Preview
342-308150-19 FILED
TARRANT COUNTY
7/29/2019 4:34 PM
THOMAS A. WILDER
DISTRICT CLERK
No. 342-308150-19
THE BANK OF NEW YORK MELLON §
FKA THE BANK OF NEW YORK, AS §
TRUSTEE FOR CERTIFICATEHOLDERS OF §
CWABS INC, ASSET-BACKED CERTIFICATES, §
SERIES 2007-5, ITS SUCCESSORS AND §
ASSIGNS, § IN THE DISTRICT COURT OF
§ TARRANT COUNTY, TEXAS
Plaintiff §
§ 342nd JUDICIAL DISTRICT
Vs. §
§
CLARK S. DENNIS and VICKIE DENNIS, §
§
Defendants §
ORIGINAL COUNTERPETITION
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW Counter-Plaintiffs, CLARK S. DENNIS and VICKIE DENNIS, who file this original
counterpetition complaining of Counter-Defendant THE BANK OF NEW YORK MELLON FKA THE BANK OF
NEW YORK, as Trustee for Certificate Holders of CWABS Inc. Asset-Backed Certificates, Series 2007-5,
Its Successors and Assigns, and in support would show the Court as follows:
Discovery Control Plan
1. Counter-Plaintiffs intend to conduct discovery under Level Two (2) Discovery Control Plan as
provided by Rule 190.3 of the Texas Rules of Civil Procedure.
Claim for Relief
2. Counter-Plaintiffs seeks monetary relief over $ 200,000.00 but not more than $ 1,000,000.00, and
non-monetary relief.
Parties
3. Counter-Plaintiff, CLARK S. DENNIS, is an individual who resides in Tarrant County, Texas.
4. Counter-Plaintiff, VICKIE DENNIS, is an individual who resides in Tarrant County, Texas.
5. Counter-Defendant, THE BANK OF NEW YORK MELLON f/k/a The Bank of New York, as trustee
for Certificate Holders of CWABS Inc., Asset-Backed Certificates, Series 2007-5, Its Successors
and Assigns, (hereinafter referred to as “BONY”) is an entity organized under the laws of the State
of New York and authorized to transact business in the State of Texas, may be served with process
by serving its attorney of record in this matter, Angela K. Walter.
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Jurisdiction and Venue
6. The court has submit-matter jurisdiction over the lawsuit because the amount in controversy
exceeds the Court’s minimum jurisdictional requirements and the issues in this case involve title
to real estate located in the State of Texas.
7. The Court has personal jurisdiction over Counter-Defendant, BONY, because BONY does business
in the State of Texas and has voluntarily submitted to the jurisdiction of this Court.
8. Venue is proper in Tarrant County, Texas, because this counter-petition affects the title to real
property located in Tarrant County, Texas, and related documents pertaining thereto.
Factual Basis Support Claims
9. Counter-Plaintiffs’ purchased their home at 4117 Sarita Drive, Fort Worth, Tarrant County, Texas
in June 2003 and financed the purchased through National City Mortgage.
10. In February 2007, Counter-Plaintiffs paid off the purchase-money note through a home-equity
loan with Countrywide Home Loans.
11. It is now well known that Countrywide Home Loans was engaged in a huge fraudulent scheme
which resulted in criminal charges and the economic fall with the home-mortgage subprime
lending scandal. As a result of the wide spread fraud and criminal practices of Countywide Home
Loans, Countrywide Financial (the parent company of Countrywide Home Loans) worked out a
deal with Bank of America which resulted in Countrywide permanently closing its doors on July 2,
2008.
12. In this case, Counter-Plaintiffs signed a home-equity promissory note and secured the note with
a lien in favor of the lender, America’s Wholesale Lender. See Exhibits A and B to Plaintiff’s Original
Petition. The date of the note is February 13, 2007, just over a year before Countrywide Home
Loans ceased operations.
13. The lender in this transaction is America’s Wholesale Lender, which is identified in the note as a
corporation existing under the laws of New York. In fact, America’s Wholesale Lender was not a
corporation and has never existed. This was a fraudulent arm of Countrywide. Countrywide
trademarked the name (Reg. # 1872784) but never incorporated America’s Wholesale Lender as
a corporation in New York. The now defunct lender also failed to file any D/B/A papers in New
York.1
14. The home-equity promissory note at issue in this case identifies MERS (Mortgage Electronic
Registration Systems, Inc.) as a nominee for Lender. However, MERS can only act as a nominee
for its members and can only assign the mortgagee rights for its members. America’s Wholesale
1
It is interesting to note that another scrupulous and fraudulent artist recognized an opportunity to profit from this
debacle and incorporated America’s Wholesale Lender Inc. in December, 2008. However, this entity has nothing to
do with the Countrywide Loans and this company was ultimately sued by Bank of America for trademark
infringement, fraud and other related allegations for the deception. Case No. 8:12-cv-00242-CJC-AN, styled
Countrywide Home Loans, Inc.; Bank of America, N.A. vs. America’s Wholesale Lender, Inc., a New York Corporation
(and various related individuals), pending in the United States District Court, Central District of California, Western
Division.
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Lender was NOT and NEVER has been a MERS member, and its signatories knew or should have
known that America’s Wholesale Lender was NOT and NEVER was a New York corporation.
15. Counter-Defendant attaches Exhibit C as evidence of the assignment of the Dennis’ loan. As noted
in Exhibit C, the assignment was executed by a representative of MERS on behalf of America’s
Wholesale Lender (a company that does not exist nor is a member of MERS for which MERS would
have authorization to execute).
