2-amended complaint for violation of discharge
TRANSCRIPT
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Vonn F. Smith & Loretta K. Smith, Pro Se524 N. Encina, Visalia, CA 93291559-734-7598
United States Bankruptcy Court
Eastern District of California
In re:Vonn F. Smith and Loretta K. Smith, Pro se, Plaintiffs/Debtors
Plaintiff,
vs.
REGIONS MORTGAGE AS SERVICER FOR HSBC BANK OF USA, NATIONAL ASSOCIATION OF TRUSTEE ON BEHALF OF CITIGROUP SHL1 - 2007, THE LAW OFFICES OF LES ZIEVE AND DOES 1 – 100 INCLUSIVE
Defendants/Creditors
)))))))))))))))))))
Bankruptcy Case No.: 07-10896-A-7Adversary Case No.: 11-01103-A
COMPLAINT 1. OBJECTION TO CLAIM (SECURED
STATUS)2. TILA VIOLATION3. VIOLATION OF 524 DISCHARGE
INJUNCTION 11 U.S.C. § 4. 362 Willful VIOLATION OF
AUTOMATIC STAY5. FRAUDULENT TRANSFER OF
PROPERTY, PENAL CODE SECTION 118-131118
6. CALIFORNIA UNFAIR BUSINESS ACTS AND PRACTICES (Cal. Civ. Code 5 17200, et seq.)
7. CONTEMPT OF COURT COURT MISREPRESENTATION8. INJUNCTIVE RELIEF –
ENFORCEMENT OF STAY
Honorable Whitney Rimel, Dept. ACourtroom 11, 5th Floor
Preliminary Statement
The plaintiffs Vonn F. Smith and Loretta K. Smith institute this action against
the defendants REGIONS MORTGAGE AS SERVICER FOR HSBC BANK OF USA,
NATIONAL ASSOCIATION OF TRUSTEE ON BEHALF OF CITIGROUP SHL1, THE
LAW OFFICES OF LES ZIEVE AND DOES 1 – 100 INCLUSIVE for Multiple Violations
of the 524 Discharge injunction, and Willful Violations of the automatic stay and
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Fraudulent Acts, Contempt of court and deceitful practices and pendant claims
as a result of making a false security interest claim to the court and other acts
as stated in the following complaint.
Jurisdiction
The Jurisdiction of this court is invoked pursuant to 11 U.S.C. § 524(a),
wherein it is alleged that HSBC Bank of USA violated the § 524 discharge
injunction and that sanctions are appropriate in this case. 11 U.S.C. § 524.
Effect of discharge (2) operates as an injunction against the commencement
or continuation of an action, the employment of process, or an act, to collect,
recover or offset any such debt as a personal liability of the debtor, whether or
not discharge of such debt is waived; Under United States code Section 157
we seek to establish the Validity of documents seek to have documents
rescinded that were obtained through fraudulence deceit contempt and that
violated the 524 Discharge injunction. And Section 507 of the Bankruptcy Code,
claims entitled to a security interest. United States code Section 157
Procedures (K) determinations of the validity, extent, or priority of liens; Under
United States code Section 157b2h proceedings to determine, avoid, or recover
fraudulent conveyances; This matter is primarily a core proceeding and
therefore the Bankruptcy Court has jurisdiction to enter a final order. However,
in the event this case is determined to be a non-core preceding then and in that
event the Plaintiff consents to the entry of a final order by the Bankruptcy
Judge. Venue is appropriate in this court pursuant to 28 U.S.C. 5 1409(a).
Parties
The Plaintiffs, VONN FREDERICK SMITH AND LORETTA K. SMITH are
natural persons currently residing at 524 N. Encina Street, Visalia, CA County of
Tulare.
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HSBC BANK OF USA, NATIONAL ASSOCIATION OF TRUSTEE ON BEHALF OF
CITIGROUP SHL1, HSBC BANK AS TRUSTEE FOR CITIBANK GLOBAL MARKETS.
DOES 1 – 100 INCLUSIVE and THE LAW OFFICES OF LES ZIEVE.
