, vs. MARCIA L. BROWN HIGGS THOMAS MONROE HIGGS JR. ) Defandants.) DEFFENDANT'S VERIFIED PETITON IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION Defendants Marcia L. Brown Higgs and Thomas Monroe Higgs Jr., file this Verfied Petition in Support of Motion for Preliminary Injunction pursant to Rule 92.02(b) of the Missouri Rules of Civil Procedure. D efandants request that the Court enjoin plaintiff Kondaur Capital Corporation and plantiff's agents, employees, servants, attorney s, including the attorneys of Millsap & Singer, LLC, Jackson County Sherriff's D epartment and all persons in active concert or participation with any of the aforementioned pe rsons or entities, from taking any further steps to evict defendants from their home (1810 E. 48th Terrace Kansas City, MO 64130), a lso described as THE SOUTH 12 FEET OF THE WEST HALF OF LOT 213, THE SOUTH 12 FEET OF THE EAST HALF OF LOT 214, THE SOUTH 60 FEET OF THE WEST HALF OF LOT 214, THE SOUTH 60 FEET OF LOTS 216, ALL OF LOTS 265, 266 AND 267. AND THE WEST HALF OF LOT 266, ALL IN THE HIGHLANDS , A SUBDIVISION IN KANSAS CITY, JACKSON COUNTY, MISSORI, or to take possession of defendants' home or personal p roperty, or to benefit in any way from the purchase of defendants. For cause, defendants contend that the foreclosure of their home on July 12th, 2010 conducted by plaintiff Kondaur Capital Corporation and Successor Trustee Millsap & Singer and attorney Benjamin Struby appeared in this Court on January 07, 2011 and represented to the Court that a lawful foreclosure sale of defendants's home was conducted o n July 12th, 2010 and that Kondaur Capital Corporation was lawfully entitled to take possession of defendants' home. The representatio ns of plaintiff Kondaur Capital Corporation, Successor Trustee Millsap & Singer, and attorney Benjamin Struby, was false and contrary to Missiouri law. The unlawful foreclossure sale was the predicate for the Court's entry of Judgement in Unlawful Detainer on January 11, 2010. Defendants further contend that the foreclosure sale should be voided and the Judgement for Unlawful Detainer vacate d. In further support, defenants submit the following verified statement of the fac ts and law relating to plaintiff's improper conduct in this matter. DEFENDANTS' STATEMENT OF FACTS 1. Defendants refinanced their home on March 27, 2008 with M & I Bank, and sign ed a promissiory note promising to pay the principal sum of $720,800.00, plus interest, to the Lender. The Lender was M & I Bank. A cop ) ) Case. No.

y of the promissiory note is attached to ths Verified Petition as Exhibit A1. 2. On August 04, 2009 a Deed of Trust relating to defendants's property was sig ned in Jackson County, Missouri. The Deed of Trust, made on March 27, 2008, identifies defendants Marcia L. Brown Higgs and Thomas M onroe Higgs Jr., as grantors, trustee, and M & I Bank as the Note Lender. A copy of the Deed of Trust is attached to this Verfied Petition as Exhibit A2. 3. Kondaur Capital Corporation is not named or otherwise identified in the prom issory note attached as Exhibit A1. 4. On XXXXXXXXX, 2010 M & I Bank purportedly assigned the Deed of Trust and the promissory note to Kondaur Capital Corporation. The Assignment of Deed of Trust was Signed by XXXXXXXXX, "Vice President" of M & I. A copy of the Assi gnment of Deed of Trust is attached as Exhibit A3. According to the Judgement in Unlawful Judgment in Unlawful Detainer, "Benjamin" appeared in court as a representative of Kondaur Capitial Corporaiton. Apparently XXX attempted to act as an agent for both parti es to the assignment effectively attempting to transfer the promissory note from one principal to another principal. 6. On XXXXXXXXX, Kondaur Capital Corporation appointed Millsap & Singer, Benjam in and Successor Trustees in order to exercise the powers in the the Deed of Trust. A copy of Appointment of Successor Trustee is attached as Exhibit A4. 7. Millsap & Singer, LLC arranged for a foreclosure sale of defendants' home to be held on July 12, 2010. 8. A foreclosure sale was held on July 12, 2010 and defendants' home was purcha sed by Kondaur Capital Corporation for the sum of $389,000. 9. Subsequently, plaintiff Kondaur Capital Capital, Successor Trustee Millsap & Singer, and attorney Benjamin informed this Court that the foreclosure sale was lawful and that Kondaur Capital Corporation was la wfully entitled to take possession of defendants' home. 10. Relying on the statments and evidence submitted by plaintiff Kondaur Capita l, Successor Trustee Millsap & Singer, and attorney Benjamin, this Court entered Judgment in Unlawful Detainter on January 11, 2010. Defendants were ordered to vacate the premises within 10 days of the date of the Judgment or by XXXXXX, 2011. ARGUMENT 11. The foreclosure sale of defendants' home was invalid because M & I Bank had no right or legal interest in the promssionary note it purported to transfer to Kondaur Capital Corporation. The assignment was illega l. Therefore, Kondaur Capitial Corporation was not and is not the holder of the promissionary note, and had no legal right to f oreclose on defendants' home. 12. In Missouri, "a mortgage loan consists of a promissory note and security in surment, usually a mortgage or a deed of trust, which secures payment on the note by giving the lender the ability to foreclose on the property. Typically, the same person holds both the note and the deed of trust. In the event that the note and the deed of trus t are split, the note, as a practical matter becomes unsecured." Bellistri v. Ocwen Loan Servicing, Inc., 284 S.W.3d 619, 623 (Mo.Ap p.E.E.2009) 13. The "practical effect of splitting the deed of trust from the promissory no t is to make it impossible for the holder of the note to foreclose..."Id. "The mortgage loan became ineffectual when the note holder d id not also hold the deed of trust." Id.