16. This is a common fact pattern as there were over 3.5 million loans between 2003 and 2007 that
were neither funded, nor owned by Countrywide Home Loans or Bank of America, but were
funded by credit lines with the Federal Reserve. Countrywide was entrusted with approximately
$10 billion in tax payer funds (originally set aside for TARP funds).
17. Every state has strict guidelines for mortgage lending (requiring state licensing). Starting in 2003,
Countrywide sought to circumvent individual state licensing laws and corporation taxes by using
a name and entity that would stay under the radar. This was one of the earliest frauds connected
to this scheme and was devised to avoid taxes and licensing. The plan involved Countrywide
Home Loans, Inc. registering the trade name America’s Wholesale Lender with the Secretary of
State in each state it sought to do business. Accordingly, each respective Secretary of State would
show “Countrywide Home Loans, Inc d/b/a America’s Wholesale Lender” under the foreign
corporation registration section. Countrywide began making thousands of loans in every state
under the name America’s Wholesale Lender and successfully avoided licensing requirements and
paying taxes on profits that were actually realized by Countrywide. Countrywide encountered a
major snag in its scheme when observant county recorders in several states refused to record
security documents that were held by a trade name or dba, i.e.: America’s Wholesale Lender.
Trade names have no legal capacity, therefore they cannot own property, file lawsuits, or hold
recorded security interests. In response to this problem, Countrywide committed yet another
fraud, which listed the lender on their mortgages and deeds of trust as follows: “Lender is
America’s Wholesale Lender, a corporation organized and existing under the laws of New York.
Countrywide resubmitted its mortgages to the previously unwilling county clerks who accepted
them without reservation because the mortgage holder was now shown to be a corporation. No
one noticed that no such corporation was in existence.
18. By 2006, many of the loans made in the name of America’s Wholesale Lender, A New York
Corporation, began to default. Countrywide starting having problems foreclosing on loans that
were made in the name of the non-existent corporation. The only address listed for America’s
Wholesale Lender was a P.O. Box in Plano, Texas. Countrywide continued to foreclose on as many
of the loans as they could. By 2008, Countrywide imploded due to their extensive frauds
committed in the loan origination and loan serving areas. Many attorneys and investigators were
looking more closely at these loans. As Countrywide dissolved, Bank of America picked up where
Countrywide left off with respect to America’s Wholesale Lender. Lawsuits in 22 different states
began challenging the loans in the name of America’s Wholesale Lender. Bank of America decided
to continue its fraudulent scheme by bringing in BONY, Duetsche Bank, and U. S. Bank NT. Bank
of America would use the services of MERS to assign these fraudulent notes and deeds of trust to
either BONY, Duetsche Bank or US Bank NT. Thereafter, one the assignee banks would pursue
foreclosure of the bogus loan.
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19. This scheme has been the subject of hundreds of lawsuit across the county. In 2011, the United
States, acting through the United States Attorney General’s Office, and Bank of
America/Countrywide entered into a consent judgment in the United States District Court, Central
District of California, whereby Bank of America/Countrywide paid $ 335M into a fund for the
benefit of the victims of their fraudulent schemes. The Attorney General for the State of New
York has recovered over $ 400M from Bank of America stemming from these fraudulent
foreclosures. BONY and Duetsche Bank have been significantly fined for their participation in
these transactions.2
20. BONY is not an innocent victim in all of this fraud. BONY benefited tremendously from these
fraudulent schemes through settlements and TARP funds. For example, BONY, acting as a trustee
and facing numerous lawsuits from the beneficial interest holders of the trusts for which BONY
was serving, entered into a settlement agreement with Bank of America (Countrywide’s successor
in interest) for approximately $ 8.5 billion to protect BONY’s investors and trust beneficiaries from
the “sour” and defective loans purchased by BONY from Bank of America/Countrywide. This
settlement agreement was approved by a New York federal judge in January 2015.
21. As a result of the multi-billion dollar settlement, Counter-Defendant was compensated for the
defective loans by Bank of America/Countrywide which included loans such as the loan before
this Court. However, Counter-Defendant seeks more than just the settlement with Bank of
America/Countrywide, they now seek to enforce this bogus loan against Counter-Plaintiffs.
22. Counter-Plaintiffs became aware that its lender was engaging in some type of fraud. As the issues
with the fraudulent schemes of Countrywide became the focus of the news in 2009-2010, the
federal government intervened with various assistance programs for the homeowners of these
shady home loans. One such program was the Home Affordable Modification Program which was
introduced to Counter-Plaintiffs by Bank of America as part of their efforts to address the
Countrywide Home Loan scandal that they purchased.
23. Counter-Plaintiffs worked through the application process and completed all of the steps required
to participate in the Home Affordable Modification Program, however Bank of America failed to
modify the loan as required by the plan. It became increasingly difficult to contact a Bank of
America representative and each time they did, Counter-Plaintiffs were told that they should
receive their new paperwork shortly. That never happened, so Counter-Plaintiffs did not make
any further payments on the loan after March 1, 2009.3
2
Cases in over 22 different states have been filed alleging the fraudulent loans with the non-existent America’s
Wholesale Lender. Bank of America allowed most of those cases to go to default or result in cancellation of the
note. In some cases, borrowers have not only been able to cancel the note, but have obtained a settlement or
judgment for the entire amount of funds paid to the non-existent company. As a way to avoid paying back the
money to the borrowers, Bank of America began assigning the loans to other lenders like BONY so as to minimize
the damages to cancellation of the note. Counsel for Counter-Plaintiffs has not found a single case anywhere in the
country where America’s Wholesale Lender, when exposed as a non-existent entity, prevailed on its attempts to
foreclose (either brought through Bank of America or an assignee).
