IN THE CIRCUIT COURT OF THE 15th JUDICIAL CIRCUIT … · 09/09/2011 · 1 in the circuit court of the 15th judicial circuit in and for palm beach county, florida linda patricia zimmerman,

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IN THE CIRCUIT COURT OF THE 15th JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA LINDA PATRICIA ZIMMERMAN, individually;VELDORA ARTHUR, individually;MAGDALENA A. APOSTOLOVA, individually Case No.: 11-and jointly with EMIL P. MILYAKOV, individually and jointly; THAXTER ARTERBERRY, individually and jointly with CATHERINE ARTERBERRY, individually and jointly;SIMONE BRAXTON, individually;MARK I. CONGRESS, individually and jointly With LORETTA R. CONGRESS, individually and jointly; LOUIS CORTI, individually; RENA E. JOHNSTON-FARRINGTON as agentof the Farrington Family Trust; RENITA Z. COMPLAINT FOR FRAUD, GORDON, individually; THOMAS P. VIOLATIONS OF THE FLORIDAGUTIERREZ, individually; RUSSELL B. CIVIL REMEDIES FOR CRIMINALHOBSON, individually and jointly with PRACTICES ACT (FLORIDA RICOJANE HOBSON, individually and jointly; ACT), TEMPORARY ANDJEAN IMMESBERGER, individually and PERMANENT INJUNCTIVE RELIEF,jointly with RONALD IMMESBERGER, AND OTHER RELIEF, AND individually and jointly; CRAIG LIEBERMAN, DEMAND FOR JURY TRIALindividually; SOLANGE MCINTYRE individuallyand jointly with LEON MCINTYRE, individuallyand jointly; GREGORY MISSMAN, individuallyand jointly with NINA MISSMAN, individuallyand jointly; FRANK RAPP, individually and jointlywith SUSAN NICHTER, individually and jointly; PAULA A. RENARD, individually; JEANNI ALICESCHIPPER, individually; THERESA M. SCHOENBART, individually; MICHAEL D. SCOTT, individually; H. CHRISTOPHER STARKEY, individually and jointly withLOUISA H. STARKEY individually and jointly; and LAWRENCE WALSH, individually and jointly with MELANIE WALSH, individually and jointly;

Plaintiffs, v. JPMORGAN CHASE BANK, N.A. and CHASE HOMEFINANCE LLC;

Defendants. ___________________________________________/

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Plaintiffs LINDA PATRICIA ZIMMERMAN, individually; VELDORA ARTHUR,

individually; MAGDALENA APOSTOLOVA, individually and jointly with EMIL P.

MILYAKOV, individually and jointly; THAXTER ARTERBERRY, individually and jointly

with CATHERINE ARTERBERRY, individually and jointly; SIMONE BRAXTON,

individually; MARK I. CONGRESS, individually and jointly with LORETTA R.

CONGRESS; LOUIS CORTI, individually; RENA E. JOHNSTON-FARRINGTON as

agent of the Farrington Family Trust; RENITA GORDON, individually; THOMAS P.

GUTIERREZ, individually; RUSSELL B. HOBSON, individually and jointly with JANE

HOBSON, individually and jointly; JEAN IMMESBERGER, individually and jointly with

RONALD IMMESBERGER, individually and jointly; CRAIG LIEBERMAN, individually;

SOLANGE MCINTYRE individually and jointly with LEON MCINTYRE, individually and

jointly; GREGORY MISSMAN, individually and jointly with NINA MISSMAN, individually

and jointly; FRANK RAPP, individually and jointly with SUSAN NICHTER, individually

and jointly; PAULA A. RENARD, individually; JEANNI ALICE SCHIPPER, individually;

THERESA M. SCHOENBART, individually; MICHAEL D. SCOTT, individually; H.

CHRISTOPHER STARKEY, individually and jointly with LOUISA H. STARKEY

individually and jointly; and LAWRENCE WALSH, individually and jointly with MELANIE

WALSH, individually and jointly, sue Defendants JPMORGAN CHASE BANK, N.A. and

CHASE HOME FINANCE LLC for Fraud, Violations of the Florida Civil Remedies for

Criminal Practices Act (Florida RICO Act) and for other relief and demand trial by jury,

and state:


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I. Jurisdiction, Venue, and Parties

A. Jurisdiction and Venue

1. This is an action for damages which exceed the jurisdictional limit of this Court

exclusive of interest, attorneys’ fees, and costs, which damages are recoverable under

the claims set forth herein including the Florida Civil Remedies for Criminal Practices

Act (Florida RICO Act), and which damages have been suffered by the Plaintiffs due to

the actions and conduct of the Defendants as set forth hereinbelow; for temporary and

permanent injunctive relief on a nationwide basis; and for other relief, and for trial by

jury of all issues so triable as a matter of right.

2. Jurisdiction of this action is proper in this Court as Defendant JPMORGAN

CHASE BANK N.A. maintains numerous offices for the conduct of regular and

continuous business within the State of Florida including Palm Beach County, Florida,

and as numerous of the acts set forth herein were committed by CHASE HOME

FINANCE LLC during the time that it was registered to do business in Florida.

3. Venue of this action is proper in this Court as applicable Florida law provides

that if venue is proper as to any one Defendant in multi-Defendant litigation that venue

is proper as to all Defendants, and as venue is proper as to Defendant JPMORGAN

CHASE BANK, N.A.

B. Parties

4. Plaintiff LINDA PATRICIA ZIMMERMAN, individually is a resident of Palm

Beach County, Florida who is over the age of eighteen (18).