14. In this case, because Kondaur Capital Corporation is nowhere identified in t he promissory note and has no legal right - as agent, "nominee," "beneficiary," or any other self-appointed designation - to assign or transfer rights in the pr omissory note, the assignment of the promissory note to Kondaur Capital Corporation is a legal Example An identical i ssue involving an assignement by MERS of a deed of trust arose in the Bellistri case. The Bellistri court held taht "[t]here is no evidence in the re cord or pleadings that MERS held the promissory note or that XXX [the lender] gave MERS the authority to transfer the promissory note. MERS could not transfer the promissory note; therefore the language in the assignement of the deed of trust purporting to tra nsfer the promissory note is ineffective"Id. at 623-24 (citing Black v. Adrian, 80 S.W..3d909, 914-15 (Mo.Ap.S.D. 2002)). 15. In Missouri, an entity with no legally cognizable interst in a promissory n ote may not assign or transfer the note. Id. In this case, MERS has no legally cognizable interest in the promissory note and therefo re its attempt to assign or transfer the note to Kondaur Capital Corpoation is without legal forece. Id. (MERS never held the promissory note, thus its assignment of the deed of trust to XXXX separate from the note had no legal forece.") 16. Similar issues has arisen in cases from other jursidictions relating to att empts by MERS to enforce rights it does not possess, and other courts hve agreed with the holding in Bellistri. See Landmark National Ba nk v. Kesler, 289 Kan. 528,539,216 P.3d 158, 166 (Kan. 2009) (the designe=ation of Kondaur Capital Corporation) as "nominee" is criticized an d the relationship between Kondaur Capital Corporation and lender" is more akin to that of a straw man than to a party possessing all the rights gi ven to a buyer"); As an example Mortgage Electronic Registration System, Inc. v. Sourthwest Homes of Arkansas, 2009 Ark. 152, 301 S.W.3d 1, 4-5, 6 (Ark. 1009) ("We specifically reject the notion that Kondaur Capital Corporation may act on its own, independent of the direction of the spec ific lender who holds the repayment interest in the security instrument at the time Kondaur Capital Corporation purports to act," and "Kondau r Capital Corporation is not the beneficary, even though it is so designated in the deed of trust"). 17. Accordingly, there is a substantial question regarding the authority of M & I Bank to transfer the promissonary note to Kondaur Capital Corporation, and therfore regarding the authority of Kondaur Capital Cor poration to exercise the power of foreclosure in order to collect payment on the note. The Judgement in Unlawful Detainer is clearly based on the validity of the foreclosure sale. An temporary restraining order and injunction should issue so that, at minimum, defendants can conduct resonable di scovery into relevant events transactions. 18. For the foregoing reasons, defendants have demonstrated that i) there is a substantial likelihood that they will prevail on one or more of their claims, ii) they will suffer irreparable harm unless the requested relief is ord ered, iii) the harm which defendants will suffer if the requested relief is not ordered owtweighs any harm which might result to plaintiff, and iv) there will b e no adverse effect to the public from ordering the requested relief. Therefore, the motion should be granted. RESPECTFULLY SUBMITTED, MARCIA BROWN HIGGS THOMAS MONROE HIGGS JR.

_______________-_ Marcia Brown Higgs Thomas Monroe Higgs Jr. 1810 E. 48th Terrace Kansas City, MO 64130 CERTIFCATE OF SERVICE I hereby certify that on this 27th day of January, 2010, a copy of the abov e and foregoing Defendants' Verified Petition In Support of Motion for Preliminary Inj unction was sent by United States mail, postage prepaid to Millsap & Singer, 612 Spirit Drive, St. Louis,Missouri 63005