3
In fact by 2010, Bank of America was being sued in multiple jurisdictions for claims alleging Bank of America was
intentionally withholding government funds intended to save homeowners from foreclosure. The lawsuits claim
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24. On October 19, 2010, Counter-Plaintiffs gave Bank of America notice of its claims and rights under
the Texas Deceptive Trade Practices Act (DTPA).
25. Bank of America took no further action to foreclose or pursue the loan against Counter-Plaintiffs.
26. Almost a year later, Bank of America attempted to assign the loan to BONY (a similar fact pattern
Bank of America employed a similar fact pattern to maximize profitability, whereby it transferred
for value to an assignee complicit in this fraudulent scheme (one of 3 banks) when the fraudulent
loan was questioned or threatened with litigation). Obviously complicit in the fraud, BONY took
no action to assert its rights under the loan agreement until filing a petition for foreclosure under
the summary proceedings permitted by TRCP 736 in November 2018 (almost 10 years after the
alleged loan was defaulted). Judge Cosby, presiding judge of the 67th District Court of Tarrant
County, Texas, denied the request for foreclosure. This lawsuit followed.
Claims of Relief
27. Based upon the foregoing factual allegations and contentions, Counter-Plaintiffs assert the
following causes of action:
Declaratory Judgment
28. Pursuant to the provision of Chapter 37 of the Texas Civil Practice and Remedies Code, Counter-
Plaintiffs seek a judgment which make the following declarations:
a. Clark S. Dennis and Vickie Dennis are the owners of real property legally described as Lot
27, in Block 78, of WESTCLIFF ADDITION, an Addition to the City of Fort Worth, Tarrant
County, Texas, according to the Map thereof recorded in Volume 388-38, Page 57, of the
Map Records of Tarrant County, Texas, and more commonly known as 4117 Sarita Drive,
Fort Worth, Tarrant County, Texas (“Property”).
b. Clark S. Dennis and Vickie Dennis entered into a promissory note with America’s
Wholesale Lender, identified as a corporation existing under the laws of New York, on or
about February 13, 2007, secured by a lien on the Property.
c. America’s Wholesale Lender was not a corporation organized and existing under the laws
of New York on February 13, 2007, or at any time before or after.
d. America’s Wholesale Lender was not a licensed lender in the State of Texas on February
13, 2007, or at any time before or after.
e. America’s Wholesale Lender is a fictitious name registered as a trademark by Countrywide
Home Lending, Inc.
f. America’s Wholesale Lender is not a member of the Mortgage Electronic Registrations
Systems, Inc. (MERS).
g. MERS did not have the authority to act, at any time, on behalf of America’s Wholesale
Lender.
that Bank of America was systemically thwarting homeowners access to Troubled Asset Relief Programs (TARP)
funds. This is the same conduct upon which Counter-Plaintiffs based their claims in the DTPA demand letter.
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h. MERS did not have the authority to assign the loan and related lien of Clark S. Dennis and
Vickie Dennis to The Bank of New York Mellon f/k/a The Bank of New York, as Trustee for
the Certificate Holders of CWABS INC., Asset-backed Certificates, Series 2007-5.
i. The Bank of New York Mellon f/k/a The Bank of New York, as Trustee for the Certificate
Holders of CWABS, INC., Asset-Backed Certificates, Series 2007-5 holds no valid security
interest in the Property and is not the holder of the note between Clark S. Dennis and
Vickie Dennis and America’s Wholesale Lender.
j. Assignment of Deed of Trust recorded as Instrument D211207333 in the Deed Records of
Tarrant County, Texas is declared to be void in all respects.
k. The note between Clark S. Dennis and Vickie Dennis and America’s Wholesale Lender is
declared void ab initio and the Texas Home Equity Security Instrument, recorded as
Instrument D207064507 in the Tarrant County Deed Records, which secures said note by
a lien on the Property, is hereby cancelled and declared void ab initio.
l. Any cloud on title to the Property created by the loan transaction with America’s
Wholesale Lender on or about February 13, 2007, is hereby removed in its entirety, and
all such liens or clouds on title originating from said transaction are hereby declared null
and void and of no effect for any purpose.
29. In addition to the declaratory judgment requested in this pleading, Counter-Plaintiffs seek the
recovery of attorney’s fees and costs of court as allowed by the Texas Civil Practice and Remedies
Code, Chapter 37.
Deceptive Trade Practices Act Violations
30. Counter-Plaintiffs allege that Defendant has violated the provisions of the Texas Deceptive Trade
Practices Act as provided in Chapter 17 of the Texas Business and Commerce Code (“DTPA”).
31. Counter-Plaintiffs are consumers within the meaning of Section 17.45 of the DTPA which defines
a consumer as “an individual…who seeks or acquires by purchase or lease, any goods or services.”
32. Counter-Defendant is a “person” who can be sued under the DTPA pursuant to Section 17.45 of
the DTPA, which defines “person” as an individual, corporation, association, or other group
however organized.
33. Counter-Defendant violated the DTPA when Counter-Defendant engaged in false, misleading, or
deceptive acts or practices that Counter-Plaintiffs relied on to Counter-Plaintiffs’ detriment.
Specifically, Counter-Defendant engaged in the following conduct:
a. Causing confusion or misunderstanding as to the source, sponsorship, approval, or
certification of goods or services by misrepresenting that the note and deed of trust at
issue in this case was property assigned to Counter-Defendant;
b. Representing that goods or services have sponsorship, approval, characteristics,
ingredients, uses, benefits, or quantities which they do not have or that a person has
sponsorship, approval, status, affiliation, or connection which he does not, specifically,
Counter-Defendant is fully aware of the complicated and intricate fraudulent schemes of
Countrywide and Bank of America with regard to the fraudulent use of America’s
Wholesale Lender, a non-existent entity, as forming the basis of the claims that Counter-
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Defendant is seeking to enforce through foreclosure of Counter-Plaintiffs’ homestead.
