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Defendant's Motion to Amend Response to Cross Motion For Summary Judgment

Defendant's Motion to Amend Response to Cross Motion For Summary Judgment

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Published by Kelly L. Hansen
Michael A. Fisher Robo-Signor, MERS Fraudulent Assignment, MetLife Foreclosure
Michael A. Fisher Robo-Signor, MERS Fraudulent Assignment, MetLife Foreclosure

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CASE NO.

10CV122
DEFENDANT HANSEN¶S AMENDED RESPONSE TO PLAINTIFF¶S CROSS MOTION FOR SUMMARY JUDGMENT

Kellylhansen143@gmail.com

FACSIMILE TRANSMISSION COVER SHEET
DATE: TO: Tuesday, February 1, 2011 Bob Swiss MARTIN, LEIGH, LAWS & FRITZLIN, PC 816-221-1044. PAGE 1 OF 27 2010CV122

FAX: PAGES: CASE NUMBER:

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CASE NO. 10CV122
DEFENDANT HANSEN¶S AMENDED RESPONSE TO PLAINTIFF¶S CROSS MOTION FOR SUMMARY JUDGMENT

Kellylhansen143@gmail.com

IN THE DISTRICT COURT OF DOUGLAS COUNTY, KANSAS CIVIL COURT DEPARTMENT

METLIFE HOME LOANS, A DIVISION OF METLIFE BANK, N.A. PLAINTIFF, vs.

) ) ) ) ) C.T. & KELLY L. HANSEN; ) WELLSVILLE BANK; ) UNITED STATES OF AMERICA ) DEFENDANTS and ) Counterclaim ) PLAINTIFFS, Pro Se ) )

Case No. 2010 CV122 Hon. Robert W. Fairchild DIV VI ± K.S.A. 60 TITLE TO REAL ESTATE INVOLVED MORTGAGE FORECLOSURE

DEFENDANT HANSEN¶S AMENDED RESPONSE TO PLAINTIFF¶S CROSS MOTION FOR SUMMARY JUDGMENT COME NOW, Clarence G. Hansen and Kelly L. Hansen (³DEFENDANTS´), Pro Se, and pursuant to K.S.A. 60-215(a) and K.S.A. 60-256(c) do hereby amend their response to Plaintiff¶s Cross Motion for Summary Judgment as follows: AMENDED RESPONSE TO STATEMENT OF UNCONTROVERTED FACTS 1. 2. 3. 4. 5. Paragraph 1 is uncontroverted. Paragraph 2 is uncontroverted. Paragraph 3 is uncontroverted. Paragraph 4 is uncontroverted. Paragraph 5 is controverted. ³Said filing was [not] prior to the acquisition by any

person or defendants herein, of any right, title, interest, equity, or lien in and to the property.´ The Defendants were living in the property at the time. Defendant Wellsville Bank originated the money mortgage loan that financed the building of the home. See DEFENDANTS Answer, Affirmative Defenses, and Counterclaim, 21.

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DEFENDANT HANSEN¶S AMENDED RESPONSE TO PLAINTIFF¶S CROSS MOTION FOR SUMMARY JUDGMENT

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6.

Paragraph 6 is controverted. The Note, Defendant¶s Exhibit B, has been paid in

full, to the order of Ohio Savings Bank for the full amount of $168,750.00, without recourse. The Defendants debt to Sunflower Mortgage Co. is fully satisfied. See DEFENDANTS Answer, Affirmative Defenses, and Counterclaim, 15. 7. Paragraph 7 is controverted. Plaintiff s Exhibit C is a false affidavit. Plaintiff

attempts to confirm Defendant s debt by presenting an Affidavit dated January 7, 2011. MetLife filed its first Petition to Foreclose against Defendants on June 11, 2009. MetLife filed its second Petition to Foreclose on January 25, 2010. A statement ³on behalf of IBM Lender Business Process Services, Inc. (an entity that has never serviced Defendants mortgage loan), as Servicer for Fannie Mae (³Federal National Mortgage Association´) (³Plaintiff)´, an entity not yet approved by the Court to by a party to this action, sworn to 18 months after the Plaintiff filed its first Petition to foreclose against Defendants does not satisfy the requirement of ³personal knowledge´ of the Defendant s entire mortgage loan history. Defendants request Plaintiff s Exhibit C be stricken from the record. 8. Paragraph 8 is controverted. Defendants request Plaintiff s Exhibit C be stricken

from the record. See paragraph number 7 above. 9. Paragraph 9 is controverted. Plaintiff s Exhibit A fails to establish MetLife has an

interest in Defendant s real property. Plaintiff s Exhibit C is a false affidavit. See paragraph 7 above. See Defendant Hansen s Answer, Affirmative Defenses, And Counterclaim 10. 15.

Paragraph 10 is controverted. Defendant Wellsville s mortgage interest is only true

interest in the Defendant s real property and in the Defendant s Business. See Defendant Hansen s Answer, Affirmative Defenses, And Counterclaim 23, 24 and Wellsville Answer and Exhibit A.

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DEFENDANT HANSEN¶S AMENDED RESPONSE TO PLAINTIFF¶S CROSS MOTION FOR SUMMARY JUDGMENT

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11. 12. 13. 14.

Paragraph 11 is uncontroverted. Paragraph 12 is uncontroverted. Paragraph 13 is uncontroverted. Paragraph 14 is controverted. The Assignment of [Note and] Mortgage in this

action is a void document. The corrected assignment is a nullity because it is impossible to correct a void document. Because of the fundamental failures in these documents, MetLife (nor any entity) could ever be assigned an interest in the Defendant¶s Mortgage. In Plaintiff¶s CROSS MOTION FOR SUMMARY JUDGMENT, on page 14, paragraph 14, the very last sentence of the paragraph states ³see also endorsements attached to the Note, Exhibit B. There is only one endorsement on Exhibit B, and that is the endorsement on the Allonge to Note. See

DEFENDANTS Answer, Affirmative Defenses, and Counterclaim, 15, DEFENDANT S Motion for Summary Judgment, Exhibit W. ADDITIONAL UNCONTROVERTED FACTS 15. The first premise on which the Defendants base their argument the first Assignment

of Note and Mortgage is a void document is it attempts to assign an interest from a defunct business entity. On June 11, 2009, the date on the Plaintiff¶s ASSIGNMENT OF NOTE AND MORTGAGE, Sunflower Mortgage Co. was defunct. The Plaintiff¶s ASSIGNMENT OF NOTE AND MORTGAGE is a void document and transfers nothing. See DEFENDANT Hansen¶s Motion for Summary Judgment, Exhibit W. See Defendant Wellsville Bank¶s Response to Plaintiff¶s Cross Motion for Summary Judgment, Page 8, ¶ 4, see attached Business Entity Search to their Motion. 16. The second premise on which the Defendants base their argument the first

Assignment of Note and Mortgage is a void document is a ³MERS´ ASSIGNMENT OF NOTE

