Having been a victim of Countrywide, I observe their downfall with much interest. The enclosed Court document illustrates a portion of the torment suffered by one who was merely seeking to live his alive as best he could.
COMMONWEALTH OF KENTUCKY
HARDIN CIRCUIT COURT
CASE NO. 06-CI-00339
COUNTRYWIDE HOME LOANS, INC. PLAINTIFF
VS.
BARRY C. DRAKE , et al. DEFENDANT
MOTION FOR SUMMARY JUDGEMENT
Comes the Defendant/Cross-Claimant, Barry C. Drake pro se, in accordance with CR 41.02(1)(2), and in accordance with CR 56.01, with a Motion For Summary Judgement, as there is no triable issue of fact, nor any dispute as to the real facts of this case, based on the following:
(1) Barry C. Drake signed the loan agreement with America’s Wholesale Lender based on coercion tactics utilized by the lender when it verbalized to him that “he would be able to re-finance in a ‘few months’, acquire more money, and a better loan situation”, which turned out to be false, as Defendant’s loan was then sold to Plaintiff, thereby rendering the’ promise of refinancing‘, to be false and deceptive.
Predatory lending refers to unconscionable lending practices that take advantage of vulnerable borrowers, such as the elderly or unsophisticated. The term also refers to the practice of convincing borrowers to agree to unfair and abusive loan terms. Such loans could take place either through outright deception or through aggressive sales tactics, taking advantage of borrowers' lack of understanding of extremely complicated transactions.
One lending tactic that is generally considered to be "predatory" is making a secured loan, such as home or car loans, with the expectation that the borrower will not repay the loan (i.e. default), and therefore the lender acquires title to the home or car in a foreclosure sale.
The typical case is where the monthly payment exceeds 50% or even 75% the borrower's after-tax income, or the borrowers income is irregular. While the borrower may be unaware their default is statistically probable, the lender should be aware of this and not make such loans.
(2) The aforementioned loan which required payments of approximately $352.00 per month is in violation of ‘predatory lending’ laws as Defendant is disabled and earns less than $700.00 a month which far exceeds a 45% debt to earning ratio, a fact which Plaintiff’s employees informed Defendant about. Upon attempting to re-finance with Countrywide, Defendant was asked, “where did you get such a loan”? In essence, Plaintiff purchased a loan which violated the Law of Frauds, and became a willing conspirator, firmly ensconced in an action which was void from it’s inception due to it’s being criminal. Plaintiff failed to mention these facts in his Complaint, just as he failed to mention that Defendant filed complaints with the Federal Trade Commission and HUD in January 2006, in reference to these matters.
The Home Ownership and Equity Protection Act of 1994 States “Creditors may not:
make loans based on the collateral value of your property without regard to your ability to repay the loan”..
Violations of the ‘Consumer Fraud Act‘, and the ‘Truth In Lending Act’ were perpetrated as well, in this conspiracy of criminal libel and predatory lending.
The FTC advised Barry C. Drake to demand that Plaintiff ‘rescind’ his loan, which he did, and advised Plaintiff of the extreme emotional distress his criminal actions were causing Defendant to endure, as he has a severe anxiety disorder which had been fully exacerbated due to the acts of criminality perpetrated by Plaintiff and his associates. Plaintiff subsequently refused to rescind the loan, and being aware of Barry C. Drake’s constitutional rights to seek satisfaction in the courts, knowing full well that he could not afford legal representation, sought to utilize intentional Abuse of Process as a means to accomplish his criminal acquisition of the property, as he had no legal cause of action, and wantonly and willfully obstruct justice. KRS 294.220(2)(b) states that it is illegal to engage in fraudulent practices, and KRS 367.381(2) states “no loan broker shall mislead creditors“. A fundemental breach or a repudiatory breach of contract occurred when the original lender failed to honor a bargained for exchange, terminated the loan contract prior to Plaintiff’s purchase of the loan. Were these facts not true, Plaintiff would have mentioned these events, but instead, he sought to criminally slander and defame Barry C. Drake’s character by withholding and suppressing relevant evidence , in an attempt to steal the property, therefore rendering his court actions to be constitutionally criminal, and void, due to KRS258.335, which prohibits concealment of facts.