Repeatedly, month after month, Counter-Defendant has sent statements, demand
letters, threats of litigation, and intimidation in an attempt to solicitpayment from
Counter-Plaintiffs so as to consume the fruit of a poisonous tree for which Counter-
Defendant has already been compensated through settlements and judgments, and for
which Counter-Defendant knows to be fraudulent.
c. Representing that an agreement confers or involves rights, remedies, or obligations which
it does not have or involve or which are prohibited by law; specifically, Counter-Defendant
knows that the loans and security documents made the subject of this lawsuit are
fraudulent and unenforceable, however, Counter-Defendant is preying upon the
ignorance of Counter-Plaintiffs in an attempt to profit from a fraudulent scheme that has
been litigated countless times to no avail for Counter-Defendant.
d. Failing to disclose information concerning goods or services which was known at the time
of the transaction, if such failure to disclose such information was intended to induce the
consumer into a transaction which the consumer would not have entered had the
information been disclosed; specifically, Counter-Defendant failed to disclose that
America’s Wholesale Lender was a bogus company created by Countrywide to perpetrate
a fraud and maximize profits by avoiding taxes and licensing fees, but instead accepted
an assignment of the loan which Counter-Defendant has used to mislead and deceive
Counter-Plaintiffs into payment or forfeiture of their home. Counter-Defendants were in
the prime position of knowing the details of the fraudulent, criminal, and unconscionable
conduct of Countrywide Home Loans and Bank of America, yet failed to disclose such
information to Counter-Plaintiffs in an attempt to induce them to forefeit their property
or pay on a void note.
34. Counter-Defendant violated the DTPA when Counter-Defendant engaged in an unconscionable
course of action that, to Counter-Plaintiffs’ detriment, took advantage of Counter-Plaintiffs lack
of knowledge, ability, experience, or capacity to a grossly unfair degree. Specifically, the acts of
Counter-Defendants alleged in this pleading constitute and establish Counter-Defendant’s
unconscionable conduct.
35. Counter-Plaintiffs seek unliquidated damages within the jurisdictional limits of this Court for
Counter-Defendant’s violations of the DTPA.
36. Counter-Defendant acted knowingly and intentionally, with regard to the conduct forming the
basis of Counter-Plaintiffs’ DTPA claims, which entitle Counter-Plaintiffs to recover the following
additional damages:
a. Mental-anguish damages under Section 17.50(b)(1) of the DTPA; and
b. Treble economic damages under Section 17.50(b)(1) of the DTPA.
37. Further, Counter-Plaintiffs seek the recovery of attorney’s fees pursuant to Section 17.50(d) of
the DTPA.
ORIGINAL COUNTERPETITION
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Fraud
38. Counter-Plaintiffs allege that Counter-Defendant has engaged in common law fraud and
conspiracy, with Countrywide Home Loans, Inc. and Bank of America, N.A., to perpetrate a fraud
on Counter-Plaintiffs based upon the conduct alleged in this petition.
39. Counter-Defendant has been sued in multiple jurisdictions for this same fact pattern of fraud
involving transfers of loans from America’s Wholesale Lender through MERS. Counter-Defendant
is well aware of the fraudulent scheme employed by Countrywide Home Loans, Inc., perpetuated
by Bank of America N.A., and now in the hands of Counter-Defendant. Instead of informing
Counter-Plaintiffs that they were the victims of a fraud which has been wholly and completely
paid for by TARP funds and insurance proceeds, and for which Counter-Defendant has been
compensated through settlements and judgments in other jurisdictions, Counter-Defendant has
come to this court, with tight lips, seeking first summary proceedings in the 67th District Court
through the use of TRCP 736 proceeding, and now this lawsuit. This lawsuit evidences Counter-
Defendant’s desire to suck every last dollar out of this fraudulent scheme, through court
settlements with Bank of America and out of the pockets of the ignorant consumer who is the
ultimate victim of the sham.
40. Counter-Plaintiffs have been injured as a direct and proximate result of the fraud and specifically
seeks unliquidated damages within the jurisdictional limits of this Court.
WHEREFORE, PREMISES CONSIDERED, Counter-Plaintiffs pray that upon final hearing in this matter,
Counter-Plaintiffs:
• Be awarded a declaratory judgment consistent with this pleading;
• Actual damages, statutory damages, and exemplary damages as requested in this pleading;
• Attorney’s fees and costs of court alleged and as allowed by law, through trial and appeal if
necessary;
• Pre-judgment and post-judgment interest as allowed by law;
• Such other and further relief to which Counter-Plaintiffs may show themselves justly entitled.
ORIGINAL COUNTERPETITION
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Respectfully submitted,
THE GROCE FIRM PLLC
8201 Mid Cities Boulevard, Suite 200
North Richland Hills, Texas 76182
Tel: 817-581-0040
Fax: 817-581-0048
By:____________________________________
JOHN M. GROCE, JR. Bar No. 00793860
Email: johnjr@groceandgroce.com
ATTORNEYS FOR COUNTER-PLAINTIFFS
CLARK S. DENNIS AND VICKIE DENNIS
Certificate of Service
I certify that a true and correct copy of the foregoing document has been electronically served to opposing
counsel and parties through the duly authorized Electronic Filing Service Provider, on July 29, 2019.
__________________________________________
JOHN M. GROCE, JR.
