Jeff Brown Amended Complaint 2

8/7/2019 Jeff Brown Amended Complaint 2

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IN THE UNITED STATES DISTRICT COURTEASTERN DISTRICT VIRGINIA

Jeffrey BrownPlaintiff,

v.

HSBC Mortgage Corp. (USA),

Debra Bassett,

Bierman, Geesing, and Ward, LLC,

Jared Slater, and

MERS (Mortgage Electronic

Registration System)

DOEs 1- 50 being parties to be named

later Defendants

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)))))))))))

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AMENDED COMPLAINT

Request for Jury Demand

Request for Injunctive Relief

CIVIL CASE NO: 1:10cv1427

AMENDED COMPLAINT

COMES NOW, Plaintiff Jeffrey Brown, Pro Se, [for the present time] and files his

first Amended Complaint against Defendants. Plaintiff wishes to remind this Court

that pursuant to order dated 01/24/2011 Plaintiff has obtained a default judgment

against defendants HSBC and Bassett ; such rights under that default judgment

are not waived nor any rights extended with this Amended Complaint. Plaintiff

further states as follows:

NATURE OF ACTION

This case arises out of Defendants egregious and ongoing and far reaching

fraudulent Schemes for improper use of Plaintiffs identity, fraud in the

inducement, fraud in the Execution, usury, and breaches of contractual and


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fiduciary obligations as Mortgagee or Trustee on the Deed of Trust, Mortgage

Brokers, Loan Originators, Loan Seller, Mortgage Aggregator, Trustee of

Pooled Assets, Trustee or officers of Structured Investment Vehicle,

Investment Banker, Trustee of Special Purpose Vehicle/Issuer of Certificates of

Asset-backed Certificates, Seller of Asset-Backed Certificates (shares or

bonds), Special Servicer and Trustee, respectively, of certain mortgage loans

pooled together in a trust fund.

JURISDICTION AND VENUE

1. This Court has jurisdiction over the subject matter of this action pursuant

to Article III 2, U.S. Constitution, 42 U.S.C. 1983, 1985 and 1986 (failure

to prevent) as conferred by the U.S. Constitution 28 U.S.C. 1331 and 1343

under the 1st, 4th, 5th, 6th, 8th and 14th Amendments. This action involves

Constitutional charges, grounds, questions, and jurisdiction is supplemented

by 28 U.S.C. 1367(a) and challenges the Constitutional violations of state

and federal law, procedure and practice by state and federal officials and

officers of this Court. Further, Plaintiff brings this action under the Real

Estate Settlement Procedures Act, 12 U.S.C 2601, et seq., The Federal

Truth in Lending Act 15 U.S.C. 1601 et seq., Regulation Z, 226.2(11) and

Act 15 U.S.C. 1692, Fair Debt and Collection Practices Act. Plaintiff also

brings this main action through civil RICO statute.

2. This action is brought within the time constraints of 42 U.S.C. 1983 and

particularly under the continuing organization complicity and fraud scope,

central to this Complaint.

3. Plaintiff requests an Administrative Judge to preside over this matter so


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that Plaintiff may exhaust all of his administrative remedies.

4. Venue is proper under of 28 U.S.C. 1391 because the parties are either

residents of the State of Virginia and the United States, or Corporations

under the personal jurisdiction of the State of Virginia.

PARTIES

5. PlaintiffJeffrey Brown is a citizen of the United States and a resident of

Fairfax, Virginia. Plaintiff is a consumer and natural person for the

purpose of this Complaint within the meaning of The Federal Truth in

Lending Act 15 U.S.C. 1601 et seq., Regulation Z, 226.2(11) and Act 15

U.S.C. 1692, Fair Debt and Collection Practices Act.

6. Defendant HSBC Mortgage Corporation (USA)(hereinafter HSBC) is

the nominal lender and originator of the loan. HSBC was, at all material

times hereto, a foreign corporation which was doing business in the State of

Virginia including the servicing of mortgage loans which in this instance,

further constituted the collection of consumer debts subject to the

provisions of the Federal Truth in Lending Act 15 U.S.C. 1602(f) and the Fair

Debt and Collection Practices Act 15 U.S.C. 1692a and is a creditor and

collector as defined.

7. Defendant Bierman, Geesing and Ward, LLC ( hereinafter Bierman &

Geesing) is a Collector as defined under Fair Debt and Collection

Practices Act and is engaged in regular practice and collection of consumer

debts pursuant to 15 U.S.C. 1692. Defendant is thus subject to the

provisions of a collector and creditor as defined by the Federal Truth in

Lending Act 15 U.S.C. 1602(f). Upon information and belief, Howard


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Bierman is a principal in both Beirman & Geesing and Equity Trustees, LLC.

8. Mortgage Electronic Registration System(hereinafter MERS), with

its last known principal place of business at 1818 Library Street, Suite 300,

Reston, VA 20190, is and was, at all times material hereto, a corporation

which was engaged in the business of, inter alia, acting as an alleged

nominee for various mortgage lenders and their servicing agents for

purposes of purporting to assign various rights incident to a mortgage Note

and/or a mortgage to third parties.

9. Debra Bassett is the original trustee listed on Plaintiffs Deed of Trust.

10. Upon information and belief, Jared Slater is employed with Equity Trustee,

LLC, a firm owned by Howard Bierman of the Bierman & Geesing.

11. Plaintiff is ignorant of the true names and capacities of Defendants sued

herein as DOEs 1- 50, inclusive, and therefore brings suit against these

Defendants by such fictitious names. Plaintiff will amend this Complaint to

allege their true names as ascertained.

FACTUAL ALLEGATIONS

12. In late 2009, Plaintiff and his wife performed a routine audit of their

various personal documents and discovered that they had never received a

complete alleged loan package after closing with HSBC, in 2008. More

specifically, a copy of the original loan application, a copy of the Note itself,

rescission documents, and a complete Deed of Trust were either lacking or

missing. In fact, all that Plaintiff received at the so-called closing table


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was a six-page copy of the alleged Note and a five-page copy of the Deed of

Trust. (See Exhibit A DOT received at closing).

13. In 2010, Plaintiff requested all documents related to the alleged loan

package from Defendant HSBC. However, HSBC failed to provide such

documents in violation of RESPA, TILA and U.S.C. Title 18, Part I, Chapter

25, 472, 473, 474, 474A, and 475 and instead, only sent a copy of the

alleged adjustable rate note. HSBC failed to provide any other closing

documentation.

14. Plaintiff noticed that the Note received was different from the copy

already in Plaintiffs possession. This version contained an extra page with

an inverted notary impression and a curiously blank space that appeared to

be redacted. (See Exhibit B Loan Documents received from HSBC).

15. In response to HSBCs lack of a substantive reply, Plaintiff then called

Premier Relationship Manager, Soraya Teymourian to express concern.

Plaintiff followed up the call with a letter to Ms. Teymourian requesting the

opportunity to view the ORIGINAL complete set of alleged loan documents.

(See Exhibit C- January 27, 2010 letter to HSBC Bank).

16. On January 29, 2010, Plaintiff went to the Fairfax County Land Records to

obtain a true and certified copy of the Deed of Trust. (See Exhibit D). Such

document was 19 pages long and in no way resembled the five page Deed

of Trust Plaintiff received at closing. (Compare Exhibit B with Exhibit D).

17. On February 4, 2010, in response to Plaintiffs repeated requests, Plaintiff


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received a phone call from Goli Youchidge from HSBC. She indicated that

she was not sure if the original documents existed, but that she would

attempt to locate them. (See Exhibit E).

18. On February 17, 2010, Plaintiff actually went to an HSBC Bank in Virginia

where he was able to view what was described as original loan

documents. (See Exhibit E). This document did not match the official

copy as sent to Plaintiff via FedEx on January 27, 2010. Further, Plaintiff

disputes that this so called original was not an original at all, as signing of

the document was done in blue ink. The document as provided had a black

signature.

19. As a result of this visit Plaintiff realized that HSBC was not the holder of

the original note as all it could produce for Plaintiffs viewing was a

photocopy alleged to be the original Note. By their own admission and on

several occasions, HSBC no longer held an alleged Note or even a proper

Deed of Trust.

20. On February 17, 2010, Plaintiff Noticed HSBC, Debra Bassett (Trustee),

MERS, and various government agencies with a Qualified Written Request

(QWR) as per TILA and RESPA.[1] (See Exhibit F (containing sub-exhibits)).

