You are on page 1of 28

fI!, ..

• AAi~ ,~nv!:.. W,-Wll



\... ...

7325 S. Potomac street, Centennial, CO. 80112

Appellee U.S. Bank National Association case No. 2010CV2022
Div: 202

Appellant John Peters, Pro Se APPEAL IN CASE NUMBER 2010CV2022 (County Court case Number 2010C7693) The Honorable J. Mark Hannen Presiding

Regarding the property locally known as: 5440 South Colorado Boulevard, Greenwood Village, Colorado 80121 (hereinafter the "Property")

John Peters Appellant, Pro Se 5440 South Colorado Boulevard Greenwood Village, Colorado 80121 Phone: 303-779-6648


Table of Contents Table of Authorities Statement of the Issues in this Appeals case Statement of Background Facts Arguments
Conel usion .

3 6 7 10






III """


" •••




.. ,.




,.. .. II



II ..

fI"" ..



.. ,.

'" 11 II






534. 72. 2d 73 (1960) Coppinger v. 175. v.3d 142.1121 (10th Cir. 1985) Concord Corporation 20 12 23 14 15 v. 355 P.17 3 . Inc.TABLE OF AUTHORITIES CASES Alpine Associates. 1121 (Colo. 385 F. 3rd 1107 (9th Cir.541 (1986) Bulloch v. 2d 115.. 2004) 13 10 11. 285 F. Municipality of Guaynabo. 63 F. 149-50 (1st Clr.S. App 1990) American Surety Co. 2d 1119. Coppinger. Scott. 475 U. 763 F. KP & R. 2002) Dunsmore v.274 P. v. 2d 328 (1954) Deniz v. 964 (10th Or. 2d 961. Huff! 10 144 Colo. United States. Inc 802 P. 1933) Bellistrl case 284SW yd 619 Bender v. United States. 130 Colo. Williamsport Area school Dist.

Williams. Crall. 1989) 14 High v.Goodwin v. 68 A. 520 P. 07-463 (U. 2d 305.. 842~843 (Colo. App 1991) 14 Summers v. 2d 662. Bank v. 799 P.17 U. 2009) Weber v.. State of New York 2nd Dept. March 3. 137 Colo. No.S. District Court. 2d 5788. (1974) 21 Platte Valley Savings & Loan v. 821 P. (Supreme Court. 3d 752 890N.S.D. 2d 365 (1958) 12 11. 2d 837. Southwestern Insurance Company. Eathe Island Institute.324 P. 2009) 9 4 . 307 (Colo. Collymore. 269.

.R.21 21 (throughout) 6-22 Iii """ " •• " 1111- 1.R..C.P.14 20 13 13 C. .R.C.R.C.. 5 15 13. 5 .1 1.Statutes and Rules C.S. 38-38-101(6) F. Sec. "' .R.:IIII ~ •••• " . II 1 ••• C...110 11: ••••• .3 C. 120 C. ..Pp 23 18 U. 60(b)(3) C. 38-38-100..R S.R.C... "' " ••••••••• ""1 ••• " * "'" •••• 11: 111 .RIC. One :11*.S.C. 38-38-100.3(20) C. 17(a) 13 13 17.P. .P.R.S. .R.C.P.P.1 ii *. 12(h)(3) C. .".S. 60(b)(4) C. 38-38-101 " .

BANK) is the Holder of Evidence of Debt as the term is defined in C. the FORCIBLEENTRYAND UNLAWFULDETAINER(FED) hearing should never have been held in County Court as the County Court has a jurisdictional limitation 6 .S.S. which governs which notes are accepted into the "Mortgage Backed Security Agreement" (MBSA) of which U.3 but a closer look at the Pooling and Service Agreement (PSA). The Appellant pledges to do the best he can to comply with all usual practices of the court but without the extensive training of a Bar-authorized Attorney invariably not all practices will be adhered to because they are not understood. shows a number of violations in the requirements for admissions Into the MBSAthereby precluding acceptance by the MBSAof the note. with the fairness courts provide the Appellant requests that the court allow submissions of claims and evidence and if the court rules against the Appellant the court also provide curative Instructions as to how to repair the paperwork and allow the appellant to do such with adequate time to make the repairs and reflle In accordance with the court's instructions.S. BANK is the Holder of Evidence of Debt In accordance with C. 38-38-100. BANK is the trustee. BANK NATIONAL ASSOCIATION.R. In addition Bar-authorized Attorneys have priced themselves out of the market for everyone other than the wealthiest among us thus forcing people like myself to avail the court without their expertise of court procedure. Thus nullifying the claim U. Thirdly.AS TRUSTEE(hereinafter known as U.S.R.STATEMENT OF THE ISSUES IN THIS APPEALS CASE First. The NOTICE OF ELEcrION AND DEMAND FORSALEBY PUBUC TRUSTEEclaims that U. The second issue in this appeals case centers on the claim that U. I am sure It Is not the intention of the court to exclude citizens of the United States from seeking redress from the courts simply because they have sought other goals in life and not pursued a legal career but now find themselves in need of the services the court provides. Appellant asks the court to take notice that the Appellant is not an Attorney and therefore not hold the Appellant to the same strict pleading standards as It does of Bar-authorized Attorneys. 38-38-100.S.3. BANK is the Holder of Evidence of Debt.S.S. So.

