Alston 3rd Amended Complaint Final

IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

OBAMIKEL ALSTON and )FIKRIYYAH ALSTON, )

)Plaintiffs, )

)V. )

) Civil Action No. 5:10-CV-562-D )

THE BANK OF NEW YORK MELLON; )NOVASTAR MORTGAGE, INC.; SAXON )MORTGAGE SERVICES, INC.; MERSCORP, )INC.; SHAPIRO & INGLE, LLP; HUTCHENS, )SENTER & BRITTON, P.A.; PHILIP A. GLASS, )and JOHN DOES, )

)Defendants, )

__________________________________________)

THIRD AMENDED COMPLAINTWith the Written Consent of the Opposing Parties

AND NOW, come Plaintiffs, under F.R.C.P. §15(A)(2), by and through their attorneys

Lucas and Nowak, LLP, and with the consent of opposing parties and complains of the

Defendants and alleges the following:

PARTIES

1. Plaintiffs are adult residents of North Carolina whose address is 3509 Crofton Court,

Raleigh, North Carolina 27604.

2. Defendant The Bank of New York Mellon is a New York Corporation with its

principal place of business at One Wall Street, New York, New York 10286, doing

business in the State of North Carolina, and purporting to be a holder in due course of

the Note at issue in this case.

3. Defendant NovaStar Mortgage, Inc. is a subsidiary of NovaStar Financial, a Missouri

corporation with its principal place of business at 2114 Central Street, Suite 600,

Kansas City, MO 64108, and was the original lender for the Note and Deed of Trust

at issue in this action.

4. Defendant Saxon Mortgage Services, Inc. is a Texas corporation with a principal

place of business at PO Box 161489, Fort Worth, TX 76161, and purports to act as a

servicing agent for the loan account evidenced by the Note and Deed of Trust at issue

in this action.

5. Defendant MersCorp, Inc. is a Delaware corporation with a principal place of

business at 1818 Library Street, Suite 300, Reston, VA 20190, doing business in the

State of North Carolina as a mortgage industry registration service which operates

through its subsidiary Mortgage Electronic Registrations Systems, Inc. (hereinafter

collectively referred to as “MERS”), and served as “nominee” on the Note at issue in

this action.

6. Defendant Law Firm Shapiro & Ingle, LLP, is a law firm with its principal place of

business at 10130 Perimeter Parkway, Suite 400, Charlotte NC, 28216, from which it

does business within the State of North Carolina, and operated as a purported

substitute trustee in this action.

7. Defendant Law Firm Hutchens, Senter & Britton, P.A., d/b/a Substitute Trustee

Services, Inc., is a law firm with its principal place of business at 4317 Ramsey

Street, Fayetteville, NC 28311, from which it does business within the State of North

Carolina, and operated as a purported substitute trustee in this action.

8. Defendant Philip A. Glass is an Attorney with the Law Firm of Nodell, Glass, &

Haskell LLP, with a principal place of business at 5540 Centerview Drive, Suite 416,

Raleigh, North Carolina 27606, from which he performs legal services within the

State of North Carolina, and operates as a purported substitute trustee in this action.

9. Any allegations about acts of any corporate or other business Defendants means that

the corporation or other business did the alleged acts through its officers, directors,

employees, agents and/or representatives while they were acting within the actual or

ostensible scope of their authority.

10. At all relevant times, each Defendant committed acts, caused or directed others to

commit the acts, or permitted others to commit the acts alleged in this Complaint;

additionally, some of the Defendants acted as the agent for other Defendants, and all

of the Defendants acted within the scope of their agency as if acting as the agent of

another.

11. Knowing or realizing that other Defendants were engaging in or planning to engage

in unlawful conduct, each Defendant nevertheless facilitated the commission of those

unlawful acts.

12. Each Defendant intended to and did encourage, facilitate or assist in the commission

of the unlawful acts, and thereby aided and abetted the other Defendants in the

unlawful conduct.

13. All Defendants engaged in continuous and multiple unfair and deceptive trade

practices, fraud and misrepresentations that affected interstate commerce and

proximately caused the herein injuries to the Plaintiff.

II. JURISDICTION AND VENUE

14. The Court has original and subject matter jurisdiction under 28 U.S.C. 1332, 18

U.S.C. § 1961–1968, and over the statutory and common law violations of North

Carolina and common law.

15. Plaintiffs have consented to new Complaint and Venue is proper in this Judicial

District as the Plaintiffs’ property is located in Wake County North Carolina. All

Defendants have conducted business in this State by filing fabricated, illegal and

unenforceable transfers of Deeds of Trust, Promissory Notes, Assignments of

Promissory Notes, Appointments of Substitute Trustees, Affidavits as to loan

ownership of Plaintiffs’ Note and Deed of Trust and Status of Accounts, Mortgages

and Assignments of Mortgages and/or other court documents.