21. On February 24, 2010, in response to the QWR, Plaintiff received a letter

from HSBC containing unsubstantiated claims. (See Exhibit G). HSBC

falsely claimed that Plaintiff had received the following:

A copy of the Mortgage Note, (Un-endorsed)

The Deed of Trust,
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(See Exhibit N). With this response on June 25, 2010, HSBC claimed that it

shipped the loan file which contained the original signed loan documents

to the McLean branch. However, as stated above, Plaintiff alleges that the

file viewed at the Mclean branch was not the original signed note.

Therefore, by its own admission, HSBC has admitted that it does not have

the original signed note as it was not able to produce the wet ink signature

for viewing. In essence, HSBC cannot verify Plaintiffs obligation on the note

as they dont have the original note[4].

29. Plaintiff created a good faith account wherein he placed his monthly

payments for the duration of this controversy. On June 12, 2010 Plaintiff

moved this account from HSBC to an account at Bank of America. (See

Exhibit O). Such move was precipitated by a fear that HSBC would empty

this account in a self-help maneuver.

30. After several attempts to validate any debt with HSBC, Plaintiff sent

Stephen Tich Notice of Acquiescence to Plaintiffs claims as caused by

Defendants non-compliance. (See Exhibit P). Such letter contained a

Contract Novation under which the alleged debt is now void, this matter is

closed and the Mortgage Account Number 459779-6 is discharged and

satisfied. (See Id.).

31. In addition to not being able to validate the debt by providing the original

note, Plaintiff also alleges that at the time of closing, Plaintiff thought that

he was signing a Promissory Note in return for a negotiable instrument

obligation. However, the real transaction was that Plaintiff signed a note


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that was converted into a BOND and then sold to various investors

unbeknownst to Plaintiff.[5] The Plaintiff was not a part of the Bond deal,

however, Plaintiffs identity and other personal information was used to

make millions of dollars in profit by the securitization of the note without

Plaintiffs knowledge, consent and permission. Without Plaintiffs signature,

the Bond deal couldnt take place.

32. In essence, the real transaction was as follows: Wells Fargo Asset

Securities Corporation, the depositor hired HSBC Bank USA, National

Association to manage a Trust. In the Pooling and Servicing Agreement

(hereinafter PSA) filed before the SEC as Exhibit 4.1 of the 8K report, the

securitization partners admit that Plaintiffs loan was sold to various parties.

[6]

33. As per the securitization documents filed, the True Sale occurred from

the Depositor, Wells Asset Securities, to the Securities underwriter, Lehman

Brothers Special Financing Inc. and Lehman Brothers Inc. The Trustee,

HSBC Bank USA, National Association in this case was not involved in sale

of the Plaintiffs note, but was simply an administrator.

34. Further, the Trust that allegedly owns Plaintiffs note and purportedly

forms the basis by which a foreclosure was attempted has been dissolved.

Therefore the trust is no more, and as such, HSBC Bank USA, National

Association is no more a trustee of Wells Fargo Mortgage Backed Securities

2008-AR2 Trust. The triggering event that caused the trust to dissolve is the

Credit Default Swaps, AIG Bail out and insurance proceeds. See also f.n.2.
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35. Moreover, neither the original note that Plaintiff allegedly saw on

January 17, 2010, nor any other version or copy of the Plaintiffs note

produced by any Defendants had the proper endorsements and chain of

title included.

36. According to the transfer of ownership of Plaintiffs note as fully described

in the associated securitization documents, there should be at least 8 or

more endorsements showing each transfer on Plaintiffs note. However, the

Plaintiffs note contains none.[7]

37. On August 25, 2010, Plaintiff received a Notice of Intent to Foreclose.

(See Exhibit Q).

38. The nominal lender HSBC Mortgage Corporation sold Plaintiffs loan for

cash to Wells Fargo Bank NA, who sold it to Wells Asset Securities, who in

turn sold it to Lehman brothers Special Financing Inc. for cash.

Nevertheless, on September 8, 2010, Plaintiff received correspondence from

Defendant Bierman & Geesing stating that HSBC Mortgage Corporation is

the secured party on Plaintiffs note that has directed Equity Trustees to

institute a foreclosure. See f.n. 8 & Exhibit R.

39. In this fraudulent and faulty letter Bierman & Geesing falsely refers to

HSBC as the secured party. Had they been in possession of the Deed of

Trust, they would have noted that the beneficiary of the Deed is MERS. (See

Exhibit D). Further, Bierman & Geesing states that Plaintiffs Note is

missing. See Exhibit R.


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40. Pursuant to being threatened with an attempted fraudulent foreclosure

sale by either Bierman & Geesing or Equity Trustees, Plaintiff checked the

Land Records for Fairfax County.

41. As of October 12, 2010, two days prior to the attempted sale of Plaintiffs

property, there was no transfer[8] of Trustee status recorded. (See Exhibit

S- a certified copy of Land Records showing NO Activity for the past two

years.)

42. This fraudulent activity is in direct violation of Virginia Code 55-59.1

(Notices required). In fact, Defendants did not record their fraudulent

appointment (conveniently backdated) of substitute trustee until October

18, 2010, nor did they bother to notify the Plaintiff of their fraudulent

substitution in violation of VA code 26-50, and 8.01-428(A)(i).

43. Upon information and belief HSBC never loaned any money at all.

Instead HSBC credited/deposited the Promissory Note signed by Plaintiff,

used that deposit to pay the seller, and continued to use Plaintiffs good

name and credit for its own profit and criminal enterprise.

44. Additionally, research by Plaintiff indicates that the original loan

application now has a CUSIP number attached to it. Such number strongly

suggests that the loan has been illegally converted to an instrument to

purchase a bond, and such bond was then used to obtain a loan from the

government to pass through money to buy real property.

45. If such allegations prove true, then any remaining loan is actually with the


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government, not HSBC.

46. Such action by HSBC constitutes a fraudulent conversion of an application

to an instrument.

47. All the listed Defendants were involved in a joint venture in furtherance of

making substantial profits for themselves using Plaintiffs signature, credit

score, and other information without disclosing these facts to the Plaintiff.

While Plaintiff thought he was getting a simple loan, his information was

actually being used to finance a very complex securities deal with

defendants forming relationships as further described in the PSA of the

alleged trust purportedly holding Plaintiffs Note. The Defendants formed a

joint venture for their own profit much before Plaintiff even applied for the

loan.

48. The Joint Venture formed by all the known and unknown Defendants

illegally and improperly securitized Plaintiffs note by disregarding the terms

of PSA itself and disregarding proper securitization procedures in an attempt

to evade paying taxes. Among other illegalities, Plaintiffs note was not

properly endorsed or correctly transferred to the REMIC[9] trustee.

COUNT ICIVIL FRAUD

(Bierman, Geesing & Ward and Slater)

49. Plaintiff incorporates by reference the allegations in previous paragraphs

of this Complaint as if fully set forth herein.

50. Plaintiff alleges that Bierman & Geesing and Slater knowingly made false


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representations of material fact with the intent to mislead Plaintiff, and that

such justified reliance resulted in damage to Plaintiff.

51. As referenced above, Defendant Bierman & Geesing sent Plaintiff a letter

received on or after September 8, 2010. (See Exhibit R). In this

communication Bierman & Geesing falsely states that HSBC is the secured

party. This is a false representation as the beneficiary of the Deed of Trust is

MERS not HSBC as Bierman & Geesing states in that letter. (See Exhibit D).

52. Bierman & Geesing also fraudulently prepared the substitution of trustee

documents sometime on or about September 15, 2010. See Exhibit T- a

fraudulent trustee substitution.

53. Further, Defendants have referenced 55-59.1 (B) of the Virginia Code.

At the top of the correspondence it states that they are a debt collector

while at the bottom they declare themselves Attorneys for the Secured

Party.

54. As such, Defendants have fraudulently represented themselves as debt

collectors, Substitute Trustees and legal counsel. Such an obvious attempt

to clothe themselves in authority can only demonstrate underhanded

dealing with the Plaintiff.

55. Such representations by Defendants demonstrate an expectation that

Plaintiff should rely on such representations and cause him to act in a

manner that was detrimental to his interests thereby causing injury.

