“To have standing, as a plaintiff, in a mortgage foreclosure action, must a party show that it owned the NOTE and the MORTGAGE when the complaint was filed?”
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OHIO SUPREME COURT to Make Landmark Decision
OHIO SUPREME COURT
Justices to soon make landmark decision
Affecting ALL Ohio Homeowners in foreclosure
The Ohio Supreme Court recently agreed to review a request (from US BANK NA) to resolve what “appears” to be conflicting appellate court decisions in OHIO foreclosure case law. At the heart of this so called conflict is an issue that Plaintiff banks, pretend lenders, and phony Trustees have continuously slipped past our “asleep-at-the-wheel” judges. A similar and deep sleep was exhibited by our U.S. Government (SEC, OCC, OTS) and the rating agencies (Moody’s, Standard & Poor’s, Fitch), for years while the Banks went wild! Now, the Ohio Supreme Court is going to attempt a judicial “closing of the barn door”…years after the “animals”…all got away.
Check out the rest here…
Case file below…
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4closureFraud.org
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CERTIFY CONFLICT – U.S. Bank National Assoc. v. Antoine Duvall
CASE ANNOUNCEMENT – U.S. Bank National Assoc. v. Antoine Duvall
IN THE SUPREME COURT OF OHIO
DEUTSCHE BANK NATIONAL TRUST COMPANY
Appellee
V.
Kenneth S. Taylor, et al.
Appellants )
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) Case No 11-0437
MOTION FOR RECONSIDERATION
From Dismissal of appeal as not involving any substantial constitutional question filed June 08, 2011
On Appeal From the
COURT OF APPEALS NINTH JUDICIAL DISTRICT C.A.NO- 25281
MOTION FOR RECONSIDERATION
APPELLANT:
Kenneth S. Taylor {Pro Se} 8610 Hadden Road Twinsburg Ohio 44087 Kenneth S. Taylor {Pro Se} 1-330-425-1542 katickit@ yahoo.com Alycia Taylor- Driggins {Pro Se}
APPELLEE:
Robin Wilson of THOMPSON HINE LLP 3900 KEY CENTER 127 PUBLIC SQUARE CLEVELAND, OHIO 44114-1291 216-566-5800 KEVIN WILLIAMS MANLEY DEAS KOCHALSKI LLC P.O. BOX 165028 COLUMBUS, OHIO 43216 1-614- 222-4921 ATTORNEY FOR PLAINTIFFS Deutsche Bank National Trust Company.
Why this Court should reconsider its decision: Judges orders are wrong, unlawful egregious abuse of judicial discretion. When a court does not apply the correct law or if it rests its decision on a clearly erroneous finding of a material fact.” [U.S. v. Rahm, 993F.2d 1405, 1410 (9th Cir.’93)] “A court may also abuse its discretion when the record contains no evidence to support its decision.” [MGIC v. Moore, 952 F.2d 1120, 1122 (9thCir.’91)].The trial Court , the Court of Appeals and The Supreme Court of Ohio has not provided any case law or treaties or common law to support its findings opinions or orders and has rested on well known fraudulent, and clearly erroneous facts. The Judge has erred and violated substantial due process rights , and substantial procedural due process rights to access to the courts because his Sua Sponte dismissal of all plaintiffs counterclaims, are highly disfavored in law , the Appeals Courts have warned lower court District Judges over and over again and again from doing so , C A. has agreed the judge erred dismissing Appelants counterclaims, it is impossible to get to the merits , unless this appeals courts reverses or remands or vacates the illegal orders. The Dismissal Order Violated Multiple Procedural Due Process Rights The dismissal order violated every relevant procedural due process protection guaranteed to all citizens by the laws and Constitution of the United States for the record-setting violations stated in Appellant’s complaint .Violated Due Process Rights Barring Sua Sponte Dismissals The dismissal order violated the clear and settled law that requires a hearing, discovery, opportunity to defend, and a meaningful and honest opportunity to be heard. In Wolff v. McDonnell (1974) 418 U.S. 539, the Court stated: The Court has consistently held that some kind of hearing is required before a person is finally deprived of his property interests; In Anderson National Bank v. Luckett (1944) 321 U.S. 233, 246, the court held: “It is error to dismiss a claim on the merits without notice, a hearing, and an opportunity to respond.” The Ohio Supreme Court recently agreed to review a request (from US BANK NA) to resolve what “appears” to be conflicting appellate court decisions in OHIO foreclosure case law. At the heart of this so called conflict is an issue that Plaintiff banks, pretend lenders, and phony Trustees have continuously slipped past our “asleep-at-the-wheel” judges. A similar and deep sleep was exhibited by our U.S. Government (SEC, OCC, OTS) and the rating agencies (Moody’s, Standard & Poor’s, Fitch), for years while the Banks went wild! Now, the Ohio Supreme Court is going to attempt a judicial “closing of the barn door”…years after the “animals”…all got away.
