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Scott and Jean Webster -v- Wells Fargo Bank, et al Docket No: 08 CIV 10145 before the Honorable Judge Preska |
CAUSES OF ACTION
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AS AND FOR A FIRST AND SEPARATE CAUSE OF ACTION AGAINST
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WELLS FARGO BANK N.A. "WELLS FARGO"
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246. PLAINTIFFS reallege and restate all the preceeding
paragraphs as stated before with the same force as though they had
been individually repeated herein.
247. Defendant WELLS FARGO is one of the major mortgage lenders
in the country, and as such is, and was, fully knowledgeable in the
lending market, and that given that background are considered
"experts" and are therefore fully familiar with the Federal and
State laws, business laws, and that in addidtion to these laws,
WELLS FARGO keeps its agents and employees fully aware of these
applicable laws, as well including WELLS FARGO'S own public
marketing ads as well as WELLS FARGO'S own public code of conduct as
stated on their website, and as shown by their own wording captured
and listed on page 14 in this COMPLAINT as to their pledges, claims,
and assurances, all of which is a major part of their marketing
stragety, and that given all these factors are "experts" in the
lending market.
248. That PLAINTIFFS assert these assurances were a major
factor when PLAINTIFFS approached WELLS FARGO initially for a
"bridge loan", through their agent Marcia Francis (AGENT FRANCIS)
and were intitally assured that the better way to obtain the
financing was a to draw on the PLAINTIFFS large equity in their
PROPERTY by refinancing which would pay off all existing mortgages
and provide PLAINTIFFS enough cash out to purchase the Virginia
property while selling the PROPERTY. PLAINTIFFS felt good about
this solution because they had been previously advised to do the
same thing by two other "experts", the Bank of Floyd and Wachovia,
both in Virginia. Both of these banks advised that PLAINTIFFS
should go to their current mortgage holder, WELLS FARGO, as we
already had a relationship with them and refinancing with them might
be easier. PLAINTIFFS at that time had their PROPERTY on the market
for $869,000.00 with many interested buyers. Based upon the
assurances of how easy the total refinancing would be, and given
PLAINTIFFS' credit rating of 764 which AGENT FRANCES stated was
"excellent" PLAINTIFFS submitted an application for a traditional
refinancing for $650,000.00 that would, according to AGENT FRANCES,
take only a couple of weeks, which encouraged PLAINTIFFS to proceed
with the contract to purchase the Virginia property, beginning with
a commitment letter to the seller. The various Defendants fully
knew of PLAINTIFFS' involvement and of the essential need to sell
their PROPERTY in order to satisfy this financing arrangement, and
of PLAINTIFFS' commitment to the new Virginia property. Defendants
WELLS FARGO, AGENT FRANCIS, closing attorney PENZETTA, RIVERCITY
ABSTRACT, all knew how crucial was the need to sell the New York
mortgaged PROPERTY to prevent a future foreclosure and PLAINTIFFS'
financial ruin.
249. Only when PLAINTIFFS were into the foreclosure action did
they slowly realize that WELLS FARGO through their assurances, oral
statements, various documents presented, and the vast correspondence
that followed with WELLS FARGO and AGENT FRANCIS that WELLS FARGO as
from their own documents and legal affidavits, is running a criminal
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organization with the intention of gaining control of borrowers
through ill-gotten closing costs and/or the equity in borrowers'
property ("Theft of Equity"); preying and targeting seniors and
others who have sizable equity; that WELLS FARGO has crafted and
executed procedures carefully designed to gain control of those
equities by way of creating scenarios intended to force their
clients as borrowers into foreclosure in order to purchase the
mortgaged premises for a fraction of the market value.
250. That Defendant WELLS FARGO through their AGENT FRANCIS,
closing attorney PENZETTA, and RIVERCITY ABSTRACT, that all were
aware of the above described scenario, deliberately initiated a
series of transactions by way of presenting documents to PLAINTIFFS
at closing that were very different than what PLAINTIFFS had applied
for; documents which were carefully designed and publicly filed to
prevent PLAINTIFFS from ever selling their PROPERTY, force
PLAINTIFFS into foreclosure, if not total bankruptcy, acts of which
these Defendants fully knew.
251. That Defendant WELLS FARGO deliberately committed acts of
fraud on PLAINTIFFS by presenting documents intended to deceive
PLAINTIFFS into believing there would be one new and only surviving
mortgage, the CONSOLIDATED MORTGAGE, that would be filed and
recorded, and that the original mortgage was to be satisfied and
duly recorded, and that the "gap" mortgage was not a surviving
mortgage as PLAINTIFFS had never applied for a $380.346.31 mortgage
and were not aware that one would be filed as a public record as a
further obgligation.
252. Defendant WELLS FARGO'S own AGENT FRANCIS and their lawyer
PENZETTA with the complicity of RIVERCITY ABSTRACT present, execute
and later file, or fail to file, false documents to PLAINTIFFS
knowing full well that a fraud was being perpetrated against
PLAINTIFFS, with the result of which would be the loss of any
non-distressed sales PLAINTIFFS might enjoy through the normal and
reasonable sale of PLAINTIFFS' PROPERTY.
253. That as a result of the above stated actions by Defendant
WELLS FARGO, PLAINTIFFS have been damaged by the intentional actions
of WELLS FARGO stemming from the loss of sales of PLAINTIFFS'
PROPERTY, the unnecessary filing of the lis pendens (Exhibit 11) and
the Summons and Complaint (Exhibit 12) for the wilful filing of a
foreclosure on a paid and satisfied mortgage (Exhibits 5 & 6), the
directing of SEAN NIX to commit perjured statements on his
Affidavit; All to which have resulted in compensating damages such
as listed on the previous pages 42 to 44, such as in the amounts of
$817,000,00, $795,000,00, $785,000.00 including all taxes, costs of
maintaining the PROPERTY such as heading fuel, insurance costs,
travel trips from Virginia, costs of litigation such as filing fees,
copies, shipping, higher fees on all credit cards, depreciation of
the market values, depreciation of physical condition of PLAINTIFFS'
PROPERTY, costs of advertising the PROPERTY including holding open
house with signs and flyers, the forcing of PLAINTIFFS in to
mortgaging their Virginia property at high rates, including closing
costs.
