prater et al v. bank of new york mellon et al

8/8/2019 Prater Et Al v. Bank of New York Mellon Et al

1/24

1

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLORADO

Civil Action Number: 2010-CV-02995 LTB-MEH

LYNN PRATER AND JOHN PRATER,Plaintiffs,

COMPLAINT AND MOTIONvs. FOR INJUNCTIVE RELIEF AND

REQUEST FOR EMERGENCYHEARING

THE BANK OF NEW YORK MELLON, JURY TRIAL DEMAND FKA THE BANK OF NEW YORK,FIRST HORIZON NATIONAL BANK,ARONOWITZ & MECKELBERG, LLP, ANDTHE STATE OF COLORADO,

Defendants.

AMENDED COMPLAINT AND MOTION FOR INJUNCTIVE RELIEF ANDREQUEST FOR EMERGENCY HEARING

COMES NOW, Plaintiffs LYNN PRATER AND JOHN PRATER and file this

COMPLAINT AND MOTION FOR INJUNCTIVE RELIEF AND REQUEST FOR

EMERGENCY HEARING and states as follows:

I. VENUE AND JURISDICTION

Jurisdiction of this Court arises under 28 U.S.C. 1331 and pursuant to 15 U.S.C.

1692k (d) and pursuant to 28 U.S.C. 1367 for pendent state law claims. Jurisdiction

also arises because of the challenge to the constitutionality of Colorado State Statute

38-38-101 C.R.S. Venue is proper in this District because the actions and transactions

occurred here. Plaintiffs reside here, and Defendants transact business here.

Case 1:10-cv-02995-REB Document 3 Filed 12/13/10 USDC Colorado Page 1 of 24


2/24

2

II. PARTIES

1. Plaintiffs LYNN PRATER AND JOHN PRATER (hereinafter

PLAINTIFFS ) are residents of Douglas County, Colorado. PLAINTIFFS purchaseda home located at 4349 Chatswood Court, Littleton, Colorado 80126, secured by a

mortgage through First Horizon Home Loans with an original monthly mortgage in the

amount of $1,117.56. PLAINTIFFS deny that they are in default on said loan.

PLAINTIFFS are consumers or debtors for purposes of the Fair Debt Collection

Practices Act (FDCPA), 15 U.S.C. 1692 et seq., and the Colorado Fair Debt Collection

Practices Act (CFDCPA), 12-14-101.

2. Defendant THE BANK OF NEW YORK MELLON, FKA THE BANK

OF NEW YORK (hereinafter BANK ) is a national banking association with its

principal place of business located in New York, NY. However, BANK has failed to

register with the Colorado Secretary of States Office and does not have a registered

agent to receive service of process in COLORADO . However, BANK may not be the

real party in interest in the pending foreclosure action in Case Number 2010CV2952.

PLAINTIFFS hereby demand strict proof that BANK can prove ownership and is the

real party in interest and can produce the original Note and Deed of Trust and can show a

chain of title and that all assignments are valid. BANK provides numerous services and

products such as mortgages, auto loans, personal loans, short term loans, etc. Some of the

company's target customers are those who have poor credit records. BANK engaged in

subprime financing and is often criticized for using predatory practices to profit on the

backs of the people with bad credit records. BANK has engaged in a nationwide scheme



3/24

3

of illegal, unfair, unlawful, and deceptive business practices that violate both federal and

state law in the servicing of home-secured loan transactions and in the provision of

certain related services. Said scheme is carried out by means of a centrally controlled set

of policies and practices and is implemented with form documents, form notices and

uniform accounting mechanisms. BANK routinely treats borrowers as in default of their

loans even though the borrowers have tendered timely and sufficient payments or have

otherwise complied with mortgage requirements. In addition, BANK routinely enters into

and then breaches uniform reinstatement agreements with borrowers who seek to prevent

foreclosure of their homes. When BANK subsequently breaches the reinstatementagreements, it resumes foreclosure activity without notice to the borrowers. It then

collects its unlawful charges in the foreclosure process from the borrowers equity in

their homes when the borrower reinstates, pays off the loan or after the foreclosure sale of

the home. It is also BANKS regular practice to initiate foreclosure actions without

serving required notices, demands or proper complaints and engaged in predatory lending

practices. BANK is a debt collector for the purposes of the Fair Debt Collection Practices

Act (FDCPA), 15 U.S.C. 1692 et seq., and is in violation of Colorado and Federal law

including, but not limited to the Colorado Fair Debt Collection Practices Act (CFDCPA),

12-14-101 and FDCPA, 15 U.S.C. 1692 et seq.