ignore established principles of sound financial (management) judgment.000. Any values of issues in question exceeding $15. The final Issue is the timing of the Rule 120 hearing. The banks promote the short sighted idea that taking the equity out of your house will satisfy today's wants and needs while they take the longer view and know that when the next recession or 7 . In question here is a loan of $1. they lure unsuspecting citizens into unsound financial practices by advertising the good life and telling the citizens of Arapahoe County.000 and appellant counterclaims of consumer protection violations exceeding $3.000. the Public Trustee Is to verify the legitimacy of the claim made by anyone who brings a NOTICE OF ELECTIONAND DEMAND(NED) to the Public Trustee's office. The issue here becomes the Public Trustee did not properly verify the claim when presented the NED.of $15.000. This is done by having the original note or a certified copy of the original note as an exhibit to the NED. Fourthly.000 are to be the prerogative of the District Court. and obfuscation of their dealings behind questionable if not illegal financial instruments. The original lender properly recorded the Note and Deed of Trust into the public record at the Clerk and Recorder's Office but there are no subsequent recorded sales or assignments of the Note and Deed of Trust in the same public record which should have alerted the Public Trustee that more scrutiny should be given to the issue of "holder in due course" or standing. STATEMENT Of BACKGROUND FACTS The quote "Foreclosure Crisis" has been caused by large banking concerns and \'Wall Streef' taking every opportunity to cut corners. Seeming innocent.440. Statute sets out a very specflc time line in which events must take place once the NED is taken to the Public Trustee and the proper timeline was not followed. Never do the banks suggest that through the normal course of events prices inflate as well as deflate and it is a cycle which occurs regularly over the course of years if not properly regulated. Clearly there is an issue of the County Court jurisdiction. Colorado and the United States they can have it all by unlocking the equity of their homes.

In selling the notes the banks have been fully reimbursed for any money advanced to citizens as well as have a tidy profit on the interest potential of the note. Often times Pooling and Service Agreements (PSAs) allow banks to keep whatever they are able to collect if the note defaults because the Pool has already been made whole by the \\Credlt Default Swaps" or "Derlvetlves" which insure the Pool's investors. The faster banks can lure citizens into a mortgage or to refinance a mortgage the more money the banks and Wall Street can harvest. In many instances the banks do not have to put up any of their own money because the Pool has pledged to buy notes before they are originated. The securitization process starts often times before the note is closed making a great deal of money for the banks with rapid turnover of the bank's money. With the inevitable economic downturn the banks are In a position to make money on foreclosing in the fees they charge as part of the servicing of the note. The banks which are the Pool's Trustees get huge windfall profits when they fraudulently foreclose and turn around and sell the property in which they have no expenditures and no interest but are able to keep the money.heaven forbid depression comes along they will be in a position to capitalize on the citizen who is no longer able to pay his mortgage. In addition part of this securitization process includes gaining the IRS designation of the Pool as a REMIC (Real Estate Mortgage Investment Conduit) which has very strict rules in order to avoid double taxation on Pool income. The outcome of this circle of loan origination and securitization is a system that cares nothing about the citizen and good financial practices but rather views the citizen and his property as a crop to be harvested for the greater profits in the securitization of his note. One of these rules is the note must legally be the property of the investors of the Pool with all rights residing with those Investors. They of course no longer own the note but only service it because they have sold it into a Mortgage Backed Security (MBS). In addition the notes used to create the Pool are no longer notes but rather they are permanently converted into a security which can be traded like stocks 8 .

