom/Washington_Mutual_P_and_A.pdf, last viewed September 26, 2011. There is
no schedule anywhere that identiIies any oI the loans, including PlaintiII`s loan, that CHASE purportedly
acquired pursuant to this P&A and thus CHASE`s assertion oI ownership is merely a bare allegation.
w
w
w
.
S
t
o
p
F
o
r
e
c
l
o
s
u
r
e
F
r
a
u
d
.
c
o
m

503.726.5930
CHASE through its counsel has admitted that '|u|nder the plain terms oI that agreement |the
Purchase and Assumption Agreement], JPMC [Defendant CHASE here] did not become WMB`s
[WAMU] successor in interest. Since its closure, the FDIC has controlled WMB. (emphasis in
original) Deutsche Bank National Trust Company, etc. v. Federal Deposit Insurance Corporation
and JPMorgan Chase Bank National Association et al., Case No. 1:09-cv-1656 (RMC) Document
55-1 at 33 (D.D.C., April 11, 2010).
6. At all material times hereto, Non-Party WAMU-FA was incapable of originating the
Loan and incapable oI acting as 'Lender as set Iorth in the DOT. The Note and DOT were
executed on June 29, 2006 and recorded June 30, 2006. Non-Party WAMU-FA, however, had
changed its legal name to 'Washington Mutual Bank over a year earlier on April 4, 2005 and was
incapable of originating loans under this name after this date. See 'Exhibit 5. Non-Party
WAMU-FA expressly stated in its official Securities and Exchange Commission Annual Report for
the year ending December 31, 2005 that Non-Party WAMU-FA changed its name to Washington
Mutual Bank. See 'Exhibit 6. Thus, it had no legal power to originate mortgage loans in that
name after April 4, 2005. The Loan, Note and DOT, however, were made in this name over a year
after Non-Party WAMU-FA no longer legally existed under this name. It appears, however, that
numerous loans in the name of Non-Party WAMU-FA continued to be made after it had ceased
operations until September 25, 2008, when the FDIC seized the two remaining Washington Mutual
Bank entities (Washington Mutual Bank and Washington Mutual Bank, FSB).
7. Alternatively, even if Non-Party WAMU-FA could have validly originated PlaintiII`s
loan under the wrong name, there is no evidence that CHASE actually is the owner of the debt and
thus entitled to enforce the Note.
w
w
w
.
S
t
o
p
F
o
r
e
c
l
o
s
u
r
e
F
r
a
u
d
.
c
o
m

503.726.5930
8. Non-Party FANNIE MAE is a Government-Sponsored Entity that is in the business of
purchasing and holding mortgages. Non-Party FANNIE MAE, through its publicly available
website search engine, claimed before and after the Trustee sale that it is the owner of the subject
Note, despite the fact that no recorded assignment of the DOT names Non-Party FANNIE MAE as
an assignee.
9. The Trust Deed possesses a defect fatal to the non-judicial foreclosure process because at
the time of its creation Non-Party WAMU-FA was not a functional entity, was not authorized to
engage in originating loans, and therefore could not have created a valid security instrument under
ORS 86.705(5). As the subject DOT is facially invalid and void ab initio, the Appointment of
Successor Trustee is similarly invalid and void ab initio since any purported authority accruing to
the Successor Trustee is tainted by the underlying invalidity of the DOT.
C. Material Facts Common to All Counts
10. On or about June 30, 2006, Plaintiff purchased and encumbered the Property with a 40 year
ARM on a principal balance of $232,765.00.
11. Under PlaintiII`s Note and Deed oI Trust, PlaintiII`s lender was purportedly Non-Party
WAMU-FA.
12. CHASE claimed in the NOD that it was the owner of the beneficial interest in the Loan and
foreclosed the Loan in this capacity.
13. CHASE is not the successor by merger with Non-Party WAMU-FA and thus any transfer of
its assets to CHASE must be effected by negotiation of the Note and assignment of the DOT,
which must be recorded in order to proceed with non-judicial foreclosure. Failure to
w
w
w
.
S
t
o
p
F
o
r
e
c
l
o
s
u
r
e
F
r
a
u
d
.
c
o
m

