Preview
:Mark-Douglas: Stokes
One of the People of Texas
:Melinda-Kay: Stokes
096 246012 lQ
One of the People ofTexas
2 5317 Rustic Trail
Colleyville, Texas [76034]
3
IN THE 348th JUDICIAL DISTRICT COURT OFTARRANT COUNTY
4· STATE OF TEXAS
5 Plaintiffs )
6 )
Mark Douglas Stokes and )
7 Melinda Kay Stokes ) Cause#
------------~---
)
8 Vs )
)
9 Michael W. Perry, and/or his successor,
individually, and in his official capacity as )
10 CEO ofTNDYMAC MORTGAGE )
SERVICES, an ens legis being used to )
11 conceal fraud, )
)
12 Terry Laughlin, and/or his successor, )
individually, and in his official capacity as )
13 President & CEO of ONE WEST BANK, )
an ens legis being used to conceal fraud,
14 )
)
15 DEUTSCHE BANK NATfONAL TRUST )
COMPANY, et al, an ens legis being )
16 used to conceal.fraud (trustee unknown at )
this time),
)
17
Brendetta A. Scott, and/or their )
18 successors, individually, and in their )
official capacities as officers of HUGHES, )
19 WA TIERS, & ASKANASE, L.L.P an ens )
legis being used to conceal fraud, and )
20 unnamed John Does 1-1 0,000
Defendants )
21
Petition, complaint, and claim in the nature of a claim
22 for administrative defaultjudgment and damages, breach of contract, breach ofthe covenant of
good faith and fair dealing arising under INDYMAC MORTGAGE SERVICES and ONE WEST
23 BANK's duty under contract between Melinda Kay Stokes and INDYMAC MORTGAGE
SERVICES, ONEWEST BANK
24
25 COMES NOW, :Melinda-Kay: Stokes, one ofthe people of Texas (hereinafter "Plaintiff'),
26 and in this court ofrecord, complains of Michael W. Perry, Terry Laughlin, Brendetta A. Scott,
27 et al each individually, and in their official capacities as officers of their respective companies
28
named above (hereinatler "Defendants") for their nwnerous acts of fraud upon the court, inclusive
1 of any and all judicial and/or non-judicial proceedings, including, without limitations,
2 Defendants' purposeful fraud in attempting to appear as CREDITOR to the court, and Holder in
3 Due Course of the Note, when, in fact, Defendants are well aware they are not the CREDITOR
4 and therefore NOT the Real Party(s) in interest in the foreclosure matter. Further, Defendants
5 have, as a matter of public record, acquiesced and admitted that the alleged Mortgage Contract is
6 null and void for fraud, that any alleged debt due and owing is settled per Defendants' refusal of
7 tender of payment per TEX BC. CODE ANN. § 3.603 and UCC § 3-603.
8 PlaintitThereby reserves ALL RIGHTS, including, without limitations, the Right to join
9 any and all other parties including new parties that Plaintiff may discover at any time during the
10 proceeding.
11 It is now incumbent on this court to query Defendants as to Defendants' lawful position in
12 this instant matter. If Defendants refuse to rebut, under oath, the public record evidence as set
13 forth in this complaint, or otherwise prove that Defendants are not in dishonor, not in default, this
14 court must instruct attorneys for Defendants to comply with TC Civil Rule 3.05 and stipulate to
15 the public record defaults wherein said Defendants acquiesced and agreed to the facts as set forth
16 in Plaintiffs' administrative judgments.
17 Accordingly, Defendants have already stipulated that Plaintiff is the CREDITOR in this
18 matter due to Plaintifi 's tender of payment and Defendants' dishonor of said payment, and breach
19 of contract, as well as Defendants' multiple subsequent defaults.
20 No ENTITY can be a CREDITOR ifthey don't hold the asset in question, [i.e.:the
21 NOTE, DEED OF TRUST and ALLONGES in pristine condition and1or the property]; and
22 Mortgage Pass-through Trusts [i.e. R.E.M.IC., as defined in
23 ', ' u, §§ 850-862] cannot hold assets; for if they do, their tax exempt status
24 is violated and the Trust itself is void ab initio.
25 Attorneys for defendants must admit and stipulate to all facts which are not in dispute, per
26 TC Civil Rule 3.05, which show that Defendants are in default and have admitted that Defendants
27 are not the holder in due course of the note.
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Defendants' own acts of fraud upon this court, Plaintiff, and the public in general prohibit
1 Defendants from making a "general denial" through counsel, and absent Defendants proving up
2 their claim in their Texas Rules of Civil Procedure (TRCP) 736 action (cause# 348-242471-09)
3 that they are the CREDITOR in this matter, and rebutting under oath the public record evidence
4 established over the past several months, this court cannot hear from Defendants.
5 Attorneys for defendants must admit and stipulate to all facts which are not in dispute, per
6 Tarrant County Civil Rule 3.05. Said facts, shown below, are the public record evidence of
7 defaults by defendants, wherein defendants, after notice and opportunity, acquiesced, refused to
8 dispute that Defendants are not the Creditor, not the Holder in Due Course of the Note, have
9 attempted to collect without the note using the U.S. Mails, have issued counterfeit securities, a
10 breach of 18 U.S.C. §§ 1341 and 1962, have come to court without clean hands, and are
11 estopped from arguing.
12 Considering that Defendants in their individual and official capacity are in default, as
13 shown below, Defendants arc required to rebut each public record default separately and fully, in
14 writing, under oath. Counsel may not presume to answer on behalf of said defaulted Defendants.
15 Should counsel presume to respond on behalf of the corporation, counsel is required to nominate
16 officers of the corporation with first-hand knowledge to answer.
17 By Law and precedent and in accordance with the Supreme Court of the United States
18 Pleadings by non-attorneys MAY NOT be held to the same standard as lawyers and/or attorneys;
19 and whose motions, pleadings and all papers may ONLY be judged by their function and never
20 their form. See: Haines v. Kerner; Platsky v. CIA; Anastasoffv. United States; non-attorney
21 Litigants are to be held to less stringent pleading standards;
22
See: Haines v. Kerner, 404 U.S. 519-421; In re Haines: "[non attorney) litigants are held to
23 less stringent pleading standards than admitted or licensed bar attorneys. Regardless ofthe
deficiencies in their pleadings, [non attorney) pro se litigants are entitled to the opportunity to
24 submit evidence in support of their claims.'' Court may not presume that Plaintiff, a non-attorney,
is a prose.
25
See also: Platsky v. C.I.A., 953 f.2d. 25; In re Platsky: court errs if court dismisses the
26 [non attorney] litigant without instruction of how pleadings are deficient and how to repair
27 pleadings.
28
J
See also: Anastasoffv. United States, 223 F.3d 898 (8th Cir. 2000); In re Anastasoff:
1 litigants' constitutional (guaranteed) rights arc violated when courts depart from precedent where
parties are similarly situated.
2
3
For this matter, Defendants are and/or may be the listed Defendants, any and all parties
4
Defendants refuse to reveal to Plaintiff and/or this Court, irrespective of whether or not said party
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and/or parties are known to this Court and/or Plaintiff and/or Defendants, the Corporate ens legis
6
entity Defendants are employed by and/or is an officer thereof, and/or any other party and/or
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parties, indispensible or not, any and all other party and/or parties receiving any pecuniary gain
8
from, through, and/or by Defendants' fraudulent act(s). Singular may be inclusive of plural and
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plural may be inclusive of singular.
10
Plaintiff hereby disputes and questions the authenticity of ALL dates and/or ALL
11
signatures by ALL parties on ALL documents proffered or supplied by Defendants to effect or
12 promote Defendants' claims, including, without limitations, notarized documents, "contracts",
13 "deeds", "titles", affidavits, and/or the like, including, without limitations, the dates and/or
14
signatures by notary publics, officers, employees, and any and ALL parties attesting to any and
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ALL claims, facts, accounting, transfers, recordings, publications, and/or the like, etc.
