IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT IN AND FOR LEE COUNTY, FLORIDA CIVIL DIVISION

US BANK NATIONAL ASSOCIATION, AS TRUSTEE, ON BEHALF OF THE HOLDERS OF THE CSMC MORTGAGE BACKED PASS THROUGH CERTIFICATES, SERIES 2007-1, Plaintiff VS FRANK KRAWCZYK, Defendants __________________________________________/ MANDATORY JUDICIAL NOTICE AS APPLICABLE TO PRO SE LITIGANTS As applicable, the Defendant hereby states and mandatory request JUDICIAL NOTICE of the following cases in support of the Defendant‗s self representation: Caldwell v Miller, 790 F. 2d 589, 595 (7th Cir. 1986) “Pro Se litigants are not held to the stringent standards applied to formally trained members of the legal profession, and their pleadings are to be liberally construed.” The United States Supreme Court, in Haines v Kerner 404 U.S. 519 (1972), said that all litigants defending themselves must be afforded the opportunity to present their evidence and that the Court should look to the substance of the complaint rather than the form. In Platsky v CIA, 953 F.2d 26 (2nd Cir. 1991), the Circuit Court of Appeals allowed that the District Court should have explained to the litigant proceeding without a lawyer, the correct form to so that he could have amended his pleadings accordingly. Defendant(s) respectfully reserves the right to amend this complaint. CASE NO: 09-CA-070151

BEFORE: JUDGE JOSEPH C. FULLER

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DEFENDANT‟S MOTION IN REPLEVIN “in the nature of a writ of right and writ of possession” TO SEQUESTER THE GENUINE ORIGINAL SECURITY NOTE INTO THE RECORDS OF THE COURT AND DEFENDANTS PURSUANT TO PLAINTIFF‟S CLAMS COMES NOW, FRANK KRAWCZYK, Defendant, by and through his counsel and file this his MOTION IN REPLEVIN IN DETINET “in the nature of a writ of right and writ of possession” , TO SEQUESTER THE GENUINE ORIGINAL PROMISSORY NOTE INTO THE RECORDS OF THE COURT AND DEFENDANTS PURSUANT TO PLAINTIFF‟S CLAIM, to which the Plaintiff claims to be in possession to the Security Note that was acquired in a currency exchange with the Defendant ―Frank Krawczyk‖, for the real property. The Defendant‘s moves this Court to order, in the nature of a writ of right, that the Genuine Original ―SECURITY NOTE‖, be sequestered into the hands of this Honorable Court, due to the nature of US Bank National Association (herein after – Plaintiff) and their attorney‘s claims ―that Plaintiff‖, is the true party of interest and has possession, has state a claim under the filed complaint for foreclosure. Plaintiff, is attempting to confiscate and/or place a claim against the Defendants or his real property through a fraudulent judicial foreclosure procedure based on the felonious acts of filing false and/or forged documents and claims the Lee County Public Records and the Court. If Plaintiff, and their attorney are successful in the foreclosure proceedings against the Defendant, via the use of fraudulent documentation and their felonious acts then the Plaintiff would have been successful. Therefore, the relinquishment and possession of the Genuine Original Promissory NOTE should be turned over to the Court. See: JAMES F. JOHNSTON and SANDRA JOHNSTON, Appellants, v. JEANNE HUDLETT, Appellee. No. 4D08-4636 [March 31, 2010] DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA, FOURTH DISTRICT, January Term 2010 “Moreover, in the case of original mortgages and Promissory notes, they are not merely exhibits but instruments which must be surrendered prior to the issuance of a judgment. The judgment takes the place of the Promissory note. Surrendering the note is essential so that it cannot thereafter be negotiated. See Perry v. Fairbanks 2

Capital Corp., 888 So. 2d 725, 726 (Fla. 5th DCA 2004). The judgment cancels the note.”

This Motion is supported by the laws and Constitution of Florida; and, the “laws” under Chapter 78 (Replevin and Replevin Action), the prior rulings of courts, the docket of this case, each of which are incorporated by this reference as if fully set forth, and for each of which the Defendant asks this Court to take judicial notice thereof. Additionally, the Defendant asserts his rights and seeks relief under the “Laws of Voided Judgment”. This Motion is further supported the accompanying Memorandum of Points, Authorities and Law. MEMORANDUM OF POINTS, AUTHORITIES AND LAW

The Defendant is filing this Replevin in Detinet contemporaneously within this Acton as an action to invoke The Defendant‘s Rights protected pursuant to Florida Law and Florida‘s Constitution, especially The Defendant‘s Due Process of Law and Property Rights. The Defendant states his right to claim(s) pursuant to, applicable laws of the State of Florida that Plaintiff may not sell or possess the Defendant‟s real property; gain Summary Judgment etc., until this action is concluded. In addition, the Defendant also seeks relief under the “Law of Voided Judgment”.

Black's Law Dictionary, Sixth Edition, page 1574 VOIDED JUDGEMENT: One which has no legal force or effect, invalidity of which may be asserted by any person whose rights are affected at any time and at any place directly or collaterally. Reynolds v. Volunteer State Life Ins. Co., Tex.Civ.App., 80 S.W.2d 1087, 1092. One which from its inception is and forever continues to be absolutely null, without legal efficacy, ineffectual to bind parties or support a right, of no legal force and effect whatever, and incapable of confirmation, ratification, or enforcement in any manner or to any degree. 3

ASSIGNMENT OF MORTGAGE: An Assignment of MORTGAGE dated 09/11/2006 was provided without any recording details in the Lee County.Supp.00. Paatalo.. MERS The MORTGAGE shows MIN 1000597-2750000202-3 and MERS SERVICER ID website https://www. or of the parties. The assignment from MERS to CSMC Mortgage-Backed Pass-Through Series 2007-1 was filed approximately three (3) years after the loan was securitized into the Trust as evidence by the "Pooling & Servicing Agreement". The original lender of the promissory note is U.000.Judgment is a "void judgment" if court that rendered judgment lacked jurisdiction of the subject matter. This document was filed as document number (2006000410168) in the Official Records of Lee County. on its face. 4 .S.. the Defendant. or acted in a manner inconsistent with due process. 610 F.S. for Chandra Anand-Manager. FL. 901. Mortgage Electronic Registration Systems. and William J. U. Klugh v.C. Inc. Mortgage Corp.C.org/sis/search indicates that Select Portfolio Servicing Inc. the Defendant hereby presents to the court. executed a negotiable promissory note and a security interest in the form of a MORTGAGE in the amount of $ 650. Pursuant to the laws of Voided Judgment. PSID #49411: On 10/19/2006. Licensed Securitization Auditor. upon examination of the report. that Plaintiff was never the true party of interest in the foreclosure action which was instituted before the court.S. Private Investigator.mers-servicerid. (hereafter ―MERS‖) is a separate corporation acting solely as a nominee for Lender and its assigns. the following are the findings which are supported by the ―affidavits‖. to which also consist of a ―Bloomberg Report‖. Via the retainer and production of a forensic audit of the Defendants loan. D. 892. of New Jersey.

pass through securities. commercial mortgages.Utah is the servicer but no information is provided on the Investor.S.ferent parties in order to transform the pooled mortgages into a security owned by investors and rep.resented by a Trustee. The status is "INACTIVE". " It involves a series of independent "true sales" and financial engineering by a number of dif. 5 . auto loans or credit card debt obligations (Liquid Assets) and selling said debt as bonds. and is highly dependent on the jurisdiction upon which the process is conducted. ENTITIES The Florida Secretary of State Business Entity websites shows that U. Mortgage Corp of New jersey. or Collateralized mortgage obligations (CMOs). The process of securitization is complicated. to various investors. Inc. SECURITIZATION Securitization is a financial practice of pooling various types of contractual debt such as residential mortgages. has an INACTIVE status. Securities backed by mortgage receivables are called 'mortgage-backed securi.ties'.

This process requires that there are true sales and an unbroken chain of assignments between all parties in the process and that all loans enter the trust by the Closing date. The financial engineer. which is like a steel door that CANNOT be opened after the closing date. No recorded endorsement found in the Lee County Records. securit. the mortgage (note and Mortgage) is converted into something different from what was represented to the homeowner. POTENTIAL ISSUES With securitization. a loan must follow an exact process with a fixed period of time. and can be chal.The securitization trusts include government-sponsored enterprises and private entities which may offer credit enhancement features to mitigate the risk of pre-payment and default associated with these mortgages. PROPER SECURITIZATION When a loan is securitized. transferred to several institutions as per Pooling & Servicing Agreement filed with Securities & Exchange Commission on 05/01/2007 under SEC File # 333-135481-13. TRUST SALES The "true sales" are at the heart of securitization to ensure that the investors have the unequivocal legal right of ownership to the mortgage assets and receivables in the trust.ble taxation.ization process will expose the problems and issues. The NOTE was sold.ized underwent Credit Enhancement. whose shares are sold to investors (Certificate holders). To achieve the goals of the securitization.ing begins with the mortgages in the pool being grouped into classes based 6 . it is bundled with other loans and ends up in a trust. Tracking what happens to the note and the deed of trust during the securit. Parties attempting to foreclose a securitized loan are often not legally entitled to do so (they are not the real parties of interest and have no standing to foreclose). and the very process of securitization creates chain of title problems in both the note and the Mortgage. and to avoid dou.lenged on several fronts.

or rights to ownership (derivatives). SERIES 2007-1 as per the Pooling & Servicing Agreement dated 01/01/2007. The Chain of transfer is not perfect and raises many legal questions. FINDINGS SPECIFIC TO THE DEFENDANT 1. the investors' ownership is protected from potential bankruptcy or claims made against the originating lender or interim owners of the mortgage(s). 2. If any person or entity claims to have the original promissory note in their possession. Through the true sales process. The loan went into a Credit Enhancement. The NOTE in this case was sold.BACKED PASS-THROUGH CERTIFICATES. the Note was sold to the trust (CSMC MORTGAGE. The borrowers' credit is then enhanced and rated by credit ratings agencies such as S&P and Moody's in a process called credit enhancement. The claimant may be compelled to file a B10 (Proof of Claim) under penalty of perjury pursuant to 18 USC §§ 152 and 3571 in the Bankruptcy Court to establish their claim. You can make a carrot juice from the carrots but cannot convert that juice back to carrots. Series 2007-2. These credit enhanced mortgages are repackaged and then sold to the investors.upon the types of mort. transferred to CSMC MORTGAGE-BACKED PASS. the Note should have at least six endorsements: b.THROUGH CERTIFICATES. If the mortgages were not properly transferred and recorded in the Lee County Land Records in the securitization Process.gages and the borrowers' credit. the same may be produced in the court for inspection and probably is a counterfeit security . It is impossible. The original Promissory Note has not been presented. or debt agreements (bonds).January 2011. c. As evidenced by the findings and the explanation above. then the party bringing the foreclosure does not in fact own the mortgage and therefore lacks standing to foreclose. The investors then purchase insurance in the event that the mortgage defaults. See Ibanez case of Massachusetts Supreme Judicial Court. Based on the 8-K filings with SEC by CSMC Mortgage-Backed Pass-Through Certificates. 7 . SERIES 2007-1) and securitized . Investors evidence their ownership in the mortgages through certificates (notes).

