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NO.

COAII-1487

TWENTY-SIXTH JUDICIAL DISTRICT

NORTH CAROLINA COURT OF APPEALS

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In the Matter of the Foreclosure of Deed of Trust executed by Jennifer L. Wilson in the original amount of $94,000.00 dated January 16,2007, recorded in Book 21672, Page 355, Mecklenburg County Registry, Substitutie Trustee Services, Inc., Substitute Trustee Petitioner - Appellee,
v.
) ) ) ) ) ) ) ) ) ) ) ) ) ) )

From Mecklenburg County File No. 10 SP 9920

Jennifer L. Wilson, Respondant - Appellant.

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RESPONDENT - APPELLANT'S BRIEF

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INDEX

.. Index .......................................................................................................................... 11

'rABLE OF AUTHORITIES ................................................................................... iii


l...JEGEND .................................................................................................................. vi
STATEMENT OF THE ISSUES .............................................................................. 1 STATEMENT OF THE CASE ................................................................................. 2 STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW ....................... 3 STATEMENT OF FACTS ....................................................................................... 4 ARGUMENT .......................................................................................................... 21 <:ONCLUSION ....................................................................................................... 32 CERTIFICATE OF SERVICE ................................................................................. A APPENDIX .............................................................................................................. B

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TABLE OF AUTHORITIES

Cases Andrews v. Fulcher Tire Sales & Serv., 120 N.C. App. 602,463 S.E.2d 425 (1995) ............................................................................................................................. 22 Debreceni v. Outlet Co., 784 F.2d l3 (1 st Cir. 1986) .............................................. 26 Dobson v. Substitute Trustee Services, _ N.C. _ 2011 WL1854315 (citation

omitted) ................................................................................................................ 14 Eley v. Mid/East Acceptance Corp. o/NC, 171 N.C. App. 368,614 S.E.2d 555 (2005) ................................................................................................................... 22 Furst v. Loftin,29 N.C. App. 248, 224 S.E.2d 641 (1976) ...................................... 21 Hotel Corp. v. Taylor and Fletcher v. Foremans, Inc.,301 N.C. 200, 271 S.E.2d 54 (1980) ................................................................................................................... 27 In re Cooke, 37 N.C. App. 575, 579,246 S.E.2d 801 (1978) ................................. 28 In re Foreclosure

0/Burgess,

47 N.C. App. 599,267 S.E.2d 915, appeal

dismissed,301 N.C. 90 (1980) ............................................................................. 21 In re Foreclosure o/Connolly v. Potts, 63 N.C. App. 547, 550, 306 S.E.2d 123, 125 (1983) .......................................................................................... 14,21,27,28 In re Foreclosure o/Kitchens, 113 N.C. App. 175,437 S.E.2d 511 (1993) ........... 28 In re Foreclosure o/Real Property (Brown), 156 N.C. App. 477, 577 S.E.2d 398 (2003) ................................................................................................................... 28

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In re Simpson, North Carolina Court of Appeals, No. COAI0-361 (May 3, 2011) ....................................................................................................................... 14,22 In re: Adams, N.C. App. No. COA09-1145 (Jun. 1,2010) (citation omitted) ....... 27 in the Matter of Bass, No. COA11-565, __ S.E. __ (Dec. 6, 2011) (citation omitted) ................................................................................................................ 23 Liles v. Myers, 38 N.C. App. 525,248 S.E.2d 385 (1978) ............................... 22,27 Lujan v. Defenders ofWildl(fe, 502 US 555 (1992) ............................................... 30 McNutt v. General Motors Acceptance Corporation 1936, 298 US 178, 56 S.Ct. 78080 L.Ed. 1135 ............................................................................................... 10 Melo v. US, 505 F2d 1026 (Nov. 7,1974) .............................................................. 10 Ohlendorf v. American Home Mortgage Servicing, U.S. Dist. Court Eastern Dist. Cal. No. Civ. S-09-2081 (Mar. 30,2010) (citation omitted) ............................... 23 Rosemound Sand and Gravel Company v. Lambert Sand & Gravel Company, 469 F2d 416 (1972) .................................................................................................... 10 Viacom International Inc. v. Tandem Productions Inc., 368 F.Supp. 1264 (S.D.N.Y.1974), affd, 526 F.2d 593 (2d Cir.1975) ............................................ 26 Welsh v. American Surety Company, 186 F .2d 16 (5 th Cir. Jan. 17, 1951) ............ 10
Statutes

42-21.16C(a) ............................................................................................................. 5 N.C.O.S. 25-3-204(a)(i) (2009) ........................................................................... 23

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N .C.G .S. 7 A -27 (b) ................................................................................................. 3 N.C.G.S. 45-21.16(d) ........................................................................... 5,21,27,28 N.C.G.S. 1-57 ....................................................................................................... 30 N.C.G.S. 45-21.12(a) ............................................................................................. 8 N.C.G.S. 45-21.12A ............................................................................................. 12 N.C.G.S. 47-17.2 .................................................................................................. 23 N.C.G.S. 25-1-201(B)(21) ................................................................................... 14 Chaper 8C Evidence Code 8C-l Rule 1003 ......................................................... 21 Evidence Code 8C-l Rule 1005 ............................................................................ 21 Evidence Code 8C-l Rule 902(4) ......................................................................... 21 Uniform Commercial Code, G.S. 25-1-201(21)(a) ................................................. 27

Other Authorities
5 C, Wright & A. Miller supra Section 1363 at 653 ............................................... 10 6A Wright, Miller & Kane, Federal Practice and Procedure 1541 (Westlaw current through 2009 update) .............................................................................. 30

United States Constitution


Article III ................................................................................................................. 30

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LEGEND References to the relevant Record of the Court are, enclosed in parenthesis and designated by the italic letters (R ) followed by the page number (p. 1). Example (R p. 1). References to the relevant Transcript are, enclosed in parenthesis and designated in italics by the transcript date (3/29), followed with the capital letters (1), and then by the page number (p. 1). Example (3/29 T p. 1).

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NO. COAII-1487

TWENTY-SIXTH JUDICIAL DISTRICT

NORTH CAROLINA COURT OF APPEALS

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In the Matter of the Foreclosure of Deed of Trust executed by Jennifer L. Wilson in the original amount of $94,000.00 dated January 16,2007, recorded in Book 21672, Page 355, Mecklenburg County Registry, Substitutie Trustee Services, Inc., Substitute Trustee Petitioner - Appellee,
v. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

From Mecklenburg County File No. 10 SP 9920

Jennifer L. Wilson, Respondant - Appellant.

STATEMENT OF THE ISSUES


I.

DID THE TRIAL COURT ERR IN RELYING ON UNAUTHENTICATED DOCUMENT COPIES PROFFERED BY THE PETITIONER TO DETERMINE NATIONSTAR WAS THE HOLDER OF THE NOTE WITH THE RIGHT TO FORECLOSE?

II.

DID THE TRIAL COURT ERR IN DETERMINING NATIONS TAR WAS IN POSSESSION OF THE NOTE WITH THE RIGHT TO FORECLOSE?

III.

DID THE TRIAL COURT ERR IN DETERMINING IT POSSESSED JURISDICTION TO PROCEED ON THE MERITS?
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STATEMENT OF THE CASE

On December 7, 2010, Jennifer L. Wilson (herein after "Wilson") appeared before the Clerk for the General Court of Justice Superior Court Division for the County of Mecklenburg in the matter of the foreclosure on a Deed of Trust (10-SP9920). Wilson filed a motion to dismiss alleging petitioner was not the real party in interest (lacked standing). The Clerk denied Wilson's "NOTICE OF MOTION TO DISMISS FORECLOSURE ACTION DUE TO PETITIONER'S LACK OF STANDING, LACK OF COURT'S SUBJECT MATTER JURISDICTION OVER ALLEGED CONTROVERSY, ETC" ("MOTION") granting petitioner authorization to proceed with the foreclosure sale. On December 7,2010, Wilson filed a "Notice of Appeal from the Order of Foreclosure." On February 8, 2011 Wilson appeared before Judge Forest B. Bridges on the Appeal from the Clerk's authorization to proceed with the foreclosure sale. Petitioner, Substitute Trustee Services, Inc. ("STSI"), requested a continuance alleging; "subsequent to the filing of that appeal, the trustee was informed that the note had been sold to Flagstar." The case was continued to March 29, 201l. On March 29, 2011 Wilson appeared before Judge F. Lane Williamson on continuance from appeal of the Clerk's authorization to proceed with the foreclosure sale. STSI introduced additional document copies, never before seen

