Complaint,Petition: RUSSELL DABBS vs. BANK OF AMERICA NA, et al

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                                12. - 00638

CAUSE No.
RUSSELL DABBS

Plaintiff, hey shi

Lee.
ieee ORS
vs. IDICIAL DISTRICT

BANK OF AMERICA N.A. ,

MORTGAGE ELECTRONIC REGISTRATION
SERVICE. & MACKIE WOLF ZIENTZ

& MANN P.C, AS SUBSTITUTE TRUSTEE

Defendant. DALLAS COUNTY, TEXAS

PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DISCOVERY

WRONGFUL FORECLOSURE & SUIT TO QUIET TITLE AND DECLARATORY
JUDGMENT

I
To all interested parties, the court and all Judiciary officers:
COMES NOW, Plaintiff RUSSELL DABBS, and files this original petition for Wrongful
Foreclosure and to Quiet Title in reference to the above styled and numbered cause, and in
support hereof would show the Court as follows:

Preliminaries

1. Plaintiff is RUSSELL DABBS, who resides at 725 GIBSON ST., .CEDAR HILL,
TEXAS 75104

Defendants is, BANK OF AMERICA N.A. MORTGAGE ELECTRONIC REGISTRATION
SERVICE. & MACKIE WOLF ZIENTZ & MANN P. C. AS SUBSTITUTE TRUSTEE.
Defendants may be served with notice of this lawsuit as follows: CERTIFIED MAIL,
PROCESS SERVER,

Discovery is proper under Level 2 of the Texas Rules of Civil Procedure.4. This lawsuit belongs in this court because the property in question is located at 725
GIBSON ST.. CEDAR HILL, TEXAS 75104 in DALLAS County, Texas. Also, the purported
contract, which in question in this lawsuit, if there is any contract, would have been signed and
was performable in DALLAS County, Texas.

Facts

5. Plaintiff, RUSSELL DABBS, is the owner of the property located at 725 GIBSON
ST...CEDAR HILL, TEXAS 75104

6. Defendant, BANK OF AMERICA N.A. & MORTGAGE ELECTRONIC REGISTRATION
SERVICE., is also claiming to be the owner of the property located at 725 GIBSON ST...
CEDAR HILL, TEXAS 75104

7. Defendants, BANK OF AMERICA N.A. ,& MORTGAGE ELECTRONIC REGISTRATION
SERVICE.'s claim to title is untrue and fraudulent and creates a “cloud” on Plaintiff ,RUSSELL
DABBS 's ownership of his property.

8. Plaintiff dispute(s) that Defendant own(s) the property in question, located at 725 GIBSON
ST.. .CEDAR HILL, TEXAS 75104.DALLAS County, Texas

9. Plaintiff RUSSELL DABBS,, dispute(s) that Defendant, BANK OF AMERICA N.A. ,
& MORTGAGE ELECTRONIC REGISTRATION SERVICE.’s corporate charter authorizes
Defendant to sue in foreclosure of consumer debt.

10.Plaintiff, RUSSELL DABBS, dispute(s) that he has or had a contract with Defendant, BANK
OF AMERICA N.A. ,& MORTGAGE ELECTRONIC REGISTRATION SERVICE., and
demand strict proof thereof.

11. Plaintiff RUSSELL DABBS,, dispute(s) that he owe(s} Defendant, BANK OF
AMERICA N.A. , & MORTGAGE ELECTRONIC REGISTRATION SERVICE., money and
demand strict proof thereof.

12. Plaintiff RUSSELL DABBS dispute(s) that Defendant, BANK OF AMERICA N.A. ,&
MORTGAGE ELECTRONIC REGISTRATION SERVICE authorized this action by delegating
authority to MACKIE WOLF ZIENTZ & MANN P. C. AS SUBSTITUTE AS TRUSTEE 6.,,
Attorney, and demand strict proof thereof.

13. Furthermore please find the attached affidavit of Plaintiff RUSSELL DABBS, in support
thereof, which is hereby incorporated herein by reference for all purposes.Conclusion

14. | IN CONCLUSION, Defendant, BANK OF AMERICA N.A. ,

& MORTGAGE ELECTRONIC REGISTRATION SERVICE. & MACKIE WOLF
ZIENTZ & MANN P. C. AS SUBSTITUTE TRUSTEE ., nor any of its officers,
representatives, agents, assigns or beneficiaries has ever provided any evidence in contradiction
to the matters set forth above and throughout. Again, it is an uncontrovertible fact that the
original promissory note in question, if one exists is, and always was, the property of Plaintiff
RUSSELL DABBS /borrowers, and the same did not knowingly or otherwise assign, transfer, or
give it away for another’s personal benefit and gain- all to the loss and detriment of Plaintiff,
RUSSELL DABBS/borrowers.

16. Any reasonable person would conclude such an adverse claim by Defendants, BANK OF
AMERICA N.A. & MORTGAGE ELECTRONIC REGISTRATION SERVICE. as being
ludicrous and unconscionable. Furthermore, it is against the law for one to fraudulently obtain
an unjust property, claim it as their own, and then further bargain, assign, or sale the same to
obtain an unjust enrichment, benefit, and gain for themselves- all at a loss and detriment to the
lawful, bonafided owner, in this case, Plaintiff RUSSELL DABBS

Accordingly, the record shall establish that all aforesaid facts, statements, determinations and the
related Attachment of Sworn Affidavit of Plaintiff RUSSELL DABBS, (which are incorporated
herein and made a part hereof in their entirety) are entirely true and correct and remain
unanswered, unrebutted, and uncontroverted “Axiom”.

Damages
Due to the wrongful Foreclosure, breach of contract, fraud, & negligence on behalf of the

Defendants, Plaintiff have suffered loss of equity in home of at least $75,000.00, in addition, Mr.
Dabbs has experience a high degree of discomfort and distress over the actions of the defendant.
Given that the conduct of the defendants was intentional and or done with reckless disregard for
the welfare of the Plaintiff, Plaintiff is entitled to punitive damages, as well .Plaintiff seeks an
amount in excess of the minimum jurisdictional limits of this court from Defendants for such
punitive damages.