3. Defendant FIRST HORIZON NATIONAL BANK (hereinafter

HORIZON) is a national banking association headquartered in Memphis, Tennessee.

On 12/01/2010, HORIZONS registration with the Colorado Secretary of States Office

expired and HORIZON does not have a registered agent to receive service of process in



4/24

4

COLORADO . However, HORIZON may not be the real party in interest in the pending

foreclosure action in Case Number 2010CV2952. PLAINTIFFS demand strict proof

that HORIZON can prove ownership and is the real party in interest and can produce the

original Note and Deed of Trust and can show a chain of title and that all assignments are

valid. HORIZON provides numerous services and products such as mortgages, auto

loans, personal loans, short term loans, etc. Some of the company's target customers are

those who have poor credit records. HORIZON engaged in subprime financing and is

often criticized for using predatory practices to profit on the backs of the people with bad

credit records. HORIZON has engaged in a nationwide scheme of illegal, unfair,unlawful, and deceptive business practices that violate both federal and state law in the

servicing of home-secured loan transactions and in the provision of certain related

services. Said scheme is carried out by means of a centrally controlled set of policies and

practices and is implemented with form documents, form notices and uniform accounting

mechanisms. HORIZON routinely treats borrowers as in default of their loans even

though the borrowers have tendered timely and sufficient payments or have otherwise

complied with mortgage requirements. In addition, HORIZON routinely enters into and

then breaches uniform reinstatement agreements with borrowers who seek to prevent

foreclosure of their homes. When HORIZON subsequently breaches the reinstatement

agreements, it resumes foreclosure activity without notice to the borrowers. It then

collects its unlawful charges in the foreclosure process from the borrowers equity in

their homes when the borrower reinstates, pays off the loan or after the foreclosure sale of

the home. It is also HORIZONS regular practice to initiate foreclosure actions without

serving required notices, demands or proper complaints and engaged in predatory lending



5/24

5

practices. HORIZON is a debt collector for the purposes of the Fair Debt Collection

Practices Act (FDCPA), 15 U.S.C. 1692 et seq., and is in violation of Colorado and

Federal law including, but not limited to the Colorado Fair Debt Collection Practices Act

(CFDCPA), 12-14-101 and FDCPA, 15 U.S.C. 1692 et seq.

4. Defendant ARNOWITZ & MECKELBERG, LLP , (hereinafter

ARNOWITZ) is a law firm based in Denver, Colorado that specializes in representing

banks in non-judicial uncontested residential foreclosures in the Denver area.

ARNOWITZ is a debt collector for the purposes of Fair Debt Collection Practices Act(FDCPA), 15 U.S.C. 1692 et seq., and is in violation of Colorado and Federal law

including, but not limited to the Colorado Fair Debt Collection Practices Act (CFDCPA),

12-14-101 FDCPA, 15 U.S.C. 1692 et seq.,.

5. Defendant STATE OF COLORADO (hereinafter COLORADO)

is a state of the United States of America. Like all states, COLORADOS state

constitution provides for three branches of government: the legislative, the executive, and

the judicial branches. 38-38-101 of Colorado Revised Statutes governs foreclosures in

COLORADO . COLORADO is a non-judicial foreclosure state and the COLORADO

foreclosure process and law pursuant to 38-38-101 C.R.S. is inherently unconstitutional

because it violates the due process rights of COLORADO homeowners facing

foreclosure under the 5 th Amendment of the United States Constitution.



6/24

6

III. PROCEDURAL HISTORY AND FIRST CLAIM FOR RELIEF: BREACHOF CONTRACT

6. On December 13, 2005, PLAINTIFFS purchased a home located at 4349

Chatswood Court, Littleton, Colorado 80126. PLAINTIFFS home was secured by a

mortgage through HORIZON with an original monthly mortgage approximately in the

amount of $1,724.14. PLAINTIFFS were current on all payments.

