salmon v bank of america complaint (initial pleading)
DESCRIPTION
STEVENS COUNTY SUPERIOR COURTSAMUEL SALMON AND ROXY SALMON, PLAINTIFF, VS. BANK OF AMERICATRANSCRIPT
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
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STATE OF WASHINGTONSTEVENS COUNTY SUPERIOR COURT
SAMUEL SALMON AND ROXY SALMON
PLAINTIFF
VS
BANK OF AMERICA RECONTRUST
MERS AND MERSCORP INC
DEFENDANT
))))))))))
CASE NO 10-2-00596-8
COMPLAINT FOR TEMPORARY RESTRAINING ORDER PRELIMINARY INJUNCTION PERMANENT INJUCTION FORGERY AND REMUNERATION
SUMMARY OF THE ACTION
Plaintiff Samuel and Roxy Salmon are commencing this action
against Defendant BANK OF AMERICA RECONTRUST and MERS for
illegally representing them selves as lender trustee and
beneficiary of the NOTE signed by plaintiff Samuel Salmon
referenced by Deeds of Trust exhibits (AB and D) filed at
Stevens County Assessors office The Plaintiff alleges the
defendant Bank of America FKA Countrywide illegally collected
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
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NOTE remuneration from the Plaintiff on the Note referenced by
said deeds of trust and are fraudulently claiming to be the
lender trustee and or beneficiary of the NOTE Plaintiff will
in the pleading show the Defendant blatantly violated Washington
State Codes (RCWrsquos) Plaintiff has also listed several court
cases showing the Defendant MERS or their banking partners
inability to produce the Notes in question or proper
endorsements showing clear chain of title proving ownership of
the Note thereby loosing standing in their claim The original
Notes have not been simply produced to show standing in their
claims Plaintiff alleges the Defendant has sold the Note
thereby already receiving remuneration on the Note evidencing
the huge derivatives debacle as securities have been sold and no
one seems to know where the NOTE is Plaintiff alleges the copy
of the NOTE produced by the trustee Recontrust is in fact a
forgery Plaintiff will show evidence of all that the Plaintiff
alleges so Court may relieve the Plaintiff of injury from
Defendantrsquos claims on Plaintiffrsquos personal real property and
Defendantrsquos intent to fraudulently sell Plaintiffs personal real
property thereby pleading with Court to issue a temporary
restraining order preliminary injunction and permanent
injunction based on the following Revised Code of Washington
(RCW) blatant violations and Court case evidence Plaintiff will
show reason for requesting a full remuneration of all illegally
collected payments and fees
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
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JURISDICTION AND VENUE
Stevens County Superior Court has jurisdiction pursuant to
RCW 740010 Restraining orders and injunctions may be granted by
the superior court or by any judge thereof
Venue is correct pursuant to
RCW 412010 Actions to be commenced where subject is situated
Also RCW 740040 RCW 740020 RCW 6404010 RCW 6404020
RCW 6124005 RCW 6124010 RCW 6124030 RCW 6124020 RCW
6404020 RCW 6508070 RCW 9A60020 RCW 9A56320 RCW
1037080 RCW 62A5-109 RCW 6512750
EXHIBITS
Exhibit (AampB) Deeds of Trust on file at Stevens County Recorders
Office Auditors File 2007 0012467 2007 0012468
Exhibit (C) ldquoNotice of Defaultrdquo was issued by Bank of America on
property located at 917 A PHILPOTT ROAD COLVILLE WA 99114 post
marked September 02 2010
Exhibit (D) The ldquoCorporation Assignment of Deed of Trust at
Stevens County Recorders Office Auditors File 2010 0007023rdquo
recorded September 23 2010
Exhibit (E) ldquoNotice to Resident of property subject to
foreclosure salerdquo was issued by Bank of America on property
located at 917 A PHILPOTT ROAD COLVILLE WA 99114 on October 21
2010
Exhibit (F) Forgery of alleged Note dated October 19 2007
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
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PARTIES
Plaintiff Samuel and Roxy Salmon owners and residents of real
property description LOT(S) 3 OF SHORT PLAT NO SP 33-96
LOCATED IN THE SW14 OF SECTION 21 TOWNSHIP 34 NORTH RANGE 39
EAST WM IN STEVENS COUNTY WASHINGTON ACCORDING TO PLAT
RECORDED NOVEMBER 14 1996 UNDER AUDITORS FILE NO9612321 or
known as 917C Philpott Rd Colville WA 99114
Defendant Bank Of America Corporation listed as beneficiary on
Exhibit (D) with principal executive offices located at 100 North
Tryon Street Charlotte North Carolina BOA is traded on the
NYSE under the symbol ldquoBACrdquo Summons will be served at Bank of
Americarsquos local branch located at 225 E 1St Ave Colville WA
99114 (509) 684-2551
Individual Defendants
Brian Thomas Moynihan Bank of America CEO since Jan 2010
Kenneth D Lewis Bank of America CEO from April 2001 to Jan
2010
Defendant ReconTrust Company NA listed trustee on Exhibit (D)
is a wholly-owned subsidiary of Bank of America NA and has no
known physical street address or phone number in the State of
Washington
Defendant MERS Mortgage Electronic Registration System listed
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
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as beneficiary on Exhibits (AB and D) is a wholly owned
subsidiary of MERSCorp Inc MersCorp was created in the early
1990rsquos by the former CEOrsquos of Fannie Mae Freddie Mac Indy
Mac Countrywide Stewart Title Insurance and the American Land
Title Association MERSrsquo principal place of business at 1595
Spring Hill Road Suite 310 Vienna Virginia 22182 MERSrsquo
national data center is located in Plano Texas
Individual Defendants
R K Arnold President and CEO Mortgage Electronic Registration
Systems Inc
FACT I
On October 19 2007 Plaintiffs Samuel Salmon and Roxy E Salmon
executed a promissory note in the original principal amount of
$40942253 for the purchase of their home The Note was made
payable to Countrywide Bank The Note was secured by a Deed of
Trust on the home The Deed of Trust identifies the beneficiary
as ldquoMortgage Electronic Registration Systems Inc (lsquoMERSrsquo)rdquo and
states that ldquoMERS is a separate corporation that is acting solely
as nominee for Lender and Lenderrsquos successors and assignsrdquo The
ldquoLenderrdquo is identified as Countrywide Bank The Trustee is
identified as ldquoLandsafe Title of Washingtonrdquo
Landsafe Title of Washington was a subsidiary of Countrywide
Bank as stated on Securities Information website from the SEC
EDGAR database httpwwwsecinfocomdxj8536htm1stPage
which makes Landsafe Title of Washington the original Trustee
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
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fiducially responsible to and or an associate of Countrywide
Bank which nullifies this Deed of Trust Exhibits (AampB) as a
binding legal document pursuant to
RCW 6124010 (3) and RCW 6124020
RCW 6124010 (3) The trustee or successor trustee shall have no
fiduciary duty or fiduciary obligation to the grantor or other
persons having an interest in the property subject to the deed of
trust
RCW 6124020 ldquoNo person corporation or association may be both
trustee and beneficiary under the same deed of trustrdquo
FACT II
When Countrywide Bank went out of business for predatory lending
the beneficiary MERS or the trustee Landsafe Title of Washington
never did record the trustee resignation violating RCW 6124010
(2)
Trustee qualifications mdash Successor trustee
(2) The trustee may resign at its own election or be replaced by
the beneficiary The trustee shall give prompt written notice of
its resignation to the beneficiary The resignation of the
trustee shall become effective upon the recording of the notice
of resignation in each county in which the deed of trust is
recorded If a trustee is not appointed in the deed of trust or
upon the resignation incapacity disability absence or death
of the trustee or the election of the beneficiary to replace the
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
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trustee the beneficiary shall appoint a trustee or a successor
trustee Only upon recording the appointment of a successor
trustee in each county in which the deed of trust is recorded
the successor trustee shall be vested with all powers of an
original trustee
FACT III
On or about April 1 2009 Bank of America declared itself to be
the new Lender by billing the Plaintiffs for the mortgage
payments Bank of America assumed the position of Lender on the
Deed of Trust Exhibits (AampB) although they failed to file the
conveyance promptly with the local Countyrsquos Auditor again
violating RCW 6124010 (2) and also violating 6404010 RCW
6404020 RCW 6508070 thereby nullifying Notice of Default
Exhibit (C) and The ldquoCorporation Assignment of Deed of Trust at
Stevens County Recorders Office Auditors File 2010 0007023rdquo
recorded September 23 2010 Exhibit (D) This alleged assignment
has the same signer for both MERS and Bank of America How does
this work
RCW 6508070
Real property conveyances to be recorded
A conveyance of real property when acknowledged by the person
executing the same (the acknowledgment being certified as
required by law) may be recorded in the office of the recording
officer of the county where the property is situated Every such
conveyance not so recorded is void as against any subsequent
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
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purchaser or mortgagee in good faith and for a valuable
consideration from the same vendor his heirs or devisees of the
same real property or any portion thereof whose conveyance is
first duly recorded An instrument is deemed recorded the minute
it is filed for record
FACT IV
Before a conveyance was ever assigned by the Defendants a
ldquoNotice of Defaultrdquo was issued by Bank of America on the
Plaintiffs real property located at 917 A PHILPOTT ROAD COLVILLE
WA 99114 post marked September 02 2010 Exhibit (C) At a later
date Exhibit (D) the ldquoCorporation Assignment of Deed of Trust
was filed at Stevens County Recorders Office Auditors File 2010
0007023rdquo recorded September 23 2010 This filing of Exhibit (D)
was filed over a year after the Defendant Bank of America
falsely identified their self as owner of the loan on April 1
2009 and fraudulently collected payments on said promissory note
which is in violation of again stated RCW 6124010 (2) and also
violating 6404010 RCW 6404020RCW 6508070
RCW 6404010
Conveyances and encumbrances to be by deed
Every conveyance of real estate or any interest therein and
every contract creating or evidencing any encumbrance upon real
estate shall be by deed PROVIDED That when real estate or any
interest therein is held in trust the terms and conditions of
which trust are of record and the instrument creating such trust
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
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authorizes the issuance of certificates or written evidence of
any interest in said real estate under said trust and authorizes
the transfer of such certificates or evidence of interest by
assignment by the holder thereof by a simple writing or by
endorsement on the back of such certificate or evidence of
interest or delivery thereof to the vendee such transfer shall
be valid and all such assignments or transfers hereby authorized
and heretofore made in accordance with the provisions of this
section are hereby declared to be legal and valid
RCW 6404020
Requisites of a deed
Every deed shall be in writing signed by the party bound
thereby and acknowledged by the party before some person
authorized by this act to take acknowledgments of deeds
FACT V
Plaintiff affirms that According to (Exhibit D) the Corporation
Assignment of Deed of Trust on filed under the authority of
Stevens County Auditor in Stevens County WA that MERS Bank of
America and Recontrust are not legally qualified as a Lender or
Trustee and or the Beneficiary pursuant to RCW 6124010 (3)
(4) and RCW 6124020 as the Trustee ldquoRecontrust Company NA
is a wholly-owned subsidiary of Bank of Americardquo (this statement
is found on the Recontrust web site home page) Therefore
Recontrust is associated with and is fiducially responsible
entirely to the alleged Lender Bank of America
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
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RCW 6124010 (3) (4)
Trustee qualifications mdash Successor trustee
(3) The trustee or successor trustee shall have no fiduciary
duty or fiduciary obligation to the grantor or other persons
having an interest in the property subject to the deed of trust
(4) The trustee or successor trustee has a duty of good
faith to the borrower beneficiary and grantor
RCW 6124020
ldquoNo person corporation or association may be both trustee and
beneficiary under the same deed of trustrdquo
FACT VI
The Plaintiff asserts that the Note and Deed of Trust were not
properly assigned to the defendant Bank of America and therefore
has not proven its self as the Legal holder of the Note and Deed
of Trust therefore it lacks standing to enforce any claim on
said property For the reasons that follow the Plaintiff finds
that the Defendant has not proven that it is the holder of the
original Note pursuant to RCW 6124030(7)(aampb) and RCW
6124010 (4)
RCW 6124030
(7) (a) That for residential real property before the notice
of trustees sale is recorded transmitted or served the
trustee shall have proof that the beneficiary is the owner of any
promissory note or other obligation secured by the deed of trust
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
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A declaration by the beneficiary made under the penalty of
perjury stating that the beneficiary is the actual holder of the
promissory note or other obligation secured by the deed of trust
shall be sufficient proof as required under this subsection
(7) (b) Unless the trustee has violated his or her duty under
RCW 6124010(4) the trustee is entitled to rely on the
beneficiarys declaration as evidence of proof required under
this subsection
6124010 (4) The trustee or successor trustee has a duty of good
faith to the borrower beneficiary and grantor
Statement
Any proof of Note possession offered by the trustee or
beneficiary other than the production of the actual original Note
is not acceptable due to said Trustee Lender and Beneficiary
violations of stated RCWrsquos therefore it lacks standing to issue
any claim on Plaintiffs property
FACT VII
The Plaintiff affirms that according to the alleged trusteersquos
records and Plaintiffs phone Conversation with Recontrust it
does not have a physical street address in the state of
Washington which is in violation of RCW 6124030 (6)
RCW 6124030 (6)
(6) That prior to the date of the notice of trustees sale and
continuing thereafter through the date of the trustees sale the
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
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trustee must maintain a street address in this state where
personal service of process may be made and the trustee must
maintain a physical presence and have telephone service at such
address
FACT VIII
The Deed of Trust contains false representation on its face when
it represented that MERS was a beneficiary under the Deed of
Trust which states that ldquoMERS is a separate corporation that is
acting solely as a Nominee for Lender and Lenderrsquos successors and
assigns MERS as the beneficiary under this Security Instrumentrdquo
MERS is NOT the beneficiary under the Deed of Trust it never had
ownership or possession of the Promissory Note which is the
obligation which is secured by the Deed of Trust and MERS has
never been entitled to receive one cent of remuneration from the
Plaintiffrsquos loan proceeds The statement that MERS is the nominee
is nonsensical language which means nothing in a real estate
transaction and most certainly MERS has never been nor is it now
the beneficiary under the Deed of Trust The language is a sham
MERS is a wholly owned subsidiary of MersCorp Inc MERS has no
interest in the NOTE the LOAN or the REAL PROPERTY therefore
has no authority to transfer the NOTE as a nominee pursuant to
RCW 6124005 (2)
(2) Beneficiary means the holder of the instrument or document
evidencing the obligations secured by the deed of trust
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
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excluding persons holding the same as security for a different
obligation
FACT IX
Plaintiff has proven the Trustee Lender and Beneficiary are
illegal in this entire loan process Plaintiff does not recognize
any authority the alleged Claimants or Defendants are making on
Plaintiffs real property as the Deed of Trust is in itself
entirely invalid and the only security for the Note Plaintiff
demands the Defendant produce the original Note with the proper
endorsements for all transfers required by law pursuant RCW
62A3-203 to be submitted for inspection and verification by a
court appointed expert pursuant to RCW 6124030 (6) and (7) (a)
(b) Until then the copy or forgery of the NOTE which was
included with Notice of Trustee sale is not sufficient to
validate any claim Made by the Defendant on the Plaintiffs
possessions and is in violation of Washington forgery laws
pursuant RCW 62A5-109 RCW 1037080 RCW 9A56320 and RCW
9A60020
RCW 9A60020
(1) A person is guilty of forgery if with intent to injure or
defraud
(a) He falsely makes completes or alters a written
instrument or
(b) He possesses utters offers disposes of or puts off
as true a written instrument which he knows to be forged
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
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(2) In a proceeding under this section that is related to an
identity theft under RCW 935020 the crime will be considered
to have been committed in any locality where the person whose
means of identification or financial information was appropriated
resides or in which any part of the offense took place
regardless of whether the defendant was ever actually in that
locality
(3) Forgery is a class C felony
CASE EVIDENCE FOR FACT VIII AND FACT IX
MERS important case reference and commentary
MERS v Nebraska Dept of Banking and Finance ndash State Appellate
MERS demands to be recognized as having no actionable interest in
title 2005 Cite as 270 Neb 529
Merscorp Inc et al Respondents v Edward P Romaine amp c
et al Appellants et al Defendant the fact that the Mortgage
and Deed of Trust are separated is recognized (concurring
opinion) While affirming MERS could enter in the records as
ldquonomineerdquo the court recognized many inherent problems Rather
than resolve them they sloughed them off to the legislature
2006
The Boyko Decision -Federal District Judge Christopher Boyko of
the Eastern Division of the Northern District of Ohio Federal
Court overturns 14 foreclosure actions with a well reasoned
opinion outlining the failure of the foreclosing party to prove
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
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standing This decision started the movement of challenging the
standing of the foreclosing party Oct 2007
Landmark National Bank v Kesler ndash KS State Supreme Court ndash MERS
has no standing to foreclose and is in fact a straw man Oct
2009
The importance of the findings of the Supreme Court of Kansas
cannot be overemphasized It is generally the law in all states
that if the law of one state has not specifically addressed a
specific legal issue that the court may look to the law of states
which have The Kansas Court acknowledged that the case was one
of ldquofirst impression in Kansasrdquo which is why the Kansas Court
looked to legal decisions from California Idaho New York
Missouri and other states for guidance and to support its
decision As we have previously reported the Ohio Courts have
looked to the legal decisions of New York to resolve issues in
foreclosure defense most notably issues of standing to institute
a foreclosure
It is practically certain that this decision will be the subject
of review by various courts MERS has already threatened a
ldquosecond appealrdquo (by requesting ldquoreconsiderationrdquo by the Supreme
Court of Kansas of its decision by the entire panel of Judges in
that Court) However for now the decision stands which
decision is of monumental importance for borrowers It thus
appears that the tide is finally starting to turn and that the
courts are beginning to recognize the extent of the wrongful
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
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practices and fraud perpetrated by ldquolendersrdquo and MERS upon
borrowers which conduct was engaged in for the sole purpose of
greed and profit for the ldquolendersrdquo and their ilk at the expense
of borrowers
MERS Inc Appellant v Southwest Homes of Arkansas Appellee The
second State Supreme Court ruling ndash AR 2009
BAC v US Bank ndash FL Appellate court upholds the concept of
determining the standing of the foreclosing party before allowing
summary judgement All cases in FL must now go through this
process 2007
Wells Fargo NAS v Farmer Motion to vacate in Supreme Court Kings
County NY 2009
In Re Joshua amp Stephanie Mitchell ndash US Federal Bankruptcy Court
NV 2009
In Re Wilhelm et al Case No 08-20577-TLM (opinion of Hon
Terry L Myers Chief US Bankruptcy Judge July 9 2009) ndash
Chief US Bankruptcy Judge ID ndash MERS by its construction
separates the Deed from the Mortgage
MERS v Johnston ndash Vermont Superior Court Decision
Wells Fargo v Jordon ndash OH Appellate Court
Weingartner et al v Chase Home Finance et al ndash US District Court
Schneider et al v Deutsche Bank et al (FL) Class action suit
(the filing) seeking to recover actual and statutory damages for
violations of the foreclosure process Provides an excellent
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
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description of the securitization process and the problems with
assignments
JP Morgan Chase v New Millenial et al ndash FL Appellate which
clearly demonstrates the chaos which can ensue when there is a
failure to register changes of ownership at the county recorderrsquos
office Everyone operates in good faith then out of nowhere
someone shows up waving a piece of paper The MERS system while
not explicitly named is clearly the culprit of the chaos 2009
In Re Walker Case No 10-21656-E-11 ndash Eastern District of CA
Bankruptcy court rules MERS has NO actionable interest in title
ldquoAny attempt to transfer the beneficial interest of a trust deed
without ownership of the underlying note is void under California
lawrdquo ldquoMERS could not as a matter of law have transferred the
note to Citibank from the original lender Bayrock Mortgage
Corprdquo The Courtrsquos opinion is headlined stating that MERS and
Citibank are not the real parties in interest
In re Vargas 396 BR at 517-19 Judge Bufford made a finding
that the witness called to testify as to debt and default was
incompetent All the witness could testify was that he had looked
at the MERS computerized records The witness was unable to
satisfy the requirements of the Federal Rules of Evidence
particularly Rule 803 as applied to computerized records in the
Ninth Circuit See id at 517-20 The low level employee could
really only testify that the MERS screen shot he reviewed
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 18
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reflected a default That really is not much in the way of
evidence and not nearly enough to get around the hearsay rule
In Re Joshua and Stephanie Mitchell Case No BK-S-07-16226-
LBR [US Bankruptcy Court District of Nevada Memorandum
Opinion of August 19 2008] Federal Court in Nevada attacked
MERSrsquo purported ldquoauthorityrdquo finding that there was no evidence
that MERS was the agent of the notersquos holder
Mortgage Electronic Registration Systems Inc v Girdvainis
Sumter County South Carolina Court of Common Pleas Case No
2005-CP-43-0278 (Order dated January 19 2006 citing to the
representations of MERS and court findings in Mortgage Electronic
Registration Systems Inc v Nebraska Dept of Banking and
Finance 270 Neb 529 704 NW 2d 784) As such ALL MERS
assignments are suspect at best and may in fact be fraudulent
The Court of Common Pleas of Sumter County South Carolina also
found that MERSrsquo rights were not as they were represented to be
that MERS had no rights to collect on any debt because it did not
extend any credit none of the borrowers owe MERS any money that
MERS does not own the promissory notes secured by the mortgages
and that MERS does not acquire any loan or extension of credit
secured by a lien on real property
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC v SAUNDERS 2010
ME 79 Docket Cum-09-640Supreme Judicial Court of
Maine | Ordered dated August 12 2010 We conclude that although
MERS is not in fact a ldquomortgageerdquo within the meaning of our
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
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foreclosure statute 14 MRS sectsect 6321-6325 and therefore had no
standing to institute foreclosure proceedings the real party in
interest was the Bank and the court did not abuse its discretion
by substituting the Bank for MERS Because however the Bank was
not entitled to summary judgment as a matter of law we vacate
the judgment and remand for further proceedings
MERS lsquoAGENTrsquo PREVIOUS MTG FRAUD SCHEME| Mortgage Electronic
Registration Systems Inc v Folkes 2010 NY Slip Op 32007 ndash NY
Supreme Court The settlement agent on all of the MERS documents
was listed as Peter Port Esq undeniably plaintiffs agent
According to an affidavit with documents attached from Ms
Nichole M Orr identified as an Assistant Vice President and
Senior Operational Risk Specialist for Bank of America Home
Loans the successor-in-interest to plaintiff Americarsquos Wholesale
Lender (April 1 2010)[1] certain wire transfers were made on
November 23 2004 to Mr Port The money appears to have come
from an account with JP Morgan but one of the documents also
shows inexplicably that Mr Port then sent $43506773 of this
money to Cheron A Ramphal at 14917 Motley Road Silver Springs
MD It should also be noted as it was in the decision of
February 5 2008 by Judge Payne that Mr Port pled guilty in
March 2006 in Federal District Court in New Jersey to providing
false documents in a scheme to commit mortgage fraud
lsquoNO PROOFrsquo MERS assigned BOTH Mortgage and NOTE to HSBC|HSBC
Bank etc v Miller et al The ldquoAssignment of Mortgagerdquo which
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 20
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
is attached as exhibit E to the opposition papers makes no
reference to the note and only makes reference to the mortgage
being assigned The Assignment has a vague reference to note
wherein it states that ldquothe said assignor hereby grants and
conveys unto the said assignee the assignorrsquos beneficial
interest under the mortgage ldquobut this is the only language in
the Assignment which could possibly be found to refer to the
note
Contrary to the affirmation of Ms Szeliga in which she
represented in paragraph 17 that there was language in the
assignment which specifically referred to the note the
assignment in this case does not contain dega specific reference to
the Note
In light of the foregoing the Court is satisfied that there is
insufficient proof to establish that both the note and the
mortgage have been assigned to the Plaintiff and therefore it
is hereby ORDERED that the Plaintiff has no standing to maintain
the foreclosure action and it is further ORDERED that the
application of Defendant Jeffrey F Miller to dismiss is
granted without prejudice to renew upon proof of a valid
assignment of the note
UNION BANK CO v NORTH CAROLINA FURNITURE EXPRESS LLC MERS
lsquoGETS FORECLOSEDrsquo| ASSIGNS NADA TO BAC fka COUNTRYWIDE OHIO COURT
OF APPEAL While an assignment typically transfers the lien of
the mortgage on the property described in the mortgage as BAC
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 21
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
acknowledged in its reply brief an assignee can only take and
the assignor can only give the interest currently held by the
assignor RC 530131 With that stated it is clear under the
facts of this case that BAC never obtained an interest in the
property thus it could not have been substituted as a party-
defendant in the 2008 foreclosure action Here with respect to
the 2008 foreclosure action the date the last party was served
with notice was on January 28 2009 which was almost six
months before the purported assignment from MERS to BAC Next on
March 11 2009 the trial court issued a judgment entry of
default against MERS foreclosing on its interest in the property
Once again this default judgment was entered against MERS almost
three months before the purported assignment from MERS to BAC
occurred The effect of this default judgment against MERS
resulted in MERS having ldquono interest in and to said premises and
the equity of redemption of said Defendants in the real estate
described in Plaintiffrsquos Complaint shall be forever cut off
barred and foreclosedrdquo (2008 CV 0267 Mar 10 2009 JE)
Nevertheless according to the documents filed by BAC to evidence
its assignment from MERS MERS assigned its interest to BAC on
June 1 2009 (2009 CV 312 Oct 7 2009 JE Ex A)
Consequently as a result of the already entered default judgment
against MERS when BAC was assigned MERSrsquo interest in the
property on June 1 2009 BAC did not receive a viable interest
in the property See Quill v Maddox (May 31 2002) 2nd Dist
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 22
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
No 19052 at 2 (mortgageersquos assignee failed to establish that
it had an interest in the property as mortgageersquos interest was
foreclosed by the court before mortgagee assigned its interest to
assignee which could acquire no more interest than mortgagee
held) Thus we find that it was reasonable for the trial court
to have denied the motion to substitute BAC as a party-defendant
for MERS given its lack of interest in the property
HSBC v Thompson HSBCrsquos Irregularities Mortgage Documentation
and Corporate Relationships with Ocwen MERS and Delta Even if
HSBC had provided support for the proposition that ownership of
the note is not required the evidence about the assignment is
not properly before us The alleged mortgage assignment is
attached to the rejected affidavits of Neil Furthermore even if
we were to consider this ldquoevidencerdquo the mortgage assignment from
MERS to HSBC indicates that the assignment was prepared by Ocwen
for MERS and that Ocwen is located at the same Palm Beach
Florida address mentioned in Charlevagne and Antrobus See
Exhibit 3 attached to the affidavit of Chomie Neil In addition
Scott Anderson who signed the assignment as Vice-President of
MERS appears to be the same individual who claimed to be both
Vice-President of MERS and Vice-President of
Ocwen See Antrobus 2008 WL 2928553 4 and Charlevagne 2008
WL 2954767 1
MERS v TORR NY JUDGE SPINNER DENIES Deutsche amp MERS for NOT
Recording Mortgage Make up Affidavit and Assignment MERS lsquoQUIET
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
TITLErsquo FAIL To establish a claim of lien by a lost mortgage
there must be certain evidence (es) demonstrating that the
mortgage was properly executed with all the formalities required
by law andproof of the contents (es) of such instrument hellip Here
Burnettrsquos affidavit simply states that the original mortgage is
not in Deutsch Bankrsquos files and that he is advised (es) that
the title company is out of business Burnett gives no specifics
as to what efforts were made to locate the lost mortgagehellip More
importantly there is no affidavit from MLN by an individual with
personal knowledge of the facts that the complete file concerning
this mortgage was transferred to Deutsch Bank and that the copy
of the mortgage submitted to the court is an authentic copy of
Torrrsquos Mortgagerdquo (es)
LPP MORTGAGE v SABINE PROPERTIES FINAL DISPOSITION| NO Evidence
lsquoMERSrsquo Owned The NOTE Could NOT ASSIGN IT NY SUPREME COURT
FINAL DISPOSITION
Here there are no allegations or evidence that MERS was the
owner of the note such that it could assign it to LPP Thus the
assignment from MERS was insufficient to confer ownership of the
note to LPP and it has no standing to bring this action Kluge v
F umz ~1 45 AD2d at 538 (holding that the assignment of a
mortgage without transfer of the debt is a nullity) Johnson v
Melnikoff 20 Misc3d 1142(A) ldquo2 (Sup Ct Kings Co 2008) n 2
afr 65 AD3d 519 (2d Dept 20 1 Oj(noting that assignments by MERS
which did not include the underlying debt were a legal nullity)
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
m e Elect ro pic Registration Svstem v Coakley 41 AD3d 674 (2d
Dept 2007)(holding that MERS had standing to bring foreclosure
proceeding based on evidence that MERS was the lawful holder of
the promissory note and the mortgage)
Thus even assuming arguendo that the language of the assignment
from MERS to LPP could be interpreted as purporting to assign not
only the mortgage but also the note such assignment is invalid
since based on the record MERS lacked an ownership interest in
the note $ee LaSalle Bank Nat Assrsquon v Lamv 12 Misc3d 1191(A)
ldquo3 (Sup Ct Suffolk Co 2006) (noting that ldquothe mortgage is merely
an incident of and collateral security for the debt and an
assignment of the mortgage does not pass ownership of the debt
itself rsquo)
WACHOVIA BANK NATIONAL ASSOCIATION against ndashSTUART BRENNER et
aI Defendantrsquo s answer contains a defense of ldquolack of
standingrdquo Plaintiff has failed to establish it was the holder of
the note and the mortgage securing it when the action was
commenced In that regard plaintiff relies on an undated
assignment of the mortgage by MERS as nominee acknowledged by a
Texas notary on July 18 2009 The note sued on does not contain
an indication it has been negotiated The undated assignment by
MERS contains a provision at the assignment of the mortgage is
ldquoTOGETHER with the notes described in said mortgagerdquo The record
before me is devoid of proof that MERS as nominee for purposes of
recording had authority to assign the mortgage However assuming
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
it had such authority since it is a party to the mortgage and
such authority might be implied there has been a complete
failure to establish MERS as a non-party to the note to
negotiate its transfer A transfer of the note effects a transfer
of the mortgage MERS vs Coakley 41 AD3 674) the assignment of
a mortgage without a valid transfer of the mortgage note is a
nullity(Kluge vs Fugazv 145 AD2 537)
Following are more cases from THE NEW YORK SUPREME COURThellip
JUDGE SCHACK BLOWS lsquoMERSrsquo and Bank Of New York (BNY) OUT THE
DOOR
WM SPECIALTY MORTGAGE v JORGE RAMIREZ NO PROOF MERS OWNED THE
MORTGAGE AND NOTE
MERS v MAHENDRA RAMDOOLAR MERS IN NOT THE OWNER OF SUBJECT
MORTGAGE AND NOTE
HOLY COW MERS v MERS NO EVIDENCE IT HAD THE MORTGAGE AND NOTE
MERS V THOMAS STANDFORD MERS DOES NOT OWN MORTGAGE AND NOTE
MERS V GAIL PALMORE-ARCHER MERS DOES NOT OWN MORTGAGE AND NOTE
In the Matter of the Foreclosure of Tax Liens MERS GETS CHEWED
UP
BANK OF NEW YORK V JOSEPH CERULLO MERS NOT OWNER AND HOLDER OF
NOTE MORTGAGE
HSBC V HENRY FELD MERS NOT HOLDER OWNER OF NOTE
THE BANK OF NY MELLON V RICHARD BUSTRUC MERS IS NOT OWNER HOLDER
OF MORTGAGE AND NOTE
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 26
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ONEWEST BANK GETS THE BOOT MERS ASSIGNMENT MAKES NO REFERENCE TO
NOTE
NY SUPREME COURT WELLS FARGO MERS amp STEVEN J BAUM ldquoFATAL
DEFECTrdquo
FDN attorneys Jeff Barnes Esq and Elizabeth Lemoine Esq have
achieved a significant victory in Federal Court in Oregon against
MERS On Tuesday September 28 2010 Mr Barnes and Ms Lemoine
defended and argued Motions to Dismiss the borrowersrsquo lawsuit
challenging a nonjudicial foreclosure The Motions were filed by
the Defendants OneWest Bank and MERS The action was originally
filed in state court where a temporary restraining order was
entered stopping the sale On the eve of the scheduled hearing on
the borrowersrsquo Motion for Preliminary Injunction Defendants
OneWest Bank MERS and Regional Trustee Services removed the
case to Federal Court in an obvious attempt to circumvent the
state court injunction hearing The Federal Court entered an
Injunction and scheduled a hearing on the Motions filed by the
Defendants
During the course of the hearing the Court repeatedly raised the
ldquoMERS as nomineerdquo issues to counsel for the Defendants with said
counsel finally admitting upon repeated inquiry by the Court
that MERS cannot transfer promissory notes The Court denied the
Motions to Dismiss and has by Order commanded the injunction
against the sale to remain in place through the duration of the
borrowersrsquo lawsuit
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
REQUEST FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY
INJUNCTION
Because of the nature of the findings of the listed FACTS I
through FACT VII and lack of truthful evidence leading to these
illegal foreclosure proceedings Plaintiff prays for the Court to
issue a temporary restraining order and a preliminary injunction
against Defendant for any and all claims the Defendants are
pursuing against Plaintiff and Plaintiffrsquos property via Exhibits
(A B C D E and F) thereby causing harm to the Plaintiff
REQUEST FOR PERMANENT INJUNCTION AND REMUNERATION
Because of all of the FACTS and Court case evidence listed in
this complaint Plaintiff demands the Defendants produce the
original NOTE in question to avoid forgery and fraud charges If
NOTE is not produced within 30 days from the delivery and receipt
of the summons upon the Defendant Plaintiff will press forgery
charges pursuant RCW 9A60020 Plaintiff thereby will demand
remuneration of fraudulently collected monies paid to illegally
represented lenders Bank of America FKA Countrywide and interest
at 675 with the total amount of $8775636 + case fees or
Eighty Seven Thousand Seven hundred and fifty six dollars and 36
cents plus case fees to the Defendant who deceived the Plaintiff
by fraudulently claiming to be the legitimate lender trustee
and beneficiary while falsely claiming to hold the NOTE assuming
all assets and liabilities of Countrywide
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
RCW 740020
Grounds for issuance
When it appears by the complaint that the plaintiff is entitled
to the relief demanded and the relief or any part thereof
consists in restraining the commission or continuance of some
act the commission or continuance of which during the litigation
would produce great injury to the plaintiff or when during the
litigation it appears that the defendant is doing
or threatened or is about to do or is procuring or is suffering some act to
be done in violation of the plaintiffs rights respecting the subject of the
action tending to render the judgment ineffectual or where such relief or
any part thereof consists in restraining proceedings upon any final order or
judgment an injunction may be granted to restrain such act or proceedings
until the further order of the court which may afterwards be dissolved or
modified upon motion And where it appears in the complaint at the
commencement of the action or during the pendency thereof by affidavit that
the defendant threatens or is about to remove or dispose of his property with
intent to defraud his creditors a temporary injunction may be granted to
restrain the removal or disposition of his property
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 29
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
BySamuel Salmon 917C Philpott Rd Colville WA 99114
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 2
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
NOTE remuneration from the Plaintiff on the Note referenced by
said deeds of trust and are fraudulently claiming to be the
lender trustee and or beneficiary of the NOTE Plaintiff will
in the pleading show the Defendant blatantly violated Washington
State Codes (RCWrsquos) Plaintiff has also listed several court
cases showing the Defendant MERS or their banking partners
inability to produce the Notes in question or proper
endorsements showing clear chain of title proving ownership of
the Note thereby loosing standing in their claim The original
Notes have not been simply produced to show standing in their
claims Plaintiff alleges the Defendant has sold the Note
thereby already receiving remuneration on the Note evidencing
the huge derivatives debacle as securities have been sold and no
one seems to know where the NOTE is Plaintiff alleges the copy
of the NOTE produced by the trustee Recontrust is in fact a
forgery Plaintiff will show evidence of all that the Plaintiff
alleges so Court may relieve the Plaintiff of injury from
Defendantrsquos claims on Plaintiffrsquos personal real property and
Defendantrsquos intent to fraudulently sell Plaintiffs personal real
property thereby pleading with Court to issue a temporary
restraining order preliminary injunction and permanent
injunction based on the following Revised Code of Washington
(RCW) blatant violations and Court case evidence Plaintiff will
show reason for requesting a full remuneration of all illegally
collected payments and fees
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
JURISDICTION AND VENUE
Stevens County Superior Court has jurisdiction pursuant to
RCW 740010 Restraining orders and injunctions may be granted by
the superior court or by any judge thereof
Venue is correct pursuant to
RCW 412010 Actions to be commenced where subject is situated
Also RCW 740040 RCW 740020 RCW 6404010 RCW 6404020
RCW 6124005 RCW 6124010 RCW 6124030 RCW 6124020 RCW
6404020 RCW 6508070 RCW 9A60020 RCW 9A56320 RCW
1037080 RCW 62A5-109 RCW 6512750
EXHIBITS
Exhibit (AampB) Deeds of Trust on file at Stevens County Recorders
Office Auditors File 2007 0012467 2007 0012468
Exhibit (C) ldquoNotice of Defaultrdquo was issued by Bank of America on
property located at 917 A PHILPOTT ROAD COLVILLE WA 99114 post
marked September 02 2010
Exhibit (D) The ldquoCorporation Assignment of Deed of Trust at
Stevens County Recorders Office Auditors File 2010 0007023rdquo
recorded September 23 2010
Exhibit (E) ldquoNotice to Resident of property subject to
foreclosure salerdquo was issued by Bank of America on property
located at 917 A PHILPOTT ROAD COLVILLE WA 99114 on October 21
2010
Exhibit (F) Forgery of alleged Note dated October 19 2007
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 4
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
PARTIES
Plaintiff Samuel and Roxy Salmon owners and residents of real
property description LOT(S) 3 OF SHORT PLAT NO SP 33-96
LOCATED IN THE SW14 OF SECTION 21 TOWNSHIP 34 NORTH RANGE 39
EAST WM IN STEVENS COUNTY WASHINGTON ACCORDING TO PLAT
RECORDED NOVEMBER 14 1996 UNDER AUDITORS FILE NO9612321 or
known as 917C Philpott Rd Colville WA 99114
Defendant Bank Of America Corporation listed as beneficiary on
Exhibit (D) with principal executive offices located at 100 North
Tryon Street Charlotte North Carolina BOA is traded on the
NYSE under the symbol ldquoBACrdquo Summons will be served at Bank of
Americarsquos local branch located at 225 E 1St Ave Colville WA
99114 (509) 684-2551
Individual Defendants
Brian Thomas Moynihan Bank of America CEO since Jan 2010
Kenneth D Lewis Bank of America CEO from April 2001 to Jan
2010
Defendant ReconTrust Company NA listed trustee on Exhibit (D)
is a wholly-owned subsidiary of Bank of America NA and has no
known physical street address or phone number in the State of
Washington
Defendant MERS Mortgage Electronic Registration System listed
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
as beneficiary on Exhibits (AB and D) is a wholly owned
subsidiary of MERSCorp Inc MersCorp was created in the early
1990rsquos by the former CEOrsquos of Fannie Mae Freddie Mac Indy
Mac Countrywide Stewart Title Insurance and the American Land
Title Association MERSrsquo principal place of business at 1595
Spring Hill Road Suite 310 Vienna Virginia 22182 MERSrsquo
national data center is located in Plano Texas
Individual Defendants
R K Arnold President and CEO Mortgage Electronic Registration
Systems Inc
FACT I
On October 19 2007 Plaintiffs Samuel Salmon and Roxy E Salmon
executed a promissory note in the original principal amount of
$40942253 for the purchase of their home The Note was made
payable to Countrywide Bank The Note was secured by a Deed of
Trust on the home The Deed of Trust identifies the beneficiary
as ldquoMortgage Electronic Registration Systems Inc (lsquoMERSrsquo)rdquo and
states that ldquoMERS is a separate corporation that is acting solely
as nominee for Lender and Lenderrsquos successors and assignsrdquo The
ldquoLenderrdquo is identified as Countrywide Bank The Trustee is
identified as ldquoLandsafe Title of Washingtonrdquo
Landsafe Title of Washington was a subsidiary of Countrywide
Bank as stated on Securities Information website from the SEC
EDGAR database httpwwwsecinfocomdxj8536htm1stPage
which makes Landsafe Title of Washington the original Trustee
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
fiducially responsible to and or an associate of Countrywide
Bank which nullifies this Deed of Trust Exhibits (AampB) as a
binding legal document pursuant to
RCW 6124010 (3) and RCW 6124020
RCW 6124010 (3) The trustee or successor trustee shall have no
fiduciary duty or fiduciary obligation to the grantor or other
persons having an interest in the property subject to the deed of
trust
RCW 6124020 ldquoNo person corporation or association may be both
trustee and beneficiary under the same deed of trustrdquo
FACT II
When Countrywide Bank went out of business for predatory lending
the beneficiary MERS or the trustee Landsafe Title of Washington
never did record the trustee resignation violating RCW 6124010
(2)
Trustee qualifications mdash Successor trustee
(2) The trustee may resign at its own election or be replaced by
the beneficiary The trustee shall give prompt written notice of
its resignation to the beneficiary The resignation of the
trustee shall become effective upon the recording of the notice
of resignation in each county in which the deed of trust is
recorded If a trustee is not appointed in the deed of trust or
upon the resignation incapacity disability absence or death
of the trustee or the election of the beneficiary to replace the
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
trustee the beneficiary shall appoint a trustee or a successor
trustee Only upon recording the appointment of a successor
trustee in each county in which the deed of trust is recorded
the successor trustee shall be vested with all powers of an
original trustee
FACT III
On or about April 1 2009 Bank of America declared itself to be
the new Lender by billing the Plaintiffs for the mortgage
payments Bank of America assumed the position of Lender on the
Deed of Trust Exhibits (AampB) although they failed to file the
conveyance promptly with the local Countyrsquos Auditor again
violating RCW 6124010 (2) and also violating 6404010 RCW
6404020 RCW 6508070 thereby nullifying Notice of Default
Exhibit (C) and The ldquoCorporation Assignment of Deed of Trust at
Stevens County Recorders Office Auditors File 2010 0007023rdquo
recorded September 23 2010 Exhibit (D) This alleged assignment
has the same signer for both MERS and Bank of America How does
this work
RCW 6508070
Real property conveyances to be recorded
A conveyance of real property when acknowledged by the person
executing the same (the acknowledgment being certified as
required by law) may be recorded in the office of the recording
officer of the county where the property is situated Every such
conveyance not so recorded is void as against any subsequent
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 8
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
purchaser or mortgagee in good faith and for a valuable
consideration from the same vendor his heirs or devisees of the
same real property or any portion thereof whose conveyance is
first duly recorded An instrument is deemed recorded the minute
it is filed for record
FACT IV
Before a conveyance was ever assigned by the Defendants a
ldquoNotice of Defaultrdquo was issued by Bank of America on the
Plaintiffs real property located at 917 A PHILPOTT ROAD COLVILLE
WA 99114 post marked September 02 2010 Exhibit (C) At a later
date Exhibit (D) the ldquoCorporation Assignment of Deed of Trust
was filed at Stevens County Recorders Office Auditors File 2010
0007023rdquo recorded September 23 2010 This filing of Exhibit (D)
was filed over a year after the Defendant Bank of America
falsely identified their self as owner of the loan on April 1
2009 and fraudulently collected payments on said promissory note
which is in violation of again stated RCW 6124010 (2) and also
violating 6404010 RCW 6404020RCW 6508070
RCW 6404010
Conveyances and encumbrances to be by deed
Every conveyance of real estate or any interest therein and
every contract creating or evidencing any encumbrance upon real
estate shall be by deed PROVIDED That when real estate or any
interest therein is held in trust the terms and conditions of
which trust are of record and the instrument creating such trust
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 9
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
authorizes the issuance of certificates or written evidence of
any interest in said real estate under said trust and authorizes
the transfer of such certificates or evidence of interest by
assignment by the holder thereof by a simple writing or by
endorsement on the back of such certificate or evidence of
interest or delivery thereof to the vendee such transfer shall
be valid and all such assignments or transfers hereby authorized
and heretofore made in accordance with the provisions of this
section are hereby declared to be legal and valid
RCW 6404020
Requisites of a deed
Every deed shall be in writing signed by the party bound
thereby and acknowledged by the party before some person
authorized by this act to take acknowledgments of deeds
FACT V
Plaintiff affirms that According to (Exhibit D) the Corporation
Assignment of Deed of Trust on filed under the authority of
Stevens County Auditor in Stevens County WA that MERS Bank of
America and Recontrust are not legally qualified as a Lender or
Trustee and or the Beneficiary pursuant to RCW 6124010 (3)
(4) and RCW 6124020 as the Trustee ldquoRecontrust Company NA
is a wholly-owned subsidiary of Bank of Americardquo (this statement
is found on the Recontrust web site home page) Therefore
Recontrust is associated with and is fiducially responsible
entirely to the alleged Lender Bank of America
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
RCW 6124010 (3) (4)
Trustee qualifications mdash Successor trustee
(3) The trustee or successor trustee shall have no fiduciary
duty or fiduciary obligation to the grantor or other persons
having an interest in the property subject to the deed of trust
(4) The trustee or successor trustee has a duty of good
faith to the borrower beneficiary and grantor
RCW 6124020
ldquoNo person corporation or association may be both trustee and
beneficiary under the same deed of trustrdquo
FACT VI
The Plaintiff asserts that the Note and Deed of Trust were not
properly assigned to the defendant Bank of America and therefore
has not proven its self as the Legal holder of the Note and Deed
of Trust therefore it lacks standing to enforce any claim on
said property For the reasons that follow the Plaintiff finds
that the Defendant has not proven that it is the holder of the
original Note pursuant to RCW 6124030(7)(aampb) and RCW
6124010 (4)
RCW 6124030
(7) (a) That for residential real property before the notice
of trustees sale is recorded transmitted or served the
trustee shall have proof that the beneficiary is the owner of any
promissory note or other obligation secured by the deed of trust
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 11
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2
3
4
5
6
7
8
9
10
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25
A declaration by the beneficiary made under the penalty of
perjury stating that the beneficiary is the actual holder of the
promissory note or other obligation secured by the deed of trust
shall be sufficient proof as required under this subsection
(7) (b) Unless the trustee has violated his or her duty under
RCW 6124010(4) the trustee is entitled to rely on the
beneficiarys declaration as evidence of proof required under
this subsection
6124010 (4) The trustee or successor trustee has a duty of good
faith to the borrower beneficiary and grantor
Statement
Any proof of Note possession offered by the trustee or
beneficiary other than the production of the actual original Note
is not acceptable due to said Trustee Lender and Beneficiary
violations of stated RCWrsquos therefore it lacks standing to issue
any claim on Plaintiffs property
FACT VII
The Plaintiff affirms that according to the alleged trusteersquos
records and Plaintiffs phone Conversation with Recontrust it
does not have a physical street address in the state of
Washington which is in violation of RCW 6124030 (6)
RCW 6124030 (6)
(6) That prior to the date of the notice of trustees sale and
continuing thereafter through the date of the trustees sale the
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 12
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6
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8
9
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trustee must maintain a street address in this state where
personal service of process may be made and the trustee must
maintain a physical presence and have telephone service at such
address
FACT VIII
The Deed of Trust contains false representation on its face when
it represented that MERS was a beneficiary under the Deed of
Trust which states that ldquoMERS is a separate corporation that is
acting solely as a Nominee for Lender and Lenderrsquos successors and
assigns MERS as the beneficiary under this Security Instrumentrdquo
MERS is NOT the beneficiary under the Deed of Trust it never had
ownership or possession of the Promissory Note which is the
obligation which is secured by the Deed of Trust and MERS has
never been entitled to receive one cent of remuneration from the
Plaintiffrsquos loan proceeds The statement that MERS is the nominee
is nonsensical language which means nothing in a real estate
transaction and most certainly MERS has never been nor is it now
the beneficiary under the Deed of Trust The language is a sham
MERS is a wholly owned subsidiary of MersCorp Inc MERS has no
interest in the NOTE the LOAN or the REAL PROPERTY therefore
has no authority to transfer the NOTE as a nominee pursuant to
RCW 6124005 (2)
(2) Beneficiary means the holder of the instrument or document
evidencing the obligations secured by the deed of trust
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 13
1
2
3
4
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6
7
8
9
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12
13
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excluding persons holding the same as security for a different
obligation
FACT IX
Plaintiff has proven the Trustee Lender and Beneficiary are
illegal in this entire loan process Plaintiff does not recognize
any authority the alleged Claimants or Defendants are making on
Plaintiffs real property as the Deed of Trust is in itself
entirely invalid and the only security for the Note Plaintiff
demands the Defendant produce the original Note with the proper
endorsements for all transfers required by law pursuant RCW
62A3-203 to be submitted for inspection and verification by a
court appointed expert pursuant to RCW 6124030 (6) and (7) (a)
(b) Until then the copy or forgery of the NOTE which was
included with Notice of Trustee sale is not sufficient to
validate any claim Made by the Defendant on the Plaintiffs
possessions and is in violation of Washington forgery laws
pursuant RCW 62A5-109 RCW 1037080 RCW 9A56320 and RCW
9A60020
RCW 9A60020
(1) A person is guilty of forgery if with intent to injure or
defraud
(a) He falsely makes completes or alters a written
instrument or
(b) He possesses utters offers disposes of or puts off
as true a written instrument which he knows to be forged
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 14
1
2
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4
5
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7
8
9
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11
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(2) In a proceeding under this section that is related to an
identity theft under RCW 935020 the crime will be considered
to have been committed in any locality where the person whose
means of identification or financial information was appropriated
resides or in which any part of the offense took place
regardless of whether the defendant was ever actually in that
locality
(3) Forgery is a class C felony
CASE EVIDENCE FOR FACT VIII AND FACT IX
MERS important case reference and commentary
MERS v Nebraska Dept of Banking and Finance ndash State Appellate
MERS demands to be recognized as having no actionable interest in
title 2005 Cite as 270 Neb 529
Merscorp Inc et al Respondents v Edward P Romaine amp c
et al Appellants et al Defendant the fact that the Mortgage
and Deed of Trust are separated is recognized (concurring
opinion) While affirming MERS could enter in the records as
ldquonomineerdquo the court recognized many inherent problems Rather
than resolve them they sloughed them off to the legislature
2006
The Boyko Decision -Federal District Judge Christopher Boyko of
the Eastern Division of the Northern District of Ohio Federal
Court overturns 14 foreclosure actions with a well reasoned
opinion outlining the failure of the foreclosing party to prove
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 15
1
2
3
4
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8
9
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11
12
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standing This decision started the movement of challenging the
standing of the foreclosing party Oct 2007
Landmark National Bank v Kesler ndash KS State Supreme Court ndash MERS
has no standing to foreclose and is in fact a straw man Oct
2009
The importance of the findings of the Supreme Court of Kansas
cannot be overemphasized It is generally the law in all states
that if the law of one state has not specifically addressed a
specific legal issue that the court may look to the law of states
which have The Kansas Court acknowledged that the case was one
of ldquofirst impression in Kansasrdquo which is why the Kansas Court
looked to legal decisions from California Idaho New York
Missouri and other states for guidance and to support its
decision As we have previously reported the Ohio Courts have
looked to the legal decisions of New York to resolve issues in
foreclosure defense most notably issues of standing to institute
a foreclosure
It is practically certain that this decision will be the subject
of review by various courts MERS has already threatened a
ldquosecond appealrdquo (by requesting ldquoreconsiderationrdquo by the Supreme
Court of Kansas of its decision by the entire panel of Judges in
that Court) However for now the decision stands which
decision is of monumental importance for borrowers It thus
appears that the tide is finally starting to turn and that the
courts are beginning to recognize the extent of the wrongful
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 16
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
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20
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practices and fraud perpetrated by ldquolendersrdquo and MERS upon
borrowers which conduct was engaged in for the sole purpose of
greed and profit for the ldquolendersrdquo and their ilk at the expense
of borrowers
MERS Inc Appellant v Southwest Homes of Arkansas Appellee The
second State Supreme Court ruling ndash AR 2009
BAC v US Bank ndash FL Appellate court upholds the concept of
determining the standing of the foreclosing party before allowing
summary judgement All cases in FL must now go through this
process 2007
Wells Fargo NAS v Farmer Motion to vacate in Supreme Court Kings
County NY 2009
In Re Joshua amp Stephanie Mitchell ndash US Federal Bankruptcy Court
NV 2009
In Re Wilhelm et al Case No 08-20577-TLM (opinion of Hon
Terry L Myers Chief US Bankruptcy Judge July 9 2009) ndash
Chief US Bankruptcy Judge ID ndash MERS by its construction
separates the Deed from the Mortgage
MERS v Johnston ndash Vermont Superior Court Decision
Wells Fargo v Jordon ndash OH Appellate Court
Weingartner et al v Chase Home Finance et al ndash US District Court
Schneider et al v Deutsche Bank et al (FL) Class action suit
(the filing) seeking to recover actual and statutory damages for
violations of the foreclosure process Provides an excellent
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 17
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4
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8
9
10
11
12
13
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description of the securitization process and the problems with
assignments
JP Morgan Chase v New Millenial et al ndash FL Appellate which
clearly demonstrates the chaos which can ensue when there is a
failure to register changes of ownership at the county recorderrsquos
office Everyone operates in good faith then out of nowhere
someone shows up waving a piece of paper The MERS system while
not explicitly named is clearly the culprit of the chaos 2009
In Re Walker Case No 10-21656-E-11 ndash Eastern District of CA
Bankruptcy court rules MERS has NO actionable interest in title
ldquoAny attempt to transfer the beneficial interest of a trust deed
without ownership of the underlying note is void under California
lawrdquo ldquoMERS could not as a matter of law have transferred the
note to Citibank from the original lender Bayrock Mortgage
Corprdquo The Courtrsquos opinion is headlined stating that MERS and
Citibank are not the real parties in interest
In re Vargas 396 BR at 517-19 Judge Bufford made a finding
that the witness called to testify as to debt and default was
incompetent All the witness could testify was that he had looked
at the MERS computerized records The witness was unable to
satisfy the requirements of the Federal Rules of Evidence
particularly Rule 803 as applied to computerized records in the
Ninth Circuit See id at 517-20 The low level employee could
really only testify that the MERS screen shot he reviewed
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 18
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20
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reflected a default That really is not much in the way of
evidence and not nearly enough to get around the hearsay rule
In Re Joshua and Stephanie Mitchell Case No BK-S-07-16226-
LBR [US Bankruptcy Court District of Nevada Memorandum
Opinion of August 19 2008] Federal Court in Nevada attacked
MERSrsquo purported ldquoauthorityrdquo finding that there was no evidence
that MERS was the agent of the notersquos holder
Mortgage Electronic Registration Systems Inc v Girdvainis
Sumter County South Carolina Court of Common Pleas Case No
2005-CP-43-0278 (Order dated January 19 2006 citing to the
representations of MERS and court findings in Mortgage Electronic
Registration Systems Inc v Nebraska Dept of Banking and
Finance 270 Neb 529 704 NW 2d 784) As such ALL MERS
assignments are suspect at best and may in fact be fraudulent
The Court of Common Pleas of Sumter County South Carolina also
found that MERSrsquo rights were not as they were represented to be
that MERS had no rights to collect on any debt because it did not
extend any credit none of the borrowers owe MERS any money that
MERS does not own the promissory notes secured by the mortgages
and that MERS does not acquire any loan or extension of credit
secured by a lien on real property
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC v SAUNDERS 2010
ME 79 Docket Cum-09-640Supreme Judicial Court of
Maine | Ordered dated August 12 2010 We conclude that although
MERS is not in fact a ldquomortgageerdquo within the meaning of our
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 19
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2
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5
6
7
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foreclosure statute 14 MRS sectsect 6321-6325 and therefore had no
standing to institute foreclosure proceedings the real party in
interest was the Bank and the court did not abuse its discretion
by substituting the Bank for MERS Because however the Bank was
not entitled to summary judgment as a matter of law we vacate
the judgment and remand for further proceedings
MERS lsquoAGENTrsquo PREVIOUS MTG FRAUD SCHEME| Mortgage Electronic
Registration Systems Inc v Folkes 2010 NY Slip Op 32007 ndash NY
Supreme Court The settlement agent on all of the MERS documents
was listed as Peter Port Esq undeniably plaintiffs agent
According to an affidavit with documents attached from Ms
Nichole M Orr identified as an Assistant Vice President and
Senior Operational Risk Specialist for Bank of America Home
Loans the successor-in-interest to plaintiff Americarsquos Wholesale
Lender (April 1 2010)[1] certain wire transfers were made on
November 23 2004 to Mr Port The money appears to have come
from an account with JP Morgan but one of the documents also
shows inexplicably that Mr Port then sent $43506773 of this
money to Cheron A Ramphal at 14917 Motley Road Silver Springs
MD It should also be noted as it was in the decision of
February 5 2008 by Judge Payne that Mr Port pled guilty in
March 2006 in Federal District Court in New Jersey to providing
false documents in a scheme to commit mortgage fraud
lsquoNO PROOFrsquo MERS assigned BOTH Mortgage and NOTE to HSBC|HSBC
Bank etc v Miller et al The ldquoAssignment of Mortgagerdquo which
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 20
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2
3
4
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is attached as exhibit E to the opposition papers makes no
reference to the note and only makes reference to the mortgage
being assigned The Assignment has a vague reference to note
wherein it states that ldquothe said assignor hereby grants and
conveys unto the said assignee the assignorrsquos beneficial
interest under the mortgage ldquobut this is the only language in
the Assignment which could possibly be found to refer to the
note
Contrary to the affirmation of Ms Szeliga in which she
represented in paragraph 17 that there was language in the
assignment which specifically referred to the note the
assignment in this case does not contain dega specific reference to
the Note
In light of the foregoing the Court is satisfied that there is
insufficient proof to establish that both the note and the
mortgage have been assigned to the Plaintiff and therefore it
is hereby ORDERED that the Plaintiff has no standing to maintain
the foreclosure action and it is further ORDERED that the
application of Defendant Jeffrey F Miller to dismiss is
granted without prejudice to renew upon proof of a valid
assignment of the note
UNION BANK CO v NORTH CAROLINA FURNITURE EXPRESS LLC MERS
lsquoGETS FORECLOSEDrsquo| ASSIGNS NADA TO BAC fka COUNTRYWIDE OHIO COURT
OF APPEAL While an assignment typically transfers the lien of
the mortgage on the property described in the mortgage as BAC
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 21
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25
acknowledged in its reply brief an assignee can only take and
the assignor can only give the interest currently held by the
assignor RC 530131 With that stated it is clear under the
facts of this case that BAC never obtained an interest in the
property thus it could not have been substituted as a party-
defendant in the 2008 foreclosure action Here with respect to
the 2008 foreclosure action the date the last party was served
with notice was on January 28 2009 which was almost six
months before the purported assignment from MERS to BAC Next on
March 11 2009 the trial court issued a judgment entry of
default against MERS foreclosing on its interest in the property
Once again this default judgment was entered against MERS almost
three months before the purported assignment from MERS to BAC
occurred The effect of this default judgment against MERS
resulted in MERS having ldquono interest in and to said premises and
the equity of redemption of said Defendants in the real estate
described in Plaintiffrsquos Complaint shall be forever cut off
barred and foreclosedrdquo (2008 CV 0267 Mar 10 2009 JE)
Nevertheless according to the documents filed by BAC to evidence
its assignment from MERS MERS assigned its interest to BAC on
June 1 2009 (2009 CV 312 Oct 7 2009 JE Ex A)
Consequently as a result of the already entered default judgment
against MERS when BAC was assigned MERSrsquo interest in the
property on June 1 2009 BAC did not receive a viable interest
in the property See Quill v Maddox (May 31 2002) 2nd Dist
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 22
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2
3
4
5
6
7
8
9
10
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12
13
14
15
16
17
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20
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22
23
24
25
No 19052 at 2 (mortgageersquos assignee failed to establish that
it had an interest in the property as mortgageersquos interest was
foreclosed by the court before mortgagee assigned its interest to
assignee which could acquire no more interest than mortgagee
held) Thus we find that it was reasonable for the trial court
to have denied the motion to substitute BAC as a party-defendant
for MERS given its lack of interest in the property
HSBC v Thompson HSBCrsquos Irregularities Mortgage Documentation
and Corporate Relationships with Ocwen MERS and Delta Even if
HSBC had provided support for the proposition that ownership of
the note is not required the evidence about the assignment is
not properly before us The alleged mortgage assignment is
attached to the rejected affidavits of Neil Furthermore even if
we were to consider this ldquoevidencerdquo the mortgage assignment from
MERS to HSBC indicates that the assignment was prepared by Ocwen
for MERS and that Ocwen is located at the same Palm Beach
Florida address mentioned in Charlevagne and Antrobus See
Exhibit 3 attached to the affidavit of Chomie Neil In addition
Scott Anderson who signed the assignment as Vice-President of
MERS appears to be the same individual who claimed to be both
Vice-President of MERS and Vice-President of
Ocwen See Antrobus 2008 WL 2928553 4 and Charlevagne 2008
WL 2954767 1
MERS v TORR NY JUDGE SPINNER DENIES Deutsche amp MERS for NOT
Recording Mortgage Make up Affidavit and Assignment MERS lsquoQUIET
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 23
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3
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5
6
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9
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25
TITLErsquo FAIL To establish a claim of lien by a lost mortgage
there must be certain evidence (es) demonstrating that the
mortgage was properly executed with all the formalities required
by law andproof of the contents (es) of such instrument hellip Here
Burnettrsquos affidavit simply states that the original mortgage is
not in Deutsch Bankrsquos files and that he is advised (es) that
the title company is out of business Burnett gives no specifics
as to what efforts were made to locate the lost mortgagehellip More
importantly there is no affidavit from MLN by an individual with
personal knowledge of the facts that the complete file concerning
this mortgage was transferred to Deutsch Bank and that the copy
of the mortgage submitted to the court is an authentic copy of
Torrrsquos Mortgagerdquo (es)
LPP MORTGAGE v SABINE PROPERTIES FINAL DISPOSITION| NO Evidence
lsquoMERSrsquo Owned The NOTE Could NOT ASSIGN IT NY SUPREME COURT
FINAL DISPOSITION
Here there are no allegations or evidence that MERS was the
owner of the note such that it could assign it to LPP Thus the
assignment from MERS was insufficient to confer ownership of the
note to LPP and it has no standing to bring this action Kluge v
F umz ~1 45 AD2d at 538 (holding that the assignment of a
mortgage without transfer of the debt is a nullity) Johnson v
Melnikoff 20 Misc3d 1142(A) ldquo2 (Sup Ct Kings Co 2008) n 2
afr 65 AD3d 519 (2d Dept 20 1 Oj(noting that assignments by MERS
which did not include the underlying debt were a legal nullity)
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 24
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
m e Elect ro pic Registration Svstem v Coakley 41 AD3d 674 (2d
Dept 2007)(holding that MERS had standing to bring foreclosure
proceeding based on evidence that MERS was the lawful holder of
the promissory note and the mortgage)
Thus even assuming arguendo that the language of the assignment
from MERS to LPP could be interpreted as purporting to assign not
only the mortgage but also the note such assignment is invalid
since based on the record MERS lacked an ownership interest in
the note $ee LaSalle Bank Nat Assrsquon v Lamv 12 Misc3d 1191(A)
ldquo3 (Sup Ct Suffolk Co 2006) (noting that ldquothe mortgage is merely
an incident of and collateral security for the debt and an
assignment of the mortgage does not pass ownership of the debt
itself rsquo)
WACHOVIA BANK NATIONAL ASSOCIATION against ndashSTUART BRENNER et
aI Defendantrsquo s answer contains a defense of ldquolack of
standingrdquo Plaintiff has failed to establish it was the holder of
the note and the mortgage securing it when the action was
commenced In that regard plaintiff relies on an undated
assignment of the mortgage by MERS as nominee acknowledged by a
Texas notary on July 18 2009 The note sued on does not contain
an indication it has been negotiated The undated assignment by
MERS contains a provision at the assignment of the mortgage is
ldquoTOGETHER with the notes described in said mortgagerdquo The record
before me is devoid of proof that MERS as nominee for purposes of
recording had authority to assign the mortgage However assuming
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
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20
21
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23
24
25
it had such authority since it is a party to the mortgage and
such authority might be implied there has been a complete
failure to establish MERS as a non-party to the note to
negotiate its transfer A transfer of the note effects a transfer
of the mortgage MERS vs Coakley 41 AD3 674) the assignment of
a mortgage without a valid transfer of the mortgage note is a
nullity(Kluge vs Fugazv 145 AD2 537)
Following are more cases from THE NEW YORK SUPREME COURThellip
JUDGE SCHACK BLOWS lsquoMERSrsquo and Bank Of New York (BNY) OUT THE
DOOR
WM SPECIALTY MORTGAGE v JORGE RAMIREZ NO PROOF MERS OWNED THE
MORTGAGE AND NOTE
MERS v MAHENDRA RAMDOOLAR MERS IN NOT THE OWNER OF SUBJECT
MORTGAGE AND NOTE
HOLY COW MERS v MERS NO EVIDENCE IT HAD THE MORTGAGE AND NOTE
MERS V THOMAS STANDFORD MERS DOES NOT OWN MORTGAGE AND NOTE
MERS V GAIL PALMORE-ARCHER MERS DOES NOT OWN MORTGAGE AND NOTE
In the Matter of the Foreclosure of Tax Liens MERS GETS CHEWED
UP
BANK OF NEW YORK V JOSEPH CERULLO MERS NOT OWNER AND HOLDER OF
NOTE MORTGAGE
HSBC V HENRY FELD MERS NOT HOLDER OWNER OF NOTE
THE BANK OF NY MELLON V RICHARD BUSTRUC MERS IS NOT OWNER HOLDER
OF MORTGAGE AND NOTE
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 26
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ONEWEST BANK GETS THE BOOT MERS ASSIGNMENT MAKES NO REFERENCE TO
NOTE
NY SUPREME COURT WELLS FARGO MERS amp STEVEN J BAUM ldquoFATAL
DEFECTrdquo
FDN attorneys Jeff Barnes Esq and Elizabeth Lemoine Esq have
achieved a significant victory in Federal Court in Oregon against
MERS On Tuesday September 28 2010 Mr Barnes and Ms Lemoine
defended and argued Motions to Dismiss the borrowersrsquo lawsuit
challenging a nonjudicial foreclosure The Motions were filed by
the Defendants OneWest Bank and MERS The action was originally
filed in state court where a temporary restraining order was