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AND MORTGAGE is an invalid document on its face, because MERS cannot assign Notes.1 The Plaintiff¶s ASSIGNMENT OF NOTE AND MORTGAGE is a void document and transfers nothing. See DEFENDANTS Answer, Affirmative Defenses, and Counterclaim Page 10 26, Defendant Hansen s Motion for Summary Judgment, Page 14 1. 17. The third premise on which the Defendants base their argument that the first

Assignment of Note and Mortgage is a void document is the Plaintiff s ASSIGNMENT OF NOTE AND MORTGAGE is signed by Michael A. Fisher, as Vice President, Mortgage Electronic Registration Systems, Inc, solely as nominee for Sunflower Mortgage Co. First, Michael A. Fisher is, in fact, Vice President of Default Servicing for First Horizon Home Loans. Second, First Horizon Home Loans and MetLife Home Loans are one in the same. See item #18 below. This is assignment is a sham. Second, Michael A. Fisher is not an authorized signer for Mortgage Electronic Registration Systems, Inc, solely as nominee for Sunflower Mortgage Co. The

Plaintiff s ASSIGNMENT OF NOTE AND MORTGAGE is a void document and transfers nothing. See DEFENDANTS Answer, Affirmative Defenses, and Counterclaim, 15, Exhibits N, O, P. 18. Defendant s attach for the Court review an Assignment of Mortgage unrelated to

this case, but signed by Michael A. Fisher as Vice President of Mortgage Electronic Registration Systems, Inc., solely as nominee for First Horizon Home Loans Corporation. This assignment is special. The first paragraph states ³FOR VALUE RECEIVED Mortgage Electronic Registration Systems, Inc., solely as nominee for First Horizon Home Loans Corporation, c/o MetLife Home Loans (TX), 4000 Horizon Way, Suite 100, Irving, TX, 75063´ and this assignment is

1

Landmark Nat¶l Bank v. Kesler, 216 P.3d at 166

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assigning property in Douglas County from First Horizon Home Loans Corporation, c/o MetLife Home Loans to First Horizon Home Loans Corporation. Defendants represent

Michael A. Fisher¶s signature on this assignment is clearly a conflict of interest, is a fraudulent misrepresentation, and is forgery. A copy of Defendants Exhibit X c/o MetLife is attached hereto and is incorporated herein by this reference. 19. The Plaintiff¶s CORRECTED ASSIGNMENT is a nullity. It is an attempt to

correct a void document. The Plaintiff¶s ASSIGNMENT OF NOTE AND MORTGAGE is a void document and transfers nothing. See DEFENDANTS Answer, Affirmative Defenses, and

Counterclaim,¶ 15, DEFENDANT¶S Motion for Summary Judgment, Exhibit W. 20. At the Case Management Hearing held on August 16, 2010 Judge Kittel stated ³«

it looks like the issues are the legality of the assignments and then the priority of the mortgages, the notes.´ A copy of page 4 of the transcript of the Case Management Hearing is attached hereto as Defendants Exhibit Y and is incorporated herein by this reference. See page 4 of Defendant¶s Exhibit Y, attached. 21. Mr. Robert M. Swiss, when summarizing the issues in the case, stated, ³I believe

most of the counterclaims are based on standing and assignments. There is some discovery the Hansen¶s¶ have sent to my client regarding that. . . And we¶ll respond.´ A copy of page 3 of the transcript of the Case Management Hearing is attached hereto as Defendants Exhibit Y and is incorporated herein by this reference. See page 3 of Defendant¶s Exhibit Y, attached. 22. Defendants disagree with Opposing Counsel regarding what MetLife¶s Corporate

Assignment of Mortgage/Deed of Trust can and cannot assign. Defendants maintain the Plaintiff¶s Corporate Assignment of Mortgage/Deed of Trust can only assign an interest to a Mortgage/Deed of Trust to which it holds an interest. Defendants have established the Plaintiff does not hold an

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interest to the Defendant¶s Mortgage. See the footnote on the bottom of the first page of Plaintiff¶s Cross Motion for Summary Judgment, DEFENDANTS Answer, Affirmative Defenses, and Counterclaim,¶ 15, DEFENDANT¶S Motion for Summary Judgment, Exhibit W. 23. If MetLife has assigned or sold Defendants Note to any entity, Defendants assert

that under K.S.A. 84-3-302(1) (2) (C) (D) (E) (F) the entity accepting Defendant¶s note would not be a holder in due course as it took the security interest in the Defendant¶s note subject to the same infirmity that was present when it was held by MetLife. The accepting entity may not recover on the Note.2 24. David and Julia Mills, an attorney and his wife are facing similar problems with

First Horizon Home Loans to the ones we are currently facing with MetLife: Until securitization, note holders held the lien rights. This is not the case with ³securitized´ financing. A securitized lien does not create lien rights in any entity that holds the note; instead, the lien creates lien rights in a ³straw man´, usually Mortgage electronic Recording Systems, Inc. (MERS). These ³securitized´ liens have become commonplace, and are the source of the aforementioned mortgage crisis that exists today. The use of a strawman as lienholder in these ³securitized´ mortgages threatens to transform a public, transparent and open deed recording system into a private and secret recording system that only certain people in the mortgage lending industry can access. All property owners of this state who have similar liens will ultimately discover that no property owner, no title company, no prospective purchaser will be able to determine from the deed records of this state, who the entity is who must be paid to get a valid release of these liens. A strawman, as lienholder, impairs any person¶s ability to determine the entity that must be paid to secure a valid release of the lien. The purpose of a public deed recording system, which is to make a determination of property ownership clear and simple, is totally frustrated.3 25. David and Julia Mills arguments and theories are identical and based on the same

premises the Defendant¶s have outlined in their case:

2

HURST ENTERPRISES, LLC, d/b/a Mr. Payroll Check Cashing, Appellant, v. Bryan CRAWFORD, an individual, Cactus Roofing, LLC, Appellees.
3

David G. Mills & Julia Mills, v. First Horizon Home Loan Corporation d/b/a First Tennessee Home Loans & Mortgage Electronic Registration Systems, Inc.

