2nd Amended Complaint 2010-10-12

8/3/2019 2nd Amended Complaint 2010-10-12

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The Law Offices of Ernest f . Ciccotelli,PLLCOctober12.201,0

Clerk of CourtUnited StatesDistrict CourtP.O. Box 94 5Budington, 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 'theCletk of CourtAccompanyingherewith or filing is IhePI,AINTIFF'S SECOND AMENDEDCOMPI-AINT in the above-teferenced matter.Pleasedo not hesitate to contact this office with any questions or commeflts.Thank you.

Robet McCall,Esq. )ChristopherD. Roy, Esq.Donald LaPlume

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


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UNrrnoSrarnsDrsrnrcr CounrF'OR TITEDrsrnrcr or VnnuoNr

ERNEST .CICCOTELLI )Plaintiff ))v. ) CaseNo. 5:10-cv-00016-cr)WASHINGTONMUTUAL, INC., )WASHINGTON MUTUAL BANK, )MORTGAGETRUST GROUP, NC., )DONALD LAPLUME, )J.P.MORGAN CHASE& CO., ) .JAMES(JAMIE)DIMON, )'FEDERAL DEPOSITINSURANCE )COMPANY, AND )SHEILAC. BAIR )Defendants )

SECOND AMENDED COMPLAINTNOW COMES PIAiNtiff,ERNESTJ. CICCOTELLI, PTO C,WithhiS SECOND

AMENDED COMPLAINT, and n supportof his complaintstateshe following:

PABIIES. JURISDICTION AND VENUE1. Plaintifl Emest J. Ciccotelli, esides 9 TigertownRoad, n Norwich, Vermont,with histwo sons, n thehome hathe designed nd built in 1990;Plaintiff s residences therealproperty that is the subjectof the Mortgageand secureshe Note which are he objectsofthis compla[nt.

2. Defendant,WashingtonMutual Inc. ("WMI"), a corporationduly formed n the SateofWashingtonwith a principalplaceof businessat9200OakdaleAvenue,Chatsworth,California 91311 doing significant, egularbusinesswithin the Stateof Vermont.

3. Defendant,WashingtonMutual Bank (singly, "WMB", and ogetherwith WashingtonMutual, Inc, "WaMu"), duly formed n the Sateof Washingtonwith a principalplaceofbusiness t 9200OakdaleAvenue,Chatsworth,California 91311, doing significant,regularbusinesswithin the Stateof Vermont.

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Defendant,MortgageTrust Group, Inc. (theo'Agency"),a corporation duly formed in theSateof Massachusetts ith a principal placeof business t108Grove Street,Worcester,Massachusetts1605,andduly licensed o provide oan brokerage ervicesn Vermont,licensenumberLL5313 and icensenumberMB379 is the agency or the Lender.Defendant,Donald LaPlume,agentand oan broker employed by the Agency Inc. (the"Agent"), with a residence t 14EastStreet,Claremont,New Hampshire03743 s theagent or the Lender.Defendant, .P.Morgan Chase& Co., n conjunctionwith its subsidiary, J.P.MorganChaseBank, N.A., (both referred o singularly as "JPMC"), a corporationduly formed inthe Stateof Delaware,with a principal placeof business at270 Park Avenue,'New York,New York 1001 , doing significant, elular businesswithin the State f Vermont.DefendantJames Jamie" Dimon, Chairmanand Chief Executive Officer of DefendantJPMorgan Chase& Co.,with an office andprincipalplaceof businessat210ParkAvenue,New York, New York 10017DefendantFederal Deposit InsuranceCorporation(FDIC), Receiy"eror DefendantWashingtonMutual Bank and standing n its place n this matter,*ittt u principle placeofbusiness t 550 17thStreetNW, Washington, .C.20429.DefendantSheila C. Bair, Chairman of DefendantFDIC, with an office and principleplaceDfbusiness t 550 17thStreetNW, Room MB-6028, Washington,D.C. 20429.

I 0. In this action Plaintiff seeksdamagesor violations of the Stateof Vermont's lawsregarding,among others,mortgagesand notes,contracts, raud, and larceny, saidviolations occurringwithin the Stateof Vermont, and therefore urisdiction andvenue areproperly with this court.

FACTS(ln order to complywith the requirementor pleadings to be conciseaspossible,Facts asoriginallypresented n thepreviouscomplaintshavebeen emoved,however,Plaintiff reservesthe right to reintroducesuch acts as have beenadduced n previous versionsof this complaint.)

I l. WashingtonMutual Bank, a subsidiaryof WashinglonMutual Inc., is a debt collector12. that serviceda note (the "Note") for b loan to refinance Plaintiff s home and a mortgage

securing he Note (singularly, the "Mort E&Ee",and ogetherwith theNote, referred o as

4.

5 .

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7.

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the "Loan") from the Plaintiff.13.The Lendershownon the mortgages Long BeachMortgageCompany LBMC), is the

only mortgageeof record; no assignments r successors re shown in the record.14.JPMorganChase& Co.purchasedhe bankingassets f WashingtonMutual Bank from

the FederalDeposit InsuranceCorporationwhen WMB failed and wasput intoReceivershipby the Office of Thrift Supervision,said assetsncluded Plaintiff smortgageand note on his propertyat 49 Tigertown Road, n Norwich, Vermont, on oraboutSeptember 5, 2008.

15.An investigationof theNorwich LandRecordsmadeon July 17,2008, shows hat hereis no record n theNorwich Land Records howing hat eitherWMB or WMlwereassignedhe Loan by Long BeachMongage Company,nor does he record show hateitherWMB or WMI owned or held the Loan, andthat neither WMB nor WMI were themortgagee f record.

16.A subsequentnvestigationof the Norwich Land Recordsmadeon August 12,2010,shows hat there s no record in the Nbrwich Land Recordsshowing that JP MorganChase& Co.,or any subsidiaryhereofhasbeenassignedhe toan by Long BeachMortgageCompany,nor does he record show that JPMC owns or holds the loan,nordoes he recordshow that JPMC is the mortgageeof record.'

17. Said nvestigationof the Norwich Land Recordsshowsno other assigneeor successoroLong BeachMortgage Company.

18.An investigation onducted n or aroundJuly 18,2008,of the CorporationsDivision ofthe Office of the DelawareSecretaryof State,where Long Beach Mortgage Company sduly incorporated eveals hat Long Beach MortgageCompanyhas beendissolved.

19.The note and mortgagewhich securest areon Plaintiff s home at 49 Tigertown Road, nNorwich, Vermont (the "Property"); the Mortgage s recorded n the Norwich LandRecordsn Book 774,Pages14-533.

20. The Loandocuments redatedSeptember 9,2005. !21. The accountnumber or the Loan s 0696363456.22.The termsof the Note were$165,000, 0 years,at7.70o/o tartingon November1,2005,

with an nitial paymentof $1,176.38 er month.23. No escrowwas withheld or required o be withheld at the time of the closing of the loan.

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24.The Boardof Listers or the Town of Norwich, Vermont assessed t that time, andcontinueso assesshe propertyat thepresentime, for $310,000.

25.In preparation or the loan,Richard Tracy of Sharon,Vermont, the appraiserhired by theAgent or Agency, appraisedPlaintiff s home or $450,000,n July, 2005.

26.Dependingon which assessments used,Plaintiff s debt o value ratio is either0.53(mortgage:$65,000/Listers'assessment:$30,000 .53)or .37 (mortgage:$165,OOO/Lender'sppraiser's ssessment:450,000 .37.