16
Plaintiff disavows any and ALL implied and/or conferred and/or inferred "understanding"
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of "legalese" terms now and at the time of the "signing" of any and ALL of the aforementioned
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documents pertaining to this action.
19
Plaintiff disavows any and ALL presumptions made by this Court, Defendants, and any
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and ALL other parties when said presumption may be detrimental to Plaintiffs interest and/or
21
case.
22 Plaintiff hereby demands ALL ofPlaintiff's R.ights be protected by this Court, including
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without limitations, State and Federal Constitutionally protected Rights, God-given Rights, Civil
24
Rights, Human Rights, Rights protected by Treaty(s), and/or ALL privileges and/or immunities,
25 and/or the like.
26 Plaintiff hereby demands this Court refuse to commit, and act to prevent Defendants from
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committing, any and ALL acts of barratry, or those in the nature of barratry.
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4
Plaintiff hereby demands ALL applicable Rules of Court, Rules of Procedures, Laws,
1 and/or Statutes be adhered to without preference for any party.
2 If Defendants attempt to fight this matter in court then Defendants knowingly,
3 intelligently, and willfully must come to court WITHOUT "clean hands.''
4 Plaintiff comes to this court with "clean hands" and as one of the people, not an attorney,
5 seeking remedy in accordance with Texas law.
6 I. Plaintiff hereby states the claim for which relief from Defendants TRCP Rule 736
7 Cause# 348-242471-09 is pursuant to TRCP 736 (10)- Abatement & Dismissal.
8 II. Plaintiff hereby states the claim for which relief can be granted pursuant to TRCP
9 Rule 47 and/or Rule 48 and/or Federal Rules of Civil Procedure Rule 12(b)(6) as follows:
10 1. On or about August 17, 2009 INDYMAC MORTGAGE SERVICES and ONEWEST
11 BANK made an oiicr (Exhibit 1-a), Publicly Recorded@ D210050344 ~in Tarrant county to
12 collect $221,881.43 from Petitioner as a mortgage payoff. The public record evidence shows that
13 Defendants Michael W. Perry, CEO of INDYMAC MORTGAGE SERVICES, and Terry
14 Laughlin, President & CEO of ONEWEST BANK (hereinafter "INDY/ONEWEST, et al")
15 received Petitioner/Plaintiff :Melinda-Kay: Stokes' (hereinafter--Petitioner) Notice of Acceptance,
16 a self-executing contract including terms accepting INDY/ONEWEST et al's offer to collect
17 $221,881.43 from Petitioner (Exhibit 2-a), Publicly Recorded@ D210050134 ~Tarrant county.
18 2. Said Notice, dated August 24, 2009, gave notice to INDY/ONEWEST et al to collect
19 $221,881.43 held in escrow for INDY/ONEWEST et al's benefit, upon the condition that
20 INDY/ONEWEST et al return to Petitioner her genuine original note.
21 3. Defendants INDY/ONEWEST et al had notice and opportunity to withdraw their offer
22 if said Defendants were not in possession of the genuine original promissory note (NOTE) and
23 were not the holders in due course of said NOTE. Defendants did not withdraw their offer, and
24 elected to be bound by the terms of aforesaid self-executing contract.
25 4. Said Notice was sent by third party escrow agent and Notary Public Denise Stephens via
26 certified mailing #7009 0820 0000 9133 6565 to Michael W. Perry, CEO of INDYMAC
27
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5
Defendants refused to answer six consecutive processes, which verifies that the parties are in
1 accord with regard to all claims made in said processes by Petitioner that said claims arc true and
2 correct.
3 9. As a result of Defendant's failure to respond, Petitioner served a Notice of Felony
4 Crimes on the 348th District Court filed on February 8, 2010, Judge Dana Womack presiding (Ex.
5 3-a), Publicly Recorded@ D210050148- in Tarrant county.
6
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Defendants have had notice and opportunity to rebut Plaintiffs administrative remedies,
8
including Plaintiffs statements of fact, but failed to do so. Defendants are in default on aforesaid
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Administrative Remedies, and said remedies and defaults arc recorded upon the public record.
10
Having failed to prove their CLAIMS with specificity, quoting facts and laws, Defendants have
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thereby stipulated that Defendants agree with Plaintiffs Statement of Facts, Rescissions, Right to
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Cancel (Ex. 4-a), Revocations ofPowers of Attorney (Ex. 4-b), and Removal of Trustees. (Ex. 4-
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c) Publicly Recorded@ 0210050344, D210050144 & D210050145- in Tarrant county.
14
Defendants have forever waived all rights to argue against Plaintiff's administrative judgments in
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any court. Merely denying Plaintiff's public record facts is not sufficient to survive a Motion for
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Default and/or Swnmary judgment against Defendants.
17
Pursuant to F.R.Cv.P. Rule 8(b)(6) and/or similar rule and/or rules under the Texas
18
Rules of Civil Procedure: all proofs, defaults, allegations and/or claims made by Plaintiff MUST
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be accepted as true by this Court unless said proofs, defaults, allegations and/or claims are
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rebutted with a preponderance of the evidence by Defendants. Any and all such avowals and/or
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averments presented by Defendants must be et hoc paratus est verificare and done under penalty
22
23
24 RELIEF PLAINTIFF WISHES TO BE GRANTED:
25 1. Damages sought are within the jurisdictional limits of this Court
26
2. Defendants return the GENUINE ORIGINAL PROMISSORY NOTE, now Plaintiff1s
27 property, and ALL MONEY PAID [by Plaint(ffto Defendants, with afull disclosure of
accounting of such] to Plaintiff forthwith;
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7
3. If Defendants are not able to return the GENUINE ORIGINAL PROMISSORY NOTE to
1
Plaintiff forthwith, then Defendants therefore admit to Defendants' unlawful attempt to
2 convert real property without cause and/or right.
3 4. Defendants present to Plaintiff and this Court an Atlidavit stipulating that Defendants have
NO RIGHTS to the real property in question.
4
5. Defendants return DEED and all other documents pertaining to ownership of real property in
5
question to Plaintiff.
6
6. If Defendants do not rebut the public record defaults, attached to this complaint as exhibits,
7 and referencing public record evidence, Defendants agree to accept Judgment by Default in
favor of Plaintiff.
8
9 7. Petitioner prays for Quiet Title to 531? Rustic Trail, Colleyville, Texas, pursuant to Texas law
as against INDY /ONEWEST et al and all persons or entities, including but not limited to
10 HUGHES, WATTERS, & ASKANASE, L.L.P., who purports to act on behalf of DEUTSCHE
BANK NATIONAL TRUST COMPANY et al.
11
8. Plaintiff further seeks treble damages of $665,644.29, against Defendants as agreed by the
12 parties, for failure to respond, answer or otherwise defend per the terms of the aforesaid self-
13 executing contract, and as set forth in the Affidavit attached hereto.
14 9. Demand for judgment for all the other relief to which the Plaintiffs are entitled.
15
Ill. Plaintiff bas the Due Process Rights as protected by, inter alia, the Fourteenth
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Amendment of the federal Constitution to rely on the court adhering to, inter alia, Texas
17 Rules of Civil Procedure, inter alia, and the federal and state Constitutions:
TRCP Rule 2
18
"These rules shall govern the procedure in the justice, county, and district courts of
19 the State of Texas in all actions of a civil nature ... "
20 IV. Plaintiff questions the jurisdiction of any and ALL non-judicial proceedings known
only to Plaintiff as an administrative procedure fraudulently based on an invalid and
21
unenforceable confession of judgment presumption in the mortgage documents.
