Professional Documents
Culture Documents
Plaintiff,
vs.
ONEWEST BANK, F.S.B.; John and Jane Does, 1-100 inclusive; ABC
CORPORATIONS, entities of unknown form, 1-20, inclusive,
Defendants.
______________________________________________________________________
COMES NOW the Plaintiff, Bruce C. McDonald, by and through counsel, Gary D.
I. STATEMENT OF FACTS
According to the Plaintiff‟s Complaint (Doc.1), on May 27, 2003, the Plaintiff,
Bruce C. McDonald (“Mr. McDonald”) entered into an agreement with INDYMAC BANK,
FSB (“IndyMac Bank”), wherein Mr. McDonald executed an ADJUSTABLE RATE NOTE
(“Note”), secured by and concerning his residence located at 4434 Rarity Court,
The Note (Doc.1, Ex. A) memorialized Mr. McDonald‟s promise to pay $198,000,
plus interest, to the order of IndyMac Bank. The first paragraph of the Note states:
I understand that the lender may transfer this note. Lender or anyone who
takes this note by transfer and who is entitled to receive payments under
this note is called the “Note Holder.”
A Deed of Trust (Doc.1, Ex. B), secured the money owed under the terms of the
Note. IndyMac Bank was the beneficiary of the Deed of Trust. Additionally, the Public
On July 11, 2008, IndyMac Bank was closed by the Office of Thrift Supervision,
an agency of the United States Government. After the closure, IndyMac went into
bankruptcy and the Federal Deposit Insurance Corporation (“FDIC”) was named the
bank‟s conservator. The FDIC re-opened the bank in receivership. Ultimately, all of the
assets of IndyMac Bank were sold to another entity and re-opened in March 2009 as
Although Mr. McDonald knew the bank with which he had contracted was
On April 10, 2009, Mr. McDonald received a letter from OneWest indicating that
the “servicing” of the Note had been assigned, sold or transferred to OneWest. (Doc. 1,
Ex. C). After inquiry, Mr. McDonald was not satisfied that the information he had
OneWest. As outlined in his Complaint, Mr. McDonald believed that he had certain
rights under the Uniform Commercial Code (“UCC”) to require OneWest to provide
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such instrument or evidence was not forthcoming. As alleged, OneWest failed to prove
Mr. McDonald was contractually obligated to pay OneWest. Beginning in May 2009, Mr.
(“Aronowitz”), mailed a letter to Mr. McDonald indicating the matter had been referred to
the law firm for institution of foreclosure proceedings. The notice informed Mr.
McDonald of his right to request a verification of the debt. Further, Aronowitz, on behalf
Aronowitz identifies itself as attorney for OneWest (Doc.1, Ex.E). Said Certificate,
signed under oath, stated: 1.) OneWest was a qualified holder as defined in C.R.S. '38-
38-100.3(20); 2.) OneWest was the holder of the original evidence of debt; and, (3)
As alleged in Mr. McDonald‟s Complaint, OneWest was not, is not, and never
has been the “Note Holder” as defined by the Note, or the beneficiary of the Deed of
correspondence to Mr. McDonald on August 22, 2009, enclosing a copy of the Note and
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or Deed of Trust indicated the Note and/or Deed of Trust had been transferred,
endorsements or assignments of the Note and Deed of Trust had been recorded in the
On September 10, 2009, OneWest filed for an Order Authorizing Sale Pursuant
to C.R.C.P. Rule 120 in Saguache County District Court. Additionally, Mr. McDonald
filed an independent action for, among other things, injunctive relief. (Doc.1, ¶86).
The District Court, presided over by the Honorable Judge Martin A. Gonzales,
required OneWest to produce the original Note and Deed of Trust. After OneWest
failed to produce the documents, the court dismissed both actions. OneWest eventually
produced the documents and requested reconsideration. The Rule 120 matter was
thereafter reopened, and the parties were allowed to engage in some limited discovery.
Ultimately, on February 4, 2010, the District Court issued an Order allowing the
sale of Mr. McDonald‟s property to proceed to public sale on the previously scheduled
Throughout the Rule 120 proceeding, OneWest explicitly and implicitly presented
itself as the holder of the Note and beneficiary of the Deed of Trust. For example, in
of its pleading:
Accordingly [OneWest Bank] is the holder of the original Note and Deed of
Trust and has presented prime facie evidence to the Court that Petitioner
is the real party in interest and has standing to bring this action.