27.The headerof the Note states hat t is a "FIXED/ADJUSTABLE RATE NOTE".28. Not clearly apparentwithin the text of theNote is a reference hat the first interest ate

adjustment ccurson October ,2007,and changes very 6 months hereafter.29. OnOctober1,2007,the rate changedo 9.700o/o,andhe'regularpaymentmadeby

Plaintiff wasraised o $1,402.78 er month,an ncreas of lgYoover the originalpaymentamount.

30.The ndex hat the Loan's rate s basedon is the LIBOR for 6 month dollar deposits, n adate hat is 45 daysprior to each scheduled ate adjustmentdate. ,

31.Thecalculationof the adjusted ate s 4.990%added o the ndex, an amountapproximately2 to 3 percentage ointshigher than an index basedon TreasuryBills ("T-

. Bills") used or most AdjustableRate Mortgages(ARMs) and the ARMs that Plaintiffhadpersonalexperiencewith.32.If Plaintiff loses he Property hroughacceleration f the Note and foreclosure n the

Mortgage,1) he will lose he equityhe hasbuilt up in the Propertyover the courseofover 20 years,2) he will sufferdefamationof character hrough negativereports on hiscreditreport,and 3) he (andhis sons)will suffersevereemotionaldistress or losing apossession theproperty that s irreplaceable nd he major emotional ouchstone fhis sons' ives andhis own, for which he paid an unusuallyheavyprice n foregoingalucrativecareer n Boston as a medical devicesengineerso that his sons could be raisedin Vermont as heir motherhad been aised.(Counts through IV havebeen dismissedby order of the Court. Remainingcountsretain their

original numbers.)

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COUNT VFRAUD IN THE INDUCEMENT33. Plaintiff repleadsparagraphs1 through 32,above,and further states:34. Agent mademisleadingand falsestatementsegarding he benefits o Plaintiff of the

Loanon numerousoccasions.35. Agent made alse or misleadingstatementsminimizing the difficulty of refinancingthe

Loan when its interestratewas adjusted o a level that would guarantee hat monthlypaymentswould becomeonerouson numerousoccasions.

36. Agent made alseor misleadingstatementsegarding he manner n which the Loanwould benefitAgent's andPlaintiff s businesselationshipoh numerou,o.rarionr.

37. Agentwithheldmaterial information rdgarding he index'upoirwhich the interest ate oftheLoan s based.

38. Agent withheld material information regarding he securitizationand diffrculties thatwould causePlaintiff in his performanceof the Loan.

39. Agent madesaid falseor misleadingStatementsn orderto induce,Plaintiff into agreeingto the Loan, despite he higher interest ate on the Loan than the piior mortgages hatPlaintiff was paying at the time he appliedfor the Loan.

40.Plaintiff reliedon Agent's statements: adAgentnot madesaid alseor misleadingstatements, nd had Agent provided saidmaterial nformation, Plaintiff would not haveagreed o undertakeperformanceon the Loan, which,

41. But for being inducedto agree o the Loan, Plaintiff s Propertywould not now be injeopardyof foreclosure, ndPlaintiff would not be at risk of financial oss herefrom.

42. DefendantsWaMu andJPMC vicariously iablefor Agent's actionsbecauseheycontrolledAgent's actionsat the nceptionandclosingof the Loan,or theycontinue oenjoy the benefitsof the Loan, or both.

43. Defendants' raud hasmadePlaintiffls credithistory worse,resulting in higher expensesfor plaintiff, hascausedPlaintiff seriousemotionaldistress,causeddifficulty for hisbusinessand lossof income,and has hreatenedPlaintiff s continuedownershipof hishomeand he equity he has n it.

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COUNT VIFRAUD PURSUANT TO 9 V.S.A. Chapter 63: Consumer Fraud44. Plaintiff repleadsparagraphs1 through43, above, and further states:45. Mortgageeof record s Long BeachMortgageCompany.46. Mortgageeof record is no longer an activecorporation and has been dissolved.47.Lenderbegan o collect monthlyMortgagepayments eginningOctober ,2005.48. Lender s not mortgagee f record.49.Lender's collection of paymentson the Mortgage and Note is fraud, because here s no. record,notice or other evidence hat the Mortgagewas assignedor transferred o Lender

from Long BeachMortgageCompany,andLenderhasno right to collect saidpayments.50. Defendants'WaMu and JPMC claims o be the mortgagebare fraudulent becausehey

haveknowingly, deliberately, ndmaliciouslymisrepresentedhemselueso Plaintiff tobe the mortgagee or the Mortgage n order to obtain the monthly mortgagepaymentsduethe true mortgagee, f any.

51. DefendantsWaMu and JPMC have committedongoing fraud ag4instPlaintiff becausethe wrongfully claims to be entitled to Plaintiff s mortgagepayments.

52. DefendantsWaMu and JPMC did not originate he Loan, they have not paid the ownersof the Loan to take title to the Mortgage,and do not makepayments rom Plaintiff spayments o the ownersof the Mortgage.

53.JPMC s defraudingnot only Plaintiff, but also he owners, f they still exist, of theMortgage.

54. Defendantshave failed to identifu the ownersof the mortgage,and attempted o claimownershipof the mortgage hemselves.

55.Afiemptsby WaMu, JPMC or FDIC to recreate r relocateso-calledost documents o asto support heir contention hat JPMC is the current egal owner of the Note andMortgage s fraud.

56. Defendants' raud is causedand continues o causePlaintiff to incorrectly appear o be indefaulton paymentsof the actualownersof the Loan.57. Defendants' raud will result in the loss of PlaintifPs home and equity through

foreclosure r otheractions f Defendant's te not enjoined rom actionof this or similarnatureasainstPlaintiff.

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COUNT VIIBREACH OF CONTRACT58. Plaintiff repleadsparagraphs1 through 57, above,and further states:59. The Lenderdeliberatelyprecipitated he default for the Plaintiff when it had the option to

avoid doing so,not as a means o protect ts "investment" in the Loan, but rathermerelyto maximize its profit, by shortening he time period during which Plaintiff canrepay heLoan than the Lenderhad agreed o in the Note and Mortgage.

6O..TheLender s forcing Plaintiff s default so as o provide the Lender a pretext foracceleratinghe Loan and initiating a foreclosureon the Proptirty.

61. Defendanth4s failed to perform by deliberaiely,knowingly, and maliciously violatingmaterialtermsof the Agreement, ncluding, amongothers, he repaymentperiod of theMortgage,which is for thirty (30) years.

62. Defendants'breachof contracthasmade Plaintiff s credit history worse,resultinginhigher expensesor Plaintiff, has caus6d'Plaintiffseriousemotionaldistrgss,causeddifficulty for his businessand oss of income,and has hreatenedPlaintiff s continuedownershipof his home and the equityhe has n it.

COUNT VIIITORTIOUS INTERFERENCE WITH CONTRACTUAL OBLIGATIONS

63. Plaintiff repleadsparagraphs1 through62, above,and further states:64.Inaddition to deliberately,knowingly, and maliciously interfering with Plaintiff s

contractualobligation underthe Mortgageand he Note, Defendantshave alsodeliberately,knowingly, and maliciously interferedwith Plaintiff s performanceon othercontractualobligations.

65. Defendantshave nterferedwith PlaintifPs othercontractualobligationsby increasing hepayments equiredfrom Plaintiff to Defendants,herebyreducingthe amountof fundsPlaintiff hasavailablefor payment of the othercontractualobligations,causingPlaintiffto be in arrearson the debtsrelated o the othercontractualobligationsand delinquentonthoseobligations.

66. Defendants' nterferencewith Plaintiff s contractual elationshasmadePlaintiffls credit

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history worse,resulting in higher expensesor Plaintiff, has causedPlaintiff seriousemotionaldistress, aused ifficulty for his business nd oss of income,and hasthreatenedPlaintiffls continuedownershipof his home andthe equity he has n it.

