Fake Companies, Fake Documents, and an Outrageous Foreclosure Judgment Should Receive Supreme Court Notice. Well, Not if You are Opposing Deutsche Bank, Ocwen or MERS

From: Timothy and Karen Harry <karenharry7@gmail.com>

Subject: Fake Companies, Fake Documents and an Outrageous Foreclosure

Date: June 1, 2021

Message Body:

Hello,

Our home, located at 31 Marway, Mashpee, Ma., was scheduled for a foreclosure auction on April 16, 2021. We printed two copies of your article, referenced in the subject line, and sent them to PHH Mortgage Services, and Korde & Associates. The auction was cancelled, and there is no longer a pre-foreclosure or foreclosure associated with our property.  The letter PHH sent us on April 22, 2021 states, “The foreclosure proceedings that were initiated on September 9, 2015, are currently on hold. Further, there is no sale date scheduled.”  We don’t know what is going to transpire in the future, but wanted to let you know your article made a difference, and to thank you.

Sincerely,
Timothy C Harry
Karen C Harry

INTRODUCTION

The Petitioners, Timothy C. Harry and Karen C. Harry are victims of the subprime mortgage lending financial crisis that gripped the nation in the aughts. The Harry’s were solicited to refinance their property in 2006 by Apex Mortgage Servicers. The lender on the note, American Brokers Conduit, (“ABC”) is a fictitious trade name that was not registered anywhere in Massachusetts pursuant to M.G.L. 110 Section 5, did not apply for nor obtain a license to lend money from the Massachusetts Banking Commission pursuant to M.G.L. 255E and M.G.L. 255F. Fidelity Title Group filed the alleged mortgage with the Barnstable Registry of Deeds listing Mortgage Electronic Registration System (MERS) as nominee for the lender. MERS used the member number of American Home Mortgage Holding, Inc. who was not the lender on the note or mortgage.

Defendant Fidelity National Financial, Inc. had a subsidiary, DOCX that was in the business of fabricating lending documents for American Home Mortgage Servicing, Inc. (“AHMSI”). The Fidelity companies were involved with creating the original void note and mortgage and Petitioners believe DOCX was involved with the fabrication and forgery of signatures on the substituted void lending documents.

Over the period of the loan, the Petitioners believed the alleged loan they received was a predatory negative amortization loan and stopped paying on the mortgage. Beginning in 2009 and continuing through January 2016, Deutsche Bank Trust Company (“Deutsche Bank”) and Ocwen Loan Servicing, LLC (“Ocwen”) began five attempts to foreclose on the property.

On March 18 , 2016, Plaintiffs brought suit in Barnstable County Superior Court seeking to have the alleged loan declared void because the lender was an unregistered, unlicensed, entity lacking the legal capacity to enter into a lending contract, to have the mortgage discharged, to receive quiet title to their property and to seek damages.1

The district court dismissed Petitioner’s complaint as against all defendants except Ocwen pursuant to Count IV under the Fair Debt Collection Practices Act (FDCPA) stating that Petitioner’s complaint was time barred under the statute of limitations and did not state a claim upon which relief could be granted.

During discovery, Petitioners found that the Ocwen business work product, known as the “Harry Comment Log”, states “the signature on the loan, in their collateral file, which is held by defendant Deutsche Bank, does not match the signature on the letter” that the Petitioner’s sent to Ocwen asking Ocwen to deal solely with their Attorney. During Ocwen’s deposition, they admitted that there were two executed mortgages each with a different recording entity listed; the fabricated one Ocwen received from Deutsche Bank that was stamped a “True and Certified Copy” of the original, which Ocwen and Deutsche Bank relied on to service the alleged loan and the copy of the one filed with the Barnstable Registry of Deeds. All of Petitioner’s evidence and the Defendant’s admissions were not even considered by the district court nor reviewed by the First Circuit.

1. Because the First Circuit failed to render an opinion and fully substantiated the District Court’s opinion, Petitioners refer to the District Court’s In that ruling, the District Court makes a comment about the damages requested. The damages are math under RICO regarding the fraudulent use of the mail/wire/ bank/fictitious name fraud as set out by statutes. 18 USC 1963, Alexander v. United States, 509 U.S. 544 (1993). Plaintiffs sued for the maximum amount that has been allowed for each offense Plaintiffs’ incurred from Defendants, which Plaintiffs lay out in excruciating detail in their Amended Complaint. [A51 et. seq.].

