Amended Petition and Exparte Motion to Show Cause-1

8/12/2019 Amended Petition and Exparte Motion to Show Cause-1

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Judge Christopher Cross

DISTRICT COURT, ARAPAHOE COUNTY, COLORADO Case # 14cv53

Court Address: 7325 So. Potomac St. Date: April 17th

, 2014

Centennial, CO 80112

Time: 10:30 a.m.

Patricia A. Jackson, Div: 407

Plaintiff/Petitioner

v

JPMorgan Chase N.A. , Bayview Loan Servicing; FEDERAL

DEPOSIT INSURANCE CORPORATION(FDIC); AND

FEDERAL DEPOSIT INSURANCE CORPORATION (FDIC)

LISA CANCANON, ESQDefendants/Respondents,

_______________________________________________________AMENDED VERIFIED PETITION, AND EMERGENCY EX-PARTE

MOTION FOR AN ORDER TO SHOW CAUSE WHY AN ASSIGNMENT

FILED AT THE COUNTY RECORDERS OFFICE, AND THE

DOCUMENTS FILED WITH THE PUBLIC TRUSTEE FOR

FORECLOSURE IN THE RULE 120 SHOULD NOT BE

CONSIDERED SPURIOUS DOCUMENTS

IF TRIAL IS ORDERED, PLAINTIFF WISHES A JURY TRIAL

COMES NOWPetitioner Patricia A. Jackson and pursuant to CRCP 105.1(b) hereby moves

the Court for an Emergency Order to Show Cause why an assignment of a Deed of Trust, and the

related foreclosure filings at the Public Trustee's Office in the Rule 120, should not be declared

"spurious documents" and invalidated.

This procedure is necessary because the Rule 120 is limited in scope, and the discovery derived

is necessary to protect plaintiffs interest in Due Process under the 14thAmendment.


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RELEVANT FACTS

1. On February 1st, 2008 Defendant Patricia A Jackson signed and executed a Promissory Note(Exhibit A) secured by a Deed of Trust in favor of Washington Mutual ("WaMu") and FederalSavings Bank which was recorded on February 7th, 2008(ReceptionB8015783) (Exhibit B)

2. On August 7th, 2013, Lisa Cancanon, Esq. of Aronowitz and Mecklenburg LLP signed her nameto a Statement of Qualified Holder filed at the Public Trustee's Office. (Exhibit C)

3. On August 14th, 2013 JPMORGAN CHASE N.A. FILED A NOTICE OF ELECTION ANDDEMAND ("NED") filed at the Public Trustee's Office (Exhibit C)

4. OnNovember 19th, 2013, JP MORGAN CHASE("CHASE") a national bank, entered into a"SETTLEMENT AND RELEASE AGREEMENT (AGREEMENT")with the FEDERAL DEPOSITINSURANCE CORPORATION. (FDIC) (Exhibit D)

5. On December 6th, 2013, M & T sent a letter to Patricia A Jackson informing her that it was theservicer for the loan.(Exhibit E)

6. On December 13th, 2013 M & T informed Patricia A. Jackson by letter that the Loan belonged toBayview Loan Servicing LLC.(Exhibit F)

7. On December 16th, 2013, JPMORGAN CHASE assigned the Deed of Trust to Bayview Loan

Servicing which was recorded at the Arapahoe County Recorder's Office on December 18th,2013, Reception # D3149996) (Exhibit G)

8. On January 29th, 2014, Notice of Contested Rule 120 in Case # 13cv31297/Div. 15(Exhibit H)

9. On March 20th, 2014 a hearing is scheduled in the Rule 120.(Case #13cv31297) where the arepresentative of Bayview Loan Servicing(Sean Dever) was brought to testify that Patricia AllenJackson was not pursuing loan Modification.

