1 Owen Thomas Lennon

C/o: General Post Office

2
2 W. Emerald Isle Dr.
3 Lake Hopatcong, New Jersey republic
Non domestic to the United States
4 Warning 39 USC-3003
Pro persona, in vivus, suri juris
5
SUPERIOR COURT OF THE STATE OF NEW JERSEY
6 FOR THE COUNTY OF MORRIS
7
OWEN T. LENNON; CAROL CUTTER Case No.: ________________________
8 LENNON H/W,

9 Plaintiff, REF; F-052157-10

10
vs.
11
THE BANK OF NEW YORK MELLON AS COMPLAINT FOR TEMPORARY
12 TRUSTEE FOR CITI MORTGAGE LOAN RESTRAINING ORDER, INJUNCTION
TRUST 2007-1, CITICORP MORTGAGE AND DECLARATORY RELEIF
13
SECURITIES TRUST, SERIES 2007-1,
14 CITIMORTGAGE INC.MORTGAGE
ELECTRONIC REGISTRATION SYSTEM,
15 AKA MERS, GEORGE CRETELLA ESQ.
AND DOES 1-100 INCLUSIVE.
16

17 Defendant
18
APPLICATION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY
19
INJUNCTION AND DECLARATORY RELIEF
20
COMES NOW, Plaintiffs OWEN T. LENNON, CAROL CUTTER LENNON
21

22 H/W. (Plaintiffs) and files Verified Emergency Petition for Temporary Restraining Order

23 and/or Preliminary Injunction, and Declaratory Relief against the listed Defendants. A
24
temporary restraining order is appropriate to maintain the status quo. Plaintiffs home will be
25
sold within the next week and Plaintiffs are subject to eviction actions, without immediate
26
intervention from this Court.
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 1

2
A.PARTIES
3
1. Plaintiff is now, and at all times relevant to this action, a resident of the County
4
of MORRIS, State of NEW JERSEY.
5

6 At all times relevant to this action, Plaintiff has owned the Property located at 39

7 EDGEMERE AVE. MOUNT ARLINGTON, NJ.07856 (the Property).

8
2. Defendant THE BANK OF NEW YORK MELLON AS TRUSTEE FOR
9
CITI MORTGAGE LOAN TRUST 2007-1 (BNY), is a National Banking Association,
10
doing business in the County of MORRIS, State of NEW JERSEY. Plaintiff is further informed
11

12 and believes, and thereon alleges, that The CIT Group/Consumer Finance (CIT) is the

13 Originator of the loan.

14
3. Defendant, THE BANK OF NEW YORK MELLON AS TRUSTEE FOR
15
CITI MORTGAGE LOAN TRUST 2007-1 (BNY), Trustee for Plaintiff is informed and
16
believe, and thereon allege that, Defendant THE BANK OF NEW YORK MELLON CITI
17

18 MORTGAGE LOAN TRUST 2007-1, is a national banking association, doing business in the

19 County of MORRIS, State of NEW JERSEY and is the purported Master Servicer for Securitized
20
Trust and/or a purported participant in the imperfect securitization of the Note and/or the Deed of
21
Trust as more particularly described in this Complaint.
22
4. Defendant, THE BANK OF NEW YORK MELLON AS TRUSTEE FOR
23

24 CITI MORTGAGE LOAN TRUST 2007-1 (BNY), Plaintiff is informed and believe, and

25 thereon allege that, Defendant THE BANK OF NEW YORK MELLON AS TRUSTEE FOR
26
CITI MORTGAGE LOAN TRUST 2007-1 (BNY), is a corporation, doing business in the

[PLEADING TITLE] - 2
 1 County of MORRIS, State of NEW JERSEY and is the purported Sponsor for Securitized Trust
2
and/or a purported participant in the imperfect securitization of the Note and/or the Deed of Trust
3
as more particularly described in this Complaint.
4
5. Defendant, Plaintiff The CIT Group/Consumer Finance (CIT), is informed
5

6 and believe, and thereon allege that, Defendant The CIT Group/Consumer Finance (CIT) is

7 a corporation, doing business in the County of MORRIS, State of NEW JERSEY and is the
8
purported Sponsor for Securitized Trust and/or a purported participant in the imperfect
9
securitization of the Note and/or the Deed of Trust as more particularly described in this
10
Complaint.
11