If there are other possible defendants as they become identified through
discovery, we will amend complaint to allege complaints specifically against
them.
OBJECTION TO CLAIM (SECURED STATUS)
This objection seeks to reclassify the claim filed by Regions Mortgage
asserting to be secured, priority or administrative claim as a general unsecured
claim and to seek enforcement of the 524 Injunction against Regions Mortgage
as service for HSBC Bank of USA as an unsecured claim.
The objections are explained as follows:
1. Objections to claim asserting “secured status” (“Secured Objection”).
The Secured Objection objects to the claim of Regions Mortgage for the
amount of $168,000 filed in the US Bankruptcy Courts Eastern District on June
7th , 2007. The claim seeks to be treated as a secured claim secured by assets
of Quickloan Funding and Mers Corp. Regions has never had secured or
assigned relationship with either company regarding the property located at
524 N. Encina and falsified recorded documents in order to fraudulently transfer
and assign the property to HSBC Bank of USA property located at 524 N. Encina
Street. A Fraudulent trail of paperwork exists.
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Their claim is not entitled to secured status as the loan has never been an
assignment to Regions Mortgage by the Lender Quickloan Funding or its
representatives or Nominees. Regions has never been assigned as Servicer for
HSBC Bank of USA, yet takes the role as shown in recorded documents.
Regions Mortgage never was granted a security interest in the property located
at 524 N. Encina, and no such security interest exists, nor has it ever perfected
under applicable law.
2. Objections to general claims asserting a “priority status” (“Priority
Objection”).
The Priority Objection asserts that there is no basis in the proofs of claim
or in the books
and County recorders Office in Tulare County where the property exist that
supports a priority status
for the claim. Specifically, Section 507 of the Bankruptcy Code establishes ten
types of claims that are entitled to priority status. Regions Mortgage who
claims to be the present Servicer for HSBC Bank of USA has not produced any
evidence or documentation that they fell within any of those ten
categories.
Therefore, the objection to Regions Mortgage claim based the above
objections; the claim is subject to being disallowed as filed and recategorized as
a general unsecured claim. The plaintiffs ask the court to deem Regions
Mortgage claim as an unsecured claim.
ACTS IN VIOLATION OF THE AUTOMATICSTAY ARE VOID OR AVOIDABLE
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The Plaintiffs filed a chapter 7 bankruptcy March 29, 2007. On June 7, 2007
Regions Mortgage Mortgage Employee “Khristi Matheny” posing as the
Assistant Vice President of Regions bank signed and submitted a claim for the
amount of $168,000 claiming Regions Bank was a secured Lender, this was not
true. I have evidence that shows that Khristi Matheny is a supply clerk for the
Bank through schedule A FEC Form 3X. She also signed fraudulent documents
claiming to be a representative for MERS when she fraudulently assigned The
Law Offices of Les Zieve as Trustee. She also assigned all of our interest and
MERS interest over to HSBC Bank of USA giving them an assignment of Deed of
Trust. At this point there was no foreclosure and Les Zieve signed false
documents providing HSBC with a Deed. As an unsecured creditor all actions
from the first billing in November 2007 – present day were either violation of
the stay and violations of the discharge injunction as HSBC never had a relief
from stay. .
The Ninth Circuit has stated generally that violations of the automatic stay
are "void". See, e.g., In re Shamblin, 890 F.2d 123, 125 (9th Cir.1989) ("Judicial
proceedings in violation of [the] automatic stay are void."); In re Stringer, 847
F.2d 549, 551 (9th Cir.1988) ("Any proceedings in violation of the automatic
stay in bankruptcy are void."). Although Shamblin and Stringer suggest that
violations of the automatic stay are void and not merely voidable, the
void/voidable distinction was not dispositive in those cases, and the Ninth
Circuit has not directly addressed the precise issue presented in this appeal.