5. Plaintiff VELDORA ARTHUR, individually is a resident of Broward County,

Florida who is over the age of eighteen (18).


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6. Plaintiff MAGDALENA APOSTOLOVA, individually is a resident of the state of

California who is over the age of eighteen (18), and is also a Plaintiff in joint capacity

with Plaintiff EMIL MILYAKOV, who is her husband.

7. Plaintiff EMIL P. MILYAKOV, individually is a resident of the State of California

who is over the age of eighteen (18), and is also a Plaintiff in joint capacity with Plaintiff

MAGDALENA APOSTOLOVA, who is his wife.

8. Plaintiff THAXTER ARTERBERRY, individually is a resident of the State of


with Plaintiff CATHERINE ARTERBERRY, his wife.

9. Plaintiff CATHERINE ARTERBERRY, individually is a resident of the State of


with Plaintiff THAXTER ARTERBERRY, her husband.

10. Plaintiff SIMONE BRAXTON, individually is a resident of the State of

California who is over the age of eighteen (18).

11. Plaintiff MARK I. CONGRESS, individually is a resident of the State of


with Plaintiff LORETTA R. CONGRESS, his wife.

12. Plaintiff LORETTA R. CONGRESS. CONGRESS, individually is a resident of

the State of California who is over the age of eighteen (18), and is also a Plaintiff in joint

capacity with Plaintiff MARK I. CONGRESS, her husband.

13. Plaintiff LOUIS CORTI, individually is a resident of the State of New York

who is over the age of eighteen (18).


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14. Plaintiff RENA E. JOHNSTON-FARRINGTON is an authorized agent of the

Farrington Family Trust who resides in the State of California and is over the age of

eighteen (18).

15. Plaintiff RENITA Z. GORDON, individually is a resident of the State of

Tennessee who is over the age of eighteen (18).

16. Plaintiff THOMAS P. GUTIERREZ, individually is a resident of the State of


17. Plaintiff RUSSELL B. HOBSON, individually is a resident of the State of New

Jersey who is over the age of eighteen (18), and is also a Plaintiff in joint capacity with

Plaintiff JANE HOBSON, who is his wife.

18. Plaintiff JANE HOBSON individually is a resident of the State of New Jersey


RUSSELL B. HOBSON, who is her husband.

19. Plaintiff JEAN IMMESBERGER, individually is a resident of the State of New

Jersey who is over the age of eighteen (18), and is also a Plaintiff in joint capacity with

Plaintiff RONALD IMMESBERGER, who is her son.

20. Plaintiff RONALD IMMESBERGER, individually is a resident of the State of

New Jersey who is over the age of eighteen (18), and is also a Plaintiff in joint capacity

with Plaintiff JEAN IMMESBERGER, who is his mother.

21. Plaintiff CRAIG LIEBERMAN, individually is a resident of the State of



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22. Plaintiff SOLANGE MCINTYRE, individually is a resident of the State of

Washington who is over the age of eighteen (18), and is also a Plaintiff in joint capacity

with Plaintiff LEON MCINTYRE, who is her husband.

23. Plaintiff LEON MCINTYRE, individually is a resident of the State of

Washington who is over the age of eighteen (18), and is also a Plaintiff in joint capacity

with Plaintiff SOLANGE MCINTYRE, who is his wife.

24. Plaintiff GREGORY MISSMAN, individually is a resident of the State of


with Plaintiff NINA MISSMAN, who is his wife.

25. Plaintiff NINA MISSMAN, individually is a resident of the State of California


GREGORY MISSMAN, who is her husband.

26. Plaintiff FRANK RAPP, individually is a resident of the Commonwealth of

Massachusetts and is over the age of eighteen (18), and is also a Plaintiff in joint

capacity with Plaintiff SUSAN NICHTER, his wife.

27. Plaintiff SUSAN NICHTER, individually is a resident of the Commonwealth of

Massachusetts and is over the age of eighteen (18), and is also a Plaintiff in joint

capacity with Plaintiff FRANK RAPP, her husband.

28. Plaintiff PAULA A. RENARD, individually is a resident of the State of


29. Plaintiff JEANNI SCHIPPER, individually is a resident of the State of



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30. Plaintiff THERESA M. SCHOENBART, individually is a resident of the State

of California who is over the age of eighteen (18).

31. Plaintiff MICHAEL D. SCOTT, individually is a resident of the State of


32. Plaintiff H. CHRISTOPHER STARKEY, individually is a resident of the

Commonwealth of Massachusetts who is over the age of eighteen (18), and is also a

Plaintiff in joint capacity with Plaintiff LOUISA H. STARKEY, who is his wife.

33. Plaintiff LOUISA H. STARKEY, individually is a resident of the

Commonwealth of Massachusetts who is over the age of eighteen (18), and is also a

Plaintiff in joint capacity with Plaintiff H. CHRISTOPHER STARKEY, who is her

husband.

34. Plaintiff LAWRENCE WALSH, individually is a resident of the State of

Wisconsin who is over the age of eighteen (18), and is also a Plaintiff in joint capacity

with Plaintiff MELANIE WALSH, who is his wife.

35. Plaintiff MELANIE WALSH, individually is a resident of the State of

Wisconsin who is over the age of eighteen (18), and is also a Plaintiff in joint capacity

with Plaintiff LAWRENCE WALSH, who is her husband.