503.726.5930
negotiate the Note to CHASE deprives CHASE of constitutional standing to conduct a
foreclosure or indeed take any action with respect to it.
14. At all material times hereto, Plaintiff has never been provided with any assignment or other
document demonstrating transfer of the full and unencumbered interest in both the Note and
the Deed of Trust from the original lender Non-Party WAMU-FA to CHASE, Non-Party
FANNIE MAE or any other party.
15. At no time between the recording of the DOT on June 30, 2006 and the filing of this
Complaint has Non-Party WAMU-FA recorded any assignment of its interest to any party,
nor are there any assignments whatsoever of the DOT in the public record after the recording
of the DOT.
16. At all material times hereto, Defendant S&S was without power to act pursuant to ORS
86.790(3), which provides that:
a. Only the beneficiary under the Deed of Trust may appoint a successor trustee and;
b. Unless the appointment of a successor trustee is recorded in the mortgage records of
the county where the trust deed is recorded, the successor trustee does not acquire the
powers of the original trustee.
17. Defendant S&S was without power to act because the DOT was defective under ORS
86.705(5) since it could secure no obligation of Plaintiff/grantor to Non-Party WAMU-FA. It
also follows that ORS 86.790(3) could not be satisfied because Non-Party WAMU-FA was
not a valid beneficiary and thus had no power to appoint Defendant S&S as Successor
Trustee.
w
w
w
.
S
t
o
p
F
o
r
e
c
l
o
s
u
r
e
F
r
a
u
d
.
c
o
m

503.726.5930
18. Moreover, Defendant S&S was without power to act because the appointment of successor
trustee is not valid until recorded.
19. Even assuming arguendo that the appointment of successor trustee was valid notwithstanding
DeIendants` Iailure to comply with ORS 86.790(3), S&S still lacks the authority to act
pursuant to the Notice of Default because the Notice of Default was executed on October 6,
2010, prior to the recording of the Appointment of Successor Trustee on October 7, 2010.
20. At all material times hereto, all parties subsequent to the creation of the Deed of Trust are
falsely claiming rights to enforcement of powers incident to either the Note or Deed of Trust
because an unrecorded and broken chain of assignment exists.
21. The chain oI assignment is broken owing to DeIendants` Iailure to record, at a minimum, any
assignment from Non-Party WAMU-FA to any of the parties attempting to enforce the power
of sale.
22. In addition, the chain of assignment is broken because at its very inception the DOT is
defective as a result of Non-Party WAMU-FA falsely representing itself as the Lender and
Beneficiary when it did not exist under that name and was incapable of originating the Loan.
As the wrong beneficiary was named, the DOT was defective from the outset, meaning the
chain of assignments is and has been broken since June 29, 2006.
23. As of the date of this filing, Non-Party WAMU-FA would still be the only party whose
beneficial interest, if any, can be traced through the deed records of DESCHUTES County.
Yet Non-Party WAMU-FA does not hold a valid interest in the DOT owing to the facts
alleged above.
24. Even assuming arguendo that Defendant CHASE, as alleged successor in interest to Non-
w
w
w
.
S
t
o
p
F
o
r
e
c
l
o
s
u
r
e
F
r
a
u
d
.
c
o
m

503.726.5930
Party WAMU-FA validly acceded to its interests, a successor in interest can only receive as
much interest as was held by its predecessor in interest. As Non-Party WAMU-FA was
never a valid beneficiary and never held any valid beneficial interest, Defendant CHASE, as
successor in interest to Non-Party WAMU-FA, even assuming it validly obtained its
predecessor`s interests, could obtain no interest greater than that held by Non-Party WAMU-
FA. Simply put, as Non-Party WAMU-FA held no valid interest in the Note, Defendant
CHASE holds nothing as well. (This is in addition to the fact that nowhere has CHASE
produced any evidence that it actually acquired rights to PlaintiII`s loan under the P&A,
without which it had no constitutional standing to conduct this foreclosure.)
25. Equally fatal to the present foreclosure action is the fact that there have been unrecorded
assignments of the DOT that have occurred between the date of the original DOT on June 29,
2006 and today.
26. ORS 86.735(1) requires that all assignments of the DOT be recorded in the county in which
the property is situated as a precondition to any non-judicial foreclosure.
27. Non-Party FANNIE MAE reported prior to the Trustee Sale and continues to report after the
Trustee Sale that it is the true owner of the Note.
28. Non-Party FANNIE MAE`s assertion has been veriIied Irom a number oI independent
sources.
29. Non-Party FANNIE MAE`s interest is not only evidence of an unrecorded assignment of the
DOT that violates the requirements of ORS 86.735(1) but also evidence that CHASE was not
a holder of the Note and had no standing to conduct the foreclosure sale.
w
w
w
.
S
t
o
p
F
o
r
e
c
l
o
s
u
r
e
F
r
a
u
d
.
c
o
m