See Shamblin, 890 F.2d at 124-26 (debtor affirmatively challenged and litigated
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potential automatic stay violation); Stringer, 847 F.2d at 550 (same). Neither
HSBC Bank of USA or Regions Bank, aka: Regions Financial Corp was never
assigned by our Lender Quickloan Funding or MERS nominee for the lender at
anytime. Foreclosures in California can be set aside. The power of sale by non
judicial means is contained in the civil code 2932. In order to be valid the
assignment must be recorded California civil code 2932.5.. They rely on the
MERS agency agreement to protect them but under California law they are
wrong. September 24, 2010 Deputy Attorney General Benjamin Diehl for
Edmund G. Brown Attorney General demanded that Ally Financial, Inc.
demonstrate immediately that it conducts foreclosures in compliance with
California Civil Code, section 2923.5 or, if it cannot, halt all foreclosures in
California until it can. It is demanded by the California Attorney General that
the Statutory Laws be complied with (See Letter Sept 24). In 2008, the
California Legislature enacted Civil Code section 2923.5. That statute requires,
before a notice of default may be filed, that a lender contact the borrower in
person or by telephone to “assess” the borrower’s financial situation and to
“explore” options for the borrower to prevent foreclosure. In Mabry v. Superior
Court (June 2, 2010) 185 Cal.App.4th 208, the Court of Appeal for the Fourth
Appellate District addressed a case where plaintiff borrowers brought an action
that requested a restraining order to prevent a foreclosure sale based on the
lender’s alleged failure to comply with section 2923.5. The trial court denied
plaintiffs’ request on the grounds of no private right of enforcement and federal
preemption. The Court of Appeal reversed, and disagreeing with the trial court
on both grounds.
VIOLATION OF THE AUTOMATIC STAY SECTION 362
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The MERS assignment to HSBC Bank of USA was executed after the Petition
in this case was filed and was therefore a violation of the automatic stay and
Section 362. Since Regions, MERS and HSBC attempted to perfect a security
interest post petition. The hearing for Relief from stay by MERS was in
November 2007 and the assignment and transfer of all beneficial interest of
MERS to HSBC was in August 2009 and therefore unsecured. Regions Mortgage
attempted to perfect a security interest to HSBC Bank of USA fraudulently after
the Bankruptcy petition was filed and discharged on August 28, 2007.
Accordingly, they violated the automatic stay by creating false documents
perfecting HSBC’s interest in the mortgage/security agreement after the filing
of the petition , which is a clear violation of the automatic stay provided by
Section 362. In effect the purported assignment from MERS to HSBC on April
30, 2009 was an attempt to perfect a security interest post automatic stay in
violation of Section 362(d) only a party interest” may move to lift the automatic
stay. This should be read as a party in interest as of the date of the petition
and the assignment of MERS two years after the petition was filed in this case
was an impermissible attempt to change parties in interest post petition. HSBC BANK OF USA DID NOT HAVE RELIEF
FROM STAY TO START FORCLOSURE
HSBC bank of USA’s foreclosure was based on fraud and perjury to the
Federal courts and fraudulent documents exists and were filed with the Tulare
County Recorders office while a stay order was in effect. HSBC did not have a
relief from stay to foreclose and is in violation of the discharge injunction as well
as an unsecured creditor they have demanded tender, although it was never
rightfully due to them. MERS does not assign Mortgages or Notes without
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power of attorney and an assignment to them first being recorded at the cities
local county Clerk and Recorders office. The deed provides that the beneficiary
or holder of the note assign a trustee. A Regions employee fraudulently
assigned The Law Offices of Les Zieve on the same day the fraudulently
assigned the deed to HSBC without a valid Assignment from Quick loan funding
or Mers. The Assignment of Les Zieve was moot through forged documents
assigned all their interest to HSBC Bank of USA. Les Zieve could no longer at
that point act as trustee for Mers. In order for there to be a valid sale HSBC
would have also had to assign Les Zieve as Trustee.