254. WHEREFORE, PLAINTIFFS demand judgement against the
Defendant WELLS FARGO in their favor in amounts of not less than
$1,250,000.00 in compensatory damages, as described on pages 42 to
44 in this Verified Amended Complaint, that such actions were
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tortuous, malicious, actionable and outrageous, and against the
public consciousness and moral, and PLAINTIFFS further seek punitive
damages, the limits of those being greater than those allowed by the
lower courts, and in an amount sufficient to punish the Defendant
from engaging in such conduct again, reasonable attorney's fees,
costs of this action and recission of the mortgage loan and other
equitable relief that PLAINTIFFS are entitled to receive.
AS AND FOR A FIRST AND SEPARATE CAUSE OF ACTION AGAINST
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RICHARD M. KOVACEVICH "KOVACEVICH"
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255. PLAINTIFFS reallege and restate all the preceeding
paragraphs as stated before with the same force as though they had
been individually repeated herein.
256. Defendant Richard M. KOVACEVICH as the CEO of Defendant
WELLS FARGO designed, allowed, encouraged, abetted, and deliberately
created, then up and recreated an enterprise using the prior
reputation and good will WELLS FARGO had prior to the takeover by
the Norwest Corporation which amounted to, and amounts to, a
criminal enterprise designed through fraud and deceipt to gain the
equity in properties for which they lend finances by the use of mail
fraud, predatory lending, entrapment, taking advantage of seniors
(PLAINTIFFS are seniors), by the ruse of using a 150 year old
establishment, fully knowledgeable in the market place, WELLS FARGO
through its agents should have warned, and had a moral and legal
duty to warn PLAINTIFFS that with the knowledge that Defendants and
WELLS FARGO would in an un-likely, but possible situation, separate
the two PROPERTY mortgage securities which could lead DEFENDANTS to
possible financial ruin, while BANK-NA reaps the equity unfairly
from DEFENDANTS.
257. That as CEO of WELLS FARGO, he was responsible and in
control of the operations of WELLS FARGO and all its subordinate
affiliations, being able to wield financial control and power over
non directly owned entities through the huge financial umbrella
WELLS FARGO wields due to WELLS FARGO'S size, even down to the
influence of the various courts, the association with the BAUM LAW
FIRM, PENZETTA, AGENT FRANCIS, RIVERCITY ABSTRACT, the assigned
REFEREE, and even to the Putnam County Supreme Court, that this
enterprise, again, under KOVACEVICH'S command and control, has
severely damaged PLAINTIFFS herein as described in more detail in
the above paragraphs 247 to 253 which PLAINTIFFS restate with the
same force as though they had been individually repeated herein, and
that such actions tortuous, malicious, actionable and outrageous,
and against the public consciousness and moral, PLAINTIFFS further
seek nominal and punitive damages, the limits of those being greater
than those allowed by the lower courts.
258. WHEREFORE, PLAINTIFFS demand judgement against the
Defendant RICHARD M. KOVACEVICH "KOVACEVICH" in their favor in
amounts of not less than $1,250,000.00 in compensatory damages, as
described on pages 42 to 44 in this Verified Amended Complaint, that
such actions were tortuous, malicious, actionable and outrageous,
and against the public consciousness and moral, and PLAINTIFFS
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further seek punitive damages, the limits of those being greater
than those allowed by the lower courts, and in an amount sufficient
to punish the Defendant from engaging in such conduct again,
reasonable attorney's fees, costs of this action and recission of
the mortgage loan and other equitable relief that PLAINTIFFS are
entitled to receive.
AS AND FOR A FIRST AND SEPARATE CAUSE OF ACTION AGAINST
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MARCIA FRANCIS "AGENT FRANCIS"
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259. PLAINTIFFS reallege and restate all the preceeding
paragraphs as stated before with the same force as though they had
been individually repeated herein.
260. Defendant Marcia Francis (FRANCIS), acting both separately
and/or at times in concert as an agent and representive of WELLS
FARGO, and as an experienced mortgage agent in the State of New
York, being further fully familiar with the laws and regulations
required and expected of lending agents, including the code of
conduct of WELLS FARGO as cited on page 14 of this Complaint, that
upon information and belief, the belief being her prior stated
actions herein, violated various standard and normal lending laws of
New York State and the Federal Government regarding predatory
lending such as bait and switch, and fraud, changed PLAINTIFFS'
original loan application and entrapped PLAINTIFFS with false and
misleading statements, deliberately sowed the seeds for eventual
foreclosure of PLAINTIFFS' PROPERTY, acted in concert to prevent
PLAINTIFFS from being able to sell PLAINTIFFS' PROPERTY to any arms
length or familiar independent buyer through the creation of the
CONSOLIDATED MORTGAGE and the filing of duplicate mortgages, that
AGENT FRANCIS knew, or should have known, that given the financial
statement of PLAINTIFFS that the chance of foreclosure without the
sale of PLAINTIFF'S PROPERTY was a possibility, thus creating the
basis for and giving AGENT FRANCIS the motivation, intention, and
opportunity in actions as stated above.
261. That PLAINTIFFS originally applied for a traditional
refinancing for $650,000.00 mortgage which was submitted and
accepted by FRANCIS as agent for WELLS FARGO who, assurred
PLAINTIFFS that this easy standard loan and mortgage would only take
a couple of weeks, given PLAINTIFFS excellent credit status.
PLAINTIFFS never applied for, nor were they told of a $380,346.31
loan, or a CONSOLIDATED MORTGAGE prior to the morning of the
closing. AGENT FRANCIS knew, and would have known that PLAINTIFFS
were going to be presented with these contracts of adhesion at
closing, and failed her legal as well as moral obligation to inform
PLAINTIFFS beforehand, prima facie proof of the complicity in the
fraud and predatory lending that was to take place.
