STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF CLINTON

MOST PEOPLE
Case #: 2010-_____________
Plaintiff,
vs.
CITIMORTGAGE, INC., HUNTINGTON
NATIONAL BANK,

Defendants.

_______________________________/

COMPLAINT FOR BREACH OF CONTRACT, MISREPRESENTATION,

WRONGFUL FORECLOSURE AND EMERGENCY INJUNCTIVE RELIEF

COMES NOW PLAINTIFF, MOST PEOPLE, (hereinafter also “PEOPLE”), and for
his Complaint in support of his action to Enjoin Foreclosure and bring Affirmative Causes
of Action including Misrepresentation, and Breach of Contract states as follows:

NATURE OF ACTION

1. Plaintiff brings this action to enjoin foreclosure instituted against him by

CitiMortgage, Inc. The loan originator, Waterfield Financial, Inc. and agents acted
unlawfully in inducing Plaintiff into a loan on or about October, 2003 with a lower interest
rate and lower fees together with CitiMortgage’s and Huntington Bank’s failing to service
the loan leading to damages by Plaintiff.

2. CitiMortgage is not the holder of the note or owner of the mortgage.

CitiMortgage misrepresented facts that induced Plaintiff into (a) loan modification and (b)
short-sale proceedings in which Plaintiff now has an offer for purchase on the property that
will be imminently lost if Defendant, CitiMortgage does not honor its’ contracts to (a)
service and modify the loan, and/or (b) provide a means by which Plaintiff can short-sell
property to one or more Defendants.

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 3. Defendants’ false and deceptive trade practices, misrepresentations and
failures have and continue to cause irreparable harm to Plaintiff for which Plaintiff seeks
remedial damages and injunction to prevent Defendants from foreclosure.

PARTIES & JURISDICTION

4. The “property” is a single-family home at County, Michigan 48820.
Jurisdiction and Venue for this action are proper. The property is owned by MOST
PEOPLE and MOST PEOPLE, husband and wife.

5. Plaintiff was a resident of Clinton County and is a resident of Florida.

6. Defendant CitiMortgage, Inc. claiming an interest as a first mortgagee, is an

international mortgage and banking corporation with offices in Florida and Michigan.
Huntington National Bank, Inc. (“Huntington”) claims an interest as a second mortgagee
with offices in Columbus, Ohio.

FACTS RELATED TO ALL COUNTS

7. Plaintiff re-alleges paragraphs 1-3 and incorporates same by reference.

8. Plaintiff made all payments through 2008 and suffered family hardships.

9. Defendants and/or their predecessors and by agents offered Plaintiff a low-

cost, lower interest rate loan; however, at closing, Defendants knew Plaintiff’s wife was
disabled and pregnant and forced Plaintiff into a loan that was higher-cost and higher
interest.

10. In several attempts in late 2009, Plaintiff contacted CitiMortgage and

Huntington for loan servicing to obtain refinancing, loss mitigation, short-sale, and/or loan
modification instructions and parameters. Defendants took financial information from
Plaintiff to perform these loan servicing functions.

11. The balance on CitiMortgage’s loan is approximately $180,000. The original

purchase price of the property was approximately $250,000 and the property has a present
market value of approximately $170,000.

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 12. Plaintiff has obtained purchase offers to remedy this transaction to the
benefit of Defendant, but Defendant has been unwilling to properly work with Plaintiff as
they represented, initially, they would.

13. Such purchase possibilities are and remain at great risk because Defendants
have not worked with Plaintiff.

14. Plaintiff disagrees with the monies being charged Plaintiff by Defendants.

15. Defendants CitiMortgage and Huntington represented it had several

programs and would (a) refinance and/or modify Plaintiff’s transaction.

16. Defendants represented that Plaintiff qualified for these programs and
induced Plaintiff to apply to programs and provide financial information to Defendants.