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The separation of note and lien are intentional and deliberate in ³securitization;´ the separation is not due to inadvertence, negligence or some other situation less than intentional or deliberate conduct. Furthermore, the separation occurs ab initio as the lien rights are given to a strawman. Securitized´ liens make separation of the note and lien the norm, rather than a rare event. The result is that the public recording system is no longer capable of functioning as a notice to all who must be paid to get a valid release of lien.4 26. Pursuant to K.S.A. 33-204, and amendments thereto, the DEFENDANTS plead all

the affirmative defenses of the Uniform Fraudulent Transfer Act, including and in addition to estoppels, laches, fraud, misrepresentation, mistake, contributory negligence, economic loss rule, failure to join indispensable parties, failure of consideration, failure to state a cause of action or a claim upon which this court may grant relief, illegality, license, sham, statute of frauds, statute of limitations, unclean hands, and unconscionability. See DEFENDANTS Answer, Affirmative Defenses, and Counterclaim, 7. 27. Neither METLIFE HOME LOANS, nor METLIFE BANK, N.A. are registered

with the Secretary of State as is required for all entities conducting business in the state of Kansas.5 See DEFENDANTS Answer, Affirmative Defenses, and Counterclaim, 8, and Plaintiff s Reply to Defendant s Counterclaim, 8. 28. Neither METLIFE HOME LOANS, nor METLIFE BANK, N.A. are licensed to

service mortgage loans as is required by the State of Kansas Office of the State Bank Commissioner.6 See DEFENDANTS Answer, Affirmative Defenses, and Counterclaim, 9 and Plaintiff s Reply to Defendant s Counterclaim, 9. 29. Plaintiff, on page 15, paragraph 3 of its CROSS MOTION FOR SUMMARY

JUDGMENT, has invoked K.S.A. 9-1121 (after claiming isn t required to be registered or licensed

4

David G. Mills & Julia Mills, v. First Horizon Home Loan Corporation d/b/a First Tennessee Home Loans & Mortgage Electronic Registration Systems, Inc., 2011 5 Cuomo v Clearinghouse by US Supreme Court, June, 2009 6 Cuomo v Clearinghouse by US Supreme Court, June, 2009

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to conduct business in the state of Kansas) in a very telling attempt to avoid meeting the requirement of producing the Defendant¶s original Promissory Note into evidence. In 2009, The U.S. Supreme Court established in Cuomo v Clearinghouse, all National Banks, are subject to the laws of the state in which they are foreclosing. ARGUMENTS AND AUTHORITIES MetLife Home Mortgage does not have standing in any Kansas Court.7 Neither MetLife Home Mortgage, nor Fannie Mae has a right to foreclose against the Defendants.

Cuomo v Clearinghouse by US Supreme Court, June, 2009 ³To demonstrate the binding quality of a statute but deny the power of enforcement involves a fallacy made apparent by the mere statement of the proposition, for such power is essentially inherent in the very conception of law.´ St. Louis, supra, at 660. In contrast, channeling state attorneys general into judicial law-enforcement proceedings (rather than allowing them to exercise ³visitorial´ oversight) would preserve a regime of exclusive administrative oversight by the Comptroller while honoring in fact rather than merely in theory Congress¶s decision not to pre-empt substantive state law. This reading is also suggested by §484(a)¶s otherwise inexplicable reservation of state powers ³vested in the courts of justice.´ And on a pragmatic level, the difference between visitation and law enforcement is clear: If a State chooses to pursue enforcement of its laws in court, its targets are protected by discovery and procedural rules. Pp. 7±9.8 «Accordingly, the injunction below is affirmed as applied to the Attorney General¶s threatened issuance of executive subpoenas, but vacated insofar as it prohibits the Attorney General from bringing judicial enforcement actions. Pp. 13±15.9 510 F. 3d 105 «Our most recent decision, Watters v. Wachovia Bank, N. A., 550 U. S. 1 (2007), does not, as the dissent contends, post, at 18, ³suppor[t] OCC¶s construction of the statute.´ To the contrary, it is fully in accord with the well established distinction between supervision and law enforcement. Watters held that a State may not exercise ³µgeneral supervision and control¶´ over a subsidiary of a national bank, 550 U. S., at 8, because ³multiple audits and surveillance under rival oversight regimes´ would cause uncertainty, id., at 21. ³[G]eneral supervision and control´ and ³oversight´ are worlds apart from law enforcement. [Emphasis mine.] All parties to the case agreed that Michigan¶s general oversight regime could not be imposed on national banks; the sole question was whether operating

Cuomo v Clearinghouse by US Supreme Court, June, 2009, 557U.S. ____ (2009) 510 F. 3d 105 Cuomo v Clearinghouse by US Supreme Court, June, 2009, See Syllabus (iv) Page 2 9 Cuomo v Clearinghouse by US Supreme Court, June, 2009, 557U.S. ____ (2009) 510 F. 3d 105
8

7

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subsidiaries of national banks enjoyed the same immunity from state visitation. The opinion addresses and answers no other question.10 «In sum, the unmistakable and utterly consistent teaching of our jurisprudence, both before and after enactment of the National Bank Act, is that a sovereign¶s ³visitorial powers´ and its power to enforce the law are two different things. There is not a credible argument to the contrary. And contrary to what the Comptroller¶s regulation says, the National Bank Act pre-empts only the former.11 «Anyway, the National Bank Act does specifically authorize and permit activities that fall within what the statement of basis and purpose calls ³the legal infrastructure that surrounds and supports the ability of national banks . . . to do business.´ See, e.g., 12 U. S. C. §24 Third (power to make contracts); §24 Seventh (³all such incidental powers as shall be necessary to carry on the business of banking´). And of course a distinction between ³implementation´ of ³infrastructure´ and judicial enforcement of other laws can be found nowhere within the text of the statute. This passage in the statement of basis and purpose, resting upon neither the text of the regulation nor the text of the statute, attempts to do what Congress declined to do: exempt national banks from all state banking laws, or at least state enforcement of those laws.12 «he critical question is not what is being compelled, but what sovereign power has been invoked to compel it. And the power to enforce the law exists separate and apart from the power of visitation. 13
Daniel P. Stipano states National Banks Are Subject to State Laws When Foreclosing Mortgage Loans They Did Not Originate OCC Interpretive Letter #1016 February 2005
January 14, 2005 Anthony J. Sylvester Riker, Danzig, Scherer, Hyland & Perretti, LLP Headquarters Plaza One Speedwell Avenue Morristown, NJ 07962-1981 Madeline L. Houston Houston & Totaro 56 Broad Street, Suite 1

Cuomo v Clearinghouse by US Supreme Court, June, 2009, 557U.S. ____ (2009) Cuomo v Clearinghouse by US Supreme Court, June, 2009, 557U.S. ____ (2009) 12 Cuomo v Clearinghouse by US Supreme Court, June, 2009, 557U.S. ____ (2009) 13 Cuomo v Clearinghouse by US Supreme Court, June, 2009, 557U.S. ____ (2009)
11

10

510 F. 3d 105, p. 9 510 F. 3d 105, p. 10

510 F. 3d 105, p. 14 510 F. 3d 105, p. 15 2/10/2011

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Bloomfield, N.J. 07003 Subject: Wells Fargo Bank, Minnesota, N.A. v. Alberta Harris, et al. Docket No. ESX-L-4676-02 and Bank One National Association v. Feinstein Docket No. F-11450-00