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by appellant Wilson, now alleging Nationstar Mortgage was assigned the "Interest Firse NOTE" ("NOTE") and DEED OF TRUST ("DEED") from SunTrust Mortgage, Inc. The court continued the hearing to May 25,2011 to allow appellant Wilson time to respond to the additional documentation. On May 25,2011, Wilson appeared before Judge Robert T. Sumner, on continuance from appeal of the Clerk's authorization to proceed with the foreclosure sale. The parties were given the opportunity to present their case. The court bound the case over to allow the court time to review and then render its decision. On May 31, 2011, Judge Robert T. Sumner signed the "ORDER" denying Wilson's MOTION (R p. 8-35), dismissing the Appeal filed by Wilson on December 7,2010, and granting STSI authorization to proceed with the foreclosure sale. It is this ORDER Appellant appealed from.
STATEMENT OF THE GROUNDS FOR APPELLAT]~ REVIEW
m

Judge Robert T. Sumner's ORDER denying appellants motion to dismiss, dismissing the appeal from the ORDER of the Mecklenburg County Clerk of Superior Court entered on December 7, 2010, and granting Petitioner the right to conduct a foreclosure sale as provided by statute, is a final judgment, and appeal therefore lies to the Court of Appeals pursuant to N.C. Gen. Stat. 7A-27(b).

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STATEMENT OF FACTS

On October 11, 2010, STSI petitioned the Clerk for the General Court of Justice North Carolina Mecklenburg County for authorization to conduct a foreclosure sale. The hearing was set for December 7,2010. On December 6,2010, appellant Wilson filed a MOTION to dismiss. (Rp. 8-35). The MOTION challenged standing of the parties, and perpetually objected to any purported evidence absent valid authentication. (R p. 13, par. 10). The MOTION specifically objects to the unauthenticated copies of the NOTE and DEED. (R p. 14, par. 19). The MOTION evidences the real party in interest is not represented and STSI is absent standing to invoke the jurisdiction of the court. (R
p. 6, par. 27). The MOTION presented probative evidence identifying Federal

National Mortgage Assocation ("FNMA") to be the holder and owner of the NOTE and DEED. (R p. 15-16, par. 28 inclusive). Probative evidence labeled Exhibits A, B, C, & D (R pp. 37, 39, 41, 43) were attached to Wilson's MOTION. Exhibits C and D, reports from FNMA and MERS respectively, are dated December 5, 2010 and evidence Nationstar is only the Servicer and FNMA is the owner/investor. Accompanying the exhibits in the MOTION was Wilson's jurat attesting the exhibits authenticity. On December 7,2010, STSI filed a copy of the NOTE evidencing a blank endorsement by SunTrust Mortgage, Inc., DEED, "AFFIDAVIT PURSUANT TO

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N.C.G.S. 45-21. 16(d) AND 42-21.16C(a)" ("AFFIDAVIT"), and "APPOINTMENT OF SUBSTITUTE TRUSTEE" ("APPOINTMENT") both the AFFIDAVIT and APPOINTMENT are executed by Mary C. Jones on August 19, 2010, and March 4, 2010 respectively, each alleging the holder of the note and indebtedness is SunTrust Mortgage Inc. (R pp. 83-85). On December 7,2010, Cameron D. Scott, Assistant Clerk of Superior Court for Mecklenburg County, granted STSI authorization to proceed with a sale. (R p.
86).

On December 7,2010, Wilson filed a "NOTICE OF APPEAL OF ORDER OF FORECLOSURE AND ORDER SETTING BOND ON APPEAL." (R p. 87). The appeal was set for hearing on February 8, 2011. On February 8, 2011 a hearing was held before Judge Forest B. Bridges on the Appeal from the December 7,2010, Clerk's order authorizing STSI to proceed with the foreclosure sale. At the hearing Andrew Cogbill (herein after "Cogbill") averred his appearance on behalf of STSI, and Flagstar Bank. (2128 T p. 2). Wilson asked for clarification as to who Cogbill was representing. (2128 T p. 2). Immediately, Cogbill moved for continuance explaining "SunTrust Bank was the original lender on the note ... subsequent to the appeal the trustee was informed that the NOTE had been sold to Flagstar Bank. And Flagstar has since contacted us to represent

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them in this appeal." (2128 TR pp. 2-3). Ms. Wilson informed the court, "that's new to me." (2128 T p. 3). Cogbill, explained to the court, "we [STSI] need to attain additional information to present to the court that's not already in the record."

(2128 T p. 3). Judge Bridges asked Wilson "do you oppose a continuance?" (2128 T
p. 3). Ms. Wilson did not oppose the continuance asking for a response to the

MOTION filed on December 6,2010, and informed the court of an addendum to that MOTION. (2128 T p. 3). Ms. Wilson elaborated, for the record, "Flagstar Bank, that's even a new party to me. I've been told by five different sources including SunTrust Bank that it's FNMA who is the owner and investor on this account." (2128 T p. 4). Wilson continued asserting this motion (continuance) needs to be brought in the name of FNMA and the substitute trustee filed in the public record is invalid. "So it [Substitute Trustee Services, Inc., Flagstar Bank, or SunTrust Mortgage] does not have standing and it's not the real party in

interest."(2128 T p. 4).
The court having read through Ms. Wilson's MOTION asked, "Who is Shannon Brazelton?" Wilson replied, "That's the note that SunTrust Bank provided me when I ... asking [asked] for certified copies of the documents to prove their standing." (2128 T p. 5). Cogbill, explaining to the court, the copy of the note bearing the name Shannon Brazelton was "provided in error in the actual note addressed in the subject property was provided as evidence at the time of the

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[Dec. 7, 2010] hearing." (2/28 Tp. 5). The court indicated its willing to grant the continuance given both parties are moving for same. (2/28 T p. 5). Ms. Wilson immediately moved for dismissal on grounds STSI and SunTrust Mortgage "(STM"), do not have standing and are not the real party [parties] in interest. (2/28
Tp. 6). The court declined to address Wilson's motion in open court granting the

continuance and subsequently setting the hearing for March 29, 2011. On March 29,2011 Wilson appeared before Judge F. Lane Williamson on continuance from appeal of the Clerk's authorization to proceed with the sale. The court informed Wilson it read Wilson's MOTION and stated it made no sense to the court. So the court asked Wilson to explain "in 30 seconds or less what you contend entitles you to avoid this foreclosure?" (3/29 T p. 2). Wilson replied STM's claim to be the real party in interest is false. They do not possess the right to begin this action they're not the real party in interest. (3/29 T p. 2). Responding, Cogbill contended STM was the proper party when the foreclosure began, however, "the holder of the note changed from STM to Nationstar". "I need to present additional evidence to the court." (3/29 T p. 3). Wilson objected. The court admonished Ms. Wilson. (3/29 T p. 3). Cogbill continued by identifying the alleged new evidence to be introduced, "affidavit from Nationstar," and a "copy of the note endorsed in blank to prove evidence of the conveyance." (3/29 T pp. 3-4). The court questioned Cogbill "you're telling me since the order of the foreclosure

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... that there's a new holder." (3/29 T p. 4). Cogbill replying in the affirmative. The court questioned Cogbill if this case should return to the Clerk. Cogbill explained the case now before the court is de novo. Wilson objected and the court admonished her again warning she will be removed from the court. (3/29 T p. 4). Continuing, Cogbill explained since the Clerk's ORDER the note holder has changed, therefore, additional evidence as to the current note holder, and due to a statutory change "the court needs to make an additional finding that was not required last year with regard to the sale being barred by N.C.G.S. 45-21. 12(a) . ... I guess what I would say is, to the best of my knowledge the clerk's order was correct at the time it was entered." (3/29 T p. 4). The court affirming N.C.G.S. 45-21.12(a) became effective October 31,2010. (3/29 Tp. 5). Wilson reminds the court that at the Feb. 8 appearance the trustee admitted the real party in interest did not initiate the foreclosure. Nationstar is only the servicer. Evidence in the file shows FNMA is claiming to be the holder and owner of the NOTE. Wilson asserts even though STSI claims to represent Nationstar they still are not representing the real party in interest. (3/29 T p. 5). Cogbill responds offering a new payment history affidavit from Nationstar Mortgage "which alleges that they are the holder of the note and indebtedness, a military affidavit [N.C.G.S. 45-21. 12(a)], a copy of the NOTE endorsed in blank [by SunTrust Mortgage Inc.], and a copy of the assignment." (3/29 T p. 6). Wilson asserts lack of opportunity to cross examine the

