CASE FILE Arizona Quiet Title REMOVAL - REMAND and Commentary Forde V First Horizon Home Loan

NEW QUIET TITLE SUIT FILED IN MARICOPA COUNTY, AZ ON THE HEELS OF A QUIET TITLE
ACTION THAT WAS REMANDED BACK TO SUPERIOR COURT IN PHOENIX
December 10th, 2010
By Dave Krieger
The case is Easton v. Bosco et al with a case number of CV2010-054748; filed four days after U.S. District
Court Judge Mark E. Aspey remanded a quiet title action back to the State Superior Court for Maricopa
County, previously removed by Defendants First Horizon Home Loan Corporation and others to federal
court, which the author views as a typical move to hide from state court discovery actions. Read more…
The case is Forde v. First Horizon Home Loan Corporation et al, CV2010-01922, filed pro se August 3, 2010
by Barbara J. Forde. The author feels the significance of this case smacks to the heart of jurisdictional
issues as to which court has the right to hear the case based on what merits. The Plaintiff in this action
cited breach of contract based on negligence and fraud. The trustee, Quality Loan Service Corporation was
also named in the suit. On September 22, 2010, the Defendants, who like in most instances asserted
diversity jurisdiction and the amount in controversy as the sole basis for their removal to federal court, filed
a motion to strike the complaint under Rule 8(a)(2) and (d)(1) of the Federal Rules of Civil Procedure.
The author sees this remand ruling as a plus for judicial expediency in quiet title actions throughout the 9th
Circuit. Judge Aspey even cited that there were no federal questions up for decision which would confer
jurisdiction to the U.S. District Court. On December 3, 2010, Judge Aspey issued the remand order, to
“reduce litigation costs and eliminate any need to certify novel state-law issues to the Arizona Supreme
Court or speculate how the Arizona Supreme Court would rule on those issues.”
After citing eight pages of case law and abstentions, the court denied all of the Defendants’ pending
motions without prejudice. The key significance here is why lenders as national associations feel the need to
remove quiet title actions to federal court, when the Plaintiff has listed no federal questions which would
give a federal judge cause to keep the case. One also has to question what authority a federal judge would
have to quiet title on property situated in a county that is not in a federal territory. This judge appears to
understand the fundamentals of a quiet title action very well.
There are also numerous state case laws that protect the property owners from foreclosure in the event a
quiet title action has been filed, abating ejectment if there are title issues involved. This would further
strengthen the author’s contention that quiet title issues are going to become commonplace very soon and
that the state courts had better take these filings seriously. In the Easton case, there appear to be
conflicting issues with assignments amidst a potential wrongful foreclosure. A lis pendens has also been
filed in the case by the Plaintiff’s counsel, Scottsdale attorney, Beth Findsen, of which there are at least
eight key defendants involved. The trustee in that case is also a defendant.
Arizona Judge Remands Foreclosure Under
Abstention Doctrines
Excellent news for Arizonans battling foreclosure! We have continuously argued against removal based
solely on diversity because the state law issues in these foreclosure cases are predominant, and it is
important for the state to have a cohesive scheme regarding its real property laws, and novel issues of
state law interplay. And we’ve seen what kind of distastrous rulings ensue when our federal courts start
making creative Erie estimations of how the AZ State Supreme Court would rule on many critical issues of
state property law. Bad law makes an impact for years to come. So of course the banks love to drag
homeowners into federal court.
There have been other remands by federal court judges, however, in the case I’m about to discuss, Judge
Aspey actually analyzed the issue under several abstention doctrines.
Magistrate Judge Aspey issued a well reasoned remand order in favor of homeowner/attorney, Barbara
Forde. In so doing, he reasoned that the federal court should abstain from hearing the case under the
Burford absention doctrine, Younger abstention, and Rooker-Feldman. He also stated that the issue could
be raised sua sponte. Full opinion here: Aspey AZ Order-to-Remand-Case-to-State-Court[1] The
attorney’s comments here.
Congratulations Barbara!
Here’s a passage from the order:

The Court concludes judicial economy, fairness, comity,the existence of novel
issues under Arizona law, and thenecessity for the Court to interpret Arizona
state statutes weigh heavily in favor of the Court declining jurisdiction over
this matter. Remand at this time will reduce litigation costs and eliminate any
need to certify novel state-law issues to the Arizona Supreme Court or
speculate how the Arizona Supreme Court would rule on those issues.
Federal Magistrate Remands Foreclosure Suit to State Court in
Arizona
08 Dec
Good news for homeowner litigants in federal court! A Federal Magistrate in Arizona District
Court understands that the state law issues in foreclosure actions must be decided by State
Courts. My litigation against First Horizon, MetLife, Bank of New York Mellon, MERS, and Quality Loan
Service, has been remanded back to the state court.
Order to Remand Case to State Court
Remand is especially important in Arizona, where there is no state court case law on the subject. The
federal courts have had no choice but to guess what the state court would do, because the lenders,
servicers and others remove the cases to federal court as a matter of course.
In my case, I argued principally that the case should be remanded to state court because foreclosures are
matters of statewide concern, that the issues are of substantial public importance which transcend my
particular case, and that the state courts have not decided the issue. This is Burford abstention. The
Magistrate Judge understood this, and ordered remand on that basis.
Magistrate Judge Aspey did not stop there, however. He stated that abstention doctrine can be raised sua
sponte, meaning even if a party doesn’t argue it, the court can point it out. So he then analyzed and went
into detail on Younger abstention, as well as Rooker-Feldman abstention, and found that both these
abstention doctrines applied to my case, as well.
Also pending was a motion to strike my entire complaint, filed by the lender/servicer defendants First
Horizon, MetLife, and Bank of New York as Trustee, and MERS, because it is “too long”, and a motion to
dismiss from the foreclosure mill trustee, QLS. Both motions were denied, without prejudice.
The decision was very well written and researched. I applaud Magistrate Aspey for taking the time to
analyze the matter thoroughly and prepare a well thought out decision. It is definitely time for our state
courts to render decisions on these matters. They’ve been unable to, due to the campaign of the banks,
servicers, and trustees, to drag everyone into federal court here in Arizona.
And because this was federal court, and these abstention doctrines were created and/or analyzed in United
States Supreme Court cases, these abstention arguments and analysis can be used across the United States
by borrowers who want to stay in state court. This decision is a keeper!
Now I can proceed to discovery and resolution on the merits. Or perhaps, just perhaps, I can get the ear of
the Defendants, and we can arrive at a resolution that in my opinion should have occurred in 2008.
More to come!
Case 2:10-cv-01922-MEA Document 27 Filed 12/06/10 Page 1 of 11
1
2
3
4
5
6 IN THE UNITED STATES DISTRICT COURT
7 FOR THE DISTRICT OF ARIZONA
8 BARBARA J. FORDE, )
)
9 Plaintiff, ) CIV 10-01922 PHX MEA
)
10 v. ) ORDER
)
11 FIRST HORIZON HOME LOAN )
CORPORATION, METLIFE HOME )
12 LOANS, BANK OF NEW YORK )
MELLON, MORTGAGE ELECTRONIC )
13 REGISTRATION SYSTEMS, INC., )
QUALITY LOAN SERVICE )
14 CORPORATION, )
)
15 Defendants. )
_____________________________ )
16
17 All of the parties to this matter have agreed to
18 magistrate judge jurisdiction over the proceedings, including
19 the entry of final judgment. Before the Court is Plaintiff’s
20 motion (Doc. 10) to remand this matter to the state court.1
21 On August 3, 2010, Plaintiff, proceeding pro se, filed
22 a complaint to quiet title to real property in the Maricopa
23 County Superior Court. Plaintiff also alleged Defendants were
24 liable to her for monetary damages based on Defendants’ breach
25 of contract. The complaint further asserted causes of action
26
27 1
A motion (Doc. 12) to dismiss Quality Loan Service Corporation
as a party to this matter and Defendants’ motion to strike (Doc. 8)
28 are also pending.
1 based on negligence and fraud. The claims derive from a

2 $650,000 residential home loan to Plaintiff from First Horizon
3 Home Loan Corporation. The complaint filed in state court also
4 sought injunctive relief, i.e., to vacate a substitution of
5 trustee and assignment of deed of trust and Notice of Trustee’s
6 Sale.
7 On September 20, 2010, Defendants Metlife Home Loans,
8 Bank of New York Mellon, First Horizon Home Loans, and Mortgage
9 Electronic Registration Systems Incorporated, filed a Notice of
10 Removal in this Court. Defendants assert complete diversity of
11 the parties and the amount in controversy as the sole basis for
12 the Court’s jurisdiction over the complaint filed by Plaintiff
13 in state Superior Court. On September 22, 1010, these
14 Defendants filed a motion to strike the complaint filed in the
15 state Superior Court, citing Rules 8(a)(2) and (d)(1) of the
16 Federal Rules of Civil Procedure.
17 Plaintiff filed a motion to remand her suit to the
18 state court on September 24, 2010, arguing that Defendants
19 failed to comply with the technical requirements for removal.
20 Defendants filed a response to the motion to remand (Doc. 13).
21 In her reply to the response to her motion to remand, Plaintiff
22 concedes that Defendants have met the technical requirements for
23 removal, but Plaintiff now contends that the case should be
24 remanded to the state court because of the nature of the causes
25 of action. See Doc. 22. The Court notes that no party to this
26 matter indicates there are or have been federal questions in
27 this matter which would confer jurisdiction on a basis other
28 -2-
1 than diversity.
2 The Court concludes judicial economy, fairness, comity,
3 the existence of novel issues under Arizona law, and the
4 necessity for the Court to interpret Arizona state statutes
5 weigh heavily in favor of the Court declining jurisdiction over
6 this matter. Remand at this time will reduce litigation costs
7 and eliminate any need to certify novel state-law issues to the
8 Arizona Supreme Court or speculate how the Arizona Supreme Court
9 would rule on those issues.
10 The Court acknowledges that it has a “virtually
11 unflagging obligation” to exercise its jurisdiction. Colorado
12 River Water Conservation Dist. v. United States, 424 U.S. 800,
13 817-18, 96 S. Ct. 1236, 1246-47 (1976). The United States
14 District Courts have an obligation and a duty to decide cases
15 properly before them, and “[a]bstention from the exercise of
16 federal jurisdiction is the exception, not the rule.” Id., 424
17 U.S. at 813, 96 S. Ct. at 1244. However, in certain exceptional
18 circumstances, the Court can and should decline to exercise
19 jurisdiction. “Pragmatic considerations of judicial efficiency,
20 as well as reasons of comity between federal and state courts”,
21 have led the United States Supreme Court to construct several
22 abstention doctrines. Hanlin Grp., Inc. v. Power Auth. of the
23 State of New York, 703 F. Supp. 305, 307 (S.D.N.Y. 1989).
24 A District Court may abstain from consideration of the
25 merits of a diversity case because of unclear state law.
26 Railroad Comm’n of Texas v. Pullman Co., 312 U.S. 496, 499-500,
27 61 S. Ct. 643, 644-45 (1941); Louisiana Power & Light Co. v.
28 -3-
1 City of Thibodaux, 360 U.S. 25, 28-29, 79 S. Ct. 1070, 1073-74

2 (1959). Abstention is also proper when necessary to avoid
3 needless conflict with state administrative procedures. See
4 Burford v. Sun Oil Co., 319 U.S. 315, 327, 63 S. Ct. 1098, 1104
5 (1943). The Court may properly abstain from exercising
6 diversity jurisdiction when a similar legal action is pending in
7 state court. See Colorado River Water Conservation Dist., 424
8 U.S. at 817-18, 96 S. Ct. at 1246-47. When the requirements for
9 abstention are present, the District Court’s decision to abstain
10 from exercising diversity jurisdiction is a matter within the
11 Court’s discretion. See Fireman’s Fund Ins. Co. v. Quackenbush,
12 87 F.3d 290, 294 (9th Cir. 1996).
13 Burford abstention
14 [T]he Supreme Court has stated that Burford
abstention is appropriate in two situations.
15 First, federal courts should abstain from
deciding difficult questions of state law
16 bearing on policy problems of substantial
public import whose importance transcends the
17 result in the case then at bar. We should
also abstain from the exercise of federal
18 review that would be disruptive of state
efforts to establish a coherent policy with
19 respect to a matter of substantial public
concern.
20
21 International Coll. of Surgeons v. City of Chicago, 153 F.3d
22 356, 362 (7th Cir. 1998) (internal citations and quotations
23 omitted).
24 The Supreme Court has characterized Burford abstention
25 as appropriate where the “exercise of federal review of the
26 question in a case and in similar cases would be disruptive of
27 state efforts to establish a coherent policy with respect to a
28 -4-
1 matter of substantial public concern.” Colorado River, 424 U.S.