36. Defendant JPMORGAN CHASE BANK, N.A. (hereafter “JPM”) is and was at

all times material hereto a foreign (non-Florida incorporated) corporation which engaged

in a regular and systematic course of conduct in Florida including Palm Beach County,

Florida and the other jurisdictions identified herein, which conduct included but was and

is not limited to false claims of the acquisition of mortgage loans relating to real

property; the institution of fraudulent threats of foreclosure and fraudulent foreclosure


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proceedings based on false and fraudulent misrepresentations; the fraudulent

collection, through one or more agents including but not limited to Defendant CHASE

HOME FINANCE LLC, of monies allegedly owed on secured promissory notes as to

mortgage loans through false and fraudulent misrepresentations; and the perpetration of

frauds upon the Courts of the United States, including this Court, through false and

fraudulent misrepresentations in connection with the filing of foreclosure actions and the

prosecution of non-judicial foreclosure actions which conduct, in the aggregate and in

the manner executed, constituted a pattern of criminal activity.

37. Defendant CHASE HOME FINANCE LLC (hereafter “CHF”) is and was at all

times material hereto a foreign (non-Florida incorporated) corporation which engaged in

a regular and systematic course of conduct in Florida including Palm Beach County,

Florida and the other jurisdictions identified herein, which conduct included but was and

is not limited to false claims of the acquisition of mortgage loans relating to real

property; the institution of fraudulent threats of foreclosure and fraudulent foreclosure

proceedings based on false and fraudulent misrepresentations; the fraudulent collection

of monies allegedly owed on secured promissory notes as to mortgage loans through

false and fraudulent misrepresentations; and the perpetration of frauds upon the Courts

of the United States through false and fraudulent misrepresentations in connection with

the filing of foreclosure actions and the prosecution of non-judicial foreclosure actions,

which conduct, in the aggregate and in the manner executed, constituted a pattern of

criminal activity.

38. The actions and course of conduct of the Defendants were executed, as to

all Plaintiffs, in the same manner and means (fraudulent misrepresentations in


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documents filed in courts, public records, and through the mails); with the same motive

(to institute fraudulent foreclosure proceedings) and the same intended class of victims

(owners of real property) and the same intended consequences (wrongfully foreclosing

on real property), pursuant to a well-planned and orchestrated scheme to defraud which

was executed on a national scale throughout the United States through the institution of

fraudulent foreclosure actions and regular and systematic violations of foreclosure laws

in both judicial and non-judicial foreclosure jurisdictions, resulting in a nationalized fraud

which has resulted in damages to the Plaintiffs.

II. The Judicial and Non-Judicial Foreclosure Processes

39. The foreclosure process is instituted, depending on the jurisdiction, by either

a judicial or non-judicial process.

40. In “judicial” foreclosure states, the foreclosing party initiates the foreclosure

process by the filing of a civil action for foreclosure, which normally consists of a

Summons and Complaint. The Complaint may contain attachments, but all judicial

states require that the foreclosing party plead and prove that it is the holder or person

entitled to enforce the Note which is secured by the Mortgage in order to seek the

remedy of foreclosure.

41. Defendants JPM and CHF were thus required, pursuant to applicable law

and rules of court, to plead, in good faith, and prove, by the requisite evidentiary

standards, legal entitlement to foreclose in order to seek the remedy of foreclosure in

the judicial states of Florida, New Jersey, New York, Massachusetts, and Wisconsin,

which are the states where the Zimmerman (FL), Arthur (FL), Hobson (NJ),


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Immesberger (NJ), Corti (NY), Rapp (MA), Starkey (MA), and Walsh (WI) Plaintiffs

reside.

42. In the “non-judicial” foreclosure states, the operative “mortgage” instrument

is termed a Deed of Trust (“DOT”) which vests title to the real property encumbered by

the DOT in a “trustee” (usually the title company at closing). As title companies do not

normally institute or further the foreclosure process, the original “trustee” is substituted

with a “trustee sale company” after the foreclosure process is initiated.

43. The non-judicial foreclosure is instituted and carried forth by a process

whereby the party seeking to foreclose files a series of documents in the public records

which consist of a Notice of Default (“NOD”), Notice of Substitution of Trustee

(“Substitution”), and Notice of Trustee’s Sale (“NOS”) and, in some instances, an

Assignment of the DOT to the foreclosing party, copies of which are provided to the

property owner through the mails.

44. As in the judicial states, the foreclosing party in a non-judicial foreclosure

proceeding is required to prove that it is the holder or person entitled to enforce the

Note and DOT in order to seek the remedy of foreclosure.

45. Defendants JPM and CHF were thus legally obligated to accurately and

truthfully set forth, in documents filed in the public records, and to prove, for purposes of

seeking the remedy of foreclosure, legal entitlement to foreclose in the non-judicial

states of California, Tennessee, and Washington, which are the states where the

Apostolova (CA), Milyakov (CA), Arterberry (CA), Braxton (CA), Congress (CA),

Farrington (CA), Gordon (TN), Gutierrez (CA), Lieberman (CA), McIntyre (WA),


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Missman (CA), Renard (CA), Schipper (CA), Schoenbart (CA), and Scott (CA) Plaintiffs

reside.

III. Material Facts As To Fraudulent Practices of Defendants

A. The “Successor In Interest to WaMu” Material Misrepresentation

46. Prior to September 25, 2008, non-party Washington Mutual Bank (hereafter

“WaMu”) was a banking institution which, among other things, originated mortgage

loans throughout the United States, and originated mortgage loans of the Plaintiffs

herein.

47. On or about September 25, 2008, WaMu “failed” and was subjected to

Receivership by the Federal Deposit Insurance Corporation (FDIC).

48. On the same day, that being September 25, 2008, the FDIC sold defined

“assets” of WaMu to Defendant JPM which were set forth within a Purchase &

Assumption Agreement (“P&A”) between Defendant JPM and the FDIC.