S. This lasted several months. the savings by eliminating county recorder fees with associated expenses is significant plus they get to accelerate the cycle of loan origination and securitization. By cycling their money many times over. UCClaws.S. 2011 The US Department of the Treasury. Bank along with many others to call a moratorium on their foreclosure practices. This is what happened in my case. More recently on April 13. I find it a questionable practice because an honest understand of the underlying notes in any particular Pool gives the banks an unfair trading advantage equivalent to insider trading. In their greed the banks cut out the counties where the long standing practice of recording Notes and Deeds of Trust for the legal principle of keeping real property ownership clear for citizens and government as well is upheld. Citizens are not the only ones taken advantage of. The question of who has the actual right to a parcel of real property is answered accurately and easily for a nominal fee. Bank of America and U. The Office of the Comptroller of 9 . The bank's reason quite simply is to eliminate those recording fees and associated expenses. Bank were two of the 14 banks agreeing to the Consent Order where they were given 120 days to revamp their foreclosure processes so they would be In compliance with consumer protection laws. and State and County Real Property laws. They can trade in these securities just like any other stock or bond by holding long or short posltlons. There was a time in February 2010 where 23 State Attorneys General called for and got Bank of America and U. Courts. Once securitized on Wall Street the banks have one more scheme up their sleeves. Office of the Comptroller of the Currency agreed to a Consent Decree with 14 banks in lieu of a Cease and Decease action against those banks. State Attorneys General and Federal agencies are getting wise to what is happening.and bonds and cannot be reconverted back into notes. The loan origination or underwriting department speaks with the trading department and pertinent information is transferred to the bank's advantage by influencing the posltlon the trading department takes in the market.

Col/ymore. Commonwealth of Massachusetts.. Then in Massachusettsa case is u. 10694. Land Court Department (Boston) ARGUMENT I. Ibanez. For example. To not have resolved subject-matter jurisdiction issues in the "Rule 120 hearing". State Supreme courts in New York.s. 08-Misc-386755. a case in New York is u.Currency over sees and enforces regulations on the banking industry and acts when it finds serious violations in bank business practices. A deferential standard of review Is not appropriate because the underlying judgment is void due to the lack of subject-matter jurisdiction. 2d 5788. 08-Misc-384283 and Wells Fargo Bank NA v. Ibanez. Massachusettsand elsewhere have ruled in favor of homeowners and dismissed foreclosure case brought by banks because the banks attempting foreclosure did not have the proper authority in which to foreclose. Bank's application for 10 . B.S.s. Bank. Subject-Matter Jurisdiction Must Be Conferred Upon Every Court As a Condition Precedent to the Resolution of Any Further Issues and is Therefore a Prerequisite and Paramount A. Bank v. Bank National Association v.D. renders all orders stemming from U. v. 68 A. and is a per seabuse of discretion under CRep 60(b)(4). MA. Supreme Judida/ Court of Massachusetts (Boston) which agreed with and upheld lower court decisions u. Trial Court. 3d 752890 N. (~d Dept 00).s. whether challenged then or later. LaRace.

To not have resolved subject-matter jurisdiction issues in the F.E. hearing (appropriately challenged). 2002) where it was held "the Court should resolve an FRCP 12(b)(1) motion before" "it can determine other Issues". renders all orders stemming from U. II As to challenging later.S.D.D. Bank's F. void ab initio as a matter of law. A reason put forth by the court in one of the Orders denying setting aside a void order was that Homeowner failed to timely object to the 120 motion. 2d 73 (1960).S. which was defective on its face. 355 P. "Jurisdiction cannot be assumed or 11 .Authorization to Foreclose. See: Deniz v. Municipality of Guaynabo/ 285 F. Complaint. how or when such issues were discovered.72. Huffl44 Colo. Becoming more learned had nothing to do with whether defects discovered later existed at the instigation of the case worthy of examination by the court. hearing.3d 142.E. Bank to evict this Homeowner from her property. 149-50 (i" Or.S. including specially the order granting the Writ of Restitution leading to current effort by U. "Void deeds do not convey title. and are wholly ineffective to interrupt one's right to possession of property therein described. specifically the Order Authorizing the Public Trustee Sale leading to the sale of Homeowner's property which in turn provided U. that Homeowner became more learned after research.E. as well. Concord Corporation v. there would never be any finality to this or any case. the law that allows subject-matter jurisdiction or fraud to be raised at a later date does not Inquire as to why. and that if the court accepted as a reason why Homeowner objected to the ruling after the hearing. Bank with defective evidence (invalid Confirmation Deed and invalid Certificate of Purchase) to present in the F. void ab initio as a matter of law. This case should have never reached finality having nothing to do with later research or time of dlscovery or when Homeowner filed his challenges.D.