12 6. Defendant, CITIMORTGAGE INC. Plaintiff is informed and believe, and

13 thereon allege that, Defendant CITIMORTGAGE INC, is a New York corporation, doing
14
business in the County of MORRIS, State of NEW JERSEY and is the purported Sponsor and
15
Servicer for Securitized Trust and/or a purported participant in the imperfect securitization of the
16
Note and/or the Deed of Trust as more particularly described in this Complaint.
17

18 7. Defendant, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.,

19 aka MERS (MERS), Plaintiff is informed and believe, and thereon allege, that MERS is a
20
corporation duly organized and existing under the laws of BROWARD, whose last known
21
address is 1818 Library Street, Suite 300, Reston, Virginia 20190; website:
22
http://www.mersinc.org. MERS is doing business in the County of BROWARD, State of
23

24 VIRGINIA. Plaintiff is further informed and believe, and thereon allege, that Defendant MERS

25 is the purported Beneficiary under the Deed of Trust and/or is a purported participant in the
26
imperfect securitization of the Note and/or the Deed of Trust, as more particularly described in

[PLEADING TITLE] - 3
 1 this Complaint.
2
Plaintiff does not know the true names, capacities, or basis for liability of
3
Defendants sued herein as Does 1 through 100, inclusive, as each fictitiously named Defendant is
4
in some manner liable to Plaintiff, or claims some right, title, or interest in the Property. Plaintiff
5

6 will amend this Complaint to allege their true names and capacities when ascertained. Plaintiff is

7 informed and believe, and therefore allege, that at all relevant times mentioned in this Complaint,
8
each of the fictitiously named Defendants are responsible in some manner for the injuries and
9
damages to Plaintiff so alleged and that such injuries and damages were proximately caused by
10
such Defendants, and each of them.
11

12 Plaintiff is informed and believe, and thereon allege, that at all times herein

13 mentioned, each of the Defendants were the agents, employees, servants and/or the joint-
14
venturers of the remaining Defendants, and each of them, and in doing the things alleged herein
15
below, were acting within the course and scope of such agency, employment and/or joint venture.
16
B. INTRODUCTION
17

18 On July 13, 2007, plaintiff executed and delivered to defendant The CIT

19 Group/Consumer Finance (CIT) a promissory note payable to Originator in the amount of

20
$255,000. On July 13, 2007, as security to defendant The CIT Group Consumer Finance (CIT)
21
for payment of the note, plaintiff executed a deed of trust/mortgage conveying to MERS as
22
trustee for the Originator as beneficiary/mortgagee, that real property located at 39 Edgemere
23

24 Ave Mount Arlington, NJ. 07856, which is more specifically described as BLOCK 10 and LOT

25 71 in Schedule A. The deed of trust/mortgage was recorded as document number 11682N in

26
the official records of NEW JERSEY County, MORRIS. This deed of trust/mortgage is referred

[PLEADING TITLE] - 4
 1 to in this complaint as "the deed of trust/mortgage," and the property described in the deed of
2
trust/mortgage is referred to as "the property." A copy of the deed of trust/mortgage is attached,
3
marked Exhibit A, and incorporated by reference.
4
Defendant CIT did NOT cause to be recorded a notice of default in the official
5

6 records of NEW JERSEY County, MORRIS, alleging that a breach of the obligation secured by
7

8 the deed of trust/mortgage has occurred as required by law.1

9
Defendants, and each of them, intend to sell the property, having given notice that
10
sale of the property. Unless restrained, defendants, and each of them, will thus sell the property
11
or cause the property to be sold. This sale would be to plaintiff's great and irreparable injury, for
12

13 which pecuniary compensation would not afford adequate relief, in that plaintiff, having no right

14 to redeem the property from the sale, will forfeit the property if the sale takes place as scheduled.
15
C. FACTUAL ALLEGATIONS
16
For years, mortgage brokers and lenders have been selling loan products that they
17
knew or should have known would never be able to be repaid by the borrower and would prevent
18

19 borrowers from ever actually owning the home. Instead, borrowers were offered interest-only,

20 negative amortization, and/or other subprime loan products that amounted to no more than a
21
short term lease until the payments became so unaffordable that the borrowers are now faced
22
with either bankruptcy or foreclosure. The housing bubble of the past decade was created by
23
predatory lending practices, such as charging excessive fees, incorporating payment penalties,
24

25 negative amortization payments, or other abusive terms in the agreements, providing kickbacks