7. PLAINTIFFS negotiated a temporary loan modification in the amount of

$1,117.56. PLAINTIFFS were current on all payments and have been working withHORIZON in order to negotiate a permanent loan modification.

8. Upon best information and belief, PLAINTIFFS loan was assigned from

HORIZON to BANK. However, ARNOWITZ failed to provide any documentation

evidencing a chain of title from HORIZON to BANK or any documentation

demonstrating that said assignment is valid and that BANK is the real party in interest

and entitled to foreclose. As such, the foreclosure action under Case No: 2010CV2959

should be dismissed with prejudice.

9. Instead of working with PLAINTIFFS in good faith, DEFENDANTS

established a pattern of bad faith negotiations with PLAINTIFFS by making material

misrepresentations to PLAINTIFFS in order to deceive PLAINTIFFS into believing

that they would be granted a permanent loan modification by HORIZON. While

PLAINTIFFS believe they were negotiating in good faith with HORIZON and



7/24

7

proceeding down the mortgage modification track when ARNOWITZ was acting in bad

faith and surreptitiously proceeding down the foreclosure track. ARNOWITZ was

surreptitiously processing a foreclosure action against PLAINTIFFS at the same time

PLAINTIFFS were working with HORIZON for a mortgage loan modification.

HORIZON never had any intention to work with PLAINTIFFS and grant them a

permanent loan modification because DEFENDANTS intention was always to foreclose

on PLAINTIFFS property and deny PLAINTIFFS due process.

10.

ARNOWITZ established a pattern of bad faith and acted deceptively,unethically and attempted a fraud upon the Court and thereby violated the Rules of

Professional Conduct by initially filing the foreclosure under Case No. 2010CV1842

11. Said case was dismissed without prejudice upon ARNOWITZ S own

motion on 07/15/10. (See copy of Order, attached and marked as Exhibit A)

12. ARNOWITZ surreptitiously reopened the foreclosure proceeding on

10/4/2010, under a new Case No. 2010CV2959. Although, there has been a Rule 120

hearing, the PLAINTIFFS never had the opportunity to attend because ARNOWITZ

intentionally and deceptively failed to provide PLAINTIFFS with notice of hearing.

Because ARNOWITZ acted unethically and denied PLAINTIFFS due process and

committed a fraud upon the Court, an Order of Sale was erroneously and unwittingly

entered on 10/31/ 2010, and a Date of Sale is scheduled for 12/15/2010.



8/24

8

13. For the foreclosure to proceed under a new case number was improper

because the case should have reopened under the original case number as the case is the

same foreclosure action, with the same parties and with the identical real property at issue

and because the previous case was dismissed without prejudice.

14. ARNOWITZS actions in reopening the case under a new case number

was improper because ARNOWITZ failed to give notice to PLAINTIFFS that the

foreclosure was proceeding under a new case number and therefore was under a new and

different case number. PLAINTIFFS did not receive notice of the filing of the new casebecause ARNOWITZ failed to serve the new case on PLAINTIFFS.

15. ARNOWITZ S actions in reopening the case under a different case

Number and failing to give notice to PLAINTIFFS constituted a material

misrepresentation and a fraud upon the Court. Furthermore, reopening the case under a

different case number and failing to give notice to PLAINTIFFS was a surreptitious

attempt by ARNOWITZ to improperly deny PLAINTIFFS the opportunity to contest

the foreclosure in violation of PLAINTIFFS rights to substantive and procedural due

process under the 5 th Amendment of the United States Constitution.

16. Because the foreclosure proceeding was improperly reopened under a new

case number, proceedings under the new case number are null and void; consequently,

the sale of PLAINTIFFS property presently scheduled for December 15, 2010, by the

Douglas County Trustees Office is improperly proceeding under a case and case number



9/24

9

that are closed.

17. Based upon the foregoing facts, the Court lacked jurisdiction to hear the

case and issue an Order of Sale under Case No: 2010CV2959.

18. Because time is of the essence in this matter and PLAINTIFFS are facing

an imminent foreclosure sale date on 12/15/2010, PLAINTIFFS respectfully request that

this Court issue an Order granting a preliminary injunction to stop the foreclosure sale or

in the alternative grant an emergency hearing in the above-referenced matter pursuant toC.R.C.P. Rule 24.