III. INTRODUCTION

16. On July 24, 2003, Plaintiff Alston executed a 30-year mortgage note (hereinafter

referred to as the “Note”) of $152,000 at 8.990% annual interest for monthly

installments of $1,221.93 on his home located at 3509 Crofton Court, Raleigh, with

Defendant NovaStar Mortgage, Inc. identified as “Lender,” signed by Plaintiff Alston

and signed “PAY TO THE ORDER OF” (no name or signature provided),

“WITHOUT RECOURSE” NovaStar Mortgage, Inc. (allegedly signed by David A.

Pazgan, Snr. Vice President, Joel D. Brenner, Vice President); a copy of the Note is

attached hereto and incorporated herein and marked Exhibit "A-1".

17. At some point in time subsequent to the aforementioned execution of the Note, an

almost indentical note was produced (hereinafter referred to as the “Second Note”),

differing from the original Note by purporting to be endorsed to “JPMorgan Chase

Bank, as Trustee” (stamped), and certifying itself as a “True and Correct Copy of the

Original” (stamped and signed by an unknown signature). This Note was not signed

by Plaintiffs. A copy of the Second Note is attached hereto and incorporated herein

and marked Exhibit "A-2".

18. As security for the aforementioned Note, on July 24, 2003, Plaintiffs executed a Deed

of Trust (hereinafter referred to as the “Deed of Trust”) identifying NovaStar

Mortgage, Inc. as lender, MERS as “nominee for Lender and Lender’s successor’s

and assigns .... [and as a] beneficiary under [the instrument],” and the Law Offices of

Benita Walker Gibbs as Trustee. A copy of the Deed of Trust is attached hereto and

incorporated herein and marked Exhibit "B".

19. Upon information and belief, MERS was established in or around 1993 by members

of the mortgage banking industry so as to create a centralized document custodial

system through which mortgages can be easily transferred between members without

having to record or pay county filing fees for such assignments.

20. Plaintiffs never executed a note naming MERS as a party, nor were Plaintiffs ever

notified or informed of a transfer of a note to MERS.

21. No evidence exists to support the claim that MERS is or ever was the holder in due

course of the Note at issue in this action.

22. MERS, listed on the Deed of Trust as the “nominee” or agent, and as the one-time

purported holder of the Note, by and through its membership rules, was not

empowered to act as an agent or nominee for its members, and therefore, without

specific written approval from a principal, lacked the mandate to effectuate mortgage-

related assignments, transfers or appointments of any kind.

23. There is no evidence to suggest that during the relevant time periods contemplated in

this Action, MERS was empowered by its principals to effectuate any mortgage-

related assignment, transfer or appointment.

24. On or about February 10, 2004, Defendant Shapiro & Ingle, LLP (“Shapiro &

Ingle”), drafted an appointment of substitute trustee on behalf of MERS, the

purported “Owner and Holder of the Note secured by said Deed of Trust,” removing

Benita Walker Gibbs as Trustee and naming Elizabeth B. Ells or David W. Neill as

Substitute Trustee under said Deed of Trust, signed February 10, 2004, NovaStar

Mortgage, Inc., as Servicer for Mortgage Electronic Registration Systems, Inc., Scott

Forst, V.P., before Nicole J. Taylor, Notary Public - Missouri; a copy of the

appointment of substitute trustee is attached hereto and incorporated herein and

marked Exhibit "C".

25. Upon information and belief, Elizabeth B. Ells and/or David W. Neill, were either

employees or licensed attorneys for Shapiro & Ingle at the time of said appointment.

26. On or about May 14, 2009 Defendant Law Firm of Hutchens, Senter & Britton, P.A.

(“Hutchens, Senter & Britton”) drafted an appointment of substitute trustee on behalf

of Defendant Bank of New York Mellon, “as Successor Trustee under NovaStar

Mortgage Funding Trust, Series 2003-3” and purported “holder of the Note,”

removing all prior trustees in favor of Substitute Trustee Services, Inc., signed May

14, 2009 by Bank of New York Mellon by its “Attorney-In-Fact, Saxon Mortgage

Services, Inc.,” Craig Hanlon, Asst. Vice President, before Christina Anne Sauerer,

Notary Public - Minnesota; a copy of the appointment of substitute trustee is attached

hereto and incorporated herein and marked Exhibit “D”.

27. Substitute Trustee Services, Inc. operates under the direction and control of

Defendant Hutchens, Senter & Britton, and therefore for purposes of this case, both

are treated as the same entity.

28. Plaintiffs were never informed or notified of any transfer of the Note to Defendant

Bank of New York Mellon.

29. No evidence exists to support the claim that the Bank of New York Mellon is the

holder in due course of the Note at issue in this action.

30. On June 1, 2009, Substitute Trustee Services, Inc. executed and filed a Notice of

Hearing Prior to Foreclosure of Deed of Trust before the Clerk in the General Court

of Justice on behalf of Bank of New York Mellon, purported owner and holder of the

mortgage Note; a copy of the Notice is attached hereto and incorporated herein and

marked Exhibit “E”.

31. On July 6, 2009, Substitute Trustee Services, Inc. executed a Notice of Foreclosure

Sale giving notice of the sale of Plaintiff’s property set to take place on July 27, 2009;

a copy of the Notice is attached hereto and incorporated herein and marked Exhibit

“F”.