The First Circuit affirmed the district court’s granting of Summary Judgment to Ocwen and Dismissal of the case without issuing an opinion on the merits of this case. Instead the First Circuit relied upon another opinion in Harry v. Countrywide Home Loans, Inc. 902 F.3d 16 (1st Cir. 2018) which is a different case with different plaintiffs, different defendants and a different fact pattern. Further, in Harry v. Countrywide Home Loans, Inc., Countrywide admitted twice in  its response brief that it  did  not  have  a license to lend money in Massachusetts and the First Circuit ignored that judicial admission in its ruling.

The First Circuit ignored all evidence and admissions and found defendant Ocwen did not violate the FDCPA when their practice was to recreate lending documents and forge signatures for business purposes.

This Court’s intervention is urgently needed. As it currently stands, the First Circuit is and does ignore this Court’ decisions, that an unregistered, unlicensed entity can enter into a contract. The First Circuit’s ruling also permits corporations to fabricate and forge individuals’ signature on whatever documents are needed to meet the corporation’s business purpose. Under any other fact pattern, fabrication of documents and forgery of signatures is considered a felony.

The First Circuit ruling is so unconscionable and completely disrespects the Constitution of the United States and all statutes promulgated thereunder, the Statutes of Massachusetts that this Court has stated must be upheld in Federal Court as well as all Supreme Court rulings. Petitioners are not the only homeowners being swept under the rug by the crimes being committed by defendants. ABC wrote loans across the country. The Supreme Court must intervene to not only protect the Petitioners’ rights as homeowners, but direct the federal district and circuit courts to uphold the state and federal laws when it comes to foreclosure of United States citizens’ homes.

STATEMENT OF THE CASE

A.       Factual Background

In late November 2006 Plaintiffs were contacted by APEX Mortgage Servicers, Inc. (“APEX”) regarding refinancing their property. [A51, Para 15-17].2

On December 13, 2006, Plaintiffs formally applied with APEX for a Uniform Residential Loan to refinance their current mortgage. Apex, not the Plaintiffs, filled out application and input false financial information. [Id. at Para 16-24]

On December 13, 2006, APEX faxed a Good Faith Estimate (“GFE”) and a Truth-In-Lending Disclosure

2. The facts are drawn from Petitioner’s Amended Complaint and the opinions Page numbers are to the appendix submitted to the First Circuit Court of Appeals.

(“TIL”) prepared on November 29, 2006. The information on the GFE, TIL and loan application are all different. [Id. At paragraphs 25-35].

On December 21, 2006, Plaintiffs received a one page HUD-1A Settlement Statement prepared by a non-legal entity Fidelity Title Company stating that another non- legal entity American Brokers Conduit (“Hereinafter ABC”) was the lender. The HUD-1A was fraught with inaccuracies. [Id. at para 36].

Chicago Title Insurance Company, a subsidiary of Fidelity National Title Group wrote a commitment on November 20, 2006 twelve days prior to the alleged loan application and a month prior to the alleged closing date stating a Loan Policy in the amount of $450,000 when the alleged loan application and GFE stated a loan amount of $445,500. [Id. at para 42-47].

Fidelity Title Group filed the alleged mortgage with the Barnstable Registry of Deeds listing MERS as nominee for ABC using a MERS MIN (Member Identification Number) for American Home Mortgage Holding, Inc. [Id. at para 59-65].

On May 1, 2009, MERS as nominee for ABC assigned the alleged mortgage to Deutsche Bank National Trust Company, as Trustee for American Home Mortgage Assets Trust 2007-02, Mortgage-Backed Pass-Through Certificates, Series 2007-02 (“Deutsche Bank”). This assignment of the alleged mortgage (“AOM”) is void because the lender did not exist, therefore could not nominate MERS as mortgagee, MERS had nothing to assign, the MERS MIN on the alleged mortgage is for another entity, Trust 2007-02 was closed according to the Trusts Pooling and Servicing Agreement, the Trust is governed by New York law, the assignment was signed by six illegal known robo-signers, Ron Meharg who prepared the assignment, Tywanna Thomas As Asst. Secretary for MERS, Dawn Williams as Witness for MERS, Korell Harp as VP for MERS (who was in an Oklahoma prison at the time of the execution of the assignment), Christina Huang as Witness for MERS and Britany Snow as the Notary Public. [Id. at Para 71-81].

On July 7, 2011 MERS executed a second AOM to Deutsche Bank as Trustee of the same Trust which stated ABC “is organized and existing under the laws of the United States of America”, stated that the assignment is a “Confirmatory Assignment” in care of American Home Mortgage Servicing, but using an address for Ocwen Loan Servicing, and this assignment was also executed by known illegal robo-signer April King and notarized by Tammy M. Hansen who does not have a notary commission number in Florida where the document was allegedly executed. [Id. at Para. 82-87].