Here in Ohio, the plaintiff’s Foreclosure Mill Attorneys and Law Firms try to fast track the process and get a quick default judgment by using or submitting phony, fraudulent, or robo-signed mortgage assignments (executed by MERS & LPS employees) The documents, 90% of the time, result in a plaintiff victory. The rare knowledgeable and awake foreclosure judge or an even rarer appearance by legal counsel on behalf of defendant homeowner (only in 8% of cases) requires Plaintiff – to have STANDING – in order to invoke the jurisdiction of the court. Inevitably the question and legal hurdle for the plaintiff, in almost every defended OHIO FRAUDclosure and foreclosure case becomes:
To have standing, as a plaintiff, in a mortgage foreclosure action, must a party show that it owned the NOTE and the MORTGAGE when the complaint was filed? The Appelants have agruged this point from the first motion filed in trial court until now, based on this alone a reversal should take place until the conflict is resolved. Why this court should reconsider its decision;
On April 6, 2011, the Ohio Supreme Court announced that it has determined a conflict of law among Ohio district courts of appeal regarding standing to file foreclosure. In its announcement, the Court ordered the parties in U.S. Bank v. Duvall from U.S. Bank Natl. Assn. v. Duvall (8th Dist. Dec. 30, 2010), 2010 WL 5550259, No. 9414, to brief the issue stated in the Eighth District’s Journal Entry filed January 31, 2011: “To have standing as a plaintiff in a mortgage foreclosure action, must a party show that it owned the note and the mortgage when the complaint was filed?”
In Duvall, the Eighth District affirmed its 2009 holding that pursuant to Civ. R. 17(A), a foreclosure complaint must be dismissed for lack of standing if the plaintiff cannot prove ownership of the note and mortgage on the date the complaint was filed. Wells Fargo v. Jordan (8th Dist. Mar. 12, 2009), 2009 WL 625560, No. 91675. The Supreme Court has certified that the Eighth District (Cuyahoga County)’s position is in conflict with the Fifth (Delaware County), Seventh (Jefferson County), Ninth (Lorain County) and Tenth (Franklin County) District Courts of Appeal, which generally speaking hold that in order to have standing a foreclosure plaintiff need not prove ownership of the note and mortgage at the time of filing. For example, in the Tenth District case Countrywide Home Loan Servicing, L.P. v. Thomas (10 Dist. Jun. 30, 2010), 2010 WL 2636887, No. 09AP819, the complaint indicated that a copy of the note was “not available” and the mortgage attached to the complaint was not in favor of the plaintiff. However, the Tenth District affirmed summary judgment in favor of the substituted plaintiff Ocwen Loan Servicing, LLS, although the complaint was filed by Countrywide Home Loans Servicing, L.P. which did not hold the note or mortgage at the time it filed foreclosure.
The Supreme Court’s determination of this issue could lead to lost standing for current foreclosure plaintiffs who received assignment of the note or mortgage after filing the complaint in foreclosure, or could affirm foreclosure filings by plaintiffs who did not prove or have ownership of the defendant’s note and/or mortgage at the time of filing Plaintiffs DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE FOR CERTIFICATEHOLDERS OF SOUNDVIEW HOME LOAN TRUST 2006-OPT2 ASSETS-BACKED CERTIFICATES, SERIES 2006- OPT2 et al., have never proved they had standing to file the lawsuit and has told courts the note is lost missing or stolen and assignment was submitted to court after lawsuit was filed , and produced after allege transfer of property , moreover the assignment was fake , fraudulent and a sham , as is every document before the case is, fake, forgery, robo, signed , nothing is original or authentic its all falsely made by crime lab LPS. And was not produced until the courts needed it to foreclose, the attorney just order any document the court needed from the crime lab LPS, Docx, and did not get the phony documents and affidavits unless the court required them and the documents don’t reflect the actual transactions that occurred, and most transactions in documents never occurred as there is no proof of chain of title not anybody, no one knows were the actual money has gone or who got paid or who lost money, the money trial is gone cold the court should try following the money , as documents are fraudulent how about asking to see deposit slips of banks or withdrawal slips with some indication of the amount, date and time they made the purchase from original lender Option One, they have failed to prove how they became owners, why they are current owners, why because they cant prove what did not occur all these transaction never happen legally they are under the table back room deals made with no paper trail to avoid taxes and other liability , is all fraud DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE FOR CERTIFICATEHOLDERS OF SOUNDVIEW HOME LOAN TRUST 2006-OPT2 ASSETS-BACKED CERTIFICATES, SERIES 2006- OPT2 et al., are pretend lenders try to get a free house that the government has paid for, and original lenders were also paid that why they have no proof of purchase of the home , they have no note no mortgage, no title , no chain of title, no legal assignment, no “power of attorney” no witness , not real party in-interest, every one is trying to get a free house, if they had any proof of ownership they would simply bring it to court , however the fake documents can never be tested or never be admissible at any trial or tribunal in the United States that why Tom Parker refuses to hold a hearing of trial Plaintiffs would lose , that’s why there is no hearing because there is no proof , no records nothing would stand the musters of the constitution judge Tom Parker has a void null summary judgment award for plaintiffs that must be reversed judgment can never be enforced, no titled company would risk covering the sale of property, no title search can be done by law it would reveal the true owners, phony credit bid at sheriffs sale is illegal, Akron Legal News is engaging in false advertising, Attorney who signs authorizing sale of home will be sued for millions , the next buyer will be sued, and the next caused of action is wrongful foreclosure, attorneys are now being held liable for filing of fake phony documents ,we are waiting to see Kevin Williams in person by subpoena , and we will subpoena Robin Wilson Taylor’s will seek millions in damages from all parties as some plaintiffs have agreed to wrong doing and will repay the Taylor’s , THIS is not a bank THEY HAVE NO CLAIM As owners to the title mortgage or note but only Trustee for this bundled group of investors, which is now defunct and dissolve under federal IRS laws, IN WHICH TRUST EXPIRED AFTER 90 DAYS. Which has muddied the waters and compounded the real-party-in-interest, which name in the caption is a clear indication of at least 3 investors have portion of a product, that was originally only a legal two party contractual agreement between plaintiff (Kenneth S. Taylor and Alycia Driggins Taylor) and original lender ( Option One Mortgage Corporation ) that is both defunct and not named in caption, and is also notice to this court that multiple parties exist in this group, and its foreclosure Counsel of Manley Deas Kochalski and Kevin L. Williams , Thompson Hine and Robin Wilson violated the following rules regulations statues, an treaties of OHIO and U.S.FEDERAL LAW TITLE 18, 18 U.S.C. § 1343 CHAPTER 6 WIRE FRAUD, MAIL FRAUD; Regulation Z Sec. 226.1 Authority, purpose, coverage, organization, enforcement and liability. The title to registered land is conclusively ascertainable by the certificate of registration that shows ownership and encumbrances, issued and recorded by the county recorder. See R.C. 5309.06. A transferee of registered land cannot be charged with notice, actual or constructive, of any unregistered claim or interest. See R.C. 5309.34. Furthermore, any unregistered claim or interest cannot prevail against a validly registered title. See id. As we noted in Kincaid v. Yount (1983), 9 Ohio App.3d 145, 147, 9 OBR 211, 213, 459 N.E.2d 235, 238, citing Curry v. Lybarger (1937), 133 Ohio St. 55, 58-59, 10 O.O. 61, 63-64, 11 N.E.2d 873, 875:{¶ 8} “The purpose of the [registered-land] system is to create an absolute presumption that the register of titles speaks the last word about the title to land, eliminating all ‘secret liens and hidden equities,’ and making the language in the register of titles absolute proof of indefeasible title excepting only those encumbrances and claims noted therein.”“Standard of Review”; “clearly erroneous, arbitrary and capricious,” “De Novo” reviews necessary.
