The Law Offices of Ernest f .

Ciccotelli,PLLC
October12.201,0
Clerk of Court United StatesDistrict Court P.O. Box 945 Budington, VT 05402-0945

RE:

ErnestJ. Ciccotelli v. Washington Mutual, Inc., Washington Mutual Bank, Mortgage Ttust Gtoup, Inc., Donald LaPlume, andJP Morgan Chase & Co. CaseNo. 5:10-cv-00016-cr

To

'the Cletk of Court Accompanyingherewith for filing is IhePI,AINTIFF'S SECOND AMENDED

COMPI-AINT

in the above-teferenced matter.

Pleasedo not hesitate to contact this office with any questions or commeflts. Thank you.

Robet McCall,Esq. ) Christopher Roy, Esq. D. Donald LaPlume

The Aldrich House, 16 Beaver Meadow Road, No. 10, P.O. Box 562, Norwich, Vermont 05055 Tel:802.649.3400 Fax: 802.649.3401 (Admitted inVemont and New Hampshire)

UNrrnoSrarnsDrsrnrcr Counr
F'OR TITE

Drsrnrcr or VnnuoNr
J. ERNEST CICCOTELLI Plaintiff
v. WASHINGTON MUTUAL, INC., WASHINGTON MUTUAL BANK, MORTGAGE TRUST GROUP,INC., DONALD LAPLUME, J.P.MORGAN CHASE & CO., JAMES (JAMIE) DIMON, FEDERAL DEPOSIT INSURANCE COMPANY, AND SHEILA C. BAIR Defendants

) )
) ) ) ) ) ) ) ) )' ) ) ) ) Case No. 5:10-cv-00016-cr

SECOND AMENDED COMPLAINT SC, NOW COMES PIAiNtiff,ERNEST J. CICCOTELLI, PTO With hiS SECOND the AMENDED COMPLAINT, and in supportof his complaintstates following:

PABIIES. JURISDICTION AND VENUE 49 1. Plaintifl Emest J. Ciccotelli, resides Tigertown Road,in Norwich, Vermont, with his is and built in 1990;Plaintiff s residence the real two sons,in the home that he designed the property that is the subject of the Mortgage and secures Note which are the objectsof this compla[nt. WashingtonMutual Inc. ("WMI"), a corporationduly formed in the Sateof 2. Defendant, Washingtonwith a principal placeof businessat9200 OakdaleAvenue, Chatsworth, within the Stateof Vermont. California 91311, doing significant,regularbusiness WashingtonMutual Bank (singly, "WMB", and togetherwith Washington 3. Defendant, Mutual, Inc, "WaMu"), duly formed in the Sateof Washingtonwith a principal placeof California 91311, doing significant, at business 9200OakdaleAvenue,Chatsworth, regular businesswithin the Stateof Vermont.

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o'Agency"),a corporation duly formed in the 4 . Defendant,Mortgage Trust Group, Inc. (the at108 Grove Street,Worcester, with a principal placeof business Sateof Massachusetts 01605,and duly licensedto provide loan brokerageservicesin Vermont, Massachusetts licensenumber LL5313 and licensenumberMB379 is the agencyfor the Lender. 5 . Defendant,Donald LaPlume, agentand loan broker employed by the Agency Inc. (the "Agent"), with a residence 14 EastStreet,Claremont,New Hampshire03743 is the at agentfor the Lender. J.P.Morgan Chase& Co., in conjunctionwith its subsidiary, J.P.Morgan 6 . Defendant, ChaseBank, N.A., (both referred to singularly as "JPMC"), a corporation duly formed in the Stateof Delaware, with a principal place of business at270 Park Avenue,'New York, within the State Vermont. of 7, New York 1001 doing significant,relular business

7 . DefendantJames"Jamie" Dimon, Chairmanand Chief Executive Officer of Defendant

JP Morgan Chase& Co., with an office and principal place of businessat210Park Avenue,New York, New York 10017 for 8 . DefendantFederal Deposit InsuranceCorporation (FDIC), Receiy"er Defendant WashingtonMutual Bank and standingin its place in this matter, *ittt u principle place of D.C.20429. NW, Washington, Street at business 550 17th

9 . DefendantSheila C. Bair, Chairman of DefendantFDIC, with an office and principle

StreetNW, Room MB-6028, Washington,D.C. 20429. placeDf business 550 17th at for I 0. In this action Plaintiff seeksdamages violations of the Stateof Vermont's laws regarding,among others, mortgagesand notes,contracts,fraud, and larceny, said violations occurring within the Stateof Vermont, and thereforejurisdiction and venue are properly with this court.

FACTS (ln order to comply with the requirementfor pleadings to be conciseas possible, Facts as originally presentedin theprevious complaintshavebeenremoved,however,Plaintiff reserves the right to reintroduce suchfacts as have beenadducedin previous versions of this complaint.) I l. WashingtonMutual Bank, a subsidiaryof Washinglon Mutual Inc., is a debt collector 12. that serviceda note (the "Note") for b loan to refinance Plaintiff s home and a mortgage securingthe Note (singularly, the "Mort E&Ee",andtogetherwith the Note, referredto as

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the "Loan") from the Plaintiff. 13.The Lendershown on the mortgageis Long BeachMortgageCompany(LBMC), is the are or only mortgageeof record; no assignments successors shown in the record. of the 14.JP Morgan Chase& Co. purchased bankingassets WashingtonMutual Bank from the FederalDeposit InsuranceCorporation when WMB failed and was put into Receivershipby the Office of Thrift Supervision,said assetsincluded Plaintiff s mortgageand note on his property at 49 Tigertown Road, in Norwich, Vermont, on or 25, aboutSeptember 2008. 15. An investigationof the Norwich Land Recordsmadeon July 17,2008, showsthat there is no recordin the Norwich Land Recordsshowingthat either WMB or WMlwere the assigned Loan by Long BeachMongage Company,nor doesthe record show that either WMB or WMI owned or held the Loan, and that neither WMB nor WMI were the of mortgagee record. investigationof the Norwich Land Recordsmadeon August 12,2010, 16.A subsequent showsthat there is no record in the Nbrwich Land Recordsshowing that JP Morgan the thereofhasbeenassigned toan by Long Beach Chase& Co.,or any subsidiary Mortgage Company, nor doesthe record show that JPMC owns or holds the loan, nor doesthe record show that JPMC is the mortgageeof record.' to 17. Said investigation of the Norwich Land Recordsshows no other assigneeor successor Long Beach Mortgage Company. Division of 18.An investigationconductedon or aroundJuly 18, 2008, of the Corporations the Office of the Delaware Secretaryof State,where Long Beach Mortgage Company is duly incorporatedrevealsthat Long Beach Mortgage Company has been dissolved. 19. The note and mortgage which securesit are on Plaintiff s home at 49 Tigertown Road, in Norwich, Vermont (the "Property"); the Mortgage is recordedin the Norwich Land 514-533. in Records Book 774,Pages 19,2005. are 20. The Loan documents datedSeptember 21. The accountnumber for the Loan is 0696363456. startingon November 1, 2005, 22.The terms of the Note were $165,000,30 years,at7.70o/o per with an initial paymentof $1,176.38 month. 23. No escrow was withheld or required to be withheld at the time of the closing of the loan. Page3 of30 !

