Washington v Wells Fargo, Bank of America

8/8/2019 Washington v Wells Fargo, Bank of America

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Firm No.32513IN THE cIRcuIT couRT oF cooK couNTY, ILLTNOISCHANCERY DIVISION

DAVID L. WASHINGTON,individually, and on behalf of allothers similarly situated,Plaintiffs, case*.0CH49?26

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WELLS FARGO BANK, N.A., AS TRUSTEEFOR OPTION ONE MORTGAGE LOANTRUST 2OO2_A, SSET-BACKED CERT-IFICATES, SERIES 2OO2-A,ASSIGNEEOF OPTION ONE MORTGAGE CORP-ORATION; WELLS FARGO BANK, N.A.;BANK OF AMERICA, N.A.;COUNTRYWIDEHOME LOANS, NC.;TCF NATIONAL BANK;INDYMAC FEDERAL BANK; and,other UNKNOWN DEFENDANTS,

Defendants.COMPLAINT

Plaintiff, David L. Washington, individually and on behalf of all otherssimilarly situated, by and through his attorneys, Edward r. Joyce &Associates,P.c. and Xinos and Xinos, Ltd., complains of Defendant wellsFargo Bank, N.A., as Tr.istee for-option cne Mortgage Loan Trust 2aa2_A,Asset-Backed Certificates, Series 2OO2-A,Assignee of Option one Mortgagecorporation; wells Fargo Bank, N.A.; Bank of America, N.A.; countrywideHome Loans, Inc.; TCF Nationar Bank; IndyMac Federal Bank; and otherUnknown Defendants (hereinafter the ,.Defendants,,)as follows:www

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IIVTROpUCTTON1. This case concerns a misguided plan to change and simplify the

procedure for serving process in Cook County foreclosure actions filed by majorlenders, loan servicersand holders of mortgage liens ("lienholders',)such asDefendants. That plan, hatched by those lienholders, and presented to thepresiding judge of the Chancery Division of the Circuit Court of Cook County("presiding udge"), went awry because it failed to respect the constitutionallyrequired separation of powers between the Illinois legislature and the Illinoisjudiciary.

2. Simply stated, even though any change to the Illinois Code of CivilProcedure--which governs the procedure for serving process in all foreclosureactions--could only be effectedby action of the Illinois legislature, theDefendants convinced the presiding judge to issue an Administrative Orderwhich changed the service procedure solely for Cook County foreclosure cases.This improper change occurred on June 22,2oor. Accordingly: (a)everyforeclosure borrower who was purportedly served with process through thatimproperly changed procedure (such as Plaintiff), and who thereafter did notconsent to the Circuit Court's jurisdiction, was not properly served and shouldnot have been subjected to any court orders at all, including but not limited to,the Judicial sale of their property, (b) the court orders entered followingimproper service are void, and (c) every lienholder who benefitted from suchcourt-imposed relief following improper servicehas been unjustly enriched.www

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3. This action challenges the constitutionality and lawfulness ofDefendant's taking of Plaintiffs (and the class members) property under colorof state law. Through this action, Plaintiff--on his own behalf and on behalf ofal l other similarly situated foreclosedborrowers--seeksa judgment requiringDefendants who have used the improper procedure to cause the property takenfrom the Class to be deededback to Plaintiff and other class members.

THE PARTIES4. David L. Washington ("Plaintiff') is a resident of Cook County,

Illinois, who borrowed money from option one Mortgage corporation topurchase a home in Broadview, Illinois.

5. Defendant Wells Fargo Bank, N.A. (hereinafter "Wells Fargo,,)claimed (in the foreclosure lawsuit it initiated against Washington) to be theTrustee for option one Mortgage Loan Trust 2OO2-A,Asset-Backed CertificatesSeries 2oO2-A, Assigneeof Option One Mortgage Corporation. Wells Fargo isbeing sued both individually and in its Trustee capacity for (a) the Trust itidentified in its foreclosure lawsuit against Washington, and (b) other unknownTrusts for which it serves as Trustee, to the extent it filed foreclosure actions inthe circuit court of cook count5r, Illinois and used improper serviceprocedures described herein. Wells Fargo regularly conducts business in CookCount5r, llinois.

