Kevin Khamati Oduor

WEST VIRGINIA: IN THE CIRCUIT COURT FOR JEFFERSON COUNTY ERIC NEWMAN, Plaintiff, vs. ARY LS 4 LLC Registered Agent Address: 24 COMMERCE STREET, STE 606 NEWARK, NJ 07102 Defendant Case No. CC-19-2023-C-108 Before Judge David Hammer ELK RIVER TRUSTEE INC 714 VENTURA DRIVE #132 MORGANTOWN, WV 26508 Office/Fax:- DEFENDANT, Third Party MADISON MANAGEMENT SERVICES, LLC 4600 KIETZKE LN, STE K-225 RENO, NV 89502 Office: - Fax: -, DEFENDANT, Third Party FIRST AMENDED COMPLAINT – FOR QUIET POSSESSION AND AWARD DAMAGES PENALTY I – COMPLAINT 1. COMES NOW ERIC NEWMAN, Plaintiff, in the above-styled and numbered cause, self-representation, reserves the right to be represented by an attorney prior to trial, files this Complaint against Defendant, ARY LS 4 LLC, ELK RIVER TRUSTEE INC and MADISON 1 MANAGEMENT SERVICES, and in support thereof would show unto the Court the following matters and facts: II - NATURE OF THE CASE, PARTIES AND THE SUBJECT MATTER JURISDICTION 2. This is a cause of action for declaratory relief and monetary damages relief with the subject matter being real property located in the County of Jefferson, State of West Virginia, and within the court's subject matter jurisdiction. 3. The Venue is appropriate in this Court and the Circuit Court for Jefferson County pursuant to WV Code § 56-1-1 (2002 through Reg Sess) because the real property subject to this case is located within the jurisdiction, Plaintiff resides in the County of Jefferson, and the causes of action herein also accrued in the County of Jefferson. 4. The Defendant ARY LS 4 LLC is a New Jersey Limited-Liability Company. Registered Agent Address 24 COMMERCE STREET, STE 606 NEWARK, NJ 07102. Defendant ARY LS 4 LLC alleges that it holds the right, title, and interests as a beneficiary of a trust deed which entitles it to collect debt payments for Plaintiff. Plaintiff denies the existence of any interest, claim, or right alleged by Defendant ARY LS 4 LLC. 5. Defendant MADISON MANAGEMENT SERVICES, LLC is a Nevada Limited Liability Company 4600 KIETZKE LN, STE K-225 RENO, NV 89502. This Defendant alleges to have acquired the mortgage servicing rights and interests of Defendant ARY LS 4 LLC based on a Notice of Assignment, Sale, or Transfer of Servicing Rights dated April 18, 2023, a claim to which Plaintiff is a stranger to. 6. Defendant ELK RIVER TRUSTEE INC is a 714 VENTURA DRIVE #132 MORGANTOWN, WV 26508. This Defendant is an alleged successor trustee on a deed of trust in which Defendant ARY LS 4 LLC is subject to the alleged payments and loans Defendant ARY LS 4 LLC is seeking to collect from Plaintiff. The notice sent to Plaintiff on March 31, 2023, was sent by Defendant to the Plaintiff. 2 III – BACKGROUND OF CASE 7. Plaintiff is an adult resident senior USA citizen of Harpers Ferry, Jefferson County, West Virginia. Plaintiff owns 158 Cornpone Ln, Harpers Ferry, WV 25425, formerly recorded as 32 Cornpone Ln, and possesses that real property (hereafter called Property) situated in the County of Jefferson, State of West Virginia, and described as follows: Legal Description: ALL OF LOTS 14, 15, AND 16, SECTION 9-F, AS THE SAME ARE DESIGNATED AND DESCRIBED AND ON A PLAT SECTION 9-F, MADE FOR SHANANDOAH, INC, A CORPORATION, BY HOLMEAD AND FREY, SURVEYORS, DATED, 1958 AND RECORDED IN THE OFFICE OF THE CLERK OF THE COUNTY COMMISSION OF JEFFERSON COUNTY, WEST VIRGINIA, IN DEED BOOK 223, AT PAGE 507. 8. Plaintiff and Plaintiff's predecessors in interest have had exclusive, complete, actual, open, hostile, and continuous undisputed possession of the Property adverse to Defendant for more than 20 years (statutory period). 9. Plaintiff and plaintiff's predecessors in interest have paid all taxes levied or assessed against the Property for more than 20 years (statutory period). 