American Home Mortgage Servicing, Inc. (“AHMSI”) serviced this alleged note from November 1, 2008 through June 5, 2012 when they changed their name to Homeward Residential Inc.; Homeward was purchased by Ocwen Financial Corporation on October 3, 2012. All three Defendants continued to seek payment on a void note and void mortgage. [Id. at Para 88-93].3

3. Ocwen Loan Servicing recently sold the mortgage servicing rights to PHH Mortgage Services out of Laurel, NJ and has sent their first notice of foreclosure to the Petitioners.

On September 28, 2009, Defendant Deutsche Bank began the first of five attempts to foreclose on the Plaintiffs’ property. Notice of Mortgagee’s sale was published in The Enterprise on November 6, 2009. The second notice was sent November 11, 2010, the third on July 14, 2011, the fourth on February 13, 2015 and the Fifth on January 28, 2016 [Id. at para 94-128].

Plaintiffs received correspondence from Ocwen on July 20, 2015 that stated “they [Ocwen] would not communicate with Plaintiffs’ counsel because Plaintiffs’ signature on the letter they sent to Ocwen requesting that Ocwen deal with Plaintiffs’ counsel did not match Plaintiffs’ signature on the fraudulent loan documents in Ocwen’s possession. This is when Plaintiffs’ realized that the alleged loan documents were fraudulent and forged. [Id. at Para 115-120].

On July 30, 2015, Plaintiffs, in accordance with RESPA, sent a Qualified Written Request and Validation of Debt letter to Defendant Ocwen who sent one package of documents on September 11, 2015 and a second set of documents on September 30, 2015. The documents sent do not follow the evolution of the debt and the response is in violation of RESPA 12 U.S.C. Section 2605(e). [Id. para 132-134].

On September 3, 2015, Defendants MERS, Deutsche Bank, and Ocwen created and caused to be filed a third void AOM in the Barnstable Registry of Deeds, [A304, pg. 8].

B.       Procedural History

On March 18, 2016, Plaintiffs filed their Verified Complaint with the Barnstable County Superior Court.

Summons were issued and served together with the Verified Complaint on Defendants American Brokers Conduit (“ABC”), Apex Mortgage Services (“Apex”), Fidelity National Inc., Fidelity National Title Group, Inc., Fidelity National Title Company (“Fidelity Companies”), American Home Mortgage Servicing, Inc. (“AHMSI”), Deutsche Bank National Trust Company, as Trustee for American Home Mortgage Assets Trust 2007-2 Mortgage-Backed Pass- Through Certificates, Series 2007-2 (“Deutsche Bank”), Homeward Residential, Inc. (“Homeward”), Mortgage Electronic Registration Systems, Inc. (“MERS”), Ocwen Loan Servicing, LLC (“Ocwen”), Korde & Associates, P.C. and Ablitt & Carlton Law Firm on April 27, 2016, by Constable Merrill Smallwood to each last known Registered Agent for Service of Process, who denied service which was then filed with the Massachusetts Secretary of State’s Office for Service Processing.

On May 17, 2016, Defendants Deutsche Bank, Homeward, MERS and Ocwen removed this matter to federal district court citing Federal Question as appropriate jurisdiction.

On June 13, 2016, Plaintiffs filed a Motion for Default as to ABC and Apex for failing to enter an appearance in accordance with Fed. R. Civ. P. Rule 12(A)(1)(a)(i). Also on June 13, 2016, Plaintiffs voluntary dismissed Defendant Korde & Associates.

On June 28, 2016, the court granted Plaintiffs Motion for Entry of Default against ABC and Apex and issued a Standing Order on Motions for default Judgment. [A37].

On July 8, 2016, Plaintiffs filed Motion for Entry of Default Judgment against ABC and Apex. [A39, A45]. The court denied the Motion on July 29, 2016 then vacated its decision and did not enter another ruling until August 24, 2018.

On July 19, 2016, Plaintiffs filed their Amended Complaint [A51] setting forth violations of racketeering activities under 18 U.S.C. 96 Sections 1961-1965 (count one); expiration of statutes of limitations (count two); violations of M.G.L. Chapter 266, Section 35A, Section 93A (count three); violations of the FDCPA (count four) violations of RESPA 12 U.S.C. Section 2601 (count five); violations of 18 U.S.C. Section 1014 (count six); violations of the Truth in Lending Act (count seven); slander of title (count eight); fraud in the concealment (count nine); rescission enforcement and quiet title (count ten) and Lack of Standing (count eleven). Defendants AHMSI, Deutsche Bank, Homeward, MERS and Ocwen filed their Motion to Dismiss and Memorandum of Law on even date. [A191, A196, A239].

On July 27, 2016, the Fidelity Companies filed their Motion to Dismiss, Memorandum of Law and Declaration [A246, A249, A279, A282-A298].