Williams. Bank failed to confer subject-matter jurisdiction upon both courts in both hearings by neglecting to provide a competent fact witness (which the attorney for U. 175. Bank was a Real Party in Interest i. This is particularly important when the jurisdictional issues implicate issues. Weber v. who the Real Party in Interest was that issued the Ratification of Commencement. 274 P. 269. 130 Colo. timely indorsed and never bifurcated in open court and make an in-court presentment of the original Note together with the original Deed of Trust. other than by implication or representation. to provide real evidence. 324 P. timely indorsed and never bifurcated.S. as to whether U. when the judge has a non-discretionary duty to require compliance.2d 328 (1954). notwithstanding any Colorado law to the contrary (See: Coppinger v.2d 365. and (iii) who was able to proffer the original Note together with the original Deed of Trust. 137 Colo.S. Coppinger. Bank is not): (I) who was able. which are also substantive and dispositive In nature and. other than by implication or representation. to the Court and to Homeowner herein. U. or (il) if not a Real Party in Interest had In its possessiona Ratification Of Commencement from a Real Party in Interest and able to prove. moreover.e. and (iv) who was able to 12 .S. with no exceptions" and the failure to overcome this burden can be raised at any time by either party.presumed and for any Court to proceed with any matter it must first have both subject-matter jurisdiction and jurisdiction in personam. that it established its QW!l legal interest or an "economic interest" or was the party entitled to a legal or economic interest or that It suffered an "injury in fact". as provided in part in the Uniform Commercial Code 3-309 and other controlling authorities which provide that "only the party in de facto and de jure possessionof the original promissory note have standing to compel payment of the note or pursue any related remedies" and that they must produce the original in court for assessment as to its authentlotv.

demonstrate. and (vi) produce evidence that U. No. including but not limited to (1) the FR2046balance sheet (OMB #'5 2046. 475 U.S. and demonstrate that such documents exjsted and were recorded prior to the commencement of the action in question. other than by implication or representation. "It is well established that the court has an independent obligation to assure that standing exists. and (5) the RC-S & RC-8 call schedules. Bank.. Bank has authority to conduct this foreclosure action in the State of Colorado. 2049.S. regardlessof whether it is challenged by any of 13 .S. In accordance with Generally Accepted Accounting Principles (GAAP) (more than a payment schedule of payments and late fees. as well. but has a duty. 07-463 (U. in support of its claim. but also precluded Homeowner from cross-examining such a witness under oath as to the authenticity of any of the representations made by the attorneys for U. U. and 2099) (2) the 1099 OlD report (3) the S-3/A registration statement (4) the 424-85 prospectus. under State Laws seeming to support the denial of Due Processwhen the NOTEwas signed under the Laws of the United States. Once the failure of providing jurisdiction is challenged. Bank and a valid and timely assignment of the Deed of Trust accompanying it and to show the pecuniary consideration for the assignment. and (v) able to proffer an authenticated account and general ledger statement. 541 (1986). See: Summers v. Bank was a Holder In Due Course.S.S. Earth Is/and Institute. Bank's failure to provide a competent fact witness not only prevented the introduction of real evidence. the burden of proving up subject-matter jurisdiction shifts to the party bringing the action and the court not only may not supplant the evidence.S. and could produce a valid indorsement of the Note to U. 534. to insure that It has jurisdiction before moving rorwerd with other issues. that U. March 3.S. 2009) (citing Bender v. Williamsport Area School Dist. as so stated on the face of the Promissory Note.

3rd 1107 (9th Cir. 17(a). The fact that Judge Chauche was without sufficient information should not be a reason to rule In favor of U. the pleadings are defective on their face in relying on recorded interests that contradict the interests claimed in the Statement by Attorney for Qualified Holder ("Statement") under C.R. Bank to establish with competent evidence.E.P. as here. United States. (holding that in order to establish standing.R.S. as a threshold matter. a plaintiff must not only allege an "injury In fact'. Bank could produce the only documents (Confirmation Deed and Certificate of Purchase) available in the court room at that time. In the F.Section One.the parties.S.S. Including 18 U. 38-38-101. the court must dismiSSthe action.2004). that it is the Real Party in Interest In the proceeding and therefore has standing to bring the action. has the right to invoke the aid of the court in order to vindicate the legal interest in question. a related Rule. 358 F.S. requires that every action "be prosecuted in the name of the Real Party in Interest. but must also assert their own legal interest as the Real Party in Interest).D.S. CRCP12(h)(3)." The Real Party in Interest is that party who." This is particularly important where. The prevailing law holds to the contrary. C. Bank simply because U. hearing the judge not only refused to insure that jurisdiction be conferred. by virtue of substantive law. "The Real Party in Interest. This is in direct violation of all the laws and Rules pertaining to subject-matter jurisdiction.C. for example. The burden is on U. states that if the court determines at any time that it lacks subject-matter jurisdiction. In this regard. In Dunsmore II.C. but insisted that for the court to rule in Homeowner's favor that Homeowner survive the burden of proof that subject-matter jurisdiction did not exist and that Homeowner provide evidence that the Trustee Deed was defective when it was a matter of record and already provided to the court. albeit defective. within the meaning of FRCP 14 .