then it cannot be "fixed". Securitization and MERS required many changes in established practices. then it cannot be used to give the lender the "due on sale" clause. If the loan assignment was not properly done. that is why they are major points of contention today. A lender cannot simply reverse engineer the title of the Deed of Trust/Mortgage or a Promissory Note to make it better. As mentioned previously. The concept was that with MERS assuming this role. One cannot pick and choose as to which part to respected and which part is to ignore. One of the first issues to be addressed was how MERS might foreclose on a property. The terms of the Mortgage must be respected in whole. e. 8 . and not to MERS. DISCUSSION The creation of MERS changed the lending process. Once an instrument is defective. If no one party can be named 'the beneficiary or the 'the lender'. The Chain of Transfer of Note is broken and is defective. Instead of the lender being the Beneficiary on the Mortgage. it would be wise to explain the Securitization process. This was a result of the Note actually being made out to the lender. obtain a certified copy of B10 (Proof of Claim) filed by the Claimant.d. These practices were not and have not been codified. If it is defective. since MERS would be given the ―power of sale‖ through the Mortgage The naming of MERS as the Beneficiary meant that certain other procedures had to change. Following your bankruptcy. Before explaining this change. If the Promissory Note is owned by thousands of parties. If the terms of the Deed of Trust/Mortgage have violated the State Laws. MERS was now named as either the ―Beneficiary‖ or the ―Nominee for the Beneficiary‖ on the Mortgage. it cannot be used to collect the debt. then there is no single party that can lay a claim on the Promissory Note. then the promissory note is defective. there would be no need for Assignments of the Mortgages. then it too is defective.

etc. It would be the Servicers. which effec. Any attempt by MERS to foreclose in the MERS name would result in a challenge to the foreclosure since the Note was owned by ―ABC‖ and MERS was the Nominee/―Beneficiary‖. since only the ―person of interest‖ would have such authority. How could they handle the load of foreclosures. Mortgage Corp. it was decided that the Note would be endorsed ―in blank‖. then that person has the beneficial interest in the Note. it was thought that this would provide MERS and their ―Corporate Officers‖ with the ―le. MERS would not have the legal standing to foreclose. MERS has only 44 employees.pany with their duties and obligations? When a lender.gal standing‖ to foreclose. title company. one or more of their people were designated as “Corporate Officers” of MERS and given the title of either Assistant Secretary or Vice President. there are some agreements which “authorize” these people to act in an Agency manner for MERS. nor received income from MERS. and anyone holding the 9 .ument suggests that it has been indorsed to MERS or any other named entity. So. Once a name is placed into the endorsement of the Note. in the manner of a person sign. The promissory note was made payable to U. As well. it must be endorsed and signed.)  This ―solved‖ the issue of not having enough personnel to conduct necessary actions. This could not work if MERS was to be the foreclosing party. this brought up another issue that now needed addressing:  When a Note is transferred. However. No recorded doc. These personnel were not employed by MERS. to be expected of a com. Customary procedure was to endorse it as “Pay to the Order of” and the name of the party taking the Note and then signed by the endorsing party. there would now need to be an Assignment of the Debt. They are all “overhead”. of New Jersey. (Apparently. Trustees and Title Companies conducting the day-to-day operations needed for MERS to function. They were been named “Officers” solely for the purpose of signing foreclosure and other legal documents in the name of MERS.This was ―solved‖ through an ―unusual‖ practice.S. With a new party holding the Note.tively made the Note a ―Bearer Bond‖. administrative or legal personnel. Assignments. foreclosure company or other firm signed up to become a member of MERS.ing his paycheck over to another party.

it is likely that MERS has no knowledge of the true beneficiary of the loan for whom they are 10 . how could they foreclose? This is especially true if the true beneficiary is not known. Foreclosures should be commenced in the name of MERS.uments in the name of MERS.closures. Even worse. MERS has recognized the Note Endorsement problem and on their website. Often. To effectuate this process. In fact. stated that they could be the foreclosing party only if the Note was endorsed in blank.A. from the MERS website……. Your title company or MERS officer can easily determine the true beneficiary.ing foreclosure.ing is U.ties as indicated previously does allow for foreclosure.ments would not be necessary. Through this process.. MERS will show as the beneficiary of record. it is important that the Trustee‘s Deed Upon Sale be made in the name of the true beneficiary and not MERS.Note would have the ―legal stand.S. Series 2007-2. if the property reverts. Obviously.ing‖ to enforce the Note under Uniform Commercial Code. If MERS is the foreclosing authority but has no entitlement to payment of the money. The question now becomes as to whether a Note Endorsed in Blank and transferred to different enti. As it is readily apparent. MERS admits that they are not the true beneficiary of the loan. appropriate documents may be executed at the servicer‘s site on behalf of MERS by the same servicing employee that signs foreclosure documents for non-MERS loans. At the time of sale. N. as Trustee for CSMC Mortgage-Backed Pass-Through Certificates. Title companies have indicated that they will insure subsequent title when these procedures are followed. these are Title Company employees or others that have no knowledge of the actual loan and whether it is in default or not. MERS has allowed each servicer to choose a select number of its own employees to act as officers for MERS. the foreclosure is handled in same manner as non-MERS fore. Until the time of sale. they lack standing. the above statute would suggest that Assignment is a requirement for enforc. If it was endorsed to another party.  ―On MERS loans. then that party would be the foreclosing party. The Note in this case is blank but the party foreclos. the Trustee‘s Deed Upon Sale will fol. They admit that they name people to sign doc. Since MERS acts as nominee for the true beneficiary. Bank. This would also suggest that Assign. Why raise the question of who the true beneficiary is? Again.low a different procedure.‖ Direct from the MERS website.

S. the enforceability of the Note was negated until rejoined. i. Mortgage Corp. The mortgage securing the note.83 U. 274.representing in an ―Agency‖ relationship. It is impossible to define security apart from its relationship to the promise or obligation it secures.‖ separately names Mortgage Electronic Registration Systems. then there can be no enforcement of the Note. the Note and the Mortgage are held by separate entities. This was because the Note and the Mortgage were “owned” by separate entities. an action by Saxon to foreclose on a property by lawsuit was dismissed due to lack of legal standing. however. the latter as an incident. (MERS) as the ―Mortgagee. An assignment of the note carries the mortgage with it. foreclosure cannot occur. the obligation is unsecured but still valid. cannot exist without an underlying existing obligation. In the case of MERS. If the Deed is separate from the Note.S.‖ MANDATORY JUDICIAL NOTICE REQUIRED In Carpenter v.‖ The conveyancing language granted the mortgage to MERS ―solely as nominee for Lender and Lender‘s successor‘s and assigns. To easily understand. Inc. The Court ruled that when the Note and Mortgage were separated. Contra Costa County Superior Court.Ed. then enforcement. the former as essential. while naming U. A security interest.S.” An obligation can exist with or without security. They admit to this when they say ―Your title company or MERS officer can easily determine the true beneficiary. Supreme Court stated “The note and mortgage are inseparable. of New Jersey as ―Lender. the transferee receives a secured note. It provides the capability for the lender to foreclose on a property. 21 L. If the creditor transfers the note but not the Mortgage.e. MANDATORY JUDICIAL NOTICE REQUIRED In Saxon vs Hillery. The Mort. The following ruling summarizes this nicely.gage enforces the Note. CA. the U. if the Mortgage and the Note are not together with the same entity. This very ―simple‖ statement poses major issues. 271. 271. With no security. 313 (1872). the security 11 . while assignment of the latter alone is a nullity. Longan 16 Wall. Dec 2008.

‖  We have done our best to research the subject of Securitization from the lender to the borrower based on the available documents. The person holding only the Mortgage will never experience default because only the holder of the note is entitled to payment of the underlying obligation. Trainer (1866) 30C 685) “Where the mortgagee has “transferred” only the mortgage. Powell). we strongly advise you to seek the counsel of a reputable attorney. § 37. please feel free to let us know and we will incorporate it. if such was the agreement. Our securitized loan audit services are intended to simplify the complicated financial transactions of the securitized loan into a simple report and analysis of facts. through the process of securitization and sale to investors in a Trust. The practical effect of splitting the Mortgage from the promissory note is to make it impossible for the holder of the note to foreclose. Other undisputable material defects may also be presented. the person holding only the note lacks the power to foreclose in the event of default. the transaction is a nullity and his “assignee” having received no interest in the underlying debt or obligation. in the event that a mortgage loan somehow separates interests of the note and the Mortgage. assignment of the mortgage carries with it the assignment of the debt. . Upshaw 91952) 39 C. Using this evidentiary findings 12 . . unless the holder of the Mortgage is the agent of the holder of the note. The mortgage loan becomes ineffectual when the note holder did not also hold the Mortgage. Without the agency relationship. Again. If the transferee is given the Mortgage without the note accompanying it. as we are not attorneys and do not provide legal advice. We continually strive to bring the best and most up to date audit to our customers. the mortgage may become unenforceable. legally if not physically. has a worthless piece of paper (4 Richard R. Indeed. Powell on Real Property. the transferee has no meaningful rights except the possibility of legal action to compel the transferor to transfer the note as well.  Our expert(s) trace the note and deed of trust from the originating lender up the line of sales to the trust and investor ownership.follows the note. This audit investigates the loan from the time of its origination.2d 23. with the Mortgage lying with some independent entity. as detailed above. Our evidentiary findings may reveal defects in the real estate title that is being claimed by the party(s) seeking to foreclose. (Kelley v.27 [2] (2000) By statute.  Should there be any important aspect you can share with us. Polhemus v.2d 179. 246 P.

did not extend credit. it is largely adjudicated in various states.report. In Landmark National Bank v. Civil Court. Associate Professor of Law. and Urban Affairs Subcommittee on Securities. . Kesler. has no constitutionally protected interest in the mortgage loan. MANDATORY JUDICIAL NOTICE TO THE COURT AND PRESIDING JUDGE Additionally. State Court and Federal Court) that MERS has no standing and has no beneficial interest in the mortgage or note. did not receive any payments from the borrower.S. AS TO THE SECURITIZATION AUDIT AND BLOOMBERG AUDIT PRODUCED AND PREVIOUSLY SUBMITTED TO THIS COURT AND PRESIDING JUDGE. Peterson. Housing.3D 158 (Kansas. . suffered no direct. . attorney(s) can then analyze these facts and draw their own legal opinions. the Kansas Supreme Court extensively analyzed the position of MERS in relation to the facts in that case and other non-binding court cases and concluded that MERS is only a digital mortgage tracking service. The parties obtain two principal benefits from attempting to use MERS as a “mortgagee of record in nominee 13 . 2009). The system itself electronically tracks ownership and servicing rights of mortgages. Thank you for allowing us to be of service to you and please do not hesitate to contact us if you or your attorney requires further information or assistance. testified at a hearing before the U. (At page 168) The Court recited that MERS never held the promissory note. (Appeals Court. . University of Florida. Insurance. Christopher L. 216 P. and Investment and stated: MERS is merely a document custodian. .] MERS AS “NOMINEE” HAS NO INTEREST TO ASSIGN AND HAS NO INTEREST IN THE MORTGAGE OR NOTE AND IS ONLY A RECORDATION ENTITY Plaintiff by and through counsel has represented to the court that the Defendant ―appearently would be arguing a moot point as it pertains to MERS and MERS assignment. the defendant hereby [NOTES TO THE COURT AND PRESIDING JUDGE. is not owed any money by the mortgage debtors. did not own the mortgage instrument (though the documents identified it as “mortgagee”). ascertainable monetary loss as a consequence of the litigation and consequently. ITS MARKED AS [“EXHIBIT A“]. Senate Committee on Banking. . that it did not lend money.