503.726.5930
30. As Oregon`s non-judicial Ioreclosure process requires strict compliance, DeIendant`s Iailure
to record an assignment of the Trust Deed renders the entire non-judicial foreclosure process
void ab initio because it violates a necessary precondition of a non-judicial foreclosure
pursuant to ORS 86.735(1). See Staffordshire Investments, Inc. v. Cal-Western Reconveyance
Corporation, 209 Or. App. 258 (2006); Burgett v. MERS, 2010 WL 4282105, at 2 (D. Or.
Oct. 20); In re McCoy, 2011 WL 477820, at 4 (Bankr. D. Or. Feb. 7); Hooker v. Northwest
Trustee Svcs., Civ. No. 10-3111-PA, May 25, 2011 Order at 8 (D. Or. 2011).
31. DeIendant`s non-judicial foreclosure is fatally defective on a number of levels as set forth
above. Given the strict compliance requirements imposed on non-judicial foreclosures, any
of the above-reIerenced deIects is Iatal to DeIendant`s non-judicial foreclosure efforts.
32. At all times material hereto, Defendants are claiming a right to foreclosure non-judicially as a
result of the power of sale clause as provided in Section 22 of the DOT, which is a
contractual agreement.
33. The Deed oI Trust speciIically conditions DeIendants` exercise oI the power oI sale
contained in the DOT on DeIendants` compliance with applicable law.
34. The power of sale in the DOT is a contractual remedy, the exercise of which is limited and
conditioned by statute.
35. Defendants have wrongfully invoked the power of sale because Defendants have failed to
comply with the preconditions necessary to invoke this power.
36. DeIendants` Iailures to abide by the non-judicial foreclosure statutes constitutes a breach of
contract because Defendants have sought a remedy under the DOT to which they are not
w
w
w
.
S
t
o
p
F
o
r
e
c
l
o
s
u
r
e
F
r
a
u
d
.
c
o
m

503.726.5930
entitled and because Defendants have sought to foreclose non-judicially without meeting the
requirements set forth in ORS 86.735(1).
37. Defendants have wrongfully and intentionally exercised a remedy that arises as a result of an
express contract provision.
38. As Defendants` exercise of said remedy is wrongIul, DeIendants` wrongIul exercise oI the
power of sale constitutes a breach of contract.
39. As Section 22 of the DOT specifically provides that Lender is entitled to collect all expenses,
including attorney fees, in the event that Lender prevails in its exercise of the power of sale,
Plaintiff is also entitled to its attorney fees in the event Defendants` exercise of the power of
sale is deemed wrongful because ORS 20.096 specifically provides:
In any action or suit in which a claim is made based on a contract that specifically
provides that attorney fees and costs incurred to enforce the provisions of the
contract shall be awarded to one of the parties, the party that prevails on the claim
shall be entitled to reasonable attorney fees in addition to costs and
disbursements, without regard to whether the prevailing party is the party
specified in the contract and without regard to whether the prevailing party is a
party to the contract.
40. As Defendants` remedy arises out of the DOT contract, and as the contract at issue
specifically provides for an award to Defendant CHASE of attorney fees and costs incurred
to enforce the provisions of the contract, Plaintiff is entitled to an award of its fees if it
prevails in voiding, invalidating, or setting aside the remedy chosen by Defendant
speciIically, DeIendants` election to invoke and proceed under the power of sale contained in
the DOT. In the event DeIendants` use oI the power oI sale is deemed wrongIul, PlaintiII`s
claim clearly falls within ORS 20.096 because Defendants` claim of the right to foreclose
non-judicially arises purely based on a contract that specifically provides for an award of
w
w
w
.
S
t
o
p
F
o
r
e
c
l
o
s
u
r
e
F
r
a
u
d
.
c
o
m

503.726.5930
attorney fees.
41. Controlling Supreme Court precedent provides for this Court to award attorney fees pursuant
to these provisions of Oregon law. Alyeska Pipeli ne Co. v. Wilderness Society, 421 U.S. 240,
259. n.31 (1975). ('|I|n the ordinary diversity case where the state law does not run counter
to a valid federal statute or rule of court, and usually it will not, state law denying the right to
attorney`s Iees or giving right thereto, which reIlects a substantial policy oI the state, should
be Iollowed.). See also the Oregon case of Shakevs Inc. v. Covalt, 704 F.2d 426, 435 (9
th

Cir. 1983). ('State law governs the award oI attorney`s Iees in diversity action in reference
to ORS 20.096.)
FI RST CLAI M FOR RELI EF
COUNT 1: WRONGFUL FORECLOSURE - DEFECTIVE APPOINTMENT OF SUCCESSOR
TRUSTEE
42. Plaintiff re-alleges the paragraphs set forth above and incorporates them herein by reference.
43. Assuming that WAMU-FA was the Lender under a valid DOT, the DOT is a contract binding
upon the Lender, as well as its successors and assigns, and the Plaintiff.
44. The foreclosure process initiated by Defendant should be declared invalid because Defendant
S&S was never properly appointed as Successor Trustee by reason of the following:
a. Pursuant to ORS 86.705(1), the beneficiary of a DOT is the person for whose benefit
the DOT is recorded.
b. Non-Party WAMU-FA was not, and could not have been the person for whose benefit
the DOT was recorded because Non-Party WAMU-FA did not exist as a valid entity
w
w
w
.
S
t
o
p
F
o
r
e
c
l
o
s
u
r
e
F
r
a
u
d
.
c
o
m