262. The mortgage refinance and home equity loan were presented
as a packaged deal, arranged and presented by WELLS FARGO through
AGENT FRANCIS, and one part of this package was totally useless to
DEFENDANTS without the other part, and Defendants fully knew this
ergo the take it or leave it loan. PLAINTIFFS were repeatedly told,
as the headings on the correspondence "Wells Fargo Bank N.A." (WELLS
FARGO) was presented to PLAINTIFFS as the sole entity handling the
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mortgage and equity financing, and would be holding both the
mortgage refinancing and home equity notes.
263. That PLAINTIFFS had a legal, moral, and reasonable right to
believe that Defendant AGENT FRANCIS would be compelled, both as a
professional and legal representive for WELLS FARGO, to follow all
the laws as well as established lending practices of WELLS FARGO,
and by ignoring and deliberately circumventing them has caused
irreperable harm to PLAINTIFFS and damaged to the extent of the loss
of their first PROPERTY purchaser in the amount of $817,000.00.
264. That when PLAINTIFFS began facing financial difficulties,
they contacted AGENT FRANCIS in mid September in writing for advice
on how to approach WELLS FARGO with help in selling the PROPERTY,
but upon information and belief, that belief being the action of
notifying the BAUM LAW FIRM who began the steps for foreclosure and
received Exhibit 5, which was the CERTIFICATION for foreclosure from
a title company on October 1, 2006, 23 days before PLAINTIFFS even
officially contacted WELLS FARGO with their HARDSHIP LETTER dated
October 24, 2006, and less than two weeks after PLAINTIFFS contacted
AGENT FRANCIS for help as to how they could work with WELLS FARGO to
extend the time to sell the PROPERTY, that rather than help
PLAINTIFFS, AGENT FRANCIS set the wheels in motion for foreclosure
upon her own volition to notify the BAUM LAW FIRM to rush the
forclosure. This malicious act by AGENT FRANCIS in cooperation with
the BAUM LAW FIRM is prima facie proof of the duplicity in the acts
of AGENT FRANCIS, ab initio, in the financial destruction of
PLAINTIFFS for whatever gain FRANCIS and the other Defendants
intended. In response to an statement to AGENT FRANCIS from
PLAINTIFF Scott Webster in a recorded telephone conversation
regarding foreclosure procedures FRANCIS stated "Oh I know all about
foreclosures, my daughter just purchased a foreclosure property in
Orange County" disclosing her real motive and original intention.
265. That the actions as stated above that AGENT FRANCIS has
severely damaged PLAINTIFFS herein as described in more detail in
the above paragraphs 247 to 253 which PLAINTIFFS restate with the
same force as though they had been individually repeated herein, and
that such actions tortuous, malicious, actionable and outrageous,
and against the public consciousness and moral, PLAINTIFFS further
seek nominal and punitive damages, the limits of those being greater
than those allowed by the lower courts.
266. WHEREFORE, PLAINTIFFS demand judgement against the
Defendant MARCIA FRANCIS (AGENT FRANCIS) in their favor in amounts
of not less than $1,250,000.00 in compensatory damages, as described
on pages 42 to 44 in this Verified Amended Complaint, that such
actions were tortuous, malicious, actionable and outrageous, and
against the public consciousness and moral, and PLAINTIFFS further
seek punitive damages, the limits of those being greater than those
allowed by the lower courts, and in an amount sufficient to punish
the Defendant from engaging in such conduct again, reasonable
attorney's fees, costs of this action and recission of the mortgage
loan and other equitable relief that PLAINTIFFS are entitled to
receive.
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AS AND FOR A FIRST AND SEPARATE CAUSE OF ACTION AGAINST
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SEAN NIX "SEAN NIX"
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267. PLAINTIFFS reallege and restate all the preceeding
paragraphs as stated before with the same force as though they had
been individually repeated herein.
268. Defendant Sean Nix (SEAN NIX), is employed by Defendant
WELLS FARGO and submitted a sworn Affidavit for WELLS FARGO
identifying himself as Vice President Loan Documentation, and
therefore is fully familiar with all the applicable Federal and
State laws, as well as WELLS FARGOS' published code of conduct as
cited on page 14 of this Complaint, that any and all statements made
in his Affidavit in Support of WELLS FARGO'S motion for Summary
Judgement. That in that Affidavit SEAN NIX made false statements,
knew, and should have known that the many of the statements and
claims of the exhibits that were attached were not true, that a
fraud had been perpetrated against PLAINTIFFS, that by altered
facts, prejudiced PLAINTIFFS in his Affidavit by supporting the
foreclosure on a fully paid and satisfied mortgage, and was fully
aware of the forclosing on that mortgage with his statement that by
PLAINTIFFS paying the mortgage for eleven (11) years could not now
claim "laches" and cannot after that time seek recision on the 1995
$162,000.00 mortgage.
269. That Defendant SEAN NIX deliberately and knowingly damaged
PLAINTIFFS in the Supreme Court in his sworn Affidavit dated and
notarized on February 13, 2007, in support of WELLS FARGO'S initial
Motion for Summary Judgement and Order of Reference which is dated
February 5, 2007, eight (8) days prior to the SEAN NIX Affidavit.
270. That SEAN NIX knowing that New York State and Federal Law
requires actual possession of the original note and mortgage, made
under oath, the following statement:
"Attached hereto is a copy of the Note and Mortgage. As
such Plaintiff has demonstrated the existence of the Note and
the Mortgage being foreclosed herein..." (NIX Affidavit par 4)
271. That Defendant NIX is fully aware that this critical
statement is mandatory in order to sustain an action for
foreclosure, but the plaintiff must have actual possession, and
nowhere in his Affidavit does he even assert that WELLS FARGO at the
time of his Affidavit is legally "the party in interest", and
knowingly that WELLS FARGO was not the holder of the original note
and signed mortgage, had to therefore imply to the court that the
submitted exhibit of a mere copy was wholly insufficient without any
assertion
272. That SEAN NIX knew when he filed his Affidavit and made
his statement "...has demonstrated the existence of the Note and
Mortgage ..." that the mere existance of a note and mortgage was not
only on record and easy to locate at the Putnam County Clerk's
Office for which anyone could obtain a copy and prove mere
"existence", but he chose those careful words in order to assist and
abet WELLS FARGO to foreclose on a mortgage which he knew, or should
have known was paid off in full, and therefore abetted WELLS FARGO
in its attempt to foreclose for the purpose of gaining the large
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equity PLAINTIFFS' had in their PROPERTY.