entered stopping the sale On the eve of the scheduled hearing on
the borrowersrsquo Motion for Preliminary Injunction Defendants
OneWest Bank MERS and Regional Trustee Services removed the
case to Federal Court in an obvious attempt to circumvent the
state court injunction hearing The Federal Court entered an
Injunction and scheduled a hearing on the Motions filed by the
Defendants
During the course of the hearing the Court repeatedly raised the
ldquoMERS as nomineerdquo issues to counsel for the Defendants with said
counsel finally admitting upon repeated inquiry by the Court
that MERS cannot transfer promissory notes The Court denied the
Motions to Dismiss and has by Order commanded the injunction
against the sale to remain in place through the duration of the
borrowersrsquo lawsuit
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
REQUEST FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY
INJUNCTION
Because of the nature of the findings of the listed FACTS I
through FACT VII and lack of truthful evidence leading to these
illegal foreclosure proceedings Plaintiff prays for the Court to
issue a temporary restraining order and a preliminary injunction
against Defendant for any and all claims the Defendants are
pursuing against Plaintiff and Plaintiffrsquos property via Exhibits
(A B C D E and F) thereby causing harm to the Plaintiff
REQUEST FOR PERMANENT INJUNCTION AND REMUNERATION
Because of all of the FACTS and Court case evidence listed in
this complaint Plaintiff demands the Defendants produce the
original NOTE in question to avoid forgery and fraud charges If
NOTE is not produced within 30 days from the delivery and receipt
of the summons upon the Defendant Plaintiff will press forgery
charges pursuant RCW 9A60020 Plaintiff thereby will demand
remuneration of fraudulently collected monies paid to illegally
represented lenders Bank of America FKA Countrywide and interest
at 675 with the total amount of $8775636 + case fees or
Eighty Seven Thousand Seven hundred and fifty six dollars and 36
cents plus case fees to the Defendant who deceived the Plaintiff
by fraudulently claiming to be the legitimate lender trustee
and beneficiary while falsely claiming to hold the NOTE assuming
all assets and liabilities of Countrywide
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 28
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
RCW 740020
Grounds for issuance
When it appears by the complaint that the plaintiff is entitled
to the relief demanded and the relief or any part thereof
consists in restraining the commission or continuance of some
act the commission or continuance of which during the litigation
would produce great injury to the plaintiff or when during the
litigation it appears that the defendant is doing
or threatened or is about to do or is procuring or is suffering some act to
be done in violation of the plaintiffs rights respecting the subject of the
action tending to render the judgment ineffectual or where such relief or
any part thereof consists in restraining proceedings upon any final order or
judgment an injunction may be granted to restrain such act or proceedings
until the further order of the court which may afterwards be dissolved or
modified upon motion And where it appears in the complaint at the
commencement of the action or during the pendency thereof by affidavit that
the defendant threatens or is about to remove or dispose of his property with
intent to defraud his creditors a temporary injunction may be granted to
restrain the removal or disposition of his property
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 29
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2
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BySamuel Salmon 917C Philpott Rd Colville WA 99114
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 3
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JURISDICTION AND VENUE
Stevens County Superior Court has jurisdiction pursuant to
RCW 740010 Restraining orders and injunctions may be granted by
the superior court or by any judge thereof
Venue is correct pursuant to
RCW 412010 Actions to be commenced where subject is situated
Also RCW 740040 RCW 740020 RCW 6404010 RCW 6404020
RCW 6124005 RCW 6124010 RCW 6124030 RCW 6124020 RCW
6404020 RCW 6508070 RCW 9A60020 RCW 9A56320 RCW
1037080 RCW 62A5-109 RCW 6512750
EXHIBITS
Exhibit (AampB) Deeds of Trust on file at Stevens County Recorders
Office Auditors File 2007 0012467 2007 0012468
Exhibit (C) ldquoNotice of Defaultrdquo was issued by Bank of America on
property located at 917 A PHILPOTT ROAD COLVILLE WA 99114 post
marked September 02 2010
Exhibit (D) The ldquoCorporation Assignment of Deed of Trust at
Stevens County Recorders Office Auditors File 2010 0007023rdquo
recorded September 23 2010
Exhibit (E) ldquoNotice to Resident of property subject to
foreclosure salerdquo was issued by Bank of America on property
located at 917 A PHILPOTT ROAD COLVILLE WA 99114 on October 21
2010
Exhibit (F) Forgery of alleged Note dated October 19 2007
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 4
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PARTIES
Plaintiff Samuel and Roxy Salmon owners and residents of real
property description LOT(S) 3 OF SHORT PLAT NO SP 33-96
LOCATED IN THE SW14 OF SECTION 21 TOWNSHIP 34 NORTH RANGE 39
EAST WM IN STEVENS COUNTY WASHINGTON ACCORDING TO PLAT
RECORDED NOVEMBER 14 1996 UNDER AUDITORS FILE NO9612321 or
known as 917C Philpott Rd Colville WA 99114
Defendant Bank Of America Corporation listed as beneficiary on
Exhibit (D) with principal executive offices located at 100 North
Tryon Street Charlotte North Carolina BOA is traded on the
NYSE under the symbol ldquoBACrdquo Summons will be served at Bank of
Americarsquos local branch located at 225 E 1St Ave Colville WA
99114 (509) 684-2551
Individual Defendants
Brian Thomas Moynihan Bank of America CEO since Jan 2010
Kenneth D Lewis Bank of America CEO from April 2001 to Jan
2010
Defendant ReconTrust Company NA listed trustee on Exhibit (D)
is a wholly-owned subsidiary of Bank of America NA and has no
known physical street address or phone number in the State of
Washington
Defendant MERS Mortgage Electronic Registration System listed
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 5
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9
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20
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25
as beneficiary on Exhibits (AB and D) is a wholly owned
subsidiary of MERSCorp Inc MersCorp was created in the early
1990rsquos by the former CEOrsquos of Fannie Mae Freddie Mac Indy
Mac Countrywide Stewart Title Insurance and the American Land
Title Association MERSrsquo principal place of business at 1595
Spring Hill Road Suite 310 Vienna Virginia 22182 MERSrsquo
national data center is located in Plano Texas
Individual Defendants
R K Arnold President and CEO Mortgage Electronic Registration
Systems Inc
FACT I
On October 19 2007 Plaintiffs Samuel Salmon and Roxy E Salmon
executed a promissory note in the original principal amount of
$40942253 for the purchase of their home The Note was made
payable to Countrywide Bank The Note was secured by a Deed of
Trust on the home The Deed of Trust identifies the beneficiary
as ldquoMortgage Electronic Registration Systems Inc (lsquoMERSrsquo)rdquo and
states that ldquoMERS is a separate corporation that is acting solely
as nominee for Lender and Lenderrsquos successors and assignsrdquo The
ldquoLenderrdquo is identified as Countrywide Bank The Trustee is
identified as ldquoLandsafe Title of Washingtonrdquo
Landsafe Title of Washington was a subsidiary of Countrywide
Bank as stated on Securities Information website from the SEC
EDGAR database httpwwwsecinfocomdxj8536htm1stPage
which makes Landsafe Title of Washington the original Trustee
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 6
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2
3
4
5
6
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10
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12
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25
fiducially responsible to and or an associate of Countrywide
Bank which nullifies this Deed of Trust Exhibits (AampB) as a
binding legal document pursuant to
RCW 6124010 (3) and RCW 6124020
RCW 6124010 (3) The trustee or successor trustee shall have no
fiduciary duty or fiduciary obligation to the grantor or other
persons having an interest in the property subject to the deed of
trust
RCW 6124020 ldquoNo person corporation or association may be both
trustee and beneficiary under the same deed of trustrdquo
FACT II
When Countrywide Bank went out of business for predatory lending
the beneficiary MERS or the trustee Landsafe Title of Washington
never did record the trustee resignation violating RCW 6124010
(2)
Trustee qualifications mdash Successor trustee
(2) The trustee may resign at its own election or be replaced by
the beneficiary The trustee shall give prompt written notice of
its resignation to the beneficiary The resignation of the
trustee shall become effective upon the recording of the notice
of resignation in each county in which the deed of trust is
recorded If a trustee is not appointed in the deed of trust or
upon the resignation incapacity disability absence or death
of the trustee or the election of the beneficiary to replace the
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 7
1
2
3
4
5
6
7
8
9
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trustee the beneficiary shall appoint a trustee or a successor
trustee Only upon recording the appointment of a successor
trustee in each county in which the deed of trust is recorded
the successor trustee shall be vested with all powers of an
original trustee
FACT III
On or about April 1 2009 Bank of America declared itself to be
the new Lender by billing the Plaintiffs for the mortgage
payments Bank of America assumed the position of Lender on the
Deed of Trust Exhibits (AampB) although they failed to file the
conveyance promptly with the local Countyrsquos Auditor again
violating RCW 6124010 (2) and also violating 6404010 RCW
6404020 RCW 6508070 thereby nullifying Notice of Default
Exhibit (C) and The ldquoCorporation Assignment of Deed of Trust at
Stevens County Recorders Office Auditors File 2010 0007023rdquo
recorded September 23 2010 Exhibit (D) This alleged assignment
has the same signer for both MERS and Bank of America How does
this work
RCW 6508070
Real property conveyances to be recorded
A conveyance of real property when acknowledged by the person
executing the same (the acknowledgment being certified as
required by law) may be recorded in the office of the recording
officer of the county where the property is situated Every such
conveyance not so recorded is void as against any subsequent
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 8
1
2
3
4
5
6
7
8
9
10
11
12
13
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17
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purchaser or mortgagee in good faith and for a valuable
consideration from the same vendor his heirs or devisees of the
same real property or any portion thereof whose conveyance is
first duly recorded An instrument is deemed recorded the minute
it is filed for record
FACT IV
Before a conveyance was ever assigned by the Defendants a
ldquoNotice of Defaultrdquo was issued by Bank of America on the
Plaintiffs real property located at 917 A PHILPOTT ROAD COLVILLE
WA 99114 post marked September 02 2010 Exhibit (C) At a later
date Exhibit (D) the ldquoCorporation Assignment of Deed of Trust
was filed at Stevens County Recorders Office Auditors File 2010
0007023rdquo recorded September 23 2010 This filing of Exhibit (D)
was filed over a year after the Defendant Bank of America
falsely identified their self as owner of the loan on April 1
2009 and fraudulently collected payments on said promissory note
which is in violation of again stated RCW 6124010 (2) and also
violating 6404010 RCW 6404020RCW 6508070
RCW 6404010
Conveyances and encumbrances to be by deed
Every conveyance of real estate or any interest therein and
every contract creating or evidencing any encumbrance upon real
estate shall be by deed PROVIDED That when real estate or any
interest therein is held in trust the terms and conditions of
which trust are of record and the instrument creating such trust
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 9
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2
3
4
5
6
7
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9
10
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12
13
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25
authorizes the issuance of certificates or written evidence of
any interest in said real estate under said trust and authorizes
the transfer of such certificates or evidence of interest by
assignment by the holder thereof by a simple writing or by
endorsement on the back of such certificate or evidence of
interest or delivery thereof to the vendee such transfer shall
be valid and all such assignments or transfers hereby authorized
and heretofore made in accordance with the provisions of this
section are hereby declared to be legal and valid
RCW 6404020
Requisites of a deed
Every deed shall be in writing signed by the party bound
thereby and acknowledged by the party before some person
authorized by this act to take acknowledgments of deeds
FACT V
Plaintiff affirms that According to (Exhibit D) the Corporation
Assignment of Deed of Trust on filed under the authority of
Stevens County Auditor in Stevens County WA that MERS Bank of
America and Recontrust are not legally qualified as a Lender or
Trustee and or the Beneficiary pursuant to RCW 6124010 (3)
(4) and RCW 6124020 as the Trustee ldquoRecontrust Company NA
is a wholly-owned subsidiary of Bank of Americardquo (this statement
is found on the Recontrust web site home page) Therefore
Recontrust is associated with and is fiducially responsible
entirely to the alleged Lender Bank of America
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 10
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3
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25
RCW 6124010 (3) (4)
Trustee qualifications mdash Successor trustee
(3) The trustee or successor trustee shall have no fiduciary
duty or fiduciary obligation to the grantor or other persons
having an interest in the property subject to the deed of trust
(4) The trustee or successor trustee has a duty of good
faith to the borrower beneficiary and grantor
RCW 6124020
ldquoNo person corporation or association may be both trustee and
beneficiary under the same deed of trustrdquo
FACT VI
The Plaintiff asserts that the Note and Deed of Trust were not
properly assigned to the defendant Bank of America and therefore
has not proven its self as the Legal holder of the Note and Deed
of Trust therefore it lacks standing to enforce any claim on
said property For the reasons that follow the Plaintiff finds
that the Defendant has not proven that it is the holder of the
original Note pursuant to RCW 6124030(7)(aampb) and RCW
6124010 (4)
RCW 6124030
(7) (a) That for residential real property before the notice
of trustees sale is recorded transmitted or served the
trustee shall have proof that the beneficiary is the owner of any
promissory note or other obligation secured by the deed of trust
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 11
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A declaration by the beneficiary made under the penalty of
perjury stating that the beneficiary is the actual holder of the
promissory note or other obligation secured by the deed of trust
shall be sufficient proof as required under this subsection
(7) (b) Unless the trustee has violated his or her duty under
RCW 6124010(4) the trustee is entitled to rely on the
beneficiarys declaration as evidence of proof required under
this subsection
6124010 (4) The trustee or successor trustee has a duty of good
faith to the borrower beneficiary and grantor
Statement
Any proof of Note possession offered by the trustee or
beneficiary other than the production of the actual original Note
is not acceptable due to said Trustee Lender and Beneficiary
violations of stated RCWrsquos therefore it lacks standing to issue
any claim on Plaintiffs property
FACT VII
The Plaintiff affirms that according to the alleged trusteersquos
records and Plaintiffs phone Conversation with Recontrust it
does not have a physical street address in the state of
Washington which is in violation of RCW 6124030 (6)
RCW 6124030 (6)
(6) That prior to the date of the notice of trustees sale and
continuing thereafter through the date of the trustees sale the
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 12
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trustee must maintain a street address in this state where
personal service of process may be made and the trustee must
maintain a physical presence and have telephone service at such
address
FACT VIII
The Deed of Trust contains false representation on its face when
it represented that MERS was a beneficiary under the Deed of
Trust which states that ldquoMERS is a separate corporation that is
acting solely as a Nominee for Lender and Lenderrsquos successors and
assigns MERS as the beneficiary under this Security Instrumentrdquo
MERS is NOT the beneficiary under the Deed of Trust it never had
ownership or possession of the Promissory Note which is the
obligation which is secured by the Deed of Trust and MERS has
never been entitled to receive one cent of remuneration from the
Plaintiffrsquos loan proceeds The statement that MERS is the nominee
is nonsensical language which means nothing in a real estate
transaction and most certainly MERS has never been nor is it now
the beneficiary under the Deed of Trust The language is a sham
MERS is a wholly owned subsidiary of MersCorp Inc MERS has no
interest in the NOTE the LOAN or the REAL PROPERTY therefore
has no authority to transfer the NOTE as a nominee pursuant to
RCW 6124005 (2)
(2) Beneficiary means the holder of the instrument or document
evidencing the obligations secured by the deed of trust
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 13
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excluding persons holding the same as security for a different
obligation
FACT IX
Plaintiff has proven the Trustee Lender and Beneficiary are
illegal in this entire loan process Plaintiff does not recognize
any authority the alleged Claimants or Defendants are making on
Plaintiffs real property as the Deed of Trust is in itself
entirely invalid and the only security for the Note Plaintiff
demands the Defendant produce the original Note with the proper
endorsements for all transfers required by law pursuant RCW
62A3-203 to be submitted for inspection and verification by a
court appointed expert pursuant to RCW 6124030 (6) and (7) (a)
(b) Until then the copy or forgery of the NOTE which was
included with Notice of Trustee sale is not sufficient to
validate any claim Made by the Defendant on the Plaintiffs
possessions and is in violation of Washington forgery laws
pursuant RCW 62A5-109 RCW 1037080 RCW 9A56320 and RCW
9A60020
RCW 9A60020
(1) A person is guilty of forgery if with intent to injure or
defraud
(a) He falsely makes completes or alters a written
instrument or
(b) He possesses utters offers disposes of or puts off
as true a written instrument which he knows to be forged
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 14
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(2) In a proceeding under this section that is related to an
identity theft under RCW 935020 the crime will be considered
to have been committed in any locality where the person whose
means of identification or financial information was appropriated
resides or in which any part of the offense took place
regardless of whether the defendant was ever actually in that
locality
(3) Forgery is a class C felony
CASE EVIDENCE FOR FACT VIII AND FACT IX
MERS important case reference and commentary
MERS v Nebraska Dept of Banking and Finance ndash State Appellate
MERS demands to be recognized as having no actionable interest in
title 2005 Cite as 270 Neb 529
Merscorp Inc et al Respondents v Edward P Romaine amp c
et al Appellants et al Defendant the fact that the Mortgage
and Deed of Trust are separated is recognized (concurring
opinion) While affirming MERS could enter in the records as
ldquonomineerdquo the court recognized many inherent problems Rather
than resolve them they sloughed them off to the legislature
2006
The Boyko Decision -Federal District Judge Christopher Boyko of
the Eastern Division of the Northern District of Ohio Federal
Court overturns 14 foreclosure actions with a well reasoned
opinion outlining the failure of the foreclosing party to prove
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 15
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standing This decision started the movement of challenging the
standing of the foreclosing party Oct 2007
Landmark National Bank v Kesler ndash KS State Supreme Court ndash MERS
has no standing to foreclose and is in fact a straw man Oct
2009
The importance of the findings of the Supreme Court of Kansas
cannot be overemphasized It is generally the law in all states
that if the law of one state has not specifically addressed a
specific legal issue that the court may look to the law of states
which have The Kansas Court acknowledged that the case was one
of ldquofirst impression in Kansasrdquo which is why the Kansas Court
looked to legal decisions from California Idaho New York
Missouri and other states for guidance and to support its
decision As we have previously reported the Ohio Courts have
looked to the legal decisions of New York to resolve issues in
foreclosure defense most notably issues of standing to institute
a foreclosure
It is practically certain that this decision will be the subject
of review by various courts MERS has already threatened a
ldquosecond appealrdquo (by requesting ldquoreconsiderationrdquo by the Supreme
Court of Kansas of its decision by the entire panel of Judges in
that Court) However for now the decision stands which
decision is of monumental importance for borrowers It thus
appears that the tide is finally starting to turn and that the
courts are beginning to recognize the extent of the wrongful
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 16
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3
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practices and fraud perpetrated by ldquolendersrdquo and MERS upon
borrowers which conduct was engaged in for the sole purpose of
greed and profit for the ldquolendersrdquo and their ilk at the expense
of borrowers
MERS Inc Appellant v Southwest Homes of Arkansas Appellee The
second State Supreme Court ruling ndash AR 2009
BAC v US Bank ndash FL Appellate court upholds the concept of
determining the standing of the foreclosing party before allowing
summary judgement All cases in FL must now go through this
process 2007
Wells Fargo NAS v Farmer Motion to vacate in Supreme Court Kings
County NY 2009
In Re Joshua amp Stephanie Mitchell ndash US Federal Bankruptcy Court
NV 2009
In Re Wilhelm et al Case No 08-20577-TLM (opinion of Hon
Terry L Myers Chief US Bankruptcy Judge July 9 2009) ndash
Chief US Bankruptcy Judge ID ndash MERS by its construction
separates the Deed from the Mortgage
MERS v Johnston ndash Vermont Superior Court Decision
Wells Fargo v Jordon ndash OH Appellate Court
Weingartner et al v Chase Home Finance et al ndash US District Court
Schneider et al v Deutsche Bank et al (FL) Class action suit
(the filing) seeking to recover actual and statutory damages for
violations of the foreclosure process Provides an excellent
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 17
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3
4
5
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7
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9
10
11
12
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description of the securitization process and the problems with
assignments
JP Morgan Chase v New Millenial et al ndash FL Appellate which
clearly demonstrates the chaos which can ensue when there is a
failure to register changes of ownership at the county recorderrsquos
office Everyone operates in good faith then out of nowhere
someone shows up waving a piece of paper The MERS system while
not explicitly named is clearly the culprit of the chaos 2009
In Re Walker Case No 10-21656-E-11 ndash Eastern District of CA
Bankruptcy court rules MERS has NO actionable interest in title
ldquoAny attempt to transfer the beneficial interest of a trust deed
without ownership of the underlying note is void under California
lawrdquo ldquoMERS could not as a matter of law have transferred the
note to Citibank from the original lender Bayrock Mortgage
Corprdquo The Courtrsquos opinion is headlined stating that MERS and
Citibank are not the real parties in interest
In re Vargas 396 BR at 517-19 Judge Bufford made a finding
that the witness called to testify as to debt and default was
incompetent All the witness could testify was that he had looked
at the MERS computerized records The witness was unable to
satisfy the requirements of the Federal Rules of Evidence
particularly Rule 803 as applied to computerized records in the
Ninth Circuit See id at 517-20 The low level employee could
really only testify that the MERS screen shot he reviewed
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 18
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2
3
4
5
6
7
8
9
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17
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20
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reflected a default That really is not much in the way of
evidence and not nearly enough to get around the hearsay rule
In Re Joshua and Stephanie Mitchell Case No BK-S-07-16226-
LBR [US Bankruptcy Court District of Nevada Memorandum
Opinion of August 19 2008] Federal Court in Nevada attacked
MERSrsquo purported ldquoauthorityrdquo finding that there was no evidence
that MERS was the agent of the notersquos holder
Mortgage Electronic Registration Systems Inc v Girdvainis
Sumter County South Carolina Court of Common Pleas Case No
2005-CP-43-0278 (Order dated January 19 2006 citing to the
representations of MERS and court findings in Mortgage Electronic
Registration Systems Inc v Nebraska Dept of Banking and
Finance 270 Neb 529 704 NW 2d 784) As such ALL MERS
assignments are suspect at best and may in fact be fraudulent
The Court of Common Pleas of Sumter County South Carolina also
found that MERSrsquo rights were not as they were represented to be
that MERS had no rights to collect on any debt because it did not
extend any credit none of the borrowers owe MERS any money that
MERS does not own the promissory notes secured by the mortgages
and that MERS does not acquire any loan or extension of credit
secured by a lien on real property
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC v SAUNDERS 2010
ME 79 Docket Cum-09-640Supreme Judicial Court of
Maine | Ordered dated August 12 2010 We conclude that although
MERS is not in fact a ldquomortgageerdquo within the meaning of our
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 19
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2
3
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5
6
7
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9
10
11
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13
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foreclosure statute 14 MRS sectsect 6321-6325 and therefore had no
standing to institute foreclosure proceedings the real party in
interest was the Bank and the court did not abuse its discretion
by substituting the Bank for MERS Because however the Bank was
not entitled to summary judgment as a matter of law we vacate
the judgment and remand for further proceedings
MERS lsquoAGENTrsquo PREVIOUS MTG FRAUD SCHEME| Mortgage Electronic
Registration Systems Inc v Folkes 2010 NY Slip Op 32007 ndash NY
Supreme Court The settlement agent on all of the MERS documents
was listed as Peter Port Esq undeniably plaintiffs agent
According to an affidavit with documents attached from Ms
Nichole M Orr identified as an Assistant Vice President and
Senior Operational Risk Specialist for Bank of America Home
Loans the successor-in-interest to plaintiff Americarsquos Wholesale
Lender (April 1 2010)[1] certain wire transfers were made on
November 23 2004 to Mr Port The money appears to have come
from an account with JP Morgan but one of the documents also
shows inexplicably that Mr Port then sent $43506773 of this
money to Cheron A Ramphal at 14917 Motley Road Silver Springs
MD It should also be noted as it was in the decision of
February 5 2008 by Judge Payne that Mr Port pled guilty in
March 2006 in Federal District Court in New Jersey to providing
false documents in a scheme to commit mortgage fraud
lsquoNO PROOFrsquo MERS assigned BOTH Mortgage and NOTE to HSBC|HSBC
Bank etc v Miller et al The ldquoAssignment of Mortgagerdquo which
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 20
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
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17
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20
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is attached as exhibit E to the opposition papers makes no
reference to the note and only makes reference to the mortgage
being assigned The Assignment has a vague reference to note
wherein it states that ldquothe said assignor hereby grants and
conveys unto the said assignee the assignorrsquos beneficial
interest under the mortgage ldquobut this is the only language in
the Assignment which could possibly be found to refer to the
note
Contrary to the affirmation of Ms Szeliga in which she
represented in paragraph 17 that there was language in the
assignment which specifically referred to the note the
assignment in this case does not contain dega specific reference to
the Note
In light of the foregoing the Court is satisfied that there is
insufficient proof to establish that both the note and the
mortgage have been assigned to the Plaintiff and therefore it
is hereby ORDERED that the Plaintiff has no standing to maintain
the foreclosure action and it is further ORDERED that the
application of Defendant Jeffrey F Miller to dismiss is
granted without prejudice to renew upon proof of a valid
assignment of the note
UNION BANK CO v NORTH CAROLINA FURNITURE EXPRESS LLC MERS
lsquoGETS FORECLOSEDrsquo| ASSIGNS NADA TO BAC fka COUNTRYWIDE OHIO COURT
OF APPEAL While an assignment typically transfers the lien of
the mortgage on the property described in the mortgage as BAC
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 21
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
acknowledged in its reply brief an assignee can only take and
the assignor can only give the interest currently held by the
assignor RC 530131 With that stated it is clear under the
facts of this case that BAC never obtained an interest in the
property thus it could not have been substituted as a party-
defendant in the 2008 foreclosure action Here with respect to
the 2008 foreclosure action the date the last party was served
with notice was on January 28 2009 which was almost six
months before the purported assignment from MERS to BAC Next on
March 11 2009 the trial court issued a judgment entry of
default against MERS foreclosing on its interest in the property
Once again this default judgment was entered against MERS almost
three months before the purported assignment from MERS to BAC
occurred The effect of this default judgment against MERS
resulted in MERS having ldquono interest in and to said premises and
the equity of redemption of said Defendants in the real estate
described in Plaintiffrsquos Complaint shall be forever cut off
barred and foreclosedrdquo (2008 CV 0267 Mar 10 2009 JE)
Nevertheless according to the documents filed by BAC to evidence
its assignment from MERS MERS assigned its interest to BAC on
June 1 2009 (2009 CV 312 Oct 7 2009 JE Ex A)
Consequently as a result of the already entered default judgment
against MERS when BAC was assigned MERSrsquo interest in the
property on June 1 2009 BAC did not receive a viable interest
in the property See Quill v Maddox (May 31 2002) 2nd Dist
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 22
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
No 19052 at 2 (mortgageersquos assignee failed to establish that
it had an interest in the property as mortgageersquos interest was
foreclosed by the court before mortgagee assigned its interest to
assignee which could acquire no more interest than mortgagee
held) Thus we find that it was reasonable for the trial court
to have denied the motion to substitute BAC as a party-defendant
for MERS given its lack of interest in the property
HSBC v Thompson HSBCrsquos Irregularities Mortgage Documentation
and Corporate Relationships with Ocwen MERS and Delta Even if
HSBC had provided support for the proposition that ownership of
the note is not required the evidence about the assignment is
not properly before us The alleged mortgage assignment is
attached to the rejected affidavits of Neil Furthermore even if
we were to consider this ldquoevidencerdquo the mortgage assignment from
MERS to HSBC indicates that the assignment was prepared by Ocwen
for MERS and that Ocwen is located at the same Palm Beach
Florida address mentioned in Charlevagne and Antrobus See
Exhibit 3 attached to the affidavit of Chomie Neil In addition
Scott Anderson who signed the assignment as Vice-President of
MERS appears to be the same individual who claimed to be both
Vice-President of MERS and Vice-President of
Ocwen See Antrobus 2008 WL 2928553 4 and Charlevagne 2008
WL 2954767 1
MERS v TORR NY JUDGE SPINNER DENIES Deutsche amp MERS for NOT
Recording Mortgage Make up Affidavit and Assignment MERS lsquoQUIET
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
TITLErsquo FAIL To establish a claim of lien by a lost mortgage
there must be certain evidence (es) demonstrating that the
mortgage was properly executed with all the formalities required
by law andproof of the contents (es) of such instrument hellip Here
Burnettrsquos affidavit simply states that the original mortgage is
not in Deutsch Bankrsquos files and that he is advised (es) that
the title company is out of business Burnett gives no specifics
as to what efforts were made to locate the lost mortgagehellip More
importantly there is no affidavit from MLN by an individual with
personal knowledge of the facts that the complete file concerning
this mortgage was transferred to Deutsch Bank and that the copy
of the mortgage submitted to the court is an authentic copy of
Torrrsquos Mortgagerdquo (es)
LPP MORTGAGE v SABINE PROPERTIES FINAL DISPOSITION| NO Evidence
lsquoMERSrsquo Owned The NOTE Could NOT ASSIGN IT NY SUPREME COURT
FINAL DISPOSITION
Here there are no allegations or evidence that MERS was the
owner of the note such that it could assign it to LPP Thus the
assignment from MERS was insufficient to confer ownership of the
note to LPP and it has no standing to bring this action Kluge v
F umz ~1 45 AD2d at 538 (holding that the assignment of a
mortgage without transfer of the debt is a nullity) Johnson v
Melnikoff 20 Misc3d 1142(A) ldquo2 (Sup Ct Kings Co 2008) n 2
afr 65 AD3d 519 (2d Dept 20 1 Oj(noting that assignments by MERS
which did not include the underlying debt were a legal nullity)
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
m e Elect ro pic Registration Svstem v Coakley 41 AD3d 674 (2d
Dept 2007)(holding that MERS had standing to bring foreclosure
proceeding based on evidence that MERS was the lawful holder of
the promissory note and the mortgage)
Thus even assuming arguendo that the language of the assignment
from MERS to LPP could be interpreted as purporting to assign not
only the mortgage but also the note such assignment is invalid
since based on the record MERS lacked an ownership interest in
the note $ee LaSalle Bank Nat Assrsquon v Lamv 12 Misc3d 1191(A)
ldquo3 (Sup Ct Suffolk Co 2006) (noting that ldquothe mortgage is merely
an incident of and collateral security for the debt and an
assignment of the mortgage does not pass ownership of the debt
itself rsquo)
WACHOVIA BANK NATIONAL ASSOCIATION against ndashSTUART BRENNER et
aI Defendantrsquo s answer contains a defense of ldquolack of
standingrdquo Plaintiff has failed to establish it was the holder of
the note and the mortgage securing it when the action was
commenced In that regard plaintiff relies on an undated
assignment of the mortgage by MERS as nominee acknowledged by a
Texas notary on July 18 2009 The note sued on does not contain
an indication it has been negotiated The undated assignment by
MERS contains a provision at the assignment of the mortgage is
ldquoTOGETHER with the notes described in said mortgagerdquo The record
before me is devoid of proof that MERS as nominee for purposes of
recording had authority to assign the mortgage However assuming
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
it had such authority since it is a party to the mortgage and
such authority might be implied there has been a complete
failure to establish MERS as a non-party to the note to
negotiate its transfer A transfer of the note effects a transfer
of the mortgage MERS vs Coakley 41 AD3 674) the assignment of
a mortgage without a valid transfer of the mortgage note is a
nullity(Kluge vs Fugazv 145 AD2 537)
Following are more cases from THE NEW YORK SUPREME COURThellip
JUDGE SCHACK BLOWS lsquoMERSrsquo and Bank Of New York (BNY) OUT THE
DOOR
WM SPECIALTY MORTGAGE v JORGE RAMIREZ NO PROOF MERS OWNED THE
MORTGAGE AND NOTE
MERS v MAHENDRA RAMDOOLAR MERS IN NOT THE OWNER OF SUBJECT
MORTGAGE AND NOTE
HOLY COW MERS v MERS NO EVIDENCE IT HAD THE MORTGAGE AND NOTE
MERS V THOMAS STANDFORD MERS DOES NOT OWN MORTGAGE AND NOTE
MERS V GAIL PALMORE-ARCHER MERS DOES NOT OWN MORTGAGE AND NOTE
In the Matter of the Foreclosure of Tax Liens MERS GETS CHEWED
UP
BANK OF NEW YORK V JOSEPH CERULLO MERS NOT OWNER AND HOLDER OF
NOTE MORTGAGE
HSBC V HENRY FELD MERS NOT HOLDER OWNER OF NOTE
THE BANK OF NY MELLON V RICHARD BUSTRUC MERS IS NOT OWNER HOLDER
OF MORTGAGE AND NOTE
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 26
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ONEWEST BANK GETS THE BOOT MERS ASSIGNMENT MAKES NO REFERENCE TO
NOTE
NY SUPREME COURT WELLS FARGO MERS amp STEVEN J BAUM ldquoFATAL
DEFECTrdquo
FDN attorneys Jeff Barnes Esq and Elizabeth Lemoine Esq have
achieved a significant victory in Federal Court in Oregon against
MERS On Tuesday September 28 2010 Mr Barnes and Ms Lemoine
defended and argued Motions to Dismiss the borrowersrsquo lawsuit
challenging a nonjudicial foreclosure The Motions were filed by
the Defendants OneWest Bank and MERS The action was originally
filed in state court where a temporary restraining order was
entered stopping the sale On the eve of the scheduled hearing on
the borrowersrsquo Motion for Preliminary Injunction Defendants
OneWest Bank MERS and Regional Trustee Services removed the
case to Federal Court in an obvious attempt to circumvent the
state court injunction hearing The Federal Court entered an
Injunction and scheduled a hearing on the Motions filed by the
Defendants
During the course of the hearing the Court repeatedly raised the
ldquoMERS as nomineerdquo issues to counsel for the Defendants with said
counsel finally admitting upon repeated inquiry by the Court
that MERS cannot transfer promissory notes The Court denied the
Motions to Dismiss and has by Order commanded the injunction
against the sale to remain in place through the duration of the
borrowersrsquo lawsuit
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
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20
21
22
23
24
25
REQUEST FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY
INJUNCTION
Because of the nature of the findings of the listed FACTS I
through FACT VII and lack of truthful evidence leading to these
illegal foreclosure proceedings Plaintiff prays for the Court to
issue a temporary restraining order and a preliminary injunction
against Defendant for any and all claims the Defendants are
pursuing against Plaintiff and Plaintiffrsquos property via Exhibits
(A B C D E and F) thereby causing harm to the Plaintiff
REQUEST FOR PERMANENT INJUNCTION AND REMUNERATION
Because of all of the FACTS and Court case evidence listed in
this complaint Plaintiff demands the Defendants produce the
original NOTE in question to avoid forgery and fraud charges If
NOTE is not produced within 30 days from the delivery and receipt
of the summons upon the Defendant Plaintiff will press forgery
charges pursuant RCW 9A60020 Plaintiff thereby will demand
remuneration of fraudulently collected monies paid to illegally
represented lenders Bank of America FKA Countrywide and interest
at 675 with the total amount of $8775636 + case fees or
Eighty Seven Thousand Seven hundred and fifty six dollars and 36
cents plus case fees to the Defendant who deceived the Plaintiff
by fraudulently claiming to be the legitimate lender trustee
and beneficiary while falsely claiming to hold the NOTE assuming
all assets and liabilities of Countrywide
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 28
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2
3
4
5
6
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9
10
11
12
13
14
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25
RCW 740020
Grounds for issuance
When it appears by the complaint that the plaintiff is entitled
to the relief demanded and the relief or any part thereof
consists in restraining the commission or continuance of some
act the commission or continuance of which during the litigation
would produce great injury to the plaintiff or when during the
litigation it appears that the defendant is doing
or threatened or is about to do or is procuring or is suffering some act to
be done in violation of the plaintiffs rights respecting the subject of the
action tending to render the judgment ineffectual or where such relief or
any part thereof consists in restraining proceedings upon any final order or
judgment an injunction may be granted to restrain such act or proceedings
until the further order of the court which may afterwards be dissolved or
modified upon motion And where it appears in the complaint at the
commencement of the action or during the pendency thereof by affidavit that
the defendant threatens or is about to remove or dispose of his property with
intent to defraud his creditors a temporary injunction may be granted to
restrain the removal or disposition of his property
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 29
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2
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8
9
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21
22
23
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25
BySamuel Salmon 917C Philpott Rd Colville WA 99114
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 4
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2
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4
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6
7
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9
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11
12
13
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20
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PARTIES
Plaintiff Samuel and Roxy Salmon owners and residents of real
property description LOT(S) 3 OF SHORT PLAT NO SP 33-96
LOCATED IN THE SW14 OF SECTION 21 TOWNSHIP 34 NORTH RANGE 39
EAST WM IN STEVENS COUNTY WASHINGTON ACCORDING TO PLAT
RECORDED NOVEMBER 14 1996 UNDER AUDITORS FILE NO9612321 or
known as 917C Philpott Rd Colville WA 99114
Defendant Bank Of America Corporation listed as beneficiary on
Exhibit (D) with principal executive offices located at 100 North
Tryon Street Charlotte North Carolina BOA is traded on the
NYSE under the symbol ldquoBACrdquo Summons will be served at Bank of
Americarsquos local branch located at 225 E 1St Ave Colville WA
99114 (509) 684-2551
Individual Defendants
Brian Thomas Moynihan Bank of America CEO since Jan 2010
Kenneth D Lewis Bank of America CEO from April 2001 to Jan
2010
Defendant ReconTrust Company NA listed trustee on Exhibit (D)
is a wholly-owned subsidiary of Bank of America NA and has no
known physical street address or phone number in the State of
Washington
Defendant MERS Mortgage Electronic Registration System listed
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 5
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2
3
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5
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7
8
9
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11
12
13
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15
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17
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20
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23
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25
as beneficiary on Exhibits (AB and D) is a wholly owned
subsidiary of MERSCorp Inc MersCorp was created in the early
1990rsquos by the former CEOrsquos of Fannie Mae Freddie Mac Indy
Mac Countrywide Stewart Title Insurance and the American Land
Title Association MERSrsquo principal place of business at 1595
Spring Hill Road Suite 310 Vienna Virginia 22182 MERSrsquo
national data center is located in Plano Texas
Individual Defendants
R K Arnold President and CEO Mortgage Electronic Registration
Systems Inc
FACT I
On October 19 2007 Plaintiffs Samuel Salmon and Roxy E Salmon
executed a promissory note in the original principal amount of
$40942253 for the purchase of their home The Note was made
payable to Countrywide Bank The Note was secured by a Deed of
Trust on the home The Deed of Trust identifies the beneficiary
as ldquoMortgage Electronic Registration Systems Inc (lsquoMERSrsquo)rdquo and
states that ldquoMERS is a separate corporation that is acting solely
as nominee for Lender and Lenderrsquos successors and assignsrdquo The
ldquoLenderrdquo is identified as Countrywide Bank The Trustee is
identified as ldquoLandsafe Title of Washingtonrdquo
Landsafe Title of Washington was a subsidiary of Countrywide
Bank as stated on Securities Information website from the SEC
EDGAR database httpwwwsecinfocomdxj8536htm1stPage
which makes Landsafe Title of Washington the original Trustee
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 6
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2
3
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5
6
7
8
9
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25
fiducially responsible to and or an associate of Countrywide
Bank which nullifies this Deed of Trust Exhibits (AampB) as a
binding legal document pursuant to
RCW 6124010 (3) and RCW 6124020
RCW 6124010 (3) The trustee or successor trustee shall have no
fiduciary duty or fiduciary obligation to the grantor or other
persons having an interest in the property subject to the deed of
trust
RCW 6124020 ldquoNo person corporation or association may be both
trustee and beneficiary under the same deed of trustrdquo
FACT II
When Countrywide Bank went out of business for predatory lending
the beneficiary MERS or the trustee Landsafe Title of Washington
never did record the trustee resignation violating RCW 6124010
(2)
Trustee qualifications mdash Successor trustee
(2) The trustee may resign at its own election or be replaced by
the beneficiary The trustee shall give prompt written notice of
its resignation to the beneficiary The resignation of the
trustee shall become effective upon the recording of the notice
of resignation in each county in which the deed of trust is
recorded If a trustee is not appointed in the deed of trust or
upon the resignation incapacity disability absence or death
of the trustee or the election of the beneficiary to replace the
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 7
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2
3
4
5
6
7
8
9
10
11
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trustee the beneficiary shall appoint a trustee or a successor
trustee Only upon recording the appointment of a successor
trustee in each county in which the deed of trust is recorded
the successor trustee shall be vested with all powers of an
original trustee
FACT III
On or about April 1 2009 Bank of America declared itself to be
the new Lender by billing the Plaintiffs for the mortgage
payments Bank of America assumed the position of Lender on the
Deed of Trust Exhibits (AampB) although they failed to file the
conveyance promptly with the local Countyrsquos Auditor again
violating RCW 6124010 (2) and also violating 6404010 RCW
6404020 RCW 6508070 thereby nullifying Notice of Default
Exhibit (C) and The ldquoCorporation Assignment of Deed of Trust at
Stevens County Recorders Office Auditors File 2010 0007023rdquo
recorded September 23 2010 Exhibit (D) This alleged assignment
has the same signer for both MERS and Bank of America How does
this work
RCW 6508070
Real property conveyances to be recorded
A conveyance of real property when acknowledged by the person
executing the same (the acknowledgment being certified as
required by law) may be recorded in the office of the recording
officer of the county where the property is situated Every such
conveyance not so recorded is void as against any subsequent
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 8
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2
3
4
5
6
7
8
9
10
11
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purchaser or mortgagee in good faith and for a valuable
consideration from the same vendor his heirs or devisees of the
same real property or any portion thereof whose conveyance is
first duly recorded An instrument is deemed recorded the minute
it is filed for record
FACT IV
Before a conveyance was ever assigned by the Defendants a
ldquoNotice of Defaultrdquo was issued by Bank of America on the
Plaintiffs real property located at 917 A PHILPOTT ROAD COLVILLE
WA 99114 post marked September 02 2010 Exhibit (C) At a later
date Exhibit (D) the ldquoCorporation Assignment of Deed of Trust
was filed at Stevens County Recorders Office Auditors File 2010
0007023rdquo recorded September 23 2010 This filing of Exhibit (D)
was filed over a year after the Defendant Bank of America
falsely identified their self as owner of the loan on April 1
2009 and fraudulently collected payments on said promissory note
which is in violation of again stated RCW 6124010 (2) and also
violating 6404010 RCW 6404020RCW 6508070
RCW 6404010
Conveyances and encumbrances to be by deed
Every conveyance of real estate or any interest therein and
every contract creating or evidencing any encumbrance upon real
estate shall be by deed PROVIDED That when real estate or any
interest therein is held in trust the terms and conditions of
which trust are of record and the instrument creating such trust
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 9
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2
3
4
5
6
7
8
9
10
11
12
13
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20
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24
25
authorizes the issuance of certificates or written evidence of
any interest in said real estate under said trust and authorizes
the transfer of such certificates or evidence of interest by
assignment by the holder thereof by a simple writing or by
endorsement on the back of such certificate or evidence of
interest or delivery thereof to the vendee such transfer shall
be valid and all such assignments or transfers hereby authorized
and heretofore made in accordance with the provisions of this
section are hereby declared to be legal and valid
RCW 6404020
Requisites of a deed
Every deed shall be in writing signed by the party bound
thereby and acknowledged by the party before some person
authorized by this act to take acknowledgments of deeds
FACT V
Plaintiff affirms that According to (Exhibit D) the Corporation
Assignment of Deed of Trust on filed under the authority of
Stevens County Auditor in Stevens County WA that MERS Bank of
America and Recontrust are not legally qualified as a Lender or
Trustee and or the Beneficiary pursuant to RCW 6124010 (3)
(4) and RCW 6124020 as the Trustee ldquoRecontrust Company NA
is a wholly-owned subsidiary of Bank of Americardquo (this statement
is found on the Recontrust web site home page) Therefore
Recontrust is associated with and is fiducially responsible
entirely to the alleged Lender Bank of America
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
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20
21
22
23
24
25
RCW 6124010 (3) (4)
Trustee qualifications mdash Successor trustee
(3) The trustee or successor trustee shall have no fiduciary
duty or fiduciary obligation to the grantor or other persons
having an interest in the property subject to the deed of trust
(4) The trustee or successor trustee has a duty of good
faith to the borrower beneficiary and grantor
RCW 6124020
ldquoNo person corporation or association may be both trustee and
beneficiary under the same deed of trustrdquo
FACT VI
The Plaintiff asserts that the Note and Deed of Trust were not
properly assigned to the defendant Bank of America and therefore
has not proven its self as the Legal holder of the Note and Deed
of Trust therefore it lacks standing to enforce any claim on
said property For the reasons that follow the Plaintiff finds
that the Defendant has not proven that it is the holder of the
original Note pursuant to RCW 6124030(7)(aampb) and RCW
6124010 (4)
RCW 6124030
(7) (a) That for residential real property before the notice
of trustees sale is recorded transmitted or served the
trustee shall have proof that the beneficiary is the owner of any
promissory note or other obligation secured by the deed of trust
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 11
1
2
3
4
5
6
7
8
9
10
11
12
13
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15
16
17
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21
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23
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25
A declaration by the beneficiary made under the penalty of
perjury stating that the beneficiary is the actual holder of the
promissory note or other obligation secured by the deed of trust
shall be sufficient proof as required under this subsection
(7) (b) Unless the trustee has violated his or her duty under
RCW 6124010(4) the trustee is entitled to rely on the
beneficiarys declaration as evidence of proof required under
this subsection
6124010 (4) The trustee or successor trustee has a duty of good
faith to the borrower beneficiary and grantor
Statement
Any proof of Note possession offered by the trustee or
beneficiary other than the production of the actual original Note
is not acceptable due to said Trustee Lender and Beneficiary
violations of stated RCWrsquos therefore it lacks standing to issue
any claim on Plaintiffs property
FACT VII
The Plaintiff affirms that according to the alleged trusteersquos
records and Plaintiffs phone Conversation with Recontrust it
does not have a physical street address in the state of
Washington which is in violation of RCW 6124030 (6)
RCW 6124030 (6)
(6) That prior to the date of the notice of trustees sale and
continuing thereafter through the date of the trustees sale the
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 12
1
2
3
4
5
6
7
8
9
10
11
12
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14
15
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25
trustee must maintain a street address in this state where
personal service of process may be made and the trustee must
maintain a physical presence and have telephone service at such
address
FACT VIII
The Deed of Trust contains false representation on its face when
it represented that MERS was a beneficiary under the Deed of
Trust which states that ldquoMERS is a separate corporation that is
acting solely as a Nominee for Lender and Lenderrsquos successors and
assigns MERS as the beneficiary under this Security Instrumentrdquo
MERS is NOT the beneficiary under the Deed of Trust it never had
ownership or possession of the Promissory Note which is the
obligation which is secured by the Deed of Trust and MERS has
never been entitled to receive one cent of remuneration from the
Plaintiffrsquos loan proceeds The statement that MERS is the nominee
is nonsensical language which means nothing in a real estate
transaction and most certainly MERS has never been nor is it now
the beneficiary under the Deed of Trust The language is a sham
MERS is a wholly owned subsidiary of MersCorp Inc MERS has no
interest in the NOTE the LOAN or the REAL PROPERTY therefore
has no authority to transfer the NOTE as a nominee pursuant to
RCW 6124005 (2)
(2) Beneficiary means the holder of the instrument or document
evidencing the obligations secured by the deed of trust
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 13
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
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17
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20
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excluding persons holding the same as security for a different
obligation
FACT IX
Plaintiff has proven the Trustee Lender and Beneficiary are
illegal in this entire loan process Plaintiff does not recognize
any authority the alleged Claimants or Defendants are making on
Plaintiffs real property as the Deed of Trust is in itself
entirely invalid and the only security for the Note Plaintiff
demands the Defendant produce the original Note with the proper
endorsements for all transfers required by law pursuant RCW
62A3-203 to be submitted for inspection and verification by a
court appointed expert pursuant to RCW 6124030 (6) and (7) (a)
(b) Until then the copy or forgery of the NOTE which was
included with Notice of Trustee sale is not sufficient to
validate any claim Made by the Defendant on the Plaintiffs
possessions and is in violation of Washington forgery laws
pursuant RCW 62A5-109 RCW 1037080 RCW 9A56320 and RCW
9A60020
RCW 9A60020
(1) A person is guilty of forgery if with intent to injure or
defraud
(a) He falsely makes completes or alters a written
instrument or
(b) He possesses utters offers disposes of or puts off
as true a written instrument which he knows to be forged
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 14
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
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19
20
21
22
23
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25
(2) In a proceeding under this section that is related to an
identity theft under RCW 935020 the crime will be considered
to have been committed in any locality where the person whose
means of identification or financial information was appropriated
resides or in which any part of the offense took place
regardless of whether the defendant was ever actually in that
locality
(3) Forgery is a class C felony
CASE EVIDENCE FOR FACT VIII AND FACT IX
MERS important case reference and commentary
MERS v Nebraska Dept of Banking and Finance ndash State Appellate
MERS demands to be recognized as having no actionable interest in
title 2005 Cite as 270 Neb 529
Merscorp Inc et al Respondents v Edward P Romaine amp c
et al Appellants et al Defendant the fact that the Mortgage
and Deed of Trust are separated is recognized (concurring
opinion) While affirming MERS could enter in the records as
ldquonomineerdquo the court recognized many inherent problems Rather
than resolve them they sloughed them off to the legislature
2006
The Boyko Decision -Federal District Judge Christopher Boyko of
the Eastern Division of the Northern District of Ohio Federal
Court overturns 14 foreclosure actions with a well reasoned
opinion outlining the failure of the foreclosing party to prove
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 15
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
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standing This decision started the movement of challenging the
standing of the foreclosing party Oct 2007
Landmark National Bank v Kesler ndash KS State Supreme Court ndash MERS
has no standing to foreclose and is in fact a straw man Oct
2009
The importance of the findings of the Supreme Court of Kansas
cannot be overemphasized It is generally the law in all states
that if the law of one state has not specifically addressed a
specific legal issue that the court may look to the law of states
which have The Kansas Court acknowledged that the case was one
of ldquofirst impression in Kansasrdquo which is why the Kansas Court
looked to legal decisions from California Idaho New York
Missouri and other states for guidance and to support its
decision As we have previously reported the Ohio Courts have
looked to the legal decisions of New York to resolve issues in
foreclosure defense most notably issues of standing to institute
a foreclosure
It is practically certain that this decision will be the subject
of review by various courts MERS has already threatened a
ldquosecond appealrdquo (by requesting ldquoreconsiderationrdquo by the Supreme
Court of Kansas of its decision by the entire panel of Judges in
that Court) However for now the decision stands which
decision is of monumental importance for borrowers It thus
appears that the tide is finally starting to turn and that the
courts are beginning to recognize the extent of the wrongful
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 16
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
practices and fraud perpetrated by ldquolendersrdquo and MERS upon
borrowers which conduct was engaged in for the sole purpose of
greed and profit for the ldquolendersrdquo and their ilk at the expense
of borrowers
MERS Inc Appellant v Southwest Homes of Arkansas Appellee The
second State Supreme Court ruling ndash AR 2009
BAC v US Bank ndash FL Appellate court upholds the concept of
determining the standing of the foreclosing party before allowing
summary judgement All cases in FL must now go through this
process 2007
Wells Fargo NAS v Farmer Motion to vacate in Supreme Court Kings
County NY 2009
In Re Joshua amp Stephanie Mitchell ndash US Federal Bankruptcy Court
NV 2009
In Re Wilhelm et al Case No 08-20577-TLM (opinion of Hon
Terry L Myers Chief US Bankruptcy Judge July 9 2009) ndash
Chief US Bankruptcy Judge ID ndash MERS by its construction
separates the Deed from the Mortgage
MERS v Johnston ndash Vermont Superior Court Decision
Wells Fargo v Jordon ndash OH Appellate Court
Weingartner et al v Chase Home Finance et al ndash US District Court
Schneider et al v Deutsche Bank et al (FL) Class action suit
(the filing) seeking to recover actual and statutory damages for
violations of the foreclosure process Provides an excellent
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 17
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
description of the securitization process and the problems with
assignments
JP Morgan Chase v New Millenial et al ndash FL Appellate which
clearly demonstrates the chaos which can ensue when there is a
failure to register changes of ownership at the county recorderrsquos
office Everyone operates in good faith then out of nowhere
someone shows up waving a piece of paper The MERS system while
not explicitly named is clearly the culprit of the chaos 2009
In Re Walker Case No 10-21656-E-11 ndash Eastern District of CA
Bankruptcy court rules MERS has NO actionable interest in title
ldquoAny attempt to transfer the beneficial interest of a trust deed
without ownership of the underlying note is void under California
lawrdquo ldquoMERS could not as a matter of law have transferred the
note to Citibank from the original lender Bayrock Mortgage
Corprdquo The Courtrsquos opinion is headlined stating that MERS and
Citibank are not the real parties in interest
In re Vargas 396 BR at 517-19 Judge Bufford made a finding
that the witness called to testify as to debt and default was
incompetent All the witness could testify was that he had looked
at the MERS computerized records The witness was unable to
satisfy the requirements of the Federal Rules of Evidence
particularly Rule 803 as applied to computerized records in the
Ninth Circuit See id at 517-20 The low level employee could
really only testify that the MERS screen shot he reviewed
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
reflected a default That really is not much in the way of
evidence and not nearly enough to get around the hearsay rule
In Re Joshua and Stephanie Mitchell Case No BK-S-07-16226-
LBR [US Bankruptcy Court District of Nevada Memorandum
Opinion of August 19 2008] Federal Court in Nevada attacked
MERSrsquo purported ldquoauthorityrdquo finding that there was no evidence
that MERS was the agent of the notersquos holder
Mortgage Electronic Registration Systems Inc v Girdvainis
Sumter County South Carolina Court of Common Pleas Case No
2005-CP-43-0278 (Order dated January 19 2006 citing to the
representations of MERS and court findings in Mortgage Electronic
Registration Systems Inc v Nebraska Dept of Banking and
Finance 270 Neb 529 704 NW 2d 784) As such ALL MERS
assignments are suspect at best and may in fact be fraudulent
The Court of Common Pleas of Sumter County South Carolina also
found that MERSrsquo rights were not as they were represented to be
that MERS had no rights to collect on any debt because it did not
extend any credit none of the borrowers owe MERS any money that
MERS does not own the promissory notes secured by the mortgages
and that MERS does not acquire any loan or extension of credit
secured by a lien on real property
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC v SAUNDERS 2010
ME 79 Docket Cum-09-640Supreme Judicial Court of
Maine | Ordered dated August 12 2010 We conclude that although
MERS is not in fact a ldquomortgageerdquo within the meaning of our
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 19
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
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24
25
foreclosure statute 14 MRS sectsect 6321-6325 and therefore had no
standing to institute foreclosure proceedings the real party in
interest was the Bank and the court did not abuse its discretion
by substituting the Bank for MERS Because however the Bank was
not entitled to summary judgment as a matter of law we vacate
the judgment and remand for further proceedings
MERS lsquoAGENTrsquo PREVIOUS MTG FRAUD SCHEME| Mortgage Electronic
Registration Systems Inc v Folkes 2010 NY Slip Op 32007 ndash NY
Supreme Court The settlement agent on all of the MERS documents
was listed as Peter Port Esq undeniably plaintiffs agent
According to an affidavit with documents attached from Ms
Nichole M Orr identified as an Assistant Vice President and
Senior Operational Risk Specialist for Bank of America Home
Loans the successor-in-interest to plaintiff Americarsquos Wholesale
Lender (April 1 2010)[1] certain wire transfers were made on
November 23 2004 to Mr Port The money appears to have come
from an account with JP Morgan but one of the documents also
shows inexplicably that Mr Port then sent $43506773 of this
money to Cheron A Ramphal at 14917 Motley Road Silver Springs
MD It should also be noted as it was in the decision of
February 5 2008 by Judge Payne that Mr Port pled guilty in
March 2006 in Federal District Court in New Jersey to providing
false documents in a scheme to commit mortgage fraud
lsquoNO PROOFrsquo MERS assigned BOTH Mortgage and NOTE to HSBC|HSBC
Bank etc v Miller et al The ldquoAssignment of Mortgagerdquo which
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 20
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
is attached as exhibit E to the opposition papers makes no
reference to the note and only makes reference to the mortgage
being assigned The Assignment has a vague reference to note
wherein it states that ldquothe said assignor hereby grants and
conveys unto the said assignee the assignorrsquos beneficial
interest under the mortgage ldquobut this is the only language in
the Assignment which could possibly be found to refer to the
note
Contrary to the affirmation of Ms Szeliga in which she
represented in paragraph 17 that there was language in the
assignment which specifically referred to the note the
assignment in this case does not contain dega specific reference to
the Note
In light of the foregoing the Court is satisfied that there is
insufficient proof to establish that both the note and the
mortgage have been assigned to the Plaintiff and therefore it
is hereby ORDERED that the Plaintiff has no standing to maintain
the foreclosure action and it is further ORDERED that the
application of Defendant Jeffrey F Miller to dismiss is
granted without prejudice to renew upon proof of a valid
assignment of the note
UNION BANK CO v NORTH CAROLINA FURNITURE EXPRESS LLC MERS
lsquoGETS FORECLOSEDrsquo| ASSIGNS NADA TO BAC fka COUNTRYWIDE OHIO COURT
OF APPEAL While an assignment typically transfers the lien of
the mortgage on the property described in the mortgage as BAC
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 21
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
acknowledged in its reply brief an assignee can only take and
the assignor can only give the interest currently held by the
assignor RC 530131 With that stated it is clear under the
facts of this case that BAC never obtained an interest in the
property thus it could not have been substituted as a party-
defendant in the 2008 foreclosure action Here with respect to
the 2008 foreclosure action the date the last party was served
with notice was on January 28 2009 which was almost six
months before the purported assignment from MERS to BAC Next on
March 11 2009 the trial court issued a judgment entry of
default against MERS foreclosing on its interest in the property
Once again this default judgment was entered against MERS almost
three months before the purported assignment from MERS to BAC
occurred The effect of this default judgment against MERS
resulted in MERS having ldquono interest in and to said premises and
the equity of redemption of said Defendants in the real estate
described in Plaintiffrsquos Complaint shall be forever cut off
barred and foreclosedrdquo (2008 CV 0267 Mar 10 2009 JE)
Nevertheless according to the documents filed by BAC to evidence
its assignment from MERS MERS assigned its interest to BAC on
June 1 2009 (2009 CV 312 Oct 7 2009 JE Ex A)
Consequently as a result of the already entered default judgment
against MERS when BAC was assigned MERSrsquo interest in the
property on June 1 2009 BAC did not receive a viable interest
in the property See Quill v Maddox (May 31 2002) 2nd Dist
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 22
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
No 19052 at 2 (mortgageersquos assignee failed to establish that
it had an interest in the property as mortgageersquos interest was
foreclosed by the court before mortgagee assigned its interest to
assignee which could acquire no more interest than mortgagee
held) Thus we find that it was reasonable for the trial court
to have denied the motion to substitute BAC as a party-defendant
for MERS given its lack of interest in the property
HSBC v Thompson HSBCrsquos Irregularities Mortgage Documentation
and Corporate Relationships with Ocwen MERS and Delta Even if
HSBC had provided support for the proposition that ownership of
the note is not required the evidence about the assignment is
not properly before us The alleged mortgage assignment is
attached to the rejected affidavits of Neil Furthermore even if
we were to consider this ldquoevidencerdquo the mortgage assignment from
MERS to HSBC indicates that the assignment was prepared by Ocwen
for MERS and that Ocwen is located at the same Palm Beach
Florida address mentioned in Charlevagne and Antrobus See
Exhibit 3 attached to the affidavit of Chomie Neil In addition
Scott Anderson who signed the assignment as Vice-President of
MERS appears to be the same individual who claimed to be both
Vice-President of MERS and Vice-President of
Ocwen See Antrobus 2008 WL 2928553 4 and Charlevagne 2008
WL 2954767 1
MERS v TORR NY JUDGE SPINNER DENIES Deutsche amp MERS for NOT
Recording Mortgage Make up Affidavit and Assignment MERS lsquoQUIET
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 23
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3
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5
6
7
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9
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13
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24
25
TITLErsquo FAIL To establish a claim of lien by a lost mortgage
there must be certain evidence (es) demonstrating that the
mortgage was properly executed with all the formalities required
by law andproof of the contents (es) of such instrument hellip Here
Burnettrsquos affidavit simply states that the original mortgage is
not in Deutsch Bankrsquos files and that he is advised (es) that
the title company is out of business Burnett gives no specifics
as to what efforts were made to locate the lost mortgagehellip More
importantly there is no affidavit from MLN by an individual with
personal knowledge of the facts that the complete file concerning
this mortgage was transferred to Deutsch Bank and that the copy
of the mortgage submitted to the court is an authentic copy of
Torrrsquos Mortgagerdquo (es)
LPP MORTGAGE v SABINE PROPERTIES FINAL DISPOSITION| NO Evidence
lsquoMERSrsquo Owned The NOTE Could NOT ASSIGN IT NY SUPREME COURT
FINAL DISPOSITION
Here there are no allegations or evidence that MERS was the
owner of the note such that it could assign it to LPP Thus the
assignment from MERS was insufficient to confer ownership of the
note to LPP and it has no standing to bring this action Kluge v
F umz ~1 45 AD2d at 538 (holding that the assignment of a
mortgage without transfer of the debt is a nullity) Johnson v
Melnikoff 20 Misc3d 1142(A) ldquo2 (Sup Ct Kings Co 2008) n 2
afr 65 AD3d 519 (2d Dept 20 1 Oj(noting that assignments by MERS
which did not include the underlying debt were a legal nullity)
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
m e Elect ro pic Registration Svstem v Coakley 41 AD3d 674 (2d
Dept 2007)(holding that MERS had standing to bring foreclosure
proceeding based on evidence that MERS was the lawful holder of
the promissory note and the mortgage)
Thus even assuming arguendo that the language of the assignment
from MERS to LPP could be interpreted as purporting to assign not
only the mortgage but also the note such assignment is invalid
since based on the record MERS lacked an ownership interest in
the note $ee LaSalle Bank Nat Assrsquon v Lamv 12 Misc3d 1191(A)
ldquo3 (Sup Ct Suffolk Co 2006) (noting that ldquothe mortgage is merely
an incident of and collateral security for the debt and an
assignment of the mortgage does not pass ownership of the debt
itself rsquo)
WACHOVIA BANK NATIONAL ASSOCIATION against ndashSTUART BRENNER et
aI Defendantrsquo s answer contains a defense of ldquolack of
standingrdquo Plaintiff has failed to establish it was the holder of
the note and the mortgage securing it when the action was
commenced In that regard plaintiff relies on an undated
assignment of the mortgage by MERS as nominee acknowledged by a
Texas notary on July 18 2009 The note sued on does not contain
an indication it has been negotiated The undated assignment by
MERS contains a provision at the assignment of the mortgage is
ldquoTOGETHER with the notes described in said mortgagerdquo The record
before me is devoid of proof that MERS as nominee for purposes of
recording had authority to assign the mortgage However assuming
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
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20
21
22
23
24
25
it had such authority since it is a party to the mortgage and
such authority might be implied there has been a complete
failure to establish MERS as a non-party to the note to
negotiate its transfer A transfer of the note effects a transfer
of the mortgage MERS vs Coakley 41 AD3 674) the assignment of
a mortgage without a valid transfer of the mortgage note is a
nullity(Kluge vs Fugazv 145 AD2 537)
Following are more cases from THE NEW YORK SUPREME COURThellip
JUDGE SCHACK BLOWS lsquoMERSrsquo and Bank Of New York (BNY) OUT THE
DOOR
WM SPECIALTY MORTGAGE v JORGE RAMIREZ NO PROOF MERS OWNED THE
MORTGAGE AND NOTE
MERS v MAHENDRA RAMDOOLAR MERS IN NOT THE OWNER OF SUBJECT
MORTGAGE AND NOTE
HOLY COW MERS v MERS NO EVIDENCE IT HAD THE MORTGAGE AND NOTE