Plaintiffs filed their Motion in Opposition to Defendants Fidelity Companies’ Motion to Dismiss and Memorandum of Law on August 12, 2016. [A302, A441-A639]. Plaintiffs filed their Motion in Opposition to AHMSI, Deutsche

Bank, MERS, Homeward and Ocwen’s Motion to Dismiss and Memorandum of Law on August 22, 2016. [A300, A304, A306, A335-A439]. Defendants Fidelity Companies filed a Reply Motion and Memorandum of Law to Plaintiffs’ Opposition Motion and Memorandum of Law to Fidelity Companies Motion to Dismiss and Memorandum of Law on September 9, 2016. [A659]. Plaintiffs filed a Memorandum of Law Opposing Defendants AHMSI, Deutsche Bank, MERS, Homeward Motion to Dismiss on September 13, 2016. [A665, A667]. Ocwen filed a reply Motion and Memorandum of Law to Plaintiffs’ Opposition to Defendants Motion to Dismiss on October 3, 2016 together with a Motion to Strike with a Memorandum of Law to exclude certain exhibits submitted by Plaintiffs. [A730-A747].

The court held a Motion Hearing on October 5, 2016.

Plaintiffs f i led their Opposition Motion and Memorandum of Law to Defendants AHMSI, Deutsche Bank, Homeward, MERS and Ocwen’s Motion to Strike certain exhibits submitted by Plaintiffs on October 17, 2016. [A794, A796].

The court issued an Order to Show Cause that Plaintiffs had properly served ABC and Apex. [A805]. Plaintiffs filed their response to the Order to Show Cause on January 12, 2017 together with Exhibits and Affidavit of the serving Constable. [A807-A832].

The court granted all Defendants Motion to Dismiss for failure to state a claim except for Count IV as to Ocwen for violations under the Fair Debt Collection Practices Act with the ruling relying heavily that the

statute of limitations had run on all of the claims. [A834]. Plaintiffs filed a Motion for Reconsideration together with a Memorandum of Law on February 9, 2017. [A861]. The Defendant Fidelity Companies filed an Objection to Plaintiffs Motion for Reconsideration [A863] as well as Defendants AHMSI, Deutsche Bank, Homeward, MERS and Ocwen [A907, A913]. Plaintiffs filed a Reply [A923, A928], but ultimately, the Motion for Reconsideration was denied on April 12, 2017 without an opinion.

Plaintiffs filed an Appeal of the Motion to Dismiss ruling [A834] on April 12, 2017, which was deemed to be untimely by the United States Court of Appeals on June 5, 2017 [A937]. The court terminated Defendants Apex and ABC on May 4, 2017 and vacated that ruling on May 5, 2017.

After protracted maneuvering by defendants, discovery was completed and Plaintiffs filed their Motion for Summary Judgment, Memorandum of Law with attachments and Statement of Facts on June 29, 2018. [Doc. A1060, A1242-A2011, A2015]. Defendants also filed their Motion for Summary Judgment on June 29 2018. [A1062, A1064, A1081-A1235]. Reponses were filed on July 20, 2018 by Defendant Ocwen [A2093, A2042-A2107] and Plaintiffs [A21-7, A2109-A2145]. Plaintiffs also filed a Motion to Strike certain exhibits and Affidavit filed by Defendant together with a Memorandum of Law. [A2161, A2164]. Reply to Defendant Ocwen’s Response was filed by Plaintiffs on July 27, 2018 [A2197, A2] and by Defendant to Plaintiffs’ response. [A2179, A2157].

The court held a motion hearing on July 30, 2018.

On August 17, 2018, the court denied Plaintiffs’ Motion to strike Defendant Ocwen’s exhibits, Denied Plaintiffs’ Motion for Summary Judgment and Granted Defendant’s Motion for Summary Judgment and Dismissed the Petitioner’s case against Ocwen. [A2258]. None of the opinions ever address the fact that ABC was nothing more than a fictitious name nor did the opinions address the fabrication of new lending documents.

Plaintiffs then filed another Motion for Default against ABC and Apex on August 17, 2018 [A2269, A2275], which was denied by the court on August 24, 2018 [A2281]. Upon which the court ordered ABC and Apex dismissed [A2284] and ordered Judgment for the Defendant Ocwen on even date. [A2285].

Plaintiffs filed an appeal with the First Circuit Court of Appeals on August 29, 2018 [A2286], which was granted on August 29, 2018. On March 5, 2019, Plaintiffs filed their reply brief. On March 8, 2019, a mere three days later, the First Circuit affirmed the ruling of the district court without an opinion. Plaintiffs had submitted over 2200 pages of testimony and evidence in support of their appeal. Plaintiffs aver that none of it was reviewed or discussed. Plaintiffs filed a Petition for Rehearing En Banc on March 22, 2019, which First Circuit denied on April 25, 2019 again without an opinion.