503.726.5930
capable of acting as beneficiary at the time the Loan was originated or at the time the
DOT was recorded.
c. Pursuant to ORS 86.790(3) the power to appoint a successor trustee is vested in the
beneficiary.
d. Non-Party WAMU-FA does not and cannot meet the statutory definition of a
beneficiary and as a result, Defendant CHASE, as successor to Non-Party WAMU-
FA cannot meet the statutory definition of a beneficiary either.
e. Neither Non-Party WAMU-FA nor Defendant CHASE ever had the power to appoint
a Successor Trustee.
f. Under the DOT, only the Lender has the power to appoint a successor trustee. As
described herein, there is no evidence that Defendant CHASE is the successor in
interest to the Lender under the DOT.
45. As Defendant S&S was never properly appointed as Successor Trustee, Defendant S&S was
legally incapable of issuing the Notice of Default and Election to Sell.
46. As Defendant S&S was never properly appointed as Successor Trustee, any and all
foreclosure activity initiated by Defendant S&S pursuant to an invalid appointment of
successor trustee is equally invalid and cannot serve as a legitimate basis for a non-judicial
foreclosure.
/ / / / /
/ / / /
/ / / / /
w
w
w
.
S
t
o
p
F
o
r
e
c
l
o
s
u
r
e
F
r
a
u
d
.
c
o
m

503.726.5930
SECOND CLAI M FOR RELI EF
COUNT 2: WRONGFUL FORECLOSURE DEFECTIVE NOTICE OF DEFAULT AND ELECTION
TO SELL
48. The DOT provides in its Section 22 that if Lender invokes the power of sale, Lender will
execute or cause the Trustee to execute a written notice of default and election to sell, to be
recorded in the county where the property is located, and give notice of the sale in the
manner prescribed by Applicable Law.
2
The only Applicable Law that prescribes the method
Ior conducting these actions is ORS 86.705 through 86.795, Oregon`s Trust Deed Act (the
'Act). Thus, as a contractual matter, Defendants have agreed to follow these procedures
with respect to the notice of default and election to sell and giving notice of sale, subject to
any requirements and limitations of Applicable Law.
49. DeIendants` NOD is invalid under the Act because, even assuming arguendo that the
appointment of successor trustee was validly issued in spite of its defective nature under ORS
86.790(3), and ignoring the failure of a valid successor of Lender to make such an
appointment, the NOD was issued before Defendant S&S possessed the authority to issue it
because the Appointment of Successor Trustee does not become effective until it is recorded.
A Notice of Default and Election to Sell executed before the authority to execute it has
vested is therefore invalid. See 'Exhibit 3 and 'Exhibit 4.
50. Further, a condition precedent to the issuance of a Notice of Default and Election to Sell and

2
This term is defined in the DOT as 'all controlling applicable Iederal, state and local statutes, regulations,
ordinances and administrative rules and orders (that have the effect of law) as well as all applicable final, non-
appealable judicial opinion.
w
w
w
.
S
t
o
p
F
o
r
e
c
l
o
s
u
r
e
F
r
a
u
d
.
c
o
m

503.726.5930
a condition precedent to the entire foreclosure process is that the Grantor be in default to the
owner under the obligation secured by the DOT. ORS 86.755(2). This requirement is also
found in Section 22 oI the DOT ('Lender shall give notice to Borrower prior to acceleration
Iollowing Borrower`s breach oI any covenant or agreement in this Security Instrument .
[t]he notice shall speciIy: (a) the deIault ..).
51. Owing to the fraudulent circumstances of the Loan`s origination, and the complete absence
of any evidence that any Defendant has any claim to the Note or DOT, none of the parties
asserting a right to collect the payments has any lawful entitlement to assert a right to
payment or a right to foreclose. Therefore, there is no default as to the true owner because
none of the true owners of the obligation was a party to the foreclosure.
52. The NOD is also defective because if fails to include the necessary content set forth in ORS
86.745(9)(a-d), as modified and effective March 4 and June 30, 2010, viz.:
a. Failure to include any contact information for the Oregon State Bar or free legal help
as required by ORS 86.745(9)(b).
b. Failure to include 'inIormation concerning the right the person has to notice under
ORS 86.755(c), or that the person 'may have additional rights under Iederal law as
required by ORS 86.745(9)(b).
c. Failure to include text that is substantially in the required statutory form or content
that relates to 'Notice to Tenants that is set apart Irom other text in the Notice oI
Sale. ORS 86.745(9)(c-d).
53. In addition, the NOD fails to contain the language the Lender contractually bound itself to
w
w
w
.
S
t
o
p
F
o
r
e
c
l
o
s
u
r
e
F
r
a
u
d
.
c
o
m