10. Defendants, jointly and severally, allege that Plaintiff owes Defendant ARY LS 4 LLC $129,819.47. This claim is communicated to Plaintiff through a notice sent on March 31, 2023, by Defendant ELK RIVER TRUSTEE INC for and on behalf of ARY LS 4 LLC. 11. According to the alleged claims by Defendant ARY LS 4 LLC and MADISON Management Services LLC, ARY LS 4 LLC acquired the right, title, and interest of Dove Capital Corporation, as beneficiary, under that certain Deed of Trust, dated January 5, 2007, and recorded on February 23, 2007, in the Office of the Clerk of the County Commission of Jefferson County, West Virginia in Deed of Trust Book 1629, at page 173 (the “Deed of Trust”), pursuant to that certain Assignment of Deed of Trust recorded on February 6, 2023, in the aforesaid Clerk’s Office in Assignment Book 192, at page 743. The recorded Assignment of Deed of Trust identifies the 3 Assignor of the Deed of Trust as Mortgage Electronic Registration Systems, Inc. (i.e., MERS), in its capacity as nominee for Dove Capital Corporation. 12. Further, Defendant ARY LS 4 LLC and Madison Management Services LLC allege that Madison acquired the mortgage servicing right and interest of ARY, as evidenced by a Notice of Assignment, Sale, or Transfer of Servicing Rights, dated April 18, 2023, a copy of which was mailed to Plaintiff by Madison. The Notice of Servicing Transfer dated March 29, 2023, specifically states that Promissory Note payments should be sent to Madison Management Services, LLC and that no other elements or terms of the Promissory Note were to change. IV – FIRST ALLEGATION - ANY COLLECTION, INTEREST, OR CLAIM ALLEGED BY DEFENDANTS IS BARRED BY STATUTE OF LIMITATION 13. Plaintiff avers that all and any claim by Dove Capital Corporation is barred by the W. Va. Code § 55-2-6 which limits a claim based on contract to ten years. Defendant ARY LS 4 LLC being a beneficiary does not open the statute of limitation for Defendant ARY LS 4 LLC. 14. The alleged loan and interest claimed by Defendant ARY LS 4 LLC and secured by the Second Trust Deed were entered into on January 5, 2007. 15. The alleged claim by Defendant ARY LS 4 LLC is a violation of federal or state mortgage lending laws. The claim seeks to revive a claim after 17 years have passed for an interest that was already discharged by Plaintiff directly to IndyMac Bank. 16. The Plaintiff has possession of documents from IndyMac which shows that the loan was discharged in favour of the Plaintiff. Because of that discharge, Defendant ARY LS 4 LLC cannot and does not have the legal right to reopen that loan account or enforce the Second Trust Deed related to that loan. 17. Any interest that Dove Capital Corporation had in the property is barred under the statute of limitation of action. The statute of limitation will consequently also prevent any successors in title and assignees of Dove Capital Corporation from reviving a claim that is time- 4 barred. Defendant ARY LS 4 LLC acquiring title and interest of Dove Capital Corporation through the alleged Second Trust Deed is not a legal justification to revive a debt that has already been settled more than 17 years ago. 18. Plaintiff avers that Dove Capital Corporation had no claim against him and that is why the same loan foreclosure notice was removed in the year of 2009, in any case, even if such an interest existed Dove Capital Corporation and its assignees and successors failed to enforce the same interest after 17 years and is now defeated by the statute of limitation. 19. Wherefore, Plaintiff respectively requests the Court to enter judgment in form or declaratory decree in favor of Plaintiff against Defendant on Count I based on the reason that Defendant's alleged claims, rights, and beneficial interests have been overtaken by time and no collection or foreclosure is enforceable by the Defendants against the Plaintiff and an award Plaintiff damages, interest, attorneys’ fees, and costs. V - SECOND ALLEGATION: DEFENDANTS ARY LS 4 LLC AND MADISON MANAGEMENT SERVICES HAVE NO VALID INTEREST 20. Defendant ARY LS 4 LLC claims to be the holder and assignee of an alleged debt owned by Plaintiff and secured by way of a deed of trust against the Property. 21. Defendant Elk River Trustees, Inc., sent, acting on instruction from Defendant ARY LS 4 LLC, Plaintiff a notice correspondence dated May 31, 2023, alleging, and seeking to collect upon a mortgage alleged to have been owned to Defendant ARY LS 4 LLC. 22. Defendant ARY LS 4 LLC is a stranger to Plaintiff and did not provide Plaintiff with any information, documents, or justification for the alleged debt on May 22, 2022. 