at 24.The Board of Listers for the Town of Norwich, Vermont assessed that time, and the to continues assess propertyat the presenttime, for $310,000. 25.In preparationfor the loan, Richard Tracy of Sharon,Vermont, the appraiserhired by the Plaintiff s home for $450,000,in July, 2005. Agent or Agency, appraised is 26. Dependingon which assessment used,Plaintiff s debt to value ratio is either 0.53 10,000: .53) or .37 (mortgage: (mortgage:$65,000/Listers'assessment:$3 I : assessment: appraiser's $450,000 .37. $165,OOO/Lender's that it is a "FIXED/ADJUSTABLE RATE NOTE". 27.The headerof the Note states 28. Not clearly apparentwithin the text of the Note is a referencethat the first interestrate every 6 monthsthereafter. occurson October I,2007,and changes adjustment the'regularpaymentmadeby io 29. OnOctober 1,2007,the rate changed 9.700o/o,and e Plaintiff was raisedto $1,402.78per month, an increas of lgYo over the original paymentamount. on 30. The index that the Loan's rate is basedon is the LIBOR for 6 month dollar deposits, a date that is 45 days prior to each scheduledrate adjustmentdate., , 31. The calculationof the adjustedrate is 4.990%addedto the index, an amount points higher than an index basedon Treasury Bills ("Tapproximately 2 to 3 percentage . Bills") used for most Adjustable Rate Mortgages (ARMs) and the ARMs that Plaintiff with. had personalexperience on of 32.If Plaintiff losesthe Propertythrough acceleration the Note and foreclosure the Mortgage,1) he will lose the equity he hasbuilt up in the Propertyover the courseof over 20 years,2) he will suffer defamationof characterthrough negative reports on his credit report, and 3) he (and his sons)will suffer severeemotionaldistressfor losing a of and possession the property- that is irreplaceable the major emotionaltouchstone his sons' lives and his own, for which he paid an unusuallyheavy price in foregoinga lucrative careerin Boston as a medical devicesengineerso that his sonscould be raised in Vermont as their mother had beenraised. (CountsI through IV have been dismissedby order of the Court. Remaining counts retain their original numbers.)

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COUNT V IN THE INDUCEMENT FRAUD 33. Plaintiff repleadsparagraphs1 through 32,above, and further states: regarding the benefits to Plaintiff of the 34. Agent made misleading and false statements Loan on numerousoccasions. minimizing the difficulty of refinancing the 35. Agent made false or misleading statements Loan when its interest rate was adjustedto a level that would guaranteethat monthly paymentswould become onerouson numerousoccasions. regarding the manner in which the Loan 36. Agent made false or misleading statements relationshipoh numerou, o.rarionr. would benefit Agent's and Plaintiff s business 37. Agentwithheld material information rdgardingthe index'upoir which the interestrate of the Loan is based. 38. Agent withheld material information regardingthe securitization and diffrculties that would causePlaintiff in his performanceof the Loan. in 39. Agent made said false or misleading Statements order to induce,Plaintiff into agreeing to the Loan, despitethe higher interestrate on the Loan than the piior mortgagesthat Plaintiff was paying at the time he applied for the Loan. had 40. Plaintiff relied on Agent's statements: Agent not madesaid false or misleading and had Agent provided said material information, Plaintiff would not have statements, agreedto undertakeperformanceon the Loan, which, 41. But for being induced to agreeto the Loan, Plaintiff s Property would not now be in jeopardyof foreclosure, and Plaintiff would not be at risk of financial loss therefrom. they WaMu and JPMC vicariouslyliable for Agent's actionsbecause 42. Defendants controlledAgent's actionsat the inceptionand closing of the Loan, or they continueto enjoy the benefits of the Loan, or both. 43. Defendants' fraud has made Plaintiffls credit history worse, resulting in higher expenses for plaintiff, has causedPlaintiff seriousemotional distress,causeddifficulty for his businessand loss of income, and has threatenedPlaintiff s continued ownership of his homeand the equity he has in it.

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COUNT VI FRAUD PURSUANT TO 9 V.S.A. Chapter 63: Consumer Fraud 44. Plaintiff repleadsparagraphs1 through 43, above, and further states: 45. Mortgageeof record is Long BeachMortgageCompany. 46. Mortgageeof record is no longer an active corporation and has been dissolved. 47.Lender beganto collect monthly MortgagepaymentsbeginningOctober I,2005. 48. Lenderis not mortgageeof record. there is no 49.Lender's collection of paymentson the Mortgage and Note is fraud, because . record,notice or other evidencethat the Mortgage was assignedor transferredto Lender from Long BeachMortgageCompany,and Lenderhasno right to collect said payments. they 50. Defendants' WaMu and JPMC claims io be the mortgagebare fraudulent because themselues Plaintiff to to haveknowingly, deliberately,and maliciouslymisrepresented be the mortgageefor the Mortgage in order to obtain the monthly mortgagepaymentsdue the true mortgagee,if any. 51. DefendantsWaMu and JPMC have committed ongoing fraud ag4instPlaintiff because the wrongfully claims to be entitled to Plaintiff s mortgagepayments. 52. DefendantsWaMu and JPMC did not originate the Loan, they have not paid the owners of the Loan to take title to the Mortgage, and do not make paymentsfrom Plaintiff s paymentsto the owners of the Mortgage. 53. JPMC is defraudingnot only Plaintiff, but also the owners,if they still exist, of the Mortgage. 54. Defendantshave failed to identifu the owners of the mortgage,and attemptedto claim ownership of the mortgagethemselves. so or 55. Afiemptsby WaMu, JPMC or FDIC to recreate relocateso-calledlost documents as to supporttheir contention that JPMC is the current legal owner of the Note and Mortgage is fraud. 56. Defendants' fraud is causedand continuesto causePlaintiff to incorrectly appearto be in default on paymentsof the actual owners of the Loan. 57. Defendants' fraud will result in the loss of PlaintifPs home and equity through or foreclosure other actionsif Defendant'sate not enjoinedfrom action of this or similar natureasainstPlaintiff. Page6 of30

COUNT VII BREACH OF CONTRACT 58. Plaintiff repleadsparagraphs1 through 57, above, and further states: 59. The Lender deliberately precipitatedthe default for the Plaintiff when it had the option to avoid doing so, not as a meansto protect its "investment" in the Loan, but rather merely to maximize its profit, by shorteningthe time period during which Plaintiff can repay the Loan than the Lender had agreedto in the Note and Mortgage. 6O..TheLender is forcing Plaintiff s default so as to provide the Lender a pretext for acceleratingthe Loan and initiating a foreclosureon the Proptirty. 61. Defendanth4s failed to perform by deliberaiely, knowingly, and maliciously violating material terms of the Agreement, including, among others,the repaymentperiod of the Mortgage, which is for thirty (30) years. 62. Defendants' breach of contract has made Plaintiff s credit history worse, resulting in for higher expenses Plaintiff, has caus6d'Plaintiff seriousemotional distrgss,caused difficulty for his businessand loss of income, and has threatenedPlaintiff s continued ownership of his home and the equity he has in it.

COUNT VIII INTERFERENCE WITH CONTRACTUAL OBLIGATIONS TORTIOUS 63. Plaintiff repleadsparagraphs1 through 62, above,and further states: 64.Inaddition to deliberately, knowingly, and maliciously interfering with Plaintiff s contractualobligation under the Mortgage and the Note, Defendantshave also
..

deliberately,knowingly, and maliciously interfered with Plaintiff s performanceon other contractualobli gations. 65. Defendantshave interfered with PlaintifPs other contractualobligations by increasingthe paymentsrequired from Plaintiff to Defendants,thereby reducing the amount of funds Plaintiff has available for payment of the other contractualobligations, causingPlaintiff to be in arrearson the debts relatedto the other contractualobligations and delinquent on thoseobligations. 66. Defendants' interferencewith Plaintiff s contractualrelations has made Plaintiffls credit Pase7 of30

for history worse, resulting in higher expenses Plaintiff, has causedPlaintiff serious and loss of income,and has causeddifficulty for his business emotionaldistress, threatenedPlaintiffls continued ownership of his home and the equity he has in it.