503.726.5930
include in its notice to Plaintiff pursuant to Section 22 of the DOT. This section provides, in
relevant part, that prior to acceleration Lender will give notice to Borrower and that '|t|he
notice shall further inform Borrower of the right . to bring a court action to assert the non-
existence of a default or any other defense of Borrower to acceleration and sale. (Emphasis
added.) The NOD contains no such language nor has Lender or any other party provided
Plaintiff with notice of this right. The failure to provide such notice as required under the
DOT contract is not only a breach of contract by Lender, which initiated acceleration and
sale in contravention of this provision, but it also separately renders the notice defective on
its face.
54. As DeIendants` NOD is prima facie invalid, it cannot serve as a basis for a non-judicial
foreclosure.
55. DeIendants` Ioreclosure process should thereIore be set aside and declared void and invalid.
THI RD CLAI M FOR RELI EF
COUNT 3: WRONGFUL FORECLOSURE FAILURE TO COMPLY WITH ORS 86.735(1)
57. Even assuming arguendo that DeIendants` appointment oI successor trustee is valid despite
Iailing to comply with ORS 86.790(3) and that DeIendants` NOD is valid despite the
manifest errors described herein, DeIendants` Ioreclosure actions are still invalid because
Defendants have failed to comply with ORS 86.735(1) and had no standing to conduct the
foreclosure.
58. ORS 86.735(1) requires as a precondition to the commencement of a non-judicial foreclosure
w
w
w
.
S
t
o
p
F
o
r
e
c
l
o
s
u
r
e
F
r
a
u
d
.
c
o
m

503.726.5930
process that all assignments of the Trust Deed be recorded in the county in which the
property is located.
59. Defendants have failed to record all assignments of the Trust Deed, including any assignment
to CHASE or to Non-Party FANNIE MAE.
60. At a minimum, there is at least one unrecorded assignment of the Trust Deed because there is
no recorded assignment from the initial beneficiary Non-Party WAMU-FA to any other
party, including Defendant CHASE, which did not acquire Non-Party WAMU-FA by merger
or acquisition.
61. Thus, in addition to the invalid and improper assignments, appointments and numerous
violations of ORS 86 already set forth, Defendants have failed to comply with ORS
86.735(1) in a way fatal to their action for a non-judicial foreclosure.
62. Not only are the appointment of successor trustee and assignment of the DOT defective as set
forth above, but the DOT also intentionally and materially misrepresents the name and
identity oI the DOT`s beneIiciary.
FOURTH CLAI M FOR RELI EF
COUNT 4: LACK OF STANDING TO CONDUCT FORECLOSURE
63. Non-Party FANNIE MAE reported both before and after the Trustee sale that it is the true
owner of the Loan. Non-Party FANNIE MAE`s assertion has been veriIied independently
from various sources and is at least as credible as CHASE`s competing claim, which has no
evidence to support it. Nor is there any assignment of the DOT to Defendant CHASE to
support its claims.
w
w
w
.
S
t
o
p
F
o
r
e
c
l
o
s
u
r
e
F
r
a
u
d
.
c
o
m

503.726.5930
64. Non-Party FANNIE MAE`s interest is evidence oI further misrepresentation of the identity
of the actual Note owner and creates a competing claim for the ownership of obligations
secured by the DOT.
65. The non-judicial foreclosure action was conducted by Defendant S&S in the name of
Defendant CHASE. It appears, however, that none of the parties involved was, in fact, the
real party in interest, while Non-Party FANNIE MAE, despite its competing claim, was
neither a party to the non-judicial foreclosure activity nor is the beneficiary under any
recorded assignment.
66. The absence of any assignment to Defendant CHASE, coupled with the competing claim by
Non-Party FANNIE MAE, made both before and after the Trustee sale on August 9, 2011,
together preclude CHASE from asserting that it had standing to complete this foreclosure.
Only the holder of the Note can be the real party in interest with an enforceable interest in the
Loan and only that party has the power to act pursuant to the DOT. See In Re Veal, 450 B.R.
897, at 921 (B.A.P. 9
th
Cir. June 10, 2011) (AHMSI not entitled to enforce the mortgage note
because it 'presented no evidence as to who possessed the original Note and there was no
evidence showing endorsement oI the note in it or servicer`s Iavor.) Accord Foust v. Wells
Fargo, No. 55520, 2011 WL 3298915 at *5 (Nev. July 29, 2011) ('To enIorce a debt secured
by a deed of trust and mortgage note, a person must be entitled to enforce the note pursuant
to Article 3 oI the UniIorm Commercial Code.) Article 3 is incorporated into Oregon law at
ORS 73. See also Restatement (Third) oI Property: Mortgages 5.4(c) (1997) ('A mortgage
may be enforced only by, or in behalf of, a person who is entitled to enforce the obligation
the mortgage secures.).Carpenter v. Longan, 83 U.S. 271, 274-75 (1872) ('[T]he note and
mortgage are inseparable; the former as essential, the latter as an incident. An assignment of
w
w
w
.
S
t
o
p
F
o
r
e
c
l
o
s
u
r
e
F
r
a
u
d
.
c
o
m