2 at 814, 96 S. Ct. at 1244. See also Allegheny County v. Frank
3 Mashuda Co., 360 U.S. 185, 189, 79 S. Ct. 1060, 1063 (1959).
4 The purpose of Burford abstention is to “avoid resolving
5 difficult state law issues involving important public policies
6 or avoid interfering with state efforts to maintain a coherent
7 policy in an area of comprehensive regulation or
8 administration.” American Disposal Serv., Inc. v. O’Brien, 839
9 F.2d 84, 87 (2d Cir. 1988). See also City of Tucson v. U.S.
10 West Commc’ns, Inc., 284 F.3d 1128, 1132 (9th Cir. 2002). The
11 propriety of Burford abstention may be raised sua sponte. See,
12 e.g., National Commc’n Sys., Inc. v. Michigan Pub. Serv. Comm’n,
13 789 F.2d 370, 372 (6th Cir. 1986); Chandler v. Omnicare/The HMO,
14 Inc., 756 F. Supp. 187, 189-90 (D.N.J. 1990).
15 While District Courts may abstain from hearing a matter
16 to avoid interfering with complex state administrative
17 processes, abstention is not required “whenever there exists
18 such a process, or even in all cases where there is a ‘potential
19 for conflict’ with state regulatory law or policy.” New Orleans
20 Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S.
21 350, 362, 109 S. Ct. 2506, 2515 (1989). Moreover, a District
22 Court should not abstain merely because there are complex and
23 difficult issues of state law involved in the controversy before
24 it. Meredith v. Winter Haven, 320 U.S. 228, 236, 64 S. Ct. 7,
25 12 (1943).
26 When deciding whether to invoke Burford abstention the
27 Court must consider the underlying rationale of administrative
28 -5-
1 abstention. Federal courts evaluating the wisdom of abstaining

2 pursuant to Burford have considered whether the case before the
3 court is based on federal or state law; the degree of
4 specificity of the state regulatory scheme at issue; the
5 necessity of discretionary interpretation of state statutes to
6 resolve the matter; and whether the subject matter of the
7 litigation is traditionally one of state concern. See, e.g.,
8 Wilson v. Valley Elec. Membership Corp., 8 F.3d 311, 314 (5th
9 Cir. 1993); Bethphage Lutheran Serv., Inc. v. Weicker, 777 F.
10 Supp. 1093, 1098 (D. Conn. 1991). Abstention in a diversity
11 matter is warranted when the state has concentrated suits
12 involving the local issue in a particular court; the federal
13 issues are not easily separated from complicated state law
14 issues with which the state courts may have special competence;
15 and federal review might disrupt state efforts to establish a
16 coherent policy. Poulos v. Caesars World, Inc., 379 F.3d 654,
17 671 (9th Cir. 2004); City of Tucson, 284 F.3d at 1133; United
18 States v. Morros, 268 F.3d 695, 705 (9th Cir. 2001).
19 The issues involved in this suit, i.e., Defendants’
20 compliance with state law regarding real property mortgages and
21 foreclosure, are issues subject to specific Arizona statutory
22 and regulatory schemes and involving complex state
23 administrative processes. Because Burford abstention “is
24 concerned with protecting complex state administrative processes
25 from undue federal interference,” Tucker v. First Md. Sav. &
26 Loan, Inc., 942 F.2d 1401, 1404 (9th Cir. 1991) (internal
27 quotation marks omitted), the Court concludes it should abstain
28 -6-
1 from exercising diversity jurisdiction over the complaint in

2 this matter.
3 Younger Abstention
4 The “Younger” doctrine of abstention, which provides
5 that federal courts are not to interfere with pending state
6 criminal proceedings, also applies to civil cases and state
7 administrative proceedings. See Middlesex County Ethics Comm.
8 v. Garden State Bar Ass’n, 457 U.S. 423, 432, 102 S. Ct. 2515,
9 2521 (1982); Huffman v. Pursue Ltd., 420 U.S. 592, 604-05, 95 S.
10 Ct. 1200, 1208 (1975); Younger v. Harris, 401 U.S. 37, 40-41, 91
11 S. Ct. 748-49 (1971). As with Burford abstention, the Court may
12 raise the issue of Younger abstention sua sponte. See O’Neill
13 v. Coughlan, 511 F.3d 638, 641-43 (6th Cir. 2008); Morrow v.
14 Winslow, 94 F.3d 1386, 1390-91 (10th Cir. 1996); O’Neill v. City
15 of Philadelphia, 32 F.3d 785, 786 n.1 (3d Cir. 1994).
16 Under the Younger doctrine, a federal District Court
17 must abstain from hearing a federal case when that case
18 interferes with state judicial proceedings. Additionally, the
19 District Courts are prevented from enjoining pending state
20 judicial proceedings, absent extraordinary circumstances. See
21 Middlesex County Ethics Comm., 457 U.S. at 437, 102 S. Ct. at
22 2524. Younger abstention is appropriate when: (1) there are
23 ongoing state proceedings that are judicial in nature; (2) the
24 state proceedings implicate important state interests; and (3)
25 the state proceedings provide an adequate opportunity to raise
26 any federal claims. See, e.g., Lazaridis v. Wehmer, 591 F.3d
27 666, 670 (3d Cir. 2010).
28 -7-
1 It appears that there are on-going state proceedings

2 for the foreclosure of Plaintiff’s real property. Additionally,
3 Arizona has an important interest in resolving real property
4 issues. A ruling on the issues in Plaintiff’s complaint by the
5 Arizona courts implicates the important interest of preserving
6 the authority of the state’s judicial system free from
7 interference by the District Court. See, e.g., Prindable v.
8 Association of Apartment Owners of 2987 Kalakaua, 304 F. Supp.
9 2d 1245, 1262 (D. Haw. 2003) (finding foreclosure and ejectment
10 proceedings are important state interests under the Younger
11 doctrine).
12 Plaintiff’s complaint raises no potential federal
13 claims. Accordingly, pursuant to Younger and its progeny, the
14 Court should abstain from reaching the merits of this matter.
15 See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 15, 107 S. Ct.
16 1519, 1528 (1987).
17 Rooker-Feldman abstention
18 The fact that a foreclosure judgment has been entered
19 against Plaintiff by a state court is sufficient to invoke the
20 doctrine of “Rooker-Feldman” abstention. The District Court
21 should decline jurisdiction over any claims relying on
22 allegations of wrongful foreclosure.
23 The doctrine established by the Rooker and Feldman
24 cases essentially holds that the federal District Court does not
25 have subject matter jurisdiction over cases brought by
26 “state-court losers” complaining of injuries caused by state
27 court judgments, or over cases inviting the District Court to
28 -8-
1 review and reject state court judgments. See Exxon Mobil Corp.
2 v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S. Ct. 1517,
3 1522 (2005). The doctrine is generally applied in cases wherein
4 the plaintiff files a suit in the federal court to vacate a
5 state court’s foreclosure.
6 The Rooker Feldman doctrine allows federal courts to
7 decline diversity jurisdiction when
8 (1) the party in federal court is the same as
the party in state court; (2) the prior state
9 court ruling was a final or conclusive
judgment on the merits; (3) the party seeking
10 relief in federal court had a reasonable
opportunity to raise its federal claims in
11 the state court proceeding; and (4) the issue
before the federal court was either
12 adjudicated by the state court or was
inextricably intertwined with the state
13 court’s judgment.
14 Storck v. City of Coral Springs, 354 F.3d 1307, 1310 n.1 (11th
15 Cir. 2003) (quotation marks and citation omitted). The Supreme
16 Court clarified the reach of the Rooker-Feldman doctrine in
17 Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 125
18 S. Ct. 1517 (2005). The Supreme Court carefully prescribed the
19 circumstances in which the doctrine applies: (1) there was a
20 state court action; (2) one party lost; (3) judgment was entered
21 in the state court action against the losing party; (4) the
22 losing party commenced a new action complaining of injuries
23 caused by the state court judgment; and (5) the new action
24 invited the district court to review and reject the state court
25 judgment. Exxon Mobil Corp., 544 U.S. at 284, 125 S. Ct. at
26 1522.
27
28 -9-
1 Citing the Rooker-Feldman doctrine, in a string of

2 recent unpublished decisions the federal courts have uniformly
3 determined that federal suits seeking the recision of a mortgage
4 loan contract, or alleging that a lender’s malfeasance resulted
5 in a foreclosure, belong in the state courts. The courts have
6 reached this conclusion even when the plaintiff originates the
7 suit in federal court and asserts a claim based on the federal
8 Truth in Lending Act (“TILA”). See, e.g., Parker v. Potter, 368
9 Fed. App. 945 (11th Cir. 2010); Dempsey v. JP Morgan Chase Bank,
10 N.A., 272 Fed. App. 499, 502 (7th Cir. 2008); Jacobowitz v. M
11 & T Mortg. Corp., 2010 WL 1063895, at *2 (3d Cir.). See also
12 Battah v. ResMAE Mortg. Corp., ___ F. Supp. 2d ___, 2010 WL
13 4260530, at *3 (E.D. Mich. 2010).
14 In the context of a state court foreclosure
proceeding, Rooker-Feldman prohibits claims
15 brought in federal court that may “succeed
only to the extent that the state court
16 wrongly decided the foreclosure action.”
Postma v. First Federal Sav. & Loan of Sioux
17 City, 74 F.3d 160, 162 (8th Cir. 1996).
District courts within the Fourth Circuit
18 have consistently reached the same
conclusion. See, e.g., Turner v. E. Savings
19 Bank, FSB, No. 09cv2637, 2010 WL 1409858, at
*3 (D. Md. Apr. 2, 2010); Brumby v. Deutsche
20 Bank Nat. Trust Co., No. 1:09cv144, 2010 WL
617368, at *3-4 (M.D.N.C. Feb. 17, 2010);
21 Lawson v. Allegacy Fed. Credit Union, No.
1:08cv832, 2009 WL 3381532, at *2 (M.D.N.C.
22 Oct. 16, 2009); Nott v. Bunson, No. 09cv2613,
2009 WL 3271285, at *2 (D. Md. Oct. 9, 2009).
23
24 Poindexter v. Wells Fargo Bank, N.A., 2010 WL 3023895, at *2
25 (W.D.N.C.).
26
27
28 -10-
1 Conclusion
2 Given the nature of the Arizona foreclosure process, it
3 is difficult to determine when the rights of the parties
4 regarding the subject residential property are completely
5 determined. The Court is left with a single conclusion based
6 upon alternative doctrines. Because this matter involves
7 evolving issues of state administrative law, the notions of
8 comity and judicial economy implicate Burford abstention.
9 Pursuant to the Rooker-Feldman doctrine, the Court should
10 decline to conduct an appellate-like review over the order
11 authorizing the sale of the real property. Alternatively, if
12 there has been no final determination of the rights of the
13 parties because the foreclosure process has not been concluded,
14 then the Court should abstain under the Younger doctrine.
15 Accordingly,
16 IT IS ORDERED that Plaintiff’s motion (Doc. 10) to
17 remand this matter to state court is granted. The Clerk of the
18 Court shall engage in the process required for remand of this
19 matter to the state Superior Court from which it was removed.
20 IT IS FURTHER ORDERED that the pending motions at Doc.
21 8 and Doc. 12 are denied without prejudice.
22 DATED this 3rd day of December, 2010.
23
24
25
26
27
28 -11-
IN THE UNITED STATE DISTRICT COURT FOR THE
DISTRICT OF ARIZONA
Barbara J. Forde, a married woman dealing with her sole

and separate property, Plaintiff,
v.
First Horizon Home Loan Corporation et al ,
Defendants
NOTICE OF REMOVAL
1 GUST ROSENFELD P.L.C.

One East Washington Street, Suite 1600
2 Phoenix, AZ 85004-2553
Telephone No. 602-257-7496
3 Facsimile No. 602-254-4878
Richard A. Segal-000877
4 rasegal@gustlaw.com
Christopher M. McNichol - 011023
5 mcnichol@gustlaw.com
6 Attorneys for Attorneys for Defendants First Horizon Home Loans, a division of First Tennessee Bank
National Association; MetLife Home Loans, a division of MetLife Bank N.A.; The Bank of New
7 York Mellon f/k/a The Bank of New York, as Trustee for the Holders of the Certificates, First
Horizon Mortgage Pass-Through Certificates Series FH05-FA8; and Mortgage Electronic
8 Registration Systems, Inc.
9
IN THE UNITED STATE DISTRICT COURT
10
FOR THE DISTRICT OF ARIZONA
11
Barbara J. Forde, a married woman dealing )
12 with her sole and separate property, )
) No.
13 Plaintiff, )
) NOTICE OF REMOVAL
14 v. )
)
15 First Horizon Home Loan Corporation, a )
Kansas Corporation; Metlife Home Loans, )
16 a division of Metlife Bank, NA; The Bank )
of New York Mellon f/k/a The Bank of )
17 New York, as Trustee for the Holders of )
the Certificates, First Horizon Mortgage )
18 Pass-Through Certificates Series FH05- )
FA8; First Horizon Home Loans, a )
19 division of First Tennessee Bank National )
Association; Mortgage Electronic )
20 Registration Systems, Inc., a Delaware )
Corporation; Quality Loan Service )
21 Corporation, a California Corporation; )
John and Jane Does 1-15, XYZ )
22 Corporations 1-15; ABC Limited Liability )
Companies 1-15; and 123 Banking )
23 Associations 1-15, )
)
24 Defendants. )
25
)
)
26
1335176.1 09/07/2010 1
1 Defendants First Horizon Home Loans, a division of First Tennessee

2 Bank National Association; MetLife Home Loans, a division of MetLife Bank N.A.;
3 The Bank of New York Mellon f/k/a The Bank of New York, as Trustee for the Holders
4 of the Certificates, First Horizon Mortgage Pass-Through Certificates Series FH05-FA8;
5 and Mortgage Electronic Registration Systems, Inc., by and through their undersigned
6 attorneys, and pursuant to 28 U.S.C. § 1446, removes this case from the Superior Court
7 of the State of Arizona, in and for the County of Maricopa (Maricopa Case No.
8 CV2010-053734), in which it is currently pending, to the United States District Court
9 for the District of Arizona.
10 1. This action is removable pursuant to 28 U.S.C. § 1332 and § 1441,
11 governing removal for diversity of citizenship-based cases. The plaintiff resides in
12 Arizona. None of the Defendants are incorporated in or have their principal place of
13 business in Arizona. Defendant First Horizon Home Loans is a division based in Texas
14 of First Tennessee Bank National Association whose principal place of business is
15 Tennessee; Defendant MetLife Home Loans is a division of MetLife Bank N.A. whose
16 principal place of business is in New Jersey; The Bank of New York Mellon f/k/a The
17 Bank of New York, as Trustee for the Holders of the Certificates, First Horizon
18 Mortgage Pass-Through Certificates Series FH05-FA8's principal place of business is in
19 New York; and Mortgage Electronic Registration Systems, Inc., is a Delaware legal
20 entity which has its principal place of business in Washington D.C. (collectively, the
21 “Defendants”).
22 2. Defendant Quality Loan Service Corporation is a California legal entity
23 which has its principal place of business in California. Defendant Quality Loan Service
24 Corporation is separately represented and has consented to this removal.
25
26 ...
1335176.1 09/07/2010 2
1 3. Diversity of citizenship is found pursuant to 28 U.S.C. § 1332(a)(1).