22 Once jurisdiction is questioned and not proven, the court MUST dismiss the action.
23 Plaintiff hereby questions the jurisdiction of any and all non-judicial proceedings instigated by
24 Defendants in Defendants' unlawful attempt to confiscate Plaintiffs real property.
25
F.R.Cv.P. Rule 12(h)(3) and/or similar rule and/or rules under the Texas Rules of
26 Civil Procedure as follows:
Waiving and Preserving Certain Defenses
27 (1) When Some Are Waived.
A party waives any defense listed in Rule 12(b)(2)-(5) by:
28
8
(A) omitting it from a motion in the circumstances described in Rule 12(g)(2); or
1 (B) failing to either:
(i) make it by motion under this rule; or
2 (ii) include it in a responsive pleading or in an amendment allowed by Rule
1..51J!}( 1) as a matter of course ....
3 (3) Lack of Subject-Matter Jurisdiction. If the court determines at any time that it
lacks subject-matter jurisdiction, the court must dismiss the action.
4 (E'mphasis added)
5
See: McCorkle v. First Penm.ylvania Banking and Trust Co. (4th Cir. 1972) 459 F.2d
6 243, 244. ''At any stage of a litigation, including the appellate, subject matter jurisdiction may be
questioned. By failing to do so, the parties cannot confer jurisdiction by consent. If the court
7 perceives the defect, it is obligated to raise the issue sua sponte."
8
See also: McCreadyv. White, 417 F.3dCase 1:05-cv-04743; "Ensuring the
9 existence of subject-matter jurisdiction is the court's first duty in every lawsuit."
10 Subject-matter jurisdiction is an issue that must be considered at any stage of the litigation.
11 Sec 28 U.S.C. § 1447(c) and/or similar rule and/or rules under the Texas Rules of Civil
12
Procedure as follows: ("If at any time before final judgment it appears that the district court
13
lacks subject matter jurisdiction, the case shall be remanded."); United Phosphorus, Ltd. v. Angus
14
Chern. Co., 322 F. 3d 942, 946 (7th Cir. 2003); BEM I, L.L.C v. Anthropologie, Inc., 301 F. 3d
15
548, 551 (7th Cir. 2002) ("[S]ubject-matter jurisdiction ... may be questioned at any time until
16
17 the litigation becomes final, and sometimes even later.") Even if the defense of lack of subject-
18 matter jurisdiction is overruled, stricken, or excluded by the district court, it may be reasserted at
19 any time in the action. See: 5B Charles Alan Wri};ht & Arthur R. Miller, Federal Practice and
20
Procedure§ 1350, at 132 (3d ed 2004) (citing Fahnestock v. Reeder, 223 F. Supp. 2d 618, 621
21
(E.D. Pa. 2002)).
22
Once questioned, the Defendants and/or the court MUST prove jurisdiction BEFORE
23
24 proceeding with a case. This requirement has not been abrogated nor does it exclude non-
25 judicial proceedings.
26 The non-judicial foreclosure procedure requires jurisdiction as does any matter, judicial,
27 administrative or otherwise. Defendants have attempted to circumvent jurisdiction requirements
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9
by falsely claiming Defendants have met for the court the requisite clements of jurisdiction
primarily that Defendants are the Real Party in Interest.
2
Defendants' claim to be the Real Party in Interest is false, fraudulent and unlawful.
3
Pursuant to, inter alia, Rule 17(a), Defendants must prove Defendants are the Real Party(s) in
4
5 Interest, not just claim such.
6 It is a functional impossibility for Defendants to be the Real Party(s) in Interest without the
7 GENUINE ORIGINAL PROMISSORY NOTE. Ergo, it is a functional impossibility for
8
Defendants to prove Defendants are the Real Party in Interest without presenting to this court the
9
GENUINE ORIGINAL PROMISSORY NOTE, now Plaintiffs property.
10
It is an incontrovertible fact that Defendants are not in possession of the GENUINE
11
ORIGINAL PROMISSORY NOTE, and accordingly, it is an incontrovertible fact that Defendants
12
13 are committing fraud upon the court by falsely and/or fraudulently claiming Defendants are in
14 possession of the GENUINE ORIGINAL PROMISSORY NOTE.
15 Pursuant to law and in accordance with Plaintiffs claims, Defendants MUST present to
16
this court the GENUINE ORIGINAL PROMISSORY NOTE (now PlaintiH's property due to
17
payment) and, rebut under oath all public record evidence presented herein or agree to Plaintiffs
18
demand for J udgmcnt by Default in favor of Plaintiff.
19
20
This COMPLAINT is supported by law which is incorporated by this reference as
21 if fully set forth, and which Plaintiff asks this Court to take judicial notice thereof.
22 RESPECTFULLY SUBMITTED: This~ day of June, in the year of our Lord, 2010.
23
By. ..' '::
':' '' '·
•'.•!' .•·: ,•,.
24 :Melinda-Kay: Stbkes
25 COPYRIGHT NOTICE: The above-mentioned entity is quoting citations 'as purported in' context
to copyrighted case law, statutes, rules of court and court decision material as found in books
26 published with Federal or State funding supplied by the Citizens of the united States of America
and intended for usc by attorneys, and does so under the provisions of the Fair use clause of the
27 copyright laws ofthe United States.
28
10
PROPERTY
1 This COMPLAINT is for the unlawful foreclosure proceeding initiated by Defendants in
2 the 348th JUDIClAL DISTRICT COURT OF TARRANT COUNTY Cause# 348-242471-09
3 concerning the real property located at:
4 5317 Rustic Trail, in the county ofTarrant, in the city of Colleyville, in the state of Texas.
5 APN: 25819141NDY MAC MORTGAGE SERVICES, Loan Number 1009428895
6 Legal description: LOT 9, BLOCK 4, OF RUSTIC OAKS, PHASE II, AN
ADDITION TO THE CITY OF COLLEYVILLE, TARRANT COUNTY, TEXAS,
7 ACCORDING TO THE PLAT THEREOF RECORDED IN VOLUME 388-77,
PAGE 9, PLAT RECORDS, TARRANT COUNTY, TEXAS WHICH
8 CURRENTLY HAS THE ADDRESS OF 5317 Rustic Trail, Colleyville, Texas
[76034].
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AFFIDAVIT IN SUPPORT
STATE OF TEXAS )
2 COUNTY OF TARRANT )
3
PERSONALLY CAME AND APPEARED IH.-:FORE ME, the undersigned authority in
4
5 and for the aforesaid jurisdiction, the within named Petitioner/Plaintiff, who, having first been
6 duly sworn by me, stated on oath the following:
7 1. I, :Melinda-Kay: Stokes, (Stokes) proceeding in good faith, over 21 years of age,
8
being of sound mind, having never been convicted of a crime, state that the facts contained
9
herein are true, correct, complete and not misleading and certain, certifying to the best of
10
my private firsthand knowledge and belief under penalty that the documents presented on
11
my own behalf are the facts set forth in this Affidavit.
12
13 2. The Public Record shows that on August 17, 2009, Michael W. Perry, CEO of
14 INDYMAC MORTGAGE SERVICES and/or INDYMAC MORTGAGE SERVICES, agent for
15 OneWest, and/or Terry Laughlin, President & CEO of ONEWEST BANK and/or ONEWEST'
16
BANK (hereinafter--INDY/ONEWEST et al) made a contractual offer to Stokes dated August 17,
17
2009 (Exhibit 1-a), Publicly Recorded (GJ 0210050344 "-in Tarrant county (first four pages).