19. HORIZONS loss mitigation department and ARNOWITZ routinely

violated the Fair Debt Collection Practices Act (FDCPA). PLAINTIFFS mortgage was

bundled with other loans and sold numerous times as mortgage backed securities

commonly known as derivatives.

20. PLAINTIFFS attempted to work with HORIZON and submitted loan

modification applications. PLAINTIFFS would resubmitted the exact same documents

numerous times to only to have HORIZON claim they did not receive the documents or

that they failed to properly scan in the documents.



10/24

10

21. Eventually HORIZON granted PLAINTIFFS a temporary loan

modification in the amount of $1,117.56 which PLAINTIFFS faithfully paid and fully

complied with the terms and conditions of the temporary loan modification.

22. Despite the fact that PLAINTIFFS faithfully honored the terms of

temporary loan modification and that PLAINTIFFS were advised by HORIZON that

their home was not in danger of foreclosure, ARONOWITZ wrongfully initiated

foreclosure proceedings against PLAINTIFFS .

23. PLAINTIFFS have continued to send letters, make phone calls and

submit mortgage loan modification applications to HORIZON to no avail. As a result,

adverse credit consequences have been reported to the PLAINTIFFS credit file.

24. DEFENDANTS have transmitted false and adverse credit information

about the PLAINTIFFS to various credit reporting agencies, including Equifax, causing

their credit to be impaired.

25. HORIZON and ARONOWITZ have acted in bad faith and have

engaged in deceitful conduct and have negotiated dishonestly with PLAINTIFFS and

Defendants have made numerous material misrepresentations to PLAINTIFFS .

26. Contrary to the deceptive and bad faith actions of DEFENDANTS, the

PLAINTIFFS have acted in good faith and made timely payments to HORIZON .



11/24

11

PLAINTIFFS have timely made all temporary loan modification payments and worked

with HORIZON in good faith in order to show their good faith and intent to comply with

their loan obligations and PLAINTIFFS have detrimentally relied upon material

misrepresentations made to them by HORIZON and ARONOWITZ.

27. PLAINTIFFS contacted HORIZON pursuant to the provisions of the

FDCPA in order to dispute the debt, request verification of the debt, request the identity

of the original creditor because the original creditor was different from the current

creditor and requested a payoff statement including a full breakdown of the alleged debt.To date, HORIZON has failed to supply PLAINTIFFS with the requested information

about their loan and instead have provided PLAINTIFFS with false, misleading,

inaccurate and incomplete information about their loan in violation of the FDCPA and

CDCPA , as well as in breach of the duty of Good Faith and Fair Dealing implicit in

contracts.

28. DEFENDANTS have engaged in a regular pattern of violations of the

federal law requirements imposed by the Real Estate Settlement Procedures Act, 12

U.S.C. 2601, et seq . (RESPA), with respect to responding to requests from

borrowers for account information, provision of required notices, and application of

payments, the Fair Debt Collection Practices Act, 15 U.S.C. 1692, et seq . (FDCPA),

with respect to unlawful collection practices, collecting or seeking to collect amounts not

legally due and owing, failing to provide required disclosures in collection letters, and



12/24

12

harassing borrowers, and the Truth in Lending Act, 15 U.S.C. 1601, et seq . (TILA),

with respect to information provided about variable rate loans.

29. In March of 2009, HORIZON and BANK signed up with Making Home

Affordable initiative, HAMP, the Federal governments flagship program to halt the

foreclosure crisis and receives a taxpayer funded payment of $4,000.00 for every loan

they modify; however, as of November 13, 2010, HORIZON and BANK is one of the

worst performing mortgage loan servicers granting only a small percentage of the

millions of home mortgages eligible for modification under the HAMP program.HORIZON breached its contract with PLAINTIFFS by failing to offer them a

reasonable mortgage loan modification in an amount that they can afford to pay.

IV. MOTION FOR PRELIMIARY INJUNCTION

30. There exists an imminent likelihood of irreparable harm to PLAINTIFFS

of loss of their sole residence if the injunction is not issued and the foreclosure sale is

allowed to take place on 12/15/2010.

31. In the present case, there is an unavailability of any adequate remedy at

law for PLAINTIFFS (i.e., an award of money damages after the harm has occurred will

not restore the PLAINTIFFS threatened loss of their home.

