Post on 13-Mar-2023
CAUSE NO. 17/5 . I I DAVID BURLESON, §
§ Plaintiff, §
§ § §
~ § §
WELLS FARGO BANK, N.A., § WELLS FARGO HOME MORTGAGE, INC., § MORTGAGE CONTRACTING SERVICES, § LLC, JA MOR ENTERPRISES, LLC, § LEONARD GRANT IV, DUANE ROBERT § DOUP AND TIMOTHY EDWARD § SAMMONS §
§ Defendants. §
IN THE DISTRICT COURT
115TH JUDICIAL DISTRICT
PLAINTIFF'S ORIGINAL PETITION
INTRODUCTION
1. David Burleson files his Original Petition against Wells Fargo and its contractors for the
wrongful foreclosure and seizure of his home resulting in the "trash-out" of the contents of his
home. At the time the Defendants seized Mr. Burleson's home and confiscated his possessions,
the Defendants had no right to foreclose on Mr. Burleson and had not sought or obtained a court
order allowing them access to the home. In the trash-out, Mr. Burleson lost priceless family
heirlooms, photographs, personal papers and information, such as tax information, financial
information and his computer hard drive.
2. To remedy the damage caused by the Defendants' actions, Mr. Burleson brings the
following claims: I) wrongful foreclosure; 2) promissory estoppel; 3) conversion; 4) trespass;
5) violations of the Texas Debt Collection Practices Act; 6) negligence; 7) negligent hiring,
training and supervision; 8) invasion of privacy; and 9) common law unreasonable debt
collection.
STATEMENT REGARDING THE LOCAL RULES
3. This matter, while a complex matter, should be brought to trial within the Time Standards
contemplated by Local Rule 1.10.
DISCOVERY CONTROL PLAN
4. Plaintiff intends to conduct discovery under Level 3 of the Texas Rules of Civil
Procedure and will present a plan to the Court after Defendants answer and the parties confer.
PARTIES
5. The Plaintiff, David Burleson, is a resident of Upshur County.
6. Defendant Wells Fargo Bank, N.A. ("Wells Fargo") is a corporation headquartered at 420
Montgomery Street, San Francisco, CA 94104. Wells Fargo Bank may be served by serving
any officer. Service will be forwarded to John G. Stumpf, President and CEO, c/o Wells Fargo
& Company, P.O. Box 63750, San Francisco, CA 94163 in accordance with the Texas Rules of
Civil Procedure. This Defendant may also be served through its registered agent for process,
CSC-Lawyers Incorporating Service Company, 211 E. 7th Street, Suite 620, Austin, TX 78701-
3218.
7. Defendant Wells Fargo Home Mortgage, Inc., is a California corporation with its
principal place of business located at 1 Home Campus Mac X2401-049, Des Moines, IA 50328-
0001, and can be served by and through its registered agent, Corporation Seryice Company, 701
Brazos Street, Suite 1050, Austin, TX 50328-000 I.
Plaintiff's Original Petition
8. Defendant Mortgage Contracting Services, LLC ("MCS") is a Delaware corporation
with a principal place of business of 4830 West Kennedy Boulevard, Tampa, Florida 33609.
MCS provides REO property preservation services to Wells Fargo and may be served through
their registered agent, National Registered Agents, Inc., 1614 Sidney Baker Street, Kerrville, TX
78028.
9. Defendant JA-Mor Enterprises, LLC ("JA-Mor") is a Texas corporation with a principal
place of business of 1826 Honeysuckle Lane, Prosper, Texas 75078. JA-Mor provides
contracting services to MCS and may be served with process through their registered agent
Melanie Kane-Corley, 1826 Honeysuckle LN, Prosper, TX 75078.
10. Defendant Leonard Grant IV ("Grant") is an employee or independent contractor of JA-
Mor who resides in Texas and who performed services at the Plaintiff's home. Grant may be
served at 2600 N Brook Dr., McKinney, TX 75070, or wherever he may be found.
11 . Defendant Duane Robert Doup ("Do up") is an employee or independent contractor of
JA-Mor who resides in Texas and who performed services at the Plaintiff's home. Doup may be
served at 2278 Songbird Ln, McKinney, TX 75071 , or wherever he may be found.
12. Defendant Timothy Edward Sammons ("Sammons") is an employee, manager or
independent contractor of JA-Mor who resides in Texas and who performed services at the
Plaintiff's home. Sammons may be served at 20 Mockingbird Ln, Whitewright, TX 75491, or
wherever he may be found.
JURISDICTION AND VENUE
13. The Court has general jurisdiction, and in the alternative, specific jurisdiction, over
Defendants because, upon information and belief, (I) they have routinely and purposefully done
Plaiotiff's Oriaioal Petition 3
business in the State of Texas, (2) they committed a tort in whole or in part in Texas against a
Texas resident in Upshur County, and/or (3) Defendants' minimum contacts with the State of
Texas are sufficient that substantial justice and fair play allow Texas state courts to exercise
jurisdiction over them.
14. There is no Federal jurisdiction. Plaintiff does not assert any Federal causes of action.
There is not complete diversity amongst the Plaintiff and Defendants. Finally, none of the
exceptions to complete diversity under the Federal Interpleader Act, Class Action Fairness Act or
Multiparty, Multiforum Trial Jurisdiction Act are applicable.