56. Defendant is not deserving of any sympathy or benefit of the doubt.


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57. Plaintiff has done further research and has determined that the

aforementioned fraud committed by Bierman & Geesing and/or Equity

Trustees is not a singular incident. (See Exhibit U). Bierman & Geesing has

been found to engage in fabrication of signatures, fabrication of documents,

notary misconduct, etc.

58. Because of the deceptive practice of the Bierman & Geesing law firm, the

Maryland Court of Appeals has changed how foreclosure cases must be

handled, and provides for independent verification of foreclosure

documents. (See Exhibit V). Plaintiff believes that his documents

evidencing such fraud have identified examples of fraud in the exhibits

before this Court.

COUNT IICIVIL FRAUD

(HSBC Mortgage Corporation (USA) ,MERS, & Debra Bassett,



60. Plaintiff alleges that HSBC directly and through its joint venture and/or

agency relationship with all other Defendants knowingly made false

representations of material fact with the intent to mislead Plaintiff and that

such justified reliance resulted in damage to Plaintiff. See for example

-Exhibit A, E, G, & N. The following are the fraudulent statements made:

On January 26, 2010, Latoya Crosby of HSBC

Mortgage Corp USA sent a correspondence where she alleged


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that she enclosed a copy of [the] loan documents. However, in

truth she only sent a copy of the alleged original note and

apparently mistakenly included a cropped off allonge page.

Further, what she claims is the original note was not the

original note as per Plaintiffs viewing on February 17, 2010.

See Exhibit E.

On February 24, 2010, LaToya Crosby again sent a

correspondence where she claimed to have sent copies of note,

DOT, TILDS, HUD-1, and Funding Details from Plaintiffs loan

file. In truth, Plaintiff only received the note from her and not

any of the other listed documents.

On June 25, S. Cox of HSBC indicated that

Plaintiffs loan file containing original signed loan documents

was sent to the local branch of HSBC. And S. Cox further states

that on February 17, 2010, that Plaintiff viewed original signed

loan documents. However, as stated in Exhibit E, Plaintiff saw

only a four page copy of the alleged note which clearly was a

photocopy and NOT the original. Further, there were no other

documents offered for viewing that day.

61. Defendants have used their superior knowledge of the Federal Reserve

Banking system to deceive Plaintiff.

62. Plaintiff alleges that nominal lenders, and HSBC, deceived borrowers,

including Plaintiff to render monthly installments to their mortgage servicer


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in payment of a fictitious and imaginary loan. (See Exhibit W).

63. Plaintiff also believes, based on attached affidavits and other testimony

that the alleged Note, Application, etc. were all fraudulently monetized

without the knowledge of the Plaintiff.

64. Because of the fraudulent nature of the Action, Plaintiff is led to believe

that he is still the original and only holder in due course.

65. Absent any proof or presentment of original wet ink signature promissory

note or loan contract Defendants have no right to attempt to foreclose upon

the Title to Plaintiffs real property.

66. Further, even as HSBC knows or should know that the Wells Fargo

Mortgage Backed Securities 2008-AR2 Trust is dissolved, it continued to

foreclose under its false authority.[10] A trigger even followed as a result of

credit default swaps payments and the trust was dissolved;

a) No payments are owed to any certificate holders (Tranches) or

synthetic security holders (derivatives)

b) HSBC created fabricated document to enroll Plaintiffs mortgage

in a Trust after dissolution of the TRUST.

c) HSBC created fabricated documents to allow Trustees duty to

continue for a Trust for which TRUSTEES DUTIES have been

TERMINATED.

d) Currently no distribution to certificate holders, even for the

CURRENTLY PAYING MORTGAGES.


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e) Payments are not being directed to the original designated

trust, Wells Fargo Mortgage Backed Securities 2008-AR2 Trust in

Plaintiffs case, because the trigger event and payments of credit

default swaps, insurance proceeds, caused its demise.

f) Since Trust has been dissolved and HSBC Bank USA, National

Association is no more Trustee, has acted wrongly in regard to the

issue at hand and now acting without any standing.

COUNT IIIFAILURE TO PROVIDE PROOF OF STANDING TO FORECLOSE (Defendants

HSBC, MERS , Beirman & Geesing, and Slater )



68. Around January 2010, February 17, 2010 and March 10, 2010, the Plaintiff

requested that HSBC provide clarification as to who owned and held the

subject Promissory Note and the Security Deed (Deed of Trust or DOT).

Such clarification would require that the purported holder of the Note

produce the original Promissory Note, with the Plaintiffs original signatures

and proof of the chain of title. Such information was not provided.

69. Defendants had an understanding that the underlying debt obligation

created by Plaintiffs loan would be immediately packaged and sold, to

investors on a secondary mortgage market as Mortgage Backed Securities

(MBS)1 and as Collateralized Mortgage Obligations (CMO)2, through the

creation of a Special Purpose Entity (SPE)3.

70. Despite knowing full well that Plaintiffs note has been sold multiple times
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and the trust allegedly holding Plaintiffs note had terminated, Defendants

continued to proceed with a wrongful foreclosure having no legal rights to

the action to cause Plaintiff injury.

71. Since HSBC has sold the note; they cannot foreclose as they are not the

holder or the holder in due course. HSBS had already sold what they had

some time, and admitted under sworn statement on S-3 Registration Form,

FAs-95 and Balance Sheets.

72. HSBC has been unable to provide evidence that validates the debt. It is

undisputed that the named lender on the loan documents has been paid in

full, plus a fee for standing in for the undisclosed lender, and that the note

was negotiated despite the fact that it was non-negotiable.

73. Upon information and belief, the mortgage note has been paid in whole or

in part by one or more undisclosed third party(ies) who, prior to or

contemporaneously with the closing on the loan, paid the originating

lender in exchange for certain unrecorded rights to the revenues arising out

of the loan documents. To the extent that Defendants have been paid on

the underlying obligation or have no legal interest therein or in the note or

mortgage, or do not have lawful possession of the note or mortgage,

Defendants allegations of possession and capacity to institute foreclosure

constitute a fraud upon the court and a violation of the rights of Plaintiff to

enjoyment of his property.

74. Plaintiff alleges that Defendants, and each of them, have represented to

Plaintiff and to third parties that they were the owner of the Trust Deed and

Note as either the Trustee or the Beneficiary regarding Plaintiffs real


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property.

75. Plaintiffs reliance was justified based upon the position and false

representations of Defendants.

76. Plaintiff alleges that Defendants, and each of them, knew at the time they

made these representations to Plaintiff that they were untrue and were

attempting to foreclose on Plaintiffs Trust Deed and Note that they had no

right to do so.

77. All the listed Defendants acted in a joint venture or an agency relationship

to attempt to foreclose on Plaintiffs note when none of them owned or had

actual control of Plaintiffs alleged debt.

COUNT IVCIVIL RICO

HSBC Mortgage Corp. (USA),MERS, Debra Bassett, Bierman, Geesing, and Ward, LLC, and Jared

Slater.



79. By Virginia Code 8.1A-103, Plaintiff now brings forward various UCC

violations pertaining to mail fraud, bank fraud, securities fraud, and RICO.

80. Plaintiff alleges that Defendants conduct in direct violation of U.S.C.

1962(c) was part of a pattern of continuous criminal violations and

racketeering activity. Plaintiff further alleges injury in his business or

property by reason of a violation of RICOs substantive provisions.

81. Racketeeringincludes the act of operating an illegal business or scheme


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in order to make a profit, perpetrated by a structured group.

Racketeering encompasses many criminal acts. It includes theft and fraud

against businesses or individuals.

82. Defendants are in direct violation of such statute by perpetrating

continuity of schemes of fraud against the Plaintiff and others as evidenced

by Exhibit U, the U.S. Bankruptcy Court, Southern District of New York,

Adv.Pro.No. 08-01789 SIPA.

83. The Defendants scheme to defraud violates mail and wire fraud statutes

18 U.S.C. 1341, 1343m by mailing copies of loan documents and making

fraudulent statements as to who the Trustee is or was by making false

reference to the Deed of Trust which they apparently have never seen

84. In addition, the Hobbs Act applies wherein Defendants are using color of

official right to attempt to steal Plaintiffs property, and under color of

law conspire to extort property from Plaintiff knowing full well that there is

no Note and, and thus no obligation. Plaintiff has indeed lost substantial

amounts of money in defense of Plaintiffs property while Defendants

continue their assault and attempt to extort what is not theirs to begin with.