2 4. On or about August 3, 2010, plaintiff commenced this action in the
3 Superior Court of the State of Arizona in and for the County of Maricopa, case number
4 CV2010-053734.
5 5. Some of the Defendants received a copy of the complaint as early as
6 August 6, 2010, by purported service.
7 6. This Notice of Removal is being filed within thirty (30) days (absent final
8 weekend and holiday) of the first purported service of the complaint, and is, therefore,
9 timely and proper pursuant to the provisions of 28 U.S.C. § 1446(b).
10 7. Attached are copies of all process and pleadings related to this action that
11 have been received by the Defendants.
12 8. The plaintiff alleges in the complaint that she is entitled to unspecified
13 damages, but seeks relief as to a $650,000 loan secured by real property, which relief
14 thus may exceed $75,000.
15 9. Written notification of the filing of this notice of removal, together with a
16 copy of this Notice of Removal, will be provided to the plaintiff and the other
17 Defendant and will be filed with the Superior Court of the State of Arizona in and for
18 the County of Maricopa, pursuant to 28 U.S.C. § 1446(d).
19 10. No prohibition exists that would prevent removal of this action.
20
21
22
23
24
25
26 ...
1335176.1 09/07/2010 3
1 WHEREFORE, Defendants request that this action proceed in this court

2 as an action properly removed to it.
3 Dated: September 7, 2010.
4 GUST ROSENFELD P.L.C.
5
By s/Christopher M. McNichol 011023
6 Richard A. Segal
Christopher M. McNichol
7 Attorneys for Defendants First Horizon
Home Loans, a division of First
8 Tennessee Bank National Association;
MetLife Home Loans, a division of
9 MetLife Bank N.A.; The Bank of New
York Mellon f/k/a The Bank of New
10 York, as Trustee for the Holders of the
Certificates, First Horizon Mortgage
11 Pass-Through Certificates Series FH05-
FA8; and Mortgage Electronic
12 Registration Systems, Inc.
13 Original efiled and copy
provided on September 7, 2010, to:
14
Barbara J. Forde
15 20247 N. 86th Street
Scottsdale, AZ 85255
16 Plaintiff
17 Paul M. Levine, Esq.
18
McCarthy, Holthus & Levine
8502 E. Via de Ventura, Suite 200
19 Scottsdale, Arizona 85258
Defendant Quality Loan Service Corporation
20
s/ C.L. Scherff
21
22
23
24
25
26
1335176.1 09/07/2010 4
Case 2:10-cv-01922-MEA Document 1-1 Filed 09/07/10 Page 1 of 1
~JS 44 (Rev. 12/07) CIVIL COVER SHEET

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the fil ing and service of pleadings or other papers as required by law, except as provided
by local rules of court. This form , approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of mitiating
the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)
I. (a) PLAINTIFFS DEFENDANTS
Barbara J. Forde First Horizon Home Loan Corporation, et al.
___a_r...;ic;..;o;..&p;..;a~______
(b) County of Residence of First Listed Plaintiff _M County of Residence of First Listed Defendant
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S . PLAINTIFF CASES ONLy)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCA TION OF THE
LAND INVOLVED .
(c) Attorney's (Finn Name, Address, and Telephone Number) Attorneys (lfKnown)
Barbara J. Forde, 20247 N. 86th Street, Scottsdale, AZ 85255 Richard A. Segal and Christopher M. McNichol, Gust
602-721-3177 Rosenfeld . One East Washin ton Ste 1600 Phoenix, AZ
II. BASIS OF JURISDICTION (Place an "X" in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an "X" in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
o I u.s. Government o 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Govenunent Not a Party) Citizen of This State ~ I o 1 Incorporated or Principal Place 0 4 0 4
of Business In This State
o 2 U.S. Government a 4 Diversity Citizen of Another State o 2 0 2 Incorporated and Principal Place o 5 i'!II 5
Defendant of Business In Another State
(Indicate Citizenship of Parties in Item 1II)
o o 3 Foreign Nation o 6 0 6
o 110 Insurance 400 State Reapportionment