10. During the testimony, Sean Dever stated that JPMorgan Chase was not the owner of the Deed ofTrust and promissory note. (See Affidavit of Patricia A. Jackson, attached)

INTRODUCTION

CRCP 105.1states:

Any person whose real or personal property is affected by a spurious lien or spurious

document, as defined by law, may file a petition in the district court in the county in which

the lien or document was recorded or filed, or in the district court for the county in which

affected real property is located, for an order to show cause why the lien or document

should not be declared invalid. The petition, which may also be brought as a counterclaim

or a cross-claim in a pending action, shall set forth a concise statement of the facts upon


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which the petition is based, shall be supported by the affidavit of the petitioner or the

petitioner's attorney, and shall be accompanied by a copy of the lien or document as

recorded or filed in the public records. The order to show cause may be grantedex parte

This action begs the question whether JPMorgan Chase is a successor in Interest to

Washington

Mutual with standing to foreclose. It also begs the question of whether JPMorgan Chase, if a

successor in interest, divested itself of any rights when it assigned all of its rights under a Deed of

Trust by a recorded assignment to Bayview Loan Servicing (Exhibit G), which was security

evidenced by a promissory note giving Bayview Loan Services the status of a Holder in Due Course

and imposing on it the requirement of taking the note for value, in good faith, and without

knowledge of the informative of the transaction.

For the reasons set forth in this petition, the documents entitled Assignment of the Deed of

Trust to Bayview Loan Servicing and the documents filed with the Public Trustee in order to

foreclose on debtor Patricia A. Jackson, do not speak the truth, and are "spurious documents" as

defined under 38-35-201, C.R.S. 2012 which states: " (3) "Spurious document"means any

document that is forged or groundless, contains a material misstatement or false claim, or is

otherwise patently invalid."

The purpose of this action is to verify the factual basis for the recording and filings of the

subject documents at the Arapahoe County Recorder's Office and the filings of the Documents

filed with the Arapahoe County Public Trustee's Office which purports to give rights which are not

warranted and therefore are "spurious documents" containing material misstatements or false claims

which makes the assignment in the County Recorder's Office and the filings at the Arapahoe Public

Trustee's Office "spurious documents" as defined under Section 38-35-201, C.R.S. 2012

InRobert Herrera et al v Deutsche Bank National Trust Company et al, No. C065630 (Third

District, 2011, Cal.) the Court was asked to take judicial notice but, the court while taking judicial

notice said:


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"[T]he fact a court may take judicial notice of a recorded deed, or similar document, doesnot mean it may take judicial notice of factual matters stated therein. [Citation.] Forexample, the First Substitution recites that Shanley `is the present holder of beneficialinterest under said Deed of Trust.' By taking judicial notice of the First Substitution, thecourt does not take judicial notice of this fact, because it is hearsay and it cannot beconsidered not reasonably subject to dispute." (Id.at p. 1117.)

(5) The same situation is present here in the context of this residential mortgageforeclosure litigation. The substitution of trustee recites that the Bank "is the presentbeneficiary under" the 2003 deed of trust. As inPoseidon,this fact is hearsay and disputed;the trial court could not take judicial notice of it. Nor does taking judicial notice of theassignment of deed of trust establish that the Bank is the beneficiary under the 2003 deed oftrust.

The assignment recites that JPMorgan Chase Bank, "successor in interest to WASHINGTONMUTUAL BANK, SUCCESSOR IN INTEREST TO LONGBEACH MORTGAGE COMPANY" assigns all beneficial interest under the 2003

deed of trust to the Bank. The recitation that JPMorgan Chase Bank is the successorin interest to Long Beach Mortgage Company, through Washington Mutual, ishearsay. Defendants offered no evidence to establish that JPMorgan Chase Bank hadthe beneficial interest under the 2003 deed of trust to assign to the Bank. Thetruthfulness of the contents of the assignment of deed of trust remains subject todispute (StorMedia, supra,20 Cal.4th at p. 457, fn. 9), and plaintiffs dispute thetruthfulness of the contents of all of the recorded documents.