See: Goodwin v. one who is actually and substantially interested in the subject-matter. 779 P. v. Crall. the one who holds the legal title is the Real Party in Interest]. 1989) wherein It was stated that the trial court in a proceeding under C.R. The "Statement" filed pursuant to C. 15 . if successful.38-38-101 in the 120 hearing identifies U.120 "must consider whether the moving parties are the real parties in interest. Bank as the "current beneficiary of the Deed of Trust and states that a true and correct copy of the recorded Deed of Trust Is attached. is the person or party who will be entitled to the benefits of the action. Bank does not hold this original Deed of Trust.S. Platte Valley Savings & Loan v.2d 305. 307 (Colo.S.S." It most certainly was not attached as U. the Real Party in Interest is the person who holds legal title to the Note. in an action on a promissory note. the only Deed of Trust filed in Arapahoe County is the Deed of Trust recorded with the Arapahoe County Clerk and Recorder's was filed by Bank of America in August 2007.R. 964 (10th Or. The Motion for Order Authorizing Sale in this matter suffers from the same defects. Implicit in Rule 120 is the requirement that the party seeking an order of sale demonstrate that it is a Real Party in Interest and has a valid interest in the property allegedly subject to the power of sale. District Court. In direct contradiction of representations by U.2d 837. II It is well established in Colorado law that. See also: American Surety Co. Bank.C.2d 961. App 1991) [plaintiff who had elected to not assign promissory note to HUD was the Real Party in Interest in an action for deficiency judgment]. as distinguished from one who has only a nominal/ formal. 842-843 (Colo. 1933) and citations therein [under Colorado law. 63 F. or technical interest".12(b)(6).P. Scott.S. 821 P.

in addition to the basic elements of its case. U. at best U.S. being held together in original form with the evidence satisfactory in character to protect the defendant from another action by the alleged asslqnor". including the consideration.S... and at the time the case was filed. Bank must prove that it was the Real Party in Interest both at the time its claim arose. Bank has an Unsecured Note 16 . App. i.3(20) does not eliminate the threshold requirement that it prove that it is the Real Party in Interest in any of the proceedings or that the availability of a collateral attack eliminate the same requirement. American Surety. The asslqnment must be proven " . v. KP & R. Bank has failed to establish that it is the Real Party in Interest.38-38-100.S.S. Further.S. complete and timely assignment of the Note together with the Deed of Trust that is sufficient to protect Homeowner from other actions by any alleged assignors. Alpine Associates. supra). Homeowner denies it is In default in any amount to U. without a valid assignment of the Deed of Trust.2d 1119. from the assignor. and..e. U.Furthermore. 1121 (Colo. its status as assignee with evidence that shows a full and complete assignment. The burden is on U. Inc.S. "Any attempts to remedy defective pleadings after the fact would deprive Homeowner of an opportunity to review and challenge the validity of any purported aSSignments". 1990). Bank. Bank to come forward with evidence that it did hold legal title to Homeowners promissory note as obligee on the original note (Platte Valley. Finally. Bank's attorney's mere Statement that it is a "Qualified Holder" under C.S. that party must prove. as U. or that it had a full. supra). that it is the party to whom payments of any valid amounts due under the Note are payable. 802 P. Inc.R. (Alpine Associates.. supra at 1121. supra. Alpine ASSOCiates. again. where a party's status as a Real Party in Interest depends on an assignment.

S. nor can any of this evidence be cited from the records of the Arapahoe County Recorders office or the courts. or that It suffered from an "lnjulY In fact". In summary. Anything Short of Full Disclosure of all Known Pertinent Facts is Perpetration of Fraud Upon the Court. A deferential Standard of review is not appropriate when the underlying judgment is void due to 17 . Bank failed to prove up Its own "legal interest" or "economic Interest" or any pecuniary interest in the Note and therefore that it was entitled to a legal or economic interest. U. U. Bank Is simply a Trustee for a mortgage backed security and has no funds at risk and is simply an Interloper creating a cloud on Homeowner's property title. Bank did not demonstrate that it was a Real Party In Interest. Which Can Be Raised At Any Time. therefore a failure of subject-matter jurisdiction.S. U.S. and Renders Void Any Decree or Order Thereafter Entered A. II. therefore no Standing. therefore any order flowing from the respective hearings are void ab initio and are without any force or effect. or that it had an economic loss.and not ability with that instrument to have foreclosed on real property.