MERS V THOMAS STANDFORD MERS DOES NOT OWN MORTGAGE AND NOTE
MERS V GAIL PALMORE-ARCHER MERS DOES NOT OWN MORTGAGE AND NOTE
In the Matter of the Foreclosure of Tax Liens MERS GETS CHEWED
UP
BANK OF NEW YORK V JOSEPH CERULLO MERS NOT OWNER AND HOLDER OF
NOTE MORTGAGE
HSBC V HENRY FELD MERS NOT HOLDER OWNER OF NOTE
THE BANK OF NY MELLON V RICHARD BUSTRUC MERS IS NOT OWNER HOLDER
OF MORTGAGE AND NOTE
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 26
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ONEWEST BANK GETS THE BOOT MERS ASSIGNMENT MAKES NO REFERENCE TO
NOTE
NY SUPREME COURT WELLS FARGO MERS amp STEVEN J BAUM ldquoFATAL
DEFECTrdquo
FDN attorneys Jeff Barnes Esq and Elizabeth Lemoine Esq have
achieved a significant victory in Federal Court in Oregon against
MERS On Tuesday September 28 2010 Mr Barnes and Ms Lemoine
defended and argued Motions to Dismiss the borrowersrsquo lawsuit
challenging a nonjudicial foreclosure The Motions were filed by
the Defendants OneWest Bank and MERS The action was originally
filed in state court where a temporary restraining order was
entered stopping the sale On the eve of the scheduled hearing on
the borrowersrsquo Motion for Preliminary Injunction Defendants
OneWest Bank MERS and Regional Trustee Services removed the
case to Federal Court in an obvious attempt to circumvent the
state court injunction hearing The Federal Court entered an
Injunction and scheduled a hearing on the Motions filed by the
Defendants
During the course of the hearing the Court repeatedly raised the
ldquoMERS as nomineerdquo issues to counsel for the Defendants with said
counsel finally admitting upon repeated inquiry by the Court
that MERS cannot transfer promissory notes The Court denied the
Motions to Dismiss and has by Order commanded the injunction
against the sale to remain in place through the duration of the
borrowersrsquo lawsuit
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
REQUEST FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY
INJUNCTION
Because of the nature of the findings of the listed FACTS I
through FACT VII and lack of truthful evidence leading to these
illegal foreclosure proceedings Plaintiff prays for the Court to
issue a temporary restraining order and a preliminary injunction
against Defendant for any and all claims the Defendants are
pursuing against Plaintiff and Plaintiffrsquos property via Exhibits
(A B C D E and F) thereby causing harm to the Plaintiff
REQUEST FOR PERMANENT INJUNCTION AND REMUNERATION
Because of all of the FACTS and Court case evidence listed in
this complaint Plaintiff demands the Defendants produce the
original NOTE in question to avoid forgery and fraud charges If
NOTE is not produced within 30 days from the delivery and receipt
of the summons upon the Defendant Plaintiff will press forgery
charges pursuant RCW 9A60020 Plaintiff thereby will demand
remuneration of fraudulently collected monies paid to illegally
represented lenders Bank of America FKA Countrywide and interest
at 675 with the total amount of $8775636 + case fees or
Eighty Seven Thousand Seven hundred and fifty six dollars and 36
cents plus case fees to the Defendant who deceived the Plaintiff
by fraudulently claiming to be the legitimate lender trustee
and beneficiary while falsely claiming to hold the NOTE assuming
all assets and liabilities of Countrywide
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
RCW 740020
Grounds for issuance
When it appears by the complaint that the plaintiff is entitled
to the relief demanded and the relief or any part thereof
consists in restraining the commission or continuance of some
act the commission or continuance of which during the litigation
would produce great injury to the plaintiff or when during the
litigation it appears that the defendant is doing
or threatened or is about to do or is procuring or is suffering some act to
be done in violation of the plaintiffs rights respecting the subject of the
action tending to render the judgment ineffectual or where such relief or
any part thereof consists in restraining proceedings upon any final order or
judgment an injunction may be granted to restrain such act or proceedings
until the further order of the court which may afterwards be dissolved or
modified upon motion And where it appears in the complaint at the
commencement of the action or during the pendency thereof by affidavit that
the defendant threatens or is about to remove or dispose of his property with
intent to defraud his creditors a temporary injunction may be granted to
restrain the removal or disposition of his property
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 29
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
BySamuel Salmon 917C Philpott Rd Colville WA 99114
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
as beneficiary on Exhibits (AB and D) is a wholly owned
subsidiary of MERSCorp Inc MersCorp was created in the early
1990rsquos by the former CEOrsquos of Fannie Mae Freddie Mac Indy
Mac Countrywide Stewart Title Insurance and the American Land
Title Association MERSrsquo principal place of business at 1595
Spring Hill Road Suite 310 Vienna Virginia 22182 MERSrsquo
national data center is located in Plano Texas
Individual Defendants
R K Arnold President and CEO Mortgage Electronic Registration
Systems Inc
FACT I
On October 19 2007 Plaintiffs Samuel Salmon and Roxy E Salmon
executed a promissory note in the original principal amount of
$40942253 for the purchase of their home The Note was made
payable to Countrywide Bank The Note was secured by a Deed of
Trust on the home The Deed of Trust identifies the beneficiary
as ldquoMortgage Electronic Registration Systems Inc (lsquoMERSrsquo)rdquo and
states that ldquoMERS is a separate corporation that is acting solely
as nominee for Lender and Lenderrsquos successors and assignsrdquo The
ldquoLenderrdquo is identified as Countrywide Bank The Trustee is
identified as ldquoLandsafe Title of Washingtonrdquo
Landsafe Title of Washington was a subsidiary of Countrywide
Bank as stated on Securities Information website from the SEC
EDGAR database httpwwwsecinfocomdxj8536htm1stPage
which makes Landsafe Title of Washington the original Trustee
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
fiducially responsible to and or an associate of Countrywide
Bank which nullifies this Deed of Trust Exhibits (AampB) as a
binding legal document pursuant to
RCW 6124010 (3) and RCW 6124020
RCW 6124010 (3) The trustee or successor trustee shall have no
fiduciary duty or fiduciary obligation to the grantor or other
persons having an interest in the property subject to the deed of
trust
RCW 6124020 ldquoNo person corporation or association may be both
trustee and beneficiary under the same deed of trustrdquo
FACT II
When Countrywide Bank went out of business for predatory lending
the beneficiary MERS or the trustee Landsafe Title of Washington
never did record the trustee resignation violating RCW 6124010
(2)
Trustee qualifications mdash Successor trustee
(2) The trustee may resign at its own election or be replaced by
the beneficiary The trustee shall give prompt written notice of
its resignation to the beneficiary The resignation of the
trustee shall become effective upon the recording of the notice
of resignation in each county in which the deed of trust is
recorded If a trustee is not appointed in the deed of trust or
upon the resignation incapacity disability absence or death
of the trustee or the election of the beneficiary to replace the
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
trustee the beneficiary shall appoint a trustee or a successor
trustee Only upon recording the appointment of a successor
trustee in each county in which the deed of trust is recorded
the successor trustee shall be vested with all powers of an
original trustee
FACT III
On or about April 1 2009 Bank of America declared itself to be
the new Lender by billing the Plaintiffs for the mortgage
payments Bank of America assumed the position of Lender on the
Deed of Trust Exhibits (AampB) although they failed to file the
conveyance promptly with the local Countyrsquos Auditor again
violating RCW 6124010 (2) and also violating 6404010 RCW
6404020 RCW 6508070 thereby nullifying Notice of Default
Exhibit (C) and The ldquoCorporation Assignment of Deed of Trust at
Stevens County Recorders Office Auditors File 2010 0007023rdquo
recorded September 23 2010 Exhibit (D) This alleged assignment
has the same signer for both MERS and Bank of America How does
this work
RCW 6508070
Real property conveyances to be recorded
A conveyance of real property when acknowledged by the person
executing the same (the acknowledgment being certified as
required by law) may be recorded in the office of the recording
officer of the county where the property is situated Every such
conveyance not so recorded is void as against any subsequent
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 8
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2
3
4
5
6
7
8
9
10
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22
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purchaser or mortgagee in good faith and for a valuable
consideration from the same vendor his heirs or devisees of the
same real property or any portion thereof whose conveyance is
first duly recorded An instrument is deemed recorded the minute
it is filed for record
FACT IV
Before a conveyance was ever assigned by the Defendants a
ldquoNotice of Defaultrdquo was issued by Bank of America on the
Plaintiffs real property located at 917 A PHILPOTT ROAD COLVILLE
WA 99114 post marked September 02 2010 Exhibit (C) At a later
date Exhibit (D) the ldquoCorporation Assignment of Deed of Trust
was filed at Stevens County Recorders Office Auditors File 2010
0007023rdquo recorded September 23 2010 This filing of Exhibit (D)
was filed over a year after the Defendant Bank of America
falsely identified their self as owner of the loan on April 1
2009 and fraudulently collected payments on said promissory note
which is in violation of again stated RCW 6124010 (2) and also
violating 6404010 RCW 6404020RCW 6508070
RCW 6404010
Conveyances and encumbrances to be by deed
Every conveyance of real estate or any interest therein and
every contract creating or evidencing any encumbrance upon real
estate shall be by deed PROVIDED That when real estate or any
interest therein is held in trust the terms and conditions of
which trust are of record and the instrument creating such trust
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 9
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2
3
4
5
6
7
8
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10
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20
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25
authorizes the issuance of certificates or written evidence of
any interest in said real estate under said trust and authorizes
the transfer of such certificates or evidence of interest by
assignment by the holder thereof by a simple writing or by
endorsement on the back of such certificate or evidence of
interest or delivery thereof to the vendee such transfer shall
be valid and all such assignments or transfers hereby authorized
and heretofore made in accordance with the provisions of this
section are hereby declared to be legal and valid
RCW 6404020
Requisites of a deed
Every deed shall be in writing signed by the party bound
thereby and acknowledged by the party before some person
authorized by this act to take acknowledgments of deeds
FACT V
Plaintiff affirms that According to (Exhibit D) the Corporation
Assignment of Deed of Trust on filed under the authority of
Stevens County Auditor in Stevens County WA that MERS Bank of
America and Recontrust are not legally qualified as a Lender or
Trustee and or the Beneficiary pursuant to RCW 6124010 (3)
(4) and RCW 6124020 as the Trustee ldquoRecontrust Company NA
is a wholly-owned subsidiary of Bank of Americardquo (this statement
is found on the Recontrust web site home page) Therefore
Recontrust is associated with and is fiducially responsible
entirely to the alleged Lender Bank of America
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 10
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2
3
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7
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9
10
11
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13
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20
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22
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25
RCW 6124010 (3) (4)
Trustee qualifications mdash Successor trustee
(3) The trustee or successor trustee shall have no fiduciary
duty or fiduciary obligation to the grantor or other persons
having an interest in the property subject to the deed of trust
(4) The trustee or successor trustee has a duty of good
faith to the borrower beneficiary and grantor
RCW 6124020
ldquoNo person corporation or association may be both trustee and
beneficiary under the same deed of trustrdquo
FACT VI
The Plaintiff asserts that the Note and Deed of Trust were not
properly assigned to the defendant Bank of America and therefore
has not proven its self as the Legal holder of the Note and Deed
of Trust therefore it lacks standing to enforce any claim on
said property For the reasons that follow the Plaintiff finds
that the Defendant has not proven that it is the holder of the
original Note pursuant to RCW 6124030(7)(aampb) and RCW
6124010 (4)
RCW 6124030
(7) (a) That for residential real property before the notice
of trustees sale is recorded transmitted or served the
trustee shall have proof that the beneficiary is the owner of any
promissory note or other obligation secured by the deed of trust
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 11
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2
3
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6
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15
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20
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25
A declaration by the beneficiary made under the penalty of
perjury stating that the beneficiary is the actual holder of the
promissory note or other obligation secured by the deed of trust
shall be sufficient proof as required under this subsection
(7) (b) Unless the trustee has violated his or her duty under
RCW 6124010(4) the trustee is entitled to rely on the
beneficiarys declaration as evidence of proof required under
this subsection
6124010 (4) The trustee or successor trustee has a duty of good
faith to the borrower beneficiary and grantor
Statement
Any proof of Note possession offered by the trustee or
beneficiary other than the production of the actual original Note
is not acceptable due to said Trustee Lender and Beneficiary
violations of stated RCWrsquos therefore it lacks standing to issue
any claim on Plaintiffs property
FACT VII
The Plaintiff affirms that according to the alleged trusteersquos
records and Plaintiffs phone Conversation with Recontrust it
does not have a physical street address in the state of
Washington which is in violation of RCW 6124030 (6)
RCW 6124030 (6)
(6) That prior to the date of the notice of trustees sale and
continuing thereafter through the date of the trustees sale the
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 12
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2
3
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trustee must maintain a street address in this state where
personal service of process may be made and the trustee must
maintain a physical presence and have telephone service at such
address
FACT VIII
The Deed of Trust contains false representation on its face when
it represented that MERS was a beneficiary under the Deed of
Trust which states that ldquoMERS is a separate corporation that is
acting solely as a Nominee for Lender and Lenderrsquos successors and
assigns MERS as the beneficiary under this Security Instrumentrdquo
MERS is NOT the beneficiary under the Deed of Trust it never had
ownership or possession of the Promissory Note which is the
obligation which is secured by the Deed of Trust and MERS has
never been entitled to receive one cent of remuneration from the
Plaintiffrsquos loan proceeds The statement that MERS is the nominee
is nonsensical language which means nothing in a real estate
transaction and most certainly MERS has never been nor is it now
the beneficiary under the Deed of Trust The language is a sham
MERS is a wholly owned subsidiary of MersCorp Inc MERS has no
interest in the NOTE the LOAN or the REAL PROPERTY therefore
has no authority to transfer the NOTE as a nominee pursuant to
RCW 6124005 (2)
(2) Beneficiary means the holder of the instrument or document
evidencing the obligations secured by the deed of trust
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 13
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2
3
4
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6
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8
9
10
11
12
13
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25
excluding persons holding the same as security for a different
obligation
FACT IX
Plaintiff has proven the Trustee Lender and Beneficiary are
illegal in this entire loan process Plaintiff does not recognize
any authority the alleged Claimants or Defendants are making on
Plaintiffs real property as the Deed of Trust is in itself
entirely invalid and the only security for the Note Plaintiff
demands the Defendant produce the original Note with the proper
endorsements for all transfers required by law pursuant RCW
62A3-203 to be submitted for inspection and verification by a
court appointed expert pursuant to RCW 6124030 (6) and (7) (a)
(b) Until then the copy or forgery of the NOTE which was
included with Notice of Trustee sale is not sufficient to
validate any claim Made by the Defendant on the Plaintiffs
possessions and is in violation of Washington forgery laws
pursuant RCW 62A5-109 RCW 1037080 RCW 9A56320 and RCW
9A60020
RCW 9A60020
(1) A person is guilty of forgery if with intent to injure or
defraud
(a) He falsely makes completes or alters a written
instrument or
(b) He possesses utters offers disposes of or puts off
as true a written instrument which he knows to be forged
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 14
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6
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9
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(2) In a proceeding under this section that is related to an
identity theft under RCW 935020 the crime will be considered
to have been committed in any locality where the person whose
means of identification or financial information was appropriated
resides or in which any part of the offense took place
regardless of whether the defendant was ever actually in that
locality
(3) Forgery is a class C felony
CASE EVIDENCE FOR FACT VIII AND FACT IX
MERS important case reference and commentary
MERS v Nebraska Dept of Banking and Finance ndash State Appellate
MERS demands to be recognized as having no actionable interest in
title 2005 Cite as 270 Neb 529
Merscorp Inc et al Respondents v Edward P Romaine amp c
et al Appellants et al Defendant the fact that the Mortgage
and Deed of Trust are separated is recognized (concurring
opinion) While affirming MERS could enter in the records as
ldquonomineerdquo the court recognized many inherent problems Rather
than resolve them they sloughed them off to the legislature
2006
The Boyko Decision -Federal District Judge Christopher Boyko of
the Eastern Division of the Northern District of Ohio Federal
Court overturns 14 foreclosure actions with a well reasoned
opinion outlining the failure of the foreclosing party to prove
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 15
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standing This decision started the movement of challenging the
standing of the foreclosing party Oct 2007
Landmark National Bank v Kesler ndash KS State Supreme Court ndash MERS
has no standing to foreclose and is in fact a straw man Oct
2009
The importance of the findings of the Supreme Court of Kansas
cannot be overemphasized It is generally the law in all states
that if the law of one state has not specifically addressed a
specific legal issue that the court may look to the law of states
which have The Kansas Court acknowledged that the case was one
of ldquofirst impression in Kansasrdquo which is why the Kansas Court
looked to legal decisions from California Idaho New York
Missouri and other states for guidance and to support its
decision As we have previously reported the Ohio Courts have
looked to the legal decisions of New York to resolve issues in
foreclosure defense most notably issues of standing to institute
a foreclosure
It is practically certain that this decision will be the subject
of review by various courts MERS has already threatened a
ldquosecond appealrdquo (by requesting ldquoreconsiderationrdquo by the Supreme
Court of Kansas of its decision by the entire panel of Judges in
that Court) However for now the decision stands which
decision is of monumental importance for borrowers It thus
appears that the tide is finally starting to turn and that the
courts are beginning to recognize the extent of the wrongful
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 16
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2
3
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5
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8
9
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practices and fraud perpetrated by ldquolendersrdquo and MERS upon
borrowers which conduct was engaged in for the sole purpose of
greed and profit for the ldquolendersrdquo and their ilk at the expense
of borrowers
MERS Inc Appellant v Southwest Homes of Arkansas Appellee The
second State Supreme Court ruling ndash AR 2009
BAC v US Bank ndash FL Appellate court upholds the concept of
determining the standing of the foreclosing party before allowing
summary judgement All cases in FL must now go through this
process 2007
Wells Fargo NAS v Farmer Motion to vacate in Supreme Court Kings
County NY 2009
In Re Joshua amp Stephanie Mitchell ndash US Federal Bankruptcy Court
NV 2009
In Re Wilhelm et al Case No 08-20577-TLM (opinion of Hon
Terry L Myers Chief US Bankruptcy Judge July 9 2009) ndash
Chief US Bankruptcy Judge ID ndash MERS by its construction
separates the Deed from the Mortgage
MERS v Johnston ndash Vermont Superior Court Decision
Wells Fargo v Jordon ndash OH Appellate Court
Weingartner et al v Chase Home Finance et al ndash US District Court
Schneider et al v Deutsche Bank et al (FL) Class action suit
(the filing) seeking to recover actual and statutory damages for
violations of the foreclosure process Provides an excellent
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 17
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11
12
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description of the securitization process and the problems with
assignments
JP Morgan Chase v New Millenial et al ndash FL Appellate which
clearly demonstrates the chaos which can ensue when there is a
failure to register changes of ownership at the county recorderrsquos
office Everyone operates in good faith then out of nowhere
someone shows up waving a piece of paper The MERS system while
not explicitly named is clearly the culprit of the chaos 2009
In Re Walker Case No 10-21656-E-11 ndash Eastern District of CA
Bankruptcy court rules MERS has NO actionable interest in title
ldquoAny attempt to transfer the beneficial interest of a trust deed
without ownership of the underlying note is void under California
lawrdquo ldquoMERS could not as a matter of law have transferred the
note to Citibank from the original lender Bayrock Mortgage
Corprdquo The Courtrsquos opinion is headlined stating that MERS and
Citibank are not the real parties in interest
In re Vargas 396 BR at 517-19 Judge Bufford made a finding
that the witness called to testify as to debt and default was
incompetent All the witness could testify was that he had looked
at the MERS computerized records The witness was unable to
satisfy the requirements of the Federal Rules of Evidence
particularly Rule 803 as applied to computerized records in the
Ninth Circuit See id at 517-20 The low level employee could
really only testify that the MERS screen shot he reviewed
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 18
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reflected a default That really is not much in the way of
evidence and not nearly enough to get around the hearsay rule
In Re Joshua and Stephanie Mitchell Case No BK-S-07-16226-
LBR [US Bankruptcy Court District of Nevada Memorandum
Opinion of August 19 2008] Federal Court in Nevada attacked
MERSrsquo purported ldquoauthorityrdquo finding that there was no evidence
that MERS was the agent of the notersquos holder
Mortgage Electronic Registration Systems Inc v Girdvainis
Sumter County South Carolina Court of Common Pleas Case No
2005-CP-43-0278 (Order dated January 19 2006 citing to the
representations of MERS and court findings in Mortgage Electronic
Registration Systems Inc v Nebraska Dept of Banking and
Finance 270 Neb 529 704 NW 2d 784) As such ALL MERS
assignments are suspect at best and may in fact be fraudulent
The Court of Common Pleas of Sumter County South Carolina also
found that MERSrsquo rights were not as they were represented to be
that MERS had no rights to collect on any debt because it did not
extend any credit none of the borrowers owe MERS any money that
MERS does not own the promissory notes secured by the mortgages
and that MERS does not acquire any loan or extension of credit
secured by a lien on real property
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC v SAUNDERS 2010
ME 79 Docket Cum-09-640Supreme Judicial Court of
Maine | Ordered dated August 12 2010 We conclude that although
MERS is not in fact a ldquomortgageerdquo within the meaning of our
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 19
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2
3
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6
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foreclosure statute 14 MRS sectsect 6321-6325 and therefore had no
standing to institute foreclosure proceedings the real party in
interest was the Bank and the court did not abuse its discretion
by substituting the Bank for MERS Because however the Bank was
not entitled to summary judgment as a matter of law we vacate
the judgment and remand for further proceedings
MERS lsquoAGENTrsquo PREVIOUS MTG FRAUD SCHEME| Mortgage Electronic
Registration Systems Inc v Folkes 2010 NY Slip Op 32007 ndash NY
Supreme Court The settlement agent on all of the MERS documents
was listed as Peter Port Esq undeniably plaintiffs agent
According to an affidavit with documents attached from Ms
Nichole M Orr identified as an Assistant Vice President and
Senior Operational Risk Specialist for Bank of America Home
Loans the successor-in-interest to plaintiff Americarsquos Wholesale
Lender (April 1 2010)[1] certain wire transfers were made on
November 23 2004 to Mr Port The money appears to have come
from an account with JP Morgan but one of the documents also
shows inexplicably that Mr Port then sent $43506773 of this
money to Cheron A Ramphal at 14917 Motley Road Silver Springs
MD It should also be noted as it was in the decision of
February 5 2008 by Judge Payne that Mr Port pled guilty in
March 2006 in Federal District Court in New Jersey to providing
false documents in a scheme to commit mortgage fraud
lsquoNO PROOFrsquo MERS assigned BOTH Mortgage and NOTE to HSBC|HSBC
Bank etc v Miller et al The ldquoAssignment of Mortgagerdquo which
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 20
1
2
3
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is attached as exhibit E to the opposition papers makes no
reference to the note and only makes reference to the mortgage
being assigned The Assignment has a vague reference to note
wherein it states that ldquothe said assignor hereby grants and
conveys unto the said assignee the assignorrsquos beneficial
interest under the mortgage ldquobut this is the only language in
the Assignment which could possibly be found to refer to the
note
Contrary to the affirmation of Ms Szeliga in which she
represented in paragraph 17 that there was language in the
assignment which specifically referred to the note the
assignment in this case does not contain dega specific reference to
the Note
In light of the foregoing the Court is satisfied that there is
insufficient proof to establish that both the note and the
mortgage have been assigned to the Plaintiff and therefore it
is hereby ORDERED that the Plaintiff has no standing to maintain
the foreclosure action and it is further ORDERED that the
application of Defendant Jeffrey F Miller to dismiss is
granted without prejudice to renew upon proof of a valid
assignment of the note
UNION BANK CO v NORTH CAROLINA FURNITURE EXPRESS LLC MERS
lsquoGETS FORECLOSEDrsquo| ASSIGNS NADA TO BAC fka COUNTRYWIDE OHIO COURT
OF APPEAL While an assignment typically transfers the lien of
the mortgage on the property described in the mortgage as BAC
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 21
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2
3
4
5
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9
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20
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25
acknowledged in its reply brief an assignee can only take and
the assignor can only give the interest currently held by the
assignor RC 530131 With that stated it is clear under the
facts of this case that BAC never obtained an interest in the
property thus it could not have been substituted as a party-
defendant in the 2008 foreclosure action Here with respect to
the 2008 foreclosure action the date the last party was served
with notice was on January 28 2009 which was almost six
months before the purported assignment from MERS to BAC Next on
March 11 2009 the trial court issued a judgment entry of
default against MERS foreclosing on its interest in the property
Once again this default judgment was entered against MERS almost
three months before the purported assignment from MERS to BAC
occurred The effect of this default judgment against MERS
resulted in MERS having ldquono interest in and to said premises and
the equity of redemption of said Defendants in the real estate
described in Plaintiffrsquos Complaint shall be forever cut off
barred and foreclosedrdquo (2008 CV 0267 Mar 10 2009 JE)
Nevertheless according to the documents filed by BAC to evidence
its assignment from MERS MERS assigned its interest to BAC on
June 1 2009 (2009 CV 312 Oct 7 2009 JE Ex A)
Consequently as a result of the already entered default judgment
against MERS when BAC was assigned MERSrsquo interest in the
property on June 1 2009 BAC did not receive a viable interest
in the property See Quill v Maddox (May 31 2002) 2nd Dist
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 22
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
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20
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25
No 19052 at 2 (mortgageersquos assignee failed to establish that
it had an interest in the property as mortgageersquos interest was
foreclosed by the court before mortgagee assigned its interest to
assignee which could acquire no more interest than mortgagee
held) Thus we find that it was reasonable for the trial court
to have denied the motion to substitute BAC as a party-defendant
for MERS given its lack of interest in the property
HSBC v Thompson HSBCrsquos Irregularities Mortgage Documentation
and Corporate Relationships with Ocwen MERS and Delta Even if
HSBC had provided support for the proposition that ownership of
the note is not required the evidence about the assignment is
not properly before us The alleged mortgage assignment is
attached to the rejected affidavits of Neil Furthermore even if
we were to consider this ldquoevidencerdquo the mortgage assignment from
MERS to HSBC indicates that the assignment was prepared by Ocwen
for MERS and that Ocwen is located at the same Palm Beach
Florida address mentioned in Charlevagne and Antrobus See
Exhibit 3 attached to the affidavit of Chomie Neil In addition
Scott Anderson who signed the assignment as Vice-President of
MERS appears to be the same individual who claimed to be both
Vice-President of MERS and Vice-President of
Ocwen See Antrobus 2008 WL 2928553 4 and Charlevagne 2008
WL 2954767 1
MERS v TORR NY JUDGE SPINNER DENIES Deutsche amp MERS for NOT
Recording Mortgage Make up Affidavit and Assignment MERS lsquoQUIET
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 23
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2
3
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5
6
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9
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TITLErsquo FAIL To establish a claim of lien by a lost mortgage
there must be certain evidence (es) demonstrating that the
mortgage was properly executed with all the formalities required
by law andproof of the contents (es) of such instrument hellip Here
Burnettrsquos affidavit simply states that the original mortgage is
not in Deutsch Bankrsquos files and that he is advised (es) that
the title company is out of business Burnett gives no specifics
as to what efforts were made to locate the lost mortgagehellip More
importantly there is no affidavit from MLN by an individual with
personal knowledge of the facts that the complete file concerning
this mortgage was transferred to Deutsch Bank and that the copy
of the mortgage submitted to the court is an authentic copy of
Torrrsquos Mortgagerdquo (es)
LPP MORTGAGE v SABINE PROPERTIES FINAL DISPOSITION| NO Evidence
lsquoMERSrsquo Owned The NOTE Could NOT ASSIGN IT NY SUPREME COURT
FINAL DISPOSITION
Here there are no allegations or evidence that MERS was the
owner of the note such that it could assign it to LPP Thus the
assignment from MERS was insufficient to confer ownership of the
note to LPP and it has no standing to bring this action Kluge v
F umz ~1 45 AD2d at 538 (holding that the assignment of a
mortgage without transfer of the debt is a nullity) Johnson v
Melnikoff 20 Misc3d 1142(A) ldquo2 (Sup Ct Kings Co 2008) n 2
afr 65 AD3d 519 (2d Dept 20 1 Oj(noting that assignments by MERS
which did not include the underlying debt were a legal nullity)
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
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17
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20
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22
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25
m e Elect ro pic Registration Svstem v Coakley 41 AD3d 674 (2d
Dept 2007)(holding that MERS had standing to bring foreclosure
proceeding based on evidence that MERS was the lawful holder of
the promissory note and the mortgage)
Thus even assuming arguendo that the language of the assignment
from MERS to LPP could be interpreted as purporting to assign not
only the mortgage but also the note such assignment is invalid
since based on the record MERS lacked an ownership interest in
the note $ee LaSalle Bank Nat Assrsquon v Lamv 12 Misc3d 1191(A)
ldquo3 (Sup Ct Suffolk Co 2006) (noting that ldquothe mortgage is merely
an incident of and collateral security for the debt and an
assignment of the mortgage does not pass ownership of the debt
itself rsquo)
WACHOVIA BANK NATIONAL ASSOCIATION against ndashSTUART BRENNER et
aI Defendantrsquo s answer contains a defense of ldquolack of
standingrdquo Plaintiff has failed to establish it was the holder of
the note and the mortgage securing it when the action was
commenced In that regard plaintiff relies on an undated
assignment of the mortgage by MERS as nominee acknowledged by a
Texas notary on July 18 2009 The note sued on does not contain
an indication it has been negotiated The undated assignment by
MERS contains a provision at the assignment of the mortgage is
ldquoTOGETHER with the notes described in said mortgagerdquo The record
before me is devoid of proof that MERS as nominee for purposes of
recording had authority to assign the mortgage However assuming
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 25
1
2
3
4
5
6
7
8
9
10
11
12
13
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25
it had such authority since it is a party to the mortgage and
such authority might be implied there has been a complete
failure to establish MERS as a non-party to the note to
negotiate its transfer A transfer of the note effects a transfer
of the mortgage MERS vs Coakley 41 AD3 674) the assignment of
a mortgage without a valid transfer of the mortgage note is a
nullity(Kluge vs Fugazv 145 AD2 537)
Following are more cases from THE NEW YORK SUPREME COURThellip
JUDGE SCHACK BLOWS lsquoMERSrsquo and Bank Of New York (BNY) OUT THE
DOOR
WM SPECIALTY MORTGAGE v JORGE RAMIREZ NO PROOF MERS OWNED THE
MORTGAGE AND NOTE
MERS v MAHENDRA RAMDOOLAR MERS IN NOT THE OWNER OF SUBJECT
MORTGAGE AND NOTE
HOLY COW MERS v MERS NO EVIDENCE IT HAD THE MORTGAGE AND NOTE
MERS V THOMAS STANDFORD MERS DOES NOT OWN MORTGAGE AND NOTE
MERS V GAIL PALMORE-ARCHER MERS DOES NOT OWN MORTGAGE AND NOTE
In the Matter of the Foreclosure of Tax Liens MERS GETS CHEWED
UP
BANK OF NEW YORK V JOSEPH CERULLO MERS NOT OWNER AND HOLDER OF
NOTE MORTGAGE
HSBC V HENRY FELD MERS NOT HOLDER OWNER OF NOTE
THE BANK OF NY MELLON V RICHARD BUSTRUC MERS IS NOT OWNER HOLDER
OF MORTGAGE AND NOTE
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 26
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ONEWEST BANK GETS THE BOOT MERS ASSIGNMENT MAKES NO REFERENCE TO
NOTE
NY SUPREME COURT WELLS FARGO MERS amp STEVEN J BAUM ldquoFATAL
DEFECTrdquo
FDN attorneys Jeff Barnes Esq and Elizabeth Lemoine Esq have
achieved a significant victory in Federal Court in Oregon against
MERS On Tuesday September 28 2010 Mr Barnes and Ms Lemoine
defended and argued Motions to Dismiss the borrowersrsquo lawsuit
challenging a nonjudicial foreclosure The Motions were filed by
the Defendants OneWest Bank and MERS The action was originally
filed in state court where a temporary restraining order was
entered stopping the sale On the eve of the scheduled hearing on
the borrowersrsquo Motion for Preliminary Injunction Defendants
OneWest Bank MERS and Regional Trustee Services removed the
case to Federal Court in an obvious attempt to circumvent the
state court injunction hearing The Federal Court entered an
Injunction and scheduled a hearing on the Motions filed by the
Defendants
During the course of the hearing the Court repeatedly raised the
ldquoMERS as nomineerdquo issues to counsel for the Defendants with said
counsel finally admitting upon repeated inquiry by the Court
that MERS cannot transfer promissory notes The Court denied the
Motions to Dismiss and has by Order commanded the injunction
against the sale to remain in place through the duration of the
borrowersrsquo lawsuit
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
REQUEST FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY
INJUNCTION
Because of the nature of the findings of the listed FACTS I
through FACT VII and lack of truthful evidence leading to these
illegal foreclosure proceedings Plaintiff prays for the Court to
issue a temporary restraining order and a preliminary injunction
against Defendant for any and all claims the Defendants are
pursuing against Plaintiff and Plaintiffrsquos property via Exhibits
(A B C D E and F) thereby causing harm to the Plaintiff
REQUEST FOR PERMANENT INJUNCTION AND REMUNERATION
Because of all of the FACTS and Court case evidence listed in
this complaint Plaintiff demands the Defendants produce the
original NOTE in question to avoid forgery and fraud charges If
NOTE is not produced within 30 days from the delivery and receipt
of the summons upon the Defendant Plaintiff will press forgery
charges pursuant RCW 9A60020 Plaintiff thereby will demand
remuneration of fraudulently collected monies paid to illegally
represented lenders Bank of America FKA Countrywide and interest
at 675 with the total amount of $8775636 + case fees or
Eighty Seven Thousand Seven hundred and fifty six dollars and 36
cents plus case fees to the Defendant who deceived the Plaintiff
by fraudulently claiming to be the legitimate lender trustee
and beneficiary while falsely claiming to hold the NOTE assuming
all assets and liabilities of Countrywide
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
RCW 740020
Grounds for issuance
When it appears by the complaint that the plaintiff is entitled
to the relief demanded and the relief or any part thereof
consists in restraining the commission or continuance of some
act the commission or continuance of which during the litigation
would produce great injury to the plaintiff or when during the
litigation it appears that the defendant is doing
or threatened or is about to do or is procuring or is suffering some act to
be done in violation of the plaintiffs rights respecting the subject of the
action tending to render the judgment ineffectual or where such relief or
any part thereof consists in restraining proceedings upon any final order or
judgment an injunction may be granted to restrain such act or proceedings
until the further order of the court which may afterwards be dissolved or
modified upon motion And where it appears in the complaint at the
commencement of the action or during the pendency thereof by affidavit that
the defendant threatens or is about to remove or dispose of his property with
intent to defraud his creditors a temporary injunction may be granted to
restrain the removal or disposition of his property
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 29
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
BySamuel Salmon 917C Philpott Rd Colville WA 99114
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
fiducially responsible to and or an associate of Countrywide
Bank which nullifies this Deed of Trust Exhibits (AampB) as a
binding legal document pursuant to
RCW 6124010 (3) and RCW 6124020
RCW 6124010 (3) The trustee or successor trustee shall have no
fiduciary duty or fiduciary obligation to the grantor or other
persons having an interest in the property subject to the deed of
trust
RCW 6124020 ldquoNo person corporation or association may be both
trustee and beneficiary under the same deed of trustrdquo
FACT II
When Countrywide Bank went out of business for predatory lending
the beneficiary MERS or the trustee Landsafe Title of Washington
never did record the trustee resignation violating RCW 6124010
(2)
Trustee qualifications mdash Successor trustee
(2) The trustee may resign at its own election or be replaced by
the beneficiary The trustee shall give prompt written notice of
its resignation to the beneficiary The resignation of the
trustee shall become effective upon the recording of the notice
of resignation in each county in which the deed of trust is
recorded If a trustee is not appointed in the deed of trust or
upon the resignation incapacity disability absence or death
of the trustee or the election of the beneficiary to replace the
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
trustee the beneficiary shall appoint a trustee or a successor
trustee Only upon recording the appointment of a successor
trustee in each county in which the deed of trust is recorded
the successor trustee shall be vested with all powers of an
original trustee
FACT III
On or about April 1 2009 Bank of America declared itself to be
the new Lender by billing the Plaintiffs for the mortgage
payments Bank of America assumed the position of Lender on the
Deed of Trust Exhibits (AampB) although they failed to file the
conveyance promptly with the local Countyrsquos Auditor again
violating RCW 6124010 (2) and also violating 6404010 RCW
6404020 RCW 6508070 thereby nullifying Notice of Default
Exhibit (C) and The ldquoCorporation Assignment of Deed of Trust at
Stevens County Recorders Office Auditors File 2010 0007023rdquo
recorded September 23 2010 Exhibit (D) This alleged assignment
has the same signer for both MERS and Bank of America How does
this work
RCW 6508070
Real property conveyances to be recorded
A conveyance of real property when acknowledged by the person
executing the same (the acknowledgment being certified as
required by law) may be recorded in the office of the recording
officer of the county where the property is situated Every such
conveyance not so recorded is void as against any subsequent
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 8
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
purchaser or mortgagee in good faith and for a valuable
consideration from the same vendor his heirs or devisees of the
same real property or any portion thereof whose conveyance is
first duly recorded An instrument is deemed recorded the minute
it is filed for record
FACT IV
Before a conveyance was ever assigned by the Defendants a
ldquoNotice of Defaultrdquo was issued by Bank of America on the
Plaintiffs real property located at 917 A PHILPOTT ROAD COLVILLE
WA 99114 post marked September 02 2010 Exhibit (C) At a later
date Exhibit (D) the ldquoCorporation Assignment of Deed of Trust
was filed at Stevens County Recorders Office Auditors File 2010
0007023rdquo recorded September 23 2010 This filing of Exhibit (D)
was filed over a year after the Defendant Bank of America
falsely identified their self as owner of the loan on April 1
2009 and fraudulently collected payments on said promissory note
which is in violation of again stated RCW 6124010 (2) and also
violating 6404010 RCW 6404020RCW 6508070
RCW 6404010
Conveyances and encumbrances to be by deed
Every conveyance of real estate or any interest therein and
every contract creating or evidencing any encumbrance upon real
estate shall be by deed PROVIDED That when real estate or any
interest therein is held in trust the terms and conditions of
which trust are of record and the instrument creating such trust
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 9
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
authorizes the issuance of certificates or written evidence of
any interest in said real estate under said trust and authorizes
the transfer of such certificates or evidence of interest by
assignment by the holder thereof by a simple writing or by
endorsement on the back of such certificate or evidence of
interest or delivery thereof to the vendee such transfer shall
be valid and all such assignments or transfers hereby authorized
and heretofore made in accordance with the provisions of this
section are hereby declared to be legal and valid
RCW 6404020
Requisites of a deed
Every deed shall be in writing signed by the party bound
thereby and acknowledged by the party before some person
authorized by this act to take acknowledgments of deeds
FACT V
Plaintiff affirms that According to (Exhibit D) the Corporation
Assignment of Deed of Trust on filed under the authority of
Stevens County Auditor in Stevens County WA that MERS Bank of
America and Recontrust are not legally qualified as a Lender or
Trustee and or the Beneficiary pursuant to RCW 6124010 (3)
(4) and RCW 6124020 as the Trustee ldquoRecontrust Company NA
is a wholly-owned subsidiary of Bank of Americardquo (this statement
is found on the Recontrust web site home page) Therefore
Recontrust is associated with and is fiducially responsible
entirely to the alleged Lender Bank of America
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
RCW 6124010 (3) (4)
Trustee qualifications mdash Successor trustee
(3) The trustee or successor trustee shall have no fiduciary
duty or fiduciary obligation to the grantor or other persons
having an interest in the property subject to the deed of trust
(4) The trustee or successor trustee has a duty of good
faith to the borrower beneficiary and grantor
RCW 6124020
ldquoNo person corporation or association may be both trustee and
beneficiary under the same deed of trustrdquo
FACT VI
The Plaintiff asserts that the Note and Deed of Trust were not
properly assigned to the defendant Bank of America and therefore
has not proven its self as the Legal holder of the Note and Deed
of Trust therefore it lacks standing to enforce any claim on
said property For the reasons that follow the Plaintiff finds
that the Defendant has not proven that it is the holder of the
original Note pursuant to RCW 6124030(7)(aampb) and RCW
6124010 (4)
RCW 6124030
(7) (a) That for residential real property before the notice
of trustees sale is recorded transmitted or served the
trustee shall have proof that the beneficiary is the owner of any
promissory note or other obligation secured by the deed of trust
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 11
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A declaration by the beneficiary made under the penalty of
perjury stating that the beneficiary is the actual holder of the
promissory note or other obligation secured by the deed of trust
shall be sufficient proof as required under this subsection
(7) (b) Unless the trustee has violated his or her duty under
RCW 6124010(4) the trustee is entitled to rely on the
beneficiarys declaration as evidence of proof required under
this subsection
6124010 (4) The trustee or successor trustee has a duty of good
faith to the borrower beneficiary and grantor
Statement
Any proof of Note possession offered by the trustee or
beneficiary other than the production of the actual original Note
is not acceptable due to said Trustee Lender and Beneficiary
violations of stated RCWrsquos therefore it lacks standing to issue
any claim on Plaintiffs property
FACT VII
The Plaintiff affirms that according to the alleged trusteersquos
records and Plaintiffs phone Conversation with Recontrust it
does not have a physical street address in the state of
Washington which is in violation of RCW 6124030 (6)
RCW 6124030 (6)
(6) That prior to the date of the notice of trustees sale and
continuing thereafter through the date of the trustees sale the
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
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20
21
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25
trustee must maintain a street address in this state where
personal service of process may be made and the trustee must
maintain a physical presence and have telephone service at such
address
FACT VIII
The Deed of Trust contains false representation on its face when
it represented that MERS was a beneficiary under the Deed of
Trust which states that ldquoMERS is a separate corporation that is
acting solely as a Nominee for Lender and Lenderrsquos successors and
assigns MERS as the beneficiary under this Security Instrumentrdquo
MERS is NOT the beneficiary under the Deed of Trust it never had
ownership or possession of the Promissory Note which is the
obligation which is secured by the Deed of Trust and MERS has
never been entitled to receive one cent of remuneration from the
Plaintiffrsquos loan proceeds The statement that MERS is the nominee
is nonsensical language which means nothing in a real estate
transaction and most certainly MERS has never been nor is it now
the beneficiary under the Deed of Trust The language is a sham
MERS is a wholly owned subsidiary of MersCorp Inc MERS has no
interest in the NOTE the LOAN or the REAL PROPERTY therefore
has no authority to transfer the NOTE as a nominee pursuant to
RCW 6124005 (2)
(2) Beneficiary means the holder of the instrument or document
evidencing the obligations secured by the deed of trust
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 13
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
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20
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25
excluding persons holding the same as security for a different
obligation
FACT IX
Plaintiff has proven the Trustee Lender and Beneficiary are
illegal in this entire loan process Plaintiff does not recognize
any authority the alleged Claimants or Defendants are making on
Plaintiffs real property as the Deed of Trust is in itself
entirely invalid and the only security for the Note Plaintiff
demands the Defendant produce the original Note with the proper
endorsements for all transfers required by law pursuant RCW
62A3-203 to be submitted for inspection and verification by a
court appointed expert pursuant to RCW 6124030 (6) and (7) (a)
(b) Until then the copy or forgery of the NOTE which was
included with Notice of Trustee sale is not sufficient to
validate any claim Made by the Defendant on the Plaintiffs
possessions and is in violation of Washington forgery laws
pursuant RCW 62A5-109 RCW 1037080 RCW 9A56320 and RCW
9A60020
RCW 9A60020
(1) A person is guilty of forgery if with intent to injure or
defraud
(a) He falsely makes completes or alters a written
instrument or
(b) He possesses utters offers disposes of or puts off
as true a written instrument which he knows to be forged
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 14
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
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20
21
22
23
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25
(2) In a proceeding under this section that is related to an
identity theft under RCW 935020 the crime will be considered
to have been committed in any locality where the person whose
means of identification or financial information was appropriated
resides or in which any part of the offense took place
regardless of whether the defendant was ever actually in that
locality
(3) Forgery is a class C felony
CASE EVIDENCE FOR FACT VIII AND FACT IX
MERS important case reference and commentary
MERS v Nebraska Dept of Banking and Finance ndash State Appellate
MERS demands to be recognized as having no actionable interest in
title 2005 Cite as 270 Neb 529
Merscorp Inc et al Respondents v Edward P Romaine amp c
et al Appellants et al Defendant the fact that the Mortgage
and Deed of Trust are separated is recognized (concurring
opinion) While affirming MERS could enter in the records as
ldquonomineerdquo the court recognized many inherent problems Rather
than resolve them they sloughed them off to the legislature
2006
The Boyko Decision -Federal District Judge Christopher Boyko of
the Eastern Division of the Northern District of Ohio Federal
Court overturns 14 foreclosure actions with a well reasoned
opinion outlining the failure of the foreclosing party to prove
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 15
1
2
3
4
5
6
7
8
9
10
11
12
13
14
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17
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20
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standing This decision started the movement of challenging the
standing of the foreclosing party Oct 2007
Landmark National Bank v Kesler ndash KS State Supreme Court ndash MERS
has no standing to foreclose and is in fact a straw man Oct
2009
The importance of the findings of the Supreme Court of Kansas
cannot be overemphasized It is generally the law in all states
that if the law of one state has not specifically addressed a
specific legal issue that the court may look to the law of states
which have The Kansas Court acknowledged that the case was one
of ldquofirst impression in Kansasrdquo which is why the Kansas Court
looked to legal decisions from California Idaho New York
Missouri and other states for guidance and to support its
decision As we have previously reported the Ohio Courts have
looked to the legal decisions of New York to resolve issues in
foreclosure defense most notably issues of standing to institute
a foreclosure
It is practically certain that this decision will be the subject
of review by various courts MERS has already threatened a
ldquosecond appealrdquo (by requesting ldquoreconsiderationrdquo by the Supreme
Court of Kansas of its decision by the entire panel of Judges in
that Court) However for now the decision stands which
decision is of monumental importance for borrowers It thus
appears that the tide is finally starting to turn and that the
courts are beginning to recognize the extent of the wrongful
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 16
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
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20
21
22
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25
practices and fraud perpetrated by ldquolendersrdquo and MERS upon
borrowers which conduct was engaged in for the sole purpose of
greed and profit for the ldquolendersrdquo and their ilk at the expense
of borrowers
MERS Inc Appellant v Southwest Homes of Arkansas Appellee The
second State Supreme Court ruling ndash AR 2009
BAC v US Bank ndash FL Appellate court upholds the concept of
determining the standing of the foreclosing party before allowing
summary judgement All cases in FL must now go through this
process 2007
Wells Fargo NAS v Farmer Motion to vacate in Supreme Court Kings
County NY 2009
In Re Joshua amp Stephanie Mitchell ndash US Federal Bankruptcy Court
NV 2009
In Re Wilhelm et al Case No 08-20577-TLM (opinion of Hon
Terry L Myers Chief US Bankruptcy Judge July 9 2009) ndash
Chief US Bankruptcy Judge ID ndash MERS by its construction
separates the Deed from the Mortgage
MERS v Johnston ndash Vermont Superior Court Decision
Wells Fargo v Jordon ndash OH Appellate Court
Weingartner et al v Chase Home Finance et al ndash US District Court
Schneider et al v Deutsche Bank et al (FL) Class action suit
(the filing) seeking to recover actual and statutory damages for
violations of the foreclosure process Provides an excellent
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 17
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
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24
25
description of the securitization process and the problems with
assignments
JP Morgan Chase v New Millenial et al ndash FL Appellate which
clearly demonstrates the chaos which can ensue when there is a
failure to register changes of ownership at the county recorderrsquos
office Everyone operates in good faith then out of nowhere
someone shows up waving a piece of paper The MERS system while
not explicitly named is clearly the culprit of the chaos 2009
In Re Walker Case No 10-21656-E-11 ndash Eastern District of CA
Bankruptcy court rules MERS has NO actionable interest in title
ldquoAny attempt to transfer the beneficial interest of a trust deed
without ownership of the underlying note is void under California
lawrdquo ldquoMERS could not as a matter of law have transferred the
note to Citibank from the original lender Bayrock Mortgage
Corprdquo The Courtrsquos opinion is headlined stating that MERS and
Citibank are not the real parties in interest
In re Vargas 396 BR at 517-19 Judge Bufford made a finding
that the witness called to testify as to debt and default was
incompetent All the witness could testify was that he had looked
at the MERS computerized records The witness was unable to
satisfy the requirements of the Federal Rules of Evidence
particularly Rule 803 as applied to computerized records in the
Ninth Circuit See id at 517-20 The low level employee could
really only testify that the MERS screen shot he reviewed
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
reflected a default That really is not much in the way of
evidence and not nearly enough to get around the hearsay rule
In Re Joshua and Stephanie Mitchell Case No BK-S-07-16226-
LBR [US Bankruptcy Court District of Nevada Memorandum
Opinion of August 19 2008] Federal Court in Nevada attacked
MERSrsquo purported ldquoauthorityrdquo finding that there was no evidence
that MERS was the agent of the notersquos holder
Mortgage Electronic Registration Systems Inc v Girdvainis
Sumter County South Carolina Court of Common Pleas Case No
2005-CP-43-0278 (Order dated January 19 2006 citing to the
representations of MERS and court findings in Mortgage Electronic
Registration Systems Inc v Nebraska Dept of Banking and
Finance 270 Neb 529 704 NW 2d 784) As such ALL MERS
assignments are suspect at best and may in fact be fraudulent
The Court of Common Pleas of Sumter County South Carolina also
found that MERSrsquo rights were not as they were represented to be
that MERS had no rights to collect on any debt because it did not
extend any credit none of the borrowers owe MERS any money that
MERS does not own the promissory notes secured by the mortgages
and that MERS does not acquire any loan or extension of credit
secured by a lien on real property
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC v SAUNDERS 2010
ME 79 Docket Cum-09-640Supreme Judicial Court of
Maine | Ordered dated August 12 2010 We conclude that although
MERS is not in fact a ldquomortgageerdquo within the meaning of our
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 19
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
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22
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24
25
foreclosure statute 14 MRS sectsect 6321-6325 and therefore had no
standing to institute foreclosure proceedings the real party in
interest was the Bank and the court did not abuse its discretion
by substituting the Bank for MERS Because however the Bank was
not entitled to summary judgment as a matter of law we vacate
the judgment and remand for further proceedings
MERS lsquoAGENTrsquo PREVIOUS MTG FRAUD SCHEME| Mortgage Electronic
Registration Systems Inc v Folkes 2010 NY Slip Op 32007 ndash NY
Supreme Court The settlement agent on all of the MERS documents
was listed as Peter Port Esq undeniably plaintiffs agent
According to an affidavit with documents attached from Ms
Nichole M Orr identified as an Assistant Vice President and
Senior Operational Risk Specialist for Bank of America Home
Loans the successor-in-interest to plaintiff Americarsquos Wholesale
Lender (April 1 2010)[1] certain wire transfers were made on
November 23 2004 to Mr Port The money appears to have come
from an account with JP Morgan but one of the documents also
shows inexplicably that Mr Port then sent $43506773 of this
money to Cheron A Ramphal at 14917 Motley Road Silver Springs
MD It should also be noted as it was in the decision of
February 5 2008 by Judge Payne that Mr Port pled guilty in
March 2006 in Federal District Court in New Jersey to providing
false documents in a scheme to commit mortgage fraud
lsquoNO PROOFrsquo MERS assigned BOTH Mortgage and NOTE to HSBC|HSBC
Bank etc v Miller et al The ldquoAssignment of Mortgagerdquo which
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 20
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
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23
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25
is attached as exhibit E to the opposition papers makes no
reference to the note and only makes reference to the mortgage
being assigned The Assignment has a vague reference to note
wherein it states that ldquothe said assignor hereby grants and
conveys unto the said assignee the assignorrsquos beneficial
interest under the mortgage ldquobut this is the only language in
the Assignment which could possibly be found to refer to the
note
Contrary to the affirmation of Ms Szeliga in which she
represented in paragraph 17 that there was language in the
assignment which specifically referred to the note the
assignment in this case does not contain dega specific reference to
the Note
In light of the foregoing the Court is satisfied that there is
insufficient proof to establish that both the note and the
mortgage have been assigned to the Plaintiff and therefore it
is hereby ORDERED that the Plaintiff has no standing to maintain
the foreclosure action and it is further ORDERED that the
application of Defendant Jeffrey F Miller to dismiss is
granted without prejudice to renew upon proof of a valid
assignment of the note
UNION BANK CO v NORTH CAROLINA FURNITURE EXPRESS LLC MERS
lsquoGETS FORECLOSEDrsquo| ASSIGNS NADA TO BAC fka COUNTRYWIDE OHIO COURT
OF APPEAL While an assignment typically transfers the lien of
the mortgage on the property described in the mortgage as BAC
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 21
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
acknowledged in its reply brief an assignee can only take and
the assignor can only give the interest currently held by the
assignor RC 530131 With that stated it is clear under the
facts of this case that BAC never obtained an interest in the
property thus it could not have been substituted as a party-
defendant in the 2008 foreclosure action Here with respect to
the 2008 foreclosure action the date the last party was served
with notice was on January 28 2009 which was almost six
months before the purported assignment from MERS to BAC Next on
March 11 2009 the trial court issued a judgment entry of
default against MERS foreclosing on its interest in the property
Once again this default judgment was entered against MERS almost
three months before the purported assignment from MERS to BAC
occurred The effect of this default judgment against MERS
resulted in MERS having ldquono interest in and to said premises and
the equity of redemption of said Defendants in the real estate
described in Plaintiffrsquos Complaint shall be forever cut off
barred and foreclosedrdquo (2008 CV 0267 Mar 10 2009 JE)
Nevertheless according to the documents filed by BAC to evidence
its assignment from MERS MERS assigned its interest to BAC on
June 1 2009 (2009 CV 312 Oct 7 2009 JE Ex A)
Consequently as a result of the already entered default judgment
against MERS when BAC was assigned MERSrsquo interest in the
property on June 1 2009 BAC did not receive a viable interest
in the property See Quill v Maddox (May 31 2002) 2nd Dist
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 22
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
No 19052 at 2 (mortgageersquos assignee failed to establish that
it had an interest in the property as mortgageersquos interest was
foreclosed by the court before mortgagee assigned its interest to
assignee which could acquire no more interest than mortgagee
held) Thus we find that it was reasonable for the trial court
to have denied the motion to substitute BAC as a party-defendant
for MERS given its lack of interest in the property
HSBC v Thompson HSBCrsquos Irregularities Mortgage Documentation
and Corporate Relationships with Ocwen MERS and Delta Even if
HSBC had provided support for the proposition that ownership of
the note is not required the evidence about the assignment is
not properly before us The alleged mortgage assignment is
attached to the rejected affidavits of Neil Furthermore even if
we were to consider this ldquoevidencerdquo the mortgage assignment from
MERS to HSBC indicates that the assignment was prepared by Ocwen
for MERS and that Ocwen is located at the same Palm Beach
Florida address mentioned in Charlevagne and Antrobus See
Exhibit 3 attached to the affidavit of Chomie Neil In addition
Scott Anderson who signed the assignment as Vice-President of
MERS appears to be the same individual who claimed to be both
Vice-President of MERS and Vice-President of
Ocwen See Antrobus 2008 WL 2928553 4 and Charlevagne 2008
WL 2954767 1
MERS v TORR NY JUDGE SPINNER DENIES Deutsche amp MERS for NOT
Recording Mortgage Make up Affidavit and Assignment MERS lsquoQUIET
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
TITLErsquo FAIL To establish a claim of lien by a lost mortgage
there must be certain evidence (es) demonstrating that the
mortgage was properly executed with all the formalities required
by law andproof of the contents (es) of such instrument hellip Here
Burnettrsquos affidavit simply states that the original mortgage is
not in Deutsch Bankrsquos files and that he is advised (es) that
the title company is out of business Burnett gives no specifics
as to what efforts were made to locate the lost mortgagehellip More
importantly there is no affidavit from MLN by an individual with
personal knowledge of the facts that the complete file concerning
this mortgage was transferred to Deutsch Bank and that the copy
of the mortgage submitted to the court is an authentic copy of
Torrrsquos Mortgagerdquo (es)
LPP MORTGAGE v SABINE PROPERTIES FINAL DISPOSITION| NO Evidence
lsquoMERSrsquo Owned The NOTE Could NOT ASSIGN IT NY SUPREME COURT
FINAL DISPOSITION
Here there are no allegations or evidence that MERS was the
owner of the note such that it could assign it to LPP Thus the
assignment from MERS was insufficient to confer ownership of the
note to LPP and it has no standing to bring this action Kluge v
F umz ~1 45 AD2d at 538 (holding that the assignment of a
mortgage without transfer of the debt is a nullity) Johnson v
Melnikoff 20 Misc3d 1142(A) ldquo2 (Sup Ct Kings Co 2008) n 2
afr 65 AD3d 519 (2d Dept 20 1 Oj(noting that assignments by MERS
which did not include the underlying debt were a legal nullity)
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
m e Elect ro pic Registration Svstem v Coakley 41 AD3d 674 (2d
Dept 2007)(holding that MERS had standing to bring foreclosure
proceeding based on evidence that MERS was the lawful holder of
the promissory note and the mortgage)
Thus even assuming arguendo that the language of the assignment
from MERS to LPP could be interpreted as purporting to assign not
only the mortgage but also the note such assignment is invalid
since based on the record MERS lacked an ownership interest in
the note $ee LaSalle Bank Nat Assrsquon v Lamv 12 Misc3d 1191(A)
ldquo3 (Sup Ct Suffolk Co 2006) (noting that ldquothe mortgage is merely
an incident of and collateral security for the debt and an
assignment of the mortgage does not pass ownership of the debt
itself rsquo)
WACHOVIA BANK NATIONAL ASSOCIATION against ndashSTUART BRENNER et
aI Defendantrsquo s answer contains a defense of ldquolack of
standingrdquo Plaintiff has failed to establish it was the holder of
the note and the mortgage securing it when the action was
commenced In that regard plaintiff relies on an undated
assignment of the mortgage by MERS as nominee acknowledged by a
Texas notary on July 18 2009 The note sued on does not contain
an indication it has been negotiated The undated assignment by
MERS contains a provision at the assignment of the mortgage is
ldquoTOGETHER with the notes described in said mortgagerdquo The record
before me is devoid of proof that MERS as nominee for purposes of
recording had authority to assign the mortgage However assuming
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
it had such authority since it is a party to the mortgage and
such authority might be implied there has been a complete
failure to establish MERS as a non-party to the note to
negotiate its transfer A transfer of the note effects a transfer
of the mortgage MERS vs Coakley 41 AD3 674) the assignment of
a mortgage without a valid transfer of the mortgage note is a
nullity(Kluge vs Fugazv 145 AD2 537)
Following are more cases from THE NEW YORK SUPREME COURThellip
JUDGE SCHACK BLOWS lsquoMERSrsquo and Bank Of New York (BNY) OUT THE
DOOR
WM SPECIALTY MORTGAGE v JORGE RAMIREZ NO PROOF MERS OWNED THE
MORTGAGE AND NOTE
MERS v MAHENDRA RAMDOOLAR MERS IN NOT THE OWNER OF SUBJECT
MORTGAGE AND NOTE
HOLY COW MERS v MERS NO EVIDENCE IT HAD THE MORTGAGE AND NOTE
MERS V THOMAS STANDFORD MERS DOES NOT OWN MORTGAGE AND NOTE
MERS V GAIL PALMORE-ARCHER MERS DOES NOT OWN MORTGAGE AND NOTE
In the Matter of the Foreclosure of Tax Liens MERS GETS CHEWED
UP
BANK OF NEW YORK V JOSEPH CERULLO MERS NOT OWNER AND HOLDER OF
NOTE MORTGAGE
HSBC V HENRY FELD MERS NOT HOLDER OWNER OF NOTE
THE BANK OF NY MELLON V RICHARD BUSTRUC MERS IS NOT OWNER HOLDER
OF MORTGAGE AND NOTE
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 26
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ONEWEST BANK GETS THE BOOT MERS ASSIGNMENT MAKES NO REFERENCE TO
NOTE
NY SUPREME COURT WELLS FARGO MERS amp STEVEN J BAUM ldquoFATAL
DEFECTrdquo
FDN attorneys Jeff Barnes Esq and Elizabeth Lemoine Esq have
achieved a significant victory in Federal Court in Oregon against
MERS On Tuesday September 28 2010 Mr Barnes and Ms Lemoine
defended and argued Motions to Dismiss the borrowersrsquo lawsuit
challenging a nonjudicial foreclosure The Motions were filed by
the Defendants OneWest Bank and MERS The action was originally
filed in state court where a temporary restraining order was
entered stopping the sale On the eve of the scheduled hearing on
the borrowersrsquo Motion for Preliminary Injunction Defendants
OneWest Bank MERS and Regional Trustee Services removed the
case to Federal Court in an obvious attempt to circumvent the
state court injunction hearing The Federal Court entered an
Injunction and scheduled a hearing on the Motions filed by the
Defendants
During the course of the hearing the Court repeatedly raised the
ldquoMERS as nomineerdquo issues to counsel for the Defendants with said
counsel finally admitting upon repeated inquiry by the Court
that MERS cannot transfer promissory notes The Court denied the
Motions to Dismiss and has by Order commanded the injunction
against the sale to remain in place through the duration of the
borrowersrsquo lawsuit
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
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20
21
22
23
24
25
REQUEST FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY
INJUNCTION
Because of the nature of the findings of the listed FACTS I
through FACT VII and lack of truthful evidence leading to these
illegal foreclosure proceedings Plaintiff prays for the Court to
issue a temporary restraining order and a preliminary injunction
against Defendant for any and all claims the Defendants are
pursuing against Plaintiff and Plaintiffrsquos property via Exhibits
(A B C D E and F) thereby causing harm to the Plaintiff
REQUEST FOR PERMANENT INJUNCTION AND REMUNERATION
Because of all of the FACTS and Court case evidence listed in
this complaint Plaintiff demands the Defendants produce the
original NOTE in question to avoid forgery and fraud charges If
NOTE is not produced within 30 days from the delivery and receipt
of the summons upon the Defendant Plaintiff will press forgery
charges pursuant RCW 9A60020 Plaintiff thereby will demand
remuneration of fraudulently collected monies paid to illegally
represented lenders Bank of America FKA Countrywide and interest
at 675 with the total amount of $8775636 + case fees or
Eighty Seven Thousand Seven hundred and fifty six dollars and 36
cents plus case fees to the Defendant who deceived the Plaintiff
by fraudulently claiming to be the legitimate lender trustee
and beneficiary while falsely claiming to hold the NOTE assuming
all assets and liabilities of Countrywide
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
RCW 740020
Grounds for issuance
When it appears by the complaint that the plaintiff is entitled
to the relief demanded and the relief or any part thereof
consists in restraining the commission or continuance of some
act the commission or continuance of which during the litigation
would produce great injury to the plaintiff or when during the
litigation it appears that the defendant is doing
or threatened or is about to do or is procuring or is suffering some act to
be done in violation of the plaintiffs rights respecting the subject of the
action tending to render the judgment ineffectual or where such relief or
any part thereof consists in restraining proceedings upon any final order or
judgment an injunction may be granted to restrain such act or proceedings
until the further order of the court which may afterwards be dissolved or
modified upon motion And where it appears in the complaint at the
commencement of the action or during the pendency thereof by affidavit that
the defendant threatens or is about to remove or dispose of his property with
intent to defraud his creditors a temporary injunction may be granted to
restrain the removal or disposition of his property
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 29
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
BySamuel Salmon 917C Philpott Rd Colville WA 99114
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 7
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2
3
4
5
6
7
8
9
10
11
12
13
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20
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25
trustee the beneficiary shall appoint a trustee or a successor
trustee Only upon recording the appointment of a successor
trustee in each county in which the deed of trust is recorded
the successor trustee shall be vested with all powers of an
original trustee
FACT III
On or about April 1 2009 Bank of America declared itself to be
the new Lender by billing the Plaintiffs for the mortgage