32. On July 13, 2009, Substitute Trustee Services, Inc. filed a Notice of Dismissal before

the Clerk in the General Court of Justice voluntarily dismissing the aforementioned

foreclosure action; a copy of the Notice is attached hereto and incorporated herein

and marked Exhibit “G”.

33. On December 4, 2009, John Cotrell, purported Assistant Vice President of Saxon

Mortgage Services, Inc., purported servicer of the loan account evidenced by a note

and deed of trust, executed and signed before Angelo Dupon Mayfield, Notary Public

– Texas, an affidavit naming Bank of New York Mellon as holder of the Note,

alleging Plaintiffs’ default with respect to the indebtedness evidenced by said note,

declaring acceleration and the balance of indebtedness immediately due, demanding

foreclosure of the Deed of Trust securing the indebtedness, and naming Substitute

Trustee Services, Inc. as substitute trustee; a copy of the Affidavit is attached hereto

and incorporated herein and marked Exhibit “H”.

34. On December 11, 2009, Substitute Trustee Services, Inc. filed a Notice of Hearing

Prior to Foreclosure of Deed of Trust before the Clerk in the General Court of Justice

on behalf of Bank of New York Mellon, purported owner and holder of the mortgage

Note; a copy of the Notice is attached hereto and incorporated herein and marked

Exhibit “I”.

35. On January 13, 2010, Substitute Trustee Services, Inc. executed a Notice of

Foreclosure Sale giving notice of the sale of Plaintiffs’ property set to take place on

February 8, 2010; a copy of the Notice is attached hereto and incorporated herein and

marked Exhibit “J”.

36. On Jauary 13, 2010, John Cotrell, purported Assistant Vice President of Saxon

Mortgage Services, Inc., purported servicer of the loan account evidenced by a note

and deed of trust, signed before Angelo Dupon Mayfield, Notary Public – Texas – an

affidavit naming Bank of New York Mellon as holder of the Note, alleging Plaintiffs’

default with respect to the indebtedness evidenced by said note, declaring acceleration

and the balance of indebtedness immediately due, demanding foreclosure of the Deed

of Trust securing the indebtedness, and naming Substitute Trustee Services, Inc. as

substitute trustee; a copy of the Affidavit is attached hereto and incorporated herein

and marked Exhibit “K”.

37. Between February 2010 and April 2010 a series of Motions and Orders to Continue,

initiated by Substitute Trustee Services, Inc. were filed, ultimately delaying the

foreclosure hearing to June 21, 2010; copies of the Motions and Orders are attached

hereto and incorporated herein and marked Exhibit “L”.

38. On May 24, 2010, Substitute Trustee Services, Inc. filed a Notice of Dismissal before

the Clerk in the General Court of Justice voluntarily dismissing the aforementioned

foreclosure action; a copy of the Notice is attached hereto and incorporated herein

and marked Exhibit “M”.

39. On October 12, 2010 Defendant Attorney Philip A. Glass, drafted an appointment of

substitute trustee on behalf of Defendant Saxon Mortgage Services, Inc., as servicing

agent for Bank of New York Mellon, “as Successor Trustee under NovaStar

Mortgage Funding Trust, Series 2003-3” and purported “holder of the Note,”

removing all prior trustees in favor of Philip A. Glass, Lenny Cicero, or Matthew

Hoptry, signed October 12, 2010 by Saxon Mortgage Services, Inc., Regina

Alexander, Assistant Vice President, before Angelo Dupon Mayfield, Notary Public -

Texas; a copy of the appointment of substitute trustee is attached hereto and

incorporated herein and marked Exhibit “N”.

40. On October 26, 2010, Defendant Attorney Philip A. Glass filed a Notice of

Foreclosure Hearing for November 29, 2010 on behalf of the Bank of New York

Mellon, purported owner and holder of the mortgage Note, signed October 21, 2010,

Philip A. Glass, Substitute Trustee; a copy of the Notice is attached hereto and

incorporated herein and marked Exhibit “O”.

41. On October 26, 2010, Attorney Philip A. Glass filed a Notice of Foreclosure Sale

giving notice of the sale of Plaintiff’s property set to take place on December 20,

2010, signed October 21, 2010, Philip A. Glass, Substitute Trustee; a copy of the

Notice is attached hereto and incorporated herein and marked Exhibit “P”.

42. On December 1, 2010, Attorney Philip A. Glass executed and signed a Re-Notice of

Foreclosure Sale giving notice of the sale of Plaintiff’s property for January 31, 2011,

which was subsequently edited to reflect a new sale date of February 14, 2011, posted

on January 10, 2011; a copy of the Notice is attached hereto and incorporated herein

and marked Exhibit “Q”.

43. Plaintiffs’ mortgage and the unlawful attempted foreclosures that followed were, and

are, based upon a Deed of Trust and a Note in the mortgage that are no longer held by

any identifiable entity or party.

44. Plaintiffs’ mortgage was flawed from the date of origination of the loan because

MERS was named as the beneficiary and nominee of the lender on the Deed of Trust,

which was done for purposes of deception, fraud, confusing – and therefore harming

– the Plaintiff, and theft of revenue from the local county government through the

illegal avoidance of mortgage recording fees.