FACTUAL ALLEGATIONS COMMON TO ALL COUNTS
Mr. Burleson's Home and Mortgage
15. Plaintiff David Burleson purchased a home in Big Sandy, Texas on January 9, 2007, that
was financed with an $84,829 loan from BSM Financial, L.P,. d/b/a Banksource Mortgage
("BSM"). A deed of trust dated January 9, 2007, named BSM as the lender and Mortgage
Electronic Registration Systems, Inc. ("MERS") as the beneficiary.
16. Mr. Burleson's home is a three bedroom ranch on the crest of a hill. At all times relevant
herein, Mr. Burleson maintained his home as his principal residence.
17. Since purchasing the home, Mr. Burleson secured it with locks and meticulously
maintained the exterior and interior of the home. Mr. Burleson had continually worked to
improve the condition of the home, and had just completed a flooring project in the living room
when the wrongful foreclosure and lockout occurred.
18. Mr. Burleson's home was fully furnished. The home contained the majority of
Mr. Burleson's personal possessions, including personal financial and tax information.
Plaintiff's Original Petition 4
Mr. Burleson also stored tools in the garage which he used for work and maintenance. Many of
Mr. Burleson's grandfather's tools were located in the garage as well.
19. Mr. Burleson has a twelve-year old son and a seven-year old daughter who stay with him
according to a visitation schedule.
20. Mr. Burleson's son has a bedroom in the house. His son's bedroom was fully furnished
with all the typical possessions of a twelve-year old boy, such as a piggy bank and much baseball
paraphernalia. The baseball memorabilia included both a signed foul ball and an authenticated
homerun baseball caught at a Texas Rangers baseball game against the New York Yankees.
21. Mr. Burleson's daughter also has a room in the house. Her room contained the types of
items one would expect a six year old girl to have. While there was nothing remarkable, each
and every item had a special meaning for her. Since losing these items, she has been reluctant to
even visit her father.
22. In the Spring of2010, Mr. Burleson got engaged. He and his fiance, who has her own
home, were in the process of deciding where they were to live after they were married.
Mr. Burleson continued to keep his principal residence in Big Sandy while spending more and
more time away at his fiance's home.
23. He continued to maintain his home at this time. On or about January 2011, he put in a
brand new hardwood floor. This is only one example of the work that Mr. Burleson was doing to
maintain and improve his home.
The Status of Mr. Burleson's Loan Prior to the Wrongful Foreclosure
24. On or about January 29, 2008, Mr. Burleson was in a bad car accident where he was in a
company truck in Arkansas where he lost brake control on the Ozark Mountains which caused
Plaintiff's Original Petition 5
his truck to flip and roll down the mountain. He suffered significant injuries to his brain
(including internal bleeding), head, and legs which required him to reduce the number of hours
he could work. Medical bills, some of which were not covered by insurance, piled up. Yet he
was still able to pay his bills.
25. Friends and family noticed a physical change to Mr. Burleson almost overnight after his
accident. However, in the late summer of 2010, the complications from that 2008 accident
became intense requiring Mr. Burleson to seek further treatment. Mr. Burleson began to have
night terrors, difficulty sleeping, and various neurological manifestations indicative of a potential
long term problem. As a result of these new manifestations of the injuries sustained in the car
accident, Mr. Burleson had to seek additional medical treatment and was forced to reduce his
work from full time. Mr. Burleson fell behind on his mortgage payments in the fall of2010 and
was unable to make payments. As soon as he fell behind, he contacted Wells Fargo to inform it
of his medical issues, reduced eaming capacity and to attempt to reach an agreement with Wells
Fargo.
26. Mr. Burleson started working with Wells Fargo over the telephone to apply for the
federal Home Affordable Loan Modification Program ("HAMP"). Wells Fargo is a participating
servicer in HAMP. As a participating servicer, Wells Fargo was required to offer Mr. Burleson a
HAMP modification, properly and timely process his HAMP application and certify that it took
Mr. Burleson through the HAMP process before it could foreclose.
27. Mr. Burleson was approved for a HAMP application in the Spring of 2010 and his first
payment under the program was believed to be due on or about May 24, 2011. Mr. Burleson' s
personal papers, including any correspondence and communications with Wells Fargo regarding
Plaintiff's Original Petition 6
his loan modification, were discarded and destroyed by the Defendants when they seized his
home and confiscated his possessions. Accordingly, he does not have the benefit at this time of
directly referring to any such documents and these allegations are based on his memory.
The Defendants' Wrongful Foreclosure and Seizure of Mr. Burleson's Home
28. Entirely unknown to Mr. Burleson, while he was being processed through the HAMP
program, Wells Fargo was moving to foreclose on his home.
29. In a document entitled "Appointment of Substitute Trustee" purportedly signed on
December 28, 2010, MERS, as nominee for Wells Fargo (not 8SM), appointed a substitute
trustee under the Deed of Trust ("DOT"). This appointment was recorded on January 5, 2011.
30. The document indicates the following:
"WHEREAS, the undersigned [MERS, as nominee for Wells Fargo, NA] is the current beneficiary of the above Deed of Trust and holder of the note described therein to which reference is made for the description of such note and the terms and conditions of the Deed of Trust;
WHEREAS, the "undersigned has declared a default in the payment of the note and/or the terms of the Deed of Trust ... "
31. In a March 31, 2011, document recorded on April 6, 2011, entitled "Assignment of Note
and Deed of Trust", the beneficiary of the Note and Deed of Trust is listed as "MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS, INC., SOLELY AS NOMINEE FOR BSM
FINANCIAL, L.P. DBA BANKSOURCE MORTGAGE, ITS SUCCESSORS AND ASSIGNS."