503.726.5930
the note carries the mortgage with it, while an assignment oI the latter alone is a nullity.).
67. Non-Party FANNIE MAE`s claim oI ownership raises serious questions about the validity of
CHASE`s competing claim oI ownership oI the Loan, a claim that requires factual proof
beyond a mere assertion. Accord Javaheri v. JP Morgan Chase Bank, N.A. et al ., Case No.
CV10-08185 ODW (FFMx), June 2, 2011 Order at *7 (C.D. Cal. 2011) (CHASE`s assertion
that the P&A Agreement suffices to establish its ownership of the Note is insufficient to
support a motion to dismiss where there was factual allegation of ownership by another entity
and no recording of its claim to ownership, together with the fact that the P&A Agreement
does not speciIically identiIy plaintiII`s note).
FI FTH CLAI M FOR RELI EF
COUNT 5: UNLAWFUL DEBT COLLECTION
(Defendants CHASE and S&S)
68. Plaintiff re-alleges the preceding paragraphs set forth above and incorporates them herein by
reference.
69. S&S acknowledges in its NOD that the 'Fair Debt Collection Practices Act |'FDCPA|
requires that we state the following: This is an attempt to collect a debt, and any information
obtained will be used Ior that purpose.
70. Plaintiff also alleges a violation of 15 U.S.C. 1692f(6), which provides that a debt collector
violates the FDCPA by '|t|aking or threatening to take any non-judicial action to effect
dispossession or disablement of property if (A) there is no present right to possession of the
property claimed as collateral through an enIorceable security instrument.. See
w
w
w
.
S
t
o
p
F
o
r
e
c
l
o
s
u
r
e
F
r
a
u
d
.
c
o
m

503.726.5930
Lettenmaier v. Freddie Mac, Civ. No. CV-11-156-HZ, May 20, 2011 Order at *19-20 (D. Or.
2011). This is precisely the circumstance in the present case, where CHASE is not the owner
of the Loan, had no right to possession of the Property, Defendant CHASE and its agent,
Defendant S&S, knew or should have known this fact, yet they wrongfully conducted a non-
judicial foreclosure to dispossess Plaintiff of his home.
71. Plaintiff seeks actual damages in an amount no less than what would be required for Plaintiff
to recover his cash downpayment and subsequent payments, and to permit him to recover full
title and possession of his home, including any costs or fees attributed to him in connection
with this unlawful foreclosure, as well as any costs associated with repairing his credit to the
extent damaged by this foreclosure, together with attorney fees and costs pursuant to 15
U.S.C. 1692k(a) and (b).
SI XTH CLAI M FOR RELI EF
COUNT 6: INJUNCTIVE RELIEF
72. Plaintiff re-alleges the preceding paragraphs set forth above and incorporates them herein by
reference.
73. This is an action for preliminary injunctive relief that is brought pursuant to applicable law
and FRCP Rule 65.
74. Plaintiff has set forth that the Defendants have unlawfully sold his home at a trustee sale. As
is routine industry practice in residential foreclosures, it is entirely foreseeable that
Defendant CHASE will next seek to evict Plaintiff from his home pursuant to an FED action
Iiled pursuant to ORS 105.110 and then seek to sell PlaintiII`s home to a purchaser Ior value
w
w
w
.
S
t
o
p
F
o
r
e
c
l
o
s
u
r
e
F
r
a
u
d
.
c
o
m

503.726.5930
in good faith in order to insulate the sale under the provisions of ORS 86.780, which would
preclude Plaintiff from any chance of recovering title and possession of his home.
75. Such actions by CHASE will constitute actions in violation of PlaintiII`s legal rights, actions
specifically intended to subvert the legislative purpose intended in creating non-judicial
foreclosure as an alternative to requiring a judicial proceeding when foreclosing a security
interest as a result of an alleged default by the debtor and, as a result, if Defendant CHASE is
not restrained by Order of this Court, Plaintiff will suffer immediate and irreparable injury,
loss, and damage.
76. Plaintiff intends to file, simultaneously with an application for a preliminary restraining
order, his Affidavit demonstrating irreparable harm if a preliminary restraining order staying
any FED action against him and any further sale of his home is not granted.
77. Plaintiff has a clear legal right to preliminary injunctive relief as Plaintiff owns the Property
and as Defendant CHASE is asserting adverse rights of ownership and possession to it
without having satisfied the necessary legal requirements for a non-judicial foreclosure or
standing requirements and without any evidence that it owns the full and unencumbered
interest in either the Note or the Deed of Trust, and is thus not entitled to take possession,
custody or control of the Property.
78. The specific facts set forth in this Complaint and the forthcoming supporting Affidavit
demonstrate that unless a preliminary injunction stays Defendant CHASE`s imminent FED
action against PlaintiII and Iurther sale oI PlaintiII`s home, Plaintiff will suffer the
irreparable injury, loss, and damage which is a unique form of damage personal to Plaintiff,
because it is not simply chattel, but is his home of almost five years.
w
w
w
.
S
t
o
p
F
o
r
e
c
l
o
s
u
r
e
F
r
a
u
d
.
c
o
m