the assignee must record the assignment with the county recording office. Fairbanks. and use these fees to cover the cost of maintaining the real property records. LP. notwithstanding said foreclosure being lawful or not.capacity. The Defendant has the substantial right to have this Court sequester the Genuine Original Promissory NOTE until US Bank National Association Associates. Id. Sequestration of the Genuine Original Promissory NOTE is in no way similar to any so called “show me the note” theories as espoused on the internet as the Defendant is not requesting to “see” the Genuine Original Promissory NOTE. transferred and/or lost. under state secured credit laws. or risk losing priority vis-à-vis other creditors. is allowed to foreclose on the Defendant‘s loan or real Property.. The Defendant is ONLY requesting that this Court protect the Defendant‘s due process of law rights to have the property of interest in this matter be protected by this Court. It is incumbent on this Court to protect the interests of all parties and said interest is reliant on the Genuine Original Promissory NOTE being in good condition and not altered in any way by any party during this case. may be justly barred from claims to collect. The Defendant states on and for this Court‟s record that The Defendant is in fact 14 . selling. The request of the Defendant in this action as it pertains to the real property is relative to the transfer of the Genuine Original Promissory NOTE. if the foreclosure does proceed in accordance with any possible future ruling of this Court. Pursuant to Perry v. this Court should sequester the Genuine Original Promissory NOTE as the Genuine Original Promissory NOTE is a pertinent issue in this case and any adjudication of this matter may be unenforceable and/or invalid if the Genuine Original Promissory NOTE is somehow destroyed. or gain title to the Defendant‘s real property until all matters concerning the Genuine Original Promissory NOTE are settled and/or dismissed by this Court. when a mortgage is assigned. In fact. LP. or leinors. which is currently pendente lite and therefore US Bank National Association Associates. buyers.. Most counties charge a fee to record the assignment.” First. this Court may be required to immediately cancel and hold said Genuine Original Promissory NOTE.

and that any claim of legal ownership by any party is unsubstantiated. and after said adjudication return and/or cancel the Genuine Original Promissory NOTE pursuant to this Court‘s decision. The Defendant also invokes The Defendant‘s right to replevin action pursuant to applicable State Constitution and Statutes. The lawfulness and or fraudulent nature of the judicial foreclosure proceeding withstanding or notwithstanding. The Defendant hereby moves this Court to sequester the Genuine Original Promissory NOTE until this case is adjudicated. and others. LP. Sequestration of the Genuine Original Promissory NOTE in no way harm‟s the Plaintiff. The Defendant fear that the Genuine Original Promissory NOTE may be somehow transferred and/or sold and/or otherwise held by an improper party are sufficient grounds for his request for sequestration as the Defendant has provided sufficient evidence to this Court that the Defendants. jointly and/or separately. TRUE OWNERSHIP is a higher Right than legal ownership in ALL matters pursuant to Keech v. attempts to take possession of the real property in question or possess claims. may be required by the laws of Florida. LP. and. The ONLY possible harm that may come to Plaintiff from this Court‘s ruling to sequester the Genuine Original PROMISSORY NOTE. Accordingly. The possibility of harm to The Defendant for refusal of this Court to order the 15 . is if the Plaintiff is not in possession of the Genuine Original PROMISSORY NOTE and therefore cannot avail the Genuine Original PROMISSORY NOTE for sequestration. Stanford 1726. alter. which has never been abrogated and/or abolished and/or altered by any court in this nation. US Bank National Association Associates.the TRUE OWNER of the real property in question. as this would compound the situation and bring light to the actions of the Plaintiff and their Attorney. once US Bank National Association Associates. to return the Genuine Original Promissory NOTE relating to the real property of the Defendant immediately after the foreclosure or the foreclosure may not be considered lawfully consummated. falsify and/or forge documents and record such documents into a public office.

March 21. those decisions delivered in this action in favor of the Plaintiff. the Plaintiff. 23):. STATEMENT OF CASE AND FACT AS APPLICABLE TO THE NATIONAL HOUSING ACT (12 USC. the Defendant Frank A. 2012. stating that it is a ―federally chartered bank‖ authorized to transact business in the State of Florida and declaring that it has an interest in the above reference real property and Security Note. Krawczyk (hereinafter Defendant) and brings to the attention of this court the Objection to the Decision issued in this case on December 12. to wich they have no legal right. in this case has presented a foreclosure action against the Defendant. 2009 . DEFENDANT‟S OBJECTIONS TO THE DECISIONS OF THE COURT PURSUANT TO THE VIOLATION OF THE U. As established via the attached Securitization Analysis (which is inclusive of a BLOOMBERG AUDIT). the Plaintiff commenced the instant foreclosure action in the above mentioned case. 2009. The Defendant may be unlawfully sued by a future party that somehow garners possession of the Genuine Original PROMISSORY NOTE through lawful and/or unlawful means. NATIONAL HOUSING ACT 12 USC SEC. 2012 and October 23..S.sequestration of the Genuine Original PROMISSORY NOTE is immeasurable. In support of this section of this motion. no true interest in the mortgage and security 16 . and. SEC. the Defendant states the following as applicable to Plaintiff‘s violation of US National Housing Act (12 USC. 23 COMES NOW. The Defendant may be forced to again to pay the Genuine Original PROMISSORY NOTE if another party claims to be in possession of the Genuine Original PROMISSORY NOTE. SECTION 23) On December 09.

instrument (the Security Note); to which, bi-furcation has also been committed. As it is well know; and settleed STATEMENT OF FACTS AND MANDATORY JUDICIAL NOTICE Pursuant to 12 USC sec 23, ―The organization certificate shall be acknowledged before a judge of some court of record…and shall be, together, with the acknowledgment, authenticated by the court… and transmitted to the Comptroller of Currency, who shall record and preserve the same in his office. 1. National Housing Act 12 USC 1701-1751 et seq.: Helping Families save their Homes Act of 2009, P.L. 111-22, sec. 203, 123 Stat. 1631, 1645. HUD Regulations. a) 24 C.F.R. part 203-500-Servicing Responsibilities. [I]t is the intent of the Department that not mortgagee shall commence foreclosure or acquire title to a property until the requirements of this subpart are followed. b) 24 C.F.R. part 203.604(b) The mortgagee must have a face-to-face interview with the mortgagor, or personal interview, or make a reasonable attempt to arrange such a meeting within 30 days after such default and at least 30 days before foreclosure is commenced. c) 24 C.F.R. part 203.606 (a) Before initiating foreclosure, the mortgagee must ensure that all servicing requirements have been met. d) O.R.C. 1161.67- Only a foreign saving bank (FSB) may, upon receiving approval of the Superintendent of Financial Institutions, establish a branch in the state by creating a new branch or by agreeing to assume all of substantially all of the deposit liabilities of an existing branch of a bank, saving, foreign saving bank, or savings and loan association, which branch is located in the state…A savings bank may acquire or merge with another savings bank, a foreign savings bank, a domestic association, a state bank, a national bank, or a bank organized under any state, upon application to and written approval of the Superintendent of Financial Institutions.

ARGUMENT The pandemic of the foreclosure process began in 2005, picked up steam in 2007 and became an epidemic by 2008. Attorneys were allowed to come into State courts and address their peers by saying: ―I represent this bank or that bank, and the defendant has not paid their mortgage.‖ State judges lacking the understanding of the foreclosure process, equated the process with forcible entry and detainer, where the owner petition the court for the real property being occupied by a tenant, and the court grants the Order to evict. Eighty five percent of the mortgages are financed by some 17

government agency: i.e. Fannie Mae, Ginny Mae, or Freddie Mac and, therefore, comes within the purview of federal regulations in conjunction with state laws. Millions of foreclosures have been perfected and completed without the provisions being adhered to. In this case, the Plaintiff has failed to provide the court with the document which would grant it standing to pursue a foreclosure in this court. If the plaintiff has provided the documents and the documents have not been provided to the defendant, then it violates the discovery provisions of Civil R. 26. Those documents would include: Certificate with this Court‘s Seal on it acknowledging its standing to sue in this arena. Minutes and terms of the parties face-to-face interview which would have taken place in late September or Early October, however, MERS did not transfer title to the property until October 14, 2011 and the action was commenced 20 days later, and, so, the defendant concludes this is in violation of federal regulations, which is a necessary prerequisite to the commencement of foreclosure. Summary Judgment is proper when: (1) no genuine issue as to material facts remain to be litigated; (2) the moving party is entitled to judgment as a matter of law; (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence must strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Summary judgment is appropriate when the non-moving party does not produce evidence supporting the essentials of its claim and when it does not produces evidence on any issue for which it bears the burden of producing. Leibreich v. A.J. Refrigeration, Inc., 67 Ohio St. 3d 266, 617 N.E. 2d 1068.

Please see [“Exhibit B”], copy of complaint to Comptroller of Currency and pending investigation due to the Violation of the National Housing Act (12 USC SEC. 23).

THE GOVERNING LAWS OF THE TRUST (NEW YORK STATE TRUST LAWS)

18

AND THE VIOLATION THERE OF RENDERES THE TRANSACTION VOID (“A NULLITY”)

THE DEFENDANT TRUST HAS NO STANDING TO FORECLOSE BECAUSE THERE HAS BEEN NO VALID ENFORCEABLE ASSIGNMENT TO THE TRUSTEE OF THE TRUST
The CSMC Mortgage Backed Pass Through Certificates Series 200-1 Trust , is A New York Common Law Trust Governed By New York Law Based On Its Trust Agreement.

US BANK NATIONAL ASSOCIATON, as Trustee, under the Pooling and Servicing Agreement dated January 5, 2007, (―CSMC MORTGAGE BACKED PASS THROUGTH CERTIFICATES, Series 2007-1‖), US Bank National Association is not the originator of the mortgage, the servicer, or even a investor/beneficiary of the trust.

This entity is a New York common law trust created by an agreement known as ―Pooling and Service Agreement.‖ Allegedly, the homeowner`s home loan, along with other loans, were pooled into a trust and converted into mortgage-backed securities (―MBS‖) that can be bought and sold by investors — a process known as securitization.

The underlying promissory notes of each and every mortgage held by the Trust serve as generate a potential income stream for investors.

The Trust allegedly holding the Plaintiff‘s note was created on or about January 5, 2007, and is identified as CSMC MORTGAGE BAKED PASS THROUGH CERTIFICATES, SERIES 2007-1; with, ―US BANK NATIONAL ASSOCIATON, as Trustee, under the Pooling and Servicing Agreement dated January 5, 2007. 19

T hese various documents. are governed under the law of the State of New York pursuant to section 11. which is an approximately 400-page document that creates the Trust and defines the rights. Pursuant to the terms of the Trust and the applicable Internal Revenue Service (―IRS‖) regulations adopted and incorporated into the terms of the Trust. and hence the acquisition of The Trust. It is settled that the duties and powers of a trustee are defined by the terms of the trust agreement and are tempered only by the fiduciary obligation of loyalty to the beneficiaries (see. duties and obligations of the parties to the Trust Agreement. 2007) is also the ―Startup Day‖ for the Trust under the REMIC provisions of the IRC. Internal Revenue Code (―IRC‖). by its terms. the ―closing date‖ of the Trust (January 30. set a ―closing date‖ of January 30. being sued through its trustee.S. is a New York Corporate Trust formed to act as a ―REMIC‖ trust (defined below) pursuant to the U. The PSA is filed under oath with the Securities and Exchange Commission. 20 . The PSA also incorporates by reference a separate document called the Mortgage Loan Purchase Agreement (―MLPA‖). 2007 The terms of the Trust are contained in the Pooling and Servicing Agreement (―PSA‖ or the ―Trust agreement‖). The Startup Day is significant because the IRC ties the limitations upon which a REMIC trust may be receive its assets to this date.The Trust.03 of the PSA . The relevant portion of the IRC addressing the definition of a REMIC is: the mortgage assets for the Trust.