COUNT IX CONSUMER PROTECTION PURSUANT TO 8 V.S.A. 510404 67. Plaintiff repleadsparagraphs1 through 66, above, and funher states: an 68. Lenderhas established escrowaccountincidentto the Note and Mortgagefor the Taxes. purposeof paying ProPertY 69. Lender requires Plaintiff to deposit into.said escrow account a greatersum than is sufficient to PaYtaxes. 70. The greatersum required by Lender has causedPlaintiff to be unable to make the monthly Mortgage paymentsin a timely manner,providing Lender with a pretext to forecloseon PlaintifPs Property. has madePlaintiff s crbdit history worse, 71. The greatersum requiredby Defendantsi Plaintiff seriousemotionaldistress, for resultingin higher expenses Plaintiff, hascaused Plaintiff s and loss of income,and hasthreatened difficulty for his business caused continuedownershipof his home and the equity he has in it.

COUNT X CONSUMER FRAUD PURSUANT TO 9 V.S.A. $2453 and $2457 I 1 T2.Plaintiffrepleadsparagraphs through 71, andfurther states: _^that Plaintiff would be able to refinance the Loan l:. Defendantsmade repeatedassertions when it was scheduledfor an interestrate increase. that the Loan would benefit Plaintiff and his 74. Defendantsmade repeatedassertions relationshipwith the Agent. business in 75. Plaintiff relied on Defendant'sassertions his decisionto agreeto the Loan. 76. Moreover, Defendantshave failed to provide servicesrelated to the Loan in the manner and of the nature offered, and have refusedto provide servicesrelated to the Loan in with other terms and conditions of the offer. accordance

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TT.Defendantsintendedto violate ConsumerFraud laws of Vermont. 78. Defendants' violation of the ConsumerFraud law if Vermont has made Plaintiff s credit for history worse, resulting in higher expenses Plaintiff, has causedPlaintiff serious emotional distress,causeddifficulty for his businessand loss of income, and has threatenedPlaintiff s continued ownership of his home and the equity he has in it.

COUNT XI UNCONSCIONABLECONTRACT PURSUANTTO 9A V.S.A.52-302 and 1 paragraphs through78, above, furtfer $ates: 79.Plaintiff restates its precipitated the Lenderunderthe pretextof protecting by 80.Throughforeclosure into right incorpirrated the of throughthe exercise a redundant created "investments" in the saidright beingonly to create pretextfor foreclosure the first place. Mortgage, the g1.Defendants thanPlaintiff to determine effectsof wereandarein far betterpositions to ygt and the economy marketon Plaintiff s ability to makepayments, they chose draft the that documents disregarded potentialdifficultiesfor Plaintiff that Note andMortgage would havebeen in person with experience draftingsuchdocuments anyreasonable to familiarwith, therebydenyingPlaintiff the ability to continue performhis obligations beyondhis control in whenchanges circumstances undertheNote andMortgage occurred. wereawareof the smallsizeof the Loanrelativeto the high valueof the 82.Defendants in of propertysecuring Loan andthe ease with which they coulddispose the Property the
the event of their own need to disposeof it. 83. Defendantsdid not negotiateor bargain with Plaintiff during the application and agreementprocessfor the Loan, but rather, Defendantsdictated to Plaintiff the conditions he had to adhereto, without negotiation of any sort betweenthe parties' g4. Defendantsdrafted the Note and Mortgage with no negotiation, bargaining, or input from Plaintiff. g5. Defendantsdrafted the Note and Mortgage to maximizetheir own benefits from the Loan while eliminating all risk to themselves,while maximizing Plaintiff s risks of loss from the Loan without providing any proportionatebenefitJo Plaintiff. Page9 of30

, ,l

86. Defendantsdrafted the Note and Mortgage to facilitate the fabrication of the pretext required for foreclosureon the Property. to necessary produce the circumstances 87. Defendantsdrafted the Note and Mortgage in such a manner as to allow them to avoid on having to investigatethe actual real estatetax consequences the Property. 88. Defendantsdrafted the Note and Mortgage in such a manner to avoid investigating the mannerthat the Town of Norwich enforcesor choosesnot to enforce its property tax enforcementprerogatives. 89. Defendantsdeliberately, knowingly, and maliciously are engaging in actions so as to , deprive Plaintiff of the value of his Property." madeby Defendants.particularly Agbnt, 90. Combined with promises and statements inducing Plaintiff to acceptthe Note arrdMo.tgage, and combined with Plaintiff s that if he did not acceptthe Mortgageand Note, and dii'not acceptthe understanding Loan, that he would be unable to obtain financing on his home for an extendedperiod of time, Plaintiff believed that he had no altemative but to agreeto and acceptthe Loan. contracthasmadePtaintiff s creditluptory worse,resulting 91. Defendants'unconscionable in higher expensesfor Plaintiff, has causedPlaintiff seriousemotional distress,caused difficulty for his businessand loss of income, and has threatenedPlaintiff s continued ownership of his home and the equity he has in it.

COUNT XII VIOLATION OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING 92. Plaintiffrestates paragraphs1 through 91, above, and further states: 93. Defendantshave deliberately, willfully, and maliciously resistedany and all attemptsby Plaintiff to modify the Loan in order that he could perform his obligations, and that had occurred in his life circumstances the accommodate substantialnecessitous unexpectedly. 94. Defendantshave deliberately, willfully, and maliciously formed a corporatestructure designedto resist or eliminate any and all attemptsat meaningful communication betweencustomers,specifically Plaintiff, and the Defendants. 95. In November,2007, during the time that Plaintiff attemptedto initiate modification of the never informed Plaintiff that WaMu had paid off Loan, WaMu's representatives

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plaintiff s property tax bill, and nor that WaMu had changedthe balancethat he owed them. 96. On January31, 2008, Plaintiff receivedhis IRS form 1098 for 2001 from the Lender, .66 in showingthat he had paid $13,563.18 intereston the loan, and $7,877 in taxes. 97.Thetax paymentswere for delinquenttaxes that Plaintiff owed the Town of Norwich, Vermont for the one-half the tax year 2005-2006,and for tax year 2006-2007. 9g. plaintiff s taxes for tax year 2007-2008had been paid in full at the time that the Lender had investigatedthe town's tax rolls, and when it paid the back taxes. Defendantshave ignored the fact that the town did not exerciseits tax salerights, nor threatento exercise its tax sale rights, and Defendantsrefusedto inquire into why-that may have ben, the because Defendantswanted to propigate a pretext thai thei were innocently exercisinga right it had written into the contractbetweenPlaintiff as bbrrower and itself in order to protect its investment,which pretext would have been negatedhad Defendants allowed evidenceto be developedthat would show that it knew that its investmentwas protectedby Vermont law and the faci that the Loan was for an anount far lower than a market price for the Property would fetch; in other *ords, Defendantswere reasonable engagingin the bad faith refuge of corporatescoundrels that is, plausible deniability of a nefarious motive for its actions. 99. Defendantsinstituted an escrow account,however, the escrow account statementstates of 34, of that the shortage escrowis $ 13,723. an amountfar in excess any yearly tax bill applied to Plaintiff s property - almost three time as high as Plaintiff s tax bill for any one year. 100. The latesttax bill appliedto the Property,for the fiscal year July 1,2007 through which was paid in full by Plaintiff June30, 2008,issuedon July 12,2007,is $5,066.42, and the Stateof Vermont under the income sensitivity provisions of Vermont tax law, by February 15, 2008, the due date for the final payment of that fiscal year. 101. over a that Plaintiff pay the amountof 513,723.34 have demanded Defendants payments unreasonablyshort period of time, and has given Plaintiff the "option" to make over the course of, at first, 12 months starting April 1, 2008, and subsequently,36 months (the de minimus changereferred to elsewherein this complaint), or pay the amount in full on that date. P a g e1 1o f 3 0

102.

