10-CI-403927

JEFFERSON CIRCUIT COURT

DIVISION SEVEN (7)
JUDGE AUDRA ECKERLE

CITIBANK, N.A. AS TRUSTEE FOR

THE CERTIFICATE HOLDERS OF
STRUCTURED ASSET MORTGAGE
INVESTMENTS II, INC., BEAR
STEARNS ALT-A TRUST,
MORTGAGE PASS-THROUGH
CERTIFICATES SERIES 2006-4

PLAINTIFF

V.
MIKHAIL LIPSKIY
DEFENDANTS
VALERY GURALNIK
MAYA GURALNIK
_______________________________________________________________________
VALERY GURALNIK
MAYA GURALNIK

COUNTER-PLAINTIFFS

V.
CITIBANK, N.A. AS TRUSTEE FOR
THE CERTIFICATE HOLDERS OF
STRUCTURED ASSET MORTGAGE
INVESTMENTS II, INC., BEAR
STEARNS ALT-A TRUST,
MORTGAGE PASS-THROUGH
CERTIFICATES SERIES 2006-4

COUNTER-DEFENDANT

________________________________________________________________________
MEMORANDUM IN SUPPORT OF MOTION TO DISMISS AND ORDER TO
DISMISS
________________________________________________________________________
Jury Demand on all counts
NOW COMES the above-named Defendants/ Counter - Plaintiffs,
VALERY GURALNIK, MAYA GURALNIK, MIKHAIL LIPSKIY in propria
persona, and hereby respectfully request to file MEMORANDUM
IN SUPPORT OF MOTION TO DISSMISS AND ORDER TO DISMISS
A party seeking to bring a case into court carries the
burden of establishing jurisdiction.
1

There are genuine issues of material fact in this action.

The Court need to be sure that there were no genuine issues
as to any material fact and that the moving party was
entitled to judgment as a matter of law. Scifres v. Kraft,
916 S.W.2d 779, 781 (Ky. App. 1996). Summary judgment shall
be granted if the pleadings, depositions, answers to
interrogatories, stipulations, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law. CR 56.03.
The trial court must view the record in a light most
favorable to the party opposing the motion for summary
judgment and all doubts are to be resolved in his favor.
Steelvest v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480
(Ky. 1991). Summary judgment is proper only where the
movant shows that the adverse party could not prevail under
any circumstances.
Id.
INTRODUCTION
Citibank filed a Complaint on October 5,2010 to initiate
foreclosure action against the defendants. In this
Complaint Citibank introduced itself as a holder of the
note and the mortgage. There are genuine issues of
material fact exists in this action about Citibank's
status and rights to initiate this case.
STATEMENT OF UNDISPUTED FACTS
Citibank filed a Complaint on October 5, 2010 claiming
that defendants own to plaintiff $ 89,684.56 plus
interest, costs, expenses and attorneys fees.
In count 1.1 of complaint Citibank claimed that it is a
holder of the note and mortgage in dispute, however
Citibank did not claim to be holder in a due course.

1. In count 1.1 of the complaint Citibank also admitted

that true and accurate copy of the Note is not currently
available.
2. In the Notice attached to the complaint, the attorney
for the plaintiff David C. Nalley of Reisenfield &
Associates, LPA LLC admitted to be a debt collector.
3. At the time of commencement of the action mortgage and
note was assigned to originator of the loan Century
Lending Company.
4. In their response Defendants objected the plaintiff's
status as real party in interest.
5. About 5 weeks later Citibank introduced an assignment
of the mortgage by the Mortgage Electronic Registration
System (MERS)dated at November 11, 2010. Date of
assignment clearly shows that plaintiff did not have any
rights to the mortgage till November 11, 2014.
6.

MERS System Procedures Manual at page 67 (transfer of

Beneficial rights) states:

Although the MERS System tracks changes in
ownership of the beneficial ownership rights
for loans registered on the MERS System, the
MERS System cannot transfer the beneficial
ownership rights to the debt.
7. As is today Note still stating: PAY TO THE ORDER
WITHOUT RECOURSE CENTURY LENDING COMPANY.