49. Defendant JPM has admitted, in filings by its counsel in the Federal matter of

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)

that:

“Under the plain terms of that agreement [the P&A], JPMC (Defendant JPM herein] did not become WMB’s [WaMu] successor in interest. Since its closure, the FDIC as receiver has controlled WMB.”

[emphasis in original]

50. Despite this record admission which is binding upon Defendant JPM,

Defendant JPM, both directly and indirectly through its alleged “servicer (that being

Defendant CHF) has instituted foreclosure proceedings throughout the United States in


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both judicial and non-judicial jurisdictions where it claims, in official court filings and

documents filed in the public records and sent to the Plaintiffs herein through the mails,

to be the “successor in interest to Washington Mutual Bank” for purposes of attempting

to justify legal entitlement to institute foreclosure proceedings, doing so based upon

nothing more than either (a) unsworn allegation unsupported by any evidence, or (b) a

one page “Affidavit” of the FDIC which is qualified as to what the FDIC “sold” to

Defendant JPM incident to the WaMu Receivership and which “Affidavit” does not

contain, as part of said “Affidavit”, any recitation or proof that the specific loan sought to

be foreclosed was in fact sold by the FDIC to Defendant JPM or that the interest therein

was otherwise legally acquired by Defendant JPM.

51. In no instance, whether judicial or non-judicial foreclosure effort, has

Defendant JPM or its servicer, Defendant CHF, supported the allegation of “successor in

interest to Washington Mutual” with any Schedule of Assets purchased from the FDIC

showing that the specific loan sought to be foreclosed was in fact part of the alleged

“purchase of assets” by Defendant JPM from the FDIC or other proof that Defendant

JPM or Defendant CHF legally acquired the full and unencumbered interest in either the

Note or the mortgage instrument (Mortgage or DOT).

B. Misrepresentations and Fraudulent Use of “MERS”

52. In both judicial and non-judicial foreclosure proceedings, Defendant JPM has

also falsely alleged, in civil foreclosure actions and in non-judicial public records filings

which have been served on the Plaintiffs herein through the mails, that non-party

Mortgage Electronic Registration Systems, Inc. (hereafter “MERS”) was somehow

vested with some interest in the mortgage, either as the “mortgagee” or that the


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mortgage was executed “in favor of” MERS or to “secure obligations in favor of” MERS

(in judicial foreclosures), or that MERS was the “beneficiary” of the DOT or that the

DOT was executed to “secure obligations in favor of” MERS (in nonjudicial

proceedings), when Defendant JPM had actual knowledge that MERS was not and

could not be either the “mortgagee” or the “beneficiary” as (a) MERS’ own Terms and

Conditions expressly preclude the use of the MERS system to either create or transfer

beneficial interests in mortgage loans and (b) as MERS did not lend money or extend

any credit and was never owed any money.

53. Despite such actual knowledge as to MERS’ limitations and preclusions,

Defendants JPM and CHF intentionally and willfully uttered, in writing throughout

foreclosure proceedings across the United States, the false and fraudulent

misrepresentations as to MERS for the sole and specific purpose of manufacturing

bogus “Assignments” of mortgages and DOTs in order to institute and further fraudulent

foreclosure proceedings in both judicial and non-judicial states, with the intent of said

Defendants being the same across all jurisdictions: to wit, the theft of real property from

the owners thereof.

C. Deliberate Noncompliance With Foreclosure Laws

54. In furtherance of its well-entrenched and established scheme to defraud

homeowners and to perpetrate fraudulent foreclosure proceedings for the purpose of

wrongfully and illegally acquiring real property, Defendants JPM and CHF also willfully

and intentionally ignored and deliberately failed to comply with applicable laws and rules

pertaining to the foreclosure process, such as providing the required Certifications for

New Jersey foreclosures and complying with CA Civil Code sec. 2923.5 for California


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foreclosures (which requires a good-faith attempt to contact the borrower to resolve

matters pertaining to the mortgage loan prior to instituting foreclosure), and in fact said

Defendants have consistently filed false and fraudulent 2923.5 “Compliance”

Declarations in the public records in California foreclosures as said Defendants never,

at any time, made the required pre-foreclosure resolution effort.

55. This pattern of filing false Declarations in California foreclosures; failing to file

the proper Certifications in New Jersey foreclosures; and failure to provide proof of legal

ownership of the full and unencumbered interest in the Note and Mortgage in Florida

and other jurisdictions is consistent with Defendant JPM’s and CHF’s pattern of falsely

misrepresenting the legal scope and effect of the FDIC “Affidavit” in both judicial and

non-judicial foreclosures for purposes of manufacturing legal standing; falsely swearing

to foreclosure Complaints in Florida foreclosures; and causing the execution of false

and fraudulent “Assignments” of mortgages and DOTs to further fraudulent foreclosures

nationwide.

D. Specific Material Facts as to Named Plaintiffs

56. The specific pattern of criminal activity of Defendants JPM and CHF, which

has been perpetrated upon each of the Plaintiffs herein through fraudulent practices and

the use of the mails and, in certain instances, actions involving perjury, is demonstrated

by the specific instances of conduct set forth below, which conduct was executed with

the same intent and in the same manner and means and with the same intended class

of victims and intended results.

57. As to Plaintiff Zimmerman: Defendant JPM instituted an action to foreclose on

a loan which had been originated by non-party WaMu, doing so without and Assignment


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and with no evidence that Defendant JPM legally acquired an ownership or holder

interest in the loan. The first copy of Note filed with the foreclosure Complaint contained

no endorsement; the second version of the Note contained a robo-signer stamp on the

“endorsement” with no signature.