23. Plaintiff wrote to Defendant ARY LS 4 LLC on July 10, 2023, informing Defendant ARY LS 4 LLC and Elk River Trustees, Inc. to cease collection and foreclosure on his property. Defendant ARY LS 4 LLC was the authorized agent of Defendant ARY LS 4 LLC. The 5 Defendants did not respond to Plaintiff's demand letter, and neither did they send any documents to justify their alleged debt and secured mortgage. 24. Plaintiff also informed Defendant in his demand letter that he disputes all payments alleged by Defendants ARY LS 4 LLC and Elk River Trustees, Inc. After issuing the demand notice, Defendant had an opportunity to furnish all documents alleged to prove their claim. 25. Plaintiff also disputes and denies all debt and payments associated with the Second Trust Deed. If any debt existed, the same was settled through IndyMac and with FDIC Conservator after they took over IndyMac (Failed bank) in the year 2007 thru 2010. 26. Defendant claims an estate or interest in the Property as of Aug 2022 or thereafter to be the newly subsequent beneficiary to "Deed of Trust-", (hereafter called Cloud on Title) is without rights. 27. Defendant ARY LS 4 LLC claims that it acquired the right, title, and interest of Dove Capital Corporation, as a beneficiary under a certain Deed of Trust dated January 5, 2007. In response, the Plaintiff avers that he paid all outstanding debts that he owed to Dove Capital Limited. 28. Without prejudice to any averments herein, the Defendants’ claim is analogous to Reviving Foreclosure Settlements or Relitigate FDIC Law Enforcement or Amend HAMP Loan Modification of the past 17-year which is outside the statutory period that has passed in settlements of IndyMac Bank closure and Dove Capital closure enforced by FDIC on institutions practicing predatory lending and mediated by HAMP a government-sponsored program that provided relief to consumers harmed by these predatory lenders during and between 2008 to 2010 and by Dodd-Frank Lending Act during and between 2007 to 2016, both have ended. 29. Without prejudice to any averments, if there was any claim against the Plaintiff’s title to the Property pursuant to Deed of Trust- and in connection with the Second Trust Deed, the same claim was extinguished, forgiven, and/or paid by the Plaintiff. 6 30. Without prejudice to any foregoing and any averments herein, the alleged interest by Defendant ARY LS 4 LLC was already settled and foreclosure removed from the Plaintiff Property on July 18, 2008 by IndyMac Bank. 31. The only loan facility that the Plaintiff is and was aware of is that supported by the First Trust Deed and was for a loan of $ 244,000. This facility was already settled by the Plaintiff and no other loan exists as alleged by Defendants. 32. The Defendant's alleged claim and interest in the Property is speculative. Defendant ARY LS 4 LLC business was created and started in Aug of 2022 with the sole purpose of high risk speculative buying of discounted mortgage notes having a "Cloud on Title" and has assembled other Defendants and third parties to execute their predatory requests upon West Virginia elderly senior citizens property owner including the Plaintiff. 33. Defendant ARY LS 4 LLC's allegations, interest, or claims of Cloud on Title remain to be in violation under the WV Code: 31-17A-16 & Federal Trade Commission Bureau of Consumer Protection and other applicable laws by failing to make disclosures to Plaintiff regarding the Defendant’s alleged interest in Plaintiff’s property. 34. Defendants also ran the Plaintiff's credit report without Plaintiff’s permission in violation of applicable credit laws. The Defendants ran Plaintiff report twice, first, it was on May 22, 2022, which was more than one year ago. They also ran Plaintiff's credit report on March 31, 2023. The credit report is being run by the Defendants with no notice to the Plaintiff. 35. The plaintiff comes now in this complaint for quite title and damages against subsequent beneficiaries, the Defendant, and all Defendant Third Parties because of the foregoing factual averments. 