COUNT IXCONSUMER PROTECTIONPURSUANT TO 8 V.S.A.51040467. Plaintiff repleadsparagraphs1 through 66, above,and funher states:68.Lenderhasestablished n escrowaccountncident o theNote and Mortgage or the

purposeof payingProPertY axes.69. LenderrequiresPlaintiff to deposit nto.said escrowaccounta greatersum than is

sufficient to PaY axes.70. The greatersum requiredby Lender hascausedPlaintiff to be unable o make the

monthly Mortgagepayments n a timely manner,providing Lenderwith a pretexttoforeclose n PlaintifPsProperty.

71.Thegreatersumrequiredby Defendantsi as madePlaintiff s crbdithistoryworse,resulting n higherexpensesor Plaintiff, hascausedPlaintiff seriousemotionaldistress,caused ifficulty for his business nd ossof income,andhas hreatened laintiff scontinuedownershipof his homeand he equityhe has n it.

COUNT XCONSUMER FRAUDPURSUANT TO 9 V.S.A. $2453and $2457T2.Plaintiffrepleadsparagraphs through71, and urtherstates:_ ^ -l:. Defendantsmaderepeatedassertionshat Plaintiff would be able to refinance he Loan

when it was scheduled or an interest ate ncrease.74. Defendantsmaderepeatedassertionshat the Loan would benefit Plaintiff and his

businesselationshipwith the Agent.75.Plaintiff relied on Defendant'sassertionsn his decision o agree o the Loan.76. Moreover,Defendantshavefailed to provide services elated o the Loan in the manner

and of the natureoffered, and have refused o provide services elated o the Loan inaccordancewith other terms andconditionsof the offer.

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TT.Defendantsntended o violate ConsumerFraud aws of Vermont.78. Defendants'violation of the ConsumerFraud aw if Vermont hasmadePlaintiff s credit

history worse,resulting in higher expensesor Plaintiff, hascausedPlaintiff seriousemotionaldistress,causeddifficulty for his businessand loss of income,and hasthreatenedPlaintiff s continuedownershipof his home and the equity he has n it.

COUNTXIUNCONSCIONABLECONTRACTPURSUANTTO 9A V.S.A.52-30279.Plaintiffrestatesaragraphs through78, above, nd urtfer $ates:80.Throughoreclosure recipitated y theLenderunder hepretextof protectingts

"investments"reatedhrough he exercise f a redundantight incorpirratednto theMortgage, aid ight beingonlyto createhepretext or foreclosuren the irst place.

g1.Defendants ereandare n far betterpositionshanPlaintiffto determineheeffectsoftheeconomy ndmarketon Plaintiff sabilityto makepayments,gt theychoseo draftNoteandMortgage ocumentshatdisregardedhepotentialdifficulties or Plaintiff hatany easonableersonwith experiencen draftingsuchdocuments ouldhavebeenfamiliarwith, therebydenyingPlaintiff heabilityto continueo performhis obligationsunder heNoteandMortgagewhenchangesn circumstanceseyondhis controloccurred.

82.Defendants ereawareof the smallsizeof theLoan elative o thehigh valueof the, propertysecuringheLoanand heeasewith which heycoulddispose f thePropertyn,l

the eventof their own need o disposeof it.83. Defendantsdid not negotiateor bargainwith Plaintiff during the applicationand

agreement rocess or the Loan, but rather,Defendantsdictated o Plaintiff the conditionshe had to adhere o, without negotiationof any sort between he parties'

g4. Defendantsdraftedthe Note andMortgagewith no negotiation,bargaining,or input fromPlaintiff.

g5. Defendantsdraftedthe Note and Mortgageto maximizetheir own benefits rom the Loanwhile eliminating all risk to themselves,while maximizing Plaintiff s risks of lossfromthe Loan without providing any proportionatebenefitJo Plaintiff.

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86. Defendantsdraftedthe Note andMortgage o facilitate the fabrication of the pretextnecessaryo produce he circumstancesequired or foreclosureon the Property.

87. Defendantsdraftedthe Note andMortgage n sucha manneras o allow them to avoidhaving to investigate he actualreal estate ax consequencesn the Property.

88. Defendantsdraftedthe Note andMortgage n sucha manner o avoid investigating hemanner hat the Town of Norwich enforcesor choosesnot to enforce ts propertytaxenforcementprerogatives.

89. Defendantsdeliberately,knowingly, and maliciously are engaging n actions soas o, deprivePlaintiff of the value of his Property."

90. Combinedwith promisesand statementsmadeby Defendants.particularly Agbnt,inducingPlaintiff to accept he Note arrdMo.tgage,and combinedwith Plaintiff sunderstandinghat if he did not accepthe MortgageandNote, anddii'not accept heLoan, that he would be unable o obtain financing on his home for an extendedperiod oftime, Plaintiff believedthat he had no altemativebut to agree o and accept he Loan.

91.Defendants' nconscionableontracthasmadePtaintiff s credit uptory worse, esultingin higher expensesor Plaintiff, has causedPlaintiff seriousemotionaldistress,causeddifficulty for his businessand loss of income,and has hreatenedPlaintiff s continuedownershipof his home and the equity he has n it.

COUNT XIIVIOLATION OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING

92. Plaintiffrestatesparagraphs1 through 91, above,and further states:93. Defendantshavedeliberately,willfully, andmaliciously resistedany and all attemptsby

Plaintiff to modify the Loan in orderthat he could perform his obligations,andaccommodatehe substantialnecessitous ircumstanceshat had occurred n his lifeunexpectedly.

94. Defendantshavedeliberately,willfully, andmaliciously formed a corporatestructuredesigned o resist or eliminateany andall attemptsat meaningful communicationbetweencustomers,specificallyPlaintiff, and the Defendants.

95. In November,2007, during the time that Plaintiff attempted o initiate modification of theLoan, WaMu's representatives ever nformed Plaintiff that WaMu had paid off

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plaintiff s property tax bill, andnor that WaMu had changed he balance hat he owedthem.

96.On January31, 2008,Plaintiff receivedhis IRS form 1098 or 2001 rom the Lender,showing hathe hadpaid $13,563.18n intereston the oan,and$7,87766 n taxes.

97.Thetax paymentswere for delinquent axes hat 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 taxesfor tax year 2007-2008had beenpaid in full at the time that the Lenderhad investigated he town's tax rolls, and when it paid the back taxes. Defendantshaveignored he fact that the town did not exercise ts tax sale ights, nor threaten o exerciseits tax salerights, and Defendants efused o inquire into why-thatmay haveben,becausehe Defendantswanted o propigate a pretext thai thei were innocentlyexercising right it hadwritten into thecontractbetweenPlaintiff asbbrrowerand tselfin orderto protect its investment,which pretextwould havebeennegatedhad Defendantsallowed evidence o be developed hat would showthat it knew that its investmentwasprotectedby Vermont law and the faci that the Loan was for an anount far lower thanareasonablemarketprice for the Propertywould fetch; in other*ords, Defendantswereengaging n the bad faith refugeof corporatescoundrels that is, plausibledeniability ofa nefariousmotive for its actions.

99. Defendantsnstituted an escrowaccount,however, he escrowaccountstatementstatesthat he shortage f escrow s $13,723. 4,an amount ar in excess f anyyearly ax billapplied o Plaintiff s property - almost hree ime ashigh asPlaintiff s tax bill for anyone year.