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Attached hereto as Plaintiff‟s Exhibit A is said Motion to Reconsider of November 4,
Reconsider, wherein it again asserted that OneWest was the real party in interest, had
standing to bring the action, and that Mr. McDonald had no basis in law or fact for
Plaintiff‟s Exhibit B is said Response to Motion to Reconsider filed February 15, 2010,
Miraculously, on March 2, 2010, two days before the scheduled sale of his
property, Mr. McDonald received information from the FDIC in response to his request
under the Freedom of Information Act. The letter, dated March 1, 2010, from Rhonda
Trata MMC Assistant Management on behalf of the FDIC as receiver for IndyMac
(Doc.1, Ex.I.) The attached “screen print” from OneWest indicated that the investor to
Mr. McDonald‟s loan was, in fact, FEDERAL HOME LOAN MORTGAGE CORP.
Mr. McDonald also had received a letter from IndyMac Mortgage Services, a
Division of OneWest Bank, dated February 26, 2010, which states, in pertinent part:
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Please accept this letter as confirmation that the investor on your loan is
Federal Home Loan Mtg. Co. Any questions regarding your loan should be
addressed directly to IndyMac Mortgage Services, a Division of OneWest
Bank, FSB, as we are responsible for the servicing of this loan. The
investor should not be contacted directly.
(Doc.1, Ex. K)
After receiving said information, Mr. McDonald, through counsel, filed a Motion to
Vacate Order Authorizing Sale. OneWest objected and, over a month after the home
had been sold at public auction, District Court Judge Gonzales denied Mr. McDonald‟s
Motion to Vacate Order Authorizing Sale, holding, among other things, that:
Attached hereto as Plaintiff‟s Exhibit C is said Order dated April 10, 2010, as though
At the public auction of March 4, 2010, OneWest, the only bidder, offered a credit
bid of $171,002.74. (Doc.1, ¶86). On March 25, 2010, OneWest assigned its interest in
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Under Colorado law, Mr. McDonald did not have a right to appeal the District
Court‟s final orders of February 4, 2010, and April 10, 2010. On June 29, 2010,
FreddiMac, as new owner, filed an action for forced entry and detainer to evict Mr.
McDonald. (Doc.1,¶92). Thereafter, Mr. Donald filed suit in this Honorable Court on
A. Standard of Review
This Court must accept all well-pled allegations in the Complaint as true, and
view those allegations in the light most favorable to Mr. McDonald. Stidham v. Peace
Officer Standards and Training, 265 F.3d 1144, 1149 (10th Cir. 2001). Mr. McDonald‟s
Complaint should not be dismissed for failure to state a claim “unless it appears beyond
doubt that the Plaintiff can prove no set of facts in support of his claim which would
entitle him to relief.” Connelly v. Gibson, 355 U.S. 41, 45-46 (1957). See also Benefield
The Court should limit its consideration to the four corners of the Complaint, but
can consider the documents attached thereto, and any external documents referenced
in the Complaint, the accuracy of which is not in dispute. Oxendine v. Kaplan and
The United States Supreme Court has recently clarified what constitutes a well-
pled fact for purposes of determining a Rule 12 Motion to Dismiss. Ashcroft v. Iqbal,
___ U.S. ____, 129 S.Ct. 1937. Bell Atlantic Court v. Twombly, 550 U.S. 544 (2007). A
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pleader is not required to set forth detailed factual allegations, but must offer more than
naked assertions devoid of further factual enhancements. Iqbal, 129 S.Ct. at 1949.
Once pled, the facts must demonstrate a plausible claim, in which the pleader has
shown more than just an abstract possibility that the Defendant has engaged in
actionable misconduct. Id. When faced with well-pled factual allegations, the Court
“should assume their veracity and then determine whether they plausibly give rise to
B. Judicial Notice
This Court may also consider matters of which it takes judicial notice. A
judicially noticed fact is one not subject to reasonable dispute and is either generally
known within the territorial jurisdiction of the trial court or capable of accurate and ready
O’Toole v. Northrop Grumman Corp., 499 F.3d 1218, 1224 (10th Cir. 2007).