This Petition followed.

REASONS FOR GRANTING THE PETITION

The ruling by the district court, upheld by the First Circuit, does not follow any of the rulings of this Court going back almost two hundred years. The ruling flies in the face of black letter law, the Constitution of the United States and the Statutes promulgated thereunder as well as the Statutes of the Commonwealth of Massachusetts.

Petitioners deserve to have their case heard on its own merits, deserve to have a contract written by an entity lacking the legal capacity to do so deemed void and the fabricated duplicate note and mortgage with forged signatures declared illegal and unenforceable.

I.         REVIEW IS WARRANTED WHERE THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION PROTECTS AN INDIVIDUAL’S RIGHT TO PROCEDURAL AND SUBSTANTIVE DUE PROCESS AND TO BE HEARD ON THE MERITS OF THEIR OWN CASE.

The Fifth Amendment and Fourteenth Amendments

The Fifth Amendment states that “No person shall….. be deprived of life, liberty or property without due process of law.” The Fourteenth Amendment states “nor shall any State deprive any person of life, liberty or property without due process of law.

A.         Procedural Due Process

The United States Supreme Court has ruled a party to a lawsuit has the fundamental right under the Fifth and Fourteenth Amendments, of the United States Constitution, to have their case be heard on its own merits.

“The Due Process Clause entitled a person to an impartial and disinterested tribunal in both civil and criminal cases. This requirement of neutrality in adjudicative proceedings safeguards the two central concerns of procedural due process, the prevention of unjustified or mistaken deprivations and the promotion of participation and dialogue by affected individuals in the decision making process. The neutrality requirement helps to guarantee that life, liberty or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law. At the same time, it preserves both the appearance and realty of fairness, generating the feeling, so important to a popular government, that justice has been done by ensuring that no person will be deprived of his interests in the absence of a proceeding in which he may present his case with assurance that the arbiter is not predisposed to find against him.” Marshall v. Jerrico 446 U.S. 238 (1980). See also Esso Standard Oil Co. (P.R.) v. Lopez Freytes, 457 F. Supp. 2d 156 (2006) (Company was entitled to permanent injunction where it achieved success on the merits by showing that there was a clear violation of its due process rights to a fair and impartial trial where the appearance of bias was so strong that a Constitutional tort would have been committed if the board were to continue with the proceedings against it.) Langford v. U.S. Dep’t of Treasury 645 F. Supp. 2d 381 (2009) citing Carey v. Piphus 435 U.S. 247, 259 (1978).

“…the very purposes for which courts were created — that is, to try cases on their merits and render judgments in accordance with the substantial rights of the parties.” Link v. Wabash R. Co., 370 U.S. 626, 648 (1962), Justices Black, Douglas and Chief Justice Renquist dissenting. “Further, this Court has repeatedly held that the case must be decided on its own merits and nothing else.”

The First Circuit decided not to render a decision in the case at bar, but to rely on another case Harry v. Countrywide, et al. in affirming the district court’s decision. The actions of the First Circuit violate Petitioner’s Fifth and Fourteenth Amendment right to due process of law before the taking of property. The property at issue is the Petitioners’ home.

The First Circuit states “After careful consideration of the record and the parties’ arguments, we affirm the district court’s decisions….” (2a) Plaintiffs filed their reply brief at 11:00 am on March 5, 2019 and by 1pm, the panel of judges was announced, which included Justice David Souter. On March 8, 2019, a mere three days later, the First Circuit issued its ruling affirming the district court’s decision.

The First Circuit failed to follow this Court’s rulings, the Constitution of the United States and the statutes of Massachusetts. Both the district court and the First Circuit relied upon and cited a faulty case Harry v. Countrywide Homes Loan Inc. to rule against Petitioners depriving Petitioners of their federal due process right to have their case heard on its own merits.

B.         Substantive Due Process

    1.  State Law

“Except in matters governed by the U.S. Constitution or by acts of Congress, the law to be applied in any case is the law of the state. Whether the law of the state shall be declared by its legislature in a statute or by its highest court in a decision is not a matter of federal concern. There is no federal general common law. Congress has no power to declare substantive rules of common law applicable in a state, whether they be local in their nature or general, be they commercial law or a part of the law of torts. Erie

R.R. v. Tompkins, 304 U.S. 64, 69, 1938. “And no clause in the United States Constitution purports to confer such a power upon the federal courts.” Hulin v. Fibreboard Corp., 178 F.3d 316, 317 (1999). A federal court sitting in diversity or exercising supplemental jurisdiction over state law claims must apply state substantive law, but a federal court applies federal rules of procedure to its proceedings. Daily v. Garrett (In re Garrett), 2014 Bankr. LEXIS 3087, *1, 2014 WL 3724984.