Judicial notice of the recorded documents did not establish that the Bank was thebeneficiary or that CRC was the trustee under the 2003 deed of trust. Defendants failed toestablish "facts justifying judgment in [their] favor" (Bono v. Clark(2002) 103

Cal.App.4th 1409, 1432 [128 Cal.Rptr.2d 31]), through their request for judicial notice.

Accordingly, the documents filed by JPMorgan Chase against Patricia A. Jackson to obtain an

Order of Sale administered by a Public Trustee and summarily approved by a Judge which were filed

with the Public Trustee's Office constitute hearsay which is disputed by plaintiff; and the assignment

of the Deed of Trust recorded at the Arapahoe County Recorder's Office in which JPMorgan Chase

purports to be the Successor in Interest to Washington Mutual Bank also constitutes hearsay which is

disputed by plaintiff.

The validity of these documents are disputed, and need to be address by this court under the

Colorado Spurious Documents Statute CRCP 105.1.


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ISSUES

ISSUE 1.WASJPMORGAN CHASE N.A.A SUCCESSOR IN INTEREST TOWASHINGTON MUTUAL

OnNovember 19th, 2013, JP MORGAN CHASE("CHASE") a national bank, entered into a

"SETTLEMENT AND RELEASE AGREEMENT (AGREEMENT")with the FEDERAL

DEPOSIT INSURANCE CORPORATION. (FDIC) (Exhibit D) which included 13 which states:

No Acknowledgment or Admission. Nothing in either this Agreement or the DOJ Agreementshall constitute an admission or imply thatJPMorgan Chase Bank, N.A.or any of itssubsidiaries or affiliates became successor-in-interest to Washington Mutual Bank, WaMuCapital Corp., Long Beach Securities Corp., and WaMu Asset Acceptance Corp. or assumedany particular liability of Washington Mutual Bank, WaMu Capital Corp., Long Beach

Securities Corp., and WaMu Asset Acceptance Corp, whenJPMorgan Chase Bank,N.A..Purchased the assets and assumed certain liabilities of Washington Mutual Bank pursuant to thePurchase and Assumption Agreement dated September 25, 2008 betweenJPMorgan ChaseBank, N.A.and the Federal Deposit Insurance Corporate in its corporate capacity and itscapacity as Receiver for Washington Mutual Bank.

Signed bySTEPHEN M CUTTER, GENERAL COUNSEL TO JPMORGAN CHASE onNovember 19th, 2013

The admission ofJPMorgan Chasein the above agreement disavowing its status as a

successor in interest to Washington Mutual renders the documents filed by the Public Trustee

Office purporting to have standing to foreclose constitute spurious documents which contains a

material misstatement or false claim which makes the documents "spurious documents" as defined

under Section 38-35-201, C.R.S. 2012. It would also invalidate the assignment of the Deed of Trust

made by JPMorgan Chase N.A. to Bayview Loan Service (Exhibit G) where it is purportedly

assigned by it as successor in interest to Washington Mutual (WaMu).

If JPMorgan Chase is the successor in interest then the documents filed at the Public Trustee's

Office is still "spurious documents" because the right to foreclose would belong to Bayview Loan

Servicing through the assignment for value dated December 16 th, 2013 and recorded on December


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18th, 2013. JPMorgan Chase N.A. is estopped to claim that it is successor in interest to JPMorgan

Chase by 13 of "THE SETTLEMENT AGREEMENT AND RELEASE"

Therefore, the subject Assignment of the Promissory Note byJPMORGAN CHASE N.A.to

Bayview Loan Servicingcontains a material misstatement or false claim which makes the

assignment a "spurious document" as defined under Section 38-35-201, C.R.S. 2012.and fraudulent.

ISSUE 2:WAS JPMORGAN CHASE DIVESTED OF ALL RIGHT TITLE ANDINTEREST IN THE SUBJECT PROPERTY WHEN THEY ASSIGNED THEBENEFICIAL INTEREST TO BAYVIEW LOAN SERVICING?