C. Rebuttal
Property was proper under Colorado law. This argument overlooks the obvious:
requires the foreclosing party to provide truthful and accurate information to the Public
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1. Qualified Holder
violation of a covenant of a Deed of Trust and elect to publish all or a portion of the
OneWest contends it need only file, “among other thing, a „copy of the evidence
of debt acting for itself or as agent, nominee, or trustee‟ and „[c]opies of the recorded
explanation. Throughout the process, OneWest implicitly and explicitly held itself out as
the owner of the evidence of debt and beneficiary of the Deed of Trust.
(Id.)
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In the Certification, OneWest claimed, under oath:
(Doc.1, Ex.E).
OneWest does not dispute that its agents and attorneys, Aronowitz and
Mecklenburg, LLP (“Aronowitz”), were dutifully speaking on its behalf. In fact, OneWest
identify itself as an entity “acting in the capacity of agent, nominee except as otherwise
Accordingly, Mr. McDonald does not contend OneWest needs the original
an equity interest in the Note, when it had none. Mr. McDonald also claims OneWest
illegally exercised certain powers under the Deed of Trust, of which it was not the
beneficiary.
2. Holder
No issue causes greater confusion in Colorado foreclosure law than the term
“holder.” From the beginning, OneWest has claimed it is “the servicer and holder of the
loan which was originated by INDYMAC BANK, F.S.B.” (Doc 1, Ex.H). Additionally, in
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its Motion to Dismiss, OneWest asserts it “has never suggested it was anything other
than a qualified holder of the debt;” and, as such, “[f]or purposes of foreclosure,
OneWest was the holder of the interest in the Loan, and properly exercised its right to
Here, OneWest is not the obligee of the Note. As alleged, the Note was not
OneWest‟s averment to any interest in the Note is found in its actual possession and
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claim that the Note was “duly negotiated” to OneWest as an asset purchased from
IndyMac Bank.
in Mr. McDonald‟s Complaint, IndyMac sold the Note and Deed of Trust before its
bankruptcy—and thus the Note and Deed of Trust were simply not assets, the rights to
Additionally, physical possession of the Note does not equate with being a holder
of the Note, C.R.C.P. § 4-1-201(b)(20)(A) defines a “holder” of a negotiable instrument
as:
This Note was not “payable to bearer.” The Note involved in this case is payable
to IndyMac Bank, not OneWest. With regard to the transfer of the physical possession
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unqualified endorsement of the transferor, but negotiation of the
instrument does not occur until the endorsement is made.
Subsection (b) would seem to invest OneWest with rights to enforce the Note by
its physical transfer. However, Comment 2 of said statute states:
Subsection (b) states that transfer vests in the transferee any right of the
transferor to enforce the instrument "including any right as a holder in due
course." If the transferee is not a holder because the transferor did not
indorse, the transferee is nevertheless a person entitled to enforce the
instrument under Section 3-301 if the transferor was a holder at the time of
transfer. Although the transferee is not a holder, under subsection (b) the
transferee obtained the rights of the transferor as holder. Because the
transferee's rights are derivative of the transferor's rights, those rights
must be proved. Because the transferee is not a holder, there is no
presumption under Section 3-308 that the transferee, by producing the
instrument, is entitled to payment. The instrument, by its terms, is not
payable to the transferee and the transferee must account for possession
of the unendorsed instrument by proving the transaction through which the
transferee acquired it. Proof of a transfer to the transferee by a holder is
proof that the transferee has acquired the rights of a holder. At that point
the transferee is entitled to the presumption under Section 3-308.
only the servicing rights to Mr. McDonald‟s loan. That fact is beyond debate. With that,
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purchase, which may have included the right to enforcement. The key issue remaining,
however, is under what circumstances and procedure may OneWest seek enforcement
3. Deed of Trust
The Colorado General Assembly created the office of the Public Trustee in each
secure payment to the lender called “deeds of trust.” C.R.S § 38-38-101, et seq. These
deeds of trust are executed to the Public Trustee and provide the time and manner of a
Public Trustee foreclosure once the debtor has defaulted on the terms of a promissory
statutes is activated by a power of sale in the deed of trust.” Plymouth Capital Co. Inc.,
v. Dist. Ct. of Elbert County, 955 P.2d 1014, 1017 (Colo. 1998).