18
3. The Public Record shows that Stokes accepted INDY/ONEWEST et al's Offer with a
19
notice to collect payment and stated her (Stokes') terms (Exhibit 2-a & 2-b), Publicly Recorded@
20
21 0210050134 & 0210050344 - in Tarrant county. Legal tender funds were paid to third party
22 escrow agent Denise Stephens with notice f()r INDY /ONEWEST et al to take delivery of said
23 funds within a reasonable time, and, per the terms of the agreement, that INDY/ONEWEST et al
24
return to Stokes her genuine original promissory note. Plaintiff has two sworn aHidavits from
25
Denise Stephens, Notary Public, that said Notices were served upon the Defendants by due
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presentment under notary seal certified mail, return receipt requested 1009 0820 0000 9133 6947
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and #7009 0820 0000 9133 6978 on September 28, 2009. This first(ls1) service of process was
deemed complete on INDY/ONEWEST on September 28, 2009 (Ex. 2-d & 2-e), Publicly
2
Recorded@ D210050132 & 0210050133- Tarrant county.
3
4. The f•ublic Record shows that INDY/ONEWEST et al accepted a second (2"d) notice,
4
5 Plaintiffs Notice of Right to Cancel via cetiified mail, return receipt requested #7009 0820 0000
6 9133 6992 and #7009 0820 0000 9133 6985, on October 1 and October 5, 2009 (Ex. 4-a), Publicly
7 Recorded@ 0210050344 in Tarrant county. Defendants failed to respond at all.
8 5. The Public Record shows that INDY/ONEWEST et al, dishonored Stokes' tender of
9
payment, and, defaulted on Stokes' acceptance of their first Offer dated August 17, 2009.
10
6. INDY /ONE WEST et al subsequently made a series of new offers/demands on multiple
11
occas1ons. Stokes, in good faith, on four separate occasions, conditionally accepted all of
12
13 INDY/ONEWEST et al's subsequent offers upon proof of claim that INDY /()NEWEST et al were
14 the Holders in Due Course, and requested rebuttal ofher Statement of Facts. INDY/ONEWEST et
15 al failed to rebut, and failed to respond. Because INDY/ONEWEST et al submitted multiple offers
16
in a short span of time, Stokes combined some of the new offers into one conditional acceptance
17
of INDY/ONEWEST ct al's newest ofier(s). The Public Record shows that all conditional
18
acceptances were performed, through third party notary service, and served upon
19
INDY/ONEWEST et a!. Due to INDY/ONEWEST et al's prior dishonor, Stokes entitled these
20
21 conditional acceptances as a Notice of Counterfeit Security (NCS).
22 7. The Public Record shows Stokes' second conditional acceptance and NCS (NCSJ)
23 was properly served via certified mail, return receipt requested #7009 0820 0000 9133 7036 and
24
7009 0820 0000 9133 7043 on October 30, 2009 and received by INDY/ONEWEST et al on
25
November 2, 2009 (Ex. 5-a, 5-b, 5-c), Publicly Recorded @ D210050135, 0210050136, &
26
021005013 7 - Tarrant county. This third (3 rd)service of process was deemed complete on
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March 5, 2010 (Ex. 5-d & 5-e ), Publicly Recorded @ D2 10082971 and J.lJ_I [1 I 7J\( [_,,
) tl- in
1
Tarrant county.
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8. The Public Record shows a fourth (4th) service of process of NCS (NCS2) (Ex. 6-a,
3
6-b, & 6-c) Publicly Recorded @ 1)210050138, 1)210050139, and D210050140- in Tarrant
4
5 county, was accepted and returned to INDY/ONEWEST and HUGHES, WATTERS, &
6 ASKANASE, L.L.P., (1 lWA) on December 2, 2009 by certified mail, return receipt requested
7 #7009 0820 0000 9133 7111, #7009 0820 0000 9133 7128, and #7009 0820 0000 9133 7135 and
8 received by INDY/ONEWEST on December 7, 2009. It was deemed complete on January 27,
9
2010 (Ex. 6-d), Publicly Recorded@ D210050141- in Tarrant county.
10
10. The Public Record shows a fifth ( 5t 11 )
service of process of conditional acceptance of
11
Defendant's newest offer/demand (NCS-3) (Ex. 7-a, 7-b, & 7-c), Publicly Recorded @
12
13 D210050142, D210050143, and D210050144- in Tarrant county, was accepted and returned to
14 Brendetta A. Scott et al of HWA, and/or HWA purported agents for ONEWEST BANK and/or
15 DEUTSCHE BANK NATIONAL TRUST COMPANY,. et al, (hereinafter
. HWA) on December
16
28, 2009 by UPS ground #1ZR3560W0352207935, #1 ZR3560W0352208523,
17
#1ZR3560W0318875788 and received by Defendants on January 4, 2010. The Public Record
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shows this fifth (5 1h)Service was deemed complete on HWA on March 5, 2010 (Ex. 7-d & 7-e),
19
Publicly Recorded@ D210082971 and "D ,2_1 C 16 ~ !..t
,)_(j -in Tarrant county.
20
21 11. The Public Record shows a sixth (6th) service of process and conditional acceptance
22 ofHWA's last new offer/demand (NCS-4) (Ex. 8-a & 8-b), Publicly Recorded@ D210050147
23 and D21 0050149 - in Tarrant county, was accepted and returned to HW A on January 8, 2010 by
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certified mail, return receipt requested #7009 0820 0000 9133 6732, #7009 0820 0000 9133 6725,
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and #7009 0820 0000 9133 6718 on January 11, 12, and 15,2010. The Public Record shows
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that this sixth (6 h) service of process was deemed complete on HW A on April 5, 2010 (Ex. 8-c &
8-d), Publicly Recorded@ D21 0082971 and b .~.l DJ...l.K &. '1 . . . -
J... in Tarrant county.
2
12. Defendants failed to rebut Plaintiffs Affidavit dated March 5, 20 l 0 and have
3
stipulated to the facts contained therein (Ex. 9-a), Publicly Recorded@ D210050131 -Tarrant
4
5 county.
6 13. All processes were performed Pursuant to Texas Business and Commerce Code TEX
7 BC. CODE ANN. § 3.501 : Texas Statutes - Section 3.603(b): TENDER OF PAYMENT, and
8 Title 18 USC§ 513 to wit: "513(a) Whoever makes, utters or possesses a counterfeited security of
9
a State or a political subdivision thereof or of an organization, or whoever makes, utters or
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possesses a forged security of a State or political subdivision thereof or of an organization, with
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intent to deceive another person, organization, or government shall be fined not more than
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13 $250,000 or imprisoned not more than ten years, or both", and Title 18 USC§ 242, § 1342. §
14 13-11.
15 14. The Public Record shows that all Defendants failed to ask f()r more time or respond
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in any way to any of the above Notices/ Acceptances and are a matter of Public Record. (See
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Tarrant county Public Records D210050131-D210050149, D2l0050344, 0210082971 and
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Tl J.l (J~.K lt _.1-t_.)
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15. This Affidavit is executed by affiant herein in accordance with the Texas Rules of
20
21 Civil Procedure 239, f(Jr the purpose of enabling the Plaintiff to obtain an entry of default against
22 the Defendants for their failure to answer or otherwise defend as to the Plaintiffls Notices.
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l, :Melinda-Kay: Stokes, after being duly sworn upon my oath, depose and say as follows:
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1. I am the Plaintiff and Affiant in the above-captioned matter.
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2. The Statements made herein are accurate to the best of my "unlearned" legal knowledge.
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3. Defendants are depriving Affiant of Affiant's Civil Rights under Color of state law in
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violation of Defendants' lawful duties as a contracted instrumentality ofthe United States.
28
15
FURTHER AffiANT SAITII NOT.
BY: .,'
_,agent
2 --~
Melinda Stokes
3 Signed reserving all my rights at UCC 1-308
:Melinda-Kay: Stokes
4 One of the People of Texas
5317 Rustic Trail
5 Colleyville, Texas 176034]
(817) 577-1619
6 < mmstokcs80)sbcglobal.net>
7
SUBSCRIBED AND SWORN TO before me this _ _day of June, 2010, as to
8
the matters set forth herein, by :Melinda-Kay: Stokes.