o 120 Marine 410 Antitrust
o 130 Miller Act 430 Banks and Banking
o 140 Negotiable Instrument 450 Commerce
o 150 Recovery of Overpayment 460 Deportation
& Enforcement of Judgment 470 Racketeer Influenced and
o 151 Medicare Act Corrupt Organizations
o 152 Recovery of Defaulted o 480 Consumer Credit
Student Loans o 490 Cable/Sat TV
(Excl. Veterans) o
810 Selective Service
o 153 Recovery of Overpayment F"';';'';'';;~~:-=:~-----i--:::":':=''':'''':'"-==-=-:=o:----i O 850 SecuritieslCommoditiesl
of Veteran' s Benefits Exchange
o 160 Stockholders' Suits o
875 Customer Challenge
~ 190 Other Contract 12 USC 3410
o 195 Contract Product Liability o
890 Other Statutory Actions
o 196 Franchise o
891 Agricultural Acts
~~~~~~~"""",=~..-04 0 892 Economic Stabilization Act
o 893 Environmental Matters
o 220 Foreclosure o 894 Energy Allocation Act
o 230 Rent Lease & Ejectment o 895 Freedom oflnfonnation
o 240 Torts to Land Act
o 245 Tort Product Liability o
900Appeal of Fee Detennination
o 290 AlI Other Real Property Under Equal Access
to Justice
o 950 Constitutionality of
ther Immillllltion State Statutes
elias
V. ORIGIN (Place an "X" in One Box Only) Appeal to District

01 Original ~ 2 Removed from 0 3 Remanded from 0 4 Reinstated or 0 5 Transferred from 0 6 Multidistrict o 7 Judge from
Proceeding State Court Appellate Court Reopened another dlstnct Litigation Magistrate
s eel Jud ment
CQBt~ .TS\P~k~tJ~~~nf~JY1,icf4~~ ~r~A~, .4~~not cite jurisdictional statutes unless diversity):
VI. CAUSE OF ACTION I-B-r-ie-f-de-s-cr-ip-ti-o-n-of-c-a-us-e-:- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
breach ot contract, quiet title, negligence, traud
VII. REQU ESTED IN o CHECK IF THIS IS A CLASS ACTION DEMAND S CHECK YES only if demanded in complaint:
COMPLAINT: UNDER F.R.CP. 23 650,000.00 JURY DEMAND: ~ Yes 0 No
VIII. RELATED CASE(S)

(See instructions) :
IF ANY DOCKET NUMBER
DATE
09/07/2010
FOR OFFICE USE ONLY
RECEIPT # AMOUNT APPL YING IFP JUDGE MAG. JUDGE

---------------
SUPPLEMENTAL CIVIL COVER SHEET

FOR CASES REMOVED FROM ANOTHER JURISDICTION
This form must be attached to the Civil Cover Sheet at the time the case is filed in the
United States District Clerk's Office.
Additional sheets may be used as necessary.
1. Style of the Case:
Please include all Plaintiff(s), Defendant(s), Intervenor(s),

Counterclaimant(s), Crossclaimant(s) and Third Party Claimant(s) still
remaining in the case and indicate their party type. Also, please list the
attorney(s) of record for each party named and include their bar number,
firm name, correct mailing address, and phone number (including area
code).
Party Party Type Attorney(s)

Barbara J. Forde Plaintiff Pro Per
20247 N. 86th Street
Scottsdale, AZ 85255
Tel: (602) 721-3177
bforde@cox.net
Attorneys for Defendants Defendants Richard A. Segal - 000877

First Horizon Home Loans, a Christopher M. McNichol – 011023
division of First Tennessee Gust Rosenfeld, PLC
Bank National Association; One East Washington, Suite 1600
MetLife Home Loans, a
division of MetLife Bank Phoenix, AZ 85004-2553
N.A.; The Bank of New York Tel: (602) 257-7422
Mellon f/k/a The Bank of rasegal@gustlaw.com
New York, as Trustee for the mcnichol@gustlaw.com
Holders of the Certificates,
First Horizon Mortgage Pass-
Through Certificates Series
FH05-FA8; and Mortgage
Electronic Registration
Systems, Inc.
Quality Loan Service Defendant Paul M. Levine, Esq.

Corporation McCarthy, Holthus & Levine
8502 E Via de Ventura, Suite 200
Scottsdale, Arizona 85258
Tel: (602) 230-8726
PLevine@mhlevine.com
CMM:cls 1335420 9/7/2010

Page 1 of 2
2. Jury Demand:
Was a Jury Demand made in another jurisdiction? X Yes
3. Answer:
Was an Answer made in another jurisdiction? X No
4. Served Parties:
The following parties have been served at the time this case was removed:
Party Date Served Method of Service
MetLife Home Loans, a 08/06/10 Personal in Texas

division of MetLife Bank, NA
First Horizon Home Loans, a 08/06/10 Personal in Texas
division of First Tennessee
Bank National Association
Quality Loan Service Unknown Unknown
Corporation
5. Unserved Parties:
The following parties have not been served at the time this case was removed:
The Bank of New York Mellon f/k/a The Bank of New York, as Trustee for the
Holders of the Certificates; and Mortgage Electronic Registration Systems, Inc.
6. Nonsuited, Dismissed or Terminated parties:
Please indicate changes from the style of the papers from another jurisdiction and
the reason for the change: N/A.
7. Claims of the Parties:
The filing party submits the following summary of the remaining claims of each
party in this litigation:
Party Claim(s)
Plaintiff Breach of Contract; Quiet Title, Negligence and

Fraud
Pursuant to 28 U.S.C. § 1446(a) a copy of all process, pleadings and orders served in
another jurisdiction (State Court) shall be filed with this removal.
CMM:cls 1335420 9/7/2010

Page 2 of 2
COpy
1 Barbara J. FWde, #013220 AUG 0 3 2010
20247 N. 86 Street
2 Scottsdale, AZ 85255
(602) 721-3177
3 Pro Se Plaintiff
5 SUPERIOR COURT OF ARIZONA
6 MARICOPA COUNTY
7 BARBARA J. FORDE, a married woman CV '2 DID - Q5 313 ,4

dealing with her sole and separate No.
8 property,
9 Plaintiff, COMPLAINT FOR INJUNCTIVE

RELIEF AGAINST ALL
10 v. DEFENDANTS; VACATE
SUBSTITUTION OF TRUSTEE,
11 FIRST HORIZON HOME LOAN ASSIGNMENT OF DEED OF TRUST,
CORPORATION, a Kansas Corporation; and NOTICE OF TRUSTEE'S SALE;
12 METLIFE HOME LOANS, a division of QUIET TITLE TO PLAINTIFF;
METLIFE BANK, NA; THE BANK OF BREACH OF DUTY OF GOOD
13 NEW YORK MELLON fIkIa THE FAITH AND FAIR DEALING;
BANK OF NEW YORK, as Trustee for NEGLIGENT PERFORMANCE OF
14 the HOLDERS OF THE UNDERTAKlNG;FRAUDULENT
CERTIFICATES, FIRST HORIZON MISREPRESENTATION/
15 MORTGAGE PASS-THROUGH FRAUDULENT CONCEALMENT;
CERTIFICATES SERIES FH05-FA8; FRAUD; CONSUMER FRAUD
16 FIRST HORIZON HOME LOANS, a
division of FIRST TENNESSEE BANK
17 NATIONAL ASSOCIATION;
MORTGAGE ELECTRONIC
18 REGISTRATION SYSTEMS, INC., a
Delaware Corporation; QUALITY LOAN
19 SERVICE, CORPORATION, a California
Corporation; JOHN AND JANE DOES l-
20 IS, XYZ CORPORATIONS 1-15; ABC JURY TRIAL DEMANDED
LIMITED LIABILITY COMPANIES l-
21 IS; and 123 BANKING ASSOCIATIONS
1-15,
22
23 Defendants.
24
25
COMES NOW Plaintiff Barbara J. Forde, and for her cause of action against Defendants,
26
• 1
1 and alleges as follows:

2 1. At all times mentioned herein, Plaintiff has been in possession of her property at
3
20247 North 86th Street, Scottsdale, Arizona, 85255 (the "Property"). She is a resident of
4
Maricopa County, Arizona and has held title to the Property since March of 2002.
5
2. Venue is proper in this Court, as the Property is located within its jurisdiction in
6
Maricopa County, Arizona, and because Plaintiffs are still in possession of said Property, more
7
8 fully described as:
9 LOT 21, OF GRAYHAWK PARCEL 3j, ACCORDING TO THE PLAT OF

RECORD IN THE OFFICE OF THE COUNTY RECORDER OF MARICOPA
10 COUNTY, ARIZONA, RECORDED IN BOOK 536 OF MAPS, PAGE 15
11 [exception deleted].
12 PARTIES
13 3. At all relevant times, Defendant First Horizon Home Loans Corporation ("First
14 Horizon") is a Corporation formed under the laws of the state of Kansas, having an address of
15
4000 Horizon Way, Irving, Texas 75063. First Horizon is listed as the Lender in the original
16
InterestFirst Note ("Note") dated August 1, 2005, and on the Deed of Trust ("DOT") dated
17
August 1, 2005, recorded in the Maricopa County Recorder's Office at Document No. 2005-
18
19 1125547 on August 8, 2005, allegedly securing the original principal amount of $650,000.00.
20 First Horizon's authority to conduct business in Arizona was revoked on April 25, 2008.
21 4. On information and belief, MetLife Home Loans, a division of MetLife Bank,

22
N.A. ("MetLife"), has been the servicer of the Note, or the lender. MetLife's principal place of
23
business is 4000 Horizon Way, Irving, Texas, 75063. MetLife Bank is a national banking
24
association regulated by the Office of the Comptroller of the Currency ("OCC").
25
26
IIII
-2-
'I
1 5. At all relevant times, Defendant Mortgage Electronic Registration Systems, Inc.,

2 ("MERS") is a Corporation formed under the laws of the state of Delaware. MERS is listed as
3
the Beneficiary in the DOT, and "is a separate corporation that is acting solely as a nominee for
4
Lender and Lender's successors and assigns." On information and belief, MERS has no authority
5
to conduct business of any kind in Arizona.
6
7 6. On April 14, 2010, MERS assigned the DOT to The Bank of New York Mellon
8 f/k/a The Bank of New York ("BNY Mellon"), as Trustee for the holders of the Certificates, First
9 Horizon Mortgage Pass-Through Certificates Series FH05-F A8, by First Horizon Home Loans, a
10
division of First Tennessee Bank National Association, Master Servicer, in its capacity as agent
11
for the Trustee under the Pooling and Servicing Agreement. The Assignment was recorded on
12
April 15, 2010.
13
7. On information and belief, the First Horizon Mortgage Pass-Through Certificate
14
15 Series FH05-F A8 is governed by the First Horizon Alternative Mortgage Securities Trust 2005-
16 FA8 (the "Trust"). This Trust contains assets of approximately $537,837,255, which may include
17 the Note. The trustee of the Trust is BNY Mellon. On information and belief, BNY Mellon is
18
regulated by the OCC.
19
8. Plaintiff is unaware of the identity of the Certificate Holders for whom BNY
20
Mellon is Trustee, at present. If the Certificate Holders are indispensable parties, BNY Mellon
21
must reveal their identities and Plaintiff will amend the Complaint to add them as defendants.
22
23 9. First Horizon Home Loans ("FHHL") is a trade name registered at the Arizona
24 Corporation Commission on July 26, 2007, and is owned by First Tennessee Bank National
25 Association (First Tennessee"), domiciled in Tennessee. On information and belief, FHHL is a
26
-3-
t
1 division of First Tennessee and is the Master Servicer/agent for Trustee BNY Mellon under a
2 Pooling and Servicing Agreement which may pertain to this loan. First Tennessee is regulated by
3
the OCC. FHHL is not registered as a subsidiary of First Tennessee, with the OCC.
4
10. At all relevant times, Defendant Quality Loan Service, Corporation ("QLS") is a
5
Corporation formed under the laws of the state of California, having a principal address of 2141
6
th
7 5 Avenue, San Diego, California 92101. QLS is conducting business in Arizona as a foreclosure
8 mill on behalf of First Horizon and, on information and belief, many other lenders.
9 11. Plaintiff is currently unaware of the identity and capacity of JOHN AND JANE
10 DOES 1 through 15, XYZ CORPORATIONS 1 through 15, XYZ LIMITED LIABILITY
11
COMPANIES 1 through 15, and 123 BANKING ASSOCIATIONS 1-15, but will amend the
12
Complaint when their identities have been ascertained. Plaintiff alleges upon information and
13
belief, however, that each and every presently unknown Defendant is in some manner responsible
14
15 for the acts or conduct of other Defendants, or were andlor are responsible for the injuries,
16 damages, and harm incurred by Plaintiff.
17 FACTS
18
12. On August 1, 2005, Plaintiff refmanced her home loan and entered into the Note
19
and DOT with First Horizon in the amount of $650,000.00. The Note is an interest-only Note
20
accruing interest at the rate of 6.625% for the fITst 10 years. First Horizon is the lender on the
21
Note. An unauthenticated copy of the Note is attached hereto as Exhibit "A."l First Horizon is
22
23 also listed as the lender on the Deed of Trust, but MERS is listed as nominee for Lender, and
24 MERS is the only beneficiary under the Deed of Trust. See Deed of Trust, attached hereto as
25 1
In response to Plaintiff's dispute of a Debt Validation Notice, QLS sent Plaintiff this unauthenticated copy of the Note.
Plaintiff is unaware if this is an actual copy of the original Note she signed; it certainly does not include copies of allonges or
26 endorsements, and therefore is an incomplete copy.
-4-
1 Exhibit "B," showing First Horizon as the Lender, North American Title as the Trustee, and
2 MERS as the sole Beneficiary.

3
13. MERS was created by a group of lenders who selVtrade promissory notes secured
4
by deeds of trust/mortgages. The purpose for MERS is to save lenders, investors and others who
5
buy and/or sell mortgage loans, the effort and expense of recording an assignment of the deed of
6
trust or mortgage each time the note associated with that deed of trust or mortgage is sold.
7
8 14. Lenders capitalizing on the pooling of mortgages and packaging them for sale,
9 would name MERS as nominee on the deed of trust or mortgage, with MERS as sole beneficiary.
10 After that, regardless of how many times a note was sold or transferred, the deed of
11
trust/mortgage was not transferred with it. The deed of trust/mortgage remained in the name of
12
MERS.
13
15. Home loans which are set up with the deed of trust/mortgage going straight to
14
15 MERS as sole beneficiary, separate the note and the deed of trust/mortgage, from the closing date
16 forward.
17 16. MERS rarely, if ever, takes possession of promissory notes.

18 MERS has no financial interest in any promissory note, or deed of trust/mortgage
17.
19
assigned to it. Its only function is to keep the security in its name to save those benefitting from
20
the buying and selling of mortgage-backed securities, any recording fees.
21
18. MERS has saved lenders and others using its services over two billion dollars
22
23 ($2,000,000,000) since its inception in 1999.
24 19. MERS requires those which use MERS' services to be members ofMERS.
25 20. Members of the public, whose deed of trust/mortgage are in MERS' name, are
26
-5-
1 blocked from access to the database which allegedly contains information about who owns the
2 promissory note related to the deed of trust/mortgage signed by the borrower, or any other
3
information about a particular note and deed of trust, other than the name of the loan servicer.
4
21. As the economy took a turn for the worse in 2008, Plaintiff began to have
5
difficulty making her mortgage payments and meeting other creditor obligations as they became
6
due. She contacted First Horizon for assistance. First Horizon told Plaintiff that loan
7
8 modification programs were available for her, and mailed Plaintiff a loan modification package
9 with a cover letter, dated December 4, 2008. The letter began, "We listen. We understand. We
10 care. Most importantly, we want to help you." The letter continued, "[w]e hope you feel as
11
strongly about protecting your home as we do about trying to help you." As a result, First
12
Horizon lead Plaintiff to believe that First Horizon was on her side, and had as much motivation
13
to assist her in keeping her home as she did. A copy of this December 4, 2008, letter is attached
14
15 hereto as Exhibit "C."
16 22. Plaintiff submitted her loan modification package (the "First Package") to the First
17 Horizon Loss Mitigation Department on December 5, 2008, which according to First Horizon,
18 required only a copy of the last two months' pay stubs and a hardship letter explaining the reason
19
for the delinquency. Plaintiff was promised that she would receive a response from First Horizon
20
within fifteen (15) days.
21
23. Plaintiff then received a notice from FHHL, dated December 9, 2008, that her
22
23 mortgage was two months in arrears. The notice invited Plaintiff to call First Horizon "to discuss
24 alternatives to foreclosure." The letter listed 4 different possibilities of ways in which Plaintiff
25 would be allowed to modify her loan and keep. her home. Because Plaintiff has just submitted her
26
- 6-
1 First Package, she took no action in response to this letter.
2 24. Plaintiff then received a letter from FHHL dated December 31, 2008, indicating
3
that if she did not bring the loan current within 30 days, by January 30, 2009, her home would be
4
put into foreclosure.
5
25. On January 8, 2009, Plaintiff refaxed her request for a loan modification,
6
indicating that the First Package was already submitted on December 5, but that no one has
7
8 responded within the promised 15 days. Plaintiff also provided a 3-page Borrower Financial
9 Statement on First Horizon Home Loan's own form. She pleaded for someone to acknowledge
10 her request.
11
26. On January 9, 2009, Loan Counselor Latoya N. Freeman of MetLife Home Loans
12
e-mailed Plaintiff, confirming receipt of the faxed First Package. Ms. Freeman stated that 3
13
months of profit and loss statements would be required, and invited Plaintiff to submit them.
14
15 27. Within two hours, Plaintiff provided the requested profit and loss statements to
16 Ms. Freeman via e-mail.
17 28. On January 13, 2009, Plaintiff e-mailed Ms. Freeman to confirm that she had
18 received the profit and loss statements. Ms. Freeman responded that she had, and that the file was
19
"waiting to be assigned to a specialist." Plaintiff then asked Ms. Freeman about the letter
20
claiming that foreclosure would begin on January 30, and whether that was suspended. Ms.
21
Freeman responded, "as long as the specialist has it you will be ok. It takes 30/45day [sic] for a
22
23 review once the specialist has it."
24 29. On January 20, 2009, Plaintiff received a letter dated January 13, 2009, from
25 FHHL. The letter acknowledged receipt of Plaintiffs "workout package," and continued, "[t]he
26
-7-
•
1 loss mitigation most likely to be approved to assist you in retaining possession of your home will
2 be directed towards the present hardship .... " Plaintiff was again lead to believe that she would be
3
granted a modification, and quickly.
4
30. On January 26, 2009, Plaintiff again e-mailed Ms. Freeman, asking for
5
confirmation that the demand of payment in full by January 30 had been withdrawn. Ms.
6
Freeman responded, "[t]here is a temporary hold on the account pending loss mitigation review if
7
8 you have any questions please call 800-364-7662 x33805. We cannot communicate by emaiL"
9 31. Plaintiff was accordingly denied access to any individual who could answer her
10 questions and give her information. Plaintiff respected Ms. Freeman's request, and called the
11
number given for status checks of the First Package, thereafter.
12
32. On March 11, 2009, Plaintiff spoke with Anthony, who told her that the First
13
Package was still under review, but that Justin Ailey was her processor. Plaintiff left a message
14
15 for Mr. Ailey requesting status. Plaintiff tried again on March 18 and April 2, 2009, to reach Mr.
16 Ailey but he never answered his extension. Plaintiff left messages each time. Mr. Ailey never