Bank to disclose in full all pertinent facts. Judge Chauche dismissed the counterclaim without a hearing. it has an absolute duty to investigate alleged fraud.2d 328 (1954).S. Bank was a Real Party In Interest. and that it therefore had Standing and was able to confer upon the court subject-matter jurisdiction when in fact it could not and did not. that U. Bank's perpetration of fraud on the courts.2d 365 (1958). that It had an economic interest ('injury in fact"). Coppinger v. Anything short of full disclosure of all known pertinent facts is a fraud upon the court and renders void any decree or order thereafter entered.C.P. C. and it is a per se abuse of discretion under C. Homeowner in his Answer to the FED action counterclaimed for fraud. Coppinger. that it had a Security Interest in Homeowner's property. It is fraud of the failure by the attorney for U. 269. due to the representation by implication. if successful". and moreover. moreover. never bifurcated giving it a legal interest. 175. 60(b}(3). in that it had an assignment of the Note together with the Deed of Trust. 324 P.S. and.S. 130 Colo. Although FED hearings are considered summary proceedings. Weber v. The actual filing of the FED complaint by U.the perpetration of fraud upon the court. as here. only. 274 P. Bank is further perpetration of fraud upon the 18 . Homeowner further asserts that the Order authorizing sale of Homeowner's property.S. the court does have jurisdiction to decide the merits of a counterclaim If "it would excuse the underlying obligation sought.R. perpetrated on the courts. B. Williamst 137 Colo. The recordings in the Arapahoe County Recorders office will show the contradictions and inconsistencies. D. and the Order for a Writ of Restitution to issue are both orders void ab initio due to U.

S.S. Bank was the rightful owner of Homeowner's property when they knew it not to be true. D.courts.S. Bank. Bank has a greater burden of proof than simply making a representation by implication as to what evidence it has or may have for conferring subject-matter jurisdiction upon the district courts. Since there was no concrete evidence of record in any of the courts.S.S. leaves all of the courts attending this case. was an egregious misrepresentation by the attorneys for U. It would seem obvious that the representation as to the evidence by implication. without subject-matter jurisdiction and without authority to render anything other than a void judgment It allowed U. that it had a Security Interest in Homeowner's property. Moreover. set out herein. which can be raised any time. ii) The representations were false as the attorney for U. The elements that Homeowner asserts to allege fraud with particularity is as follows: i) The attorney for U. that it had an assignment of the note giving it a legal interest. only.S.S. Bank against Homeowner's Property. only. The attorneys for U. U.S. was raised appropriately in all cases and is further grounds for dismissing the cases brought by U. that these above as they could not. Bank did not produce any of the They have merely represented by implication. Absent real proof of the existence of any or all of the necessary elements of subject-matter jurisdiction. representing that these elements exist when they don't is fraud upon the Court. that It therefore had Standing and could confer subject-matter jurisdiction upon both courts. and that it had an economic interest ('injury in fact"). from time to time. Bank represented that U. things existed and therefore did not actually confer SUbject-matterjurisdiction upon any of the 19 . Bank to make application for a foreclosure sale in the 120 hearing. Bank represented that it was the Real Party in Interest.

Bank as a Holder in Due Course and that there was an "injury in fact" of real economic loss/ true significant pecuniary investment/ belonging to U. Bank was to have the court rely on their representation. and viii) had the right to rely on the representations in that U. Without all of this. for itself.S. erroneously or not. although it had a duty to obtain.S. In summary. Bank and therefore had standing. in the second place. 20 . Bank was a Real Party in Interest. the application for sale. iii) The representation was material in that it caused the court to move forward with substantive issues most adverse to Homeowner. Ix) The direct injury that occurred was the loss of Appellant/Homeowners title to her home of more than eleven years. subject-matter jurisdiction. that it had a Security Interest by way of a valid asslqnrnent. and the presentment of the Confirmation Deed and Certificate of Purchase in the FED action.S. Bank uttered the representations knowing that they were false. Bank perpetrated fraud upon the courts when they knowingly misrepresented that U. in their possession. properly and timely indorsed to U. or that they had the original Note together with the Original Deed of Trust/ never bifurcated. Iv} v) Attorneys for U. the attorneys for U.S. Bank's attorneys are officers of the court and practice law pursuant to an oath taken to uphold the law and to not perpetrate fraud upon the courts. in the first place. The Intent by the attorneys for U.S. vi) The court. were both fraudulent.S.S. had no evidence as to the falsity of the representations and therefore vii) relied on the representations as though they were true.courts.

