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STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND IAN HUDSON, Plaintiff, v Case No.

11-________________-CH Hon. _________________________

FEDERAL HOME LOAN MORTGAGE CORP, FLAGSTAR BANK, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., and SCHNEIDERMAN & SHERMAN, P.C., Defendants. _______________________________________________________________________/ WOLFE LAW GROUP, PLLC JACK B. WOLFE (P39667) Attorneys for Plaintiff 24901 Northwestern Highway, Suite 212 Southfield, MI 48075 (248) 229-1187(m) (248) 228-6307(m) (248) 809-2005(w) (248) 809-9969 (f) thewolfelawgroup@yahoo.com _______________________________________________________________________/ PLAINTIFFS BRIEF IN SUPPORT OF REQUEST FOR INJUNCTIVE, DECLARATORY AND REQUEST FOR SHOW CAUSE HEARING REQUESTED IN VERIFIED COMPLAINT Plaintiff is requesting this Court grant him the injunctive and declaratory relief as outlined in his Verified Complaint so as to prevent further harm, such as the loss of possession and use of him home while this case is pending. The legal argument below is in support of that relief, including the basis for the show cause hearing, and also supports the other counts within the Complaint.

Argument: Plaintiffs Mortgage is a Nullity, the Note is Unsecured and This Court Must Set Aside the Sheriff Sale as Void Ab Initio. The Michigan Court of Appeals seminal decision in Residential Funding Co, LLC v Saurman, Docket No. 290248, and the companion case of Bank of New York Trust Co v Messner, Docket No. 291443, on April 21, 2011 (RFC Opinion attached as Exhibit C), held that MERS did not have standing to pursue non-judicial foreclosure in Michigan, as MERS had no interest whatsoever in the note, which interest was required under the foreclosure statutes. In footnote 6 of the RFC opinion, it appears as though that the Court would allow a non-judicial foreclosure if, prior to the sheriff sale, MERS assigned to a foreclosing lender who had standing. However, on June 7, 2011, the New York Court of Appeals for the Second Division issued an opinion in Bank of New York v Silverberg, 2011 NY Slip OP 05002 (June 7, 2011), that an assignment of MERS to an assignee for the purpose of foreclosing is a nullity where MERS has no interest in the note distinguishing Mortgage Elec. Registration Sys., Inc. v Coakley, 41 AD3d 674 (NY 2007), as the latter case also involved a MERS assignment but, at the time of the assignment, the relevant note was indorsed in blank to MERS, wherein the Silverberg case, there was no endorsement of the note whatsoever. (Exhibit D, Silverberg Slip Opinion and Coakley Opinion). Simply put, if the note in RFC or Silverberg had been endorsed in blank when MERS was mortgagee, then both decisions would have been in favor of the foreclosing lender. The need to endorse notes to enforce mortgages is an UCC analysis. In the instant case, MERS violated Article 3 of the Uniform Commercial Code (adopted by all 50 states and the District of Columbia) by failing to have the Note endorsed directly to MERS and/or in blank, thereby, creating a split between the ownership of the Note and the Mortgage rendering the Mortgage void and the Note unsecured to the Property. In addition, MERS violated agency law by having no written, specific authority to assign the Mortgage to Flagstar, thereby also