45. MERS is unregistered and unlicensed to conduct mortgage lending or any other type

of business in the State of North Carolina and has been and continues to knowingly,

intentionally, illegally and fraudulently record mortgages and conduct business in

North Carolina on a large scale and systematic fashion.

46. Neither MERS nor Bank of New York Mellon are the original lenders for the

Plaintiffs’ subject Deed of Trust or Note herein.

47. Neither MERS nor Bank of New York Mellon are legally documented assignees of

either the Plaintiffs’ Deed of Trust or Note and do not hold the original Deed of Trust

nor have they ever held the Plaintiffs’ Note.

48. No Note or other evidence exists which could ever make the Plaintiffs indebted to

MERS or Bank of New York Mellon in any way.

49. Neither MERS nor Bank of New York Mellon ever had nor will they ever have the

authority to assign the Mortgage to any entity.

50. Neither MERS nor Bank of New York Mellon ever had any right to collect on the

Note or enforce the Deed of Trust or Mortgage, nor have they ever had a right to

hold, enforce or collect upon Plaintiff's Note.

51. At the time Plaintiff signed the Note and Deed of Trust, he was unknowingly

converting his property into an asset of a MBS and was deliberately induced into

signing a Negotiable Instrument which was never intended as such, but was intended

by NovaStar Mortgage, Inc. as collateral for a MBS.

52. The alleged Note in question started its life as a negotiable instrument, similar to a

check. The negotiation and enforceability of the Note is governed by Article Three

(3) of the Uniform Commercial Code.

53. The Defendants are not in possession of the original negotiable instrument with any

legally binding original endorsement.

54. There is no assignment of the Note to any of the foreclosing Parties/Defendants. The

endorsement stamped on the copy of the Note (Exhibit A-1) bears no signature and is

blank and invalid; the subsequent alteration of the original Note (Exhibit A-2),

confusingly endorsed to JPMorgan Chase and certified by an unknown signature as a

“true and correct copy of the original,” serves only to further cloud the already broken

chain of title, evidencing fraud, misrepresentation, and other offenses.

55. Defendants Shapiro & Ingle, Hutchens, Senter & Britton, and Attorney Philip A.

Glass (collectively referred to herein as “Defendant Law Firms”) have conspired to

file false and fraudulent Foreclosure Actions against Plaintiff; it is asserted that such

actions are part of Defendant Law Firms' regular practices and procedures of systemic

fraud across the State of North Carolina in conspiracy with its clients, who Defendant

Law Firms knew, or should reasonably have known, were not entitled under the law

to foreclose on Plaintiffs’ property.

56. The note that had been executed with the deed of trust became part of a pool of

mortgages losing its individual identity as a note between a lender and a borrower; it

merged with other unknown notes as a total obligation due to the investor or

investors; it is no longer a negotiable instrument, rather, collateral for a federally

regulated Security under the confines of the SEC.

57. In actuality, MERS was not the “nominee” for the lenders; the true lenders were

investors who had provided the funds for the loans through mortgage backed security

pools which were held as trusts.

58. This fact was known to MERS and the Servicers and the subsequent assignees of any

and all rights purported to have been assigned by MERS at the time the note and deed

of trust was signed by Plaintiff and at the time of each and every later purported

assignment by MERS, or others, of any interest in the note and deed of trust.

59. The proper parties to this action would be the investors of the mortgage-backed

securities to which Plaintiffs’ loan was securitized; but these parties have no recorded

interest in the mortgage or deed of trust, which were never delivered to the Trustee

for the mortgage backed security pool; therefore the note itself is, at best, unsecured

rights to payment.

60. All Defendants knew that Plaintiffs’ loan was securitized and intended to be

securitized prior to the preparation of the note and mortgage reflecting the loan.

61. The Servicers profited by foreclosing because of the standard Prospectus and Pooling

and Service Agreements, allowing Servicers to keep proceeds of the foreclosures

when the MBS has been closed or the investors paid off.

62. All of the purported Assignments, transfers and filing of foreclosure notices were

done by the Defendants without the required corporate resolution giving authorityfor

that person to

COUNT I. FRAUD AND CONSPIRACY TO COMMIT FRAUD AND MISREPRESENTATION and ABUSE OF PROCESS

ALL DEFENDANTS

63. Plaintiffs re-allege and affirm each preceding paragraph of this Complaint and

incorporate such as if alleged anew.

64. Defendant Shapiro & Ingle conspired to create and did create and file with the Wake

County Court a false, phony and fictitious Appointment of Substitute Trustee on

behalf of MERS, which said Defendant knowingly and falsey purported to be holder

and owner of the Note at issue, naming employees, attorneys, and/or agents of said

Defendant’s law firm as substitute trustees.

65. Defendants Hutchens, Senter & Britton and Attorney Philip A. Glass, respectively,

conspired to create and did create and file with the Wake County Court false, phony

and fictitious Appointments of Substitute Trustee on behalf of Bank of New York

Mellon, which said Defendants knowingly and falsey purported to be holder and

owner of the Note at issue, naming employees, attorneys, and/or agents of said

Defendants’ law firms as substitute trustees.