D. d). 57 A. 1st Dep‘t 2000) REMIC after the startup day. Method And Manner Of REMIC after 21 . See In re IBJ Schroder Bank & Trust Co.United States Trust Co. These PSA provisions are important to the analysis of the facts in this case because of the interplay between the New York trust law. (E) Any other contribution permitted in regulations. (B) Any payment in the nature of a guarantee.2d 285.C. there is hereby imposed a tax for the taxable year of the REMIC in which the contribution is received equal to 100 percent of the amount of such contribution. Restatement [Second] of Trusts § 186.. The PSA addresses these sections of the IRC by obliging the parties to the Trust to avoid any action which might jeopardize the tax status of any REMIC and/or impose any tax upon the Trust for prohibited contributions or prohibited transactions.2d 322 (N. aff‘d 45 NY2d 869. comments a.Y.S.D. 271 A. the IRC‘s REMIC provisions. 860G(d)(2) states: (2) Exceptions. The Trust Instrument/PSA Sets Forth A Specific Time. Paragraph (1) shall not apply to any contribution which is made in cash and is described in any of the following subparagraphs: (A) Any contribution to facilitate a clean-up call (as defined in regulations) or a qualified liquidation. and the PSA‘s incorporation of the IRC REMIC provisions. (D) Any contribution to a qualified reserve fund by any holder of a residual interest in the REMIC.‖ 26 U. v First Nat‘l City Bank. (C) Any contribution during the 3-month period beginning on the startup day. App. 295-296. Div.

2007. the IRC‘s REMIC provisions.S. (D) Any contribution to a qualified reserve fund by any holder of a residual interest in the REMIC. there is hereby imposed a tax for the taxable year of the REMIC in which the contribution is received equal to 100 percent of the amount of such contribution. 22 . The PSA addresses these sections of the IRC by obliging the parties to the Trust to avoid any action which might jeopardize the tax status of any REMIC and/or impose any tax upon the Trust for prohibited contributions or prohibited transactions. Method And Manner Of The IRC also provides definitions of prohibited transactions and prohibited contributions which are relevant to this case as well.C. Paragraph (1) shall not apply to any contribution which is made in cash and is described in any of the following subparagraphs: (A) Any contribution to facilitate a clean-up call (as defined in regulations) or a qualified liquidation. ―if any amount is contributed to a Funding The Trust The Trust seeking to foreclose on the Plaintiff has included in the terms of its Trust agreement (the PSA) a specific time. The Trust Instrument/PSA Sets Forth A Specific Time. In the context of this case. The most critical time is the Trust‘s closing date.‖ 26 U. and the PSA‘s incorporation of the IRC REMIC provisions. (B) Any payment in the nature of a guarantee.S. These PSA provisions are important to the analysis of the facts because of the interplay between the New York trust law. 860G(d)(2) states: (2) Exceptions. 860G(d)(1) states: Except as provided in section 860G(d)(2). (C) Any contribution during the 3-month period beginning on the startup day. (E) Any other contribution permitted in regulations. January 30. method and manner of funding the Trust with its assets. the relevant statute is the definition of prohibited contributions which is as follows: 26 U.C.the startup day.

specifically the 23 .According to the terms of the PSA. The specific section of the PSA provides for a window of 90 days after the Trust closing date in which the Trust may complete any missing paperwork or finalize any documents necessary to complete the transfers of assets from the depositor to the Trust. THE TRUST AGREEMENT PROVIDES THE ONLY MANNER IN WHICH ASSETS MAY BE PROPERLY TRANSFERRED TO THE TRUST AND ANY ACT IN CONTRAVENTION OF THE TRUST AGREEMENT IS VOID Thus. for an asset to become an asset of the Trust it must have been transferred to the Trust within the time set forth in the PSA. 2007 and the last day for transfer of assets into the Trust was January 30. Therefore. Transfer of Assets to the Trust Pursuant to the Trust Instrument/PSA There are several methods by which the underlying assets of the Trust. the closing date/startup date was January 30. 2007. The additional 90 days in the timeline requirement is incorporated from the REMIC provisions of the IRC to provide a ―clean-up period‖ for a REMIC to complete the documents associated with the transfers of assets to a REMIC after the startup day (which is also the Trust closing date). all of the assets of the Trust were to be transferred to the Trust on or before the closing date. according to the plain terms of the Trust agreement in this case. This requirement is to ensure that the Trust will receive REMIC status and thus be exempt from federal income taxation.

title and interest of such Seller in and to the assets sold by it in the Trust Fund…. might be transferred or conveyed. the Trust documents permit only one specific method of transfer to the Trust. In connection with such sale. On Behalf Of the Holders Of The CSMC Mortgage Backed Pass Through Certificates.individual promissory notes. In the second paragraph of the language in the Trust Agreement. Here. each Seller sold. the Trustee or the Custodian. endorsed without recourse (A) in blank or to the order of ―US BANK NATIONAL ASSOCIATON. without recourse. That method is set forth in the PSA and can be accessed at: http://www. under the Pooling and Servicing Agreement dated January 30. A trust‘s ability to transact is restricted to the actions authorized by its trust documents. in blank. 24 . 2007. as Trustee. as Trustee. the first statement is one of transfer. Series 2007-1 or (B) in the case of a loan registered on the MERS system. US Bank national Association. and in each case showing an unbroken chain of endorsements from the original payee thereof to the Person endorsing it to the Trustee. set over and otherwise conveyed to the Depositor. and deposited with. all the right. assigned.gov/cgi-bin/browse-edgar?action=getcompany&CIK=0001387355&owner=excl ude&count=40&hidefilings=0 Pursuant to the Mortgage Loan Purchase Agreement. the following documents or instruments with respect to each Mortgage Loan so assigned: (i) the original Mortgage Note. as its agent. The analysis of this transfer language requires that you consider each part.sec. transferred. including any riders thereto. the Depositor has delivered to. stating ―the Depositor has delivered to and deposited with the Trustee or the Custodian the following documents‖.

including any riders thereto.The key document is the original mortgage note. which requires mandatory endorsements found in this language: ―the original mortgage note…. as Trustee. the affirmative language of the Trust agreement places a burden on the depositor to make a valid legal transfer in the terms required by the Trust instrument.(a) The original Mortgage Note. The second possibility stated in ―B‖ provides as the ―or‖ proposition for transfer the following statement ―in the case of a loan registered on the MERS system. The first labeled ―A‖ states ―in blank or to the order of ―US BANK NATIONAL ASSOCIATON. With respect to each Mortgage Loan. The key language in the entire paragraph is the final statement trailing the ―either/or‖ language of A & B which reads: ―and in each case showing an unbroken chain of endorsements from the original payee thereof to the Person endorsing it to the Trustee‖. the Mortgage File shall include each of the following items. under the Pooling and Servicing Agreement dated January 30.. and which shall be delivered to the Purchaser or its designee pursuant to the terms of this Agreement. as Trustee. a requirement of an unbroken chain of endorsements is the requirement of certification of the final contents of the collateral file for the benefit of the Trust. and. which shall be available for inspection by the Purchaser or its designee. under the Pooling and Servicing etc. Series 2007-1. in blank…‖ In each case.endorsed without recourse‖ followed by two alternatives which are phrased in the either/or format. 2007 to the CSMC Mortgage Backed Pass Through Certificates. endorsed without recourse to the order of ―US BANK NATIONAL ASSOCIATON.…‖and showing to the extent available to the related Mortgage Loan Seller an unbroken chain of 25 .

such as the defendant. The foregoing requirement demonstrates clearly that while the parties to the securitization made provisions whereby promissory notes for this Trust might be delivered in blank to the Trustee. namely to evidence that there was in fact a ―true sale‖ of the securitized assets and that they are in no way still property of the originator. It is not contested that securitization trusts. sponsor. in fact. Second. or depositor. the actual promissory note must be endorsed over to the trustee for the specific trust to effectively transfer the asset into the trust and therefore make the GIANNAKAKOS promissory note Trust property. are subject to the common law of New York. and thus not subject to the claims of creditors of the originator. or depositor. This requirement finds support in logic and law and is.endorsements from the original payee thereof to the Person endorsing it to the Trustee―. there were two requirements that were mandatory. New York Law Governs The Mandatory Requirements To Effectively Transfer An Asset To A Trust It is not contested that securitization trusts. such as US Bank. that –that the –that they will have the right to establish their ownership as investors in that collateral. are subject to the common law of New York. sponsor. Conveyed to it. 26 . New York Law Governs The Mandatory Requirements To Effectively Transfer an Asset To A Trust. This requirement stems from a particular business concern in securitization. there was a requirement that ultimately. all notes sold to the Trust were required to have an unbroken chain of endorsements from the original payee to the person endorsing it to the Trustee. First. the ancient and settled law of New York and in particular New York Trust Law(s) on this issue. within 90 days of the Trust closing date.

.S.Y. Sur. Ct. 282 N. 21 (1935). in Burgoyne v. 290 N. ““In the case of a trust where there is a trustee other than the grantor. must be gifted pursuant to applicable law. 1968) (characterizing common stock trust funds as ““common law trust[s]””).Y. Mayfield v. the analysis of whether an asset is trust property is determined under the law of gifts. Slip Op. Sur. There are a few principles of New York Trust law that are particularly important to the analysis of whether any particular asset is an asset of a given trust. Other jurisdictions are in accord. 49 (N. 137 F.”are deemed to be common law trusts. James. there must be a delivery of the gift.g. the New York Supreme Court recognized that business trusts.. 18. 51773U.2d 1013 (6th Cir. also known as ““Massachusetts trusts”. 1943) (applying common law trust principles to a pool of mortgage participation certificate holders).Y. 4 (N. e. See.Y. 2004). Under New York law.S.2d 46. and . First ‟Nat‟l Bank of Chattanooga. In order to have a valid inter-vivos gift.Y. 27 . See also In re Estate of Plotkin.New York‟s trust law is ancient and settled. As early as 1935. Physical delivery of the subject of the gift or a constructive or symbolic delivery (such as by an instrument of gift) sufficient to divest the donor of dominion and control over the property and “what is sufficient to constitute delivery „must be tailored to suit the circumstances of the case‟”. 2004 N.‟” “Under New York law there are four essential elements of a valid trust of personal property: A designated beneficiary. transfer will be governed by the existing rules as to intent and delivery (the elements of a gift)””In re Becker. The delivery rule requires that “„[the] delivery necessary to consummate a gift must be as perfect as the nature of the property and the circumstances and surroundings of the parties will reasonably permit.

Y.Y. 1986).Y. Div. at p.Y. who must not be the beneficiary. 209-210 (N. 201. Central Hanover Bank & Trust Co. Marx v. with the intention of passing legal title thereto to him as trustee. aff‟d 190 App. 266 App. 187 App. 61 A. no rights of the beneficiary in a trust created without consideration arise (cf. and Trusts Law (EPTL) section 7-2. Brown v. 248 N. supra. supra. Gruen. 10 N. Beaver.Y. at p 428) as cited in Gruen v. 421. 428-429. Matter of Szabo.” There is no trust under the common law until there is a valid delivery of the asset in question to the Trust. Vincent v Rix.A designated trustee. Div.Y. 117 N.Y. 1904). 105 Misc 30.Y. Matter of Van Alstyne. 98).D. 395). Sussman. at p 309. (See. see.13 Until the delivery to the trustee is performed by the settlor. 98-99.2d 94. 318-320. and. Spohr. Riegel v.2d 313. 5 Misc 2d 42) as cited in Sussman v. or of a legal assignment thereof to the trustee. 10 N. supra.. Matter of Gurlitz [Lynde]. (id. Speelman v Pascal.. A fund or other property sufficiently designated or identified to enable title thereto to pass to the trustee. 907. 76.Y. App. supra. supra. Beaver. Div. Beaver v.2d 48. supra. 56-57 (N. as cited in Gruen v. 56 (N. 83. (Matter of Szabo. 68 If the trust fails to acquire the N. or until the securities are definitely ascertained by the declaration of the settlor.Y. Beaver v.2d 48.Y. 68 N. 586.2d 838 (N. Marx. Div. 2d Dep‟t 1978).1(c) authorizes investment trusts to acquire real or personal property “in the name of the trust as such name is designated in the instrument 28 . 392. Gruen. supra. Matter of Cohn. 180 N. The actual delivery of the fund or other property. 1986) . when he himself is the trustee.