The document purports to assign the Note and DOT to "Wells Fargo Bank, NA" on March 31,
2011.
32. Thereafter, on April 5, 2011, Wells Fargo purportedly held a foreclosure sale of the
Plaintiffs home at which it purchased the Plaintiffs home. Wells Fargo purportedly executed a
Plaintiff's Original Petition 7
Trustee's Deed on AprilS, 2011, which it filed on April II, 2011, listing an auction price of
$90,116.19.
33. In the "Affidavit of Mortgage Servicer" attached to the Trustee's Deed, Brice, Vander,
Linden & Wemich, P.C., attests on behalf of Wells Fargo that all proper notices were served on
Mr. Burleson. The affidavit further attests that a Notice of Acceleration of Trustee's Sale and
Notice of Sale was served "by certified mail at least twenty-one (21) days prior to" the AprilS,
20 II, sale date at the last known address of Mr. Burleson according to the records of the loan
servicer.
34. On April 15, 2011, Well Fargo executed and filed a Special Warranty Deed conveying
the property to the Secretary of Housing and Urban Development for consideration of ten
dollars.
35. Prior to the purported sale, Mr. Burleson did not receive a Notice of Acceleration and
Notice of Trustee's Sale or any other form of notice from Wells Fargo or any other entity that his
house was to be auctioned on AprilS, 2011, as part of a foreclosure. Mr. Burleson had been
communicating in good faith with Wells Fargo regarding a loan modification and, based on
Wells Fargo's representations, it was his belief that his house was not in foreclosure or scheduled
to be foreclosed. In fact, he believed that a modification agreement had been reached and that he
had a payment due in May of2011.
36. Based on the March 31, 2011, "Assignment of Note and Deed of Trust" recorded on
April 6, 2011, Wells Fargo did not own the loan as of March 15, 2011, by which time the
statutory notice of acceleration and notice of sale was required to have been served on
Mr. Burleson, i.e. twenty-one days prior to the April 5, 2011, foreclosure sale. Accordingly,
Plaintiff's Original Petition 8
Wells Fargo, as the holder of the note and DOT, could not have provided proper notice to Mr.
Burleson as it did not yet own the note and DOT.
The Seizing and Trashing-Out of Mr. Burleson's Home
37. On or about April 19,2011, only 14 days after the auction, Wells Fargo issued a "Final
Secure" order to Defendant MCS to enter Mr. Burleson's house.
3S. At no time prior to this point had Wells Fargo or any other entity filed a forcible entry
and detainer action in court to evict Mr. Burleson and his possessions from the home. Even the
DOT, at paragraph IS, between Burleson and BSM recognizes that a court proceeding must be
initiated to evict a past owner who has become a tenant at sufferance. Never the less, no such
proceedings were initiated, and a proper writ of possession was not obtained as required by the
terms of the DOT and the laws of the State of Texas.
39. The items from inside Mr. Burleson's home were removed and transported away from the
property. However, no provisions had been made, as required by statute, for the proper,
temporary storage and/or safekeeping of the contents of Mr. Burleson's home.
40. MCS subcontracted the work order to Defendant JA-Mor who, in turn, assigned the work
even further to Defendants Sammons, Grant and Doup. The MCS work order indicates "Final
Secure." The work order further specifies for the removal of specific items from the home. All
of this was done without notice to Mr. Burleson, and without proper compliance with applicable
Texas laws.
41. Doup has a long criminal record with convictions for at least 5 thefts by check in Texas,
theft in Ohio, and multiple misdemeanors in Texas. At the time, Grant was just 19 years old and
appears to have no prior criminal convictions. However, Grant stated to Plaintiff that he "loves
Plaintiff's Original Petition 9
to fish and was happy he stole all of [Plaintiffs} fishing equipment." Grant further stated that he
was "used to the Dallas way of things" where he could "take or do whatever he wants and that
everything would be ok."
42. On or about April 19,2011 , Doup and Grant broke the lock on the door to Mr. Burleson's
home. Equipped with a flat-bed trailer, Doup and Grant proceeded to empty the home of its
contents. It is unknown exactly how many trips were made to cart away Mr. Burleson's
property, but upon information and belief, the first time they were there they had two pickups
and two trailers. Each vehicle was loaded with Mr. Burleson' s belongings when they left his
home.
43. A neighbor who witnessed Doup's and Grant's emptying of the house, heard Doup and
Grant declaring which of Mr. Burleson' s possessions were going straight to the pawn shop to be
sold.
44. Apparently, the witness heard one of the contractors, upon seeing all of Mr. Burleson's
tools in the garage, state: "Damn all of these tools are going straight to the pawn shop as soon as
we leave here." The witness also saw the contractors removing a computer from the house to
which the contractor declared that the computer was also going to the pawn shop as soon as the
contractors left the house.
45. Doup and Grant described themselves to the witness as being "from the bank." When
later confronted by Plaintiff, he was told by Sammons that they had every right to enter the
house, and that they were legally allowed to enter the house and decide what to do with the
property. Sammons said that the bank had given them this authority.
Plaintiff's Original Petition to
46. In that first trip, Doup and Grant emptied a substantial portion of the contents of
Mr. Burleson's home.
