STATE OF NORTH CAROLINA MECKLENBURG COUNTY

IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION

DAYO A. BEVERLY, an individual

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

) ) Plaintiff ) ) v. ) ) ) BANK OF AMERICA, N.A.; and ) ) DOES 1 through 20, inclusive. ) ) Defendant(s), ) ) ) ________________________________ )

COMPLAINT (COMP)

SUMMARY OF THE CASE Plaintiff DAYO A. BEVERLY is being forced out of her home by a large bank defendant that has refused to abide by its obligations to explore options to avoid foreclosure on Plaintiffs home. Plaintiff has no other venue to exercise her The Defendant is taking

rights than the legal forum.

Plaintiffs home through foreclosure, and have failed reasonable accommodations. The Defendants have no right to

foreclose on the Plaintiffs home because they failed to abide by North Carolina law. Further, the Defendants had no right to

foreclose on the Plaintiffs home because the underlying

1 COMPLAINT FOR DAMAGES

security instruments in which Defendants relied on are invalid, void and unenforceable, and the Defendant has violated North Carolina procedure for foreclosure.

JURISDICTION AND VENUE 1. This Court has subject matter jurisdiction because the dispute arises over real property that is located in Mecklenburg County at 2401 WESTGROVE DRIVE, CHARLOTTE, NC 28215.

2. This Court has subject matter over real property, and venue is proper pursuant to the NORTH CAROLINA G.S. 1-75.3 because the real property is situated in Mecklenburg County. 3. This Court has personal jurisdiction over the parties. Plaintiff DAYO A. BEVERLY is at all times relevant herein a homeowner in Mecklenburg County, North Carolina. Defendant is either a resident of Mecklenburg County or have subjected themselves to this Courts jurisdiction because of their contact with this County by virtue of encumbering and claiming an interest to the

real property located in Mecklenburg County, and by participating in conduct that occurred in Mecklenburg County. THE PARTIES 4. Plaintiff DAYO A. BEVERLY is an individual, and at all times relevant herein a resident of the state of North Carolina in Wake County. DAYO A. BEVERLY currently owns

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

the home for nearly five years, at the address of 2401 Westgrove Drive Charlotte, NC 28215. (the SUBJECT PROPERTY) DAYO A. BEVERLY asserts that she is the rightful owner of this SUBJECT PROPERTY in fee simple. 5. Defendant BANK OF AMERICA N.A. (here after BOFA) is a North Carolina National Association. BOFA

has a registered agent for service of process located in North Carolina. Upon information and belief BOFA is and

was in the business of originating or servicing consumer credit transactions and is currently doing business in Mecklenburg County in the State of North Carolina. BOFA

is an entity that held certain obligations to Plaintiff DAYO A. BEVERLY by virtue of its role in the events described in this Complaint, and by virtue of its role as a consumer lender and servicer of home loans, and as
3 COMPLAINT FOR DAMAGES

a participant to the securitization of a loan contract that was entered into between a lender and Plaintiff.

6. Plaintiff does not know the true names, capacities, relationship, or basis for liability of the Defendants sued in this action as DOES 1 through 20, inclusive, and will amend this Complaint when that information is discovered. Plaintiff is informed and believes and

thereon alleges that each named Defendant, as well as the DOE defendants, are responsible in some manner for certain occurrences herein alleged in the causes of action and that Plaintiffs damages as alleges were proximate caused by their conduct. Collectively, all

defendants to this action, whether specifically named, or named as DOE defendants, will be hereinafter referred to as Defendants. FACTUAL BACKGROUND At all relevant times to this Complaint, Plaintiff DAY A. BEVERLY owned the subject property at 2401 WESTGROVE DR, CHARLOTTE, NC 28215. DAYO A. BEVERLYS ownership is documented

in a number of written instruments that are on file with the Mecklenburg County Recorders Office, including a Grant Deed. ///
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

/// The Loan

7.

In 2008, Plaintiff entered into a loan contract with BOFA loan number 870177773. of $63,000.00. The loan was for an amount

The loan purported to bind the

Plaintiffs SUBJECT PROPERTY with a security interest. Hardship Foreclosure 8. In the years 2009 and 2010, the Plaintiff suffered economic hardship as a result of the faltering economy. This resulted in the Plaintiff falling behind on the payments that were purportedly due under the Loan. The

defendants to this action claim that Plaintiff was given a notice titled Notice of Default and Election to Sell Under Deed of Trust.

5 COMPLAINT FOR DAMAGES

Defendant Ignored Reasonable Requests and Failed in Their Duties 9. Despite the Plaintiff having made requests to Defendants that they explore options for the Plaintiff in order to avoid foreclosure, the Defendants did the opposite by ignoring their obligations and by expediting foreclosure. After making insignificant efforts to

explore options to avoid the foreclosure of the Subject Property, the Defendants have attempted to proceed with foreclosure. Bank of America failed to follow its contract by denying any foreclosure prevention 10.The security instrument (Deed of Trust) that was used to commence the foreclosure on the Plaintiffs states specifically that is will follow Federal and North Carolina law (paragraph 22). On July 2011 Plaintiff

mailed a loan mod package to BOFA retention center and they claimed their Houston office did receive it. Plaintiff later mailed the same package again on August 8, 2011. Defendant then failed to answer when Plaintiff asked if BOFA received the August 8th package. Defendant BOFA employees and agents continued to state that "its under review" to Plaintiff. Plaintiff logically believed that

received the package for the SUBJECT PROPERTY. 11.After being told by Rebecca Glass and Jeanie Smith and the case manager in foreclosure division these that the
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

properties needed additional proof of new income info added to file and that it was qualified for loan modification. Plaintiff delivered that information to