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affiant(s) for Nationstar, and objects to the copies being entered into evidence.
(3/29 T p. 6). The court expresses concern about the procedural caution, in fairness

toMs. Wilson "this is the first notice that the holder in the original notice is not the holder now." (3/29 T p. 7). The court continues to express concerns over the change in the holder of the note since the clerk's order on Dec. 7,2010. Cogbill convinces the court to postpone a decision to give Ms. Wilson time to review the new note holder documents. (3/29 T p. 8). The matter is set for re-hearing on May 25,2011. On May 25,2011, Wilson appeared before Judge Robert T. Sumner, on continuance from appeal of the Clerk's order to conduct the foreclosure sale. The hearing was opened and Ms. Wilson averred she was representing herself, and Mr. Cogbill identified himself appearing for "Substitute Trustee Services and Nationstar." (05/25 T p. 2). Judge Sumner requested Wilson give the court "a little procedural history on this file ... " Responding Wilson informed the court of the administrative hearing that took place on December 7, and the "purpose of that hearing was to view the merits based on North Carolina General Statutes 45-21.16 the four points regarding the debt ... " (5/25 T p. 3). The court inquired if the sale had already occurred and Ms. Wilson responded "No." (5/25 T p. 3). The court established on December ih the Clerk of the Mecklenburg County court granted STSI authorization to conduct

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a foreclosure sale. (5/25 T pp. 3-4). Wilson responding, " ... his [Clerk] comment to me was whether he felt that ifhe ruled against me now or ... in 30 to 60 days, '" I was going to appeal his decision anyway so he was just going to find for the petitioner ... " (5/25 T p. 4). Wilson continued with the summary, "So on December 7, as I [Wilson] had indicated, I did file the motion to dismiss based on lack of standing and lack of subject matter jurisdiction of this court and I respectfully remind the court that in Me 10 v. US, 505 F2d 1026 November 7th of 1974 the court opined when it clearly [appears] appeals (sic) that the court lacks jurisdiction, the court has no authority to reach the merits. In such a situation the action should be dismissed for want of jurisdiction and Rosemound Sand and
Gravel Company v. Lambert Sand & Gravel Company 469 F2d 416 the court

opined 'Generally a plaintiffs allegations of jurisdiction are sufficient but when they are questioned as is in this case, the burden of the plaintiff is to prove jurisdiction'; citing McNutt v. General Motors Acceptance Corporation 1936,298, US 178, 56 S.Ct. 780 80 L.Ed. 1135; Welsh v. American Surety Company, Fifth Circuit 1951, 186 F .2d 16; 5 C, Wright & A. Miller supra Section 1363 at 653. If it pleases the court, I'm requesting at this time an affirmative ruling on my unrebutted (sic) MOTION." (5/25 T p. 4). Cogbill asking, "this is a motion to dismiss based on the court's lack of jurisdiction or based on the substitute trustee's lack of standing to bring the

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action?" (5/25 T pp. 4-5). Wilson responding, "also the petitioner has a lack of standing to bring the matter forward. Hence, there is no subject matter jurisdiction." (5/25 T p. 5). The court, "Well, that's what the motion says." (5/25 T
p.5).

Responding Cogbill cited N.C.G.S. "vest special jurisdiction in a Clerk of [the] Superior Court ... With regard to the issue of standing I'm [Cogbill] prepared to go through - I don't know if you [court] want to address that separately or address the motion with regard to jurisdiction first." (5/25 T p. 5). The court asked Wilson "if the clerk doesn't have standing and wouldn't address that to hear foreclosures, who does and who do you think should hear a foreclosure action?" (5/25 T p. 5). Wilson responded, "it's not the clerk doesn't have standing. It's that STSI was substituted by STM who's claiming ... they're the owner and holder of the note and deed of trust. That is a false claim and in my motion ... I submitted evidence that shows ... Fannie Mae [FNMA] is claiming ownership of the note, that STM Customer Service itself says Fannie Mae [FNMA] is the owner and holder of the note and that STM is only the servicer and all of that evidence is submitted in the file as attachments to the original motion ... I objected to all of the evidence that [STSI] was entered into the court because it did not meet the rules of evidence and it was all unauthenticated." (5/25 T p. 5). The court responded stating it understood

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Wilson is saying "the party that brought this action is not the real party in interest '" in other words ... they're not the owner of the paper." (5/25 T p. 6). Wilson affirmed the courts understanding. Cogbill stated STM endorsed the NOTE in blank and the DEED conveys interest to State Street Title Group, LLC as trustee. The court asked Wilson "the property ... they're attempting to foreclose on is 'the property that you own - is that correct?" (5/25 T p. 6). Wilson replying until there's a ruling on subject matter jurisdiction, anything that he [Cogbill] says should be struck from the record. He's [Cogbill] had five months and there has been no response to the MOTION to rebut ... " (5/25 T p. 6). Upon further inquiry Wilson confirmed to the court the property is in her name and is the correct property they're attempting to foreclose on. (5/25 T p. 7). Cogbill stated, on March 4th 2010 STM appointed STSI as substitute trustee claiming STSI's standing to proceed is based on that substitution. (5/25 T p. 8). Continuing Cogbill stated on or about December 1, [2010] STM transferred their right to enforce the note to Nationstar Mortgage, this "is the issue that came up at the last hearing ... " (5/25 T p. 8). Because of that transfer and the implementation ofN.C.G.S. 45-21.12A STSI presented additional evidence at that hearing (Mar. 28, 2011).

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The court inquired if Wilson was given a copy of the new evidence presented at the Mar. 28 th hearing? (5/25 T p. 8). Wilson replied, "I did object to that evidence being admitted ... " The court responding" ... Williamson allowed it in." (5/25 T p. 9). Cogbill affirmed STSI does not dispute the clerk signed the order and "Ms. Wilson properly appealed that order ... " There is a copy of the NOTE endorsed in blank and assignment from the original lender [SunTrust Mortgage d/b/a Sun America Mortgage, a Virginia Corporation] to Nationstar and "we believe those documents under North Carolina case law present evidence that STM was the holder of the NOTE and STSI was properly appointed. However, during the course of the foreclosure the NOTE and the right to enforce the NOTE were transferred to Nationstar and ... Nationstar is currently the owner and holder of the note ... " that's why I'm here on behalf of Nationstar. (5/25 T p. 9). Wilson responded, "As counsel he is barred from offering any type of testimony or testifying to the veracity of the documents that have been submitted into the court. 1 stand objecting to all of the documents ... they do not meet the rules of evidence of this court ... there is no certificate of authenticity in any of the affidavits ... submitted ... There is no proof of who has ... firsthand knowledge as required in the recent Gilbert ruling and ... who has possession of the NOTE and the DEED. It just talked about 'We're the holder of the note in indebtedness.' They

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are required to be in possession particularly because they made that negotiable instrument a bearer instrument ... and I do object to it. ... [H]ence, based on the recent Gilbert ruling ... 'the party seeking to foreclose on a promissory note as the holder of said note is an essential element of the action and the debtor is entitled to demand strict proof of this element ... Without a determination of who has physical possession of the note, the trial court cannot determine under the uniform commercial code the entity that is the holder of the note.' See N.C.G.S. 25-1201 (B )(21) defining holder as the person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession, ... Connolly, 63 NC Appeals at 550, 306 S.E.2d at 125. It is the fact of possession which is significant in determining whether a person is a holder and the absence of possession defeats that status." (5/25 T p. 10). The court in looking for the affidavit of default asked Wilson if she wants to make any further comments? Cogbill intervenes stating, "With respect to ownership of the NOTE, it's our opinion and we're aware of the findings that the Court of Appeals made. The matter In re: foreclosure of David A. Simpson ... " (5/25 T p. 10-11). The court requested a copy of the David A. Simpson case to which Cogbill presented along with Dobson v. Substitute Trustee Services stating, "the Simpson

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ruling came out May 3 rd and the Dobson ruling came out May 17th ... " (5/25 T p.

