Beruflich Dokumente
Kultur Dokumente
3
4
5
6
7
In re
JOHN DOE;
Debtor,
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
)
)
)Case No.
)
)Adv. No
)
)OPPOSITION TO MOTION FOR
RELIEF FROM STAY AND MOTION
TO STRIKE AFFIDAVIT FILED BY
COUNSEL FOR FANNIE MAE
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
25
26
JOHN DOE, The debtor files this Objection to Motion for Relief from
27
Stay filed by Fannie Mae and Motion to Strike Affidavit filed by counsel for
28
COMES NOW the Debtor, objects to the Motion for Relief From Stay
Fannie Mae) and moves the Court to strike the Affidavit filed by counsel
for the Fannie Mae which asserts that Debtor accepted a settlement offer
7
8
9
10
11
12
13
Fannie Mae and, accordingly, CENLAR is the real party in interest and
14
15
JPMorgan, only CENLAR is the proper party to assign the Mortgage and
16
associated note. As nominee MERS has no authority to assign the Note and
17
18
2.
19
20
market. If this is the case then JPMorgan and Fannie Mae is barred from
21
22
23
24
25
26
JPMorgan did not hold the power of sale of the Mortgage and no
evidence has been presented that it holds such power of sale because MERS
is not qualified to do business in Alabama and never paid a mortgage tax
on the assignment of the Mortgage to MERS or subsequently to JPMorgan or
to Fannie Mae.
27
28
2
John Doe
Opposition to Motion for Relief from Stay
4.
5.
6.
8
9
10
11
12
13
7.
they are exempt from all state taxes,are now under the oversight of the
U.S. Treasury since 2008 (FHAF answers to the U.S. Treasury).
8.
14
of 1992 governs Fannie Mae. Congress amended the Safety and Soundness
15
Act by enacting the Housing and Economic Recovery Act of 2008 (HERA),
16
17
18
19
10.
20
21
22
23
24
25
26
27
28
Fannie Mae, and their servicers who they assign temporary ownership
to must foreclose judicially. This means that Fannie Mae and their servicers
must sue the homeowners to take possession like they do in Florida, New
Jersey, New York and Pennsylvania. Homeowners have a right to due
3
John Doe
Opposition to Motion for Relief from Stay
process under the laws and Fannie Mae is subject to due process
requirements.
12.
Amendment's Due Process Clause and have violated Debtors civil rights.
13.
8
9
10
11
12
13
14.
November 2, 2014, which is after the date the bankruptcy was filed but
Cinlar had required debtor to make payments to CENLAR a substantial time
before November 2, 2009 foreclosure, which calls into question the validity
of the last minute assignment of the Note and Mortgage from MERS to
JPMorgan.
15.
Upon information and belief, this Note and Mortgage were part of a
14
pooled investment and were one time held by 100s if not thousands of
15
16
required to assign the Note and Mortgage back to CENLAR before MERS
17
18
16.
19
be joined in the Motion for relief to be granted. These necessary parties are
20
CENLAR and MERS, as well as the 100s if not thousands of investors in the
21
pooled derivative trust which,upon information and belief, this Note and
22
23
24
25
26
27
28
There are necessary parties who have not been joined and who must
Mortgage were a part. The power of sale is ostensibly held by MERS and
MERS is not a party and there is no proof that the power of sale was
transferred with the Note and Mortgage, and, in fact, there is no proof that
the Note and Mortgage were ever properly negotiated to JPMorgan or to
Fannie Mae.
17.
MERS allegedly assigned the Mortgage and Note to JPMorgan but such
assignment did not include the power of sale that was ostensibly granted to
MERS.
4
John Doe
Opposition to Motion for Relief from Stay
18.
Court could not grant termination of the stay because, upon information
and belief, based largely upon the existence of MERS as nominee under the
Mortgage, this Mortgage and the associated Note are one of those
created a trust and resold parts of the loan pool to various tranches of
derivative securities. These derivative securities may then have been sold
8
9
10
11
12
Even if the three primary parties mentioned above were joined, the
and resold. Accordingly, Fannie Mae has absolutely no right to bring this
case or, even if it does, it cannot obtain a judgment or any other relief as
the right to recover on the Note and Mortgage has been pledged to
hundreds, perhaps thousands, of other investors in the pool. Alternatively,
Fannie Mae may only have rights to the Note and Mortgage as security
position itself, in which case it is not the proper holder to bring this
13
action.
14
section 35-10-12 (1975) in that the persons entitled to the money thus
15
secured have not been located and perhaps scattered throughout America
16
and the world. Compare Crum v LaSalle Bank, NA, No.2080110 (Ala.Civ
17
App. 2009).
18
19.
19
20
Mae nonexistent.
21
20.