Why this court should reconsider: There is no point of higher importance than the evidence be heard and considered — and that it be tested for admissibility as evidence. “The Court has consistently held that some kind of hearing is required before a person is finally deprived of his property interests; In Anderson National Bank v. Luckett (1944) 321 U.S. 233, 246, the court held: “It is error to dismiss a claim on the merits without notice, a hearing, and an opportunity to respond.” “An appeal [or complaint ] is not frivolous if any of the legal points [are] arguable on their merits.” Anders v. California (1967) 386 U.S. 738; The requirement for “no genuine issue of material fact” standard provides that the court cannot try the case on a summary judgment motion. National Assn. of Gov’t Employees v. Campbell, 593 F.2d 1023, 1027-29 (D.C. Cir. 1978). also 6 Moore’s Federal Practice ¶ 56.15[1.–0], [3]. A judgment is void if the rendering court acted in a manner inconsistent with due process of law. Wright & Miller, Federal Practice and Procedure § 2862. “A judgment rendered in violation of due process is void in the rendering State and is not entitled to full faith and credit elsewhere.” World-Wide Volkswagen Corp. V. Woodson, 444 U.S. 286 (1980). “[T]he constitution, by prohibiting an act, renders it void, if done; otherwise, the prohibition were nugatory. Thus, the warrant is a nullity.” Anderson v. Dunn, 19 U.S. 204, 217 (1821). “’No judgment of a court is due process of law, if rendered without jurisdiction in the court, or without notice to the party.” Old Wayne Mut. Life Ass’n v. McDonough, 204 U.S. 8, 15 (1907). Generally, a judgment is void under Rule 60 (b) (4) if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if acted in a manner inconsistent with due process of law. E.g., s Burke v. Smith, 252 F.3d 1260 (11th Cir. 2001); U.S. v. Boch Oldsmobile, Inc., 909 F.2d 657, 662 (1st Cir. 1990);Beller & Keller v. Tyler, 120 F.3d 21, 23 (2nd Cir. 1997); Union Switch & Signal v. Local 610, 900 F.2d 608, 612 n.1 (3rd Cir. 1990); Eberhardt v. Integrated Design & Const., Inc. 167 F.3d 861, 867 (4th Cir. 1999); New York Life Ins. Co. v. Brown 84 F.3d 137, 143 (5th Cir. 1996) The U.S. Supreme Court,”SCOTUS”, On the Importance of Due Process Courts as well as citizens are not free ‘to ignore all the procedures of the law….’. The ‘constitutional freedom’ of which the Court speaks can be won only if judges honor the Constitution.” Walker v. City Of Birmingham, 388 U.S. 307, 338 (1967)(Mr. Justice Douglas, dissenting). “Due process is perhaps the most majestic concept in our whole, constitutional system.” Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123, 174 (1951) (Justice Frankfurter, concurring). It is ingrained in our national traditions, and is designed to maintain them. In a variety of situations, the Court has enforced this requirement by checking attempts of executives, legislatures, and lower courts to disregard the deep-rooted demands of fair play enshrined in the Constitution.” id. 161. “Fairness of procedure is “due process in the primary sense.” Brinkerhoff-Faris Co. v. Hill, 281 U. S. 673, 281 U. S. 681. In a long line of cases, the United States Supreme Court has held that impingements of constitutional rights are, without variation, subject to the strictures of “due process” or notice and opportunity to be heard prior to their enactments. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950); Anti-Fascist Committee v. McGrath, 341 U.S. 123 (1951); Goldberg v. Kelly, 397 U.S. 254 (1970), Fuentes v. Shevin, 407 U.S. 67 (1972); Owen v. City Of Independence, 445 U.S. 622 (1980); Carey v.Piphus, 435 U.S. 247, 259 (1978); Mathews v. Eldridge, 424 U.S. 319, 333 (1976). “The principle stated in this terse language lies at the foundation of all well-ordered systems of jurisprudence. Wherever one is assailed in his person or his property, there he may defend, for the liability and the right are inseparable. This is a principle of natural justice, recognized as such by the common intelligence and conscience of all nations. A sentence of a court pronounced against a party without hearing him, or giving him an opportunity to be heard, is not a judicial determination of his rights, and is not entitled to respect in any other tribunal.” Windsor v. McVeigh, 93 U.S. 274;23 L.Ed. 914 (1876). This INSTANT case artfully describes the process by which evidence is admitted. It also reveals the way the pretenders DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE FOR CERTIFICATEHOLDERS OF SOUNDVIEW HOME LOAN TRUST 2006-OPT2 ASSETS-BACKED CERTIFICATES, SERIES 2006- OPT2 et al. are avoiding the rules of evidence and getting away with it until we take closer look..