The monthly payments,including the escrow and shortfall, have risen to that Plaintiff itself,from the $1,176.38 $2.ggL40, from $I,402.78,whichis an increase, was originally paying and that Plaintiff believed that he could pay on a long term monthly basis, and was the basis on his decisionto agreeto the Loan in the first place.

103.

On June29,z}}},Plaintiff

the contacted WaMu to cancela previouslyarranged

electronic withdrawal from Plaintiff s bank accountbecausePlaintiff knew the account would have insuffrcient funds to make the payment on June 30, and received a confirming the cancellation of the withdrawal, and confirmation number 1565341350, during the samecall informed the WaMu that Plaintiff would be making"thepayment on bccount. June30, 2008, with the paymentbeing drawn on an alternate 104. the WaMu by telephoneand-made payment On June30, 2008, Plaintiff contacted promised the day before from an alternateaccount,and received confiimation number confirming the payment. 1565346532 105. On or aroundJuly 3, 2008, Plaintiff learnedwhile viewing his accountvia internet, that despitethe confirmed cancellation,WaMu had atter4ptedto withdraw the as paymenton July 1, 2008,but the paymentwas not honoredbecause, Plaintiff cancelled had informed WaMu in advance,there were insufficient funds in the accountto make the withdrawal from; however, the attemptedwithdrawal causednumerouschecksthat for which there had been sufficient funds to cover to also not be honored, causingnumerous

retumed check fees. 106. June On or aroundJuly 8, 2008, Plaintiff receiveda "Home Loan Statement 200g" from WaMu, dated June 30, 2008, which purported to show account activity since June27,2008, and which implied that WaMu had receivedthe June30 paymentmade from the alternateaccount, and that the total amount due on July 1' 2008 would be $4,430.09. rc1. On or around July 9, 2008, without authority, WaMu withdrew or attemptedto June withdraw for a secondtime from Plaintifls bank account,the payment cancelledon and 29, describedabove, said withdrawal causingagain anothertidal wave of overdrafts fees. 10g. back The WaMu could have restraineditself from exercising its rights to pay Plaintiff s taxes or to demand immediate repaymentand establishmentof an escrow account, Page12 of30

but it did not. 109. The WaMu has not actedin good faith, becauseit deliberately and knowingly did not examine the Plaintiff s record in total, including Plaintiff s record of tax payments, and has deliberately and knowingly blinded itself to the fact that at no time during the courseof Plaintiff s24 yearhistory as a mortgagor, has his real property ever been threatenedwith a tax sale or other similar financial distress,nor, in fact, did the WaMu the bother to recognizethat there had beenno threatsby the town of a tax sale,because finance departmentof the town was aware of Plaintiff s history of always paying his . property tax bill, not necessarilyon time, but always in full, and it was also aware of the financial difficulties Plaintiff faced due to his prolonged recuferation from the earlierin ihis complaint. complicationsof the kidney donationddscribed l l0. Had the WaMu examinedPlaintiff s recordin total, the WaMu-would then have come to the reasonableconclusion, basedon Plaintiff s history, that he posesno risk to o'investment"in Plaintiff s real propertY,and further the WaMu would have the WaMu's concludedthat it had no needto assertits;ight to pay the back taxqs, demand reimbursementfor the payments,and demandescrow payments. 111. and knowingly chosento compoundand Insteadthe WaMu has deliberately any diffrculty Plaintiff could possibly have with paymentson the Note and exacerbate Mortgage, by adding the taxes and escrowto Plaintiff s monthly payments,essentially doubling or tripling his monthly payments,with only 6 weeks notice. lI2, to The payment of the taxes occurredimmediately subsequent the mortgagebeing it upwardsmerely because was the WaMu's arbitrarily and capriciouslyadjusted there was any necessityrelated to the actual prerogativeto do so, rather than because of circumstances the Loan for the WaMu to do so. 113. Defendants,as well as Plaintiff, are obligated to observethe covenantof good faith and fair dealing implied in every contract so as to insure that both will act with faithfulnessto an agreedcommon purpose- that of Defendantsmaking the Loan to plaintiff, and of Plaintiff repaying the Loan in reasonablysized installments over the co'rse of 30 years - and consistencywith the justified expectationsof each of the parties. (See paragraph2l.)

,, 2008VT 40 at

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ll4.

Defendantshave interfered with or failed to cooperatewith Plaintiff s performance,thus they have acted in bad faith. (SeeCentury Partners.LP v. Lesser LTD., 2008 VT 40 atparagtaph26') GoldsmithEnterprises. actual malice toward Plaintiff , shown by conduct Defendantshas demonstrated

115.

rude and harassingbehavior when manifesting ill will of the Defendants' representatives communicating with Plaintiff, evidencing oppressionby unilaterally taking actions that a person would know were unable to be defendedagainstby Plaintiff, and reasonable showing a recklessand wanton disregardof Plaintiff s rights in this matter, even though , Plaintiff alerted Lender to the needto modify the Loan as early as May, 2007. (See 4.) Monahanv. GMAC Mortgagecorp. ,2005 vT 110 at paragraph 116. ciriumstancesof Plaintiff. (See of have taken advantage necessitous Defendants ' v. Monahan GMAC Mortgagecorp.,2005vT 110 at paragraph44.) unauthorizedwithdrawals from Defendantsattemptedto make two (2) separate ll7. plaintiffs checking account, despitebeing notified that they were not permitted to make t suchwithdrawals, and despiteDefendhnts' acknowledgementof notice that they were not permitted to make such withdrawals. l 18. The actions taken by Defendantshave insteadshown their unwillingness to

covenantofgood faith and fair dealing. observethe above-described 119. The actions taken by Defendantshave underminedthe Plaintiff s rights to receive the benefit of the agreementto take the Loan, while on the other hand, their actshave the enhanced Defendants' own benefits. 120. Defendantshave engagedin conduct that has the characterof outragefrequently with crime. (SeeMonahanv. GMAC MortgageCorp.,2005 VT 110 at associated 63') paragraPh I2l. Becauseof Defendants' violation of the implied warranty of good faith and fair to dealing, this Honorable Court is requested find that the contract betweenPlaintiffs and any of the Defendantsis void and has no force in law, and that Defendantsshould be enjoined from enforcing any rights under the contract'

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COUNT XIII VIOLATION OF IMPLIED COVENANT NOT TO INTERFERE WITH OTHER PARTY'S PERFORMANCE 122. 123. Plaintiff repleadsparagraphsI through 121,.above,and further states: Defendantshave interfered with or failed to cooperatewith Plaintiff in his Defendantshave a duty to avoid interferencewith Plaintiff s performanceunder

performanceof his obligations under the contract. lZ4.

the Loan contract. Defendantsalso have a duty to mitigate damagesdue to alleged non-performance 125. ' of another party, but Defendantshave failed fo take any action or to permit Plaintiff to take any action that could reasonablybe expectedto resolve the problems causedby Lender's increasesin monthly Mortgage paymentsand other acts describedabove. Lender's fractured corporatestructurepreventedand continuesto prevent Plaintiff 126.
,

from taking any actions to mitigate the results of the actions of Defendants,and said fractured corporate structurewas deliberately,knowingly and maliciously designedand specificallyPlaintiff'from being ableto Defendants'customeis, put in to discourage resolveor mitigate problems with loans madeby T'ender'particularly the Loan' I27. to Therefore, this Honorable Court is requested issue an order that the contract, specifically the Mortgage and Note, are unenforceableand have no force in law.