100. The atest ax bill applied o the Property, or the fiscal yearJuly 1,2007throughJune30, 2008, ssued n July 12,2007,is$5,066.42, hichwaspaid n full by Plaintiffand the Stateof Vermont under he incomesensitivityprovisionsof Vermont tax law, byFebruary15, 2008, the due date or the final payment of that fiscal year.

101. Defendants avedemandedhatPlaintiff pay the amountof 513,723.34 veraunreasonablyshortperiod of time, andhas given Plaintiff the "option" to makepaymentsover the courseof, at first, 12monthsstartingApril 1, 2008, and subsequently,36 months(thede minimus change eferred o elsewheren this complaint),or pay the amount n fullon thatdate.

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a

102. The monthly payments, ncluding the escrowand shortfall,haverisento$2.ggL 0, rom $I,402.78,which s an ncrease,tself, rom the $1,176.38hatPlaintiffwas originally paying andthat Plaintiff believed hat he could pay on a long termmonthly basis,and was the basison his decision o agree o the Loan in the first place.

103. On June29,z}}},Plaintiff contactedhe WaMu to cancela previouslyarrangedelectronicwithdrawal from Plaintiff s bank accountbecausePlaintiff knew the accountwould have nsuffrcient funds to makethe paymenton June30, and receivedaconfirmationnumber 1565341350, onfirming the cancellationof the withdrawal, andduring the samecall informed the WaMu that Plaintiff would be making"thepayment onJune30,2008,with thepaymentbeingdrawnon an alternate ccount.

104. On June30, 2008,Plaintiff contactedWaMu by telephone nd-madehe paymentpromised he day before from an alternateaccount,and receivedconfiimation

number1565346532onfirming the payment.

105. On or aroundJuly 3, 2008,Plaintiff learnedwhile viewing his account iainternet, hat despite he confirmedcancellation,WaMu had atter4ptedo withdraw thecancelled aymenton July 1, 2008,but thepaymentwasnot honoredbecause, sPlaintiffhad informed WaMu in advance,herewere insufficient funds in the account o makethewithdrawal from; however,the attemptedwithdrawal causednumerouschecks hat forwhich therehad beensufficient fundsto coverto alsonot be honored,causingnumerousretumedcheckfees.

106. On or aroundJuly 8, 2008,Plaintiff receiveda "Home Loan Statement une200g" from WaMu, datedJune30, 2008,which purported o show accountactivity sinceJune27,2008,andwhich implied thatWaMu hadreceived he June30 paymentmadefrom the alternateaccount,and hat the total amountdue on July 1' 2008 would be$4,430.09.

rc1. On or aroundJuly 9, 2008,without authority,WaMu withdrew or attempted owithdraw for a second ime from Plaintifls bank account, he payment cancelledon June29, describedabove,saidwithdrawal causingagainanother idal wave of overdraftsandfees.

10g. The WaMu could haverestrainedtself from exercising ts rights to pay Plaintiff sbacktaxesor to demand mmediaterepaymentand establishmentof an escrowaccount,

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but it did not.109. The WaMu hasnot acted n good faith, becauset deliberatelyand knowingly did

not examine he Plaintiff s record n total, including Plaintiff s recordof tax payments,and hasdeliberatelyand knowingly blinded itself to the fact that at no time during thecourseof Plaintiff s24 yearhistory asa mortgagor,hashis real property everbeenthreatenedwith a tax saleor othersimilar financial distress,nor, in fact, did the WaMubother o recognize hat therehad beenno threatsby the town of a tax sale,becausehefinancedepartmentof the town was awareof Plaintiff s history of alwayspaying his

. property tax bill, not necessarilyon time, but always n full, and it was alsoawareof thefinancial difficulties Plaintiff faced due o his prolonged recuferation from thecomplications f the kidney donationddscribed arlier n ihis complaint.

l l0. Had the WaMu examinedPlaintiff s record n total, the WaMu-would henhavecometo the reasonable onclusion,basedon Plaintiff s history, that he posesno risk tothe WaMu's o'investment"in Plaintiff s realpropertY,and further the WaMu would haveconcluded hat it had no need o assert ts;ight to pay the back taxqs,demandreimbursement or the payments,and demandescrowpayments.

111. Instead he WaMu hasdeliberately ndknowingly chosen o compoundandexacerbate ny diffrculty Plaintiff could possibly havewith paymentson the Note andMortgage,by addingthe taxesand escrow o Plaintiff s monthly payments,essentiallydoubling or tripling his monthly payments,with only 6 weeks notice.

lI2, The payment of the taxesoccurred mmediatelysubsequento the mortgagebeingarbitrarilyandcapriciouslyadjusted pwardsmerelybecauset was he WaMu'sprerogative o do so, ratherthanbecauseherewas any necessity elated o the actualcircumstances f the Loan for the WaMu to do so.

113. Defendants,aswell asPlaintiff, are obligated o observe he covenantof goodfaith and fair dealing implied in everycontractso as o insurethat both will act withfaithfulness o an agreedcommonpurpose that of Defendantsmaking the Loan toplaintiff, and of Plaintiff repayingthe Loan in reasonablysized nstallmentsover theco'rse of 30 years- and consistencywith the ustified expectationsof eachof the parties.(Seeparagraph2l.)

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ll4. Defendantshave nterferedwith or failed to cooperatewith Plaintiff sperformance,hus they haveacted n bad faith. (SeeCenturyPartners.LP v. LesserGoldsmithEnterprises. TD., 2008VT 40 atparagtaph26')

115. Defendantshas demonstrated ctualmalicetoward Plaintiff , shownby conductmanifesting ll will of the Defendants'representativesude and harassingbehaviorwhencommunicatingwith Plaintiff, evidencingoppressionby unilaterally taking actions hat areasonable erson would know wereunable o be defendedagainstby Plaintiff, andshowinga recklessand wanton disregardof Plaintiff s rights in this matter,even hough

, Plaintiff alertedLender to the need o modify the Loan asearly as May, 2007. (SeeMonahanv. GMAC Mortgagecorp. 2005 vT 110at paragraph .)

116. Defendants ave akenadvantage f necessitousiriumstancesof Plaintiff. (SeeMonahan . GMAC Mortgage orp. 2005vT 110atparagraph44.)

ll7. Defendantsattempted o maketwo (2) separate nauthorizedwithdrawals fromplaintiffs checkingaccount,despitebeingnotified that they were not permittedto make

t suchwithdrawals,and despiteDefendhnts'acknowledgementof notice that they were notpermitted o make suchwithdrawals.

l 18. The actions akenby Defendantshave nsteadshowntheir unwillingnesstoobserve he above-described ovenantofgood faith and fair dealing.

119. The actions akenby Defendantshaveundermined he Plaintiff s rights to receivethe benefit of the agreemento take the Loan,while on the otherhand,their actshaveenhancedhe Defendants'own benefits.

120. Defendantshaveengagedn conduct hat has he characterof outrage requentlyassociated ith crime. (SeeMonahanv. GMAC MortgageCorp. 2005 VT 110atparagraPh 3')

I2l. Becauseof Defendants'violation of the implied warranty of good faith and fairdealing, his HonorableCourt is requestedo find that the contractbetweenPlaintiffs andany of the Defendants s void and has no force in law, and that Defendantsshouldbeenjoined rom enforcing any rights under he contract'

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,

COUNT XIIIVIOLATION OF IMPLIED COVENANT NOT TO INTERFEREWITH OTHER PARTY'S PERFORMANCE

122. Plaintiff repleadsparagraphs through 121,.above,and further states:123. Defendantshave interferedwith or failed to cooperatewith Plaintiff in his

performanceof his obligationsunder he contract.lZ4. Defendantshave a duty to avoid interferencewith Plaintiff s performanceunder

the Loan contract.125. Defendantsalsohavea duty to mitigatedamagesdue to allegednon-performance' of another party but Defendantshavefailed fo take any action or to permit Plaintiff to

takeany action that could reasonablybe expected o resolve he problems causedbyLender's increasesn monthly Mortgagepaymentsand otheractsdescribedabove.