273. That in the Affidavit of SEAN NIX, dated February 13, 2007
in support of their WELLS FARGO'S motion, that upon information and
belief, this was a deliberate attempt by SEAN NIX, WELLS FARGO, and
the BAUM LAW FIRM to thwart PLAINTIFFS right to lawful discovery,
and a violation of due process. This discovery would have shown
that Defendants did not, inter alia, have the original signed note
and mortgage a strict requirement for enforcement, and were not the
party in interest. In fact, Defendants the BAUM LAW FIRM, WELLS
FARGO, SEAN NIX, never had the original note and mortgage, when they
filed the lis pendens and Summons and Complaint, Not until
PLAINTIFFS brought their Demand to the attention of the Court in
opposition papers requesting an order of the Court demanding
compliance, did WELLS FARGO and the BAUM LAW FIRM then address the
issue they had chosen to ignore. In fact, nowhere in any of the
moving papers or allegations, have any of the Defendants ever sworn
that they had possession, or have possession even now of the
original note and mortgage. And they certainly never had it in
their possession when they claimed to have "consolidated" the
$162,000.00 and the $380,000.00 mortgages.
274. The premature filing of WELLS FARGO'S Motion for Summary
Judgement before proper discovery had been completed, was a method
WELLS FARGO and the BAUM LAW FIRM used to deny PLAINTIFFS right of
due process, as they put forth to the Supreme Court in their papers
in response: "First and foremost, pursuant to CPLR 3214(b),
discovery is stayed pending outcome of Plaintiff's summary judgement
motion" as PLAINTIFFS had shown of a preponderance of issues that
need to be resolved by way of discovery.
275. PLAINTIFFS demanded proof that WELLS FARGO had the signed
note, especially for the ORIGINAL MORTGAGE that was being foreclosed
on, and that it actually was in the possession of WELLS FARGO as
PLAINTIFFS had every right to know and to prove just who held the
"note(s)", and the only "proof" put forth was in their affidavit
which merely claimed "...Plaintiff [WELLS FARGO] has submitted
proper evidence of its INTEREST IN THE NOTE AND MORTGAGE being
foreclosed herein..." but as PLAINTIFFS pointed out that nowhere in
any of the WELLS FARGO supporting papers do they state under oath
that the original Note and Mortgage were owned by them and were in
their actual possession. Again without compliance or the requested
Court Order, PLAINTIFFS were denied due process and were put at a
serious disadvantage in defending the foreclosure action.
276. WHEREFORE, PLAINTIFFS demand judgement against the
Defendant SEAN NIX (SEAN NIX) in their favor in amounts of not less
than $1,250,000.00 in compensatory damages, as described on pages 42
to 44 in this Verified Amended Complaint, that such actions were
tortuous, malicious, actionable and outrageous, and against the
public consciousness and moral, and PLAINTIFFS further seek punitive
damages, the limits of those being greater than those allowed by the
lower courts, and in an amount sufficient to punish the Defendant
from engaging in such conduct again, reasonable attorney's fees,
costs of this action and recission of the mortgage loan and other
equitable relief that PLAINTIFFS are entitled to receive.
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AS AND FOR A FIRST AND SEPARATE CAUSE OF ACTION AGAINST
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DOMINICK PENZETTA "PENZETTA"
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277. PLAINTIFFS reallege and restate all the preceeding
paragraphs as stated before with the same force as though they had
been individually repeated herein.
278. Defendant Dominick PENZETTA is/was agent and attorney
representing WELLS FARGO at the closing for PLAINTIFFS' refinancing
and was responsible for the setup and carryout of the terms of the
commitment letter, and overseeing the dictates of the closing agent,
and as an attorney was an officer of the court, fully familiar with
e all the terms, conditions, requirements of real estate and lending
practices, knew, and should hav known all the Federal and State
laws, and being a professional was therefore familiar with all the
terms of the documents under his control.
279. That PENZETTA, as an attorney and officer of the Court, a
professional and with the knowledge as stated above, knew when he
presented to PLAINTIFFS for the first time the morning of the
closing, that the sudden change from a normal standard refinancing
for which PLAINTIFFS had been presented with, that the sudden switch
to the Consolidated Mortgage and therefore committed fraud and
deceipt, and executed predatory lending actions which are illegal
all of which were designed to damage PLAINTIFFS by later forcing
them into foreclosure.
280. That Defendant PENZETTA has severely damaged PLAINTIFFS by
his actions, which he knew, and should have known would prevent
PLAINTIFFS to later sell their PROPERTY in order to payoff the
outstanding mortgages, and which PLAINTIFFS repeate the above
paragraphs 247 to 253 which PLAINTIFFS restate with the same force
as though they had been individually repeated herein, and that such
actions tortuous, malicious, actionable and outrageous, and against
the public consciousness and moral, PLAINTIFFS further seek nominal
and punitive damages, the limits of those being greater than those
allowed by the lower courts.
281. WHEREFORE, PLAINTIFFS demand judgement against the
Defendant Dominik Penzetta (PENZETTA) in their favor in amounts of
not less than $1,250,000.00 in compensatory damages, as described on
pages 42 to 44 in this Verified Amended Complaint, that such actions
were tortuous, malicious, actionable and outrageous, and against the
public consciousness and moral, and PLAINTIFFS further seek punitive
damages, the limits of those being greater than those allowed by the
lower courts, and in an amount sufficient to punish the Defendant
from engaging in such conduct again, reasonable attorney's fees,
costs of this action and recission of the mortgage loan and other
equitable relief that PLAINTIFFS are entitled to receive.
AS AND FOR A FIRST AND SEPARATE CAUSE OF ACTION AGAINST
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JOHN GUTTRIDGE ESQ. "REFEREE"
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282. PLAINTIFFS reallege and restate all the preceeding
paragraphs as stated before with the same force as though they had
been individually repeated herein.