Attorney for Counter-Plaintiffs
ORIGINAL COUNTERPETITION
No 342-308150-19
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Preview
342-308150-19 FILED TARRANT COUNTY 7/29/2019 4:34 PM THOMAS A. WILDER DISTRICT CLERK No. 342-308150-19 THE BANK OF NEW YORK MELLON § FKA THE BANK OF NEW YORK, AS § TRUSTEE FOR CERTIFICATEHOLDERS OF § CWABS INC, ASSET-BACKED CERTIFICATES, § SERIES 2007-5, ITS SUCCESSORS AND § ASSIGNS, § IN THE DISTRICT COURT OF § TARRANT COUNTY, TEXAS Plaintiff § § 342nd JUDICIAL DISTRICT Vs. § § CLARK S. DENNIS and VICKIE DENNIS, § § Defendants § ORIGINAL COUNTERPETITION TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW Counter-Plaintiffs, CLARK S. DENNIS and VICKIE DENNIS, who file this original counterpetition complaining of Counter-Defendant THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, as Trustee for Certificate Holders of CWABS Inc. Asset-Backed Certificates, Series 2007-5, Its Successors and Assigns, and in support would show the Court as follows: Discovery Control Plan 1. Counter-Plaintiffs intend to conduct discovery under Level Two (2) Discovery Control Plan as provided by Rule 190.3 of the Texas Rules of Civil Procedure. Claim for Relief 2. Counter-Plaintiffs seeks monetary relief over $ 200,000.00 but not more than $ 1,000,000.00, and non-monetary relief. Parties 3. Counter-Plaintiff, CLARK S. DENNIS, is an individual who resides in Tarrant County, Texas. 4. Counter-Plaintiff, VICKIE DENNIS, is an individual who resides in Tarrant County, Texas. 5. Counter-Defendant, THE BANK OF NEW YORK MELLON f/k/a The Bank of New York, as trustee for Certificate Holders of CWABS Inc., Asset-Backed Certificates, Series 2007-5, Its Successors and Assigns, (hereinafter referred to as “BONY”) is an entity organized under the laws of the State of New York and authorized to transact business in the State of Texas, may be served with process by serving its attorney of record in this matter, Angela K. Walter. ORIGINAL COUNTERPETITION No 342-308150-19 The Bank of New York Mellon v. Clark Dennis and Vickie Dennis Page |1 Jurisdiction and Venue 6. The court has submit-matter jurisdiction over the lawsuit because the amount in controversy exceeds the Court’s minimum jurisdictional requirements and the issues in this case involve title to real estate located in the State of Texas. 7. The Court has personal jurisdiction over Counter-Defendant, BONY, because BONY does business in the State of Texas and has voluntarily submitted to the jurisdiction of this Court. 8. Venue is proper in Tarrant County, Texas, because this counter-petition affects the title to real property located in Tarrant County, Texas, and related documents pertaining thereto. Factual Basis Support Claims 9. Counter-Plaintiffs’ purchased their home at 4117 Sarita Drive, Fort Worth, Tarrant County, Texas in June 2003 and financed the purchased through National City Mortgage. 10. In February 2007, Counter-Plaintiffs paid off the purchase-money note through a home-equity loan with Countrywide Home Loans. 11. It is now well known that Countrywide Home Loans was engaged in a huge fraudulent scheme which resulted in criminal charges and the economic fall with the home-mortgage subprime lending scandal. As a result of the wide spread fraud and criminal practices of Countywide Home Loans, Countrywide Financial (the parent company of Countrywide Home Loans) worked out a deal with Bank of America which resulted in Countrywide permanently closing its doors on July 2, 2008. 12. In this case, Counter-Plaintiffs signed a home-equity promissory note and secured the note with a lien in favor of the lender, America’s Wholesale Lender. See Exhibits A and B to Plaintiff’s Original Petition. The date of the note is February 13, 2007, just over a year before Countrywide Home Loans ceased operations. 13. The lender in this transaction is America’s Wholesale Lender, which is identified in the note as a corporation existing under the laws of New York. In fact, America’s Wholesale Lender was not a corporation and has never existed. This was a fraudulent arm of Countrywide. Countrywide trademarked the name (Reg. # 1872784) but never incorporated America’s Wholesale Lender as a corporation in New York. The now defunct lender also failed to file any D/B/A papers in New York.1 14. The home-equity promissory note at issue in this case identifies MERS (Mortgage Electronic Registration Systems, Inc.) as a nominee for Lender. However, MERS can only act as a nominee for its members and can only assign the mortgagee rights for its members. America’s Wholesale 1 It is interesting to note that another scrupulous and fraudulent artist recognized an opportunity to profit from this debacle and incorporated America’s Wholesale Lender Inc. in December, 2008. However, this entity has nothing to do with the Countrywide Loans and this company was ultimately sued by Bank of America for trademark infringement, fraud and other related allegations for the deception. Case No. 8:12-cv-00242-CJC-AN, styled Countrywide Home Loans, Inc.; Bank of America, N.A. vs. America’s Wholesale Lender, Inc., a New York Corporation (and various related individuals), pending in the United States District Court, Central District of California, Western Division. ORIGINAL COUNTERPETITION No 342-308150-19 The Bank of New York Mellon v. Clark Dennis and Vickie Dennis Page |2 Lender was NOT and NEVER has been a MERS member, and its signatories knew or should have known that America’s Wholesale Lender was NOT and NEVER was a New York corporation. 15. Counter-Defendant attaches Exhibit C as evidence of the assignment of the Dennis’ loan. As noted in Exhibit C, the assignment was executed by a representative of MERS on behalf of America’s Wholesale Lender (a company that does not exist nor is a member of MERS for which MERS would have authorization to execute). 16. This is a common fact pattern as there were over 3.5 million loans between 2003 and 2007 that were neither funded, nor owned by Countrywide Home Loans or Bank of America, but were funded by credit lines with the Federal Reserve. Countrywide was entrusted with approximately $10 billion in tax payer funds (originally set aside for TARP funds). 