rendering the Mortgage void. This type of agency law violation was addressed by Bankruptcy Judge Robert E. Grossman, In re Agard, 2011 WL 499959 (ED NY, Feb. 10, 2011), a copy of which is attached at Exhibit E (all other unpublished opinions referenced herein will be attached at Exhibit E), where he addressed MERS concern as to the market place melt down that allegedly would occur upon voiding a MERS mortgage, stating at *2 (emphasis added): This Court does not accept the argument that because MERS may be involved with 50% of all residential mortgages in the country, that is reason enough for this Court to turn a blind eye to the fact that this process does not comply with the law. In the Remarks and Testimony of R.K. Arnold, President and CEO of MERSCORP, Inc., parent company to MERS, before the subcommittee of housing and community opportunity, House Financial Services Committee, November 16, 2010 Mr. Arnold asserts that MERS as the common agent of the MERS network, connects to the note, and that MERS is the agent of the lender even when the mortgagee. In contrast, is the view of Professor Peterson that the principal of an instrument, i.e., MERS as the mortgagee, cannot be, at the same time, the agent under that instrument. Christopher L. Peterson, Foreclosure, Subprime Mortgage Lending, and The Mortgage Electronic Registration System, 78 U. Cinn. L. Rev. 1359, 1375 (Summer 2010) (Subprime and MERS). Professor Petersons point of view is the rule of law in Michigan per the RFC Opinion, supra, at page 6, where the Court stated: MERS, as mortgagee, only held an interest in the property as security for the note, not an interest in the note itself. MERS could not attempt to enforce the notes nor could it obtain any payment on the loans on its behalf or on behalf of the lender. Moreover, the mortgage specifically clarified that, although MERS was the mortgagee, MERS held only legal title to the interest granted by defendants in the mortgage. Consequently, the interest in the mortgage represented, at most, an interest in defendants properties. MERS was not referred to in any way in the notes and only Homecomings held the notes. The record evidence establishes that MERS owned neither the notes, nor an interest, legal share, or right in the notes. The only interest MERS possessed was in the properties through the mortgages. Given that the notes and mortgages are separate documents, evidencing separate obligations

and interests, MERS interest in the mortgage did not give it an interest in the debt. The RFC Opinion, supra, at pp. 6-7, went on to analyze whether the language of the mortgage gave a contractual right to MERS presumably as the agent of the lender rejecting this argument and, in the event that the language was interpreted to grant MERS such a right, the contractual language would not override MCL 600.3204(1)(d), the standing provision of the nonjudicial foreclosure statutes, MCL 600.3201, et seq. (the Foreclosure Act). MCL 440.1103 recognizes that the UCC is supplemented by principles of principal and agency unless displaced, of course, by a particular provision(s) of the UCC. The particular provisions of the UCC that displace agency law with regard to the ability to enforce a mortgage issued as the security instrument to a promissory note are MCL 440.3201 and MCL 440.3301, which require that to have an interest in the note as the mortgagee in order to have standing to foreclose under the Foreclosure Act, the note must be endorsed in blank to the mortgagee and possessed by the mortgagee. The ability to split legal and beneficial ownership of mortgage obligations is also nothing new to mortgage loans. However, a totally different and new argument was that the beneficial ownership of the note, i.e., the lender, is also the beneficial ownership of the mortgage and that this somehow connects the two obligations was a novel theory pushed by MERS and its counsel but with no supporting case law and has now been absolutely refuted by the Michigan Court of Appeals by the RFC Opinion, supra, where the Court stated at page 6, footnote 4: Though the lenders do not hold legal title to the mortgage instruments, they do have an equitable interest therein. [citations omitted]. The lenders equitable interest in the mortgage does not, however, translate into an equitable interest for MERS in the loan. What is not a novel theory is that the mortgage is ancillary to the note so that wherever goes the note, the mortgage follows but not the corollary. RFC Opinion, supra, page 6; Carpenter

v Longan, 83 U.S. (16 Wall.) 271, 274 (1872). It is also well settled law that if the mortgage is not connected to the note, the mortgage is a nullity. Id. at 275. Accordingly, if the law requires that MERS needs the note to be endorsed in order for the note to be enforced and the note is not endorsed, then the MOM (i.e., MERS Originated Mortgage) must be a nullity. Endorsement of notes is a function of the UCC. In 1999, under Michigan law, MERS local Michigan counsel did not find an endorsement to a foreclosing entity to be a legal requirement. MERS Recommended Foreclosure Procedures for Michigan, November 1999, a copy of which is attached as Exhibit F. This is completely contrary to the March 29, 2011, draft report by the Permanent Editorial Board for the Uniform Commercial Code, a copy of which is attached as Exhibit G, which clearly refutes any position of MERS and its counsel that the UCC does not apply to residential mortgage transactions and the UCC requires that, in order for a mortgagee to enforce the note to which it is ancillary, the mortgagee must have the note endorsed to the mortgagee either directly or in bearer. The note at closing must be endorsed to MERS when MERS exists in chain of title and the facts of this case are that there is no endorsement of the Note to MERS at the time of Closing or at any time. Accordingly, the mortgage obligations were split or separated at the Closing, there is no interest of MERS in the Note and, by applying the UCC, this Court must set aside the foreclosure sale holding that the eviction process in the instant case is void ab initio. Plaintiff has the right to attack Flagstars standing to foreclose since it was not the holder of the mortgage obligations as of first publication, which is the commencement of the foreclosure process and, as a result, the Sheriffs Deed is void. The Sheriffs Deed is void under MCR 2.612(C)(1)(d), if it is beyond the power of this Court to render, which arises where a court lacks subject matter jurisdiction. 3 Dean & Longhofer, Michigan Court Rules Practice (4 th ed),