47. lA-Mor's contractors returned again approximately two days later as a neighbor saw
them removing more possessions, including a four wheeler.
48. Wells Fargo and/or MCS issued a second work order on or about April 25, 2011, which
MCS once again sub-contracted to lA-Mor, who used Doup and Grant to fulfill the work order.
49. The work order states in relevant part:
REMOVE INTERIOR DEBRIS PER WASHER, DRYER, TABLE, CLOTHES, VACUUM CLEANER, CHAIR, TVS, COMPUTER, PILLOWS, BLANKETS, SOFA, BATH ITEMS, WEIGHT BENCH, LADDER, TOYS, BED, DRESSER, CHEST OF DRAWERS, CABINETS, WOOD, GAS CAN, CHEMICALS, BIKES, LATEX PAINTS, BENCH WOOD, MISC. TRASH
REMOVE VEmCLE REMOVE 4 WHEELER
50. The handwritten notes on the work order indicate that the fee for removal was $456.
51. Whether Doup and Grant emptied the entire contents of the house before or after the
second order issued is not yet known.
52. On or about April 23, 2011, Mr. Burleson went to his home to get an Easter dress for his
daughter. He was locked out. He looked through the windows to see that the entire contents of
the house were gone. He walked down the street to his brother's house and came back with his
brother and his cousin.
53. The three were able to gain access through a back door which still had an old lock on it.
When they entered, they immediately noticed that the laundry room, kitchen and computer room
Plaintiff's Original Petition 11
had been flooded and then walked through the rest of the house to determine what had been
taken. Most of the possessions that had not yet been removed had been damaged.
54. Mr. Burleson spoke to his neighbor who reported to him that contractors from the bank
had been to the house to change the locks and empty its contents.
55. Mr. Burleson immediately called Wells Fargo who informed him that it was not standard
practice to have possessions removed from the house. Wells Fargo indicated that they would
look into the matter. The representative also stated that she could not find confirmation
regarding eviction papers but that just because "she can't find them ... does not mean [Plaintiff]
never got them."
56. Three days later, on April 28, 2011, Mr. Burleson received a call from Tim Sammons,
who represented that he was the owner of JA-Mor. Sammons indicated that his company had
been subcontracted to perform a "lock-out" for MCS and he knew little of the incident.
57. After the Plaintiff talked to Sammons, Grant called Mr. Burleson. After first denying that
he removed the possessions from the house, Grant admitted that he had taken the contents of the
house but was prepared to return them. Grant and Sammons agreed to meet with Mr. Burleson at
the property on the morning of April 29, 2011.
58. Prior to the meeting, Mr. Burleson had reported the incident to the police. Officer Ryan
Kuhn, Chief Tim Scott and Constable Jerry Kuhn went to house for the April 29,2011 meeting.
59. At the house, witnesses identified Doup and Grant as being the contractors who emptied
Mr. Burleson's home. Neither Sammons, Doup nor Grant produced a court order, or writ of
possession, allowing them access to Mr. Burleson's house. Constable Kuhn confirmed that no
such order or writ had issued because he had checked to see if Wells Fargo had initiated any
Plaintiff's Original Petition
proceedings in the justice court to gain possession of the house. Furthermore, had Wells Fargo
properly filed suit to gain possession of the property, Constable Kuhn would have been the one
serving any resulting writ if one had issued.
60. Doup and Grant brought a trailer of Mr. Burleson's possessions to the meeting. The
trailer did not contain all of Mr. Burleson's property and what was on the trailer had sustained a
great deal of damage.
61. Doup and Grant were questioned about important sentimental items such as
Mr. Burleson's son's homerun baseball, family heirloom china, and his son's "piggy bank",
which was filled with change.
62. Doup and Grant admitted that they stole the piggy bank and had broken the china. Doup
and Grant also admitted that more of Mr. Burleson's possessions were in McKinney, Texas.
63. Even after the meeting at the house with the police and Mr. Burleson, neither Wells
Fargo, MCS, JA-Mor, Sammons, Doup nor Grant returned the rest of Mr. Burleson's
possessions, including but not limited to: his son's home run baseball, heirloom china (which
was returned but in a shattered and utterly destroyed condition), family pictures, tax information,
checkbooks, medical records and his tools. Nor have any of the Defendants attempted to create
an inventory of the removed possessions and provided same to Mr. Burleson.
64. Mr. Burleson has put together a list of lost and damaged property from memory that
totals a minimum of$32,812. Many items it is impossible to put a monetary value upon such as:
the heirloom china that had been in the family for over 100 years; family military medals and
memorabilia; family writing; family pictures; the homerun baseball; and many other items. His
Plaintiff's Original Petition JJ
home, in which he had accumulated equity, is currently still owned by HUD pursuant to Wells
Fargo's conveyance of a Special Warranty Deed.
COUNT! VVRONGFULFoRECLOSURE
(As to the VVells Fargo Defendants)
65. The Plaintiff re-alleges the above paragraphs as if fully set forth in this Count.
66. The Plaintiff executed a note and deed of trust with BSM. On or about AprilS, 2011,
Wells Fargo purportedly foreclosed on Mr. Burleson's home, auctioned the home and bought the
home at the auction sale.
67. As required by statute, the Plaintiff did not receive notice from Wells Fargo, or adequate
notice from any other entity, twenty-days (21) days prior to the sale of his home on AprilS, 2011.