11).
The court addressing Wilson said, "You're saying that the assignment is one thing that Nationstar needs to actually have the note in their possession. Is that the crux of your argument with regard to the standing issue?" (5/25 Tp. 12). Wilson replying, "The crux of my argument goes back to SunTrust Mortgage never had -- was never the owner and holder of the note. Hence, they can't assign something that they don't own." (5/25 T p. 12). Cogbill intervenes, "[W]e're not relying necessarily on the affidavit of default to establish who the holder of the note is at any given point in time ... " In Simpson and Dobson the affidavits were found to have statements as to the note holder rather than factual statements. (5/25 T p. 12). Cogbill elaborate STSI's reliance on the note holder is based on STM was the original owner of the NOTE until endorsement and assignment evidencing a transfer. (5/25 T p. 12-13). Wilson asked, " ... reliance on the assignment and what? (5/25 T p. 13). Cogbill responding, "The assignment and the NOTE with its endorsement as to who's the holder with the right to enforce and ... the holding in Dobson essentially restates the holding [in Simpson] ... Dobson found ... there's no need to present the original note at one of these hearings unless there's actual evidence that contradicts something in the note ... However, if the court is uncomfortable

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with the evidence presented, I can request a copy of the original note and bring it down." (5/25 T p. 13). The court replied, "the lender is ... STM '" that's who the lender was when you signed the note and deed of trust." Wilson responding, " ... SunTrust Mortgage doing business as Sun America Mortgage, a Virginia Corporation, is the lender." The court, "Well, DBA is a trade name use to present to the public who you are ... your actual legal name is SunTrust Mortgage, Inc. That would be the owner ... " (5/25 Tp. 13). Wilson to the court, "I will show you that shortly after that closing, STM sold the note to FNMA and ... held this note since the inception .. , the first exhibit that I'm submitting to you, sir, includes an affidavit about me testifying to how I received -- and you've already gotten a copy of the packet, correct?" (5/25 T p. 1314). The court affirming Wilson continued, ... "my affidavit that everything I am submitting ... is a true and correct copy and ... nothing has been altered and I am swearing under penalties of perjury ... Your Honor ... first information provided ... is a printout from October 12 of 20 10 ... from FNMA Loan Lookup site [website].
It clearly states ... the subject property that FNMA owns a loan at this address ...

knowing that this would not be enough information to corroborate this statement, I then went to MERS website because MERS ... has a loan lookup ... you can type

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in the MIN number of your DEED and it will pull up ... who the servicer is and who the investor is ... on this particular loan on October 12,2010, it stated the servicer is SunTrust Mortgage and the investor is FNMA .,. I did the same type of lookup ... on February 1st of2011 and ... Fannie Mae is confirming ... they still own a note and loan ... and if you flip to the MERS printout ... it (5/25 T p. 14) states the servicer is Nationstar Mortgage and the investor is FNMA ... Your Honor Exhibit C ... an affidavit that outlines several phone calls ... I ... made over the ... past seven to eight months ... is ... based on my firsthand personal knowledge regarding these three separate telephone communications ... the first call ... to STM Customer Service ... took place on October 12 of2010 ... STM positively identified FNMA to be the owner and holder of the note and that FNMA obtained possession shortly after the closing date of January 2007. The second call was to Nationstar Mortgage ... on January 13th of2011 ... Nationstar Mortgage positively identified FNMA to be the owner and holder of the note and ... obtained possession shortly after closing ... January 2007. The ... final call ... was ... to Nationstar Mortgage Customer Service ... on February 2nd of2011 and .. . Nationstar Mortgage positively identified FNMA to be the owner and holder of the note and again confirmed ... FNMA obtained possession shortly after the closing date of January 2007. I do have recordings ... and if ... the court will permit, I will bring in the recordings to submit into evidence.

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Cogbill objected to Wilson's telephone call affidavit, the court responding with "consideration." (5/25 T p. 15). Wilson replied, "This affidavit is based on my personal firsthand knowledge and I'll be more than happy to submit the recordings." The court "All right." (5/25
Tp.15-16).

Wilson continuing, "Customer service is required when asked to identify who ... the holder of the NOTE is. Exhibit D ... is a letter from Nationstar Mortgage dated December 15th of2010 and it's [Nationstar Mortgage] still required ... by Title 12 of the United States Code Section 2605. You can see ... the letter states ... and 1 quote, 'Welcome to Nationstar Mortgage. We look forward to servicing your loan on behalf of Fannie Mae. Your total debt at the time of transfer is $106,527.58. This debt is owed to Fannie Mae but is being serviced by Nati on star. ' I have labeled this as exhibit E and I introduce this into the court as well. Actually, 1 may be off of my exhibit and I apologize. The court "That was D, 1 believe." Wilson affirming continued, "I have a true and correct copy of the Fannie Mae announcement 08-12 dated May 23rd of2008 presented to me on March 29th of 20 11, ... by Andrew Cogbill ... who represents the petitioner in this matter. The court will please take note ... the first sentence in the last paragraph on page 1 .. , states, 1 quote, 'Fannie Mae is at all times the owner of the mortgage note whether the note is in Fannie Mae's portfolio or whether owned as trustee.'

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Your Honor, STM was not the real party in interest on March 4th of 20 10 when they executed the appointment of Substitute Trustee prepared by the law firm of Hutchens, Senter and Britton. Hence, SunTrust Mortgage lacked any possessory interest in the note and thus lacks the contractual capacity to substitute the trustee pursuant to paragraph 24 of the said deed of trust. Further, Rule 17A of the North Carolina Rules of Civil Procedure require, and I quote, 'every claim shall be prosecuted in the name of the real party in interest.' The petitioner before this court is clearly not the real party in interest based on the preponderance of evidence presented and now before this court. Respondent Jennifer L. Wilson respectfully requests the court, set aside the order of the clerk and grant the motion to dismiss for lack of standing with prejudice." (5/25 T p. 16). Cogbill responding, "If you'd continue on in exhibit E to the second page ... the bold heading temporary possession by the servicer, that section specifically addresses cases where there is a default ... they [FNMA] transfer ownership, holdership and the right to enforce that NOTE to the servicer ... I'm not saying that Fannie Mae did at any time own that note. I am saying that in the event that they did, the documentary evidence that the plaintiff is relying on says that they would transfer the ownership and holdership (sic) and the right to enforce to the servicer to conduct the action so --" Ms. Wilson intervening, "Your honor --" Cogbill continuing, "Excuse me. The cases that the appellant is relying on

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disregard all the evidence that the appellant is relying on. The cases say that you have to have the note properly endorsed and evidence of the right to enforce. Now what FNMA says on their website or what MERS says on their website may be very well be confusing but it does not equate to evidence to the court as to who's the owner and holder of the note at any point in time. What the court can rely on as proper evidence on who is the owner and holder of the note and the right to appoint a substitute trustee or the right to proceed with foreclosure is the NOTE itself which was originally made by STM and endorsed, a copy of which has been submitted as endorsed in blank so -- and to be able to be enforced by bearer and an assignment by which STM transferred its holder right to Nationstar. There's no other documentary evidence competent to the court to suggest that there's any problem standing or that the petition has brought by a party that's not the holder of [indiscernible] [0:34:09.4]" (5/25 T p. 17). Wilson responding, "The statement that Mr. Cogbill just made regarding what the circular from FNMA says is misleading ... It [FNMA] never transfers ownership of the note and many of the items here in Fannie Mae's circular violate the law. Fannie Mae specifically states in this circular that the servicer will foreclose in the servicer's name. That is a violation of federal rules as well as the rules of this court that all actions must be brought in the name of the real party in interest. "

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The court closing, "I want to take a look at the cases that were handed up as well as your affidavit as well as the court file and I will be in touch with you or the clerk with regard to my decision on our motion. Thank you very much."

ARGUMENT
I.

DID THE TRIAL COURT ERR IN RELYING ON UNAUTHENTICATED DOCUMENT COPIES PROFFERED BY THE PETITIONER TO DETERMINE NATIONSTAR WAS THE HOLDER OF THE NOTE WITH THE RIGHT TO FORECLOSE? Chaper 8C Evidence Code 8C-1Rule 1003. Admissibility of duplicates, in

relevant part states, "A duplicate is admissible to the same extent as an original

unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.,,1 (Emphasis added). Rule 1005 "Public records" in relevant part states, "The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, ...

if otherwise admissible,

may be proved by

copy, certified as correct in accordance with Rule 902 or testified to be correct by a witness who has compared it with the original." (Emphasis added). Rule 902(4)
in relevant part states, "Certified Copies of Public Records. - A copy of an official

I Connolly v. Potts, 63 N.C. App. 547, 306 S.E.2d 123 (1983) (overturning Furst v. Lofiin,29 N.C. App. 248, 224 S.E.2d 641 (1976 ("A party seeking to go forward with foreclosure under a power of sale must establish, inter alia, by competent evidence, the existence of a valid debt of which he is the holder."; citing G.S. 45-2 1. 16(d), In re Foreclosure afBurgess, 47 N.C. App. 599,267 S.E.2d 915, appeal dismissed,301 N.C. 90 (1980).