17. In 2009, CitiMortgage offered to “refinance” and reduce the mortgage interest
rate by approximately 0.50% in exchange for Plaintiff’s payment of approximately $5,400.

18. CitiMortgage additionally sent papers and instructions to Plaintiff to obtain

financial information and also directed Plaintiff to complete on-line forms.

19. In January, 2010 Defendant, CitiMortgage, Inc. was additionally unavailable

and could not explain why CitiMortgage had not responded to my letters requesting loan
servicing or modification. At that time, representative “Shawnica” stated that Wells Fargo
was now the holder and investor of the note, and that “HAMP” was available.

20. Plaintiff completed all forms online and in writing. Plaintiff continued to
inquire by phone and in writing with Plaintiff on the status of CitiMortgage’s plans.

21. On or about various times including, but not limited to January and March,
2010, CitiMortgage, again, represented Plaintiff qualified and should wait and that the
property would certainly not be going to Foreclosure.

22. Plaintiff relied on CitiMortgage’s representations exclusively and made all

attempts to stay in contact with CitiMorgage’s Loss Mitigation Department.

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 23. On April 15, 2010, Plaintiff contacted “David” with CitiMortgage whom
confirmed CitiMortgage had Plaintiff’s paperwork and that Plaintiff “shouldn’t worry,”
because Plaintiff was “in the program and should wait for the counselor to contact Plaintff.”

24. CitiMortgage stated it received a second application on April 12, 2010 from
Plaintiff and gave the direct impression that the application was in order.

25. CitiMortgage stated loan counselor “Tim” would be contacting Plaintiff in 45-
60 days, but that CitiMortgage was “overrun with papers to process, and not to worry . . . “

26. CitiMortgage did not demand payment and suggested there was nothing
further for Plaintiff to do to obtain a loss mitigation procedure.

27. Plaintiff was ready, willing, and able to work with Defendants, make
payments, and assist Defendants; however, Defendants failed to follow through.

28. CitiMortgage later stated it would authorize $800.00 monthly payments.

29. CitiMortgage never completed the loss mitigation process, failed to have a
“loan counselor call,” and never suggested or demanded the new payment during the loss
mitigation servicing it requested. In fact

30. CitiMortgage stated it was participating in the U.S. Government’s program to

secure homes (HAMP) and Plaintiff should wait until that program contacted Plaintiff.

31. Despite repeated attempts by Plaintiff to work with Defendants, CitiMortgage

without prior notice, placed the property with, Orlans, a law firm whom has indicated it
would publish and sell the property.

32. Orlans represents it “has a sale date of August 4, 2010” further stating it can
do nothing without the approval of the CitiMortgage Loss Mitigation Department. Efforts to
contact the Loss Mitigation Department have gone unanswered.

COUNT I – WRONGFUL FORECLOSURE – LACK OF STANDING

33. Plaintiff re-alleges paragraphs 1-3, 7-32 and incorporates same by reference.

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 34. Plaintiff engaged in mortgage business with Waterfield Financial, Inc. and
Union Federal Savings Bank; however, did not engage in loan origination transactions with
CitiMortgage, Inc. or Huntington National Bank.

35. Defendants have failed to establish that they are the holder of the note or the
owner of the mortgage contract. No chain of title has been established.

36. MCL §600.3204 provides in pertinent part that (1) a party may foreclose a
mortgage by advertisement if all of the following circumstances exist:

a. A default in a condition of the mortgage has occurred, by which the power

to sell became operative. . . .

d. The party foreclosing the mortgage is either the owner of the

indebtedness or of an interest in the indebtedness secured by
the mortgage or the servicing agent of the mortgage. . . .

c. If the party foreclosing a mortgage by advertisement is not he

original mortgagee, a record chain of title shall exist PRIOR to
the date of sale . . . evidencing the assignment of the mortgage
to the party foreclosing the mortgage .