68. In addition, by March 15, 2011, the last date in which notice could have issued under the
statute, Wells Fargo did not own the note and deed of trust. Based on an assignment filed by
Wells Fargo, Wells Fargo did not acquire the note and deed of trust until March 31, 2011.
69. Moreover, in a filing dated January 5, 2011 , Wells Fargo, via MERS as nominee, purports
to have substituted the trustee in the deed of trust to pursue a delinquency and foreclosure. The
appointment indicates that Well Fargo, via MERS as nominee, is the beneficiary of the deed of
trust and the holder of the note.
70. At the time of the appointment, Wells Fargo was not, in fact, the beneficiary under the
deed of trust and did not hold the note. Wells Fargo was not assigned the note and deed of trust
until March 31, 20 II, from MERS as nominee for BSM. The appointment of the new trustee
appears to be invalid on its face as MERS as nominee for Wells Fargo had no authority to change
the trustee.
Plaintiff's Originsl Petition 14
71. In addition, at the time of the foreclosure, the Plaintiff had entered into a binding loan
modification agreement which, by its terms, prohibited foreclosure.
72. The Wells Fargo Defendants foreclosed on the Plaintiff's property wrongfully and without
complying with the foreclosure statute. Moreover, after the auction, Wells Fargo conveyed the
property to HUD.
73. The Wells Fargo Defendants had a duty to exercise fairly and in good faith the power of
sale in any deed of trust it claimed was to secure a debt with the Plaintiff. The Wells Fargo
Defendants breached that duty by failing to comply with the statutory notice procedures and
instituting foreclosure proceedings prior to owning the note and deed of trust.
74. The Plaintiff lost his home, any and all equity and money he put into the home and the
majority of his personal possessions. In addition, the Plaintiff has suffered anxiety and emotional
distress from the foreclosure and auction of his home and the loss of his possessions, many of
which were priceless, irreplaceable items such as pictures and family heirlooms.
75. WHEREFORE, the Plaintiff requests that he be awarded damages in an amount to be
proven at trial, exemplary and/or multiple damages to the extent allowed by the applicable law,
attorney's fees and costs and pre-and post-judgment interest on any award.
COUNT 2 PROMISSORY ESTOPPEL
(As to tbe Wells Fargo Defendants)
76. The Plaintiff re-a1leges the above paragraphs as if fully set forth in this Count.
77. As outlined above the Wells Fargo Defendants, had entered into a modification agreement
regarding Plaintiff's home. Despite entering into this deal and providing new due dates and
payment amounts, the Wells Fargo Defendants wrongfully moved forward with foreclosure.
Plaintiff's Original Petition 15
78. In connection with Plaintiffs' negotiations with the Wells Fargo Defendants regarding the
loan modification, Defendants made promises to Plaintiff which Plaintiff reasonably and
substantially relied on, to Plaintiff's detriment. Plaintiff's reliance was foreseeable by Defendants
and injustice can be avoided only by enforcing Defendants' promises. Accordingly, Plaintiff
requests that the Court enforce Defendants' promises regarding their modification of the note by
reforming the parties' real estate contract agreement to reflect Defendants' promises to modify
Plaintiff's note and return his property to him.
79. Alternatively, Plaintiff seeks monetary damages in an amount sufficient to restore him to
his former position before Defendants breached their promises, wrongfully foreclosed upon his
home, and trashed his belongings.
80. WHEREFORE, the Plaintiff requests that he be awarded damages in an amount to be
proven at trial, exemplary and/or multiple damages to the extent allowed by the applicable law,
attorney's fees and costs and pre-and post-judgment interest on any award.
COUNT 3 CONVERSION
(As to All Defendants)
81. The Defendants, their agents, contractors and/or employees entered the Plaintiff's property
and house without permission or authorization at various times after it purportedly foreclosed.
82. The Defendants, their agents, contractors and/or employees were on notice that they had
no right or authority to enter onto the Plaintiff's property, break into his home, seize his home and
property and remove possessions in the home and garage and on the property.
83 . The Defendants, their agents, contractors and/or employees removed and disposed of
numerous possessions of the Plaintiff, many of which were priceless, irreplaceable personal
Plaintirr. Original Petition 16
possessIOns. The actions of the Defendants, their agents, contractors and/or employees were done
intentionally and/or with gross disregard for the rights of the Plaintiff. The Defendants are
directly and/or vicariously liable for the actions of their agents, contractors and/or employees.
84. The Plaintiff was damaged as a direct and proximate result of the actions of the
Defendants, their agents, contractors and/or employees.
85. WHEREFORE, the Plaintiff requests judgment in his favor on this Count and further
requests that he be awarded damages in an amount to be proven at trial, exemplary damages
and/or mUltiple damages to the extent allowed by the applicable law, attorney's fees and costs and
pre-and post-judgment interest on any award.
COUNT 4 TRESPASS
(As to All Defendants)
86. The Defendants, their agents, contractors and/or employees entered the Plaintiff's property
and house without permission or authorization at various times during its "foreclosure" process
and proceedings.
87. The Defendants, their agents, contractors and/or employees were 00 notice that they had
00 right or authority to enter onto the Plaintiff's property, break into his home, seize his home and
property and remove possessions in the home and garage and on the property.
88. The actions of the Defendants, their agents, contractors and/or employees were done
intentionally and/or with gross disregard for the rights of the Plaintiff. The Defendants are
directly and/or vicariously liable for the actions of their agents, contractors and/or employees.