58. As to Plaintiffs Apostolova and Milyakov: the Substitution [of Trustee] and the

Assignment [of Deed of Trust] were executed by one “Colleen Irby”, whose name

appears on a multitude of foreclosure documents and who, on the same day as to

Plaintiffs Apostolova and Milyakov, was purportedly an Assistant Secretary of both

Defendant MERS and Defendant JPM. On the Substitution and NOS, MERS is

fraudulently listed as the original beneficiary. There is no evidence of any authority of

Defendant JPM to execute the Substitution. The MERS assignment of the DOT to

Defendant JPM is bogus and shows intent of fraudulent conveyance to Defendant JPM.

There was no pre-foreclosure contact as required by CA Civ. Code sec. 2923.5.

59. As to the Arterberry Plaintiffs: There is no identification on the NOD of the

person who signed the document; there no agency agreement between the trustee sale

company and LSI Title Company; and no identification of who the alleged “beneficiary”

is. The Substitution, which lists WaMu as the original Beneficiary and which substitution

was by Defendant JPM, is without authority as Defendant JPM is not the “successor in

interest” to WaMu by Defendant JPM’s own admission. There is also no Assignment of

either the Note or the DOT to Defendant JPM. There was no pre-foreclosure contact as

required by CA Civil Code sec. 2923.5.

60. As to Plaintiff Arthur: there is a fraudulent conveyance of the mortgage loan to

a private securitization with Defendant CHF allegedly being the “servicer”.


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61. As to Plaintiff Braxton: Robo-signing by Colleen Irby, this time for a different

company conducting the Trustee’s Sale; the Substitution by MERS is illegal; the

Assignment [of the DOT] which says “JPM as successor in interest to WaMu” is

fraudulent and thus there is a fraudulent transfer which assigns to LaSalle Bank as

Trustee for a WaMu securitization, on 02/09/09. NOS dated 03/30/11 says WaMu Bank

FA is the beneficiary, which a legal impossibility in view of the securitization assignment.

62. As to the Congress Plaintiffs: No Assignment of the DOT. NOS says “WaMu

as the Beneficiary”, which is fraudulent as FDIC took over WaMu in 2008; no indication

that name is being used for FDIC. No pre-foreclosure contact as required by CA Civil

Code sec. 2923.5.

63. As to Plaintiff Corti: No assignment of mortgage. Allegation that “JPM as

purchaser of the loans and other assets of WaMu” without specific proof that this

particular mortgage loan was so purchased by Defendant JPM is fraudulent, constituting

a fraud on the court and institution of fraudulent foreclosure litigation.

64. As to Plaintiff Johnston-Farrington: NOD by Colleen Irby again. Two NOS

“signed” by known robo-signer Beborah Brignac with non-matching signatures. No

Substitution, no Assignment of the DOT. NOS has “WaMu as Beneficiary”. Affidavit

submitted in Bankruptcy by known robo-signer Wanda Chapman. No pre-foreclosure

contact as required by CA Civil Code sec. 2923.5.

65. As to Plaintiff Gordon: Defendant JPM accepted the mod then reneged,

although JPM had no authority to enter into loan mod negotiations ab initio.

Substitutions by known robo-signers has the “JPM as purchaser of the loans and other


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assets of WaMu”, without any proof that this specific mortgage loan was in fact

purchased by or legally transferred to Defendant JPM.

66. As to Plaintiff Gutierrez: Defendant JPM is listed as the “contact” on the NOD

for a WaMu loan. No evidence that Defendant JPM owns the loan. No Assignment. No

pre-foreclosure contact as required by CA Civil Code sec. 2923.5.

67. As to the Hobson Plaintiffs: fraudulent allegation of assumption of loan in

paragraph 4 of the foreclosure Complaint “as purchaser of the loans and other assets of

WaMu”. No Assignment. Fraud upon the Court and fraudulent foreclosure filing.

68. As to the Immesberger Plaintiffs: Defendant CHF is the claimed “servicer” of

a securitized mortgage loan trust which closed in 2005, with no evidence that the loan

was transferred properly or timely into the trust for which Defendant CHF claims to be

the “servicer”.

69. As to Plaintiff Lieberman: Defendant JPM filed NOD without authority which

was “signed” by Colleen Irby; Assignment of DOT is fraudulent as it recites “JPM as

successor in interest to WaMu”, and assigns it on 02/06/09 to Deutsche Bank as

Trustee for a WaMu securitization which closed in 2005, yet the NOS of 05/14/09 says

WaMu is the beneficiary. Signer is not an officer of JPM; is an alleged “Assistant

Secretary” of the Trustee sale company. NOS signed by known robo-signer Deborah

Brignac. No Substitution. No pre-foreclosure contact as required by CA Civ. Code se.

2923.5.

70. As to the McIntyre Plaintiffs: Payments being made to Defendant CHF by

demand therefrom without evidence that any Chase entity owns the loan.


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71. As to the Missman Plaintiffs: Defendant JPM is listed as the “contact” for a

loan which originated with WaMu without any evidence that Defendant JPM owns the

loan or that the loan was legally transferred to Defendant JPM. No Substitution. No pre-

foreclosure contact as required by CA Civil Code sec. 2923.5.

72. As to Plaintiffs Rapp and Nichter: Notice of Intent to Foreclose from

Defendant JPM without evidence of ownership of the loan and where there is evidence

that the loan was (allegedly) transferred to a Deutsche Bank securitization trust.

73. As to Plaintiff Renard: Robo-signer Colleen Irby, now for MERS, on an

“Assignment” of the DOT which fails to name WaMu to Defendant JPM which is listed

as the contact on the NOD without evidence that the loan was acquired by any Chase

entity.