Prayer

For the reasons stated above, Plaintiff, RUSSELL DABBS prays that the Court will find
that:
1) Plaintiff, RUSSELL DABBS, is in fact the rightful owner of the property located at
725 GIBSON ST... CEDAR HILL, TEXAS 75104

2) The Court will extinguish all claims to the contrary made be Defendants, BANK OF
AMERICA N.A. & MORTGAGE ELECTRONIC REGISTRATION SERVICE. &
MACKIE WOLF ZIENTZ & MANN P. C. AS SUBSTITUTE TRUSTEE

3) Grant Plaintiff, RUSSELL DABBS, any and all other relief to which she is
entitled.4) Plaintiff further prays that upon final hearing the following be entered:

1) Judgment against Defendant, Jointly and severely, for actual damages sustained by
Plaintiff in the amount of Seventy Five Thousand Dollars ($75,000.00);

2) Judgment against Defendants, Jointly and severely for cancellation of the
indebtedness described herein above;

3) Judgment against Defendant, Jointly and severely for punitive damages in an amount
to be determined by tier of fact;

4) Declaratory Judgment that Plaintiff are the owner of the property free and clear of
any liens in favor of Defendants;

5) Permanent Injunction enjoining and restraining Defendants set above.
6) Judgment for Plaintiff to recover their reasonable attorney’s fees as needed; as well as
a conditional award in the event of an appeal:

7) Judgment for both pre-judgment interest and post-judgment interest at the maximum
interest rate allowed by law:

8) Judgment for cost of court;

9) Judgment for such other and further relief to which Plaintiff's is entitled

Respectfully SubmittedTl:

FIRST CAUSE OF ACTION
Fraudulent Misrepresentation

{As to Defendants, BANK OF AMERICA N.A. ,
MORTGAGE ELECTRONIC REGISTRATION
SERVICE. & MACKIE WOLF ZIENTZ
& MANN P. C. AS SUBSTITUTE TRUSTEE)

19. Plaintiff hereby incorporates by reference all the facts and claims made in paragraphs 1 through 18
herein above.

20. Defendants knowingly and intentionally concealed material information from Plaintiff which is
tequired by federal and state statutes and regulations to be disclosed to the Plaintiff both before and after
closing.

21. Defendants also materially misrepresented material information to the Plaintiff with full knowledge of
Defendants at their affirmative representations were false, fraudulent, and misrepresented the truth at the
time said representations were made. Specifically, Defendants disguised the mortgage transaction to
create the appearance of the lender’s being a properly chartered and registered financial institution,
authorized to do business and to enter into the subject transaction, when in fact the real party in interest
was not disclosed to Plaintiff, and neither were the various fees, rebates, refunds, kickbacks, profits and
gains of the various parties who participated in this unlawful MBS scheme.

22. Said real party in interest, i.e. the source of funding for the loan and the person to whom the note was
transmitted or eventually —assigned” was neither a financial institution nor an

entity or person authorized, chartered or register to do business in the state, nor to act as banking, lending
or other financial institution anywhere else.

23. As such, this fraudulent scheme (which was in actuality a plan to trick the Plaintiff into signing what
would become a negotiable security used to sell unregulated securities under fraudulent and changed
terms from the original notes) was in fact a sham to use Plaintiff's interest in the real property to collect
interest and other fees, in excess of the legal rate. Defendants also failed to disclose that those in the chain
of title did not hold the beneficial interest in Plaintiff's note and deed of trust and that the foreclosing
entities and the alleged assigned beneficiary of the note and deed of trust never had the rights to receive
Plaintiff's payments on his mortgage. Defendants also failed to disclose at the time of the Notice of
Default and Trustee Sale, the true beneficiary of the note and deed of trust so that Plaintiff could negotiate
with the true beneficiary to save his property.

24. Under the circumstances, the material omissions of material misrepresentations of the Defendants
were malicious.

25. Plaintiff not being an investment banker, securities dealer, mortgage lender, or mortgage broker,
reasonably relied upon the representations of the Defendants in agreeing to execute the mortgage loan
documents.

26. Had Plaintiff known of the falsity of Defendants’ representations,
Plaintiff would not have entered into the transaction that is the subject of this action.27. As a direct and proximate cause of Defendants’ material omissions and material misrepresentations,
Plaintiff has suffered damages, all according to proof at trial.

28. Plaintiff first learned of the actions of Defendants, including their failure to disclose and the fraud
committed upon him in March 2012. Any applicable statute of limitations should run from this date.
Plaintiff first learned of the actions of Defendants, including their failure to disclose and the fraud
committed upon him in March 2012. Any applicable statute of limitations should run from this date.
Plaintiff could not have learned of these violations at the time the loan was obtained by looking at his loan
documents and escrow closing statements as the true facts of the lender and the securitization of his note
and deed of trust and the fees attached thereto, which were undisclosed to him, and were not apparent
from the face of the loan documents, nor deed of trust.

Ill

SECOND CAUSE OF ACTION
Violations of Truth In Lending Act
(As to Defendants, BANK OF AMERICA N.A. ,
MORTGAGE ELECTRONIC REGISTRATION
SERVICE. & MACKIE WOLF ZIENTZ
& MANN P. C. AS SUBSTITUTE TRUSTEE

29. Plaintiff reaffirms and realleges paragraphs 1 through 28 above herein as if set
forthfully below.

30. Plaintiff signed a Promissory Note and Mortgage. He unknowingly converting his
property into an alleged asset of a MBS, while his credit and signatures were used to sell
securities without his consent or knowledge of the terms and conditions of the contract. Plaintiff
was never informed of the nature of the scheme. He was deliberately induced into signing a
Negotiable Instrument which was never intended as such, but intended as collateral for a
mortgage-backed security investment. The fact that this loan was meant to fund a mortgage-
backed security investment was a "Material disclosure" which was deliberately and intentionally
undisclosed.

31. Defendants failed to include and disclose certain charges in the finance charge
shown on the TILA statement, which charges were imposed on Plaintiff incident to the extension
of credit to Plaintiff (fees charged on the MBS scheme) and were required to be disclosed
pursuant to 15 USC§1605 and Regulation Z §226.4, thus resulting in an improper disclosure of
financial charges in violation of 15 USC §1601 et seq., Regulation Z §226.18(d). Such
undisclosed charges included some identified on the settlement statement listing the amount
financed which is different from the sum listed in the original Note.