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283. Defendant John Guttridge Esq., (REFEREE) is the assigned
referee for WELLS FARGO'S foreclosure action against PLAINTIFFS'
PROPERTY, and as such must work hand in hand with the BAUM LAW FIRM,
PENZETTA, AGENT FRANCIS, and RIVERCITY ABSTRACT and is an intregal
and necessary part and player in the conspiracy needed inorder to
carry out the final acts of forced foreclosure of borrowers PROPERTY
at an auction that is fully under his control, and that is the final
step necessary in order for the above stated Defendants to illegally
gain borrowers equity, aka "theft of equity" at a greatly reduced
market value.
284. That as a practicing attorney, REFEREE Guttridge is fully
aware, and should be aware of all the applicabal New York State and
Federal laws regarding foreclosure actions, as well as the legal
requirements needed to rise to the level to carry out a proper and
legal auction; and as an attorney and officer of the court this
REFEREE has bound duty by law, to the public and all persons before
the bar to be treated in a fully legal manner, and that the
association of this group of Defendants and their resulting actions,
by his mere association and willingness to carry out the auction of
PLAINTIFFS' PROPERTY has damaged PLAINTIFFS in the amounts listed
below.
285. In this role, it is necessary for the REFEREE to ignore
the various and obvious shortcommings of at many of these
foreclosure actions which upon a casual reading, do not even rise to
the level of being legal; such shortcommings as WELLS FARGO and the
BAUM LAW FIRM not pleading or not having actual possession of the
original note and mortgage, in order to obtain legal jurisdiction
and standing, ab initio,
286. As referee John Guttridge (REFEREE) is the very last step
than a borrower has to see justice done, and that it is the duty of
the referee to see that everything in the proceedings have been done
legally, and fairly. While the referee has a duty to the lender to
make him/her whole, and secure the best return for the lended and
secured amount, it then behoves the referee to a duty to obtain the
highest offerings or bids to offset the original amount loaned. As
the facts and allegations of this Compalint show, along with the
attached Exhibits, that this REFEREE would never be able to recoup
under the cirmumstances shown in this Complaint, in particular the
following paragraph below, that PLAINTIFFS' PROPERTY would never be
able to recoup WELLS FARGO'S initial loan investment of some
$650,000.00, and this REFEREE, as an expert knows fully well.
Therefore, prima facie proof, that this REFEREE is fully complicit
in the attempt to destroy PLAINTIFFS in order for the various named
Defendants to get control of the title and control of PLAINTIFFS
PROPERTY.
287. PLAINTIFFS assert that the REFEREE in WELLS FARGO'S
foreclosure process has not attempted to indemnfy his clients,
settleing on the mere advertising for the auctions being held in a
"newspaper" so small that it does not have even a store front,
operates out of a private home that does not even have its name on
the mailbox, is not registered with the New York Sectrary of State,
and as such is a complete sham political paper who's sole purpose is
to allow Defendants WELLS FARGO, the BAUM LAW FIRM to fill the legal
requirements for advertising the auctions where no serious arms
length buyer would be likely to read. In fact, this "paper" does
not even rise to the level of the legal requirements of New York
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State laws regarding "legal notices" of property to be auctioned,
and this Defendant knows, or should know it.
288. As such, Defendant John Guttridge, the REFEREE being in the
same area, knew, and should have known, that this non serious paper
that fronts for Defendants WELLS FARGO, the BAUM LAW FIRM, AGENT
FRANCIS, closing attorney PENZETTA, and RIVERCITY ABSTRACT, is part
and parcel of a scheme that entrapped PLAINTIFFS herein in
Defendants attempt to gain the not only the equity, but the major
market value to be gained in a distresses sale, and that the entire
foreclosure action initiated by WELLS FARGO through the BAUM LAW
FIRM, with the initial cooperation of Defendants MARCIA FRANCIS,
PENZETTA, RIVERCITY ABSTRACT, SEAN NIX, attorney KARASZEWSKI,
without this REFEREE'S advance cooperation.
289. That Defendant John Guttridge (REFEREE) has severely
damaged PLAINTIFFS by his association, which he knew, and should
have known would prevent PLAINTIFFS to later sell their PROPERTY in
order to payoff the outstanding mortgages, and which PLAINTIFFS
repeate the above paragraphs 247 to 253 which PLAINTIFFS restate
with the same force as though they had been individually repeated
herein, and that such actions tortuous, malicious, actionable and
outrageous, and against the public consciousness and moral,
PLAINTIFFS further seek nominal and punitive damages, the limits of
those being greater than those allowed by the lower courts.
290. That Defendant REFEREE still holds the power to auction
PLAINTIFFS' PROPERTY as a result of a Judgement for Foreclosure and
Sale of the Supreme Court of Putnam County by way of his
association, and prior attempt to start to advertise PLAINTIFFS'
PROPERTY, any by his clear association has hurt PLAINTIFFS, and can
potentially further damage PLAINTIFFS, PLAINTIFFS seek nominal
damages as well as described below.
291. WHEREFORE, PLAINTIFFS demand judgement against the
Defendant John Guttridge (REFEREE) in the event the REFEREE less
proceeds with any sale of PLAINTIFFS' PROPERTY in their favor in
amounts of not than $1,250,000.00 in compensatory damages, as
described on pages 42 to 44 in this Verified Amended Complaint, that
such actions were tortuous, malicious, actionable and outrageous,
and against the public consciousness and moral, and PLAINTIFFS
further seek punitive damages, the limits of those being greater
than those allowed by the lower courts, and in an amount sufficient
to punish the Defendant from engaging in such conduct again,
reasonable attorney's fees, costs of this action and recission of
the mortgage loan and other equitable relief that PLAINTIFFS are
entitled to receive.
AS AND FOR A FIRST AND SEPARATE CAUSE OF ACTION AGAINST
--------------------------------------------------------
Defendants jointly, JOHN BALDWIN JR. "BALDWIN" and
--------------------------------------------------------
AFFORDABLE FINANCIAL SERVICES LTD "AFFORDABLE"
----------------------------------------------
292. PLAINTIFFS reallege and restate all the preceeding
paragraphs as stated before with the same force as though they had
been individually repeated herein.