9
10
11
12
Preview
:Mark-Douglas: Stokes One of the People of Texas :Melinda-Kay: Stokes 096 246012 lQ One of the People ofTexas 2 5317 Rustic Trail Colleyville, Texas [76034] 3 IN THE 348th JUDICIAL DISTRICT COURT OFTARRANT COUNTY 4· STATE OF TEXAS 5 Plaintiffs ) 6 ) Mark Douglas Stokes and ) 7 Melinda Kay Stokes ) Cause# ------------~--- ) 8 Vs ) ) 9 Michael W. Perry, and/or his successor, individually, and in his official capacity as ) 10 CEO ofTNDYMAC MORTGAGE ) SERVICES, an ens legis being used to ) 11 conceal fraud, ) ) 12 Terry Laughlin, and/or his successor, ) individually, and in his official capacity as ) 13 President & CEO of ONE WEST BANK, ) an ens legis being used to conceal fraud, 14 ) ) 15 DEUTSCHE BANK NATfONAL TRUST ) COMPANY, et al, an ens legis being ) 16 used to conceal.fraud (trustee unknown at ) this time), ) 17 Brendetta A. Scott, and/or their ) 18 successors, individually, and in their ) official capacities as officers of HUGHES, ) 19 WA TIERS, & ASKANASE, L.L.P an ens ) legis being used to conceal fraud, and ) 20 unnamed John Does 1-1 0,000 Defendants ) 21 Petition, complaint, and claim in the nature of a claim 22 for administrative defaultjudgment and damages, breach of contract, breach ofthe covenant of good faith and fair dealing arising under INDYMAC MORTGAGE SERVICES and ONE WEST 23 BANK's duty under contract between Melinda Kay Stokes and INDYMAC MORTGAGE SERVICES, ONEWEST BANK 24 25 COMES NOW, :Melinda-Kay: Stokes, one ofthe people of Texas (hereinafter "Plaintiff'), 26 and in this court ofrecord, complains of Michael W. Perry, Terry Laughlin, Brendetta A. Scott, 27 et al each individually, and in their official capacities as officers of their respective companies 28 named above (hereinatler "Defendants") for their nwnerous acts of fraud upon the court, inclusive 1 of any and all judicial and/or non-judicial proceedings, including, without limitations, 2 Defendants' purposeful fraud in attempting to appear as CREDITOR to the court, and Holder in 3 Due Course of the Note, when, in fact, Defendants are well aware they are not the CREDITOR 4 and therefore NOT the Real Party(s) in interest in the foreclosure matter. Further, Defendants 5 have, as a matter of public record, acquiesced and admitted that the alleged Mortgage Contract is 6 null and void for fraud, that any alleged debt due and owing is settled per Defendants' refusal of 7 tender of payment per TEX BC. CODE ANN. § 3.603 and UCC § 3-603. 8 PlaintitThereby reserves ALL RIGHTS, including, without limitations, the Right to join 9 any and all other parties including new parties that Plaintiff may discover at any time during the 10 proceeding. 11 It is now incumbent on this court to query Defendants as to Defendants' lawful position in 12 this instant matter. If Defendants refuse to rebut, under oath, the public record evidence as set 13 forth in this complaint, or otherwise prove that Defendants are not in dishonor, not in default, this 14 court must instruct attorneys for Defendants to comply with TC Civil Rule 3.05 and stipulate to 15 the public record defaults wherein said Defendants acquiesced and agreed to the facts as set forth 16 in Plaintiffs' administrative judgments. 17 Accordingly, Defendants have already stipulated that Plaintiff is the CREDITOR in this 18 matter due to Plaintifi 's tender of payment and Defendants' dishonor of said payment, and breach 19 of contract, as well as Defendants' multiple subsequent defaults. 20 No ENTITY can be a CREDITOR ifthey don't hold the asset in question, [i.e.:the 21 NOTE, DEED OF TRUST and ALLONGES in pristine condition and1or the property]; and 22 Mortgage Pass-through Trusts [i.e. R.E.M.IC., as defined in 23 ', ' u, §§ 850-862] cannot hold assets; for if they do, their tax exempt status 24 is violated and the Trust itself is void ab initio. 25 Attorneys for defendants must admit and stipulate to all facts which are not in dispute, per 26 TC Civil Rule 3.05, which show that Defendants are in default and have admitted that Defendants 27 are not the holder in due course of the note. 28 Defendants' own acts of fraud upon this court, Plaintiff, and the public in general prohibit 1 Defendants from making a "general denial" through counsel, and absent Defendants proving up 2 their claim in their Texas Rules of Civil Procedure (TRCP) 736 action (cause# 348-242471-09) 3 that they are the CREDITOR in this matter, and rebutting under oath the public record evidence 4 established over the past several months, this court cannot hear from Defendants. 5 Attorneys for defendants must admit and stipulate to all facts which are not in dispute, per 6 Tarrant County Civil Rule 3.05. Said facts, shown below, are the public record evidence of 7 defaults by defendants, wherein defendants, after notice and opportunity, acquiesced, refused to 8 dispute that Defendants are not the Creditor, not the Holder in Due Course of the Note, have 9 attempted to collect without the note using the U.S. Mails, have issued counterfeit securities, a 10 breach of 18 U.S.C. §§ 1341 and 1962, have come to court without clean hands, and are 11 estopped from arguing. 12 Considering that Defendants in their individual and official capacity are in default, as 13 shown below, Defendants arc required to rebut each public record default separately and fully, in 14 writing, under oath. Counsel may not presume to answer on behalf of said defaulted Defendants. 15 Should counsel presume to respond on behalf of the corporation, counsel is required to nominate 16 officers of the corporation with first-hand knowledge to answer. 17 By Law and precedent and in accordance with the Supreme Court of the United States 18 Pleadings by non-attorneys MAY NOT be held to the same standard as lawyers and/or attorneys; 19 and whose motions, pleadings and all papers may ONLY be judged by their function and never 20 their form. See: Haines v. Kerner; Platsky v. CIA; Anastasoffv. United States; non-attorney 21 Litigants are to be held to less stringent pleading standards; 22 See: Haines v. Kerner, 404 U.S. 519-421; In re Haines: "[non attorney) litigants are held to 23 less stringent pleading standards than admitted or licensed bar attorneys. Regardless ofthe deficiencies in their pleadings, [non attorney) pro se litigants are entitled to the opportunity to 24 submit evidence in support of their claims.'' Court may not presume that Plaintiff, a non-attorney, is a prose. 25 See also: Platsky v. C.I.A., 953 f.2d. 25; In re Platsky: court errs if court dismisses the 26 [non attorney] litigant without instruction of how pleadings are deficient and how to repair 27 pleadings. 28 J See also: Anastasoffv. United States, 223 F.3d 898 (8th Cir. 2000); In re Anastasoff: 1 litigants' constitutional (guaranteed) rights arc violated when courts depart from precedent where parties are similarly situated. 2 3 For this matter, Defendants are and/or may be the listed Defendants, any and all parties 4 Defendants refuse to reveal to Plaintiff and/or this Court, irrespective of whether or not said party 5 and/or parties are known to this Court and/or Plaintiff and/or Defendants, the Corporate ens legis 6 entity Defendants are employed by and/or is an officer thereof, and/or any other party and/or 7 parties, indispensible or not, any and all other party and/or parties receiving any pecuniary gain 8 from, through, and/or by Defendants' fraudulent act(s). Singular may be inclusive of plural and 9 plural may be inclusive of singular. 