In the context of mortgage-backed securitization.1(c) authorizes investment trusts to acquire real or personal property “in the name of the trust as such name is designated in the instrument creating said trust. the mortgage loan purchase agreements. and the trust instrument known as the “pooling and servicing agreement. is not transferred properly or timely. the mortgage loan purchase agreements.” prescribe a very specific method of transfer of the notes and mortgages to the Trust. which include the custodial agreements. In an action against the individual defendant. Because the method of transfer is set forth in the Trust instrument. Because the method of transfer is set forth in the Trust instrument.creating said trust. based on the theory of breach of fiduciary obligation.” The actual contracts of the parties. The question then arises — “What constitutes valid delivery to the Trustee?” Where the property. the actual contracts of the parties. the Trust documents require that the promissory notes and mortgages be transferred to the Trustee. which under New York trust law requires valid delivery. An attempt to convey to a trust will fail if there is no designated beneficiary in the conveyance.” Further. which include the custodial agreements.” prescribe a very specific method of transfer of the notes and mortgages to the Trust. there is no trust over that property which may be enforced. and the trust instrument known as the “pooling and servicing agreement. it is not subject to any variance or exception. it is not subject to any variance or exception and Trusts Law (EPTL) section 7-2. it is clear that registration of the notes and mortgages in the name of the trustee for the trust is necessary for effective 29 .

S. . Magnetic Head Corp. 882 (N. hence.transfer to the trust.E. (See Kermani v. 282 (N. 4 A. 881..”” (citations omitted)). 3d Dep‘t 1957).Y. and not left to implication. Farmer. 30 .2d 603 (N. His [or her] status is more that of a trustee.2d 280. Co. Manufacturers Trust Co.‖. 654 (N. See Schmidt v.Y. . . Within the Statutes of New York governing Trusts. Morlee Sales Corp. Div. but exclusively by the terms of the agreement. App.Y. 1928)) When the requirements of transfer to the trustee are viewed in the context of the corporate or business trust indenture. . more information about compliance with these requirements becomes apparent. v. App.Y.‟““ (quoting Heller v..Y.Div. not by the fiduciary relationship. Estates Powers complaint was properly dismissed on the ground that he had acquired no title or separate control of the goods and.D. (See Wells Fargo Bank v. An obligation undertaken by one of the parties that is intended as a promise . has his [or her] rights and duties defined. there was no actual trust over the property to breach. 172 N. and thereby „make a new contract for the parties under the guise of nterpret[ation].Y. . Misc Lexis 3248.. .E.2d 649. . Courts may neither ignore the actual provisions of transaction documents nor create contractual remedies that were omitted from the governing contracts by the contracting parties. . 468 N. should be expressed as such. Ins. Pope.. 2008 N. .1961) (““[T]he courts may not by construction add or excise terms . ―[a]n indenture trustee is unlike the ordinary trustee. 1983) (““It is fundamental that courts enforce contracts and do not rewrite them . 250 N. One must first understand that “[t]he corporate trustee has very little in common with the ordinary trustee . . Liberty Mut. .The trustee under a corporate indenture .

aff‘d 45 NY2d 869. Chase National Bank. 271 A.S.D. 950. 2008) 18Green v. given that New York Estates Powers and Trusts Law section 7-2. Slip Op.Y.Y. 1991). Ct. It is settled that the duties and powers of a trustee are defined by the terms of the trust agreement and are beneficiaries‖. 5766.. 57. 1936).D. 31 . 248 N. 287 N. 151 Misc.Y. Div. App. 708 (1940). 12. Further. Sup.S. some cases have confined the duties of the indenture trustee to those set forth in the indenture. denied.‖ The obligations are defined by the terms of the indenture agreement. 541 (Sup. 257 A. 159 Misc.S. d) as cited in In re IBJ Schroder Bank & Trust Co. See Meckel v.In contrast.20see.S. Restatement [Second] of Trusts § 186.D. 652. Ct.Y. United States Trust Co. (See AG Capital Funding Partners. 57 A. 14 N. State St. aff‘d.Y. The property must be registered in the name of the trustee for the particular trust.2d 147 (1st Dept. L. 2d 334.D. aff‘d. 311 U. Hazzard v.). 627 (1928). held with incomplete endorsements and assignments that do not indicate that the property is held in trust by a trustee for a specific beneficiary trust. v First Nat‘l City Bank.Y. 282 N.2d 285. 252 (1st Dept. 1985) as cited in Ambac Indem. cert. 816 (2d Cir.. Bankers Trust Co. “[i]t is tempered only by the fiduciary obligation of loyalty to the clear import of these cases and statutes is that the delivery of an asset to a trustee under the terms of a corporate indenture requires strict compliance with the mandatory transfer terms of the trust indenture. aff‘d.1(c) authorizes a trustee to acquire property “in the name of the trust as such name is designated in the a stakeholder than one of the indenture trustee. 2008 N.2d 322 (N.Y. Trust property cannot be.2d 811. Corp. 336 (N.Y.. v.Y. v.. comments a. 227 N. 295-296. 223 A. and must take delivery in strict compliance with the terms of the PSA/Trust document. 1st Dep‘t 2000). 7 (N.P. 758 F.). Bank & Trust Co. Title Guarantee & Trust Co. Continental Resources.

How could one logically argue that delivering a promissory note endorsed in blank (making it bearer paper) into a trustee‘s vault is ―delivery beyond the authority and control of the donor‖ when the vault is managed by the agent of the donor? If the donor were to claim that the promissory note ―If the donor delivers the property to the third person simply for the purpose of his delivering it to the donee as the agent of the donor. 105 Misc. 1928). Intention alone. Riegel v. 76.. aff‘d 190 App. Farmer.A. v. Central Hanover Bank & Trust Co. 248 N. Sussman.Y. N. Without the consummated act of delivery. 266 App.2d 838 (N. Such a delivery is not 32 . 2008) 22(cf. “The failure to name a beneficiary for the Trustee renders the assignment without merit. 61 A. Div. Marx. 2d Dep‘t 1978). 2008 NY Slip Op 51133U. there must be a change of dominion and ownership.Y. 6 (N. 30. Div. Matter of Gurlitz [Lynde].Y.D. Div. App. Marx v. Sup. 586. supra. no matter how fully established. ―It is the consummation of the donor‘s intent to give that completes the transaction. 5 Misc 2d 42) as cited in Sussman v. Ct. the gift is not complete until the property has actually been delivered to the donee.It is clear in the law of New York that an attempt to transfer to a trust which fails to specify both a trustee and a beneficiary is ineffective as a conveyance to the Trust. 82-84 (N.Y. (See Wells Fargo Bank. intention or mere words cannot supply the place of an actual surrender of control and authority over the thing intended to be given. 907. “This position is further supported logically in the common law of New York by the following propositions: The delivery necessary to consummate a gift must be as perfect as the nature of the property and the circumstances and surroundings of the parties will reasonably permit. 23Vincent v. is of no avail‖. Putnam.

Accordingly. by which the donor can revoke the authority of the agent. the property must pass completely out of the control of the donor (and its agents): Another case addressing this issue holds that “In order that delivery to a third person shall be effective.”Trustees for securitizations often occupy many roles simultaneously and conflictingly both as document custodians and trustees for myriad thousands of securitizations as well as for various parties who are active in the securitization process including originators. and resume possession of the property. there would be nothing that would indicate which of thousands of trusts in the care of a trustee a particular promissory note might belong to or if it were the personal property of the This point was recently slammed home to the public consciousness in a watershed decision out of the State of Massachusetts. Absent such registration. not the trustee‘s. at any time before the authority is executed. as the agency could be terminated before delivery to the intended donee. Delivery to an agent of the donor is ineffective. it is inconceivable that anything other than registration into “the name of the trust as such name is designated in the instrument creating said trust property‖ could ever qualify as delivery to any particular securitization trust. servicers. Accordingly. sponsors and depositors. he must be the agent of the donee. New York law expressly requires that for property to be validly delivered to a trust.absolute. there would be no evidentiary basis for the trustee to claim ownership. 33 .‖‖ were its property. for the ordinary principle of agency applies.

THE DEFENTANT‟S MOTION APPLICABLE UNDER THE LAWS OF VOID. Ibanez. 7. 34 . v. For ABFC 20050PT 1 Trust.On January 7. CLAIM AND IS A SELF EVIDENTLY ENFORCABLE. While that ruling is of course not binding.] The Massachusetts Supreme Judicial Court did not tell the homeowners they are allowed to shirk their obligation to pay their mortgages. Effectively.S. IS HEREBY A VALID ASSESSMENT. Bank Assn. this put the borrowers back into the place they were before the foreclosure. therefore. neither had title to the foreclosed properties and that their foreclosures were void. AS IN THIS INSTANT CASE. ABFC Asset Backed Certificates. 2011). 2011. the Supreme Judicial Court of Massachusetts—the highest court in that state—rendered a unanimous verdict in a case captioned U. SJC-10694. The case was a ruling on two consolidated cases – both cases were filed by banks (as trustees for two separate trusts) to quiet title on properties they had foreclosed and purchased at the foreclosure sale to satisfy the mortgagor‘s debt.. The facts of the case in Massachusetts and the facts of this instant case are similar. Trustee. it is very much contrary to the mortgage securitization industry‘s position in cases involving the foreclosure of mortgage loans which have allegedly been securitized. The Massachusetts Supreme Judicial Court held that neither bank proved that its trust owned the mortgages when they foreclosed on the homes. Natl. (Mass. Jan. No. which are still outstanding. Series 2005-0PT 1. valid obligations. [THUS.

and they should be upheld even if adherence to the law is inconvenient for banks rushing to sell mortgage-backed securities. THE INTENT TO TRANSFER AN ASSET TO THE TRUST IS NOT A TRANSFER TO THE TRUST The contents of these statutes.The Massachusetts Supreme Judicial Court did.‖ Just as the principles and requirements of Massachusetts law are well-founded. however. The failure to deliver the notes and mortgages to these trusts as required by the trust instruments is a default under the terms of every agreement that these parties executed. The Massachusetts Supreme Judicial Court noted that “he legal principles and requirements we set forth are well established in our case law and our statutes”. It is well worth noting the conclusion of the Massachusetts Ibanez opinion. All that has changed is the [banks‘] apparent failure to abide by those principles and requirements in the rush to sell mortgage-backed securities. sharply instruct the banks that they must have the proper documentation which demonstrates a valid right to foreclose before a foreclosure can be carried out. The controlling law is overwhelmingly against the industry in this position. 35 . cases and contracts lead to one inescapable conclusion: the intent of the parties and the requirements of the contracts were that the assets be conveyed to the Trusts by the Trust closing dates. so too are those of New York law. For a transfer to any foreclosure industry has chosen to argue that it is clear that it was the parties‘ ―intent‖ to transfer these assets and therefore ―no court‖ would ever declare that these assets were not transferred to these trusts.

The securitization industry chose to create its securitization trusts under New York law precisely because the law was ancient and settled. Rix. There must be also delivery beyond the power of further control and dominion. confers no right upon the intended beneficiary. 247 App.including their agreements for payment guarantees with the monoline bond insurers. In response to the lucidity of the controlling law on this issue.Y.‖ Equity will not help out an incomplete delivery. There must be also delivery beyond the power of further control and dominion. there should have been a registration of the assets into ―the name of the trust as such name is designated in the instrument creating said trust property‖—this is the only method by which these assets could have been ―divested from the possession and title‖ of the donors. 85. The well-settled New York trust law provides that “A mere intention to make a gift which has not been carried into effect. 76. parties such as the Plaintiff trust are left to argue hope against precedent. the mortgage did (See Vincent v. Matter of Green. 36 . The controlling law is overwhelmingly against the industry in this position. 85 v.” foreclosure industry has chosen to argue that it is clear that it was the parties‟“intent” to transfer these assets and therefore “no court” would ever declare that these assets were not transferred to these trusts. If the agent of the donor has failed to make the delivery expected equity will particular trust to be effective. 76. Rix. 248 N.Y. Now that the actions of the foreclosure industry contradicts that law. 248 N.