COUNT XIV UNJUST ENRICHMENT l2B. I2g. Plaintiff restatesparagraphs1 through 127, above,and further states: Defendantshave deliberately,knowingly, and maliciously interfered with

plaintiff s obligation to perform under the contract comprised of the Note and Mortgage, and in doing so have eliminated all risks to themselves,and have transferredall risks of the Note and Mortgage to Plaintiff. 130. Defendantshave been unjustly enrichedif they proceedwith accelerationand payments foreclosureon the property becauseLender will have obtained fees and interest for in the amount of at least $361315.00 less than32 months of their own performance before they beganto interfere with Plaintiff s performance,without providing Plaintiff

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the benefit of a loan with the repaymentterm of 30 years (360 months) as agreedupon in the Note and Mortgage. 131. they have Defendantsstandto benefit unjustly from their actions and the damages Plaintiff and to benefit from their actions is Defendants' failure to compensate causedto Plaintiff, all at the expenseand to the detriment of Plaintiff. 132.

inequitableand unlawful. 133. Therefore, this Honorable Court is requestedto find that although no contract exists betweenPlaintiff and Defendant,that Defendantshave been unjustly enrichedby

. Plaintiff s paYmentsto date.

LoNcoING FRAUD
134. 135.

CdUNT XV

:'

Plaintiff repleadsstatements1 through 133, above, and further states:

with Defendant WaMu, WaMu told During at least two telephoneconversations plaintiff that WaMu had not initiated the property tax delinquen:{:vestigation, and that the Town of Norwich Finance Office had sent WaMu the tax delinquency information of its own volition, and without any prompting or inquiry from Lender. The Town of Norwich did not sendthe tax delinquency information of its own

136.

volition, and in fact, WaMu had initiated the inquiry into Plaintiff s tax statusand requestedPlaintiff s tax statusinformation from the Town without any input from the Town of Norwich. I37. the WaMu initiated the inquiry and requested information at the sametime as plaintiff s monthly paymentsincreasedabout 20o/odueto an adjustableinterestrate increase. l3g. on WaMu deliberately,knowingly, and maliciously made false statements at least occasionsin order to mislead Plaintiff regarding the initiation of the tax two separate his inquiry so as to deflect responsibility for the difficulty Plaintiff encounteredmaking monthly Mortgage paymentsonto athird party, and to make it difficult if not impossible for plaintiff to resolve the problems causedby the precipitous increasein his monthly MortgagePaYments.

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COUNT XVI DEFAMATION PURSUANT TO 8 V.S.A. 54724 13g. 140. Plaintiff repleadsparagraphs1 through 138, above, and further states: Defendantshave engagedin making, publishing, disseminating,or circulating,

directly or indirectly, or encouragingthe making, publishing, disseminating,or circulating, oral or written statementwhich is false or maliciously critical of or derogatoryto the financial condition of Plaintiff and is calculatedto injure Plaintiff, to wit: Defendantshave deliberately,knowingly, and maliciously caused,or permitted to be ' to caused,damageto Plaintiff s reputation,and.damage Plaintiffls credit"history regarding mortgage PaYments. l4l. Damageto Plaintiff s credit history will result in economicloss due to loss of opportunity to borrow necessalyfunds for businessand personalpurposes. l4Z. Plaintiff for the aforesaiddamageto his credit Defendant's failure to compensate history is inequitable and in violation of Vermont Law, and has causedPlaintiff severe economicloss,personallyand professiondlly. COUNT XVII UNCONSCIONABLE CONTRACT AS THE PRODUCT OF UNFAIR DEALINGS Plaintiff repleadsparagraphs1 through 142, above,and further states: 143. 144. The manner by which Plaintiff s eligibility for the Loan, and eligibility for modification or refinancing of the Loan by Lender is determinedis discriminatory and arbitrary the Loan is predatory and made in bad faith and unfair. 145. Defendants' manner of determining Plaintiffls eligibility for the Loan and for modification or refinancing of the Loan by Lender is basedon arbitrary and capricious and provide Lender with no that bear little relation to Plaintiff s circumstances, standards knowledge of Plaintiff s actual eligibility. 146. Defendants' deliberate,knowing, and malicious persistencein using said arbitrary provides Defendantswith speciousargumentsagainstassisting and capricious standards Defendants' bad faith plaintiff in avoiding foreclosureon his Property, and demonstrates and unfair dealing with Plaintiff.

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COUNT XVIII ADHESION CONTRACT 147. 148. Plaintiff restatesparagraphs1 through 146 above,and further states: In the agreementthat was drafted by Defendantswith no negotiation,bargaining,

or other input from Plaintiff, Defendantssuffer no detriment or risk, by including contingenciesover which only they had control, such as paying delinquent taxes, and which enablethem to obtain the entire amount of the Loan with no risk to themselves, that the Defendantswould suffer sincethe Loan to value ratio was so low as to guarantee no risk should the Plaintiff default on the Loan. l4g. 150. 151. The Loan was offered to Plaintiff strictly on a "take it or leave it" basis. Plaintiff was not afforded realistic or reasonableopportunity to bargain for Loan. he Plaintiff was unableto obtain the lban services Under thosecircumstances,

actually required and continuesto require. 152. The Loan as drafted by the Defendantsis excessiveand onerous,deliberately and

to maliciously designedand guaranteed be defaultedupon, and unconscionable.

COUNT XIX CORPORATE CHARTER EXPIRED, NO MORTGAGEE OF MORTGAGEE RECORD, MORTGAGE MAY BE DISCHARGED PURSUANT TO 27 V.S.A. $469 153. 154. 155. 156. Plaintiff repleadsparagraphs1 through I52, above,and further states: of The only mortgagee recordin Long BeachMortgagecompany. The chain of title regardingthe mortgagein this matter is irretrievably broken. on An investigationconducted or aroundJuly 18, 2008, of the Corporations

Division of the Office of the Delaware Secretaryof State,where Long Beach Mortgage Company was duly incorporatedrevealsthat Long Beach Mortgage Company has been dissolved. 157. The mortgageeand lenderof recordwas Long BeachMortgageCompany,which was extinguished in2006 when it was merged with Washington Mutual Bank. Washington Mutual Bank did not record the assignmentor transfer of the 158. mortgageto itself, thus there is no record of Washington Mutual Bank as the mortgagee for the loan.

Page18 of30

159.

the Washington Mutual Bank was not the mortgageebecause mortgage and loan

were divided up among numerousinvestors,none of whom can be identified, and none of whom have recordedtheir interest in the mortgage.

160.

