Monday, November 15, 2010

Superb Complaint piercing the heart of Deutsch Bank’s authority to collect money, file suit, seeking recovery of property and money through receiver and damages against the lawyers who filed the foreclosure suits.

Superb Complaint piercing the heart of Deutsch Bank’s authority to collect money, file suit, seeking recovery of property and money through receiver and damages against the lawyers who filed the foreclosure suits. 



In the United States District Court for the Northern District of Ohio, eastern Division, Case no. 1:08CV300, Judge David D. Dowd, Jr. Whitaker v Deutsch Bank et al First Amended Complaint with jury demand

Filed by James Rosenthal, 216-781-7956, William Novak, 216-781-8700, Kenard McDuffie 216-721-9227




DBNTC has routinely filed suit against potential class-members and on many occasions received distributions from the sale of their properties without possessing legally enforceable, recorded assignment of mortgages from the actual mortgagees. Under Ohio law {EDITOR: and the laws of virtually ALL states}, “before an entity would be entitled to receive a distribution from the sale of [real] property, their interest therein must have been recorded in accordance with Ohio law.” In re Foreclosure Cases, 2007 WL 3232430, *2 (N.D. Ohio October 31, 2007) (the “Judge Boyco Decision”).

DBNTC’s pattern and practice of filing foreclosure actions in state and federal courts without the requisite legal title, while falsely stating that it had such title, and while lacking the right to engage in trust business in Ohio, constitutes a “false, deceptive or misleading representation or means” in connection with the collection of a debt, in violation of the Federal Fair Debt Collection Procedures Act, 15 U.S.C. Sec. 1692e. It also constitutes an offense against justice and public administration in violation of R.C. Sec 2921.03, and therefore constitutes a pattern of corrupt activity as required to maintain an action for violation of Ohio’s RICO statute. The defendant law firms have independent obligations to the Courts in Ohio and to the plaintiffs not to engage in such misconduct, but they have nevertheless served as the vehicle through which DBNTC has perpetrated its deceptive and unauthorized conduct.

All of the defendants are “debt collectors” as defined in 15 U.S.C. 1692e, because they regularly use instrumentalities of interstate commerce, and the mails, in attempting to collect, directly, or indirectly, debts owed or due or asserted to be owed or due to another, namely the actual lenders, mortgagors, and certificate-holders under the above-referenced pooling and servicing agreements. Upon information and belief, the defendant law firms regularly represented defendant DBNTC in suits against potential class members to collect on notes and foreclose on mortgages.

Upon information and belief, there remains no record in the lawsuit of any assignment from First NLC Financial Services, LLC to Argent Mortgage Company, LLC and Defendant failed to establish a complete chain of assignment from the originator to the person assigning the mortgage to DBNTC.

Notwithstanding the patent defect in the chain of assignment of the note and mortgage, for foreclosure was granted to Defendant DBNTC, and the property was sold to the Defendant at sheriff’s auction in January, 2008.
…From the perspective of the “least sophisticated consumer,” a lawsuit by a national banking association on a debt acknowledged to be owed would be presumed to be valid insofar as the bank’s standing and authority are concerned.
In foreclosing on plaintiff’s homes, the defendants:
  1. made false, deceptive and misleading representations concerning DBNTC’s standing to sue the plaintiffs and its interest in the debt;
  2. falsely represented the status of the debt, in particular, that it was due and owing to defendant DBNTC at the time the suit was filed;
  3. falsely represented or implied that the debt was owing to DBNTC as an innocent purchaser for value, when in fact, such an assignment had not been accomplished;
  4. threatened to take action namely engaging in collection activities and collection and foreclosure suits as trustee that cannot legally be taken by then; and
  5. obtained access to Ohio state and federal courts to collect on notes and foreclose on mortgages under false pretenses, namely, that DBNTC was duly authorized to engage in such activities as trustee in Ohio when in fact it was not. {Editor’s Note: In other words, that Deutsch Bank might have been registered to do business as a banker in Ohio but it wasn’t acting as a banker and it was suing as banker. It was alleging merely that it was a trustee acting as a trustee engaged in “trust activities” and had never qualified itself to do business as a trust.}
The defendants have violated Section 2921.03 by knowingly filing complaints alleging DBNTC’s ownership of the promissory notes and mortgages when in fact it did not own the notes and mortgages, and by knowingly filing complaints as trustee in reckless disregard of the fact that Defendant DBNTC was not authorized to engage in such activities as Trustee in Ohio

Under R.C. 2735.01(A), the Court may appoint a receiver in a case such as this, involving parties “jointly…interested in any property or fund, on the application of the plaintiff.”

Defendant DBNTC and each plaintiff are “jointly interested” in the foreclosed properties, and in the funds created or to be created upon the liquidation of the defendant’s interest. {Editors’ Note: I would have said “defendant’s alleged interest.”}. Plaintiffs not only have a right to cause defendant to divest its interest in their properties, but there are charges which defendants have collected and are attempting to collect against Class members’ equity that were charged or incurred in violation of the laws described elsewhere in this complaint.

Plaintiffs request that a receiver be appointed, who shall recover from Defendant DBNTC the charges it collected from the Class, as well as any interests in real property it acquired illegally, recover fees improperly earned by the law firms, and determine the proper allocation and ownership of these funds and property interests.

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