89. The Plaintiff was damaged as a direct and proximate result of the actions of the
Defendants, their agents, contractors and/or employees.
Plaintiff's Original Petition 17
90. WHEREFORE, the Plaintiff requests judgment in his favor on this Count and further
requests that he be awarded damages in an amount to be proven at trial, exemplary and/or
multiple damages to the extent allowed by the applicable law, attorney's fees and costs and pre-
and post-judgment interest on any award.
COUNTS TEXAS DEBT COLLECTION ACT
(As to All Defendants)
91. Defendants are liable to the Plaintiff for violating portions of the Texas Finance Code
applicable to the collection of consumer debts. Defendants acted as debt collectors and/or third-
party debt collectors when communicating with and/or attempting to collect a consumer debt from
the Plaintiff/consumer, as such tenns are defined in Texas Finance Code §392.001. Defendants
have violated at least the following sections and paragraphs of the Texas Finance Code:
Section 392.30 I by using threats, coercion, or attempts to coerce that employ one or more of the following listed practices:
(1) using or threatening to use violence or other criminal means to cause harm to a person or property of a person;
(8) threatening to take an action prohibited by law.
Section 392.304 by using a fraudulent, deceptive, or misleading representation that employs one or more of the following listed practices:
(8) misrepresenting the character, extent, or amount of a consumer debt, or misrepresenting the consumer debt's status in a judicial or governmental proceeding;
(19) using any other false representation or deceptive means to collect a debt or obtain infonnation concerning a consumer.
Plaintifrs Original Petition 18
92. Plaintiff seeks (I) injunctive relief to prevent or restrain a violation of one or more of the
above-described sections and/or paragraphs; (2) actual and/or any available statutory damages
sustained as a result of such violations; and (3) attorneys' fees and costs.
COUNT 6 NEGLIGENCE
(As to Wells Fargo, Mortgage Contracting Services, LLC and JA-Mor Enterprises, LLC)
93. The Plaintiff re-alleges the above paragraphs as if fully set forth in this Count.
94. Defendant Wells Fargo owed a duty to the Plaintiff to act as a reasonable and prudent
servicer, lender, investor and/or security holder during any collection, foreclosure and auction
proceedings, which included the obligation to verify that it a) owned the note and deed of trust
before initiating the notice and foreclosure process, b) had satisfied the statutory notice
requirements, c) had the right to seize and remove possessions from the Plaintiff s home before
doing so; d) had properly processed the Plaintiff through HAMP before auctioning his home; and
e) had arranged for the temporary storage of the Plaintiff s possessions as required by statute
before removal.
95. Defendant Wells Fargo was on actual and/or constructive notice from the loan file, the
recorded property records, the direct contact with the Plaintiff during the HAMP application
process and/or information in the possession of the Defendant, that it had no right to move on its
security interest by foreclosing and auctioning the Plaintiff s home and then removing his
possessions from the home without court order.
96. Defendants Wells Fargo, Mortgage Contracting Services, lA-More, and their agents,
contractors and/or employees breached the duty owed to the Plaintiff by failing to conduct due
diligence, proceeding with foreclosure and auction proceedings against the Plaintiff when they
Plaintiff's Original Petition 19
lacked the right to do so and removing, disposing and/or damaging the Plaintiff's personal
property.
97. The Plaintiff was damaged as a direct and proximate result of the actions of the
Defendants, their agents, contractors and/or employees.
98. The Plaintiff lost his home, any and all equity and money he put into the home, and the
majority of his personal possessions. In addition, the Plaintiff has suffered anxiety and emotional
distress from the foreclosure and auction of his home and the loss of his possessions, many of
which were priceless, irreplaceable items such as pictures and family heirlooms.
99. WHEREFORE, the Plaintiff requests judgment in his favor on this Count and further
requests that he be awarded damages in an amount to be proven at trial, any and all additional
damages allowed for by the Act, attorney' s fees and costs and pre-and post-judgment interest on
any award.
COUNT 7 NEGLIGENT HIRING, TRAINING AND/OR SUPERVISION
(As to Wells Fargo, MCS and JA-Mor)
100. The Defendants had a duty of care to hire contractors with the necessary skill and care to
perform property preservation services in compliance with the law. The Defendants also had the
duty to train said contractors and/or employees in the reasonable and proper methods and
practices for performing lawful property preservation services and securing a collateralized
property, including the obligation to obtain the proper court order before entering a home and
removing personal possessions and the obligation to temporarily store a homeowner's personal
possessions. Additionally, the Defendants had the duty to supervise the contractors and/or
Plaintlfrs Original Petition 20
employees to whom they sent work orders and requested to perform services at a borrower's
home.
101. The Defendants breached the duties they owed to the Plaintiff by failing to hire qualified
contractors/employees and/or to properly and adequately train and supervise the
contractors/employees they hired.
102. The Plaintiff was damaged as a direct and proximate result of the acts and omissions of
the defendants, its agents, contractors and/or employees.
103. The Plaintiff lost his home, any and all equity and money he put into the home and the
majority of his personal possessions. In addition, the Plaintiff has suffered anxiety and emotional
distress from the foreclosure and auction of his home and the loss of his possessions, many of
which were priceless, irreplaceable items such as pictures and family heirlooms.