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record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, .. , certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) or complying with any law of the United States or of this State." (Emphasis added).
Competent evidence is evidence "that a reasonable mind might accept as adequate to support the finding.,,2 The NOTE, relied upon by STSI and the court, is not accompanied by an affidavit from someone who actually compared the genuine NOTE with the copy STSI presented to the court. 3 The DEED, (R p. 60) relied upon by STSI and the court, is absent any certification from the Office of the Register of Deeds (custodian) for Mecklenburg County. Even the ORDER of the Superior Court draws into question, "Who's on first?" Judge Sumner's ORDER in relevant part states, " ... about Dec. 1,2010, SunTrust Mortgage, Inc. caused their right to enforce the above referenced note to be transferred to NationStar Mortgage, LLC" (R p. 117, par. 7). The hearing, and ORDER from the Clerk of the Superior Court for Mecklenburg County,
Eley v. Mid/East Acceptance Corp. ofN.C., 171 N.C. App. 368,369,614 S.E.2d 555, 558 (2005); Andrews v. Fulcher Tire Sales & Serv., 120 N.C. App. 602, 605, 463 S.E.2d 425, 427 (1995). 3 In re Simpson,_ N.C. _,711 S.E. 165 (May 3, 2011) (Citation omitted) " ... the holder of said note is an essential element of action and the debtor is "entitled to demand strict proof of this element"; citing Liles v. Myers, 38 N.C. App. 525, 528, 248 S.E.2d 385, 388 (\ 978).
2

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authorizing the sale took place on December 7,2010, six days after STSI avers in open court STM transferred its right to enforce the NOTE (R p. 117 par. 8), and six days after the relation back date noted on the "ASSIGNMENT OF NOTE AND DEED OF TRUST" ("ASSIGNMENT") by Nationstar. (Rp. 91). If the court is to accept the relation back date noted on the ASSIGNMENT then STM was not the "Note Holder" at the time of the hearing before the Clerk, and STSI knew or should have known STM transferred its rights to enforce the NOTE as the NOTE presented to the Clerk for the Superior Court for Mecklenburg evidenced an allegedly lawful endorsement from SunTrust Mortgage, Inc. (R pp. 80-82). Either the Clerk of the Superior Court for North Carolina Mecklenburg County is inadequately trained for the position or is incompetent as the endorsement on the NOTE presented at the Dec.7, 2010 hearing is prima facie evidence that SunTrust Mortgage, Inc. had surrendered its rights to foreclose.
4

The veracity of the ASSIGNMENT prepared by "The Law Firm of Hutchens, Senter & Britton, P.A." is gravely suspect as it was executed on March 16, 2011, just thirteen (13) days before the March 29 hearing and avers the "assignment is effective (12/01/2010),,5 six days before the ORDER from the Clerk
th

4 In the Matter of Bass, No. COA 11-565, ~ S.E. ~ (Dec. 6, 20 II) (Citation omitted) ("An indorsement is "a signature, other than that ofa signer or maker ... that alone or accompanied by other words [may be] made on an instrument for the purpose of ... negotiating the instrument .... "); citing, N.C. Gen. Stat. 25-3-204(a)(i) (2009. s Ohlendorfv. American Home Mortgage Servicing, U.S. Dist. Court Eastern Dist. Cal. No. Civ. S-09-2081 (Mar. 30,2010) (citation omitted) "While California [North Carolina law] law does not require beneficiaries to record assignments, see California Civil Code Section 2934 [N.C.G.S. 47-17.2], the process of recording [executing]

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of the Mecklenburg County Superior Court. Since the ASSIGNMENT was prepared by "Law Firm of Hutchens, Senter & Britton, P.A.", and is allegedly retroactive to December 1, 2010, any reasonable man would draw the conclusion it was manufactured specifically for the March 29 th hearing. The execution of this ASSIGNMENT is also extremely suspect as the executor claims to be an officer for "Nationstar Mortgage LLC" acting in the capacity of an "attorney-in-fact for SUNTRUST MORTGAGE, INC. D/B/A/ SUN AMERICA MORTGAGE." (Rp.

91). Simply put Nationstar Mortgage LLC assigned an asset, allegedly owned by
SunTrust Mortgage, Inc., to itself, while acting as attorney-in-fact for the alleged owner, SunTrust Mortgage, Inc. Appellant, Wilson, introduced seven exhibits, all supported by a notarized affidavit, each evidencing Federal National Mortgage Association is the owner/investor of the NOTE before the hearing on Dec. 7, 2010. Wilson, based upon firsthand knowledge, by affidavit (R pp. 16, 34, 35, 98 & 99), affirmed on Oct. 12,2010, December 5,2010 and February 1,2011 the websites for both FNMA and Mortgage Electronic Registration Systems, Inc. confirmed FNMA is the owner/investor of the NOTE. (Rpp.37, 39, 41,43, 100, 101, 103, 104). The MERS Oct. 12,2010 report states, "Server: SunTrust Mortgage, Inc .... Investor: Fannie Mae." The MERS Dec. 5,2010 report states, "Server: Nationstar Mortgage
assignments with backdated effective dates may be improper, and thereby taint the [assignment] notice of default." (Dismissed on other grounds). 6 These FNMA and MERS reports cast a dark shadow on the veracity of the backdated ASSIGNMENT.
6

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LLC ... Investor: Fannie Mae." The MERS Feb. 1,2011 reports states, "Server: Nationstar Mortgage, LLC ... Investor: Fannie Mae." The "MIN: 10001040039042015-4" is on all the MERS reports. (See Rpp. 41, 101 & 104). The identical "MIN: 1000104-0039042015-4" is also found in the upper right corner of the first page of the NOTE and the DEED proffered by STSI. (Rpp. 81 & 60

respectively). Wilson then presents the court a letter she received from Nationstar
Mortgage dated Dec. 15, 2010 attesting "This debt is owed to Fannie Mae, but is being serviced by Nationstar.,,7 (R p. 109). The MERS FNMA website reports and Nationstar's letter unquestionably goes beyond supplanting reasonable doubt in a man's mind, it speaks directly to the absence of the truthfulness of the contents of the ASSIGNMENT allegedly executed by Nationstar as attorney-in-fact for SunTrust Mortgage, Inc. and backdated to December 1, 2010. The United States Court of Appeals First Circuit addressed the issue of "retroactive", "relation back" [backdated] agreements,

"as a general rule that when a written contract provides it shall be effective 'as of' an earlier date, it generally is retroactive to the earlier date, 368 F.Supp. at 1270 (citing Jeremiah Burns, Inc.), the court made clear in its extensive discussion that it construed the retroactively-dated written contract to be a validation or an alreadyexisting and partially performed oral contract ... The court found that the contract existed at an earlier date because the parties acted on the supposition that it already existed, and because the parties ... had not

7 12 U.S.C. 2605(b)(1) "Each servicer of any federally related mortgage loan shall notify the borrower in writing of any assignment, sale, or transfer of the servicing of the loan to any other person."

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intended to require a writing before being bound.,,8 (Emphasis added).

Based upon the opinion in Debreceni v. Outlet Co. the backdating of the ASSIGNMENT validates and binds the parties, STM, the assignor, and Nationstar, the assignee, to its terms as effective Dec. I, 2010. Therefore, either Nationstar lied in the letter it sent Wilson on December 15,2010, or Nationstar lied when executing, as attorney-in-fact, the backdated (Dec. 1,2010) ASSIGNMENT claiming STM, "does also sell, assign, transfer and set over unto the said NATIONSTAR MORTGAGE, LLC all of its rights, title and interest in and to the said note secured by said deed of trust. Presuming the validity of the ASSIGNMENT, STM knew it was not the "Note Holder" at the time of the hearing on Dec. 7,2010. Assuming STSI had no prior knowledge, in the face of the evidence Wilson presented establishing FNMA as the owner/investor from October 12,2010 through May 25, 2011, then both STM and Nationstar must have deceived STSI for the purpose of unjust enrichment. 9 The trial court erred in the face of Wilson's continual objections to the authenticitylO of the copy documents (NOTE and DEED), and ASSIGNMENT, the reliance of which was outweighed by the overwhelming evidentiary materials proffered by Wilson.
Debreceni v. Outlet Co., 784 F.2d 13, 19 (I st Cir. 1986); citing Viacom International Inc. v. Tandem Productions Inc., 368 F.Supp. 1264, 1270 (S.D.N.Y.1974), affd, 526 F.2d 593 (2d Cir.1975. 9 Precision Inst. MIg. CO. v. Automotive Maintenance Mach. Co., 324 U.s. 806, 814 (1945). 10 See (5/25 T pp. 5 & 10 (" ... there is no certificate of authenticity ... "; (3/29 T pp. 3 ("I have to object ... 1 object your honor"), 4 ("Objection your honor"), 6 (" ... [ object to any copies being submitted into evidence as the copies do not substantiate any evidence as relevant whatsoever.".
8

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II.