Dear Mr. Sylvester and Ms. Houston: This letter is in response to your letter dated December 13, 2004, seeking the views of the Office of the Comptroller of the Currency (³OCC´) concerning preemption of certain state laws in connection with claims and defenses asserted by the parties in the above-named cases. You requested the OCC¶s views at the direction of the Honorable Kenneth S. Levy, J.S.C., presiding judge in this litigation. For the reasons stated below, based on the facts presented in the materials provided to us, we believe that neither 12 C.F.R. § 34.4 nor the National Bank Act preempts application of the state laws at issue here to loans simply because they were purchased and held by national banks acting as trustees in connection with issuance of the mortgage-backed securities involved in this case. Background According to the materials provided with the December 13th letter addressed to me, Delta Funding made a mortgage loan to Alberta Harris in December 1999 (Wells Fargo Complaint, First Count ¶ 1), and subsequently assigned the mortgage to Wells Fargo ³as Trustee for Delta Funding Home Equity Loan Trust 2000-1´ (Wells Fargo Complaint, First Count ¶ 4). Delta Funding made a mortgage loan to Dequilla Robinson in November 1999 (Bank One Statement of Material Facts Not in Dispute ¶ 3), and subsequently assigned the mortgage to Bank One National Association ³as Trustee in Trust for the Registered Holders of Delta Funding Home Equity Loan Asset-Backed Certificates Series 1999-3´ (Certification of Harold L. Kofman, Esq. ¶ ¶ 1, 3). There is no indication that either Wells Fargo or Bank One made the original mortgage loans to Alberta Harris or Dequilla Robinson, nor does any party assert that Wells Fargo or Bank One has any other interest in these transactions except as trustees for investors in the mortgage-backed securities. As trustee acting on behalf of the investors in Home Equity Loan Trust 2000-1, Wells Fargo filed suit against Ms. Harris alleging that she had defaulted on the loan made by Delta and sought to foreclose on the real estate she had pledged as collateral for that loan (Wells Fargo Complaint, First Count ¶ ¶ 1-14). As trustee acting on behalf of the investors in Delta Asset-Backed Certificates Series 1999-3, Bank One filed suit against Jack Feinstein, as Administrator Ad Prosequendum for the estate of Ms. Robinson, seeking to foreclose on the real estate she had pledged as collateral for the loan made by Delta (Memorandum of Law in Support of Plaintiff Bank One National Association¶s Motion for Summary Judgment at 3-4). Ms. Harris and Mr. Feinstein (³Defendants´), through counsel, opposed the foreclosure actions. They alleged in counterclaims against the Banks (and third-party claims against Delta and others) defenses based upon alleged violations of the New Jersey Consumer Fraud Act (³CFA´), N.J.S.A. 56.8-2, which, among other things, proscribes unconscionable practices in real estate transactions. N.J.S.A. 56.8-2. See Defendant¶s Brief in Opposition to Plaintiff Wells Fargo¶s Motion for Partial Summary Judgment at 3; Defendant¶s Brief in Opposition to Plaintiff Bank One¶s Motion for Summary Judgment at 4. Asserting that federal law authorizing national banks to make and purchase real estate loans

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preempted the Defendants¶ state law defenses under the CFA, Wells Fargo and Bank One, as trustees acting on behalf of the investors, sought partial summary judgment on the cross-claims. Discussion Pursuant to 12 U.S.C. § 371, national banks may ³make, arrange, purchase or sell loans or extensions of credit secured by liens on interests in real estate, subject to * * * such restrictions and requirements as the Comptroller of the Currency may prescribe by regulation or order.´ The OCC¶s real estate lending regulations provide that, ³[e]xcept where made applicable by Federal law, state laws that obstruct, impair, or condition a national bank¶s ability to fully exercise its Federally authorized real estate lending powers do not apply to national banks.´ 12 C.F.R. § 34.4(a). The Banks assert that application of the CFA is preempted because it would interfere with their power as national banks to purchase loans as authorized under 12 U.S.C. § 371, and that holding them liable for violations of the CFA as loan purchasers would be contrary to 12 C.F.R. § 34.4(a), which preempts state laws that interfere with national bank real estate lending authority. Section 34.4(a)(10) states that national banks ³may make real estate loans under 12 U.S.C. § 371 without regard to state law limitations concerning * * * [p]rocessing, origination, servicing, sale or purchase of, or investment or participation in, mortgages.´ 12 C.F.R.§ 34.4(a)(10) (emphasis added). However, in no sense, under the facts presented, can the Banks be viewed as making a real estate loan under 12 U.S.C. § 371 and 12 C.F.R. § 34.4. The Banks did not originate the loans. They did not fund the loans at inception. Nor did they ³purchase´ the loans as part of any real estate lending program comprehended by the regulation. Here, the Banks act as trustees for the benefit of investors in the trusts. The substance of the transaction is that the investors, not the Banks, are purchasing the loans that have been made by Delta. The investors own the beneficial interest in the loans held by the Banks as trustees. And the effect of any liability for violation of the CFA ultimately falls on the investors. Nowhere do the Banks allege that they themselves, as opposed to the trusts they represent, are exposed to liability for any violation of the CFA. For all these reasons, 12 U.S.C. § 371 and 12 C.F.R. § 34.4(a) simply do not apply to the transactions by which the Banks acquired legal title to the loans in the circumstances at issue here. [Emphasis mine.] With respect to the activities of Wells Fargo and Bank One as trustees, the banks derive their power to act as trustees from 12 U.S.C. § 92a. When state law conflicts with national banks exercising powers granted to them by federal law, the Supremacy Clause of the United States Constitution requires that the state law yield to the paramount authority of federal law, with the result that application of the state law to national banks is preempted. The Supreme Court has explained this principle stating that it interprets ³grants of both enumerated and incidental µpowers¶ to national banks as grants of authority not normally limited by, but rather ordinarily pre-empting, contrary state law.´ Barnett Bank of Marion County v. Nelson, 517 U.S. 25, 32 (1996). As the Supreme Court demonstrated in its review of preemption cases in the Barnett case, Supremacy Clause principles animating conflict preemption have been expressed in a wide variety of phrases that do not yield materially different meanings, including ³stand as an obstacle to,´ ³impair the efficiency of,´ ³significantly interfere,´ ³interfere,´ ³infringe,´ and ³hamper.´ See Barnett, 517 U.S. at 33. Thus, if application of the CFA to the loans held by the Banks as trustee were to obstruct, impair, condition, or otherwise interfere with the Banks¶ exercise of fiduciary powers granted to them under federal law, the state statute would be preempted.