THE AUTOMATIC STAY
The automatic stay triggered by the filing of a bankruptcy petition is one of the most important
features of U.S. bankruptcy law. It provides debtors with a "breathing spell" from creditor collection
efforts and protects creditors from piecemeal dismantling of the debtor's assets by discouraging a
"race to the courthouse." The Bankruptcy Code also contains a mechanism--section 362(k)--to
sanction parties who ignore the statutory injunction if their conduct amounts to a willful violation
and another "individual" is injured as a consequence. However, courts disagree concerning precisely
which stakeholders in a bankruptcy case (e.g., individual debtors, corporate debtors, trustees, and/or
creditors) should have standing to invoke the remedies set forth in section 362(k). The Fifth Circuit
Court of Appeals recently considered this question as a matter of first impression. In St. Paul Fire &
Marine Ins. Co. v. Labuzan, the court ruled that a creditor has standing to seek an award of damages
under section 362(k), provided that its claim is direct rather than derivative.
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The Smith’s have evidence of wrongful foreclosure. Our hope is the US
Trustee would reclaim the property as the deed is void or voidable as it does
not Comply with California or Federal Statutes of Foreclosure.
The foreclosure was procedurally defective and in violation of the 524 Discharge
Injunction.
a HSBC was never a secured lender, therefore the debt was
dischargeable and discharged.
b. The nature of the foreclosure was fraudulent.
c. There was no endorsed note, only a copy of the note and no
allonge attached from Quickloan funding giving authorization.
d. There is no power of attorney to sign for MERS given to Khristi
Matheny to sign for MERS.
The alleged foreclosure of 6/4/09 could never have taken place without fraud.
In MERS v. Nebraska Banking Mers argued that is does not acquire mortgage
loans and its therefore not a mortgage bank under 45-702(6) because it only
hold legal title to members; mortgages in a nominee capacity and is
contractually prohibited from exercising any rights with respect to the
mortgages (ie, foreclosure) without the authorization of the members. Further
MERS argues that it does not own the promissory notes secured by the
mortgages and has no right to payment made on the notes. MERS explains that
it merely “immobilized the mortgage lien while transfers of the promissory
notes and servicing right continue to occur.”
8. The transfer is invalid the Trust Deed is void or voidable.
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a. The instant foreclosure was based on fraudulent documents.
b. The Law Offices of Les Zieve are not hired by HSBC but by
Regions Mortgage who has no interest in the loan whatsoever.
d. Regions Mortgage through phony documents perpetrated this fraud
from start to finish, this can be verified by calling their number, entering the
fraudulent loan number and putting in the last 5 digits of Loretta K. Smith social
security number. Regions Mortgage claimed to be assigned by HSBC.
The Smiths have equity in the property described above and such
property is necessary to an effective reorganization as explained in the body of
this document.
HSBC Bank of USA was not the foreclosing Beneficiary on any notices.
The foreclosure is defective and void HSBC fraudulently presented at an
unlawful detainer trial of a Trustee’s Deed Upon Sale dated June 4th, 2009, that
states: “The Grantee Herein WAS the foreclosing beneficiary” and “the amount
paid by the Grantee was $78,750.00”, yet there was no money exchanged and
no reconvey (See Trustee’s Deed ). This is fraudulent, as they were not the
foreclosing beneficiary, nor did they have any beneficial interest at the time of
any previous notices of default by another named lender and beneficiary. Nor
at the time of the notice to set sale on June 4th, 2008 by another lender. HSBC
was not once mentioned in an adversary proceeding that lasted 1 year as
having any beneficial interest. Regions claimed to have nothing to do with
Quickloan Funding our Lender and claimed they were working for MERS and
that MERS had a relief from stay applied to them. We later found out through
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their testimony on court documents and County Recorder Records that Regions
Bank never had been assigned by Quickloan Funding or MERS. It was all phony
and made up to defraud us and the Courts. .
The true facts are now revealed that Regions Bank Lied to the court,
pretended to be Mers and created fraudulent documents. Khristi Matheny a
Regions Employee falsely stated she was a MERS, employee with no power of
attorney to do so. (See Trustees Deed and Assignment of Deed of Trust
recorded on the same day) The notices of Default are issued stating Quick Loan
Funding was the lender not HSBC. ( See attached Notices of Default filed on
January 18, 2008 and then again on February 15, 2008) They read as follows:
“Notice is hereby given : That the LAW OFFICES OF LES ZIEVE is either
the original trustee, the duly appointed substitute trustee, or acting as agent for
the trustee or beneficiary under a Deed of Trust dated: 9/25/2006 executed by
VONN FREDERICK SMITH AND LORETTA K. SMITH , HUSBAND AND WIFE AS
JOINT TENANTS, as Trustor, to secure certain obligations in favor of QUICK
LOAN FUNDING AS LENDER, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS,
INC as beneficiary, recorded 10/2/2006 , as instrument No 2006-0101540 in
Book, page, of Official Records in the Office of the Recorder of Tulare County, As
more particular described on said Deed of Trust. “
In the above Quick Loan Funding and Mortgage Electronic Registration Systems,
Inc are named as the beneficiaries of interest.