25,2008, and ceased exist. to WashingtonMutual Bank failed on September worth $307 Billion dollars, were transferred Washington Mutual Bank's assets,

t6r.

price of $1.88 Billion Dollars, or for to J.P.Morgan Chaseand Companyfor the purchase an amountof money approximatelyequalto 6/l0ths of one (1) cent on the dollar of the by value of the assets, the FederalDeposit InsuranceCorporation, which purchaseprice was not paid to the investorswho owned the mortgage,meaning that the portgage was *as not transferredand the not purchasedfrom its owners, and thus.title to the mortga.se chain of title was broken. 162. The investors who had interest in the mortgage and loan lost all-benefitsof their

interestin the mortgageand loan when WashingtonMutual Bank failed.

t63.

to Pursuant 27 V.S.A.8469:

When it appearsfrom the record of a mortgageon real estatethat such mortgage is undischarged,and the mortgageenamedtherein, or the assigneeof such mortgage,is a private corporation whose charterhas expired by it own limitation, or has been dissolved by operation of law, forfeiture, or for any other reason,a complaint may be brought to the presidingjudge of the superior court of the county wherein such mortgage is recorded and, after such hearing as said presidingjudge may direct, if he is satisfiedthat the conditions have been complied with, and have no force in law, and is further satisfiedthat there is no person within the statehaving authority to dischargesuch mortgage,he may direct an order discharging such mortgage. Such proceedingsshall be without taxation of costsexcept that the moving party shall bear the costs of such notice as said presiding judge may order. 164. Therefore,the conditionsof the mortgagehave beencomplied with, insofar as is

possible,since the mortgageesno longer exist and their interestswere not properly and transferredto legitimate successors, thus have no force in law. 165. contract,and and the Moreover,Because Loan is unconscionable an adhesion

becauseLender has interfered with Plaintiff s performanceon the Loan, and for any and

19 Pase of30

all other reasonsstatedabove,the Loan is unenforceableand void, and therefore,the conditions of the mortgagehave been complied with, and have no force in law. 166. No personwithin the stateof Vermont is able to prove that they legitimately or

properly have the authority to dischargethb mortgage. 167. to Therefore, this Honorable Court is requested direct an order discharging

Plaintiff s mortgage.

COUNT XX VIOLATES THE FIRST AMENDMENT 12 U.S.C. $ 1323 f68. 169. Plaintiff repleadsparagraphs1 through 167, above,and further sdates: unconstiiutionallydeprivesPlaintiff 12 U.S.C. $1823,and in particular$1823(e),

under the statute,the of his first amendmentrights to free association,because or governmentmay force Plaintiff to associate enter into a contract with an entity which plaintiff has never had a desire,intent, or inclination to associateor enter into a contract with, said entity in this casebeing JP Morgan Chaseand Co (JPMC). I70. right protectedbythe First Amendment. Freedomof Associationis a fundamental that this HonorableCourt find that 12 U.S.C. $ 1823 Therefore,Plaintiff requests is unconstitutional, and that Plaintiff s casemay not be dismissedon groundsbasedon said statute.

NAACP v. Alabama,357 U.S. 449 (1958). See l7l.

COUNT XXI 12 U.S.C. $ 1S23VIOLATES THE FIFTH AMENDMENT 172. I73. Plaintiff repleadsparagraphs1 through 171, above, and further states: The statuteunconstitutionally deprivesPlaintiff of his property rights under Amendment V, becauseit permits the governmentto give the right to forecloseon his property and deprive him of his property to JPMC, knowing that JPMC will, or is likely to, exerciseforeclosureprerogatives,for the purposeof stabilizing the national economy among other things, which constitutesa public use of Plaintiff s property for which Plaintiff s property is taken without just compensation' 174. The Fifth Amendment clearly states,in part: "nor shall private property be taken

for public use without just compensation." Pase20 of 30

175.

that this HonorableCourt find that 12 U.S.C. $ 1823 Therefore,Plaintiff requests

is unconstitutional, and that Plaintifls casemay not be dismissedon groundsbasedon said statute.

COUNT XXII POWERS VTOLATESSEPARATTONOF 12 U.S.C.S 1323 OF THE BRANCHES OF GOVERNMENT 176.
I77.

and paragraphs through175,above, furtherstates: 1 Plaintiffrepleads

The presentsuit was originally filed on or about July 29,2008, and was clearly in

the handsof the judiciary well before the fail'ure of WMB, itsseizure by'OTS, and saleto er JPMC by FDIC on SePtemb 25,2008' l7g. The statuteunconstitutionally causesa breachof the Constitutibnal barriers it betweenthe govemmental branches,because permits the Executive Branch to intrude on the Constitutional prerogativesof the Judicial Branch: the statutepermits the FDIC, a part of the Executive Branch, to extinguish a plaintiff s rights, specifically those of the judicial review of his case, plaintiff, to be heard in a court of law, to sue,and to access after plaintiff has filed suit againsta bank, without due process(in fact, without notice) and without review of his claims by a court of proper jurisdiction. l7g. that this HonorableCourt find that 12 U.S.C. $ 1823 Therefore,Plaintiff requests is unconstitutional, and that Plaintiff s casecannot be dismissedon groundsbasedon said statute.

COUNT XXIil 12U.S.C.$IS23VIOLATESDUEPROCESSGUARANTEES 180. l8l. l79,above, and further states: paragraphslthrough Plaintiff repleads The statuteis not carefully tailored to achievethe goals of the government,and it is not the least restrictive or least harmful meansto achieve such goals, sincethe statuteis basedon circumstancesand conditions that existed in 1950, when the statutewas passed, and which no longer exist, or which have changedmaterially, substantially and dramatically in the 60 years sincethe statutewas passed' IB2. The US SupremeCourt hasheld that "The pu{posebehind section1823(e), to in enacted 1950,is to enablethe FDIC, in decidinghow to proceedwith respect a

21 Page of30

troubled bank, to make a quick and certain inventory of the bank's assets. It can do this that may impair the value of those assets." only if it can disregard secretoral agreements of Cir. 1987)"This exercise FederalDepositIns. Corp. v. O'Neil,809 F.2d 350, 353 17th judgment requires [the] FDIC to measureits loss under the insured deposit payoff alternativeagainstthe loss under a purchaseand assumptiontransaction. To calculate possible loss under the purchaseand assumptiontransactionas opposedto a payoff of must be evaluatedo determinethe price to insured deposits,all of the failed banks assets be paid by the assumingbank for acceptableassets. The processof evaluation must be facilitatesthis quickly...The specialprotectiongiven FDIC is Sec. 1823(e) undertaken process allowing FDIC to rely on the books and recordsof the bank in deciding by whether to undertakea purchaseand assumptiontransactibnand in buying assets v. to uracceptable the assumingbank." Federal DepositInsuranceCorp". Merchants NationalBank of Mobile, 725F.2'd634m633 (1lth Cir. 1984)' 183. the have obsoleted needfor the Computersand other technologyand practices provisionsof $ 1823(e),sinceit is now feasiblefor a bank and FDIg to evaluateassets and claims related to any individual accountor asset,among other things, as evidenced by the fact that WaMu and the Delaware District Bankruptcy Court in the bankruptcy proceedingsthere, both institutions, which have thousandsof claimants and claims to deal with, were able to locate Plaintiff, and specifically contact and communicatewith him, and to discussin detail Plaintiff s claims. 184. Therefore FDIC and assumingbanks no longer require the convenienceof

avoiding due diligence and of avoiding the requirementsofjustice and equity for borrowers and claimant, specifically including Plaintiff' with related claims including assets a. The fact the FDIC and JPMC did not separate plaintiff s, and insteadsimply lumpedthem all together,and then cited $1823(e)as the meansto defeat the claims, while unjustly enriching JPMC, should at least raise suspicionsthat there was improper, fraudulent, or even criminal cooperation,or collusion,betweenFDIC and JPMC. I 85. ln fact, the statutepermits a governmentagency,specifically FDIC, to unilaterally, and peremptorily contribute the private property of one person, specifically the Plaintiff here, to anotherprivate entity, in this caseJPMC, thereby unjustly and

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inequitably enriching said entity while depriving Plaintiff of his Constitutional, property, taking of facilitatesthe unconstitutional and other rights. Thus, 12 U.S.C. $1S23(e) private property, through the forced transferenceof money from Plaintiff to JPMC. 186. Therefore,this HonorableCourt must find that 12 U.S.C. $1823(e)deprives

Plaintiff of his Constitutional and Civil rights, thus the statuteis unconstitutional and invalid.