17. Every state has strict guidelines for mortgage lending (requiring state licensing). Starting in 2003, Countrywide sought to circumvent individual state licensing laws and corporation taxes by using a name and entity that would stay under the radar. This was one of the earliest frauds connected to this scheme and was devised to avoid taxes and licensing. The plan involved Countrywide Home Loans, Inc. registering the trade name America’s Wholesale Lender with the Secretary of State in each state it sought to do business. Accordingly, each respective Secretary of State would show “Countrywide Home Loans, Inc d/b/a America’s Wholesale Lender” under the foreign corporation registration section. Countrywide began making thousands of loans in every state under the name America’s Wholesale Lender and successfully avoided licensing requirements and paying taxes on profits that were actually realized by Countrywide. Countrywide encountered a major snag in its scheme when observant county recorders in several states refused to record security documents that were held by a trade name or dba, i.e.: America’s Wholesale Lender. Trade names have no legal capacity, therefore they cannot own property, file lawsuits, or hold recorded security interests. In response to this problem, Countrywide committed yet another fraud, which listed the lender on their mortgages and deeds of trust as follows: “Lender is America’s Wholesale Lender, a corporation organized and existing under the laws of New York. Countrywide resubmitted its mortgages to the previously unwilling county clerks who accepted them without reservation because the mortgage holder was now shown to be a corporation. No one noticed that no such corporation was in existence. 18. By 2006, many of the loans made in the name of America’s Wholesale Lender, A New York Corporation, began to default. Countrywide starting having problems foreclosing on loans that were made in the name of the non-existent corporation. The only address listed for America’s Wholesale Lender was a P.O. Box in Plano, Texas. Countrywide continued to foreclose on as many of the loans as they could. By 2008, Countrywide imploded due to their extensive frauds committed in the loan origination and loan serving areas. Many attorneys and investigators were looking more closely at these loans. As Countrywide dissolved, Bank of America picked up where Countrywide left off with respect to America’s Wholesale Lender. Lawsuits in 22 different states began challenging the loans in the name of America’s Wholesale Lender. Bank of America decided to continue its fraudulent scheme by bringing in BONY, Duetsche Bank, and U. S. Bank NT. Bank of America would use the services of MERS to assign these fraudulent notes and deeds of trust to either BONY, Duetsche Bank or US Bank NT. Thereafter, one the assignee banks would pursue foreclosure of the bogus loan. ORIGINAL COUNTERPETITION No 342-308150-19 The Bank of New York Mellon v. Clark Dennis and Vickie Dennis Page |3 19. This scheme has been the subject of hundreds of lawsuit across the county. In 2011, the United States, acting through the United States Attorney General’s Office, and Bank of America/Countrywide entered into a consent judgment in the United States District Court, Central District of California, whereby Bank of America/Countrywide paid $ 335M into a fund for the benefit of the victims of their fraudulent schemes. The Attorney General for the State of New York has recovered over $ 400M from Bank of America stemming from these fraudulent foreclosures. BONY and Duetsche Bank have been significantly fined for their participation in these transactions.2 20. BONY is not an innocent victim in all of this fraud. BONY benefited tremendously from these fraudulent schemes through settlements and TARP funds. For example, BONY, acting as a trustee and facing numerous lawsuits from the beneficial interest holders of the trusts for which BONY was serving, entered into a settlement agreement with Bank of America (Countrywide’s successor in interest) for approximately $ 8.5 billion to protect BONY’s investors and trust beneficiaries from the “sour” and defective loans purchased by BONY from Bank of America/Countrywide. This settlement agreement was approved by a New York federal judge in January 2015. 21. As a result of the multi-billion dollar settlement, Counter-Defendant was compensated for the defective loans by Bank of America/Countrywide which included loans such as the loan before this Court. However, Counter-Defendant seeks more than just the settlement with Bank of America/Countrywide, they now seek to enforce this bogus loan against Counter-Plaintiffs. 22. Counter-Plaintiffs became aware that its lender was engaging in some type of fraud. As the issues with the fraudulent schemes of Countrywide became the focus of the news in 2009-2010, the federal government intervened with various assistance programs for the homeowners of these shady home loans. One such program was the Home Affordable Modification Program which was introduced to Counter-Plaintiffs by Bank of America as part of their efforts to address the Countrywide Home Loan scandal that they purchased. 23. Counter-Plaintiffs worked through the application process and completed all of the steps required to participate in the Home Affordable Modification Program, however Bank of America failed to modify the loan as required by the plan. It became increasingly difficult to contact a Bank of America representative and each time they did, Counter-Plaintiffs were told that they should receive their new paperwork shortly. That never happened, so Counter-Plaintiffs did not make any further payments on the loan after March 1, 2009.3 2 Cases in over 22 different states have been filed alleging the fraudulent loans with the non-existent America’s Wholesale Lender. Bank of America allowed most of those cases to go to default or result in cancellation of the note. In some cases, borrowers have not only been able to cancel the note, but have obtained a settlement or judgment for the entire amount of funds paid to the non-existent company. As a way to avoid paying back the money to the borrowers, Bank of America began assigning the loans to other lenders like BONY so as to minimize the damages to cancellation of the note. Counsel for Counter-Plaintiffs has not found a single case anywhere in the country where America’s Wholesale Lender, when exposed as a non-existent entity, prevailed on its attempts to foreclose (either brought through Bank of America or an assignee). 