26 to brokers, flipping loans, using balloon payments to conceal the true burden of the financing,

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 1 requiring unnecessary insurance and other products, including mandatory arbitration clauses,
2
steering borrowers to subprime loans when they qualify for conventional loans, and using bait
3
and switch tactics. All were rampant within the industry without oversight or good judgment and
4
found to be inconsistent with important national objectives, including the goals
5

6 1

7 See Bliss v. NEW YORK Co-op. Producers, 30 Cal. 2d 240,

8
244-246, 181 P.2d 369, 170 A.L.R. 1009 (1947). of fair access to credit,
9
community development, and stable homeownership by the broadest spectrum of America.
10

11
Rather than offering a loan product that was viable and long-term for the borrower and lender,

12 brokers and lenders greedily sold whatever they could get away with, arguably the primary

13 catalyst for what is now this countrys worst economic crisis since the Great Depression.
14
The loan product sold to Plaintiff in this case was exactly the kind of loan that has
15
contributed to our national problem. The Defendants were aware of this trend, and possessed the
16

17
foresight to advise Plaintiff of this risk. They intentionally concealed the negative implications of

18 the loan they were offering, and as a result, Plaintiff face the potential of losing their home to the

19 very entity and entities who placed them in this position.

20
On or about July 13, 2007 (hereinafter referred to as Closing Date) Plaintiff
21
entered into a consumer credit transaction with The CIT Group Consumer Finance (CIT) by
22

23
obtaining a $255,000 mortgage loan secured by Plaintiffs principal residence, 39 Edgemere Ave

24 Mount Arlington, NJ 07856. This note was secured by a Deed on the Property in favor of

25 (CIT). The terms of the finance transaction with (CIT) are not clear or conspicuous, nor
26
consistent, and are illegal which violates several statutes and is in essence creates an illegal loan.

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 1 Further, this loan was underwritten without proper due diligence by
2
(CIT) as evidenced by their failure to verify borrowers income utilizing signed
3
IRS Income Tax Disclosure Form 4506T which would have provided past borrower tax returns.
4
(CIT) also used a GDW Cost of Savings as the Index for the basis of this loan, because the
5

6 Lender controls this Index and it is directly based upon the average rate of interest (CIT)

7 parent company.
8
In addition, and unbeknownst to Plaintiffs, (CIT) illegally, deceptively and/or
9
otherwise unjustly, qualified Plaintiff for a loan which (CIT) knew or should have known that
10
Plaintiff could not qualify for or afford by, for example, the underwriter has approved this loan
11

12 based upon credit scores and the borrowers Stated Income only. Had (CIT) used a more

13 accurate and appropriate factor, such as Tax Forms and a more determinative level of scrutiny of
14
determining comply with the requirement to provide Plaintiff with a Mortgage Loan Origination
15
Agreement the debt to income ratio, Plaintiff would not have qualified for the loan in the first
16
place. Consequently, (CIT) sold Plaintiff a loan product that it knew or should have known
17

18 would never be able to be fully paid back by Plaintiff. (CIT) ignored long-standing economic

19 principals of underwriting and instead, knowingly, liberally, greedily and without any regard for
20
Plaintiffs rights sold Plaintiff a deceptive loan product.
21
From 1998 until the financial crash of 2008-2009, over 60 million home loans
22
where sold by originating lender banks to investment banks to be securitized in a complex series
23

24 of billions of transactions. The Plaintiffs home loan was one of the 60 million notes that were

25 securitized.
26
Securitization is the process whereby mortgage loans are turned into securities, or

[PLEADING TITLE] - 7
 1 bonds, and sold to investors by Wall Street and other firms. The purpose is to provide a large
2
supply of money to lenders for originating loans, and to provide investments to bond holders
3
which were expected to be relatively safe. The procedure for selling of the loans was to create a
4
situation whereby certain tax laws known as the Real Estate Mortgage Investment Conduit
5

6 (hereinafter REMIC) Act were observed, and whereby the Issuing Entities and the Lenders

7 would be protected from either entity going into bankruptcy. In order to achieve the desired
8
bankruptcy remoteness, numerous True Sales of the loans had to occur, in which loans were
9
sold and transferred to the different parties to the securitization.
10
How a particular mortgage loan ended up being transferred to a REMIC TRUST
11

12 in the securitization process is governed by a contract known as a Pooling and Servicing

