Matthew C.

Argentieri
State Bar No. 24003400
P.O. Box 5,
Frisco, TX 75034
(972) 712-8339 phone
(972) 712-4829 fax
Attorney for Plaintiff John K. Moorhead

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

JOHN K. MOORHEAD )
)
)
Plaintiff, ) CIVIL ACTION
vs. ) CASE NO.:
)

BAC HOME LOANS SERVICING, LP, )

FKA COUNTRYWIDE HOME LOANS )
SERVICING, LP )
Defendant. )

PLAINTIFF’S ORIGINAL COMPLAINT & APPLICATION FOR INJUNCTIVE

RELIEF

TO THE HONORABLE U. S. DISTRICT COURT JUDGE:

Comes now JOHN K. MOORHEAD, Plaintiff, herein, by and through Matthew C.

Argentieri, attorney of record in this proceeding, and files this Original Complaint
& Application for Injunctive Relief to avoid the foreclosure of his property
asserted by BAC HOME LOANS SERVICING, LP, FKA COUNTRYWIDE HOME LOANS
SERVICING, LP (hereinafter referred to as “BAC”), and would respectfully show
the Court as follows:

I. PARTIES
1. Plaintiff, JOHN K. MOORHEAD, is an individual that is a citizen of the State of
California.

2. Defendant is a Texas partnership authorized to do business in the State of

Texas. Defendant has its principal place of business in the 7105 Corporate
Drive, PTX-B-35, Plano, Texas 75024. Defendant may be served with process by
serving its registered agent, _______________________. BAC’s last known address
through its last known attorney of record in the underlying foreclosure
proceeding, Barrett Daffin Frappier Turner & Engel, L.L.P. at 15000 Surveyor
Blvd., Ste. 100, Addison, Texas 75001, facsimile number 972-386-7673.

II. JURISDICTION AND VENUE

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3. The court has jurisdiction over the lawsuit under 28 U.S.C. Sec. 1332(a)(1)
because the plaintiff and defendant are citizens of different states and the
amount in controversy exceeds the jurisdictional requirements of the court being
in excess of $__________________, excluding interest and costs.

4. Venue is proper under 28 U.S.C. Sec. 1391(b) because the acts or

transactions complained of occurred in this District and the real property at issue
in this action is in this District.

III. FACTS
5. At the time of the filing of this complaint, BAC held or asserted a lien against
Plaintiff’s real property under a deed of trust. A copy of the Instrument is not
attached at this time but will be included later. However, the information
regarding the property is as follows:
Borrower: John K. Moorhead

Lender in Deed of Trust: BAC Home Loans Servicing, LP, FKA Countrywide
Home Loans Servicing, LP

Property: 5402 New Hope Rd., Aubrey, Texas 76227

Loan No.: 140951001

BDFTE No.: 20080031401414

6. At the time of the filing of this complaint, BAC is threatening to foreclose on

the Plaintiff’s property at the Denton County, Texas Courthouse on the first
Tuesday of January 2010 (January 5, 2010).

7. Breach of Contract - The contract which the aforementioned deed of trust is

based upon contains language confirming subrogation rights wherein if a loss
occurs the Plaintiff will apply proceeds from his insurance policy to pay the
Debtor. Under the doctrine of mutuality of contracts, these subrogation rights
should apply to any recovery the Debtor receives on risk allocation. Therefore,
Plaintiff brings a cause of action under breach of contract for not applying all
credits and offsets to his account under the right to subrogation.

8. Attached as Exhibit 1, is an article from The New York Times dated December
24, 2009, that shows that financial institutions were insuring their risk of loss
from mortgage default. Further, the article states that these financial
institutions were taking mortgage notes, packaging the notes into various
financial instruments such as collateralized debt obligations (c.d.o.) and at the
same time taking out financial bets against the c.d.o.’s. Thus, the article states
that the many financial institutions were paid not only once(selling the right to
payments from the c.d.o. to investors so long as the c.d.o. does not fail), but
twice(payment from the financial bet that the c.d.o. will fail) for the original note
between Plaintiff and Defendant. However, the financial institutions not only
created this type of financial instrument and bet once for each note, they also
created synthetic c.d.o.’s which means that the financial institutions were able to
effectively sell the note and bet against it multiple times.

9. Request for Preliminary Injunction - Plaintiff will suffer irreparable harm if

defendant is not enjoined during the pendency of this lawsuit from foreclosing on
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plaintiff’s real property. The injury is imminent because the defendant is
threatening to take action on January 5, 2010. The injury is irreparable because
once the foreclosure sale is conducted there is no right to undo the sale, even
under bankruptcy law. Plaintiff has no adequate remedy at law because he can
only request a court to enjoin the foreclosure in order to determine what amount
of subrogation benefit he should receive prior to the foreclosure.

10. There is a substantial likelihood the plaintiff will prevail on the merits
because the financial difficulty facing this nation is the cause of the financial
institutions. By creating the synthetic c.d.o.’s the financial institutions multiplied
any danger mortgage default may lead to. Therefore, a firm like AIG, with
money from the U.S. government, backed by the full faith and credit of the
American people, is still paying for the potentially bad notes. It is not fair that
the financial institutions should be paid from public funds for what is termed risk
allocation or insurance against mortgage default and then achieve double
recovery from the payment of the total principal amount, interest, and possible
foreclosure of the property.

11. The harm faced by plaintiff outweighs the harm that would be sustained by
the defendant if the preliminary injunction was granted. As stated in paragraph
9, the harm is imminent and irreparable to plaintiff, however, there is no harm to
defendant if the injunction is granted. If the defendant prevails in the future,
they can foreclose at that time.

12. Issuance of a preliminary injunction would not adversely affect public

interest and policy because it will make the financial institutions accountable for
their acts. These financial institutions are taking as much risk as possible and
multiplying it, all in the name of risk allocation. These acts need to be
controlled, if not by Legislative or Executive Branches, by the Judicial Branch.
The control can be as simple as the denial of double recovery by these financial
institutions when they act too greedy.

13. Plaintiff is liable to Defendant because of violations of Securities and

Exchange Commission as described in paragraph 8 above, incorporated by
reference, specifically stated here as a denial of subrogation benefits, unlawful
interference with a subrogation benefit claim, and breach of a fiduciary duty.
The violations lead to a claim under __ U.S.C. ________________, for a civil action
by a Plaintiff to enjoin or seek other equitable relief to redress violations or
enforce the federal statutes and the payment of attorney’s fees.

Plaintiff will show the Court that he has employed the undersigned
attorney to represent him in this proceeding to collect the funds due to him and
has agreed to pay him a reasonable fee for his services. An award of attorney’s
fees to the Plaintiff would be equitable and just pursuant to ____ U.S.C.
_______________.

Prayer

14. For those reasons, plaintiff asks the court to enter a preliminary
injunction, enter judgment for plaintiff, award costs of court, and award plaintiff
all other relief the court deems appropriate, including an award of attorney’s
fees.

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 Respectfully Submitted,

/s/ Matthew C. Argentieri

Matthew C. Argentieri
State Bar No. 24003400
P.O. Box 5, Frisco, TX 75034
(972) 712-8339 phone
(972) 712-4829 fax
Attorney for Plaintiff John K. Moorhead

CERTIFICATE OF SERVICE

I certify that on January 4, 2010, a true and correct copy of this document
was served by facsimile on the following parties.

Barrett Daffin Frappier Turner & Engel, L.L.P.

VIA FACSIMILE 972-386-7673

/s/ Matthew C. Argentieri

Matthew C. Argentieri

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