126. Lender's fracturedcorporatestructurepreventedand continues o preventPlaintifffrom taking any actions o mitigate the resultsof the actionsof Defendants,and saidfracturedcorporatestructurewas deliberately,knowingly and maliciously designedandput in to discourageDefendants'customeis, pecificallyPlaintiff'from beingable oresolveor mitigate problems with loansmadeby T'ender'particularly the Loan'

I27. Therefore, his HonorableCourt is requestedo issuean order that the contract,specificallythe Mortgage andNote, areunenforceableand haveno force in law.

COUNT XIVUNJUST ENRICHMENTl2B. Plaintiff restatesparagraphs1 through 127, above,and further states:I2g. Defendantshavedeliberately,knowingly, and maliciously interferedwith

plaintiff s obligation to perform underthe contractcomprisedof theNote and Mortgage,and n doing so haveeliminatedall risksto themselves,and havetransferredall risks ofthe Note and Mortgage to Plaintiff.

130. Defendantshavebeenunjustly enriched f they proceedwith accelerationandforeclosureon the property becauseLenderwill haveobtained ees and nterestpaymentsin the amountof at least$361315.00or lessthan32 monthsof their own performancebeforethey began o interferewith Plaintiff s performance,without providing Plaintiff

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the benefit of a loan with the repayment erm of 30 years(360 months)asagreedupon inthe Note and Mortgage.

131 Defendantsstand o benefit unjustly from their actionsand the damageshey havecausedo Plaintiff, all at the expenseand to the detrimentof Plaintiff.

132. Defendants'failure to compensatePlaintiff and to benefit from their actions sinequitableand unlawful.

133. Therefore, his HonorableCourt is requestedo find that althoughno contractexistsbetweenPlaintiff and Defendant, hat Defendantshavebeenunjustly enrichedby

. Plaintiff s paYmentso date.

CdUNT XVLoNcoING FRAUD :'134. Plaintiff repleadsstatements1 through 133,above,and further states:135. During at least wo telephoneconversationswith DefendantWaMu, WaMu told

plaintiff that WaMu had not initiated the propertytax delinquen:{:vestigation, and hatthe Town of Norwich FinanceOffice had sentWaMu the tax delinquency nformation ofits own volition, and without any prompting or inquiry from Lender.

136. The Town of Norwich did not send he tax delinquency nformation of its ownvolition, and in fact, WaMu had initiated the inquiry into Plaintiff s tax statusandrequestedPlaintiff s tax status nformation from the Town without any input from theTown of Norwich.

I37. WaMu initiated the inquiry and requestedhe information at the same ime asplaintiff s monthly payments ncreasedabout20o/odue o an adjustable nterest ateincrease.

l3g. WaMu deliberately,knowingly, and maliciously made alse statements n at leasttwo separate ccasionsn orderto misleadPlaintiff regarding he initiation of the taxinquiry so as o deflect responsibilityfor the difficulty Plaintiff encounteredmaking hismonthly Mortgagepaymentsonto athird party, andto make t difficult if not impossiblefor plaintiff to resolvethe problemscausedby the precipitous ncrease n his monthlyMortgagePaYments.

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COUNT XVIDEFAMATIONPURSUANT TO 8 V.S.A. 5472413g. Plaintiff repleadsparagraphs1 through 138,above,and further states:140. Defendantshave engagedn making,publishing, disseminating,or circulating,

directly or indirectly, or encouraging he making,publishing, disseminating,orcirculating,oral or written statementwhich is falseor maliciously critical of orderogatory o the financial condition of Plaintiff and s calculated o injure Plaintiff, towit: Defendantshavedeliberately,knowingly, and maliciously caused,or permitted to be' caused,damage o Plaintiff s reputation,and.damageo Plaintiffls credit"historyregardingmortgagePaYments.

l4l. Damage o Plaintiff s credithistorywill result n economic oss due o lossofopportunityto borrow necessaly unds for businessand personalpurposes.

l4Z. Defendant'sfailure to compensatePlaintiff for the aforesaiddamage o his credithistory is inequitableand in violation of Vermont Law, and has causedPlaintiff severeeconomic oss,personallyandprofessiondlly.

COUNT XVIIUNCONSCIONABLE CONTRACT AS THE PRODUCT OF UNFAIR DEALINGS

143. Plaintiff repleadsparagraphs1 through 142,above,and further states:144. The mannerby which Plaintiff s eligibility for the Loan, and eligibility for

modification or refinancing of the Loan by Lender s determined s discriminatory andarbitrarythe Loan is predatoryand made n bad faith and unfair.

145. Defendants'mannerof determiningPlaintiffls eligibility for the Loan and formodification or refinancingof the Loan by Lender s basedon arbitrary and capriciousstandardshat bear ittle relation to Plaintiff s circumstances, nd provide Lenderwith noknowledgeof Plaintiff s actualeligibility.

146. Defendants'deliberate,knowing, andmaliciouspersistencen using saidarbitraryand capriciousstandards rovidesDefendantswith speciousargumentsagainstassistingplaintiff in avoiding foreclosureon his Property,and demonstratesDefendants'bad faithand unfair dealingwith Plaintiff.

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COUNT XVIIIADHESION CONTRACT147. Plaintiff restatesparagraphs1 through 146 above,and further states:148. In the agreementhat was draftedby Defendantswith no negotiation,bargaining,

or other input from Plaintiff, Defendantssufferno detrimentor risk, by includingcontingenciesover which only they had control, suchaspaying delinquent axes,andwhich enable hem to obtain the entireamountof the Loan with no risk to themselves,since he Loan to value ratio was so low as o guarantee hat the Defendantswould sufferno risk shouldthe Plaintiff default on the Loan.

l4g. The Loan was offeredto Plaintiff strictly on a "take it or leave t" basis.150. Plaintiff was not affordedrealisticor reasonableopportunity to bargainfor Loan.151 Under hosecircumstances, laintiff wasunable o obtain he banservices e

actuallyrequiredand continues o require.152. The Loan asdraftedby the Defendantss excessiveand onerous,deliberatelyand

maliciously designedand guaranteed o be defaultedupon,and unconscionable.

COUNT XIXMORTGAGEE CORPORATE CHARTER EXPIRED, NO MORTGAGEE OFRECORD, MORTGAGE MAY BE DISCHARGEDPURSUANT TO 27 V.S.A. $469

153. Plaintiff repleadsparagraphs1 through I52, above,and further states:154. The only mortgagee f record n Long BeachMortgagecompany.155. The chain of title regarding he mortgage n this matter s irretrievably broken.156. An investigation onducted n or aroundJuly 18,2008, of the Corporations

Division of the Office of the DelawareSecretaryof State,whereLong BeachMortgageCompanywas duly incorporated eveals hat Long BeachMortgage Companyhas beendissolved.

157. The mortgagee nd enderof recordwas Long BeachMortgageCompany,whichwas extinguished in2006 when it wasmergedwith WashingtonMutual Bank.

158. WashingtonMutual Bank did not record he assignmentor transferof themortgage o itself, thus there s no recordof WashingtonMutual Bank as he mortgageefor the oan.

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160.t6r.

159. Washington Mutual Bank was not the mortgageebecause he mortgageand loanwere divided up amongnumerous nvestors,none of whom can be identified, and none ofwhom have recorded heir interest n the mortgage.