(See Vincent v. McCarthy v. 264 A. although the donor need not in person or by agent hand the article to the donee. Div. ―Thus. 248 N. 1913). App. 76.Y.D. 207 N. 407. 941 (N. 207 N.Y.Div. but a symbolical delivery is sufficient delivery as nearly perfect and complete as the circumstances will allow. Putnam. This fundamental rule has existed from the beginning and is still law. An indenture trustee is unlike the ordinary trustee. the situation of the subject of the gift must be considered. 309-310 (N. 1928) 30In re Van Alstyne. or in the physical condition or the surroundings of the donor..Y. Further. It is true that the old rule requiring an actual delivery only when the conditions are so adverse to actual delivery as to make a symbolical.Y. 309-310 (N. Pieret. 32Allison & 37 . 940.Y. that made a symbolical delivery necessary.31 In re Van Alstyne.Y. if the latter assumes the possession. and capable of delivery without serious effort. 4th Dep‟t 1942) not declare him a trustee for the donee. 540. 82-84 (N. either deed or will. it is not too much to say that there must be an actual delivery.‖of the thing given has been very largely relaxed. 298. 1913).281 N.Y.‖ There was absolutely nothing in the physical nature of the papers delivered. Thornton on Gifts and Advancements (§140) notes: ―In determining whether there has been a valid delivery. If it is actually present. the failure to convey to a trust per the controlling trust document is not a matter that may be cured by the breaching party. 409.Y. 298. New York law is unflinchingly clear that a trustee has only the authority granted by the instrument under which he holds. In contrast .) as cited by In re FIRST TRUST & DEPOSIT CO.

336 (N. Therefore. late endorsements. 1939). Sup. Ct.. 151 Misc. improper chains of title. The attempt to acquire assets by these trusts which violate the terms of the Trust instrument are void. the trustees for these trusts may only acquire assets in the manner set forth in the trust instrument and may not acquire assets in violation of the trust instrument. Bankers Trust Co. The attempt to acquire assets by these trusts which violate the terms of the Trust instrument are void. the trustees for these trusts may only acquire assets in the manner set forth in the trust instrument and may not acquire assets in violation of the trust instrument. 170 Misc. 33Ambac Indem.Y. they are not assets of the trusts and the trustee cannot correct this deficiency now since the funding period provided in the Trust instruments passed many years ago. v. 144. Corp. 146 (N. McNee. improper chains of title in the endorsements and the attempt to transfer to the trusts by foreclosure deed are just a number of the many examples of actions which are void if taken by a party to the indenture who is attempting to transfer property to the Trustee for the Trust in violation of the trust instrument. they are not assets of the trusts and the trustee cannot correct this deficiency now since the funding period provided in the Trust instruments passed many years ago. and further support the Defendant‗s arguments once again 38 . 2d 334.Y. THE TRUST NEVER PROPERLY ACQUIRED THE MORTGAGE NOTE AND THE TRUST CANNOT CURE ITS FATAL STANDING DEFECT Therefore. v. 1991). That no assets were conveyed to these trusts as required and when required by the trust instrument. Sup.Ver Valen Co. To the extent that any assets were not conveyed to these trusts as required and when required by the trust instrument. Ct. late assignments.

is void. Securities and Exchange Commission in filings under oath that it possesses assets in excess of for example $400 million. the Trust must be funded in accordance with the requirements of the PSA/Trust documents. the purported Trust was actually closed before the date that MERS signed the assignment to US BANK NA. To acquire assets. improper chains of title in the endorsements and the attempt to transfer to the trusts by foreclosure deed are just a number of the many examples of actions which are void(s). THE TRUST NEVER PROPERLY ACQUIRED THE MORTGAGE NOTE AND THE TRUST CANNOT CURE ITS FATAL STANDING DEFECT New York‟s Law is so well-settled regarding the limitations of a trustee‟s power to act that New York‟s Estates Powers and Trust Law Section 7-2. if taken by a party to the indenture who is attempting to transfer property to the Trustee for the Trust in violation of the trust instrument. except as authorized by this article and by any other provision of law. Under New York law there is no trust over property that has not been properly transferred to a trust. and its purported Trust. 39 . late endorsements. moreover. late assignments. every sale. improper chains of title.4 Act of trustee in contravention of trust: If the trust is expressed in the instrument creating the estate of the trustee. US Bank National Association has stated to the U. conveyance or other act of the trustee in contravention of the trust. The assignment as applicable in this case was filed long after the (United States Security and Exchange Form 15/15D) was filed with the SEC by US Bank as Trustee. Therefore.4 states: § 7-2.as as applicable under the ―LAWS OF VOIDS a/k/a LAWS OF VOIDED JUDGEMENTS.S.

. Deed of trust. to the CSMC Mortgage-Backed Trust 2007-1 (the purported Issuing Entity) to which US Bank National Association acted as (Trustee). (the Depositor). This section details how the mortgage notes in the instant case were transferred from the “Originator. and. Wells Fargo Bank. US Bank National Association. The only assignment of the mortgage was signed by a purported individual claiming to be an officer for MERS (to which MERS has only 44 employees). not US BANK NA.) to Credit Suiess First Boston Mortgage Securities Corp.‖ The Trust never possessed the mortgage note per the terms of the PSA (Pooling and Service Agreement). Inc. the original mortgage note showing an unbroken chain of endorsements from the original payee to the person endorsing it to the Trust.. New Jersey Mortgage Corp. Wells Fargo Bank. as (Master Servicer). with. to the sponsor and a seller (DLJ Mortgage Capital. (a Bankrupt entity). the CSMC Mortgage Backed Trust 2007-1. Based on the documents. At which time.The pertinent terms of the agreement are found within the governing doctrine. are found under the caption or title (Conveyance of Trust Fund) of the PSA. nothing has been submitted by the Trust to the Court indicating that MERS ever assigned the mortgage to any other entity. and. ―According to the requirements set forth in the Trust Agreement Defendant would expect to see a series of endorsements of the promissory note reflective of each party who had an interest in the promissory note reflective of each party who had an ownership interest in the promissory note culminating with a blank endorsement from the depositor at the very minimum. acting as (Trust Administrator). or its so called acting capacity title as trustee is the mortgage holder. does not have the authority to foreclose the mortgage. 40 . was required to deliver to the “TRUSTEE” or TRUST ADMINISTRATOR.

US BANK NA.t. and. one is left with one clear and inescapable proposition: The Trust has never owned the Giannakakos promissory note and the Trust can never own the Giannakakos promissory note.Any attempt by MERS. moreover was never a true transfer to this Trust‖ US BANK NATIONAL ASSOCIATON. Trust has not provided documentation to show that it was or is entitled to the money secured by the mortgage of Giannakakos property. THE TRUST IS NOT ENTITLED TO THE MONEY SECURED BY THE GIANNAKAKOS MORTGAGE AND CANNOT FORECLOSE Because of the fact that MERS transferred the loan and note after the closing date of the trust and the filing of the form 15D as evidence in the case is that the Giannakakos loan has never been conveyed to the Trust and a conveyance to the Trust at this time would be void as violating the terms of the PSA. ―The defendant Trust has offered no proof of ownership and the collateral file. By the terms of the Trust and the applicable provision of the Internal Revenue Code incorporated into and a part of the Trust agreement. is without prudential standing. the promissory note cannot be transferred to the Trust. Series 2007-1 Trust as Plaintiff[s] has no parity with the Defendant. Evidence presented by the attorneys for the Plaintiff and Plaintiff (the trust and trustee) suggests that the Trust clearly demonstrates that this loan was not securitized (meaning a fabrication in securitization via ‗d. under the Pooling and Servicing Agreement of the CSMC Mortgage Backed Pass Through Certificates. not the least of which is that the closing date of January 30 2007. passed nearly 6 years ago. to transfer the promissory note to the Trust at a late date or later date would fail for numerous reasons. the Plaintiff 41 .c ‘ only). as Trustee.

Am.S.29 (2004) (quoting Warth v. 454 U. A court‘s jurisdiction is dependent upon the standing. then it must prove that the instrument. and Must prove that it has this authority.S. defunct corporation. as is present in prima facie form here. may have the required standing. which it must prove. 543 U. Plaintiff also lacks capacity. only then. then the real party in interest must be enjoined.lacks Constitutional Standing and Plaintiff[s] has failed to demonstrate it is the real party in interest. if it cannot prove this. New Jersey Mortgage Corp. United for Separation of Church and State. 42 . full and complete authority to act on behalf of the real party in interest.S. The trust nor the trust has not demonstrated it is holder in due course. 125. which includes both constitutional standing and prudential standing. of the litigant. 464. can Plaintiff attempt proof that it has actual.. Subsequent to discovery of the precise identity of the real party in Interest and when this has been proven. Presence of a statuary trust. as a party. 2Kowalski v. 422 U. the alleged note is negotiable. US Bank National Association is legally devoid of standing to enforce the note in question. v. Tesmer. (See Valley Forge Christian Coll. the ―original lender‖ as stated on the Deed of Trust in section [c] ―Lender‖ of the subject Deed of Trust. by Plaintiff. 490. Seldin. acting on behalf of certificate holders. 498 (1975)). now an inactive. 472 (1982). 128. but NJMC is not enjoined. this fact causes fatal UCC (Uniform Commercial Code) defect(s) on standing issues.

must. Jacobson. and the arguments contained herein. Foreclosure agents and servicers must prove they have authority to act for a party that has standing. permanently deny US Bank National Association from foreclosing on the property because they have failed to make the required showing that they are or ever were or ever could be the holder of the mortgage/Deed of Trust and promissory note. The home loan was transferred into a pool of loans to be sold on Wall Street. will require that a party. The assignments of mortgage are ―Robo-Signed‖. supra at 12. the terms of the Pooling and Service Agreement. and are legally deficient. 376 B.R. this pool of loans is governed by a Pooling and Servicing Agreement.R. 285 290 (Bankr. under the statutory trust. at 767. and that it is likely to be redressed by a favorable decision.The ―original lender‖ has not lawfully conveyed the Deed of trust and its Note in a proper legal manner. D. have suffered some actual or threatened injury as a result of the Defendants` conduct. that the injury be traced to the challenged action. Kang Jin Hwang. the failure to show the proper chain of endorsements. by stated black letter law. to the Trust in keeping with the rules of the Pooling and Servicing Agreement. the Plaintiff cannot satisfy this basic element with lawful success. to which is closed and under trust law can only be terminated in kind or in cash position‖ Not to mention the fact the note in question was sold away from the Trust. Based on the law. Constitutional Standing under Article III. 43 . Idaho 2007). 396 B. (See In re Scott. minimally.

Rule 9014. 45 L. 499. Seldin. 2197. 490. As a prudential matter. 2004). 1112 (9th Cir. P.S. 490. and redressibility. as found in FED. P. 2d 519 (2004) (quoting Warth v. 454 U. United States. causation. United for Separation of Church and State.”) In re Mitchell.3d 1107. that the injury be traced to the challenged action. (See Valley Forge Christian Coll. which provides “[a]n action must be prosecuted in the name of the real party in interest. Beyond the Article III requirements of injury in fact.STANDING Standing requests are governed by FED. 472. 17 applicable (“[a]n action must be prosecuted in the name of the real party in interest. 4001(a)(1). 464. 102 S. BANK R. (See Warth v. R.S. which makes FED. that a party must have suffered some actual or threatened injury as a result of the defendant‘s conduct. at a minimum. 2D 343 (1975)).Nev. 2d 343 (1975)). 45 L. 125. Tesmer. 9014 is applicable. BK-S-07-16226-LBR (Bankr. incorporates Rule 7017.‖. Ct. which is a judicially-created set of principles that places limits on the class of persons who may invoke the courts‟ powers.‖ (See Kowalski v. 422 U.). R. 70 L. Constitutional standing under Article III requires. 3/31/2009)(At page 10) the Court found that “MERS does not have standing merely because it is the alleged beneficiary 44 . R. R. 95 S. Ed. 422 U. v.S. 17. Ct. Ed. Bank R. the creditor must also have prudential standing. 128-29. 752.S. Seldin. 564. Ed. and that it is likely to be redressed by a favorable decision. 358 F. 2197. 498. Ct. The standing doctrine ―involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise. 125 S. Ct. 2d 700 (1982)(citations and internal quotations omitted)). 160 L. in turn. Ed. (See Dunmore v. to which FED. Am. Case No. P. 543 U. CIV. a plaintiff must assert “his own legal interests as the real party in interest”. Civ. 95 S. P.