17 communicated with Plaintiff in any manner regarding the First Package, in spite of her repeated
18 requests for information. After January 26, 2009, Plaintiff was never able to again contact a
19
person at First Horizon with actual knowledge of the First Package, in spite of her best efforts to
20
do so.
21
33. On April 8, 2009, Jim Montes of QLS, appointed his employer QLS as the
22
23 substitute trustee, in place of North American Title, through a Substitution of Trustee (the "First
24 Substitution"). Mr. Montes purported to sign as "attorney in fact" for First Horizon Home Loans,
25 a division of First Tennessee Bank National Association. The Substitution claimed that First
26
-8-
•
1 Horizon Home Loans was the present Beneficiary under the Deed of Trust. This assertion was in
2 fact false; MERS was the Beneficiary. The false First Substitution was recorded on April 10,
3
2009, at Doc. No. 20090320518.
4
34. Also on April 8, 2009, Jim Montes of QLS, acting under the false First
5
Substitution, signed and recorded a Notice of Trustee's Sale (the "First Notice"), setting a sale
6
date of July 10, 2009. The First Notice was recorded on April 10, 2009, at Doc. No.
7
8 20090320519.
9 35. On April 11, 2009, Plaintiff received a telephone call from Kristin S. High of
10 MetLife Home Loans, asking if Plaintiff was going to pay the past due balance, of $29,696.62, in
11
fulL Plaintiff told Ms. High that she had a loan modification package pending with First Horizon.
12
Ms. High told Plaintiff that not only had the First Package been denied, but that foreclosure
13
proceedings had already been initiated, and her loan sent to a foreclosure attorney on April 8.
14
15 36. Shocked that she had been given no notice that the First Package had been denied,
16 and no opportunity to bring the loan current before foreclosure proceedings were initiated and
17 attorney's fees incurred, Plaintiff asked what she could do to prevent the loss of her home. Ms.
18 High suggested that Plaintiff submit another workout package and request that the foreclosure be
19
postponed. Ms. High indicated that Plaintiff's package would be given high priority status and
20
would quickly be reviewed due to the pending foreclosure.
21
37. On April 13, 2009, based on the encouragement from Ms. High, Plaintiff again
22
23 submitted a workout package (the "Second Package") to First Horizon. Her fmancial status had
24 improved in that she had more income and debt had been reduced.
25 38. Plaintiff called First Horizon on April 13, 2009, and spoke with Joe. She asked if
26
- 9-
•
1 making a payment would help, and he responded that no payment except payment in full, now
2 including attorney's fees and costs, would be accepted.
3
39. Accordingly, Ms. High's initial question to Plaintiff on April 11, regarding
4
Plaintiff s intentions of bringing the past due balance current, was made in bad faith. The
5
foreclosure had already begun and nothing short of full reinstatement and attorney's fees and
6
7 costs, would have been accepted.
8 40. Days after the April 11 telephone call, Plaintiff received two letters from FHHL.
9 One letter notified Plaintiff that her loan had been sent to McCarthy & Holthus to initiate
10 foreclosure and suggested she contact the Loss Mitigation Department if full reinstatement was
11
not possible. The other letter also stated her loan had been sent to an attorney for foreclosure, and
12
detailed 4 different ways in which Plaintiff could possibly "delay or even alleviate the current
13
legal action .... " The letter urged Plaintiff to contact Loss Mitigation immediately to "discuss all
14
15 options available." Because Plaintiff had recently spoken to Ms. High, and submitted a new
16 Second Package on April 13, she took no action on these letters. Rather, Plaintiff relied on the
17 information provided by Ms. High, that her new Second Package would be given expedited
18
attention and her foreclosure would be postponed based on the Second Package submitted.
19
41. Plaintiff was sent, by certified mail, fifteen (15) identical packets from QLS, all
20
postmarked April 16, 2009, which enclosed the false First Substitution, the First Notice, an
21
unsigned Statement of Breach or Non-Performance, a Debt Validation Notice, an Important
22
23 Notice Regarding Alternatives to Foreclosure, and a note from FHHL (the "First Foreclosure
24 Packet"). A copy of one of the fifteen packets is attached hereto as Exhibit "C."
25 42. The Debt Validation Notice in the First Foreclosure Packet, prepared by QLS, set
26
- 10-
1 forth the amount of delinquency and the principal balance owed, along with other costs. The
2 Notice indicated that MetLife Home Loans, a division of MetLife Bank NA, was the creditor.
3
43. The Alternatives to Foreclosure Notice in the First Foreclosure Packet, prepared
4
by QLS, stated, "your lender is very interested in discussing options that may help you avoid
5
foreclosure, BUT YOU MUST TAKE IMMEDIATE ACTION AND CALL TODAY."
6
44. The Statement of Breach or Non-Perfonnance indicated that Plaintiff was in
7
8 breach of the loan. It was not signed; instead the name Rochelle Matkin was typed in, in the
9 signature blank. Rochelle Matkin was listed as "agent" of First Horizon Home Loans, a division
10 of First Tennessee Bank National Association. In fact Ms. Matkin works for QLS.
11
45. The note from FHHL in the First Foreclosure Packet stated, among other things,
12
"DO YOU FEEL AS IF NO ONE CARES? FIRST HORIZON HOME LOANS CAN HELP ....
13
[D]o not give up hope. A variety of assistance programs may be available.... Call our Loss
14
15 Mitigation Department today.... Or to start the process immediately, fax the information .... "
16 Various options for keeping your home are listed, and the borrower is then urged to "HELP US
17 HELP YOU" by sending in all the infonnation listed for a modification of the loan.
18 Unable to reach anyone at Loss Mitigation to determine the status of her Second
46.
19
Package, fearing that the Second Package would be denied on the eve of foreclosure, completely
20
ignorant of the fact that the creditor was falsely identified, that the Note was unsecured due to its
21
separation from the DOT, that the First Substitution was false and improper, and the First Notice
22
23 therefore invalid, unaware of other material defects with the foreclosure, and in fear of losing her
24 home of seven years, Plaintiff called QLS on April 15, to determine the amount required for a
25 payoff, to reinstate her loan.

26
- 11 -
1 47. On April 21, 2009, QLS provided a total payoff amount of $33,694.52, which
2 included foreclosure attorney's fees and costs of$2,618.00.
3
48. Apparently due to Plaintiffs comment to Ms. High on April 11, that Plaintiff
4
would submit another workout package, FHHL sent Plaintiff a cover letter and blank Borrower
5
Financial Statement and form Hardship Letter, dated April 22, 2009. The letter began, "We
6
Listen. We understand. We care. Most importantly, we want to help you." The letter told
7
8 Plaintiff that if she provided the requested information, "we can begin working with you to find a
9 solution." And again, "[w]e hope you feel as strongly about protecting your home as we do about
10 trying to help you." Plaintiff had already submitted her Second Package on April 13, and so took
11
no action related to this correspondence.
12
49. Rather than risk losing her home at the eleventh hour, believing that the
13
foreclosure had legally been initiated, by parties legally entitled to foreclose, and unable to get the
14
15 expedited processing promised by Ms. High, Plaintiff liquidated her 401 (k) and used 100% of
16 those funds, along with other cash, to wire the reinstatement payoff amount of$33,729.52 to QLS
17 on May 5, 2009.
18 50. Had Plaintiff been aware of the illegal nature of the foreclosure proceedings, she
19
would not have liquidated her 401(k) or paid the reinstatement amount, and would have instead
20
filed suit.
21
51. By letter dated May 5, 2009, First Horizon sent Plaintiff a confirmation of receipt
22
23 of her Second Package faxed on April 13, 2009. The letter gave the average review period for the
24 Second Package as being 15 to 30 days. By the time Plaintiff received this letter, she had already
25 wired the reinstatement payoff.

26
- 12-
1 52. On May 26, 2009, QLS recorded a notice cancelling the trustee's sale set for July
2 10,2009.
3
53. Plaintiff made her monthly loan payments for June, July, August, and September,
4
2009.
5
54. Because of continued income struggles, Plaintiff contacted a non-profit
6
organization, Money Management International, to seek help regarding her options for getting
7
8 First Horizon to agree to a modification of her loan. She spent 1 Yi hours on the phone with
9 Patrick Robbins on September 19, 2009, providing information to him so that he could send a
10 recommendation to First Horizon.

11
55. Mr. Robbins then made a certified Hope Now Referral to First Horizon and to
12
HUD recommending a Making Home Affordable Plan-Loan Modification to 31 % of gross
13
monthly income, under President Obama's Plan, for which Plaintiff qualified. Mr. Robbins told
14
15 Plaintiff that she did not have to be delinquent on her loan payments to qualify.
16 56. As a result of the Hope Now Referral, First Horizon sent Plaintiff a new workout
17 package, with a cover letter dated September 18, 2009, indicating that First Horizon was using
18 Faslo Solutions, L.L.C. ("First American") to assist in evaluating Plaintiff's loan. This was the
19
first time that First Horizon proactively contacted Plaintiff regarding her financial difficulties; she
20
believed that fmally, with the Hope Now Referral, First Horizon would act in good faith on her
21
modification request and she would receive the assistance she had been waiting for. The cover
22
23 letter stated, "[w]e will work with you in an effort to make your mortgage payment affordable."
24 The letter said Plaintiff wouldn't have to pay any fees for a modification. The letter continued,
25 "[n]ow is the time to act. We are ready to help you."

26
- 13 -
1 47. On April 21, 2009, QLS provided a total payoff amount of $33,694.52, which
2 included foreclosure attorney's fees and costs of$2,618.00.

3
48. Apparently due to Plaintiffs comment to Ms. High on April 11, that Plaintiff
4
would submit another workout package, FHHL sent Plaintiff a cover letter and blank Borrower
5
Financial Statement and form Hardship Letter, dated April 22, 2009. The letter began, "We
6
7 Listen. We understand. We care. Most importantly, we want to help you." The letter told
8 Plaintiff that if she provided the requested information, "we can begin working with you to find a
9 solution." And again, "[w]e hope you feel as strongly about protecting your home as we do about
10 trying to help you." Plaintiff had already submjtted her Second Package on April 13, and so took
11
no action related to this correspondence.
12
49. Rather than risk losing her home at the eleventh hour, believing that the
13
foreclosure had legally been initiated, by parties legally entitled to foreclose, and unable to get the
14
15 expedited processing promised by Ms. High, Plaintiff liquidated her 401(k) and used 100% of
16 those funds, along with other cash, to wire the reinstatement payoff amount of $33,729.52 to QLS
17 on May 5, 2009.
18 50. Had Plaintiff been aware of the illegal nature of the foreclosure proceedings, she
19
would not have liquidated her 401(k) or paid the reinstatement amount, and would have instead
20
filed suit.
21
51. By letter dated May 5, 2009, First Horizon sent Plaintiff a confirmation of receipt
22
23 of her Second Package faxed on April 13, 2009. The letter gave the average review period for the
24 Second Package as being 15 to 30 days. By the time Plaintiff received this letter, she had already
25 wired the reinstatement payoff.

26
- 12-
1 57. Plaintiff put together a comprehensive package~ providing all information

2 requested, and sent the package (the "Third Package") by FedEx to First American in Westlake,
3
Texas, as specified in the instructions from First Horizon. FedEx delivered the Third Package to
4
First American on October 6, 2009, at 8:33 a.m.
5
58. On October 14, 2009, Joe with First American telephoned Plaintiff. Joe asked if
6
Plaintiff was still interested in a loan modification, and Plaintiff told him, she was. Plaintiff was
7
8 again reassured that First Horizon was fmally listening and that she would receive a reasonable
9 loan modification from First Horizon, as a result of the Hope Now Referral. Joe began to ask for
10 all the information received at First American on October 6. Plaintiff told Joe they had already
11
received everything; he said it would take 2 weeks for the information to "upload" and that the
12
process would be quicker if she gave the information over the phone. Plaintiff complied,
13
spending over an hour on the telephone giving Joe all the information that was already in the First
14
15 American offices.
16 59. After Plaintiff gave Joe at First American all the information he requested, Joe told
17 her it would take 30 to 45 days to determine which program she qualified for.
18 60. As of November 4, 2009, Plaintiff had not made her October loan payment. She
19
telephoned First American and told Perla that Plaintiff would be making the October and
20
November loan payments that week. Perla told Plaintiff that if she was current on her loan, First
21
American would not be able to modify her loan.
22
23 61. Plaintiff then asked Perla for confirmation that First American had all that was
24 needed to analyze the Third Package. Perla told Plaintiff that a lease agreement for a rental
25 property was needed, as well as the gross year to date rental income for that property. Perla
26
- 14 -
1 claimed that First American had been leaving messages about the missing documentation; in fact
2 no messages had been left. Plaintiff sent the requested information to First American on
3
November 6,2009.
4
62. Confused and alarmed that First American said she had to be delinquent to get
5
assistance, Plaintiff called First Horizon on November 6, 2009, and spoke with Carol Lynn in the
6
loan servicing centeL Plaintiff asked if she would be denied a modification if she were current on
7
8 her loan. Plaintiff told Carol Lynn that under the Making Home Affordable plan, a borrower can
9 qualifY for a modification even if current on payments. Carol Lynn indicated that if the borrower
10 is current, First Horizon believes the borrower does not need any help.
11
63. On November 19, 2009, Plaintiff called First American to check the Third Package
12
status. Mark told Plaintiff that her file was still under review, that she would hear within 30 days,
13
and that First American had all information needed to analyze the loan.
14
15 64. Given her conversations with a First American employee and a First Horizon
16 employee who both told her she must be in default to qualifY for a modification, Plaintiff stayed
17 in default on her loan.

18 On January 5, 2010, Plaintiff called First American and requested a status of her
65.
19
Third Package. She was told that someone noted on the account on December 16, 2009, that
20
borrower should send complete profit and loss statement. Plaintiff asked who was supposed to
21
contact Plaintiff and notify her that this information was needed; the representative put Plaintiff
22
23 on hold and never returned. Plaintiff called back and spoke with Sonya, who said nothing is
24 needed on the file and the Third Package is still under review. Plaintiff asked Sonja how Plaintiff
25 is supposed to get information from First American on what further documents are needed; Sonja
26
- 15 -
1 responded that notes are made in the file, but no requested from the borrower, until the borrower
2 happens to call for the status of the pending application.
3
66. Not wanting her loan to go into foreclosure status, Plaintiff attempted to make an
4
online payment which was rejected by First Horizon, and returned. Plaintiff called and spoke
5
with Eric who took an electronic payment covering two months of accrued charges, on January
6
7 19,2010.
8 67. Also on January 19, Plaintiff called regarding the status of her Third Package, and
9 was told by Perla that the Third Package was under review, and that it would take 2 to 6 weeks
10 for verification from the date of September 18, 2009, then 30 to 45 business days for processing
11
after that. Perla said that as of November 10, all necessary information had been received. She
12
was completely unable to state where in the process Plaintiff's loan was, saying there was "no
13
way to tell."
14
15 68. On January 26, 2010, Plaintiff again called for status. She was told by Anacari
16 that by February 24, 2010 at the latest, Plaintiff would receive an answer. Anacari then told
17 Plaintiff that she needed to submit profit and loss statements for all of 2009, by month. When
18 Plaintiff asked why she was not told this on January 19 when she called, Anacari simply said,
19
"Sorry."
20
69. By this time, Plaintiff realized that without the help of someone experienced in
21
working with lenders on workouts, she would find herself in the same situation she had been
22
23 before: First Horizon acting as though it is working on her workout, providing no information,
24 and then declining the workout before she had an opportunity to determine why or provide the
25 information for which the application was denied. Plaintiff hired Michael Hirschtick of National
26
- 16-
1 Credit Rescue to take over working with First AmericanlFirst Horizon, on February 2, 2010.
2 70. It seemed at this point that First AmericanlFirst Horizon would continue to ignore
3
Plaintiff s Third Package, and lie to her about the time by which it would be reviewed and acted
4
upon, unless a deadline was in place. Plaintiff believed she would have to let her home go into
5
foreclosure status before her workout file would be given priority and reviewed and acted upon
6
7 by the defendants.
8 71. On February 22, 2010, First Horizon requested that Mr. Hirschtick essentially
9 resend all the documents which had already been sent. The Third Package was resent on
10 February 23, 2010. First Horizon used this as an excuse to "reset" the age of Plaintiff's Third
11
Package, claiming hereafter that it was submitted to First Horizon on March 2, 2010, when in fact
12
Plaintiff's Third Package has been pending with First Horizon since October 6, 2009.
13
72. On March 8, 2010, in spite of all the promises from First Horizon about its desire