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293. Defendants Affordable Financial Services (AFFORDABLE) and
John Baldwin Jr. (BALDWIN) is a Certified Mortgage Broker, is/was an
agent employed by co-Defendant AFFORDABLE, and as such both are
fully familiar with all the Federal, State, and real estate
guidelines and laws.
294. That AFFORDABLE through BALDWIN contacted PLAINTIFFS
herein with several offers to get and obtained mortgages for either
or both the foreclosed property in New York, but also for PLAINTIFFS
Virginia property which had no obligations against it.
295. BALDWIN repeatedly assured PLAINTIFFS, who at this time
desperately needed financing to survive, contacted PLAINTIFFS
beginning in March 2007, that even with the foreclosure on
PLAINTIFFS' PROPERTY, he could get financing since he "worked with
special groups or lenders" and that he had got other clients in the
same situation mortgages.
296. PLAINTIFFS began a relationship with BALDWIN through
AFFORDABLE and submitted the forms and information required for this
special kind of financial situation. PLAINTIFFS were told that they
had been initially approved and so PLAINTIFFS then contracted to
have the Virginia property appraised, and were told that a "closing"
would be done around July 4, 2007 when PLAINTIFF Scott Webster would
be returning to Virginia. BALDWIN began reporting one delay after
another and placing blame on everyone possible.
297. PLAINTIFFS during this relationship kept furnishing BALDWIN
with critical information, including legal papers submitted in the
continuing foreclosure litigation, the critical situation PLAINTIFFS
faced with the credit card payments, and most important how critical
it was to get the mortgage on the Virginia property as without it
PLAINTIFFS were facing bankruptcy and would not even have the filing
fees for appealing the Judgement for Foreclosure, as well as the
filing fees and related costs in this instant Federal suit.
298. BALDWIN was constantly made aware of PLAINTIFFS' plans and
legal options, even posting some of the legal papers on the internet
that was private and out of the public access so that his contacts
would be kept appraised. These postings were for the information of
the persons BALDWIN represented who dealt with difficult
properties.
299. During the Fall of 2007, PLAINTIFFS became desperate
financially, but BALDWIN began stalling for time, began not
answering his telephone or return messages, emails, and even began
to encourage PLAINTIFFS to file for bankruptcy, totally contrary to
what he assured PLAINTIFFS in the past. Calls from PLAINTIFF were
blocked, while friends of PLAINTIFFS could easily get through.
300. By late Fall, BALDWIN was still claiming that the financing
was going through, and at PLAINTIFFS demand, first sent a PLAINTIFFS
"commitment" letter and stated that a closing date would be taking
place "shortly". When PLAINTIFFS requested an actual closing date,
BALDWIN sent several emails and that the "lender" wanted a last
minute "walkthrough" of the property. This was after the appraisal
had been completed.
301. As PLAINTIFFS became financially desperate with at least
six credit card companies threatening to take legal action, BALDWIN
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sent another "commitment letter" from another lender and claimed
additional "walkthroughs" would be taking place and that for
PLAINTIFF Jean Allen Webster to go ahead and make settlement
arrangements for closing of the credit cards, even to the extent
that PLAINITIFF Jean Webster had one of the credit card companies
call BALDWIN for verification of the closing for which BALDWIN told
them "closing would be in a couple of days, not more than two
weeks."
302. PLAINTIFFS now were facing several collection agencies who
were about to begin filing legal action, looked up BALDWIN'S
"lender" from the "commitment letter" supposedly sent by them to
BALDWIN, but when PLAINTIFFS contacted them in mid-November of 2007,
were told that BALDWIN, had merely submitted a general application
months earlier in mid-September 2007, and had not followed up on any
of the documents they had requested, which PLAINTIFFS had turned
over to BALDWIN months earlier. As a result of PLAINTIFFS' phone
call to the lender, BALDWIN started faxing the required documents
late that same afternoon.
303. Without PLAINTIFFS' telephone call, the difficult time
frame BALDWIN and AFFORDABLE had put PLAINTIFFS in would have forced
PLAINTIFFS to bankruptcy, prevented the filing of the appeal of the
foreclosure action and prevented the preparation and filing of this
instant Federal suit.
304. By now PLAINTIFFS realized that BALDWIN and AFFORDABLE,
through their combined actions such as the forging of the
"commitment letter"; the stalling and encouraging PLAINTIFFS to stay
and work with them; the requesting information of PLAINTIFFS legal
maneuvers; and, constantly changing financial situation which
included reporting of auction and car sales, results of the many
"open house" PLAINTIFFS held, the interested buyers, that it became,
albeit too late, that these two Defendants, AFFORDABLE and BALDWIN
were representing the interests of others, obviously the BAUM LAW
FIRM and head attorney for the foreclosure KARASZEWSKI.
305. That given the above actions of BALDWIN and AFFORDABLE,
the information given to them by PLAINTIFFS was forwarded to the
BAUM LAW FIRM and/or attorney KARASZEWSKI, in exchange for some kind
of compensation, further information to be sought through future
depositions and discovery, is prima facie proof of an apparent quid
pro quo is that by the Defendants' deliberate actions in that for
the above obvious reasons, BALDWIN and AFFORDABLE were willing to
give up a $4,500 commission, as well as the risk of breaking the
various State and Federal laws, commit fraud and expose themselves
to civil action.
306. WHEREFORE, PLAINTIFFS demand judgement against the
Defendant Affordable Financial Services (AFFORDABLE) in their favor
for the continued costs of maintaining the credit card payments
which would have been paid off back much earlier, in amounts of not
less than $15,000,00 in compensatory damages, in addition to nominal
damages for the added stress through Defendant's lying and deceipt,
that such actions were tortuous, malicious, actionable and
outrageous, and against the public consciousness and moral, and
PLAINTIFFS further seek punitive damages, the limits of those being
greater than those allowed by the lower courts, and in an amount
sufficient to punish the Defendant from engaging in such conduct
again, reasonable attorney's fees, costs of this action and
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recission of the mortgage loan and other equitable relief that
PLAINTIFFS are entitled to receive.