The failure of a foreclosing lender to present any evidence of a written notice of acceleration having been sent to a homeowner was sufficient to sink another foreclosure judgment, according to a recent ruling by an Ohio appeals court.(1)
A second aspect of this ruling that may be of interest to those avid fans of the Ohio Rules of Civil Procedure is that the attorney for the foreclosing lender was successful in improperly introducing evidence in obtaining its foreclosure judgment. In allowing the foreclosing lender’s attorney to get away with it, the appeals court apparently had its hands tied by existing case law, noting that the homeowner had not properly objected to the improper introduction of the materials in the lower court proceeding. Because the appeals court booted the foreclosure judgment on other grounds, the homeowner will now get a renewed opportunity to object to the improper evidence.(2)
Another aspect of the court’s ruling that may be of interest is that an “official” for the lender who signed a mortgage assignment and an affidavit filed in the case may have been a multiple corporate hat-wearing robosigner. The homeowner had correctly observed that, within about a month, the “official” signed an assignment of the mortgage at issue as a vice president of MERS, and then he signed the affidavit in question as a vice president of CitiMortgage. Because their was no evidence on the record before the appellate court actually contradicting the official’s Citimortgage affiliation at the time of the signing of the affidavit, it had no choice but to accept the affidavit.(3)
For the ruling, see CitiMortgage, Inc. v. Elia, 2011-Ohio-2499 (Ohio App. 9th Dist. Summit County, May 25, 2011).
Civ.R. 56(C) limits the types of evidentiary materials that a party may present when seeking or defending against summary judgment. Civ.R. 56(C) (limiting summary judgment evidence to “pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact”). “The proper procedure for introducing evidentiary matter not specifically authorized by Civ.R. 56(C) is to incorporate it by reference in a properly framed affidavit pursuant to Civ.R. 56(E).” Skidmore & Assoc. Co., L.P.A. v. Southerland (1993), 89 Ohio App.3d 177, 179. “[P]apers referred to in an affidavit ‘shall be attached to or served with the affidavit.’” GMAC Mtge., L.L.C. v. Jacobs, 9th Dist. No. 24984, 2011-Ohio-1780, at ¶17, quoting Civ.R. 56(E).
Even so, it is the opposing party’s duty to object when a summary judgment motion relies upon improperly introduced materials. Id. “[I]f the opposing party fails to object to improperly introduced evidentiary materials, the trial court may, in its sound discretion, consider those materials in ruling on the summary judgment motion.” Wolford v. Sanchez, 9th Dist. No. 05CA008674, 2005-Ohio-6992, at ¶20, quoting Christe v. GMS Mgt. Co., Inc. (1997), 124 Ohio App.3d 84, 90……………The Taylor’s objected to summary judgment motion during trial court in at least a 12 times in motions filed in the record on the basis that it referred to improper Civ.R. 56(C) materials, which were not incorporated by reference in affidavit no written records attached, no proof of personal knowledge , Further, the Taylor’s did object to Cynthia Steven son,s affidavit on the basis that it lacked any attachments. See Civ.R. 56(E). This Court has the power to Grant Relief from these proceedings, Grant Relief under both federal and state rules and laws 28 U.S.C. 1655 .These trusts, in the rush to securitize mortgages and sell them to investors, often ignored the critical step of obtaining mortgage assignments from the original lenders to the securities companies to the trusts. Now, years later, when the companies “servicing” the trusts need to foreclose, they retain Lender Processing Services to draft the missing documents. The mortgage servicers, including American Home Mortgage Services, and American Servicing Company, never disclose that the trusts are missing essential documents – they just rely on Lender Processing Services to “fix” the problems. Although the Alpharetta office has been closed, Lender Processing Services continues to mass produce “replacement” assignments from its Jacksonville, Florida, and Dakota County, Minnesota offices, Law firms retained by Lender Processing Services also often use their own employees, posing as officer of Mortgage Electronic Registration Systems, to produce the needed Assignments. Since the vast majority of homeowners do not retain counsel in foreclosure proceedings, this flawed system has worked very effectively for the last few years, with courts all over the country rarely questioning why so many mortgage companies had officers in Alpharetta, Georgia, or why Trusts that closed in 2005 and 2006 were just obtaining Mortgage Assignments in 2009 and 2010. Most courts never even questioned why companies long-dissolved, such as Option One, could still be executing documents years after the dissolution. While the closing of the Alpharetta office may be a sign that these fraudulent activities will finally be exposed and addressed, for the time being, it is just a matter of an unsatisfactory end of one small facet of an enormous and far-reaching problem. This court is now and forever put on notice the “ASSIGNMENT” presented to this Honorable Court, and Summit County Common Pleas Court in Akron is fraudulent ,See Exhibit A-3 , and was proffered by Dakota County, Minnesota offices, absolute proof is found on “ASSIGNMENT” as it is endorsed by a notary named JAMES C.MORRIS in the state of Minnesota , Dakota County, Minnesota offices, also this office produced a false Foreclosure Compliance Affidavit in the case 5:07 CV 01840 SL Document 4 filed 6-22-2007 See Exhibit B, and a fraudulent Affidavit Regarding Account And Competency And Military Status signed by Assistant Secretary SCOTT WALTER of American Home Mortgage Service Inc.on August 13, 2008 who was present in Minnesota at arms length as it is endorsed by a notary named JAMES C.MORRIS in the state of Minnesota , Dakota County, Minnesota offices, also when American Home Mortgage Service Inc was locate in Irving Texas. The “ASSIGNMENT” further states that Assistant Secretary Jeanelle Gray From Option One was present in