74. As to Plaintiff Schipper: Defendant JPM is listed as the contact on the NOD;

fraudulent assignment states “JPM as successor in interest to WaMu”, assigns in 2009

to Wells Fargo as Trustee for Freddie Mac securitization (REMIC trust) which closed in

2005, which is fraudulent. No Substitution. Of the 4 NOS, two are “signed” by robo-

signer Deborah Brignac, who also “signed” the Assignment. No pre-foreclosure contact

as required by CA Civil Code 2923.5.

75. As to Plaintiff Schoenbart: Defendant JPM is the listed contact on the NOD

(which was “signed” by Colleen Irby) which identifies WaMu loan; no Substitution and no

Assignment; two NOS, one of which signed by robo-signed Deborah Brignac. NOS also

identifies WaMu as “beneficiary”.

76. As to Plaintiff Scott: fraudulent Substitution by Defendant JPM as “successor

in interest” to WaMu. NOD “signed” by known robo-signer Collen Irby as “Assistant


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Secretary” for Trustee’s sale company. No pre-foreclosure contact as required by CA

Civil Code sec. 2923.5.

77. As to the Starkey Plaintiffs: fraudulent assignment to Deutsche Bank

securitization by JPM as “successor in interest” to WaMu and purports to assign, in

2009, the loan to a trust which closed in 2006, which is fraudulent and illegal.

78. As to the Walsh Plaintiffs. Illegal court proceeding instituted by LaSalle as

Trustee for a WaMu securitization which closed in 2007; fraudulent assignment to the

WaMu securitization in August 2008 to Trust which closed in 2007.

III. Claims for Relief

COUNT I: COMMON LAW FRAUD

79. Plaintiffs reaffirm and reallege paragraphs 1 through 78 hereinabove as if set

forth more fully hereinbelow.

80. At all times material hereto, Defendants JPM and CHF had actual knowledge

that their written statements as to alleged ownership of the Plaintiff’s mortgage loans

and the legal entitlement to demand monies from Plaintiffs and institute foreclosure

proceedings were false statements of material fact which were false when made and

known by said Defendants to be false when made.

81. Defendants JPM and CHF made the subject false statements with the

specific intent that Plaintiffs rely thereon and with the separate specific intent, which

separate specific intent was unknown to the Plaintiffs at the time, to defraud the

Plaintiffs.

82. Plaintiffs, not being in the mortgage lending or mortgage loan acquisition

businesses, reasonably relied upon the written statements of Defendants JPM and CHF


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and acted thereon, including but not limited to paying monies to said Defendants when

demanded thereby.

83. As a direct and proximate result of the actions and course of conduct of

Defendants JPM and CHF, Plaintiffs have suffered damages.

84. The fraudulent conduct engaged in by the Defendants constitutes a separate

and independent tort separate and apart from any breach of any contract.

85. The deliberate and concerted actions engaged in by the Defendants as set

forth above and under the circumstances set forth above constitutes the type of fraud

for which attorneys’ fees are awarded, and as such, Plaintiffs demand the assessment

of their attorneys’ fees against the Defendants. Baya v. Central and Southern Florida

Flood Control District, 184 So.2d 501 (Fla. 2d DCA 1966)

WHEREFORE, Plaintiffs demand the entry of Final Judgment against the

Defendants for compensatory damages, interest, costs, attorneys’ fees, and any other

and further relief which is just and proper under the totality of the circumstances.

COUNT II: CONSPIRACY TO DEFRAUD

86. Plaintiffs reaffirm and reallege paragraphs 1 through 78 hereinabove as if set


87. At all times material hereto, Defendants JPM and CHF agreed, between and

among themselves and in combination with each other and various agents identified

hereinbelow, as to each overt act in furtherance of the conspiracy and enterprise, to

engage in unlawful actions for a common purpose, to wit: to perpetrate a fraud upon

Plaintiffs through fraudulent threats of foreclosure and fraudulent foreclosure filings

whereby the Defendants would obtain the use and benefit, under fraudulent pretenses,


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of the Plaintiffs’ real property at the expense of the Plaintiffs and without compensating

the Plaintiffs therefor; to unlawfully convert the Plaintiffs’ real property and permanently

deprive the Plaintiffs thereof; and to cause all deleterious consequences of the

Defendants’ actions to be saddled upon the Plaintiffs, which consequences include but

are not limited to the loss of real property; the incurring of expenses; and the adverse

effects of claimed defaults and foreclosures placed on the Plaintiffs’ credit reports by the

Defendants.

88. Defendants agreed to engage in these unlawful actions with various agents

including but not limited to California Reconveyance Corporation and Quality Loan

Service for purposes of instituting and furthering fraudulent foreclosures in non-judicial

jurisdictions, which Defendants and their agents being involved in the various

transactions and with the Defendants participating in each overt act in furtherance of the

conspiracy to defraud and convert, and did so in order to accomplish the objective of

defrauding Plaintiffs and misappropriating monies and real property from the Plaintiffs.

89. As a direct and proximate result of the overt, concerted, and conspiratorial

actions of the Defendants through and with their agents, Plaintiffs have suffered

significant damages well in excess of the jurisdictional limit of this Court.

90. The conspiracy to defraud and convert engaged in by the Defendants

constitutes a separate and distinct independent tort which is separate and apart from

any breach of any contract.