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Based on the facts presented, we do not believe that to be the case. The Banks have not claimed that application of the CFA would impair their ability to act as trustee in these circumstances or that the state law otherwise interferes with the performance of their legal obligations as trustee. Nor could they claim that having to respond to state law defenses to recovery on assets held in trust obstructs or impairs their power to act as trustee absent some indication that the state law infringes their authority, conditions their actions, or imposes a burden in a way prohibited by federal law. In short, the Banks¶ authority to act as trustees under federal law does not insulate the assets the Banks hold in trust for the benefit of investors from state law requirements otherwise applicable to those assets. [Emphasis mine.] We trust that the foregoing is responsive to your request. Sincerely,

/s/ Daniel P. Stipano Daniel P. Stipano Acting Chief Counsel Cc: Hon. Kenneth S. Levy, J.S.C. 212 Washington Street The Wilentz Justice Complex General Equity, 8th Floor Newark, New Jersey 07102

PLAINTIFF HAS THE BURDEN OF PROOF PLAINTIFF HAS FAILED TO IT¶S MAKE A PRIMA FACIE CASE K.S.A. 60-256(c) provides that summary judgment shall be entered ³if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.´ There is no genuine issue as to any material fact, because a complete failure of proof concerning any essential element renders all other facts immaterial. The Defendants are entitled to judgment as a matter of law because the Plaintiff has failed to make a sufficient showing on essential elements of its case with respect to which it has the burden of proof. The Plaintiff has failed to make a prima facie case against the Defendants. Due process means that first, you make a claim, second you prove it and ONLY AFTER the claim and the proof
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does the opposing party have ANY obligation to offer ANY proof. Plaintiff has failed to meet its prima facie evidentiary requirements to secure a summary judgment in its favor; the Plaintiff holds the burden of proof in this cause of action. The prima facie case for the party seeking affirmative relief would require the following elements: 1. Establishment of the originating transaction 2. Establishment of chain of title as to homeowner 3. Establishment of chain of title as to obligation 4. Establishment of chain of title as to note 5. Establishment of chain of title as to deed of trust or mortgage 6. Establishment of chain of securitization documents 7. Establishment of acceptance of subject loan into each successive loan pool 8. Establishment of true party in interest and standing 9. Establishment of 1st party payments 10. Chain of 1st party payments step by step to the true party in interest 11. Chain of 3rd party payments step by step to the true party in interest 12. Establishment of allocation of 3rd party payments and receipts to subject loan 13. Accounting for all receipts and disbursements from all sources 14. Establishment of default date 15. Establishment of current status of the loan 16. Establishment of balance due 17. Establishment of encumbrance and status 18. Allocation of encumbrance to the property (if encumbrance covers future payments other than principal and interest ² like taxes and insurance payable to 3rd parties, then the court must allocate a monetary value to the encumbrance for the benefit of the beneficiary)

The above elements would only be satisfied by the Court¶s acceptance of testimony and documents with adequate foundation to be admitted into evidence. It would require actual persons with actual knowledge based upon personal observation, participation or experience with whatever aspect of the transaction is within the scope of their direct examination submitted by the party seeking affirmative relief. Plaintiff¶s Exhibit C does not satisfy these elements. Non-payment by the payor shown on the note should not give rise to the presumption of a default because of the explicit reference to third party payments, insurance and credit enhancements in the securitization documents. The plaintiff should be required to have the

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testimony of a competent witness, perhaps the investment banker that created the securitization chain and/or someone from the trading desk of the investment bank, that would provide a record and status of third party payments, receipts and disbursements allocable to the loan pool in which the subject loan was securitized. Failure for the Plaintiff to provide such testimony would lead to the conclusion of a failure of proof, or, if the Court would allow, the Defendant¶s could cross examine Plaintiff¶s witness¶s regarding any third party made payments that would offset losses or principal in the loan pool. PLAINTIFF¶S CROSS MOTION ARGUMENTS ARE NON-SEQUITUR PLAINTIFF¶s argument on page 9 in paragraph 1 of its CROSS MOTION FOR SUMMARY JUDGMENT is non-sequitur. ³Pursuant to Kansas statute [K.S.A. 58-2323] DEFENDANT

MetLife was correctly assigned and transferred the Note and Mortgage.´

maintains this statute does not support the Plaintiffs argument. The mortgage assignments in this case are both MERS Assignments. As the Kesler Court held, ³Since MERS was not the owner of the Note and Mortgage, it could not assign the Note and Mortgage.´14 The Plaintiff goes on to say ³K.S.A. 58-2323 provides that ³the assignment of any mortgage « shall carry with it the debt thereby secured.´ However, as the Bellistri Court held ³the party assigning the rights to a debt must first hold the rights to collect on that debt before they can own the right to assign the debt.´15 MERS, the party assigning the mortgage to the PLAINTIFF in the instant case, was not the owner of the Note and Mortgage, nor did they have any rights to, or interest in, the Note and Mortgage.

14

Landmark Nat¶l Bank v. Kesler, 216 P.3d at 166 Bellistri v. Ocwen Loan Serv¶g, LLC, 284 S.W.3d 623-624 (internal citations omitted). Page 15 2/10/2011

15

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The PLAINTIFF was not the owner or holder of the DEFENDANT¶S Note, with rights to enforce the note or mortgage, at the time it filed its Petition. PLAINTIFF¶S assertions are not corroborated by evidence, are not substantiated with discovery, and are not validated with proof. So PLAINTIFF¶S interpretation of the Kesler Court decision: µAs the Kesler Court concluded MERS was not the real party in interest « rather the party which actually holds and owns the note and mortgage is the real party in interest ± in this action the real party in interest is MetLife.¶ is not accurate. Quite the opposite. The Kesler case supports summary judgment in favor of the DEFENDANTS. THE PLAINTIFF HAS COMMITTED FRAUD JUSTIFYING SUMMARY JUDGMENT IN FAVOR OF THE DEFENDANTS The PLAINTIFF has committed fraud by [a] not filing the required notice of assignments as required by the U.S. Property Code; [b] manufacturing and filing a fraudulent notice of assignment and furnishing it as proof to the DEFENDANT of their rights as holder or holder in due course with rights to enforce; [c] disregarding the rules and regulations of their Pooling and Servicing Agreements and Prospectuses by filing inaccurate reports with the Securities and Exchange Commission; [d] ignoring The Securities Act of 1933; [h] violating Kansas and each of their respective States¶ Business and Commerce codes; [i] violating Kansas and each of their respective States¶ Property codes; clear and convincing evidence that PLAINTIFF is not entitled to the relief sought. Pursuant to K.S.A. §60-511(1) the statute of limitations on contract fraud is 5 years. KANSAS STATUTE OF FRAUDS 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 creditors of 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.
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33-106: Specific cases where writing required. No action shall be brought whereby to charge a party upon any special promise to answer for the debt, default or miscarriage of another person; or to charge any executor or administrator upon any special promise to answer damages out of his own estate; or to charge any person upon any agreement made upon consideration of marriage; or upon any contract for the sale of lands, tenements, or hereditaments, or any interest in or concerning them; or upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized in writing.