On February 1st, 2008 DefendantPatricia A Jacksonsigned the executed a promissory Note

secured by a Deed of Trust in favor of Washington Mutual ("WaMu") and Federal Savings Bank

which was recorded on February 7th, 2008(Reception B8015783) (Exhibit A)

On December 16th, 2013, Defendant JPMorgan Chase N.A. assigningall the beneficial

interestunder a certain Deed of Trust dated February 1, 2008 which was recorded on December

18th, 2013, purporting to do so as the Successor in Interest to Washington Mutual. (Exhibit G )

which states:

For Value Received, the undersigned holder of the Deed of Trust (herein "Assignor") does

hereby grant, sell, assign, transfer and convey, unto Bayview Loan Servicing, LLC,

(Herein "Assignee"), whose address is 4425 PONCE DE LEON BLVD, CORAL

GABLES, FL 33146, all beneficial interest under a certain Deed of Trust dated February 1,

2008 and recorded on February 7, 2008, made and executed byPATRICIA JACKSON,

To the Public Trustee of ARAPAHOE, STATE OF COLORADO, upon the following

described property situated in ARAPAHOE County, State of Colorado....

WHICH HAS THE ADDRESS OF6720 EAST LAKE CIRCLE, CENTENNIAL, CO

80111,such Deed of Trust having been given to secure payment of Two Hundred Fifty SixThousand and 00/100ths ($256,000.00), which Deed of Trust is of record in Book,

Volume, or Liber No. N/A,(or as No. B8015783), in the Office of County Recorder of

ARAPAHOE County, State of Colorado.

TO HAVE AND TO HOLD, the same unto Assignee, its successors and assigns, forever,

subject only to the terms and conditions of the above-described Deed of Trust.


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It ends stating"AssignorJPMorgan Chase Bank, National Association, successor in Interest by

purchase from the Federal Deposit Insurance Company as Receiver of Washington Mutual Bank

F/K/A Washington Mutual Bank and signed byMelinda G. Craft, Vice President.

As the court in Robert H errerasaid: . "The recitation that JPMorgan Chase Bank is the successor in

interest to Long Beach Mortgage Company, through Washington Mutual, is hearsay.

Defendants offered no evidence to establish that JPMorgan Chase Bank had the beneficial interest

under the 2003 deed of trust to assign to the Bank". [B,U]

Even ifJPMORGAN CHASEwas a Successor in Interest to Washington Mutual Bank (Bank)

it divested itself of all right title and interest when it assigned all of its beneficial interest to

Bayview Loan Service.

InLEWIS v. COLUMBUS INVESTMENTS, No. 99CA1435 (December, 2000) Defendant,

Columbus investments appealed from a summary Judgment in favor of Plaintiffs quiettitle

action involving a challenge to the validity of a treasurer's deed to certain real property. The property

was conveyed to plaintiffs by a warranty deed that was duly recorded.

To finance the purchase of the property, plaintiffs obtained a loan from two individuals (lenders).

In connection with that loan, plaintiffs executed a promissory note and also a deed of trust, which

was recorded.

Thereafter, in connection with a loan the lenders obtained from a bank, they executed a

"Collateral Assignment of Interest in Deed of Trust," which provided in pertinent part as follows:

Assignment: As security for indebtedness owing by assignor to bank, assignor has grantedto Bank a security interest in a promissory note or other obligation secured by the above-

described Deed of Trust and Assignment of Rents. For good and valuable consideration,the receipt and sufficiency of which is hereby acknowledged, Assignor hereby assigns tothe Bank all of Assignor's right, title, and interest in and to the Deed of Trust andAssignment of Rents as additional security for Assignor's indebtedness owing to the Bank.(emphasis added)

Columbus Investments argued that they were not given notice of the application for the

treasurer's deed.