2612.13, p 479. A judgment that is void may be attacked at any time. DAIIE v Maurizio, 129 Mich App 166, 171 (1983). Subject-matter jurisdiction cannot be conferred by consent of the parties, and a court must take notice when it lacks jurisdiction regardless of whether the parties raised the issue. In re Complaint of Knox, 255 Mich App 454, 457 (1993) (emphasis added). Lack of standing can be raised sua sponte. Loren v Blue Cross & Blue Shield of Michigan, 505 F3d 598, 606-607 (6th Cir 2007) [citing Central States Southeast & Southwest Areas Health and Welfare Fund v Merck-Medco Managed Care, 433 F3d 181, 199 (2nd Cir 2005). It has long been held that standing is perhaps the most important of the jurisdictional doctrines. FW/PBS, INC. v City of Dallas, 493 US 215; 110 S Ct 596 (1990) [citing Allen v Wright, 468 US 737, 750; 104 S Ct 3315 (1984)]. To have standing to seek the requested relief a plaintiff must have a personal stake in the outcome of the controversy as well as be [in] the class of persons intended to benefit from the statute. Ford Motor Credit Co. v Hemsley (In re Bennett), 317 BR 313, 316 (Bankr D Md 2004) (emphasis added). In a case involving private rightsthat the litigant should have some real interest in the cause of action, or a legal or equitable right, title and interest in the subject matter of the controversy. Lansing Schools Education Association v Lansing Board Of Education, 487 Mich 349, 359 (2010) citing to Bowie v Arder, 441 Mich 23, 42; 490 NW2d 568 (1992) (quotations marks and citations omitted). In Silverberg, supra, Exhibit D, defendant homeowners argued that plaintiff lacked standing to sue because it did not own the notes and mortgages when it commenced foreclosure proceedings, because neither MERS nor Countrywide ever transferred the notes or endorsed in blank the note described in the consolidation agreement as required by the UCC. Id at *2. Defendants also asserted that the mortgages were never properly assigned to plaintiff because MERS, as the nominee for Countrywide, did not have authority to effectuate an assignment of the

mortgages. Id. Finally, defendants argued that the mortgage and note were bifurcated, or split, rendering the mortgages unenforceable and foreclosure impossible. Id. The Court analyzed and opined on the pertinent issues as follows: The principal issue ripe for determination by this Court, and which was left unaddressed by the majority in Matter of MERSCORP, is whether MERS, as nominee and mortgagee for purposes of recording, can assign the right to foreclose upon a mortgage to a plaintiff in a foreclosure action absent MERSs right to, or possession of, the actual underlying promissory note. Standing requires an inquiry into whether a litigant has an interest . . . in the lawsuit that the law will recognize as a sufficient predicate for determining the issue at the litigants request. Where, as here, the issue of standing is raised by a defendant, a plaintiff must prove its standing in order to be entitled to relief. In a mortgage foreclosure action, a plaintiff has standing where it is both the holder or assignee of the subject mortgage and the holder or assignee of the underlying note at the time the action is commenced. As a general matter, once a promissory note is tendered to and accepted by an assignee, the mortgage passed as an incident to the note. . . By contrast, a transfer of the mortgage without the debt is a nullity, and no interest is acquired by it. . . .A mortgage is merely security for a debt or other obligation and cannot exist independently of the debt or obligation. Consequently, the foreclosure of a mortgage cannot be pursued by one who has no[t] demonstrated right to the debt. Id at **3-4 (citations omitted). The Court further opined that MERS, as the nominee of the lender, was limited to only those powers which were specifically conferred to it and authorized by the lender. The