ELEMENTS TO SUSTAIN AN ACTION FOR FRAUD ARE CLEARLY EVIDENCED IN THIS CASE The untrue, intentional statements made, signed, and sworn to by Michael A. Fisher, and the respective notaries in the ASSIGNMENT OF NOTE AND MORTGAGE and in the CORRECTED ASSIGNMENT were known to be untrue by the PLAINTIFF. The untrue

statements made in the pleadings and affidavits throughout these court proceedings were made with the intent to deceive this Court and these DEFENDANTS with reckless disregard for the truth. The untrue statements made at the Case Management Hearing were made so the Court and the DEFENDANTS would unjustifiably rely upon them and the Defendant¶s were forced to prepare a defense against them. For eighteen months these documents, assignments, affidavits, and transcripts have acted to the DEFENDANT¶S on-going detriment. Sunflower Mortgage Co., the originator and lender of the DEFENDANT¶S Note and Mortgage, went bankrupt on September 15, 2007. The above elements to sustain an action for fraud are clearly evidenced in this case.16

16

Bomhoff v. Nelnet Loan Services,Inc., 279 Kan. 415, 422, 109 P.3d 1241 (2005); PIK Civ. 4th 127.40.

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PLAINTIFF¶S INVISIBLE INK UNATTACHED EXHIBITS AND INVISIBLE ENDORSEMENTS On Page 10, paragraph 2, in its MEMORANDUM IN OPPOSITION OF THE WELLSVILLE BANK¶S MOTION FOR SUMMARY JUDGMENT AND CROSS MOTION FOR SUMMARY JUDGMENT, PLAINTIFF describes endorsements that do not exist on Exhibit B: Here, following the endorsements on the Note, [??] it was assigned from Sunflower to Ohio Savings Bank, from Ohio Savings Bank to First Horizon Home Loan Corporation, from First Horizon Home Loan Corporation to MetLife Home Loans, a division of MetLife Bank, N.A. See Exhibits A, B, and E. Thus, MetLife is the owner and holder of the Note, to which the Mortgage follows (Bank Western, 255 Kan at 355) and is entitled to enforce the terms thereof. See also K.S.A. 84.3-301. PLAINTIFF refers to Exhibit A (Mortgage) Exhibit B (Note) Exhibit E (Corrected Assignment). Exhibits B does prove the Note not assigned from Sunflower Mortgage to Ohio Savings Bank. But that is all it proves. The PLAINTIFF has yet to prove its holder-in-due-course status effective the petition filing date. The Plaintiff¶s last note is see also K.S.A. 84-3-301: Person entitled to enforce instrument. "Person entitled to enforce" an instrument means (a) the holder of the instrument, (b) a nonholder in possession of the instrument who has the rights of a holder, or (c) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to K.S.A. 84-3-309 or 84-3-418(d). A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument.

Since Plaintiff did not indicate which part of the statute applies to whatever point it is trying to make, (a), (b), or (c), Defendants decide the Plaintiff wasn¶t quite so sure, himself. PLAINTIFF attached Exhibit C to its MEMORANDUM and discusses a claim of damages on page 13, in paragraph 8. However, Plaintiff must prove the DEFENDANT¶S default has caused them harm. This claim of damages is from IBM Lender Processing Services. The

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Defendant¶s wonder how this proves MetLife has been harmed? The Plaintiff has failed to prove this ultimate element of its case. IBM Lender Processing Services has never serviced the DEFENDANT¶S Mortgage. A claim of damages, to be admissible as evidence, must incorporate records such as a general ledger and accounting of an alleged unpaid promissory note and the person responsible for preparing and maintaining the account general ledger must provide a complete accounting, which must be sworn to and dated by the person who maintained the ledger. The PLAINTIFF has not submitted the necessary affidavits and sworn testimony into the record. Rule 56(e), F.R.Civ.P., providing for the use of affidavits to support a motion for summary judgment requires that they be 'made on personal knowledge, shall set forth such facts as would be admissible in evidence, and * * * show affirmatively that the affiant is competent to testify to the matters' set forth therein.17 Defendants affirm Plaintiff¶s affidavit, Exhibit C, fails miserably towards establishing a prima facie case for summary judgment. Affidavits supporting a summary judgment motion must be based on personal knowledge and set forth such evidentiary facts as would be admissible in evidence. Nothing in the affidavit indicates that the Defendant¶s payment history is based on personal knowledge. To the extent that the affidavit relies on the attached payment history with IBM Lender Processing System, Defendants state the affidavit does not set forth the facts necessary to establish a prima facie case that the bank¶s purported payment history would be admissible at trial.

17

H. B. ZACHRY COMPANY v O'BRIEN and Beachner, d/b/a Asphalt Construction Co, App No. 8867, 378 F.2d 423 (citation) Confidential Page 19 2/10/2011

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Exhibit C is an Affidavit made on behalf of IBM Lender Business Process Services (³LPS), Inc., as Servicer for Fannie Mae. This affidavit is prepared and the Court Caption has already been changed to FANNIE MAE, PLAINTIFF (MOTION TO SUBSTITUTE PARTY HAS NOT BEEN GRANTED.) As such, DEFENDANT¶S move to strike the Affidavit, Exhibit C, from the PLAINTIFF¶S CROSS MOTION FOR SUMMARY JUDGMENT. In support: Tina Berry-Hansen, could have no personal knowledge of MetLife¶s, First Horizon¶s, and Ohio Saving¶s business records relating to DEFENDANTS C.T. Hansen and Kelly Hansen¶s loan, including without limitation, the petition filed in this action along with the Note and Mortgage executed by the Borrower attached thereto and the pay history relating to Borrower¶s loan. A true and correct, certified copy of Borrower¶s pay history is attached hereto as Exhibit A and incorporated herein by reference. . The PLAINTIFF¶S derisory attempt to meet the evidentiary requirements for a submission of a claim of damages is horribly insufficient. Even if Ms. Tina Berry-Hansen did keep a general ledger, and she had included a certified copy of the alleged unpaid promissory note, and she had sworn she was the person responsible for preparing and maintaining the account general ledger, what about the affidavits for those individuals from MetLife, First Horizon, Ohio Savings, and Sunflower Bank with personal knowledge? They know the DEFENDANTS. Tina Berry-Hansen has never had a single conversation with the DEFENDANTS. The record must be complete for a claim of damages to be admissible as evidence. A federal bankruptcy court in Massachusetts a court awarded the borrower $250,000 in emotional-distress damages and $500,000 in punitive damages. ³Ameriquest is simply unable or unwilling to conform its accounting practices to what is required under the bankruptcy code,´ a Judge Rosenthal wrote. An inaccurate mortgage payment history had been supplied by Ameriquest, a mortgage lender that is now defunct.