91. The deliberate and concerted actions engaged in by the Defendants as set

forth above and under the circumstances set forth above constitutes the type of fraud

for which attorneys’ fees are awarded, and as such, Plaintiffs demand the assessment


22

of their attorneys’ fees against the Defendants. Baya v. Central and Southern Florida

Flood Control District, 184 So.2d 501 (Fla. 2d DCA 1966)




COUNT III: VIOLATIONS OF FLORIDA CIVIL REMEDIES FOR CRIMINAL PRACTICES ACT (FLORIDA RICO ACT)

92. Plaintiffs reaffirm paragraphs 1 through 78, 87, and 88 hereinabove as if set


93. This is an action for violations of the Florida Civil Remedies for Criminal

Practices Act, Fla.Stat. sec. 772.101 et seq., also known as the Florida RICO Act.

94. Fla.Stat. sec. 772.104 provides that any person who has been injured by

reason of the provisions of sec. 772.103 shall have a [civil] cause of action for threefold

actual damages and also for reasonable attorneys’ fees and court costs through the trial

and appellate courts.

95. Fla.Stat. sec. 772.103 provides, in pertinent part, that it is unlawful for any

person:

(1) who has with criminal intent received any proceeds derived, directly or indirectly, from a pattern of criminal activity to use or invest, whether directly or indirectly, any part of such proceeds, or the proceeds derived from the investment or use thereof, in the acquisition of any title to, or any right, interest, or equity in, real property or in the establishment or operation of any enterprise;

(2) through a pattern of criminal activity, acquired or maintained, directly or indirectly, any interest in or control of any enterprise or real property;


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(3) employed by, or associated with, any enterprise to conduct or participate, directly or indirectly, in such enterprise through a pattern of criminal activity;

(4) to conspire or endeavor to violate any of the provisions of subsections (1), (2), or (3).

96. Fla.Stat. sec. 772.102(1)(a) defines “criminal activity” as, in pertinent part,

committing, attempting to commit, conspiring to commit, or soliciting to commit any

crime that is chargeable by indictment or information under, inter alia:

(b) Chapter 812, Florida Statutes, relating to theft;

(1)(a)(22.) Chapter 817, Florida Statutes, relating to fraudulent practices, false pretenses, and fraud generally;

(1)(a)(27.) Chapter 837, relating to perjury.

97. As set forth above, the Defendants’ intentionally manufactured a scheme to

defraud homeowners on a nationalized level whereby the Defendants, through the use

of the mails, the public records, and the Courts, intentionally devised false and

fraudulent documents relating to the claimed and alleged ownership and “holder” status

of mortgage loans when the Defendants had actual knowledge that they had no such

status, doing so through perjured documents and material misrepresentations with the

specific intent to commit theft of residential real property.

98. As set forth above, the Plaintiffs relied upon the Defendants’ representations

(as any reasonably and similarly-situated homeowner would), which directly and

proximately caused the Plaintiffs to suffer specific damages.

99. The actions of the Defendants were specifically directed to each of the

named Plaintiffs herein.


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100. In order to accomplish their objective, Defendants developed and were part

of an enterprise, which consisted of the Defendants and their agents including but not

limited to various law Firms and “Trustee Sale” companies, which worked together and

in concert at the direction of the Defendants for the specific purpose of furthering the

pattern of criminal activity set forth herein, including notary fraud and a regular pattern

and practice of filing false and perjured documents in the public records to institute and

further fraudulent foreclosures and steal residential real property from its owners.

101. Fla.Stat. sec. 772.103(3) defines “enterprise” as, inter alia, any individual,

corporation, or other legal entity or group of individuals associated in fact although not a

legal entity.

102. Fla.Stat. sec. 772.103(4) defines “pattern of criminal activity” as engaging in

at least two incidents of criminal activity that have the same or similar intents, results,

accomplices, victims, or methods of commission or that otherwise are interrelated by

distinguishing characteristics and are not isolated incidents and that the last of such

incidents occurred within 5 years after a prior incident of criminal activity. As set forth

hereinbelow, the pattern of criminal activity engaged in by the Defendants did not arise

out of a single contract or transaction, and in fact involved numerous contracts and

transactions which spread across the United States, including those states identified

herein.

103. Fla.Stat. sec. 772.103(5) defines “real property” and includes within this

definition any direct or indirect interest therein, including an interest in a mortgage upon

real property.


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104. As set forth hereinbelow, the Defendants, through their predicate acts and

pattern of criminal activity which the Defendants engaged in throughout the United

States on a regular and continuous basis and with a defined and intentional purpose,

conducted a nationalized fraud, the victims of which were the American homeowner

including the Plaintiffs herein.

105. As set forth hereinabove and further hereinbelow, Defendant JPM, as the

controlling RICO and controlling enterprise Defendant, together with the active aid,

assistance, and agreement of additional RICO and enterprise Defendant CHF and their

respective agents, repeatedly, deliberately, intentionally, conspiratorially and with

criminal intent received proceeds both directly and indirectly from a pattern of criminal

activity through theft, fraudulent practices, false pretenses, fraud, and perjury in the

acquisition of title to and claimed rights, interest, and equity in real property.

106. As further set forth herein, the RICO Defendants who were employed by

and associated with the enterprise conducted and participated in such enterprise

through a pattern of criminal activity including but not limited to a nationalized pattern of

filing false and perjured documents in the public records; instituting false and fraudulent

foreclosure proceedings; and deliberately ignoring and failing to comply with applicable

foreclosure laws.

107. As set forth hereinabove and hereinbelow, the RICO Defendants also

conspired and endeavored to violate the activities prohibited by Fla.Stat. sec.

772.103(1), (2), and (3).

108. The RICO Defendants specifically engaged in their pattern of criminal

activity at the expense of the Plaintiffs and for their own benefit.