“The U.S. Constitution recognizes and preserves the autonomy and independence of the states in their legislative and judicial departments. Supervision over either the legislative or the judicial action of the states is in no case permissible except as to matters by the Constitution specifically authorized or delegated to the United States.” Erie, 69.

Review of this case is imperative as the First Circuit has completely ignored Massachusetts Statutes and authority of the Massachusetts Banking Commission, an administrative agency created under the Massachusetts legislature. This usurpation of power is beyond the scope of their judicial authority.

2.           Void Contract

The alleged lending documents are void, under the law. “The title to land can be acquired and lost only in the manner prescribed by the law of the place where such land is situated”. United States v. Crosby, 7 Cranch, 115, 116. “Anywhere interstate commerce is not direct affected, a state may forbid foreign corporations from doing business or acquiring property within her borders except upon such terms as those prescribed by the Wisconsin statute.” Munday v. Wisconsin Trust Co., 252 U.S. 499, 1920, citing Fritts v. Palmer, 132 U.S. 282, 288, (1898), Chattanooga National Building & Loan Association v. Denson, 189 U.S. 408,(1902); Interstate Amusement Co. V. Albert, 239 U.S. 560, 568, (1916).

A contract not within the scope of the powers conferred on the corporation cannot be made valid by the assent of every one of the shareholders, nor can it by any partial performance become the foundation of a right of action. Central Transp. Co. v. Pullman’s Palace Car Co., 139 U.S. 24, 38, 1891.

“A contract of a corporation, which is ultra vires in the proper sense, that is to say, outside the object of its creation as defined in the law of its organization, and therefore beyond the powers conferred upon it by the legislature, is not voidable only, but wholly void and of no legal effect; the objection to the contract is not merely that the corporation ought not to have made it, but that it could not make it; the contract cannot be ratified by either party, because it could not have been authorized by either; no performance on either side can give the unlawful contract any validity, or be the foundation of any right of action upon it. When a corporation is acting within the general scope of the powers conferred upon it by the legislature, the corporation, as well as persons contracting with it, may be estopped to deny that it has complied with the legal formalities which are prerequisites to its existence or to its action, because such requisites might in fact have been complied with. But when the contract is beyond the powers conferred upon it by existing laws, neither the corporation, nor the other party to the contract, can be estopped, by assenting to its or by acting upon it, to show that it was prohibited by those laws.” Louisville, N. A. &  C.  R. Co.  v.  Louisville Trust Co., 174 U.S. 552, 561, 19 Ct. 817, 820, 43 L. Ed. 1081, 1086, 1899 U.S. LEXIS 1518, *16 See also California Bank v. Kennedy, 167 US 362 (1897); Jacksonville M., P.R. & N. Co. v. Hooper, 160 U.S. 514 (1896).

Massachusetts General Statutes chapter 110 section 5 stipulates the procedures necessary for a “trade name” such as ABC, to be able to legally enter into a contract is to register the name in the town where it does business.

ABC was not registered in Mashpee, Massachusetts where the Plaintiffs live, nor with the Massachusetts Secretary of State. Unless an individual was aware of the Massachusetts Banking Commission’s Cease and Desist Order to American Home Mortgage Corp., no one would know what ABC was pretending to be. The First Circuit affirmed the district court statement “American Brokers Conduit was a trade name under which American Home Mortgage Corporation did business. American Home Mortgage Corporation was properly licensed as a mortgage broker in Massachusetts on March 21, 2000.” (App. 16a). The district court goes on to say “Even if American Home Mortgage Corporation improperly failed to register that trade name with regulatory authorities, it does not follow that the Harrys were somehow deceived or defrauded by the use of that name. (App.17a).

The district court admitted ABC was a fictitious name and was not registered and gave it legitimacy outside of the Massachusetts statute.

3.           MGL 255E and 255F (App_____ )

The district court and First Circuit ignored Massachusetts statutes 255E and 255F. These statutes legislative history began in 1783 when Chapter 25 was enacted creating the Massachusetts Banking Commission and prescribing the requirements as to how and who an entity meeting the definition of a “person” may become licensed to lend money in Massachusetts. (App )

This assertion by the district court above dismissing the fact that the name on the lending documents is nothing more than an unregistered trade name completely dishonors the Massachusetts Banking Commissions’ power as given to it by the Massachusetts legislature. The Banking Commission ruled in Docket Number 99- 026 [A1311]

“No authority exists under said chapter 255E for a mortgage lender to conduct business under an existing license while also using a trade name for all or any part of its business. The intent of the licensing framework set forth in said chapter 255E is to ensure that a consumer knows the identity of the entity with which he or she is doing business. To allow a lender to use a name other than the name which appears on its license would be contrary to this intent and foster potential consumer confusion regarding the identity of the licensee. Accordingly, it is not permissible for a licensed lender to conduct business under more than one name.”