DID THE COURT ERR IN DETERMINING NATIONS TAR WAS IN POSSESSION OF THE NOTE WITH THE RIGHT TO FORECLOSE? The NOTE states, "The Lender or anyone who takes this Note by transfer

and who is entitled to receive the payments under this Note is called the "Note Holder." "Uniform Commercial Code, G.S. 25-1-201(21)(a) "Holder" is "[TJhe

person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession." to be "a person who is in possession of ... an instrument ... issued or indorsed to him or to his order .... ,,11 It
is the fact of possession which is significant in determining whether a person is a holder, and the absence of possession defeats that status.
12

In order to find that there is sufficient evidence that the party seeking to foreclose is the holder ofa valid debt in accordance with N.C.G.S. 45-21.16(d), the following two questions must be answered in the affirmative: (I) "is there sufficient competent evidence of a valid debt?"; and (2) "is there sufficient competent evidence that [the party seeking to foreclose is] the holder of the [note]

II

Hotel Corp. v. Taylor and Fletcher v. Foremans, Inc.,301 N.C. 200, 271 S.E.2d 54 (1980). In re: Adams, N.C. App. No. COA09-1145 (Jun. 1,2010); citing Connolly v. Potts, 63 N.C. App. 547, 550, 306 S.E.2d 123, 125 (1983); citing Liles v. Myers,38 N.C. App. 525,248 S.E.2d 385 (1978).
12

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Notes?,,13 In a foreclosure proceeding, the lender bears the burden of proving a right to foreclose under power of sale, and notice. 14
It is unquestioned the record evidences the substitute trustee, Substitute

Trustee Services, Inc., over the span of just two (2) short months, averred in open court no less than three (3) different holders of the NOTE; 1) SunTrust Mortgage, Inc. (2/8 T p. 2, last par.) ; 2) Flagstar Bank (2/8 T p. 3, and 3) NationStar Mortgage, LLC (3/29 T p. 3,
4th

sentence from the top);

lh par. from bottom).

In stark contrast to the unauthenticated document copies and ASSIGNMENT presented by STSI alleging Nationstar to be the "Note Holder", Wilson presented no less than seven (7) documents authenticated by affidavit attesting to their veracity. All seven (7) documents, unlike the unauthenticated document copies and ASSIGNMENT presented by STSI, consistently evidence FNMA is the owner/investor of the NOTE. Five (5) of the seven (7) documents identify Nationstar Mortgage as merely the servicer. Three of the seven (7) documents naming FNMA as the owner/investor identified the NOTE and DEED by way of the MIN number.
It cannot be questioned the authenticated evidentiary documentation Wilson

presented outweighs the allegations and unauthenticated copies of the NOTE and
13 In re Cooke, 37 N.C. App. 575, 579, 246 S.E.2d 801, 804~05 (1978); In re Foreclosure of Connolly v. Potts, 63 N.C. App. 547, 550, 306 S.E.2d 123, 125 (1983). 14 In re Foreclosure of Real Property (Brown), 156 N.C. App. 477, 577 S.E.2d 398, 406 (2003); citing In re Foreclosure o/Kitchens, 113 N.C. App. 175, 177,437 S.E.2d 511, 512 (1993); see also N.C. Gen.Stat. 452 1.1 6(d).

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DEED presented by STSI in open court. Absent the presentation of the genuine NOTE and DEED for examination by the respective parties and the court, STSI has presented acutely insufficient documentation that fails to defeat the evidence establishing Nationstar is devoid of the Note Holder status. III. DID THE COURT ERR IN DETERMINING IT POSSESSED JURISDICTION TO PROCEED ON THE MERITS? Standing has both constitutional and prudential (i.e. self-imposed) requirements. The real party in interest [Note Holder] question is really the prudential component of the overall standing analysis, while injury-infact is a constitutional requirement. Both requirements must be met before a court can grant relief. In addition, a party also has standing to seek relief [substitute trustee] if it has the authority [assignment of substitute trustee] to act on behalf of an entity that has standing. Therefore, a nominee or agent will have to prove both (1) that it is an agent with the authority [recorded assignment of substitute trustee] to act on behalf of the principal and (2) that the principal ["Note Holder"] has both constitutional standing and prudential standing. However, even if a party has standing, the agent must prosecute the action in the name of the real party in interest and not in its own name.

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The standing requirement is "an essential and unchanging part of the case-or controversy requirement of Article III.,,15 This constitutional doctrine requires that a claimant must present an actual or imminent injury that is fairly traceable to the defendant's conduct and redressable by a favorable ruling. 16 The standing question

is a threshold issue, required before a court may entertain a suit. 17 Thus, if a lender ("Note Holder") cannot prove standing, the court has no authority to hear its petition for relief. Prudential requirements also require that a party bringing an action be the real party in interest. 18 The purpose is to ensure the party bringing forth the action is the party who "possesses the substantive right being asserted under the applicable law.,,19 (Emphasis added). A "foreclosure under a power of sale is not favored in the law and its exercise will be watched with jealousy.,,2o The party seeking to foreclose on a promissory note is the holder of said note is an essential element of the action and the debtor is "entitled to demand strict proof of this element.,,21

Constitution for the United States; Lujan v. Defenders of Wildlife, 502 US 555, 560 (1992). Davis v. Fed. Election Comm 'n, 128 S.Ct. 2759 (2008). 17 Warth v. Seldin, 422 U.S. 490, 495 (1975). 18 N.c.a.S. 1-57 "Every action must be prosecuted in the name of the real party in interest ... " 19 6A Wright, Miller & Kane, Federal Practice and Procedure 1541 (Westlaw current through 2009 update). 20 In re Simpson, _ N.C. _ , 711 S.E.2d 165, 170 (2011); citing, In re Foreclosure of Goforth Props., Inc., 334 N.C. 369, 375,432 S.E.2d 855, 859 (1993. 21 In re Simpson, _ N.C. _ , 711 S.E.2d 165, 170 (2011); citing, Liles v. Myers, 38 N.C. App. 525, 528, 248 S.E.2d 385, 388 (1978).
IS
16

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The evidence Wilson proffered that FNMA is the Note owner/investor cannot be overcome by mere unauthenticated copies. STSI's failure to bring the action in the name of Federal National Mortgage Association is fatal to the court's jurisdiction. (Supra In. 18-19). Therefore, the court acted in excess of its jurisdiction by denying Wilson's MOTION and proceeding on the alleged merits of the case. Appellant's MOTION was unopposed by STSI. STSI, failed to refute any of the documentary evidence presented by Wilson attesting Federal National Mortgage Association is owner/investor, instead relied solely upon the unauthenticated copy of the NOTE and DEED. The failure to object to Wilson's MOTION and the overwhelming evidence presented to the court clearly identifies Nationstar is only the servicer. The lack of note holder status (Supra In. 17) by Nationstar defeats the prudential component necessary to envoke the jurisdiction of the court. The court, turning away from the authenticated evidence Wilson presented opting in favor of the unauthenticated copies of the NOTE and DEED submitted by STSI, gave an unqualified self imposed grant of jurisdiction. Therefore, the court erred in proceeding on the alleged merits of the case absent strict proof (Supra In. 21) of Nationstar Mortgage, LLC standing to invoke the jurisdiction of the court.