Minnesota on June25, 2007 for a arms length deal as a secretary to sign away 84,000.00 note although Option –One Mortgage Corporation was located in Irvine Ca.and purportedly out of business and defunct at such time. Also Absolute Proof. The judge Tom Parker while case was in state court conspired with the plaintiff’s attorney Robin Wilson of Thompson Hine LLP in a joint effort to destroy defendants counterclaim. The judge directed her to draft a false and misleading statement in a previous Final decree of foreclosure. Robin Wilson did so knowingly and willingly by inserting false claims of judge that he had considered defendants counterclaim is his motion granting plaintiff summary judgment which is void because of fraud of the courts and judge a lying officer of the court.. Robin Wilson drafted and sent a letter dated September 28,2009 to Judge confirming the act of conspiracy and her participation as such. The letter states per verbatim “ Enclosed, in response to your telephone request, is a revised Judgment Entry and Decree in Foreclosure so as to include Defendants’ Counterclaim and Plaintiffs’ Reply to Counterclaim”. Signed by Robin Wilson. See Exhibit (A). These representations were false and defendants knew the falsity of these statements at the time they were made. The judge never once mentioned defendants counterclaim, prior to this directive, nor is there any evidence the judge has reviewed the counterclaim. This was a wicked scheme perpetrated against defendants specifically, strategically and systematically ,the judge lied in effort to deprive defendants of their rights to homeownership. Judge and Robin Wilson have given false and material declarations to the trial court violating federal laws under 18 U.S.C.1623 which is a both a criminal and civil act of conspiracy against defendants. Moreover COURT OF APPEALS NINTH JUDICIAL DISTRICT C. A. NO. 25281 agreed with the plaintiffs that judge erred essentially confirmed he lied and reversed and remanded case back to trial court . Judge Tom Parker is an Officer of the court THIS VOIDS STATE COURT FINDING OF SUMMARY JUDGMENT, ITS NULL AND VOID FOREVER. AND PLAINTIFFS can never be state court losers..Whenever any officer of the court commits fraud during a proceeding in the court, he/she is engaged in “fraud upon the court”. In Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir. 1985), the court stated “Fraud upon the court is fraud which is directed to the judicial machinery itself and is not fraud between the parties or fraudulent documents, false statements or perjury. … It is where the court or a member is corrupted or influenced or influence is attempted or where the judge has not performed his judicial function — thus where the impartial functions of the court have been directly corrupted.”
“Fraud upon the court” has been defined by the 7th Circuit Court of Appeals to “embrace that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.” Kenner v. C.I.R., 387 F.3d 689 (1968); 7 Moore’s Federal Practice, 2d ed., p. 512, ¶ 60.23. The 7th Circuit further stated “a decision produced by fraud upon the court is not in essence a decision at all, and never becomes final. The Justice Department sued Deutsche Bank AG, one of the world’s 10 biggest banks by assets, for at least $1 billion for defrauding taxpayers by “repeatedly” lying to a federal agency when securing taxpayer-backed insurance for thousands of shoddy mortgages. The case is U.S. v. Deutsche Bank AG (DBK), 11-cv-2976, U.S. District Court, Southern District of New York (Manhattan). For this reason alone the court should reverse summary judgment. Also See In re: Ron Wilson, LaRhonda Wilson, U.S. Bankruptcy Court for the Eastern District of Louisiana, case no. 07-11862. For the debtors: Elisabeth Harrington of Harrington & Myers. For the U.S. Trustee: Carolyn s. Cole and Mary Langston A LANDMARK CASE DECIDED APRIL 7 2011 IN WHICH LENDERS PROCESS SEVERCINGS COMPANY WAS SANCTION FOR LYING TO COURTS AND PROVIDING “sham affidavits. See exhibits attached the same company produced these fake document, the assignment, the fake “sham affidavits used in pleadings before this court. In which Judge Tom Parker refused to test the evidence denying several show cause motions to do so. along with public support contained in a segment aired on national T.V. by CBS 60 Minutes which verifies Kenneth S. Taylor allegations made in Court records during initial pleading responsive pleading about defective assignment. THE MOST IMPORTANT MISLEADING FRAUDULENT DOCUMENT IN THIS CASE IS THE DEFECTIVE ASSIGNMENT WHICH FOR SOME STRANGE REASON WAS ENDORSED IN Dakota County, Minnesota WHERE, Lender Processing Services continues to mass produce “replacement” assignments specifically, strategically and systematically. The fraud is widespread, massive, the Judges have been lied to trick into favorable judgments by banks with phony, fake, robo signed documents. On April 12, 2010, Lender Processing Services closed the offices of its subsidiary, Docx, LLC, in Alpharetta, Georgia. That office was responsible for pumping out over a million mortgage assignments in the last two years so that banks could foreclose on residential real estate. The law firms handling the foreclosures were retained and largely controlled by Lender Processing Services, in this case Manley, Deas, Kochalski LLC. Of Columbus, Ohio law firm, LPS and LPS Default Solutions is illegally splitting attorney’s fees as part of their contractual arrangement. Who presented the “sham affidavit and fake , fraudulent assignment to this court as only evidence of any alleged ownership that was deemed defective by this federal District Court itself, according to a Sanctions Order entered by U.S. Bankruptcy Judge Diane Weiss Sigmund (In re Niles C. Taylor, EDPA, Case 07-15385-sr, Doc. 193). Lender Processing Services, the largest “default management services company” in the country, has already made at least partial admissions that there were faults in the documents produced by the Docx office – although courts and homeowners were never notified. According to Lender Processing Services, over 50 major banks use their default management services. The banks that especially need the services provided by Lender Processing