Defendants offices in Houston and Dallas on or about January 31 2012. 12.Plaintiff checked again with defendant to see the status of SUBJECT PROPERTY and Defendant stated contrary to the previous report that they had not received the information for a t third time. Plaintiff continually received

multiple status reports and contradicting information on her property giving information that Plaintiff believed that her property would be modified. One representative named Jeanie declared to Plaintiff that the property qualified for the modification program. In this program

the balance would be added to the principal on back of loan. FIRST CAUSE OF ACTION Breach of Contract

7 COMPLAINT FOR DAMAGES

13.Plaintiff repeats and re-alleges the allegations and facts set forth in Paragraphs 1 through 12 above as if fully set forth herein, and incorporates them by reference in this cause of action.

14.A mortgage is a contract pursuant to North Carolina Common Law. 15.In 2008 there was a mortgagee between Plaintiff and BOFA, known as loan number 870177773, hereafter referred to as Deed of Trust. The loan was for an amount of

$63,000.00. Both Plaintiff and Defendants BOFA, obtained both the rights and obligations contained in said mortgage. Consequently, a valid contract exists between

Plaintiff and BOFA. 16.Paragraph 22 of said mortgage contains an attorney fee provision awarding reasonable attorneys fees to the prevailing party in connection to any action for foreclosure. 17.Plaintiff has the ability to tender the loan and will be willing to show proof. 18.Defendant failed to follow the contracts provision to abide by Federal and North Carolina law by allowing

Plaintiff to modify the loan pursuant Federal and State law. 19.As a direct and proximate cause of the Defendants
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

breach of contract, Plaintiff has suffered damages in an amount that will be proven at trial. 20.By virtue of the Defendants wrongful foreclosure based upon violation of the aforementioned statutory provisions, as well as the afore-described breach of the mortgage agreement by the Defendants, the Notice of Default and all subsequent foreclosure proceedings should be canceled. 21.Plaintiff requests that Defendants be ordered to cancel the Trustees Sale. 22.Plaintiff requests that pursuant to Paragraph 23 of the Deed of Trust, the property shall be conveyed to Plaintiff. 23.Plaintiff request attorney fees pursuant to Paragraph 22 of the Deed of Trust. SECOND CAUSE OF ACTION PROMISSORY ESTOPPEL 24.Plaintiff repeats and re-alleges the allegations and facts set forth in Paragraphs 1 through 23 above as if
9 COMPLAINT FOR DAMAGES

fully set forth herein, and incorporates them by reference in this cause of action. 25.Plaintiff relied on the promisses of BOFA through its agent Jeanine that the property would be modified and not be foreclosed. 26.Because of Jeanine and BOFAs promises Plaintiff did not seek funding option to Tender or otherwise solve the problem. 27.Defendant was aware of the circumstances regarding the property and led Plaintiff to be foreclosed upon without any other remedy. 28.Defendant BOFA encouraged Plaintiff to follow the hollow promises for modification despite knowing that any pursuant would lead inevitably to the loss of the SUBJECT PROPERTY through foreclosure. JURY DEMAND Plaintiff respectfully demands a trial by jury of all triable issues for all causes of action alleged herein.

PRAYER FOR RELIEF

WHEREFORE, in addition to the relief sought as described above in each cause of action, Plaintiff prays for judgment against Defendants for all causes of action as follows: i. ii. For Judgment in favor of Plaintiff on the Complaint For an award of compensatory damages according to proof iii. For an order from this court that would determine the ownership, rights, and interests of all parties to this suit in the Subject Property. iv. For an order from this Court for a Preliminary Injunction, halting all actions by all parties that would affect title to the Subject Property until this Court can determine ownership interests in the property; v. vi. For an order for the Defendants to pay restitution For an award of costs and expenses of suit, including attorneys fees; vii. For an award of pre-judgment and post-judgment interest at the maximum legal rate; and, viii.Such other and further relief as the Court may deem

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

11 COMPLAINT FOR DAMAGES

proper and just. ix. That the Plaintiff be allowed to enforce a rescission of the loan, and be allowed for a judicial reformation of the loan contract under just and equitable terms, /// /// /// x. That the Plaintiff hold title to the Subject Property in Fee Simple, and, xi. That no Defendant hold any interest in the Plaintiffs Subject Property, and, xii. A halt on any further acts that would affect title to the Subject Property. DATED: ______________________ DAYO A. BEVERLY PLAINTIFF IN PRO PER

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

VERIFICATION I, DAYO A. BEVERLY, am the Plaintiff in the above-entitled action. I have read the foregoing Complaint and know the contents thereof. The same is true of my own knowledge, except as to those matters which are therein alleged on information and belief, and as to those matters, I believe it to be true. I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed at RELEIGH, North Carolina.

DATED:

______________________ DAYO A. BEVERLY

13 COMPLAINT FOR DAMAGES

PLAINTIFF IN PRO SE