32. By calculating the annual percentage rate ("APR") based upon improperly calculated
and disclosed amounts, Defendants are in violation of 15 USC §1601 et seq., Regulation Z
§226.18(c), 18(d), and 22.D33. Defendants’ failure to provide the required disclosures provides Plaintiff with the
right to rescind the transaction, and Plaintiff, through this public complaint which is intended to
be construed for purposes of this claim as a formal notice of rescission, hereby elect to rescind
the transaction.

34. Plaintiff first learned of the actions of Defendants, including their failure to disclose
and the fraud committed upon him in March 2012. Any applicable statute of limitations should
run from this date. Plaintiff could not have learned of these violations at the time the loan was
obtained by looking at his loan documents and escrow closing statements as the true facts of the
lender and the securitization of his note and deed of trust and the fees attached thereto, which
were undisclosed to him, were not apparent from the face of the loan documents, nor deed of
trust.

IV

THIRD CAUSE OF ACTION
Violations Of Fair Credit Reporting Act
(As to Defendants, BANK OF AMERICA N.A.,
MORTGAGE ELECTRONIC REGISTRATION
SERVICE. & MACKIE WOLF ZIENTZ
& MANN P. C. AS SUBSTITUTE TRUSTEE)

35. Plaintiff reaffirms and realleges paragraphs 1 through 26 above as if set forth fully
herein below.

36. Plaintiff signed a Promissory Note and Mortgage. He was unknowingly converting
his property into an alleged asset of a MBS, while his credit and signatures were used to sell
securities without his consent or knowledge of the terms and conditions of the contract.

Plaintiff was never informed of the nature of the scheme. He was deliberately induced into
signing a Negotiable Instrument which was never intended as such, but intended as collateral for
a mortgage-backed security investment. The fact that this loan was meant to fund a mortgage-
backed security investment was a "Material disclosure" which was deliberately and intentionally
undisclosed. When Defendants falsely determined a —default! under Plaintiff's mortgage, it
provided false and detrimental information that negatively affected Plaintiff's credit.

37. At all times material, Defendants qualified as a provider of information to the Credit
Reporting Agencies, including but not limited to Experian, Equifax and Trans Union, under the
fair credit reporting act. Defendants wrongfully, improperly, and illegally reported negative
information as to Plaintiff, incorrectly reporting that Plaintiff was in default, to one or more
credit reporting agencies, resulting in Plaintiff having negative information on his credit reports
and the lowering of his FICO scores.

A. The negative information included, but was not limited to, an excessive amount
of debt into which Plaintiff was tricked into signing;

B. Notwithstanding the above, Plaintiff has paid each and every payment on timefrom the time of the closing of the loan and until Plaintiff s default.

38. Pursuant to 15 USC §1681 (s) (2) (b), Plaintiff is entitled to maintain a private cause
of action against Defendants for an award of damages in an amount to be proven at the time of
trial for all violations of The Fair Credit Reporting Act which caused actual damages to Plaintiff,
including emotional distress and humiliation.

39. Plaintiff is entitled to recover damages from Defendants for negligent non-
compliance with The Fair Credit Reporting Act pursuant to 15 USC§1681(n)(a)(2) in an amount
to be proven at the time of trial.

40. Plaintiff first learned of the actions of Defendants, including their failure to disclose
and the fraud committed upon him in March 2012. Any applicable statute of limitations should
run from this date. Plaintiff first learned of the actions of Defendants, including their failure to
disclose and the fraud committed upon him in March 2012. Any applicable statute of limitations
should run from this date. Plaintiff could not have learned of these violations at the time the loan
was obtained by looking at his loan documents and escrow closing statements as the true facts of
the lender and the securitization of his note and deed of trust and the fees attached thereto, which
were undisclosed to him, were not apparent from the face of the loan documents, nor deed of
trust

Vv

FOURTH CAUSE OF ACTION
Breach of Fiduciary Duty
(As to All Defendants and DOES)

41. Plaintiff reaffirms and realleges paragraphs 1 through 40 above as if set forth fully
herein below.

42. Defendants, by their actions and contracting to provide mortgage loan services and a
loan program to Plaintiff which was not only to be best suited to the Plaintiff given his income
and expenses, but by which Plaintiff would also be able to satisfy his obligations without risk of
losing his home, were "fiduciaries" in which Plaintiff reposed trust and confidence, especially
given that Plaintiff was not and is not an investment banker, securities dealer, mortgage lender or
mortgage broker.

43. Defendants breached their fiduciary duties to Plaintiff by fraudulently inducing
Plaintiff to enter into a mortgage transaction which was contrary to Plaintiffs’ stated intentions;
contrary to Plaintiff s interest; and contrary to Plaintiff's preservation of his property. Further,
Defendants, who were not the real party in interest, lacking standing to foreclose, stated to
Plaintiff that they were entitled to receive the mortgage payments from Plaintiff and filed a falsenotice of default and wrongfully has set Plaintiff s property for a trustee sale.

44. As a direct and proximate result of the Defendants’ breaches of their fiduciary duties,
Plaintiff has suffered damages.

45. Under the totality of the circumstances, the Defendants’ actions were willful,
wanton, intentional, and with a callous and reckless disregard for the rights of the Plaintiff,
justifying an award of not only actual compensatory damages, but also exemplary punitive
damages to serve as a deterrent not only as to future conduct of the named Defendants herein, but
also to other persons or entities with similar inclination.

46. Plaintiff first learned of the actions of Defendants, including their failure to disclose
and the fraud committed upon him in March 2012. Any applicable statute of limitations should
tun from this date. Plaintiff first learned of the actions of Defendants, including their failure to
disclose and the fraud committed upon him in March 2012. Any applicable statute of limitations
should run from this date. Plaintiff could not have learned of these violations at the time the loan
was obtained by looking at his loan documents and escrow closing statements as the true facts of
the lender and the securitization of his note and deed of trust and the fees attached thereto, which
were undisclosed to him, were not apparent from the face of the loan documents, nor deed of
trust.