85. Such violations are punishable by treble damages and an award of

attorneys fees.

86. Defendants are persons making conspiracy in committing the corrupt

activities by selling unregistered securities. This is called money laundering

or RICO. Since Defendants in a joint venture are selling unregistered
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securities consisting of Plaintiff mortgage, Plaintiff is also entitled to setoff

to settle the claim. Plaintiff has a right to restitution and rescission as

Defendants have sold the unregistered security, because the note is not a

registered security. The note is a non-negotiable instrument. When the

defendants converted it into a security, UCC Article 3 no longer applies,

rather UCC Article 4 does because it has been deposited in a bank. But

eventually after it has gone into an SPV, and been securitized, UCC Article 8

applies and Article 9 is applicable to the remedy.

87. The subject conspiracy has existed from date of Plaintiffs application to

get a loan and continues to the present.

88. Defendants actions and use of multiple corporate entities, multiple

parties, and concerted and predetermined acts and conduct specifically

designed to defraud Plaintiff constitutes an enterprise, with the aim and

objective of the enterprise being to perpetrate a fraud upon the Plaintiff

through the use of intentional nondisclosure, material misrepresentation,

and creation of fraudulent loan documents.

89. Each of the Defendants is an enterprise Defendant.

90. As a direct and proximate result of the actions of the Defendants Plaintiff

have and continue to suffer damages.

COUNT V

VIOLATION OF OF TILA, REG. Z, RESPA, REG. X AND FDCPABY DEFENDANTS FALSE STATEMENTS, FAILURE TO DISCLOSE, AND

VIOLATIONS (HSBC Mortgage Corp.(USA), MERS, Debra Bassett, Bierman& Geesing, and Jared Slater.


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92. Plaintiff alleges that all Defendants involved, in a joint and concerted

effort engaged in unfair and deceptive practices in connection with the

extension of consumer credit to purchase the Property, as follows:

A. Violation of tila and reg. z

93. In accordance with 15 U.S.C. 1601, et seq. (TILA) and 12 CFR 226

(Reg. Z) the closed-end real estate transactions at issue were made with a

creditor; incurred a finance charge; were payable in more than four (4)

installments; and were secured by Plaintiffs principal dwelling. As such, the

real estate transaction herein at issue is subject to the provisions of TILA

and Reg. Z.

94. Transactions that fall under the purview of TILA and Reg. Z must make

certain pre-disclosures which truthfully disclose and explain the following:

a. the name of all creditors in the transaction;b. the amount financed and itemization of the amount financed;c. the finance charge;d. the annual percentage rate;e. the maximum interest rate in variable rate transactions;f. the Truth in Lending disclosure statement (TILDS);g. the consumers handbook and loan program disclosures;h. the payment schedule;i. the total number of payments and total sales price;

j. the right of rescission;k. prepayment options and penalties;l. late payment consequences;m. security interest acquired and by whom;n. insurance and debt cancellation coverage;o. certain security interest charges; andp. Required deposits.

95. To date, Defendant HSBC and others have failed to properly provide


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Plaintiff with some or all of the pre-disclosures as required by TILA and Reg.

Z. Not only have Defendants failed to provide Plaintiff information, but

HSBC has actively provided false information so that Plaintiff would remain

ignorant about the true ownership of his loan.

96. Defendants failed to include and disclose certain charges in the finance

charge shown on the TIL statement, which charges were imposed on

Plaintiff incident to the extension of credit to the Plaintiff and were required

to be disclosed pursuant to 15 USC 1605 and Regulation Z, sec. 226.4,

thus resulting in an improper disclosure of finance charges in violation of 15

USC sec. 1601 et seq., Regulation Z sec. 226.18(d). Such undisclosed

charges include a sum identified on the Settlement Statement listing the

amount financed which is different from the sum listed on the original Note.

97. By calculating the annual percentage rate (APR) based upon improperly

calculated and disclosed amounts, Defendants are in violation of 15 USC

sec. 1601 et seq., Regulation Z sec. 226.18(c), 18(d), and 22.

98. Defendants failure to provide the required disclosures provides Plaintiff

with the right to rescind the transaction, and Plaintiff, through this public

Complaint which is intended to be construed, for purposes of this claim, as a

formal Notice of Rescission, hereby elect to rescind the transaction.

B. violation of respa, and reg. x

99. As mortgage lenders, Defendants are subject to the provisions of the Real

Estate Settlement Procedures Act (RESPA), 12 USC sec. 2601 et seq.

100. In violation of 12 USC sec. 2607 and in connection with the mortgage loan

to Plaintiff, Defendants accepted charges for the rendering of real estate


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services which were in fact charges for other than services actually

performed.

101. As a result of the Defendants violations of RESPA, Defendants are liable to

Plaintiff in an amount equal to three (3) times the amount of charges paid

by Plaintiff for settlement services pursuant to 12 USC sec. 2607 (d)(2).

102. As a lender, creditor, or mortgage broker of a federally related

mortgage loan, Defendant HSBC is subject to the provisions of RESPA, 12

USC 2601, et seq. and 24 C.F.R. 3500 of Reg. X.

103. On or before the date of settlement, Plaintiff was not provided with, and

did not receive proper pre-disclosure statements as required under RESPA

and Reg. X, as follows:

a. Pre-disclosure requirements under 12 U.S.C. 2606 and 24 C.F.R

3500.14 were violated because the required pre-disclosure

statements were not provided to Plaintiff within three business

days after the URLA was received or prepared. Thus, Plaintiff was

wrongfully denied any opportunity to inspect the projected costs

associated with closing; and

b. Accepted charges for the rendering of real estate settlement

services which were, in fact, charges for other than services

actually performed were not properly disclosed to Plaintiff. Such

undisclosed charges in the settlement statements are in violation

of RESPA and Reg. X.

104. Because Plaintiff was not provided with necessary RESPA pre-disclosures,


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the aforementioned charges are fees, kickbacks, or other things of value in

connection with settlement services that were not actually performed in

accordance with 24 C.F.R. 3500.14(b).

105. Further, in violation of RESPA, Defendants have failed to respond to

Plaintiffs Qualified Written Request within the appropriate time period and

have failed to provide documents as requested.

c. violation of FAIR DEBT COLLECTIONS PRACTICE ACT

(FDCPA) and FEDERAL CREDIT REPORTING ACT

(FCRA)

106. At all times material, Defendants qualified as a provider of information to

the Credit Reporting Agencies, including but not limited to Experian,

Equifax, and Trans Union, under the Federal Fair Credit Reporting Act. 65.

Defendants wrongfully, improperly, and illegally reported negative

information as to the Plaintiff to one or more Credit Reporting Agencies,

resulting in Plaintiff having negative information on their credit reports and

the lowering of their FICO scores. (Plaintiff has already filed a report with the

credit agencies asking for an investigation into this matter)

107. The negative information included but was not limited to an excessive

amount of debt into which Plaintiff was tricked and deceived into signing,

and that Plaintiff owed the debt to HSBC, an entity that did not verify or

validate the debt despite numerous requests from Plaintiff to do so.

108. Notwithstanding the above, Plaintiff has paid each and every payment on

time from the time of the loan closing through the time Plaintiff disputed the

validity of the debt but received no validation of the debt allegedly owed to


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HSBC. As stated, Plaintiff has continued to make payment into an escrow

account for the true creditor of Plaintiffs loan when ascertained.

109. Pursuant to 15 USC sec. 1681(s)(2)(b), Plaintiff is entitled to maintain a

private cause of action against Defendants for an award of damages in an

amount to be proven at the time of trial for all violations of the Fair Credit

Reporting Act which caused actual damages to Plaintiff, including emotional

distress and humiliation.

110. Plaintiff is entitled to recover damages from Defendants for negligent non-

compliance with the Fair Credit Reporting Act pursuant to 15 USC sec.

1681(o).

111. Plaintiff is also entitled to an award of punitive damages against

Defendants for their willful noncompliance with the Fair Credit Reporting Act

pursuant to 15 USC sec. 1681(n)(a)(2) in an amount to be proven at time of

trial.