consolidation agreement did not specifically give MERS the right to assign the underlying notes and, therefore, the assignment of the notes was beyond MERSs authority as nominee or agent of the lender. Id at *5. As a result, the consolidation agreement did not give MERS title to the note and the plaintiff, who had stepped into the shoes of MERS, its assignor, gained only the authority and power to that which its assignor was entitled. Id. The broad language relied upon by the plaintiff lender did not overcome the plaintiffs requirement that the foreclosing party be both the

holder or assignee of the subject mortgage, and the holder or assignee of the underlying note, at the time the action is commenced. Id at *5. Therefore, the New York Court ruled: In sum, because MERS was never the lawful holder or assignee of the notes described and identified in the consolidation agreement, the corrected assignment of mortgage is a nullity, and MERS was without authority to assign the power to foreclose to the plaintiff. Consequently, the plaintiff failed to show that it had standing to foreclose. Id at *5 (emphasis added). In the instant case, Flagstar did not, and could not have, had standing or authority to commence foreclosure against Plaintiff because the Assignment was a nullity which voids or voided the Sheriff Sale. The authors of Mortgage Electronic Registration Systems, Inc.: A Survey of Cases Discussing MERS Authority to Act, Hodge, John R. and Williams, Laurie, Norton Bankruptcy Law Advisor, Issue No. 8 (August 2010) (the Survey), stated: MERS is a construct of the mortgage finance industry created and implemented to facilitate the sale of promissory notes and servicing rights in residential mortgage transactions. But, the architects of MERS did not simply create a modernized system of keeping track of loan transfers. They also adopted untested, novel terminology for the most important documents that protect lenders and investors claiming liens on real estatethe mortgage/deed of trust and assignments.The MERS language and assignment policies present courts with a complex bundle of procedural and substantive issues.MERS and its assignees have repeatedly taken contradictory positionssometimes arguing that MERS is only a tracking system with no lending or servicing powers; other times contending that MERS has the right to hold notes, assign or foreclose mortgages; and still other times, MERS and its assignees say that it acts on behalf of its own property interests or simply as the nominee and/or agent of another. These interpretive problems and inconsistencies have provoked some courts to determine the worst possible fate for secured loan buyersthat their mortgages were not effectively transferred or even that the mortgages have been separated from the note and are no longer enforceable. Survey at pp. 20-21 (emphasis added). Those promissory notes associated with the no longer enforceable mortgages, would be unsecured and the properties associated therewith would be free and clear unless the lenders pursued judicial foreclosure and asserted equitable liens. This is what exists in the instant case and how this Court must rule. A mortgage may be enforced only by, or in behalf of, a person who is

entitled to enforce the obligation the mortgage secures. Restatement (Third) of Property, Mortgages 5.4(c). In general, a mortgage is unenforceable if it is held by one who has no right to enforce the secured obligation. Id. at 5.4 cmt. e. Separation of the obligation from the mortgage results in a practical loss of efficacy of the mortgage. Id. at 5.4 cmt. a. If the mortgage obligation is a negotiable note, UCC 3-203 is generally understood to make the right of enforcement of the promissory note transferable only by delivery of the instrument itself to the transferee. Id. at 5.4 cmt. c. Michigan has adopted the UCC in regards to negotiable instruments. A negotiable instrument such as a promissory note is payable to a specifically identified person as opposed to bearer. MCL 440.3109(2)(a). An instrument payable to an identified person may become payable to bearer if it is endorsed in blank pursuant to section 3205(2). MCL 440.3109(3). A promissory note that is payable to a specific person or Lender is not transferred merely by possession; instead, transfer requires that it be endorsed. MCL 440.3201(2) (emphasis added). An endorsement is not made by purchasing a note, or by purchasing a debt, or by an assignment, instead, an endorsement is made by the signature of the specifically identified person to whom the note is owed. MCL 440.3204 (emphasis added). When endorsed in blank, an instrument (i.e., the Note) becomes payable to bearer and may be negotiated by transfer of possession alone until specifically endorsed. MCL 440.3205(2). The [p]erson entitled to enforce an instrument meansthe holder of the instrument. MCL 440.3301. To be a holder of an instrument, one must possess the note and the note must be payable to the person in possession of the note, or to bearer. 440.1201(20) (definition of holder); MCL 440.3201 (emphasis added). In the instant case, the holder option is not available to MERS because the note was neither payable to MERS, nor had it been endorsed, either specifically to MERS or in blank. MCL