HSBC Bank of USA is not mentioned as having any beneficial interest, because
they had no beneficial interest in the property at the time of any notices or
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default that were made void by the assignment of a new Lender The property
is located at:
524 N. Encina Street, Visalia, CA 93291 aka: The South 55 feet of Lot 7 in
Block 78 of Aughinbaugh’s Addition to the City of Visalia, in the City of Visalia
County of Tulare, State of California, according to the map thereof recorded in
Book 3 Page 48 of Maps, Tulare County Records. Excepting there from the East
8 feet thereof conveyed to the City of Visalia.
HSBC bank of USA, was given an Assignment of Deed of Trust (See
Assignment of Deed of Trust) by Khristi Matheny, a employee of Regions
Mortgage, aka: Regions Financial Corporation (See Evidence Khristi Matheny ),
posing as an employee of Mortgage Electronic Registration Systems Inc., All
beneficial interest of Mortgage Electronic Registration Systems Inc and Quick
Loan Funding was assigned on April 23rd, 2009 as County Recorders
instrument number 2009-0026038 which specifically and unequivocally says:
“For the value Received, the undersigned corporation hereby grants,
assigns and transfers to: HSBC Bank of USA, National Association of trustee on
behalf of the holders of Citigroup Mortgage Loan Trust Series 2007-shl1 all
beneficial interest under that certain Deed of Trust dated: 9/25/2006 executed
by VONN FREDERICK SMITH AND LORETTA K. SMITH, HUSBAND AND WIFE AS
JOINT TENANTS, as trustors, to CHICAGO TITLE COMPANY, as Trustee, and
recorded as Instrument No. 2006-0101540, on 10/2/2006., in Book Page of
Official Records, in the office of the County Recorder of Tulare county, California
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together with the Promissory Note secured by said deed of trust and also all
right accrued or to accrue under said Deed of Trust”
We held title of the property and did not sign power of attorney to give
our interest to HSBC. We did not execute this as the Assignment says. This
was them stealing our property.
Khristi Matheny a Regions Bank Employee (See Attachments), signed and
had recorded through First American Title the Assignment of Deed of Trust
Dated April 23rd and Recorded as county recorders instrument number 2009-
00236038 and recorded fraudulent documents without power of Attorney by
our Lender Quick Loan Funding or an endorsed note.
We can provide proof that Khristi Matheny is not a Mers Employee, but
an employee of Regions Bank who is the ring leader in this farce and made up
false loan documents that do not even reference the loan number of our Loan
Documents. We received a Discharge Injunction and default Judgment against
our Lender Quickloan Funding. in United states bankruptcy court. The debt was
discharged and unsecured to HSBC.
This sale of the note and new assignment voided any notices with regard to
another lender and any prior notices and since. HSBC’s foreclosure is barred by
a discharge injunction the loan amount that was discharged they are in violation
of a discharge injunction. HSBC did not notify us they were our lender nor did
they send us any correspondence or notification. HSBC demanded payment of
60 dollars a day from April 30th 2009 in UD Court thought January 14, 2011 and
this is a violation of the discharge injunction. They did not file any new notices
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of default reflecting their assignment of deed of trust County Recorders Official
Document 2009-0026038 dated April 23, 2010. Nor did they post or send any
notices of default or notice to set sale of property our property.