In re Nosek, 363 B.R. 643 (Bankr. D. Mass. 2007) (Rosenthal, J.), rev¶d 544 F.3d 34 (1st Cir. 2008). The Bankruptcy Court, however, was not ordered to nor did it vacate its April 25, 2008 Order for sanctions. In that comprehensive and thorough 17 page order, 2 the Bankruptcy Court sanctioned: (1) Ameriquest Mortgage Company (³Ameriquest´), the servicer of the loan in question, $250,000; (2) Ablitt & Charlton, P.C. (³Ablitt´), Ameriquest¶s counsel in the bankruptcy proceedings, $25,000; (3) Buchalter Nemer, P.C.
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(³Buchalter´), Ameriquest¶s national counsel, $100,000; and (4) Wells Fargo Bank, N.A. (³Wells Fargo,´ p/k/a ³Norwest Bank, Minnesota, N.A.´), the trustee of the securitization entity which holds the loan, $250,000. «The Bankruptcy Court was apprised of Ameriquest¶s actual role only after it awarded $750,000 in emotional distress and punitive damages to Nosek, and she brought an action for trustee process to collect the funds on July 27, 2007. Ameriquest, in its opposition to the trustee process action, stated in an affidavit that ³Ameriquest merely collects these funds on behalf of their owners. It does not own these funds . . .´ Id. at 2. «This was the first time the Bankruptcy Court learned that Ameriquest was not the holder of the loan, contrary to Ameriquest¶s representations throughout the course of the bankruptcy case. Id. As a result of this disclosure, the complaint for trustee process was amended to add Wells Fargo as trustee and dismissed as to Ameriquest. Id. at 3. The Bankruptcy Court then issued an Order to Show Cause why sanctions should not be imposed for the misrepresentations; reviewed the briefs; heard argument; and took the matter under advisement. Id. at 7. It eventually issued the Order, noting that ³those parties who do not hold the note or mortgage and who do not service the mortgage do not have standing to pursue . . . actions arising from the mortgage obligation.´ Compared to the Ameriquest case above, the PLAINTIFF in the instant case committed a great deal more offenses. It filed a petition, started a foreclosure action, stated it owned

DEFENDANT¶S Note, then dismissed its first action because its ASSIGNMENT OF NOTE AND MORTGAGE was filed after it¶s foreclose Petition. It then re-filed a second action against the DEFENDANTS after filing a CORRECTED ASSIGNMENT. DEFENDANTS aver

PLAINTIFF¶S first assignment is void, MERS does not hold notes, was not authorized by Sunflower Mortgage to hold or assign the DEFENDANT¶S Note, so the first assignment is void, and its second assignment is a nullity. The Kansas Supreme Court sent a message in September 2009 that you must be a party of interest to foreclose in this State. Homeowners all over the United States are able to save their

homes because Judges in Massachusetts, New York, Ohio, California Arkansas, Nevada, and Missouri are ruling with the Kansas Supreme Court on MERS Assignments. Decisions all over

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the country are being reversed and vacated. An important article is attached hereto marked Exhibit Y and is made a part of this Amended Response as if fully set forth herein. The Kansas Supreme Court helped homeowners last September, 2009, and now it is time for our Kansas District Courts to join Massachusetts, New York, Ohio, California Arkansas, Nevada, and Missouri in enforcing this landmark case decision. TITLE IS THE RIGHT TO ENJOY POSSESSION OF THAT WHICH IS OUR OWN One of the principles of liberty upheld by our American heritage of law is the right to hold title to private property. Property can be land or things, money or securities, promises or judgments. All these are forms of property in which we are given the right by government to hold title. This maxim tells us title is the right to enjoy. Title is the right to possess. Title is the right to say such and such a thing belongs to us and to no other. If we hold title to a particular property, whether it is a home or a collection of rare heirlooms, we have the right (protected by our courts) to other way to describe it. We have both barely hung on mentally, financially, physically. CONCLUSION The law of the case is such that no fact issues remain that can affect the outcome as a matter of law. Though there remain disputed issues of fact, none of the issues of fact is material to the
outcome. Where no issues of material fact alleged by the complaint remain for the Trier of fact to decide, summary judgment is proper to conserve valuable judicial energies and to spare litigants unnecessary costs and further delays. DEFENDANTS have met the burden of demonstrating the nonexistence of any genuine issue of material fact alleged by the complaint by tendering competent evidence and providing controlling case law and statutory authority to demonstrate that no facts remaining in dispute are material. The

DEFENDANT¶S have proven not only do no material facts exist that will alter the outcome of this case at trial, but sufficient element facts do not exist to justify having filed this cause of action in
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the first place. The DEFENDANT will prevail because the PLAINTIFF was not the owner of the DEFENDANT¶S Promissory Note when they filed their original Petition, the moment standing must be established.
Courts ruling on summary judgment motions are not called upon to weigh evidence but rather to conclude only if there remain competing issues of material fact. Where the law of a case, as here, is so compellingly controlling that the material facts already established dictate a result that cannot be altered by the Trier of fact making any finding of immaterial fact the trial court should grant summary judgment as a just and economical use of its limited judicial resources.

WHEREFORE, the DEFENDANT HANSEN¶S move that the PLAINTIFF¶S CROSS MOTION FOR SUMMARY JUDGMENT be denied, that the mortgage executed in favor of MERS as mortgagee shall be released and forever barred, that the Wellsville Bank be entitled to a judgment of $200,000.00, plus attorneys fees and costs for bringing this action to make them whole, that the C.T. Hansen be entitled to a judgment of $200,000.00, plus a Quiet Title action removing all encumbrances to his home, that Kelly L. Hansen be entitled to a judgment of $200,000.00, and for such other and further relief as the Court deems just and equitable. RESPECTFULLY SUBMITTED this Wednesday, February 09, 2011,

Clarence G. Hansen, DEFENDANT 83 E. 1250th Road Baldwin City, KS 66006 785-760-2337 Phone 866-409-9552 Fax hansencars@msn.com
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Kelly L. Hansen, DEFENDANT 33605 W. 88th Street De Soto, KS 66018 913-529-9837 Phone 866-409-9552 Fax ctsmyhon@yahoo.com
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CERTIFICATE OF SERVICE I CERTIFY that this CHAMBER COPY of the foregoing was sent U.S.P.S. overnight express delivery signature required to Sherry Bernhardt, Administrative Assistant to the Honorable Robert W. Fairchild on Wednesday, February 9, 2011. I CERTIFY that this ATTORNEY COPY of the foregoing was provided by fax transmission to R. Scott Ryburn, Attorney with ANDERSON & BYRD, LLP. Counsel for WELLSVILLE BANK, delivered to fax 785-242-1279, on Wednesday, February 9, 2011. FURTHER, I CERTIFY that an ATTORNEY COPY of the foregoing was sent U.S.P.S. overnight express delivery signature required to Bob Swiss, Attorney with MARTIN, LEIGH, LAWS & FRITZLEN, P.C., Counsel for PLAINTIFF, on Wednesday, February 9, 2011. FINALLY, I CERTIFY that this CLERK COPY of the foregoing was sent U.S.P.S. overnight express delivery signature required to the Clerk of the Douglas County District Court on Wednesday, February 9, 2011.