used. “When a debtor defaults on a promissory note, a creditor may elect which
remedy the creditor wishes to pursue, as a creditor may enforce payment of the debt by:
(1) foreclosing on the lien of the deed of trust; (2) pursuing a suit for a judgment upon
default and filing the transcript of the judgment to obtain a judgment lien that allows for
execution upon the judgment of the debtor‟s property; or (3) both.” Mortgage
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If one defaults on a mortgage loan, the lender can proceed with a public trustee
foreclosure of the deed of trust, or choose to sue on the promissory note. If the latter
method is chosen, judgment must be entered and a transcript of judgment filed. Only
Almost all residential foreclosures in Colorado are administered using the Public
Trustee. The deed of trust provides the assurance that the borrower will pay the lender,
as the deed of trust pledges the borrower‟s home as security. However, the rights
Here, the evidence establishes that OneWest was not the beneficiary of the
Deed of Trust. Thus, no privity of contract exists between OneWest and Mr. McDonald.
Accordingly, although OneWest may have certain rights to enforce the Note as its
designated servicer, those rights do not extent to the contractual terms outlined in the
A legal action brought pursuant to C.R.C.P. 120 is not an action to collect a debt.
Its purpose is “very narrow” and limited to determin[ing] whether there is a reasonable
has occurred.” Plymouth Capitol Co. v. District Court, 955 P.2d 1014, 1017 (Colo.
1998). In light of that, Colorado courts have made it clear that claims for damages by
debtors, whether they be independent or cognizable as recoup or set-off, are not proper
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Historically, proceedings “under this rule are not adversary proceedings in which
the Court determines issues and enters final judgment, and no appeal may be taken to
review the same.” Hastings v. Security Thrift Mtg. Co., 357 P.2d 919 (1960).
when no major issues are in dispute. The “scope of inquiry for a hearing held pursuant
to this rule is limited to the existence of a default or other circumstances authorizing the
sale, and action collateral to such hearing is necessary to resolve other issues.”
Ragsdale Bros. Roofing v. United Bank, 744 P.2d 750 (Colo. App. 1987).
The granting of any such motion shall be without prejudice to the right of
any person aggrieved to seek injunctive or other relief in any Court of
competent jurisdiction, and the denial of any motion shall be without
prejudice to any right or remedy of the moving party . . .
However, Mr. McDonald has not asked this Court to overturn or modify the decision of
the Saguache County District Court. Rule 120 hearings at the state-level do not purport
In 2005, the Supreme Court of the United States revisited the Rooker-Feldman
Doctrine. Exxon Mobile Corp. v. Saudi Basic Industries Corp., 544 U.S. 280 (2005).
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jurisdiction concurrent with the jurisdiction exercised by state courts, and
superseding the ordinary application of preclusion law pursuant to 28
U.S.C. '1738.
Id.
of Appeals, 10th Circuit, is misplaced and, in fact, supports Mr. McDonald=s contention
that his action is not barred by the Rooker-Feldman Doctrine. See, Mann v. Boatright,
Since Beverly did not file a timely appeal of those judgments, the District
Court properly considered the probate proceedings final for purposes of
Rooker-Feldman.
While, as the Court has recently acknowledged, Rule 120 Orders are
generally not adversarial and not appealable, and thus do not constitute
final judgments, Athe applicability of Rooker-Feldman does not depend on
whether state Court orders are appealable, but rather upon whether they
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completely determine the rights of the parties. See, Beeler, 2007 W.L.
1346571, at *3 (citing Mann v. Boatright, 477 F.3d 1140 (10th Cir. 2007)).
(Doc.8, p.9)
Here, District Court Judge Gonzales found OneWest had “complied with the
[OneWest] is the real party in interest and has standing to bring this action.” See
Plaintiff‟s Exhibit C, ¶¶ 4-5. Said Order was not a complete determination of, or final
judgment with regard to the rights of the parties. Essentially, the local court found that
in the limited scope of the Rule 120 hearing, OneWest complied with the foreclosure
statute in Colorado. This case concerns whether, through its action, OneWest induced
the public trustee and district court to act in accordance with the statute through
misrepresentation.