They violated our civil rights of due process; by denying us the right to redeem HSBC rode
the skirt tales of notices that did not name them as the benefactor. They had no interest in the
property prior to the fraudulent note and Recorded Assignment of Deed of Trust County
Recorders Official Document 2009-0026038 dated April 23, 2010. The fraudulent deed upon
sale does not reflect the assignment of deed of trust to HSBC dated April 30, 2009; therefore it
is invalid or should be declared invalid by the court.
524 DISCHARGE INJUNCTION
The defendants are not secured lenders and the 524 Discharge
injunctions apply to them. This loan was discharged on August 28, 2007. Our
Lender at the time of we filed Bankruptcy was Quickloan Funding. An adversary
proceed was held whereas Regions Mortgage denied being assigned by
Quickloan and claimed to have been assigned by MERS who was named as
nominee on our Assignment of Deed of Trust to Quickloan Funding.
Consequently we were granted a Default Judgment against Quickloan. New
evidence, an audit of County Recorder records show that Regions Mortgage has
never been assigned by Quickloan, Mers nor HSBC Bank of USA and acted on
their own to steal property they never paid for. Prior to an unlawful detainer
action by HSBC Bank of USA the Smith’s were not notified by mail, by phone or
any other means that HSBC Bank was assigned as the lender or foreclosed.
HSBC was fraudulently Assigned on April 30th 2009 and supposedly foreclosed
without notice 35 days later.
Documents were filed during adversary proceedings while we had a re-
opened chapter 7 bankruptcy case and a stay was in effect. Regions Mortgage
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aka: Regions Financial Corporation changed their story through the course of
case management and ultimately convinced the Court that they were assigned
by Mers who is listed as a Beneficiary and Nominee for Our Lender on our
Original Deed of Trust. Since there was never any assignment to Regions
Mortgage by Quickloan Funding or Mers their conduct violated the discharge
injunction.
CAUSE OF ACTION TILA VIOLATION The Helping Families Save Their Homes Act of 2009 (the "Act")
The Helping Families Save Their Homes Act of 2009 (the "Act") includes an
amendment to the Truth in Lending Act that has generated a fair amount of
conversation in mortgage compliance circles.
No Notification of Sale, Transfer or Assignment of the Mortgage Loan.
Section 404 of the Act amends the Truth in Lending Act to require new
creditors that acquire a "mortgage loan" to notify borrowers within 30 days
after the sale or other transfer or assignment of the mortgage loan The
notification must include: the name, address and telephone number of the new
creditor; the date of transfer; how to reach an "agent or party" with authority to
act on behalf of the new creditor; the "location of the place where transfer of
ownership of the debt is recorded" and any other relevant information about the
new creditor. Failure to comply could subject the new creditor or the servicer,
or both, to civil liability under TILA. We never authorized the transfer or
assignment to HSBC nor were we noticed as to any purchase. There has been
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no reconveyance showing that any money was ever paid to Quickloan Funding
or MERS as required by law within 30 days after a sale or transfer of property. The original loan with Quickloan was never consummated, Consummation of the
transaction; 1.Delivery of a proper notice of the right to rescind; OR
2.Delivery of all the material disclosures correctly made (15 U.S.C.A. 3.
226.15(a)(3), 226.23(a)(3)). 1635(a); Regulation Z [12 CFR] §§ § According to
the plain language of the statute and regulation, there is no requirement that
the transaction be consummated; the consummation merely provides a frame
of reference from which the time for rescission may be. Consummation occurs
after the disclosures are received, and the start of the running of the three day
rescission period is delayed until the time of consummation, (FRB Official Staff
Commentary to Regulation Z [12 CFR] There is no question that rescission is
allowed in cases in which 226.23(a)). § the delivery of material disclosures or
the delivery of the required rescission notices never occurred (in fact, it extends
the time to rescind to three years [see, e.g. In re Buckles, 189 B.R. 752
(Bankr.D.Minn.1995), Kocsis v. Pierce, 192 Mich.App. 92, 480 N.W.2d 598
(1991), In re Lombardi, 195 B.R. 569 (Bankr.D.R.I.1996)), so it follows that the
right of rescission should exist in the instant case as well. We did rescind the
loan verbally and in writing, although we did not receive all the monies
promised.