3 In fact by 2010, Bank of America was being sued in multiple jurisdictions for claims alleging Bank of America was intentionally withholding government funds intended to save homeowners from foreclosure. The lawsuits claim ORIGINAL COUNTERPETITION No 342-308150-19 The Bank of New York Mellon v. Clark Dennis and Vickie Dennis Page |4 24. On October 19, 2010, Counter-Plaintiffs gave Bank of America notice of its claims and rights under the Texas Deceptive Trade Practices Act (DTPA). 25. Bank of America took no further action to foreclose or pursue the loan against Counter-Plaintiffs. 26. Almost a year later, Bank of America attempted to assign the loan to BONY (a similar fact pattern Bank of America employed a similar fact pattern to maximize profitability, whereby it transferred for value to an assignee complicit in this fraudulent scheme (one of 3 banks) when the fraudulent loan was questioned or threatened with litigation). Obviously complicit in the fraud, BONY took no action to assert its rights under the loan agreement until filing a petition for foreclosure under the summary proceedings permitted by TRCP 736 in November 2018 (almost 10 years after the alleged loan was defaulted). Judge Cosby, presiding judge of the 67th District Court of Tarrant County, Texas, denied the request for foreclosure. This lawsuit followed. Claims of Relief 27. Based upon the foregoing factual allegations and contentions, Counter-Plaintiffs assert the following causes of action: Declaratory Judgment 28. Pursuant to the provision of Chapter 37 of the Texas Civil Practice and Remedies Code, Counter- Plaintiffs seek a judgment which make the following declarations: a. Clark S. Dennis and Vickie Dennis are the owners of real property legally described as Lot 27, in Block 78, of WESTCLIFF ADDITION, an Addition to the City of Fort Worth, Tarrant County, Texas, according to the Map thereof recorded in Volume 388-38, Page 57, of the Map Records of Tarrant County, Texas, and more commonly known as 4117 Sarita Drive, Fort Worth, Tarrant County, Texas (“Property”). b. Clark S. Dennis and Vickie Dennis entered into a promissory note with America’s Wholesale Lender, identified as a corporation existing under the laws of New York, on or about February 13, 2007, secured by a lien on the Property. c. America’s Wholesale Lender was not a corporation organized and existing under the laws of New York on February 13, 2007, or at any time before or after. d. America’s Wholesale Lender was not a licensed lender in the State of Texas on February 13, 2007, or at any time before or after. e. America’s Wholesale Lender is a fictitious name registered as a trademark by Countrywide Home Lending, Inc. f. America’s Wholesale Lender is not a member of the Mortgage Electronic Registrations Systems, Inc. (MERS). g. MERS did not have the authority to act, at any time, on behalf of America’s Wholesale Lender. that Bank of America was systemically thwarting homeowners access to Troubled Asset Relief Programs (TARP) funds. This is the same conduct upon which Counter-Plaintiffs based their claims in the DTPA demand letter. ORIGINAL COUNTERPETITION No 342-308150-19 The Bank of New York Mellon v. Clark Dennis and Vickie Dennis Page |5 h. MERS did not have the authority to assign the loan and related lien of Clark S. Dennis and Vickie Dennis to The Bank of New York Mellon f/k/a The Bank of New York, as Trustee for the Certificate Holders of CWABS INC., Asset-backed Certificates, Series 2007-5. i. The Bank of New York Mellon f/k/a The Bank of New York, as Trustee for the Certificate Holders of CWABS, INC., Asset-Backed Certificates, Series 2007-5 holds no valid security interest in the Property and is not the holder of the note between Clark S. Dennis and Vickie Dennis and America’s Wholesale Lender. j. Assignment of Deed of Trust recorded as Instrument D211207333 in the Deed Records of Tarrant County, Texas is declared to be void in all respects. k. The note between Clark S. Dennis and Vickie Dennis and America’s Wholesale Lender is declared void ab initio and the Texas Home Equity Security Instrument, recorded as Instrument D207064507 in the Tarrant County Deed Records, which secures said note by a lien on the Property, is hereby cancelled and declared void ab initio. l. Any cloud on title to the Property created by the loan transaction with America’s Wholesale Lender on or about February 13, 2007, is hereby removed in its entirety, and all such liens or clouds on title originating from said transaction are hereby declared null and void and of no effect for any purpose. 29. In addition to the declaratory judgment requested in this pleading, Counter-Plaintiffs seek the recovery of attorney’s fees and costs of court as allowed by the Texas Civil Practice and Remedies Code, Chapter 37. Deceptive Trade Practices Act Violations 30. Counter-Plaintiffs allege that Defendant has violated the provisions of the Texas Deceptive Trade Practices Act as provided in Chapter 17 of the Texas Business and Commerce Code (“DTPA”). 31. Counter-Plaintiffs are consumers within the meaning of Section 17.45 of the DTPA which defines a consumer as “an individual…who seeks or acquires by purchase or lease, any goods or services.” 32. Counter-Defendant is a “person” who can be sued under the DTPA pursuant to Section 17.45 of the DTPA, which defines “person” as an individual, corporation, association, or other group however organized. 33. Counter-Defendant violated the DTPA when Counter-Defendant engaged in false, misleading, or deceptive acts or practices that Counter-Plaintiffs relied on to Counter-Plaintiffs’ detriment. Specifically, Counter-Defendant engaged in the following conduct: a. Causing confusion or misunderstanding as to the source, sponsorship, approval, or certification of goods or services by misrepresenting that the note and deed of trust at issue in this case was property assigned to Counter-Defendant; b. Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have or that a person has sponsorship, approval, status, affiliation, or connection which he does not, specifically, Counter-Defendant is fully aware of the complicated and intricate fraudulent schemes of Countrywide and Bank of America with regard to the fraudulent use of America’s Wholesale Lender, a non-existent entity, as forming the basis of the claims that Counter- ORIGINAL COUNTERPETITION No 342-308150-19 The Bank of New York Mellon v. Clark Dennis and Vickie Dennis Page |6 Defendant is seeking to enforce through foreclosure of Counter-Plaintiffs’ homestead. Repeatedly, month after month, Counter-Defendant has sent statements, demand letters, threats of litigation, and intimidation in an attempt to solicitpayment from Counter-Plaintiffs so as to consume the fruit of a poisonous tree for which Counter- Defendant has already been compensated through settlements and judgments, and for which Counter-Defendant knows to be fraudulent. c. Representing that an agreement confers or involves rights, remedies, or obligations which it does not have or involve or which are prohibited by law; specifically, Counter-Defendant knows that the loans and security documents made the subject of this lawsuit are fraudulent and unenforceable, however, Counter-Defendant is preying upon the ignorance of Counter-Plaintiffs in an attempt to profit from a fraudulent scheme that has been litigated countless times to no avail for Counter-Defendant. d. Failing to disclose information concerning goods or services which was known at the time of the transaction, if such failure to disclose such information was intended to induce the consumer into a transaction which the consumer would not have entered had the information been disclosed; specifically, Counter-Defendant failed to disclose that America’s Wholesale Lender was a bogus company created by Countrywide to perpetrate a fraud and maximize profits by avoiding taxes and licensing fees, but instead accepted an assignment of the loan which Counter-Defendant has used to mislead and deceive Counter-Plaintiffs into payment or forfeiture of their home. Counter-Defendants were in the prime position of knowing the details of the fraudulent, criminal, and unconscionable conduct of Countrywide Home Loans and Bank of America, yet failed to disclose such information to Counter-Plaintiffs in an attempt to induce them to forefeit their property or pay on a void note. 34. Counter-Defendant violated the DTPA when Counter-Defendant engaged in an unconscionable course of action that, to Counter-Plaintiffs’ detriment, took advantage of Counter-Plaintiffs lack of knowledge, ability, experience, or capacity to a grossly unfair degree. Specifically, the acts of Counter-Defendants alleged in this pleading constitute and establish Counter-Defendant’s unconscionable conduct. 35. Counter-Plaintiffs seek unliquidated damages within the jurisdictional limits of this Court for Counter-Defendant’s violations of the DTPA. 36. Counter-Defendant acted knowingly and intentionally, with regard to the conduct forming the basis of Counter-Plaintiffs’ DTPA claims, which entitle Counter-Plaintiffs to recover the following additional damages: a. Mental-anguish damages under Section 17.50(b)(1) of the DTPA; and b. Treble economic damages under Section 17.50(b)(1) of the DTPA. 37. Further, Counter-Plaintiffs seek the recovery of attorney’s fees pursuant to Section 17.50(d) of the DTPA. ORIGINAL COUNTERPETITION No 342-308150-19 The Bank of New York Mellon v. Clark Dennis and Vickie Dennis Page |7 Fraud 38. Counter-Plaintiffs allege that Counter-Defendant has engaged in common law fraud and conspiracy, with Countrywide Home Loans, Inc. and Bank of America, N.A., to perpetrate a fraud on Counter-Plaintiffs based upon the conduct alleged in this petition. 39. Counter-Defendant has been sued in multiple jurisdictions for this same fact pattern of fraud involving transfers of loans from America’s Wholesale Lender through MERS. Counter-Defendant is well aware of the fraudulent scheme employed by Countrywide Home Loans, Inc., perpetuated by Bank of America N.A., and now in the hands of Counter-Defendant. Instead of informing Counter-Plaintiffs that they were the victims of a fraud which has been wholly and completely paid for by TARP funds and insurance proceeds, and for which Counter-Defendant has been compensated through settlements and judgments in other jurisdictions, Counter-Defendant has come to this court, with tight lips, seeking first summary proceedings in the 67th District Court through the use of TRCP 736 proceeding, and now this lawsuit. This lawsuit evidences Counter- Defendant’s desire to suck every last dollar out of this fraudulent scheme, through court settlements with Bank of America and out of the pockets of the ignorant consumer who is the ultimate victim of the sham. 40. Counter-Plaintiffs have been injured as a direct and proximate result of the fraud and specifically seeks unliquidated damages within the jurisdictional limits of this Court. WHEREFORE, PREMISES CONSIDERED, Counter-Plaintiffs pray that upon final hearing in this matter, Counter-Plaintiffs: • Be awarded a declaratory judgment consistent with this pleading; • Actual damages, statutory damages, and exemplary damages as requested in this pleading; • Attorney’s fees and costs of court alleged and as allowed by law, through trial and appeal if necessary; • Pre-judgment and post-judgment interest as allowed by law; • Such other and further relief to which Counter-Plaintiffs may show themselves justly entitled. ORIGINAL COUNTERPETITION No 342-308150-19 The Bank of New York Mellon v. Clark Dennis and Vickie Dennis Page |8 Respectfully submitted, THE GROCE FIRM PLLC 8201 Mid Cities Boulevard, Suite 200 North Richland Hills, Texas 76182 Tel: 817-581-0040 Fax: 817-581-0048 By:____________________________________ JOHN M. GROCE, JR. Bar No. 00793860 Email: johnjr@groceandgroce.com ATTORNEYS FOR COUNTER-PLAINTIFFS CLARK S. DENNIS AND VICKIE DENNIS Certificate of Service I certify that a true and correct copy of the foregoing document has been electronically served to opposing counsel and parties through the duly authorized Electronic Filing Service Provider, on July 29, 2019. __________________________________________ JOHN M. GROCE, JR. Attorney for Counter-Plaintiffs ORIGINAL COUNTERPETITION No 342-308150-19 The Bank of New York Mellon v. Clark Dennis and Vickie Dennis Page |9