503.726.5930
79. As Defendant CHASE has failed ownership interests in either the Note or the Deed of Trust,
it did not possess legal standing to lawfully foreclose on PlaintiII`s Property, and as a result,
Defendant CHASE as the purported purchaser does not have a valid claim for possession.
80. Furthermore, there is no harm to Defendant CHASE through the granting of the requested
relief because Plaintiff currently owes it nothing. CHASE currently holds purported title to
the property albeit illegally and all parties will remain in the same position since the
conclusion of the trustee sale. The balance of equities tips strongly in PlaintiII`s Iavor since
any harm claimed by Defendants, who have no plausible right to PlaintiII`s home, is
substantially outweighed by the irreparable harm eviction and permanent loss of his home
to the Plaintiff if the requested relief is denied.
81. There is substantial interest to the Court in protecting the PlaintiII`s and also the public`s
interest by granting the requested relief, as not only Plaintiff, but the public in general will be
harmed by the unlawful, deceptive, bad faith, and illegal conduct of the Defendants if the
relief requested is not granted. While Defendants may claim that the public interest is better
served by upholding the sanctity of contracts and the consequences of failing to pay debts
undertaken, granting the relief sought better serves this purpose by sending the public a
message that lenders too must follow the letter of law before they can be allowed to deprive
borrowers of their homes.
82. As there are various defects rendering the non-judicial foreclosure void ab initio, each of
which alone would be fatal to its conduct, Plaintiff has a substantial likelihood of success on
the merits.
83. Because Defendants do not have any demonstrable legal interest in either the Note or the
w
w
w
.
S
t
o
p
F
o
r
e
c
l
o
s
u
r
e
F
r
a
u
d
.
c
o
m

503.726.5930
Deed of Trust, and because any non-judicial foreclosure was void ab initio and as a result no
harm will occur to Defendants in granting the requested relief, and that restraint of
Defendants should be limited to judicial remedies, Plaintiff requests that the Court, pursuant
to FRCP Rule 65(c), consider it proper under these circumstances that Plaintiff not post
security in any amount.
WHEREFORE, Plaintiff respectfully asks the Court to take immediate jurisdiction of this
matter and enter an Order granting preliminary injunctive relief expressly precluding any attempt to
evict Plaintiff from his home and any further attempts to transfer interests in the subject Property, Note,
or DOT until such time as a hearing may be heard and allow Plaintiff to present evidence of the claims
Plaintiff has alleged in this Complaint.
WHEREFORE, Plaintiff asks the Court to enjoin any further attempts by any of the Defendants
or their agents from further initiating non-judicial foreclosure attempts but relegate Defendants to
use of judicial foreclosure action to foreclose any alleged breach or payment default.
SEVENTH CLAI M FOR RELI EF
COUNT 7: DECLARATORY RELIEF
84. This is an action for declaratory relief, which is being brought pursuant to 28 U.S.C.
2201(a) (The Federal Declaratory Judgment Act):
'In a case oI actual controversy within its jurisdiction, . . . any court oI the United States,
upon the filing of an appropriate pleading, may declare the rights and other legal relations
of any interested party seeking such declaration, whether or not further relief is or could
be sought. Any such declaration shall have the force and effect of a final judgment or
decree and shall be reviewable as such.

85. There is an actual controversy in the present case regarding whether Defendant CHASE
is the owner and beneficiary of the Note; whether the Trustee was legally appointed and authorized to
w
w
w
.
S
t
o
p
F
o
r
e
c
l
o
s
u
r
e
F
r
a
u
d
.
c
o
m