66. Purporting to act on behalf of the Bank of New York Mellon, as successor trustees

under NovaStar Mortgage Funding Trust, Series 2003-3, and without a lawful

assignment of the Note or Deed of Trust, Defendant Hutchens, Senter & Britton filed

multiple foreclosure actions, voluntary dismissals and motions to continue against

Plaintiffs between June 2009 and May 2010 in Wake County North Carolina.

67. Purporting to act on behalf of the Bank of New York Mellon, as successor trustees

under NovaStar Mortgage Funding Trust, Series 2003-3, and without a lawful

assignment of the Note or Deed of Trust, Defendant Philip A. Glass filed a

foreclosure action against Plaintiffs beginning in or about October 2010, in Wake

County North Carolina.

68. At the time of the foregoing false Appointments, foreclosures, and other actions, none

of the Defendant Law Firms possessed a lawful and valid assignment of Deed and

Trust from NovaStar Mortgage, Inc., the orignal lender and holder of the Note and

Deed of Trust, and therefore knowingly lacked standing and the capacity to foreclose.

69. Defendant Saxon Mortgage Services, Inc., by and through its purported Assistant

Vice President John Cottrell, twice executed, signed and notorized affidavits falsely

naming The Bank of New York Mellon as holder of the Note and indebtedness,

alleging Plaintiffs’ default on the loan, and declaring acceleration, balance due and

foreclosure, despite having no first-hand knowledge of the loan, no valid assignment

of any loan document, and therefore no authority to file affidavits as to the validity of

the loan documents or of the existence of the loan.

COUNT II. DECEPTIVE AND UNFAIR TRADE PRACTICES

70. Plaintiff re-alleges and affirms each and every preceding paragraph of this Complaint

and incorporate such as if alleged anew.

71. In 2010, Defendants Bank of New York-Mellon, Novastar Mortgage and Saxon

Mortgage Service intentionally instituted other foreclosures against Plaintiffs based

upon fraudulent documents in the Wake County Court.

72. The scheme employed by Defendants Hutchens, Senter & Britton whereby they filed

multiple foreclosure actions, intentionally had the capacity and tendency to deceive

Plaintiffs, and did deceive Plaintiffs, and others similarly situated.

73. The acts of the Defendants violated standards of fair trade practices.

74. As a result of the conduct of the Defendants The Bank of New York Mellon,

NovaStar Mortgage, Inc., Saxon Mortgage Services, Inc. MersCorp, Inc. Shapiro &

Ingle, LLP Hutchens, Senter & Britton, P.A. Philip A. Glass (or, alternatively,

Nodell, Glass & Haskell, LLP) Plaintiff was proximately injured in his business and

his person.

COUNT III. NEGLIGENT SUPERVISIONThe Bank of New York Mellon, NovaStar Mortgage, Inc., Saxon Mortgage Services, Inc.

MersCorp, Inc. Shapiro & Ingle, LLPHutchens, Senter & Britton, P.A. Philip A. Glass

75. Plaintiff re-alleges and affirms each and every preceding paragraph of this Complaint


76. Defendants had a duty of care to supervise the actions of their employees and agents

77. Defendants employees' and/or agents' actions, as alleged previously, were unlawful

and violated Plaintiff's property rights.

78. Defendants knew or should have known that their employees and/or agents were

acting unlawfully.

79. As a result of the Defendants' negligent supervision, Plaintiff was proximately injured

by the unlawful acts of their employees and/or agents.

80. An agency relationship exists between the individual defendants and the corporate

defendants.

81. The actions of the individual defendants were done on behalf of and at the direction

of the corporate defendants and within the scope of their agency relationship.

82. As a result of the actions of the individual defendants, the Plaintiff was injured.

COUNT IV. Common Law Fraud and Injurious Falsehood

83. Plaintiff incorporates by this reference each and every paragraph of this Complaint as

if set forth fully herein.

84. The lack of notice and lack of required evidence of the alleged mortgage assignments

enabled the Defendants to perpetrate the fraudulent foreclosures. The Defendants

conspired together and “knew” the material representations were false. The material

representations to the Court and to the Plaintiff were made so that the Court and the

Plaintiff would believe that the Defendants had legitimate claims in the property. The

Plaintiff and County Clerk relied on such and the Plaintiff was injured as a result with

the entering of a judgment and the facing of foreclosure litigation.

COUNT V.

Fraud by MisrepresentationUNFAIR AND DECEPTIVE TRADE PRACTICES



86. The deceptive acts of the original Lender, MERS, Bank of New York, Saxon

Mortgage and Novastar Mortgage and the Servicers resulted in a multitude of

misrepresentations, including but not limited to the true identity of the Lender, and

the fraudulent misrepresentation as to the Mortgagee.

87. The aforementioned Defendants induced the Plaintiff to enter into the transaction

when there existed in the inducement and execution material representations which

were false and were known to be false or were made recklessly, which inducement

was reasonably acted upon by Plaintiff and acted upon in reliance thereon and

Plaintiff has suffered injury proximately due to such.