112. Defendants also violated FDCPA in one or more of the following:

a. Falsely representing the character, amount and status of thealleged debt in violation 15 U.S.C. 1692c(a)(1);

b. Using a false, deceptive or misleading representation or means inconnection with the collection of the alleged debt, in violation of 15U.S.C. 1692e(10);

c. Continuing collection activities without providing verification of

the debt to Plaintiff after they requested verification of the debt in

writing, in violation of 15 U.S.C 1692g(b);

d. Falsely representing the character, amount and status of thealleged debt in violation of 15 U.S.C. 1692e(2)(A);

e. By acting in an otherwise deceptive, unfair and unconscionablemanner and failing to comply with FDCPA.


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113. In doing, or failing to do, the acts herein alleged, Defendants acted with

oppression, malice, fraud, and with disregard for harm to Plaintiff. Plaintiff

has suffered and continues to suffer humiliation, embarrassment, mental

anguish and emotional distress.

114. WHEREFORE, Plaintiff demands judgment against Defendants for all actual

compensatory damages suffered, statutory and punitive damages, and all

reasonable attorneys fees, witness fees, court costs, and other litigation

costs incurred by Plaintiff and any other relief deemed appropriate by this

Honorable Court.

COUNT VISLANDER OF TITLE

(HSBC, MERS and Bierman & Geesing)



116. The negotiable instruments for Plaintiffs loan are not enforceable because

the note was securitized and, therefore, is subject to and governed by a

Pooling and Servicing Agreement (PSA). When a mortgage note is

pooled with other similar debt obligations and then securitized, the newly

pooled note then becomes serviced by another entity as required by the

PSA. The pooling servicer must service the note in a manner that complies

with the PSA, which constitutes another record that the original note is

subject to or governed by. If the note is not enforceable because it is not an

unconditional promise to pay, none of the Defendants nor agents of the

Defendants can be considered persons entitled to enforce, holders, or


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holders in due course in connection with the negotiable instruments in

connection with the Loans to Plaintiff.

117. The purpose of MERS was to help in the securitization process. Basically,

MERS directed defaulting mortgages to the appropriate tranches of

mortgage bonds. MERS was essentially the operating table where the

digitized mortgage notes were sliced and diced and rearranged so as to

create the Mortgage Backed Securities.[11]

118. However, legally MERS didnt hold any mortgage note: The true owner of

the mortgage notes should have been the REMICs. But the REMICs didnt

own the note either, because of a fluke of the ratings agencies: The REMICs

had to be bankruptcy remote, in order to get the precious ratings needed

to peddle Mortgage Backed Securities to institutional investors. So,

somewhere between the REMICs and the MERS, the chain of title was

broken.[12]

119. By selling the Note without Plaintiff knowledge or consent through

securitization trusts, Defendant HSBC irreparably damaged Plaintiffs title to

the Property and such cloud on his title makes it impossible for Plaintiff to

sell the Property with a clean title until the Court determines the Deed of

Trust and related filings against the Property are no longer valid and orders

them removed.

120. Upon information and belief, Defendant Bierman & Geesing has filed false

documents against Plaintiffs Property in Fairfax County land records that

Bierman & Geesing knew or should have known to contain false[13]
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statements as to the owner of the Note and the beneficial owner of the DOT.

(See Exhibit T) As such, Defendant Bierman & Geesing has slandered title

to Plaintiffs property making it impossible for Plaintiff to sell the Property

with a clean title until the Court determines the DOT and related filings

against the Property are invalid and orders them removed.

121. Plaintiffs note contains MERS on the DOT, as such there is an immediate

and fatal flaw in title, making the mortgage unenforceable. When the

mortgage is unenforceable the foreclosure is void and a cloud on title exists

in the presence of the court judgment to the contrary. [14]

122. MERS act of assigning the mortgage instrument is invalid as it held no

beneficial interest in the mortgage instrument for two reasons: 1) a security

instrument, apart from the promissory note giving rise to the debt has no

value because there is no debt by which it secures payment; and 2) MERS

had no beneficial interest in the mortgage instrument that it could assign.

[15]

123. WHEREFORE, Plaintiff demands judgment jointly and severally, against

Defendants for compensatory damages in the amount of the Note, the

interest and fees paid to date on the same, plus punitive damages and

interest, costs, and reasonable attorneys fees.

COUNT VIIUNJUST ENRICHMENT

DEFENDANTS HSBC Mortgage Corp. (USA), MERS, and Bierman &Geesing

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125. Defendants had an implied contract with the Plaintiff to ensure that

Plaintiff understood all fees which would be paid to the Defendants, to

obtain credit on Plaintiff behalf, and to not charge any fees which were not

related to the settlement of the loan and without full disclosure to Plaintiff.

126. Defendants cannot, in good conscience and equity, retain the benefits

from their actions of charging a higher interest rate, fees, rebates,

kickbacks, profits (including but not limited to from resale of mortgages and

notes using Plaintiffs identity, credit score and reputation without consent,

right, justification or excuse as part of an illegal enterprise scheme) and

gains and YSP (Yield Spread Premium) fee unrelated to the settlement

services provided at closing.

127. Defendants have been unjustly enrichedat the expense of the Plaintiff,

and maintenance of the enrichment would be contrary to principles of

equity.

128. Defendants have also been additionally enriched through the receipt of

PAYMENT from third parties including but not limited to investors, insurers,

other borrowers, the United States Department of the Treasury, the United

States Federal Reserve, and Federal bailout from the tax payer money.

129. Defendants have also additionally enriched themselves by double dipping

when they sold the toxic assets to Maiden Lane I, II & III[16]after AIG Bailout

and fraudulently foreclosing the peoples homes including the Plaintiff when


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they knew the Defendants are not the owners of these properties.

Defendants do not own the loan, yet continue to attempt collection and/or

foreclose on Plaintiffs home.

130. WHEREFORE Plaintiff thus demands restitution from the Defendants in the

form of actual damages, exemplary damages, and attorneys fees.

COUNT-VIII CIVIL CONSPIRACY (as against all DEFENDANTS)



132. All listed Defendants acted together in a combined and concerted effort to

achieve a preconceived plan to induce Plaintiff to enter into a securities

transaction, the details of which were intentionally concealed from Plaintiff,

in violation of law.

133. Upon information and belief, Defendants had an understanding that the

underlying debt obligation created by Plaintiffs loan would be immediately

packaged and sold, to investors on a secondary mortgage market as

Mortgage Backed Securities (MBS)1 and as Collateralized Mortgage

Obligations (CMO)2, through the creation of a Special Purpose Entity

(SPE)3.

134. In an effort to conceal the true identity of the transaction, Defendants

agreed, between and among themselves, to engage in actions and a course

of conduct designed to further an illegal act or accomplish a legal act by

unlawful means, and to commit one or more overt acts in furtherance of the
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conspiracy to defraud the Plaintiff.

135. Defendants agreed between and among themselves to engage in the

conspiracy to defraud for the common purpose of accruing economic gains

for themselves at the expense of and detriment to Plaintiff.

136. Defendants actions were committed intentionally, willfully, wantonly, and

with reckless disregard for Plaintiffs rights.

137. In connection with the application for and consummation of the subject

mortgage loan, Defendants agreed, between and among themselves, to

engage in actions and a course of conduct designed to further an illegal act

or accomplish a legal act by unlawful means, and to commit one or more

overt acts in furtherance of the conspiracy to defraud the Plaintiff

138. Plaintiff thus demands an award of actual, compensatory, and punitive

damages.

COUNT-IX BREACH OF FIDUCIARY DUTYBEIRMAN & GEESING, BASSET, AND SLATER


of this Complaint as if fully set forth herein

140. As trustee and the substitute trustee, Defendants Basset and Bierman &

Geesing and Slater had a fiduciary duty to Plaintiff to both disclose truthful

information and foreclose only upon a valid note.

141. Bierman & Geesing, Basset and Slater failed to provide the information

Plaintiff requested, failed to verify the validity of the Plaintiff debt, yet

attempted foreclosure on behalf of a creditor that they knew did not own or


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control Plaintiffs debt.

142. As a direct and proximate result of the actions of the Defendants, Plaintiff

has suffered injury.

COUNT XBREACH OF CONTRACT/BREACH OF DUTY OF GOOD FAITH AND FAIRDEALING HSBC Mortgage Corporation (USA), and BIERMAN & GEESING

143. Plaintiff incorporates by reference the allegations in previous

paragraphs of this Complaint as if fully set forth herein.