503.726.5930
undertake its foreclosure related actions; whether Defendant CHASE was entitled to conduct the
foreclosure; and whether Defendant CHASE is legally entitled to conduct an FED and third party sale.
86. In view of the fact that:
a. The original Note and DOT were not executed in favor of any of the Defendants;
b. The DeIendants Ioreclosed on PlaintiII`s residential real property without any demonstrated
interest in either the Note or the DOT; and
c. There is no evidence of any assignment from Non-Party WAMU-FA to any person or party of
the original lender`s interest in the Note and the DOT or any recorded assignment thereoI
pursuant to ORS 86.735(1),
87. Plaintiff is in doubt and is uncertain as to his rights under the Note and DOT contracts;
his legal rights and relations with respect to such contracts have been apparently altered by the actions of
the Defendants; and he is legally entitled, through this action for Declaratory Relief, to have such doubt
and uncertainty removed.
88. Plaintiff therefore asks this court to declare that Defendants have no legal or equitable
rights in the Note or the DOT and that their lack of legal standing to institute, maintain, or enforce a
foreclosure on the Property entitles him to seek preliminary injunctive relief barring any Defendant from
seeking to evict him from the Property or from selling the Property in the future and to a declaration of
quiet title in his favor as against any competing adverse claims by Defendants.
1. As the disposition of this action on the merits will require the determination of multiple issues of
fact, Plaintiff demands trial by jury on all issues of fact pursuant to FRCP 38.
2. Plaintiff also demands an award of costs pursuant to FRCP 54(d)(1).
1. WHEREFORE, Plaintiff prays for Order/Judgment in favor of Plaintiff and against
Defendants as follows:
w
w
w
.
S
t
o
p
F
o
r
e
c
l
o
s
u
r
e
F
r
a
u
d
.
c
o
m

503.726.5930
2. In view of the fact that:
(a) The original Note was not executed in favor of any of the Defendants; and
(b) The Defendants foreclosed on the PlaintiII`s residential real property without any
demonstrated interest in either the Note or the Deed of Trust; and
(c) There is a serious question whether either Non-Party WAMU-FA or Defendant
CHASE as purchaser of certain assets of Non-Party WAMU-FA has any valid or lawful
interest in the DOT and Note; and
(d) There is a serious question whether the original DOT is invalid for failure to
comply with ORS 86.705(5); and
(e) There is a serious question about the validity of the appointment of successor
trustee, Defendant S&S; and
(f) There is a serious question about which of the competing parties, if any, has a
valid claim to PlaintiII`s Note and thus the identity oI the party with the power and standing to
enforce the Note under the DOT is unresolved;
(g) The Defendants failed to provide the notice to which Plaintiff was due under the
DOT contract terms when undertaking to exercise the power of sale; and
(h) There is a serious question whether the Defendants have recorded all assignments
of the DOT as required by ORS 86.735(1);
The Plaintiff is in doubt and is uncertain as to his rights under the Note and the Deed of
Trust contracts; and Plaintiff is legally entitled, through this action for Declaratory Relief, to
have such doubt and uncertainty removed.
w
w
w
.
S
t
o
p
F
o
r
e
c
l
o
s
u
r
e
F
r
a
u
d
.
c
o
m

503.726.5930
WHEREFORE, Plaintiff demands that the Court adjudge/order that:
A. Defendants had no constitutional or prudential standing or the proper legal,
ownership, or equitable interest in either the Note or the Deed of Trust to institute or
maintain a foreclosure;
B. There was no legal conveyance of either the Note or the Deed of Trust from the
original lender to any of the Defendants;
C. There is no legal appointment of a successor trustee;
D. The NOD is invalid on its face;
E. Defendants` Ioreclosure of PlaintiII`s home was legally defective and void ab initio
so as to preclude it from enforcement;
F. Plaintiff be awarded economic damages of no less than $250,000.00 or an amount to
be proven at trial for violations of the FDCPA;
G. Plaintiff be awarded monetary damages sufficient to permit him to recover title to his
home;
H. In the alternative to the claim Ior relieI under 'F above, that Plaintiff be granted
quiet title as against all competing adverse claims of the Defendants who are
wrongfully claiming ownership of his home;
/ / / / /
/ / / / /
/ / / / /
/ / / / /
w
w
w
.
S
t
o
p
F
o
r
e
c
l
o
s
u
r
e
F
r
a
u
d
.
c
o
m

503.726.5930
I. Plaintiff is entitled to judgment Ior PlaintiII`s Court costs, expenditures, reasonable
attorney fees and prevailing party fee as provided by law.
Dated this 5th day of October, 2011.
_____________________________
John Bowles, OSB No. 971497
john@bowlesfernandez.com
5200 SW Meadows Road, Suite 150
503.726.5930
w
w
w
.
S
t
o
p
F
o
r
e
c
l
o
s
u
r
e
F
r
a
u
d
.
c
o
m

Collette V JPMC

Transféré par

Informations du document

Description originale:

Titre original

Copyright

Formats disponibles

Partager ce document

Partager ou intégrer le document

Options de partage

Avez-vous trouvé ce document utile ?

Ce contenu est-il inapproprié ?

Droits d'auteur :

Formats disponibles

Collette V JPMC

Transféré par

Droits d'auteur :

Formats disponibles

Page 1 Complaint: TIM A. COLLETTE v. SHAPIRO & SUTHERLAND, et al.

Declaratory and Injunctive Relief for Equitable

Vous aimerez peut-être aussi