37. When the foreclosing entity fails to perform according to this statute,
Defendant commits structural errors “in the very heart of the Defendant’s ability to
foreclose by advertisement in the first instance.” Davenport vs. HSBC BANK USA, Mich
App. Ct., No. 273897 (2007 from Wayne Circuit Court).

38. Accordingly, Defendants are not eligible to foreclose the property because it
does not own the indebtedness according to the statute. Id. MCL 6003204(1)(d).

39. One whom is not the record holder of a mortgage may not foreclose, as “only
the record holder of the mortgage has the power to foreclose. Arnold v. DMR Financial
Services, Inc. 448 Mich 671, 678 (1995).

COUNT II - FAILURE TO ADHERE TO CONDITIONS PRECEDENT

40. Plaintiff re-alleges paragraphs 1-3, 7-39 and incorporates same by reference.

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 41. Defendant’s foreclosure involves a condition precedent to acceleration of the
subject mortgage and principle is the timely notice to the mortgagor that acceleration of the
principal and interest balance would be in effect.

42. Defendant has failed to provide notice to Plaintiff as to the substance of their
claim.

43. Plaintiff received no Notice of Acceleration from Defendant. Therefore,

Mortgage Acceleration is improper in this case and should be reversed.

44. Any notice Defendants may have given were waived after Defendants
continued to accept payments post-acceleration and continue to lead Plaintiff into believing
Defendant would not foreclose.

45. Additionally, Defendants have failed, as a condition precedent to Mortgage

Contract, to provide and adhere to many federal and contracted material loan servicing
obligations, pursuant to its Contract including, but not limited to, the failure of the
Defendant Mortgagee to disclose terms and conditions of the loan modifications offered.

WHEREFORE, Plaintiff respectfully request that Foreclosure be abated and stayed,

together with any other relief determined by this Court.

COUNT III – BREACH OF COMPLIANCE WITH FEDERAL RELIEF

HAMP/TARP PROGRAM

46. Plaintiff re-alleges paragraphs 1-3, 7-45 and incorporates same by reference.

47. In November, 2008, CitiMortgage, Inc. is believed to have contracted with the
U.S. Treasury in which CitiMortgage received approximately $3.5 Billion in taxpayer funds
and pledged to utilize these monies in relief of their clients’ mortgages.

48. In January and February, 2010, Citimortgage represented that Plaintiff was
eligible for and had been engaged in this program by virtue of Plaintiff’s application. On
two prior occasions, loss mitigation representatives stated Plaintiff would be put into this
program upon application for loss mitigation with CitiMortgage.

49. In February, 2010, Defendant induced Plaintiff into making a single further
payment in exchange for loss mitigation.
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 50. Plaintiff has filed a separate motion to address CitiMortgage’s non-
compliance with their commitment to honor the Treasury HAMP program.

51. Citimortgage pledged it would do all that it could to assist borrowers;

however, has not performed this function and in so doing has mislead taxpayers and
Plaintiff

WHEREFORE, Plaintiff prays this Court shall ENJOIN Defendants from all
foreclosure activities and calendar further proceedings such that Plaintiff may recover.

COUNT IV - BREACH OF CONTRACT &

BREACH OF GOOD FAITH AND FAIR DEALING

52. Plaintiff re-alleges paragraphs 1-3, 7-51 and incorporates same by reference.

53. Implied in the contract between parties to a mortgage is an obligation of

good faith and fair dealing that neither party will do anything having the effect of

destroying or injuring the rights of the other party to receive the fruits of the contract.

54. Defendants assert a mortgage contract to which the parties were bound.

55. In that contract were Defendants’ duties and provisions that included

Defendants’ responsibility to service the loans they allegedly held.

56. Defendants breached their duties in servicing the loan transaction, refusing

to properly service the transaction and in so doing, actually mislead Plaintiff severely.

57. Defendants breached their obligation of good faith by not explaining the

terms of the loss mitigation transaction and options to Plaintiff, and in not properly

explaining or servicing the provisions creating a false transaction when Plaintiff tendered

monies, information, and applications at request of Defendants and/or their predecessors.