144. Plaintiffs Deed of Trust, Paragraph 24 states that The Lender.may

appoint a substitute trustee Therefore, in attempting to foreclose

prematurely, Defendants have breached the provisions of the Deed of Trust.

Further, Plaintiff alleges that it has not defaulted on its obligations to pay on

the note and Deed of Trust as it has repeatedly asked for verification and

validation of its debt. Only the LENDER can appoint and the LENDER is

yet to be identified. To date, Defendants have not provided such verification

or validation of the debt. As such, without Plaintiffs default, No Defendant

had a right to accelerate Plaintiffs debt obligation.

145. Further, by failing to provide Plaintiff the requested information, by

collecting upfront fees for services not performed, by purposely giving

Plaintiff false information about the true owner of Plaintiffs note, by not

complying with the relevant Trust laws to obtain proper assignment of

Plaintiffs note and mortgage, and by attempting to foreclose on a debt that

it had not rights to foreclose, the listed Defendants routinely and regularly

breached their duties under the PSA (with Plaintiff being a third party

beneficiary), and breached their duty to Plaintiff of Good Faith and Fair


34/47


35/47

promise to pay, the pooling agreement at the aggregator (loan wholesaler)

level combined with the re-pooling at the SPV level, the note was converted

from an unconditional promise to pay to a conditional promise to pay.

153. In addition, the presence of insurance, credit default swaps[17], and

bailouts from the U.S. Treasury and Federal Reserve indicate that the listed

Defendants have been paid in full.

154. As discussed above, Defendants have failed to provide documents which

would offer sufficient facts for Plaintiff or this Court to establish who the

necessary parties to this action are, what are the Defendants legal

relationships to the Plaintiff, what rights do individual Defendants have to

the property including but not limited to a claim for foreclosure on the

Promissory Note.

155. Defendants failure to meet the standing requirements renders its threat of

foreclosure fatally defective and constitutes actionable misrepresentations

to this Court as to the identity and status of said parties.

156. To have legal standing to foreclose, HSBC must allege that it is a holder in

due course of the Note and the mortgage, an allegation which Defendant

already knows to be untrue.

157. To qualify as a holder in due course or qualify as having the rights of a

holder-in-due-course. In order to prove that they are the holder in due

course they (or a custodian) must physically possess the note.

Which we already know they do not.

158. Further, to be holder in due course, there must be proper endorsement to

the trust. This mean that there must be proper endorsement from the


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originating lender to the wholesale lender to the issuer, and finally

from issuer to a trust.

159. Conveyance, according to the Pooling and Servicing Agreement, requires

that the original Note be endorsed showing a complete, unbroken, chain of

endorsements from the originator to the depositor. (See PSA Article II

Conveyance of Mortgage Loans; Original Issuance of Certificates, Section

2.01.)

160. In order for the mortgage loan and Note to have been conveyed legally

into the Pool, the Note requires endorsement from all intervening parties

from the Originator HSBC to the Trustee, HSBC Bank USA, National

Association.

161. As discovered by LFA, (Legal Forensic Auditors):

At some point therein, the loan was sold to Wells fargo Bank, N.A., the

sponsor listed on the [PSA]. Thereafter, that sponsor then sold the loan to

the depositor, Wells Fargo Asset Securities Corporation.

Wells Fargo Asset Securities Corporation then sold the loan to the Issuing

Entity, Wells Fargo Mortgage Backed Securities 2008-AR2 Trust CIK#:

0001425053. The Issuing Entity, Wells Fargo Mortgage Backed Securities

2008-AR2 Trust CIK#: 0001425053 then sold the loan to the Trustee HSBC

Bank USA National Association for the benefit of the Certificate Holders.

See Forensic Audit entered previously.

162. Pursuant to the Deed of Trust, MERS is described as follows:

MERS is Mortgage Electronic Registration Systems, Inc. MERS is a separate

corporation that is acting solely as a nominee for Lender and Lenders


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successors and assigns. MERS is the beneficiary under this Security

Instrument. MERS is organized and existing under the laws of

Delaware . . . . Otherwise, MERS has no connection to the loan, promissory

note evidencing it and/or Deed of Trust allegedly securing it.

163. MERS is, simply stated and pursuant to its name, a registration system

through which promissory notes and the holders thereof may be

identified. MERS did not lend any money to Plaintiff at anytime, nor did

Plaintiff receive any monies or other benefit from MERS at anytime.

164. At no time, inclusive of the date of the alleged Deed of Appointment of

Substitute Trustee was MERS the holder of the Note, nor was MERS named

as a Trustee or Substitute Trustee, nor was it empowered pursuant to

the Deed of Trust with any power to name and/or designate a substitute

trustee under and pursuant to the terms of the Deed of Trust, nor was MERS

ever vested with the powers of a substitute trustee under the terms of the

Deed of Trust.

165. Accordingly and pursuant to the allegations heretofore set forth, the cause

and/or effect of the Deed of Appointment of Substitute Trustee is

meaningless in its entirety and is, at best, a legal nullity.

166. Plaintiff states that according to the Deed of Trust at paragraph 24,

ONLY THE LENDER has the authority to appoint a substitute trustee. The

Deed of Trust at paragraph 24 states as follows;

Lender at its option, may from time to time remove Trustee andappoint a successor trustee to any trustee appointedhereunder.........by applicable law.


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167. The appointment of the substitute trustee raises questions as such

appointment was not done as per paragraph 24 of the Deed of Trust.

Neither Maria Vadney nor Michelle Laster have any authority to appoint the

substitute trustee and execute the deed of appointment of the substitute

trustee. ONLY the LENDER can exercise the option of appointing a substitute

trustee. Neither Ms. Vadney nor Ms. Laster, lent any money; therefore, it

does not fit the definition of a lender, so neither are authorized to execute

the Deed of appointment of successor trustee. Therefore, this appointment

is NOT VALID and therefore, the acts of the substitute trustees including

foreclosure sale conducted by the substitute trustee, is also NOT VALID.

168. Also, Plaintiff has sent the following documents to the named Defendants:

On Feb.17, 2010, Plaintiff sent an authorized Qualified Written

Request (QWR) as per RESPA 12 USC 2605 (e) to the Defendants

HSBC and Basset, which said Defendants failed and refused to

answer. (See Exhibit F)

On April 02,2010,Plaintiff sent a Final Notice of

Default/Dishonor/Rescission and Demand letter to HSBC, via notary

service.

169. After the passage of 20 days (in addition to 5 days, as the Rescission and

Demand Letter was sent by U.S. Mail) Defendant had not produced the

requested document to Plaintiff or contacted Plaintiff to state that the

document is available for inspection and copying.

170. As Defendant HSVBC has failed to act in timely manner upon receipt of

the Rescission and Demand letter, it is noncompliant with federal law and


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has given rise to a claim against itself.

171. Rescission is self enforcing and it automatically extinguishes the

lien and the liability. The statute and regulation specify that the

security interest, promissory note or lien arising by operation of

law on property becomes automatically void (15 U.S.C 1635 (b); Z

226.15 (d) (1), 226.23 (d) (1).

172. The Defendants interest in the property is automatically

negated regardless of its status and whether or not it was recorded

or perfected. Official staff commentary 226.15 (d) (1)-1,226.23

(d) (1) 1.

173. Since the rescission process was intended to be self-enforcing, failure to

comply with the rescission obligation subject Defendant to potential liability

as noncompliance is a violation of the RESPA which gives rise to a claim for

actual and statutory damages under 15 U.S.C 1640.

174. The statute and Regulation Z state that if creditor disputes the consumers

right to rescind, it should file a declaratory judgment action within the

twenty days after receiving the rescission notice, before its deadline to

return the consumers money or property and record the termination of its

security interest (15 USC 1625(b)). Once the lender receives the notice, the

statute and Regulation Z mandate 3 steps to be followed.

a. By operation of law, the security interest and promissory note

automatically become void and the consumer is relieved of any

obligation to pay any finance or other charges (15 USC 1635(b);

Reg. Z-226.15(d)(1),226.23(d)(1). See Official Staff Commentary


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226.23(d)(2) -1.

b. Since Plaintiff has legally rescinded the loan, the supposed mortgage

holder, HSBC must return any money, including that which may have

been passed on to a third party, such as a broker or an appraiser and to

take any action necessary to reflect the termination of the security

interest within 20 calendar days of receiving the rescission notice (a term

which has long since expired).

c. The Defendant must take any necessary or appropriate action

to reflect the fact that the security interest was automatically

terminated by the rescission within 20 days of the Defendants

receipt of the rescission notice(15 USC 1635(b); Reg. Z-226.15(d)(2),

226.23(d)(2).