36. The Plaintiff already sent a Demand Letter to Defendants. Defendants failed to provide crucial documents to Plaintiff to verify the debt, the loan disbursement, loan account, and loan closing documents with “original wet signatures”, which they allege to have inherited from Dove Capital Corporation. Further Defendants have failed to provide any past and current 7 beneficiaries, loan servicers, all monthly mortgage statements, “all notices” of loan servicer transfers, all beneficiary transfer notices, all escrow closing statements, all trustee sale companies, all mortgage statements, all loan numbers, all credit collection notices , all charge-off sales and write -offs or transfers to this debt "Cloud on Title", in accordance with the Fair Debt Collection Act ("Act"). 37. Defendants are mandated to furnish statements and documents about the debt to the Plaintiff as per the provisions of the Fair Debt Collection Act. Defendants failed to meet these legal requirements when sending Plaintiff their debt collection notice and after receiving the Plaintiff’s Demand Letter. 38. Plaintiff demands herewith demands that any and all foreclosure action and debit collection by Defendants be ceased with the above request pursuant to the Act, which provides that your office "shall cease collection of the debt, or any disputed portion thereof until this Court has set for a trial by jury to determine all adverse claims of Defendant and all persons claiming under Defendant, and the submission of all evidence and witness testimonies, and items 7.1 through 7.3 thereof, below, to determine a final judgement in this compliant request to a Quit Title, of this "Cloud on Title". 39. Plaintiff avers that since Defendant ARY LS 4 LLC has no claim, right, or interest, Defendant Madison Management Services LLC cannot acquire an interest that Defendant ARY LS 4 LLC does not have. The plaintiff shall rely on the principle of Nemo Dat Rule "No one can give what they do not have". 40. Reason wherefore Plaintiff requests the Court for judgment in favor of Plaintiff against Defendant on Count II and award Plaintiff damages, interest, attorneys’ fees, and costs. VI – THIRD ALLEGATION: SECOND TRUST DEED WAS OBTAINED BY FRAUD AND FORGERY 41. The Plaintiff avers that the original warehouse beneficiary and loan originator Dove Capitol obtained a Second Deed of Trust on Property resulting in a “Cloud on Title” by fraud, 8 forgery of signature(s) and alteration and misrepresentation of statements in the Deed of Trust, is evidenced by Plaintiff’s Exhibit B.1, see attached Page 1 of 8 (paragraph 2), and Page 7 of 8 and Page 8 of 8 and page inserted at a later date and time, titled as “California All-Purpose Acknowledgement” recorded after the Jan 5, 2007 loan closing date on Feb 23, 2007. 42. Defendant ARY LS 4 LLC has no estate, right, title, lien, or any legal interest in or to the Property or any part of the Property before Aug of 2022. When Plaintiff raised his concerns with Dove Capital Corporation about the fraudulent loan of $45,750 the same was corrected and removed from the Plaintiff's account on July 18, 2008 evidenced by Plaintiff’s Exhibit E.1, see attached. 43. Defendant ARY LS 4 LLC alleges interest is alleged to have emanated from a loan of $45,750 secured by the Second Trust Deed (Deed of Trust-) dated January 5, 2007. The Plaintiff is a stranger to such a security document. Further, Plaintiff did not receive this loan from Dove Capital Corporation or any other third party. 44. The only loan which Plaintiff received from Dove Capital Corporation is $244,000 and the said loan was secured by the First Trust Deed (Deed of Trust-). 45. The Plaintiff did not sign the Second Trust Deed. The said Deed is fraudulent and unlawful and was procured by fraud. The plaintiff disputes and disagrees with any interest or claim based on the Second Trust Deed. Plaintiff further avers that no such loan was ever advanced to him by Dove Capital Corporation. 