CAUSE OF ACTION FRAUD
The term 'fraud' is generally defined in the law as an intentional
misrepresentation of material existing fact made by one person to another with
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knowledge of its falsity and for the purpose of inducing the other person to act,
and upon which the other person relies with resulting injury or damage. Fraud
may also include an omission or intentional failure to state material facts,
knowledge of which would be necessary to make other statements not
misleading. Regions Mortgage and HSBC Bank of the USA with the purpose
and intent of deceiving the bankruptcy court kept pertinent information secret
and lied to the court. Regions told the court they bought the note, then that
they were assigned by Mers, but this was not true. Regions Mortgage failed to
mention that they were working for HSBC Bank of USA to fraudulently transfer
our property without paying a dime. They had full knowledge of the
bankruptcy and its proceedings yet HSBC did not file a claim. HSBC Bank
fraudulently obtained Deed of Trust through fraudulent documents signed by
Regions Mortgage employees without the proper authorities from our Lender or
Mers. HSBC’s identity was kept hidden in order to defraud the Bankruptcy
court, because neither Regions nor HSBC Bank of USA had a relief from stay.
Our note was secured by a first Deed of Trust to Quickloan Funding on
9/25/2006 not to HSBC Bank of USA and not to Regions Mortgage. HSBC Bank
alleged that it is the “owner and holder” of the Trustee’s Deed upon Sale, but
we contend for a number of reasons that the Deed of trust is void as it was
acquired by fraudulent means. The Plaintiffs can prove that HSBC Bank was not
the actual holder or assignee of the Note at inception of the foreclosure process
and had no power of sale to foreclose.
CAUSE OF ACTION FRAUDULENT TRANSFER OF TITLE
California law states plaintiff must "prove a sale in compliance with the statute
and deed of trust, followed by purchase at such sale " on that phase of the issue
Amended Complaint - 18
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of title. [Cheney v. Trauzettel (1937) 9 Cal.2d 158, 159-160] section 1161a
requires proof that the property was "duly sold in accordance with Section 2924
of the Civil Code.” Title, to the extent required by section 1161a, "not only may,
but must, be tried in such actions."[Kartheiser v. Superior Court (1959) 174
Cal.App.2d 617, 620] The burden of proof is on the purchaser to show the trust
property had been duly sold to him and that his title was duly perfected.
[Crummer v. Whitehead (1964) 230 Cal.App.2d 264, 268]
HSBC was not the party in interest on any of the notices, Quickloan
Funding was. HSBC did not file a claim in Bankruptcy court although they were
notified through Regions Mortgage. Neither Regions nor HSBC were secured
lenders.
INVALID DOCUMENTS MISSIPPI NOTARIES WITH CALIFORNIA JURAT
The notary’s jurat on the Assignment of Deed of Trust and the
Assignment of Les Zieve as Trustee to MERS was not indicative of the standard
jurat required when notarizing for a personal representative. The notary was
not authorized by the California Secretary of state to Notarize under penalty of
perjury in California, which both Notaries with Mississippi seals did. The
Notarized documents appear to be forged or improper. PENAL CODE SECTION
118-131118. (a) Every person who, having taken an oath that he or she will
testify, declare, depose, or certify truly before any competent tribunal, officer,
or person, in any of the cases in which the oath may by law of the State of
California be administered, willfully and contrary to the oath, states as true any
material matter which he or she knows to be false, and every person who
testifies, declares, deposes, or certifies under penalty of perjury in any of the
cases in which the testimony, declarations, depositions, or certification is
Amended Complaint - 19
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permitted by law of the State of California under penalty of perjury and willfully
states as true any material matter which he or she knows to be false, is guilty of
perjury. This subdivision is applicable whether the statement, or the testimony,
declaration, deposition, or certification is made or subscribed within or without
the State of California
We did not as the title holders authorize or give power of attorney to
have our interest transferred nor did we agree at any point.