he/she is engaged in "fraud upon the court".Fraud upon the Court is where the court or a member is corrupted or influenced or influence is attempted or where the judge has not performed his judicial function. the court stated. and never becomes final.Sec. 1985). In Bulloch v.R. as well as are all attorneys. The application must be made in the name of the entity on the Deed of Trust. 763 F. Had the PublicTrustee verified the full record it would have determined that there was not a recorded valid assignment and that the 21 . "Praud upon the court" makes void the orders and judgments of that court. The Public Trustee Is required to verify that there is a valid recorded assignment to the party foreclosing before it moves forward with the foreclosure sale. 38-38-101(6) requires that In addition to the presentment of the original endorsement or assignment of an evidence of debt that a certified copy of an endorsement or assignment from the Legal Original Holder of that evidence of debt be recorded in the county where the property being foreclosed is located and be recorded before initiating any action against a Homeowner. The 7th Circuit further stated. 1121 (10th Cir. United States. Without that legal recording the application in the 120 hearing is fraud on the court and the use of the Confirmation Deed as evidence for ownership and rightful title in an FED hearing is therefore additional fraud. Whenever any officer of the court commits fraud during a proceeding in the court.2d 1115. "Fraud upon the court is fraud which is directed to the judicial machinery itself". C." A judge is an officer of the court. "A decision produced by fraud upon the court is not in essencea decision at all.S.

and therefore were a fraudulent representation. 662. all proceedings founded upon it are necessarily equally worthless. 520P. no judgment at all. See: High v. See: CRCP60(b)(3) and 60(b)(4).application for sale was not made in the entity's name that appeared on the Deed of Trust or Note. in and of ltselt. The Standard of review is not appropriate when the underlying statement Is a statement of law and failure to recognize and apply it. By it no rights are divested. from It no rights can be obtained. A void judgment neither binds nor bars anyone. The parties attempting to enforce it are trespassers". 22 . in legal effect. Being worthless. are absolutely void. All acts performed under it. "A void judgment Is. See: eRCP 60(b)(3) III. Southwestern Insurance Company. Perpetration of fraud upon the court renders void any decree or order thereafter entered. per se abuse of discretion under CRep 60(b)(3) and eRCP B. A Void Judgment is.2d It is well settled that a judgment or order is void when subject-matter jurisdiction has not been conferred upon the court or fraud has been perpetrated upon the court. 1974. and all claims flowing out of it. and have no affect whatever upon the parties or matters In question. is a 60(b)(4). No Judgment At All A. in Legal Effect.

rendering the issuing of the Confirmation Deed and Certificate of Purchase defective. which was the evidence used In the FED action. denying Plaintiff U. See the New York Supreme Court and MassachusettsSupreme Court rulings again. 23 . knowingly.S. therefore the Public Trustee Sale was void. as well. coupled with the non-compliance of providing subject-matter jurisdiction in the FEDhearing should render the Order for Issuingthe Writ of Restitution void. Bank for these reasons and Voiding Foreclosures.In this case both a failure of subject-matter jurisdiction occurred and the perpetration of fraud occurred when the attorney for the U. They simply implied that the necessary elements of subject-matter jurisdiction existed and the attending documents also existed they did not. IV. The use of the defective evidence. Bank misrepresented that It could confer subject-matter jurisdiction upon the courts in both hearings when it did not. Resolution of Title Issues is a Prerequisite and a Condition Precedent To Resolving Possession Issues and Requires an Inquiry into the Chain of Title. Therefore the order authorizing a Public Trustee Sale in the 120 hearing was void.S.

It provides that when the Note and Deed of Trust are separated the Note may be enforceable by itself. The Standard of review could be De Novo In that it pertains to the application. or collection of the obligation contained in the Note and the Note resting in a Mortgage Backed Security Pool.A. but in fact was not for a number of reasons stated herein. The mortgage loan Is ineffectual when the note holder does not also hold the Deed of Trust.S.S. Bank. it necessarilyfollows that It does not possessgood title. enforcement. knowingly to be defective. as here. The Deed of Trust becomes an incomplete instrument and is therefore unenforceable. with the Deed of Trust lying with an independent entity that has no rights to payment. leading to the issuing of a Writ of Restitution causing the loss of Homeowner's title to her Property. supra. interpretation and construction of the law in question. B. however. On the surface it appeared to be a good title. See: The Be/listri case 284 SW 3rd 619. a mortgage loan separates the interests of the Note and Deed of Trust. Where. Those documents. nor has presented any evidence of a valid assignment. notwithstanding possessionof a 24 . the Deed of Trust is unenforceable. The Public Trustee when it issued a Confirmation Deed and Certificate of Purchase pursuant to the foreclosure sale provided a specious title to U. were subsequently presented as prima facie evidence of good title in the FED hearing. In that U. See: Landmark. Bank has not survived the burden of providing competent evidence that it holds a valid Security Interest in the Note and in the subject property as It is not named on the Note nor Holds the Deed of Trust together with the Note. but is no longer secured by the encumbrance of the property provided for in the Deed of Trust.