VI

FIFTH CAUSE OF ACTION
Unjust Enrichment
(As to All Defendants and DOES)

47. Plaintiff reaffirms and realleges paragraphs | through 46 above as if set forth fully
herein below.

48. Defendants had an implied contract with Plaintiff to ensure that Plaintiff under stood
all fees which would be paid to the Defendants to obtain credit on Plaintiff's behalf and not to
charge any fees which were not related to the settlement of the loan and without full disclosure to
Plaintiff.

49. Defendants cannot, in good conscience and equity, retain the benefits from their
actions of charging a higher interest rate, fees, rebates, kickbacks, profits, and payments of
insurance of Plaintiff specific mortgage (including but not limited to from the resale of
mortgages and notes using Plaintiff's identity, credit score and reputation without consent, right,
Justification or excuse as part of an illegal enterprise scheme) and gains and other fees unrelated
to the settlement services provided at closing.

50. Defendants have been unjustly enriched at the expense of Plaintiff, and maintenance
of the enrichment would be contrary to the rules and principles of equity.

51. Defendants have also been additionally enriched to the receipt of payment from thirdparties, including but not limited to, investors, insurers, the United States Department of the
Treasury, the United States Federal Reserve, the FDIC, and other banks.

52. Plaintiff demands restitution from the Defendants in the form of actual damages,
exemplary damages, and attorney's fees.

53. Plaintiff first learned of the actions of Defendants, including their failure to disclose
and the fraud committed upon him in March 2012. Any applicable statute of limitations should
tun from this date. Plaintiff could not have learned of these violations at the time the loan was
obtained by looking at his loan documents and escrow closing statements as the true facts of the
lender and the securitization of his note and deed of trust and the fees attached thereto, which
were undisclosed to him, were not apparent from the face of the loan documents, nor deed of
trust.

VII

SIXTH CAUSE OF ACTION
Civil Conspiracy (As to All Defendants and DOES)

54. Plaintiff reaffirms and realleges paragraphs 1 through 53 above as if set forth fully
herein below.

55. In connection with the application for and the consummation of the mortgage loan
the subject of this action, Defendants agreed, between and among themselves, to engage in
actions in a course of conduct designed to further an illegal act or accomplish a legal act by an
unlawful means ,and to commit one or more overt acts in furtherance of the conspiracy to
defraud the Plaintiff, including but not limited to, the commencement of foreclosure.
Specifically, the Defendants disguised the mortgage transaction to create the appearance of the
lender’s being a properly chartered and registered financial institution, authorized to do business
and to enter into the subject transaction, when in fact the real party in interest was not disclosed
to Plaintiff, and neither were the various fees, rebates, refunds, kickbacks, profits and gains of
the various parties who participated in this unlawful scheme.

56. Said real party in interest, i.e. the source of funding for the loan and the person to

whom the note was transmitted or eventually —assigned" w

as neither a financial institution nor an entity or person authorized, chartered or register
to do business in the state, nor to act as banking ,lending or other financial institution anywhere
else.

57. As such, this fraudulent scheme (which was in actuality a plan to trick the
Plaintiff into signing what would become a negotiable security used to sell unregulated securities
under fraudulent and changed terms from the original notes) was in fact a sham to use Plaintiff s
interest in the real property to collect interest in excess of the legal rate.58. Defendants agreed between and among themselves to engage in the conspiracy to
defraud Plaintiff for the common purpose of accruing economic gains for themselves at the
expense of and detriment to Plaintiff.

59. The acts of the Defendants were committed intentionally, willfully, wantonly, and
with reckless disregard for the rights of Plaintiff.

60. As a direct and proximate result of the actions of the Defendants in combination
resulting in fraud and breaches of fiduciary duties, Plaintiff has suffered damages, all according
to proof at trial.

61. Plaintiff first learned of the actions of Defendants, including their failure to disclose
and the fraud committed upon him in March 2012. Any applicable statute of limitations should
run from this date.

Date. Any applicable statute of limitations should run from this date. Plaintiff could not
have learned of these violations at the time the loan was obtained by looking at his loan
documents and escrow closing statements as the true facts of the lender and the securitization of
his note and deed of trust and the fees attached thereto, which were undisclosed to him, were
notapparent from the face of the loan documents, nor deed of trust.

Vint

SEVENTH CAUSE OF ACTION Usury and Fraud
(As to All Defendants and DOES)

62. Plaintiff reaffirms and realleges the above paragraphs | through 61 above as if set
forth fully herein below.

63. Plaintiff is informed and believes and herein alleges that the subject loan, notes, and
mortgage were structured so as to create the appearance of a higher value of real
property than the actual fair market value.

64. Defendants disguised the transaction to create the appearance of the lender’s being a

properly chartered and registered financial institution, authorized to do business and to
enter into the subject transaction, when in fact the real party in interest was not disclosed to
Plaintiff, and neither were the various fees, rebates, refunds, kickbacks, profits and gains of the
various parties who participated in this unlawful scheme.

65. Said real party in interest, i.e. the source of funding for the loan and the person to
whom the note was transmitted or eventually —assigned” was neither a financial
institution nor an entity or person authorized, chartered or register to do business in the state, nor

to act as banking, lending or other financial institution anywhere else.

66. As such, this fraudulent scheme (which was in actuality a plan to trick thePlaintiff into signing what would become a negotiable security used to sell unregulated securities
under fraudulent and changed terms from the original notes) was in fact a sham to use Plaintiffs’
interest in the real property to collect interest in excess of the legal rate.

67. The transaction of all the loan of money was pursuant to a written agreement, and as
such, subject to the rate limitation set forth under state and federal law. The "formula break" a
reference to end these laws was exceeded by a factor in excess of 10 contrary to the applicable
law.

68. Under applicable law Plaintiff is also entitled and demands a permanent injunction
be entered against the Defendants:

A. Preventing him from taking any action or making any report in furtherance
of collection on this alleged debt which was usurious;

B. Requiring the records custodian of the county in which the alleged mortgage
and other instruments are recorded to remove same from the record; and

C. Allowing the filing of said order in the office of the clerk of the property
records where the Subject Property, "loan transaction" and any other documents relating to this
transaction are located; and.

69. Plaintiff first learned of the actions of Defendants, including their failure to disclose
and the fraud committed upon him in March 2012. Any applicable statute of limitations should
run from this date. Plaintiff could not have learned of these violations at the time the loan was
obtained by looking at his loan documents and escrow closing statements as the true facts of the
lender and the securitization of his note and deed of trust and the fees attached thereto, which
was undisclosed to him, were not apparent from the face of the loan documents, nor deed of
trust.