14
15 to help Plaintiff, and that it would "work with you in an effort to make your mortgage payment
16 affordable," and in spite of the Hope Now Referral, Plaintiff received a letter from FHHL, via
17 certified mail, demanding payment in full of all arrearages by April 1, 2010, or foreclosure would
18
be initiated.
19
73. On March 13,2010, Plaintiff received a call from Brandon, work LD. VKC, from
20
MetLife. Brandon asked if Plaintiff could make a mortgage payment. At this point, Plaintiff
21
feared that if she made a payment, her Third Package would be placed on hold, or put at a low
22
23 priority, or First Horizon would simply continue with foreclosure anyway, or decline her Third
24 Package because she was able to make a payment. Plaintiff told Brandon she had to hire
25 someone to work with First HorizonlFirst American because no one will listen, answer the phone,
26
- 17 -
1 or respond to her.
2 74. Brandon of MetLife checked on her Third Package, told her Mr. Hirschtick had
3
sent a new package on March 2, and that it would be assigned to a processor within 10 business
4
days. He told her that by Monday or Tuesday a processor would be assigned. Plaintiff expressed
5
frustration with the inability to speak with someone who knows what is going on, and her
6
experience of calling to be sure everything First American needs is present, only to call the next
7
8 time and find out First American claims something was needed 30 days ago, that was never
9 requested. All Brandon did was apologize for Plaintiff s getting the runaround on her Third
10 Package.
11
75. Mr. Hirschtick took over handling the workout with First HorizonIFHHL/MetLife,
12
on Plaintiff's behalf. Over the course of the next 6 months, up to the time of filing this
13
Complaint, First Horizon, FHHL, MetLife, and their agents, have negligently and/or intentionally
14
15 obfuscated the process and been extremely difficult to contact; made no less than 11 promises
16 that the Third Package would be assigned to a processor within 1 week, and/or that the file would
17 be "escalated" resulting in expedited review; told the Plaintiff's agent on many occasions that all
18 documentation was needed only to revoke that representation and demand more information in an
19
apparent attempt to buy more delay time; admitted that First American, an agent hired to handle
20
the loan modification packages, was negligent and wholly unable to perform under their
21
agreement and was terminated; failed to adequately supervise their agent with respect to
22
23 processing the loan modification packages resulting in the loss of precious time to homeowners
24 seeking assistance and in the issuance of false declination letters; and admitted that they shut their
25 fax machine off at night, and when it is on it will accept only 20 pages at a time.
26
- 18 -
1 76. First HorizonIFHHLlMetLife's promises regarding analysis and assignment of the

2 file, made to Plaintiff, include, but are not limited to, the following: December 5, 2008- will
3
process within 15 days; January 13, 2009- 30 to 45 days after assignment to a specialist; May 5,
4
2009- 15 to 30 days to process; October 14, 2009- 30 to 45 days to process; November 19, 2009-
5
30 days to process; January 19, 2010- 2 to 6 weeks from September 19, 2009 to perform
6
7 verification, then 30 to 45 business days to process; January 26, 2010- will have an answer to the
8 package by February 24, 2010; March 13, 2010- will be assigned to a processor in 10 days; April
9 5, 2010- will be assigned to a processor in 10 to 15 days; July 28, 2010- will be assigned to a
10 processor within 10 to 15 days after information requested is "uploaded" into system.
11
77. First HorizonIFHHLlMetLife' s promises regarding assignment within a week
12
and/or escalation of the file were made to Mr. Hirschtick on no less than the following dates:
13
April 28, May 7, May 19, May 24, May 28, June 3, June 15, July 1, July 8, July 15, and July 20,
14
15 2010. Attached hereto as Exhibit "D" is a complete list of the telephone contact Mr. Hirschtick
16 has made with First HorizonIFHHLlMetLife and their agents on Plaintiff s behalf, and the
17 responses he has received during those calls, through July 22, 2010.
18
78. On March 23, 2010, in spite of all the calls Mr. Hirschtick made to First
19
American/First Horizon on a weekly basis, in spite of providing all information requested, and in
20
spite of continuing to be told that no processor had even been assigned to the Third Package, First
21
Horizon sent a letter to Plaintiff telling her that her request for Loss Mitigation Assistance had
22
23 been declined. Mr. Hirschtick called to determine what the letter was about, and was told that the
24 letter was sent in error. First Horizon told Mr. Hirschtick to ignore the letter, that it was false.
25 IIII
26
- 19 -
1 79. On April 5, Colleena from First Horizon's default resolution department called and
2 asked what Plaintiff s intentions were regarding the past due balance. Plaintiff told her she had a
3
loan modification package pending with First Horizon since last October. Colleena checked the
4
status, and saw the Third Package on file. First Horizon's representative said that it would take
5
10 to 15 days for a processor to be assigned, and then 60 to 90 business days for final resolution.
6
7 80. During the call on April 5, the First Horizon representative said nothing to Plaintiff
8 about the intent to send the loan to foreclosure.
9 81. On April 12, FHHL sent Plaintiff two different letters. One letter notified Plaintiff
10 that her loan had been sent to McCarthy & Holthus to initiate foreclosure and suggested she
11
contact the Loss Mitigation Department if full reinstatement was not possible. The other letter
12
also stated her loan had been sent to an attorney for foreclosure, and detailed 4 different ways in
13
which Plaintiff could possibly "delay or even alleviate the current legal action .... " The letter
14
15 urged Plaintiff to contact Loss Mitigation immediately to "discuss all options available."
16 82. On infonnation and belief, the Defendants have a policy and/or practice of: 1)
17 refusing to assist any homeowner who is current on their payments in spite of numerous available
18
programs which allow borrowers to be current and modify their loans; 2) luring borrowers into
19
default by telling them that no help can be provided if the borrower is current; 3) leading
20
borrowers to believe that once in default, they will qualify for and be given a loan modification,
21
with their constant messages regarding how much they "care," "listen," "understand," and "are
22
23 ready to help you," knowing that these representations are false; 4) promising a response to a loan
24 modification, or assignnlent of a processor to a workout package, within a small number of days

25 (usually 10 to 15 days) with knowledge that this representation is false, and with specific intent
26
- 20-
1 that the borrower rely on the representation by taking no further action and making no mortgage
2 payments; 5) holding the loan modification package, without assigning a processor, long enough
3
that the information becomes stale so that more recent documents can be demanded, resulting in
4
further delay for the documents to "upload" into their system and refusing to assign a processor
5
until the documents have been "uploaded,"; 6) waiting for the borrower to be so far in arrears due
6
to the borrower's reliance and belief that defendants will stand by their word and act in good
7
8 faith, that it is impossible for the borrower to come current; 7) placing the loan into foreclosure,
9 all the while assuring the borrower that the workout package will be analyzed in short order,
10 knowing that this representation is false; 8) knowingly processing the foreclosure paperwork in
11
violation of the law, all the while hoping that borrowers don't have the knowledge to defend or
12
the money to hire an attorney to defend; 9) considering its own interests as servicer of the loan
13
above the interests of the borrower or the investor, 10) continuing, even after a trustee's sale is
14
15 noticed, to lead the borrower to believe that its workout package will be analyzed, that the
16 borrower has options short of full reinstatement, and that the lender "is very interested in
17 discussing options that may help you avoid foreclosure," and that they want the borrower to "help
18 us help you," knowing that the borrower will rely on these representations which are false; and
19
11) waiting until just before the trustee's sale to deny the workout package, and foreclose before
20
the borrower can take any further action, or simply foreclose in spite of a pending workout
21
package.
22
23 83. On April 14, 2010, MERS purportedly assigned its beneficial interest in the DOT
24 to BNY Mellon by way of an Assignment of Deed of Trust ("Assignment"). The Assignment
25 claims that it is assigning not only the beneficial interest under the Deed of Trust, but also "the
26
- 21 -
1 Promissory Note secured by said Deed of Trust .... " A copy of the Assignment is attached hereto
2 in Exhibit "E."
3
84. The Assignment was recorded on April 15,2010, at Doc. No. 20100317611. Tim
4
Bargenquast, described as Vice President of MERS, signed the Assignment. On information and
5
belief, Bargenquast is not now, and never has been, an employee of MERS.
6
85. In fact, Tim Bargenquast is a Support Staff Manager for QLS. Bargenquast is not
7
8 an Officer of, or even employed by, a member of MERS. Bargenquast is not even an Officer of
9 QLS. Bargenquast cannot legally be appointed as a certifying officerlagent of MERS.

10 86. Accordingly, the Assignment of DOT signed by Bargenquast on April 14, 2010,
11
recorded on April 15, 2010, is void and of no force and effect.
12
87. On May 15, 2010, Plaintiff received two notices from FHHL, dated May 4,2010.
13
The notices were identical, and both stated that Plaintiff s Loss Mitigation Assistance package
14
15 had been declined. Shocked, because her Third Package had never even been assigned to a
16 processor, Plaintiff sent the notices to Mr. Hirschtick.
17 88. On May 17, Mr. Hirschtick called First Horizon, and was told that the letter was
18 sent in error by First American, which no longer even performs any work for First Horizon. Mr.
19
Hirchstick was told that First American was unable to handle the volume or detail work required
20
to adequately analyze workout packages, and so its contract with First Horizon had been
21
terminated. First Horizon told Mr. Hirschtick to ignore the letter, that it was erroneously issued
22
23 and false. Mr. Hirschtick was told to call back later in the week to find out to whom the
24 Plaintiff s Third Package had been assigned.

25 /11/
26
- 22-
1 89. On May 27, 2010, another Notice of Substitution of Trustee (the "Second
2 Substitution") was recorded against Plaintiffs property. The Second Substitution was
3
purportedly made by The Bank of New York Mellon f/k/a The Bank of New Yor~ executed by
4
Marcia Williams, designated as Assistant Vice President. The Second Substitution claims that
5
BNY Mellon is the beneficiary under the Deed of Trust, and purports to substitute QLS as trustee.
6
On infonnation and belief, Ms. Williams is employed by First Horizon, not BNY Mellon.
7
8 90. The Second Substitution was not signed by an authorized officer of BNY Mellon,
9 accordingly, it is void.
10 91. On May 26, 2010, Earl Hopida, designated as an Assistant Vice President of QLS,
11
signed a Notice of Trustee's Sale (the "Second Notice"), claiming to be the trustee under the
12
Deed of Trust, and claiming to act on behalf of the alleged beneficiary under the Deed of Trust,
13
BNY Mellon. The Notice was recorded on May 27,2010, at Doc. No. 20100450248.
14
15 92. Mr. Hopida is variously described on the Notices of Trustee's Sale that he signs on
16 behalf ofQLS's foreclosure mill practice, as a Vice President and as an Assistant Vice President.
17 93. The Second Notice is void and of no force and effect, because the Assignment is
18
void and the Second Substitution is void.
19
94. No filing has been made at the Maricopa County Recorder's office showing a
20
resignation of North American Title as the original Trustee under the Deed of Trust, and a new
21
appointment of Trustee, for QLS.
22
23 95. The Second Substitution is void because North American Title did not resign,
24 because the Assignment to BNY Mellon is void because Ms. Williams is an employee of First
25 Horizon, and because the beneficiary under the DOT did not appropriately appoint QLS.
26
- 23-
1 96. Competing Substitutions of Trustee are on record at the Maricopa County
2 Recorder's Office, appointing QLS as trustee, by two different alleged beneficiaries, on two
3
different dates, namely April 10, 2009, and May 27, 2010. QLS has never filed a resignation as
4
Trustee under the Deed of Trust pursuant to the April 10, 2009 appointment.
5
97. Plaintiff was sent, by regular and by certified mail, thirteen (13) identical packets
6
from QLS, all postmarked June 3, 2010, which enclosed the Second Substitution, the Second
7
8 Notice, an unsigned Statement of Breach or Non-Performance, a Debt Validation Notice, an
9 Important Notice Regarding Alternatives to Foreclosure, and a note from FHHL (the "Second
10 Foreclosure Packet"). A copy of one of the thirteen packets is attached hereto as Exhibit "E."
11
98. The Debt Validation Notice in the Second Foreclosure Packet, prepared by QLS,
12
set forth the amount of delinquency and the principal balance owed, along with other costs. The
13
Notice indicates that MetLife Home Loans, a division of MetLife Bank NA, is the creditor.
14
15 99. The Important Notice Regarding Alternatives to Foreclosure in the Second
16 Foreclosure Packet, prepared by QLS, states, "your lender is very interested in discussing options
17 that may help you avoid foreclosure, BUT YOU MUST TAKE IMMEDIATE ACTION AND
18
CALL TODAY."
19
100. The Statement of Breach or Non-Performance in the Second Foreclosure Packet
20
states that Plaintiff is in breach of the loan. It is not signed; instead the name Chris Thurman is
21
typed in, in the signature blank. Chris Thurman is listed as "agent" of First Horizon Home Loans,
22
23 a division of First Tennessee Bank National Association. On information and belief, Mr.
24 Thurman works for QLS.
25 IIII
26
- 24-
1 101. The note from FHHL in the Second Foreclosure Packet states, among other things,
2 "DO YOU FEEL AS IF NO ONE CARES? FIRST HORIZON HOME LOANS CAN HELP ....
3
[D]o not give up hope. A variety of assistance programs may be available.... Call our Loss
4
Mitigation Department today.... Or to start the process immediately, fax the information .... "
5
Various options for keeping your home are listed, and the borrower is then urged to "HELP US
6
HELP YOU" by sending in all the information listed for a modification of the loan.
7
8 102. Because Plaintiff s Third Package was already pending, Plaintiff was disappointed
9 that FHHL did not make any mention of it. Because her Third Package had been pending for
10 over three months, and Mr. Hirschtick was in constant contact, Plaintiff did not contact FillIL in
11
response to this note.
12
103. On June 22, 2010, Plaintiff sent QLS a dispute of the Debt Validation Notice, and
13
requested documents.
14
15 104. QLS responded to Plaintiff's Debt dispute letter by letter dated July 2, 2010. In
16 that letter, QLS provides a copy of the Note, and claims that MetLife is in possession of the
17 original promissory note. QLS also states that its authority to proceed with, or halt, the
18 foreclosure sale comes from BNY Mellon. QLS stated that it would be proceeding with the
19
foreclosure sale on August 27, 2010, as scheduled. A copy of the letter from QLS is attached
20
hereto as exhibit "F."
21
105. Plaintiff has therefore been provided information indicating that Defendants do not
22
23 know who is in possession of the Note, and Plaintiff now doubts that the original Note exists any
24 longer. QLS claims that MetLife is the creditor and is in possession of the Note; MERS
25 purported to assign the Note to BNY Mellon in the Assignment, and the description of the alleged
26
- 25-
1 current beneficiary of the DOT indicates that the Note was sold into a pool as a part of a
2 mortgage-backed security, and is subject to a Pooling and Servicing Agreement ("PSA"). The
3
mortgage pool could contain tens, hundreds, or thousands of investors, all with a claim to a
4
portion of the Note.
5
106. If any of these defendants are allowed to enforce the Note without producing the
6
original with all endorsements and allonges showing that particular defendant's authority to
7
8 enforce the Note, Plaintiff is in jeopardy of other individuals and/or entities appearing at a later
9 date and claiming legitimate and legal entitlement to payment under the Note. This will result in
10 double liability for the Note, or more.
11
107. On July 7,2010, Plaintiff sent FHHL a Qualified Written Request ("QWR"), under
12
12 U.S.C. § 2605(e), via certified mail and regular mail, seeking information about her loan, its
13
servicing, ownership, and other critical issues. A copy of Plaintiff s QWR is attached hereto as
14
15 Exhibit "G."
16 108. On July 12, 2010, Plaintiff sent Quit Claim Deeds and cashier's checks for $5.00
17 to each of the following defendants: FHHL, MetLife, First Horizon, and BNY Mellon.
18 109. On July 28, 2010, Plaintiff received the $5.00 cashier's check payable to MetLife,
19
stapled to a letter dated July 21, 2010, which purports, in the letterhead, to be from both First
20
Horizon Home Loans, and FHHL. Although the letter contains boxes to check in order to tell the
21
recipient what the letter is about, none of the boxes are checked. In this one piece of
22
23 correspondence, three different defendants are referenced. This letter only contributes to the
24 confusion regarding who owns the Note, and who is the proper party to contact regarding
25 Plaintiffs Third Package. A copy of the July 21,2010 letter and the returned cashier's check is
26
- 26-
1 attached hereto as Exhibit "H."

2 110. Also on July 28, 2010, Plaintiff received a letter dated July 15, 2010, which
3
purports to be from both First Horizon Home Loans and FHHL. This letter simply states that
4
correspondence has been received, and that a response will be sent within 60 days. On July 28,
5
Plaintiff called the number given on the letter., as the one to call with any questions. Chanel
6
7 answered, and Plaintiff stated that since she has submitted so many documents to First Horizon