307. WHEREFORE, PLAINTIFFS demand judgement against the
Defendant John Baldwin Jr. (BALDWIN) in their favor for the
continued costs of maintaining the credit card payments which would
have been paid off back much earlier, in amounts of not less than
$15,000,00 in compensatory damages, in addition to nominal damages
for the added stress through Defendant's lying and deceipt, that
such actions were tortuous, malicious, actionable and outrageous,
and against the public consciousness and moral, and PLAINTIFFS
further seek punitive damages, the limits of those being greater
than those allowed by the lower courts, and in an amount sufficient
to punish the Defendant from engaging in such conduct again,
reasonable attorney's fees, costs of this action and recission of
the mortgage loan and other equitable relief that PLAINTIFFS are
entitled to receive.
AS AND FOR A FIRST AND SEPARATE CAUSE OF ACTION AGAINST
--------------------------------------------------------
RIVER CITY ABSTRACT LLC. "RIVERCITY ABSTRACT"
---------------------------------------------
308. PLAINTIFFS reallege and restate all the preceeding
paragraphs as stated before with the same force as though they had
been individually repeated herein.
309. Defendant River City Abstract LLC (RIVERCITY ABSTRACT) is
a real estate title company organized and operating under the laws
of the State of New York, and as such has a legal, let alone moral
obligation to the companies that hire it, as well as the public, and
must operate and insure titles under the various Federal and State
laws governing real estate.
310. That Defendant RIVERCITY ABSTRACT aided and abetted the
above named Defendants as stated in all the preceeding numbered
paragraphs of this Verified Amended Complaint, and PLAINTIFFS again
state with the same force as though they had been individually
repeated herein, with emphasis of the above paragraphs 247 to 253.
311. That Defendant RIVERCITY ABSTRACT failed to file the
satisfaction of the original $162,000.00 mortgage, after being sent
copies of Exhibits 5 and 6 showing that WELLS FARGO had paid off and
stated that the satisfaction would be filed, that PLAINTIFFS' credit
report (Exhibit 4.2) showing that the mortgage had been paid and was
never late.
312. That Defendant RIVERCITY ABSTRACT went and filed an
additional $380,346.31 "gap" mortgage that was sudposedly
consolidated with the original $162,000.00 mortgage, which should
never have been recorded and Defendant knew, or should have known
that this filing along with filing the CONSOLIDATED MORTGAGE would
show double the amount, that having been put on notice that these
publicly filed mortgages would show combined mortgages of some
$1,214,000.00 owed, amounts that were never given or loaned to
PLAINTIFFS.
313. That Defendant RIVERCITY ABSTRACT when given a copy of
Exhibit 4.1 showing that the CONSOLIDATED MORTGAGE was treated by
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CoDefendant WELLS FARGO as a real mortgage and not the mere
"exhibit" RIVERCITY ABSTRACT and PENZETTA have been claiming,
RIVERCITY ABSTRACT failed, and continues to fail to correct the
public record, and has, and continues to harm PLAINTIFFS by
preventing them from being able to sell their PROPERTY because there
is no clear title.
314. That Defendant RIVERCITY ABSTRACT knew and should have
known as professionals and experts in the real estate arena by doing
closings, that the way and manner in which they filed, and failed to
file the proper satisfactions and deeds of record, would harm and
prevent PLAINTIFFS from being able to sell their PROPERTY.
315. WHEREFORE, PLAINTIFFS demand judgement against the
Defendant River City Abstract (RIVERCITY ABSTRACT) in their favor in
amounts of not less than $1,250,000.00 in compensatory damages, as
described on pages 42 to 44 in this Verified Amended Complaint, that
such actions were tortuous, malicious, actionable and outrageous,
and against the public consciousness and moral, and PLAINTIFFS
further seek punitive damages, the limits of those being greater
than those allowed by the lower courts, and in an amount sufficient
to punish the Defendant from engaging in such conduct again,
reasonable attorney's fees, costs of this action and recission of
the mortgage loan and other equitable relief that PLAINTIFFS are
entitled to receive.
316. WHEREFORE, PLAINTIFFS FURTHER demand judgement against the
Defendant River City Abstract (RIVERCITY ABSTRACT) and that such
actions as described above are tortuous, malicious, actionable and
outrageous, and against the public consciousness and moral, that
PLAINTIFFS further seek nominal and punitive damages, the limits of
those being greater than those allowed by the lower courts. seek
nominal and punitive damages, the limits of those being greater than
those allowed by the lower courts.
AS AND FOR A FIRST AND SEPARATE CAUSE OF ACTION AGAINST
--------------------------------------------------------
STEVEN J. BAUM P.C. "BAUM LAW FIRM" and
---------------------------------------
DARLEEN V. KARASZEWSKI ESQ. "KARASZEWSKI"
-----------------------------------------
317. PLAINTIFFS reallege and restate all the preceeding
paragraphs as stated before with the same force as though they had
been individually repeated herein.
318. Defendants Steven J. Baum, PC, "BAUM LAW FIRM" is the law
firm for Defendant WELLS FARGO, and has represented them in all
actions, correspondence, and WELLS FARGO refers to them in all
matters as their Legal representive, even as to letters sent to
various agents of WELLS FARGO, or letters of complaint to the Office
of the Comptroller of the Currency who is supposed to regulate the
activities of the National Lenders.
319. Darleen V. Karaszewski, Esq., is an attorney with the BAUM
LAW FIRM, and appears from the submission of legal papers, that she
is the lead or head counsel for WELLS FARGO, and is aware, or should
be aware of their content, statements, documents, and actions
against PLAINTIFFS herein.