58. Since Defendants breached their contract and obligation of good faith and

fair dealing, the contract between Plaintiff and Defendant is void and/or voidable.

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 WHEREFORE, Plaintiff respectfully requests that Defendant Foreclosure be

enjoined and stayed, together with any other relief due and owing Plaintiff as determined

by this Court.

COUNT V - ESTOPPEL/UNCLEAN HANDS

59. Defendants re-allege and incorporate paragraphs 1-3, 7-58, herein.

60. Defendants breaches and material misrepresentations have caused

irreparable harm to Plaintiff and constitute unclean hands on the part of Defendants.

61. Defendants and/or predecessors have been and/or will be unjustly enriched

through the taking of monies through alleged and proposed transactions upon which

Plaintiffs reasonably relied. Plaintiff also reasonably relied on Defendant’s servicing and

working out loan modifications with Plaintiff as have in their course of prior dealing.

62. Plaintiff may have benefitted also by Federal Loan Workout Programs such

as HAMP/TARP to which Plaintiff relied upon being able to avail themselves of.

63. Plaintiff did, in fact, reasonably rely on Plaintiff’s representations and conduct

before, during, and after the purported closing to the substantial detriment of Plaintiff.

64. Plaintiff, in fact, relied upon both sets of material representations to his

detriment—his home remains far from the value it was when the transaction began,

Plaintiff has lost contracts for sale and purchase, and now faces foreclosure.

65. Defendants represented they would foster an opportunity in which to modify

this loan transaction to which they relied, and until such time the Defendants should be

estopped from proceeding in foreclosure as a result.

WHEREFORE, Plaintiff requests this Honorable Court ENJOIN Defendants from

foreclosure together with awarding any other relief in favor of Defendants that this Court
determines just and appropriate; and respectfully request this Court provide relief in the
following manner:

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(a) Assume jurisdiction of this case;
(b) Enjoin Defendants from mortgage foreclosure during the pendency of this
action and permanently thereafter, from instituting, prosecuting or maintaining
foreclosure proceedings on Plaintiff’s property or from otherwise taking any
steps to deprive Plaintiffs of ownership of that property;
(c) Waive any Bond that may be required by Plaintiffs as Defendants’ security
interest is protected in the property;
(d) Order Defendants to engage on the loss mitigation procedures Defendants
offered such that Plaintiffs can recover;
(e) Order Defendants to Comply with federal loan modification and refinancing
standards provided for in the federal TARP/HAMP contract executed between
the United States Treasury and Plaintiff as applicable;
(f) Alternatively, Order Defendants to take all actions necessary to terminate any
security interest in Plaintiff’s property created under the transaction and that
the Court declare the security interest void, including but not limited to the
mortgage and note related to the closing Transaction herein above described;
(g) Order the return to Plaintiffs of any money or property given by Plaintiff in
expectation of loss mitigation and loan servicing in 2010, to anyone of
Defendants’ agents, including the Plaintiff, in connection with the transaction;
(h) Award actual damages in an amount to be established at trial and/or
evidentiary hearings that are now requested;
(i) Award costs and reasonable attorneys fees to Plaintiffs as applicable.
(j) Award such other and further relief as the Court determines just and proper.

RESPECTFULLY SUBMITTED,

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 __________________________________
MOST PEOPLE
121 North Street
Quincy, Florida 32351

CERTIFICATE OF SERVICE

THIS IS TO CERTIFY that a true and correct copy of the foregoing has been sent
via USPS, prepaid, to CitiMortgage, Inc. c/o Orlans, P.A. at P.O. Box 5041, Troy, Michigan
48007-5041, and by Telefax on (248) 502-1401 Attorney for Defendant, and Huntington
National Bank, N.A. at 7450 Huntington Park Drive, Columbus, Ohio 43235 this 30th day of
July, 2010.

_____________________________
MOST PEOPLE

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