payments Bank of America assumed the position of Lender on the
Deed of Trust Exhibits (AampB) although they failed to file the
conveyance promptly with the local Countyrsquos Auditor again
violating RCW 6124010 (2) and also violating 6404010 RCW
6404020 RCW 6508070 thereby nullifying Notice of Default
Exhibit (C) and The ldquoCorporation Assignment of Deed of Trust at
Stevens County Recorders Office Auditors File 2010 0007023rdquo
recorded September 23 2010 Exhibit (D) This alleged assignment
has the same signer for both MERS and Bank of America How does
this work
RCW 6508070
Real property conveyances to be recorded
A conveyance of real property when acknowledged by the person
executing the same (the acknowledgment being certified as
required by law) may be recorded in the office of the recording
officer of the county where the property is situated Every such
conveyance not so recorded is void as against any subsequent
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 8
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
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20
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purchaser or mortgagee in good faith and for a valuable
consideration from the same vendor his heirs or devisees of the
same real property or any portion thereof whose conveyance is
first duly recorded An instrument is deemed recorded the minute
it is filed for record
FACT IV
Before a conveyance was ever assigned by the Defendants a
ldquoNotice of Defaultrdquo was issued by Bank of America on the
Plaintiffs real property located at 917 A PHILPOTT ROAD COLVILLE
WA 99114 post marked September 02 2010 Exhibit (C) At a later
date Exhibit (D) the ldquoCorporation Assignment of Deed of Trust
was filed at Stevens County Recorders Office Auditors File 2010
0007023rdquo recorded September 23 2010 This filing of Exhibit (D)
was filed over a year after the Defendant Bank of America
falsely identified their self as owner of the loan on April 1
2009 and fraudulently collected payments on said promissory note
which is in violation of again stated RCW 6124010 (2) and also
violating 6404010 RCW 6404020RCW 6508070
RCW 6404010
Conveyances and encumbrances to be by deed
Every conveyance of real estate or any interest therein and
every contract creating or evidencing any encumbrance upon real
estate shall be by deed PROVIDED That when real estate or any
interest therein is held in trust the terms and conditions of
which trust are of record and the instrument creating such trust
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 9
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
authorizes the issuance of certificates or written evidence of
any interest in said real estate under said trust and authorizes
the transfer of such certificates or evidence of interest by
assignment by the holder thereof by a simple writing or by
endorsement on the back of such certificate or evidence of
interest or delivery thereof to the vendee such transfer shall
be valid and all such assignments or transfers hereby authorized
and heretofore made in accordance with the provisions of this
section are hereby declared to be legal and valid
RCW 6404020
Requisites of a deed
Every deed shall be in writing signed by the party bound
thereby and acknowledged by the party before some person
authorized by this act to take acknowledgments of deeds
FACT V
Plaintiff affirms that According to (Exhibit D) the Corporation
Assignment of Deed of Trust on filed under the authority of
Stevens County Auditor in Stevens County WA that MERS Bank of
America and Recontrust are not legally qualified as a Lender or
Trustee and or the Beneficiary pursuant to RCW 6124010 (3)
(4) and RCW 6124020 as the Trustee ldquoRecontrust Company NA
is a wholly-owned subsidiary of Bank of Americardquo (this statement
is found on the Recontrust web site home page) Therefore
Recontrust is associated with and is fiducially responsible
entirely to the alleged Lender Bank of America
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
RCW 6124010 (3) (4)
Trustee qualifications mdash Successor trustee
(3) The trustee or successor trustee shall have no fiduciary
duty or fiduciary obligation to the grantor or other persons
having an interest in the property subject to the deed of trust
(4) The trustee or successor trustee has a duty of good
faith to the borrower beneficiary and grantor
RCW 6124020
ldquoNo person corporation or association may be both trustee and
beneficiary under the same deed of trustrdquo
FACT VI
The Plaintiff asserts that the Note and Deed of Trust were not
properly assigned to the defendant Bank of America and therefore
has not proven its self as the Legal holder of the Note and Deed
of Trust therefore it lacks standing to enforce any claim on
said property For the reasons that follow the Plaintiff finds
that the Defendant has not proven that it is the holder of the
original Note pursuant to RCW 6124030(7)(aampb) and RCW
6124010 (4)
RCW 6124030
(7) (a) That for residential real property before the notice
of trustees sale is recorded transmitted or served the
trustee shall have proof that the beneficiary is the owner of any
promissory note or other obligation secured by the deed of trust
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 11
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A declaration by the beneficiary made under the penalty of
perjury stating that the beneficiary is the actual holder of the
promissory note or other obligation secured by the deed of trust
shall be sufficient proof as required under this subsection
(7) (b) Unless the trustee has violated his or her duty under
RCW 6124010(4) the trustee is entitled to rely on the
beneficiarys declaration as evidence of proof required under
this subsection
6124010 (4) The trustee or successor trustee has a duty of good
faith to the borrower beneficiary and grantor
Statement
Any proof of Note possession offered by the trustee or
beneficiary other than the production of the actual original Note
is not acceptable due to said Trustee Lender and Beneficiary
violations of stated RCWrsquos therefore it lacks standing to issue
any claim on Plaintiffs property
FACT VII
The Plaintiff affirms that according to the alleged trusteersquos
records and Plaintiffs phone Conversation with Recontrust it
does not have a physical street address in the state of
Washington which is in violation of RCW 6124030 (6)
RCW 6124030 (6)
(6) That prior to the date of the notice of trustees sale and
continuing thereafter through the date of the trustees sale the
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
trustee must maintain a street address in this state where
personal service of process may be made and the trustee must
maintain a physical presence and have telephone service at such
address
FACT VIII
The Deed of Trust contains false representation on its face when
it represented that MERS was a beneficiary under the Deed of
Trust which states that ldquoMERS is a separate corporation that is
acting solely as a Nominee for Lender and Lenderrsquos successors and
assigns MERS as the beneficiary under this Security Instrumentrdquo
MERS is NOT the beneficiary under the Deed of Trust it never had
ownership or possession of the Promissory Note which is the
obligation which is secured by the Deed of Trust and MERS has
never been entitled to receive one cent of remuneration from the
Plaintiffrsquos loan proceeds The statement that MERS is the nominee
is nonsensical language which means nothing in a real estate
transaction and most certainly MERS has never been nor is it now
the beneficiary under the Deed of Trust The language is a sham
MERS is a wholly owned subsidiary of MersCorp Inc MERS has no
interest in the NOTE the LOAN or the REAL PROPERTY therefore
has no authority to transfer the NOTE as a nominee pursuant to
RCW 6124005 (2)
(2) Beneficiary means the holder of the instrument or document
evidencing the obligations secured by the deed of trust
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 13
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
excluding persons holding the same as security for a different
obligation
FACT IX
Plaintiff has proven the Trustee Lender and Beneficiary are
illegal in this entire loan process Plaintiff does not recognize
any authority the alleged Claimants or Defendants are making on
Plaintiffs real property as the Deed of Trust is in itself
entirely invalid and the only security for the Note Plaintiff
demands the Defendant produce the original Note with the proper
endorsements for all transfers required by law pursuant RCW
62A3-203 to be submitted for inspection and verification by a
court appointed expert pursuant to RCW 6124030 (6) and (7) (a)
(b) Until then the copy or forgery of the NOTE which was
included with Notice of Trustee sale is not sufficient to
validate any claim Made by the Defendant on the Plaintiffs
possessions and is in violation of Washington forgery laws
pursuant RCW 62A5-109 RCW 1037080 RCW 9A56320 and RCW
9A60020
RCW 9A60020
(1) A person is guilty of forgery if with intent to injure or
defraud
(a) He falsely makes completes or alters a written
instrument or
(b) He possesses utters offers disposes of or puts off
as true a written instrument which he knows to be forged
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 14
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
(2) In a proceeding under this section that is related to an
identity theft under RCW 935020 the crime will be considered
to have been committed in any locality where the person whose
means of identification or financial information was appropriated
resides or in which any part of the offense took place
regardless of whether the defendant was ever actually in that
locality
(3) Forgery is a class C felony
CASE EVIDENCE FOR FACT VIII AND FACT IX
MERS important case reference and commentary
MERS v Nebraska Dept of Banking and Finance ndash State Appellate
MERS demands to be recognized as having no actionable interest in
title 2005 Cite as 270 Neb 529
Merscorp Inc et al Respondents v Edward P Romaine amp c
et al Appellants et al Defendant the fact that the Mortgage
and Deed of Trust are separated is recognized (concurring
opinion) While affirming MERS could enter in the records as
ldquonomineerdquo the court recognized many inherent problems Rather
than resolve them they sloughed them off to the legislature
2006
The Boyko Decision -Federal District Judge Christopher Boyko of
the Eastern Division of the Northern District of Ohio Federal
Court overturns 14 foreclosure actions with a well reasoned
opinion outlining the failure of the foreclosing party to prove
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 15
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
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25
standing This decision started the movement of challenging the
standing of the foreclosing party Oct 2007
Landmark National Bank v Kesler ndash KS State Supreme Court ndash MERS
has no standing to foreclose and is in fact a straw man Oct
2009
The importance of the findings of the Supreme Court of Kansas
cannot be overemphasized It is generally the law in all states
that if the law of one state has not specifically addressed a
specific legal issue that the court may look to the law of states
which have The Kansas Court acknowledged that the case was one
of ldquofirst impression in Kansasrdquo which is why the Kansas Court
looked to legal decisions from California Idaho New York
Missouri and other states for guidance and to support its
decision As we have previously reported the Ohio Courts have
looked to the legal decisions of New York to resolve issues in
foreclosure defense most notably issues of standing to institute
a foreclosure
It is practically certain that this decision will be the subject
of review by various courts MERS has already threatened a
ldquosecond appealrdquo (by requesting ldquoreconsiderationrdquo by the Supreme
Court of Kansas of its decision by the entire panel of Judges in
that Court) However for now the decision stands which
decision is of monumental importance for borrowers It thus
appears that the tide is finally starting to turn and that the
courts are beginning to recognize the extent of the wrongful
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 16
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
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25
practices and fraud perpetrated by ldquolendersrdquo and MERS upon
borrowers which conduct was engaged in for the sole purpose of
greed and profit for the ldquolendersrdquo and their ilk at the expense
of borrowers
MERS Inc Appellant v Southwest Homes of Arkansas Appellee The
second State Supreme Court ruling ndash AR 2009
BAC v US Bank ndash FL Appellate court upholds the concept of
determining the standing of the foreclosing party before allowing
summary judgement All cases in FL must now go through this
process 2007
Wells Fargo NAS v Farmer Motion to vacate in Supreme Court Kings
County NY 2009
In Re Joshua amp Stephanie Mitchell ndash US Federal Bankruptcy Court
NV 2009
In Re Wilhelm et al Case No 08-20577-TLM (opinion of Hon
Terry L Myers Chief US Bankruptcy Judge July 9 2009) ndash
Chief US Bankruptcy Judge ID ndash MERS by its construction
separates the Deed from the Mortgage
MERS v Johnston ndash Vermont Superior Court Decision
Wells Fargo v Jordon ndash OH Appellate Court
Weingartner et al v Chase Home Finance et al ndash US District Court
Schneider et al v Deutsche Bank et al (FL) Class action suit
(the filing) seeking to recover actual and statutory damages for
violations of the foreclosure process Provides an excellent
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 17
1
2
3
4
5
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7
8
9
10
11
12
13
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15
16
17
18
19
20
21
22
23
24
25
description of the securitization process and the problems with
assignments
JP Morgan Chase v New Millenial et al ndash FL Appellate which
clearly demonstrates the chaos which can ensue when there is a
failure to register changes of ownership at the county recorderrsquos
office Everyone operates in good faith then out of nowhere
someone shows up waving a piece of paper The MERS system while
not explicitly named is clearly the culprit of the chaos 2009
In Re Walker Case No 10-21656-E-11 ndash Eastern District of CA
Bankruptcy court rules MERS has NO actionable interest in title
ldquoAny attempt to transfer the beneficial interest of a trust deed
without ownership of the underlying note is void under California
lawrdquo ldquoMERS could not as a matter of law have transferred the
note to Citibank from the original lender Bayrock Mortgage
Corprdquo The Courtrsquos opinion is headlined stating that MERS and
Citibank are not the real parties in interest
In re Vargas 396 BR at 517-19 Judge Bufford made a finding
that the witness called to testify as to debt and default was
incompetent All the witness could testify was that he had looked
at the MERS computerized records The witness was unable to
satisfy the requirements of the Federal Rules of Evidence
particularly Rule 803 as applied to computerized records in the
Ninth Circuit See id at 517-20 The low level employee could
really only testify that the MERS screen shot he reviewed
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 18
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2
3
4
5
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7
8
9
10
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15
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17
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20
21
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23
24
25
reflected a default That really is not much in the way of
evidence and not nearly enough to get around the hearsay rule
In Re Joshua and Stephanie Mitchell Case No BK-S-07-16226-
LBR [US Bankruptcy Court District of Nevada Memorandum
Opinion of August 19 2008] Federal Court in Nevada attacked
MERSrsquo purported ldquoauthorityrdquo finding that there was no evidence
that MERS was the agent of the notersquos holder
Mortgage Electronic Registration Systems Inc v Girdvainis
Sumter County South Carolina Court of Common Pleas Case No
2005-CP-43-0278 (Order dated January 19 2006 citing to the
representations of MERS and court findings in Mortgage Electronic
Registration Systems Inc v Nebraska Dept of Banking and
Finance 270 Neb 529 704 NW 2d 784) As such ALL MERS
assignments are suspect at best and may in fact be fraudulent
The Court of Common Pleas of Sumter County South Carolina also
found that MERSrsquo rights were not as they were represented to be
that MERS had no rights to collect on any debt because it did not
extend any credit none of the borrowers owe MERS any money that
MERS does not own the promissory notes secured by the mortgages
and that MERS does not acquire any loan or extension of credit
secured by a lien on real property
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC v SAUNDERS 2010
ME 79 Docket Cum-09-640Supreme Judicial Court of
Maine | Ordered dated August 12 2010 We conclude that although
MERS is not in fact a ldquomortgageerdquo within the meaning of our
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 19
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2
3
4
5
6
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foreclosure statute 14 MRS sectsect 6321-6325 and therefore had no
standing to institute foreclosure proceedings the real party in
interest was the Bank and the court did not abuse its discretion
by substituting the Bank for MERS Because however the Bank was
not entitled to summary judgment as a matter of law we vacate
the judgment and remand for further proceedings
MERS lsquoAGENTrsquo PREVIOUS MTG FRAUD SCHEME| Mortgage Electronic
Registration Systems Inc v Folkes 2010 NY Slip Op 32007 ndash NY
Supreme Court The settlement agent on all of the MERS documents
was listed as Peter Port Esq undeniably plaintiffs agent
According to an affidavit with documents attached from Ms
Nichole M Orr identified as an Assistant Vice President and
Senior Operational Risk Specialist for Bank of America Home
Loans the successor-in-interest to plaintiff Americarsquos Wholesale
Lender (April 1 2010)[1] certain wire transfers were made on
November 23 2004 to Mr Port The money appears to have come
from an account with JP Morgan but one of the documents also
shows inexplicably that Mr Port then sent $43506773 of this
money to Cheron A Ramphal at 14917 Motley Road Silver Springs
MD It should also be noted as it was in the decision of
February 5 2008 by Judge Payne that Mr Port pled guilty in
March 2006 in Federal District Court in New Jersey to providing
false documents in a scheme to commit mortgage fraud
lsquoNO PROOFrsquo MERS assigned BOTH Mortgage and NOTE to HSBC|HSBC
Bank etc v Miller et al The ldquoAssignment of Mortgagerdquo which
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 20
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2
3
4
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6
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8
9
10
11
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15
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17
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20
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23
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25
is attached as exhibit E to the opposition papers makes no
reference to the note and only makes reference to the mortgage
being assigned The Assignment has a vague reference to note
wherein it states that ldquothe said assignor hereby grants and
conveys unto the said assignee the assignorrsquos beneficial
interest under the mortgage ldquobut this is the only language in
the Assignment which could possibly be found to refer to the
note
Contrary to the affirmation of Ms Szeliga in which she
represented in paragraph 17 that there was language in the
assignment which specifically referred to the note the
assignment in this case does not contain dega specific reference to
the Note
In light of the foregoing the Court is satisfied that there is
insufficient proof to establish that both the note and the
mortgage have been assigned to the Plaintiff and therefore it
is hereby ORDERED that the Plaintiff has no standing to maintain
the foreclosure action and it is further ORDERED that the
application of Defendant Jeffrey F Miller to dismiss is
granted without prejudice to renew upon proof of a valid
assignment of the note
UNION BANK CO v NORTH CAROLINA FURNITURE EXPRESS LLC MERS
lsquoGETS FORECLOSEDrsquo| ASSIGNS NADA TO BAC fka COUNTRYWIDE OHIO COURT
OF APPEAL While an assignment typically transfers the lien of
the mortgage on the property described in the mortgage as BAC
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 21
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2
3
4
5
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9
10
11
12
13
14
15
16
17
18
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20
21
22
23
24
25
acknowledged in its reply brief an assignee can only take and
the assignor can only give the interest currently held by the
assignor RC 530131 With that stated it is clear under the
facts of this case that BAC never obtained an interest in the
property thus it could not have been substituted as a party-
defendant in the 2008 foreclosure action Here with respect to
the 2008 foreclosure action the date the last party was served
with notice was on January 28 2009 which was almost six
months before the purported assignment from MERS to BAC Next on
March 11 2009 the trial court issued a judgment entry of
default against MERS foreclosing on its interest in the property
Once again this default judgment was entered against MERS almost
three months before the purported assignment from MERS to BAC
occurred The effect of this default judgment against MERS
resulted in MERS having ldquono interest in and to said premises and
the equity of redemption of said Defendants in the real estate
described in Plaintiffrsquos Complaint shall be forever cut off
barred and foreclosedrdquo (2008 CV 0267 Mar 10 2009 JE)
Nevertheless according to the documents filed by BAC to evidence
its assignment from MERS MERS assigned its interest to BAC on
June 1 2009 (2009 CV 312 Oct 7 2009 JE Ex A)
Consequently as a result of the already entered default judgment
against MERS when BAC was assigned MERSrsquo interest in the
property on June 1 2009 BAC did not receive a viable interest
in the property See Quill v Maddox (May 31 2002) 2nd Dist
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 22
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
No 19052 at 2 (mortgageersquos assignee failed to establish that
it had an interest in the property as mortgageersquos interest was
foreclosed by the court before mortgagee assigned its interest to
assignee which could acquire no more interest than mortgagee
held) Thus we find that it was reasonable for the trial court
to have denied the motion to substitute BAC as a party-defendant
for MERS given its lack of interest in the property
HSBC v Thompson HSBCrsquos Irregularities Mortgage Documentation
and Corporate Relationships with Ocwen MERS and Delta Even if
HSBC had provided support for the proposition that ownership of
the note is not required the evidence about the assignment is
not properly before us The alleged mortgage assignment is
attached to the rejected affidavits of Neil Furthermore even if
we were to consider this ldquoevidencerdquo the mortgage assignment from
MERS to HSBC indicates that the assignment was prepared by Ocwen
for MERS and that Ocwen is located at the same Palm Beach
Florida address mentioned in Charlevagne and Antrobus See
Exhibit 3 attached to the affidavit of Chomie Neil In addition
Scott Anderson who signed the assignment as Vice-President of
MERS appears to be the same individual who claimed to be both
Vice-President of MERS and Vice-President of
Ocwen See Antrobus 2008 WL 2928553 4 and Charlevagne 2008
WL 2954767 1
MERS v TORR NY JUDGE SPINNER DENIES Deutsche amp MERS for NOT
Recording Mortgage Make up Affidavit and Assignment MERS lsquoQUIET
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 23
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2
3
4
5
6
7
8
9
10
11
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15
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20
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22
23
24
25
TITLErsquo FAIL To establish a claim of lien by a lost mortgage
there must be certain evidence (es) demonstrating that the
mortgage was properly executed with all the formalities required
by law andproof of the contents (es) of such instrument hellip Here
Burnettrsquos affidavit simply states that the original mortgage is
not in Deutsch Bankrsquos files and that he is advised (es) that
the title company is out of business Burnett gives no specifics
as to what efforts were made to locate the lost mortgagehellip More
importantly there is no affidavit from MLN by an individual with
personal knowledge of the facts that the complete file concerning
this mortgage was transferred to Deutsch Bank and that the copy
of the mortgage submitted to the court is an authentic copy of
Torrrsquos Mortgagerdquo (es)
LPP MORTGAGE v SABINE PROPERTIES FINAL DISPOSITION| NO Evidence
lsquoMERSrsquo Owned The NOTE Could NOT ASSIGN IT NY SUPREME COURT
FINAL DISPOSITION
Here there are no allegations or evidence that MERS was the
owner of the note such that it could assign it to LPP Thus the
assignment from MERS was insufficient to confer ownership of the
note to LPP and it has no standing to bring this action Kluge v
F umz ~1 45 AD2d at 538 (holding that the assignment of a
mortgage without transfer of the debt is a nullity) Johnson v
Melnikoff 20 Misc3d 1142(A) ldquo2 (Sup Ct Kings Co 2008) n 2
afr 65 AD3d 519 (2d Dept 20 1 Oj(noting that assignments by MERS
which did not include the underlying debt were a legal nullity)
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 24
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3
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7
8
9
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13
14
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17
18
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20
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22
23
24
25
m e Elect ro pic Registration Svstem v Coakley 41 AD3d 674 (2d
Dept 2007)(holding that MERS had standing to bring foreclosure
proceeding based on evidence that MERS was the lawful holder of
the promissory note and the mortgage)
Thus even assuming arguendo that the language of the assignment
from MERS to LPP could be interpreted as purporting to assign not
only the mortgage but also the note such assignment is invalid
since based on the record MERS lacked an ownership interest in
the note $ee LaSalle Bank Nat Assrsquon v Lamv 12 Misc3d 1191(A)
ldquo3 (Sup Ct Suffolk Co 2006) (noting that ldquothe mortgage is merely
an incident of and collateral security for the debt and an
assignment of the mortgage does not pass ownership of the debt
itself rsquo)
WACHOVIA BANK NATIONAL ASSOCIATION against ndashSTUART BRENNER et
aI Defendantrsquo s answer contains a defense of ldquolack of
standingrdquo Plaintiff has failed to establish it was the holder of
the note and the mortgage securing it when the action was
commenced In that regard plaintiff relies on an undated
assignment of the mortgage by MERS as nominee acknowledged by a
Texas notary on July 18 2009 The note sued on does not contain
an indication it has been negotiated The undated assignment by
MERS contains a provision at the assignment of the mortgage is
ldquoTOGETHER with the notes described in said mortgagerdquo The record
before me is devoid of proof that MERS as nominee for purposes of
recording had authority to assign the mortgage However assuming
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 25
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2
3
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5
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7
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9
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11
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13
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25
it had such authority since it is a party to the mortgage and
such authority might be implied there has been a complete
failure to establish MERS as a non-party to the note to
negotiate its transfer A transfer of the note effects a transfer
of the mortgage MERS vs Coakley 41 AD3 674) the assignment of
a mortgage without a valid transfer of the mortgage note is a
nullity(Kluge vs Fugazv 145 AD2 537)
Following are more cases from THE NEW YORK SUPREME COURThellip
JUDGE SCHACK BLOWS lsquoMERSrsquo and Bank Of New York (BNY) OUT THE
DOOR
WM SPECIALTY MORTGAGE v JORGE RAMIREZ NO PROOF MERS OWNED THE
MORTGAGE AND NOTE
MERS v MAHENDRA RAMDOOLAR MERS IN NOT THE OWNER OF SUBJECT
MORTGAGE AND NOTE
HOLY COW MERS v MERS NO EVIDENCE IT HAD THE MORTGAGE AND NOTE
MERS V THOMAS STANDFORD MERS DOES NOT OWN MORTGAGE AND NOTE
MERS V GAIL PALMORE-ARCHER MERS DOES NOT OWN MORTGAGE AND NOTE
In the Matter of the Foreclosure of Tax Liens MERS GETS CHEWED
UP
BANK OF NEW YORK V JOSEPH CERULLO MERS NOT OWNER AND HOLDER OF
NOTE MORTGAGE
HSBC V HENRY FELD MERS NOT HOLDER OWNER OF NOTE
THE BANK OF NY MELLON V RICHARD BUSTRUC MERS IS NOT OWNER HOLDER
OF MORTGAGE AND NOTE
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 26
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20
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24
25
ONEWEST BANK GETS THE BOOT MERS ASSIGNMENT MAKES NO REFERENCE TO
NOTE
NY SUPREME COURT WELLS FARGO MERS amp STEVEN J BAUM ldquoFATAL
DEFECTrdquo
FDN attorneys Jeff Barnes Esq and Elizabeth Lemoine Esq have
achieved a significant victory in Federal Court in Oregon against
MERS On Tuesday September 28 2010 Mr Barnes and Ms Lemoine
defended and argued Motions to Dismiss the borrowersrsquo lawsuit
challenging a nonjudicial foreclosure The Motions were filed by
the Defendants OneWest Bank and MERS The action was originally
filed in state court where a temporary restraining order was
entered stopping the sale On the eve of the scheduled hearing on
the borrowersrsquo Motion for Preliminary Injunction Defendants
OneWest Bank MERS and Regional Trustee Services removed the
case to Federal Court in an obvious attempt to circumvent the
state court injunction hearing The Federal Court entered an
Injunction and scheduled a hearing on the Motions filed by the
Defendants
During the course of the hearing the Court repeatedly raised the
ldquoMERS as nomineerdquo issues to counsel for the Defendants with said
counsel finally admitting upon repeated inquiry by the Court
that MERS cannot transfer promissory notes The Court denied the
Motions to Dismiss and has by Order commanded the injunction
against the sale to remain in place through the duration of the
borrowersrsquo lawsuit
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 27
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
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20
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25
REQUEST FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY
INJUNCTION
Because of the nature of the findings of the listed FACTS I
through FACT VII and lack of truthful evidence leading to these
illegal foreclosure proceedings Plaintiff prays for the Court to
issue a temporary restraining order and a preliminary injunction
against Defendant for any and all claims the Defendants are
pursuing against Plaintiff and Plaintiffrsquos property via Exhibits
(A B C D E and F) thereby causing harm to the Plaintiff
REQUEST FOR PERMANENT INJUNCTION AND REMUNERATION
Because of all of the FACTS and Court case evidence listed in
this complaint Plaintiff demands the Defendants produce the
original NOTE in question to avoid forgery and fraud charges If
NOTE is not produced within 30 days from the delivery and receipt
of the summons upon the Defendant Plaintiff will press forgery
charges pursuant RCW 9A60020 Plaintiff thereby will demand
remuneration of fraudulently collected monies paid to illegally
represented lenders Bank of America FKA Countrywide and interest
at 675 with the total amount of $8775636 + case fees or
Eighty Seven Thousand Seven hundred and fifty six dollars and 36
cents plus case fees to the Defendant who deceived the Plaintiff
by fraudulently claiming to be the legitimate lender trustee
and beneficiary while falsely claiming to hold the NOTE assuming
all assets and liabilities of Countrywide
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 28
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5
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RCW 740020
Grounds for issuance
When it appears by the complaint that the plaintiff is entitled
to the relief demanded and the relief or any part thereof
consists in restraining the commission or continuance of some
act the commission or continuance of which during the litigation
would produce great injury to the plaintiff or when during the
litigation it appears that the defendant is doing
or threatened or is about to do or is procuring or is suffering some act to
be done in violation of the plaintiffs rights respecting the subject of the
action tending to render the judgment ineffectual or where such relief or
any part thereof consists in restraining proceedings upon any final order or
judgment an injunction may be granted to restrain such act or proceedings
until the further order of the court which may afterwards be dissolved or
modified upon motion And where it appears in the complaint at the
commencement of the action or during the pendency thereof by affidavit that
the defendant threatens or is about to remove or dispose of his property with
intent to defraud his creditors a temporary injunction may be granted to
restrain the removal or disposition of his property
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 29
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
BySamuel Salmon 917C Philpott Rd Colville WA 99114
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 8
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3
4
5
6
7
8
9
10
11
12
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14
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20
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purchaser or mortgagee in good faith and for a valuable
consideration from the same vendor his heirs or devisees of the
same real property or any portion thereof whose conveyance is
first duly recorded An instrument is deemed recorded the minute
it is filed for record
FACT IV
Before a conveyance was ever assigned by the Defendants a
ldquoNotice of Defaultrdquo was issued by Bank of America on the
Plaintiffs real property located at 917 A PHILPOTT ROAD COLVILLE
WA 99114 post marked September 02 2010 Exhibit (C) At a later
date Exhibit (D) the ldquoCorporation Assignment of Deed of Trust
was filed at Stevens County Recorders Office Auditors File 2010
0007023rdquo recorded September 23 2010 This filing of Exhibit (D)
was filed over a year after the Defendant Bank of America
falsely identified their self as owner of the loan on April 1
2009 and fraudulently collected payments on said promissory note
which is in violation of again stated RCW 6124010 (2) and also
violating 6404010 RCW 6404020RCW 6508070
RCW 6404010
Conveyances and encumbrances to be by deed
Every conveyance of real estate or any interest therein and
every contract creating or evidencing any encumbrance upon real
estate shall be by deed PROVIDED That when real estate or any
interest therein is held in trust the terms and conditions of
which trust are of record and the instrument creating such trust
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 9
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
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23
24
25
authorizes the issuance of certificates or written evidence of
any interest in said real estate under said trust and authorizes
the transfer of such certificates or evidence of interest by
assignment by the holder thereof by a simple writing or by
endorsement on the back of such certificate or evidence of
interest or delivery thereof to the vendee such transfer shall
be valid and all such assignments or transfers hereby authorized
and heretofore made in accordance with the provisions of this
section are hereby declared to be legal and valid
RCW 6404020
Requisites of a deed
Every deed shall be in writing signed by the party bound
thereby and acknowledged by the party before some person
authorized by this act to take acknowledgments of deeds
FACT V
Plaintiff affirms that According to (Exhibit D) the Corporation
Assignment of Deed of Trust on filed under the authority of
Stevens County Auditor in Stevens County WA that MERS Bank of
America and Recontrust are not legally qualified as a Lender or
Trustee and or the Beneficiary pursuant to RCW 6124010 (3)
(4) and RCW 6124020 as the Trustee ldquoRecontrust Company NA
is a wholly-owned subsidiary of Bank of Americardquo (this statement
is found on the Recontrust web site home page) Therefore
Recontrust is associated with and is fiducially responsible
entirely to the alleged Lender Bank of America
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
RCW 6124010 (3) (4)
Trustee qualifications mdash Successor trustee
(3) The trustee or successor trustee shall have no fiduciary
duty or fiduciary obligation to the grantor or other persons
having an interest in the property subject to the deed of trust
(4) The trustee or successor trustee has a duty of good
faith to the borrower beneficiary and grantor
RCW 6124020
ldquoNo person corporation or association may be both trustee and
beneficiary under the same deed of trustrdquo
FACT VI
The Plaintiff asserts that the Note and Deed of Trust were not
properly assigned to the defendant Bank of America and therefore
has not proven its self as the Legal holder of the Note and Deed
of Trust therefore it lacks standing to enforce any claim on
said property For the reasons that follow the Plaintiff finds
that the Defendant has not proven that it is the holder of the
original Note pursuant to RCW 6124030(7)(aampb) and RCW
6124010 (4)
RCW 6124030
(7) (a) That for residential real property before the notice
of trustees sale is recorded transmitted or served the
trustee shall have proof that the beneficiary is the owner of any
promissory note or other obligation secured by the deed of trust
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 11
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
A declaration by the beneficiary made under the penalty of
perjury stating that the beneficiary is the actual holder of the
promissory note or other obligation secured by the deed of trust
shall be sufficient proof as required under this subsection
(7) (b) Unless the trustee has violated his or her duty under
RCW 6124010(4) the trustee is entitled to rely on the
beneficiarys declaration as evidence of proof required under
this subsection
6124010 (4) The trustee or successor trustee has a duty of good
faith to the borrower beneficiary and grantor
Statement
Any proof of Note possession offered by the trustee or
beneficiary other than the production of the actual original Note
is not acceptable due to said Trustee Lender and Beneficiary
violations of stated RCWrsquos therefore it lacks standing to issue
any claim on Plaintiffs property
FACT VII
The Plaintiff affirms that according to the alleged trusteersquos
records and Plaintiffs phone Conversation with Recontrust it
does not have a physical street address in the state of
Washington which is in violation of RCW 6124030 (6)
RCW 6124030 (6)
(6) That prior to the date of the notice of trustees sale and
continuing thereafter through the date of the trustees sale the
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
trustee must maintain a street address in this state where
personal service of process may be made and the trustee must
maintain a physical presence and have telephone service at such
address
FACT VIII
The Deed of Trust contains false representation on its face when
it represented that MERS was a beneficiary under the Deed of
Trust which states that ldquoMERS is a separate corporation that is
acting solely as a Nominee for Lender and Lenderrsquos successors and
assigns MERS as the beneficiary under this Security Instrumentrdquo
MERS is NOT the beneficiary under the Deed of Trust it never had
ownership or possession of the Promissory Note which is the
obligation which is secured by the Deed of Trust and MERS has
never been entitled to receive one cent of remuneration from the
Plaintiffrsquos loan proceeds The statement that MERS is the nominee
is nonsensical language which means nothing in a real estate
transaction and most certainly MERS has never been nor is it now
the beneficiary under the Deed of Trust The language is a sham
MERS is a wholly owned subsidiary of MersCorp Inc MERS has no
interest in the NOTE the LOAN or the REAL PROPERTY therefore
has no authority to transfer the NOTE as a nominee pursuant to
RCW 6124005 (2)
(2) Beneficiary means the holder of the instrument or document
evidencing the obligations secured by the deed of trust
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 13
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
excluding persons holding the same as security for a different
obligation
FACT IX
Plaintiff has proven the Trustee Lender and Beneficiary are
illegal in this entire loan process Plaintiff does not recognize
any authority the alleged Claimants or Defendants are making on
Plaintiffs real property as the Deed of Trust is in itself
entirely invalid and the only security for the Note Plaintiff
demands the Defendant produce the original Note with the proper
endorsements for all transfers required by law pursuant RCW
62A3-203 to be submitted for inspection and verification by a
court appointed expert pursuant to RCW 6124030 (6) and (7) (a)
(b) Until then the copy or forgery of the NOTE which was
included with Notice of Trustee sale is not sufficient to
validate any claim Made by the Defendant on the Plaintiffs
possessions and is in violation of Washington forgery laws
pursuant RCW 62A5-109 RCW 1037080 RCW 9A56320 and RCW
9A60020
RCW 9A60020
(1) A person is guilty of forgery if with intent to injure or
defraud
(a) He falsely makes completes or alters a written
instrument or
(b) He possesses utters offers disposes of or puts off
as true a written instrument which he knows to be forged
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 14
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
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20
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22
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(2) In a proceeding under this section that is related to an
identity theft under RCW 935020 the crime will be considered
to have been committed in any locality where the person whose
means of identification or financial information was appropriated
resides or in which any part of the offense took place
regardless of whether the defendant was ever actually in that
locality
(3) Forgery is a class C felony
CASE EVIDENCE FOR FACT VIII AND FACT IX
MERS important case reference and commentary
MERS v Nebraska Dept of Banking and Finance ndash State Appellate
MERS demands to be recognized as having no actionable interest in
title 2005 Cite as 270 Neb 529
Merscorp Inc et al Respondents v Edward P Romaine amp c
et al Appellants et al Defendant the fact that the Mortgage
and Deed of Trust are separated is recognized (concurring
opinion) While affirming MERS could enter in the records as
ldquonomineerdquo the court recognized many inherent problems Rather
than resolve them they sloughed them off to the legislature
2006
The Boyko Decision -Federal District Judge Christopher Boyko of
the Eastern Division of the Northern District of Ohio Federal
Court overturns 14 foreclosure actions with a well reasoned
opinion outlining the failure of the foreclosing party to prove
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 15
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
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standing This decision started the movement of challenging the
standing of the foreclosing party Oct 2007
Landmark National Bank v Kesler ndash KS State Supreme Court ndash MERS
has no standing to foreclose and is in fact a straw man Oct
2009
The importance of the findings of the Supreme Court of Kansas
cannot be overemphasized It is generally the law in all states
that if the law of one state has not specifically addressed a
specific legal issue that the court may look to the law of states
which have The Kansas Court acknowledged that the case was one
of ldquofirst impression in Kansasrdquo which is why the Kansas Court
looked to legal decisions from California Idaho New York
Missouri and other states for guidance and to support its
decision As we have previously reported the Ohio Courts have
looked to the legal decisions of New York to resolve issues in
foreclosure defense most notably issues of standing to institute
a foreclosure
It is practically certain that this decision will be the subject
of review by various courts MERS has already threatened a
ldquosecond appealrdquo (by requesting ldquoreconsiderationrdquo by the Supreme
Court of Kansas of its decision by the entire panel of Judges in
that Court) However for now the decision stands which
decision is of monumental importance for borrowers It thus
appears that the tide is finally starting to turn and that the
courts are beginning to recognize the extent of the wrongful
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 16
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
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20
21
22
23
24
25
practices and fraud perpetrated by ldquolendersrdquo and MERS upon
borrowers which conduct was engaged in for the sole purpose of
greed and profit for the ldquolendersrdquo and their ilk at the expense
of borrowers
MERS Inc Appellant v Southwest Homes of Arkansas Appellee The
second State Supreme Court ruling ndash AR 2009
BAC v US Bank ndash FL Appellate court upholds the concept of
determining the standing of the foreclosing party before allowing
summary judgement All cases in FL must now go through this
process 2007
Wells Fargo NAS v Farmer Motion to vacate in Supreme Court Kings
County NY 2009
In Re Joshua amp Stephanie Mitchell ndash US Federal Bankruptcy Court
NV 2009
In Re Wilhelm et al Case No 08-20577-TLM (opinion of Hon
Terry L Myers Chief US Bankruptcy Judge July 9 2009) ndash
Chief US Bankruptcy Judge ID ndash MERS by its construction
separates the Deed from the Mortgage
MERS v Johnston ndash Vermont Superior Court Decision
Wells Fargo v Jordon ndash OH Appellate Court
Weingartner et al v Chase Home Finance et al ndash US District Court
Schneider et al v Deutsche Bank et al (FL) Class action suit
(the filing) seeking to recover actual and statutory damages for
violations of the foreclosure process Provides an excellent
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 17
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
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25
description of the securitization process and the problems with
assignments
JP Morgan Chase v New Millenial et al ndash FL Appellate which
clearly demonstrates the chaos which can ensue when there is a
failure to register changes of ownership at the county recorderrsquos
office Everyone operates in good faith then out of nowhere
someone shows up waving a piece of paper The MERS system while
not explicitly named is clearly the culprit of the chaos 2009
In Re Walker Case No 10-21656-E-11 ndash Eastern District of CA
Bankruptcy court rules MERS has NO actionable interest in title
ldquoAny attempt to transfer the beneficial interest of a trust deed
without ownership of the underlying note is void under California
lawrdquo ldquoMERS could not as a matter of law have transferred the
note to Citibank from the original lender Bayrock Mortgage
Corprdquo The Courtrsquos opinion is headlined stating that MERS and
Citibank are not the real parties in interest
In re Vargas 396 BR at 517-19 Judge Bufford made a finding
that the witness called to testify as to debt and default was
incompetent All the witness could testify was that he had looked
at the MERS computerized records The witness was unable to
satisfy the requirements of the Federal Rules of Evidence
particularly Rule 803 as applied to computerized records in the
Ninth Circuit See id at 517-20 The low level employee could
really only testify that the MERS screen shot he reviewed
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
reflected a default That really is not much in the way of
evidence and not nearly enough to get around the hearsay rule
In Re Joshua and Stephanie Mitchell Case No BK-S-07-16226-
LBR [US Bankruptcy Court District of Nevada Memorandum
Opinion of August 19 2008] Federal Court in Nevada attacked
MERSrsquo purported ldquoauthorityrdquo finding that there was no evidence
that MERS was the agent of the notersquos holder
Mortgage Electronic Registration Systems Inc v Girdvainis
Sumter County South Carolina Court of Common Pleas Case No
2005-CP-43-0278 (Order dated January 19 2006 citing to the
representations of MERS and court findings in Mortgage Electronic
Registration Systems Inc v Nebraska Dept of Banking and
Finance 270 Neb 529 704 NW 2d 784) As such ALL MERS
assignments are suspect at best and may in fact be fraudulent
The Court of Common Pleas of Sumter County South Carolina also
found that MERSrsquo rights were not as they were represented to be
that MERS had no rights to collect on any debt because it did not
extend any credit none of the borrowers owe MERS any money that
MERS does not own the promissory notes secured by the mortgages
and that MERS does not acquire any loan or extension of credit
secured by a lien on real property
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC v SAUNDERS 2010
ME 79 Docket Cum-09-640Supreme Judicial Court of
Maine | Ordered dated August 12 2010 We conclude that although
MERS is not in fact a ldquomortgageerdquo within the meaning of our
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 19
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
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25
foreclosure statute 14 MRS sectsect 6321-6325 and therefore had no
standing to institute foreclosure proceedings the real party in
interest was the Bank and the court did not abuse its discretion
by substituting the Bank for MERS Because however the Bank was
not entitled to summary judgment as a matter of law we vacate
the judgment and remand for further proceedings
MERS lsquoAGENTrsquo PREVIOUS MTG FRAUD SCHEME| Mortgage Electronic
Registration Systems Inc v Folkes 2010 NY Slip Op 32007 ndash NY
Supreme Court The settlement agent on all of the MERS documents
was listed as Peter Port Esq undeniably plaintiffs agent
According to an affidavit with documents attached from Ms
Nichole M Orr identified as an Assistant Vice President and
Senior Operational Risk Specialist for Bank of America Home
Loans the successor-in-interest to plaintiff Americarsquos Wholesale
Lender (April 1 2010)[1] certain wire transfers were made on
November 23 2004 to Mr Port The money appears to have come
from an account with JP Morgan but one of the documents also
shows inexplicably that Mr Port then sent $43506773 of this
money to Cheron A Ramphal at 14917 Motley Road Silver Springs
MD It should also be noted as it was in the decision of
February 5 2008 by Judge Payne that Mr Port pled guilty in
March 2006 in Federal District Court in New Jersey to providing
false documents in a scheme to commit mortgage fraud
lsquoNO PROOFrsquo MERS assigned BOTH Mortgage and NOTE to HSBC|HSBC
Bank etc v Miller et al The ldquoAssignment of Mortgagerdquo which
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 20
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
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20
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23
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25
is attached as exhibit E to the opposition papers makes no
reference to the note and only makes reference to the mortgage
being assigned The Assignment has a vague reference to note
wherein it states that ldquothe said assignor hereby grants and
conveys unto the said assignee the assignorrsquos beneficial
interest under the mortgage ldquobut this is the only language in
the Assignment which could possibly be found to refer to the
note
Contrary to the affirmation of Ms Szeliga in which she
represented in paragraph 17 that there was language in the
assignment which specifically referred to the note the
assignment in this case does not contain dega specific reference to
the Note
In light of the foregoing the Court is satisfied that there is
insufficient proof to establish that both the note and the
mortgage have been assigned to the Plaintiff and therefore it
is hereby ORDERED that the Plaintiff has no standing to maintain
the foreclosure action and it is further ORDERED that the
application of Defendant Jeffrey F Miller to dismiss is
granted without prejudice to renew upon proof of a valid
assignment of the note
UNION BANK CO v NORTH CAROLINA FURNITURE EXPRESS LLC MERS
lsquoGETS FORECLOSEDrsquo| ASSIGNS NADA TO BAC fka COUNTRYWIDE OHIO COURT
OF APPEAL While an assignment typically transfers the lien of
the mortgage on the property described in the mortgage as BAC
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 21
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
acknowledged in its reply brief an assignee can only take and
the assignor can only give the interest currently held by the
assignor RC 530131 With that stated it is clear under the
facts of this case that BAC never obtained an interest in the
property thus it could not have been substituted as a party-
defendant in the 2008 foreclosure action Here with respect to
the 2008 foreclosure action the date the last party was served
with notice was on January 28 2009 which was almost six
months before the purported assignment from MERS to BAC Next on
March 11 2009 the trial court issued a judgment entry of
default against MERS foreclosing on its interest in the property
Once again this default judgment was entered against MERS almost
three months before the purported assignment from MERS to BAC
occurred The effect of this default judgment against MERS
resulted in MERS having ldquono interest in and to said premises and
the equity of redemption of said Defendants in the real estate
described in Plaintiffrsquos Complaint shall be forever cut off
barred and foreclosedrdquo (2008 CV 0267 Mar 10 2009 JE)
Nevertheless according to the documents filed by BAC to evidence
its assignment from MERS MERS assigned its interest to BAC on
June 1 2009 (2009 CV 312 Oct 7 2009 JE Ex A)
Consequently as a result of the already entered default judgment
against MERS when BAC was assigned MERSrsquo interest in the
property on June 1 2009 BAC did not receive a viable interest
in the property See Quill v Maddox (May 31 2002) 2nd Dist
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 22
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
No 19052 at 2 (mortgageersquos assignee failed to establish that
it had an interest in the property as mortgageersquos interest was
foreclosed by the court before mortgagee assigned its interest to
assignee which could acquire no more interest than mortgagee
held) Thus we find that it was reasonable for the trial court
to have denied the motion to substitute BAC as a party-defendant
for MERS given its lack of interest in the property
HSBC v Thompson HSBCrsquos Irregularities Mortgage Documentation
and Corporate Relationships with Ocwen MERS and Delta Even if
HSBC had provided support for the proposition that ownership of
the note is not required the evidence about the assignment is
not properly before us The alleged mortgage assignment is
attached to the rejected affidavits of Neil Furthermore even if
we were to consider this ldquoevidencerdquo the mortgage assignment from
MERS to HSBC indicates that the assignment was prepared by Ocwen
for MERS and that Ocwen is located at the same Palm Beach
Florida address mentioned in Charlevagne and Antrobus See
Exhibit 3 attached to the affidavit of Chomie Neil In addition
Scott Anderson who signed the assignment as Vice-President of
MERS appears to be the same individual who claimed to be both
Vice-President of MERS and Vice-President of
Ocwen See Antrobus 2008 WL 2928553 4 and Charlevagne 2008
WL 2954767 1
MERS v TORR NY JUDGE SPINNER DENIES Deutsche amp MERS for NOT
Recording Mortgage Make up Affidavit and Assignment MERS lsquoQUIET
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 23
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3
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6
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9
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25
TITLErsquo FAIL To establish a claim of lien by a lost mortgage
there must be certain evidence (es) demonstrating that the
mortgage was properly executed with all the formalities required
by law andproof of the contents (es) of such instrument hellip Here
Burnettrsquos affidavit simply states that the original mortgage is
not in Deutsch Bankrsquos files and that he is advised (es) that
the title company is out of business Burnett gives no specifics
as to what efforts were made to locate the lost mortgagehellip More
importantly there is no affidavit from MLN by an individual with
personal knowledge of the facts that the complete file concerning
this mortgage was transferred to Deutsch Bank and that the copy
of the mortgage submitted to the court is an authentic copy of
Torrrsquos Mortgagerdquo (es)
LPP MORTGAGE v SABINE PROPERTIES FINAL DISPOSITION| NO Evidence
lsquoMERSrsquo Owned The NOTE Could NOT ASSIGN IT NY SUPREME COURT
FINAL DISPOSITION
Here there are no allegations or evidence that MERS was the
owner of the note such that it could assign it to LPP Thus the
assignment from MERS was insufficient to confer ownership of the
note to LPP and it has no standing to bring this action Kluge v
F umz ~1 45 AD2d at 538 (holding that the assignment of a
mortgage without transfer of the debt is a nullity) Johnson v
Melnikoff 20 Misc3d 1142(A) ldquo2 (Sup Ct Kings Co 2008) n 2
afr 65 AD3d 519 (2d Dept 20 1 Oj(noting that assignments by MERS
which did not include the underlying debt were a legal nullity)
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
m e Elect ro pic Registration Svstem v Coakley 41 AD3d 674 (2d
Dept 2007)(holding that MERS had standing to bring foreclosure
proceeding based on evidence that MERS was the lawful holder of
the promissory note and the mortgage)
Thus even assuming arguendo that the language of the assignment
from MERS to LPP could be interpreted as purporting to assign not
only the mortgage but also the note such assignment is invalid
since based on the record MERS lacked an ownership interest in
the note $ee LaSalle Bank Nat Assrsquon v Lamv 12 Misc3d 1191(A)
ldquo3 (Sup Ct Suffolk Co 2006) (noting that ldquothe mortgage is merely
an incident of and collateral security for the debt and an
assignment of the mortgage does not pass ownership of the debt
itself rsquo)
WACHOVIA BANK NATIONAL ASSOCIATION against ndashSTUART BRENNER et
aI Defendantrsquo s answer contains a defense of ldquolack of
standingrdquo Plaintiff has failed to establish it was the holder of
the note and the mortgage securing it when the action was
commenced In that regard plaintiff relies on an undated
assignment of the mortgage by MERS as nominee acknowledged by a
Texas notary on July 18 2009 The note sued on does not contain
an indication it has been negotiated The undated assignment by
MERS contains a provision at the assignment of the mortgage is
ldquoTOGETHER with the notes described in said mortgagerdquo The record
before me is devoid of proof that MERS as nominee for purposes of
recording had authority to assign the mortgage However assuming
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
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20
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25
it had such authority since it is a party to the mortgage and
such authority might be implied there has been a complete
failure to establish MERS as a non-party to the note to
negotiate its transfer A transfer of the note effects a transfer
of the mortgage MERS vs Coakley 41 AD3 674) the assignment of
a mortgage without a valid transfer of the mortgage note is a
nullity(Kluge vs Fugazv 145 AD2 537)
Following are more cases from THE NEW YORK SUPREME COURThellip
JUDGE SCHACK BLOWS lsquoMERSrsquo and Bank Of New York (BNY) OUT THE
DOOR
WM SPECIALTY MORTGAGE v JORGE RAMIREZ NO PROOF MERS OWNED THE
MORTGAGE AND NOTE
MERS v MAHENDRA RAMDOOLAR MERS IN NOT THE OWNER OF SUBJECT
MORTGAGE AND NOTE
HOLY COW MERS v MERS NO EVIDENCE IT HAD THE MORTGAGE AND NOTE
MERS V THOMAS STANDFORD MERS DOES NOT OWN MORTGAGE AND NOTE
MERS V GAIL PALMORE-ARCHER MERS DOES NOT OWN MORTGAGE AND NOTE
In the Matter of the Foreclosure of Tax Liens MERS GETS CHEWED
UP
BANK OF NEW YORK V JOSEPH CERULLO MERS NOT OWNER AND HOLDER OF
NOTE MORTGAGE
HSBC V HENRY FELD MERS NOT HOLDER OWNER OF NOTE
THE BANK OF NY MELLON V RICHARD BUSTRUC MERS IS NOT OWNER HOLDER
OF MORTGAGE AND NOTE
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 26
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
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19
20
21
22
23
24
25
ONEWEST BANK GETS THE BOOT MERS ASSIGNMENT MAKES NO REFERENCE TO
NOTE
NY SUPREME COURT WELLS FARGO MERS amp STEVEN J BAUM ldquoFATAL
DEFECTrdquo
FDN attorneys Jeff Barnes Esq and Elizabeth Lemoine Esq have
achieved a significant victory in Federal Court in Oregon against
MERS On Tuesday September 28 2010 Mr Barnes and Ms Lemoine
defended and argued Motions to Dismiss the borrowersrsquo lawsuit
challenging a nonjudicial foreclosure The Motions were filed by
the Defendants OneWest Bank and MERS The action was originally
filed in state court where a temporary restraining order was
entered stopping the sale On the eve of the scheduled hearing on
the borrowersrsquo Motion for Preliminary Injunction Defendants
OneWest Bank MERS and Regional Trustee Services removed the
case to Federal Court in an obvious attempt to circumvent the
state court injunction hearing The Federal Court entered an
Injunction and scheduled a hearing on the Motions filed by the
Defendants
During the course of the hearing the Court repeatedly raised the
ldquoMERS as nomineerdquo issues to counsel for the Defendants with said
counsel finally admitting upon repeated inquiry by the Court
that MERS cannot transfer promissory notes The Court denied the
Motions to Dismiss and has by Order commanded the injunction
against the sale to remain in place through the duration of the
borrowersrsquo lawsuit
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
REQUEST FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY
INJUNCTION
Because of the nature of the findings of the listed FACTS I
through FACT VII and lack of truthful evidence leading to these
illegal foreclosure proceedings Plaintiff prays for the Court to
issue a temporary restraining order and a preliminary injunction
against Defendant for any and all claims the Defendants are
pursuing against Plaintiff and Plaintiffrsquos property via Exhibits
(A B C D E and F) thereby causing harm to the Plaintiff
REQUEST FOR PERMANENT INJUNCTION AND REMUNERATION
Because of all of the FACTS and Court case evidence listed in
this complaint Plaintiff demands the Defendants produce the
original NOTE in question to avoid forgery and fraud charges If
NOTE is not produced within 30 days from the delivery and receipt
of the summons upon the Defendant Plaintiff will press forgery
charges pursuant RCW 9A60020 Plaintiff thereby will demand
remuneration of fraudulently collected monies paid to illegally
represented lenders Bank of America FKA Countrywide and interest
at 675 with the total amount of $8775636 + case fees or
Eighty Seven Thousand Seven hundred and fifty six dollars and 36
cents plus case fees to the Defendant who deceived the Plaintiff
by fraudulently claiming to be the legitimate lender trustee
and beneficiary while falsely claiming to hold the NOTE assuming
all assets and liabilities of Countrywide
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
RCW 740020
Grounds for issuance
When it appears by the complaint that the plaintiff is entitled
to the relief demanded and the relief or any part thereof
consists in restraining the commission or continuance of some
act the commission or continuance of which during the litigation
would produce great injury to the plaintiff or when during the
litigation it appears that the defendant is doing
or threatened or is about to do or is procuring or is suffering some act to
be done in violation of the plaintiffs rights respecting the subject of the
action tending to render the judgment ineffectual or where such relief or
any part thereof consists in restraining proceedings upon any final order or
judgment an injunction may be granted to restrain such act or proceedings
until the further order of the court which may afterwards be dissolved or
modified upon motion And where it appears in the complaint at the
commencement of the action or during the pendency thereof by affidavit that
the defendant threatens or is about to remove or dispose of his property with
intent to defraud his creditors a temporary injunction may be granted to
restrain the removal or disposition of his property
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 29
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
BySamuel Salmon 917C Philpott Rd Colville WA 99114
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 9
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
authorizes the issuance of certificates or written evidence of
any interest in said real estate under said trust and authorizes
the transfer of such certificates or evidence of interest by
assignment by the holder thereof by a simple writing or by
endorsement on the back of such certificate or evidence of
interest or delivery thereof to the vendee such transfer shall
be valid and all such assignments or transfers hereby authorized
and heretofore made in accordance with the provisions of this
section are hereby declared to be legal and valid
RCW 6404020
Requisites of a deed
Every deed shall be in writing signed by the party bound
thereby and acknowledged by the party before some person
authorized by this act to take acknowledgments of deeds
FACT V
Plaintiff affirms that According to (Exhibit D) the Corporation
Assignment of Deed of Trust on filed under the authority of
Stevens County Auditor in Stevens County WA that MERS Bank of
America and Recontrust are not legally qualified as a Lender or
Trustee and or the Beneficiary pursuant to RCW 6124010 (3)
(4) and RCW 6124020 as the Trustee ldquoRecontrust Company NA
is a wholly-owned subsidiary of Bank of Americardquo (this statement
is found on the Recontrust web site home page) Therefore
Recontrust is associated with and is fiducially responsible
entirely to the alleged Lender Bank of America
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
RCW 6124010 (3) (4)
Trustee qualifications mdash Successor trustee
(3) The trustee or successor trustee shall have no fiduciary
duty or fiduciary obligation to the grantor or other persons
having an interest in the property subject to the deed of trust
(4) The trustee or successor trustee has a duty of good
faith to the borrower beneficiary and grantor
RCW 6124020
ldquoNo person corporation or association may be both trustee and
beneficiary under the same deed of trustrdquo
FACT VI
The Plaintiff asserts that the Note and Deed of Trust were not
properly assigned to the defendant Bank of America and therefore
has not proven its self as the Legal holder of the Note and Deed
of Trust therefore it lacks standing to enforce any claim on
said property For the reasons that follow the Plaintiff finds
that the Defendant has not proven that it is the holder of the
original Note pursuant to RCW 6124030(7)(aampb) and RCW
6124010 (4)
RCW 6124030
(7) (a) That for residential real property before the notice
of trustees sale is recorded transmitted or served the
trustee shall have proof that the beneficiary is the owner of any
promissory note or other obligation secured by the deed of trust
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 11
1
2
3
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A declaration by the beneficiary made under the penalty of
perjury stating that the beneficiary is the actual holder of the
promissory note or other obligation secured by the deed of trust
shall be sufficient proof as required under this subsection
(7) (b) Unless the trustee has violated his or her duty under
RCW 6124010(4) the trustee is entitled to rely on the
beneficiarys declaration as evidence of proof required under
this subsection
6124010 (4) The trustee or successor trustee has a duty of good
faith to the borrower beneficiary and grantor
Statement
Any proof of Note possession offered by the trustee or
beneficiary other than the production of the actual original Note
is not acceptable due to said Trustee Lender and Beneficiary
violations of stated RCWrsquos therefore it lacks standing to issue
any claim on Plaintiffs property
FACT VII
The Plaintiff affirms that according to the alleged trusteersquos
records and Plaintiffs phone Conversation with Recontrust it
does not have a physical street address in the state of
Washington which is in violation of RCW 6124030 (6)
RCW 6124030 (6)
(6) That prior to the date of the notice of trustees sale and
continuing thereafter through the date of the trustees sale the
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 12
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6
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9
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trustee must maintain a street address in this state where
personal service of process may be made and the trustee must
maintain a physical presence and have telephone service at such
address
FACT VIII
The Deed of Trust contains false representation on its face when
it represented that MERS was a beneficiary under the Deed of
Trust which states that ldquoMERS is a separate corporation that is
acting solely as a Nominee for Lender and Lenderrsquos successors and
assigns MERS as the beneficiary under this Security Instrumentrdquo
MERS is NOT the beneficiary under the Deed of Trust it never had
ownership or possession of the Promissory Note which is the
obligation which is secured by the Deed of Trust and MERS has
never been entitled to receive one cent of remuneration from the
Plaintiffrsquos loan proceeds The statement that MERS is the nominee
is nonsensical language which means nothing in a real estate
transaction and most certainly MERS has never been nor is it now
the beneficiary under the Deed of Trust The language is a sham
MERS is a wholly owned subsidiary of MersCorp Inc MERS has no
interest in the NOTE the LOAN or the REAL PROPERTY therefore
has no authority to transfer the NOTE as a nominee pursuant to
RCW 6124005 (2)
(2) Beneficiary means the holder of the instrument or document
evidencing the obligations secured by the deed of trust
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 13
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2
3
4
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6
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8
9
10
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12
13
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excluding persons holding the same as security for a different
obligation
FACT IX
Plaintiff has proven the Trustee Lender and Beneficiary are
illegal in this entire loan process Plaintiff does not recognize
any authority the alleged Claimants or Defendants are making on
Plaintiffs real property as the Deed of Trust is in itself
entirely invalid and the only security for the Note Plaintiff
demands the Defendant produce the original Note with the proper
endorsements for all transfers required by law pursuant RCW
62A3-203 to be submitted for inspection and verification by a
court appointed expert pursuant to RCW 6124030 (6) and (7) (a)
(b) Until then the copy or forgery of the NOTE which was
included with Notice of Trustee sale is not sufficient to
validate any claim Made by the Defendant on the Plaintiffs
possessions and is in violation of Washington forgery laws
pursuant RCW 62A5-109 RCW 1037080 RCW 9A56320 and RCW
9A60020
RCW 9A60020
(1) A person is guilty of forgery if with intent to injure or
defraud
(a) He falsely makes completes or alters a written
instrument or
(b) He possesses utters offers disposes of or puts off
as true a written instrument which he knows to be forged
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 14
1
2
3
4
5
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7
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9
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11
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(2) In a proceeding under this section that is related to an
identity theft under RCW 935020 the crime will be considered
to have been committed in any locality where the person whose
means of identification or financial information was appropriated
resides or in which any part of the offense took place
regardless of whether the defendant was ever actually in that
locality
(3) Forgery is a class C felony
CASE EVIDENCE FOR FACT VIII AND FACT IX
MERS important case reference and commentary
MERS v Nebraska Dept of Banking and Finance ndash State Appellate
MERS demands to be recognized as having no actionable interest in
title 2005 Cite as 270 Neb 529
Merscorp Inc et al Respondents v Edward P Romaine amp c
et al Appellants et al Defendant the fact that the Mortgage
and Deed of Trust are separated is recognized (concurring
opinion) While affirming MERS could enter in the records as
ldquonomineerdquo the court recognized many inherent problems Rather
than resolve them they sloughed them off to the legislature
2006
The Boyko Decision -Federal District Judge Christopher Boyko of
the Eastern Division of the Northern District of Ohio Federal
Court overturns 14 foreclosure actions with a well reasoned
opinion outlining the failure of the foreclosing party to prove
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 15
1
2
3
4
5
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8
9
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standing This decision started the movement of challenging the
standing of the foreclosing party Oct 2007
Landmark National Bank v Kesler ndash KS State Supreme Court ndash MERS
has no standing to foreclose and is in fact a straw man Oct
2009
The importance of the findings of the Supreme Court of Kansas
cannot be overemphasized It is generally the law in all states
that if the law of one state has not specifically addressed a
specific legal issue that the court may look to the law of states
which have The Kansas Court acknowledged that the case was one
of ldquofirst impression in Kansasrdquo which is why the Kansas Court
looked to legal decisions from California Idaho New York
Missouri and other states for guidance and to support its
decision As we have previously reported the Ohio Courts have
looked to the legal decisions of New York to resolve issues in
foreclosure defense most notably issues of standing to institute
a foreclosure
It is practically certain that this decision will be the subject
of review by various courts MERS has already threatened a
ldquosecond appealrdquo (by requesting ldquoreconsiderationrdquo by the Supreme
Court of Kansas of its decision by the entire panel of Judges in
that Court) However for now the decision stands which
decision is of monumental importance for borrowers It thus
appears that the tide is finally starting to turn and that the
courts are beginning to recognize the extent of the wrongful
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 16
1
2
3
4
5
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7
8
9
10
11
12
13
14
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17
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practices and fraud perpetrated by ldquolendersrdquo and MERS upon
borrowers which conduct was engaged in for the sole purpose of
greed and profit for the ldquolendersrdquo and their ilk at the expense
of borrowers
MERS Inc Appellant v Southwest Homes of Arkansas Appellee The
second State Supreme Court ruling ndash AR 2009