88. The deceptive acts of the Lender, MERS, and the other Defendants constitute

fraudulent misrepresentation and the parties in question are jointly and severally

liable for their acts of fraud by their misrepresentation and all damages stemming

from such, including punitive damages and attorney’s fees.

COUNT VI. CONSPIRACY TO COMMIT FRAUD BY OMISSION AND INDUCEMENT


if set forth fully herein

90. The Lender conspired to fraudulently conceal the “True Lender” at closing, and the

Note was unlawfully securitized and converted into an investment vehicle. MERS

had a duty to disclose material facts, failed to disclose those facts; and that failure

induced the Plaintiff to act, and he has suffered actual damages due to the fraudulent

omissions.

91. The Defendants had a duty to disclose the true nature of their relationship and the fact

that the Lender was merely a “Pretender Lender” and thus, the agent for the

Concealed and Unknown Lender.

92. The Defendants and MERS are jointly and severally liable for their acts of Fraud by

Omission and all damages stemming from such.

COUNT VII. Conspiracy to Commit Fraud by the Creation, Operation and Use of MERS System

93. Plaintiff incorporates by this reference and re-alleges the allegations contained in all

the paragraphs above as if set forth fully herein.

94. Upon information and belief, Defendants and each of them, did knowingly and

willfully conspire and agree among themselves to engage in a conspiracy to promote,

encourage, facilitate and actively engage in fraudulent and predatory lending

practices perpetrated on Plaintiff as alleged herein and the actions of the Defendant

conspirators were taken as part of the business policies and practices of each

Defendant conspirator in participating in the MERS system.

95. Upon information and belief, the Defendant conspirators Saxon, Novastar, and the

foreclosure Defendants are members of and participants in the MERS system, and,

through their employees and agents, served as members of MERSCORP, Inc. and/or

MERS, Inc., and participated in the design and coordination of the MERS system

described in this complaint.

96. Defendants’ participation as shareholders, directors, operators, or members of

MERSCORP, Inc. and/or MERS, Inc. are as follows:

97. Whenever this Complaint refers to any corporation's act, deed, or transaction, it

means that such corporation engaged in the act, deed, or transaction by or through its

members, officers, directors, agents, employees, or other representatives while they

actively were engaged in the management, direction, control, organization or

transaction of its business and affairs.

98. MERS, Inc. and/or MERSCORP, Inc. arranged for bilateral and multilateral

meetings, bilateral and multilateral teleconferences, and bilateral internet

communications with potential Shareholders, actual Shareholders, candidates for

Membership, and Members.

99. Upon information and belief, the Defendants conspired among themselves and with

other unknown parties to: a) Develop a system of earning profits from the origination

and securitization of residential loans without regard for the rights of Plaintiffs; and

b) In furtherance of the system referred to immediately above, the Defendant

conspirators intentionally utilized, created, managed, operated and controlled the

Defendants MERSCORP, Inc. and MERS, Inc. for the specific purpose of MERS,

Inc. being designated as a sham “beneficiary” in the original deeds of trust securing

those loans, including the loans made to Plaintiff and other similarly situated

individuals by the “lenders”; and c) Defendant conspirators intentionally organized,

created, managed, operated and controlled the MERS system with the unlawful intent

and for the unlawful purpose of making it difficult or impossible for Plaintiffs and

other victims of such industry-wide predatory policies and practices to identify and

hold responsible the persons and entities responsible for the unlawful actions of

Defendants and their co-conspirators.

100.MERSCORP, Inc. informed its co-conspirators that using the MERS system would

remove transaction records from the public record.

101.MERSCORP, Inc. and MERS, Inc. have publicly stated the following:

102.“MERS eliminates the need to prepare and record assignments when trading

residential and commercial mortgage loans.” 1) “With the recording of the security

instrument(s), MERS becomes the mortgagee in the county land records and no

assignments are required during a subsequent sale and transfer of the loan between

MERS members.” and 2) “There is no dependency on the corporate name you use on

closing documents and the corresponding corporate name on the MERS System

because the MERS System is not the legal system of record of ownership of mortgage

loans.”

103.MERSCORP, Inc.’s marketing materials also promises Members with assistance with

foreclosures. MERSCORP, Inc. and/or MERS, Inc. have publicly stated “MERS has

assembled a Foreclosure Manual to provide a state-by-state guideline for our

Members to follow when foreclosing a mortgage loan in the name of MERS.”

104.MERSCORP, Inc. and/or MERS, Inc. offered Members increased profits.

105.MERSCORP, Inc. has publicly stated: 1) “The MERS web site enables you to target

directly your MERS® Ready products and services to MERS members.” 2)

“Commercial originators and issuers save hundreds to thousands of dollars (in the

case of cross-collateralized loans) in preparing and recording assignments. Where the

originator has not recorded a MERS as Original Mortgagee (MOM) security

instrument, the issuer saves the costs of assigning to the Trust by having the

originator assign to MERS.” and 3) “It will reduce risk and generate more profits for

lenders because the Notes registered on it will be in electronic format. It shortens the

timeframe between the closing and the securitization of the loan, enabling the Note to

move instantly, creating faster funding.”