MERS is the mortgagee 45 . (Watkins v. Fourth Edition. 378 B. 27 P 77) MERS HELD NO ENFORCEABLE BENEFICIAL INTEREST AND COULD NOT PASS ANY SUCH INTEREST TO US BANK NA US Bank National Associaition‘s interests – if any – flow from MERS interests. the transferor should physically deliver the note to the transferee. 22 (2007) THE PROMISSORY NOTE EVIDENCES THE REAL PARTY IN INTEREST. has no legal standing to foreclose ab initio. Without a physical transfer. a sale of the note could be invalidated as a fraudulent conveyance and a transfer in pledge could be invalidated as unperfected. Referencing: (California Mortgages and Deeds of Trust.under the deed of trust.26) One without a pecuniary interest in the Mortgage Loan is not an oblige under the debt and. section 1. AND THAT PARTY IS NOT MERS OR US BANK NA Transfers of mortgage paper may be made outright (sale) or by pledge (as security for a loan to the transferor. thus. US Bank National Association‘s ignores the plain language of the mortgage that names MERS as a nominee: ―MERS‖ is Mortgage Electronic Registration Systems. Inc.). It is not a beneficiary and. the Bankruptcy Court for the District of Massachusettes found that a lender did not have standing to seek relief from the automatic stay because it did not have an interest in the property at the time it filed its motion for relief. MERS is a separate corporation that is acting solely as a nominee for Lender and Lender‘s successors and assigns. In either event. in any event. Bryant (1891) 91C 492.R. by Roger Bernhardt.” In re Maisel. 19. to perfect the transfer. and Foreclosure Litigation. the mere fact that an entity is a named beneficiary of a deed of trust is insufficient to enforce the obligation.

16 Wall. it must first show that MERS had rights to the un-indorsed Note which it could assign to US Bank National Association or the Trust. US Bank didn‘t take the Note pursuant to negotiation under the UCC. An assignment of the note carries the mortgage with it. Longan. while an assignment of the latter alone is a nullity. is going to demonstrate an equitable assignment of the note. 271.S. grant or otherwise deign to transfer the rights of the obligee. the terms and provisions of the MERS mortgage expressly refute the notion that MERS owned or held the note at inception.” An obligation can exist with or without security. With no security. 274. Only the Homeowner signed the mortgage and it is indisputable that she cannot award. US Bank with taking whatever rights MERS had by the Assignment of Mortgage from MERS to US Bank etc and/or the Trust. not the note) to sell or transfer the note or mortgage or to assign its duties as nominee. the U. 313 (1872). the obligation is unsecured 46 . MERS could not assign any greater rights to US Bank or in it‘s capacity as trustee than MERS had. The Note was not indorsed to US Bank. Therefore. Supreme Court stated “The note and mortgage are inseparable. 83 U. the note holder.S. 271. 21 L. the latter as an incident. the former as essential. The mortgage was not countersigned by the original note holder/lender (New Jersey Mortgage Corp) such as to give MERS any rights or interests in the note.Ed. if US Bank National Assocaition. However.under this Security Instrument. As well the Note itself admits of no rights or interests in MERS. In Carpenter v. to another. The mortgage granted no power or authority to MERS (a mere nominee holding only the lien.

If the creditor transfers the note but not the deed of trust.2d 686. Hotaling (1871) 41 C 22. Adler v. 42.) In either event. Lee v. the transferee receives a secured note. 2d 505. and Foreclosure Litigation.2d 345. (California Mortgages and Deeds of Trust. Upshaw (1952) 39 C. (1932) 216 c 165. Turner v. the security follows the note. Polhemus v. Gosden (1932) 121 CA 20. California Mortgages and Deeds of Trust. section 1.2d 560) (endorsement of note transferred deed of trust). by Roger Bernhardt. Joseph (1968) 267 CA2d 30. legally if not physically. Lewis v. § 1. (Civil Code § 2936. Fourth Edition. the transferor should physically deliver the note to the transferee. however. 2909. 13 P. If the transferee is given the deed of trust without the note accompanying it. Without a physical transfer. the transferee has no meaningful rights except the possibility of legal action to compel the transferor to transfer the note as well. the one holding the note prevails. if such was the agreement. 72 CR 471) It is impossible to define security apart from its relationship to the promise or obligation it secures. cannot exist without an underlying existing obligation. (Civil Code §§ 2872. Tuxedo Land Co. Booth (1935) 3 C. 44 P. (Hensley v. Trainer (1866) 30 C 685) When one transferee receives the note and another receives the deed of trust. Fourth Edition. 799. a sale of the note could be invalidated as a fraudulent conveyance 47 . (Kelley v. Sargent (1895) 109 C. 8 P. 246 P. to perfect the transfer.2d 179. 41 P. Seidell v.2d 23.11) The obligation and the security are commonly drafted as separate documents – typically a promissory note and a deed of trust.but still valid. by Roger Bernhardt. and Foreclosure Litigation. A security interest.25) Transfers of mortgage paper may be made outright (sale) or by pledge (as security for a loan to the transferor. regardless of who first received a transfer. 2920.

Supp.26) One without a pecuniary interest in the Mortgage Loan is not an obligee under the debt and. Bryant (1891) 91C 492. An investor. 2D 650. 26. 89. 48 . by Roger Bernhardt. 34. 20. (fn) Even if the servicer has physical custody of the note. Oh. 68.D. POWELL ON REAL PROPERTY. In the consolidated cases of In re Foreclosure Cases. the transaction is a nullity and his ‗assignee. custom in the mortgage industry is that the investor (Fannie Mae. 2007). 46. thus. 44. Freddie Mac. 76. (California Mortgages and Deeds of Trust. has a worthless piece of paper. Case No. 42. 3/31/2009)(At page 12) MERS website admits at pages 10. will be the ultimate owner of the note. 88. section 1.(under Civil Code § 3440). 22. 99: MERS stands in the same shoes as the servicer to the extent that it is not the beneficial owner of the promissory note. 78.27[2] (2000). 653 (S.Nev. 40. (Watkins v. 27 P 77) ―Where the mortgagee has ‗transferred‘ only the mortgage.‖ (4 RICHARD R. BK-S-07-16226-LBR (Bankr. In re Mitchell. typically a secondary market investor. POWELL. and Foreclosure Litigation. 521 F. has no legal standing to foreclose ab initio. 72. 62. 38. Fourth Edition. Ginnie Mae or a private investor) owns the beneficial rights to the promissory note. and a transfer in pledge could be invalidated as unperfected (under Com Code §§ 9313-9314). a standing challenge was made and the Court found that there was no evidence of record that New Century ever assigned to MERS the promissory note or otherwise gave MERS the authority to assign the note. § 37.‘ having received no interest in the underlying debt or obligation.

the Court stated “In order to foreclose. 2009). MERS must establish there has been a sufficient transfer of both the note and deed of trust. 2006). Lamy. The Court found that though MERS attempts to make it appear as though it is a beneficiary of the mortgage. the Court denied a foreclosure action by an assignee of MERS on the grounds that MERS itself had no ownership interest in the underlying note and mortgage. or to any of the properties secured by the loans.Y. In LaSalle Bank NA v.Y.Nev. The Court stated ―But it is obvious from the MERS‘ ―Terms and Conditions‖ that MERS is not a beneficiary as it has no rights whatsoever to any payments.2d 769 (N. Supp. In the case of In re Mitchell. courts around the country started to recognize that MERS had no ownership in the notes and could not transfer an interest in a mortgage upon which foreclosure could be based. Case No.Beginning with this case. or that it has authority under state law to act for the note‟s holder. it in fact is not a beneficiary. extensions and modifications of 49 . (i) the repayment of the Loan. to any servicing rights. and all renewals.S.. This Security Instrument secures to Lender. TRANSFER OF RIGHTS IN THE PROPERTY The beneficiary of this Security Instrument is MERS (solely as nominee for Lender and Lender‘s successors and assigns) and the successors and assigns of MERS.” (At page 9) The Court found that MERS has no ownership interest in the promissory note. BK-S-07-16226-LBR (Bankr. 824 N.

in trust.C. and (ti) the performance of Borrower‘s covenants and agreements under this Security Instrument and the Note.‖ The Court stated ―Further. 2009). the Kansas Supreme Court extensively analyzed the position of MERS in relation to the facts in that case and other 50 .‘s parent company. acting solely as nominee for Lender and Lender‘s successors and assigns. .3D 158 (Kansas.‖ In Landmark National Bank v. 2008) . the Deed of Trust‘s designation of MERS as ―beneficiary‖ is coupled with an explanation that ―MERS is . is an entity whose sole purpose is to act as mortgagee of record for mortgage loans that are registered on the MERS System.. Inc. 216 P. 2009) MERS moved for relief from the stay. Borrower irrevocably grants and conveys to Trustee. itself owned and operated by MERS. (fn 10: MERS. This system is a national electronic registry of mortgage loans. It is owed and will collect no money from Debtors under the Note.D. the Court stated: MERS is not in the business of holding promissory notes.‖ The Court stated ―Even if the proposition is accepted that the Deed of Trust provisions give MERS the ability to act as an agent (―nominee‖) for another. Kesler. with power of sale. it acts not on its own account.) In the case of In re Sheridan. 396 B. Case No.R. Inc. the following described property located in CA In the case of In re Vargas. 511. For this purpose. 520 (Bankr.the Note. Its capacity is representative.. 08-20381-TLM (Bank r. nor will it realize the value of the Property through foreclosure of the Deed of Trust in the event the Note is not paid.Cal. Inc. The Court stated that MERS “Counsel conceded that MERS is not an economic “beneficiary” under the Deed of Trust. MERSCORP. . Idaho.

non-binding court cases and concluded that MERS is only a digital mortgage tracking service. under state secured credit laws. Most counties charge a fee to record the assignment. LP. which is currently pendente lite and therefore US Bank National Association Associates. . has no constitutionally protected interest in the mortgage loan. or gain title to the Defendant‘s real property until all matters concerning the Genuine Original Promissory NOTE are settled and/or dismissed by this Court. suffered no direct. The parties obtain two principal benefits from attempting to use MERS as a “mortgagee of record in nominee capacity. . 51 . .” First. and Investment and stated: MERS is merely a document custodian. Associate Professor of Law. Peterson. . Christopher L. . . is not owed any money by the mortgage debtors. The system itself electronically tracks ownership and servicing rights of mortgages. and use these fees to cover the cost of maintaining the real property records. did not receive any payments from the borrower. furthermore.S. may be justly barred from claims to collect. CONCLUSION AND RELIEF SAUGHT The request of the Defendant in this action as it pertains to the real property is relative to the transfer of the Genuine Original Promissory NOTE.. University of Florida. Insurance. selling. did not extend credit. Housing. or risk losing priority vis-à-vis other creditors. ascertainable monetary loss as a consequence of the litigation and consequently. and. and Urban Affairs Subcommittee on Securities. (At page 168) The Court recited that MERS never held the promissory note. did not own the mortgage instrument (though the documents identified it as ―mortgagee‖). Senate Committee on Banking. when a mortgage is assigned. that it did not lend money. or lienors. buyers. testified at a hearing before the U. the assignee must record the assignment with the county recording office.