WashingtonMutual Bank failedon September 5,2008, and ceasedo exist.WashingtonMutual Bank's assets,worth $307 Billion dollars,were transferred

to J.P.Morgan Chaseand Company or thepurchase riceof $1.88Billion Dollars, or foran amountof moneyapproximately qual o 6/l0ths of one(1) cent on the dollar of thevalue of the assets, y the FederalDeposit InsuranceCorporation, which purchasepricewas not paid to the investorswho owned the mortgage,meaning hat theportgage wasnot purchasedrom its owners, and thus.titleto the mortga.se as not transferredand thechainof title was broken.

162. The investors who had interest n the mortgage and loan lost all-benefitsof theirinterest n the mortgageand oan whenWashingtonMutual Bank failed.

t 63 . Pursuanto 27V.S.A.8469:When it appears rom the record of a mortgageon real estate hat suchmortgage sundischarged,and the mortgageenamed herein, or the assigneeof suchmortgage, s aprivate corporationwhose charterhasexpiredby it own limitation, or has been dissolvedby operationof law, forfeiture, or for any other reason,a complaint may be brought to thepresiding udge of the superiorcourt of the county wherein suchmortgage s recordedand, after suchhearing as saidpresiding udge may direct, if he is satisfied hat theconditionshave beencomplied with, and haveno force in law, and is further satisfied hatthere s no person within the statehaving authority to dischargesuchmortgage,he maydirect an order dischargingsuchmortgage. Suchproceedingsshall be without taxation ofcostsexcept hat the moving party shall bear he costs of suchnotice as saidpresidingjudgemay order.

164. Therefore, he conditionsof themortgagehavebeencompliedwith, insofaras spossible,since he mortgageesno longer exist and their interestswere not properlytransferred o legitimate successors, nd hus haveno force in law.

165. Moreover,Becausehe Loan s unconscionable nd an adhesion ontract,andbecauseLenderhas nterferedwith Plaintiff s performanceon the Loan, and for any and

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all other reasonsstatedabove, he Loan is unenforceableand void, and therefore, heconditionsof the mortgagehave beencompliedwith, andhaveno force in law.

166. No personwithin the stateof Vermont is able to prove that they legitimately orproperly havethe authority to discharge hb mortgage.

167. Therefore, his HonorableCourt is requestedo direct an orderdischargingPlaintiff s mortgage.

COUNT XX12 U.S.C. $ 1323VIOLATES THE FIRST AMENDMENT

f68. Plaintiff repleadsparagraphs1 through 167,above,and further sdates:169. 12 U.S.C. $1823,and n particular$1823(e), nconstiiutionallydeprivesPlaintiff

of his first amendment ights to free association, ecause nder the statute, hegovernmentmay force Plaintiff to associate r enter nto a contractwith an entity whichplaintiff hasneverhad a desire, ntent,or inclination to associateor enter nto a contractwith, saidentity in this casebeing JPMorgan Chaseand Co (JPMC).

I70. Freedomof Association s a fundamental ight protected ythe First Amendment.SeeNAACPv. Alabama,357U.S.449(1958).

l7l. Therefore,Plaintiff requestshat his HonorableCourt find that 12 U.S.C.$ 1823is unconstitutional,and that Plaintiff s casemay not be dismissedon groundsbasedonsaidstatute.

COUNT XXI12 U.S.C. $ 1S23VIOLATES THE FIFTH AMENDMENT

172. Plaintiff repleadsparagraphs1 through 171,above,and further states:I73. The statuteunconstitutionallydeprivesPlaintiff of his property rights under

AmendmentV, becauset permits the government o give the right to forecloseon hisproperty anddeprivehim of his property to JPMC, knowing that JPMC will, or is likelyto, exercise oreclosureprerogatives, or the purposeof stabilizing the nationaleconomyamongother things,which constitutesa public useof Plaintiff s property for whichPlaintiff s property is takenwithout just compensation'

174. The Fifth Amendmentclearly states,n part: "nor shall private propertybe takenfor public usewithout just compensation."

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175. Therefore,Plaintiff requestshat his HonorableCourt find that 12 U.S.C.$ 1823is unconstitutional,and thatPlaintifls casemay not be dismissedon groundsbasedonsaidstatute.

176.

COUNT XXII12U.S.C.S1323VTOLATESSEPARATTONOF OWERSOF THE BRANCHESOF GOVERNMENTPlaintiffrepleads aragraphs through175,above, nd urtherstates:

I77. Thepresentsuit was originally filed on or aboutJuly29,2008, andwasclearly nthe handsof the udiciary well beforethe fail'ureof WMB, itsseizure by'OTS, and sale oJPMCby FDIC on SePtembr 25,2008'

l7g. The statuteunconstitutionallycausesa breachof the Constitutibnalbarriersbetween he govemmentalbranches,becauset permits the Executive Branch to intrudeon the Constitutionalprerogativesof the JudicialBranch: the statutepermits the FDIC, apart of the ExecutiveBranch,to extinguisha plaintiff s rights, specifically thoseof theplaintiff, to be heard n a court of law, to sue,and to accessudicial review of his case,afterplaintiff has filed suit againsta bank,without due process in fact, without notice)andwithout review of his claimsby a court of proper urisdiction.

l7g. Therefore,Plaintiff requestshat his HonorableCourt find that 12 U.S.C.$ 1823is unconstitutional,and that Plaintiff s casecannotbe dismissedon groundsbasedon saidstatute.

COUNT XXIil12U.S.C.$IS23VIOLATESDUEPROCESSGUARANTEES

180. Plaintiff repleads aragraphslthrough79,above, and urther states:l8l. The statute s not carefully tailoredto achieve he goals of the government,and t

is not the leastrestrictiveor leastharmful means o achievesuchgoals, since he statute sbasedon circumstancesand conditions hat existed n 1950,when the statutewas passed,and which no longer exist, or which havechangedmaterially, substantiallyanddramatically n the 60 years since he statutewas passed'

IB2. The US SupremeCourthasheld that "The pu{posebehindsection1823(e),enactedn 1950, s to enable he FDIC, in decidinghow to proceedwith respecto a

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troubledbank, to make a quick and certain nventory of the bank's assets. t cando thisonly if it can disregardsecretoral agreementshat may impair the value of thoseassets."FederalDeposit ns. Corp.v. O'Neil,809F.2d350,35317th ir . 1987) This exercise fjudgment requires [the] FDIC to measurets loss underthe insureddepositpayoffalternativeagainst he lossundera purchaseand assumption ransaction. To calculatepossible ossunderthe purchaseand assumptionransactionas opposed o a payoff ofinsureddeposits,all of the failed banksassetsmust be evaluatedo determine he price tobe paid by the assumingbank for acceptableassets.The processof evaluationmust beundertaken uickly...The specialprotectiongivenFDIC is Sec.1823(e)acilitates hisprocess y allowing FDIC to rely on thebooksandrecordsof the bank n decidingwhether o undertakea purchaseand assumptionransactibnand in buying assetsuracceptableo the assuming ank." FederalDeposit nsuranceCorp". . MerchantsNationalBank of Mobile, 725F 2'd634m633(1 th Cir. 1984)'

183. Computersandother echnologyandpractices ave obsoletedhe need or theprovisionsof $1823(e), ince t is now feasible or a bankandFDIg to evaluate ssetsandclaimsrelated o any individual accountor asset,amongother things, asevidencedby the fact that WaMu and the DelawareDistrict BankruptcyCourt in the bankruptcyproceedingshere,both institutions,which have housandsof claimantsand claims todealwith, were ableto locatePlaintiff, and specifically contactand communicatewithhim, and o discussn detailPlaintiff s claims.