10 Plaintiff hereby disputes and questions the authenticity of ALL dates and/or ALL 11 signatures by ALL parties on ALL documents proffered or supplied by Defendants to effect or 12 promote Defendants' claims, including, without limitations, notarized documents, "contracts", 13 "deeds", "titles", affidavits, and/or the like, including, without limitations, the dates and/or 14 signatures by notary publics, officers, employees, and any and ALL parties attesting to any and 15 ALL claims, facts, accounting, transfers, recordings, publications, and/or the like, etc. 16 Plaintiff disavows any and ALL implied and/or conferred and/or inferred "understanding" 17 of "legalese" terms now and at the time of the "signing" of any and ALL of the aforementioned 18 documents pertaining to this action. 19 Plaintiff disavows any and ALL presumptions made by this Court, Defendants, and any 20 and ALL other parties when said presumption may be detrimental to Plaintiffs interest and/or 21 case. 22 Plaintiff hereby demands ALL ofPlaintiff's R.ights be protected by this Court, including 23 without limitations, State and Federal Constitutionally protected Rights, God-given Rights, Civil 24 Rights, Human Rights, Rights protected by Treaty(s), and/or ALL privileges and/or immunities, 25 and/or the like. 26 Plaintiff hereby demands this Court refuse to commit, and act to prevent Defendants from 27 committing, any and ALL acts of barratry, or those in the nature of barratry. 28 4 Plaintiff hereby demands ALL applicable Rules of Court, Rules of Procedures, Laws, 1 and/or Statutes be adhered to without preference for any party. 2 If Defendants attempt to fight this matter in court then Defendants knowingly, 3 intelligently, and willfully must come to court WITHOUT "clean hands.'' 4 Plaintiff comes to this court with "clean hands" and as one of the people, not an attorney, 5 seeking remedy in accordance with Texas law. 6 I. Plaintiff hereby states the claim for which relief from Defendants TRCP Rule 736 7 Cause# 348-242471-09 is pursuant to TRCP 736 (10)- Abatement & Dismissal. 8 II. Plaintiff hereby states the claim for which relief can be granted pursuant to TRCP 9 Rule 47 and/or Rule 48 and/or Federal Rules of Civil Procedure Rule 12(b)(6) as follows: 10 1. On or about August 17, 2009 INDYMAC MORTGAGE SERVICES and ONEWEST 11 BANK made an oiicr (Exhibit 1-a), Publicly Recorded@ D210050344 ~in Tarrant county to 12 collect $221,881.43 from Petitioner as a mortgage payoff. The public record evidence shows that 13 Defendants Michael W. Perry, CEO of INDYMAC MORTGAGE SERVICES, and Terry 14 Laughlin, President & CEO of ONEWEST BANK (hereinafter "INDY/ONEWEST, et al") 15 received Petitioner/Plaintiff :Melinda-Kay: Stokes' (hereinafter--Petitioner) Notice of Acceptance, 16 a self-executing contract including terms accepting INDY/ONEWEST et al's offer to collect 17 $221,881.43 from Petitioner (Exhibit 2-a), Publicly Recorded@ D210050134 ~Tarrant county. 18 2. Said Notice, dated August 24, 2009, gave notice to INDY/ONEWEST et al to collect 19 $221,881.43 held in escrow for INDY/ONEWEST et al's benefit, upon the condition that 20 INDY/ONEWEST et al return to Petitioner her genuine original note. 21 3. Defendants INDY/ONEWEST et al had notice and opportunity to withdraw their offer 22 if said Defendants were not in possession of the genuine original promissory note (NOTE) and 23 were not the holders in due course of said NOTE. Defendants did not withdraw their offer, and 24 elected to be bound by the terms of aforesaid self-executing contract. 25 4. Said Notice was sent by third party escrow agent and Notary Public Denise Stephens via 26 certified mailing #7009 0820 0000 9133 6565 to Michael W. Perry, CEO of INDYMAC 27 28 5 Defendants refused to answer six consecutive processes, which verifies that the parties are in 1 accord with regard to all claims made in said processes by Petitioner that said claims arc true and 2 correct. 3 9. As a result of Defendant's failure to respond, Petitioner served a Notice of Felony 4 Crimes on the 348th District Court filed on February 8, 2010, Judge Dana Womack presiding (Ex. 5 3-a), Publicly Recorded@ D210050148- in Tarrant county. 6 7 Defendants have had notice and opportunity to rebut Plaintiffs administrative remedies, 8 including Plaintiffs statements of fact, but failed to do so. Defendants are in default on aforesaid 9 Administrative Remedies, and said remedies and defaults arc recorded upon the public record. 10 Having failed to prove their CLAIMS with specificity, quoting facts and laws, Defendants have 11 thereby stipulated that Defendants agree with Plaintiffs Statement of Facts, Rescissions, Right to 12 Cancel (Ex. 4-a), Revocations ofPowers of Attorney (Ex. 4-b), and Removal of Trustees. (Ex. 4- 13 c) Publicly Recorded@ 0210050344, D210050144 & D210050145- in Tarrant county. 14 Defendants have forever waived all rights to argue against Plaintiff's administrative judgments in 15 any court. Merely denying Plaintiff's public record facts is not sufficient to survive a Motion for 16 Default and/or Swnmary judgment against Defendants. 17 Pursuant to F.R.Cv.P. Rule 8(b)(6) and/or similar rule and/or rules under the Texas 18 Rules of Civil Procedure: all proofs, defaults, allegations and/or claims made by Plaintiff MUST 19 be accepted as true by this Court unless said proofs, defaults, allegations and/or claims are 20 rebutted with a preponderance of the evidence by Defendants. Any and all such avowals and/or 21 averments presented by Defendants must be et hoc paratus est verificare and done under penalty 22 23 24 RELIEF PLAINTIFF WISHES TO BE GRANTED: 25 1. Damages sought are within the jurisdictional limits of this Court 26 2. Defendants return the GENUINE ORIGINAL PROMISSORY NOTE, now Plaintiff1s 27 property, and ALL MONEY PAID [by Plaint(ffto Defendants, with afull disclosure of accounting of such] to Plaintiff forthwith; 28 7 3. If Defendants are not able to return the GENUINE ORIGINAL PROMISSORY NOTE to 1 Plaintiff forthwith, then Defendants therefore admit to Defendants' unlawful attempt to 2 convert real property without cause and/or right. 3 4. Defendants present to Plaintiff and this Court an Atlidavit stipulating that Defendants have NO RIGHTS to the real property in question. 4 5. Defendants return DEED and all other documents pertaining to ownership of real property in 5 question to Plaintiff. 6 6. If Defendants do not rebut the public record defaults, attached to this complaint as exhibits, 7 and referencing public record evidence, Defendants agree to accept Judgment by Default in favor of Plaintiff. 8 9 7. Petitioner prays for Quiet Title to 531? Rustic Trail, Colleyville, Texas, pursuant to Texas law as against INDY /ONEWEST et al and all persons or entities, including but not limited to 10 HUGHES, WATTERS, & ASKANASE, L.L.P., who purports to act on behalf of DEUTSCHE BANK NATIONAL TRUST COMPANY et al. 11 8. Plaintiff further seeks treble damages of $665,644.29, against Defendants as agreed by the 12 parties, for failure to respond, answer or otherwise defend per the terms of the aforesaid self- 13 executing contract, and as set forth in the Affidavit attached hereto. 14 9. Demand for judgment for all the other relief to which the Plaintiffs are entitled. 