BAC v US Bank ndash FL Appellate court upholds the concept of
determining the standing of the foreclosing party before allowing
summary judgement All cases in FL must now go through this
process 2007
Wells Fargo NAS v Farmer Motion to vacate in Supreme Court Kings
County NY 2009
In Re Joshua amp Stephanie Mitchell ndash US Federal Bankruptcy Court
NV 2009
In Re Wilhelm et al Case No 08-20577-TLM (opinion of Hon
Terry L Myers Chief US Bankruptcy Judge July 9 2009) ndash
Chief US Bankruptcy Judge ID ndash MERS by its construction
separates the Deed from the Mortgage
MERS v Johnston ndash Vermont Superior Court Decision
Wells Fargo v Jordon ndash OH Appellate Court
Weingartner et al v Chase Home Finance et al ndash US District Court
Schneider et al v Deutsche Bank et al (FL) Class action suit
(the filing) seeking to recover actual and statutory damages for
violations of the foreclosure process Provides an excellent
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 17
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2
3
4
5
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7
8
9
10
11
12
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15
16
17
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20
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description of the securitization process and the problems with
assignments
JP Morgan Chase v New Millenial et al ndash FL Appellate which
clearly demonstrates the chaos which can ensue when there is a
failure to register changes of ownership at the county recorderrsquos
office Everyone operates in good faith then out of nowhere
someone shows up waving a piece of paper The MERS system while
not explicitly named is clearly the culprit of the chaos 2009
In Re Walker Case No 10-21656-E-11 ndash Eastern District of CA
Bankruptcy court rules MERS has NO actionable interest in title
ldquoAny attempt to transfer the beneficial interest of a trust deed
without ownership of the underlying note is void under California
lawrdquo ldquoMERS could not as a matter of law have transferred the
note to Citibank from the original lender Bayrock Mortgage
Corprdquo The Courtrsquos opinion is headlined stating that MERS and
Citibank are not the real parties in interest
In re Vargas 396 BR at 517-19 Judge Bufford made a finding
that the witness called to testify as to debt and default was
incompetent All the witness could testify was that he had looked
at the MERS computerized records The witness was unable to
satisfy the requirements of the Federal Rules of Evidence
particularly Rule 803 as applied to computerized records in the
Ninth Circuit See id at 517-20 The low level employee could
really only testify that the MERS screen shot he reviewed
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 18
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2
3
4
5
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8
9
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16
17
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20
21
22
23
24
25
reflected a default That really is not much in the way of
evidence and not nearly enough to get around the hearsay rule
In Re Joshua and Stephanie Mitchell Case No BK-S-07-16226-
LBR [US Bankruptcy Court District of Nevada Memorandum
Opinion of August 19 2008] Federal Court in Nevada attacked
MERSrsquo purported ldquoauthorityrdquo finding that there was no evidence
that MERS was the agent of the notersquos holder
Mortgage Electronic Registration Systems Inc v Girdvainis
Sumter County South Carolina Court of Common Pleas Case No
2005-CP-43-0278 (Order dated January 19 2006 citing to the
representations of MERS and court findings in Mortgage Electronic
Registration Systems Inc v Nebraska Dept of Banking and
Finance 270 Neb 529 704 NW 2d 784) As such ALL MERS
assignments are suspect at best and may in fact be fraudulent
The Court of Common Pleas of Sumter County South Carolina also
found that MERSrsquo rights were not as they were represented to be
that MERS had no rights to collect on any debt because it did not
extend any credit none of the borrowers owe MERS any money that
MERS does not own the promissory notes secured by the mortgages
and that MERS does not acquire any loan or extension of credit
secured by a lien on real property
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC v SAUNDERS 2010
ME 79 Docket Cum-09-640Supreme Judicial Court of
Maine | Ordered dated August 12 2010 We conclude that although
MERS is not in fact a ldquomortgageerdquo within the meaning of our
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 19
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2
3
4
5
6
7
8
9
10
11
12
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15
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17
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foreclosure statute 14 MRS sectsect 6321-6325 and therefore had no
standing to institute foreclosure proceedings the real party in
interest was the Bank and the court did not abuse its discretion
by substituting the Bank for MERS Because however the Bank was
not entitled to summary judgment as a matter of law we vacate
the judgment and remand for further proceedings
MERS lsquoAGENTrsquo PREVIOUS MTG FRAUD SCHEME| Mortgage Electronic
Registration Systems Inc v Folkes 2010 NY Slip Op 32007 ndash NY
Supreme Court The settlement agent on all of the MERS documents
was listed as Peter Port Esq undeniably plaintiffs agent
According to an affidavit with documents attached from Ms
Nichole M Orr identified as an Assistant Vice President and
Senior Operational Risk Specialist for Bank of America Home
Loans the successor-in-interest to plaintiff Americarsquos Wholesale
Lender (April 1 2010)[1] certain wire transfers were made on
November 23 2004 to Mr Port The money appears to have come
from an account with JP Morgan but one of the documents also
shows inexplicably that Mr Port then sent $43506773 of this
money to Cheron A Ramphal at 14917 Motley Road Silver Springs
MD It should also be noted as it was in the decision of
February 5 2008 by Judge Payne that Mr Port pled guilty in
March 2006 in Federal District Court in New Jersey to providing
false documents in a scheme to commit mortgage fraud
lsquoNO PROOFrsquo MERS assigned BOTH Mortgage and NOTE to HSBC|HSBC
Bank etc v Miller et al The ldquoAssignment of Mortgagerdquo which
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 20
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2
3
4
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10
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14
15
16
17
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is attached as exhibit E to the opposition papers makes no
reference to the note and only makes reference to the mortgage
being assigned The Assignment has a vague reference to note
wherein it states that ldquothe said assignor hereby grants and
conveys unto the said assignee the assignorrsquos beneficial
interest under the mortgage ldquobut this is the only language in
the Assignment which could possibly be found to refer to the
note
Contrary to the affirmation of Ms Szeliga in which she
represented in paragraph 17 that there was language in the
assignment which specifically referred to the note the
assignment in this case does not contain dega specific reference to
the Note
In light of the foregoing the Court is satisfied that there is
insufficient proof to establish that both the note and the
mortgage have been assigned to the Plaintiff and therefore it
is hereby ORDERED that the Plaintiff has no standing to maintain
the foreclosure action and it is further ORDERED that the
application of Defendant Jeffrey F Miller to dismiss is
granted without prejudice to renew upon proof of a valid
assignment of the note
UNION BANK CO v NORTH CAROLINA FURNITURE EXPRESS LLC MERS
lsquoGETS FORECLOSEDrsquo| ASSIGNS NADA TO BAC fka COUNTRYWIDE OHIO COURT
OF APPEAL While an assignment typically transfers the lien of
the mortgage on the property described in the mortgage as BAC
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 21
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25
acknowledged in its reply brief an assignee can only take and
the assignor can only give the interest currently held by the
assignor RC 530131 With that stated it is clear under the
facts of this case that BAC never obtained an interest in the
property thus it could not have been substituted as a party-
defendant in the 2008 foreclosure action Here with respect to
the 2008 foreclosure action the date the last party was served
with notice was on January 28 2009 which was almost six
months before the purported assignment from MERS to BAC Next on
March 11 2009 the trial court issued a judgment entry of
default against MERS foreclosing on its interest in the property
Once again this default judgment was entered against MERS almost
three months before the purported assignment from MERS to BAC
occurred The effect of this default judgment against MERS
resulted in MERS having ldquono interest in and to said premises and
the equity of redemption of said Defendants in the real estate
described in Plaintiffrsquos Complaint shall be forever cut off
barred and foreclosedrdquo (2008 CV 0267 Mar 10 2009 JE)
Nevertheless according to the documents filed by BAC to evidence
its assignment from MERS MERS assigned its interest to BAC on
June 1 2009 (2009 CV 312 Oct 7 2009 JE Ex A)
Consequently as a result of the already entered default judgment
against MERS when BAC was assigned MERSrsquo interest in the
property on June 1 2009 BAC did not receive a viable interest
in the property See Quill v Maddox (May 31 2002) 2nd Dist
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 22
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2
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4
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7
8
9
10
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12
13
14
15
16
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20
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24
25
No 19052 at 2 (mortgageersquos assignee failed to establish that
it had an interest in the property as mortgageersquos interest was
foreclosed by the court before mortgagee assigned its interest to
assignee which could acquire no more interest than mortgagee
held) Thus we find that it was reasonable for the trial court
to have denied the motion to substitute BAC as a party-defendant
for MERS given its lack of interest in the property
HSBC v Thompson HSBCrsquos Irregularities Mortgage Documentation
and Corporate Relationships with Ocwen MERS and Delta Even if
HSBC had provided support for the proposition that ownership of
the note is not required the evidence about the assignment is
not properly before us The alleged mortgage assignment is
attached to the rejected affidavits of Neil Furthermore even if
we were to consider this ldquoevidencerdquo the mortgage assignment from
MERS to HSBC indicates that the assignment was prepared by Ocwen
for MERS and that Ocwen is located at the same Palm Beach
Florida address mentioned in Charlevagne and Antrobus See
Exhibit 3 attached to the affidavit of Chomie Neil In addition
Scott Anderson who signed the assignment as Vice-President of
MERS appears to be the same individual who claimed to be both
Vice-President of MERS and Vice-President of
Ocwen See Antrobus 2008 WL 2928553 4 and Charlevagne 2008
WL 2954767 1
MERS v TORR NY JUDGE SPINNER DENIES Deutsche amp MERS for NOT
Recording Mortgage Make up Affidavit and Assignment MERS lsquoQUIET
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 23
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3
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5
6
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8
9
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13
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25
TITLErsquo FAIL To establish a claim of lien by a lost mortgage
there must be certain evidence (es) demonstrating that the
mortgage was properly executed with all the formalities required
by law andproof of the contents (es) of such instrument hellip Here
Burnettrsquos affidavit simply states that the original mortgage is
not in Deutsch Bankrsquos files and that he is advised (es) that
the title company is out of business Burnett gives no specifics
as to what efforts were made to locate the lost mortgagehellip More
importantly there is no affidavit from MLN by an individual with
personal knowledge of the facts that the complete file concerning
this mortgage was transferred to Deutsch Bank and that the copy
of the mortgage submitted to the court is an authentic copy of
Torrrsquos Mortgagerdquo (es)
LPP MORTGAGE v SABINE PROPERTIES FINAL DISPOSITION| NO Evidence
lsquoMERSrsquo Owned The NOTE Could NOT ASSIGN IT NY SUPREME COURT
FINAL DISPOSITION
Here there are no allegations or evidence that MERS was the
owner of the note such that it could assign it to LPP Thus the
assignment from MERS was insufficient to confer ownership of the
note to LPP and it has no standing to bring this action Kluge v
F umz ~1 45 AD2d at 538 (holding that the assignment of a
mortgage without transfer of the debt is a nullity) Johnson v
Melnikoff 20 Misc3d 1142(A) ldquo2 (Sup Ct Kings Co 2008) n 2
afr 65 AD3d 519 (2d Dept 20 1 Oj(noting that assignments by MERS
which did not include the underlying debt were a legal nullity)
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
m e Elect ro pic Registration Svstem v Coakley 41 AD3d 674 (2d
Dept 2007)(holding that MERS had standing to bring foreclosure
proceeding based on evidence that MERS was the lawful holder of
the promissory note and the mortgage)
Thus even assuming arguendo that the language of the assignment
from MERS to LPP could be interpreted as purporting to assign not
only the mortgage but also the note such assignment is invalid
since based on the record MERS lacked an ownership interest in
the note $ee LaSalle Bank Nat Assrsquon v Lamv 12 Misc3d 1191(A)
ldquo3 (Sup Ct Suffolk Co 2006) (noting that ldquothe mortgage is merely
an incident of and collateral security for the debt and an
assignment of the mortgage does not pass ownership of the debt
itself rsquo)
WACHOVIA BANK NATIONAL ASSOCIATION against ndashSTUART BRENNER et
aI Defendantrsquo s answer contains a defense of ldquolack of
standingrdquo Plaintiff has failed to establish it was the holder of
the note and the mortgage securing it when the action was
commenced In that regard plaintiff relies on an undated
assignment of the mortgage by MERS as nominee acknowledged by a
Texas notary on July 18 2009 The note sued on does not contain
an indication it has been negotiated The undated assignment by
MERS contains a provision at the assignment of the mortgage is
ldquoTOGETHER with the notes described in said mortgagerdquo The record
before me is devoid of proof that MERS as nominee for purposes of
recording had authority to assign the mortgage However assuming
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
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20
21
22
23
24
25
it had such authority since it is a party to the mortgage and
such authority might be implied there has been a complete
failure to establish MERS as a non-party to the note to
negotiate its transfer A transfer of the note effects a transfer
of the mortgage MERS vs Coakley 41 AD3 674) the assignment of
a mortgage without a valid transfer of the mortgage note is a
nullity(Kluge vs Fugazv 145 AD2 537)
Following are more cases from THE NEW YORK SUPREME COURThellip
JUDGE SCHACK BLOWS lsquoMERSrsquo and Bank Of New York (BNY) OUT THE
DOOR
WM SPECIALTY MORTGAGE v JORGE RAMIREZ NO PROOF MERS OWNED THE
MORTGAGE AND NOTE
MERS v MAHENDRA RAMDOOLAR MERS IN NOT THE OWNER OF SUBJECT
MORTGAGE AND NOTE
HOLY COW MERS v MERS NO EVIDENCE IT HAD THE MORTGAGE AND NOTE
MERS V THOMAS STANDFORD MERS DOES NOT OWN MORTGAGE AND NOTE
MERS V GAIL PALMORE-ARCHER MERS DOES NOT OWN MORTGAGE AND NOTE
In the Matter of the Foreclosure of Tax Liens MERS GETS CHEWED
UP
BANK OF NEW YORK V JOSEPH CERULLO MERS NOT OWNER AND HOLDER OF
NOTE MORTGAGE
HSBC V HENRY FELD MERS NOT HOLDER OWNER OF NOTE
THE BANK OF NY MELLON V RICHARD BUSTRUC MERS IS NOT OWNER HOLDER
OF MORTGAGE AND NOTE
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 26
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ONEWEST BANK GETS THE BOOT MERS ASSIGNMENT MAKES NO REFERENCE TO
NOTE
NY SUPREME COURT WELLS FARGO MERS amp STEVEN J BAUM ldquoFATAL
DEFECTrdquo
FDN attorneys Jeff Barnes Esq and Elizabeth Lemoine Esq have
achieved a significant victory in Federal Court in Oregon against
MERS On Tuesday September 28 2010 Mr Barnes and Ms Lemoine
defended and argued Motions to Dismiss the borrowersrsquo lawsuit
challenging a nonjudicial foreclosure The Motions were filed by
the Defendants OneWest Bank and MERS The action was originally
filed in state court where a temporary restraining order was
entered stopping the sale On the eve of the scheduled hearing on
the borrowersrsquo Motion for Preliminary Injunction Defendants
OneWest Bank MERS and Regional Trustee Services removed the
case to Federal Court in an obvious attempt to circumvent the
state court injunction hearing The Federal Court entered an
Injunction and scheduled a hearing on the Motions filed by the
Defendants
During the course of the hearing the Court repeatedly raised the
ldquoMERS as nomineerdquo issues to counsel for the Defendants with said
counsel finally admitting upon repeated inquiry by the Court
that MERS cannot transfer promissory notes The Court denied the
Motions to Dismiss and has by Order commanded the injunction
against the sale to remain in place through the duration of the
borrowersrsquo lawsuit
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
REQUEST FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY
INJUNCTION
Because of the nature of the findings of the listed FACTS I
through FACT VII and lack of truthful evidence leading to these
illegal foreclosure proceedings Plaintiff prays for the Court to
issue a temporary restraining order and a preliminary injunction
against Defendant for any and all claims the Defendants are
pursuing against Plaintiff and Plaintiffrsquos property via Exhibits
(A B C D E and F) thereby causing harm to the Plaintiff
REQUEST FOR PERMANENT INJUNCTION AND REMUNERATION
Because of all of the FACTS and Court case evidence listed in
this complaint Plaintiff demands the Defendants produce the
original NOTE in question to avoid forgery and fraud charges If
NOTE is not produced within 30 days from the delivery and receipt
of the summons upon the Defendant Plaintiff will press forgery
charges pursuant RCW 9A60020 Plaintiff thereby will demand
remuneration of fraudulently collected monies paid to illegally
represented lenders Bank of America FKA Countrywide and interest
at 675 with the total amount of $8775636 + case fees or
Eighty Seven Thousand Seven hundred and fifty six dollars and 36
cents plus case fees to the Defendant who deceived the Plaintiff
by fraudulently claiming to be the legitimate lender trustee
and beneficiary while falsely claiming to hold the NOTE assuming
all assets and liabilities of Countrywide
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 28
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
RCW 740020
Grounds for issuance
When it appears by the complaint that the plaintiff is entitled
to the relief demanded and the relief or any part thereof
consists in restraining the commission or continuance of some
act the commission or continuance of which during the litigation
would produce great injury to the plaintiff or when during the
litigation it appears that the defendant is doing
or threatened or is about to do or is procuring or is suffering some act to
be done in violation of the plaintiffs rights respecting the subject of the
action tending to render the judgment ineffectual or where such relief or
any part thereof consists in restraining proceedings upon any final order or
judgment an injunction may be granted to restrain such act or proceedings
until the further order of the court which may afterwards be dissolved or
modified upon motion And where it appears in the complaint at the
commencement of the action or during the pendency thereof by affidavit that
the defendant threatens or is about to remove or dispose of his property with
intent to defraud his creditors a temporary injunction may be granted to
restrain the removal or disposition of his property
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 29
1
2
3
4
5
6
7
8
9
10
11
12
13
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15
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17
18
19
20
21
22
23
24
25
BySamuel Salmon 917C Philpott Rd Colville WA 99114
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 10
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2
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RCW 6124010 (3) (4)
Trustee qualifications mdash Successor trustee
(3) The trustee or successor trustee shall have no fiduciary
duty or fiduciary obligation to the grantor or other persons
having an interest in the property subject to the deed of trust
(4) The trustee or successor trustee has a duty of good
faith to the borrower beneficiary and grantor
RCW 6124020
ldquoNo person corporation or association may be both trustee and
beneficiary under the same deed of trustrdquo
FACT VI
The Plaintiff asserts that the Note and Deed of Trust were not
properly assigned to the defendant Bank of America and therefore
has not proven its self as the Legal holder of the Note and Deed
of Trust therefore it lacks standing to enforce any claim on
said property For the reasons that follow the Plaintiff finds
that the Defendant has not proven that it is the holder of the
original Note pursuant to RCW 6124030(7)(aampb) and RCW
6124010 (4)
RCW 6124030
(7) (a) That for residential real property before the notice
of trustees sale is recorded transmitted or served the
trustee shall have proof that the beneficiary is the owner of any
promissory note or other obligation secured by the deed of trust
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 11
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2
3
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A declaration by the beneficiary made under the penalty of
perjury stating that the beneficiary is the actual holder of the
promissory note or other obligation secured by the deed of trust
shall be sufficient proof as required under this subsection
(7) (b) Unless the trustee has violated his or her duty under
RCW 6124010(4) the trustee is entitled to rely on the
beneficiarys declaration as evidence of proof required under
this subsection
6124010 (4) The trustee or successor trustee has a duty of good
faith to the borrower beneficiary and grantor
Statement
Any proof of Note possession offered by the trustee or
beneficiary other than the production of the actual original Note
is not acceptable due to said Trustee Lender and Beneficiary
violations of stated RCWrsquos therefore it lacks standing to issue
any claim on Plaintiffs property
FACT VII
The Plaintiff affirms that according to the alleged trusteersquos
records and Plaintiffs phone Conversation with Recontrust it
does not have a physical street address in the state of
Washington which is in violation of RCW 6124030 (6)
RCW 6124030 (6)
(6) That prior to the date of the notice of trustees sale and
continuing thereafter through the date of the trustees sale the
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 12
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trustee must maintain a street address in this state where
personal service of process may be made and the trustee must
maintain a physical presence and have telephone service at such
address
FACT VIII
The Deed of Trust contains false representation on its face when
it represented that MERS was a beneficiary under the Deed of
Trust which states that ldquoMERS is a separate corporation that is
acting solely as a Nominee for Lender and Lenderrsquos successors and
assigns MERS as the beneficiary under this Security Instrumentrdquo
MERS is NOT the beneficiary under the Deed of Trust it never had
ownership or possession of the Promissory Note which is the
obligation which is secured by the Deed of Trust and MERS has
never been entitled to receive one cent of remuneration from the
Plaintiffrsquos loan proceeds The statement that MERS is the nominee
is nonsensical language which means nothing in a real estate
transaction and most certainly MERS has never been nor is it now
the beneficiary under the Deed of Trust The language is a sham
MERS is a wholly owned subsidiary of MersCorp Inc MERS has no
interest in the NOTE the LOAN or the REAL PROPERTY therefore
has no authority to transfer the NOTE as a nominee pursuant to
RCW 6124005 (2)
(2) Beneficiary means the holder of the instrument or document
evidencing the obligations secured by the deed of trust
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 13
1
2
3
4
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8
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excluding persons holding the same as security for a different
obligation
FACT IX
Plaintiff has proven the Trustee Lender and Beneficiary are
illegal in this entire loan process Plaintiff does not recognize
any authority the alleged Claimants or Defendants are making on
Plaintiffs real property as the Deed of Trust is in itself
entirely invalid and the only security for the Note Plaintiff
demands the Defendant produce the original Note with the proper
endorsements for all transfers required by law pursuant RCW
62A3-203 to be submitted for inspection and verification by a
court appointed expert pursuant to RCW 6124030 (6) and (7) (a)
(b) Until then the copy or forgery of the NOTE which was
included with Notice of Trustee sale is not sufficient to
validate any claim Made by the Defendant on the Plaintiffs
possessions and is in violation of Washington forgery laws
pursuant RCW 62A5-109 RCW 1037080 RCW 9A56320 and RCW
9A60020
RCW 9A60020
(1) A person is guilty of forgery if with intent to injure or
defraud
(a) He falsely makes completes or alters a written
instrument or
(b) He possesses utters offers disposes of or puts off
as true a written instrument which he knows to be forged
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 14
1
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(2) In a proceeding under this section that is related to an
identity theft under RCW 935020 the crime will be considered
to have been committed in any locality where the person whose
means of identification or financial information was appropriated
resides or in which any part of the offense took place
regardless of whether the defendant was ever actually in that
locality
(3) Forgery is a class C felony
CASE EVIDENCE FOR FACT VIII AND FACT IX
MERS important case reference and commentary
MERS v Nebraska Dept of Banking and Finance ndash State Appellate
MERS demands to be recognized as having no actionable interest in
title 2005 Cite as 270 Neb 529
Merscorp Inc et al Respondents v Edward P Romaine amp c
et al Appellants et al Defendant the fact that the Mortgage
and Deed of Trust are separated is recognized (concurring
opinion) While affirming MERS could enter in the records as
ldquonomineerdquo the court recognized many inherent problems Rather
than resolve them they sloughed them off to the legislature
2006
The Boyko Decision -Federal District Judge Christopher Boyko of
the Eastern Division of the Northern District of Ohio Federal
Court overturns 14 foreclosure actions with a well reasoned
opinion outlining the failure of the foreclosing party to prove
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 15
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standing This decision started the movement of challenging the
standing of the foreclosing party Oct 2007
Landmark National Bank v Kesler ndash KS State Supreme Court ndash MERS
has no standing to foreclose and is in fact a straw man Oct
2009
The importance of the findings of the Supreme Court of Kansas
cannot be overemphasized It is generally the law in all states
that if the law of one state has not specifically addressed a
specific legal issue that the court may look to the law of states
which have The Kansas Court acknowledged that the case was one
of ldquofirst impression in Kansasrdquo which is why the Kansas Court
looked to legal decisions from California Idaho New York
Missouri and other states for guidance and to support its
decision As we have previously reported the Ohio Courts have
looked to the legal decisions of New York to resolve issues in
foreclosure defense most notably issues of standing to institute
a foreclosure
It is practically certain that this decision will be the subject
of review by various courts MERS has already threatened a
ldquosecond appealrdquo (by requesting ldquoreconsiderationrdquo by the Supreme
Court of Kansas of its decision by the entire panel of Judges in
that Court) However for now the decision stands which
decision is of monumental importance for borrowers It thus
appears that the tide is finally starting to turn and that the
courts are beginning to recognize the extent of the wrongful
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 16
1
2
3
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9
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practices and fraud perpetrated by ldquolendersrdquo and MERS upon
borrowers which conduct was engaged in for the sole purpose of
greed and profit for the ldquolendersrdquo and their ilk at the expense
of borrowers
MERS Inc Appellant v Southwest Homes of Arkansas Appellee The
second State Supreme Court ruling ndash AR 2009
BAC v US Bank ndash FL Appellate court upholds the concept of
determining the standing of the foreclosing party before allowing
summary judgement All cases in FL must now go through this
process 2007
Wells Fargo NAS v Farmer Motion to vacate in Supreme Court Kings
County NY 2009
In Re Joshua amp Stephanie Mitchell ndash US Federal Bankruptcy Court
NV 2009
In Re Wilhelm et al Case No 08-20577-TLM (opinion of Hon
Terry L Myers Chief US Bankruptcy Judge July 9 2009) ndash
Chief US Bankruptcy Judge ID ndash MERS by its construction
separates the Deed from the Mortgage
MERS v Johnston ndash Vermont Superior Court Decision
Wells Fargo v Jordon ndash OH Appellate Court
Weingartner et al v Chase Home Finance et al ndash US District Court
Schneider et al v Deutsche Bank et al (FL) Class action suit
(the filing) seeking to recover actual and statutory damages for
violations of the foreclosure process Provides an excellent
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 17
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description of the securitization process and the problems with
assignments
JP Morgan Chase v New Millenial et al ndash FL Appellate which
clearly demonstrates the chaos which can ensue when there is a
failure to register changes of ownership at the county recorderrsquos
office Everyone operates in good faith then out of nowhere
someone shows up waving a piece of paper The MERS system while
not explicitly named is clearly the culprit of the chaos 2009
In Re Walker Case No 10-21656-E-11 ndash Eastern District of CA
Bankruptcy court rules MERS has NO actionable interest in title
ldquoAny attempt to transfer the beneficial interest of a trust deed
without ownership of the underlying note is void under California
lawrdquo ldquoMERS could not as a matter of law have transferred the
note to Citibank from the original lender Bayrock Mortgage
Corprdquo The Courtrsquos opinion is headlined stating that MERS and
Citibank are not the real parties in interest
In re Vargas 396 BR at 517-19 Judge Bufford made a finding
that the witness called to testify as to debt and default was
incompetent All the witness could testify was that he had looked
at the MERS computerized records The witness was unable to
satisfy the requirements of the Federal Rules of Evidence
particularly Rule 803 as applied to computerized records in the
Ninth Circuit See id at 517-20 The low level employee could
really only testify that the MERS screen shot he reviewed
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 18
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reflected a default That really is not much in the way of
evidence and not nearly enough to get around the hearsay rule
In Re Joshua and Stephanie Mitchell Case No BK-S-07-16226-
LBR [US Bankruptcy Court District of Nevada Memorandum
Opinion of August 19 2008] Federal Court in Nevada attacked
MERSrsquo purported ldquoauthorityrdquo finding that there was no evidence
that MERS was the agent of the notersquos holder
Mortgage Electronic Registration Systems Inc v Girdvainis
Sumter County South Carolina Court of Common Pleas Case No
2005-CP-43-0278 (Order dated January 19 2006 citing to the
representations of MERS and court findings in Mortgage Electronic
Registration Systems Inc v Nebraska Dept of Banking and
Finance 270 Neb 529 704 NW 2d 784) As such ALL MERS
assignments are suspect at best and may in fact be fraudulent
The Court of Common Pleas of Sumter County South Carolina also
found that MERSrsquo rights were not as they were represented to be
that MERS had no rights to collect on any debt because it did not
extend any credit none of the borrowers owe MERS any money that
MERS does not own the promissory notes secured by the mortgages
and that MERS does not acquire any loan or extension of credit
secured by a lien on real property
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC v SAUNDERS 2010
ME 79 Docket Cum-09-640Supreme Judicial Court of
Maine | Ordered dated August 12 2010 We conclude that although
MERS is not in fact a ldquomortgageerdquo within the meaning of our
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 19
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foreclosure statute 14 MRS sectsect 6321-6325 and therefore had no
standing to institute foreclosure proceedings the real party in
interest was the Bank and the court did not abuse its discretion
by substituting the Bank for MERS Because however the Bank was
not entitled to summary judgment as a matter of law we vacate
the judgment and remand for further proceedings
MERS lsquoAGENTrsquo PREVIOUS MTG FRAUD SCHEME| Mortgage Electronic
Registration Systems Inc v Folkes 2010 NY Slip Op 32007 ndash NY
Supreme Court The settlement agent on all of the MERS documents
was listed as Peter Port Esq undeniably plaintiffs agent
According to an affidavit with documents attached from Ms
Nichole M Orr identified as an Assistant Vice President and
Senior Operational Risk Specialist for Bank of America Home
Loans the successor-in-interest to plaintiff Americarsquos Wholesale
Lender (April 1 2010)[1] certain wire transfers were made on
November 23 2004 to Mr Port The money appears to have come
from an account with JP Morgan but one of the documents also
shows inexplicably that Mr Port then sent $43506773 of this
money to Cheron A Ramphal at 14917 Motley Road Silver Springs
MD It should also be noted as it was in the decision of
February 5 2008 by Judge Payne that Mr Port pled guilty in
March 2006 in Federal District Court in New Jersey to providing
false documents in a scheme to commit mortgage fraud
lsquoNO PROOFrsquo MERS assigned BOTH Mortgage and NOTE to HSBC|HSBC
Bank etc v Miller et al The ldquoAssignment of Mortgagerdquo which
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 20
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is attached as exhibit E to the opposition papers makes no
reference to the note and only makes reference to the mortgage
being assigned The Assignment has a vague reference to note
wherein it states that ldquothe said assignor hereby grants and
conveys unto the said assignee the assignorrsquos beneficial
interest under the mortgage ldquobut this is the only language in
the Assignment which could possibly be found to refer to the
note
Contrary to the affirmation of Ms Szeliga in which she
represented in paragraph 17 that there was language in the
assignment which specifically referred to the note the
assignment in this case does not contain dega specific reference to
the Note
In light of the foregoing the Court is satisfied that there is
insufficient proof to establish that both the note and the
mortgage have been assigned to the Plaintiff and therefore it
is hereby ORDERED that the Plaintiff has no standing to maintain
the foreclosure action and it is further ORDERED that the
application of Defendant Jeffrey F Miller to dismiss is
granted without prejudice to renew upon proof of a valid
assignment of the note
UNION BANK CO v NORTH CAROLINA FURNITURE EXPRESS LLC MERS
lsquoGETS FORECLOSEDrsquo| ASSIGNS NADA TO BAC fka COUNTRYWIDE OHIO COURT
OF APPEAL While an assignment typically transfers the lien of
the mortgage on the property described in the mortgage as BAC
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 21
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25
acknowledged in its reply brief an assignee can only take and
the assignor can only give the interest currently held by the
assignor RC 530131 With that stated it is clear under the
facts of this case that BAC never obtained an interest in the
property thus it could not have been substituted as a party-
defendant in the 2008 foreclosure action Here with respect to
the 2008 foreclosure action the date the last party was served
with notice was on January 28 2009 which was almost six
months before the purported assignment from MERS to BAC Next on
March 11 2009 the trial court issued a judgment entry of
default against MERS foreclosing on its interest in the property
Once again this default judgment was entered against MERS almost
three months before the purported assignment from MERS to BAC
occurred The effect of this default judgment against MERS
resulted in MERS having ldquono interest in and to said premises and
the equity of redemption of said Defendants in the real estate
described in Plaintiffrsquos Complaint shall be forever cut off
barred and foreclosedrdquo (2008 CV 0267 Mar 10 2009 JE)
Nevertheless according to the documents filed by BAC to evidence
its assignment from MERS MERS assigned its interest to BAC on
June 1 2009 (2009 CV 312 Oct 7 2009 JE Ex A)
Consequently as a result of the already entered default judgment
against MERS when BAC was assigned MERSrsquo interest in the
property on June 1 2009 BAC did not receive a viable interest
in the property See Quill v Maddox (May 31 2002) 2nd Dist
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 22
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25
No 19052 at 2 (mortgageersquos assignee failed to establish that
it had an interest in the property as mortgageersquos interest was
foreclosed by the court before mortgagee assigned its interest to
assignee which could acquire no more interest than mortgagee
held) Thus we find that it was reasonable for the trial court
to have denied the motion to substitute BAC as a party-defendant
for MERS given its lack of interest in the property
HSBC v Thompson HSBCrsquos Irregularities Mortgage Documentation
and Corporate Relationships with Ocwen MERS and Delta Even if
HSBC had provided support for the proposition that ownership of
the note is not required the evidence about the assignment is
not properly before us The alleged mortgage assignment is
attached to the rejected affidavits of Neil Furthermore even if
we were to consider this ldquoevidencerdquo the mortgage assignment from
MERS to HSBC indicates that the assignment was prepared by Ocwen
for MERS and that Ocwen is located at the same Palm Beach
Florida address mentioned in Charlevagne and Antrobus See
Exhibit 3 attached to the affidavit of Chomie Neil In addition
Scott Anderson who signed the assignment as Vice-President of
MERS appears to be the same individual who claimed to be both
Vice-President of MERS and Vice-President of
Ocwen See Antrobus 2008 WL 2928553 4 and Charlevagne 2008
WL 2954767 1
MERS v TORR NY JUDGE SPINNER DENIES Deutsche amp MERS for NOT
Recording Mortgage Make up Affidavit and Assignment MERS lsquoQUIET
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 23
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9
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TITLErsquo FAIL To establish a claim of lien by a lost mortgage
there must be certain evidence (es) demonstrating that the
mortgage was properly executed with all the formalities required
by law andproof of the contents (es) of such instrument hellip Here
Burnettrsquos affidavit simply states that the original mortgage is
not in Deutsch Bankrsquos files and that he is advised (es) that
the title company is out of business Burnett gives no specifics
as to what efforts were made to locate the lost mortgagehellip More
importantly there is no affidavit from MLN by an individual with
personal knowledge of the facts that the complete file concerning
this mortgage was transferred to Deutsch Bank and that the copy
of the mortgage submitted to the court is an authentic copy of
Torrrsquos Mortgagerdquo (es)
LPP MORTGAGE v SABINE PROPERTIES FINAL DISPOSITION| NO Evidence
lsquoMERSrsquo Owned The NOTE Could NOT ASSIGN IT NY SUPREME COURT
FINAL DISPOSITION
Here there are no allegations or evidence that MERS was the
owner of the note such that it could assign it to LPP Thus the
assignment from MERS was insufficient to confer ownership of the
note to LPP and it has no standing to bring this action Kluge v
F umz ~1 45 AD2d at 538 (holding that the assignment of a
mortgage without transfer of the debt is a nullity) Johnson v
Melnikoff 20 Misc3d 1142(A) ldquo2 (Sup Ct Kings Co 2008) n 2
afr 65 AD3d 519 (2d Dept 20 1 Oj(noting that assignments by MERS
which did not include the underlying debt were a legal nullity)
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 24
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
m e Elect ro pic Registration Svstem v Coakley 41 AD3d 674 (2d
Dept 2007)(holding that MERS had standing to bring foreclosure
proceeding based on evidence that MERS was the lawful holder of
the promissory note and the mortgage)
Thus even assuming arguendo that the language of the assignment
from MERS to LPP could be interpreted as purporting to assign not
only the mortgage but also the note such assignment is invalid
since based on the record MERS lacked an ownership interest in
the note $ee LaSalle Bank Nat Assrsquon v Lamv 12 Misc3d 1191(A)
ldquo3 (Sup Ct Suffolk Co 2006) (noting that ldquothe mortgage is merely
an incident of and collateral security for the debt and an
assignment of the mortgage does not pass ownership of the debt
itself rsquo)
WACHOVIA BANK NATIONAL ASSOCIATION against ndashSTUART BRENNER et
aI Defendantrsquo s answer contains a defense of ldquolack of
standingrdquo Plaintiff has failed to establish it was the holder of
the note and the mortgage securing it when the action was
commenced In that regard plaintiff relies on an undated
assignment of the mortgage by MERS as nominee acknowledged by a
Texas notary on July 18 2009 The note sued on does not contain
an indication it has been negotiated The undated assignment by
MERS contains a provision at the assignment of the mortgage is
ldquoTOGETHER with the notes described in said mortgagerdquo The record
before me is devoid of proof that MERS as nominee for purposes of
recording had authority to assign the mortgage However assuming
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
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20
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25
it had such authority since it is a party to the mortgage and
such authority might be implied there has been a complete
failure to establish MERS as a non-party to the note to
negotiate its transfer A transfer of the note effects a transfer
of the mortgage MERS vs Coakley 41 AD3 674) the assignment of
a mortgage without a valid transfer of the mortgage note is a
nullity(Kluge vs Fugazv 145 AD2 537)
Following are more cases from THE NEW YORK SUPREME COURThellip
JUDGE SCHACK BLOWS lsquoMERSrsquo and Bank Of New York (BNY) OUT THE
DOOR
WM SPECIALTY MORTGAGE v JORGE RAMIREZ NO PROOF MERS OWNED THE
MORTGAGE AND NOTE
MERS v MAHENDRA RAMDOOLAR MERS IN NOT THE OWNER OF SUBJECT
MORTGAGE AND NOTE
HOLY COW MERS v MERS NO EVIDENCE IT HAD THE MORTGAGE AND NOTE
MERS V THOMAS STANDFORD MERS DOES NOT OWN MORTGAGE AND NOTE
MERS V GAIL PALMORE-ARCHER MERS DOES NOT OWN MORTGAGE AND NOTE
In the Matter of the Foreclosure of Tax Liens MERS GETS CHEWED
UP
BANK OF NEW YORK V JOSEPH CERULLO MERS NOT OWNER AND HOLDER OF
NOTE MORTGAGE
HSBC V HENRY FELD MERS NOT HOLDER OWNER OF NOTE
THE BANK OF NY MELLON V RICHARD BUSTRUC MERS IS NOT OWNER HOLDER
OF MORTGAGE AND NOTE
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 26
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ONEWEST BANK GETS THE BOOT MERS ASSIGNMENT MAKES NO REFERENCE TO
NOTE
NY SUPREME COURT WELLS FARGO MERS amp STEVEN J BAUM ldquoFATAL
DEFECTrdquo
FDN attorneys Jeff Barnes Esq and Elizabeth Lemoine Esq have
achieved a significant victory in Federal Court in Oregon against
MERS On Tuesday September 28 2010 Mr Barnes and Ms Lemoine
defended and argued Motions to Dismiss the borrowersrsquo lawsuit
challenging a nonjudicial foreclosure The Motions were filed by
the Defendants OneWest Bank and MERS The action was originally
filed in state court where a temporary restraining order was
entered stopping the sale On the eve of the scheduled hearing on
the borrowersrsquo Motion for Preliminary Injunction Defendants
OneWest Bank MERS and Regional Trustee Services removed the
case to Federal Court in an obvious attempt to circumvent the
state court injunction hearing The Federal Court entered an
Injunction and scheduled a hearing on the Motions filed by the
Defendants
During the course of the hearing the Court repeatedly raised the
ldquoMERS as nomineerdquo issues to counsel for the Defendants with said
counsel finally admitting upon repeated inquiry by the Court
that MERS cannot transfer promissory notes The Court denied the
Motions to Dismiss and has by Order commanded the injunction
against the sale to remain in place through the duration of the
borrowersrsquo lawsuit
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
REQUEST FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY
INJUNCTION
Because of the nature of the findings of the listed FACTS I
through FACT VII and lack of truthful evidence leading to these
illegal foreclosure proceedings Plaintiff prays for the Court to
issue a temporary restraining order and a preliminary injunction
against Defendant for any and all claims the Defendants are
pursuing against Plaintiff and Plaintiffrsquos property via Exhibits
(A B C D E and F) thereby causing harm to the Plaintiff
REQUEST FOR PERMANENT INJUNCTION AND REMUNERATION
Because of all of the FACTS and Court case evidence listed in
this complaint Plaintiff demands the Defendants produce the
original NOTE in question to avoid forgery and fraud charges If
NOTE is not produced within 30 days from the delivery and receipt
of the summons upon the Defendant Plaintiff will press forgery
charges pursuant RCW 9A60020 Plaintiff thereby will demand
remuneration of fraudulently collected monies paid to illegally
represented lenders Bank of America FKA Countrywide and interest
at 675 with the total amount of $8775636 + case fees or
Eighty Seven Thousand Seven hundred and fifty six dollars and 36
cents plus case fees to the Defendant who deceived the Plaintiff
by fraudulently claiming to be the legitimate lender trustee
and beneficiary while falsely claiming to hold the NOTE assuming
all assets and liabilities of Countrywide
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 28
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2
3
4
5
6
7
8
9
10
11
12
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15
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20
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22
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25
RCW 740020
Grounds for issuance
When it appears by the complaint that the plaintiff is entitled
to the relief demanded and the relief or any part thereof
consists in restraining the commission or continuance of some
act the commission or continuance of which during the litigation
would produce great injury to the plaintiff or when during the
litigation it appears that the defendant is doing
or threatened or is about to do or is procuring or is suffering some act to
be done in violation of the plaintiffs rights respecting the subject of the
action tending to render the judgment ineffectual or where such relief or
any part thereof consists in restraining proceedings upon any final order or
judgment an injunction may be granted to restrain such act or proceedings
until the further order of the court which may afterwards be dissolved or
modified upon motion And where it appears in the complaint at the
commencement of the action or during the pendency thereof by affidavit that
the defendant threatens or is about to remove or dispose of his property with
intent to defraud his creditors a temporary injunction may be granted to
restrain the removal or disposition of his property
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 29
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2
3
4
5
6
7
8
9
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11
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13
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19
20
21
22
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25
BySamuel Salmon 917C Philpott Rd Colville WA 99114
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 11
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2
3
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6
7
8
9
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A declaration by the beneficiary made under the penalty of
perjury stating that the beneficiary is the actual holder of the
promissory note or other obligation secured by the deed of trust
shall be sufficient proof as required under this subsection
(7) (b) Unless the trustee has violated his or her duty under
RCW 6124010(4) the trustee is entitled to rely on the
beneficiarys declaration as evidence of proof required under
this subsection
6124010 (4) The trustee or successor trustee has a duty of good
faith to the borrower beneficiary and grantor
Statement
Any proof of Note possession offered by the trustee or
beneficiary other than the production of the actual original Note
is not acceptable due to said Trustee Lender and Beneficiary
violations of stated RCWrsquos therefore it lacks standing to issue
any claim on Plaintiffs property
FACT VII
The Plaintiff affirms that according to the alleged trusteersquos
records and Plaintiffs phone Conversation with Recontrust it
does not have a physical street address in the state of
Washington which is in violation of RCW 6124030 (6)
RCW 6124030 (6)
(6) That prior to the date of the notice of trustees sale and
continuing thereafter through the date of the trustees sale the
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 12
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2
3
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6
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9
10
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trustee must maintain a street address in this state where
personal service of process may be made and the trustee must
maintain a physical presence and have telephone service at such
address
FACT VIII
The Deed of Trust contains false representation on its face when
it represented that MERS was a beneficiary under the Deed of
Trust which states that ldquoMERS is a separate corporation that is
acting solely as a Nominee for Lender and Lenderrsquos successors and
assigns MERS as the beneficiary under this Security Instrumentrdquo
MERS is NOT the beneficiary under the Deed of Trust it never had
ownership or possession of the Promissory Note which is the
obligation which is secured by the Deed of Trust and MERS has
never been entitled to receive one cent of remuneration from the
Plaintiffrsquos loan proceeds The statement that MERS is the nominee
is nonsensical language which means nothing in a real estate
transaction and most certainly MERS has never been nor is it now
the beneficiary under the Deed of Trust The language is a sham
MERS is a wholly owned subsidiary of MersCorp Inc MERS has no
interest in the NOTE the LOAN or the REAL PROPERTY therefore
has no authority to transfer the NOTE as a nominee pursuant to
RCW 6124005 (2)
(2) Beneficiary means the holder of the instrument or document
evidencing the obligations secured by the deed of trust
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 13
1
2
3
4
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6
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8
9
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12
13
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25
excluding persons holding the same as security for a different
obligation
FACT IX
Plaintiff has proven the Trustee Lender and Beneficiary are
illegal in this entire loan process Plaintiff does not recognize
any authority the alleged Claimants or Defendants are making on
Plaintiffs real property as the Deed of Trust is in itself
entirely invalid and the only security for the Note Plaintiff
demands the Defendant produce the original Note with the proper
endorsements for all transfers required by law pursuant RCW
62A3-203 to be submitted for inspection and verification by a
court appointed expert pursuant to RCW 6124030 (6) and (7) (a)
(b) Until then the copy or forgery of the NOTE which was
included with Notice of Trustee sale is not sufficient to
validate any claim Made by the Defendant on the Plaintiffs
possessions and is in violation of Washington forgery laws
pursuant RCW 62A5-109 RCW 1037080 RCW 9A56320 and RCW
9A60020
RCW 9A60020
(1) A person is guilty of forgery if with intent to injure or
defraud
(a) He falsely makes completes or alters a written
instrument or
(b) He possesses utters offers disposes of or puts off
as true a written instrument which he knows to be forged
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 14
1
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(2) In a proceeding under this section that is related to an
identity theft under RCW 935020 the crime will be considered
to have been committed in any locality where the person whose
means of identification or financial information was appropriated
resides or in which any part of the offense took place
regardless of whether the defendant was ever actually in that
locality
(3) Forgery is a class C felony
CASE EVIDENCE FOR FACT VIII AND FACT IX
MERS important case reference and commentary
MERS v Nebraska Dept of Banking and Finance ndash State Appellate
MERS demands to be recognized as having no actionable interest in
title 2005 Cite as 270 Neb 529
Merscorp Inc et al Respondents v Edward P Romaine amp c
et al Appellants et al Defendant the fact that the Mortgage
and Deed of Trust are separated is recognized (concurring
opinion) While affirming MERS could enter in the records as
ldquonomineerdquo the court recognized many inherent problems Rather
than resolve them they sloughed them off to the legislature
2006
The Boyko Decision -Federal District Judge Christopher Boyko of
the Eastern Division of the Northern District of Ohio Federal
Court overturns 14 foreclosure actions with a well reasoned
opinion outlining the failure of the foreclosing party to prove
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 15
1
2
3
4
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8
9
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20
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standing This decision started the movement of challenging the
standing of the foreclosing party Oct 2007
Landmark National Bank v Kesler ndash KS State Supreme Court ndash MERS
has no standing to foreclose and is in fact a straw man Oct
2009
The importance of the findings of the Supreme Court of Kansas
cannot be overemphasized It is generally the law in all states
that if the law of one state has not specifically addressed a
specific legal issue that the court may look to the law of states
which have The Kansas Court acknowledged that the case was one
of ldquofirst impression in Kansasrdquo which is why the Kansas Court
looked to legal decisions from California Idaho New York
Missouri and other states for guidance and to support its
decision As we have previously reported the Ohio Courts have
looked to the legal decisions of New York to resolve issues in
foreclosure defense most notably issues of standing to institute
a foreclosure
It is practically certain that this decision will be the subject
of review by various courts MERS has already threatened a
ldquosecond appealrdquo (by requesting ldquoreconsiderationrdquo by the Supreme
Court of Kansas of its decision by the entire panel of Judges in
that Court) However for now the decision stands which
decision is of monumental importance for borrowers It thus
appears that the tide is finally starting to turn and that the
courts are beginning to recognize the extent of the wrongful
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 16
1
2
3
4
5
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8
9
10
11
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practices and fraud perpetrated by ldquolendersrdquo and MERS upon
borrowers which conduct was engaged in for the sole purpose of
greed and profit for the ldquolendersrdquo and their ilk at the expense
of borrowers
MERS Inc Appellant v Southwest Homes of Arkansas Appellee The
second State Supreme Court ruling ndash AR 2009
BAC v US Bank ndash FL Appellate court upholds the concept of
determining the standing of the foreclosing party before allowing
summary judgement All cases in FL must now go through this
process 2007
Wells Fargo NAS v Farmer Motion to vacate in Supreme Court Kings
County NY 2009
In Re Joshua amp Stephanie Mitchell ndash US Federal Bankruptcy Court
NV 2009
In Re Wilhelm et al Case No 08-20577-TLM (opinion of Hon
Terry L Myers Chief US Bankruptcy Judge July 9 2009) ndash
Chief US Bankruptcy Judge ID ndash MERS by its construction
separates the Deed from the Mortgage
MERS v Johnston ndash Vermont Superior Court Decision
Wells Fargo v Jordon ndash OH Appellate Court
Weingartner et al v Chase Home Finance et al ndash US District Court
Schneider et al v Deutsche Bank et al (FL) Class action suit
(the filing) seeking to recover actual and statutory damages for
violations of the foreclosure process Provides an excellent
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 17
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11
12
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20
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description of the securitization process and the problems with
assignments
JP Morgan Chase v New Millenial et al ndash FL Appellate which
clearly demonstrates the chaos which can ensue when there is a
failure to register changes of ownership at the county recorderrsquos
office Everyone operates in good faith then out of nowhere
someone shows up waving a piece of paper The MERS system while
not explicitly named is clearly the culprit of the chaos 2009
In Re Walker Case No 10-21656-E-11 ndash Eastern District of CA
Bankruptcy court rules MERS has NO actionable interest in title
ldquoAny attempt to transfer the beneficial interest of a trust deed
without ownership of the underlying note is void under California
lawrdquo ldquoMERS could not as a matter of law have transferred the
note to Citibank from the original lender Bayrock Mortgage
Corprdquo The Courtrsquos opinion is headlined stating that MERS and
Citibank are not the real parties in interest
In re Vargas 396 BR at 517-19 Judge Bufford made a finding
that the witness called to testify as to debt and default was
incompetent All the witness could testify was that he had looked
at the MERS computerized records The witness was unable to
satisfy the requirements of the Federal Rules of Evidence
particularly Rule 803 as applied to computerized records in the
Ninth Circuit See id at 517-20 The low level employee could
really only testify that the MERS screen shot he reviewed
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 18
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2
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5
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16
17
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20
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reflected a default That really is not much in the way of
evidence and not nearly enough to get around the hearsay rule
In Re Joshua and Stephanie Mitchell Case No BK-S-07-16226-
LBR [US Bankruptcy Court District of Nevada Memorandum
Opinion of August 19 2008] Federal Court in Nevada attacked
MERSrsquo purported ldquoauthorityrdquo finding that there was no evidence
that MERS was the agent of the notersquos holder
Mortgage Electronic Registration Systems Inc v Girdvainis
Sumter County South Carolina Court of Common Pleas Case No
2005-CP-43-0278 (Order dated January 19 2006 citing to the
representations of MERS and court findings in Mortgage Electronic
Registration Systems Inc v Nebraska Dept of Banking and
Finance 270 Neb 529 704 NW 2d 784) As such ALL MERS
assignments are suspect at best and may in fact be fraudulent
The Court of Common Pleas of Sumter County South Carolina also
found that MERSrsquo rights were not as they were represented to be
that MERS had no rights to collect on any debt because it did not
extend any credit none of the borrowers owe MERS any money that
MERS does not own the promissory notes secured by the mortgages
and that MERS does not acquire any loan or extension of credit
secured by a lien on real property
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC v SAUNDERS 2010
ME 79 Docket Cum-09-640Supreme Judicial Court of
Maine | Ordered dated August 12 2010 We conclude that although
MERS is not in fact a ldquomortgageerdquo within the meaning of our
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 19
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3
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foreclosure statute 14 MRS sectsect 6321-6325 and therefore had no
standing to institute foreclosure proceedings the real party in
interest was the Bank and the court did not abuse its discretion
by substituting the Bank for MERS Because however the Bank was
not entitled to summary judgment as a matter of law we vacate
the judgment and remand for further proceedings
MERS lsquoAGENTrsquo PREVIOUS MTG FRAUD SCHEME| Mortgage Electronic
Registration Systems Inc v Folkes 2010 NY Slip Op 32007 ndash NY
Supreme Court The settlement agent on all of the MERS documents
was listed as Peter Port Esq undeniably plaintiffs agent
According to an affidavit with documents attached from Ms
Nichole M Orr identified as an Assistant Vice President and
Senior Operational Risk Specialist for Bank of America Home
Loans the successor-in-interest to plaintiff Americarsquos Wholesale
Lender (April 1 2010)[1] certain wire transfers were made on
November 23 2004 to Mr Port The money appears to have come
from an account with JP Morgan but one of the documents also
shows inexplicably that Mr Port then sent $43506773 of this
money to Cheron A Ramphal at 14917 Motley Road Silver Springs
MD It should also be noted as it was in the decision of
February 5 2008 by Judge Payne that Mr Port pled guilty in
March 2006 in Federal District Court in New Jersey to providing
false documents in a scheme to commit mortgage fraud
lsquoNO PROOFrsquo MERS assigned BOTH Mortgage and NOTE to HSBC|HSBC
Bank etc v Miller et al The ldquoAssignment of Mortgagerdquo which
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 20
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2
3
4
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15
16
17
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is attached as exhibit E to the opposition papers makes no
reference to the note and only makes reference to the mortgage
being assigned The Assignment has a vague reference to note
wherein it states that ldquothe said assignor hereby grants and
conveys unto the said assignee the assignorrsquos beneficial
interest under the mortgage ldquobut this is the only language in
the Assignment which could possibly be found to refer to the
note
Contrary to the affirmation of Ms Szeliga in which she
represented in paragraph 17 that there was language in the
assignment which specifically referred to the note the
assignment in this case does not contain dega specific reference to
the Note
In light of the foregoing the Court is satisfied that there is
insufficient proof to establish that both the note and the
mortgage have been assigned to the Plaintiff and therefore it
is hereby ORDERED that the Plaintiff has no standing to maintain
the foreclosure action and it is further ORDERED that the
application of Defendant Jeffrey F Miller to dismiss is
granted without prejudice to renew upon proof of a valid
assignment of the note
UNION BANK CO v NORTH CAROLINA FURNITURE EXPRESS LLC MERS
lsquoGETS FORECLOSEDrsquo| ASSIGNS NADA TO BAC fka COUNTRYWIDE OHIO COURT
OF APPEAL While an assignment typically transfers the lien of
the mortgage on the property described in the mortgage as BAC
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 21
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2
3
4
5
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8
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11
12
13
14
15
16
17
18
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20
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22
23
24
25
acknowledged in its reply brief an assignee can only take and
the assignor can only give the interest currently held by the
assignor RC 530131 With that stated it is clear under the
facts of this case that BAC never obtained an interest in the
property thus it could not have been substituted as a party-
defendant in the 2008 foreclosure action Here with respect to
the 2008 foreclosure action the date the last party was served
with notice was on January 28 2009 which was almost six
months before the purported assignment from MERS to BAC Next on
March 11 2009 the trial court issued a judgment entry of
default against MERS foreclosing on its interest in the property
Once again this default judgment was entered against MERS almost
three months before the purported assignment from MERS to BAC
occurred The effect of this default judgment against MERS
resulted in MERS having ldquono interest in and to said premises and
the equity of redemption of said Defendants in the real estate
described in Plaintiffrsquos Complaint shall be forever cut off
barred and foreclosedrdquo (2008 CV 0267 Mar 10 2009 JE)
Nevertheless according to the documents filed by BAC to evidence
its assignment from MERS MERS assigned its interest to BAC on
June 1 2009 (2009 CV 312 Oct 7 2009 JE Ex A)
Consequently as a result of the already entered default judgment
against MERS when BAC was assigned MERSrsquo interest in the
property on June 1 2009 BAC did not receive a viable interest
in the property See Quill v Maddox (May 31 2002) 2nd Dist
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 22
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
No 19052 at 2 (mortgageersquos assignee failed to establish that
it had an interest in the property as mortgageersquos interest was
foreclosed by the court before mortgagee assigned its interest to
assignee which could acquire no more interest than mortgagee
held) Thus we find that it was reasonable for the trial court
to have denied the motion to substitute BAC as a party-defendant
for MERS given its lack of interest in the property
HSBC v Thompson HSBCrsquos Irregularities Mortgage Documentation
and Corporate Relationships with Ocwen MERS and Delta Even if
HSBC had provided support for the proposition that ownership of
the note is not required the evidence about the assignment is
not properly before us The alleged mortgage assignment is
attached to the rejected affidavits of Neil Furthermore even if
we were to consider this ldquoevidencerdquo the mortgage assignment from
MERS to HSBC indicates that the assignment was prepared by Ocwen
for MERS and that Ocwen is located at the same Palm Beach
Florida address mentioned in Charlevagne and Antrobus See
Exhibit 3 attached to the affidavit of Chomie Neil In addition
Scott Anderson who signed the assignment as Vice-President of
MERS appears to be the same individual who claimed to be both
Vice-President of MERS and Vice-President of
Ocwen See Antrobus 2008 WL 2928553 4 and Charlevagne 2008
WL 2954767 1
MERS v TORR NY JUDGE SPINNER DENIES Deutsche amp MERS for NOT
Recording Mortgage Make up Affidavit and Assignment MERS lsquoQUIET
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 23
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
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25
TITLErsquo FAIL To establish a claim of lien by a lost mortgage
there must be certain evidence (es) demonstrating that the
mortgage was properly executed with all the formalities required
by law andproof of the contents (es) of such instrument hellip Here
Burnettrsquos affidavit simply states that the original mortgage is
not in Deutsch Bankrsquos files and that he is advised (es) that
the title company is out of business Burnett gives no specifics
as to what efforts were made to locate the lost mortgagehellip More
importantly there is no affidavit from MLN by an individual with
personal knowledge of the facts that the complete file concerning
this mortgage was transferred to Deutsch Bank and that the copy
of the mortgage submitted to the court is an authentic copy of
Torrrsquos Mortgagerdquo (es)
LPP MORTGAGE v SABINE PROPERTIES FINAL DISPOSITION| NO Evidence
lsquoMERSrsquo Owned The NOTE Could NOT ASSIGN IT NY SUPREME COURT
FINAL DISPOSITION
Here there are no allegations or evidence that MERS was the
owner of the note such that it could assign it to LPP Thus the
assignment from MERS was insufficient to confer ownership of the
note to LPP and it has no standing to bring this action Kluge v
F umz ~1 45 AD2d at 538 (holding that the assignment of a
mortgage without transfer of the debt is a nullity) Johnson v
Melnikoff 20 Misc3d 1142(A) ldquo2 (Sup Ct Kings Co 2008) n 2
afr 65 AD3d 519 (2d Dept 20 1 Oj(noting that assignments by MERS
which did not include the underlying debt were a legal nullity)
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
m e Elect ro pic Registration Svstem v Coakley 41 AD3d 674 (2d
Dept 2007)(holding that MERS had standing to bring foreclosure
proceeding based on evidence that MERS was the lawful holder of
the promissory note and the mortgage)
Thus even assuming arguendo that the language of the assignment
from MERS to LPP could be interpreted as purporting to assign not
only the mortgage but also the note such assignment is invalid
since based on the record MERS lacked an ownership interest in
the note $ee LaSalle Bank Nat Assrsquon v Lamv 12 Misc3d 1191(A)
ldquo3 (Sup Ct Suffolk Co 2006) (noting that ldquothe mortgage is merely
an incident of and collateral security for the debt and an
assignment of the mortgage does not pass ownership of the debt
itself rsquo)
WACHOVIA BANK NATIONAL ASSOCIATION against ndashSTUART BRENNER et
aI Defendantrsquo s answer contains a defense of ldquolack of
standingrdquo Plaintiff has failed to establish it was the holder of
the note and the mortgage securing it when the action was
commenced In that regard plaintiff relies on an undated
assignment of the mortgage by MERS as nominee acknowledged by a
Texas notary on July 18 2009 The note sued on does not contain
an indication it has been negotiated The undated assignment by
MERS contains a provision at the assignment of the mortgage is
ldquoTOGETHER with the notes described in said mortgagerdquo The record
before me is devoid of proof that MERS as nominee for purposes of
recording had authority to assign the mortgage However assuming
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
it had such authority since it is a party to the mortgage and
such authority might be implied there has been a complete
failure to establish MERS as a non-party to the note to
negotiate its transfer A transfer of the note effects a transfer
of the mortgage MERS vs Coakley 41 AD3 674) the assignment of
a mortgage without a valid transfer of the mortgage note is a
nullity(Kluge vs Fugazv 145 AD2 537)
Following are more cases from THE NEW YORK SUPREME COURThellip
JUDGE SCHACK BLOWS lsquoMERSrsquo and Bank Of New York (BNY) OUT THE
DOOR
WM SPECIALTY MORTGAGE v JORGE RAMIREZ NO PROOF MERS OWNED THE
MORTGAGE AND NOTE
MERS v MAHENDRA RAMDOOLAR MERS IN NOT THE OWNER OF SUBJECT
MORTGAGE AND NOTE
HOLY COW MERS v MERS NO EVIDENCE IT HAD THE MORTGAGE AND NOTE
MERS V THOMAS STANDFORD MERS DOES NOT OWN MORTGAGE AND NOTE
MERS V GAIL PALMORE-ARCHER MERS DOES NOT OWN MORTGAGE AND NOTE
In the Matter of the Foreclosure of Tax Liens MERS GETS CHEWED
UP
BANK OF NEW YORK V JOSEPH CERULLO MERS NOT OWNER AND HOLDER OF
NOTE MORTGAGE
HSBC V HENRY FELD MERS NOT HOLDER OWNER OF NOTE
THE BANK OF NY MELLON V RICHARD BUSTRUC MERS IS NOT OWNER HOLDER
OF MORTGAGE AND NOTE
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 26
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ONEWEST BANK GETS THE BOOT MERS ASSIGNMENT MAKES NO REFERENCE TO
NOTE
NY SUPREME COURT WELLS FARGO MERS amp STEVEN J BAUM ldquoFATAL
DEFECTrdquo
FDN attorneys Jeff Barnes Esq and Elizabeth Lemoine Esq have
achieved a significant victory in Federal Court in Oregon against
MERS On Tuesday September 28 2010 Mr Barnes and Ms Lemoine
defended and argued Motions to Dismiss the borrowersrsquo lawsuit
challenging a nonjudicial foreclosure The Motions were filed by
the Defendants OneWest Bank and MERS The action was originally
filed in state court where a temporary restraining order was
entered stopping the sale On the eve of the scheduled hearing on
the borrowersrsquo Motion for Preliminary Injunction Defendants
OneWest Bank MERS and Regional Trustee Services removed the
case to Federal Court in an obvious attempt to circumvent the
state court injunction hearing The Federal Court entered an
Injunction and scheduled a hearing on the Motions filed by the
Defendants
During the course of the hearing the Court repeatedly raised the
ldquoMERS as nomineerdquo issues to counsel for the Defendants with said
counsel finally admitting upon repeated inquiry by the Court
that MERS cannot transfer promissory notes The Court denied the
Motions to Dismiss and has by Order commanded the injunction
against the sale to remain in place through the duration of the
borrowersrsquo lawsuit
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
REQUEST FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY
INJUNCTION
Because of the nature of the findings of the listed FACTS I
through FACT VII and lack of truthful evidence leading to these
illegal foreclosure proceedings Plaintiff prays for the Court to
issue a temporary restraining order and a preliminary injunction
against Defendant for any and all claims the Defendants are
pursuing against Plaintiff and Plaintiffrsquos property via Exhibits
(A B C D E and F) thereby causing harm to the Plaintiff
REQUEST FOR PERMANENT INJUNCTION AND REMUNERATION
Because of all of the FACTS and Court case evidence listed in
this complaint Plaintiff demands the Defendants produce the
original NOTE in question to avoid forgery and fraud charges If
NOTE is not produced within 30 days from the delivery and receipt
of the summons upon the Defendant Plaintiff will press forgery
charges pursuant RCW 9A60020 Plaintiff thereby will demand
remuneration of fraudulently collected monies paid to illegally
represented lenders Bank of America FKA Countrywide and interest
at 675 with the total amount of $8775636 + case fees or
Eighty Seven Thousand Seven hundred and fifty six dollars and 36
cents plus case fees to the Defendant who deceived the Plaintiff
by fraudulently claiming to be the legitimate lender trustee
and beneficiary while falsely claiming to hold the NOTE assuming
all assets and liabilities of Countrywide
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 28
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2
3
4
5
6
7
8
9
10
11
12
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20
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22
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25
RCW 740020
Grounds for issuance
When it appears by the complaint that the plaintiff is entitled
to the relief demanded and the relief or any part thereof
consists in restraining the commission or continuance of some
act the commission or continuance of which during the litigation