CONFLICT OF INTEREST
Les Zieve was not authorized to file a notice of default according to Section
California Civil Code Section 2924b (4) A "person authorized to record the notice
of default or the notice of sale shall include an agent for the mortgagee or
beneficiary, an agent of the named trustee, any person designated in an
executed substitution of trustee, or an agent of that substituted trustee. It is a
conflict of interest for Les Zieve to serve as Trustee for Quickloan and MERS and
then assume himself as Trustee for HSBC. It makes for a suspicion that fraud
exists. Les Zieve did not file any defaults that referenced HSBC’s Assignment of
Deed of Trust; therefore no notice of Default was served HSBC was fraudulently
assigned as lender April 2009 and fraudulently foreclosed in June 2009 that time
frame does not fulfill the requirements of section 2924 that represent the 90
days notice or 20 days notice to set sale. HSBC claimed that they had a duly
perfected sale according to 2924 and they did not.
Amended Complaint - 20
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Civil Section Code 2924 states: Not less than three months shall elapse from
the filing of the notice of default .(3) After the lapse of the three months
described in paragraph
(2), the mortgagee, trustee or other person authorized to take the sale shall
give notice of sale, stating the time and place thereof, in the manner and for a
time not less than that set forth in Section 2924f.
Code of Civil procedure Section 1161 a states relationship for a cause of action
in an unlawful detainer. The plaintiff must provide evidence showing the proper
notices of default and of a notice to set sale exists. Foreclosure sale dated June
4, 2009 documents are void or voidable.
The plaintiff must also show proof of proper notices of default and that they
were the owners of the note or the lenders. HSBC BANK OF USA, NATIONAL
ASSOCIATION OF TRUSTEE ON BEHALF OF THE HOLDERS OF CITIGROUP
MORTGAGE LOANTRUST SERIES 2007-SHL1 was not the owner and the holder of
the note prior to any notices.
WHEREFORE, plaintiff respectfully prays for Judgment as follows:
1. Assume Jurisdiction of this case;
2. Award actual and punitive damages to be established at trial pursuant to
15 U.S.C. 1640(a)(1):
3. Award statutory damages in the amount of twice the finance charges in
accordance with 15 U.S.C. 1640 (a)(2). 4
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4. The loan should be voided by the court and all subsequent transactions
reversed or voided.
5. Void Original Note/Lien or note from Quickloan Funding and fraudulent
default notices and transfers made by the Defendants and provide
injunctive relief barring defendants from filing false foreclosure actions.
6. For a judgment that the plaintiff is the owner of the subject property and
that the defendants have no interest in the property adverse to the
Plaintiffs.
7. For restraining order, permanent injunction enjoining all defendants, each
of them, their agents, servants and employees and all persons acting
under and in concern with or for them:
8. For an Order voiding or vacating sale documents, Enforce the discharge
injunction against Regions Bank, HSBC Bank of USA, The Law Offices of
Les Zieve and Does 1-100.
Dated: Monday, June 27,
2011
Vonn Frederick Smith
Loretta K. Smith
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Vonn F. Smith & Loretta K. Smith, Pro Se524 N. Encina, Visalia, CA 93291559-734-7598
United States Bankruptcy Court
Eastern District of California
In re:Vonn F. Smith and Loretta K. Smith, Pro se, Plaintiffs
Plaintiff,
vs.
HSBC BANK OF USA,NATIONAL ASSOCIATION OF TRUSTEE ON BEHALF OF CITIGROUP SHL1 - 2007, HSBC BANK AS TRUSTEE FOR CITIBANK GLOBAL MARKETS, AND DOES 1 – 100 INCLUSIVE
Defendants
))))))))))))))))))
Bankruptcy Case No.: 07-10896-A-7Adversary Case No.: DECLARATION OF:VONN FREDERICK AND LORETTA K. SMITH
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I Vonn F. Smith and Loretta K. Smith, attorneys pro se, are plaintiffs in
the above titled action. I have read the foregoing complaint and know the
contents thereof. The same is true of my knowledge, except as to those
matters which are therein stated on information and belief, and as to those
matters I believe it to be true. I declare under 0the laws of the state of
California that the foregoing is true and correct.
Dated: April 4, 2011 Signed: _____________________________________-
Vonn Frederick Smith and Loretta K. Smith,
Pro Se