46. The Plaintiff avers that the original warehouse beneficiary and loan originator Dove Capitol made, in any manner, false or deceptive statements or representations. The Second Trust Deed is thus fraudulent unlawful and in violation of WV Code: 31- 17A-16 & Federal Trade Commission Bureau of Consumer Protection, and/or other applicable laws. 47. There was a foreclosure notice that was shared with the Plaintiff in 2009 and the said loan for $45,750 came to the Plaintiff's knowledge. The plaintiff contacted IndyMac Bank and raised fraud and forgery concerns. The plaintiff is unaware of the notary of record appearing 9 in the Second Deed of Trust. After Plaintiff contacted the failed bank (IndyMac), the FDIC Conservators removed and waived the amount of $45,750 in all foreclosure proceedings in the year 2009. 48. Without prejudice to the foregoing, Plaintiff avers that if the originator Dove Capital Corporation Second Trust Deed and loan is valid in any way, it conducted its business without valid and lawful license and compliance as required under West Virginia laws. Further, subsequent beneficiaries, assignees, and successors whoever they are including Defendants ARY LS 4 LLC, ELK RIVER TRUSTEE INC, and MADISON MANAGEMENT SERVICES do not have licenses to act as a loan originator, trustee, loan servicer, notary, or consultant to Defendant ARY LS $ LLC to conduct to carry out unlawful business acts as they allege and are in violation of WV Code: 31-17A-16 & Federal Trade Commission Bureau of Consumer Protection laws and/or other applicable laws. 49. Defendant ELK RIVER TRUSTEE INC sought to collect on a loan that had already been settled and Plaintiff had zero liability. Such an attempt to collect is fraudulent, misleading, and a breach of the Fair Debt Collection Act. 50. Defendant ELK RIVER TRUSTEE INC is a successor trustee of a trust that was obtained by fraud, forgery, and misleading. In its capacity as a successor trustee, Defendant ELK RIVER TRUSTEE INC is seeking to collect on a document which is fraud and hence equally liable. 51. Plaintiff, in reliance on the Fair Debt Collection Act and other laws demands that Defendant to prove the disbursement of the said funds to Plaintiff. Plaintiff shared with Defendant a statement showing that the loan which they seek to enforce and collect on was written off or settled on July 18, 2008, evidenced by Plaintiffs Exhibit E.1. The Defendants are put to strict proof to provide documents which prove the contrary. 10 52. Reason wherefore Plaintiff requests the Court for judgment in favor of Plaintiff against Defendant on Count II and declare that the loan was settled and award Plaintiff damages, interest, attorneys’ fees, and costs. VII – FOURTH ALLEGATION: THE LOAN WAS SETTLED, PAID AND/OR FORGIVEN 53. Plaintiff avers that the Defendants jointly and severally seek to enforce a loan that is non-existent, restructured, and/or forgiven. A trust deed is an interest over the property of the borrower homeowner who is given a loan. After the loan is paid off, forgiven, or discharged, the trust deed is a mere paper and the security or interest which it seeks to protect vanishes with the loan being paid off, forgiven, or discharged. 54. Plaintiff has no loan in connection with the Second Trust Deed. Using the same factual analysis, the Second Trust Deed ought to have been removed or deleted. In alternative, if such a trust deed was not deleted the same is a mere paper and holds no interest in the property. Any enforcement of a loan that is discharged, forgiven, or restructured and paid off is a violation of lending law and violation of consumer protection laws which the Defendants are liable for. 55. Plaintiff avers that since all rights, interests, and beneficial ownership which Dove Capital Corporation had in the Property of the Plaintiff was extinguished, the Defendants claim, whether joint, several, inherited, assigned, or otherwise in fraudulent, illegal, unlawful with no color of right. 56. The Plaintiff shared with Defendant a statement showing that the loan which they seek to enforce and collect on was written off or settled on July 18, 2008, evidenced by Plaintiffs Exhibit E.1, see attached. The Defendants are put to strict proof to provide documents which prove the contrary. 57. Reason wherefore Plaintiff requests the Court for judgment in favor of Plaintiff against Defendant on Count II and declare that the loan was settled and award Plaintiff damages, interest, attorneys’ fees, and costs. 