COUNT XXIV UNJUST ENRICHMENT 187. 188. paragraphs through'l86, above,andfurther states: I Plaint repleads Defendant JPMC will be unjustly enrichedbecauseit has'not enteredinto a

contractwith Plaintiff, yet is entitled under $1S23to simply demandP'laintiff pay JPMC.

189. 190. 191.

Defendant JPMC has provided no servicesto Plaintiff.

with Plaintiff. JPMChashadno contact Defendant from JPMC'sonly relatio"llip with Plaintiffis to ::t:.., payments Defendant

or Plaintiff while providingPlaintiff no service productof any sort;asthe resultof government fiat by FDIC. al lg2. JPMC Courtfind that Defendant that Plaintiff requests this Honorable Therefore, from JPMC, with Plaintiff, that JPMCis not entitledto collectpayments hasno contract JPMC. Plaintiff andDefendant existsbetween andthatno quasi-contract COUNT XXV CONTRACT UNENFORCEABLE 193. Ig4. and paragraphs throughI92, above, furtherstates: 1 Plaintiff repleads it because is not Plaintiff andJPMCis unenforceable between The contract

forceduponPlaintiff by a but for mutuallybargained agreement, ratherit is a relationship dictate. agencY governmental 195. 196. in Plaintiff andJPMCis coercive nature between The relationship with JPMC and Plaintiff hasentered, is not ableto enterinto the relationship with relationship Plaintiff would not voluntarilyenterinto a contractual

freelyandvoluntarily. t97. JPMCunderanycircumstances. Defendant 23 Page of30

198.

Therefore, Plaintiff requeststhat this Honorable Court find that Plaintiff did not

enter into a contractualrelationship with DefendantJPMC, and that Plaintiff has no obligations to perform for JPMC.

VIOLATION

Count XXVI OF PLAINTIFF'S CIVIL RIGHTS

r99.
200.

Plaintiffrestates Paragraphs1 through 198, above, and further states: 42 U.S.C. $1983providesthat'oEverypersonwho, under color of any statute'

ordinance,regulation, custom, or usage,of any Stateor Tenitory or the District of to Columbia, subjects,or causes be subjected,any citizenof the United Statesor other personwithin the jurisdiction thereofto the deprivationof any rights, privileges,or immunities securedby the Constitution and laws, shall be liable to thd-partyinjured in an action at law, suit in equity, or other proper proceedingfor redress,except that in any action brought againsta judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be grantedunless a decreewas {e,c]aratory violated or declaratoryrelief was unavailable.For the purposesof this section,any Act of to applicableexclusivelyto the District of Columbia shall be considered be a Congress statuteof the District of Columbia"

201.

includingits itself andthroughits agents, agency, FDIC, a govemmental

Chairperson,Defendant Sheila Bair, has deprived Plaintiff of his civil rights, including, but not limited to, his rights under the First Amendment to freely associateand enter into contracts,and his property rights under the Fifth Amendment, and his rights to be heard in a court of law or equitY. 202. Defendants,specifically FDIC, have petitioned the Court to replace Washington

Mutual Bank in this case,and its petition has been granted,and therefore it is a Party in this case. 203. althoughthe have used 12 U.S.C. $1823(e)for improperpurposes; Defendants

statutewhen it was first enactedweighed the need for expediencyin supportingthe financial system againstthe rights of individual claimants, and choosing a sort of lesser of two evils, depriving claimants of their rights or stability of the financial systemfor the benefit of the society atlarge,becausethe technology of the time did not permit both sets

Pase24 of30

that the interestsof the of intereststo be weighed equally, it is no longer tme or necessary individual claimants conflict with those of the society at large, nor is it true that there still exists no meansto evaluateindividual claims without disturbing the smooth repair of the financial systemfor the benefit of society at large. 'Therefore, continued invocation of 12 to is U.S.C. $ 1S23(e) no longer necessary supportthe financial systemfor the benefitof the society atlarge, and to continue such invocation of the statutewould at the very least give the impression of the improper use of the statute,if not demonstratesuch improper use. An improper use would be, for instance,the transfer of assetsfrom a failed bank, and fabricating a need for speedin the transferenceso as to hide the improper bank,FDIC woirld invoke $ I S23(e)in order relationshipbetweenFDIC and the assuming as to rush the transfer, and eliminate any liabilities attachedio the assets, a meansto do a favor to the assumingbank, beforeanyonehad the time to look carefuily at the transactionand halt it. 204. Defendantssubjectedor causedPlaintiff to be subjectedto the deprivation of any

rights, privileges, or immunities secur'ed the Constitution and la,wseither directly or by in engaged the dutiesfor which throughvicariousliability as the employerof employees they were authorizedto carry out on behalf of their employers,said duties subjecting Plaintiffs or causingPlaintiffs to be subjectedto the deprivation of any rights, privileges, or immunities securedby the Constitution and laws, and are therefore liable to the Plaintiff for injuries and for redressthereof, and any damagesauthorizedby law and such just and equitable. other remediesas deemed

VIOLATION

Count XXVII OF PLAINTIFFOS CIVIL RIGHTS

205. 206.

Plaintiff restatesParagraphslthrough 204, above,and further states: FDIC, a governmentalagency,itself and through its agents,including its

underthe Plaintiff his right to redress SheilaBair, hasdenied Defendant Chairperson, and in by Constitution, invoking12U.S.C.$1823(e) orderto deliberately willtully Plaintiffls right to be heardin a courtof law, andto eliminatePlaintiff s extinguish of claimsfiled with the CourtbeforeFDIC madethe conveyance Plaintiff s loanto the the JPMC,thuspreventing Courtfrom hearing claimsandjudging themon their
25 Page of30

merlt. 207. Defendantshave denied Plaintiff his right to a trial by j*y guaranteed the by

SeventhAmendmentby invoking 12 U.S.C. $1823(e)in order to deliberatelyand willfully extinguish Plaintiff s right to be heard in a court of law, and to eliminate Plaintiff s claims filed with the Court before FDIC made the conveyanceof Plaintiff s loan to JPMC, thus preventing a jury from hearing and finding the facts of the case. 208. Defendantssubjectedor causedPlaintiff to be subjectedto the deprivation of

rights, privileges, or immunities securedby the Constitution and laws either directly or through vicarious liability as the employer of employeesengagedin theduties for which they were authorizedto carry out on behalf of their employeri said duties subjecting Plaintiffs or causing Plaintiffs to be subjectedto the deprivation of any rights, privileges, or immunities securedby the Constitution and laws, and are therefore liable to the Plaintiff for injuries and for redressthereof, and any damagesauthorizedby law and such other remediesas deemedjust and equitable.