32. The threatened harm to the PLAINTIFFS greatly outweighs any

substantial harm to BANK, if any.



13/24

13

33. Granting the injunction will not contravene a substantial public interest;

and

34. PLAINTIFFS have a substantial likelihood of success based on the on the

allegations: i.e., the facts alleged are likely to be proven and are not merely speculative.

V. SECOND CLAIM: PREDATORY LENDING

35.

HORIZION defrauded PLAINTIFFS and engaged in illegal andpredatory lending practices in violation of Federal and State laws.

36. PLAINTIFFS question the legitimacy of the assignment of the original

mortgage loan from HORIZON to BANK and how said loan was later packaged and

sold as a mortgage backed security or derivative. PLAINTIFFS assert that HORIZON

and BANK not only defrauded PLAINTIFFS but also defrauded subsequent purchasers

and investors of the securities when HORIZONS first underwrote and securitized

PLAINTIFFS mortgage.

37. Because of HORIZONS fraud and material misrepresentations when

they underwrote and securitized PLAINTIFFS mortgage in the first place, HORIZON

should be forced to buy back PLAINTIFFS mortgage.



14/24

14

IV. THIRD CLAIM: WRONGFUL FORECLOSURE

38. As a proximate result of the negligent or reckless conduct of HORIZON,

PLAINTIFFS credit has been impaired and PLAINTIFFS are threatened BANK andARONOWITZ with the eminent loss of their property despite the fact that they have

made all payments in accordance with the terms of their temporary loan modification

.

39. Unless the pending foreclosure scheduled for 12/15/201, is enjoined,

PLAINTIFFS will suffer irreparable harm and will not have an adequate remedy at law.

40. As a proximate result of the negligent actions of HORIZON, BANK and

ARONOWITZ, the PLAINTIFFS have suffered consequential damage and will

continue to suffer additional damages in an amount to be fully proved at the time of trial.

V. FOURTH CLAIM: SLANDER OF TITLE

41. HORIZON, BANK and ARONOWITZ have caused to be recorded

various documents including a Notice of Sale which has impaired PLAINTIFFS title

which constitutes slander of title and the PLAINTIFFS should be awarded resulting

damages to be fully proved at the time of trial.

VI. FIFTH CLAIM: VIOLATION OF THE CONSUMER PROTECTION ACT

42. HORIZON, BANK and ARONOWITZ have engaged in a pattern of

unfair practices in violation of the Colorado Consumer Protection Act, 6-1-101, entitling



15/24

15

PLAINTIFFS to damages, treble damages and reasonable attorney fees and costs

pursuant to the statute.

VII. SIXTH CLAIM: SLANDER OF CREDIT

43. PLAINTIFFS allege that the actions and inactions of HORIZON,

BANK and ARONOWITZ have impaired their credit causing them to lose the ability to

have good credit entitling them to damages, including statutory punitive damages

pursuant to state and federal law, all to be proved at the time of trial.

VIII. SEVENTH CLAIM: INFLICTION OF EMOTIONAL DISTRESS

44. HORIZON, BANK and ARONOWITZ, have intentionally or

negligently taken actions which have caused the PLAINTIFFS to suffer severe

emotional distress.

IX. EIGHTH CLAIM: FEDERAL CLAIMSVOLATIONS OF THE FDCPA

45. PLAINTIFFS re-allege and incorporate by reference all preceding

allegations of law and fact.

46. HORIZON, BANK and ARONOWITZ, violated the FDCPA by their

conduct, including but not limited to:

a. attempting to collect amounts not permitted by law (15 U.S.C. 1692f(1));



16/24

16

b. using unfair and unconscionable collection methods (15 U.S.C. 1692f);

c. giving a false impression of the character, amount, or legal status

of the alleged debt (15 U.S.C. 1692e(2));

d. using false or deceptive collection methods (15 U.S.C. 1692e(5));

e. failing to state the amount of the debt as required by 15 U.S.C. 1692g(a)(1);

f. engaging in conduct the natural consequence of which is to harass,

oppress or abuse borrowers (15 U.S.C. 1692d);

g. contacting directly a borrower it knows is represented by counsel (15 U.S.C. 1692c);

h. failing to provide disclosures required by 15 U.S.C. 1692e(11);including when sending monthly statements to borrowers; and

i. sending notices or making communications that do not comply with the FDCPA.

j. The same conduct violates coextensive laws and regulations in Colorado.

k. PLAINTIFFS are entitled to relief under the FDCPA and under Colorado state debt

collection laws and regulations, including damages and a declaratory judgment that

DEFENDANTS conduct violates the FDCPA.