104. WHEREFORE, the Plaintiff requests judgment in his favor on this Count and further
request that he be awarded damages in an amount to be proven at trial, exemplary and/or multiple
damages to the extent allowed by the applicable law, attorney's fees and costs and pre-and post-
judgment interest on any award.
COUNTS INVASION OF PRIVACY - INTRUSION UPON SECLUSION AND ACCESS TO
AND REMOVAL OF CONFIDENTIAL INFORMATION AND RECORDS
(As to All Defendants)
105. The Plaintiffre-a1leges the above paragraphs as if fully set forth in this Count.
106. The Plaintiff, as the owner of his home, had a right to privacy in his property and house.
The Plaintiff had the right to be free from unlawful intrusion onto his property and into his home.
107. The Defendants' own files and information, as well as the documents recorded at the
county recorder's office, demonstrated that Wells Fargo did not own the loan at the time
Plaintiff's Original Petition 21
foreclosure proceedings were initiated and could not have complied with the statutory notice
requirements.
108. Wells Fargo, with the assistance ofMERS as its nominee, filed a purported assignment of
the note and deed of trust only five (5) days before the auction date.
109. The subsequent Trustee's Deed conveying the property to Wells Fargo at the foreclosure
auction contained an "Affidavit of Mortgage Servicer" which falsely indicated that a Notice of
Acceleration and Notice of Trustee's Sale was properly served on behalf of Wells Fargo when the
property records indicate that Wells Fargo did not own the loan until five days before the auction.
110. Moreover, Wells Fargo, through MERS, had substituted the trustee on or about
December 28, 2010, approximately three (3) months prior to being assigned the note and deed of
trust.
Ill. Moreover, Wells Fargo is vicariously responsible for the acts of its contractors when they
seized the plaintiffs home, pursuant to Wells Fargo's request, prior to the issuance of any court
order. Wells Fargo's contractors then proceeded to empty the contents of Mr. Burleson's home,
while professing to a witness which items were going to be sent to the pawn shop. Even after the
police were involved, Wells Fargo and its contractors failed to return the rest of Mr. Burleson's
possessions.
112. In addition, Wells Fargo and its contractors publically communicated to Mr. Burleson and
his neighbors that his house had been foreclosed on and that the bank was entitled to seize his
property and possessions. Said statements and actions caused Mr. Burleson severe emotional
distress, embarrassment and ridicule.
Plaintiff's Originsl Petition 22
113. These actions by Wells Fargo were done with intent or the requisite gross and/or reckless
disregard for the rights of the Plaintiff. Wells Fargo knew its actions, which lead to the auction of
the Plaintiff's home and the loss or damage of the majority of his personal possessions, would
undoubtedly cause severe emotional distress.
114. The Defendants, their agents, contractors and/or employees entered onto the Plaintiffs
property and broke into his home without the legal right to do so.
115. Once in the home, the Defendants, their agents, contractors and/or employees went
through all rooms in the home and the garage and removed and/or damaged a great many of the
Plaintiff's personal possessions, many of which cannot be replaced. Moreover, the Defendants
emptied the bedrooms of the Plaintiff's two children, stealing his son's piggy bank and home run
baseball.
116. The Defendants, their agents, contractors and/or employees also accessed and removed
highly personal information from the Plaintiff's home including tax documents, medical records,
checkbooks, financial records, personal pictures and home movies, a computer hard drive and
family heirlooms.
117. These acts of the Defendants, their agents, contractors and/or employees constitute an
invasion of privacy which has resulted in damage to the Plaintiff.
118. WHEREFORE, the Plaintiff request judgment in his favor on this Count and further
request that he be awarded damages in an amount to be proven at trial, exemplary and/or multiple
damages to the extent allowed by the applicable law, attorney's fees and costs and pre-and post-
judgment interest on any award.
Plaintiff's Original Petition 23
COUNT 9 COMMON LAW UNREASONABLE DEBT COLLECTION
(As to Wells Fargo) 119. Wells Fargo foreclosed and auctioned the Plaintiffs property and home in an attempt to
collect monies to pay the outstanding debt which was purportedly due and owing on the
Plaintiffs note.
120. Defendant Wells Fargo's acts and omissions amount to a course of harassment that was
willful, wanton, malicious, and intended to inflict mental anguish and bodily harm. Defendant
Wells Fargo engaged in the following series of acts which lead to the loss of the Plaintiffs home
and the majority of his personal possessions: a) it did not own the note and deed of trust before
initiating the notice and foreclosure process,; b) it failed to satisfY the statutory notice
requirements which are prerequisite to conducting foreclosure and an auction; c) it seized and
removed possessions from the Plaintiffs home without a court order; d) it failed to properly
process the Plaintiff through HAMP before auctioning his home; e) it failed to honor the terms of
the binding loan modification agreement which prevented foreclosure; and f) it failed to arrange
for the temporary storage of the Plaintiffs possessions as required by statute before removal.
121. Defendant Wells Fargo was on actual and/or constructive notice from the loan file, the
recorded property records, the direct contact with the Plaintiff during the HAMP application
process and/or information in the possession of Defendant Wells Fargo that it had no right to
move on its security interest by foreclosing and auctioning the Plaintiffs home and then
removing his possessions from the home.
122. Defendant Wells Fargo, its agents, contractors and/or employees failed to conduct due
diligence, proceeded with foreclosure and auction proceedings against the Plaintiff when it lacked
Plaintiff's Original Petition
the right to do so and removed, disposed and/or damaged the Plaintiff s personal possessions on
his property and in his home.