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The court held:

[T]he record does reflect that, upon diligent inquiry, the county treasurer determined that,because the lenders made an unqualified transfer of the note, granting a security interest inthe note to the bank and transferring to the bank the right to enforce the note as its holder,based on the plain language of the documents, the lenders no longer had any right, title, orinterest in the property.

ISSUE 3: WHETHERBAYVIEW LOAN SERVICINGOBTAINED THE DEED OFTRUST AND PROMISSORY NOTE IN GOOD FAITH FOR VALUABLECONSIDERATION AS A HOLDER IN DUE COURSE?

ARGUMENT

IfJPMORGAN CHASEN.A. was a successor in interest to Washington Mutual Bank, and

Bayview Loan Servicing LLC properly purchased the mortgage debt for value, "Bayview" would

be considered the holder in Due Course subject to the requirements under that status.

The Supreme Court of Colorado decided the case ofCLI NTON GEORG v METRO

FIXTURES CONTRACTORS, INC., Case No. 07SC26 (Mar. 2008) and held that there was an

important distinction between a holder and a holder in due course. The court said in part that:

A holder in due course must meet five conditions: (1) be a holder;2(2) of a negotiableinstrument3who took it; (3) for value;4(4) in good faith;5(5) without notice of certainproblems with the instrument.6Id. at 17-2, 151-52.

To be a holder one must meet the two conditions in section 4-1-201(b) (20): (1) he or shemust have possession (2) of an instrument drawn, issued, or indorsed to him or her. Id. at 17-3, 152. Possession is an element designed to prevent two or more claimants fromqualifying as holders who could take free of the other party's claim of ownership. 6William D. Hawkland & Lary Lawrence, Uniform Commercial Code Series, 3-301:3(1999). With rare exceptions, those claiming to be holders have physical ownership of theinstrument in question. White & Sum JPMorgan Chase N.A., supra, at 17-3, 152.

The critical distinction is that a holder of an instrument "drawn, issued, or indorsed to him or

her would be an intermediary or agent who is authorized to have constructive possession for the

holder in due course."

Therefore Bayview Loan Servicing LLC is the holder in due course who must take the instrument

for "value, in good faith, and without notice of certain problems with the instrument which it did not.


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The case was remanded to trial court with direction that the assignment should becanceled, and Wood and Seeley's administrator decreed to account for the amountsreceived, less the amount paid, with interest.

Though the recorded assignment form JPMorgan Chase to Bayview Loan Service purports to

have been taken for value and in good faith, is hearsay which JPMorgan Chase and Bayview Loan

Service should produce the relevant documents to prove the veracity of the documents recorded at

the County Recorders Office in Arapahoe, such as cancelled checks and purchase agreements in

accordance withBaker vs Woodcited above.

As the court inBakerheld, this transaction should be invalidated the assignment as "a spurious

document" if it cannot show value paid for the assignment of the Deed of Trust. The assignment,

therefore would contain a material misstatement or false claim which makes the assignment a

"spurious document" along with the material misstatements in issues I & 2 as defined under Section

38-35-201, C.R.S.2012 (Exh C)

WHEREFORE, for the above stated reasons, it is hereby requested that this Court issue an

Order To Show Cause why the Mortgage Assignment dated October 4th, 2011, and its related,

should not be removed from the record as"spurious documents"and Petitioner be awarded Costs

and Attorney's Fees in this matter.

Respectfully submitted,

____________________ Dated: , 2014

PATRICIA A. JACKSON

VERIFICATION

I, PATRICIA A. JACKSON,am a plaintiff in the above-entitled action. I have read the

foregoing complaint and know the contents thereof. The same is true of my own knowledge, except

as to those matters which are therein alleged on information and belief, and as to those matters, I

believe it to be true.


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I declare under penalty of perjury that the foregoing is true and correct and that this verification

was executed at Aurora, Colorado.

______________________ Dated: , 2014PATRICIA A. JACKSON