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CONCLUSION

The record of the court supports Vacatur of the Judgment. WHEREFORE, Jennifer L. Wilson, request; a. The court vacate the ORDER of the Superior Court of North Carolina Mecklenburg County entered on May 31,2011 by Judge Robert T. Sumner Presiding, with prejudice; b. Remand to the trial court for an ORDER directing Substitute Trustee Services, Inc. to record with the Register of Deeds for the County of Mecklenburg a rescission of the TRUSTEE'S DEED, instrument number 2011096152, and the Substitution of Trustee instrument number 2010032816; c. Instruct the trial court to sanction Substitute Trustee Services, Inc. in an amount equal to all direct and indirect monetary losses Jennifer L. Wilson has suffered since the ORDER of the Clerk for the Superior Court of North Carolina Mecklenburg County entered on December 7, 2010, said losses shall be awarded to Appellant; and d. Instruct the trial court to sanction Substitute Trustee Services, Inc. for an amount equal to all trial and appellate court costs.

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Respectfully submitted this the 1ih day of January 2012. Jennifer L. Wilson, Propria Persona
;'

....Jeqrfifer L. ilson, Propria Persona 4365 School House Commons, 500-251 Harrisburg, NC 28075 Ph.: 704-773-1712
'--..

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CERTIFICATE OF SERVICE
I, Jennifer L. Wilson, defendant in the above entitled action, and selfrepresented, hereby certifY on this date I served the attached "APPELLANT'S BRIEF" and this "CERTIFICATE OF SERVICE" upon all parties, by placing a copy of said documents in the sole care and custody of the United States Post Office, with first class postage prepared and with same addressed to: THE LA WFIRM OF HUTCHENS, SENTER & BRITTON, P.A. Attn: Andrew Cogbill 1915 Rexford Road, Suite 100 Charlotte, North Carolina 28211

THE LA WFIRM OF HUTCHENS, SENTER & BRITTON, P.A. Attn: Scott J. Flowers POB 2505 Fayetteville, NC 28302 This lih day of January, 2012.

J n ifer L. ilson, Propria Persona 5 School House Commons, 500-251 Harrisburg, NC 28075 Ph.: 704-773-1712

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TRANSCRIPT RECORD .................................................. B e. TRANSCRIPT RECORD February 8, 2011, line 4 page 6 of Brief: MS. WILSON: Again, I would also like to go onto the record, Flagstar Bank, that's even a new party to me. I have been told by five different sources including Sun Trust Bank that it's Fannie Mae who is the owner and investor on this account. JUDGE: Mhm. Okay. MS. WILSON: And also your honor, based on the trustee themselves stating that they've gotten new information, this motion needs to be brought in the name of Fannie Mae. The substitute trustee that's been filed in the public record is invalid. It was filed and brought by Sun Trust Mortgage. So it does not have standing and it's not the real party in Interest. f. TRANSCRIPT RECORD February 8, 2011, line 2 page 7 of BRIEF: JUDGE: Well due to the fact that both the petitioner and the respondent ... [reading the document] ... Given the fact that both the petitioner and the responder are moving for a continuance on the matter, I'm inclined to grant that motion. MS. WILSON: Your honor, because Substitute Trustee Services being that Sun Trust Mortgage who did the initial substitution of trustee does not have

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standing in this matter nor are they the real party in interest, I move the court to dismiss. JUDGE: I thought both of you wanted to continue the matter. I thought you did not oppose a continuance. MS. WILSON: I did not oppose the continuance if they are going to respond to this issue. However because they have admitted here in court today that Sun Trust Mortgage, the petitioner does not have standing and is in last and they um- is not the real party in interest, hence the court lacks subject matter jurisdiction, the court can dismiss this entire proceeding. And I move to strike the substitution of trustee from the public record as well as the affidavit from Sun Trust. g. TRANSCRIPT RECORD March 29,2011, line 3 page 8 of BRIEF: MR COGBILL: However, since it's a de novo hearing, I think that we have a responsibility to the court to re-demonstrate the elements before foreclosure or for foreclosure, pardon me. And since the note holder has changed since the clerk's order, I believe we need to present additional evidence as to the current holder because the foreclosure sale then be conducted for their benefit on the trustee's behalf. In addition, because of the statutory change, the court needs to make an additional finding that was not required last year with regard to the sale being barred by NCGS 45-12.12(a). So I need to present an additional affidavit regarding military service. I guess what I would say is, to the best of my knowledge the

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clerk's order was correct at the time it was entered. Since that time, the facts have changed and since this is a de novo review of the evidence for the elements of foreclosure, then we need to present additional evidence to establish those. h. TRANSCRIPT RECORD Mar. 29, 2011, line 9 page 8 of BRIEF: JUDGE: All right. Ma'am, I'll hear from you now. MS. WILSON: Your honor, at the last appearance in February, the trustee admitted that the real party in interest did not initiate the foreclosure process. Nationstar Mortgage is just servicer. The evidence that I have presented in the file shows that Fannie Mae is claiming to be the real party in interest. So even though he's now claiming to represent Nationstar, he is still not representing the real party in interest. JUDGE: All right, thank you. Mr. Cogbill, what is it you want me to consider today in terms of -MR COGBILL: As far as additional evidence your honor, I have a new payment history affidavit executed by the assistant secretary of Nationstar Mortgage which alleges that they are the holder of the note and indebtedness. I have a military affidavit with an attached search of the Department of Defense database. I have a copy of the note endorsed in blank by SunTrust and attached to that is a copy of an assignment, a note and deed of trust from SunTrust Mortgage to Nationstar Mortgage LLC. I would like to present those. JUDGE: Have you given copies to Miss Wilson?

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MR COGBILL: I'm prepared to hand copies to Miss Wilson. JUDGE: Go ahead and do that. MS. WILSON: Your honor, I did not have the opportunity to cross examine the person who has completed this affidavit. Additionally, I object to any copies being submitted into evidence as the copies do not substantiate any evidence as relevant whatsoever. i. TRANSCRIPT RECORD March 29,2011, line 2, page 9 of BRIEF: JUDGE: What troubles me is just about the procedural caution. I realize that this is de novo is that I don't think I would have any issue if this were an appeal and it was SunTrust. It's the same holder. I'm troubled with, since we are holding a de novo hearing, making the findings necessary for the sale to go forward when basically in fairness to Miss Wilson, this is the first notice that the holder in the original notice is not the holder now. j. TRANSCRIPT RECORD May 25, 2011, line 11, page 9 of BRIEF: JUDGE: Where do you think -- Ms. Wilson, where -- if the clerk doesn't have standing and wouldn't address that to hear foreclosures, who does and who do you think should hear a foreclosure action? MS. WILSON: Your Honor, it's not the clerk doesn't have standing. It's that Substitute Trustees was substituted by SunTrust Mortgage Bank who's claiming that they're the owner and holder of the note and deed of trust. That is a false claim

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and in my motion that I submitted to the clerk of court I submitted evidence that shows that Fannie Mae is claiming ownership of the note, that SunTrust Mortgage Customer Service itself says Fannie Mae is the owner and holder of the note and that SunTrust Mortgage is only the servicer and all of that evidence is submitted in the file as attachments to the original motion. The clerk chose not to view that and I objected to a copy and I objected to all of the evidence that was entered into the court because it did not meet the rules of evidence and it was all unauthenticated. Yet he felt I was going to appeal regardless which kind of tells me -JUDGE: I understand why -- I understand he ruled and that really has no bearing on what I'm going to do one way or the other but essentially, as I understand, you're saying that the -- that the party that brought this action is not the real party in interest, I think is what you're saying, not so much standing but real party in other words they don't have the right to proceed because they're not the owner of the paper. MS. WILSON: Correct. TRANSCRIPT RECORD May 25, 2011, line 19, page 12 of BRIEF: JUDGE: What did -- what did Judge Williamson want with that? MR. COGBILL: He wanted us to continue the matter to give Ms. Wilson time to respond to that additional evidence with regard to transfer of the note and the military act.