106.When the Plaintiffs' Note was split from the deed of trust, the note became unsecured.

107.Utilizing the MERS system, Servicers were able to hide profits and fees that were not

disclosed to the Plaintiffs or to the investor in the note.

108.The Servicer-conspirators agreed to unlawfully foreclose on loans despite the

separation of the loan from the unsecured deed of trust.

109.All of the conspirators agreed to the participation of the other conspirators in their

individual roles in the conspiracy.

110.The Servicers agreed to foreclose despite full knowledge of the loan file of the

Plaintiffs.

111.Defendants have acted as players in the conspiracy, and as Securitizers or the agents

of securitizers in the conspiracy.

112.The Defendants-Securitizers knowingly, and by agreement, serviced the unlawfully

obtained mortgage;

113.Defendants named herein as co-conspirators profited from their respective roles in

originating loans, selling them, and pooling their MERS registered home loans

together in large bundles which were sold and turned into financial derivative

instruments;

114.The mortgage securitization process became known in financial industry parlance as

“slicing and dicing.” The slicing and dicing resulted in a pool of mortgages, including

Plaintiffs’, which had lost its individual characteristic but had a high value to those

who created them;

115.The Defendant-Servicers have attempted to unlawfully foreclose on the Plaintiffs’

property. The Servicers continue to misrepresent the legal right to foreclose when

they have no such right.

116.All Defendants named as MERS members agreed to promote and to utilize MERS in

an unlawful manner in order to deprive Plaintiffs, and those similarly situated, of

property.

117. As a result of Defendant conspirators’ conspiracy described herein, Plaintiffs

suffered injuries which include mental anguish, emotional distress, embarrassment,

humiliation, loss of reputation and a decreased credit rating which has, or will, impair

Plaintiffs’ ability to obtain credit at a more favorable rate than before the decrease in

credit rating, the anticipated loss of their Residence and other financial losses

according to proof, and Plaintiffs have incurred attorneys’ fees and costs in this

matter.

118.Defendant conspirators’ actions were wanton, willful and reckless, and justify an

award of punitive damages against each of them.

COUNT VIII. Fraudulent Conveyance

119.Plaintiffs incorporate by this reference each and every paragraph of this Complaint as


120.The Defendants knowingly engaged in fraudulent conveyances.

121.The Plaintiffs were aggrieved by the transfers and assignments of their mortgage of

their real property and this action serves as a Petition in Equity against the

Defendants.

122.All parties taking part in or who conspired with those who participated in the acts or

practices in question are jointly and severally liable to the Plaintiffs.

COUNT IX - VIOLATIONS OF THE FAIR DEBT COLLECTIONS PRACTICES ACT ("FDCPA") 15 USC § 1692

123.Plaintiffs re-allege and affirm each and every preceding paragraph of this Complaint


124.Defendants Saxon, Novastar and the law firms are debt collectors as defined by 15

USC 1692(a)(6).

125.Defendants filed false, deceptive, misleading, and perjured affidavits in connection

with the collections of debts in violation of 15 USC 1692(e).

126.Plaintiffs suffered actual damages from these violations.

127.Pursuant to 15 USC 1692(k), Plaintiffs are entitled to actual damages, statutory

damages as set forth herein, and reasonable attorney fees and costs.

128.Because the conduct of the Defendants was frequent and persistent, because the

nature of the violations of the FDCPA were so egregious, because the FDCPA

violations were a part of a deliberate scheme, Plaintiffs are entitled to the maximum

possible relief permitted under 15 USC 1692k(a).

129.Defendants failed to inform Plaintiffs of any Assignments and transfers of the

mortgage in violation RESPA.

COUNT X: Reformation

130.Plaintiffs incorporate by this reference each paragraph of this Complaint as if set forth

fully herein.

131.Based on this Petition in Equity, the Plaintiffs are entitled to have clear title restored

and the Court should Order the Clerk of the County to release the mortgage and strike

all mortgage assignments filed in the name of the Defendants as to the Plaintiffs.

COUNT XI: Slander of Title



133.The Defendants have knowingly and maliciously communicated, in writing, a false

statement which has the effect of disparaging the plaintiff’s title to property. The

Plaintiffs have incurred special damage as a result.

134.MERS has no legally enforceable claim, interest or standing to sue as to the Note or

Mortgage in question and the claim is a cloud on the Defendants’ title and should be

quieted as against MERS under North Carolina law.

135.Plaintiffs are the rightful owner of the subject property.

136.Plaintiffs are the legal title holders of this property.

137.MERS has knowingly and unlawfully caused a cloud to be recorded against the title

of the Plaintiffs’ property and cause to be sent notices of default, foreclosures and

served and filed mortgage documents that claim an interest in the property of the

Plaintiffs.