15 Ill. Plaintiff bas the Due Process Rights as protected by, inter alia, the Fourteenth 16 Amendment of the federal Constitution to rely on the court adhering to, inter alia, Texas 17 Rules of Civil Procedure, inter alia, and the federal and state Constitutions: TRCP Rule 2 18 "These rules shall govern the procedure in the justice, county, and district courts of 19 the State of Texas in all actions of a civil nature ... " 20 IV. Plaintiff questions the jurisdiction of any and ALL non-judicial proceedings known only to Plaintiff as an administrative procedure fraudulently based on an invalid and 21 unenforceable confession of judgment presumption in the mortgage documents. 22 Once jurisdiction is questioned and not proven, the court MUST dismiss the action. 23 Plaintiff hereby questions the jurisdiction of any and all non-judicial proceedings instigated by 24 Defendants in Defendants' unlawful attempt to confiscate Plaintiffs real property. 25 F.R.Cv.P. Rule 12(h)(3) and/or similar rule and/or rules under the Texas Rules of 26 Civil Procedure as follows: Waiving and Preserving Certain Defenses 27 (1) When Some Are Waived. A party waives any defense listed in Rule 12(b)(2)-(5) by: 28 8 (A) omitting it from a motion in the circumstances described in Rule 12(g)(2); or 1 (B) failing to either: (i) make it by motion under this rule; or 2 (ii) include it in a responsive pleading or in an amendment allowed by Rule 1..51J!}( 1) as a matter of course .... 3 (3) Lack of Subject-Matter Jurisdiction. If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action. 4 (E'mphasis added) 5 See: McCorkle v. First Penm.ylvania Banking and Trust Co. (4th Cir. 1972) 459 F.2d 6 243, 244. ''At any stage of a litigation, including the appellate, subject matter jurisdiction may be questioned. By failing to do so, the parties cannot confer jurisdiction by consent. If the court 7 perceives the defect, it is obligated to raise the issue sua sponte." 8 See also: McCreadyv. White, 417 F.3dCase 1:05-cv-04743; "Ensuring the 9 existence of subject-matter jurisdiction is the court's first duty in every lawsuit." 10 Subject-matter jurisdiction is an issue that must be considered at any stage of the litigation. 11 Sec 28 U.S.C. § 1447(c) and/or similar rule and/or rules under the Texas Rules of Civil 12 Procedure as follows: ("If at any time before final judgment it appears that the district court 13 lacks subject matter jurisdiction, the case shall be remanded."); United Phosphorus, Ltd. v. Angus 14 Chern. Co., 322 F. 3d 942, 946 (7th Cir. 2003); BEM I, L.L.C v. Anthropologie, Inc., 301 F. 3d 15 548, 551 (7th Cir. 2002) ("[S]ubject-matter jurisdiction ... may be questioned at any time until 16 17 the litigation becomes final, and sometimes even later.") Even if the defense of lack of subject- 18 matter jurisdiction is overruled, stricken, or excluded by the district court, it may be reasserted at 19 any time in the action. See: 5B Charles Alan Wri};ht & Arthur R. Miller, Federal Practice and 20 Procedure§ 1350, at 132 (3d ed 2004) (citing Fahnestock v. Reeder, 223 F. Supp. 2d 618, 621 21 (E.D. Pa. 2002)). 22 Once questioned, the Defendants and/or the court MUST prove jurisdiction BEFORE 23 24 proceeding with a case. This requirement has not been abrogated nor does it exclude non- 25 judicial proceedings. 26 The non-judicial foreclosure procedure requires jurisdiction as does any matter, judicial, 27 administrative or otherwise. Defendants have attempted to circumvent jurisdiction requirements 28 9 by falsely claiming Defendants have met for the court the requisite clements of jurisdiction primarily that Defendants are the Real Party in Interest. 2 Defendants' claim to be the Real Party in Interest is false, fraudulent and unlawful. 3 Pursuant to, inter alia, Rule 17(a), Defendants must prove Defendants are the Real Party(s) in 4 5 Interest, not just claim such. 6 It is a functional impossibility for Defendants to be the Real Party(s) in Interest without the 7 GENUINE ORIGINAL PROMISSORY NOTE. Ergo, it is a functional impossibility for 8 Defendants to prove Defendants are the Real Party in Interest without presenting to this court the 9 GENUINE ORIGINAL PROMISSORY NOTE, now Plaintiffs property. 10 It is an incontrovertible fact that Defendants are not in possession of the GENUINE 11 ORIGINAL PROMISSORY NOTE, and accordingly, it is an incontrovertible fact that Defendants 12 13 are committing fraud upon the court by falsely and/or fraudulently claiming Defendants are in 14 possession of the GENUINE ORIGINAL PROMISSORY NOTE. 15 Pursuant to law and in accordance with Plaintiffs claims, Defendants MUST present to 16 this court the GENUINE ORIGINAL PROMISSORY NOTE (now PlaintiH's property due to 17 payment) and, rebut under oath all public record evidence presented herein or agree to Plaintiffs 18 demand for J udgmcnt by Default in favor of Plaintiff. 19 20 This COMPLAINT is supported by law which is incorporated by this reference as 21 if fully set forth, and which Plaintiff asks this Court to take judicial notice thereof. 22 RESPECTFULLY SUBMITTED: This~ day of June, in the year of our Lord, 2010. 23 By. ..' ':: ':' '' '· •'.•!' .•·: ,•,. 24 :Melinda-Kay: Stbkes 25 COPYRIGHT NOTICE: The above-mentioned entity is quoting citations 'as purported in' context to copyrighted case law, statutes, rules of court and court decision material as found in books 26 published with Federal or State funding supplied by the Citizens of the united States of America and intended for usc by attorneys, and does so under the provisions of the Fair use clause of the 27 copyright laws ofthe United States. 28 10 PROPERTY 1 This COMPLAINT is for the unlawful foreclosure proceeding initiated by Defendants in 2 the 348th JUDIClAL DISTRICT COURT OF TARRANT COUNTY Cause# 348-242471-09 3 concerning the real property located at: 4 5317 Rustic Trail, in the county ofTarrant, in the city of Colleyville, in the state of Texas. 5 APN: 25819141NDY MAC MORTGAGE SERVICES, Loan Number 1009428895 6 Legal description: LOT 9, BLOCK 4, OF RUSTIC OAKS, PHASE II, AN ADDITION TO THE CITY OF COLLEYVILLE, TARRANT COUNTY, TEXAS, 7 ACCORDING TO THE PLAT THEREOF RECORDED IN VOLUME 388-77, PAGE 9, PLAT RECORDS, TARRANT COUNTY, TEXAS WHICH 8 CURRENTLY HAS THE ADDRESS OF 5317 Rustic Trail, Colleyville, Texas [76034]. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 AFFIDAVIT IN SUPPORT STATE OF TEXAS ) 2 COUNTY OF TARRANT ) 3 PERSONALLY CAME AND APPEARED IH.-:FORE ME, the undersigned authority in 4 5 and for the aforesaid jurisdiction, the within named Petitioner/Plaintiff, who, having first been 6 duly sworn by me, stated on oath the following: 7 1. I, :Melinda-Kay: Stokes, (Stokes) proceeding in good faith, over 21 years of age, 8 being of sound mind, having never been convicted of a crime, state that the facts contained 9 herein are true, correct, complete and not misleading and certain, certifying to the best of 10 my private firsthand knowledge and belief under penalty that the documents presented on 11 my own behalf are the facts set forth in this Affidavit. 12 13 2. The Public Record shows that on August 17, 2009, Michael W. Perry, CEO of 14 INDYMAC MORTGAGE SERVICES and/or INDYMAC MORTGAGE SERVICES, agent for 15 OneWest, and/or Terry Laughlin, President & CEO of ONEWEST BANK and/or ONEWEST' 16 BANK (hereinafter--INDY/ONEWEST et al) made a contractual offer to Stokes dated August 17, 17 2009 (Exhibit 1-a), Publicly Recorded (GJ 0210050344 "-in Tarrant county (first four pages). 