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574 Central Avenue Pawtucket, RI 02861 A Christian Law Firm 401-724-1904 401-724-1906 (fax) October 28, 2011 email : George@Babcocklaw.com
United States District Court District of Massachusetts 1 Courthouse Way, Suite 2300 Boston, MA 02210 ATT: THE HONORABLE JUDGE RYA W. ZOBEL RE: PETERSON V. GMAC CA NO. 11-11115-RWZ
Your Honor, I am an attorney from the State of Rhode Island who has immersed himself in all matters regarding MERS on both a State and Federal Level. I have over 70 MERS type cases pending before the Federal District Court for the State of Rhode Island. I have penned an Amicus Brief, a copy of which is enclosed, for Judge John McConnell relative to the case of Fryzel v. Mortgage Electronic Registration Systems, Inc., No. CA 10-352 M (D.R.I. June 10, 2011). After reading your opinion in the Peterson case, I felt compelled to write to you regarding certain aspects of your decision and the memorandum of law filed by PRINCE LOBEL TYE, LLP. With all due respect, I ask you to consider the following facts. The Fryzel case was never a ruling of the Federal District Court for the State of Rhode Island. What was provided to your Court was a copy of a Report and Recommendation only. At page 7 of the MERS memorandum of law, it is claimed that "In granting a motion to dismiss, the Rhode Island district court concluded that a borrower lacked standing to assert these challenges because he was not a party to the mortgage assignments." This is patently false. The Fryzel case was never dismissed and the Court never concluded anything regarding standing. Magistrate Judge Martin wrote a Report and Recommendation only. In fact, Judge John McConnell did not adopt or reject the Fryzel Report and Recommendation. Instead, he invited counsel and other interested parties to submitted Amicus Briefs on the Standing Issue. Several Briefs were submitted and Oral Argument by Counsel for Fyzel and MERS took place on October 4, 2011. To date, the Motion to Dismiss in the Fryzel case has not been decided and the Court has concluded "nothing" at all regarding the standing issue. In fact, Judge McConnell has Stayed all proceedings involving these types of cases in the Rhode Island Federal District Court until he decides Fryzel. (See Order enclosed)
I spoke to the Counsel for the Petersons and he had no idea that the citation to Fryzel and the representations related thereto by MERS was inaccurate and misleading. I felt compelled, as an officer of the Court, a member of the Federal Bar, and a Citizen of the Greatest Country on Earth, to bring this material issue to the attention of the Court. In your published opinion, it states that "Recently, United States District Court in Rhode Island considered whether Plaintiffs, mortgagors, had standing to dispute MERS' power to foreclose under the terms of a servicing agreement and mortgage assignment to which they were not a party." Fryzel v. Mortgage Electronic Registration Systems, Inc., CA 10-352 M (D.R.I. June 10, 2011). Your opinion went on to state that "The Court ruled [emphasis added] that since the plaintiffs were not party to the mortgage assignments at issue, they lacked standing to raise any legal challenge to the validity of the assignments." It is respectfully suggested to this Court that the Rhode Island Federal District Court as not ruled in any way on Fryzel and that it continues to be considered by Judge McConnell. The language in your opinion that is taken from Fryzel is not the law in the State of Rhode Island, at least not based upon Fryzel or any other case that I am aware of at this time. It is true that the Magistrate Judge did write these things in his Report and Recommendation, but it is not the position of the Federal District Court. In my humble opinion, anything that flows from the Fryzel Report and Recommendation is like the "fruit of the poisonous tree" and is misleading and should not be relied upon by this Court's understanding that it is an actual ruling, decision or judgment. It is none of the above. I recognize that I do not have standing to argue the Peterson case before this Court and I do not seek to interpose my beliefs for those of the Court. I write this letter to provide this Honorable Court with information that I am personally aware of, as an attorney involved in hundreds of MERS cases, that it may not have been aware of when it penned this decision. Too much is at risk to remain silent. As an officer of the Court, I am compelled, if not required, to bring this matter to your attention. I do not seek to change your mind one way or the other on this case. I am not questioning your authority or the validity of your ruling. I simply want you to be aware of the fact that Rhode Island has not yet spoken on this issue. I have so many clients that are relying on me to prove to the contrary that which you have written, that I cannot remain silent. This letter is written with all due respect for you, the Court, and the United States Justice System as a whole. Thank you. Respectfully submitted,
George E. Babcock, Esquire