Non-compliance is a violation of the act which gives rise to a claim

for actual and statutory damages under 15 USC

1640..

175. Plaintiff requests the Honorable Court to order the Defendants to file

documents canceling the documents of the record and to issue

judgment for damages and refunds as the statute and regulation

specify that the security interest, promissory note or lien arising of

operation of law on property becomes automatically void.

176. Also, Defendants HSBC and Bierman & Geesing are to take any necessary

or appropriate action to reflect the fact that the security interest was

automatically terminated by the rescission (15 USC 1635(b); Reg.

Z-226.15(d)(2),226.23(d)(2).


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177. Plaintiff also requests the honorable Court to compel HSBC to produce an

S3 registration statement which will indicate that Defendants are not the

real parties in interest.

178. Plaintiffhas a claim in recoupment under 3-305 of the UCC, which

Plaintiff will exercise at his option, if Defendant HSBC does not credit

Plaintiffs account. The 1099-OID will identify who the principal is from,

which capital and interest were taken, and who the recipient or who the

payer of the funds are, and who is holding the account in escrow and

unadjusted.

179. WHEREFORE Plaintiff respectfully requests the Court to declare the DOT

currently encumbering the Property to be null and void and to order such

DOT and all related filings to be removed from the land records.

IV. PRAYER FOR RELIEF

WHEREFORE, having set forth numerous legally sufficient causes of action against

the Defendants, Plaintiff prays for:

a. The entry of Final Judgment against all Defendants jointly and

severally in an amount not yet quantified but to be proven at trial, for

violations and damages caused by of tort, breach of contract, fraud,

misrepresentation, violation of TILA, Usury statues, other consumer

protection acts and such other amounts to be proven at trial;

b. Award costs, interest and attorneys fees;

c. Award statutory damages;

d. All undisclosed profits and fees and all money paid at closing;

e. Award compensatory damages and special damages to be


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established at trial;

f. That the Court find that the transactions which are the subject of thisaction are illegal and are deemed void;

g. That the foreclosure which was instituted be deemed and declared

illegal and void;

h. That further proceedings in connection with the foreclosure beenjoined;

i. That the Court order Defendants to remove the fraudulent negativereports from all credit bureau agencies;

j. That a Quiet Title action be sustained; and,

k. For any other and further relief which is just and proper.

PRAYER FOR PUNITIVE RELIEF

WHEREFORE, Plaintiff respectfully prays that this Court award relief for

punitive damages in the sum of $5,000,000.

PRAYER FOR INJUNCTIVE RELIEF

WHEREFORE, Plaintiff seeks an injunction prohibiting the Defendants from

any action which would result in Plaintiff being ousted from the disputed Property.

By virtue of the foregoing, Defendants are not holders of the disputed

Promissory note and therefore are not entitled to enforce the same, and by further

virtue that HSBC is not the Lender, Beneficiary, nor party entitled to enforce

the terms of the pertinent Deed of Trust, no Defendants, nor anyone acting on

their behalves, has or had a right to issue a notice of default, accelerate the

balance due under the pertinent note and/or foreclose and/or commence and/or

attempt to foreclose on the disputed property.

Plaintiff is threatened with immediate, irreparable harm if any of the


43/47

Defendants are permitted to continue to lay claim to Plaintiffs property and

commence any action to deprive Plaintiff of title or possession of the property. If

Defendants are not stopped from commencing and/or pursuing any action to

further their unlawful claims to an interest in the property, Plaintiff could and

would thereby lose his home, a loss Plaintiff should not be permitted to suffer.

Even if any of the Defendants can, at some point, prove that they are acting

under claim of right and with rightful authority, any injuries each might suffer by

the court granting a restraining order and preliminary injunction against them

would be substantially less harmful than those which Plaintiff would suffer by the

loss of his home. Accordingly, Plaintiff is entitled to a restraining order and

preliminary and permanent injunction against all Defendants in this case,

prohibiting them from issuing a notice of default, accelerating the balance due

under the pertinent note and/or foreclosing and/or commencing and/or attempting

to foreclose.

By the actions above and allegations set forth herein, Plaintiff has a strong

likelihood of prevailing on the merits of this case. Plaintiff requests that this Court

grant a restraining order and preliminary and permanent injunction precluding

Defendants from engaging in the wrongful conduct identified herein in the future.

RIGHT TO AMEND

Plaintiff hereby reserves the right to amend this lawsuit, including additional

facts and/or causes of action as more information becomes available.

JURY TRIAL

Plaintiff continues to request a jury trial of this action.

CERTIFICATE OF SERVICE


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Below are the footnotes, but they did not copy exactly in the samelocation:

[1] This entire notice was recorded in the public record of Jefferson County, WV asthe court in Virginia refused to accept the filing.[2] Also in the public record of Jefferson County, WV.

[3] Plaintiff provided Defendants HSBC and Basset a second opportunity to curethe defects in their response or non-responses by using a Notary to present thenotices. (See Exhibit I).[4]Making a photocopy of the negotiable instrument and presenting it to Plaintiffas evidence of the debt gives HSBC as much authority to collect on the debt asone would have to purchase items from a store using a photocopy of a $100.00bill.[5] The creditor/Investor receives an instrument which is generically referred to as a Mortgage BackedAsset Certificate/Bond (Certificate/ Bond). The Certificate/Bond incorporates terms by which the

promise to pay interest and principal is made by the issuing SPV and the manager for this in the present

case is HSBC Bank USA, National Association.

[6]The PSA, Exhibit 4.1 of the current 8K report filed before the SEC as per file #333-143751-13 and Accession # 914121-8-213 dated March 06, 2008, by thesecuritization partners is a public record available at www.sec.gov.[7]At minimum, Plaintiffs note should include the following endorsement to show

the proper chain of transfers: HSBS Mortgage CorporationWells Fargo Bank,

N.AWells Fargo Asset Securities CorporationLehman Brothers Special

Financing Inc.Lehman Brothers IncDealersAgentsInvestors. This can befound on the www.sec.govwebsite at the Prospectus Supplement 424(b)5, SEC file# 333-143751-13, Accession # 1193125-8-38785, filed on 02/26/2008 at 4:48PMET). This is also confirmed by examination of the securitization audit performed

and entered into evidence in the Eastern District Court of Virginia in Alexandria,Case: 1:10cv1427.

[8]Under PSAs, for a mortgage note to validly transfer to a mortgage securitization trust, the notemust bear special endorsements evidencing each and every transfer of the note from theoriginator of the loan to the securitization trustee. A note bearing a blank endorsement by theoriginator, or by another entity further along in the chain of transfer, does not satisfy therequirements of certain PSAs, and thus that the transfer of such a note into a trust is rendered voidby New York Estate, Powers and Trust Law 7-2.4.
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ARTICLE II, CONVEYANCE OF MORTGAGE LOANS; REPRESENTATIONS AND WARRANTIESPSA Section 2.01 (b)(i) states:

the original Mortgage Note bearing all intervening endorsements showing a complete chain ofendorsement from the originator to the last endorsee, endorsed "Pay to the order of _____________,without recourseand signed (which may be by facsimile signature) in the name of the last

endorsee by an authorized officer. To the extent that there is no room on the face of the MortgageNotes for endorsements, the endorsement may be contained on an allonge, unless state law doesnot so allow and the Trustee is so advised in writing by the applicable Original Loan Seller or theDepositor that state law does not so allow

[9] Real Estate Mortgage Investment Conduits, or "REMICs," (sometimes also called Collateralizedmortgage obligations) are a type ofspecial purpose vehicle used for the pooling ofmortgage loans and

issuance ofmortgage-backed securities. Such entities are defined under the United StatesInternal

Revenue Code (Tax Reform Act of 1986), and are the typical vehicle for the securitization of

residential mortgages.