184. ThereforeFDIC and assumingbanksno longer requirethe convenienceofavoiding due diligence and of avoidingthe requirementsofjustice and equity forborrowersand claimant,specifically including Plaintiff'

a. The fact the FDIC and JPMC did not separate ssetswith relatedclaims includingplaintiff s, and nsteadsimply lumped hemall together, nd hencited $1823(e)as hemeans o defeat he claims,while unjustly enrichingJPMC, shouldat leastraisesuspicions hat therewas improper,fraudulent,or evencriminal cooperation,orcollusion,betweenFDIC andJPMC.

I 85. ln fact, the statutepermitsa governmentagency,specifically FDIC, tounilaterally,and peremptorily contribute he privateproperty of one person, specificallythe Plaintiff here, o anotherprivate entity, in this caseJPMC, therebyunjustly and

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inequitablyenriching saidentity while depriving Plaintiff of his Constitutional,property,andotherrights. Thus, 12 U.S.C.$1S23(e)acilitates he unconstitutionalaking ofprivateproperty, through the forced transferenceof money from Plaintiff to JPMC.

186. Therefore, his HonorableCourtmust find that12 U.S.C. $1823(e)deprivesPlaintiff of his Constitutional and Civil rights, thus the statute s unconstitutionalandinvalid.

COUNT XXIVUNJUST ENRICHMENT187. Plaint repleads aragraphs through'l86, above,andfurther states:188. DefendantJPMC will be unjustly enrichedbecauset has'notentered nto a

contractwith Plaintiff, yet is entitled under$1S23 o simply demandP'laintiffpay JPMC.DefendantJPMC hasprovided no services o Plaintiff.89.

190. Defendant PMChashadno contactwith Plaintiff.191. DefendantPMC'sonlyrelatio"llip with Plaintiff s to ::t:.., paymentsromPlaintiffwhileprovidingPlaintiffno service rproductof any sort;as heresultof

governmentl fiatby FDIC.lg2. Therefore, laintiff requestshat his HonorableCourt ind thatDefendant PMC

hasno contractwith Plaintiff, hat JPMC s not entitled o collectpaymentsromJPMC,and hatno quasi-contractxistsbetween laintiffandDefendant PMC.

COUNT XXVCONTRACTUNENFORCEABLE193. Plaintiffrepleads aragraphs through 92, above, nd urtherstates:Ig4. The contract etweenPlaintiffandJPMC s unenforceableecauset is not

mutuallybargainedor agreement,ut rather t is a relationshiporceduponPlaintiffby agovernmentalgencY ictate.

195. Therelationship etweenPlaintiffandJPMC s coerciven nature196. Plaintiffhasentered, nd s not able o enternto therelationshipwith JPMC

freelyandvoluntarily.t97. Plaintiffwouldnot voluntarilyenternto acontractualelationshipwith

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198. Therefore,Plaintiff requestshat this HonorableCourt find that Plaintiff did notenter nto a contractual elationshipwith DefendantJPMC, and that Plaintiff hasnoobligationsto perform for JPMC.

r99.200.

201.

Count XXVIVIOLATION OF PLAINTIFF'S CIVIL RIGHTSPlaintiffrestatesParagraphs1 through 198, above,and further states:42 U.S.C. $1983provides hat'oEvery ersonwho, undercolor of any statute'

ordinance, egulation,custom,or usage,of any Stateor Tenitory or the District ofColumbia, subjects,or causeso be subjected,any citizenof the United Statesor otherpersonwithin the urisdiction thereof o thedeprivationof any rights,privileges,orimmunities securedby the Constitutionand aws, shall be liable to thd-party njured in anactionat law, suit in equity, or otherproperproceeding or redress,except hat in anyactionbrought againsta udicial officer for an act or omissiontaken n suchofficer'sjudicial capacity, njunctive relief shall not be grantedunlessa {e,c]aratorydecreewasviolated or declaratory elief wasunavailable.For the purposesof this section,any Act ofCongress pplicableexclusively o the District of Columbiashallbe consideredo be astatuteof the District of Columbia"

FDIC,a govemmentalgency,tselfand hroughts agents,ncluding tsChairperson,DefendantSheilaBair, has deprivedPlaintiff of his civil rights, including,but not limited to, his rights under he First Amendmentto freely associateand enter ntocontracts,and his property rights under he Fifth Amendment,and his rights to be heardin a courtof law or equitY.

202. Defendants,specifically FDIC, havepetitioned he Court to replaceWashingtonMutual Bank in this case,and ts petition has beengranted,and therefore t is a Party nthiscase.

203. Defendants aveused12 U.S.C.$1823(e)or improperpurposes; lthough hestatutewhen it was first enactedweighed he need or expediency n supporting hefinancial systemagainst he rights of individual claimants,and choosinga sort of lesserof two evils, depriving claimantsof their rights or stability of the financial system or thebenefit of the society atlarge,becausehe technologyof the time did not permit both sets

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of interests o be weighed equally, t is no longer tme or necessaryhat the interestsof theindividual claimantsconflict with thoseof the societyat large, nor is it true that there stillexistsno means o evaluate ndividual claimswithout disturbing the smoothrepairof thefinancial system or the benefit of societyat large. Therefore,continued nvocationof 12U.S.C.$1S23(e)s no longer necessaryo support he financial system or the benefitofthe society atlarge, and to continuesuch nvocationof the statutewould at the very leastgive the impressionof the improperuse of the statute, f not demonstrate uch mproperuse. An improper usewould be, for instance, he transferof assets rom a failed bank,and fabricating a needfor speed n the transference o as o hide the improperrelationship etweenFDIC and heassuming ank,FDIC woirld invoke $ S23(e)n orderto rushthe transfer,and eliminate any liabilities attachedo the assets, s a means o do afavor to the assuming ank,beforeanyonehad he time to look carefuilyat thetransactionand halt it.

204. Defendantssubjectedor causedPlaintiff to be subjected o the deprivationof anyrights,privileges, or immunities secur'ed y the Constitutionand la,wseitherdirectly orthroughvicarious iability as he employerof employees ngagedn the duties or whichthey were authorized o carry out on behalf of their employers,saidduties subjectingPlaintiffs or causingPlaintiffs to be subjected o the deprivationof any rights, privileges,or immunities securedby the Constitutionand aws, and are herefore iable to thePlaintiff for injuries and for redress hereof,and any damagesauthorizedby law and suchother emedies sdeemedust and equitable.

205.206.

Count XXVIIVIOLATION OF PLAINTIFFOS CIVIL RIGHTSPlaintiff restatesParagraphsl hrough 204, above,and further states:FDIC, a governmentalagency, tself andthrough its agents,ncluding its

Chairperson,efendantSheilaBair,hasdeniedPlaintiffhis right to redress nder heConstitution,y invoking12U.S.C.$1823(e)n order o deliberatelyndwilltullyextinguishPlaintifflsright to beheard n a courtof law, and o eliminatePlaintiff sclaims iledwith theCourtbeforeFDICmadeheconveyancef Plaintiff s oan oJPMC, huspreventingheCourt romhearingheclaimsand udging hemontheir

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

SeventhAmendmentby invoking 12 U.S.C.$1823(e)n order o deliberatelyandwillfully extinguishPlaintiff s right to be heard n a court of law, andto eliminatePlaintiff s claims filed with the Court beforeFDIC made he conveyanceof Plaintiff sloan to JPMC, thuspreventing a ury from hearingand finding the facts of the case.