11 VVI - CONCLUSION 58. REASON Wherefore, without any prejudice to the prayers foregoing, Plaintiff prayer in its request for judgment against the Defendants jointly and severally for Quiet Title as follows: a. That Defendant ARY LS 4 LLC and MADISON MANAGEMENT SERVICES beneficial interest, claim, or title b. That Defendant ARY LS 4 LLC, ELK RIVER TRUSTEE INC, and MADISON MANAGEMENT SERVICES and all persons claiming under Defendant(s) be required to set forth the nature of their claims to the Property as they allege; c. That Defendants ARY LS 4 LLC, ELK RIVER TRUSTEE INC, and MADISON MANAGEMENT SERVICES, their agent, employees, successor, and assignees be estopped and an injunction to issue against them, jointly and severally, from collecting or foreclosing the Property. d. A declaratory decree order that the claim, right, and beneficial interest by the Defendants their agent, employees, successor, or assignees is barred under the statute of limitation laws. e. For a decree of this Court to set for trial to determine all adverse claims of Defendant and all persons claiming under Defendant, and the submission of all evidence and witness testimonies, to reach a final judgement. f. That plaintiff reserves the right to be represented by an attorney before a trail time and date to be set. g. For a finale decree to declaring that Plaintiff owns absolutely and is entitled to the quiet and peaceful possession of the Property as against Defendant and all persons claiming under Defendants, that Defendants and all persons claiming under Defendants have no estate, right, title, lien or interest in or to the Property or to the Plaintiff and plaintiff's predecessors and assignees in interest or any part of it, and that “Cloud on Title” to the Property be quieted in Plaintiff against all claims of Defendants and all persons claiming under Defendants; h. For a final decree order permanently enjoining Defendants, jointly and severally, and all persons claiming under Defendants and all subsequent beneficiaries from asserting any estate, right, title, lien, or interest in or to the Property “Cloud on Title” or any part of it adverse to Plaintiff. 12 i. For costs incurred of this complaint; and the cost incurred to cure the “Release of Mechanics Lien” on the Property in the amount of $132,560.00, shall be paid to Plaintiff by the Defendant, jointly or severally. j. For such other and further relief as the Court deems just and proper. Dated October 19, 2023. RESPECTIVELY SUBMITTED _________________________ ERIC NEWMAN - Pro Se Plaintiff 158 Cornpone LN, Harpers Ferry, WV 25425 - Fax: - 13 VERIFICATIONS I, ERIC NEWMAN, declare and certify under the penalties of perjury that the factual information set forth in the foregoing Complaint, is true and correct, to the best of his knowledge and belief, the undersigns certifies and verifies as aforesaid that he verily believes the same to be correct and true. ______________________ ERIC NEWMAN – Plaintiff (Pro Se) STATE OF CALIFORNIA COUNTY OF LOS ANGELES, to-wit I ___________________________ a Notary Public in and for the State and County aforementioned do hereby certify that ERIC NEWMAN, whose name is signed in the foregoing Verification bearing the date of the ________ day of ________, 2023, has this day acknowledged the same before me in my said county. Given under my hand this _________ day of ___________, 2023. My commission expires __________________________. 14 CERTIFICATE OF SERVICE I hereby certify that on the 19th day of October, 2023, 1 served the foregoing First Amended Complaint with the Clerk of the Court, which will send notification of such filing to the following counsel of record. I further hereby certify that on the 19th day of October, 2023, I served the foregoing First Amended Complaint upon all parties by depositing true copies thereof in the United States Mail, postage prepaid, and respective attorney as follows: DEFENDANT ARY LS 4 LLC & MADISON MANAGEMENT SERVICES William J. Powell (W. Va. Bar No. 2961) Kelsey Swaim Miller (W. Va. Bar No. 12574) STEPTOE & JOHNSON PLLC 1250 Edwin Miller Blvd., Suite 300 Martinsburg, WV 25404 Tel: - Fax: --- DEFENDANT ELK RIVER TRUSTEE INC CLUNK, HOOSE CO., LPA Sarah Crichigno [10083] Attorneys for Defendant Elk River Trustee, Inc. 495 Wolf Ledges Pkwy Akron, OH 44311 - – telephone - - facsimile-File No- 15