138.Any purported transfer of any interest in the Plaintiffs’ real estate was wrongful and

invalid because the mortgages, foreclosures or purported foreclosures were invalid

and were not conducted in accordance with the laws of North Carolina. MERS knew

or should have known that such transfers were wrongful and invalid. Any publication

of an ownership interest in any of the Plaintiffs’ properties is, therefore false.

139.The recording of the mortgages published the information to third parties.

140.As a result of said wrongful publication of an ownership interest in the Plaintiffs’

property, Plaintiffs have incurred damages and will continue to incur attorneys’ fees

and costs related to this litigation, in an amount to be proven at trial.

141.Defendants have filed mortgages, threatened foreclosure and have foreclosed against

Plaintiffs for which Defendants were not owed any payments, had no lawful right to

foreclose and have unlawfully deprived and attempted to deprive Plaintiffs of their

home and failed to notify the Plaintiffs of the discharge of their obligations on the

notes associated with their mortgage.

142.Plaintiffs seeks a declaratory judgment against Defendants stating that Defendants

have violated Plaintiffs’ rights and that the Defendants had and have no right to hold

mortgages in the name of MERS and/or foreclose on the Plaintiffs’ property and that

the Defendants are entitled to no further payments from the Plaintiffs or recognition

in Plaintiffs’ Title to his property.

143.Plaintiffs have been intentionally misled about the terms and conditions of the

agreements entered into with the Defendants, MERS and all others who have

attempted to foreclose on the Plaintiffs.

144.The Plaintiffs are entitled to a reformation of these notes as unsecured notes or as

partially or wholly discharged notes and a right to reformation of the contracts with

the persons or entities who are owed obligations because of funding of the loans of

the Plaintiffs.

COUNT XII: Quiet Title



146.The Plaintiffs are entitled to have their property as referred to herein quieted in

Defendants' names until and unless some party comes forward in this litigation who

has a right to enforce the loans upon his house free and clear of all encumbrances.

147.The originator of the loan was a broker of loans and intended to place the loans and

never be the “lenders” that they purported to be.

148.The originator of the loan employed a means by which MERS and the Defendants

could insulate themselves from liability for the breach of contract, the violation of

lending and recording laws and for all the reasons stated in the allegations of this

Complaint.

149.The Defendants have not loaned any money to the Plaintiffs.

150.The Defendants have no contractual relationship with the Plaintiffs.

151.The Defendants are not the holders in due course of the notes on the Plaintiffs’

property.

152.No one who has an legal interest in the Plaintiffs’ properties has made any claim of

that interest.

153.Plaintiffs have been required to retain counsel in this matter to protect their rights and

seek these remedies and has incurred attorneys’ fees and costs in this matter.

CONCLUSION

154.Upon information and belief, the Defendants, did not and cannot legally obtain

foreclosures and/or file an Assignment of the Notes or Mortgages of the Plaintiffs.

155.The Plaintiffs are entitled to equitable relief.

156.MERS should be enjoined from this day forward from drafting, executing and filing

Mortgages and Mortgage Assignments and should be further enjoined from filing

Complaints in Foreclosure based in fraud and further be enjoined from prosecuting all

pending cases.

WHEREFORE, Plaintiffs demand judgment against Defendants as follows:

1. Judgment against Defendants as Jointly and Severally Liable for all issues.

2. Actual and statutory damages for violations of FDCPA pursuant to 15 USC § 1692(k)

and relevant North Carolina law;

3. Pre-Judgment and post judgment interest at the maximum rate allowable by law;

4. Compensatory damages;

5. Punitive damages as allowed by law;

6. Such other and further relief available under all applicable under state and federal

laws and any relief the court deems just and appropriate;

DEMAND FOR JURY TRIAL pursuant to rule 38(a) of the F.R.C.P.

Plaintiffs demands a jury trial as to all issues triable by a jury.

Respectfully submitted this the 14th day of March, 2011.

/s/ Jeffrey Nowak /s/ H.E. Luke Lucas

Jeffrey Nowak, Esquire H.E. Luke Lucas, EsquireNC Bar # 40625 PA Bar # 61124Lucas & Nowak, LLP2631 E. Geer St.Durham, NC [email protected]

Attorneys for Plaintiffs OBAMIKEL ALSTON andFIKRIYYAH ALSTON

CERTIFICATE OF ELECTRONIC FILING AND SERVICE

I, the undersigned counsel for the Plaintiffs, hereby certify that on, March 14, 2011, a copy of

Plaintiffs’ 3rd Amended Complaint was filed electronically. I understand that notice of this

filing will be sent to all parties below by operation of the Court's electronic filing system. Parties

may access this filing through the Court's CM/ECF system.

Avery A. SimmonsBOA Corporate Ctr100 N. Tryon StSte 2690Charlotte, NC [email protected]

Phillip A. Harris [email protected] Nelson Mullins Riley & Scarborough LLPGlenLake One, Suite 2004140 Parklake Avenue, Raleigh, North Carolina 27612

/s/ Harold E. LucasLucas & Nowak, LLP2631 E. Geer St.Durham, NC 27704

mailto:[email protected]

Alston 3rd Amended Complaint Final

Documents

Transcript of Alston 3rd Amended Complaint Final