208. Defendantssubjectedor causedPlaintiff to be subjected o the deprivationofrights,privileges, or immunities securedby the Constitution and laws eitherdirectly orthroughvicarious liability as he employerof employeesengaged n theduties for whichthey were authorized o carry out on behalfof their employeri said dutiessubjectingPlaintiffs or causingPlaintiffs to be subjectedo the deprivation of any rights, privileges,or immunities securedby the Constitutionand aws, and are herefore iable to thePlaintiff for injuries and for redresshereof,and any damagesauthorizedby law and suchotherremediesas deemedust and equitable.

209.210.

CountXXVIIVIOLATION OF PLAINTIFF'S CIVIL RIGHTSPlaintiffrestates aragraphsthrough208above, nd urtherstates:FDIC,a government gency,tself or throughts agents r both, ncluding ts

Chair,DefendantSheilaBair, has deniedPlaintiff his First Amendmentrights, forcinghim to associatewith and enter nto a contractual elationshipwith a private corporation,specifically,JPMC, with which he hadheretofore,and hasnow, no desire, ntention,orwillingnessto associatewith or enter nto a contractual elationshipwith.ztr, Defendantssubjectedor causedPlaintiff to be subjected o the deprivationof anyrights,privileges,or immunities securedby the Constitutionand laws eitherdirectly orthroughvicarious liability as he employerof employeesengagedn the dutiesfor whichtheywere authorized o carry out on behalf of their employers,said dutiessubjectingPlaintiffs or causingPlaintiffs to be subjected o the deprivationof any rights, privileges,or immunities securedby the Constitutionand laws,and are herefore iable to thePlaintiff for injuries and for redresshereof,and any damagesauthorizedby law and suchother emedies sdeemedust andequitable.

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Count XXIXVIOLATION OF PLAINTIFFOS CIVIL RIGHTSPlaintiff restatesParagraphs through 211" above, and further states:FDIC, a govemmentagency, tself or through its agentsor both, including itsChair,Defendant SheilaBair, hasdeniedPlaintiff his Fifth Amendment rights protecting

him against aking his property for public use without just compensation.2t4 . By donating Plaintiff s loan to JPMC in orderto stabilize the national economy,

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

money that he would not have o pay above and beyondwhai"is necessary or the loan tobe resolved hrough this suit, and n the second nstance,he actual reil propertyPlaintiffowns, since,by defeatingPlaintiff s claims against he lenders nvolved in this casebyadministrativemeans,FDIC hasgiven JPMC unfettered icense o forecloseon Plaintiff shome without making any attempt whatsoever o resolve he problems hat wereunexpectedlycausedby circumstances eyondPlaintiff s control, but which could havebeen, andcould possibly still be, resolved hroughnegotiationsmade n good faith,provided,of course, hat Defendantshad incentive to negotiate n good faith, somethingthat thev have thus far demonstrated o inclination for.

Defendantssubjectedor causedPlaintiff to be subjected o the deprivationof

2t2.213.

216.rights,privileges, or immunities securedby the Constitution and laws either directly orthroughvicarious liability as he employeror controller or both of employeesengagednthe duties or which they were authorized o carry out on behalf of their employers,saidduties subjectingPlaintiff or causingPlaintiff to be subjected o the deprivationof rights,privileges,or immunities securedby the Constitutionand laws, and are herefore iable tothe Plaintiff for injuries and for redress hereol and any damagesauthorizedby law andsuch other remediesas deemedust and equitable.

Count XXX, FRAUDPlaintiffrestates aragraphs through216,above, nd urtherstates:t 7 .

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2r8. FDIC, a governmentagency, tself or through its agentsor both, including itsChair,DefendantSheilaBair, engagedn fraud because y invoking 12U.S.C.$1823(e),it permittedJPMC to continue he actions hat WaMu had first initiated by knowingly anddeliberatelyengaging n fraud itself in order to originate oans and also by encouragingits representatives nd brokers to do so aswell, as s the case n this suit. Such raud isthe subjectof numerouspublic reports, ncluding reports ssuedby the United StatesSenatePermanentSubcommitteeon Investigations" n April of this year.

Defendants ncluding JPMC and ts Chair, Defendant JamieDimon engaged n19.fraud becausehey knew or shouldhave known that Plaintiff s loan was.originatedunderfraudulent onditions,and hen he two entiiies nvoked $1823(e) o hide their knowledgeof the fraud.

220. DefendantsncludingJPMC and ts Chair,Defendant amieDimon, engagednfraud becausehey have claimedthat they were unable o examineand evaluatePlaintiff s loan among other assets onferredupon JPMC by FDIC, thus the need oinvoke12U.S.C.$1S23(e) oas o denyPlaintiffhis civil rights,,yethey claim hat heycan dentify the mortgageesof Plaintiff s loan so that they can establishauthority todischarge he mortgageproperly underVermont law.

221. Defendantsengagedn fraud both in the inducement,and during the term of theloans, ecauseheyknewor should ave nown,anddidnot disclose uch nowledge,that he oanswouldbe"securitized" nd hatbecausef the"securitization" uchoanswouldbeexcessivelyifficult, f not mpossible,shasbeenhe caseor Plaintiff, omodify he oans f circumstancesrose uring he extensiveife of theseoans hatnecessitatedodificationn order or the borrowero continue o perfonnor to performsubstantiallynder he ermsof the contract,which n fact s thatcase or Plaintiffhere.

CountXXXIABUSE OF PROCESSBY DEFENDANTS222. Plaintiffrestates aragraphs hrough221, and urtherstates:223. Defendants DIC, a government gency, tself or through ts agentsor both,

including its Chair, Defendant SheilaBair, and JPMC, and its Chair, JamieDimon, haveengagedn abuseofprocessbecauseheyhave nvoked heprocessauthorized y 12

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U.S.C.91823(e)as a meansof hiding their ntent and acts hat deprivedPlaintiff of hiscivil rights as setforth herein,which constitutesan improper pu{pose, ather thantheintendedpurposeof the statute,which is to assist n retaining the stability of theAmerican economy, or which the statute s not necessary, nd its invocation in this casewas unnecessary ince t is clear that contrary o the intention of the statuteas t waswritten 60 yearsago,Defendantsclaim to be ableto accessdatarelated o a specific oanwhen it is convenient or themselves.

224. SuchbehaviordemonstrateshatDefendantsnvoked 12 U.S.C $1823(e)n bad. . faith, another ndicator of abuseof processby Defendants.225. Therefore,becauseDefendants ave nvoked 12 U.S..C.$1823(e)or in improper

purpose,and therefore hey have engaled in abuseof proiessagainst.thePlaintiff,Defendantsare iable to the Plaintiff for injuries and damagesarising but of saidabuseofprocess, ncluding any damages uthorizedby law and suchother remediesas deemedjust and equitable.

WHEREFORE, Plaintiff respectfullyrequest hat this HonorableCourt:A. Find that12 U.S.C. 1823(e)s unconstitutional;B. GrantPlaintiff s relief as requestedn eachCount; andC. Grantany and suchother relief as he Court deems s ust and equitable.

Dated:october / 2,zoto Respectfully ubmitted,

P.O.Box562Norwich,Vermont05055802649-3400

Respectfullyubmitted,

TCiccotelliintiff"Pro Se

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CERTIFICATEOF SERVICEI, EmestJ. Ciccotelli,hereby ertify hat on thisiffday of October,20l0,I forwardedthe abovePLAINTIFF'S SECONDAMENDEDCOMPALINT,by first classmail,postageprepaid,o:RobertMcCall, Esq. or FDICPeabody ndArnold, LLFederalReserve laza600Atlantic AvenueBoston,MA 02210-2261

, - Christopher . Roy,Esq. or JPMorganChase& Co.,DownsRachlinMartin, PLLC199Main Street, , -P.O.Box 190,Burlington, T 05402-0190DonaldLaPlume.14EastStreet,Claremont, H 03743

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