. which further controverts this illegal foreclosure. notwithstanding said foreclosure being unlawful or not. until then US Bank National Association. transferred and/or lost. this Court should sequester the Genuine Original Promissory Note as the Genuine Original Promissory Note is a pertinent issue in this case and any adjudication of this matter may be unenforceable and/or invalid if the Genuine Original Promissory Note is somehow destroyed. In fact. Fairbanks.The Defendant has the substantial right to have this Court sequester the ―Genuine Original Promissory Note‖. as the Defendant is not requesting to “see” the Genuine Original Promissory Note. should not be allowed to foreclose on the Defendant‘s loan or real Property. Pursuant to Perry v. The Defendant states on and for this Court‟s record that The Defendant is in fact the TRUE OWNER of the real property in question. Stanford 1726. which has never been abrogated and/or 52 . It is incumbent on this Court to protect the interests of all parties and said interest is reliant on the Genuine Original Promissory Note being in good condition and not altered in any way by any party during this case. Id. and not to mention the inherent fact of the violation of the National Housing Act. and. and other legal arguments. Sequestration of the Genuine Original Promissory Note is in no way similar to any so called “show me the note” theories as espoused on the internet. TRUE OWNERSHIP is a higher Right than legal ownership in ALL matters pursuant to Keech v. if the foreclosure does proceed in accordance with any possible future ruling of this Court. The Defendant is ONLY requesting that this Court protect the Defendant‟s due process of law rights to have the property of interest in this matter be protected by this Court. and that any claim of legal ownership by any party is unsubstantiated. this Court may be required to immediately cancel and hold said Genuine Original Promissory Note.

jointly and/or separately.abolished and/or altered by any court in this nation. once US Bank National Association. will be evidence beyond a shadow of a dough as to the true party of interest. attempts to take possession of the real property in question or possess claims. if they are the true party of interest. alter. US Bank National Association. and after said adjudication return and/or cancel the Genuine Original Promissory Note pursuant to this Court‘s lawful and fair decision. and others. Presenting the instrument does not change their claims. Sequestration of the Genuine Original Promissory Note in no way harm‟s the Plaintiff. to return the Genuine Original Promissory Note relating to the real property of the Defendant immediately after the foreclosure or the foreclosure may not be considered lawfully consummated. The lawfulness and or fraudulent nature of the judicial foreclosure proceeding withstanding or notwithstanding. The Defendant hereby moves this Court to sequester the Genuine Original Promissory Note until this case is fairly adjudicated. falsify and/or forge documents and record such documents into a public office. but. The Defendant also invokes The Defendant‘s right to replevin action pursuant to applicable State Constitution and Statutes. The Defendant fear that the Genuine Original Promissory Note may be somehow transferred and/or sold and/or otherwise held by an improper party are sufficient grounds for his request for sequestration as the Defendant has provided sufficient evidence to this Court that the Defendants. may be required by the laws of Florida. is if the Plaintiff is not in possession of the 53 . Accordingly. The ONLY possible harm that may come to Plaintiff from this Court‘s ruling to sequester the Genuine Original PROMISSORY NOTE.

The Defendant may be unlawfully sued by a future party that somehow garners possession of the Genuine Original PROMISSORY NOTE through lawful and/or unlawful means. 54 .Genuine Original PROMISSORY NOTE and therefore cannot avail the Genuine Original PROMISSORY NOTE for sequestration. Plaintiff is attempting to take possession of the real property and/or gain judgment against the Defendant pursuant to rights the Plaintiff claims they acquired when they purportedly acquired the Genuine Original PROMISSORY NOTE. The Defendant may be forced to again to pay the Genuine Original PROMISSORY NOTE if another party claims to be in possession of the Genuine Original PROMISSORY NOTE. c. The possibility of harm to The Defendant for refusal of this Court to order the sequestration of the Genuine Original PROMISSORY NOTE is immeasurable. The Defendant also moves this Court to sequester all copies. that the Defendant‘s Promissory note could be the possession of a possible closed Mortgage Backed Securities Trust. Plaintiff cannot by law be allowed to be in possession of both the real property and the Genuine Original PROMISSORY NOTE. Accordingly. The Original Lender in this case traded the Defendant‘s the real property for the Genuine Original PROMISSORY NOTE. certified or not. FRAUD UPON THE COURTS AND THE DEFENDANT. of the Genuine Original PROMISSORY NOTE in this action. The Defendant cannot by law be stripped of all rights and possession of the real property while the Genuine Original PROMISSORY NOTE is in the possession of Plaintiff. If successful. of the Genuine Original PROMISSORY NOTE. and/or the fact. certified or not. such is also inclusive of all copies. d. Factual events pertaining to this matter: a. Plaintiff MUST by law then cancel the Genuine Original PROMISSORY NOTE and relinquish possession of such to this Court. b. as this would compound the situation and bring light to the actions of the Plaintiff and their Attorney to be FRAUDULENT. e.

day of November 2012 Respectfully Submitted ______________________________ FRANK KRAWCZYK 10580 TUDOR CIRCLE NORTH ROYALTON. and/or judgment. THE LAWS APPLICABLE UNDER ARTICLE III. For the foregoing reasons and in the interest of justice and equity. THERFORE. Florida. THE TRUE PARTY OF INTEREST HAS NOT BEEN IDENITFIED PERSUANT TO MERS ID CHECK…THE INVESTER IN UNKNOWN AND IS NOT PROVIDENT. and.f. Plaintiff and/or other parties may currently be in unlawful possession of the Genuine Original PROMISSORY NOTE and copies thereof. The law of equity requires that neither party have both the Genuine Original PROMISSORY NOTE and the REAL PROPERTY. on the Defendant‘s transaction. j. n. OF THE CONSTITUTION (STANDING). their successor or assigns. which is one aspect in relation to the original lenger and the Defendant‘s transaction. There is no factual evidence that The Defendant ever defaulted on the original lender. i. the Defendant also request the over-turn of all judgements (defaults and summary judgment) applicable under the LAWS OF VOIDED JUDGEMENTS. OHIO 44133 440-212-0300 55 . k. As stated. Additonally. m. THE DEFENDANT ALSO REQUEST THE JUDGEMENT BE OVERTURNED. Submitted this 23rd. certified or not. There is no basis in law for either party in a ―currency exchange‖ and/or other transaction to achieve possession of all items in the transaction even after default of a party. The Defendant moves this Court to sequester the Genuine Original PROMISSORY NOTE and all copies thereof until final adjudication of this mater. h. each filing being a felony under Florida law. The Defendant is currently in possession of the real property as the True owner. the Plaintiff filed false and/or forged documents in a public office in Broward County. to which the Plaintiff here claims to have an interest and right under possessory. g. The foreclosure of the real property is not ―completed‘ nor ―perfected‖ nor ―consummated‖ in accordance with Florida law. until such time as the Genuine Original PROMISSORY NOTE is cancelled by this Court and eturned into the possession of the Court or the Defendant.

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served on the following: 1. 2. 56 ..

AS TRUSTEE. ON BEHALF OF THE HOLDERS OF THE CSMC MORTGAGE BACKED PASS THROUGH CERTIFICATES. the Defendant in the above captioned case and matter and request this Honorable Court to set a date for hearing on the following: DEFENDANT‟S MOTION IN REPLEVIN.IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT IN AND FOR LEE COUNTY. Defendants __________________________________________/ DEFENDANT‟S REQUEST FOR HEARING CASE NO: 09-CA-070151 COMES NOW. “in the nature of a writ of right and writ of possession” TO SEQUESTER THE GENUINE ORIGINAL SECURITY NOTE INTO THE RECORDS OF THE COURT AND DEFENDANTS PURSUANT TO PLAINTIFF‟S CLAMS. OHIO 44133 440-212-0300 57 . Respectfully Submitted ______________________________ FRANK KRAWCZYK 10580 TUDOR CIRCLE NORTH ROYALTON. and all additional facts presented and stated thereto. Plaintiff VS FRANK KRAWCZYK. FLORIDA CIVIL DIVISION US BANK NATIONAL ASSOCIATION. SERIES 2007-1.

Respectfully Submitted ______________________________ FRANK KRAWCZYK 10580 TUDOR CIRCLE NORTH ROYALTON. AS TRUSTEE. Defendants __________________________________________/ DEFENDANT‟S REQUEST FOR HEARING CASE NO: 09-CA-070151 COMES NOW. OHIO 44133 440-212-0300 58 .IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT IN AND FOR LEE COUNTY. “in the nature of a writ of right and writ of possession” TO SEQUESTER THE GENUINE ORIGINAL SECURITY NOTE INTO THE RECORDS OF THE COURT AND DEFENDANTS PURSUANT TO PLAINTIFF‟S CLAMS. SERIES 2007-1. Plaintiff VS FRANK KRAWCZYK. ON BEHALF OF THE HOLDERS OF THE CSMC MORTGAGE BACKED PASS THROUGH CERTIFICATES. the Defendant in the above captioned case and matter and request this Honorable Court to set a date for hearing on the following: DEFENDANT‟S MOTION IN REPLEVIN. FLORIDA CIVIL DIVISION US BANK NATIONAL ASSOCIATION. and all additional facts presented and stated thereto.

IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT IN AND FOR LEE COUNTY. FLORIDA CIVIL DIVISION US BANK NATIONAL ASSOCIATION. Plaintiff VS FRANK KRAWCZYK. SERIES 2007-1. 2012. DATE: _____________________ __________________________________ PRESIDING JUDE. it is hereby ordered that on ______. ON BEHALF OF THE HOLDERS OF THE CSMC MORTGAGE BACKED PASS THROUGH CERTIFICATES. of _______. and all additional facts presented and stated thereto. Defendants __________________________________________/ ORDER OF THE 20TH JUDICIAL CIRCUIT SETTING HEARING CASE NO: 09-CA-070151 Pursuant to the request of the Defendant in the above styled case. LEE COUNTY COURTS 59 . A hearing shall be held regarding DEFENDANT‟S MOTION IN REPLEVIN. “in the nature of a writ of right and writ of possession” TO SEQUESTER THE GENUINE ORIGINAL SECURITY NOTE INTO THE RECORDS OF THE COURT AND DEFENDANTS PURSUANT TO PLAINTIFF‟S CLAMS. AS TRUSTEE.

IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT IN AND FOR LEE COUNTY. LEE COUNTY COURTS 60 . AS TRUSTEE. thus satisfying the SEQUESTRATION OF THE SECURITY NOTE/SECURITY INSTRUMENT INTO THE HAND OF THIS HONORABLE COURT. that Plaintiff and Plaintiff‘s Attorney. all additional relief this court shall deem appropriate. DATE: _____________________ __________________________________ PRESIDING JUDE. SERIES 2007-1. and. pursuant to this order produce to this Honorable Court and the Defendant the Security Note/Security Instrument in question. Plaintiff VS FRANK KRAWCZYK. It is hereby ORDERED. ON BEHALF OF THE HOLDERS OF THE CSMC MORTGAGE BACKED PASS THROUGH CERTIFICATES. FLORIDA CIVIL DIVISION US BANK NATIONAL ASSOCIATION. Defendants __________________________________________/ CASE NO: 09-CA-070151 COURT ORDER Upon review and consideration of the DEFENDANT‟S MOTION IN REPLEVIN “in the nature of a writ of right and writ of possession” TO SEQUESTER THE GENUINE ORIGINAL SECURITY NOTE INTO THE RECORDS OF THE COURT AND DEFENDANTS PURSUANT TO PLAINTIFF‟S CLAMS.

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