13 Agreement (PSA). The PSA is a Trust Agreement required to be filed under penalty of perjury
14
with the United States Securities and Exchange Commission (SEC) and which, along with
15
another document, the Mortgage Loan Purchase Agreement (MLPA), is the operative
16
securitization document created by the finance and securitization industry to memorialize
17

18 securitization transactions. Plaintiffs PSA required at minimum this chain of title:

19 A True Sale of the loan would be a circumstance whereby one party owned the
20
Note and then sold it to another party. An offer would be made, accepted and compensation
21
given to the seller in return for the Note. The Notes would be transferred, and the Deeds of
22
Trust assigned to the buyers of the Note, with an Assignment made every step of the way, and,
23

24 furthermore, each Note would be endorsed to the next party by the previous assignee of record.

25 In order for the Trustee of the Securitized REMIC Trust to have a valid and
26
enforceable secured claim against Plaintiffs Home, the Trustee must prove and certify to all

[PLEADING TITLE] - 8
 1 parties that, among other things required under the PSA:
2
a. There was a complete and unbroken chain of indorsements and transfers of the
3
Note from and to each party to the securitization transaction (which should be from the (A)
4
Mortgage Originator to the (B) Sponsor to the (C) Depositor to the (D) Trust/Trustee, and that all
5

6 of these indorsements and transfers were completed prior to the Trust closing dates (see

7 discussion below); and

8
b. The Trustee of the Securitized Trust had actual physical possession of the Note
9
at that point in time, when all indorsements and assignments had been completed. Absent such
10
proof, Plaintiff alleges that the Trust cannot demonstrate that it had perfected its security interest
11

12 in Plaintiffs Home that is the subject of this action. Therefore, if the Defendants, and each of

13 them, did not hold and possess the Note on or before the closing date of the Trust herein, they are
14
estopped and precluded from asserting any secured or unsecured claim in this case.
15
Plaintiff is informed and believes, and thereon alleges, that pursuant to the terms
16
of the PSA, the Mortgage Originator (i.e., the original lender herein) agreed to transfer and
17

18 endorse to the Trustee for the Securitized Trust, without recourse, including all intervening

19 transfers and assignments, all of its right, title and interest in and to the mortgage loan (Note) of
20
Plaintiffs herein and all other mortgage loans identified in the PSA.
21
Based upon the foregoing, Plaintiff is further informed and believe, and thereon
22
allege, that the following deficiencies exist, in the True Sale and securitization process as to
23

24 this Deed of Trust which renders invalid any security interest in the Plaintiffs mortgage,

25 including, but not limited to:

26
a. The splitting or separation of title, ownership and interest in Plaintiffs Note

[PLEADING TITLE] - 9
 1 and Deed of Trust of which the original lender is the holder, owner and beneficiary of Plaintiffs
2
Deed of Trust;
3
b. When the loan was sold to each intervening entity, there were no Assignments
4
of the Deed of Trust to or from any intervening entity at the time of the sale. Therefore, True
5

6 Sales could not and did not occur;

7 c. The failure to assign and transfer the beneficial interest in Plaintiffs Deed of
8
Trust to BNY, in accordance with the PSA of the Defendants, as Securitization Participants;
9
d. The failure to endorse, assign and transfer Plaintiffs Note and/or mortgage to
10
Defendant BNY, as Trustee for CIT MORTGAGE LOAN TRUST 2007-1 Trust, in accordance
11

12 with the PSA; e. No Assignments of Beneficiary or Indorsements of the Note to each of the

13 intervening entities in the transaction ever occurred under NEW JERSEY law, which is
14
conclusive proof that no true sales occurred as required under the PSA filed with the SEC; and
15
f. Defendants, and each of them, violated the pertinent terms of the PSA.
16
D. THE STANDARD FOR INJUNCTIVE RELIEF IS SATISFIED
17

18 1. FORECLOSURE TROS:

19 Injunctive or declaratory relief may be available to prevent an improper private

20
sale of encumbered property on such grounds as that there is no actual default justifying the sale
21
(Bisno v. Sax (1959, 2nd Dist) 175 Cal App 2d 714, 346 P2d 814), that the secured transaction is
22
itself invalid (Daniels v. Williams (1954) 125 Cal App 2d 310, 270 P2d 556), or that
23

24 inadequate notice of default was given. (Lupertino v. Carbahal (1973, 3rd Dist) 35 Cal App 3d

25 742, 111 Cal Rptr 112) This relief may also be available to resolve a dispute as to the amount of
26
the default. (More v. Calkins (1890) 85 Cal 177, 24 P 729).