Further, Mr. McDonald, in this federal action, is not seeking to overturn Judge
Gonzales= Order Authorizing Sale. Mr. McDonald has not asked for federal injunctive
relief, a declaratory judgment, or any relief which seeks to review Judge Gonzales=
federal statute, and this District Court=s jurisdiction to then hear Mr. McDonald=s state-
In fact, Mr. McDonald invites OneWest to specifically address the issue with an
explicit declaration that it stands by its original certification that OneWest was the ANote
Holder” under the terms of the Note, and was then Athe current beneficiary of the deed
of trust.”
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E. Civil RICO Claim
Mr. McDonald concedes he must plead his RICO claim with specificity. In his
Complaint, Mr. McDonald recites, with particularity, specific dates, parties, and actions
of OneWest, in concert with others, which would most certainly establish a plausible
Recently, the Supreme Court clarified the word Aplausible” in the context of
whether well-pled facts establish a complaint upon which relief may be granted. The
term is understood to mean that the plaintiff has a demonstratable and concrete belief
that a wrong has been committed, and the Defendant is the entity responsible—as
ascertained; and, the Defendant, might, hypothetically, be a person who might have
been responsible for that wrong. Ashcroft v. Iqbal,____U.S.____, 129 S.Ct. 1937
(2009). See, also Bell Atlantic Corp., v. Twombly, 550 U.S. 544 (2007).
In Twombly, the Supreme Court observed that the plaintiff had sufficiently pled
that two defendants that engaged in Aparallel behavior.” The Court, however, found
that while parallel conduct might be consistent with the required element of an
agreement between the two defendants, Ait was not only compatible with, but indeed
was more likely explained by, lawful unchoreographed free-market behavior.” Id. at
567. The Court ruled Athe well-pleaded fact of parallel conduct, accepted as true, did
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Mr. McDonald=s Complaint specifically alleges conduct between OneWest, in
concert with Aronowitz, FreddyMac and others, which establishes that certain entities
action in state Court to foreclose upon Mr. McDonald=s property, when the moving party
was not the “Note Holder” by the terms of the Note or the beneficiary of the Deed of
Trust—specifically to, among other things, launder title and shield other conduct which
Machado, Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County,
IndyMac Bank (now OneWest Bank), Erica A. Johnson-Seck, gave direct testimony that
establishes OneWest was engaged in conduct with FreddyMac and other entities, as a
routine course of their business activity, to foreclose certain mortgage loans in a name
As stated, the Court can take judicial notice of certain facts, the accuracy
against interest, uttered under oath by a person with knowledge from OneWest.
In the deposition, page 199, ll. 5-21, OneWest Vice-President, Ms. Johnson-
The reason, the idea is that MERS, sometimes Deutsche in the past
Fannie and Freddie would like for us to do the action in our name. That
doesn't mean that we cannot do the action in any of those four entities
names. The result, however, of doing an action in their name, when their
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guide, the investor guideline is that we not, is that if there's any loss, we
may be responsible for that loss. If any lawsuit happens, like in this case,
your lawsuit is not against Deutsche, your lawsuit is against IndyMac
Federal. It's for that reason that investors usually don't want you to do the
action in their name. It's there, it's for their protection, but it doesn't mean
that we don't, we categorically cannot. It happens because it happens in
error. It happens because someone didn‟t realize this was a Fannie Mae
loan and thought it was an IndyMac Bank …
Attached hereto as Plaintiff‟s Exhibit F are the relevant portions of Ms. Johnson-
Seck‟s deposition.
[G]enerally the investor does not want their name tied, they don't want to
be pulled into the lawsuit. Their expectation of the servicer is that they
service the loan, which includes the good and the bad, and that if for any
reason there's ever a lawsuit, then the bank would handle it.
Further, a letter dated October 15, 2009, was submitted to the Florida Supreme
Cases. Attached hereto as Plaintiff‟s Exhibit D are relevant portions of said Final
Report, pages 1-3 & 43. Attached hereto as Plaintiff‟s Exhibit E is said letter from Robert
As this Court can see, Mr. Bostrum states with clarity that FreddyMac is fully
aware that their servicers, including OneWest, do not own the underlying loans being
foreclosed upon, and confesses FreddyMac does not own them either. Mr. Bostrum
admits:
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FreddyMac does not originate loans in the primary residential mortgage
market. We fulfill our mission by purchasing mortgages in the secondary
market and securitizing them into mortgage-related securities that can be
sold to investors.