X. NINTH CLAIM: VIOLATIONS OF RESPA



48. HORIZON, BANK and ARONOWITZ have violated RESPA by the

following conduct:



17/24

17

a. failing to meet the requirements of 12 U.S.C. 2605 regarding transfer of servicing

and responding to qualified written requests;

b. failing to meet the requirements of 12 U.S.C. 2609 regarding escrow account

statements, collection of escrow and notification of shortage in escrow account.

c. PLAINTIFFS are entitled to relief under the RESPA, including damages and a

declaratory judgment that DEFENDANTS conduct violates RESPA.

XI. TENTH CLAIM: VIOLATIONS OF TILA



50. PLAINTIFFS Note and Mortgage is serviced by HORIZON and is an

adjustable rate mortgages, subject to the disclosure requirements of Reg. Z, 12 C.F.R.

226.20(c) for variable rate adjustments.

51. Pursuant to 12 C.F.R. 226.20(c) HORIZON, BANK and

ARONOWITZ, are required to include in its variable rate adjustment disclosure a

statement of the loan balance. 12 C.F.R. 226.20(c) (4).

52. As a result of the imposition of unauthorized or inflated charges,

Defendants HORIZON, BANK and ARONOWITZ , to accurately disclose the loan

balance. HORIZON, BANK and ARONOWITZ , disclosures state a loan balance that is



18/24

18

higher than it would have been but for DEFENDANTS intentional and improper

charges.

53. PLAINTIFFS have been damaged by such violations, in that they have

been charged improper fees, and in that they either paid such fees or had their property

encumbered by such fees.

54. PLAINTIFFS are entitled to relief under TILA, including damages and a

Declaratory Judgment that HORIZON, BANK and ARONOWITZ, conduct violatesTILA.

XII. ELEVENTH CLAIM: STATE LAW CLAIMSUNFAIR AND DECEPTIVE ACTS AND PRACTICES

IN VIOLATION OF STATE LAWS

55. PLAINTIFFS hereby incorporate by reference all preceding allegations of

law and fact.

56. HORIZON, BANK and ARONOWITZ have engaged in unfair and/or

deceptive acts and practices with respect to the Plaintiffs that includes one or more of the

following:

a. Imposing and collecting unnecessary and excessive fees and charges not authorized by

the loan documents or by applicable law;

b. Imposing and collecting excessive interest and unlawful prepayment penalties;

c. Failing to properly and/or timely credit PLAINTIFFS payments to their account;

d. Improperly administering suspense and corporate advance accounts;



19/24


20/24

20

XIII. TWELFTH CLAIM: BREACH OF REINSTATEMENT AGREEMENTS



58. HORIZON entered into a valid reinstatement agreement with PLAINTIFFS,

the relevant provisions of which are uniform, with PLAINTIFFS scrupulously honoring

the terms of the reinstatement agreement.

59. HORIZON and BANK then failed to honor the agreements by later

continuing the foreclosure process, while the PLAINTIFFS were attempting to make

payments and work with HORIZON . Accordingly, HORIZON breached its uniform

contract with the PLAINTIFFS .

60. PLAINTIFFS are entitled to relief for breach of reinstatement agreements.

XIV. THE NON-JUDICIAL FORECLOSURE PROCESS IN COLORADOAND 38-38-101 C.R.S. ARE UNCONSTITUTIONAL

61. The non-judicial foreclosure process in COLORADO pursuant to 38-38-101

C.R.S is inherently unconstitutional because the Rule 120 hearing does not allow the

PLAINTIFFS to contest the foreclosure thereby denying PLAINTIFFS substantive and

procedural due process as guaranteed by the 5 th Amendment of the United States

Constitution.



