CAUSE NO. 17/5 . I I DAVID BURLESON, § § Plaintiff

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


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


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


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,


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


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


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


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.


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


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.





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


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


lacked the right to do so and removing, disposing and/or damaging the Plaintiff's personal

property.



98. The Plaintiff lost his home, any and all equity and money he put into the home, and the





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.






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


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


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.


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


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


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.






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


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;


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.



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

CAUSE NO. 17/5 . I I DAVID BURLESON, § § Plaintiff

Documents

Transcript of CAUSE NO. 17/5 . I I DAVID BURLESON, § § Plaintiff