Typically, the plaintiff in a foreclosure action does not own the underlying
note or loan that is secured by the property subject to the foreclosure
proceeding. FreddyMac=s servicers initiate foreclosure actions in their
names, even though they are not the owners of the notes or loans in
question.
Please accept this letter as confirmation that the investor on your loan is
Federal Home Loan Mortgage Co. Any questions concerning your loan
should be addressed directly to IndyMac Mortgage Services, a division of
OneWest Bank, FSB, as we are responsible for the servicing of this loan.
The investor should not be contacted directly.
(Doc.1,Ex.K)
OneWest purchased Mr. McDonald=s property at public auction with a deficiency bid in
This Acredit bid” is an important part of the scheme as only the holder of the
evidence of debt, or the attorney for the holder, may submit a credit bid to the public
trustee, as only the true holder carries the loan on their books. C.R.S. '4-3-301(1)
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The holder of the evidence of debt, or the attorney for the holder, shall
submit a bid to the officer no later than twelve noon on the second
business day prior to the date of sale as provided in this section. The
holder of the evidence of debt shall submit a signed and acknowledged
bid, or the attorney for the holder shall submit a signed bid.
Anyone other than the holder of the evidence of debt, or the attorney for
the holder, must provide immediate payment to the public trustee at the
time of the sale pursuant to C.R.S. '38-37-108, which states in pertinent
part:
All monies payable to a public trustee at any foreclosure sale under the
provisions of this article or upon redemption or cure pursuant to Article 38
of this Title, shall be in the form of cash, electronic transfer to an account
of the public trustee available for such purposes, or certified check,
cashier=s check, teller=s check, or draft denominated as an official check
that is a teller=s check or a cashier=s check . . .
the true holder, and thereby acquired Mr. McDonald=s property for no consideration.
on March 25, 2010, OneWest assigned its interest in said property to FreddyMac in the
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The Law Firm of Aronowitz and Mecklenburg, LLP, is acting as a debt
collector and is attempting to collect a debt.
(Doc.1, Ex.D).
through its attorneys, sent additional correspondence to Mr. McDonald which indicated
that the Law Firm of Aronowitz and Mecklenburg, LLP, which states, in pertinent part:
Our office represents OneWest Bank, FSB, who is the servicer and holder
of the loan which was originated by IndyMac Bank, FSB.
(Doc.1, Ex.H).
Attached to the Complaint is a letter from OneWest Bank sent Mr. Donald on
February 26, 2010, which states, “This company is a debt collector and any information
(Doc.1, Ex.K).
Aany person who uses any instrumentality of interstate commerce or the mails in any
business the principal purpose of which is the collection of any debts, or who regularly
This matter would be easily resolved if OneWest was simply acting in its capacity
as a mortgage servicing company. See, Perry v. Stuart Title Co., 756 F.2d 1197 (5th
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Cir. 1985). However, the facts indicate an agency relationship between OneWest and
Aronowitz. With due respect, the scheme perpetrated upon Mr. McDonald to unlawfully
foreclose upon his house, required Aronowitz to Arepresent” OneWest while contracting
ensued:
Q: So you select them, but you don=t have any direct contract with the
attorneys? And when I say you, I=m talking about OneWest, of course.
A: That=s right.
A: Right, for the technology, yes. Use of their proprietary system, yes.
Accordingly, this evidence suggests that OneWest contracts with Lender Process
Service (“LPS”), who contracts with law firms—who are themselves, debt collectors.
Everyone involved in this enterprise is thus engaged in unfair and deceptive Adebt
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The Supreme Court of the United States has consistently held that the FDCPA=s
debt-collection activity, even when that activity consists of litigation.” Heintz v. Jenkins,
they are >debt collectors= under Fair Debt Collections Practices Act and were subject to
its provisions.” Zartman v. Shapiro and Meinholdt, 811 P.2d 409 (Colo. App. 1990).
Here, by its own admission and agency relationship with Aronowitz in the scheme,
OneWest concedes that the Colorado Consumer Protection Act (ACCPA”) was
enacted to provide a remedy against consumer fraud and that private parties can initiate
To establish a claim under CCPA, Mr. McDonald must show that OneWest:
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See, Rhino Linings U.S.A. v. Rocky Mountain Rhino Lining, Inc., 62 P.3d, 142, 146-47
(Colo. 2003).