IX

EIGHTH CAUSE OF ACTION
Wrongful Foreclosure(As to All Defendants and DOES)

7/1. Plaintiff reaffirms and realleges the above paragraphs | through 70 above as if set forth fully herein
below.

72. Plaintiff brings this cause of action against all parties who had an apparent hand in the wrongful acts
as set forth and described as to each of them below. Furthermore, their participation seems to be a joint
effort to hold each accountable for the actions of the rest.

73. Texas property Code Section 51..002 mandates that a non- judicial trustee’s sale—SHALL NOT
TAKE PLACEI unless it is done on behalf of the beneficiary of a deed of trust securing a note and certain
technical procedures are met foreclosure laws. Defendants were not the beneficiaries of the mortgage at
the time of the scheduled sale.

74. If the truth is that the note was separated from the deed of trust and transferred to the loan pool, then,
the Right Title and Interest to the Deed of Trust followed the note on that date, and any subsequentpurported assignment is false, and its true legal effect null notwithstanding recordation. Any beneficiary
was divested of interest upon the transfer of the Note under Texas Law and lacked power to assign any
interest. Thus any attempt to foreclose on the subject property was null and void under Texas Law and
should be prevented from occurring.

75. Plaintiff called the purported lender/servicer of the subject mortgage to advise about his financial
situation and to request assistance in the form of a repayment plan or other modification relief designed to
avoid foreclosure and the loss of his home.

76. Despite the Plaintiff's efforts, the purported lender/servicer failed, refused and/or neglected to work
with Plaintiff in any reasonable way to avoid foreclosure during the time of his financial difficulties.

77. Instead, the purported lender/servicer, was secretly transferring the Deed of Trust and then has
attempted to foreclose, without notice to Plaintiff.

78. The purported lender/servicer failed, refused and/or neglected to disclose to Plaintiff what options
were available to the Plaintiff, to avoid foreclosure and the loss of his home.

79. Asa result, Plaintiff was not provided with the specialized assistance and default loan servicing that
the lender/servicer was obligated to provide that comported with the Plaintiff's ability

to pay and that served to assist Plaintiff in his efforts to avoid the default and the acceleration of the
subject mortgage debt and foreclosure.

80. Defendants failed, refused and/or neglected to evaluate the particular circumstances surrounding
Plaintiff's claimed default; failed to evaluate Plaintiff or the subject property; failed to

determine the Plaintiff's capacity to pay the monthly payment or a modified payment amount; failed

to ascertain the reason for the Plaintiffs claimed default, or the extent of the Plaintiffs interest in keeping
the subject property.

81. The Defendants failed, refused and/or neglected to give Plaintiff the opportunity to cooperate in
resolving the debt.

82. Due to Defendants actions, Plaintiff has been damaged, both financially and is being deprived of his
residence, which is a unique asset to him. Plaintiff demands damages for these harms and a permanent
injunction against Defendants, to prevent him from being foreclosed on his home.

83. Plaintiff first learned of the actions of Defendants, including their failure to disclose and the fraud
committed upon him in March 2012. Any applicable statute of limitations should run from this date.
Plaintiff could not have learned of these violations at the time the loan was obtained by looking at his loan
documents and escrow closing statements as the true facts of the lender and the securitization of his note
and deed of trust and the fees attached thereto, which was undisclosed to him, were not apparent from the
face of the loan documents, nor deed of trust. /x

THIRTEENTH CAUSE OF ACTION
Quiet Title (As to All Defendants and DOES)

84. Plaintiff reaffirms and realleges paragraphs 1 through 83 above as if set forth fully herein below.

85. Plaintiff has sent or has caused to be sent notice of his intent to rescind the subject loan transaction,
but only sent those notices to the entities that have been disclosed. Hence, without

this action, neither the rescission nor the reconveyance which Plaintiff is entitled to file (as attorney-in-
fact for the originating lender), gives Plaintiff full and clear title to the property.

86.The real party in interest on the lender's side may be the owner of the asset-backed security issued by
the servicing and pooling vendor, the insurer through some claim equitable interests, or the Federal
Government through the United States Department of the Treasury or the

Federal Reserve. The security is a —securitized bond deriving its value from the underlying
mortgages, of which the subject mortgage is one. Thus Plaintiff is entitled to quict title against
Defendants, clearing title of the purported subject mortgage encumbrance.

87. Plaintiff is informed and believes and thereon alleges that each of the Defendants’
claim an interest in the Subject Property.

88. However, Defendants’ claims are without any right whatsoever, and said Defendants
have no legal or equitable rights, claim, or interest in the Subject Property.

89. Plaintiff therefore seeks a declaration and judgment that the title to the Subject Property is vested in
Plaintiff alone and that the Defendants herein, and each of him, be declared to have no estate, right, title
or interest in the subject property and that said Defendants, and each of them, be forever enjoined from

asserting any estate, right, title or interest in the subject property adverse to the Plaintiff herein.

90. Plaintiff first learned of the actions of Defendants, including their failure to disclose and the fraud
committed upon him in March 2012. Any applicable statute of limitations should run from this date.
Plaintiff could not have learned of these violations at the time the loan was obtained by looking at his loan
documents and escrow closing statements as the true facts of the lender and the securitization of his note
and deed of trust and the fees attached thereto, which was undisclosed to him, were not apparent from the
face of the loan documents, nor deed of trust.Conclusion

91. INCONCLUSION, Defendant, BANK OF AMERICA N.A. ,& MORTGAGE
ELECTRONIC REGISTRATION SERVICE. & MACKIE WOLF ZIENTZ & MANN P.
C.AS SUBSTITUTE AS TRUSTEE, nor any of its officers, representatives, agents, assigns or
beneficiaries has ever provided any evidence in contradiction to the matters set forth above and
throughout. Again, it is an uncontrovertible fact that the original promissory note in question, if
one exists is, and always was, the property of Plaintiff, RUSSELL DABBS/borrowers, and the
same did not knowingly or otherwise assign, transfer, or give it away for another’s personal
benefit and gain- all to the loss and detriment of Plaintiff, RUSSELL DABBS/borrowers.