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109. The RICO Defendants engaged in their pattern of criminal activity through

and arising out of a series of transactions and acts in at least eight separate states

identified above (including Florida), which transactions and acts included the fraudulent

foreclosure filings, wrongful misrepresentations as to MERS, perjured documents, and

intentional failure to comply with foreclosure laws as set forth above.

110. As such, the RICO Defendants have violated Fla.Stat. sec. 772.103(1), (2),

(3), and (4), with said Defendants’ actions:

(a) having the same intent (that being to obtain, through a pattern of theft, fraud, fraudulent activity, and false pretenses, monies and real property from innocent and unknowing homeowners and rightfully the property thereof);

(b) having the same results (that being the wrongful foreclosure of the Plaintiffs’ real property to further the enterprise of the RICO Defendants);

(c) having the same victims (homeowners with mortgage loans); and

(d) having the same methods of commission (that being theft, fraud, false pretenses, perjury, and mail fraud).

111. The actions of the RICO Defendants are interrelated by the distinguishing

characteristic of the fact that RICO Defendant JPM was a related person as to all of the

RICO Defendants by the fact that RICO Defendant CHF and their respective agents

were substantially under the direction, ownership, or control, either directly or indirectly,

of RICO Defendant JPM.

112. As set forth above, Plaintiffs have been injured and have suffered significant

damages by reason of the RICO Defendants’ numerous violations of Fla.Stat. sec.

772.103.


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113. Plaintiffs are thus entitled to demand and do demand threefold actual

damages against the RICO Defendants in addition to attorneys’ fees and costs.




COUNT IV: TEMPORARY AND PERMANENT INJUNCTIVE RELIEF

114. Plaintiffs reaffirm and reallege paragraphs 1 through 78, 87, 88, 97-100,

104-106, and 109-111 hereinabove as if set forth more fully hereinbelow.

115. This is an action for temporary and permanent injunctive relief to cease and

halt all foreclosure activity by the Defendants nationwide; for temporary/preliminary

injunctive relief during the pendency of this litigation and, upon prevailing on the merits,

for permanent injunctive relief.

116. Plaintiffs have a clear legal right to seek temporary and permanent injunctive

relief as their interest in monies and real property is being jeopardized by the actions of

the Defendants through their concerted and well-entrenched pattern of criminal activity

specifically engaged in to wrongfully and through fraudulent means take possession,

custody, and control of certain monies and real property of the Plaintiffs.

117. Plaintiffs have no adequate remedy at law to redress the harm arising out of

the loss of their unique residential real property caused by the actions and conduct of

the Defendants as set forth and identified hereinabove, and no adequate remedy at law

to compel the turnover of the Plaintiffs’ property wrongfully misappropriated by the

Defendants as identified hereinabove.


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118. Unless temporary and permanent injunctive relief is immediately granted,

Plaintiffs will suffer irreparable harm including the loss of their unique residential real

property.

119. There is no harm to the Defendants with the granting of this relief, as the

Defendants never legally or lawfully acquired any interest in any of the promissory

Notes or mortgage instruments related to the Plaintiffs’ residential real property, and

allegedly “acquired” such interests solely through false, fraudulent, and criminal means.

120. Denial of the requested relief would be tantamount for rewarding the RICO

Defendants for their nationwide pattern of criminal activity.

121. Any alleged harm to the Defendants, which consist of one of the largest

investment banks in the world and its related servicing entity, with the granting of this

relief is greatly and substantially outweighed by the actual and irreparable harm to

Plaintiffs in the event that the relief requested herein is not granted.

122. The granting of the relief requested herein is in the public interest, as the

consuming public of homeowners, including the Plaintiffs, has been, is being, and will

continue to be harmed by the fraudulent and wrongful conduct of the Defendants.

123. Thus and under the totality of the circumstances, no bond should be

required as a prerequisite to the granting of the relief requested herein as there are no

costs or other damages which could be contemplated on the part of the Defendants with

the granting of the relief requested herein for which a bond would otherwise be

necessary.

124. At least one other court in the United States which has been confronted

with wrongful foreclosure practices of an entity conducting such practices on a national


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level has previously issued an order staying all foreclosures instituted or prosecuted by

that entity pending litigation involving that entity.

WHEREFORE, Plaintiffs requests that this Court immediately grant the relief

requested herein and immediately enter an Order for Temporary Injunctive Relief which

commands that all foreclosure activity being engaged in by the Defendants nationwide

be immediately enjoined for the pendency of this litigation through trial and any

appeal(s), and that permanent injunctive forever barring the Defendants from engaging

in any illegal or unlawful foreclosure activity be entered thereafter.

DEMAND FOR JURY TRIAL

Plaintiffs demand trial by jury of all matters so triable as a matter of right pursuant

to Fla.R.Civ.P. 1.430 (a) and (b).

Dated this 23rd day of August, 2011.

Please direct all responses to this Complaint to the California office

address below.

W. J. Barnes, P.A.California office: Counsel for Plaintiffs 1515 North Federal Highway Suite 3002901 West Coast Highway Boca Raton, Florida 33432Suite 350 Tel: (561) 864-1067Newport Beach, California 92663 Fax: (949) 270-7414Tel: (949) 270-7413 e-mail: [email protected]: (949) 270-7414 By: _________________________ Jeff Barnes, Esq. FBN 746479


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IN THE CIRCUIT COURT OF THE 15th JUDICIAL CIRCUIT … · 09/09/2011 · 1 in the circuit court of the 15th judicial circuit in and for palm beach county, florida linda patricia zimmerman,