6. Defendants Bank of America, N.A. (,,Bankof America',),countqrwide Home Loans, Inc. ("countrywide"), TcF National Bank ("TcF,),and IndyMac Federal Bank ("IndyMac") are all banks who have used thewww

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improper service procedure described herein to purportediy serve borrowers inforeclosure actions filed in the Circuit Court of Cook County, Illinois. Togetherwith Wells Fargo, these named Defendants comprise a substantial portion of al lforeclosure actions in Cook Count5r, llinois.

7 The Unknown Defendants are residents of unknown states, whichmay or may not include Illinois, who have used improper serviceprocedures asdescribed herein in Cook County, Illinois, to purportedty serve borrowers inforeclosure actions.

8. Because this action attacks judgments entered by the CircuitCourt of Cook Count5r,no federal court has jurisdiction over this action(pursuant to the so-calredRooker-Feldman doctrine.)

F.ACTS9. Il l inois Statute 735 ILCS 5/2-202 ("Section2O2") dentif iesthe

methods for serving process in Illinois lawsuits. Section 2o2 requiresprocess toeither either (a) be served by the sheriff, or (b) on ,,motion,,,by a special processserver appointed by the court. A "motion" cannot be filed until after an actionhas been initiated, and thus a special process server cannot be appointed inany particular case until after that case is actually filed.

10' Sometime beforeJune 22,2OO7, Defendants (either directly orthrough their agents) met with the presiding judge of the circuit court of cookCounty's Chancery Division and expressedconcern about: (a) the Cook CountySheriff's ability to effect service in mortgage foreclosure actionsl; and, (b) the'Typically, al l Circuit Court of cook Counfy actionsareplaced irst with the sheriff for service.www

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length of time it was taking the Circuit Court to process motions forappointment of Special ProcessServers.Plaintiff's counsel attempted to learnmore about such meetings by contacting the Circuit Court of Cook Count5r,which declined to provide any information. Plaintilfs counsel also contactedthe authors of a recent Bar Journal article who cited to something publishedand presented by the presiding judge, but those authors claimed not to havethe source material they cited in their published work. The presiding judge andthe Circuit Court declined to provide the source material. The Circuit Court isexempt from Freedom of Information Act requests. Copley press, Inc. u.Administratiue office of the Courts, 27 r rll.App.3d 568 (l"t Dist. 199s), appealdenied, L63IIl.2d 551 (1995).When foreclosure litigants began challengingservice in cases where the new procedure in the Administrative Order wasused, the foreclosure udges met and worked out an agreed-upon response tothe issue being raised.

1 . Because serviceof process in Cook County foreclosure actions isgoverned by State statute, if Defendants wanted to change the procedure, theywere required to seek that change from the Illinois General Assembly.

12. In order to avoid the uncertainties and delays associated with thelegislative amendment process, Defendants conspired to convince the presidingjudge to issue an Administrative Order circumventing the lllinois servicestatute by changing the service procedure for cases filed in the Circuit Court ofCook Count5r,Chancery Division's foreclosure section.www

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13. On June 22,2OO7, the presiding udge entered GeneralAdministrative Order No. 2007-03 (the "Administrative Order".) A copy of theAdministrative Order is attached at Tab 1. The Administrative Order entered bythe presiding judge exceededher authority and constituted unconstitutionaljudicial overreach.

14. The Administrative Order purports to grant Defendants' agentspracticing in the Chancery foreclosure section the authority to request (beforeany case is filed) blanket appointments of Special Process Servers lasting aquarter of a year. Stated another way, pursuant to the Administrative Order,special process servers are appointed without defendants ever filing a motion ina pending foreclosure action.

15. On July 1, 2008, Wells Fargo filed a mortgage foreclosureactionagainst Plaintiff in the Circuit Court of Cook County, Illinois, which wasassigned Case No. 2008 CH 26152 (the "Mortgage Foreclosure Action").

16. On August l, 2008, Wells Fargo caused to be filed an Affidavit ofSpecial Process Server, wherein it claimed to have personally served Plaintiff bya Special ProcessServer.The Affidavit of Special ProcessServer asserted thathe had been appointed by the Court to serve process in the MortgageForeclosureAction.

17. Wells Fargo never filed any motion in the Mortgage ForeclosureAction to appoint the Special Process Server.

18. Defendant never placed process in the Mortgage ForeclosureActionfor service with the Cook Countv Sheriff.

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19. The Special ProcessServer in the Mortgage Foreclosure Action waspurportedly appointed pursuant to the Administrative Order. The purportedappointment took place before Defendant initiated the Mortgage ForeclosureAction. The purported appointment violated Section 2O2 and was, therefore,ineffective, unlawful and void.