21/24

21

62. The Due Process Clause contained within the Fifth Amendment of the United

States Constitution states in part that No person shallbe deprived of life, liberty, or

property without due process of law. The Due Process Clause requires that all persons

who will be materially affected by a legal proceeding receive notice of its time, place and

subject matter so that they will have an adequate opportunity to prepare for said legal

proceeding conducted in a fair manner by an impartial judge who will allow the

interested parties to fully present their complaints, grievances and defenses.

63. The DEFENDANTS have attempted to railroad mass foreclosures down thethroats of PLAINTIFFS and COLORADO consumers without adequate procedural and

substantive due process protections for COLORADO homeowners facing foreclosures.

DEFENDANTS have taken the untenable and unconstitutional position that Courts

should overlook inadequate and incomplete documentation because due process

considerations are immaterial and dont matter; however, when DEFENDANTS are

attempting to take away PLAINTIFFS residence then due process is very material and

does matter. In fact, due process protections in home foreclosures are crucial. The non-

judicial foreclosure process in COLORADO pursuant to 38-38-101 C.R.S. is

inherently unconstitutional and DEFENDANTS have abused the non-judicial foreclosure

process and take PLAINTIFFS property without affording them any due process

protections under 38-38-101 C.R.S.

64. The DEFENDANTS processing of mass foreclosures has so distorted the

non-judicial foreclosure process in COLORADO that the way the Rule 120 hearing is



22/24

22

currently conducted in COLORADO does not afford the PLAINTIFFS who are facing

foreclosure any opportunity, adequate or otherwise, to fully present their complaints,

grievances and defenses.

65. The Rule 120 hearing has evolved to the point that in COLORADO the Court

is stripped of any jurisdiction to even consider or hear any complaints, grievances and

defenses by PLAINTIFFS facing foreclosure and as such, the Rule 120 hearing denies

the PLAINTIFFS and aggrieved homeowners facing foreclosure procedural and

substantive due process in guaranteed under the Fifth Amendment of the United StatesConstitution.

66. As such, because PLAINTIFFS are denied due process under 38-38-101

C.R.S. and this Court must rule that the non-judicial foreclosure process in

COLORADO and COLORADO state law 38-38-101 C.R.S. are unconstitutional and,

as such, must be granted injunctive relief in order to prevent the unconstitutional taking

of their property by State action without procedural or substantive due process of law in

violation of the Fifth Amendment of the United States Constitution.

XV. PRAYER FOR RELIEF

WHEREFORE , having set forth and asserted claims against Defendants, the

Plaintiffs LYNN PRATER AND JOHN PRATER , pray for the following relief:



23/24

23

67. That this Court grant immediate injunctive relief and enjoin the foreclosure

proceeding presently pending against the PLAINTIFFS and/or dismiss the foreclosure

action with prejudice;

68. That the actions of HORIZON, BANK and ARONOWITZ, be determined

to be unfair and deceptive business practices in violation of the Colorado Consumer

Protection Act, 6-1-101;

69. That the PLAINTIFFS s be awarded punitive damages provided for inColorado Consumer Protection Act, 6-1-101, including costs and attorney fees;

70. That the PLAINTIFFS be awarded consequential damages to be fully

proved at the time of trial approximately in the amount of Five Hundred Thousand

Dollars ($500,000.00);

71. That the PLAINTIFFS be awarded their fees and costs pursuant to the

written loan agreements which bind HORIZON, BANK and ARONOWITZ;

72. That the PLAINTIFFS be awarded a reasonable mortgage loan modification

in an amount that they can afford to pay;

73. That this Court rule that the non-judicial foreclosure process in

COLORADO and COLORADO state law 38-38-101 C.R.S. are unconstitutional



24/24

because the taking of PLAINTIFFS property by State action without procedural or

substantive due process of law is in violation of the Fifth Amendment of the United

States Constitution

74. That the Court grant any such other relief that may be just or equitable.

XIV. DEMAND FOR JURY TRIAL

The PLAINTIFFS LYNN PRATER AND JOHN PRATER, hereby demanda trial by jury.

Dated: December 13, 2010

Respectfully submitted,

PRATER LEGAL OFFICES

By: /s/ John R. Prater____ Attorneys for RespondentsJohn R. Prater, Esq.3570 E. 12 th AvenueDenver, CO 80206Phone Number: (303) 586-5020Fax: (303) 325-5029Atty. Reg. #: 13929


prater et al v. bank of new york mellon et al

Documents