Services include Deutsche Bank, acting as trustees for mortgage-backed securitized trusts. (there now is absolute concrete proof and evidence that the assignment before this court is false , phony , fake, and deceptive, misleading, defective, and produced by this crime lab, rendering state court summary judgment in favor of Deutsche Bank National Trust Company forever Null, Void, and without Force.) For this reason alone , this case should be reversed or remanded back to trial Court, at the least , or in the alternative this court has the power to grant defendants declaratory relief. This judge Tom Parker once awarded plaintiffs a summary judgment in their favor with no affidavit it had no name on face, it was unsigned it was un-notarized it was a blank document the judge in this case is so corrupt he awarded plaintiffs the Taylor’s home with no evidence and no witness no hearing, the judge admitted he never look at the affidavit, the same parties have submitted a perjured affidavit by affiant Cynthia Stevenson as it was impossible for her to meet the basic requirements under rules of evidence as she was not employed by Option- One the original lender and was not around at the time as her knowledge came only by review of the file was at least (2) years old at the time she reviewed it.
The defendants the (Taylor’s) have also repeatedly emphasized that a party’s assertion of material facts must be supported by record references to evidence that is of a quality that would be admissible at trial…This qualitative requirement is particularly important in connection with mortgage foreclosures where the affidavits submitted in support of summary judgment are commonly signed by individuals who claim to be custodians of the lender’s business records. Thus, the information supplied by the affidavits is largely derivative because it is drawn from a business’s records, and not from the affiant’s Cynthia Steveson’s personal observation of events.
The foundation that the custodian or qualified witness must establish is four-fold:
(1) the record was made at or near the time of the events reflected in the record by, or from information transmitted by, a person with personal knowledge of the events recorded therein;
(2) the record was kept in the course of a regularly conducted business;
(3) it was the regular practice of the business to make records of the type involved; and
(4) no lack of trustworthiness is indicated from the source of information from which the record was made or the method or circumstances under which the record was prepared.“
Because courts have determine that the affidavits submitted by DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE FOR CERTIFICATEHOLDERS OFSOUNDVIEW HOME LOAN TRUST 2006-OPT2 ASSETS-BACKED CERTIFICATES, SERIES 2006- OPT2 et al are inherently untrustworthy and, therefore, do not establish the foundation for admission of the attached documents as business records pursuant to rules of evidence we ask that reversal or vacation of the judgment is absoulutely necessary.
We now ask this Honorable Court to complete this process with redress for those with proof of harm. In re Foreclosure Cases, 2007 WL 3232430 (N.D. Ohio October 31, 2007), Judge Boyko found the foreclosure process was “a quasi-monopolistic system” in which financial institutions, “unchallenged by under financed opponents,” disregard the requirements of the judicial process and instead “rush to foreclose, obtain a default judgment and then sit on the deed, avoiding responsibility for maintaining the property while reaping the benefits of interest running on the judgment.
To foreclose on a mortgage, a party must have title to the mortgage. The instant assignment is a nullity. The Appellate Division, Second Department (Kluge v Fuquay, 145 AD2d 537, 538 [2d Dept 1988]), held that a “foreclosure of a mortgage may not be brought by one who has no title to it and absent transfer of the debt, the assignment of the mortgage is a nullity.” The Appellate Division, First Department, citing Kluge v Fuquay, (Katz v East-Ville Realty Co., 249 AD2d 243 [1st Dept 1998]), instructed that “[p] laintiff’s attempt to foreclose upon a mortgage in which he had no legal or equitable interest was without foundation in law or fact.” Moreover the title insurance on this present home loan requires by Policy that title is vested and must be vested in individuals only Kenneth S. Taylor and Alycia A.Driggins- Taylor, and not a corporation or any other entity created. Thus making it impossible for DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE FOR CERTIFICATEHOLDERS OF SOUNDVIEW HOME LOAN TRUST2006-OPT2, ASSET-BACKED CERTIFICATES SERIES 2006- OPT2 (“Deutsche Bank” or “DBNTC”) to ever become vested in title as owners with foreclosure rights, and any attempt to do so is insurance fraud under policy purchased by original lender OPTION –ONE MORTGAGE CORPORATION.
We stated that at a minimum, in support of any motion for summary judgment in a residential mortgage foreclosure action, the mortgage holder must include the following facts, supported by evidence of a quality that could be admissible at trial, in the statement of material facts:
• the existence of the mortgage, including the book and page number of the mortgage, and an adequate description of the mortgaged premises, including the street address, if any;
• properly presented proof of ownership of the mortgage note and the mortgage, including all assignments and endorsements of the note and the mortgage;
• a breach of condition in the mortgage; • the amount due on the mortgage note, including any reasonable attorney fees and court
costs;
• the order of priority and any amounts that may be due to other parties in interest, including any public utility easements;
• evidence of properly served notice of default and mortgagor’s right to cure in compliance with statutory requirements;
• proof of completed mediation (or waiver or default of mediation), when required, pursuant to the statewide foreclosure mediation program rules; and
• if the homeowner has not appeared in the proceeding, a statement, with a supporting affidavit, of whether or not the defendant is in military service in accordance with the Servicemembers Civil Relief Act.”