20. On November20, 2OO8,Wells Fargo obtained a Judgment ofForeclosure and Order of Sale against Plaintiff and his property.

2I . Plaintiff's home was offered for sale on May 22, 2OO9.Wells Fargowas the highest bidder.

22. On September 2,2009, Wells Fargo obtained an Order ConfirmingSale.The Order Confirming Sale granted Wells Fargo possession of Plaintifflshome. Wells Fargo further obtained a Judicial Sales Deed for Plaintiff'spropertSr.

CLASS ALLEGATIONS23. Plaintiff brings this action individually and on behalf of a class of

others similarly situated.24. The Class consists of al l persons who satisfy the following criteria:

a. They were defendants in a mortgage foreclosure actioninitiated in the Circuit Court of Cook Counfr, Illincis, on orafter June 22,2OO7;b. They were "served" by a Special ProcessServer who had notbeen appointed upon "motion" in their individual case;c. They did not consent to the court's jurisdiction; and,d. They lost their property through court-imposed relief.www.S

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25. Class members are so numerous that individual joinder of allmembers is impracticable. The Administrative Order has been used in tens ofthousands of casesto purportedly authorize the appointment of SpecialProcessServers.

26. Common questions of law or fact exist as to all class members andpredominate over any questions that affect only individual class members.

27. Plaintiff will fairly and adequately protect the interests of the classin that Plaintiff's claim is typical of those of the class as a whole, and Plaintiffhas no interest which is adverse to the other class members.

28. Plaintiff has retained competent counsel experienced n handlingclass actions. Neither Plaintiff nor his counsel has any interests which mightcause them not to vigorously prosecute this action.

29. Plaintiff's claims are based on the same facts and legal theories asthose of the class members.

30. As more fully described above, Wells Fargo filed the MortgageForeclosure Action which resulted in the taking of Plaintiff's propert5r from him,without due process of law. Defendants filed tens of thousands of similarmortgage foreclosure actions in the Circuit Court of Cook CountSr, llinois,Chancery Division, foreclosure section, which similarly resulted in the taking ofthe Class' propert5rwithout due process of law.

31. As more fully described above, Wells Fargo never filed a motion inthe Mortgage Foreclosure Action to appoint a special process server. WellsFargo never placed process for service with the Sheriff. Defendants similarly

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routinely failed to file motions to appoint special process servers in each oftheir cases, and failed to place process for servicewith the sheriff.

32. Instead, Defendants and their agents routinely utilized and actedupon the Administrative Order for the purported appointment of SpecialProcessServers.

33. Defendants and their agents then used the improper serviceprocedure they had caused to be created in concert with the Circuit Court toexpedite their mortgage foreclosure cases and to take Plaintiff and the Class'property.

34. Defendants use of the procedure they caused to be implementedviolated Section 202. But Defendants: (a)nonethelessused that procedure toexpedite their foreclosure cases and, (b) routinely secured judgments againstPlaintiff and the Class under color of State law, which ultimately resulted inPlaintiff's and the Class'loss of their property.

35. Serviceon Plaintiff and the Class was unlawful and void because itviolated Section 2O2. Consequently, the Circuit Court never had personaljurisdiction over Plaintiff and the Class, and the judgments against Plaintiffand the Class were entered without due process of law and are void.

WHEREFORE, Plaintiff, individually, and on behalf of all others similarlysituated, respectfully requests this Court to:

a. certify the Class described above;b. appoint the named Plaintiff as class representative;c. appoint Edward T. Joyce & Associates, P.C. and Xinosand Xinos, Ltd. as class counsel;www

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d. enter judgment for Plaintiff and the Class againstDefendants for depriving them of their propertywithout due process of law;order Defendants to cause Plaintiff and the Class todeeded their properties back; and,award attorneys'fees, litigation expensesand costs.

Respectfully submitted,DAVID L. WASHINGTON, ndividuallyand on behalf of all others similarlvsituated,

One of his attornevs

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Edward T. JoyceArthur W. AufmannKenneth D. FlaxmanEdward T. Joyce & Associates,P.C.135 S. LaSalleStreet, Suite 22OOChicago, Illinois 60603Telephone (312164I-2600Constantine P. XinosXinos and Xinos, Ltd.134 N LaSalle St , Suite 444Chicago, L 60602-1049Telephone (31,2j263-5167

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Washington v Wells Fargo, Bank of America

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Transcript of Washington v Wells Fargo, Bank of America