8 and FHHL, that she cannot tell to what this letter pertains. Chanel told Plaintiff she could not
9 find any such letter, and became irate with Plaintiff when Plaintiff stated that the letter came from
10 First Horizon, so there must be a record, and Plaintiff needed to know to what the letter pertained.
11
Plaintiff asked to speak with a supervisor; none were available. Chanel took Plaintiff s name and
12
number for a supervisor to call back. To date, no supervisor has ever called.
13
111. As of July 28,2010, less than 30 days before the Trustee's Sale date of August 27,
14
15 2010, defendants have failed to post the Property with the Notice of Trustee's Sale as required by
16 A.R.S. § 33-808(A)(3).
17 COUNT ONE
18
VACATE SUBSTITUTIONS OF TRUSTEE, ASSIGNMENT OF DEED OF TRUST,
19 AND VACATE NOTICE OF TRUSTEE'S SALE
(ALL DEFENDANTS)
20
112. Plaintiff repeats and realleges every allegation above as if fully set forth herein.
21
113. The appointment of QLS as Substitute Trustee on April 10, 2009, and again on
22
23 May 27, 2010, was improper.
24 114. The First Substitution and the Second Substitution did not comply with A.R.S.
25 §33-804(D), which states:
26
- 27-
1 A notice of substitution of trustee shall contain a description of the basis for the
successor trustee's qualification pursuant to section 33-803, subsection A. A
2 notice of substitution of trustee shall be sufficient if acknowledged by all
beneficiaries under the trust deed or their agents as authorized in writing and if
3
prepared in substantially the following form ....
4
115. The First Substitution was not prepared by MERS, which was the sale
5
beneficiary under the DOT; it was signed by a representative of QLS, Jim Montes,
6
purporting to sign for FHHL, which was not the beneficiary under the DOT. The First
7
8 Substitution was signed by QLS, appointing itself as trustee.
9 116. The Second Substitution was purportedly signed by BNY Mellon but in
10 fact was signed by Marcia Williams, an employee of First Horizon. First Horizon was not
11
the beneficiary under the DOT, nor was BNY Mellon, as the purported April 14, 2010
12
assignment of the DOT from MERS to BNY Mellon was voi<L having been signed by a
13
low-level employee of QLS, Tim Bargenquast.
14
15 117. The appointment of QLS as Substitute Trustee must also fail under Arizona
16 Revised Statutes §33-804(F), which states:
17 Resignation by a trustee is made by recordation of a notice of resignation in

the office of the county recorder of each county in which· the trust property or
18 some part of the trust property is situated at the time of the resignation. Written
19 notice shall be given through registered or certified mail, with postage prepaid, to
the trustor and the beneficiary.
20
118. A trustee must resign before a new trustee may be appointed.
21
119. No filing has been made at the Maricopa County Recorder's office showing a
22
23 resignation of North American Title, and a new appointment ofQLS.
24 120. Since North American Title has not resigned as required by A.R.S. §33-804(F) and
25 no resignation has been duly recorded as required, both Substitutions of Trustee appointing QLS
26
- 28-
1 must faiL No provisions in A.R.S. § 33-804, or any other applicable statute, allow more than one
2 trustee on one property at the same time.

3
121. Defendants have failed to properly post the Property with the Second Notice, as
4
required by A.R.S. § 33-808(A)(3).
5
122. The DOT signed by Plaintiff on August 1, 2005, shows MERS as the sole
6
beneficiary, and states MERS is "acting solely as a nominee for [First Horizon] .... "
7
8 123. MERS has no authority to conduct business of any kind in the State of Arizona;
9 any document signed and/or recorded by MERS in Arizona is void and of no force and effect.
10 124. MERS has never had any interest in, or been a holder of, the Note.
11
125. Any attempt to assign the beneficial interest in the DOT to another, without
12
simultaneously being the holder of the Note, is void.
13
126. MERS has no authority to assign the deed of trust.
14
15 127. The Note and DOT were separated at loan inception.
16 128. No defendant has been both the holder of the Note and the beneficiary of the DOT
17 simultaneously.
18 129. The Assignment of the DOT from MERS to BNY Mellon, was signed by a low
19
level employee of QLS, Tim Bargenquast, but he purports to be signing as Vice President of
20
MERS.
21
130. The Assignment of the DOT from MERS to BNY Mellon is void.
22
23 131. Therefore, the First and Second Substitutions of Trustee are void, the Assignment
24 is void, and the Notices of Trustee's Sale are void. In addition, the Trustee's Sale must be
25 vacated for failure to post the Property under A.R.S. § 33-808(A)(3).

26
- 29-
1 132. All defendants have breached their obligations as set forth in, among other laws,
2 Arizona statutes relating to foreclosures; defendants have also breached their obligations to the
3
Plaintiff, by allowing their agents/employees to sign documents without legal authority, thereby
4
initiating a trustee's sale, with the goal of taking Plaintiff s home, without legal basis.
5
133. The Trustee's Sale set for August 27,2010 must be vacated and cancelled.
6
134. Plaintiff is entitled to her attorney's fees and costs arising out of this claim,
7
8 pursuant to the contracts between the parties and A.R.S. § 12.341.01.
9 COUNT TWO
10 QIDETTITLE
11 (ALL DEFENDANTS)
12 135. Plaintiff repeats and realleges every allegation above as if fully set forth herein.
13 136. At the time the loan closed on August 1, 2005, and thereafter, the Note gave First
14
Horizon the right to payments.
15
137. Plaintiff has been given conflicting information about the holder of the Note. QLS
16
has told Plaintiff that MetLife has the Note, the Assignment claims that MERS assigned the Note
17
to BNY Mellon, and the description of the alleged current beneficiary of the DOT indicates that
18
19 the Note was sold into a pool as a part of a mortgage-backed security with an undisclosed number
20 of holders/investors of the Certificates, called the First Horizon Mortgage Pass-Through
21 Certificates Series FH05-F A8. This Certificate Series is subject to a PSA.

22
138. On information and belief, the First Horizon Mortgage Pass-Through Certificate
23
Series FH05-F A8 is governed by the First Horizon Alternative Mortgage Securities Trust 2005-
24
FA8 (the "Trust"). This Trust contains assets of approximately $537,837,255, including the Note.
25
The trustee of the Trust is BNY Mellon.
26
- 30-
1 139. Plaintiff has no knowledge of, and no way to detennine, who the legal holder of
2 the Note is, who is entitled to payments, and whether the Note still exists.
3
140. Plaintiff is in jeopardy, as the true holder of the Note and potentially dozens or
4
even thousands of third parties could come forward claiming an unsatisfied interest in the Note,
5
and mayor may not be subject to Plaintiff's various affirmative defenses and counterclaims.
6
Plaintiff is entitled to proof of the true holder of the Note to avoid this imminent danger.
7
8 141. At the time the loan closed on August 1, 2005, MERS was the sole beneficiary
9 under the DOT. MERS remained the sole beneficiary until at least April 15, 2010. The Deed of
10 Trust was entered on the MERS system with MIN # 100085200547038630.
11
142. The DOT does not give MERS any greater rights than normally given a nominee.
12
The DOT says that MERS acts solely as nominee for Lender. There is no express grant of any
13
right to MERS to transfer or sell the DOT or the Note, or assign its duties as a nominee, nor does
14
15 MERS obtain any right to Plaintiff s payments or to serve in the role of receiving or servicing the
16 Note payments.
17 143. The Assignment recorded on April 15, 2010, which purports to assign the DOT
18 and the Note from MERS to BNY Mellon under the signature of Bargenquast, is void. The
19
Assignment as it relates to the Deed of Trust is void because Bargenquast, a low level employee
20
of QLS, is not a legally appointed certifying officer of MERS, and because MERS has no
21
authority to assign the DOT. The Assignment is further void because MERS has no authority to
22
23 assign the DOT. The Assignment as it relates to the Note is void because MERS has never had
24 an interest in the Note to assign, nor does it have the authority to assign the Note.
25 144. A note and deed of trust are inseparable. If a note and deed of trust are separated,
26
- 31 -
1 in that the holder of the note and the beneficiary of the deed of trust are not the same individual or
2 entity, the note becomes unsecured.

3
145. Upon closing in August of 2005, the holder of the Note was First Horizon. The
4
beneficiary of the DOT was MERS. The Note and DOT have been separated since the inception
5
of this loan.
6
7 146. The assignment of a deed of trust without a legal transfer of the debt, transfers
8 nothing.
9 147. The Assignment of the DOT is invalid. There has been no evidence to show that
10 First Horizon had given authority for MERS to assign it; further, the purported Assignment is
11
signed by an employee of QLS. In addition, the DOT is a nullity. Having been separated from
12
the debt in August of2005, the DOT secures nothing.
13
148. The Assignment of the Note is invalid; MERS is not the holder of the Note, an
14
15 assignment is not the proper method for transfer of a note, and the purported Assignment is
16 signed by an employee of QLS. QLS has never been the holder of the Note.
17 149. Defendants seek to enforce the Note and DOT. The Note having been unsecured
18 since the date of loan closing, August 1, 2005, no Defendant may legally pursue foreclosure
19
pursuant to the Deed of Trust.
20
150. No Defendant has standing to pursue foreclosure, as no one Defendant is both the
21
beneficiary of the DOT and also the holder of the Note.
22
23 151. Various defendants have filed documents against the Property, without the legal
24 authority to do so. Those documents include, but are not limited to, the First and Second
25 Substitutions of Trustee, the Assignment of Deed of Trust, and the First and Second Notices of
26
- 32-
1 Trustee's Sale.
2 152. Plaintiff is entitled to an order from this Court that the Plaintiffs estate in the
3
Property be established in her, that title be quieted in her name, that all illegally recorded
4
documents be declared null and void with filings at the Maricopa County Recorder's Office to
5
that effect, and that all Defendants be barred and forever estopped from having or claiming any
6
right or title to the Property, adverse to Plaintiff, and that the Deed of Trust be declared void and
7
8 of no force and effect, and be released by a recording at the Maricopa County Recorder's Office.
9 153. Pursuant to A.R.S. § 12-1103(B), Plaintiff is further entitled to her attorney's fees
10 and costs against Defendants FHHL, MetLife, BNY Mellon, and First Horizon, as she tendered a
11
quit claim deed and $5 to each entity, more than 20 days before the filing of this Complaint.
12
COUNT THREE
13
BREACH OF THE DUTY OF GOOD FAITH AND FAIR DEALING
14 (FIRST HORIZON, FHHL, METLIFE, MERS, BNY MELLON)
15
17 155. Defendants are obligated under the Note and DOT, and the common law, to act in
18
good faith and to deal fairly with Plaintiff.
19
156. The purpose of the covenant is to guarantee that the parties remain faithful to the
20
intended and agreed expectations of the parties in their performance.
21
157. The duty of good faith extends beyond the written words of the contracts.
22
23 158. When a party or parties to a contract manipulate bargaining power to its/their own
24 advantage, injuring the other party, the party/parties with bargaining power breach its/their duty
25 of good faith.
26
- 33 ..
1 159. Plaintiff reasonably expected that the defendants would use good faith and deal
2 fairly in processing her loan modification package, and, based on their written and verbal
3
communications with her, that their goal was to help her keep her home, which would inure to her
4
benefit and well as theirs.
5
160. Defendants and/or their agents routinely and regularly breach their duty of good
6
7 faith and fair dealing by:
8 a. failing to perform loan servicing and process loan modification requests consistent
9 with their responsibilities and representations, to Plaintiffs;

10 b. failing to properly supervise employees/executives including, without limitation,
11
loss mitigation/loan modification and collection personnel and foreclosure attorneys;
12
c. failing to employ adequate and competent staff to timely review loan
13
modifications ;
14
15 d. failing to purchase and maintain adequate office equipment and to keep it
16 operating, to keep up with the demands of the loan modification packages being submitted by
17 borrowers at defendants' invitation;

18 routinely demanding information already in its files;
e.
19
f. making inaccurate calculations and determinations of Plaintiff's eligibility for loan
20
modification programs, including telling Plaintiff she must be in default to qualify;
21
g. failing to follow through on written, verbal and implied promises, including
22
23 without limitation the time frame within which the package will be processed;
24 h. failing to follow through on contractual obligations, including without limitation
25 taking action to foreclose in direct contravention of contract terms;

26
- 34-
1 1. luring Plaintiff into default and engaging in dilatory tactics, resulting in Plaintiff s
2 delinquency being so great that she cannot reinstate her loan;

3
J. participating in a system of loan documentation, processing, and servicing, which
4
hides from the borrower the identity of the holder of the note, and the beneficiary of the deed of
5
trust, supported by a continuing refusal on the part of all defendants, to provide any information
6
7 regarding these issues, to the borrower.
8 161. As a result of these failures to act in good faith and the absence of fair dealing,
9 defendants have caused Plaintiffs harm.

10 162. As this claim arises out of the contracts between the parties, Plaintiff is entitled to
11
her attorney's fees and costs incurred in having to bring this claim, pursuant to the terms of the
12
contracts as well as A.R.S. § 12-341.01.
13
COUNT FOUR
14
15 NEGLIGENT PERFORMANCE OF UNDERTAKING

(GOOD SAMARITAN DOCTRINE)
16 (FIRST HORIZON, FHHL, METLIFE)
18 164. Defendants voluntarily put in place, a loan modification program available to their
19
borrowers. Borrowers experiencing problems paying their mortgage were encouraged, even
20
urged, to submit a modification package.
21
165. Pursuant to defendants' program, defendants undertook to modify Plaintiff sloan.
22
23 Defendants sent numerous correspondence and notes, and had many conversations with Plaintiff,
24 in which Defendants encouraged Plaintiff to submit a modification package, and in which
25 defendants assured Plaintiff, over and over again, that defendants "care," understand," "listen,"
26
- 35 -
1 and "want to help."
2 166. Defendants indicated multiple times that many modification options were available
3
to Plaintiff, and that they wanted to help Plaintiff.
4
167. Plaintiffwas told she had to be in default to receive help; Plaintiff defaulted as a
5
result.
6
168. In spite of promises to help Plaintiff, defendants did not have adequate staffing,
7
8 resources, or equipment to administer its own loan modification program.
9 169. Defendants negligently hired third parties to administer the program. Defendants
10 terminated the third parties' contracts due to the negligent administration of the program by those
11
third parties.
12
170. Defendants failed to employ adequate and competent staff, and failed to timely
13
review loan modifications requests.
14
15 171. Defendants failed to purchase and maintain adequate office equipment and to keep
16 it operating, to keep up with the demands of the loan modification packages being submitted by
17 borrowers at defendants' invitation.

18 172. Defendants routinely demanded information already in its files.
19
173. Defendants made inaccurate calculations and determinations of Plaintiff s
20
eligibility for loan modification programs, including telling Plaintiff she must be in default to
21
qualify.
22
23 174. Defendants failed to follow through on written, verbal and implied promises.,
24 including without limitation the time frame within which Plaintiff s package would be processed.
25 IIII
26
- 36-
1 175. Defendants engaged in dilatory tactics, resulting in Plaintiff's delinquency being
2 so great that she cannot reinstate her loan, and resulting in a Trustee's Sale being set on the
3
Property.
4
176. Defendants' negligence resulted in such delay that her First Package was denied, a
5
call placed to her demanding the balance in full, and notification that the First Trustee's Sale had
6
7 been noticed, all in the same phone call.
8 177. Defendants' negligence resulted in Plaintiff's need to liquidate her 401(k) in order
9 to bring her loan current and keep her home.

10 178. Plaintiff relied on the defendants to administer the loan modification program, and
11
process her application for a loan modification, in a timely manner and with due care.
12
179. Defendants' negligence in administering its loan modification program has
13
resulted in economic harm to the Plaintiff.
14
15 180. Plaintiffhas suffered monetary damages from liquidation of her 401(k) in poor
16 economic times, adverse tax consequences from the early liquidation, severe and potentially
17 permanent damage to her credit rating, and other harm.

18 181. Plaintiff is entitled to damages from the defendants as a result of their negligent
19
administration of their loan modification program.
20
21
COUNT FIVE
22
23 FRAUDULENT MISPREPRESENTATIONIFRAUDULENT CONCEALMENT

(ALL DEFENDANTS)
24
26
- 37-
1 183. Defendants invited Plaintiff to submit a loan modification package and lead her to
2 believe that they were interested in helping her keep her home.
3
184. Defendants told Plaintiff she would not receive a modification of her loan unless
4
she was in default, which caused Plaintiff to default on her loan.
5
185. Defendants put Plaintiff in a position where she was at the mercy of their good
6
7 faith, fair dealing, and honesty.
8 186. Defendants knew the truth, but misrepresented and concealed the truth from
9 Plaintiff, including but not limited to, the following truths:

10 a. defendants could offer Plaintiff a loan modification program without her being in
11
default;
12
b. defendants allowed unauthorized signatures on the documents, including