would produce great injury to the plaintiff or when during the
litigation it appears that the defendant is doing
or threatened or is about to do or is procuring or is suffering some act to
be done in violation of the plaintiffs rights respecting the subject of the
action tending to render the judgment ineffectual or where such relief or
any part thereof consists in restraining proceedings upon any final order or
judgment an injunction may be granted to restrain such act or proceedings
until the further order of the court which may afterwards be dissolved or
modified upon motion And where it appears in the complaint at the
commencement of the action or during the pendency thereof by affidavit that
the defendant threatens or is about to remove or dispose of his property with
intent to defraud his creditors a temporary injunction may be granted to
restrain the removal or disposition of his property
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 29
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
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19
20
21
22
23
24
25
BySamuel Salmon 917C Philpott Rd Colville WA 99114
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
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trustee must maintain a street address in this state where
personal service of process may be made and the trustee must
maintain a physical presence and have telephone service at such
address
FACT VIII
The Deed of Trust contains false representation on its face when
it represented that MERS was a beneficiary under the Deed of
Trust which states that ldquoMERS is a separate corporation that is
acting solely as a Nominee for Lender and Lenderrsquos successors and
assigns MERS as the beneficiary under this Security Instrumentrdquo
MERS is NOT the beneficiary under the Deed of Trust it never had
ownership or possession of the Promissory Note which is the
obligation which is secured by the Deed of Trust and MERS has
never been entitled to receive one cent of remuneration from the
Plaintiffrsquos loan proceeds The statement that MERS is the nominee
is nonsensical language which means nothing in a real estate
transaction and most certainly MERS has never been nor is it now
the beneficiary under the Deed of Trust The language is a sham
MERS is a wholly owned subsidiary of MersCorp Inc MERS has no
interest in the NOTE the LOAN or the REAL PROPERTY therefore
has no authority to transfer the NOTE as a nominee pursuant to
RCW 6124005 (2)
(2) Beneficiary means the holder of the instrument or document
evidencing the obligations secured by the deed of trust
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 13
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
excluding persons holding the same as security for a different
obligation
FACT IX
Plaintiff has proven the Trustee Lender and Beneficiary are
illegal in this entire loan process Plaintiff does not recognize
any authority the alleged Claimants or Defendants are making on
Plaintiffs real property as the Deed of Trust is in itself
entirely invalid and the only security for the Note Plaintiff
demands the Defendant produce the original Note with the proper
endorsements for all transfers required by law pursuant RCW
62A3-203 to be submitted for inspection and verification by a
court appointed expert pursuant to RCW 6124030 (6) and (7) (a)
(b) Until then the copy or forgery of the NOTE which was
included with Notice of Trustee sale is not sufficient to
validate any claim Made by the Defendant on the Plaintiffs
possessions and is in violation of Washington forgery laws
pursuant RCW 62A5-109 RCW 1037080 RCW 9A56320 and RCW
9A60020
RCW 9A60020
(1) A person is guilty of forgery if with intent to injure or
defraud
(a) He falsely makes completes or alters a written
instrument or
(b) He possesses utters offers disposes of or puts off
as true a written instrument which he knows to be forged
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 14
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
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20
21
22
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25
(2) In a proceeding under this section that is related to an
identity theft under RCW 935020 the crime will be considered
to have been committed in any locality where the person whose
means of identification or financial information was appropriated
resides or in which any part of the offense took place
regardless of whether the defendant was ever actually in that
locality
(3) Forgery is a class C felony
CASE EVIDENCE FOR FACT VIII AND FACT IX
MERS important case reference and commentary
MERS v Nebraska Dept of Banking and Finance ndash State Appellate
MERS demands to be recognized as having no actionable interest in
title 2005 Cite as 270 Neb 529
Merscorp Inc et al Respondents v Edward P Romaine amp c
et al Appellants et al Defendant the fact that the Mortgage
and Deed of Trust are separated is recognized (concurring
opinion) While affirming MERS could enter in the records as
ldquonomineerdquo the court recognized many inherent problems Rather
than resolve them they sloughed them off to the legislature
2006
The Boyko Decision -Federal District Judge Christopher Boyko of
the Eastern Division of the Northern District of Ohio Federal
Court overturns 14 foreclosure actions with a well reasoned
opinion outlining the failure of the foreclosing party to prove
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 15
1
2
3
4
5
6
7
8
9
10
11
12
13
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15
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17
18
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20
21
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23
24
25
standing This decision started the movement of challenging the
standing of the foreclosing party Oct 2007
Landmark National Bank v Kesler ndash KS State Supreme Court ndash MERS
has no standing to foreclose and is in fact a straw man Oct
2009
The importance of the findings of the Supreme Court of Kansas
cannot be overemphasized It is generally the law in all states
that if the law of one state has not specifically addressed a
specific legal issue that the court may look to the law of states
which have The Kansas Court acknowledged that the case was one
of ldquofirst impression in Kansasrdquo which is why the Kansas Court
looked to legal decisions from California Idaho New York
Missouri and other states for guidance and to support its
decision As we have previously reported the Ohio Courts have
looked to the legal decisions of New York to resolve issues in
foreclosure defense most notably issues of standing to institute
a foreclosure
It is practically certain that this decision will be the subject
of review by various courts MERS has already threatened a
ldquosecond appealrdquo (by requesting ldquoreconsiderationrdquo by the Supreme
Court of Kansas of its decision by the entire panel of Judges in
that Court) However for now the decision stands which
decision is of monumental importance for borrowers It thus
appears that the tide is finally starting to turn and that the
courts are beginning to recognize the extent of the wrongful
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 16
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
practices and fraud perpetrated by ldquolendersrdquo and MERS upon
borrowers which conduct was engaged in for the sole purpose of
greed and profit for the ldquolendersrdquo and their ilk at the expense
of borrowers
MERS Inc Appellant v Southwest Homes of Arkansas Appellee The
second State Supreme Court ruling ndash AR 2009
BAC v US Bank ndash FL Appellate court upholds the concept of
determining the standing of the foreclosing party before allowing
summary judgement All cases in FL must now go through this
process 2007
Wells Fargo NAS v Farmer Motion to vacate in Supreme Court Kings
County NY 2009
In Re Joshua amp Stephanie Mitchell ndash US Federal Bankruptcy Court
NV 2009
In Re Wilhelm et al Case No 08-20577-TLM (opinion of Hon
Terry L Myers Chief US Bankruptcy Judge July 9 2009) ndash
Chief US Bankruptcy Judge ID ndash MERS by its construction
separates the Deed from the Mortgage
MERS v Johnston ndash Vermont Superior Court Decision
Wells Fargo v Jordon ndash OH Appellate Court
Weingartner et al v Chase Home Finance et al ndash US District Court
Schneider et al v Deutsche Bank et al (FL) Class action suit
(the filing) seeking to recover actual and statutory damages for
violations of the foreclosure process Provides an excellent
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 17
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
description of the securitization process and the problems with
assignments
JP Morgan Chase v New Millenial et al ndash FL Appellate which
clearly demonstrates the chaos which can ensue when there is a
failure to register changes of ownership at the county recorderrsquos
office Everyone operates in good faith then out of nowhere
someone shows up waving a piece of paper The MERS system while
not explicitly named is clearly the culprit of the chaos 2009
In Re Walker Case No 10-21656-E-11 ndash Eastern District of CA
Bankruptcy court rules MERS has NO actionable interest in title
ldquoAny attempt to transfer the beneficial interest of a trust deed
without ownership of the underlying note is void under California
lawrdquo ldquoMERS could not as a matter of law have transferred the
note to Citibank from the original lender Bayrock Mortgage
Corprdquo The Courtrsquos opinion is headlined stating that MERS and
Citibank are not the real parties in interest
In re Vargas 396 BR at 517-19 Judge Bufford made a finding
that the witness called to testify as to debt and default was
incompetent All the witness could testify was that he had looked
at the MERS computerized records The witness was unable to
satisfy the requirements of the Federal Rules of Evidence
particularly Rule 803 as applied to computerized records in the
Ninth Circuit See id at 517-20 The low level employee could
really only testify that the MERS screen shot he reviewed
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 18
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
reflected a default That really is not much in the way of
evidence and not nearly enough to get around the hearsay rule
In Re Joshua and Stephanie Mitchell Case No BK-S-07-16226-
LBR [US Bankruptcy Court District of Nevada Memorandum
Opinion of August 19 2008] Federal Court in Nevada attacked
MERSrsquo purported ldquoauthorityrdquo finding that there was no evidence
that MERS was the agent of the notersquos holder
Mortgage Electronic Registration Systems Inc v Girdvainis
Sumter County South Carolina Court of Common Pleas Case No
2005-CP-43-0278 (Order dated January 19 2006 citing to the
representations of MERS and court findings in Mortgage Electronic
Registration Systems Inc v Nebraska Dept of Banking and
Finance 270 Neb 529 704 NW 2d 784) As such ALL MERS
assignments are suspect at best and may in fact be fraudulent
The Court of Common Pleas of Sumter County South Carolina also
found that MERSrsquo rights were not as they were represented to be
that MERS had no rights to collect on any debt because it did not
extend any credit none of the borrowers owe MERS any money that
MERS does not own the promissory notes secured by the mortgages
and that MERS does not acquire any loan or extension of credit
secured by a lien on real property
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC v SAUNDERS 2010
ME 79 Docket Cum-09-640Supreme Judicial Court of
Maine | Ordered dated August 12 2010 We conclude that although
MERS is not in fact a ldquomortgageerdquo within the meaning of our
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 19
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2
3
4
5
6
7
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9
10
11
12
13
14
15
16
17
18
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20
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foreclosure statute 14 MRS sectsect 6321-6325 and therefore had no
standing to institute foreclosure proceedings the real party in
interest was the Bank and the court did not abuse its discretion
by substituting the Bank for MERS Because however the Bank was
not entitled to summary judgment as a matter of law we vacate
the judgment and remand for further proceedings
MERS lsquoAGENTrsquo PREVIOUS MTG FRAUD SCHEME| Mortgage Electronic
Registration Systems Inc v Folkes 2010 NY Slip Op 32007 ndash NY
Supreme Court The settlement agent on all of the MERS documents
was listed as Peter Port Esq undeniably plaintiffs agent
According to an affidavit with documents attached from Ms
Nichole M Orr identified as an Assistant Vice President and
Senior Operational Risk Specialist for Bank of America Home
Loans the successor-in-interest to plaintiff Americarsquos Wholesale
Lender (April 1 2010)[1] certain wire transfers were made on
November 23 2004 to Mr Port The money appears to have come
from an account with JP Morgan but one of the documents also
shows inexplicably that Mr Port then sent $43506773 of this
money to Cheron A Ramphal at 14917 Motley Road Silver Springs
MD It should also be noted as it was in the decision of
February 5 2008 by Judge Payne that Mr Port pled guilty in
March 2006 in Federal District Court in New Jersey to providing
false documents in a scheme to commit mortgage fraud
lsquoNO PROOFrsquo MERS assigned BOTH Mortgage and NOTE to HSBC|HSBC
Bank etc v Miller et al The ldquoAssignment of Mortgagerdquo which
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 20
1
2
3
4
5
6
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9
10
11
12
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14
15
16
17
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20
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is attached as exhibit E to the opposition papers makes no
reference to the note and only makes reference to the mortgage
being assigned The Assignment has a vague reference to note
wherein it states that ldquothe said assignor hereby grants and
conveys unto the said assignee the assignorrsquos beneficial
interest under the mortgage ldquobut this is the only language in
the Assignment which could possibly be found to refer to the
note
Contrary to the affirmation of Ms Szeliga in which she
represented in paragraph 17 that there was language in the
assignment which specifically referred to the note the
assignment in this case does not contain dega specific reference to
the Note
In light of the foregoing the Court is satisfied that there is
insufficient proof to establish that both the note and the
mortgage have been assigned to the Plaintiff and therefore it
is hereby ORDERED that the Plaintiff has no standing to maintain
the foreclosure action and it is further ORDERED that the
application of Defendant Jeffrey F Miller to dismiss is
granted without prejudice to renew upon proof of a valid
assignment of the note
UNION BANK CO v NORTH CAROLINA FURNITURE EXPRESS LLC MERS
lsquoGETS FORECLOSEDrsquo| ASSIGNS NADA TO BAC fka COUNTRYWIDE OHIO COURT
OF APPEAL While an assignment typically transfers the lien of
the mortgage on the property described in the mortgage as BAC
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 21
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
acknowledged in its reply brief an assignee can only take and
the assignor can only give the interest currently held by the
assignor RC 530131 With that stated it is clear under the
facts of this case that BAC never obtained an interest in the
property thus it could not have been substituted as a party-
defendant in the 2008 foreclosure action Here with respect to
the 2008 foreclosure action the date the last party was served
with notice was on January 28 2009 which was almost six
months before the purported assignment from MERS to BAC Next on
March 11 2009 the trial court issued a judgment entry of
default against MERS foreclosing on its interest in the property
Once again this default judgment was entered against MERS almost
three months before the purported assignment from MERS to BAC
occurred The effect of this default judgment against MERS
resulted in MERS having ldquono interest in and to said premises and
the equity of redemption of said Defendants in the real estate
described in Plaintiffrsquos Complaint shall be forever cut off
barred and foreclosedrdquo (2008 CV 0267 Mar 10 2009 JE)
Nevertheless according to the documents filed by BAC to evidence
its assignment from MERS MERS assigned its interest to BAC on
June 1 2009 (2009 CV 312 Oct 7 2009 JE Ex A)
Consequently as a result of the already entered default judgment
against MERS when BAC was assigned MERSrsquo interest in the
property on June 1 2009 BAC did not receive a viable interest
in the property See Quill v Maddox (May 31 2002) 2nd Dist
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 22
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
No 19052 at 2 (mortgageersquos assignee failed to establish that
it had an interest in the property as mortgageersquos interest was
foreclosed by the court before mortgagee assigned its interest to
assignee which could acquire no more interest than mortgagee
held) Thus we find that it was reasonable for the trial court
to have denied the motion to substitute BAC as a party-defendant
for MERS given its lack of interest in the property
HSBC v Thompson HSBCrsquos Irregularities Mortgage Documentation
and Corporate Relationships with Ocwen MERS and Delta Even if
HSBC had provided support for the proposition that ownership of
the note is not required the evidence about the assignment is
not properly before us The alleged mortgage assignment is
attached to the rejected affidavits of Neil Furthermore even if
we were to consider this ldquoevidencerdquo the mortgage assignment from
MERS to HSBC indicates that the assignment was prepared by Ocwen
for MERS and that Ocwen is located at the same Palm Beach
Florida address mentioned in Charlevagne and Antrobus See
Exhibit 3 attached to the affidavit of Chomie Neil In addition
Scott Anderson who signed the assignment as Vice-President of
MERS appears to be the same individual who claimed to be both
Vice-President of MERS and Vice-President of
Ocwen See Antrobus 2008 WL 2928553 4 and Charlevagne 2008
WL 2954767 1
MERS v TORR NY JUDGE SPINNER DENIES Deutsche amp MERS for NOT
Recording Mortgage Make up Affidavit and Assignment MERS lsquoQUIET
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
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20
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22
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24
25
TITLErsquo FAIL To establish a claim of lien by a lost mortgage
there must be certain evidence (es) demonstrating that the
mortgage was properly executed with all the formalities required
by law andproof of the contents (es) of such instrument hellip Here
Burnettrsquos affidavit simply states that the original mortgage is
not in Deutsch Bankrsquos files and that he is advised (es) that
the title company is out of business Burnett gives no specifics
as to what efforts were made to locate the lost mortgagehellip More
importantly there is no affidavit from MLN by an individual with
personal knowledge of the facts that the complete file concerning
this mortgage was transferred to Deutsch Bank and that the copy
of the mortgage submitted to the court is an authentic copy of
Torrrsquos Mortgagerdquo (es)
LPP MORTGAGE v SABINE PROPERTIES FINAL DISPOSITION| NO Evidence
lsquoMERSrsquo Owned The NOTE Could NOT ASSIGN IT NY SUPREME COURT
FINAL DISPOSITION
Here there are no allegations or evidence that MERS was the
owner of the note such that it could assign it to LPP Thus the
assignment from MERS was insufficient to confer ownership of the
note to LPP and it has no standing to bring this action Kluge v
F umz ~1 45 AD2d at 538 (holding that the assignment of a
mortgage without transfer of the debt is a nullity) Johnson v
Melnikoff 20 Misc3d 1142(A) ldquo2 (Sup Ct Kings Co 2008) n 2
afr 65 AD3d 519 (2d Dept 20 1 Oj(noting that assignments by MERS
which did not include the underlying debt were a legal nullity)
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
m e Elect ro pic Registration Svstem v Coakley 41 AD3d 674 (2d
Dept 2007)(holding that MERS had standing to bring foreclosure
proceeding based on evidence that MERS was the lawful holder of
the promissory note and the mortgage)
Thus even assuming arguendo that the language of the assignment
from MERS to LPP could be interpreted as purporting to assign not
only the mortgage but also the note such assignment is invalid
since based on the record MERS lacked an ownership interest in
the note $ee LaSalle Bank Nat Assrsquon v Lamv 12 Misc3d 1191(A)
ldquo3 (Sup Ct Suffolk Co 2006) (noting that ldquothe mortgage is merely
an incident of and collateral security for the debt and an
assignment of the mortgage does not pass ownership of the debt
itself rsquo)
WACHOVIA BANK NATIONAL ASSOCIATION against ndashSTUART BRENNER et
aI Defendantrsquo s answer contains a defense of ldquolack of
standingrdquo Plaintiff has failed to establish it was the holder of
the note and the mortgage securing it when the action was
commenced In that regard plaintiff relies on an undated
assignment of the mortgage by MERS as nominee acknowledged by a
Texas notary on July 18 2009 The note sued on does not contain
an indication it has been negotiated The undated assignment by
MERS contains a provision at the assignment of the mortgage is
ldquoTOGETHER with the notes described in said mortgagerdquo The record
before me is devoid of proof that MERS as nominee for purposes of
recording had authority to assign the mortgage However assuming
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
it had such authority since it is a party to the mortgage and
such authority might be implied there has been a complete
failure to establish MERS as a non-party to the note to
negotiate its transfer A transfer of the note effects a transfer
of the mortgage MERS vs Coakley 41 AD3 674) the assignment of
a mortgage without a valid transfer of the mortgage note is a
nullity(Kluge vs Fugazv 145 AD2 537)
Following are more cases from THE NEW YORK SUPREME COURThellip
JUDGE SCHACK BLOWS lsquoMERSrsquo and Bank Of New York (BNY) OUT THE
DOOR
WM SPECIALTY MORTGAGE v JORGE RAMIREZ NO PROOF MERS OWNED THE
MORTGAGE AND NOTE
MERS v MAHENDRA RAMDOOLAR MERS IN NOT THE OWNER OF SUBJECT
MORTGAGE AND NOTE
HOLY COW MERS v MERS NO EVIDENCE IT HAD THE MORTGAGE AND NOTE
MERS V THOMAS STANDFORD MERS DOES NOT OWN MORTGAGE AND NOTE
MERS V GAIL PALMORE-ARCHER MERS DOES NOT OWN MORTGAGE AND NOTE
In the Matter of the Foreclosure of Tax Liens MERS GETS CHEWED
UP
BANK OF NEW YORK V JOSEPH CERULLO MERS NOT OWNER AND HOLDER OF
NOTE MORTGAGE
HSBC V HENRY FELD MERS NOT HOLDER OWNER OF NOTE
THE BANK OF NY MELLON V RICHARD BUSTRUC MERS IS NOT OWNER HOLDER
OF MORTGAGE AND NOTE
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 26
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ONEWEST BANK GETS THE BOOT MERS ASSIGNMENT MAKES NO REFERENCE TO
NOTE
NY SUPREME COURT WELLS FARGO MERS amp STEVEN J BAUM ldquoFATAL
DEFECTrdquo
FDN attorneys Jeff Barnes Esq and Elizabeth Lemoine Esq have
achieved a significant victory in Federal Court in Oregon against
MERS On Tuesday September 28 2010 Mr Barnes and Ms Lemoine
defended and argued Motions to Dismiss the borrowersrsquo lawsuit
challenging a nonjudicial foreclosure The Motions were filed by
the Defendants OneWest Bank and MERS The action was originally
filed in state court where a temporary restraining order was
entered stopping the sale On the eve of the scheduled hearing on
the borrowersrsquo Motion for Preliminary Injunction Defendants
OneWest Bank MERS and Regional Trustee Services removed the
case to Federal Court in an obvious attempt to circumvent the
state court injunction hearing The Federal Court entered an
Injunction and scheduled a hearing on the Motions filed by the
Defendants
During the course of the hearing the Court repeatedly raised the
ldquoMERS as nomineerdquo issues to counsel for the Defendants with said
counsel finally admitting upon repeated inquiry by the Court
that MERS cannot transfer promissory notes The Court denied the
Motions to Dismiss and has by Order commanded the injunction
against the sale to remain in place through the duration of the
borrowersrsquo lawsuit
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
REQUEST FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY
INJUNCTION
Because of the nature of the findings of the listed FACTS I
through FACT VII and lack of truthful evidence leading to these
illegal foreclosure proceedings Plaintiff prays for the Court to
issue a temporary restraining order and a preliminary injunction
against Defendant for any and all claims the Defendants are
pursuing against Plaintiff and Plaintiffrsquos property via Exhibits
(A B C D E and F) thereby causing harm to the Plaintiff
REQUEST FOR PERMANENT INJUNCTION AND REMUNERATION
Because of all of the FACTS and Court case evidence listed in
this complaint Plaintiff demands the Defendants produce the
original NOTE in question to avoid forgery and fraud charges If
NOTE is not produced within 30 days from the delivery and receipt
of the summons upon the Defendant Plaintiff will press forgery
charges pursuant RCW 9A60020 Plaintiff thereby will demand
remuneration of fraudulently collected monies paid to illegally
represented lenders Bank of America FKA Countrywide and interest
at 675 with the total amount of $8775636 + case fees or
Eighty Seven Thousand Seven hundred and fifty six dollars and 36
cents plus case fees to the Defendant who deceived the Plaintiff
by fraudulently claiming to be the legitimate lender trustee
and beneficiary while falsely claiming to hold the NOTE assuming
all assets and liabilities of Countrywide
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
RCW 740020
Grounds for issuance
When it appears by the complaint that the plaintiff is entitled
to the relief demanded and the relief or any part thereof
consists in restraining the commission or continuance of some
act the commission or continuance of which during the litigation
would produce great injury to the plaintiff or when during the
litigation it appears that the defendant is doing
or threatened or is about to do or is procuring or is suffering some act to
be done in violation of the plaintiffs rights respecting the subject of the
action tending to render the judgment ineffectual or where such relief or
any part thereof consists in restraining proceedings upon any final order or
judgment an injunction may be granted to restrain such act or proceedings
until the further order of the court which may afterwards be dissolved or
modified upon motion And where it appears in the complaint at the
commencement of the action or during the pendency thereof by affidavit that
the defendant threatens or is about to remove or dispose of his property with
intent to defraud his creditors a temporary injunction may be granted to
restrain the removal or disposition of his property
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 29
1
2
3
4
5
6
7
8
9
10
11
12
13
14
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19
20
21
22
23
24
25
BySamuel Salmon 917C Philpott Rd Colville WA 99114
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 13
1
2
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8
9
10
11
12
13
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excluding persons holding the same as security for a different
obligation
FACT IX
Plaintiff has proven the Trustee Lender and Beneficiary are
illegal in this entire loan process Plaintiff does not recognize
any authority the alleged Claimants or Defendants are making on
Plaintiffs real property as the Deed of Trust is in itself
entirely invalid and the only security for the Note Plaintiff
demands the Defendant produce the original Note with the proper
endorsements for all transfers required by law pursuant RCW
62A3-203 to be submitted for inspection and verification by a
court appointed expert pursuant to RCW 6124030 (6) and (7) (a)
(b) Until then the copy or forgery of the NOTE which was
included with Notice of Trustee sale is not sufficient to
validate any claim Made by the Defendant on the Plaintiffs
possessions and is in violation of Washington forgery laws
pursuant RCW 62A5-109 RCW 1037080 RCW 9A56320 and RCW
9A60020
RCW 9A60020
(1) A person is guilty of forgery if with intent to injure or
defraud
(a) He falsely makes completes or alters a written
instrument or
(b) He possesses utters offers disposes of or puts off
as true a written instrument which he knows to be forged
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 14
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
(2) In a proceeding under this section that is related to an
identity theft under RCW 935020 the crime will be considered
to have been committed in any locality where the person whose
means of identification or financial information was appropriated
resides or in which any part of the offense took place
regardless of whether the defendant was ever actually in that
locality
(3) Forgery is a class C felony
CASE EVIDENCE FOR FACT VIII AND FACT IX
MERS important case reference and commentary
MERS v Nebraska Dept of Banking and Finance ndash State Appellate
MERS demands to be recognized as having no actionable interest in
title 2005 Cite as 270 Neb 529
Merscorp Inc et al Respondents v Edward P Romaine amp c
et al Appellants et al Defendant the fact that the Mortgage
and Deed of Trust are separated is recognized (concurring
opinion) While affirming MERS could enter in the records as
ldquonomineerdquo the court recognized many inherent problems Rather
than resolve them they sloughed them off to the legislature
2006
The Boyko Decision -Federal District Judge Christopher Boyko of
the Eastern Division of the Northern District of Ohio Federal
Court overturns 14 foreclosure actions with a well reasoned
opinion outlining the failure of the foreclosing party to prove
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 15
1
2
3
4
5
6
7
8
9
10
11
12
13
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15
16
17
18
19
20
21
22
23
24
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standing This decision started the movement of challenging the
standing of the foreclosing party Oct 2007
Landmark National Bank v Kesler ndash KS State Supreme Court ndash MERS
has no standing to foreclose and is in fact a straw man Oct
2009
The importance of the findings of the Supreme Court of Kansas
cannot be overemphasized It is generally the law in all states
that if the law of one state has not specifically addressed a
specific legal issue that the court may look to the law of states
which have The Kansas Court acknowledged that the case was one
of ldquofirst impression in Kansasrdquo which is why the Kansas Court
looked to legal decisions from California Idaho New York
Missouri and other states for guidance and to support its
decision As we have previously reported the Ohio Courts have
looked to the legal decisions of New York to resolve issues in
foreclosure defense most notably issues of standing to institute
a foreclosure
It is practically certain that this decision will be the subject
of review by various courts MERS has already threatened a
ldquosecond appealrdquo (by requesting ldquoreconsiderationrdquo by the Supreme
Court of Kansas of its decision by the entire panel of Judges in
that Court) However for now the decision stands which
decision is of monumental importance for borrowers It thus
appears that the tide is finally starting to turn and that the
courts are beginning to recognize the extent of the wrongful
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 16
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
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20
21
22
23
24
25
practices and fraud perpetrated by ldquolendersrdquo and MERS upon
borrowers which conduct was engaged in for the sole purpose of
greed and profit for the ldquolendersrdquo and their ilk at the expense
of borrowers
MERS Inc Appellant v Southwest Homes of Arkansas Appellee The
second State Supreme Court ruling ndash AR 2009
BAC v US Bank ndash FL Appellate court upholds the concept of
determining the standing of the foreclosing party before allowing
summary judgement All cases in FL must now go through this
process 2007
Wells Fargo NAS v Farmer Motion to vacate in Supreme Court Kings
County NY 2009
In Re Joshua amp Stephanie Mitchell ndash US Federal Bankruptcy Court
NV 2009
In Re Wilhelm et al Case No 08-20577-TLM (opinion of Hon
Terry L Myers Chief US Bankruptcy Judge July 9 2009) ndash
Chief US Bankruptcy Judge ID ndash MERS by its construction
separates the Deed from the Mortgage
MERS v Johnston ndash Vermont Superior Court Decision
Wells Fargo v Jordon ndash OH Appellate Court
Weingartner et al v Chase Home Finance et al ndash US District Court
Schneider et al v Deutsche Bank et al (FL) Class action suit
(the filing) seeking to recover actual and statutory damages for
violations of the foreclosure process Provides an excellent
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 17
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
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24
25
description of the securitization process and the problems with
assignments
JP Morgan Chase v New Millenial et al ndash FL Appellate which
clearly demonstrates the chaos which can ensue when there is a
failure to register changes of ownership at the county recorderrsquos
office Everyone operates in good faith then out of nowhere
someone shows up waving a piece of paper The MERS system while
not explicitly named is clearly the culprit of the chaos 2009
In Re Walker Case No 10-21656-E-11 ndash Eastern District of CA
Bankruptcy court rules MERS has NO actionable interest in title
ldquoAny attempt to transfer the beneficial interest of a trust deed
without ownership of the underlying note is void under California
lawrdquo ldquoMERS could not as a matter of law have transferred the
note to Citibank from the original lender Bayrock Mortgage
Corprdquo The Courtrsquos opinion is headlined stating that MERS and
Citibank are not the real parties in interest
In re Vargas 396 BR at 517-19 Judge Bufford made a finding
that the witness called to testify as to debt and default was
incompetent All the witness could testify was that he had looked
at the MERS computerized records The witness was unable to
satisfy the requirements of the Federal Rules of Evidence
particularly Rule 803 as applied to computerized records in the
Ninth Circuit See id at 517-20 The low level employee could
really only testify that the MERS screen shot he reviewed
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
reflected a default That really is not much in the way of
evidence and not nearly enough to get around the hearsay rule
In Re Joshua and Stephanie Mitchell Case No BK-S-07-16226-
LBR [US Bankruptcy Court District of Nevada Memorandum
Opinion of August 19 2008] Federal Court in Nevada attacked
MERSrsquo purported ldquoauthorityrdquo finding that there was no evidence
that MERS was the agent of the notersquos holder
Mortgage Electronic Registration Systems Inc v Girdvainis
Sumter County South Carolina Court of Common Pleas Case No
2005-CP-43-0278 (Order dated January 19 2006 citing to the
representations of MERS and court findings in Mortgage Electronic
Registration Systems Inc v Nebraska Dept of Banking and
Finance 270 Neb 529 704 NW 2d 784) As such ALL MERS
assignments are suspect at best and may in fact be fraudulent
The Court of Common Pleas of Sumter County South Carolina also
found that MERSrsquo rights were not as they were represented to be
that MERS had no rights to collect on any debt because it did not
extend any credit none of the borrowers owe MERS any money that
MERS does not own the promissory notes secured by the mortgages
and that MERS does not acquire any loan or extension of credit
secured by a lien on real property
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC v SAUNDERS 2010
ME 79 Docket Cum-09-640Supreme Judicial Court of
Maine | Ordered dated August 12 2010 We conclude that although
MERS is not in fact a ldquomortgageerdquo within the meaning of our
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 19
1
2
3
4
5
6
7
8
9
10
11
12
13
14
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16
17
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foreclosure statute 14 MRS sectsect 6321-6325 and therefore had no
standing to institute foreclosure proceedings the real party in
interest was the Bank and the court did not abuse its discretion
by substituting the Bank for MERS Because however the Bank was
not entitled to summary judgment as a matter of law we vacate
the judgment and remand for further proceedings
MERS lsquoAGENTrsquo PREVIOUS MTG FRAUD SCHEME| Mortgage Electronic
Registration Systems Inc v Folkes 2010 NY Slip Op 32007 ndash NY
Supreme Court The settlement agent on all of the MERS documents
was listed as Peter Port Esq undeniably plaintiffs agent
According to an affidavit with documents attached from Ms
Nichole M Orr identified as an Assistant Vice President and
Senior Operational Risk Specialist for Bank of America Home
Loans the successor-in-interest to plaintiff Americarsquos Wholesale
Lender (April 1 2010)[1] certain wire transfers were made on
November 23 2004 to Mr Port The money appears to have come
from an account with JP Morgan but one of the documents also
shows inexplicably that Mr Port then sent $43506773 of this
money to Cheron A Ramphal at 14917 Motley Road Silver Springs
MD It should also be noted as it was in the decision of
February 5 2008 by Judge Payne that Mr Port pled guilty in
March 2006 in Federal District Court in New Jersey to providing
false documents in a scheme to commit mortgage fraud
lsquoNO PROOFrsquo MERS assigned BOTH Mortgage and NOTE to HSBC|HSBC
Bank etc v Miller et al The ldquoAssignment of Mortgagerdquo which
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 20
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
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20
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23
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25
is attached as exhibit E to the opposition papers makes no
reference to the note and only makes reference to the mortgage
being assigned The Assignment has a vague reference to note
wherein it states that ldquothe said assignor hereby grants and
conveys unto the said assignee the assignorrsquos beneficial
interest under the mortgage ldquobut this is the only language in
the Assignment which could possibly be found to refer to the
note
Contrary to the affirmation of Ms Szeliga in which she
represented in paragraph 17 that there was language in the
assignment which specifically referred to the note the
assignment in this case does not contain dega specific reference to
the Note
In light of the foregoing the Court is satisfied that there is
insufficient proof to establish that both the note and the
mortgage have been assigned to the Plaintiff and therefore it
is hereby ORDERED that the Plaintiff has no standing to maintain
the foreclosure action and it is further ORDERED that the
application of Defendant Jeffrey F Miller to dismiss is
granted without prejudice to renew upon proof of a valid
assignment of the note
UNION BANK CO v NORTH CAROLINA FURNITURE EXPRESS LLC MERS
lsquoGETS FORECLOSEDrsquo| ASSIGNS NADA TO BAC fka COUNTRYWIDE OHIO COURT
OF APPEAL While an assignment typically transfers the lien of
the mortgage on the property described in the mortgage as BAC
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 21
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2
3
4
5
6
7
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9
10
11
12
13
14
15
16
17
18
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20
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22
23
24
25
acknowledged in its reply brief an assignee can only take and
the assignor can only give the interest currently held by the
assignor RC 530131 With that stated it is clear under the
facts of this case that BAC never obtained an interest in the
property thus it could not have been substituted as a party-
defendant in the 2008 foreclosure action Here with respect to
the 2008 foreclosure action the date the last party was served
with notice was on January 28 2009 which was almost six
months before the purported assignment from MERS to BAC Next on
March 11 2009 the trial court issued a judgment entry of
default against MERS foreclosing on its interest in the property
Once again this default judgment was entered against MERS almost
three months before the purported assignment from MERS to BAC
occurred The effect of this default judgment against MERS
resulted in MERS having ldquono interest in and to said premises and
the equity of redemption of said Defendants in the real estate
described in Plaintiffrsquos Complaint shall be forever cut off
barred and foreclosedrdquo (2008 CV 0267 Mar 10 2009 JE)
Nevertheless according to the documents filed by BAC to evidence
its assignment from MERS MERS assigned its interest to BAC on
June 1 2009 (2009 CV 312 Oct 7 2009 JE Ex A)
Consequently as a result of the already entered default judgment
against MERS when BAC was assigned MERSrsquo interest in the
property on June 1 2009 BAC did not receive a viable interest
in the property See Quill v Maddox (May 31 2002) 2nd Dist
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 22
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
No 19052 at 2 (mortgageersquos assignee failed to establish that
it had an interest in the property as mortgageersquos interest was
foreclosed by the court before mortgagee assigned its interest to
assignee which could acquire no more interest than mortgagee
held) Thus we find that it was reasonable for the trial court
to have denied the motion to substitute BAC as a party-defendant
for MERS given its lack of interest in the property
HSBC v Thompson HSBCrsquos Irregularities Mortgage Documentation
and Corporate Relationships with Ocwen MERS and Delta Even if
HSBC had provided support for the proposition that ownership of
the note is not required the evidence about the assignment is
not properly before us The alleged mortgage assignment is
attached to the rejected affidavits of Neil Furthermore even if
we were to consider this ldquoevidencerdquo the mortgage assignment from
MERS to HSBC indicates that the assignment was prepared by Ocwen
for MERS and that Ocwen is located at the same Palm Beach
Florida address mentioned in Charlevagne and Antrobus See
Exhibit 3 attached to the affidavit of Chomie Neil In addition
Scott Anderson who signed the assignment as Vice-President of
MERS appears to be the same individual who claimed to be both
Vice-President of MERS and Vice-President of
Ocwen See Antrobus 2008 WL 2928553 4 and Charlevagne 2008
WL 2954767 1
MERS v TORR NY JUDGE SPINNER DENIES Deutsche amp MERS for NOT
Recording Mortgage Make up Affidavit and Assignment MERS lsquoQUIET
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
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20
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24
25
TITLErsquo FAIL To establish a claim of lien by a lost mortgage
there must be certain evidence (es) demonstrating that the
mortgage was properly executed with all the formalities required
by law andproof of the contents (es) of such instrument hellip Here
Burnettrsquos affidavit simply states that the original mortgage is
not in Deutsch Bankrsquos files and that he is advised (es) that
the title company is out of business Burnett gives no specifics
as to what efforts were made to locate the lost mortgagehellip More
importantly there is no affidavit from MLN by an individual with
personal knowledge of the facts that the complete file concerning
this mortgage was transferred to Deutsch Bank and that the copy
of the mortgage submitted to the court is an authentic copy of
Torrrsquos Mortgagerdquo (es)
LPP MORTGAGE v SABINE PROPERTIES FINAL DISPOSITION| NO Evidence
lsquoMERSrsquo Owned The NOTE Could NOT ASSIGN IT NY SUPREME COURT
FINAL DISPOSITION
Here there are no allegations or evidence that MERS was the
owner of the note such that it could assign it to LPP Thus the
assignment from MERS was insufficient to confer ownership of the
note to LPP and it has no standing to bring this action Kluge v
F umz ~1 45 AD2d at 538 (holding that the assignment of a
mortgage without transfer of the debt is a nullity) Johnson v
Melnikoff 20 Misc3d 1142(A) ldquo2 (Sup Ct Kings Co 2008) n 2
afr 65 AD3d 519 (2d Dept 20 1 Oj(noting that assignments by MERS
which did not include the underlying debt were a legal nullity)
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
m e Elect ro pic Registration Svstem v Coakley 41 AD3d 674 (2d
Dept 2007)(holding that MERS had standing to bring foreclosure
proceeding based on evidence that MERS was the lawful holder of
the promissory note and the mortgage)
Thus even assuming arguendo that the language of the assignment
from MERS to LPP could be interpreted as purporting to assign not
only the mortgage but also the note such assignment is invalid
since based on the record MERS lacked an ownership interest in
the note $ee LaSalle Bank Nat Assrsquon v Lamv 12 Misc3d 1191(A)
ldquo3 (Sup Ct Suffolk Co 2006) (noting that ldquothe mortgage is merely
an incident of and collateral security for the debt and an
assignment of the mortgage does not pass ownership of the debt
itself rsquo)
WACHOVIA BANK NATIONAL ASSOCIATION against ndashSTUART BRENNER et
aI Defendantrsquo s answer contains a defense of ldquolack of
standingrdquo Plaintiff has failed to establish it was the holder of
the note and the mortgage securing it when the action was
commenced In that regard plaintiff relies on an undated
assignment of the mortgage by MERS as nominee acknowledged by a
Texas notary on July 18 2009 The note sued on does not contain
an indication it has been negotiated The undated assignment by
MERS contains a provision at the assignment of the mortgage is
ldquoTOGETHER with the notes described in said mortgagerdquo The record
before me is devoid of proof that MERS as nominee for purposes of
recording had authority to assign the mortgage However assuming
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
it had such authority since it is a party to the mortgage and
such authority might be implied there has been a complete
failure to establish MERS as a non-party to the note to
negotiate its transfer A transfer of the note effects a transfer
of the mortgage MERS vs Coakley 41 AD3 674) the assignment of
a mortgage without a valid transfer of the mortgage note is a
nullity(Kluge vs Fugazv 145 AD2 537)
Following are more cases from THE NEW YORK SUPREME COURThellip
JUDGE SCHACK BLOWS lsquoMERSrsquo and Bank Of New York (BNY) OUT THE
DOOR
WM SPECIALTY MORTGAGE v JORGE RAMIREZ NO PROOF MERS OWNED THE
MORTGAGE AND NOTE
MERS v MAHENDRA RAMDOOLAR MERS IN NOT THE OWNER OF SUBJECT
MORTGAGE AND NOTE
HOLY COW MERS v MERS NO EVIDENCE IT HAD THE MORTGAGE AND NOTE
MERS V THOMAS STANDFORD MERS DOES NOT OWN MORTGAGE AND NOTE
MERS V GAIL PALMORE-ARCHER MERS DOES NOT OWN MORTGAGE AND NOTE
In the Matter of the Foreclosure of Tax Liens MERS GETS CHEWED
UP
BANK OF NEW YORK V JOSEPH CERULLO MERS NOT OWNER AND HOLDER OF
NOTE MORTGAGE
HSBC V HENRY FELD MERS NOT HOLDER OWNER OF NOTE
THE BANK OF NY MELLON V RICHARD BUSTRUC MERS IS NOT OWNER HOLDER
OF MORTGAGE AND NOTE
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 26
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ONEWEST BANK GETS THE BOOT MERS ASSIGNMENT MAKES NO REFERENCE TO
NOTE
NY SUPREME COURT WELLS FARGO MERS amp STEVEN J BAUM ldquoFATAL
DEFECTrdquo
FDN attorneys Jeff Barnes Esq and Elizabeth Lemoine Esq have
achieved a significant victory in Federal Court in Oregon against
MERS On Tuesday September 28 2010 Mr Barnes and Ms Lemoine
defended and argued Motions to Dismiss the borrowersrsquo lawsuit
challenging a nonjudicial foreclosure The Motions were filed by
the Defendants OneWest Bank and MERS The action was originally
filed in state court where a temporary restraining order was
entered stopping the sale On the eve of the scheduled hearing on
the borrowersrsquo Motion for Preliminary Injunction Defendants
OneWest Bank MERS and Regional Trustee Services removed the
case to Federal Court in an obvious attempt to circumvent the
state court injunction hearing The Federal Court entered an
Injunction and scheduled a hearing on the Motions filed by the
Defendants
During the course of the hearing the Court repeatedly raised the
ldquoMERS as nomineerdquo issues to counsel for the Defendants with said
counsel finally admitting upon repeated inquiry by the Court
that MERS cannot transfer promissory notes The Court denied the
Motions to Dismiss and has by Order commanded the injunction
against the sale to remain in place through the duration of the
borrowersrsquo lawsuit
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
REQUEST FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY
INJUNCTION
Because of the nature of the findings of the listed FACTS I
through FACT VII and lack of truthful evidence leading to these
illegal foreclosure proceedings Plaintiff prays for the Court to
issue a temporary restraining order and a preliminary injunction
against Defendant for any and all claims the Defendants are
pursuing against Plaintiff and Plaintiffrsquos property via Exhibits
(A B C D E and F) thereby causing harm to the Plaintiff
REQUEST FOR PERMANENT INJUNCTION AND REMUNERATION
Because of all of the FACTS and Court case evidence listed in
this complaint Plaintiff demands the Defendants produce the
original NOTE in question to avoid forgery and fraud charges If
NOTE is not produced within 30 days from the delivery and receipt
of the summons upon the Defendant Plaintiff will press forgery
charges pursuant RCW 9A60020 Plaintiff thereby will demand
remuneration of fraudulently collected monies paid to illegally
represented lenders Bank of America FKA Countrywide and interest
at 675 with the total amount of $8775636 + case fees or
Eighty Seven Thousand Seven hundred and fifty six dollars and 36
cents plus case fees to the Defendant who deceived the Plaintiff
by fraudulently claiming to be the legitimate lender trustee
and beneficiary while falsely claiming to hold the NOTE assuming
all assets and liabilities of Countrywide
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
RCW 740020
Grounds for issuance
When it appears by the complaint that the plaintiff is entitled
to the relief demanded and the relief or any part thereof
consists in restraining the commission or continuance of some
act the commission or continuance of which during the litigation
would produce great injury to the plaintiff or when during the
litigation it appears that the defendant is doing
or threatened or is about to do or is procuring or is suffering some act to
be done in violation of the plaintiffs rights respecting the subject of the
action tending to render the judgment ineffectual or where such relief or
any part thereof consists in restraining proceedings upon any final order or
judgment an injunction may be granted to restrain such act or proceedings
until the further order of the court which may afterwards be dissolved or
modified upon motion And where it appears in the complaint at the
commencement of the action or during the pendency thereof by affidavit that
the defendant threatens or is about to remove or dispose of his property with
intent to defraud his creditors a temporary injunction may be granted to
restrain the removal or disposition of his property
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 29
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
BySamuel Salmon 917C Philpott Rd Colville WA 99114
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 14
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
(2) In a proceeding under this section that is related to an
identity theft under RCW 935020 the crime will be considered
to have been committed in any locality where the person whose
means of identification or financial information was appropriated
resides or in which any part of the offense took place
regardless of whether the defendant was ever actually in that
locality
(3) Forgery is a class C felony
CASE EVIDENCE FOR FACT VIII AND FACT IX
MERS important case reference and commentary
MERS v Nebraska Dept of Banking and Finance ndash State Appellate
MERS demands to be recognized as having no actionable interest in
title 2005 Cite as 270 Neb 529
Merscorp Inc et al Respondents v Edward P Romaine amp c
et al Appellants et al Defendant the fact that the Mortgage
and Deed of Trust are separated is recognized (concurring
opinion) While affirming MERS could enter in the records as
ldquonomineerdquo the court recognized many inherent problems Rather
than resolve them they sloughed them off to the legislature
2006
The Boyko Decision -Federal District Judge Christopher Boyko of
the Eastern Division of the Northern District of Ohio Federal
Court overturns 14 foreclosure actions with a well reasoned
opinion outlining the failure of the foreclosing party to prove
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 15
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
standing This decision started the movement of challenging the
standing of the foreclosing party Oct 2007
Landmark National Bank v Kesler ndash KS State Supreme Court ndash MERS
has no standing to foreclose and is in fact a straw man Oct
2009
The importance of the findings of the Supreme Court of Kansas
cannot be overemphasized It is generally the law in all states
that if the law of one state has not specifically addressed a
specific legal issue that the court may look to the law of states
which have The Kansas Court acknowledged that the case was one
of ldquofirst impression in Kansasrdquo which is why the Kansas Court
looked to legal decisions from California Idaho New York
Missouri and other states for guidance and to support its
decision As we have previously reported the Ohio Courts have
looked to the legal decisions of New York to resolve issues in
foreclosure defense most notably issues of standing to institute
a foreclosure
It is practically certain that this decision will be the subject
of review by various courts MERS has already threatened a
ldquosecond appealrdquo (by requesting ldquoreconsiderationrdquo by the Supreme
Court of Kansas of its decision by the entire panel of Judges in
that Court) However for now the decision stands which
decision is of monumental importance for borrowers It thus
appears that the tide is finally starting to turn and that the
courts are beginning to recognize the extent of the wrongful
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 16
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
practices and fraud perpetrated by ldquolendersrdquo and MERS upon
borrowers which conduct was engaged in for the sole purpose of
greed and profit for the ldquolendersrdquo and their ilk at the expense
of borrowers
MERS Inc Appellant v Southwest Homes of Arkansas Appellee The
second State Supreme Court ruling ndash AR 2009
BAC v US Bank ndash FL Appellate court upholds the concept of
determining the standing of the foreclosing party before allowing
summary judgement All cases in FL must now go through this
process 2007
Wells Fargo NAS v Farmer Motion to vacate in Supreme Court Kings
County NY 2009
In Re Joshua amp Stephanie Mitchell ndash US Federal Bankruptcy Court
NV 2009
In Re Wilhelm et al Case No 08-20577-TLM (opinion of Hon
Terry L Myers Chief US Bankruptcy Judge July 9 2009) ndash
Chief US Bankruptcy Judge ID ndash MERS by its construction
separates the Deed from the Mortgage
MERS v Johnston ndash Vermont Superior Court Decision
Wells Fargo v Jordon ndash OH Appellate Court
Weingartner et al v Chase Home Finance et al ndash US District Court
Schneider et al v Deutsche Bank et al (FL) Class action suit
(the filing) seeking to recover actual and statutory damages for
violations of the foreclosure process Provides an excellent
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 17
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
description of the securitization process and the problems with
assignments
JP Morgan Chase v New Millenial et al ndash FL Appellate which
clearly demonstrates the chaos which can ensue when there is a
failure to register changes of ownership at the county recorderrsquos
office Everyone operates in good faith then out of nowhere
someone shows up waving a piece of paper The MERS system while
not explicitly named is clearly the culprit of the chaos 2009
In Re Walker Case No 10-21656-E-11 ndash Eastern District of CA
Bankruptcy court rules MERS has NO actionable interest in title
ldquoAny attempt to transfer the beneficial interest of a trust deed
without ownership of the underlying note is void under California
lawrdquo ldquoMERS could not as a matter of law have transferred the
note to Citibank from the original lender Bayrock Mortgage
Corprdquo The Courtrsquos opinion is headlined stating that MERS and
Citibank are not the real parties in interest
In re Vargas 396 BR at 517-19 Judge Bufford made a finding
that the witness called to testify as to debt and default was
incompetent All the witness could testify was that he had looked
at the MERS computerized records The witness was unable to
satisfy the requirements of the Federal Rules of Evidence
particularly Rule 803 as applied to computerized records in the
Ninth Circuit See id at 517-20 The low level employee could
really only testify that the MERS screen shot he reviewed
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
reflected a default That really is not much in the way of
evidence and not nearly enough to get around the hearsay rule
In Re Joshua and Stephanie Mitchell Case No BK-S-07-16226-
LBR [US Bankruptcy Court District of Nevada Memorandum
Opinion of August 19 2008] Federal Court in Nevada attacked
MERSrsquo purported ldquoauthorityrdquo finding that there was no evidence
that MERS was the agent of the notersquos holder
Mortgage Electronic Registration Systems Inc v Girdvainis
Sumter County South Carolina Court of Common Pleas Case No
2005-CP-43-0278 (Order dated January 19 2006 citing to the
representations of MERS and court findings in Mortgage Electronic
Registration Systems Inc v Nebraska Dept of Banking and
Finance 270 Neb 529 704 NW 2d 784) As such ALL MERS
assignments are suspect at best and may in fact be fraudulent
The Court of Common Pleas of Sumter County South Carolina also
found that MERSrsquo rights were not as they were represented to be
that MERS had no rights to collect on any debt because it did not
extend any credit none of the borrowers owe MERS any money that
MERS does not own the promissory notes secured by the mortgages
and that MERS does not acquire any loan or extension of credit
secured by a lien on real property
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC v SAUNDERS 2010
ME 79 Docket Cum-09-640Supreme Judicial Court of
Maine | Ordered dated August 12 2010 We conclude that although
MERS is not in fact a ldquomortgageerdquo within the meaning of our
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 19
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
foreclosure statute 14 MRS sectsect 6321-6325 and therefore had no
standing to institute foreclosure proceedings the real party in
interest was the Bank and the court did not abuse its discretion
by substituting the Bank for MERS Because however the Bank was
not entitled to summary judgment as a matter of law we vacate
the judgment and remand for further proceedings
MERS lsquoAGENTrsquo PREVIOUS MTG FRAUD SCHEME| Mortgage Electronic
Registration Systems Inc v Folkes 2010 NY Slip Op 32007 ndash NY
Supreme Court The settlement agent on all of the MERS documents
was listed as Peter Port Esq undeniably plaintiffs agent
According to an affidavit with documents attached from Ms
Nichole M Orr identified as an Assistant Vice President and
Senior Operational Risk Specialist for Bank of America Home
Loans the successor-in-interest to plaintiff Americarsquos Wholesale
Lender (April 1 2010)[1] certain wire transfers were made on
November 23 2004 to Mr Port The money appears to have come
from an account with JP Morgan but one of the documents also
shows inexplicably that Mr Port then sent $43506773 of this
money to Cheron A Ramphal at 14917 Motley Road Silver Springs
MD It should also be noted as it was in the decision of
February 5 2008 by Judge Payne that Mr Port pled guilty in
March 2006 in Federal District Court in New Jersey to providing
false documents in a scheme to commit mortgage fraud
lsquoNO PROOFrsquo MERS assigned BOTH Mortgage and NOTE to HSBC|HSBC
Bank etc v Miller et al The ldquoAssignment of Mortgagerdquo which
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 20
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
is attached as exhibit E to the opposition papers makes no
reference to the note and only makes reference to the mortgage
being assigned The Assignment has a vague reference to note
wherein it states that ldquothe said assignor hereby grants and
conveys unto the said assignee the assignorrsquos beneficial
interest under the mortgage ldquobut this is the only language in
the Assignment which could possibly be found to refer to the
note
Contrary to the affirmation of Ms Szeliga in which she
represented in paragraph 17 that there was language in the
assignment which specifically referred to the note the
assignment in this case does not contain dega specific reference to
the Note
In light of the foregoing the Court is satisfied that there is
insufficient proof to establish that both the note and the
mortgage have been assigned to the Plaintiff and therefore it
is hereby ORDERED that the Plaintiff has no standing to maintain
the foreclosure action and it is further ORDERED that the
application of Defendant Jeffrey F Miller to dismiss is
granted without prejudice to renew upon proof of a valid
assignment of the note
UNION BANK CO v NORTH CAROLINA FURNITURE EXPRESS LLC MERS
lsquoGETS FORECLOSEDrsquo| ASSIGNS NADA TO BAC fka COUNTRYWIDE OHIO COURT
OF APPEAL While an assignment typically transfers the lien of
the mortgage on the property described in the mortgage as BAC
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 21
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
acknowledged in its reply brief an assignee can only take and
the assignor can only give the interest currently held by the
assignor RC 530131 With that stated it is clear under the
facts of this case that BAC never obtained an interest in the
property thus it could not have been substituted as a party-
defendant in the 2008 foreclosure action Here with respect to
the 2008 foreclosure action the date the last party was served
with notice was on January 28 2009 which was almost six
months before the purported assignment from MERS to BAC Next on
March 11 2009 the trial court issued a judgment entry of
default against MERS foreclosing on its interest in the property
Once again this default judgment was entered against MERS almost
three months before the purported assignment from MERS to BAC
occurred The effect of this default judgment against MERS
resulted in MERS having ldquono interest in and to said premises and
the equity of redemption of said Defendants in the real estate
described in Plaintiffrsquos Complaint shall be forever cut off
barred and foreclosedrdquo (2008 CV 0267 Mar 10 2009 JE)
Nevertheless according to the documents filed by BAC to evidence
its assignment from MERS MERS assigned its interest to BAC on
June 1 2009 (2009 CV 312 Oct 7 2009 JE Ex A)
Consequently as a result of the already entered default judgment
against MERS when BAC was assigned MERSrsquo interest in the
property on June 1 2009 BAC did not receive a viable interest
in the property See Quill v Maddox (May 31 2002) 2nd Dist
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 22
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
No 19052 at 2 (mortgageersquos assignee failed to establish that
it had an interest in the property as mortgageersquos interest was
foreclosed by the court before mortgagee assigned its interest to
assignee which could acquire no more interest than mortgagee
held) Thus we find that it was reasonable for the trial court
to have denied the motion to substitute BAC as a party-defendant
for MERS given its lack of interest in the property
HSBC v Thompson HSBCrsquos Irregularities Mortgage Documentation
and Corporate Relationships with Ocwen MERS and Delta Even if
HSBC had provided support for the proposition that ownership of
the note is not required the evidence about the assignment is
not properly before us The alleged mortgage assignment is
attached to the rejected affidavits of Neil Furthermore even if
we were to consider this ldquoevidencerdquo the mortgage assignment from
MERS to HSBC indicates that the assignment was prepared by Ocwen
for MERS and that Ocwen is located at the same Palm Beach
Florida address mentioned in Charlevagne and Antrobus See
Exhibit 3 attached to the affidavit of Chomie Neil In addition
Scott Anderson who signed the assignment as Vice-President of
MERS appears to be the same individual who claimed to be both
Vice-President of MERS and Vice-President of
Ocwen See Antrobus 2008 WL 2928553 4 and Charlevagne 2008
WL 2954767 1
MERS v TORR NY JUDGE SPINNER DENIES Deutsche amp MERS for NOT
Recording Mortgage Make up Affidavit and Assignment MERS lsquoQUIET
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
TITLErsquo FAIL To establish a claim of lien by a lost mortgage
there must be certain evidence (es) demonstrating that the
mortgage was properly executed with all the formalities required
by law andproof of the contents (es) of such instrument hellip Here
Burnettrsquos affidavit simply states that the original mortgage is
not in Deutsch Bankrsquos files and that he is advised (es) that
the title company is out of business Burnett gives no specifics
as to what efforts were made to locate the lost mortgagehellip More
importantly there is no affidavit from MLN by an individual with
personal knowledge of the facts that the complete file concerning
this mortgage was transferred to Deutsch Bank and that the copy
of the mortgage submitted to the court is an authentic copy of
Torrrsquos Mortgagerdquo (es)
LPP MORTGAGE v SABINE PROPERTIES FINAL DISPOSITION| NO Evidence
lsquoMERSrsquo Owned The NOTE Could NOT ASSIGN IT NY SUPREME COURT
FINAL DISPOSITION
Here there are no allegations or evidence that MERS was the
owner of the note such that it could assign it to LPP Thus the
assignment from MERS was insufficient to confer ownership of the
note to LPP and it has no standing to bring this action Kluge v
F umz ~1 45 AD2d at 538 (holding that the assignment of a
mortgage without transfer of the debt is a nullity) Johnson v
Melnikoff 20 Misc3d 1142(A) ldquo2 (Sup Ct Kings Co 2008) n 2
afr 65 AD3d 519 (2d Dept 20 1 Oj(noting that assignments by MERS
which did not include the underlying debt were a legal nullity)
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
m e Elect ro pic Registration Svstem v Coakley 41 AD3d 674 (2d
Dept 2007)(holding that MERS had standing to bring foreclosure
proceeding based on evidence that MERS was the lawful holder of
the promissory note and the mortgage)
Thus even assuming arguendo that the language of the assignment
from MERS to LPP could be interpreted as purporting to assign not
only the mortgage but also the note such assignment is invalid
since based on the record MERS lacked an ownership interest in
the note $ee LaSalle Bank Nat Assrsquon v Lamv 12 Misc3d 1191(A)
ldquo3 (Sup Ct Suffolk Co 2006) (noting that ldquothe mortgage is merely
an incident of and collateral security for the debt and an
assignment of the mortgage does not pass ownership of the debt
itself rsquo)
WACHOVIA BANK NATIONAL ASSOCIATION against ndashSTUART BRENNER et
aI Defendantrsquo s answer contains a defense of ldquolack of
standingrdquo Plaintiff has failed to establish it was the holder of
the note and the mortgage securing it when the action was
commenced In that regard plaintiff relies on an undated
assignment of the mortgage by MERS as nominee acknowledged by a
Texas notary on July 18 2009 The note sued on does not contain
an indication it has been negotiated The undated assignment by
MERS contains a provision at the assignment of the mortgage is
ldquoTOGETHER with the notes described in said mortgagerdquo The record
before me is devoid of proof that MERS as nominee for purposes of
recording had authority to assign the mortgage However assuming
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
it had such authority since it is a party to the mortgage and
such authority might be implied there has been a complete
failure to establish MERS as a non-party to the note to
negotiate its transfer A transfer of the note effects a transfer
of the mortgage MERS vs Coakley 41 AD3 674) the assignment of
a mortgage without a valid transfer of the mortgage note is a
nullity(Kluge vs Fugazv 145 AD2 537)
Following are more cases from THE NEW YORK SUPREME COURThellip
JUDGE SCHACK BLOWS lsquoMERSrsquo and Bank Of New York (BNY) OUT THE
DOOR
WM SPECIALTY MORTGAGE v JORGE RAMIREZ NO PROOF MERS OWNED THE
MORTGAGE AND NOTE
MERS v MAHENDRA RAMDOOLAR MERS IN NOT THE OWNER OF SUBJECT
MORTGAGE AND NOTE
HOLY COW MERS v MERS NO EVIDENCE IT HAD THE MORTGAGE AND NOTE
MERS V THOMAS STANDFORD MERS DOES NOT OWN MORTGAGE AND NOTE
MERS V GAIL PALMORE-ARCHER MERS DOES NOT OWN MORTGAGE AND NOTE
In the Matter of the Foreclosure of Tax Liens MERS GETS CHEWED
UP
BANK OF NEW YORK V JOSEPH CERULLO MERS NOT OWNER AND HOLDER OF
NOTE MORTGAGE
HSBC V HENRY FELD MERS NOT HOLDER OWNER OF NOTE
THE BANK OF NY MELLON V RICHARD BUSTRUC MERS IS NOT OWNER HOLDER
OF MORTGAGE AND NOTE
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 26
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ONEWEST BANK GETS THE BOOT MERS ASSIGNMENT MAKES NO REFERENCE TO
NOTE
NY SUPREME COURT WELLS FARGO MERS amp STEVEN J BAUM ldquoFATAL
DEFECTrdquo
FDN attorneys Jeff Barnes Esq and Elizabeth Lemoine Esq have
achieved a significant victory in Federal Court in Oregon against
MERS On Tuesday September 28 2010 Mr Barnes and Ms Lemoine
defended and argued Motions to Dismiss the borrowersrsquo lawsuit
challenging a nonjudicial foreclosure The Motions were filed by
the Defendants OneWest Bank and MERS The action was originally
filed in state court where a temporary restraining order was
entered stopping the sale On the eve of the scheduled hearing on
the borrowersrsquo Motion for Preliminary Injunction Defendants
OneWest Bank MERS and Regional Trustee Services removed the
case to Federal Court in an obvious attempt to circumvent the
state court injunction hearing The Federal Court entered an
Injunction and scheduled a hearing on the Motions filed by the
Defendants
During the course of the hearing the Court repeatedly raised the
ldquoMERS as nomineerdquo issues to counsel for the Defendants with said
counsel finally admitting upon repeated inquiry by the Court
that MERS cannot transfer promissory notes The Court denied the
Motions to Dismiss and has by Order commanded the injunction
against the sale to remain in place through the duration of the
borrowersrsquo lawsuit
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
REQUEST FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY
INJUNCTION
Because of the nature of the findings of the listed FACTS I
through FACT VII and lack of truthful evidence leading to these
illegal foreclosure proceedings Plaintiff prays for the Court to
issue a temporary restraining order and a preliminary injunction
against Defendant for any and all claims the Defendants are
pursuing against Plaintiff and Plaintiffrsquos property via Exhibits
(A B C D E and F) thereby causing harm to the Plaintiff
REQUEST FOR PERMANENT INJUNCTION AND REMUNERATION
Because of all of the FACTS and Court case evidence listed in
this complaint Plaintiff demands the Defendants produce the
original NOTE in question to avoid forgery and fraud charges If
NOTE is not produced within 30 days from the delivery and receipt
of the summons upon the Defendant Plaintiff will press forgery
charges pursuant RCW 9A60020 Plaintiff thereby will demand
remuneration of fraudulently collected monies paid to illegally
represented lenders Bank of America FKA Countrywide and interest
at 675 with the total amount of $8775636 + case fees or
Eighty Seven Thousand Seven hundred and fifty six dollars and 36
cents plus case fees to the Defendant who deceived the Plaintiff
by fraudulently claiming to be the legitimate lender trustee
and beneficiary while falsely claiming to hold the NOTE assuming
all assets and liabilities of Countrywide
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
RCW 740020
Grounds for issuance
When it appears by the complaint that the plaintiff is entitled
to the relief demanded and the relief or any part thereof
consists in restraining the commission or continuance of some
act the commission or continuance of which during the litigation
would produce great injury to the plaintiff or when during the
litigation it appears that the defendant is doing
or threatened or is about to do or is procuring or is suffering some act to
be done in violation of the plaintiffs rights respecting the subject of the
action tending to render the judgment ineffectual or where such relief or
any part thereof consists in restraining proceedings upon any final order or
judgment an injunction may be granted to restrain such act or proceedings
until the further order of the court which may afterwards be dissolved or
modified upon motion And where it appears in the complaint at the
commencement of the action or during the pendency thereof by affidavit that
the defendant threatens or is about to remove or dispose of his property with
intent to defraud his creditors a temporary injunction may be granted to
restrain the removal or disposition of his property
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 29
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
BySamuel Salmon 917C Philpott Rd Colville WA 99114
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 15
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
standing This decision started the movement of challenging the
standing of the foreclosing party Oct 2007
Landmark National Bank v Kesler ndash KS State Supreme Court ndash MERS
has no standing to foreclose and is in fact a straw man Oct
2009
The importance of the findings of the Supreme Court of Kansas
cannot be overemphasized It is generally the law in all states
that if the law of one state has not specifically addressed a
specific legal issue that the court may look to the law of states
which have The Kansas Court acknowledged that the case was one
of ldquofirst impression in Kansasrdquo which is why the Kansas Court
looked to legal decisions from California Idaho New York
Missouri and other states for guidance and to support its
decision As we have previously reported the Ohio Courts have
looked to the legal decisions of New York to resolve issues in
foreclosure defense most notably issues of standing to institute
a foreclosure
It is practically certain that this decision will be the subject
of review by various courts MERS has already threatened a
ldquosecond appealrdquo (by requesting ldquoreconsiderationrdquo by the Supreme
Court of Kansas of its decision by the entire panel of Judges in
that Court) However for now the decision stands which
decision is of monumental importance for borrowers It thus
appears that the tide is finally starting to turn and that the
courts are beginning to recognize the extent of the wrongful
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 16
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
practices and fraud perpetrated by ldquolendersrdquo and MERS upon
borrowers which conduct was engaged in for the sole purpose of
greed and profit for the ldquolendersrdquo and their ilk at the expense
of borrowers
MERS Inc Appellant v Southwest Homes of Arkansas Appellee The
second State Supreme Court ruling ndash AR 2009
BAC v US Bank ndash FL Appellate court upholds the concept of
determining the standing of the foreclosing party before allowing
summary judgement All cases in FL must now go through this
process 2007
Wells Fargo NAS v Farmer Motion to vacate in Supreme Court Kings
County NY 2009
In Re Joshua amp Stephanie Mitchell ndash US Federal Bankruptcy Court
NV 2009
In Re Wilhelm et al Case No 08-20577-TLM (opinion of Hon
Terry L Myers Chief US Bankruptcy Judge July 9 2009) ndash
Chief US Bankruptcy Judge ID ndash MERS by its construction
separates the Deed from the Mortgage
MERS v Johnston ndash Vermont Superior Court Decision