92. Any reasonable person would conclude such an adverse claim by Defendant, BANK OF
AMERICA N.A. ,& MORTGAGE ELECTRONIC REGISTRATION SERVICE. & MACKIE
WOLF ZIENTZ & MANN P. C. AS SUBSTITUTE TRUSTEE as being ludicrous and
unconscionable. Furthermore, it is against the law for one to fraudulently obtain an unjust
property, claim it as their own, and then further bargain, assign, or sale the same to obtain an
unjust enrichment, benefit, and gain for themselves- all at a loss and detriment to the lawful,
bona fide owner, in this case, Plaintiff, RUSSELL DABBS.

93. Accordingly, the record shall establish that all aforesaid facts, statements, determinations
and the related Attachment of Swom Affidavit of Plaintiff, RUSSELL DABBS, (which are
incorporated herein and made a part hereof in their entirety) are entirely true and correct and
remain unanswered, unrebutted, and uncontroverted “Axiom”.

PRAYER

94.  Forall the reasons set forth above and throughout this document and the attached
affidavit, which Plaintiff, RUSSELL DABBS, incorporates herein in its entity, Plaintiff,
RUSSELL DABBS, prays that the Court will:

a. find that ANY and ALL Notes/Mortgage/Deed of Trust or other instruments signed
by and between Plaintiff, RUSSELL DABBS, and the / Defendants, BANK OF
AMERICA N.A. ,& MORTGAGE ELECTRONIC REGISTRATION SERVICE. &
MACKIE WOLF ZIENTZ & MANN P. C. AS SUBSTITUTE TRUSTEE and any
and all of its agents, assignees and beneficiaries have no legal force or binding effect,
and that the same are in fact NULL and VOID;

b. rule in favor of the Plaintiff, RUSSELL DABBS, and against the Defendant,
BANK OF AMERICA N.A. ,& MORTGAGE ELECTRONIC REGISTRATION
SERVICE. & MACKIE WOLF ZIENTZ & MANN P. C. AS SUBSTITUTE
TRUSTEE, in all respects; and

¢. grant the Plaintiff, RUSSELL DABBS such other relief to which the Plaintiff
may be entitled.
d. Fora judgment forever enjoining said Defendants, and each of them, fromclaiming any estate, right, title or interest in the subject property;

. Fora judgment that the foreclosure which was instituted be deemed and declared
illegal and void.
For attorneys fees according to statutes;

XI

REQUEST FOR DISCLOSURE

To; BANK OF AMERICA N.A. , & MORTGAGE ELECTRONIC REGISTRATION
SERVICE. & MACKIE WOLF ZIENTZ & MANN P. C. AS SUBSTITUTE TRUSTEE

COMES NOW Plaintiff, RUSSELL DABBS submits the following requests for
disclosure to Defendants, .BANK OF AMERICA N.A. ,
& MORTGAGE ELECTRONIC REGISTRATION SERVICE. & MACKIE WOLF ZIENTZ &
MANN P. C. AS SUBSTITUTE TRUSTEE

You are required to disclose, within 30 days of the service of this request, the information
or material described in Rule 194.2 (a) - (k) of the Texas Rules of Civil Procedure.

XII

REQUESTS FOR ADMISSION

To: BANK OF AMERICA N.A. ,& MORTGAGE ELECTRONIC REGISTRATION
SERVICE. & MACKIE WOLF ZIENTZ & MANN P. C. AS SUBSTITUTE TRUSTEE

COMES NOW Plaintiff, RUSSELL DABBS, submits the following requests for
admissions to Defendantt BANK OF AMERICA N.A. ,& MORTGAGE ELECTRONIC
REGISTRATION SERVICE. & MACKIE WOLF ZIENTZ & MANN P. C. AS SUBSTITUTE
TRUSTEE. You are required to answer each request for admission separately and fully, in
writing, under oath, and to serve a copy of the responses upon PLAINTIFF within (30) days after
service of these requests for admissions.

Instructions

These requests for admissions are directed toward all information known oravailable to BANK OF AMERICA N.A. ,& MORTGAGE ELECTRONIC REGISTRATION
SERVICE. & MACKIE WOLF ZIENTZ & MANN P. C.AS SUBSTITUTE AS TRUSTEE
including information contained in the records and documents in BANK OF AMERICA N.A.
,»& MORTGAGE ELECTRONIC REGISTRATION SERVICE. & MACKIE WOLF ZIENTZ &
MANN P. C.AS SUBSTITUTE AS TRUSTEE custody or control or available to BANK OF
AMERICA N.A. ,& MORTGAGE ELECTRONIC REGISTRATION SERVICE. & MACKIE
WOLF ZIENTZ & MANN P. C.AS SUBSTITUTE AS TRUSTEE upon reasonable inquiry.
Where requests for admissions cannot be answered in full, they shall be answered as completely
as possible and incomplete answers shall be accompanied by a specification of the reasons for
the incompleteness of the answer and of whatever actual knowledge is possessed with respect to
each unanswered or incompletely answered request for admission.

2. Each request for admissions is to be deemed a continuing one. If, after serving an
answer to any request for an admission, you obtain or become aware of any further information
pertaining to that request for admission, you are requested to serve a supplemental answer setting
forth such information

3. As to every request for an admission which you fail to answer in whole or in part, the
subject matter of that admission will be deemed confessed and stipulated as fact to the court.

Definitions

a. “You” and “your” include BANK OF AMERICA N.A. ,& MORTGAGE
ELECTRONIC REGISTRATION SERVICE. & MACKIE WOLF ZIENTZ & MANN P. C.AS
SUBSTITUTE AS TRUSTEE and any and all persons acting for or in concert with BANK OF
AMERICA N.A. ,& MORTGAGE ELECTRONIC REGISTRATION SERVICE. & MACKIE
WOLF ZIENTZ & MANN P. C.AS SUBSTITUTE AS TRUSTEE

REQUESTS FOR ADMISSION

1. Admit or deny that BANK OF AMERICA N.A. ,

& MORTGAGE ELECTRONIC REGISTRATION SERVICE.., MORTGAGE ELECTRONIC
REGISTRATION SERVICE. is not licensed to do business in TEXAS by virtue of being
registered with the Secretary of State of TEXAS and nominating an agent for service of
process.