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JUDGE: OK. All right. MR. COGBILL: Because that additional evidence was presented for the first time at that hearing. JUDGE: All right. And she was given a copy of it that time? MR. COGBILL: She was given a copy at the time. That's correct. JUDGE: All right. MS. WILSON: Which I did object to the evidence being admitted into the file at that time -JUDGE: I know that Williamson allowed it in. I saw on the file that you did but you did get a copy of that -- ? MS. WILSON: I did. JUDGE: I'll let you speak on that in just a minute. OK? MR. COGBILL: OK. Beyond that, I think that pretty much gets us up-todate. We don't dispute that the clerk signed an order on December 7 and that Ms. Wilson properly appealed that order and that's why we're here. It's our contention that the court file contains the original - a copy of the original note. Obviously not the original note itself, that the copy demonstrates that the note has been endorsed in blank and that there is also a copy of an assignment from the original lender to the current holder, Nationstar, and we believe those documents under North Carolina case law present evidence that at the time - at the time prior to the

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foreclosure, at the time that Substitute Trustee was appointed, that SunTrust was the holder of the note and that Substitute Trustee was properly appointed. However, during the course of the foreclosure the note and the right to enforce the note were transferred to Nationstar and that Nationstar is currently the owner and holder of the note and that's why I'm here on behalf of Nationstar. JUDGE: I have SunTrust. MR. COGBILL: And I'd be happy to respond further to any -JUDGE: I think that tells me. I really ought to look at the file but that tells me what your position is. Ms. Wilson, would you like to respond to anything he said plus anything else you think is appropriate? MS. WILSON: If I may Your Honor ... ? JUDGE: Yes. MS. WILSON: As counsel he is barred from offering any type of testimony or testifying to the veracity of the documents that have been submitted into the court. I stand objecting to all of the documents. They are not -- they do not meet the rules of evidence of this court. They have not been authenticated. They have -there is no certificate of authenticity in any of the affidavits that were submitted. There is no proof of who has -- how they have firsthand knowledge as required in the recent Gilbert ruling and there's no talk of who has possession of the note and the deed of trust. It just talked about "We're the holder of the note in

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indebtedness." They are required to be in possession particularly because they made that negotiable instrument a bearer instrument according to the evidence that they have submitted into the court which again is authenticated and I do object to it. They made it a bearer instrument and hence, based on the recent Gilbert ruling from the North Carolina Court of Appeals that "the party seeking to foreclose on a promissory note as the holder of said note is an essential element of the action and the debtor is entitled to demand strict proof of this element." Also from the Gilbert finding: "Without a determination of who has physical possession of the note, the trial court cannot determine under the uniform commercial code the entity that is the holder of the note. See North Carolina General Statute Section 25-

1-201 (B )(21) defining holder as the person in possession of a negotiable


instrument that is payable either to bearer or to an identified person that is the person in possession, emphasis added, Connolly, 63 NC Appeals at 550, 306 S.E.2d at 125. It is the fact of possession which is significant in determining whether a person is a holder and the absence of possession defeats that status." TRANSCRIPT RECORD May 25,2011, line 2, page 16 of BRIEF: MS. WILSON: The deed of trust on its face says SunTrust mortgage doing business as Sun American Mortgage, a Virginia Corporation, is the lender. JUDGE: Yes.

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MS. WILSON: Not SunTrust Mortgage. JUDGE: Well, DBA is a trade name that's used to present to the public who you are but your actuallegal name is SunTrust Mortgage, Inc. That would be the owner -MS. WILSON: If I can walk you through this exhibit package -JUDGE: Yes, you may. MS. WILSON: -- I will show you that shortly after that closing, SunTrust Mortgage sold the note to Fannie Mae and Fannie Mae has pretty much held this note since the inception and I will walk you through the evidence. The first -- the first exhibit that I'm submitting to you, sir, includes an affidavit about me testifying to how I received -- and you've already gotten a copy of the packet, correct? JUDGE: Yes. MS. WILSON: Is my affidavit that everything I am submitting in here is a true and correct copy and that nothing has been altered and I am swearing under penalties of perjury, Your Honor. The first information provided to you is a printout from October 12 of 20 I 0 of a website from Fannie Mae Loan Lookup site.
It clearly states that this address which is the subject property that Fannie Mae

owns a loan at this address. JUDGE: Who states that? What is this website?

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MS. WILSON: This is Fannie Mae's website where you can go in and you can type in your address to determine if Fannie Mae holds the loan on your piece of property. JUDGE: OK. MS. WILSON: See, down here it's saying match found based on the property information entered. It appears Fannie Mae owns a loan at this address. There is only one loan at this address. There's only one deed of trust attached to the title of this property, Your Honor, but knowing that this would not be enough information to corroborate this statement, I then went to MERS website because MERS also has a loan lookup and you can type in the MIN number of your deed of trust and it will pull up and tell who the servicer is and who the investor is. When I pull that up on this particular loan on October 12, 2010, it stated the servicer is SunTrust Mortgage and the investor is Fannie Mae. The next exhibit, Your Honor,
IS --

JUDGE: Is that exhibit B? MS. WILSON: No, now I'm moving to exhibit B. I did the same type of lookup and pull of the information on February 1st of2011 and you can see I pulled up the information on February 1st of20l1 from Fannie Mae's website. It has stayed the same. Fannie Mae is confirming that they still own a note and loan. They still own the loan at this address and if you flip to the MERS printout of their

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website on the MIN number of the subject property, it states the servicer is Nationstar Mortgage and the investor is Fannie Mae. I'll then walk you to exhibit C, Your Honor. Exhibit C, I am submitting an affidavit that outlines several phone calls that I have made over the course of the past seven to eight months and this is an affidavit based on my firsthand personal knowledge regarding these three separate telephone communications. Essentially the first call was to SunTrust Mortgage Inc. Customer Service and took place on October 12 of2010. During the course of this call SunTrust Mortgage Inc. positively identified Fannie Mae to be the owner and holder of the note and that Fannie Mae obtained possession shortly after the closing date of January 2007. The second call was also to Nationstar-- I'm sorry. The second call was to Nationstar Mortgage and that took place on January 13th of201l. During the course of this call Nationstar Mortgage positively identified Fannie Mae to be the owner and holder of the note and that Fannie Mae obtained possession shortly after closing the - closing date of January 2007. The third and final call in this affidavit, Your Honor, was also to Nationstar Mortgage Customer Service and it took place on February 2nd of2011 and during the course of this call Nationstar Mortgage positively identified Fannie Mae to be the owner and holder of the note and again confirmed that Fannie Mae obtained possession shortly after the closing date of January 2007.

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I do have recordings of these phone calls and if necessary and the court will permit, I will bring in the recordings to submit into evidence. MR. COGBILL: Your Honor, I'll object to the admission of the affidavit testimony as to what these individual [indiscernible] [0:28:27.0] as irrelevant and hearsay. It's irrelevant because there's indication in this affidavit that these individuals had any reason to know through documentary evidence who the note holder is and it's hearsay because they're removed obviously from the [indiscernible] [0:28:45.1] and there's no opportunity to ascertain them. JUDGE: All right. MS. WILSON: And, Your Honor, this -- JUDGE: -- consideration. MS. WILSON: This affidavit is based on my personal firsthand knowledge and I'll be more than happy to submit the recordings. JUDGE: All right. MS. WILSON: Customer service is required when asked to identify who they have on their record which are the mortgage services records who the holder of the note is. Exhibit D, Your Honor, is a letter from Nationstar Mortgage dated December 15th of2010 and it's still required by the letter required by Title 12 of the United States Code Section 2605 . You can see right there the letter states the following, and I quote, "Welcome to Nationstar Mortgage. We look forward to

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servicing your loan on behalf of Fannie Mae. Your total debt at the time of transfer is $106,527.58. This debt is owed to Fannie Mae but is being serviced by Nationstar." I have labeled this as exhibit E and I introduce this into the court as well. Actually, I may be off of my exhibit and I apologize. JUDGE: That was D, I believe. MS. WILSON: That was D and then for exhibit E I have a true and correct copy of the Fannie Mae announcement 08-12 dated May 23rd of2008 presented to me on March 29th of 20 11 in the hall just outside of this courtroom by Andrew Cogbill himselfwho claims to -- who represents the petitioner in this matter. The court will please take note as that in the relevant part, the first sentence in the last paragraph on page 1 of this Fannie Mae announcement, states, I quote, "Fannie Mae is at all times the owner of the mortgage note whether the note is in Fannie Mae's portfolio or whether owned as trustee." Your Honor, SunTrust mortgage was not the real party in interest on March 4th of 20 10 when they executed the appointment of Substitute Trustee prepared the law firm of Hutchens, Senter and Britton. Hence, SunTrust Mortgage lacked any possessory interest in the note and thus lacks the contractual capacity to substitute the trustee pursuant to paragraph 24 of the said deed of trust. Further, Rule 17A of the North Carolina Rules of Civil Procedure require, and I quote, "every claim shall be prosecuted in the name of the real party in interest." The petitioner before this court is clearly not the real party in

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interest based on the preponderance of evidence presented and now before this court. Respondent Jennifer L. Wilson respectfully requests the court, set aside the order of the clerk and grant the motion to dismiss for lack of standing with prejudice. JUDGE: All right. Yes, sir.

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