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Motion in Opposition to Substitute Party Plaintiff

Motion in Opposition to Substitute Party Plaintiff

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Published by Kelly L. Hansen
MetLife's Motion to change party plaintiff after 18 months foreclosure battle, Defendant opposes motion
MetLife's Motion to change party plaintiff after 18 months foreclosure battle, Defendant opposes motion

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Published by: Kelly L. Hansen on Feb 10, 2011
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08/16/2013

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CASE NO. 10CV122
MOTION
 
TO
 
AMEND
 
MOTION
 
TO
 
STRIKE
 
PLAINTIFF¶S
 
MOTION
 
TO
 
SUBSTITUE
 
PARTY
 
PLAINTIFF
Kellylhansen143@gmail.com
 
IN THE DISTRICT COURT OF DOUGLAS COUNTY, KANSASCIVIL COURT DEPARTMENTMETLIFE HOME LOANS, A DIVISION OF )METLIFE BANK, N.A. )
ATTORNEY¶S COPY
 Plaintiff, )vs. )) Case No. 2010 CV 122
 
C.T. & KELLY L. HANSEN; )WELLSVILLE BANK; ) Hon. Robert W. FairchildUNITED STATES OF AMERICA ) DIV I ± K.S.A. 60DEFENDANTs and )Counterclaim ) TITLE TO REAL ESTATEPlaintiffs, Pro Se ) INVOLVED) MORTGAGE FORECLOSURE
MOTION
 
TO
 
AMEND
 
MOTION
 
TO
 
STRIKE
 
PLAINTIFF¶S
 
MOTION
 
TO
 
SUBSTITUE
 
PARTY
 
PLAINTIFF
COME NOW, Clarence G. Hansen and Kelly L. Hansen (³DEFENDANTS´), Pro Se,and moves this Court to deny MetLife Home Loans, a Division of MetLife Bank, N.A.(³PLAINTIFF´) Motion to Substitute Party Plaintiff, and as grounds therefore states:In searching the Kansas Statutes, Defendants can only find K.S.A. 60-255, andamendments thereto, in reference to a substitution of party plaintiff, and the statute is applicableonly if a party dies. Because the Plaintiff did not refer to another Kansas Statute or any Kansascase law in support of its motion, DEFENDANTS offer the following statements in support of their motion to strike:1. If MetLife has assigned or sold Defendants Note to any entity under K.S.A. 84-3-302(1)(2)(C)(D)(E)(F)
1
the entity accepting Defendant¶s note would not be a holder in duecourse as it took the security interest in the Defendant¶s note subject to the same infirmity thatwas present when it was held by MetLife. The accepting entity may not recover on the Note.
1
 
HURST ENTERPRISES, LLC, d/b/a Mr. Payroll Check Cashing, Appellant, v. Bryan CRAWFORD, anindividual, Cactus Roofing, LLC, Appellees.
 
 
CASE NO. 10CV122
MOTION
 
TO
 
AMEND
 
MOTION
 
TO
 
STRIKE
 
PLAINTIFF¶S
 
MOTION
 
TO
 
SUBSTITUE
 
PARTY
 
PLAINTIFF
Kellylhansen143@gmail.com
 
2. Pursuant to the Kansas Statute of Frauds; Fraudulent Conveyances, Chapter 33,Article 1, transfers to delay or defraud are deemed utterly void and of no effect:K.S.A. 33-102: Transfers to delay or defraud creditors or purchasers
.
Every gift, grant or conveyance of lands, tenements, hereditaments, rents, goods or chattels, and every bond, judgment or execution, made or obtained with intent to hinder, delay or defraud creditorsof their just and lawful debts or damages, or to defraud or to deceive the person or  persons who shall purchase such lands, tenements, hereditaments, rents, goods or chattels, shall be deemed utterly void and of no effect.3. The Plaintiff has failed to make a prima facie showing it holds an interest in theDefendant¶s Note.4. At the Case Management Hearing on August 16
th
, 2010, Counsel for Plaintiff stated there had been an additional assignment subsequent to the assignment to IBM Lender Processing Services that took effect on May 1, 2010. In a transcript from the hearing, on page 4,Mr. Robert M. Swiss, Counsel for MetLife advised ³Fannie Mae will now be substituted as the party plaintiff. We haven¶t filed a motion to substitute the plaintiff yet; we are waiting for theaffidavits showing that the note has been assigned . . . which I expect to be filed in the nextcouple of weeks as soon as we get that affidavit finalized.´ The assignment to Fannie Mae wasmade on July 26, 2010. Plaintiff announced it to the Court on August 16, 2010. Mr. Swiss¶smotion to substitute party plaintiff is not timely. Defendants request it be denied.´ A copy of  page 4 from the transcript of the Case Management Hearing is attached hereto as DefendantsExhibit A and is incorporated herein by this reference.5. MetLife, if it ³sold´ a purported interest to Fannie Mae (and the DEFENDANTSaver the Plaintiff holds no interest to sell) the DEFENDANTS move this Court to ORDER thePlaintiff to ³put back´ to Fannie Mae its purported interest. There is no justification to substitute party plaintiff this late in litigation at the caprice of the Plaintiff.
 
CASE NO. 10CV122
MOTION
 
TO
 
AMEND
 
MOTION
 
TO
 
STRIKE
 
PLAINTIFF¶S
 
MOTION
 
TO
 
SUBSTITUE
 
PARTY
 
PLAINTIFF
Kellylhansen143@gmail.com
 
6. The court in
Landmark Nat¶l Bank v. Kesler 
(September, 2009) noted that investorsthat purchased loans from MERS should not be allowed to:³obscure[e] from the public the
actual
ownership of 
a
mor
tgag
e
, thereby creating theopportunity for substantial abuses and prejudice to mortgagors«, [and] should not be permitted to insulate [the mortgage purchaser] from the consequences of its actions inaccepting a mortgage from [the original lender]
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2
(Emphasis mine.)In the instant case, the Plaintiff is the fourth servicer of this mortgage loan and it has³erroneously represented it has the authority to act as mortgagee´ by selling the DEFENDANTS Note to Fannie Mae. The Plaintiff has failed to respond to DEFENDANT¶S repeated requests toProduce. It has not proven it owns the DEFENDANT¶S Note, nor that it has standing to bringthis cause of action in this Court, and it certainly has no legal right to sell a purported interest toFannie Mae.7. Allowing the Plaintiff such a legal maneuver would be prejudicial against theDEFENDANTS; they have spent the 18 months preparing a defense against METLIFE, notFANNIE MAE. Plaintiff should not be allowed to force the DEFENDANTS to jump through itsstrategic hoops.8. The Plaintiff knows, or certainly has reason to know, it is illegal to sell a Note andMortgage in default ± a standard guideline in each of its Securitization Master Pooling andServicing Agreements.9. Neither METLIFE HOME LOANS nor FANNIE MAE are registered with theSecretary of State as is required for all entities conducting mortgage business in the state of 
2
Landmark Nat¶l Bank v. Kesler, 216 P. 3d at 168 (quoting Johnson v. Melnikoff, No. 10548/2007, 2008WL 4182397 (N.Y. Sup Ct. Sept. 11, 2008)).

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