Admitted Denied__2. Admit or deny that BANK OF AMERICA N.A.,

& MORTGAGE ELECTRONIC REGISTRATION SERVICE.., MORTGAGE ELECTRONIC
REGISTRATION SERVICE. has no regular, systematic way of doing business in TEXAS,
also known as “minimum contacts.”

Admitted. Denied___

3. Admit or deny that BANK OF AMERICA N.A. , & MORTGAGE ELECTRONIC
REGISTRATION SERVICE. charter does not authorize BANK OF AMERICA N.A., &
MORTGAGE ELECTRONIC REGISTRATION SERVICE.., MORTGAGE ELECTRONIC
REGISTRATION SERVICE. to engage in consumer lending.

Admitted Denied__

4. Admit or deny that BANK OF AMERICA N.A. ,

& MORTGAGE ELECTRONIC REGISTRATION SERVICE. & MACKIE WOLF ZIENTZ &
MANN P. C. AS SUBSTITUTE TRUSTEE’s charter does not authorize BANK OF
AMERICA N.A. , & MORTGAGE ELECTRONIC REGISTRATION SERVICE..,
MORTGAGE ELECTRONIC REGISTRATION SERVICE. & to bring suits in foreclosure
of debts.

Admitted, Denied__

. Admit or deny that BANK OF AMERICA N.A. ,& MORTGAGE ELECTRONIC
REGISTRATION SERVICE.., . is not the present holder of a contract with RUSSELL
DABBS

Admitted Denied__

. Admit or deny that BANK OF AMERICA N.A. ,& MORTGAGE ELECTRONIC
REGISTRATION SERVICE. sold the contract which BANK OF AMERICAN.A. , &
MORTGAGE ELECTRONIC REGISTRATION SERVICE..,. had with RUSSELL DABBS
and that the origination and/or any sale or transfer of this account or monetary instrument,
was conducted in accordance with proper laws and was a lawful sale with complete
disclosure to all parties with an interest;.

Admitted Denied___

. Admit or deny that BANK OF AMERICA N.A. , & MORTGAGE ELECTRONIC
REGISTRATION SERVICE.., MORTGAGE ELECTRONIC REGISTRATION SERVICE.
loan was originated in lawful compliance with all federal and state laws, regulations
including, but not limited to Title 62 of the Revised Statutes, RESPA, TILA, Fair DebtCollection Practices Act, HOEPA and other laws;
Admitted Denied__

. Admit or deny that BANK OF AMERICA N.A. , & MORTGAGE ELECTRONIC

REGISTRATION SERVICE.., MORTGAGE ELECTRONIC REGISTRATION SERVICE.
never had anything at risk in the contract with RUSSELL DABBS. and that you disclosed
the claimed holder in due course of the monetary instrument/deed of trust/asset is holding
such note in compliance with statutes, State and Federal laws and is entitled to the benefits of
payments;.

Admitted Denied___

9.Admit or deny that BANK OF AMERICA N.A. , & MORTGAGE ELECTRONIC
REGISTRATION SERVICE.., . possesses no account and general ledger verifying that
RUSSELL DABBS presently owe BANK OF AMERICA N.A. , & MORTGAGE
ELECTRONIC REGISTRATION SERVICE.., money and that this mortgage account has
been credited, debited, adjusted, amortized and charged correctly and disclosed fully
commencing with the original loan solicitation through and including any parties,
instruments, assignments, letters of transmittal, certificates of asset backed securities and any
subsequent transfer thereof ;

Admitted. Denied__

. Admit or deny that officers of BANK OF AMERICA N.A. , & MORTGAGE
ELECTRONIC REGISTRATION SERVICE.., that all good faith and reasonable
disclosures of transfers, sales, assignments ,Power of Attorney, monetary instrument
ownership, entitlements, full disclosure of actual funding source, terms, costs, commissions,
rebates, kickbacks, fees etc. were and still are properly disclosed to me, including but not
limited to the period commencing with the original loan solicitation through and including
any parties, instruments, assignments, letters of transmittal, certificates of asset backed
securities and any subsequent transfer thereof;

Admitted. Denied___

. Admit or deny that officers of BANK OF AMERICA N.A. , & MORTGAGE
ELECTRONIC REGISTRATION SERVICE.., . know and understand that attorneys who
purchase evidence of debt and then file lawsuits in the name of the original maker of the debt
are committing felony fraud.

Admitted Denied__

. Admit or deny that officers of BANK OF AMERICA N.A. , & MORTGAGE
ELECTRONIC REGISTRATION SERVICE..,. know and understand that MACKIE WOLFZIENTZ & MANN P. C. AS SUBSTITUTE AS TRUSTEE §.,, Attorney, routinely

purchases evidence of debt from BANK OF AMERICA N.A. ,& MORTGAGE
ELECTRONIC REGISTRATION SERVICE.., . , then relies on BANK OF AMERICA N.A.
»& MORTGAGE ELECTRONIC REGISTRATION SERVICE.., . to aid and abet felony
fraud.

Admitted Denied__

Vv.
REQUESTS FOR PRODUCTION OF DOCUMENTS

To: BANK OF AMERICA N.A. , & MORTGAGE ELECTRONIC REGISTRATION
SERVICE. & MACKIE WOLF ZIENTZ & MANN P. C. AS SUBSTITUTE AS
TRUSTEE

COMES NOW Plaintiff, RUSSELL DABBS submits the following requests for
production of documents from Defendants, BANK OF AMERICA N.A. ,& MORTGAGE
ELECTRONIC REGISTRATION SERVICE. & MACKIE WOLF ZIENTZ & MANN P. C. AS
SUBSTITUTE AS TRUSTEE. Failure to comply fully or partially with this request within thirty
(30) days of receipt of service shall be deemed a confession that the document does not exist or
that BANK OF AMERICA N.A. ,& MORTGAGE ELECTRONIC REGISTRATION
SERVICE. & MACKIE WOLF ZIENTZ & MANN P. C. AS SUBSTITUTE AS TRUSTEE is
committing fraud by concealment.