18 3. The Public Record shows that Stokes accepted INDY/ONEWEST et al's Offer with a 19 notice to collect payment and stated her (Stokes') terms (Exhibit 2-a & 2-b), Publicly Recorded@ 20 21 0210050134 & 0210050344 - in Tarrant county. Legal tender funds were paid to third party 22 escrow agent Denise Stephens with notice f()r INDY /ONEWEST et al to take delivery of said 23 funds within a reasonable time, and, per the terms of the agreement, that INDY/ONEWEST et al 24 return to Stokes her genuine original promissory note. Plaintiff has two sworn aHidavits from 25 Denise Stephens, Notary Public, that said Notices were served upon the Defendants by due 26 presentment under notary seal certified mail, return receipt requested 1009 0820 0000 9133 6947 27 28 12 and #7009 0820 0000 9133 6978 on September 28, 2009. This first(ls1) service of process was deemed complete on INDY/ONEWEST on September 28, 2009 (Ex. 2-d & 2-e), Publicly 2 Recorded@ D210050132 & 0210050133- Tarrant county. 3 4. The f•ublic Record shows that INDY/ONEWEST et al accepted a second (2"d) notice, 4 5 Plaintiffs Notice of Right to Cancel via cetiified mail, return receipt requested #7009 0820 0000 6 9133 6992 and #7009 0820 0000 9133 6985, on October 1 and October 5, 2009 (Ex. 4-a), Publicly 7 Recorded@ 0210050344 in Tarrant county. Defendants failed to respond at all. 8 5. The Public Record shows that INDY/ONEWEST et al, dishonored Stokes' tender of 9 payment, and, defaulted on Stokes' acceptance of their first Offer dated August 17, 2009. 10 6. INDY /ONE WEST et al subsequently made a series of new offers/demands on multiple 11 occas1ons. Stokes, in good faith, on four separate occasions, conditionally accepted all of 12 13 INDY/ONEWEST et al's subsequent offers upon proof of claim that INDY /()NEWEST et al were 14 the Holders in Due Course, and requested rebuttal ofher Statement of Facts. INDY/ONEWEST et 15 al failed to rebut, and failed to respond. Because INDY/ONEWEST et al submitted multiple offers 16 in a short span of time, Stokes combined some of the new offers into one conditional acceptance 17 of INDY/ONEWEST ct al's newest ofier(s). The Public Record shows that all conditional 18 acceptances were performed, through third party notary service, and served upon 19 INDY/ONEWEST et a!. Due to INDY/ONEWEST et al's prior dishonor, Stokes entitled these 20 21 conditional acceptances as a Notice of Counterfeit Security (NCS). 22 7. The Public Record shows Stokes' second conditional acceptance and NCS (NCSJ) 23 was properly served via certified mail, return receipt requested #7009 0820 0000 9133 7036 and 24 7009 0820 0000 9133 7043 on October 30, 2009 and received by INDY/ONEWEST et al on 25 November 2, 2009 (Ex. 5-a, 5-b, 5-c), Publicly Recorded @ D210050135, 0210050136, & 26 021005013 7 - Tarrant county. This third (3 rd)service of process was deemed complete on 27 28 13 March 5, 2010 (Ex. 5-d & 5-e ), Publicly Recorded @ D2 10082971 and J.lJ_I [1 I 7J\( [_,, ) tl- in 1 Tarrant county. 2 8. The Public Record shows a fourth (4th) service of process of NCS (NCS2) (Ex. 6-a, 3 6-b, & 6-c) Publicly Recorded @ 1)210050138, 1)210050139, and D210050140- in Tarrant 4 5 county, was accepted and returned to INDY/ONEWEST and HUGHES, WATTERS, & 6 ASKANASE, L.L.P., (1 lWA) on December 2, 2009 by certified mail, return receipt requested 7 #7009 0820 0000 9133 7111, #7009 0820 0000 9133 7128, and #7009 0820 0000 9133 7135 and 8 received by INDY/ONEWEST on December 7, 2009. It was deemed complete on January 27, 9 2010 (Ex. 6-d), Publicly Recorded@ D210050141- in Tarrant county. 10 10. The Public Record shows a fifth ( 5t 11 ) service of process of conditional acceptance of 11 Defendant's newest offer/demand (NCS-3) (Ex. 7-a, 7-b, & 7-c), Publicly Recorded @ 12 13 D210050142, D210050143, and D210050144- in Tarrant county, was accepted and returned to 14 Brendetta A. Scott et al of HWA, and/or HWA purported agents for ONEWEST BANK and/or 15 DEUTSCHE BANK NATIONAL TRUST COMPANY,. et al, (hereinafter . HWA) on December 16 28, 2009 by UPS ground #1ZR3560W0352207935, #1 ZR3560W0352208523, 17 #1ZR3560W0318875788 and received by Defendants on January 4, 2010. The Public Record 18 shows this fifth (5 1h)Service was deemed complete on HWA on March 5, 2010 (Ex. 7-d & 7-e), 19 Publicly Recorded@ D210082971 and "D ,2_1 C 16 ~ !..t ,)_(j -in Tarrant county. 20 21 11. The Public Record shows a sixth (6th) service of process and conditional acceptance 22 ofHWA's last new offer/demand (NCS-4) (Ex. 8-a & 8-b), Publicly Recorded@ D210050147 23 and D21 0050149 - in Tarrant county, was accepted and returned to HW A on January 8, 2010 by 24 certified mail, return receipt requested #7009 0820 0000 9133 6732, #7009 0820 0000 9133 6725, 25 and #7009 0820 0000 9133 6718 on January 11, 12, and 15,2010. The Public Record shows 26 27 28 14 1 that this sixth (6 h) service of process was deemed complete on HW A on April 5, 2010 (Ex. 8-c & 8-d), Publicly Recorded@ D21 0082971 and b .~.l DJ...l.K &. '1 . . . - J... in Tarrant county. 2 12. Defendants failed to rebut Plaintiffs Affidavit dated March 5, 20 l 0 and have 3 stipulated to the facts contained therein (Ex. 9-a), Publicly Recorded@ D210050131 -Tarrant 4 5 county. 6 13. All processes were performed Pursuant to Texas Business and Commerce Code TEX 7 BC. CODE ANN. § 3.501 : Texas Statutes - Section 3.603(b): TENDER OF PAYMENT, and 8 Title 18 USC§ 513 to wit: "513(a) Whoever makes, utters or possesses a counterfeited security of 9 a State or a political subdivision thereof or of an organization, or whoever makes, utters or 10 possesses a forged security of a State or political subdivision thereof or of an organization, with 11 intent to deceive another person, organization, or government shall be fined not more than 12 13 $250,000 or imprisoned not more than ten years, or both", and Title 18 USC§ 242, § 1342. § 14 13-11. 15 14. The Public Record shows that all Defendants failed to ask f()r more time or respond 16 in any way to any of the above Notices/ Acceptances and are a matter of Public Record. (See 17 Tarrant county Public Records D210050131-D210050149, D2l0050344, 0210082971 and 18 Tl J.l (J~.K lt _.1-t_.) 19 15. This Affidavit is executed by affiant herein in accordance with the Texas Rules of 20 21 Civil Procedure 239, f(Jr the purpose of enabling the Plaintiff to obtain an entry of default against 22 the Defendants for their failure to answer or otherwise defend as to the Plaintiffls Notices. 23 l, :Melinda-Kay: Stokes, after being duly sworn upon my oath, depose and say as follows: 24 1. I am the Plaintiff and Affiant in the above-captioned matter. 25 2. The Statements made herein are accurate to the best of my "unlearned" legal knowledge. 26 3. Defendants are depriving Affiant of Affiant's Civil Rights under Color of state law in 27 violation of Defendants' lawful duties as a contracted instrumentality ofthe United States. 28 15 FURTHER AffiANT SAITII NOT. BY: .,' _,agent 2 --~ Melinda Stokes 3 Signed reserving all my rights at UCC 1-308 :Melinda-Kay: Stokes 4 One of the People of Texas 5317 Rustic Trail 5 Colleyville, Texas 176034] (817) 577-1619 6 < mmstokcs80)sbcglobal.net> 7 SUBSCRIBED AND SWORN TO before me this _ _day of June, 2010, as to 8 the matters set forth herein, by :Melinda-Kay: Stokes. 9 10 11 12