Count XXVII VIOLATION OF PLAINTIFF'S CIVIL RIGHTS 209. 210. and lthrough208 above, furtherstates: Paragraphs Plaintiff restates or itself or throughits agents both,includingits agency, FDIC, a government

Chair, Defendant Sheila Bair, has denied Plaintiff his First Amendment rights, forcing with and enter into a contractualrelationship with a private corporation, him to associate specifically, JPMC, with which he had heretofore,and has now, no desire, intention, or willingness to associatewith or enter into a contractualrelationship with.

ztr,

Defendantssubjectedor causedPlaintiff to be subjectedto the deprivation of any

rights, privileges, or immunities securedby the Constitution and laws either directly or through vicarious liability as the employer of employeesengagedin the duties for which they were authorizedto carry out on behalf of their employers, said duties subjecting Plaintiffs or causing Plaintiffs to be subjectedto the deprivation of any rights, privileges, or immunities securedby the Constitution and laws, and are therefore liable to the Plaintiff for injuries and for redressthereof, and any damagesauthorizedby law and such just and equitable. other remediesas deemed

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VIOLATION

Count XXIX OF PLAINTIFFOS CIVIL RIGHTS

2t2. 213.

Plaintiff restatesParagraphsI through 211" above, and further states: FDIC, a govemment agency,itself or through its agentsor both, including its

Chair, Defendant Sheila Bair, has denied Plaintiff his Fifth Amendment rights protecting him againsttaking his property for public use without just compensation.

2t4.

By donating Plaintiff s loan to JPMC in order to stabilize the national economy,

Defendantshave taken Plaintiff s property for a public purpose. 2I5. The property Defendantshbve taken'for a public irurposeis, in the first instance,

money that he would not have to pay above and beyond whai"is necessaryfor the loan to be resolvedthrough this suit, and in the secondinstance,the actual reil property Plaintiff owns, since,by defeating Plaintiff s claims againstthe lendersinvolved in this caseby administrativemeans,FDIC has given JPMC unfetteredlicense to foreclose on Plaintiff s home without making any attempt whatsoeverto resolve the problems that were beyond Plaintiff s control, but which could have unexpectedlycausedby circumstances been,and could possibly still be, resolvedthrough negotiationsmade in good faith, provided, of course,that Defendantshad incentive to negotiatein good faith, something no that thev have thus far demonstrated inclination for.

216.

Defendantssubjectedor causedPlaintiff to be subjectedto the deprivation of

rights, privileges, or immunities securedby the Constitution and laws either directly or through vicarious liability as the employer or controller or both of employeesengagedin the duties for which they were authorizedto carry out on behalf of their employers,said duties subjecting Plaintiff or causingPlaintiff to be subjectedto the deprivation of rights, privileges, or immunities securedby the Constitution and laws, and are therefore liable to the Plaintiff for injuries and for redressthereol and any damagesauthorizedby law and such other remediesas deemedjust and equitable.

Count XXX , FRAUD

2t7.

and 1 Paragraphs through216, above, furtherstates: Plaintiff restates

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2r8.

FDIC, a governmentagency,itself or through its agentsor both, including its

in by Chair, DefendantSheilaBair, engaged fraud because invoking 12 U.S.C. $1823(e), it permitted JPMC to continue the actionsthat WaMu had first initiated by knowingly and deliberately engaging in fraud itself in order to originate loans and also by encouraging and brokers to do so as well, as is the casein this suit. Such fraud is its representatives the subject of numerouspublic reports, including reports issuedby the United States SenatePermanentSubcommitteeon Investigations" in April of this year.

219.

Defendantsincluding JPMC and its Chair, Defendant Jamie Dimon engagedin

fraud becausethey knew or should have known that Plaintiff s loan was.originated under fraudulentconditions,and then the two entiiiesinvoked $ 1823(e)to hide their knowledge of the fraud. 220. in including JPMC and its Chair, DefendantJamieDimon, engaged Defendants

they have claimed that they were unable to examine and evaluate fraud because conferredupon JPMC by FDIC, thus the needto Plaintiff s loan among other assets they claim that they so invoke 12 U.S.C. $1S23(e) asto denyPlaintiffhis civil rights,,yet can identify the mortgageesof Plaintiff s loan so that they can establishauthority to dischargethe mortgage properly under Vermont law.

221.

Defendantsengagedin fraud both in the inducement,and during the term of the

suchknowledge, haveknown,anddid not disclose they because knewor should loans, suchloans of and thatthe loanswould be "securitized" thatbecause the "securitization" for the as difficult,if not impossible, hasbeen case Plaintiff,to wouldbe excessively life arose duringthe extensive of theseloansthat modify the loansif circumstances to modificationin orderfor the borrowerto continue perfonnor to perform necessitated which in fact is that casefor Plaintiff here. underthe termsof the contract, substantially Count XXXI BY ABUSE OF PROCESS DEFENDANTS 222. 223. 1 Paragraphs through221, andfurtherstates: Plaintiff restates
agency,itself or through its agentsor both, FDIC, a government Defendants

including its Chair, Defendant Sheila Bair, and JPMC, and its Chair, Jamie Dimon, have they have invoked the processauthorizedby 12 in engaged abuseofprocessbecause

Pase of30 28

U.S.C. 91823(e)as a meansof hiding their intent and actsthat deprivedPlaintiff of his civil rights as set forth herein, which constitutesan improper pu{pose,rather than the intendedpurpose of the statute,which is to assistin retaining the stability of the and its invocation in this case American economy, for which the statuteis not necessary, since it is clear that contrary to the intention of the statuteas it was was unnecessary written 60 years ago, Defendantsclaim to be able to accessdata related to a specific loan when it is convenient for themselves.

224.

invoked 12 U.S.C $1823(e)in bad that Suchbehaviordemonstrates Defendants

. . faith, another indicator of abuseof processby Defendants. 225. have invoked 12 U.S..C.$1823(e)for in improper Defendants Therefore,because

purpose,and therefore they have engaled in abuseof proiessagainst.the Plaintiff, Defendantsare liable to the Plaintiff for injuries and damagesarising but of said abuseof authorizedby law and such other remediesas deemed process,including any damages just and equitable.

WHEREFORE, Plaintiff respectfully requestthat this Honorable Court: A. Find that12 U.S.C. 1823(e)is unconstitutional; B. Grant Plaintiff s relief as requestedin eachCount; and C. Grant any and such other relief as the Court deemsis just and equitable. Dated:october / 2,zoto

submitted, Respectfully Respectfullysubmitted,

TCiccotelli intiff" Pro Se P.O. Box 562 Norwich,Vermont05055 802 649-3400

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CERTIFICATE SERVICE OF I, EmestJ. Ciccotelli,herebycertifythat on thisiffday of October,20l0,I forwarded the above PLAINTIFF'S SECONDAMENDED COMPALINT,by first classmail, postage prepaid, to: RobertMcCall, Esq.for FDIC Peabody Arnold, LL and Federal Reserve Plaza 600Atlantic Avenue Boston,MA 02210-2261 D. & , - Christopher Roy, Esq.for JP MorganChase Co., DownsRachlinMartin, PLLC , 199Main Street, P.O.Box 190, VT Burlington, 05402-0190 DonaldLaPlume. 14EastStreet, NH Claremont, 03743

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