(3) The City of Radcliff, has a responsibility to make known the fact that there are no delinquent taxes nor a lien against Barry C. Drake’s property, pursuant to KRS 382.65, their attempt to seek a judgment for future taxes, exemplifies the fact that they are firmly ensconced in this conspiracy of defamation and unlawful theft-due to the fact that they don’t require judgments against other residents for future taxes, so why discriminate against Barry C. Drake. Radcliff simply wants a share, irregardless if the actions which bring about it’s share, be criminal or not.
Plaintiff’s Complaint is of fraudulent intent, based on the following:
(1) Abuse of process, misuse of the public right of access to the courts. There is no valid cause of action.
(2) Vexatious litigation-this action was brought as an illegal act of retaliation, meant solely to harass or subdue Barry C. Drake’s rights.
(3) Negligent infliction of emotional distress, an intentional act, brought on by extreme and dangerous conduct, because this type of conduct goes beyond the standards of civilized decency, and are utterly intolerable in a civilized society.
(4) Countrywide, along with America’s Wholesale Lender(the originator of the fraudulent loan), are association in fact enterprises, both utilized the mail and telephone wires to concoct and perpetuate this conspiracy in an interstate fashion, seeking to illegally acquire property and sell it, and utilize the funds to repeat similar purposes, where as the City of Radcliff sought it’s share, as well. The attorneys who represent these individuals are guilty of “aiding and abetting”.
"Fraud upon the court" has been defined by the 7th Circuit Court of Appeals to "embrace that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication." Kenner v. C.I.R., 387 F.3d 689 (1968); 7 Moore's Federal Practice, 2d ed., p. 512, ¶ 60.23. The 7th Circuit further stated "a decision produced by fraud upon the court is not in essence a decision at all, and never becomes final."
It is a material and relevant fact that Plaintiff’s Complaint is fraudulent, based on malicious defamation, conspiracy, suppression of relevant facts and evidence, predatory lending, and unlawful theft. The City of Radcliff is enjoined in this conspiracy due to it’s failure to act in accordance with KRS 382.365, an error which allowed Plaintiff to maliciously refer to Defendant as a ‘delinquent taxpayer’, in a criminally slanderous and libel fashion.
"Each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Id. In order to defeat a summary judgment motion, the nonmoving party may not simply rely on his pleadings but must present some evidence on every material issue for which he will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
Barry C. Drake prays for the following relief:
(1) To dismiss Plaintiff’s Complaint due to it’s being fraudulent and retaliatory, and declare the subject loan to be void, and order Plaintiff to immediately rescind said loan.
(2) Act in accordance with KRS 26a.080 and place this complaint of criminal actions in the hands of it he proper disciplinary officials, as required by law.
(3) Joint and several liability.
(4) 2.5 million dollars in compensatory damages.
(5) 7.5 million dollars in punitive damages.
(6) Relief in the form of writs and orders to protect Barry C. Drake’s property.
(7) Any other damages that this court deems proper due to the intentional destruction of his quality of life and the damage to his health and personal reputation, as civil suits are published and countless people have knowledge of it.
CR 13.03 COUNTERCLAIM EXCEEDING OPPOSING CLAIM
A counterclaim may or may not diminish or defeat the recovery sought by the opposing party. It may claim relief exceeding in amount or different in kind from that sought in the pleading of the opposing party.
I certify that a true and accurate copy of the foregoing was this 5th day of April, 2006, forwarded to the following:
Mark N. Dierks
Michael A. Pike
Clarise Sartin is informed as well.
Respectfully submitted,
Barry C. Drake
100 Navaho Crt. #3
Radcliff, Ky. 40160