[PLEADING TITLE] - 10
 1 2. PRELIMINARY INJUNCTION:
2
In deciding whether to issue a preliminary injunction, the trial court considers two
3
related factors: (1) the likelihood the plaintiff will prevail on the merits of its case
4
at trial, and (2) the interim harm the plaintiff is likely to sustain if the injunction is denied, as
5

6 compared to the harm the defendant is likely to suffer if the court grants a preliminary injunction.

7 Buckland v. Threshold Enterprises, Ltd., 155 Cal. App. 4th 798, 66 Cal. Rptr. 3d 543 (2d Dist.
8
2007), as modified, (Oct. 22, 2007).
9
3. TEMPORARY RESTRAINING ORDER:
10
Trial courts should evaluate two interrelated factors when deciding whether to
11

12 issue a restraining order: the first is the likelihood that the plaintiff will prevail on the merits at

13 trial, and the second is the interim harm that the plaintiff is likely to sustain if the restraining
14
order is denied, as compared to the harm that the defendant is likely to suffer if the order is
15
issued. Church of Christ in Hollywood v. Superior Court, 99 Cal. App. 4th 1244, 121 Cal. Rptr.
16
2d 810 (2d Dist. 2002).
17

18 E. PLAINTIFFS ARE LIKELY TO PREVAIL ON THE MERITS AT TRIAL.

19 The foreclosure sale and/or any further transfer of ownership or encumbrance

20
must be enjoined because the evidence elicited demonstrates that Plaintiff will succeed on the
21
merits at trial. Plaintiff has successfully alleged nine causes of action against Defendants in this
22
case, including violations of TILA and RESPA; Fraud; Unfair and Deceptive Business Practice;
23

24 Unconscionability; and Quiet Title.

25 An actual controversy has arisen and now exists between plaintiff and defendants
26
regarding their respective rights and duties. Plaintiff contends that his note and deed of trust

[PLEADING TITLE] - 11
 1 where not transferred and/or assigned pursuant to Plaintiffs loans PSA and/or NEW JERSEY
2
Law, that defendants violated Federal TILA and RESPA laws, as well as committed fraud in the
3
indictment and concealment at the initiation of the loan. A judicial declaration is necessary and
4
appropriate at this time under all the circumstances so that plaintiff may determine his or her
5

6 rights and duties under the note and deed of trust, specifically,

7 At the very basis of Plaintiffs Complaint, based upon the facts outlined herein
8
and above, Plaintiff has alleged and can demonstrate at trial that Defendants breached their PSA
9
contract and through misrepresentation are about to foreclose on Plaintiffs real property, and
10
that because of the securitization process Defendants and their predecessors in interest failed to
11

12 properly assign Plaintiffs Mortgage note and Deed of Trust according to state law and the PSA

13 governing the original loan.

14
PLAINTIFF reserves the right to alter or amend as full facts become evident.
15
PRAYER
16
WHEREFORE, plaintiff requests judgment as follows:
17

18 1. A temporary restraining order, a preliminary injunction, and a permanent injunction, all

19 enjoining defendants, defendants agents, attorneys, and representatives, and all persons acting in
20
concert or participating with them, from selling, attempting to sell, or causing to be sold the
21
property, either under the power of sale in the deed of trust/mortgage or by foreclosure action;
22
2. A declaration by the court that sale of the property to enforce the deed of trust/mortgage is
23

24 improper in that plaintiff has raised a claim that the defendants do not legally hold the note or

25 deed of trust and/or do not have right to foreclose on the subject property;
26
3. Costs of suit; and

[PLEADING TITLE] - 12
 1 4. Any further relief that the court may deem just and equitable.
2

3
Dated_________________________ [Signature]
4
Attorney for Plaintiff
5

9
VERIFICATION
10
I am the plaintiff in this action. I have read the foregoing complaint and it is true of my own
11

12 knowledge, except as to those matters stated on information or belief, and as to those matters, I

13 believe it to be true.
14
I declare under penalty of perjury under the laws of the State of NEW JERSEY that the
15
foregoing is true and correct.
16
Date of execution: _________________________________________________________
17

18 ________________________PLAINTIFF

19 ________________________ NOTARY
20

21 SEAL
22 Dated this [day] of [Month], [year].
23

24
[Attorney Name]
25

26

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