13
documents required to be recorded at the county recorder's office to initiate and schedule the
14
15 foreclosure, resulting in the noticing of a void trustee's sale;
16 c. defendants did not have adequate and competent staff to timely and properly
17 process her loan modification package;

18
d. defendants negligently hired others to process the loan modification packages, who
19
themselves were negligent, costing Plaintiff months of delinquency on her loan;
20
e. defendants did not even have adequate office equipment to keep up with the
21
demands of the loan modification packages being submitted by borrowers at defendants'
22
23 invitation, and defendants would turn their facsimile machines off at night and program them to
24 reject any pages faxed after the twentieth page;
25 f.. defendants would routinely demand information already sent to them/in their files;
26
- 38-
1 g. defendants would fail to follow through on written, verbal and implied promises,
2 including without limitation the continual promises that Plaintiff's loan modification would be
3
assigned to a processor within one week, that the file would be "escalated," or that First
4
HorizonlFHHLlMetLife cares, wants to help, and wants borrowers to keep their homes;
5
h. defendants would fail to follow through on contractual obligations, including
6
7 without limitation, take action to foreclose through the use of unauthorized signatures;
8 . 1. defendants would lure Plaintiff into default and engage in dilatory tactics, resulting
9 in Plaintiff's delinquency being so great that she cannot reinstate her loan;
10 J. defendants' employees in the loss mitigationlIoan modification department knew
11
the status of her loan modification package but claimed ignorance each time Plaintiff or her agent
12
called;
13
k. defendants delayed in assigning the loan modification packages to processors until
14
15 the infonnation in the package was stale, requiring supplementation, which would then allow
16 defendants more delay due to alleged "uploading" time for documents, with another 10 to 15 days
17 before a processor would be assigned;

18
1. defendants were participating in a system of loan documentation, processing, and
19
servicing, which hides from the borrower the identity of the holder of the note, and the
20
beneficiary of the deed of trust, supported by a continuing refusal on the part of all defendants, to
21
provide any infonnation regarding these issues, to the borrower.
22
23 187. Defendants prevented Plaintiff from learning any of these truths.
24 188. As a result of defendants' fraudulent misrepresentations/concealment, Plaintiffhas
25 suffered pecuniary loss.

26
- 39-
1 COUNT SIX
2 FRAUD
(ALL DEFENDANTS)
3
5 190. Beginning at least with a modification package sent to Plaintiff in December of
6 2008, and through the present, defendants have engaged in a systematic process of making false
7
and misleading representations to Plaintiff to cause her to believe that the defendants "listen,"
8
"understand," "care," and "want to help" Plaintiff modify her loan.
9
191. Plaintiff was further mislead into believing that the defendants would exercise due
10
11 care with respect to her loan modification requests, follow the law, and legally and appropriately
12 administer their loan modification program or fulfill their legal duties, as the case may be.
13 192. The representations made to Plaintiff include, but are not limited to:
14 a. defendants could not offer Plaintiff a loan modification program without her being
15
in default;
16
b. defendants had adequate and competent staff to timely and properly process her
17
loan modification package, free of negligence or intentional misconduct;
18
19 c. defendants hired agents to process the loan nlodification packages, who would
20 timely and appropriately do so, to the benefit of Plaintiff;
21 d. defendants had the resources, including adequate office equipment, to keep up

22
with the demands of the loan modification packages being submitted by borrowers at defendants'
23
invitation;
24
e. defendants would timely place all information from Plaintiff, including
25
26 supplemental information provided, into her file, and would not ask for information already
- 40-
1 provided;
2 f. defendants would follow through on written~ verbal and implied promises,

3
including without limitation the eleven promises made to Mr. Hirschtick that Plaintiff's loan
4
modification would be assigned to a processor within one week, and that the file would be
5
"escalated/' for expedited review;
6
7 g. defendants' employees in the loss mitigation/loan modification department had no
8 way of telling, when Plaintiff or her agent called, what the status of her loan modification
9 package was;
10 h. the foreclosure documents filed in April of2009 and again in May of2010, were
11
legal, contained authorized signatures, and properly initiated the foreclosure process which would
12
legally result in Plaintiff s losing her home;
13
1. that in spite of foreclosure being initiated, defendants wanted to help, discuss
14
15 alternatives to foreclosure, were willing to modifY her loan, and could delay or even alleviate the
16 foreclosure; and
17 J. that if Plaintiff could just wait one week, that her package would get attention and
18
defendants would help her.
19
193. All of these representations were false when made, or believed to be true, and
20
subsequently learned to be false.
21
194. All of these representations were material.
22
23 195. Defendants knew that the representations were false, were unaware of whether the
24 representations were true or not, or believed them to be true but defendants later learned the
25 representations were false.

26
- 41 -
1 196. The defendants intended Plaintiff to rely on their representations, and therefore
2 take no other action to protect herself from delinquency, default or foreclosure.

3
197. Plaintiff was not aware that the representations were false, and she was never
4
notified by defendants that any representations made by them were later determined to be false.
5
198. Plaintiff relied the truthfulness of the representations.
6
7 199. Plaintiff had a right to rely on defendants' representations.
8 200. As a result, Plaintiff suffered damages.
9 201. Defendants actions were with malice, ill will, and a wonton disregard for the rights
10 of the Plaintiff. Plaintiff is entitled to punitive damages from the defendants.
11
12
COUNT SEVEN
13
CONSUMER FRAUD
14 (ALL DEFENDANTS)
16 203. The defendants use deception, false promises, misrepresentations, concealment,
17 and suppression or omission of material facts, when they engage in the pattern and practice of
18
allowing documents to be signed by individuals without legal authority, allowing those false
19
documents to be recorded at the Maricopa County Recorder's Office, and proceeding with
20
trustee's sales pursuant to void documents, in violation of Arizona law.
21
204. Defendants First Horizon, FHHL, and MetLife also use deception, false promises,
22
23 misrepresentations, concealment, and suppression or omission of material facts, when they and/or
24 their agents:
25 a. promise to make a good faith analysis of Plaintiff's loan modification requests;
26
- 42 ..
1 b. lured Plaintiff into defaulting by leading her to believe that was the only way they
2 could help her;

3
c. promised in excess of 11 times in three months, with respect to the Third Package,
4
that her modification package would be assigned to a negotiator and an answer would be provided
5
shortly;
6
7 d. promised that all documents needed to process the package were received, only to
8 later request more documents;
9 e. imply, through offering and encouraging participation in their loan modification

10 program, that they actually have competent staff and sufficient office equipment and resources to
11
handle loan modification requests;
12
f. hire agents who negligently handle the loan modification program, causing many
13
precious months in delay of processing loan modification packages;
14
15 g. delay in assigning a processor to a loan modification package until the information
16 provided was stale, demand supplementary documents, which in turn allows defendants to claim
17 delays associated with "uploading" the supplemental documents into the file, which in turn delays
18
the assignment of a processor;
19
h. send out, or allowed their agents to send out, declination letters which are false;
20
and
21
1. participate in a system of loan documentation, processing, and servicing, which
22
23 hides from the borrower both the identity of the holder of the note and the beneficiary of the
24 DOT, supported by a continuing refusal on the part of all interested parties, to provide any
25 information regarding these issues, to the borrower.

26
- 43 -
1 205. This deception, these false promises and misrepresentations, concealment, and
2 suppression or omission of material facts; were made in connection with the intended sale of
3
merchandise, the defInition of which includes real estate.
4
206. Defendants engaged in this course of conduct with the intent that Plaintiff would
5
rely on their false promises, deception, misrepresentations and concealment, go into default, seek
6
7 a loan modification, and ultimately lose her home in foreclosure.
8 207. As a consequence, Plaintiff suffered damages and injury.
9 208. Plaintiff is entitled to punitive damages against all defendants for their wanton and
10 reckless conduct which shows spite and ill will, and demonstrates a reckless indifference to
11
Plaintiff s interests.
12
COUNT EIGHT
13
TEMPORARY RESTRAINING ORDER; PRELIMINARY INJUNCTION;
14 PE~ENTINSUNCTION
15 (ALL DEFENDANTS)
17 210. If Arizona were a judicial foreclosure state, the issue of the burden of proof would
18
be on the party seeking affirmative relief, the creditor.
19
211. The purpose of the non-judicial foreclosure statutes is judicial economy. But those
20
statutes are now allowing the lenders and their business associates who failed to properly
21
document matters in their rush to profit, take homes from hard-working people, without proving
22
23 standing, entitlement to payment, or appropriate documentation to proceed.
24 212. Plaintiff is bringing this cause of action to stop the improper sale of her home, and
25 this cause of action is intended to be an express denial of the Defendant's claims against the
26
- 44-
1 Property. Plaintiff denies that defendants are the "lender" or "creditor" and that Plaintiff owes
2 any of the Defendants any obligation of payment, without strict proof thereof.
3
213. Defendants are improperly attempting to sell her property usmg tactics and
4
procedures that do not comply with Arizona law, and without standing or legal authority to do so,
5
as set forth in detail in the factual section and in the claims asserted above.
6
7 214. Plaintiffs request that this Court not allow the proposed sale to occur until a full
8 hearing on the asserted claims have been heard, and evidence as to the Defendants' standing to
9 litigate and continue in this case has been presented.

10 215. Plaintiff will suffer immediate and irreparable injury, harm, loss and damage if the
11
Trustee's Sale is not cancelled, and this Complaint is not allowed to proceed on its merits.
12
216. On information and belief: the Note has been sold many times to entities that have
13
securitized the Note. As set forth above, Plaintiff has been given conflicting information from the
14
15 various defendants regarding the identity of the entity entitled to enforce the Note. If, as QLS
16 asserts, the Note is in a securitized mortgage pool, it is governed by a Pooling and Service
17 Agreement ("PSA"). Plaintiff has requested a copy of the PSA from First Horizon, but no copy
18
has been received.
19
217. On information and belief, if the Note is in a securitized mortgage pool, the
20
governing PSA states that there must be two recorded sales between the loan's origination and its
21
being placed into the mortgage pool. There likely exists evidence that the investors of the
22
23 mortgage pool are the real holders of the Note.
24 218. Because of the default on this loan in 2009 and 2010, there likely also exists
25 evidence that the Note has already been paid off by credit default swaps purchased by the
26
- 45-
1 mortgage pool. In that even~ any real party in interest may be an insurance company with a
2 subrogation claim, but none of the defendants herein.

3
WHEREFORE, Plaintiff requests the following relief:
4
1. For a Declaration and Order that the Assignment of the Deed of Trust from MERS
5
to BNY Mellon be declared null and void, of no force and effect, and in violation of Arizona law;
6
2. For a Declaration and Order that the Statement of Breach or Non-Performance and
7
8 Election to Sell under Deed of Trust be declared null and void, of no force and effect, and in
9 violation of the requirement that it be signed, and signed by the lender;

10 3. For a Declaration and Order that the First and Second Substitutions of Trustee are
11
declared null and void, of no force and effect, and in violation of Arizona law;
12
4. For a Declaration and Order that the First and Second Notices of Trustee's Sales
13
are declared null and void, of no force and effect, and in violation of Arizona law;
14
15 5. For a Declaration and Order that the Trustee's Sale scheduled for August 27,2010,
16 be cancelled and cancellation of same be recorded at the Maricopa County Recorder's Office
17 immediately, and that a Trustee's Sale not again be rescheduled on the Property unless Plaintiff
18
loses on the merits of all her claims;
19
6. For a Declaration and Order that each of the defendants must prove that it is the
20
legal holder of the Note, and therefore legitimately able to pursue collection of the Note;
21
7. For a Declaration and Order that because the Note and DOT, which are
22
23 inseparable to be enforceable, have been separated since the inception of this loan, rendering the
24 Note unsecured and the DOT of no force and effect, and ordering that title to the Property is
25 quieted in favor of Plaintiff;

26
- 46-
1 8. For damages sustained by the Plaintiff as a result of the negligence andlor
2 intentional conduct of the defendants, or otherwise, as allowed by law;

3
9. For punitive damages to deter the defendants and punish them for the torts they
4
have engaged in at Plaintiff's expense;
5
10. For judgment for Plaintiffs' legal fees and costs incurred, pursuant to ARS § 12-
6
7 341.01, as this matter arises out of a contract, and pursuant to A.R.S. § 12-1103(B).
8 11. For interest on the reasonable attorney's fees, court costs, and other costs of
9 collection at the highest legal rate from the date of entry of judgment herein until paid in full; and
10 For such other and further relief as the Court deems just and proper.
11.
11
JURy DEMAND
12
Plaintiff demands a trial by jury as a matter of right.
13
14 I declare under penalty of peIjury that the foregoing is true and correct to the best of my
15 knowledge.
16
DATED this 3 rd day of August, 2010.
17
18
19
20
Barbara J. Forde, Esq.
21 20247 N. 86th Street
22 Scottsdale, AZ 85255
Pro Se Plaintiff
23
24
25
26
- 47-

CASE FILE Arizona Quiet Title REMOVAL - REMAND and Commentary Forde V First Horizon Home Loan

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

CASE FILE Arizona Quiet Title REMOVAL - REMAND and Commentary Forde V First Horizon Home Loan

Uploaded by

Copyright:

Available Formats

NEW QUIET TITLE SUIT FILED IN MARICOPA COUNTY, AZ ON THE HEELS OF A QUIET TITLE

ACTION THAT WAS REMANDED BACK TO SUPERIOR COURT IN PHOENIX

December 10th, 2010

Here’s a passage from the order:

Order to Remand Case to State Court

1 based on negligence and fraud. The claims derive from a

1 City of Thibodaux, 360 U.S. 25, 28-29, 79 S. Ct. 1070, 1073-74

1 matter of substantial public concern.” Colorado River, 424 U.S.

1 abstention. Federal courts evaluating the wisdom of abstaining

1 from exercising diversity jurisdiction over the complaint in

1 It appears that there are on-going state proceedings

1 Citing the Rooker-Feldman doctrine, in a string of

Barbara J. Forde, a married woman dealing with her sole

1 GUST ROSENFELD P.L.C.

1 Defendants First Horizon Home Loans, a division of First Tennessee

1 3. Diversity of citizenship is found pursuant to 28 U.S.C. § 1332(a)(1).

1 WHEREFORE, Defendants request that this action proceed in this court

~JS 44 (Rev. 12/07) CIVIL COVER SHEET

I. (a) PLAINTIFFS DEFENDANTS

Barbara J. Forde First Horizon Home Loan Corporation, et al.

o 110 Insurance 400 State Reapportionment

V. ORIGIN (Place an "X" in One Box Only) Appeal to District

VIII. RELATED CASE(S)

RECEIPT # AMOUNT APPL YING IFP JUDGE MAG. JUDGE

SUPPLEMENTAL CIVIL COVER SHEET

Additional sheets may be used as necessary.

1. Style of the Case:

Please include all Plaintiff(s), Defendant(s), Intervenor(s),

Party Party Type Attorney(s)

Attorneys for Defendants Defendants Richard A. Segal - 000877

Quality Loan Service Defendant Paul M. Levine, Esq.

CMM:cls 1335420 9/7/2010

Was a Jury Demand made in another jurisdiction? X Yes

Was an Answer made in another jurisdiction? X No

Party Date Served Method of Service

MetLife Home Loans, a 08/06/10 Personal in Texas

6. Nonsuited, Dismissed or Terminated parties:

7. Claims of the Parties:

Plaintiff Breach of Contract; Quiet Title, Negligence and

CMM:cls 1335420 9/7/2010

5 SUPERIOR COURT OF ARIZONA

7 BARBARA J. FORDE, a married woman CV '2 DID - Q5 313 ,4

9 Plaintiff, COMPLAINT FOR INJUNCTIVE

1 and alleges as follows:

9 LOT 21, OF GRAYHAWK PARCEL 3j, ACCORDING TO THE PLAT OF

21 4. On information and belief, MetLife Home Loans, a division of MetLife Bank,

1 5. At all relevant times, Defendant Mortgage Electronic Registration Systems, Inc.,

16 damages, and harm incurred by Plaintiff.

2 MERS as the sole Beneficiary.

17 16. MERS rarely, if ever, takes possession of promissory notes.

1 First Package, she took no action in response to this letter.

16 Ms. Freeman via e-mail.

7 costs, would have been accepted.

25 payoff, to reinstate her loan.

25 wired the reinstatement payoff.

10 recommendation to First Horizon.

25 "[n]ow is the time to act. We are ready to help you."

2 included foreclosure attorney's fees and costs of$2,618.00.

25 wired the reinstatement payoff.

1 57. Plaintiff put together a comprehensive package~ providing all information

17 in default on her loan.

1 76. First HorizonIFHHLlMetLife's promises regarding analysis and assignment of the

8 about the intent to send the loan to foreclosure.