123. Defendant Wells Fargo' s actions were taken with intent and/or a gross and reckless
disregard for the Plaintiff s rights so as to constitute wanton and malicious conduct with a near
certainty to cause great mental anguish.
124. Defendant Wells Fargo's own files and information, as well as the documents recorded at
the County recorder's office, demonstrated that Wells Fargo did not own the loan at the time
foreclosure proceedings were initiated and could not have complied with the statutory notice
requirements.
125. Defendant Wells Fargo, with the assistance of MERS as its nominee, filed a purported
assignment of the note and deed of trust only five (5) days before the auction date.
126. The subsequent Trustee's Deed conveying the property to Wells Fargo at the foreclosure
auction contained an "Affidavit of Mortgage Servicer" which falsely indicated that a Notice of
Acceleration and Notice of Trustee's Sale was properly served on behalf of Wells Fargo when the
property records indicate that Wells Fargo did not own the loan until five days before the auction.
127. Moreover, Wells Fargo, through MERS, had substituted the trustee on or about
December 28, 2010, approximately three (3) months prior to being assigned the note and deed of
trust.
128. In addition, Wells Fargo is vicariously responsible for the acts of its contractors when they
seized the Plaintiffs home, pursuant to Wells Fargo's request, prior to the issuance of any court
order. Wells Fargo' s contractors then proceeded to empty the contents of Mr. Burleson's home,
while protesting to a witness which items were going to be sent to the pawn shop. Even after the
Plaintiff's Original Petition 25
police were involved, Wells Fargo and its contractors failed to return the rest of Burleson's
possessions.
129. In addition, Wells Fargo and its contractors publically communicated to Mr. Burleson and
his neighbors that his house had been foreclosed on and that the bank was entitled to seize his
property and possessions. Said statements and actions caused Mr. Burleson severe emotional
distress, embarrassment and ridicule.
130. Wells Fargo knew its actions, which lead to the auction of the Plaintiff's home and the
loss or damage of the majority of his personal possessions, would undoubtedly cause severe
emotional distress.
131. The Plaintiff was damaged as a direct and proximate result of the actions of Defendant
Wells Fargo, its agents, contractors and/or employees.
132. The Plaintiff lost his home, any and all equity and money he put into the home and the
majority of his personal possessions. In addition, the Plaintiff has suffered anxiety and emotional
distress from the foreclosure and auction of his home and the loss of his possessions, many of
which were priceless, irreplaceable items such as pictures and family heirlooms.
133. WHEREFORE, the Plaintiff requests judgment in his favor on this Count and further
requests that he be awarded damages in an amount to be proven at trial, any and all additional
damages allowed for by the Act, attorney's fees and costs and pre-and post-judgment interest on
any award.
EXEMPLARY DAMAGES
134. Exemplary damages should be awarded against Defendants because the harm with respect
to which the Plaintiff seeks recovery of exemplary damages resulting from malice (which means
Plaintifrs Original Petition 26
that there was a specific intent by Defendants, both directly and as agents for Wells Fargo, to
cause substantial injury or harm to the Plaintiff), and/or gross negligence (which means that
Defendants' acts and/or omissions (i) when viewed objectively from Defendants' standpoint at
the time of the acts and/or omissions involved an extreme degree of risk, considering the
probability and magnitude of potential harm to others and (ii) were such that Defendants had an
actual, subjective awareness of the risk involved but nevertheless proceeded with conscious
indifference to the rights, safety or welfare of others).
REQUEST FOR PERMANENT INJUNCfION
135. The Court should permanently enjoin Defendants following trial of this cause from
committing acts in violation of the statute(s) cited herein.
ATTORNEYS' FEES
136. The Court should award the Plaintiff attorney fees for all causes of action herein
supporting such an award.
JURY DEMAND
137. Plaintiff demands a jury trial and tenders the appropriate fee with this petition.
PRAYER FOR RELIEF
138. For those reasons, Plaintiff prays that the Defendants be cited to appear and answer herein
and that Plaintiff have judgment for damages within the jurisdictional limits of the Court against
Defendants, jointly and severally, for:
a. actual damages;
b. statutory damages;
c. exemplary damages;
Plaintifrs Original Petition 27
d. pre-judgment and post-judgment interest at the highest legal rate;
e. legally-available, reasonable and necessary attorneys' fees;
f. costs;
g. pennanent injunction against Defendants enjoining them from committing the
unlawful conduct described in this Petition; and
h. all other relief, general and special, legal and equitable, to which Plaintiff may be
entitled.
Plaintifrs Original Petition 28
Plaintiff's Original Petition
Respectfully submitted
~ /hi /J I ..... / 4~',lt~~-t1--···-Bonner C. Walsh State Bar No. 24051766
WEINSTEIN LAW
518 East Tyler Street Athens, Texas 75751 903/677-5333 903/677-3657 - facsimile
James T. McMillen Attorney at Law State Bar No. 13800250 14522 Red Mulberry Lane Houston, Texas 77044-4927 2811458-9100 2811817-5505 -- facsimile
Carlin J. Phillips MA BBO #561916 Andrew J. Garcia MA BBO #559084 PHILLIPS & GARCIA, P.e. 13 Ventura Drive North Dartmouth, Massachusetts 02747 508/998-0800 508/998-0919 -- facsimile
ATTORNEYS FOR PLAINTIFF
29