Wells Fargo v Jordon ndash OH Appellate Court
Weingartner et al v Chase Home Finance et al ndash US District Court
Schneider et al v Deutsche Bank et al (FL) Class action suit
(the filing) seeking to recover actual and statutory damages for
violations of the foreclosure process Provides an excellent
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 17
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
description of the securitization process and the problems with
assignments
JP Morgan Chase v New Millenial et al ndash FL Appellate which
clearly demonstrates the chaos which can ensue when there is a
failure to register changes of ownership at the county recorderrsquos
office Everyone operates in good faith then out of nowhere
someone shows up waving a piece of paper The MERS system while
not explicitly named is clearly the culprit of the chaos 2009
In Re Walker Case No 10-21656-E-11 ndash Eastern District of CA
Bankruptcy court rules MERS has NO actionable interest in title
ldquoAny attempt to transfer the beneficial interest of a trust deed
without ownership of the underlying note is void under California
lawrdquo ldquoMERS could not as a matter of law have transferred the
note to Citibank from the original lender Bayrock Mortgage
Corprdquo The Courtrsquos opinion is headlined stating that MERS and
Citibank are not the real parties in interest
In re Vargas 396 BR at 517-19 Judge Bufford made a finding
that the witness called to testify as to debt and default was
incompetent All the witness could testify was that he had looked
at the MERS computerized records The witness was unable to
satisfy the requirements of the Federal Rules of Evidence
particularly Rule 803 as applied to computerized records in the
Ninth Circuit See id at 517-20 The low level employee could
really only testify that the MERS screen shot he reviewed
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
reflected a default That really is not much in the way of
evidence and not nearly enough to get around the hearsay rule
In Re Joshua and Stephanie Mitchell Case No BK-S-07-16226-
LBR [US Bankruptcy Court District of Nevada Memorandum
Opinion of August 19 2008] Federal Court in Nevada attacked
MERSrsquo purported ldquoauthorityrdquo finding that there was no evidence
that MERS was the agent of the notersquos holder
Mortgage Electronic Registration Systems Inc v Girdvainis
Sumter County South Carolina Court of Common Pleas Case No
2005-CP-43-0278 (Order dated January 19 2006 citing to the
representations of MERS and court findings in Mortgage Electronic
Registration Systems Inc v Nebraska Dept of Banking and
Finance 270 Neb 529 704 NW 2d 784) As such ALL MERS
assignments are suspect at best and may in fact be fraudulent
The Court of Common Pleas of Sumter County South Carolina also
found that MERSrsquo rights were not as they were represented to be
that MERS had no rights to collect on any debt because it did not
extend any credit none of the borrowers owe MERS any money that
MERS does not own the promissory notes secured by the mortgages
and that MERS does not acquire any loan or extension of credit
secured by a lien on real property
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC v SAUNDERS 2010
ME 79 Docket Cum-09-640Supreme Judicial Court of
Maine | Ordered dated August 12 2010 We conclude that although
MERS is not in fact a ldquomortgageerdquo within the meaning of our
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 19
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
foreclosure statute 14 MRS sectsect 6321-6325 and therefore had no
standing to institute foreclosure proceedings the real party in
interest was the Bank and the court did not abuse its discretion
by substituting the Bank for MERS Because however the Bank was
not entitled to summary judgment as a matter of law we vacate
the judgment and remand for further proceedings
MERS lsquoAGENTrsquo PREVIOUS MTG FRAUD SCHEME| Mortgage Electronic
Registration Systems Inc v Folkes 2010 NY Slip Op 32007 ndash NY
Supreme Court The settlement agent on all of the MERS documents
was listed as Peter Port Esq undeniably plaintiffs agent
According to an affidavit with documents attached from Ms
Nichole M Orr identified as an Assistant Vice President and
Senior Operational Risk Specialist for Bank of America Home
Loans the successor-in-interest to plaintiff Americarsquos Wholesale
Lender (April 1 2010)[1] certain wire transfers were made on
November 23 2004 to Mr Port The money appears to have come
from an account with JP Morgan but one of the documents also
shows inexplicably that Mr Port then sent $43506773 of this
money to Cheron A Ramphal at 14917 Motley Road Silver Springs
MD It should also be noted as it was in the decision of
February 5 2008 by Judge Payne that Mr Port pled guilty in
March 2006 in Federal District Court in New Jersey to providing
false documents in a scheme to commit mortgage fraud
lsquoNO PROOFrsquo MERS assigned BOTH Mortgage and NOTE to HSBC|HSBC
Bank etc v Miller et al The ldquoAssignment of Mortgagerdquo which
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 20
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
is attached as exhibit E to the opposition papers makes no
reference to the note and only makes reference to the mortgage
being assigned The Assignment has a vague reference to note
wherein it states that ldquothe said assignor hereby grants and
conveys unto the said assignee the assignorrsquos beneficial
interest under the mortgage ldquobut this is the only language in
the Assignment which could possibly be found to refer to the
note
Contrary to the affirmation of Ms Szeliga in which she
represented in paragraph 17 that there was language in the
assignment which specifically referred to the note the
assignment in this case does not contain dega specific reference to
the Note
In light of the foregoing the Court is satisfied that there is
insufficient proof to establish that both the note and the
mortgage have been assigned to the Plaintiff and therefore it
is hereby ORDERED that the Plaintiff has no standing to maintain
the foreclosure action and it is further ORDERED that the
application of Defendant Jeffrey F Miller to dismiss is
granted without prejudice to renew upon proof of a valid
assignment of the note
UNION BANK CO v NORTH CAROLINA FURNITURE EXPRESS LLC MERS
lsquoGETS FORECLOSEDrsquo| ASSIGNS NADA TO BAC fka COUNTRYWIDE OHIO COURT
OF APPEAL While an assignment typically transfers the lien of
the mortgage on the property described in the mortgage as BAC
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 21
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
acknowledged in its reply brief an assignee can only take and
the assignor can only give the interest currently held by the
assignor RC 530131 With that stated it is clear under the
facts of this case that BAC never obtained an interest in the
property thus it could not have been substituted as a party-
defendant in the 2008 foreclosure action Here with respect to
the 2008 foreclosure action the date the last party was served
with notice was on January 28 2009 which was almost six
months before the purported assignment from MERS to BAC Next on
March 11 2009 the trial court issued a judgment entry of
default against MERS foreclosing on its interest in the property
Once again this default judgment was entered against MERS almost
three months before the purported assignment from MERS to BAC
occurred The effect of this default judgment against MERS
resulted in MERS having ldquono interest in and to said premises and
the equity of redemption of said Defendants in the real estate
described in Plaintiffrsquos Complaint shall be forever cut off
barred and foreclosedrdquo (2008 CV 0267 Mar 10 2009 JE)
Nevertheless according to the documents filed by BAC to evidence
its assignment from MERS MERS assigned its interest to BAC on
June 1 2009 (2009 CV 312 Oct 7 2009 JE Ex A)
Consequently as a result of the already entered default judgment
against MERS when BAC was assigned MERSrsquo interest in the
property on June 1 2009 BAC did not receive a viable interest
in the property See Quill v Maddox (May 31 2002) 2nd Dist
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 22
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
No 19052 at 2 (mortgageersquos assignee failed to establish that
it had an interest in the property as mortgageersquos interest was
foreclosed by the court before mortgagee assigned its interest to
assignee which could acquire no more interest than mortgagee
held) Thus we find that it was reasonable for the trial court
to have denied the motion to substitute BAC as a party-defendant
for MERS given its lack of interest in the property
HSBC v Thompson HSBCrsquos Irregularities Mortgage Documentation
and Corporate Relationships with Ocwen MERS and Delta Even if
HSBC had provided support for the proposition that ownership of
the note is not required the evidence about the assignment is
not properly before us The alleged mortgage assignment is
attached to the rejected affidavits of Neil Furthermore even if
we were to consider this ldquoevidencerdquo the mortgage assignment from
MERS to HSBC indicates that the assignment was prepared by Ocwen
for MERS and that Ocwen is located at the same Palm Beach
Florida address mentioned in Charlevagne and Antrobus See
Exhibit 3 attached to the affidavit of Chomie Neil In addition
Scott Anderson who signed the assignment as Vice-President of
MERS appears to be the same individual who claimed to be both
Vice-President of MERS and Vice-President of
Ocwen See Antrobus 2008 WL 2928553 4 and Charlevagne 2008
WL 2954767 1
MERS v TORR NY JUDGE SPINNER DENIES Deutsche amp MERS for NOT
Recording Mortgage Make up Affidavit and Assignment MERS lsquoQUIET
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
TITLErsquo FAIL To establish a claim of lien by a lost mortgage
there must be certain evidence (es) demonstrating that the
mortgage was properly executed with all the formalities required
by law andproof of the contents (es) of such instrument hellip Here
Burnettrsquos affidavit simply states that the original mortgage is
not in Deutsch Bankrsquos files and that he is advised (es) that
the title company is out of business Burnett gives no specifics
as to what efforts were made to locate the lost mortgagehellip More
importantly there is no affidavit from MLN by an individual with
personal knowledge of the facts that the complete file concerning
this mortgage was transferred to Deutsch Bank and that the copy
of the mortgage submitted to the court is an authentic copy of
Torrrsquos Mortgagerdquo (es)
LPP MORTGAGE v SABINE PROPERTIES FINAL DISPOSITION| NO Evidence
lsquoMERSrsquo Owned The NOTE Could NOT ASSIGN IT NY SUPREME COURT
FINAL DISPOSITION
Here there are no allegations or evidence that MERS was the
owner of the note such that it could assign it to LPP Thus the
assignment from MERS was insufficient to confer ownership of the
note to LPP and it has no standing to bring this action Kluge v
F umz ~1 45 AD2d at 538 (holding that the assignment of a
mortgage without transfer of the debt is a nullity) Johnson v
Melnikoff 20 Misc3d 1142(A) ldquo2 (Sup Ct Kings Co 2008) n 2
afr 65 AD3d 519 (2d Dept 20 1 Oj(noting that assignments by MERS
which did not include the underlying debt were a legal nullity)
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
m e Elect ro pic Registration Svstem v Coakley 41 AD3d 674 (2d
Dept 2007)(holding that MERS had standing to bring foreclosure
proceeding based on evidence that MERS was the lawful holder of
the promissory note and the mortgage)
Thus even assuming arguendo that the language of the assignment
from MERS to LPP could be interpreted as purporting to assign not
only the mortgage but also the note such assignment is invalid
since based on the record MERS lacked an ownership interest in
the note $ee LaSalle Bank Nat Assrsquon v Lamv 12 Misc3d 1191(A)
ldquo3 (Sup Ct Suffolk Co 2006) (noting that ldquothe mortgage is merely
an incident of and collateral security for the debt and an
assignment of the mortgage does not pass ownership of the debt
itself rsquo)
WACHOVIA BANK NATIONAL ASSOCIATION against ndashSTUART BRENNER et
aI Defendantrsquo s answer contains a defense of ldquolack of
standingrdquo Plaintiff has failed to establish it was the holder of
the note and the mortgage securing it when the action was
commenced In that regard plaintiff relies on an undated
assignment of the mortgage by MERS as nominee acknowledged by a
Texas notary on July 18 2009 The note sued on does not contain
an indication it has been negotiated The undated assignment by
MERS contains a provision at the assignment of the mortgage is
ldquoTOGETHER with the notes described in said mortgagerdquo The record
before me is devoid of proof that MERS as nominee for purposes of
recording had authority to assign the mortgage However assuming
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
it had such authority since it is a party to the mortgage and
such authority might be implied there has been a complete
failure to establish MERS as a non-party to the note to
negotiate its transfer A transfer of the note effects a transfer
of the mortgage MERS vs Coakley 41 AD3 674) the assignment of
a mortgage without a valid transfer of the mortgage note is a
nullity(Kluge vs Fugazv 145 AD2 537)
Following are more cases from THE NEW YORK SUPREME COURThellip
JUDGE SCHACK BLOWS lsquoMERSrsquo and Bank Of New York (BNY) OUT THE
DOOR
WM SPECIALTY MORTGAGE v JORGE RAMIREZ NO PROOF MERS OWNED THE
MORTGAGE AND NOTE
MERS v MAHENDRA RAMDOOLAR MERS IN NOT THE OWNER OF SUBJECT
MORTGAGE AND NOTE
HOLY COW MERS v MERS NO EVIDENCE IT HAD THE MORTGAGE AND NOTE
MERS V THOMAS STANDFORD MERS DOES NOT OWN MORTGAGE AND NOTE
MERS V GAIL PALMORE-ARCHER MERS DOES NOT OWN MORTGAGE AND NOTE
In the Matter of the Foreclosure of Tax Liens MERS GETS CHEWED
UP
BANK OF NEW YORK V JOSEPH CERULLO MERS NOT OWNER AND HOLDER OF
NOTE MORTGAGE
HSBC V HENRY FELD MERS NOT HOLDER OWNER OF NOTE
THE BANK OF NY MELLON V RICHARD BUSTRUC MERS IS NOT OWNER HOLDER
OF MORTGAGE AND NOTE
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 26
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ONEWEST BANK GETS THE BOOT MERS ASSIGNMENT MAKES NO REFERENCE TO
NOTE
NY SUPREME COURT WELLS FARGO MERS amp STEVEN J BAUM ldquoFATAL
DEFECTrdquo
FDN attorneys Jeff Barnes Esq and Elizabeth Lemoine Esq have
achieved a significant victory in Federal Court in Oregon against
MERS On Tuesday September 28 2010 Mr Barnes and Ms Lemoine
defended and argued Motions to Dismiss the borrowersrsquo lawsuit
challenging a nonjudicial foreclosure The Motions were filed by
the Defendants OneWest Bank and MERS The action was originally
filed in state court where a temporary restraining order was
entered stopping the sale On the eve of the scheduled hearing on
the borrowersrsquo Motion for Preliminary Injunction Defendants
OneWest Bank MERS and Regional Trustee Services removed the
case to Federal Court in an obvious attempt to circumvent the
state court injunction hearing The Federal Court entered an
Injunction and scheduled a hearing on the Motions filed by the
Defendants
During the course of the hearing the Court repeatedly raised the
ldquoMERS as nomineerdquo issues to counsel for the Defendants with said
counsel finally admitting upon repeated inquiry by the Court
that MERS cannot transfer promissory notes The Court denied the
Motions to Dismiss and has by Order commanded the injunction
against the sale to remain in place through the duration of the
borrowersrsquo lawsuit
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
REQUEST FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY
INJUNCTION
Because of the nature of the findings of the listed FACTS I
through FACT VII and lack of truthful evidence leading to these
illegal foreclosure proceedings Plaintiff prays for the Court to
issue a temporary restraining order and a preliminary injunction
against Defendant for any and all claims the Defendants are
pursuing against Plaintiff and Plaintiffrsquos property via Exhibits
(A B C D E and F) thereby causing harm to the Plaintiff
REQUEST FOR PERMANENT INJUNCTION AND REMUNERATION
Because of all of the FACTS and Court case evidence listed in
this complaint Plaintiff demands the Defendants produce the
original NOTE in question to avoid forgery and fraud charges If
NOTE is not produced within 30 days from the delivery and receipt
of the summons upon the Defendant Plaintiff will press forgery
charges pursuant RCW 9A60020 Plaintiff thereby will demand
remuneration of fraudulently collected monies paid to illegally
represented lenders Bank of America FKA Countrywide and interest
at 675 with the total amount of $8775636 + case fees or
Eighty Seven Thousand Seven hundred and fifty six dollars and 36
cents plus case fees to the Defendant who deceived the Plaintiff
by fraudulently claiming to be the legitimate lender trustee
and beneficiary while falsely claiming to hold the NOTE assuming
all assets and liabilities of Countrywide
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 28
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2
3
4
5
6
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8
9
10
11
12
13
14
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16
17
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20
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25
RCW 740020
Grounds for issuance
When it appears by the complaint that the plaintiff is entitled
to the relief demanded and the relief or any part thereof
consists in restraining the commission or continuance of some
act the commission or continuance of which during the litigation
would produce great injury to the plaintiff or when during the
litigation it appears that the defendant is doing
or threatened or is about to do or is procuring or is suffering some act to
be done in violation of the plaintiffs rights respecting the subject of the
action tending to render the judgment ineffectual or where such relief or
any part thereof consists in restraining proceedings upon any final order or
judgment an injunction may be granted to restrain such act or proceedings
until the further order of the court which may afterwards be dissolved or
modified upon motion And where it appears in the complaint at the
commencement of the action or during the pendency thereof by affidavit that
the defendant threatens or is about to remove or dispose of his property with
intent to defraud his creditors a temporary injunction may be granted to
restrain the removal or disposition of his property
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 29
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
BySamuel Salmon 917C Philpott Rd Colville WA 99114
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 16
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
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20
21
22
23
24
25
practices and fraud perpetrated by ldquolendersrdquo and MERS upon
borrowers which conduct was engaged in for the sole purpose of
greed and profit for the ldquolendersrdquo and their ilk at the expense
of borrowers
MERS Inc Appellant v Southwest Homes of Arkansas Appellee The
second State Supreme Court ruling ndash AR 2009
BAC v US Bank ndash FL Appellate court upholds the concept of
determining the standing of the foreclosing party before allowing
summary judgement All cases in FL must now go through this
process 2007
Wells Fargo NAS v Farmer Motion to vacate in Supreme Court Kings
County NY 2009
In Re Joshua amp Stephanie Mitchell ndash US Federal Bankruptcy Court
NV 2009
In Re Wilhelm et al Case No 08-20577-TLM (opinion of Hon
Terry L Myers Chief US Bankruptcy Judge July 9 2009) ndash
Chief US Bankruptcy Judge ID ndash MERS by its construction
separates the Deed from the Mortgage
MERS v Johnston ndash Vermont Superior Court Decision
Wells Fargo v Jordon ndash OH Appellate Court
Weingartner et al v Chase Home Finance et al ndash US District Court
Schneider et al v Deutsche Bank et al (FL) Class action suit
(the filing) seeking to recover actual and statutory damages for
violations of the foreclosure process Provides an excellent
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 17
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
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19
20
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24
25
description of the securitization process and the problems with
assignments
JP Morgan Chase v New Millenial et al ndash FL Appellate which
clearly demonstrates the chaos which can ensue when there is a
failure to register changes of ownership at the county recorderrsquos
office Everyone operates in good faith then out of nowhere
someone shows up waving a piece of paper The MERS system while
not explicitly named is clearly the culprit of the chaos 2009
In Re Walker Case No 10-21656-E-11 ndash Eastern District of CA
Bankruptcy court rules MERS has NO actionable interest in title
ldquoAny attempt to transfer the beneficial interest of a trust deed
without ownership of the underlying note is void under California
lawrdquo ldquoMERS could not as a matter of law have transferred the
note to Citibank from the original lender Bayrock Mortgage
Corprdquo The Courtrsquos opinion is headlined stating that MERS and
Citibank are not the real parties in interest
In re Vargas 396 BR at 517-19 Judge Bufford made a finding
that the witness called to testify as to debt and default was
incompetent All the witness could testify was that he had looked
at the MERS computerized records The witness was unable to
satisfy the requirements of the Federal Rules of Evidence
particularly Rule 803 as applied to computerized records in the
Ninth Circuit See id at 517-20 The low level employee could
really only testify that the MERS screen shot he reviewed
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
reflected a default That really is not much in the way of
evidence and not nearly enough to get around the hearsay rule
In Re Joshua and Stephanie Mitchell Case No BK-S-07-16226-
LBR [US Bankruptcy Court District of Nevada Memorandum
Opinion of August 19 2008] Federal Court in Nevada attacked
MERSrsquo purported ldquoauthorityrdquo finding that there was no evidence
that MERS was the agent of the notersquos holder
Mortgage Electronic Registration Systems Inc v Girdvainis
Sumter County South Carolina Court of Common Pleas Case No
2005-CP-43-0278 (Order dated January 19 2006 citing to the
representations of MERS and court findings in Mortgage Electronic
Registration Systems Inc v Nebraska Dept of Banking and
Finance 270 Neb 529 704 NW 2d 784) As such ALL MERS
assignments are suspect at best and may in fact be fraudulent
The Court of Common Pleas of Sumter County South Carolina also
found that MERSrsquo rights were not as they were represented to be
that MERS had no rights to collect on any debt because it did not
extend any credit none of the borrowers owe MERS any money that
MERS does not own the promissory notes secured by the mortgages
and that MERS does not acquire any loan or extension of credit
secured by a lien on real property
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC v SAUNDERS 2010
ME 79 Docket Cum-09-640Supreme Judicial Court of
Maine | Ordered dated August 12 2010 We conclude that although
MERS is not in fact a ldquomortgageerdquo within the meaning of our
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 19
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
foreclosure statute 14 MRS sectsect 6321-6325 and therefore had no
standing to institute foreclosure proceedings the real party in
interest was the Bank and the court did not abuse its discretion
by substituting the Bank for MERS Because however the Bank was
not entitled to summary judgment as a matter of law we vacate
the judgment and remand for further proceedings
MERS lsquoAGENTrsquo PREVIOUS MTG FRAUD SCHEME| Mortgage Electronic
Registration Systems Inc v Folkes 2010 NY Slip Op 32007 ndash NY
Supreme Court The settlement agent on all of the MERS documents
was listed as Peter Port Esq undeniably plaintiffs agent
According to an affidavit with documents attached from Ms
Nichole M Orr identified as an Assistant Vice President and
Senior Operational Risk Specialist for Bank of America Home
Loans the successor-in-interest to plaintiff Americarsquos Wholesale
Lender (April 1 2010)[1] certain wire transfers were made on
November 23 2004 to Mr Port The money appears to have come
from an account with JP Morgan but one of the documents also
shows inexplicably that Mr Port then sent $43506773 of this
money to Cheron A Ramphal at 14917 Motley Road Silver Springs
MD It should also be noted as it was in the decision of
February 5 2008 by Judge Payne that Mr Port pled guilty in
March 2006 in Federal District Court in New Jersey to providing
false documents in a scheme to commit mortgage fraud
lsquoNO PROOFrsquo MERS assigned BOTH Mortgage and NOTE to HSBC|HSBC
Bank etc v Miller et al The ldquoAssignment of Mortgagerdquo which
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 20
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
is attached as exhibit E to the opposition papers makes no
reference to the note and only makes reference to the mortgage
being assigned The Assignment has a vague reference to note
wherein it states that ldquothe said assignor hereby grants and
conveys unto the said assignee the assignorrsquos beneficial
interest under the mortgage ldquobut this is the only language in
the Assignment which could possibly be found to refer to the
note
Contrary to the affirmation of Ms Szeliga in which she
represented in paragraph 17 that there was language in the
assignment which specifically referred to the note the
assignment in this case does not contain dega specific reference to
the Note
In light of the foregoing the Court is satisfied that there is
insufficient proof to establish that both the note and the
mortgage have been assigned to the Plaintiff and therefore it
is hereby ORDERED that the Plaintiff has no standing to maintain
the foreclosure action and it is further ORDERED that the
application of Defendant Jeffrey F Miller to dismiss is
granted without prejudice to renew upon proof of a valid
assignment of the note
UNION BANK CO v NORTH CAROLINA FURNITURE EXPRESS LLC MERS
lsquoGETS FORECLOSEDrsquo| ASSIGNS NADA TO BAC fka COUNTRYWIDE OHIO COURT
OF APPEAL While an assignment typically transfers the lien of
the mortgage on the property described in the mortgage as BAC
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 21
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
acknowledged in its reply brief an assignee can only take and
the assignor can only give the interest currently held by the
assignor RC 530131 With that stated it is clear under the
facts of this case that BAC never obtained an interest in the
property thus it could not have been substituted as a party-
defendant in the 2008 foreclosure action Here with respect to
the 2008 foreclosure action the date the last party was served
with notice was on January 28 2009 which was almost six
months before the purported assignment from MERS to BAC Next on
March 11 2009 the trial court issued a judgment entry of
default against MERS foreclosing on its interest in the property
Once again this default judgment was entered against MERS almost
three months before the purported assignment from MERS to BAC
occurred The effect of this default judgment against MERS
resulted in MERS having ldquono interest in and to said premises and
the equity of redemption of said Defendants in the real estate
described in Plaintiffrsquos Complaint shall be forever cut off
barred and foreclosedrdquo (2008 CV 0267 Mar 10 2009 JE)
Nevertheless according to the documents filed by BAC to evidence
its assignment from MERS MERS assigned its interest to BAC on
June 1 2009 (2009 CV 312 Oct 7 2009 JE Ex A)
Consequently as a result of the already entered default judgment
against MERS when BAC was assigned MERSrsquo interest in the
property on June 1 2009 BAC did not receive a viable interest
in the property See Quill v Maddox (May 31 2002) 2nd Dist
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 22
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
No 19052 at 2 (mortgageersquos assignee failed to establish that
it had an interest in the property as mortgageersquos interest was
foreclosed by the court before mortgagee assigned its interest to
assignee which could acquire no more interest than mortgagee
held) Thus we find that it was reasonable for the trial court
to have denied the motion to substitute BAC as a party-defendant
for MERS given its lack of interest in the property
HSBC v Thompson HSBCrsquos Irregularities Mortgage Documentation
and Corporate Relationships with Ocwen MERS and Delta Even if
HSBC had provided support for the proposition that ownership of
the note is not required the evidence about the assignment is
not properly before us The alleged mortgage assignment is
attached to the rejected affidavits of Neil Furthermore even if
we were to consider this ldquoevidencerdquo the mortgage assignment from
MERS to HSBC indicates that the assignment was prepared by Ocwen
for MERS and that Ocwen is located at the same Palm Beach
Florida address mentioned in Charlevagne and Antrobus See
Exhibit 3 attached to the affidavit of Chomie Neil In addition
Scott Anderson who signed the assignment as Vice-President of
MERS appears to be the same individual who claimed to be both
Vice-President of MERS and Vice-President of
Ocwen See Antrobus 2008 WL 2928553 4 and Charlevagne 2008
WL 2954767 1
MERS v TORR NY JUDGE SPINNER DENIES Deutsche amp MERS for NOT
Recording Mortgage Make up Affidavit and Assignment MERS lsquoQUIET
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
TITLErsquo FAIL To establish a claim of lien by a lost mortgage
there must be certain evidence (es) demonstrating that the
mortgage was properly executed with all the formalities required
by law andproof of the contents (es) of such instrument hellip Here
Burnettrsquos affidavit simply states that the original mortgage is
not in Deutsch Bankrsquos files and that he is advised (es) that
the title company is out of business Burnett gives no specifics
as to what efforts were made to locate the lost mortgagehellip More
importantly there is no affidavit from MLN by an individual with
personal knowledge of the facts that the complete file concerning
this mortgage was transferred to Deutsch Bank and that the copy
of the mortgage submitted to the court is an authentic copy of
Torrrsquos Mortgagerdquo (es)
LPP MORTGAGE v SABINE PROPERTIES FINAL DISPOSITION| NO Evidence
lsquoMERSrsquo Owned The NOTE Could NOT ASSIGN IT NY SUPREME COURT
FINAL DISPOSITION
Here there are no allegations or evidence that MERS was the
owner of the note such that it could assign it to LPP Thus the
assignment from MERS was insufficient to confer ownership of the
note to LPP and it has no standing to bring this action Kluge v
F umz ~1 45 AD2d at 538 (holding that the assignment of a
mortgage without transfer of the debt is a nullity) Johnson v
Melnikoff 20 Misc3d 1142(A) ldquo2 (Sup Ct Kings Co 2008) n 2
afr 65 AD3d 519 (2d Dept 20 1 Oj(noting that assignments by MERS
which did not include the underlying debt were a legal nullity)
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
m e Elect ro pic Registration Svstem v Coakley 41 AD3d 674 (2d
Dept 2007)(holding that MERS had standing to bring foreclosure
proceeding based on evidence that MERS was the lawful holder of
the promissory note and the mortgage)
Thus even assuming arguendo that the language of the assignment
from MERS to LPP could be interpreted as purporting to assign not
only the mortgage but also the note such assignment is invalid
since based on the record MERS lacked an ownership interest in
the note $ee LaSalle Bank Nat Assrsquon v Lamv 12 Misc3d 1191(A)
ldquo3 (Sup Ct Suffolk Co 2006) (noting that ldquothe mortgage is merely
an incident of and collateral security for the debt and an
assignment of the mortgage does not pass ownership of the debt
itself rsquo)
WACHOVIA BANK NATIONAL ASSOCIATION against ndashSTUART BRENNER et
aI Defendantrsquo s answer contains a defense of ldquolack of
standingrdquo Plaintiff has failed to establish it was the holder of
the note and the mortgage securing it when the action was
commenced In that regard plaintiff relies on an undated
assignment of the mortgage by MERS as nominee acknowledged by a
Texas notary on July 18 2009 The note sued on does not contain
an indication it has been negotiated The undated assignment by
MERS contains a provision at the assignment of the mortgage is
ldquoTOGETHER with the notes described in said mortgagerdquo The record
before me is devoid of proof that MERS as nominee for purposes of
recording had authority to assign the mortgage However assuming
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
it had such authority since it is a party to the mortgage and
such authority might be implied there has been a complete
failure to establish MERS as a non-party to the note to
negotiate its transfer A transfer of the note effects a transfer
of the mortgage MERS vs Coakley 41 AD3 674) the assignment of
a mortgage without a valid transfer of the mortgage note is a
nullity(Kluge vs Fugazv 145 AD2 537)
Following are more cases from THE NEW YORK SUPREME COURThellip
JUDGE SCHACK BLOWS lsquoMERSrsquo and Bank Of New York (BNY) OUT THE
DOOR
WM SPECIALTY MORTGAGE v JORGE RAMIREZ NO PROOF MERS OWNED THE
MORTGAGE AND NOTE
MERS v MAHENDRA RAMDOOLAR MERS IN NOT THE OWNER OF SUBJECT
MORTGAGE AND NOTE
HOLY COW MERS v MERS NO EVIDENCE IT HAD THE MORTGAGE AND NOTE
MERS V THOMAS STANDFORD MERS DOES NOT OWN MORTGAGE AND NOTE
MERS V GAIL PALMORE-ARCHER MERS DOES NOT OWN MORTGAGE AND NOTE
In the Matter of the Foreclosure of Tax Liens MERS GETS CHEWED
UP
BANK OF NEW YORK V JOSEPH CERULLO MERS NOT OWNER AND HOLDER OF
NOTE MORTGAGE
HSBC V HENRY FELD MERS NOT HOLDER OWNER OF NOTE
THE BANK OF NY MELLON V RICHARD BUSTRUC MERS IS NOT OWNER HOLDER
OF MORTGAGE AND NOTE
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 26
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ONEWEST BANK GETS THE BOOT MERS ASSIGNMENT MAKES NO REFERENCE TO
NOTE
NY SUPREME COURT WELLS FARGO MERS amp STEVEN J BAUM ldquoFATAL
DEFECTrdquo
FDN attorneys Jeff Barnes Esq and Elizabeth Lemoine Esq have
achieved a significant victory in Federal Court in Oregon against
MERS On Tuesday September 28 2010 Mr Barnes and Ms Lemoine
defended and argued Motions to Dismiss the borrowersrsquo lawsuit
challenging a nonjudicial foreclosure The Motions were filed by
the Defendants OneWest Bank and MERS The action was originally
filed in state court where a temporary restraining order was
entered stopping the sale On the eve of the scheduled hearing on
the borrowersrsquo Motion for Preliminary Injunction Defendants
OneWest Bank MERS and Regional Trustee Services removed the
case to Federal Court in an obvious attempt to circumvent the
state court injunction hearing The Federal Court entered an
Injunction and scheduled a hearing on the Motions filed by the
Defendants
During the course of the hearing the Court repeatedly raised the
ldquoMERS as nomineerdquo issues to counsel for the Defendants with said
counsel finally admitting upon repeated inquiry by the Court
that MERS cannot transfer promissory notes The Court denied the
Motions to Dismiss and has by Order commanded the injunction
against the sale to remain in place through the duration of the
borrowersrsquo lawsuit
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
REQUEST FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY
INJUNCTION
Because of the nature of the findings of the listed FACTS I
through FACT VII and lack of truthful evidence leading to these
illegal foreclosure proceedings Plaintiff prays for the Court to
issue a temporary restraining order and a preliminary injunction
against Defendant for any and all claims the Defendants are
pursuing against Plaintiff and Plaintiffrsquos property via Exhibits
(A B C D E and F) thereby causing harm to the Plaintiff
REQUEST FOR PERMANENT INJUNCTION AND REMUNERATION
Because of all of the FACTS and Court case evidence listed in
this complaint Plaintiff demands the Defendants produce the
original NOTE in question to avoid forgery and fraud charges If
NOTE is not produced within 30 days from the delivery and receipt
of the summons upon the Defendant Plaintiff will press forgery
charges pursuant RCW 9A60020 Plaintiff thereby will demand
remuneration of fraudulently collected monies paid to illegally
represented lenders Bank of America FKA Countrywide and interest
at 675 with the total amount of $8775636 + case fees or
Eighty Seven Thousand Seven hundred and fifty six dollars and 36
cents plus case fees to the Defendant who deceived the Plaintiff
by fraudulently claiming to be the legitimate lender trustee
and beneficiary while falsely claiming to hold the NOTE assuming
all assets and liabilities of Countrywide
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
RCW 740020
Grounds for issuance
When it appears by the complaint that the plaintiff is entitled
to the relief demanded and the relief or any part thereof
consists in restraining the commission or continuance of some
act the commission or continuance of which during the litigation
would produce great injury to the plaintiff or when during the
litigation it appears that the defendant is doing
or threatened or is about to do or is procuring or is suffering some act to
be done in violation of the plaintiffs rights respecting the subject of the
action tending to render the judgment ineffectual or where such relief or
any part thereof consists in restraining proceedings upon any final order or
judgment an injunction may be granted to restrain such act or proceedings
until the further order of the court which may afterwards be dissolved or
modified upon motion And where it appears in the complaint at the
commencement of the action or during the pendency thereof by affidavit that
the defendant threatens or is about to remove or dispose of his property with
intent to defraud his creditors a temporary injunction may be granted to
restrain the removal or disposition of his property
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 29
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
BySamuel Salmon 917C Philpott Rd Colville WA 99114
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 17
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
description of the securitization process and the problems with
assignments
JP Morgan Chase v New Millenial et al ndash FL Appellate which
clearly demonstrates the chaos which can ensue when there is a
failure to register changes of ownership at the county recorderrsquos
office Everyone operates in good faith then out of nowhere
someone shows up waving a piece of paper The MERS system while
not explicitly named is clearly the culprit of the chaos 2009
In Re Walker Case No 10-21656-E-11 ndash Eastern District of CA
Bankruptcy court rules MERS has NO actionable interest in title
ldquoAny attempt to transfer the beneficial interest of a trust deed
without ownership of the underlying note is void under California
lawrdquo ldquoMERS could not as a matter of law have transferred the
note to Citibank from the original lender Bayrock Mortgage
Corprdquo The Courtrsquos opinion is headlined stating that MERS and
Citibank are not the real parties in interest
In re Vargas 396 BR at 517-19 Judge Bufford made a finding
that the witness called to testify as to debt and default was
incompetent All the witness could testify was that he had looked
at the MERS computerized records The witness was unable to
satisfy the requirements of the Federal Rules of Evidence
particularly Rule 803 as applied to computerized records in the
Ninth Circuit See id at 517-20 The low level employee could
really only testify that the MERS screen shot he reviewed
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
reflected a default That really is not much in the way of
evidence and not nearly enough to get around the hearsay rule
In Re Joshua and Stephanie Mitchell Case No BK-S-07-16226-
LBR [US Bankruptcy Court District of Nevada Memorandum
Opinion of August 19 2008] Federal Court in Nevada attacked
MERSrsquo purported ldquoauthorityrdquo finding that there was no evidence
that MERS was the agent of the notersquos holder
Mortgage Electronic Registration Systems Inc v Girdvainis
Sumter County South Carolina Court of Common Pleas Case No
2005-CP-43-0278 (Order dated January 19 2006 citing to the
representations of MERS and court findings in Mortgage Electronic
Registration Systems Inc v Nebraska Dept of Banking and
Finance 270 Neb 529 704 NW 2d 784) As such ALL MERS
assignments are suspect at best and may in fact be fraudulent
The Court of Common Pleas of Sumter County South Carolina also
found that MERSrsquo rights were not as they were represented to be
that MERS had no rights to collect on any debt because it did not
extend any credit none of the borrowers owe MERS any money that
MERS does not own the promissory notes secured by the mortgages
and that MERS does not acquire any loan or extension of credit
secured by a lien on real property
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC v SAUNDERS 2010
ME 79 Docket Cum-09-640Supreme Judicial Court of
Maine | Ordered dated August 12 2010 We conclude that although
MERS is not in fact a ldquomortgageerdquo within the meaning of our
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 19
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
foreclosure statute 14 MRS sectsect 6321-6325 and therefore had no
standing to institute foreclosure proceedings the real party in
interest was the Bank and the court did not abuse its discretion
by substituting the Bank for MERS Because however the Bank was
not entitled to summary judgment as a matter of law we vacate
the judgment and remand for further proceedings
MERS lsquoAGENTrsquo PREVIOUS MTG FRAUD SCHEME| Mortgage Electronic
Registration Systems Inc v Folkes 2010 NY Slip Op 32007 ndash NY
Supreme Court The settlement agent on all of the MERS documents
was listed as Peter Port Esq undeniably plaintiffs agent
According to an affidavit with documents attached from Ms
Nichole M Orr identified as an Assistant Vice President and
Senior Operational Risk Specialist for Bank of America Home
Loans the successor-in-interest to plaintiff Americarsquos Wholesale
Lender (April 1 2010)[1] certain wire transfers were made on
November 23 2004 to Mr Port The money appears to have come
from an account with JP Morgan but one of the documents also
shows inexplicably that Mr Port then sent $43506773 of this
money to Cheron A Ramphal at 14917 Motley Road Silver Springs
MD It should also be noted as it was in the decision of
February 5 2008 by Judge Payne that Mr Port pled guilty in
March 2006 in Federal District Court in New Jersey to providing
false documents in a scheme to commit mortgage fraud
lsquoNO PROOFrsquo MERS assigned BOTH Mortgage and NOTE to HSBC|HSBC
Bank etc v Miller et al The ldquoAssignment of Mortgagerdquo which
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 20
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
is attached as exhibit E to the opposition papers makes no
reference to the note and only makes reference to the mortgage
being assigned The Assignment has a vague reference to note
wherein it states that ldquothe said assignor hereby grants and
conveys unto the said assignee the assignorrsquos beneficial
interest under the mortgage ldquobut this is the only language in
the Assignment which could possibly be found to refer to the
note
Contrary to the affirmation of Ms Szeliga in which she
represented in paragraph 17 that there was language in the
assignment which specifically referred to the note the
assignment in this case does not contain dega specific reference to
the Note
In light of the foregoing the Court is satisfied that there is
insufficient proof to establish that both the note and the
mortgage have been assigned to the Plaintiff and therefore it
is hereby ORDERED that the Plaintiff has no standing to maintain
the foreclosure action and it is further ORDERED that the
application of Defendant Jeffrey F Miller to dismiss is
granted without prejudice to renew upon proof of a valid
assignment of the note
UNION BANK CO v NORTH CAROLINA FURNITURE EXPRESS LLC MERS
lsquoGETS FORECLOSEDrsquo| ASSIGNS NADA TO BAC fka COUNTRYWIDE OHIO COURT
OF APPEAL While an assignment typically transfers the lien of
the mortgage on the property described in the mortgage as BAC
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 21
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
acknowledged in its reply brief an assignee can only take and
the assignor can only give the interest currently held by the
assignor RC 530131 With that stated it is clear under the
facts of this case that BAC never obtained an interest in the
property thus it could not have been substituted as a party-
defendant in the 2008 foreclosure action Here with respect to
the 2008 foreclosure action the date the last party was served
with notice was on January 28 2009 which was almost six
months before the purported assignment from MERS to BAC Next on
March 11 2009 the trial court issued a judgment entry of
default against MERS foreclosing on its interest in the property
Once again this default judgment was entered against MERS almost
three months before the purported assignment from MERS to BAC
occurred The effect of this default judgment against MERS
resulted in MERS having ldquono interest in and to said premises and
the equity of redemption of said Defendants in the real estate
described in Plaintiffrsquos Complaint shall be forever cut off
barred and foreclosedrdquo (2008 CV 0267 Mar 10 2009 JE)
Nevertheless according to the documents filed by BAC to evidence
its assignment from MERS MERS assigned its interest to BAC on
June 1 2009 (2009 CV 312 Oct 7 2009 JE Ex A)
Consequently as a result of the already entered default judgment
against MERS when BAC was assigned MERSrsquo interest in the
property on June 1 2009 BAC did not receive a viable interest
in the property See Quill v Maddox (May 31 2002) 2nd Dist
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 22
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
No 19052 at 2 (mortgageersquos assignee failed to establish that
it had an interest in the property as mortgageersquos interest was
foreclosed by the court before mortgagee assigned its interest to
assignee which could acquire no more interest than mortgagee
held) Thus we find that it was reasonable for the trial court
to have denied the motion to substitute BAC as a party-defendant
for MERS given its lack of interest in the property
HSBC v Thompson HSBCrsquos Irregularities Mortgage Documentation
and Corporate Relationships with Ocwen MERS and Delta Even if
HSBC had provided support for the proposition that ownership of
the note is not required the evidence about the assignment is
not properly before us The alleged mortgage assignment is
attached to the rejected affidavits of Neil Furthermore even if
we were to consider this ldquoevidencerdquo the mortgage assignment from
MERS to HSBC indicates that the assignment was prepared by Ocwen
for MERS and that Ocwen is located at the same Palm Beach
Florida address mentioned in Charlevagne and Antrobus See
Exhibit 3 attached to the affidavit of Chomie Neil In addition
Scott Anderson who signed the assignment as Vice-President of
MERS appears to be the same individual who claimed to be both
Vice-President of MERS and Vice-President of
Ocwen See Antrobus 2008 WL 2928553 4 and Charlevagne 2008
WL 2954767 1
MERS v TORR NY JUDGE SPINNER DENIES Deutsche amp MERS for NOT
Recording Mortgage Make up Affidavit and Assignment MERS lsquoQUIET
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
TITLErsquo FAIL To establish a claim of lien by a lost mortgage
there must be certain evidence (es) demonstrating that the
mortgage was properly executed with all the formalities required
by law andproof of the contents (es) of such instrument hellip Here
Burnettrsquos affidavit simply states that the original mortgage is
not in Deutsch Bankrsquos files and that he is advised (es) that
the title company is out of business Burnett gives no specifics
as to what efforts were made to locate the lost mortgagehellip More
importantly there is no affidavit from MLN by an individual with
personal knowledge of the facts that the complete file concerning
this mortgage was transferred to Deutsch Bank and that the copy
of the mortgage submitted to the court is an authentic copy of
Torrrsquos Mortgagerdquo (es)
LPP MORTGAGE v SABINE PROPERTIES FINAL DISPOSITION| NO Evidence
lsquoMERSrsquo Owned The NOTE Could NOT ASSIGN IT NY SUPREME COURT
FINAL DISPOSITION
Here there are no allegations or evidence that MERS was the
owner of the note such that it could assign it to LPP Thus the
assignment from MERS was insufficient to confer ownership of the
note to LPP and it has no standing to bring this action Kluge v
F umz ~1 45 AD2d at 538 (holding that the assignment of a
mortgage without transfer of the debt is a nullity) Johnson v
Melnikoff 20 Misc3d 1142(A) ldquo2 (Sup Ct Kings Co 2008) n 2
afr 65 AD3d 519 (2d Dept 20 1 Oj(noting that assignments by MERS
which did not include the underlying debt were a legal nullity)
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
m e Elect ro pic Registration Svstem v Coakley 41 AD3d 674 (2d
Dept 2007)(holding that MERS had standing to bring foreclosure
proceeding based on evidence that MERS was the lawful holder of
the promissory note and the mortgage)
Thus even assuming arguendo that the language of the assignment
from MERS to LPP could be interpreted as purporting to assign not
only the mortgage but also the note such assignment is invalid
since based on the record MERS lacked an ownership interest in
the note $ee LaSalle Bank Nat Assrsquon v Lamv 12 Misc3d 1191(A)
ldquo3 (Sup Ct Suffolk Co 2006) (noting that ldquothe mortgage is merely
an incident of and collateral security for the debt and an
assignment of the mortgage does not pass ownership of the debt
itself rsquo)
WACHOVIA BANK NATIONAL ASSOCIATION against ndashSTUART BRENNER et
aI Defendantrsquo s answer contains a defense of ldquolack of
standingrdquo Plaintiff has failed to establish it was the holder of
the note and the mortgage securing it when the action was
commenced In that regard plaintiff relies on an undated
assignment of the mortgage by MERS as nominee acknowledged by a
Texas notary on July 18 2009 The note sued on does not contain
an indication it has been negotiated The undated assignment by
MERS contains a provision at the assignment of the mortgage is
ldquoTOGETHER with the notes described in said mortgagerdquo The record
before me is devoid of proof that MERS as nominee for purposes of
recording had authority to assign the mortgage However assuming
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
it had such authority since it is a party to the mortgage and
such authority might be implied there has been a complete
failure to establish MERS as a non-party to the note to
negotiate its transfer A transfer of the note effects a transfer
of the mortgage MERS vs Coakley 41 AD3 674) the assignment of
a mortgage without a valid transfer of the mortgage note is a
nullity(Kluge vs Fugazv 145 AD2 537)
Following are more cases from THE NEW YORK SUPREME COURThellip
JUDGE SCHACK BLOWS lsquoMERSrsquo and Bank Of New York (BNY) OUT THE
DOOR
WM SPECIALTY MORTGAGE v JORGE RAMIREZ NO PROOF MERS OWNED THE
MORTGAGE AND NOTE
MERS v MAHENDRA RAMDOOLAR MERS IN NOT THE OWNER OF SUBJECT
MORTGAGE AND NOTE
HOLY COW MERS v MERS NO EVIDENCE IT HAD THE MORTGAGE AND NOTE
MERS V THOMAS STANDFORD MERS DOES NOT OWN MORTGAGE AND NOTE
MERS V GAIL PALMORE-ARCHER MERS DOES NOT OWN MORTGAGE AND NOTE
In the Matter of the Foreclosure of Tax Liens MERS GETS CHEWED
UP
BANK OF NEW YORK V JOSEPH CERULLO MERS NOT OWNER AND HOLDER OF
NOTE MORTGAGE
HSBC V HENRY FELD MERS NOT HOLDER OWNER OF NOTE
THE BANK OF NY MELLON V RICHARD BUSTRUC MERS IS NOT OWNER HOLDER
OF MORTGAGE AND NOTE
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 26
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ONEWEST BANK GETS THE BOOT MERS ASSIGNMENT MAKES NO REFERENCE TO
NOTE
NY SUPREME COURT WELLS FARGO MERS amp STEVEN J BAUM ldquoFATAL
DEFECTrdquo
FDN attorneys Jeff Barnes Esq and Elizabeth Lemoine Esq have
achieved a significant victory in Federal Court in Oregon against
MERS On Tuesday September 28 2010 Mr Barnes and Ms Lemoine
defended and argued Motions to Dismiss the borrowersrsquo lawsuit
challenging a nonjudicial foreclosure The Motions were filed by
the Defendants OneWest Bank and MERS The action was originally
filed in state court where a temporary restraining order was
entered stopping the sale On the eve of the scheduled hearing on
the borrowersrsquo Motion for Preliminary Injunction Defendants
OneWest Bank MERS and Regional Trustee Services removed the
case to Federal Court in an obvious attempt to circumvent the
state court injunction hearing The Federal Court entered an
Injunction and scheduled a hearing on the Motions filed by the
Defendants
During the course of the hearing the Court repeatedly raised the
ldquoMERS as nomineerdquo issues to counsel for the Defendants with said
counsel finally admitting upon repeated inquiry by the Court
that MERS cannot transfer promissory notes The Court denied the
Motions to Dismiss and has by Order commanded the injunction
against the sale to remain in place through the duration of the
borrowersrsquo lawsuit
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
REQUEST FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY
INJUNCTION
Because of the nature of the findings of the listed FACTS I
through FACT VII and lack of truthful evidence leading to these
illegal foreclosure proceedings Plaintiff prays for the Court to
issue a temporary restraining order and a preliminary injunction
against Defendant for any and all claims the Defendants are
pursuing against Plaintiff and Plaintiffrsquos property via Exhibits
(A B C D E and F) thereby causing harm to the Plaintiff
REQUEST FOR PERMANENT INJUNCTION AND REMUNERATION
Because of all of the FACTS and Court case evidence listed in
this complaint Plaintiff demands the Defendants produce the
original NOTE in question to avoid forgery and fraud charges If
NOTE is not produced within 30 days from the delivery and receipt
of the summons upon the Defendant Plaintiff will press forgery
charges pursuant RCW 9A60020 Plaintiff thereby will demand
remuneration of fraudulently collected monies paid to illegally
represented lenders Bank of America FKA Countrywide and interest
at 675 with the total amount of $8775636 + case fees or
Eighty Seven Thousand Seven hundred and fifty six dollars and 36
cents plus case fees to the Defendant who deceived the Plaintiff
by fraudulently claiming to be the legitimate lender trustee
and beneficiary while falsely claiming to hold the NOTE assuming
all assets and liabilities of Countrywide
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
RCW 740020
Grounds for issuance
When it appears by the complaint that the plaintiff is entitled
to the relief demanded and the relief or any part thereof
consists in restraining the commission or continuance of some
act the commission or continuance of which during the litigation
would produce great injury to the plaintiff or when during the
litigation it appears that the defendant is doing
or threatened or is about to do or is procuring or is suffering some act to
be done in violation of the plaintiffs rights respecting the subject of the
action tending to render the judgment ineffectual or where such relief or
any part thereof consists in restraining proceedings upon any final order or
judgment an injunction may be granted to restrain such act or proceedings
until the further order of the court which may afterwards be dissolved or
modified upon motion And where it appears in the complaint at the
commencement of the action or during the pendency thereof by affidavit that
the defendant threatens or is about to remove or dispose of his property with
intent to defraud his creditors a temporary injunction may be granted to
restrain the removal or disposition of his property
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 29
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
BySamuel Salmon 917C Philpott Rd Colville WA 99114
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
reflected a default That really is not much in the way of
evidence and not nearly enough to get around the hearsay rule
In Re Joshua and Stephanie Mitchell Case No BK-S-07-16226-
LBR [US Bankruptcy Court District of Nevada Memorandum
Opinion of August 19 2008] Federal Court in Nevada attacked
MERSrsquo purported ldquoauthorityrdquo finding that there was no evidence
that MERS was the agent of the notersquos holder
Mortgage Electronic Registration Systems Inc v Girdvainis
Sumter County South Carolina Court of Common Pleas Case No
2005-CP-43-0278 (Order dated January 19 2006 citing to the
representations of MERS and court findings in Mortgage Electronic
Registration Systems Inc v Nebraska Dept of Banking and
Finance 270 Neb 529 704 NW 2d 784) As such ALL MERS
assignments are suspect at best and may in fact be fraudulent
The Court of Common Pleas of Sumter County South Carolina also
found that MERSrsquo rights were not as they were represented to be
that MERS had no rights to collect on any debt because it did not
extend any credit none of the borrowers owe MERS any money that
MERS does not own the promissory notes secured by the mortgages
and that MERS does not acquire any loan or extension of credit
secured by a lien on real property
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC v SAUNDERS 2010
ME 79 Docket Cum-09-640Supreme Judicial Court of
Maine | Ordered dated August 12 2010 We conclude that although
MERS is not in fact a ldquomortgageerdquo within the meaning of our
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 19
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
foreclosure statute 14 MRS sectsect 6321-6325 and therefore had no
standing to institute foreclosure proceedings the real party in
interest was the Bank and the court did not abuse its discretion
by substituting the Bank for MERS Because however the Bank was
not entitled to summary judgment as a matter of law we vacate
the judgment and remand for further proceedings
MERS lsquoAGENTrsquo PREVIOUS MTG FRAUD SCHEME| Mortgage Electronic
Registration Systems Inc v Folkes 2010 NY Slip Op 32007 ndash NY
Supreme Court The settlement agent on all of the MERS documents
was listed as Peter Port Esq undeniably plaintiffs agent
According to an affidavit with documents attached from Ms
Nichole M Orr identified as an Assistant Vice President and
Senior Operational Risk Specialist for Bank of America Home
Loans the successor-in-interest to plaintiff Americarsquos Wholesale
Lender (April 1 2010)[1] certain wire transfers were made on
November 23 2004 to Mr Port The money appears to have come
from an account with JP Morgan but one of the documents also
shows inexplicably that Mr Port then sent $43506773 of this
money to Cheron A Ramphal at 14917 Motley Road Silver Springs
MD It should also be noted as it was in the decision of
February 5 2008 by Judge Payne that Mr Port pled guilty in
March 2006 in Federal District Court in New Jersey to providing
false documents in a scheme to commit mortgage fraud
lsquoNO PROOFrsquo MERS assigned BOTH Mortgage and NOTE to HSBC|HSBC
Bank etc v Miller et al The ldquoAssignment of Mortgagerdquo which
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 20
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
is attached as exhibit E to the opposition papers makes no
reference to the note and only makes reference to the mortgage
being assigned The Assignment has a vague reference to note
wherein it states that ldquothe said assignor hereby grants and
conveys unto the said assignee the assignorrsquos beneficial
interest under the mortgage ldquobut this is the only language in
the Assignment which could possibly be found to refer to the
note
Contrary to the affirmation of Ms Szeliga in which she
represented in paragraph 17 that there was language in the
assignment which specifically referred to the note the
assignment in this case does not contain dega specific reference to
the Note
In light of the foregoing the Court is satisfied that there is
insufficient proof to establish that both the note and the
mortgage have been assigned to the Plaintiff and therefore it
is hereby ORDERED that the Plaintiff has no standing to maintain
the foreclosure action and it is further ORDERED that the
application of Defendant Jeffrey F Miller to dismiss is
granted without prejudice to renew upon proof of a valid
assignment of the note
UNION BANK CO v NORTH CAROLINA FURNITURE EXPRESS LLC MERS
lsquoGETS FORECLOSEDrsquo| ASSIGNS NADA TO BAC fka COUNTRYWIDE OHIO COURT
OF APPEAL While an assignment typically transfers the lien of
the mortgage on the property described in the mortgage as BAC
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 21
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
acknowledged in its reply brief an assignee can only take and
the assignor can only give the interest currently held by the
assignor RC 530131 With that stated it is clear under the
facts of this case that BAC never obtained an interest in the
property thus it could not have been substituted as a party-
defendant in the 2008 foreclosure action Here with respect to
the 2008 foreclosure action the date the last party was served
with notice was on January 28 2009 which was almost six
months before the purported assignment from MERS to BAC Next on
March 11 2009 the trial court issued a judgment entry of
default against MERS foreclosing on its interest in the property
Once again this default judgment was entered against MERS almost
three months before the purported assignment from MERS to BAC
occurred The effect of this default judgment against MERS
resulted in MERS having ldquono interest in and to said premises and
the equity of redemption of said Defendants in the real estate
described in Plaintiffrsquos Complaint shall be forever cut off
barred and foreclosedrdquo (2008 CV 0267 Mar 10 2009 JE)
Nevertheless according to the documents filed by BAC to evidence
its assignment from MERS MERS assigned its interest to BAC on
June 1 2009 (2009 CV 312 Oct 7 2009 JE Ex A)
Consequently as a result of the already entered default judgment
against MERS when BAC was assigned MERSrsquo interest in the
property on June 1 2009 BAC did not receive a viable interest
in the property See Quill v Maddox (May 31 2002) 2nd Dist
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 22
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
No 19052 at 2 (mortgageersquos assignee failed to establish that
it had an interest in the property as mortgageersquos interest was
foreclosed by the court before mortgagee assigned its interest to
assignee which could acquire no more interest than mortgagee
held) Thus we find that it was reasonable for the trial court
to have denied the motion to substitute BAC as a party-defendant
for MERS given its lack of interest in the property
HSBC v Thompson HSBCrsquos Irregularities Mortgage Documentation
and Corporate Relationships with Ocwen MERS and Delta Even if
HSBC had provided support for the proposition that ownership of
the note is not required the evidence about the assignment is
not properly before us The alleged mortgage assignment is
attached to the rejected affidavits of Neil Furthermore even if
we were to consider this ldquoevidencerdquo the mortgage assignment from
MERS to HSBC indicates that the assignment was prepared by Ocwen
for MERS and that Ocwen is located at the same Palm Beach
Florida address mentioned in Charlevagne and Antrobus See
Exhibit 3 attached to the affidavit of Chomie Neil In addition
Scott Anderson who signed the assignment as Vice-President of
MERS appears to be the same individual who claimed to be both
Vice-President of MERS and Vice-President of
Ocwen See Antrobus 2008 WL 2928553 4 and Charlevagne 2008
WL 2954767 1
MERS v TORR NY JUDGE SPINNER DENIES Deutsche amp MERS for NOT
Recording Mortgage Make up Affidavit and Assignment MERS lsquoQUIET
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
TITLErsquo FAIL To establish a claim of lien by a lost mortgage
there must be certain evidence (es) demonstrating that the
mortgage was properly executed with all the formalities required
by law andproof of the contents (es) of such instrument hellip Here
Burnettrsquos affidavit simply states that the original mortgage is
not in Deutsch Bankrsquos files and that he is advised (es) that
the title company is out of business Burnett gives no specifics
as to what efforts were made to locate the lost mortgagehellip More
importantly there is no affidavit from MLN by an individual with
personal knowledge of the facts that the complete file concerning
this mortgage was transferred to Deutsch Bank and that the copy
of the mortgage submitted to the court is an authentic copy of
Torrrsquos Mortgagerdquo (es)
LPP MORTGAGE v SABINE PROPERTIES FINAL DISPOSITION| NO Evidence
lsquoMERSrsquo Owned The NOTE Could NOT ASSIGN IT NY SUPREME COURT
FINAL DISPOSITION
Here there are no allegations or evidence that MERS was the
owner of the note such that it could assign it to LPP Thus the
assignment from MERS was insufficient to confer ownership of the
note to LPP and it has no standing to bring this action Kluge v
F umz ~1 45 AD2d at 538 (holding that the assignment of a
mortgage without transfer of the debt is a nullity) Johnson v
Melnikoff 20 Misc3d 1142(A) ldquo2 (Sup Ct Kings Co 2008) n 2
afr 65 AD3d 519 (2d Dept 20 1 Oj(noting that assignments by MERS
which did not include the underlying debt were a legal nullity)
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
m e Elect ro pic Registration Svstem v Coakley 41 AD3d 674 (2d
Dept 2007)(holding that MERS had standing to bring foreclosure
proceeding based on evidence that MERS was the lawful holder of
the promissory note and the mortgage)
Thus even assuming arguendo that the language of the assignment
from MERS to LPP could be interpreted as purporting to assign not
only the mortgage but also the note such assignment is invalid
since based on the record MERS lacked an ownership interest in
the note $ee LaSalle Bank Nat Assrsquon v Lamv 12 Misc3d 1191(A)
ldquo3 (Sup Ct Suffolk Co 2006) (noting that ldquothe mortgage is merely
an incident of and collateral security for the debt and an
assignment of the mortgage does not pass ownership of the debt
itself rsquo)
WACHOVIA BANK NATIONAL ASSOCIATION against ndashSTUART BRENNER et
aI Defendantrsquo s answer contains a defense of ldquolack of
standingrdquo Plaintiff has failed to establish it was the holder of
the note and the mortgage securing it when the action was
commenced In that regard plaintiff relies on an undated
assignment of the mortgage by MERS as nominee acknowledged by a
Texas notary on July 18 2009 The note sued on does not contain
an indication it has been negotiated The undated assignment by
MERS contains a provision at the assignment of the mortgage is
ldquoTOGETHER with the notes described in said mortgagerdquo The record
before me is devoid of proof that MERS as nominee for purposes of
recording had authority to assign the mortgage However assuming
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
it had such authority since it is a party to the mortgage and
such authority might be implied there has been a complete
failure to establish MERS as a non-party to the note to
negotiate its transfer A transfer of the note effects a transfer
of the mortgage MERS vs Coakley 41 AD3 674) the assignment of
a mortgage without a valid transfer of the mortgage note is a
nullity(Kluge vs Fugazv 145 AD2 537)
Following are more cases from THE NEW YORK SUPREME COURThellip
JUDGE SCHACK BLOWS lsquoMERSrsquo and Bank Of New York (BNY) OUT THE
DOOR
WM SPECIALTY MORTGAGE v JORGE RAMIREZ NO PROOF MERS OWNED THE
MORTGAGE AND NOTE
MERS v MAHENDRA RAMDOOLAR MERS IN NOT THE OWNER OF SUBJECT
MORTGAGE AND NOTE
HOLY COW MERS v MERS NO EVIDENCE IT HAD THE MORTGAGE AND NOTE
MERS V THOMAS STANDFORD MERS DOES NOT OWN MORTGAGE AND NOTE
MERS V GAIL PALMORE-ARCHER MERS DOES NOT OWN MORTGAGE AND NOTE
In the Matter of the Foreclosure of Tax Liens MERS GETS CHEWED
UP
BANK OF NEW YORK V JOSEPH CERULLO MERS NOT OWNER AND HOLDER OF
NOTE MORTGAGE
HSBC V HENRY FELD MERS NOT HOLDER OWNER OF NOTE
THE BANK OF NY MELLON V RICHARD BUSTRUC MERS IS NOT OWNER HOLDER
OF MORTGAGE AND NOTE
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 26
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ONEWEST BANK GETS THE BOOT MERS ASSIGNMENT MAKES NO REFERENCE TO
NOTE
NY SUPREME COURT WELLS FARGO MERS amp STEVEN J BAUM ldquoFATAL
DEFECTrdquo
FDN attorneys Jeff Barnes Esq and Elizabeth Lemoine Esq have
achieved a significant victory in Federal Court in Oregon against
MERS On Tuesday September 28 2010 Mr Barnes and Ms Lemoine
defended and argued Motions to Dismiss the borrowersrsquo lawsuit
challenging a nonjudicial foreclosure The Motions were filed by
the Defendants OneWest Bank and MERS The action was originally
filed in state court where a temporary restraining order was
entered stopping the sale On the eve of the scheduled hearing on
the borrowersrsquo Motion for Preliminary Injunction Defendants
OneWest Bank MERS and Regional Trustee Services removed the
case to Federal Court in an obvious attempt to circumvent the
state court injunction hearing The Federal Court entered an
Injunction and scheduled a hearing on the Motions filed by the
Defendants
During the course of the hearing the Court repeatedly raised the
ldquoMERS as nomineerdquo issues to counsel for the Defendants with said
counsel finally admitting upon repeated inquiry by the Court
that MERS cannot transfer promissory notes The Court denied the
Motions to Dismiss and has by Order commanded the injunction
against the sale to remain in place through the duration of the
borrowersrsquo lawsuit
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
REQUEST FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY
INJUNCTION
Because of the nature of the findings of the listed FACTS I
through FACT VII and lack of truthful evidence leading to these
illegal foreclosure proceedings Plaintiff prays for the Court to
issue a temporary restraining order and a preliminary injunction
against Defendant for any and all claims the Defendants are
pursuing against Plaintiff and Plaintiffrsquos property via Exhibits
(A B C D E and F) thereby causing harm to the Plaintiff
REQUEST FOR PERMANENT INJUNCTION AND REMUNERATION
Because of all of the FACTS and Court case evidence listed in
this complaint Plaintiff demands the Defendants produce the
original NOTE in question to avoid forgery and fraud charges If
NOTE is not produced within 30 days from the delivery and receipt
of the summons upon the Defendant Plaintiff will press forgery
charges pursuant RCW 9A60020 Plaintiff thereby will demand
remuneration of fraudulently collected monies paid to illegally
represented lenders Bank of America FKA Countrywide and interest
at 675 with the total amount of $8775636 + case fees or
Eighty Seven Thousand Seven hundred and fifty six dollars and 36
cents plus case fees to the Defendant who deceived the Plaintiff
by fraudulently claiming to be the legitimate lender trustee
and beneficiary while falsely claiming to hold the NOTE assuming
all assets and liabilities of Countrywide
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
RCW 740020
Grounds for issuance
When it appears by the complaint that the plaintiff is entitled
to the relief demanded and the relief or any part thereof
consists in restraining the commission or continuance of some
act the commission or continuance of which during the litigation
would produce great injury to the plaintiff or when during the
litigation it appears that the defendant is doing
or threatened or is about to do or is procuring or is suffering some act to
be done in violation of the plaintiffs rights respecting the subject of the
action tending to render the judgment ineffectual or where such relief or
any part thereof consists in restraining proceedings upon any final order or
judgment an injunction may be granted to restrain such act or proceedings
until the further order of the court which may afterwards be dissolved or
modified upon motion And where it appears in the complaint at the
commencement of the action or during the pendency thereof by affidavit that
the defendant threatens or is about to remove or dispose of his property with
intent to defraud his creditors a temporary injunction may be granted to
restrain the removal or disposition of his property
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 29
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
BySamuel Salmon 917C Philpott Rd Colville WA 99114
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 19
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
foreclosure statute 14 MRS sectsect 6321-6325 and therefore had no
standing to institute foreclosure proceedings the real party in
interest was the Bank and the court did not abuse its discretion
by substituting the Bank for MERS Because however the Bank was
not entitled to summary judgment as a matter of law we vacate
the judgment and remand for further proceedings
MERS lsquoAGENTrsquo PREVIOUS MTG FRAUD SCHEME| Mortgage Electronic
Registration Systems Inc v Folkes 2010 NY Slip Op 32007 ndash NY
Supreme Court The settlement agent on all of the MERS documents
was listed as Peter Port Esq undeniably plaintiffs agent
According to an affidavit with documents attached from Ms
Nichole M Orr identified as an Assistant Vice President and
Senior Operational Risk Specialist for Bank of America Home
Loans the successor-in-interest to plaintiff Americarsquos Wholesale
Lender (April 1 2010)[1] certain wire transfers were made on
November 23 2004 to Mr Port The money appears to have come
from an account with JP Morgan but one of the documents also
shows inexplicably that Mr Port then sent $43506773 of this
money to Cheron A Ramphal at 14917 Motley Road Silver Springs
MD It should also be noted as it was in the decision of
February 5 2008 by Judge Payne that Mr Port pled guilty in
March 2006 in Federal District Court in New Jersey to providing
false documents in a scheme to commit mortgage fraud
lsquoNO PROOFrsquo MERS assigned BOTH Mortgage and NOTE to HSBC|HSBC
Bank etc v Miller et al The ldquoAssignment of Mortgagerdquo which
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 20
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
is attached as exhibit E to the opposition papers makes no
reference to the note and only makes reference to the mortgage
being assigned The Assignment has a vague reference to note
wherein it states that ldquothe said assignor hereby grants and
conveys unto the said assignee the assignorrsquos beneficial
interest under the mortgage ldquobut this is the only language in
the Assignment which could possibly be found to refer to the
note
Contrary to the affirmation of Ms Szeliga in which she
represented in paragraph 17 that there was language in the
assignment which specifically referred to the note the
assignment in this case does not contain dega specific reference to
the Note
In light of the foregoing the Court is satisfied that there is
insufficient proof to establish that both the note and the
mortgage have been assigned to the Plaintiff and therefore it
is hereby ORDERED that the Plaintiff has no standing to maintain
the foreclosure action and it is further ORDERED that the
application of Defendant Jeffrey F Miller to dismiss is
granted without prejudice to renew upon proof of a valid
assignment of the note
UNION BANK CO v NORTH CAROLINA FURNITURE EXPRESS LLC MERS
lsquoGETS FORECLOSEDrsquo| ASSIGNS NADA TO BAC fka COUNTRYWIDE OHIO COURT
OF APPEAL While an assignment typically transfers the lien of
the mortgage on the property described in the mortgage as BAC
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 21
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
acknowledged in its reply brief an assignee can only take and
the assignor can only give the interest currently held by the
assignor RC 530131 With that stated it is clear under the
facts of this case that BAC never obtained an interest in the
property thus it could not have been substituted as a party-
defendant in the 2008 foreclosure action Here with respect to
the 2008 foreclosure action the date the last party was served
with notice was on January 28 2009 which was almost six
months before the purported assignment from MERS to BAC Next on