22
23
24
25
26
original mortgagee, who was MERS as nominee for CENLAR (not JPMorgan),
despite the purported last minute assignment from MERs to JPMorgan. This
is because the fourth paragraph of the Mortgage attached as exhibit B to
states, in part, as follows:for this purpose, Borrower does hereby
mortgage, grant and convey to MERS (solely as nominee for Lender and
Lenders successors and assigns) and to the successors and assigns of
27
28
the Note and Mortgage to JPMorgan and not MERS. The language
(CD CA 2009).
8
9
10
11
12
21.
Alabama and, accordingly, may not sue on any contract in Alabama since
MERS does considerable business in Alabama. In fact, MERS was formed for,
inter alia, escaping mortgage transfer taxes that otherwise would have been
required to pool investments such as the Mortgage.
22.
13
course of the Note and Mortgage and hence it is subject to any of the
14
foregoing defenses that are deemed substantive and not jurisdictional. Most
15
importantly, for JPMorgan to be able to foreclose and for Fannie Mae to file
16
a motion for relief from stay, there would have to be a valid assignment
17
18
19
23.
20
21
was only given the power of sale for CENLAR, and was not given the right
22
23
24
25
26
endorsed or that an allonge has been signed and affixed to the Note in any
manner effective to make JPMorgan or Fannie Mae a holder of the Note
much less a holder in due course of the Note. See UCC 7-3-201.11.
25.
27
Commercial Code and the Fannie Mae did not properly acquire the Note via
28
negotiation. See Union Bank & Trust Co. v Thompson, 202 Ala. 537, 81 So.
6
John Doe
Opposition to Motion for Relief from Stay
39, 40 (1919) and Crum, supra. See also, Alabama Code Sections 7-3-
104(a) and 7-3-301.12. In order to endorse a note, the current holder must
the note that it becomes part of the note).See, e.g. Crossland Sav. Bank
FSB v. Constant, 737 S.W. 2d 19 (Tex Ct.App. 1987). The text of the UCC
8
9
10
11
12
13
prevents the notes current owner from being a holder of the note). Without
14
15
evidence whatsoever, and, indeed, Fannie Mae will not be able to produce
16
any evidence a clear chain of title was ever recorded in public records and
17
that it is the holder of the Note or Mortgage and will not be able to show
18
19
20
Mae show the court it's agent/loan servicer JPMorgan conducted a judicial
21
22
23
24
25
26
27
28
participation rights in mortgages and notes, but overlooked was the law on
7
John Doe
Opposition to Motion for Relief from Stay
and when MERS is named as a nominee with a power of sale and no more,
lender must be conducted by each lender and not its power of sale
nominee.
28.
8
9
10
11
12
indicate that MERS or JPMorgan has any right to transfer, assign foreclose
judicially or nonjudicially or to sale the Note and Mortgage. Even if the
Court holds that MERS does have that right, there is no evidence in the file
to indicate that CENLAR directed MERS to assign this Note and Mortgage to
JPMorgan or to Fannie Mae.
29.
13
14
15
all foreclosures. Moreover, the fact that JPMorgan was collecting payments
16
from debtor for several months prior to November 2,2009, the assignment
17
from MERS to JPMorgan was executed only after Debtors Federal civil
18
complaint for wrongful foreclosure was filed. Moreover, the person signing
19
the assignment has a title of Vice President. This leads to the inevitable
20
conclusion that the assignment filed in this case by JPMorgan was not done
21
22
23
24
25
26
27
28
30.
Motion for Relief From Stay until such time as Fannie Mae can show a valid
chain of title to the Note and Mortgage which would require, at a very
minimum, an assignment from CENLAR to MERS from MERS to JPMorgan
and some evidence that the Note and Mortgage were not sold as a
derivative investment.
31.
although Debtor stated to Fannie Mae's counsel and the state judge she
8
John Doe
Opposition to Motion for Relief from Stay
wished to appeal. Debtor notified Fannie Mae's counsel she rejected the
32.
Fannie Mae and moves that it be struck from the record in this case.
33.
served no purpose in this case as debtor indicated that she was not going
8
9
10
11
12
to surrender the home,and debtor therefore asserts that the affidavit was
filed to vex and harass debtor and to call into question the veracity of
debtor.
34.
13
harassing and irrelevant and because it negatively affects the truth and
14
veracity of debtor.
15
16
17
18
19
20
21
________________________
JOHN DOE, Debtor
22
23
24
25
26
27
CERTIFICATE OF SERVICE
28
9
John Doe
Opposition to Motion for Relief from Stay
1
2
I JOHN DOE do hereby certify that on the 20th day of November 2014
6
7
8
9
10
_____________________________
JOHN DOE, Debtor
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
10
John Doe
Opposition to Motion for Relief from Stay