Instructions

1. These requests for production of documents is directed toward all information known
or available to BANK OF AMERICA N.A. , & MORTGAGE ELECTRONIC REGISTRATION
SERVICE. & MACKIE WOLF ZIENTZ & MANN P. C. AS SUBSTITUTE AS TRUSTEE
including information contained in the records and documents in BANK OF AMERICA N.A. ,&
MORTGAGE ELECTRONIC REGISTRATION SERVICE. & MACKIE WOLF ZIENTZ &
MANN P. C. AS SUBSTITUTE custody or control or available to BANK OF AMERICA N.A.
,»& MORTGAGE ELECTRONIC REGISTRATION SERVICE. & MACKIE WOLF ZIENTZ &
MANN P. C. AS SUBSTITUTE AS TRUSTEE upon reasonable inquiry.2. Each request for production of documents is to be deemed a continuing one. If, after
serving an answer to any request for an admission, you obtain or become aware of any further
information pertaining to that requested production of documents, you are requested to serve a
supplemental answer setting forth such information.

Definitions

a. “You” and “your” include BANK OF AMERICA N.A. ,

& MORTGAGE ELECTRONIC REGISTRATION SERVICE. & MACKIE WOLF
ZIENTZ & MANN P. C.AS SUBSTITUTE AS TRUSTEE and any and all persons acting for or
in concert with BANK OF AMERICA N.A. ,& MORTGAGE ELECTRONIC REGISTRATION
SERVICE. & MACKIE WOLF ZIENTZ & MANN P. C. AS SUBSTITUTE AS TRUSTEE.

b. “Document” includes every piece of paper held in your possession or generated
by you.

REQUESTS FOR PRODUCTION OF DOCUMENTS
The Defendant is hereby required to produce the following:

1. All pages, front and back of BANK OF AMERICA N.A. ,
& MORTGAGE ELECTRONIC REGISTRATION SERVICE.., corporate charter.

2. The account and general ledger of each and every contract BANK OF AMERICA N.A.
» & MORTGAGE ELECTRONIC REGISTRATION SERVICE. & MACKIE WOLF ZIENTZ &
MANN P. C.AS SUBSTITUTE AS TRUSTEE alleges RUSSELL DABBS have with BANK
OF AMERICA N.A. ,& MORTGAGE ELECTRONIC REGISTRATION SERVICE. &
MACKIE WOLF ZIENTZ & MANN P. C. AS SUBSTITUTE TRUSTEE showing all receipts
and disbursements.

3. The copy, front and back, of the contract BANK OF AMERICA N.A. ,& ,
MORTGAGE ELECTRONIC REGISTRATION SERVICE. & MACKIE WOLF ZIENTZ &
MANN P. C. AS SUBSTITUTE AS TRUSTEE alleges RUSSELL DABBS have with BANK
OF AMERICA N.A. ,& MORTGAGE ELECTRONIC REGISTRATION SERVICE. &
MACKIE WOLF ZIENTZ & MANN P. C. AS SUBSTITUTE TRUSTEE

showing any and all assignments or allonges.5 .The copy, front and back, of the contract for services which BANK OF AMERICA
N.A. ,& MORTGAGE ELECTRONIC REGISTRATION SERVICE..,. has with MACKIE
WOLF ZIENTZ & MANN P. C. AS SUBSTITUTE TRUSTEE .,, Attorney .or agents.

With Honor

RUSSELL DABBS

SSELL DABBS
725 GIBSON ST..
CEDAR HILL, TEXAS 75104

CERTIFICATE OF SERVICE

I, RUSSELL DABBS certify that this the iS” day of JUNE, 2012, I mailed/faxed/hand
delivered a true and correct copy of the above and foregoing document to:

BANK OF AME!

BANK OF AMERICA HOME LOANS
P.O. BOX 5170

SIMI VALLEY, CA 93062-5170

"~~ Mortgage Electronic Registration Servieing-
P.O. Box 2026

Flint,Michigan 48501-2026
Flint Michigan 48501-2026

Dallas, Texas 75254

/ RUSSELL DABBSEXHIBIT A:

Affidavit

COUNTY OF DALLAS

STATE OF TEXAS

I, RUSSELL DABBS, being of lawful age and competent to testify, state as follows based on
my own personal knowledge:

“1, [am not in receipt of any document which verifies that BANK OF AMERICA N.A. ,& ,
MORTGAGE ELECTRONIC REGISTRATION SERVICE. has fee simple ownership of the
property.

2. Iam not in receipt of any document which verifies that I have a contract with BANK OF
AMERICA N.A. , & MORTGAGE ELECTRONIC REGISTRATION SERVICE. & MACKIE
WOLF ZIENTZ & MANN P. C.AS SUBSTITUTE AS TRUSTEE.

3. Tam not in receipt of any document which verifies that I owe BANK OF AMERICA
N.A. , & MORTGAGE ELECTRONIC REGISTRATION SERVICE. & MACKIE WOLF
ZIENTZ & MANN P. C. AS SUBSTITUTE TRUSTEE money.

4. [am not in receipt of any document which verifies that BANK OF AMERICA N.A. , &
MORTGAGE ELECTRONIC REGISTRATION SERVICE. is the holder of the original
monetary instrument or mortgage I signed.

5. Tam not in receipt of any document which verifies that, at no time prior to the signing of
any ‘loan’ documents and to this date, did BANK OF AMERICA N.A, ,&

MORTGAGE ELECTRONIC REGISTRATION SERVICE. , nor any of its officers/
employees fully and completely described and categorized all of the underlying particulars,
details, and principles of law regarding BANK OF AMERICA N.A. ,& MORTGAGE
ELECTRONIC REGISTRATION SERVICE. , entire purported ‘loan’ process, including just
exactly where the ‘money’ was coming from to fund the note/mortgage, how it was obtained and
or created and by whom it was created, obtained and or funded.

6. Iam not in receipt of any documents which verifies That, at no time prior to the signing
of any ‘loan’ documents and to this date, did BANK OF AMERICA N.A. ,

& MORTGAGE ELECTRONIC REGISTRATION SERVICE. & MACKIE WOLF
ZIENTZ & MANN P. C. AS SUBSTITUTE TRUSTEE, and its officers/ employees ever
disclose to RUSSELL DABBS by and through original borrowers, RUSSELL DABBS(“borrowers”), the fact that the funding of the note/mortgage was being created and or obtained