It is imperative for the Supreme Court to grant a Writ Certiorari. Petitioners Fifth and Fourteenth Amendment rights to procedural and substantive due process have been completely ignored and that violation will result in the unlawful taking of Petitioners property. Petitioners have a right to have the First Circuit rule on the merits of the case at bar. The Petitioners have a right that for a judicial ruling to uphold Massachusetts statutes and this Court’s rulings.

II.      REVIEW IS WARRANTED WHERE A MOTION TO DISMISS MAY ONLY BE ENTERED IF THERE ARE NO ISSUES OF MATERIAL FACT.

The Court is required to “take as true ‘the allegations of the compliant, as well as such inferences as may be drawn therefrom in the plaintiffs’ favor…’” Blank v. Chelmsford Ob/Gyn, P.C. 420 Mass. 404, 407 (1995). “What is required at the pleading stage are factual ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief . . .” Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). “Factual allegations must be enough to raise a right to relief above the speculative level….. based on the assumption that all the allegations in the complaint are true (even if doubtful in fact) …” Iannacchino v. Ford Motor Co., supra at 636, quoting Bell Atl. Corp. v. Twombly, supra at 555. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal 556 U.S. 662, 2009.

In considering the merits of these motions, the Court must accept all factual allegations in the complaint as true and draw all reasonable inferences [*6] in plaintiffs’ favor. See Lu, 98 F. Supp. 3d at 93. Moreover, the Court should “treat any allegations in the answer that contradict the complaint as false.” Id. at 94. The Court may also consider certain documents when 1) the documents’ authenticity is not disputed by the parties, 2) the documents are “central to the plaintiffs’ claim” or 3) the documents are “sufficiently referred to in the complaint.” Curran v. Cousins, 509 F.3d 36, 44 (1st Cir. 2007). Traut v. Quantum Servicing Corp., 2016 U.S. Dist. LEXIS 104180, *5-6

As Petitioners stated and offered evidence as proof to the district court, ABC was an unregistered fictitious name, an alleged dba of American Home Mortgage Corp., was not a “person” as that term is defined under M.G.L. 255F4. As a fictitious unregistered DBA, ABC could not become a licensed lender under the Massachusetts statute. ABC lacked the legal authority to enter into a lending contract. None of the defendants nor the district court deny that ABC did not have a license to lend money or that it was not properly registered.

Defendant Ocwen testified that it deems ABC to be a licensed lender based on “Attorney/client” work product. [A1260, pgs. 47, 55] That is not an exception under MGL 255E and 255F. Whether or not ABC had the legal capacity to enter into a lending arrangement is a material fact.

1. ‘’Person’’, a natural person, corporation, company, limited liability company, partnership, or American Brokers Conduit, a tradename, a “doing business as” does not meet this definition.

Ocwen admitted that the alleged note they were relying on for servicing the alleged loan was forged stating that the “signature on the note does not match the signature of the Plaintiffs”. [A1610, pg. OLS000244]. This is material fact, who forged the new note. It was kept in Deutsche Bank’s collateral file and relied upon by Deutsche Bank and Ocwen. Fidelity had a subsidiary, DOCX that did nothing but fabricate new lending documents. The original note has not been produced and does not exist since it was a fabricated note that was produced at deposition as the original. Servicing a fabricated note with forged signatures is a felony.

Ocwen presented a second forged alleged Mortgage testifying that it was a “True and Certified Copy” of the original. [A1260, pgs. 49, 53, 57, 58, 59]. Ocwen admitted that these fabricated forged documents came from Deutsche Bank’s collateral file. No legal lending transaction executes two mortgages one requesting to be returned to Fidelity National Title Company and one requesting to be returned to American Brokers Conduit. Who fabricated the second mortgage?

There are many material issues in dispute in this case.

Statute of Limitations

The First Circuit was wrong to dismiss the case based on the statute of limitations. In order for the Statute of Limitations to begin to apply, there has to be a legal transaction. The First Circuit was wrong to deem there to be a legitimate lending transaction in contravention of Massachusetts General Statutes and deem every count in the Plaintiffs Amended Complaint as being time barred. “An act done in disobedience to the law creates no right of action which a court of justice will enforce. The authorities from the earliest time to the present unanimously held that no court will lend its assistance in any way toward carrying out the terms of an illegal contract.” Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 541, (1902). See Continental Wall Paper Co. v. Louis Voight & Sons  Co.  212 U.S. 227 (1909).