First, if someone sues for foreclosure who doesn’t actually own the loan the person who does own it still has an enforceable claim against you. That means you could get foreclosed upon and then sued by the actual owner for the money, effectively being forced to pay twice – once by ejectment from the property and then again by being financially destroyed a second time through a lawsuit for money damages. The UCC and general contract law, along with the PSAs, are structured in a form and fashion to prevent this. Ignoring these very real legal requirements is not a “formality”, it is part and parcel of the rule of law.
Second, the “Holder in Due Course” status is extremely important and germane. One of the sordid facts of the “aughts” (the 2000s) is that many people were sold money under false pretense of some sort. There were myriad frauds, including floating-rate loans sold as fixed, “riders” in middle of paperwork that was slipped in un-noticed and in violation of the good-faith estimates and claims given to borrowers before closing along with all sorts of chicanery and outright fraud. Lending officers held themselves out not only as sellers of money but as qualifiers of a person’s capacity to pay, an expert opinion proffered based upon ratios and program claims given to homeowners.
There is a fair issue triable at law as to whether active frauds occurred in these areas. Some of the cases are black-letter, where borrowers had their own submitted figures and papers altered by lending officers through multiple iterations through computer-based underwriting without their knowledge. Others are more nebulous and may have (or may not have) involved active deception by the borrower himself. These are issues to be tried in a court of law and examined by a trier of fact.
If holder in due course status does not apply to the current “owner” of the debt the remedies available to the buyer extend to the current holder of the paper. It is only through establishment of that holder in due course status that the paper’s owner escapes successor liability for these actions. If in point of fact the trust never got the paper as required by the PSA then the trust has no “holder in due course” status at best as a late transfer now takes place with knowledge of the fraud claim existing against its origination, which negates that status.
In many of these cases it appears that the PSA was in fact not complied with and in many of those situations the conundrum becomes even worse, because the originator, securitizer or depositor, whoever they may be, is out of business and has no successor organization. In some (but not all) of these cases the corporate estate is in bankruptcy and the asset in question is properly an asset of the bankrupt estate. The Trustee of the bankruptcy is the only one legally empowered to transfer an asset out of a bankrupt estate prior to its final disposition at law and your assertion of a contractual right to that asset is immaterial as you are subject to the priority of claims in a bankruptcy action.
I have seen many examples of exactly this sort of apparent fraud, where an “assignment” takes place on a day during which the organization allegedly performing the assignment literally does not exist as a matter of fact or law. Even worse there are assignments that appear to have been initiated by the grantee, which is exactly backwards and is effectively identical to me assigning myself title to your house – without your signature anywhere to be found!
In still other cases where transfers did not happen the REMIC sections of IRS code prohibit the transfer without destroying the trust’s tax preference. In some cases that late transfer might actually have negative value when one considers the tax implications on a lookback basis. In all cases where a legal bar exists to that late transfer the choice has to be taken – either perform it late, take the tax hit and have the certificate holders sue the hell out of the Trustee for not performing their duties faithfully (and exposing them to a huge retroactive tax hit) or take the hit of not having the security and losing the principle they allegedly “loaned” but in fact paid for nothing. It is manifestly unjust to simply pretend these violations of the law never happened.
Finally, some of these circumstances have irrevocably severed the security interest. Such an event is a disaster for the noteholder, but again, that’s not the buyer’s problem. He is not “unjustly enriched” by such an event, as he still owes the money – he just can’t be foreclosed upon. The holder of the note in these cases may still sue and recover to their ability (which may, admittedly, be quite limited.)
What’s happening here is a mass delusion. We have a bunch of institutions that through their own hand violated not only black-letter law but the contractual provisions they entered into with investors around the world. When this failure was first discovered they tried to cover it up with bogus affidavits that nobody had even read, say much less verified – if they had verified them they would have known that the paperwork wasn’t done and the alleged transfers were not made. When they got caught doing that the next response was to claim that the homeowner was a deadbeat anyway, and thus “deserved it”, which is identical to the rapist claiming that his victim “deserved” to be raped because she had a short skirt on and no panties, and he could “clearly see” the target of his assault.
We properly dismiss that sort of defense these days when it comes to rape, although that same delusional process used to work once in a while in those cases.
If I “lend” you money but fail to protect my own interests by my own hand, uncolored by anything you do, that I have reduced or eliminated my rights of recourse is not your problem. It’s mine. It is not unjust for a debtor to demand that his creditor prove that he followed the law and that he really is the creditor, especially when there is very reasonable doubt as to whether or not he is.
Finally, it is never excusable to say “well that apparent felony (perjury) is just fine because the deadbeat over there didn’t pay his mortgage.”
Nope.
Bankers for the last thousand years have existed entirely on the back of the storage and keeping of physical documents. Your passbook savings account from your childhood is just one example. So were the common ledgers going all the way back to the Depression and beyond.
These “record keeping” lapses are not an occasional error or problem; they’re systemic and intentional. Now, having been caught, the excuses have become manifest and outrageous.