Public Trustee and the District Court of Saguache County. The false representation had
the capacity to deceive and induce the Public Trustee and District Court Judge to act in
As was revealed by the aforementioned Ascreen shot,” OneWest knew it was not
the holder of the evidence of debt and/or the current beneficiary of the Deed of Trust,
Further, on or about February 12, 2010, the FDIC issued a press release with
regard to the sale of IndyMac FSB to OneWest Bank. The press release is easily
obtainable and readily verifiable as a matter of public record. Said press release is
As the Court can see, only A7% percent of loans OneWest services are owned by
OneWest . . . other institutions own the remaining 93% of loans OneWest services.”
OneWest claims that a little due diligence on undersigned counsel=s part would
have revealed that Mr. McDonald=s consumer protection claims cannot survive
dismissal. Conversely, Mr. McDonald asserted that a little due diligence on behalf of
OneWest and its attorneys would have disclosed all of the facts alleged in his
Complaint. In fact, Mr. McDonald contends OneWest will be hard-pressed to deny any
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H. Fraud
Mr. McDonald‟s Complaint states the main facts and incidents which constitute
the fraud perpetrated upon him. In its Motion to Dismiss, OneWest states:
Accordingly, it is obvious that OneWest continues to claim that it was the holder
of the evidence of debt and the beneficiary of the Deed of Trust. Mr. McDonald claims
are fact--intensive and should be decided by the trier-of-fact. If true, Mr. McDonald
respectfully asserts that he has met his initial burden to sufficiently pled a cause of
III. ARGUMENT
The evidence is clear that OneWest did not own Mr. McDonald=s Note and was
never the beneficiary of the Deed of Trust. Therefore, OneWest committed fraud by
demanding the Saguache County Public Trustee exercised the Power of Sale in the
Deed of Trust for their benefit. This fraud resulted in the illegal seizure of Mr.
Mr. McDonald did not refuse to pay his mortgage because servicing rights were
decision to stop making his mortgage payment. (Doc.1, ¶¶30, 31, 33, 56, 58, 59, 60, 62,
& 76).
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Additionally, Mr. McDonald did not default on his loan pursuant to UCC '3-501
OneWest. Simply put, Mr. McDonald never admitted that he was in default.
120 Hearing on October 14, 2009, in Saguache County District Court, as though fully
contained herein. At said hearing on October 14, 2009, the following colloquy ensued
The Court: Mr. McDonald, I=m not hearing one critical thing. And
that is: are you current with this note?
Mr. McDonald: I=m not current with the note, but according to the UCC, I
looked up that if I dispute the debt C
The Court: I=m not going to get into an argument with you Mr.
McDonald. It=s a straightforward question. Are you current
with this note or not?
with the simple and reasonable request made by Mr. McDonald to provide proper proof
(2) upon demand of the person to whom presentment is made, the person
making presentment must (i) exhibit the instrument (ii) give reasonable
identification and, if presentment is made on behalf of another person,
reasonable evidence of authority to do so, and (iii) sign a receipt on the
instrument for any payment made or surrender the instrument if full
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payment is made.
payment from Mr. McDonald. Accordingly, Mr. McDonald was entitled to withhold
Additionally, any objections Mr. McDonald may have had concerning the
enforceability and/or conscionability of certain terms in the original Note and Deed of
Trust would need to be addressed with the actual ANote Holder” as defined by the Note
itself, and the current beneficiary of the Deed of Trust. Arguing with an interloper, who
has not established it is the ANote Holder” under the Note, or the beneficiary of the Deed
IV. CONCLUSION
Based upon the foregoing reasons, Plaintiff, Mr. McDonald, by and through
counsel, respectfully request that Defendant OneWest Bank, FSB‟s Motion to Dismiss
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s/ Gary D. Fielder
Gary D. Fielder, #19757
LAW OFFICE OF GARY D. FIELDER
5777 Olde Wadsworth Boulevard, #R700
Arvada, CO 80002
(303) 650-1505
Fax: (303) 650-1705
e-mail: criminaldefense@fielderlaw.net
CERTIFICATE OF SERVICE
Victoria E. Edwards
AKERMAN SENTERFITT, LLP
victoria.edwards”akerman.com
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