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320. That during the course of the litigation Defendants
have chosen a course of action to deliberately cause extreme
stress and to prevent PLAINTIFFS of their right to due process
in law by making false statements before the Supreme Court of
Putnam County in an effort to thwart PLAINTIFFS to fair and
just procedures, to, inter alia, the following:
A) The filing of the incorrect LIS PENDENS
B) Starting their foreclosure action 2 1/2 month before the
legal time to file
C) Maliciously serving PLAINTIFFS with a summons and
complaint 3 1/2 days before Christmas with the obvious
intention of preventing PLAINTIFFS with sufficient time
to secure research and/or legal counsel; that the
following Friday would be a half day at best, then the
Weekend, Monday for Christmas, Christmas Week, the
following Weekend, leaving just four (4) working days to
get counsel and file an answer before the next Friday;
D) Back dated portions of their motion for summary judgement
to block PLAINTIFFS' demand for a Bill of Particulars
for PLAINTIFF'S due process of discovery;
E) Submitted an Affidavit by Defendant SEAN NIX which they
knew, and should have known contained misstatements
and outright falsehoods to support their motion for
summary judgement;
F) Knowingly filed their Summons and Complaint on a mortgage
that was paid and satisfied;
G) Failed to rectify the erroraneous filing after being made
aware of it by PLAINTIFFS' Cross Motion in Opposition
to their Motion for Summary Judgement;
H) Asserted at various times when it suited their position
that the surviving CONSOLIDATED MORTGAGE was merely
a "exhibit" to protect their original filing the
action against the original 1995 $162,000.00 mortgage
which Defendants knew was paid and satisfied, as their
belatedly late "assignment" from MERS to WELLS FARGO
was done and filed after the initiating of the
foreclosure suit;
I) Would have realized that the CONSOLIDATED MORTGAGE could
not have been legally done at the time of the closing
as WELLS FARGO was not the holder of the mortgage, and
therefore not the party in interest, however knowing this
went ahead and pressed the issue when it suited them
such as asserting before the Appellate Division that
it really was the CONSOLIDATED MORTGAGE they were
suing on;
J) That Defendants knew that the CONSOLIDATED MORTGAGE was
not legitimate as it was never filed as a mortgage
and no mortgage tax had been paid on it, but used
it as the mortgage being sued upon when necessary to
gain an unfair advantage over PLAINTIFFS;
K) Knowingly filed a defective Complaint against PLAINTIFFS
which specifically used the original 1995 $162,000,00
as the mortgage being foreclosed upon, and submitted
exhibits from a title search company asserting that
that mortgage was being foreclosed upon, and Defendants
knew that it was not true because PLAINTIFFS challenged
the findings as being hearsay since no documentation as
to who did the search was listed;
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L) Later included that missing page in a submission
as an exhibit that showed that Defendants began the
foreclosure action even before being notified by
WELLS FARGO on November 22, 2006 that the matter had
been assigned to them;
M) Knowingly submitted via the use of a "legal assistant" to
shield themselves and other attorneys from wrong doing
for evading the rules of the CPLR by filing an illegal
motion to Supreme Court Chambers to "amend" a prior
decision and order, which included es parte communication s;
N) Knowingly submitted the motion to amend the prior decision
and order without first filing a motion for leave to
reargue the prior decision and order (CPLR 2221),
in an attempt to gain unfair advantage and harm
PLAINTIFFS;
O) Knowingly failing to pay the filing fee for a motion
CPLR 8020 (a) with the intention of harming PLAINTIFFS
in the litigation;
P) Knowingly swearing in various affidavits that the reason
for their illegal motion to reargue was due to a
"de minimus court scrivner's error" which as professional
litigators knew, and should have known, does not rise
to the level of requiring judicial intervention;
R) Knowingly using the ruse of a de minimus to completely
change the holdings of facts in the original decision
and order to their own advantage and damaged PLAINTIFFS
in the amount of $150,000.00;
S) Back dated a notice of entry before the Appellate Division
in order to thwart PLAINTIFFS from moving the Court for
a stay in the auctioning of PLAINTIFFS' PROPERTY,
whereupon Defendants then ordered the REFEREE to begin
the advertising in the phoney newspaper as described
in earlier paragraphs in this Complaint;
T) Knowingly asserting in their Judgement for Foreclosure and
Sale that PLAINTIFFS had never answered the Complaint
or had their time to do so been enlarged, all of which
was intended to block PLAINTIFFS appeal through the
concept of having the appeal being declared an
"uncontested foreclosure", harming PLAINTIFFS
of their rights of due process of law;
U) Knowingly allowing a staff attorney to assert in WELLS
FARGO'S answering brief in the Appellate Division
to completely change Defendant WELLS FARGO'S position
to now claim that the original suit was based upon
the CONSOLIDATED MORTGAGE, which Defendants know was
never filed as a mortgage or tax being paid upon same;
V) Knowingly filed the lis pendens and foreclosure action
would damage PLAINTIFFS because the "kiss of death"
would exist over PLAINTIFFS' PROPERTY and make it
unsellable in the market as the filing became public
making the PROPERTY virtually unmarketable.
321. WHEREFORE, PLAINTIFFS demand judgement against the
Defendant Steven J. Baum, PC, "BAUM LAW FIRM" in PLAINTIFFS favor
for all the reasons stated above in amounts of not less than
$1,250,000.00 in compensatory damages, as described on pages 42 to
44 in this Verified Amended Complaint, that such actions were
tortuous, malicious, actionable and outrageous, and against the
public consciousness and moral, and PLAINTIFFS further seek punitive
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damages, the limits of those being greater than those allowed by the
lower courts, and in an amount sufficient to punish the Defendant
from engaging in such conduct again, reasonable attorney's fees,
costs of this action and recission of the mortgage loan and other
equitable relief that PLAINTIFFS are entitled to receive.
322. WHEREFORE, PLAINTIFFS demand judgement against the
Defendant Darleen V. Karaszewski, Esq., "KARASZEWSKI" in their favor
in amounts of not less th $1,250,000.00 in compensatory damages, as
described on pages 42 to 44 in this Verified Amended Complaint, that
such actions were tortuous, malicious, actionable and outrageous,
and against the public consciousness and moral, and PLAINTIFFS
further seek punitive damages, the limits of those being greater
than those allowed by the lower courts, and in an amount sufficient
to punish the Defendant from engaging in such conduct again,
reasonable attorney's fees, costs of this action and recission of
the mortgage loan and other equitable relief that PLAINTIFFS are
entitled to receive.
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Scott E. Webster 276-728-5006 Virginia Number Email info@the-cri.com and include for the subnject matter RE: Wells Fargo |