I.         R E V I E W  I S  WA R R A N T E D  W H E R E FABRICATION OF DOCUMENTS IS A VIOLATION OF THE FAIR DEBT COLLECTION PRACTICES ACT (“FDCPA”); THE ISSUANCE OF SUMMARY JUDGMENT ON THIS COUNT WAS IN ERROR.

1.  Summary Judgment Granted to Defendant Ocwen in Error.

A moving party is to be spared a trial when there is no genuine issue of material fact on the record and that party is entitled to judgment as a matter of law. See Fed. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); Celotex Corp. v. Catrett, 477

U.S. 317, 322-25 (1986). The plaintiff need only establish one FDCPA violation to prevail. Leone v. Ashwood Fin., Inc., 257 F.R.D. 343 (E.D.N.Y. 2009). Ruth v. Triumph P’ships, 577 F. 3d 790 (7th Cir. 2009). The FDCPA is a strict liability statute, and debt collectors whose conduct falls short of its requirements are liable here respective of their intentions. Boyko v. Am. Intern Group, Inc., 2009 WL 5194431 (D.N.J.) (Dec. 23, 2009).

The movant must inform the court of the basis for the summary judgment motion and must point to relevant excerpts from pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of genuine factual issues. Celotex Corp., 477 U.S. at 323; Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992). Admissions on file provide proper grounds for summary judgment. Fed. R. Civ. P. 56; 8 In re Carney, 258 F.3d 415, 420 (5th Cir. 2001). Summary Judgment granted to Ocwen was in error.

B.    Defendants violated the FDCPA, M.G.L. 93A

The FDCPA was enacted in 1978 to “eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumer’s debt collection abuses. 15 U.S.C. Section 1692 (e). The FDCPA (15 U.S.C.S. § 1692 et seq.) prohibits a debt collector from asserting any false, deceptive, or misleading representation, or using any unfair or unconscionable means, to collect, or attempt to collect, a debt. 15 U.S.C.S. §1692e, 1692f. Midland Funding, LLC v. Johnson, 137 S. Ct. 1407, 1408, 97 (2017). The FDCPA, 15 U.S.C.S. § 1692 et seq., imposes strict liability on debt collectors for their violations. A plaintiff need not show intentional conduct by the collector or actual damages. A plaintiff need only show a violation of one of the FDCPA’s provisions in order to make out a prima facie case. In order to prevail on a FDCPA claim, a plaintiff must prove that (1) he was the object of collection activity arising from consumer debt, (2) the defendant is a debt collector within the meaning of the statute, and (3) the defendant engaged in a prohibited act or omission under the FDCPA. Waters v. J.C. Christensen & Assocs., 2011 U.S. Dist. LEXIS 41075, *1, 2011 WL 1344452. The FDCPA prohibits the use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer. 15 U.S.C.S. §1692e(10). Id.

The Massachusetts Consumer Protection Act, Mass. Gen. Laws ch. 93A (Chapter 93A), prohibits unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. Mass. Gen. Laws ch. 93A, § 2(a). Pursuant to Chapter 93A, a business practice is unfair and deceptive if it can be found to be immoral, unethical, oppressive, or unscrupulous; or within the bounds of some statutory, common-law or other established concept of unfairness. Id. To allege that a business practice is deceptive or unfair under the first element, plaintiffs must show that the trade practice or conduct [1] falls within at least the penumbra of some common-law, statutory, or other established concept of unfairness; [2] is immoral, unethical, oppressive, or unscrupulous; and [3] causes substantial injury to consumers. See Young, 828 F.3d 26, 2016.

The First Circuit’s erred when it ruled that Ocwen did not violate the FDCPA. That act was created to make sure corporations did not engage in dishonorable business practices to collect on a debt. Fabricating new lending documents to replace lost originals and forging signatures is a dishonorable business practice and a felony. The Defendants not only violated the FDCPA but also M.G.L. 93A.

CONCLUSION

The Supreme Court must hear this case. The First Circuit ruling dishonors the United States Constitution, federal law, Massachusetts General Statutes and rulings of the United States Supreme Court. When a federal judge takes the oath of office to uphold the United States Constitution and all federal and state laws for the duration of his/her life that standard of upholding the law applies irrespective of the case presented.

The Supreme Court must hear this case to stop corporations from fabricating lending documents to replace originals that have been lost and ensure due process is awarded every citizen before the taking of property.

Respectfully submitted,

Tina L. Sherwood
Counsel of Record
Law offIce of Tina L. Sherwood
19C Governors Way Milford, MA 01757
(617) 930-3533
tina@sherwoodlawma.com
Counsel for Petitioners