Though REMICs provide relief from entity-level taxation, their allowable activities are limited toholding a fixed pool of mortgages and distributing payments currently to investors. A REMIC hassome freedom to substitute qualified mortgages, declare bankruptcy, deal with foreclosures and

defaults, dispose of and substitute defunct mortgages, prevent defaults on regular interests, prepay

regular interests when the costs exceed the value of maintaining those interests, and undergo a qualifiedliquidation, in which the REMIC has 90 days to sell its assets and distribute cash to its holders. All

other transactions are considered to be prohibited activities and are subject to a penalty tax of 100%, as

are all non-qualifying contributions.

[10]Maiden Lane III LLC (a Special Purpose Vehicle consolidated by the Federal Reserve Bank ofNew York) (the "LLC") is a Delaware limited liability company that was formed on October 14, 2008

to acquire Asset-Backed Security Collateralized Debt Obligations ("ABS CDOs") from certain third-party counterparties(Banks) of AIG Financial Products Corp. ("AIGFP"). In connection with theacquisitions, the third-party counter parties (Banks) agreed to terminate their related creditderivative contracts with AIGFP.1MBS means securities backed by specific mortgage loans and the payments on which are tied toor derived from the cash flows produced from underlying mortgage loans.

2CMO refers to series of securities created by dividing the cash flows from a pool of mortgageloans among various serially maturing tranches of securities. Typically, CMOs receive the taxclassification applicable to real estate mortgage investment conduits (REMIC) under U.S. tax laws.

3A SPE is a legal entity formed for a limited purpose; in securitization, it serves to hold legal rights

to the assets transferred from the originator. In the U.S., SPEs facilitate securitization by enablingthe use of bankruptcy-remote structures (a technique used for isolating assets or loans from thebankruptcy risk of the company financing or selling the assets).

[11]The whole purpose of MBSs was for different investors to have their different risk appetitessatiated with different bonds. Some bond customers wanted super-safe bonds with low returns;some others wanted riskier bonds with therefore higher rates of return. Therefore, as everyoneknows, the loans were bundled into REMICs (Real-Estate Mortgage Investment Conduits, aspecial vehicle designed to hold the loans for tax purposes), and then sliced & dicedsplit upand put into tranches, according to their likelihood of default, their interest rates, and other
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characteristics. This slicing and dicing created senior tranches, where the loans would likely bepaid in full. And it also created junior tranches, where the loans might well default. (A wholerange of tranches were created, of course, but for purposes of this discussion, we can ignore allthose countless other variations.) These various tranches were sold to different investors,according to their risk appetite. Thats why some of the MBS bonds were rated as safe as Treasurybonds, and others were rated by the ratings agencies as risky as junk bonds. When an MBS wasfirst created, all the mortgages were pristinenone had defaulted yet, because they were allbrand new loans. Statistically, some would default and some others would be paid back in fullbut

which ones specificallywould default? No one knew, of course. If I toss a coin 1,000 times,statistically, 500 tosses the coin will land headsbut what will the result be of, say, the 723rd tossspecifically?

[12] The note homebuyer signs is the actual IOU. In order for the mortgage note to be sold or

transferred to someone else (and therefore turned into a Mortgage Backed Security), this document hasto be physically endorsed to the next person. All of these signatures on the note are called the chain of

title. Without a clear chain of title, the person who took out the mortgage no longer knows who to

pay. No assignment of the chain of transfer were recorded in the Fairfax County Land Records.

[13]A party cannot foreclose on a mortgage without having title, giving it standing to bring theaction. (SeeKluge v. Fugazy, 145 AD2d 537, 538 (2nd Dept 1988 ), holding that a foreclosure of a

mortgage may not be brought by one who has no title to it and absent transfer of the debt, theassignment of the mortgage is a nullity. Katz v. East-Ville Realty Co., 249 AD2d 243 (1st Dept1998), holding that [p]plaintiffs attempt to foreclose upon amortgage in which he had no legal or equitable interest was without foundation in law or fact

and Non-judicial sale is NOT an available election for a securitized loan

[14]In Carpenter v. Longan, the U.S. Supreme Court stated The note and mortgage areinseparable; the former as essential, the latter as an incident. An assignment of the notecarries the mortgage with it, while an assignment of the latter alone is a nullity.Carpenter v.Longan, 16 Wall. 271, 83 U.S. 271, 274, 21 L.Ed. 313 (1872). Assigning the mortgageinstrument was invalid as it held no beneficial interest in the mortgage instrument for tworeasons: 1) a security instrument, apart from the promissory note giving rise to the debt has novalue because there is no debt by which it secures payment; and 2) MERS had no beneficial

interest in the mortgage instrument that it could assign. An assignment of the note carriesthemortgage with it, while an assignment of the latter alone is a nullity. The mortgage loanbecomes ineffectual when the note holder did not also hold the deed of trust. Bellistri v.Ocwen Loan Servicing, LLC, 284 S.W.3d 619, 623 (Mo. App. 2009)

[15]The practical effect of splitting the deed of trust from the promissory note is to make itimpossible for the holder of the note to foreclose, without the agency relationship, the personholding only the note lacks the power to foreclose in the event of default. The person holdingonly the deed of trust will never experience default because only the holder of the note isentitled to payment of the underlying obligation. The mortgage loan becomes ineffectualwhen the note holder did not also hold the deed of trust. Bellistri v. Ocwen Loan Servicing,

LLC, 284 S.W.3d 619, 623 (Mo. App. 2009). According to Restatement 3rd, when the note andDOT are split, they can never be put back together again.

Courts around the country started to recognize that MERS had no ownership in the notes andcould not transfer an interest in a mortgage upon which foreclosure could be based. InLandmark National Bank v. Kesler, the Kansas Supreme Court extensively analyzed the positionof MERS in relation to the, that it did not lend money, did not extend credit, is not owed anymoney by the mortgage debtors, did not receive any payments from the borrower, suffered nodirect, ascertainable monetary loss as a consequence of the litigation and consequently, hasno constitutionally protected interest in the mortgage loan. Landmark National Bank v. Kesler,216 P.3D 158 (Kansas, 2009).

In LaSalle Bank NA v. Lamy, the court denied a foreclosure action by an assignee of MERS on
https://mail.google.com/mail/html/compose/static_files/blank_quirks.html#_ftnref15https://mail.google.com/mail/html/compose/static_files/blank_quirks.html#_ftnref16https://mail.google.com/mail/html/compose/static_files/blank_quirks.html#_ftnref16http://livinglies.wordpress.com/2010/05/28/non-judicial-sale-is-not-an-available-election-for-a-securitized-loan/http://livinglies.wordpress.com/2010/05/28/non-judicial-sale-is-not-an-available-election-for-a-securitized-loan/http://livinglies.wordpress.com/2010/05/28/non-judicial-sale-is-not-an-available-election-for-a-securitized-loan/https://mail.google.com/mail/html/compose/static_files/blank_quirks.html#_ftnref17https://mail.google.com/mail/html/compose/static_files/blank_quirks.html#_ftnref17https://mail.google.com/mail/html/compose/static_files/blank_quirks.html#_ftnref18https://mail.google.com/mail/html/compose/static_files/blank_quirks.html#_ftnref18https://mail.google.com/mail/html/compose/static_files/blank_quirks.html#_ftnref15https://mail.google.com/mail/html/compose/static_files/blank_quirks.html#_ftnref16http://livinglies.wordpress.com/2010/05/28/non-judicial-sale-is-not-an-available-election-for-a-securitized-loan/https://mail.google.com/mail/html/compose/static_files/blank_quirks.html#_ftnref17https://mail.google.com/mail/html/compose/static_files/blank_quirks.html#_ftnref18


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the grounds that MERS itself had no ownership interest in the underlying note and mortgage.LaSalle Bank NA v. Lamy, 824 N.Y.S.2d 769 (N.Y. Supp. 2006).

In the case In re Mitchell, the court found that MERS has no ownership interest in thepromissory note. The court found that though MERS attempts to make it appear as though itis a beneficiary of the mortgage, it in fact is not a beneficiary. The Court stated But it isobvious from the MERS' "Terms and Conditions that MERS is not a beneficiary as it has norights whatsoever to any payments, to any servicing rights, or to any of the properties secured

by the loans. In re Mitchell, Case No. BK-S-07-16226-LBR (Bankr.Nev., 2009),

[16]Maiden Lane III LLC (a Special Purpose Ve

Jeff Brown Amended Complaint 2

Documents

Transcript of Jeff Brown Amended Complaint 2