Indeed, the Note was specifically endorsed to Flagstar at the Closing. Case law on this issue is clear that [i]f MERS is only the mortgagee, without ownership of the mortgage instrument, it does not have an enforceable right. In re Vargas, 396 BR 511, 517 (Bankr CD Cal 2008) stating that [w]hile the note is essential, the mortgage is only an incident to the note, quoting Carpenter, supra, 83 U.S. at 275 (1872). Where negotiable note is secured by mortgage, the note and mortgage are inseparable, and the assignment of the note carries the mortgage with it while an assignment of the mortgage alone is a nullity. Id. at 274; Landmark Natl Bank v Kessler, 216 P3d 158, 166-167 (Kan 2009) This foreign state case law and the holding of the United States Supreme Court almost 140 years ago is consistent with the long standing precedent in Michigan which is that a mortgage is a mere security interest incident to an underlying obligationa transfer of a mortgage without the underlying obligation is a mere nullity. Livonia Holdings, LLC v 12840-12976 Farmington Road Holdings, LLC, 717 F Supp 2d 724 (ED Mich 2010) citing to Prime Financial Services v Vinton, 279 Mich App 245; 761 NW2d 694, 703 (2008) (internal citation omitted). Michigan case law exemplifies the legal maxim that the mortgage depends on the note for enforceability. Phyllis K. Slesinger & Daniel McLaughlin, Mortgage Electronic Registration System, 31 Idaho L. Rev. 805, 808 (1995). For mortgages sold into the secondary market [a securities transaction], legal title and equitable ownership are commonly severed. Mortgage servicers retain bare legal title to facilitate mortgage servicing; equitable interests are transferred to the investor. Id. at p. 818, fn. 2. In Bellistri v Ocwen Loan Servicing, LLC, 284 SW3d 619 (Mo Ct App 2009), rehg and/or transfer denied, (April 6, 2009), and transfer denied, (June 30, 2009), MERS assigned the deed of trust (i.e., same as a mortgage) to Ocwen. The Bellistri court observed that the same person

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typically holds the note and deed of trust but that the court recognized that a note and security interest can be split and, in the event of the latter, as a practical matter becomes unsecured. Id. at 623. What MERS accomplished with its network was to overcome the alleged possession hurdle of the UCC but failed to perfect through endorsement, which leaves open the question of why was the endorsement omitted? Here is the answer: the objective of MERS was to save an approximate $22.00 recording fee for an assignment of the mortgage which would have been undermined by transferring notes in blank that by their very nature require greater care and accountability. Indeed, under MCL 440.3301, you are entitled to enforce a note payable to bearer even if in wrongful possession of the instrument. In the instant case, there is no evidence that the Note was ever endorsed in blank or bearer to MERS while possessed by MERS. The only way that the MERS assigned Mortgage could be valid and enforced by the assignee, i.e., Flagstar, was if MERS had an interest in the indebtedness/Note. MERS did not have an interest in the indebtedness. MERS had nothing to assign to Flagstar because the Note was never endorsed in bearer to MERS. Pursuant to Restatement (Third) of Property, Mortgages, the UCC, Michigan common law, Michigan case law, law review articles, the United States Supreme Court and legal precedence in other jurisdictions, to transfer a note and have the mortgage transfer therewith, both the mortgagee and the lender must be the same identified party. If the mortgagee is different than the lender (i.e., split), the note need only be endorsed in blank for the mortgage to follow. In order for a mortgagee to enforce a default under the note, the mortgagee must be connected to the note as the identified party or the note needs to be endorsed in blank to the mortgagee. If the mortgage and the