Clarence G. Hansen, DEFENDANT 83 E. 1250th Road Baldwin City, KS 66006 785-760-2337 Phone 785-760-2337 Fax hansencars@msn.com

Kelly L. Hansen, DEFENDANT 33605 W. 88th Street De Soto, KS 66018 913-529-9837 Phone 866-409-9552 Fax ctsmyhon@yahoo.com

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Exhibit Y
http://dailybail.com/home/man-beats-bank-and-creates-mortgage-banking-mers-bomb-lost-p.html

Very interesting story, and not without ramifications for other states. Walter Keane poses for a portrait at his office. Keane filed and recently won a lawsuit that resulted in several homeowners in Utah getting title to their property, even if they owed the full mortgage, all because of chaos introduced into the nation's property recording system by MERS. The attorney for another man in Draper, Utah, says he has won two other cases this way, and another attorney in Utah got a default judgment giving title to borrowers who owed $417,000 on a home. Utah Professor Chris Peterson weighs in on the significance of the rulings.

In Utah, missing paperwork means a lot; Borrowers gain title for free.
David Dayen at FDL Salt Lake City Tribune A Utah court case in which the owner of a Draper townhouse got clear title to the property, even though he still owed $132,000 on it, raises new legal and financial questions about a property-records database created by mortgage bankers. The award of a title free of liens means that whoever owns the promissory note on the Draper property ² likely a group of faraway investors ² no longer has the right to foreclose to collect on a delinquent loan. Indeed, the townhouse owner has sold the property and kept the money. Those who own the promissory note probably don¶t even know what occurred. Decisions such as the one 3rd District Judge Glen Iwasaki handed down in the Draper case could have a big impact as the state wends its way through hundreds of lawsuits involving foreclosures, loans on properties for more than they¶re worth and predatory lending practices that led Utahns to lose their homes as the real-estate bubble burst. More from David Dayen... This is all tied up with MERS, the online database that has stood in for the land records system in as many as 60% of the mortgages in America over the past decade or so. As we¶ve seen, MERS is essentially a way for the largest banks to avoid recording fees, by naming them as the mortgagee on the original record and then transferring the mortgage and the note through their database. The problem is that MERS is named as an owner on loans in which it has no financial interest, and the judicial system doesn¶t yet know how to manage that. This has confused the hell out of title insurance companies, who cannot determine who holds the note or even who can collect payments on it. As a result, in this case, the courts and the title company failed to figure any of that out, so they gave title back to the homeowner. The attorney for the man in Draper, Utah, says he has won two other cases this way, and another attorney in Utah got a default judgment giving title to borrowers who owed $417,000 on a home.
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The owners of the note could always go back and try to recoup this money, but as Christopher Peterson of the University of Utah says in the article, MERS calls into question their ability to succeed: Under laws adopted by all 50 states, the owner of a ³negotiable instrument´ such as a promissory note must be in physical possession of the document, said Peterson. Otherwise it would be like someone trying to cash a photocopy of a check instead of the actual check. ³One cannot be a holder of a note unless one is in physical possession of that note,´ he said. But Peterson said evidence is coming out in courts that shows the actual promissory notes or mortgages signed by buyers were not transferred as the notes made their way into the mortgage-backed securities investment pools. That could mean in these cases that no one is in a position to try to collect because the actual notes are lost or destroyed, potentially making some promissory notes investors think they hold worthless.

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DEFENDANT HANSEN¶S AMENDED RESPONSE TO PLAINTIFF¶S CROSS MOTION FOR SUMMARY JUDGMENT Exhibit Z

Kellylhansen143@gmail.com

http://livinglies.wordpress.com/2011/01/31/securitizers-looking-for-judicial-bailout-bankswalking-away-from-homes/

INVESTORS NEVER CONTACTED SERVICERS REPORT THAT INVESTORS DENIED MODIFICATION
Hundreds of Judges across the country have put foreclosures into a waiting pattern demanding that the parties complete the HAMP modification procedure before they rule on the foreclosure or any defenses and counterclaims. The attorney for the pretender lender usually comes back with what Judge Redfield Baum, Federal Bankruptcy Judge in phoenix, called a haphazard array of answers usually amounting to a a report that the "investors turned down the modification." IN FACT, THE INVESTORS WERE NEVER CONTACTED NOR WERE THEIR REPRESENTATIVES OR ATTORNEYS, MANY OF WHOM ARE SUING THE INVESTMENT BANKERS FOR SELLING THEM BOGUS SECURITIES --- THE EQUIVALENT OF WHAT WE HAVE CALLED HERE A "HOLOGRAPHIC IMAGE OF AN EMPTY PAPER BAG." ACCORDING TO DIRECT INFORMATION RECEIVED FROM INVESTORS AND OFFICERS REPRESENTING DEUTSCH WHICH IS OFTEN USED AS THE NAME OF THE "TRUSTEE" FOR THE INVESTORS, THE ENTIRE PROCESS IS CONTAINED WITHIN THE SERVICER'S ORGANIZATION. This means that the servicer is pretending to go through a modification procedure, after acknowledging that the servicer has no stake in the obligation, note or mortgage, and after putting the borrower through hoops and ladders, lost papers, resubmissions, and a variety of other stall tactics then reports back, often directly to the Court that the investors turned down the modification. Our best information here is that no investor has EVER been contacted regarding a modification or settlement of ANY mortgage at any time. Based on our information no such attempt was ever made or intended and the lawyers who made those representations in Court knew it, inasmuch as it was always the intent of the servicer to create the illusion of a modification process rather than act as the go-between in an actual settlement process. Further, based upon the information we have obtained directly from people involved in the securitization process, even Deutsch Bank, the most often used name as "Trustee" of asset backed securities pools, does not have a single Trustee from their Trust Department involved, nor are these
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deals considered to be within the scope of duties of their Trust department. To the contrary, senior officers of Deutsch confirm that they neither have the duty nor the power to approve modifications or settlements and that they have virtually no contact with investors. It appears that the ONLY thing that "Trustees" actually do is a collect a fee for pretending to be a fiduciary (Trustee) much like the loan originator with the homeowner was paid a fee to pretend to be a lender. Courts are not pleased when they are the used as a vehicle for fraud. They are especially not pleased when large law firms and large financial institutions in whom the Court reposes a certain amount of trust, perpetrate such a fraud. Lawyers and pro se litigants are now asking for proof that the investors were presented with a modification and proof that the investors turned down the modification. The attorneys for the pretender lenders are stone-walling for the same reason that they stone-walled on the mortgage documentation --- no such evidence exists because nothing was ever done. This was probably the reason why Levitin called for elimination of the servicers from the modification or settlement process and installing a government sponsored agency to act as the go-between. The servicers and pretender lenders are fighting this proposal tooth and nail because if it went through, the entire lie would unravel. It would become obvious that many "trusts" never existed or do not now exist, many investors have already elected their remedies and the the pool was dissolved, and the ownership of obligation, note and mortgage has never been transferred.

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