Bank has been unable to do under the law.S. is further abuse of the court's duty and further denial of due process.Confirmation Deed and a Certificate of Purchase. A Forcible Entry and Detainer Hearing Administered as a Summary Proceeding Interferes with Procedural Safeguards. v. given the current procedures used and outdated statutes relied on to obtain an authorization to foreclose in the Colorado district courts. which are typically and arbitrarily treated as summary proceedings. correctly applied. as a matter of course. which U. and do not include in the inquiry pertinent to title issues or apply the laws pertaining to subject-matter jurisdiction or investigate alleged fraud. 25 . limit the scope of examination simply to whether a default in payments exist wherein rent Is usually the kind of payment in default. without being permitted to raise affirmative defenses. to accept evidence as "prima facie" evidence. More speCifically. This kind of hearing flagrantly interferes with protected procedural safeguards. pertaining to the title of the property without examining the source and quality of the evtdence. Violating Due Process Guarantees Homeowners cannot be evicted. more particularly the denial of Due Process. appropriately rebutted. FED hearings. which if proved would maintain their possessionand ownership. consistent with due process guarantees. A party seeking possessionshould be required to present good and rightful title.

By the same token the loan originating bank is made whole plus some when it sells the note into the securitization process if it used Its own money to create the loan. have the opportunity to address and resolve. 26 . Colorado by U.S. Bank National Association. It was converted to a security. The long and the short here is that with what happened to my note precludes U. CONCLUSION Becauseof the securitization of my note with the subsequent conversion of the note to a security called Bane of America Funding Corporation. Bank. only doing the paperwork and still making a tidy profit. as Trustee for the Certificateholders of Bane of America Funding Corporation Mortgage Pass-Through Certificates. Bank fully knowing that UCCcode.S. Series 2007-8. Bank of America. as a due process matter.A Homeowner should. Bank from having any standing as holder in due course of the original note to foreclose on my property because the note no longer exists. Series 2007-8.S. Mortgage Pass" Through Certificates. which summary proceedings necessarily preclude. There is a high likelihood that in my case the loan was directly funded by the investors In the security with their financial commitment to the security.S. hereinafter known as U. U.S. as herein sought. A note is a note until it is securitized and then it becomes a security never to be a note again and never to be rejoined with a corresponding Deed of Trust again. Otherwise "possession" will be granted to an entity without good title as was done in this case. The security was opened for the month of August 2007 and my loan was closed in August 2007. fraudulent and spurious events were perpetrated upon me and the courts and citizens of Arapahoe County. and with the originating bank. If a tranche in the security defaults on payment then Credit Default Swap and Derivative Insurance cover the amount of missed payment making the Investor whole. U. and IRS code for REMIC designation required my note to be bifurcated from my Deed of Trust in order to be converted into a security has supposedly reversed the process in order to foreclose on my property. any and all issues in defense of an application for authorization to foreclose and for an action seeking a Writ of Restitution.

S. In the same vain the COunty Court in the rule 120 hearing never asked U. If the FEDaction is allowed to be completed without a hearing where I can show that my note no longer exists and U.Bank knows this and stili it went ahead and lied to the Arapahoe County Public Trustee about its standing to initiate a Notice of Election and Demand.S. Bank probably had appropriate standing thus shirking their duty to the citizens of Arapahoe County. Bank. Bank of America and many others have been found to have illegally scammed the system one loan at a time. In turn the Office of the Public Trustee never verified the claims of U. Bank's word when there are clear indications in the public Clerk and Recorders records that the necessary assignments to transfer the original note and therefore standing were not there. And. Bank is not the holder of the original note and has no right to claim a foreclosure prerogative on my home. Bank is only pretending to be the holder of the original note in due course a great and expensive Injustice will be done.S.S.S. Bank and those in authority to do such never did so but rather just accepted U. Bank which would corroborate that U. Therefore my case in this appeal centers on the idea that U.S. Fraud will have been perpetrated not only on me but also the court and the citizens of Arapahoe County. then at the FED hearing Judge Chauche exceeded her authority by granting U. I hope the court will grant a hearing so I can show the truth of my one loan and unravel a thread in U. well documented and well adjudicated national crisis In which U. Bank possession of my home which Is a monetary issue that is greater than her jurisdiction. Bank's deception.S. £-/6~ 27 If . Bank to show an original note to prove up its standing to claim my property.S.S. There was no chance for me to challenge the erroneous claims of U. Just because this is only one case does not mean that this case is not part of the all encompassing. Bank and went ahead with the foreclosure process when clearly no assignments were recorded to U.S.S.

Edwards 511 Sixteenth Street Suite 420 Denver.CERTIFICATE MAILING OF I. certify that a true and correct copy of the foregoing OPENING BRIEFin Case 2010cv2022 was mailed to the below named parties on this day of May 2011. Colorado 8020 John Peters . John Peters. is" Akerman Senterfitt LLP Victoria E.