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note are split at the closing, and there is no endorsement in blank on the note to the mortgagee, the note is unsecured as the mortgage is a nullity. Applying these principles of law to the instant case, this Court must hold that, pursuant to the UCC, the Note is unsecured as the Mortgage is a nullity, Flagstar had no standing to foreclose under the Foreclosure Act as the Assignment was void and transferred nothing, the Sheriff Sale is void ab initio, the Sheriffs Deed should be set aside. CONCLUSION AND RELIEF REQUESTED Federal Judge Christopher A. Boyko in the seminal case of In re Foreclosure Cases, Slip Copy, 2007 WL 3232430 (ND Ohio 2007) (Exhibit H), that Deutsche Bank did not have standing to sue because Deutsche Bank failed to demonstrate, beyond alleging that a foreclosure sale had occurred and it was the lender of record, that it was in fact the holder of the mortgage and owner of the note as of the date the complaint was filed. Judge Boyko prophetically stated at n 3 of the Slip Copy, with regard to the foreclosure process of banks: [C]ondescending mindset and quasimonopolistic system where financial institutions have traditionally controlled, and still control, the foreclosure process. Typically, the homeowner who finds himself/herself in financial straits, fails to make the required mortgage payments and faces a foreclosure suit, is not interested in testing state or federal jurisdictional requirements, either pro se or through counsel. Judge Boyko went on to state (emphasis added) at page 3 of the Slip Copy: In the meantime, the financial institutions or successor/assignees rush to foreclose...There is no doubt every decision made by a financial institution in the foreclosure process is driven by money. And the legal work which flows from winning the financial institutions favor is highly lucrative. There is nothing improper or wrong with financial institutions or law firms making a profit-to the contrary, they should be rewarded for sound business and legal practices. However, unchallenged by underfinanced opponents, the institutions worry less about jurisdictional requirements and more about maximizing returns. Unlike the focus of financial institutions, the courts must act as gatekeeper at ensuring that

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only those who meet diversity and standing requirements are allowed to pass through. Counsel for the institutions are without legal argument to support their position, but their arguments fall woefully short of justifying their premature filings, and utterly fail to satisfy their standing and jurisdictional burdens. The institutions seem to adopt the attitude that since they have been doing this for so long, unchallenged, this practice equates with legal compliance. Finally, put to the test, their weak legal arguments compel the Court to stop them at the gate. * * * The Court will illustrate in simple terms its decision; Fluidity of the market X dollars, contractual arrangements between institutions and counsel, X dollars, purchasing mortgages in bulk and securitizing X dollars, rush to file, slow to record after judgment X dollars, the jurisdictional integrity of the United States District Court Priceless. It is this Courts obligation to be the gatekeeper demanding that, pursuant to the UCC, mortgage obligations are properly connected and that under Michigans Foreclosure Act, a foreclosing lender has, at a minimum, met its threshold obligation of demonstrating standing or ownership of the indebtedness and security instrument to pursue foreclosure. In the event the latter is not an absolute then the lender is not without remedies to foreclose and recover against its indebtedness; however, it must follow judicial foreclosure and demonstrate compliance with the UCC or assert equitable arguments to enforce its unsecured note against the collateral. In the instant case, there is no record chain of title because the chain was broken in the course of the transfers of the instruments which occurred because the evidence of the indebtedness (i.e., the Note) was not properly indorsed. In the instant case, the integrity of Michigans judicial system is priceless and demands that the Sheriffs Deed cannot stand under the Foreclosure Act if Flagstar was not the holder of the mortgage obligations at first publication, which is the commencement of the foreclosure process in Michigan. This Court must set aside the Sheriffs Deed as violating MCL 600.3204(1)(d), award possession of the Property to Plaintiff and/or its assigns, award damages to Plaintiff, including

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Plaintiffs attorneys fees and costs, and set aside the non-judicial Sheriff Sale as void ab initio for the reasons set forth above. Respectfully submitted, WOLFE LAW GROUP, PLLC By:________________________________ JACK B. WOLFE (P39667) Attorneys for Plaintiff 24901 Northwestern Highway, Suite 212 Southfield, MI 48075 (248) 229-1187(m) (248) 228-6307(m) (248) 809-2005(w) (248) 809-9969 (f) thewolfelawgroup@yahoo.com Dated: December ____, 2011

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