March 11 2009 the trial court issued a judgment entry of
default against MERS foreclosing on its interest in the property
Once again this default judgment was entered against MERS almost
three months before the purported assignment from MERS to BAC
occurred The effect of this default judgment against MERS
resulted in MERS having ldquono interest in and to said premises and
the equity of redemption of said Defendants in the real estate
described in Plaintiffrsquos Complaint shall be forever cut off
barred and foreclosedrdquo (2008 CV 0267 Mar 10 2009 JE)
Nevertheless according to the documents filed by BAC to evidence
its assignment from MERS MERS assigned its interest to BAC on
June 1 2009 (2009 CV 312 Oct 7 2009 JE Ex A)
Consequently as a result of the already entered default judgment
against MERS when BAC was assigned MERSrsquo interest in the
property on June 1 2009 BAC did not receive a viable interest
in the property See Quill v Maddox (May 31 2002) 2nd Dist
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 22
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
No 19052 at 2 (mortgageersquos assignee failed to establish that
it had an interest in the property as mortgageersquos interest was
foreclosed by the court before mortgagee assigned its interest to
assignee which could acquire no more interest than mortgagee
held) Thus we find that it was reasonable for the trial court
to have denied the motion to substitute BAC as a party-defendant
for MERS given its lack of interest in the property
HSBC v Thompson HSBCrsquos Irregularities Mortgage Documentation
and Corporate Relationships with Ocwen MERS and Delta Even if
HSBC had provided support for the proposition that ownership of
the note is not required the evidence about the assignment is
not properly before us The alleged mortgage assignment is
attached to the rejected affidavits of Neil Furthermore even if
we were to consider this ldquoevidencerdquo the mortgage assignment from
MERS to HSBC indicates that the assignment was prepared by Ocwen
for MERS and that Ocwen is located at the same Palm Beach
Florida address mentioned in Charlevagne and Antrobus See
Exhibit 3 attached to the affidavit of Chomie Neil In addition
Scott Anderson who signed the assignment as Vice-President of
MERS appears to be the same individual who claimed to be both
Vice-President of MERS and Vice-President of
Ocwen See Antrobus 2008 WL 2928553 4 and Charlevagne 2008
WL 2954767 1
MERS v TORR NY JUDGE SPINNER DENIES Deutsche amp MERS for NOT
Recording Mortgage Make up Affidavit and Assignment MERS lsquoQUIET
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
TITLErsquo FAIL To establish a claim of lien by a lost mortgage
there must be certain evidence (es) demonstrating that the
mortgage was properly executed with all the formalities required
by law andproof of the contents (es) of such instrument hellip Here
Burnettrsquos affidavit simply states that the original mortgage is
not in Deutsch Bankrsquos files and that he is advised (es) that
the title company is out of business Burnett gives no specifics
as to what efforts were made to locate the lost mortgagehellip More
importantly there is no affidavit from MLN by an individual with
personal knowledge of the facts that the complete file concerning
this mortgage was transferred to Deutsch Bank and that the copy
of the mortgage submitted to the court is an authentic copy of
Torrrsquos Mortgagerdquo (es)
LPP MORTGAGE v SABINE PROPERTIES FINAL DISPOSITION| NO Evidence
lsquoMERSrsquo Owned The NOTE Could NOT ASSIGN IT NY SUPREME COURT
FINAL DISPOSITION
Here there are no allegations or evidence that MERS was the
owner of the note such that it could assign it to LPP Thus the
assignment from MERS was insufficient to confer ownership of the
note to LPP and it has no standing to bring this action Kluge v
F umz ~1 45 AD2d at 538 (holding that the assignment of a
mortgage without transfer of the debt is a nullity) Johnson v
Melnikoff 20 Misc3d 1142(A) ldquo2 (Sup Ct Kings Co 2008) n 2
afr 65 AD3d 519 (2d Dept 20 1 Oj(noting that assignments by MERS
which did not include the underlying debt were a legal nullity)
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
m e Elect ro pic Registration Svstem v Coakley 41 AD3d 674 (2d
Dept 2007)(holding that MERS had standing to bring foreclosure
proceeding based on evidence that MERS was the lawful holder of
the promissory note and the mortgage)
Thus even assuming arguendo that the language of the assignment
from MERS to LPP could be interpreted as purporting to assign not
only the mortgage but also the note such assignment is invalid
since based on the record MERS lacked an ownership interest in
the note $ee LaSalle Bank Nat Assrsquon v Lamv 12 Misc3d 1191(A)
ldquo3 (Sup Ct Suffolk Co 2006) (noting that ldquothe mortgage is merely
an incident of and collateral security for the debt and an
assignment of the mortgage does not pass ownership of the debt
itself rsquo)
WACHOVIA BANK NATIONAL ASSOCIATION against ndashSTUART BRENNER et
aI Defendantrsquo s answer contains a defense of ldquolack of
standingrdquo Plaintiff has failed to establish it was the holder of
the note and the mortgage securing it when the action was
commenced In that regard plaintiff relies on an undated
assignment of the mortgage by MERS as nominee acknowledged by a
Texas notary on July 18 2009 The note sued on does not contain
an indication it has been negotiated The undated assignment by
MERS contains a provision at the assignment of the mortgage is
ldquoTOGETHER with the notes described in said mortgagerdquo The record
before me is devoid of proof that MERS as nominee for purposes of
recording had authority to assign the mortgage However assuming
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
it had such authority since it is a party to the mortgage and
such authority might be implied there has been a complete
failure to establish MERS as a non-party to the note to
negotiate its transfer A transfer of the note effects a transfer
of the mortgage MERS vs Coakley 41 AD3 674) the assignment of
a mortgage without a valid transfer of the mortgage note is a
nullity(Kluge vs Fugazv 145 AD2 537)
Following are more cases from THE NEW YORK SUPREME COURThellip
JUDGE SCHACK BLOWS lsquoMERSrsquo and Bank Of New York (BNY) OUT THE
DOOR
WM SPECIALTY MORTGAGE v JORGE RAMIREZ NO PROOF MERS OWNED THE
MORTGAGE AND NOTE
MERS v MAHENDRA RAMDOOLAR MERS IN NOT THE OWNER OF SUBJECT
MORTGAGE AND NOTE
HOLY COW MERS v MERS NO EVIDENCE IT HAD THE MORTGAGE AND NOTE
MERS V THOMAS STANDFORD MERS DOES NOT OWN MORTGAGE AND NOTE
MERS V GAIL PALMORE-ARCHER MERS DOES NOT OWN MORTGAGE AND NOTE
In the Matter of the Foreclosure of Tax Liens MERS GETS CHEWED
UP
BANK OF NEW YORK V JOSEPH CERULLO MERS NOT OWNER AND HOLDER OF
NOTE MORTGAGE
HSBC V HENRY FELD MERS NOT HOLDER OWNER OF NOTE
THE BANK OF NY MELLON V RICHARD BUSTRUC MERS IS NOT OWNER HOLDER
OF MORTGAGE AND NOTE
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 26
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ONEWEST BANK GETS THE BOOT MERS ASSIGNMENT MAKES NO REFERENCE TO
NOTE
NY SUPREME COURT WELLS FARGO MERS amp STEVEN J BAUM ldquoFATAL
DEFECTrdquo
FDN attorneys Jeff Barnes Esq and Elizabeth Lemoine Esq have
achieved a significant victory in Federal Court in Oregon against
MERS On Tuesday September 28 2010 Mr Barnes and Ms Lemoine
defended and argued Motions to Dismiss the borrowersrsquo lawsuit
challenging a nonjudicial foreclosure The Motions were filed by
the Defendants OneWest Bank and MERS The action was originally
filed in state court where a temporary restraining order was
entered stopping the sale On the eve of the scheduled hearing on
the borrowersrsquo Motion for Preliminary Injunction Defendants
OneWest Bank MERS and Regional Trustee Services removed the
case to Federal Court in an obvious attempt to circumvent the
state court injunction hearing The Federal Court entered an
Injunction and scheduled a hearing on the Motions filed by the
Defendants
During the course of the hearing the Court repeatedly raised the
ldquoMERS as nomineerdquo issues to counsel for the Defendants with said
counsel finally admitting upon repeated inquiry by the Court
that MERS cannot transfer promissory notes The Court denied the
Motions to Dismiss and has by Order commanded the injunction
against the sale to remain in place through the duration of the
borrowersrsquo lawsuit
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
REQUEST FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY
INJUNCTION
Because of the nature of the findings of the listed FACTS I
through FACT VII and lack of truthful evidence leading to these
illegal foreclosure proceedings Plaintiff prays for the Court to
issue a temporary restraining order and a preliminary injunction
against Defendant for any and all claims the Defendants are
pursuing against Plaintiff and Plaintiffrsquos property via Exhibits
(A B C D E and F) thereby causing harm to the Plaintiff
REQUEST FOR PERMANENT INJUNCTION AND REMUNERATION
Because of all of the FACTS and Court case evidence listed in
this complaint Plaintiff demands the Defendants produce the
original NOTE in question to avoid forgery and fraud charges If
NOTE is not produced within 30 days from the delivery and receipt
of the summons upon the Defendant Plaintiff will press forgery
charges pursuant RCW 9A60020 Plaintiff thereby will demand
remuneration of fraudulently collected monies paid to illegally
represented lenders Bank of America FKA Countrywide and interest
at 675 with the total amount of $8775636 + case fees or
Eighty Seven Thousand Seven hundred and fifty six dollars and 36
cents plus case fees to the Defendant who deceived the Plaintiff
by fraudulently claiming to be the legitimate lender trustee
and beneficiary while falsely claiming to hold the NOTE assuming
all assets and liabilities of Countrywide
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
RCW 740020
Grounds for issuance
When it appears by the complaint that the plaintiff is entitled
to the relief demanded and the relief or any part thereof
consists in restraining the commission or continuance of some
act the commission or continuance of which during the litigation
would produce great injury to the plaintiff or when during the
litigation it appears that the defendant is doing
or threatened or is about to do or is procuring or is suffering some act to
be done in violation of the plaintiffs rights respecting the subject of the
action tending to render the judgment ineffectual or where such relief or
any part thereof consists in restraining proceedings upon any final order or
judgment an injunction may be granted to restrain such act or proceedings
until the further order of the court which may afterwards be dissolved or
modified upon motion And where it appears in the complaint at the
commencement of the action or during the pendency thereof by affidavit that
the defendant threatens or is about to remove or dispose of his property with
intent to defraud his creditors a temporary injunction may be granted to
restrain the removal or disposition of his property
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 29
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
BySamuel Salmon 917C Philpott Rd Colville WA 99114
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 20
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
is attached as exhibit E to the opposition papers makes no
reference to the note and only makes reference to the mortgage
being assigned The Assignment has a vague reference to note
wherein it states that ldquothe said assignor hereby grants and
conveys unto the said assignee the assignorrsquos beneficial
interest under the mortgage ldquobut this is the only language in
the Assignment which could possibly be found to refer to the
note
Contrary to the affirmation of Ms Szeliga in which she
represented in paragraph 17 that there was language in the
assignment which specifically referred to the note the
assignment in this case does not contain dega specific reference to
the Note
In light of the foregoing the Court is satisfied that there is
insufficient proof to establish that both the note and the
mortgage have been assigned to the Plaintiff and therefore it
is hereby ORDERED that the Plaintiff has no standing to maintain
the foreclosure action and it is further ORDERED that the
application of Defendant Jeffrey F Miller to dismiss is
granted without prejudice to renew upon proof of a valid
assignment of the note
UNION BANK CO v NORTH CAROLINA FURNITURE EXPRESS LLC MERS
lsquoGETS FORECLOSEDrsquo| ASSIGNS NADA TO BAC fka COUNTRYWIDE OHIO COURT
OF APPEAL While an assignment typically transfers the lien of
the mortgage on the property described in the mortgage as BAC
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 21
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
acknowledged in its reply brief an assignee can only take and
the assignor can only give the interest currently held by the
assignor RC 530131 With that stated it is clear under the
facts of this case that BAC never obtained an interest in the
property thus it could not have been substituted as a party-
defendant in the 2008 foreclosure action Here with respect to
the 2008 foreclosure action the date the last party was served
with notice was on January 28 2009 which was almost six
months before the purported assignment from MERS to BAC Next on
March 11 2009 the trial court issued a judgment entry of
default against MERS foreclosing on its interest in the property
Once again this default judgment was entered against MERS almost
three months before the purported assignment from MERS to BAC
occurred The effect of this default judgment against MERS
resulted in MERS having ldquono interest in and to said premises and
the equity of redemption of said Defendants in the real estate
described in Plaintiffrsquos Complaint shall be forever cut off
barred and foreclosedrdquo (2008 CV 0267 Mar 10 2009 JE)
Nevertheless according to the documents filed by BAC to evidence
its assignment from MERS MERS assigned its interest to BAC on
June 1 2009 (2009 CV 312 Oct 7 2009 JE Ex A)
Consequently as a result of the already entered default judgment
against MERS when BAC was assigned MERSrsquo interest in the
property on June 1 2009 BAC did not receive a viable interest
in the property See Quill v Maddox (May 31 2002) 2nd Dist
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 22
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
No 19052 at 2 (mortgageersquos assignee failed to establish that
it had an interest in the property as mortgageersquos interest was
foreclosed by the court before mortgagee assigned its interest to
assignee which could acquire no more interest than mortgagee
held) Thus we find that it was reasonable for the trial court
to have denied the motion to substitute BAC as a party-defendant
for MERS given its lack of interest in the property
HSBC v Thompson HSBCrsquos Irregularities Mortgage Documentation
and Corporate Relationships with Ocwen MERS and Delta Even if
HSBC had provided support for the proposition that ownership of
the note is not required the evidence about the assignment is
not properly before us The alleged mortgage assignment is
attached to the rejected affidavits of Neil Furthermore even if
we were to consider this ldquoevidencerdquo the mortgage assignment from
MERS to HSBC indicates that the assignment was prepared by Ocwen
for MERS and that Ocwen is located at the same Palm Beach
Florida address mentioned in Charlevagne and Antrobus See
Exhibit 3 attached to the affidavit of Chomie Neil In addition
Scott Anderson who signed the assignment as Vice-President of
MERS appears to be the same individual who claimed to be both
Vice-President of MERS and Vice-President of
Ocwen See Antrobus 2008 WL 2928553 4 and Charlevagne 2008
WL 2954767 1
MERS v TORR NY JUDGE SPINNER DENIES Deutsche amp MERS for NOT
Recording Mortgage Make up Affidavit and Assignment MERS lsquoQUIET
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
TITLErsquo FAIL To establish a claim of lien by a lost mortgage
there must be certain evidence (es) demonstrating that the
mortgage was properly executed with all the formalities required
by law andproof of the contents (es) of such instrument hellip Here
Burnettrsquos affidavit simply states that the original mortgage is
not in Deutsch Bankrsquos files and that he is advised (es) that
the title company is out of business Burnett gives no specifics
as to what efforts were made to locate the lost mortgagehellip More
importantly there is no affidavit from MLN by an individual with
personal knowledge of the facts that the complete file concerning
this mortgage was transferred to Deutsch Bank and that the copy
of the mortgage submitted to the court is an authentic copy of
Torrrsquos Mortgagerdquo (es)
LPP MORTGAGE v SABINE PROPERTIES FINAL DISPOSITION| NO Evidence
lsquoMERSrsquo Owned The NOTE Could NOT ASSIGN IT NY SUPREME COURT
FINAL DISPOSITION
Here there are no allegations or evidence that MERS was the
owner of the note such that it could assign it to LPP Thus the
assignment from MERS was insufficient to confer ownership of the
note to LPP and it has no standing to bring this action Kluge v
F umz ~1 45 AD2d at 538 (holding that the assignment of a
mortgage without transfer of the debt is a nullity) Johnson v
Melnikoff 20 Misc3d 1142(A) ldquo2 (Sup Ct Kings Co 2008) n 2
afr 65 AD3d 519 (2d Dept 20 1 Oj(noting that assignments by MERS
which did not include the underlying debt were a legal nullity)
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
m e Elect ro pic Registration Svstem v Coakley 41 AD3d 674 (2d
Dept 2007)(holding that MERS had standing to bring foreclosure
proceeding based on evidence that MERS was the lawful holder of
the promissory note and the mortgage)
Thus even assuming arguendo that the language of the assignment
from MERS to LPP could be interpreted as purporting to assign not
only the mortgage but also the note such assignment is invalid
since based on the record MERS lacked an ownership interest in
the note $ee LaSalle Bank Nat Assrsquon v Lamv 12 Misc3d 1191(A)
ldquo3 (Sup Ct Suffolk Co 2006) (noting that ldquothe mortgage is merely
an incident of and collateral security for the debt and an
assignment of the mortgage does not pass ownership of the debt
itself rsquo)
WACHOVIA BANK NATIONAL ASSOCIATION against ndashSTUART BRENNER et
aI Defendantrsquo s answer contains a defense of ldquolack of
standingrdquo Plaintiff has failed to establish it was the holder of
the note and the mortgage securing it when the action was
commenced In that regard plaintiff relies on an undated
assignment of the mortgage by MERS as nominee acknowledged by a
Texas notary on July 18 2009 The note sued on does not contain
an indication it has been negotiated The undated assignment by
MERS contains a provision at the assignment of the mortgage is
ldquoTOGETHER with the notes described in said mortgagerdquo The record
before me is devoid of proof that MERS as nominee for purposes of
recording had authority to assign the mortgage However assuming
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
it had such authority since it is a party to the mortgage and
such authority might be implied there has been a complete
failure to establish MERS as a non-party to the note to
negotiate its transfer A transfer of the note effects a transfer
of the mortgage MERS vs Coakley 41 AD3 674) the assignment of
a mortgage without a valid transfer of the mortgage note is a
nullity(Kluge vs Fugazv 145 AD2 537)
Following are more cases from THE NEW YORK SUPREME COURThellip
JUDGE SCHACK BLOWS lsquoMERSrsquo and Bank Of New York (BNY) OUT THE
DOOR
WM SPECIALTY MORTGAGE v JORGE RAMIREZ NO PROOF MERS OWNED THE
MORTGAGE AND NOTE
MERS v MAHENDRA RAMDOOLAR MERS IN NOT THE OWNER OF SUBJECT
MORTGAGE AND NOTE
HOLY COW MERS v MERS NO EVIDENCE IT HAD THE MORTGAGE AND NOTE
MERS V THOMAS STANDFORD MERS DOES NOT OWN MORTGAGE AND NOTE
MERS V GAIL PALMORE-ARCHER MERS DOES NOT OWN MORTGAGE AND NOTE
In the Matter of the Foreclosure of Tax Liens MERS GETS CHEWED
UP
BANK OF NEW YORK V JOSEPH CERULLO MERS NOT OWNER AND HOLDER OF
NOTE MORTGAGE
HSBC V HENRY FELD MERS NOT HOLDER OWNER OF NOTE
THE BANK OF NY MELLON V RICHARD BUSTRUC MERS IS NOT OWNER HOLDER
OF MORTGAGE AND NOTE
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 26
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ONEWEST BANK GETS THE BOOT MERS ASSIGNMENT MAKES NO REFERENCE TO
NOTE
NY SUPREME COURT WELLS FARGO MERS amp STEVEN J BAUM ldquoFATAL
DEFECTrdquo
FDN attorneys Jeff Barnes Esq and Elizabeth Lemoine Esq have
achieved a significant victory in Federal Court in Oregon against
MERS On Tuesday September 28 2010 Mr Barnes and Ms Lemoine
defended and argued Motions to Dismiss the borrowersrsquo lawsuit
challenging a nonjudicial foreclosure The Motions were filed by
the Defendants OneWest Bank and MERS The action was originally
filed in state court where a temporary restraining order was
entered stopping the sale On the eve of the scheduled hearing on
the borrowersrsquo Motion for Preliminary Injunction Defendants
OneWest Bank MERS and Regional Trustee Services removed the
case to Federal Court in an obvious attempt to circumvent the
state court injunction hearing The Federal Court entered an
Injunction and scheduled a hearing on the Motions filed by the
Defendants
During the course of the hearing the Court repeatedly raised the
ldquoMERS as nomineerdquo issues to counsel for the Defendants with said
counsel finally admitting upon repeated inquiry by the Court
that MERS cannot transfer promissory notes The Court denied the
Motions to Dismiss and has by Order commanded the injunction
against the sale to remain in place through the duration of the
borrowersrsquo lawsuit
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
REQUEST FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY
INJUNCTION
Because of the nature of the findings of the listed FACTS I
through FACT VII and lack of truthful evidence leading to these
illegal foreclosure proceedings Plaintiff prays for the Court to
issue a temporary restraining order and a preliminary injunction
against Defendant for any and all claims the Defendants are
pursuing against Plaintiff and Plaintiffrsquos property via Exhibits
(A B C D E and F) thereby causing harm to the Plaintiff
REQUEST FOR PERMANENT INJUNCTION AND REMUNERATION
Because of all of the FACTS and Court case evidence listed in
this complaint Plaintiff demands the Defendants produce the
original NOTE in question to avoid forgery and fraud charges If
NOTE is not produced within 30 days from the delivery and receipt
of the summons upon the Defendant Plaintiff will press forgery
charges pursuant RCW 9A60020 Plaintiff thereby will demand
remuneration of fraudulently collected monies paid to illegally
represented lenders Bank of America FKA Countrywide and interest
at 675 with the total amount of $8775636 + case fees or
Eighty Seven Thousand Seven hundred and fifty six dollars and 36
cents plus case fees to the Defendant who deceived the Plaintiff
by fraudulently claiming to be the legitimate lender trustee
and beneficiary while falsely claiming to hold the NOTE assuming
all assets and liabilities of Countrywide
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
RCW 740020
Grounds for issuance
When it appears by the complaint that the plaintiff is entitled
to the relief demanded and the relief or any part thereof
consists in restraining the commission or continuance of some
act the commission or continuance of which during the litigation
would produce great injury to the plaintiff or when during the
litigation it appears that the defendant is doing
or threatened or is about to do or is procuring or is suffering some act to
be done in violation of the plaintiffs rights respecting the subject of the
action tending to render the judgment ineffectual or where such relief or
any part thereof consists in restraining proceedings upon any final order or
judgment an injunction may be granted to restrain such act or proceedings
until the further order of the court which may afterwards be dissolved or
modified upon motion And where it appears in the complaint at the
commencement of the action or during the pendency thereof by affidavit that
the defendant threatens or is about to remove or dispose of his property with
intent to defraud his creditors a temporary injunction may be granted to
restrain the removal or disposition of his property
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 29
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
BySamuel Salmon 917C Philpott Rd Colville WA 99114
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 21
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
acknowledged in its reply brief an assignee can only take and
the assignor can only give the interest currently held by the
assignor RC 530131 With that stated it is clear under the
facts of this case that BAC never obtained an interest in the
property thus it could not have been substituted as a party-
defendant in the 2008 foreclosure action Here with respect to
the 2008 foreclosure action the date the last party was served
with notice was on January 28 2009 which was almost six
months before the purported assignment from MERS to BAC Next on
March 11 2009 the trial court issued a judgment entry of
default against MERS foreclosing on its interest in the property
Once again this default judgment was entered against MERS almost
three months before the purported assignment from MERS to BAC
occurred The effect of this default judgment against MERS
resulted in MERS having ldquono interest in and to said premises and
the equity of redemption of said Defendants in the real estate
described in Plaintiffrsquos Complaint shall be forever cut off
barred and foreclosedrdquo (2008 CV 0267 Mar 10 2009 JE)
Nevertheless according to the documents filed by BAC to evidence
its assignment from MERS MERS assigned its interest to BAC on
June 1 2009 (2009 CV 312 Oct 7 2009 JE Ex A)
Consequently as a result of the already entered default judgment
against MERS when BAC was assigned MERSrsquo interest in the
property on June 1 2009 BAC did not receive a viable interest
in the property See Quill v Maddox (May 31 2002) 2nd Dist
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 22
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
No 19052 at 2 (mortgageersquos assignee failed to establish that
it had an interest in the property as mortgageersquos interest was
foreclosed by the court before mortgagee assigned its interest to
assignee which could acquire no more interest than mortgagee
held) Thus we find that it was reasonable for the trial court
to have denied the motion to substitute BAC as a party-defendant
for MERS given its lack of interest in the property
HSBC v Thompson HSBCrsquos Irregularities Mortgage Documentation
and Corporate Relationships with Ocwen MERS and Delta Even if
HSBC had provided support for the proposition that ownership of
the note is not required the evidence about the assignment is
not properly before us The alleged mortgage assignment is
attached to the rejected affidavits of Neil Furthermore even if
we were to consider this ldquoevidencerdquo the mortgage assignment from
MERS to HSBC indicates that the assignment was prepared by Ocwen
for MERS and that Ocwen is located at the same Palm Beach
Florida address mentioned in Charlevagne and Antrobus See
Exhibit 3 attached to the affidavit of Chomie Neil In addition
Scott Anderson who signed the assignment as Vice-President of
MERS appears to be the same individual who claimed to be both
Vice-President of MERS and Vice-President of
Ocwen See Antrobus 2008 WL 2928553 4 and Charlevagne 2008
WL 2954767 1
MERS v TORR NY JUDGE SPINNER DENIES Deutsche amp MERS for NOT
Recording Mortgage Make up Affidavit and Assignment MERS lsquoQUIET
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
TITLErsquo FAIL To establish a claim of lien by a lost mortgage
there must be certain evidence (es) demonstrating that the
mortgage was properly executed with all the formalities required
by law andproof of the contents (es) of such instrument hellip Here
Burnettrsquos affidavit simply states that the original mortgage is
not in Deutsch Bankrsquos files and that he is advised (es) that
the title company is out of business Burnett gives no specifics
as to what efforts were made to locate the lost mortgagehellip More
importantly there is no affidavit from MLN by an individual with
personal knowledge of the facts that the complete file concerning
this mortgage was transferred to Deutsch Bank and that the copy
of the mortgage submitted to the court is an authentic copy of
Torrrsquos Mortgagerdquo (es)
LPP MORTGAGE v SABINE PROPERTIES FINAL DISPOSITION| NO Evidence
lsquoMERSrsquo Owned The NOTE Could NOT ASSIGN IT NY SUPREME COURT
FINAL DISPOSITION
Here there are no allegations or evidence that MERS was the
owner of the note such that it could assign it to LPP Thus the
assignment from MERS was insufficient to confer ownership of the
note to LPP and it has no standing to bring this action Kluge v
F umz ~1 45 AD2d at 538 (holding that the assignment of a
mortgage without transfer of the debt is a nullity) Johnson v
Melnikoff 20 Misc3d 1142(A) ldquo2 (Sup Ct Kings Co 2008) n 2
afr 65 AD3d 519 (2d Dept 20 1 Oj(noting that assignments by MERS
which did not include the underlying debt were a legal nullity)
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
m e Elect ro pic Registration Svstem v Coakley 41 AD3d 674 (2d
Dept 2007)(holding that MERS had standing to bring foreclosure
proceeding based on evidence that MERS was the lawful holder of
the promissory note and the mortgage)
Thus even assuming arguendo that the language of the assignment
from MERS to LPP could be interpreted as purporting to assign not
only the mortgage but also the note such assignment is invalid
since based on the record MERS lacked an ownership interest in
the note $ee LaSalle Bank Nat Assrsquon v Lamv 12 Misc3d 1191(A)
ldquo3 (Sup Ct Suffolk Co 2006) (noting that ldquothe mortgage is merely
an incident of and collateral security for the debt and an
assignment of the mortgage does not pass ownership of the debt
itself rsquo)
WACHOVIA BANK NATIONAL ASSOCIATION against ndashSTUART BRENNER et
aI Defendantrsquo s answer contains a defense of ldquolack of
standingrdquo Plaintiff has failed to establish it was the holder of
the note and the mortgage securing it when the action was
commenced In that regard plaintiff relies on an undated
assignment of the mortgage by MERS as nominee acknowledged by a
Texas notary on July 18 2009 The note sued on does not contain
an indication it has been negotiated The undated assignment by
MERS contains a provision at the assignment of the mortgage is
ldquoTOGETHER with the notes described in said mortgagerdquo The record
before me is devoid of proof that MERS as nominee for purposes of
recording had authority to assign the mortgage However assuming
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
it had such authority since it is a party to the mortgage and
such authority might be implied there has been a complete
failure to establish MERS as a non-party to the note to
negotiate its transfer A transfer of the note effects a transfer
of the mortgage MERS vs Coakley 41 AD3 674) the assignment of
a mortgage without a valid transfer of the mortgage note is a
nullity(Kluge vs Fugazv 145 AD2 537)
Following are more cases from THE NEW YORK SUPREME COURThellip
JUDGE SCHACK BLOWS lsquoMERSrsquo and Bank Of New York (BNY) OUT THE
DOOR
WM SPECIALTY MORTGAGE v JORGE RAMIREZ NO PROOF MERS OWNED THE
MORTGAGE AND NOTE
MERS v MAHENDRA RAMDOOLAR MERS IN NOT THE OWNER OF SUBJECT
MORTGAGE AND NOTE
HOLY COW MERS v MERS NO EVIDENCE IT HAD THE MORTGAGE AND NOTE
MERS V THOMAS STANDFORD MERS DOES NOT OWN MORTGAGE AND NOTE
MERS V GAIL PALMORE-ARCHER MERS DOES NOT OWN MORTGAGE AND NOTE
In the Matter of the Foreclosure of Tax Liens MERS GETS CHEWED
UP
BANK OF NEW YORK V JOSEPH CERULLO MERS NOT OWNER AND HOLDER OF
NOTE MORTGAGE
HSBC V HENRY FELD MERS NOT HOLDER OWNER OF NOTE
THE BANK OF NY MELLON V RICHARD BUSTRUC MERS IS NOT OWNER HOLDER
OF MORTGAGE AND NOTE
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 26
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ONEWEST BANK GETS THE BOOT MERS ASSIGNMENT MAKES NO REFERENCE TO
NOTE
NY SUPREME COURT WELLS FARGO MERS amp STEVEN J BAUM ldquoFATAL
DEFECTrdquo
FDN attorneys Jeff Barnes Esq and Elizabeth Lemoine Esq have
achieved a significant victory in Federal Court in Oregon against
MERS On Tuesday September 28 2010 Mr Barnes and Ms Lemoine
defended and argued Motions to Dismiss the borrowersrsquo lawsuit
challenging a nonjudicial foreclosure The Motions were filed by
the Defendants OneWest Bank and MERS The action was originally
filed in state court where a temporary restraining order was
entered stopping the sale On the eve of the scheduled hearing on
the borrowersrsquo Motion for Preliminary Injunction Defendants
OneWest Bank MERS and Regional Trustee Services removed the
case to Federal Court in an obvious attempt to circumvent the
state court injunction hearing The Federal Court entered an
Injunction and scheduled a hearing on the Motions filed by the
Defendants
During the course of the hearing the Court repeatedly raised the
ldquoMERS as nomineerdquo issues to counsel for the Defendants with said
counsel finally admitting upon repeated inquiry by the Court
that MERS cannot transfer promissory notes The Court denied the
Motions to Dismiss and has by Order commanded the injunction
against the sale to remain in place through the duration of the
borrowersrsquo lawsuit
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
REQUEST FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY
INJUNCTION
Because of the nature of the findings of the listed FACTS I
through FACT VII and lack of truthful evidence leading to these
illegal foreclosure proceedings Plaintiff prays for the Court to
issue a temporary restraining order and a preliminary injunction
against Defendant for any and all claims the Defendants are
pursuing against Plaintiff and Plaintiffrsquos property via Exhibits
(A B C D E and F) thereby causing harm to the Plaintiff
REQUEST FOR PERMANENT INJUNCTION AND REMUNERATION
Because of all of the FACTS and Court case evidence listed in
this complaint Plaintiff demands the Defendants produce the
original NOTE in question to avoid forgery and fraud charges If
NOTE is not produced within 30 days from the delivery and receipt
of the summons upon the Defendant Plaintiff will press forgery
charges pursuant RCW 9A60020 Plaintiff thereby will demand
remuneration of fraudulently collected monies paid to illegally
represented lenders Bank of America FKA Countrywide and interest
at 675 with the total amount of $8775636 + case fees or
Eighty Seven Thousand Seven hundred and fifty six dollars and 36
cents plus case fees to the Defendant who deceived the Plaintiff
by fraudulently claiming to be the legitimate lender trustee
and beneficiary while falsely claiming to hold the NOTE assuming
all assets and liabilities of Countrywide
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
RCW 740020
Grounds for issuance
When it appears by the complaint that the plaintiff is entitled
to the relief demanded and the relief or any part thereof
consists in restraining the commission or continuance of some
act the commission or continuance of which during the litigation
would produce great injury to the plaintiff or when during the
litigation it appears that the defendant is doing
or threatened or is about to do or is procuring or is suffering some act to
be done in violation of the plaintiffs rights respecting the subject of the
action tending to render the judgment ineffectual or where such relief or
any part thereof consists in restraining proceedings upon any final order or
judgment an injunction may be granted to restrain such act or proceedings
until the further order of the court which may afterwards be dissolved or
modified upon motion And where it appears in the complaint at the
commencement of the action or during the pendency thereof by affidavit that
the defendant threatens or is about to remove or dispose of his property with
intent to defraud his creditors a temporary injunction may be granted to
restrain the removal or disposition of his property
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 29
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
BySamuel Salmon 917C Philpott Rd Colville WA 99114
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 22
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
No 19052 at 2 (mortgageersquos assignee failed to establish that
it had an interest in the property as mortgageersquos interest was
foreclosed by the court before mortgagee assigned its interest to
assignee which could acquire no more interest than mortgagee
held) Thus we find that it was reasonable for the trial court
to have denied the motion to substitute BAC as a party-defendant
for MERS given its lack of interest in the property
HSBC v Thompson HSBCrsquos Irregularities Mortgage Documentation
and Corporate Relationships with Ocwen MERS and Delta Even if
HSBC had provided support for the proposition that ownership of
the note is not required the evidence about the assignment is
not properly before us The alleged mortgage assignment is
attached to the rejected affidavits of Neil Furthermore even if
we were to consider this ldquoevidencerdquo the mortgage assignment from
MERS to HSBC indicates that the assignment was prepared by Ocwen
for MERS and that Ocwen is located at the same Palm Beach
Florida address mentioned in Charlevagne and Antrobus See
Exhibit 3 attached to the affidavit of Chomie Neil In addition
Scott Anderson who signed the assignment as Vice-President of
MERS appears to be the same individual who claimed to be both
Vice-President of MERS and Vice-President of
Ocwen See Antrobus 2008 WL 2928553 4 and Charlevagne 2008
WL 2954767 1
MERS v TORR NY JUDGE SPINNER DENIES Deutsche amp MERS for NOT
Recording Mortgage Make up Affidavit and Assignment MERS lsquoQUIET
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
TITLErsquo FAIL To establish a claim of lien by a lost mortgage
there must be certain evidence (es) demonstrating that the
mortgage was properly executed with all the formalities required
by law andproof of the contents (es) of such instrument hellip Here
Burnettrsquos affidavit simply states that the original mortgage is
not in Deutsch Bankrsquos files and that he is advised (es) that
the title company is out of business Burnett gives no specifics
as to what efforts were made to locate the lost mortgagehellip More
importantly there is no affidavit from MLN by an individual with
personal knowledge of the facts that the complete file concerning
this mortgage was transferred to Deutsch Bank and that the copy
of the mortgage submitted to the court is an authentic copy of
Torrrsquos Mortgagerdquo (es)
LPP MORTGAGE v SABINE PROPERTIES FINAL DISPOSITION| NO Evidence
lsquoMERSrsquo Owned The NOTE Could NOT ASSIGN IT NY SUPREME COURT
FINAL DISPOSITION
Here there are no allegations or evidence that MERS was the
owner of the note such that it could assign it to LPP Thus the
assignment from MERS was insufficient to confer ownership of the
note to LPP and it has no standing to bring this action Kluge v
F umz ~1 45 AD2d at 538 (holding that the assignment of a
mortgage without transfer of the debt is a nullity) Johnson v
Melnikoff 20 Misc3d 1142(A) ldquo2 (Sup Ct Kings Co 2008) n 2
afr 65 AD3d 519 (2d Dept 20 1 Oj(noting that assignments by MERS
which did not include the underlying debt were a legal nullity)
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
m e Elect ro pic Registration Svstem v Coakley 41 AD3d 674 (2d
Dept 2007)(holding that MERS had standing to bring foreclosure
proceeding based on evidence that MERS was the lawful holder of
the promissory note and the mortgage)
Thus even assuming arguendo that the language of the assignment
from MERS to LPP could be interpreted as purporting to assign not
only the mortgage but also the note such assignment is invalid
since based on the record MERS lacked an ownership interest in
the note $ee LaSalle Bank Nat Assrsquon v Lamv 12 Misc3d 1191(A)
ldquo3 (Sup Ct Suffolk Co 2006) (noting that ldquothe mortgage is merely
an incident of and collateral security for the debt and an
assignment of the mortgage does not pass ownership of the debt
itself rsquo)
WACHOVIA BANK NATIONAL ASSOCIATION against ndashSTUART BRENNER et
aI Defendantrsquo s answer contains a defense of ldquolack of
standingrdquo Plaintiff has failed to establish it was the holder of
the note and the mortgage securing it when the action was
commenced In that regard plaintiff relies on an undated
assignment of the mortgage by MERS as nominee acknowledged by a
Texas notary on July 18 2009 The note sued on does not contain
an indication it has been negotiated The undated assignment by
MERS contains a provision at the assignment of the mortgage is
ldquoTOGETHER with the notes described in said mortgagerdquo The record
before me is devoid of proof that MERS as nominee for purposes of
recording had authority to assign the mortgage However assuming
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
it had such authority since it is a party to the mortgage and
such authority might be implied there has been a complete
failure to establish MERS as a non-party to the note to
negotiate its transfer A transfer of the note effects a transfer
of the mortgage MERS vs Coakley 41 AD3 674) the assignment of
a mortgage without a valid transfer of the mortgage note is a
nullity(Kluge vs Fugazv 145 AD2 537)
Following are more cases from THE NEW YORK SUPREME COURThellip
JUDGE SCHACK BLOWS lsquoMERSrsquo and Bank Of New York (BNY) OUT THE
DOOR
WM SPECIALTY MORTGAGE v JORGE RAMIREZ NO PROOF MERS OWNED THE
MORTGAGE AND NOTE
MERS v MAHENDRA RAMDOOLAR MERS IN NOT THE OWNER OF SUBJECT
MORTGAGE AND NOTE
HOLY COW MERS v MERS NO EVIDENCE IT HAD THE MORTGAGE AND NOTE
MERS V THOMAS STANDFORD MERS DOES NOT OWN MORTGAGE AND NOTE
MERS V GAIL PALMORE-ARCHER MERS DOES NOT OWN MORTGAGE AND NOTE
In the Matter of the Foreclosure of Tax Liens MERS GETS CHEWED
UP
BANK OF NEW YORK V JOSEPH CERULLO MERS NOT OWNER AND HOLDER OF
NOTE MORTGAGE
HSBC V HENRY FELD MERS NOT HOLDER OWNER OF NOTE
THE BANK OF NY MELLON V RICHARD BUSTRUC MERS IS NOT OWNER HOLDER
OF MORTGAGE AND NOTE
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 26
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ONEWEST BANK GETS THE BOOT MERS ASSIGNMENT MAKES NO REFERENCE TO
NOTE
NY SUPREME COURT WELLS FARGO MERS amp STEVEN J BAUM ldquoFATAL
DEFECTrdquo
FDN attorneys Jeff Barnes Esq and Elizabeth Lemoine Esq have
achieved a significant victory in Federal Court in Oregon against
MERS On Tuesday September 28 2010 Mr Barnes and Ms Lemoine
defended and argued Motions to Dismiss the borrowersrsquo lawsuit
challenging a nonjudicial foreclosure The Motions were filed by
the Defendants OneWest Bank and MERS The action was originally
filed in state court where a temporary restraining order was
entered stopping the sale On the eve of the scheduled hearing on
the borrowersrsquo Motion for Preliminary Injunction Defendants
OneWest Bank MERS and Regional Trustee Services removed the
case to Federal Court in an obvious attempt to circumvent the
state court injunction hearing The Federal Court entered an
Injunction and scheduled a hearing on the Motions filed by the
Defendants
During the course of the hearing the Court repeatedly raised the
ldquoMERS as nomineerdquo issues to counsel for the Defendants with said
counsel finally admitting upon repeated inquiry by the Court
that MERS cannot transfer promissory notes The Court denied the
Motions to Dismiss and has by Order commanded the injunction
against the sale to remain in place through the duration of the
borrowersrsquo lawsuit
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
REQUEST FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY
INJUNCTION
Because of the nature of the findings of the listed FACTS I
through FACT VII and lack of truthful evidence leading to these
illegal foreclosure proceedings Plaintiff prays for the Court to
issue a temporary restraining order and a preliminary injunction
against Defendant for any and all claims the Defendants are
pursuing against Plaintiff and Plaintiffrsquos property via Exhibits
(A B C D E and F) thereby causing harm to the Plaintiff
REQUEST FOR PERMANENT INJUNCTION AND REMUNERATION
Because of all of the FACTS and Court case evidence listed in
this complaint Plaintiff demands the Defendants produce the
original NOTE in question to avoid forgery and fraud charges If
NOTE is not produced within 30 days from the delivery and receipt
of the summons upon the Defendant Plaintiff will press forgery
charges pursuant RCW 9A60020 Plaintiff thereby will demand
remuneration of fraudulently collected monies paid to illegally
represented lenders Bank of America FKA Countrywide and interest
at 675 with the total amount of $8775636 + case fees or
Eighty Seven Thousand Seven hundred and fifty six dollars and 36
cents plus case fees to the Defendant who deceived the Plaintiff
by fraudulently claiming to be the legitimate lender trustee
and beneficiary while falsely claiming to hold the NOTE assuming
all assets and liabilities of Countrywide
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
RCW 740020
Grounds for issuance
When it appears by the complaint that the plaintiff is entitled
to the relief demanded and the relief or any part thereof
consists in restraining the commission or continuance of some
act the commission or continuance of which during the litigation
would produce great injury to the plaintiff or when during the
litigation it appears that the defendant is doing
or threatened or is about to do or is procuring or is suffering some act to
be done in violation of the plaintiffs rights respecting the subject of the
action tending to render the judgment ineffectual or where such relief or
any part thereof consists in restraining proceedings upon any final order or
judgment an injunction may be granted to restrain such act or proceedings
until the further order of the court which may afterwards be dissolved or
modified upon motion And where it appears in the complaint at the
commencement of the action or during the pendency thereof by affidavit that
the defendant threatens or is about to remove or dispose of his property with
intent to defraud his creditors a temporary injunction may be granted to
restrain the removal or disposition of his property
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 29
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
BySamuel Salmon 917C Philpott Rd Colville WA 99114
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
TITLErsquo FAIL To establish a claim of lien by a lost mortgage
there must be certain evidence (es) demonstrating that the
mortgage was properly executed with all the formalities required
by law andproof of the contents (es) of such instrument hellip Here
Burnettrsquos affidavit simply states that the original mortgage is
not in Deutsch Bankrsquos files and that he is advised (es) that
the title company is out of business Burnett gives no specifics
as to what efforts were made to locate the lost mortgagehellip More
importantly there is no affidavit from MLN by an individual with
personal knowledge of the facts that the complete file concerning
this mortgage was transferred to Deutsch Bank and that the copy
of the mortgage submitted to the court is an authentic copy of
Torrrsquos Mortgagerdquo (es)
LPP MORTGAGE v SABINE PROPERTIES FINAL DISPOSITION| NO Evidence
lsquoMERSrsquo Owned The NOTE Could NOT ASSIGN IT NY SUPREME COURT
FINAL DISPOSITION
Here there are no allegations or evidence that MERS was the
owner of the note such that it could assign it to LPP Thus the
assignment from MERS was insufficient to confer ownership of the
note to LPP and it has no standing to bring this action Kluge v
F umz ~1 45 AD2d at 538 (holding that the assignment of a
mortgage without transfer of the debt is a nullity) Johnson v
Melnikoff 20 Misc3d 1142(A) ldquo2 (Sup Ct Kings Co 2008) n 2
afr 65 AD3d 519 (2d Dept 20 1 Oj(noting that assignments by MERS
which did not include the underlying debt were a legal nullity)
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
m e Elect ro pic Registration Svstem v Coakley 41 AD3d 674 (2d
Dept 2007)(holding that MERS had standing to bring foreclosure
proceeding based on evidence that MERS was the lawful holder of
the promissory note and the mortgage)
Thus even assuming arguendo that the language of the assignment
from MERS to LPP could be interpreted as purporting to assign not
only the mortgage but also the note such assignment is invalid
since based on the record MERS lacked an ownership interest in
the note $ee LaSalle Bank Nat Assrsquon v Lamv 12 Misc3d 1191(A)
ldquo3 (Sup Ct Suffolk Co 2006) (noting that ldquothe mortgage is merely
an incident of and collateral security for the debt and an
assignment of the mortgage does not pass ownership of the debt
itself rsquo)
WACHOVIA BANK NATIONAL ASSOCIATION against ndashSTUART BRENNER et
aI Defendantrsquo s answer contains a defense of ldquolack of
standingrdquo Plaintiff has failed to establish it was the holder of
the note and the mortgage securing it when the action was
commenced In that regard plaintiff relies on an undated
assignment of the mortgage by MERS as nominee acknowledged by a
Texas notary on July 18 2009 The note sued on does not contain
an indication it has been negotiated The undated assignment by
MERS contains a provision at the assignment of the mortgage is
ldquoTOGETHER with the notes described in said mortgagerdquo The record
before me is devoid of proof that MERS as nominee for purposes of
recording had authority to assign the mortgage However assuming
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
it had such authority since it is a party to the mortgage and
such authority might be implied there has been a complete
failure to establish MERS as a non-party to the note to
negotiate its transfer A transfer of the note effects a transfer
of the mortgage MERS vs Coakley 41 AD3 674) the assignment of
a mortgage without a valid transfer of the mortgage note is a
nullity(Kluge vs Fugazv 145 AD2 537)
Following are more cases from THE NEW YORK SUPREME COURThellip
JUDGE SCHACK BLOWS lsquoMERSrsquo and Bank Of New York (BNY) OUT THE
DOOR
WM SPECIALTY MORTGAGE v JORGE RAMIREZ NO PROOF MERS OWNED THE
MORTGAGE AND NOTE
MERS v MAHENDRA RAMDOOLAR MERS IN NOT THE OWNER OF SUBJECT
MORTGAGE AND NOTE
HOLY COW MERS v MERS NO EVIDENCE IT HAD THE MORTGAGE AND NOTE
MERS V THOMAS STANDFORD MERS DOES NOT OWN MORTGAGE AND NOTE
MERS V GAIL PALMORE-ARCHER MERS DOES NOT OWN MORTGAGE AND NOTE
In the Matter of the Foreclosure of Tax Liens MERS GETS CHEWED
UP
BANK OF NEW YORK V JOSEPH CERULLO MERS NOT OWNER AND HOLDER OF
NOTE MORTGAGE
HSBC V HENRY FELD MERS NOT HOLDER OWNER OF NOTE
THE BANK OF NY MELLON V RICHARD BUSTRUC MERS IS NOT OWNER HOLDER
OF MORTGAGE AND NOTE
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 26
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ONEWEST BANK GETS THE BOOT MERS ASSIGNMENT MAKES NO REFERENCE TO
NOTE
NY SUPREME COURT WELLS FARGO MERS amp STEVEN J BAUM ldquoFATAL
DEFECTrdquo
FDN attorneys Jeff Barnes Esq and Elizabeth Lemoine Esq have
achieved a significant victory in Federal Court in Oregon against
MERS On Tuesday September 28 2010 Mr Barnes and Ms Lemoine
defended and argued Motions to Dismiss the borrowersrsquo lawsuit
challenging a nonjudicial foreclosure The Motions were filed by
the Defendants OneWest Bank and MERS The action was originally
filed in state court where a temporary restraining order was
entered stopping the sale On the eve of the scheduled hearing on
the borrowersrsquo Motion for Preliminary Injunction Defendants
OneWest Bank MERS and Regional Trustee Services removed the
case to Federal Court in an obvious attempt to circumvent the
state court injunction hearing The Federal Court entered an
Injunction and scheduled a hearing on the Motions filed by the
Defendants
During the course of the hearing the Court repeatedly raised the
ldquoMERS as nomineerdquo issues to counsel for the Defendants with said
counsel finally admitting upon repeated inquiry by the Court
that MERS cannot transfer promissory notes The Court denied the
Motions to Dismiss and has by Order commanded the injunction
against the sale to remain in place through the duration of the
borrowersrsquo lawsuit
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
REQUEST FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY
INJUNCTION
Because of the nature of the findings of the listed FACTS I
through FACT VII and lack of truthful evidence leading to these
illegal foreclosure proceedings Plaintiff prays for the Court to
issue a temporary restraining order and a preliminary injunction
against Defendant for any and all claims the Defendants are
pursuing against Plaintiff and Plaintiffrsquos property via Exhibits
(A B C D E and F) thereby causing harm to the Plaintiff
REQUEST FOR PERMANENT INJUNCTION AND REMUNERATION
Because of all of the FACTS and Court case evidence listed in
this complaint Plaintiff demands the Defendants produce the
original NOTE in question to avoid forgery and fraud charges If
NOTE is not produced within 30 days from the delivery and receipt
of the summons upon the Defendant Plaintiff will press forgery
charges pursuant RCW 9A60020 Plaintiff thereby will demand
remuneration of fraudulently collected monies paid to illegally
represented lenders Bank of America FKA Countrywide and interest
at 675 with the total amount of $8775636 + case fees or
Eighty Seven Thousand Seven hundred and fifty six dollars and 36
cents plus case fees to the Defendant who deceived the Plaintiff
by fraudulently claiming to be the legitimate lender trustee
and beneficiary while falsely claiming to hold the NOTE assuming
all assets and liabilities of Countrywide
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
RCW 740020
Grounds for issuance
When it appears by the complaint that the plaintiff is entitled
to the relief demanded and the relief or any part thereof
consists in restraining the commission or continuance of some
act the commission or continuance of which during the litigation
would produce great injury to the plaintiff or when during the
litigation it appears that the defendant is doing
or threatened or is about to do or is procuring or is suffering some act to
be done in violation of the plaintiffs rights respecting the subject of the
action tending to render the judgment ineffectual or where such relief or
any part thereof consists in restraining proceedings upon any final order or
judgment an injunction may be granted to restrain such act or proceedings
until the further order of the court which may afterwards be dissolved or
modified upon motion And where it appears in the complaint at the
commencement of the action or during the pendency thereof by affidavit that
the defendant threatens or is about to remove or dispose of his property with
intent to defraud his creditors a temporary injunction may be granted to
restrain the removal or disposition of his property
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 29
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
BySamuel Salmon 917C Philpott Rd Colville WA 99114
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
m e Elect ro pic Registration Svstem v Coakley 41 AD3d 674 (2d
Dept 2007)(holding that MERS had standing to bring foreclosure
proceeding based on evidence that MERS was the lawful holder of
the promissory note and the mortgage)
Thus even assuming arguendo that the language of the assignment
from MERS to LPP could be interpreted as purporting to assign not
only the mortgage but also the note such assignment is invalid
since based on the record MERS lacked an ownership interest in
the note $ee LaSalle Bank Nat Assrsquon v Lamv 12 Misc3d 1191(A)
ldquo3 (Sup Ct Suffolk Co 2006) (noting that ldquothe mortgage is merely
an incident of and collateral security for the debt and an
assignment of the mortgage does not pass ownership of the debt
itself rsquo)
WACHOVIA BANK NATIONAL ASSOCIATION against ndashSTUART BRENNER et
aI Defendantrsquo s answer contains a defense of ldquolack of
standingrdquo Plaintiff has failed to establish it was the holder of
the note and the mortgage securing it when the action was
commenced In that regard plaintiff relies on an undated
assignment of the mortgage by MERS as nominee acknowledged by a
Texas notary on July 18 2009 The note sued on does not contain
an indication it has been negotiated The undated assignment by
MERS contains a provision at the assignment of the mortgage is
ldquoTOGETHER with the notes described in said mortgagerdquo The record
before me is devoid of proof that MERS as nominee for purposes of
recording had authority to assign the mortgage However assuming
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
it had such authority since it is a party to the mortgage and
such authority might be implied there has been a complete
failure to establish MERS as a non-party to the note to
negotiate its transfer A transfer of the note effects a transfer
of the mortgage MERS vs Coakley 41 AD3 674) the assignment of
a mortgage without a valid transfer of the mortgage note is a
nullity(Kluge vs Fugazv 145 AD2 537)
Following are more cases from THE NEW YORK SUPREME COURThellip
JUDGE SCHACK BLOWS lsquoMERSrsquo and Bank Of New York (BNY) OUT THE
DOOR
WM SPECIALTY MORTGAGE v JORGE RAMIREZ NO PROOF MERS OWNED THE
MORTGAGE AND NOTE
MERS v MAHENDRA RAMDOOLAR MERS IN NOT THE OWNER OF SUBJECT
MORTGAGE AND NOTE
HOLY COW MERS v MERS NO EVIDENCE IT HAD THE MORTGAGE AND NOTE
MERS V THOMAS STANDFORD MERS DOES NOT OWN MORTGAGE AND NOTE
MERS V GAIL PALMORE-ARCHER MERS DOES NOT OWN MORTGAGE AND NOTE
In the Matter of the Foreclosure of Tax Liens MERS GETS CHEWED
UP
BANK OF NEW YORK V JOSEPH CERULLO MERS NOT OWNER AND HOLDER OF
NOTE MORTGAGE
HSBC V HENRY FELD MERS NOT HOLDER OWNER OF NOTE
THE BANK OF NY MELLON V RICHARD BUSTRUC MERS IS NOT OWNER HOLDER
OF MORTGAGE AND NOTE
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 26
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ONEWEST BANK GETS THE BOOT MERS ASSIGNMENT MAKES NO REFERENCE TO
NOTE
NY SUPREME COURT WELLS FARGO MERS amp STEVEN J BAUM ldquoFATAL
DEFECTrdquo
FDN attorneys Jeff Barnes Esq and Elizabeth Lemoine Esq have
achieved a significant victory in Federal Court in Oregon against
MERS On Tuesday September 28 2010 Mr Barnes and Ms Lemoine
defended and argued Motions to Dismiss the borrowersrsquo lawsuit
challenging a nonjudicial foreclosure The Motions were filed by
the Defendants OneWest Bank and MERS The action was originally
filed in state court where a temporary restraining order was
entered stopping the sale On the eve of the scheduled hearing on
the borrowersrsquo Motion for Preliminary Injunction Defendants
OneWest Bank MERS and Regional Trustee Services removed the
case to Federal Court in an obvious attempt to circumvent the
state court injunction hearing The Federal Court entered an
Injunction and scheduled a hearing on the Motions filed by the
Defendants
During the course of the hearing the Court repeatedly raised the
ldquoMERS as nomineerdquo issues to counsel for the Defendants with said
counsel finally admitting upon repeated inquiry by the Court
that MERS cannot transfer promissory notes The Court denied the
Motions to Dismiss and has by Order commanded the injunction
against the sale to remain in place through the duration of the
borrowersrsquo lawsuit
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
REQUEST FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY
INJUNCTION
Because of the nature of the findings of the listed FACTS I
through FACT VII and lack of truthful evidence leading to these
illegal foreclosure proceedings Plaintiff prays for the Court to
issue a temporary restraining order and a preliminary injunction
against Defendant for any and all claims the Defendants are
pursuing against Plaintiff and Plaintiffrsquos property via Exhibits
(A B C D E and F) thereby causing harm to the Plaintiff
REQUEST FOR PERMANENT INJUNCTION AND REMUNERATION
Because of all of the FACTS and Court case evidence listed in
this complaint Plaintiff demands the Defendants produce the
original NOTE in question to avoid forgery and fraud charges If
NOTE is not produced within 30 days from the delivery and receipt
of the summons upon the Defendant Plaintiff will press forgery
charges pursuant RCW 9A60020 Plaintiff thereby will demand
remuneration of fraudulently collected monies paid to illegally
represented lenders Bank of America FKA Countrywide and interest
at 675 with the total amount of $8775636 + case fees or
Eighty Seven Thousand Seven hundred and fifty six dollars and 36
cents plus case fees to the Defendant who deceived the Plaintiff
by fraudulently claiming to be the legitimate lender trustee
and beneficiary while falsely claiming to hold the NOTE assuming
all assets and liabilities of Countrywide
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
RCW 740020
Grounds for issuance
When it appears by the complaint that the plaintiff is entitled
to the relief demanded and the relief or any part thereof
consists in restraining the commission or continuance of some
act the commission or continuance of which during the litigation
would produce great injury to the plaintiff or when during the
litigation it appears that the defendant is doing
or threatened or is about to do or is procuring or is suffering some act to
be done in violation of the plaintiffs rights respecting the subject of the
action tending to render the judgment ineffectual or where such relief or
any part thereof consists in restraining proceedings upon any final order or
judgment an injunction may be granted to restrain such act or proceedings
until the further order of the court which may afterwards be dissolved or
modified upon motion And where it appears in the complaint at the
commencement of the action or during the pendency thereof by affidavit that
the defendant threatens or is about to remove or dispose of his property with
intent to defraud his creditors a temporary injunction may be granted to
restrain the removal or disposition of his property
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 29
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
BySamuel Salmon 917C Philpott Rd Colville WA 99114
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
it had such authority since it is a party to the mortgage and
such authority might be implied there has been a complete
failure to establish MERS as a non-party to the note to
negotiate its transfer A transfer of the note effects a transfer
of the mortgage MERS vs Coakley 41 AD3 674) the assignment of
a mortgage without a valid transfer of the mortgage note is a
nullity(Kluge vs Fugazv 145 AD2 537)
Following are more cases from THE NEW YORK SUPREME COURThellip
JUDGE SCHACK BLOWS lsquoMERSrsquo and Bank Of New York (BNY) OUT THE
DOOR
WM SPECIALTY MORTGAGE v JORGE RAMIREZ NO PROOF MERS OWNED THE
MORTGAGE AND NOTE
MERS v MAHENDRA RAMDOOLAR MERS IN NOT THE OWNER OF SUBJECT
MORTGAGE AND NOTE
HOLY COW MERS v MERS NO EVIDENCE IT HAD THE MORTGAGE AND NOTE
MERS V THOMAS STANDFORD MERS DOES NOT OWN MORTGAGE AND NOTE
MERS V GAIL PALMORE-ARCHER MERS DOES NOT OWN MORTGAGE AND NOTE
In the Matter of the Foreclosure of Tax Liens MERS GETS CHEWED
UP
BANK OF NEW YORK V JOSEPH CERULLO MERS NOT OWNER AND HOLDER OF
NOTE MORTGAGE
HSBC V HENRY FELD MERS NOT HOLDER OWNER OF NOTE
THE BANK OF NY MELLON V RICHARD BUSTRUC MERS IS NOT OWNER HOLDER
OF MORTGAGE AND NOTE
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 26
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ONEWEST BANK GETS THE BOOT MERS ASSIGNMENT MAKES NO REFERENCE TO
NOTE
NY SUPREME COURT WELLS FARGO MERS amp STEVEN J BAUM ldquoFATAL
DEFECTrdquo
FDN attorneys Jeff Barnes Esq and Elizabeth Lemoine Esq have
achieved a significant victory in Federal Court in Oregon against
MERS On Tuesday September 28 2010 Mr Barnes and Ms Lemoine
defended and argued Motions to Dismiss the borrowersrsquo lawsuit
challenging a nonjudicial foreclosure The Motions were filed by
the Defendants OneWest Bank and MERS The action was originally
filed in state court where a temporary restraining order was
entered stopping the sale On the eve of the scheduled hearing on
the borrowersrsquo Motion for Preliminary Injunction Defendants
OneWest Bank MERS and Regional Trustee Services removed the
case to Federal Court in an obvious attempt to circumvent the
state court injunction hearing The Federal Court entered an
Injunction and scheduled a hearing on the Motions filed by the
Defendants
During the course of the hearing the Court repeatedly raised the
ldquoMERS as nomineerdquo issues to counsel for the Defendants with said
counsel finally admitting upon repeated inquiry by the Court
that MERS cannot transfer promissory notes The Court denied the
Motions to Dismiss and has by Order commanded the injunction
against the sale to remain in place through the duration of the
borrowersrsquo lawsuit
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
REQUEST FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY
INJUNCTION
Because of the nature of the findings of the listed FACTS I
through FACT VII and lack of truthful evidence leading to these
illegal foreclosure proceedings Plaintiff prays for the Court to
issue a temporary restraining order and a preliminary injunction
against Defendant for any and all claims the Defendants are
pursuing against Plaintiff and Plaintiffrsquos property via Exhibits
(A B C D E and F) thereby causing harm to the Plaintiff
REQUEST FOR PERMANENT INJUNCTION AND REMUNERATION
Because of all of the FACTS and Court case evidence listed in
this complaint Plaintiff demands the Defendants produce the
original NOTE in question to avoid forgery and fraud charges If
NOTE is not produced within 30 days from the delivery and receipt
of the summons upon the Defendant Plaintiff will press forgery
charges pursuant RCW 9A60020 Plaintiff thereby will demand
remuneration of fraudulently collected monies paid to illegally
represented lenders Bank of America FKA Countrywide and interest
at 675 with the total amount of $8775636 + case fees or
Eighty Seven Thousand Seven hundred and fifty six dollars and 36
cents plus case fees to the Defendant who deceived the Plaintiff
by fraudulently claiming to be the legitimate lender trustee
and beneficiary while falsely claiming to hold the NOTE assuming
all assets and liabilities of Countrywide
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
RCW 740020
Grounds for issuance
When it appears by the complaint that the plaintiff is entitled
to the relief demanded and the relief or any part thereof
consists in restraining the commission or continuance of some
act the commission or continuance of which during the litigation
would produce great injury to the plaintiff or when during the
litigation it appears that the defendant is doing
or threatened or is about to do or is procuring or is suffering some act to
be done in violation of the plaintiffs rights respecting the subject of the
action tending to render the judgment ineffectual or where such relief or
any part thereof consists in restraining proceedings upon any final order or
judgment an injunction may be granted to restrain such act or proceedings
until the further order of the court which may afterwards be dissolved or
modified upon motion And where it appears in the complaint at the
commencement of the action or during the pendency thereof by affidavit that
the defendant threatens or is about to remove or dispose of his property with
intent to defraud his creditors a temporary injunction may be granted to
restrain the removal or disposition of his property
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 29
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
BySamuel Salmon 917C Philpott Rd Colville WA 99114
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 26
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
ONEWEST BANK GETS THE BOOT MERS ASSIGNMENT MAKES NO REFERENCE TO
NOTE
NY SUPREME COURT WELLS FARGO MERS amp STEVEN J BAUM ldquoFATAL
DEFECTrdquo
FDN attorneys Jeff Barnes Esq and Elizabeth Lemoine Esq have
achieved a significant victory in Federal Court in Oregon against
MERS On Tuesday September 28 2010 Mr Barnes and Ms Lemoine
defended and argued Motions to Dismiss the borrowersrsquo lawsuit
challenging a nonjudicial foreclosure The Motions were filed by
the Defendants OneWest Bank and MERS The action was originally
filed in state court where a temporary restraining order was
entered stopping the sale On the eve of the scheduled hearing on
the borrowersrsquo Motion for Preliminary Injunction Defendants
OneWest Bank MERS and Regional Trustee Services removed the
case to Federal Court in an obvious attempt to circumvent the
state court injunction hearing The Federal Court entered an
Injunction and scheduled a hearing on the Motions filed by the
Defendants
During the course of the hearing the Court repeatedly raised the
ldquoMERS as nomineerdquo issues to counsel for the Defendants with said
counsel finally admitting upon repeated inquiry by the Court
that MERS cannot transfer promissory notes The Court denied the
Motions to Dismiss and has by Order commanded the injunction
against the sale to remain in place through the duration of the
borrowersrsquo lawsuit
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
REQUEST FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY
INJUNCTION
Because of the nature of the findings of the listed FACTS I
through FACT VII and lack of truthful evidence leading to these
illegal foreclosure proceedings Plaintiff prays for the Court to
issue a temporary restraining order and a preliminary injunction
against Defendant for any and all claims the Defendants are
pursuing against Plaintiff and Plaintiffrsquos property via Exhibits
(A B C D E and F) thereby causing harm to the Plaintiff
REQUEST FOR PERMANENT INJUNCTION AND REMUNERATION
Because of all of the FACTS and Court case evidence listed in
this complaint Plaintiff demands the Defendants produce the
original NOTE in question to avoid forgery and fraud charges If
NOTE is not produced within 30 days from the delivery and receipt
of the summons upon the Defendant Plaintiff will press forgery
charges pursuant RCW 9A60020 Plaintiff thereby will demand
remuneration of fraudulently collected monies paid to illegally
represented lenders Bank of America FKA Countrywide and interest
at 675 with the total amount of $8775636 + case fees or
Eighty Seven Thousand Seven hundred and fifty six dollars and 36
cents plus case fees to the Defendant who deceived the Plaintiff
by fraudulently claiming to be the legitimate lender trustee
and beneficiary while falsely claiming to hold the NOTE assuming
all assets and liabilities of Countrywide
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
RCW 740020
Grounds for issuance
When it appears by the complaint that the plaintiff is entitled
to the relief demanded and the relief or any part thereof
consists in restraining the commission or continuance of some
act the commission or continuance of which during the litigation
would produce great injury to the plaintiff or when during the
litigation it appears that the defendant is doing
or threatened or is about to do or is procuring or is suffering some act to
be done in violation of the plaintiffs rights respecting the subject of the
action tending to render the judgment ineffectual or where such relief or
any part thereof consists in restraining proceedings upon any final order or
judgment an injunction may be granted to restrain such act or proceedings
until the further order of the court which may afterwards be dissolved or
modified upon motion And where it appears in the complaint at the
commencement of the action or during the pendency thereof by affidavit that
the defendant threatens or is about to remove or dispose of his property with
intent to defraud his creditors a temporary injunction may be granted to
restrain the removal or disposition of his property
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 29
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
BySamuel Salmon 917C Philpott Rd Colville WA 99114
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
REQUEST FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY
INJUNCTION
Because of the nature of the findings of the listed FACTS I
through FACT VII and lack of truthful evidence leading to these
illegal foreclosure proceedings Plaintiff prays for the Court to
issue a temporary restraining order and a preliminary injunction
against Defendant for any and all claims the Defendants are
pursuing against Plaintiff and Plaintiffrsquos property via Exhibits
(A B C D E and F) thereby causing harm to the Plaintiff
REQUEST FOR PERMANENT INJUNCTION AND REMUNERATION
Because of all of the FACTS and Court case evidence listed in
this complaint Plaintiff demands the Defendants produce the
original NOTE in question to avoid forgery and fraud charges If
NOTE is not produced within 30 days from the delivery and receipt
of the summons upon the Defendant Plaintiff will press forgery
charges pursuant RCW 9A60020 Plaintiff thereby will demand
remuneration of fraudulently collected monies paid to illegally
represented lenders Bank of America FKA Countrywide and interest
at 675 with the total amount of $8775636 + case fees or
Eighty Seven Thousand Seven hundred and fifty six dollars and 36
cents plus case fees to the Defendant who deceived the Plaintiff
by fraudulently claiming to be the legitimate lender trustee
and beneficiary while falsely claiming to hold the NOTE assuming
all assets and liabilities of Countrywide
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
RCW 740020
Grounds for issuance
When it appears by the complaint that the plaintiff is entitled
to the relief demanded and the relief or any part thereof
consists in restraining the commission or continuance of some
act the commission or continuance of which during the litigation
would produce great injury to the plaintiff or when during the
litigation it appears that the defendant is doing
or threatened or is about to do or is procuring or is suffering some act to
be done in violation of the plaintiffs rights respecting the subject of the
action tending to render the judgment ineffectual or where such relief or
any part thereof consists in restraining proceedings upon any final order or
judgment an injunction may be granted to restrain such act or proceedings
until the further order of the court which may afterwards be dissolved or
modified upon motion And where it appears in the complaint at the
commencement of the action or during the pendency thereof by affidavit that
the defendant threatens or is about to remove or dispose of his property with
intent to defraud his creditors a temporary injunction may be granted to
restrain the removal or disposition of his property
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 29
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
BySamuel Salmon 917C Philpott Rd Colville WA 99114
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
RCW 740020
Grounds for issuance
When it appears by the complaint that the plaintiff is entitled
to the relief demanded and the relief or any part thereof
consists in restraining the commission or continuance of some
act the commission or continuance of which during the litigation
would produce great injury to the plaintiff or when during the
litigation it appears that the defendant is doing
or threatened or is about to do or is procuring or is suffering some act to
be done in violation of the plaintiffs rights respecting the subject of the
action tending to render the judgment ineffectual or where such relief or
any part thereof consists in restraining proceedings upon any final order or
judgment an injunction may be granted to restrain such act or proceedings
until the further order of the court which may afterwards be dissolved or
modified upon motion And where it appears in the complaint at the
commencement of the action or during the pendency thereof by affidavit that
the defendant threatens or is about to remove or dispose of his property with
intent to defraud his creditors a temporary injunction may be granted to
restrain the removal or disposition of his property
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 29
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
BySamuel Salmon 917C Philpott Rd Colville WA 99114
SAMUEL SALMON917C PHILPOTT RDCOLVILLE WA 99114
Summary of Pleading - 29
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
BySamuel Salmon 917C Philpott Rd Colville WA 99114