All the documents presented to the courts by pretend lenders are invalid not originals and do not describe the transactions that actually occurred, as to parties or terms, everything is fabricated and fraud, the plaintiffs are not state court losers, the trustee, and their attorneys have signed fabricated documents, the trial court judge was lied to and tricked into believing these parties were telling the truth, and just has erred and failed to apply the law. and simply did not test any evidence, there is no note, no one has proved the Taylor’s are in default, Now with mainstream media involvement judges have to apply the law instead of ignoring it as Judge Tom Parker ,has did in this case, destroying in the process, the Taylors rights to life, liberty, property and the pursuit of happiness , guaranteed by the Constitution of the United States, Amendment XIV[1868] Section 1, violating Due Process rights, and substantial procedural due process which guaranteed some type of hearing before a Sua Sponte dismissal of all claims , before all of the defendants answered, some of which had not been severed or summoned, and time had not tolled to do so , and before their real property is taken , Judge Tom Parker just has gotten it all wrong, moreover his actions and inactions were intentional, as even a lay person with a myoptic truncated sense of the law understands that the Taylor’s claims are valid with merit, and they should be compensated , and deserve to be heard. Especially when some defendants in this case has already agreed by consent and decree to repay the Plaintiffs who qualify for such repayment under the US Comptrollers office global settlement.
Dated this June 13, 2011
PRO SE 8610 HADDEN TWINSBURG OHIO 44087
KENNETH S. TAYLOR ETAL [PRO SE]
I certify a copy of brief was sent to opposing counsel by US mail on June 13, 2011
Here is an article by Karl Denninger entitled “MERS Loses”. Link:
http://market-ticker.org/akcs-www?post=185348&findnew#new
I made a comment to that article at Karl’s blog so do not have to repeat it here.
The point was basically that the big guys should have no “standing” to deny the little guys’ “standing”, and the language, arguments of prior cases for decision of this case should be spread around fast on the internet.
I posted here just in case the other case was missed by anybody interested in THIS case!
Could this question make it all the way to the US Supreme Court perhaps? I fear what will happen here is that the Ohio Supreme Court will provide ‘legal standing’ to MERS or other in-name-only holding companies who act as nominee trustee transaction facilitators designed for foreclosure as an exercise of convenience. I hope I am wrong and the Court will refuse to legitimize those paper constructs and force the banking industry to regurgitate their chain of title but this conflict might be just “too big to risk on justice.” Could this end up as a tipping point that settles the conflict for big banking? Need to look at the players closely.
Somehow it does not really bode well.
That is the problem here in America, there is no political will to fix the rampant fraud because of rampant corruption. They appear to be asleep at the wheel so they can use the excuse that they cannot see the one metric ton, criminal elephant that is standing in the courtroom. They are now hiding in plain sight. The emperor has no clothes.It was a TREASONIST Inside job, and now it is a TREASONIST Inside cover-up.
AMERICA IS CALLING IN THE FRAUD, WASHINGTON!!!! WE THE PEOPLE ARE CALLING FOR A NATIONWIDE LOAN RECISSION ON ALL OFTHE FOREIGN MULTINATIONAL SHEISTERS FRAUDULENT LOANS. THE FRAUD THEY — USED TO DECEIVE THE AMERICAN PEOPLE KILLED THEIR CONTRACT WITH AMERICA. WE THE PEOPLE DO NOT WANT ANY MORE CREDIT FROM THE IMF/FEDERAL RESERVE/NWO. THEY ARE NO MORE THAN MOBSTERS AND GANGSTERS WHO WORE AN AMERICAN WHITE COLLAR DISGUISE. THESE FOREIGN MULTINATIONAL CRIMINALS MADE 100 TRILLION DOLLARS OFF THEIR MORTGAGE FRAUD SCAM BY USING LIARS LOANS TO SET AMERICA UP TO FAIL, DEFRAUD US AND THEN ROB AND BANKRUPT AMERICA.. THEY CAN EAT THE FAKE DEBT THAT THEY DECEPTIVELY AND PERNICIOUSLY CREATED FOR ALL OF THE REST OF US. WE THE PEOPLE REF– USE TO PAY FOR THESE FINANCIAL CRIMES COMMITTED AGAINST US BY THE FOREIGN MULTINATIONAL FINANACIAL TERRORISTS NOR WILL WE PAY FOR ALL OF THE UNSECURED DEBT(which is reported to be 97% of all of the debt in America) THE IMF/UN/NWO DECEPTIVELY AND PERNICIOUSLY CREATED TRILLIONS IN DEBT FOR AMERICA. THEY GOT FILTHY RICH OFF THEIR PONZI SCHEME AND WORE AN AMERICAN DIGUISE TO COMMIT THE BIGGEST HEIST OF THE AMERICAN PEOPLES WEALTH IN HISTORY. DEATH TO THE FOREIGN TYRANNY!!!!
THE FEDERAL RESERVE/WALL STREET IS A GIANT PONZI SCHEME, IT IS A DEBT CREATING MACHINE FOR THE PEOPLE AND A WEALTH CREATING MACHINE FOR THE RICH. WE THE PEOPLE DEMAND THAT THE U.S. GOVERNMENT THROW BEN BERNANKE IN PRISON FOR AIDING AND ABETTING THE FOREIGN MULTINATIONAL TERRORISTS THAT BEN BERNANKE WORKS FOR. HE IS HELPING THEM TO DESTROY AMERICA BY MAKING US PAY FOR THE ONGOING FOREIGN MULTINATIONAL CRIMINAL PONZI SCHEME HEIST. DEATH TO THE FEDERAL RESERVE TYRANNY!!
But I thought Judge Boyko did this so very long ago?
Boyko, Rose, Holschuh, O’Malley…. they are Federal Court Judges and their decisions, unified and coordinated as they were, are not binding on the Ohio state level courts.
Maybe there will be justice. But I doubt it. To many foxes in to many places.