OF

8.

On the April 23, 2011 Defendants mailed to CITIBANK by

Certified Mail the Qualified Written Request, Complaint,

Dispute of debt and Validation of debt letter, TILLA
REQUEST. Request was ignored by Citibank. No response.
9.

On the August 16, 2011 Defendants mailed to CITIBANK

by Certified Mail second Qualified Written Request,

Complaint, Dispute of debt and Validation of debt letter,
TILLA REQUEST. Request was ignored by Citibank. No
response. By refusing to response Citibank willingly and
knowingly violated the law.
10.

By failing to show any rights to the mortgage and the

note plaintiff (Citibank)failed to show that it is a real

party in interest and failed to invoke the jurisdiction of
this court.
ARGUMENT
There are genuine issues of material fact in this action.
The Court need to be sure that there were no genuine issues
as to any material fact and that the moving party was
entitled to judgment as a matter of law. Scifres v. Kraft,
916 S.W.2d 779, 781 (Ky. App. 1996). Summary judgment shall
be granted if the pleadings, depositions, answers to
interrogatories, stipulations, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law. CR 56.03.
The trial court must view the record in a light most
favorable to the party opposing the motion for summary
judgment and all doubts are to be resolved in his favor.
Steelvest v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 480
(Ky. 1991). Summary judgment is proper only where the
movant shows that the adverse party could not prevail under
any circumstances.
Id.

Property owners Right to Raise Securitization Issue

As far as right-to-raise-the-ownership issue.

Why do

Defendants have to be beneficiaries of the PSA to raise the

issue of the trusts ownership of their loans? The
Defendants arent trying to enforce the agreement, theyre
simply trying to show the foreclosing trust doesnt have
standing. Standing is a threshold issue to any litigation
and the property owners axiomatically have the right to
raise it.
This is an example

where servicer

trying to force through

a foreclosure in the name of a trust that clearly had no

interest in the underlying loan according to the terms of
the pooling and servicing agreement. This conduct is a fraud
on the borrower, a fraud on the investors and a fraud on the
court. Hopefully this court will recognized the utter
failure of the securitization transaction and would not
overlook the fact that the trust had no interest in this
loan.
The party claiming rights (the trustee for the trust) must
show that the loan actually went into the trust because it
was paid for and properly delivered. Despite the Defendant's
multiple requests under discovery and separate request to
show money trail, plaintiff refused to produce such
evidence.
If the trust cannot show it paid anything, then two
questions arise, to wit: why not? and why did the endorser
or assignor of the "loan" transfer or purport to transfer
the loan documents to the trust without receiving any
payment?

If the Citibank could have asserted HDC status, it would

have because it would eliminate nearly all borrower
defenses. But Citibank didn't allege HDC status which
corroborates that the Trust never purchased or funded the
origination of this particular loan (nor did the Trust ever
receive delivery of the loan documents, as specified in the
PSA --- to the Depositor and Custodian). Hence any
"authority" derived from the securitization documents is a
sham since the terms of the REMIC Trust were ignored and no
transaction ever occurred.
Holder must prove the loan in its claimed chain.
Reason that Citibank did not allege that it is a Holder in
Due Course (HDC) is that to assert HDC status the party must
show:
1.
2.
3.
4.

Purchase-Payment of money
Delivery to depositor and Custodian as per PSA
Good faith
No knowledge of borrowers defense
It is equally obvious that the trust would have no

knowledge of the borrowers defenses. As the only element

left for a holder in due course is the purchase for value.
Since there is no allegation that the trust is a holder in
due course, the bank is admitting that the trust never
purchased the loan.
Pooling and servicing agreement (PSA) is the trust
instrument. Since the pooling and servicing agreement is
governed under the laws of the state of New York, a
violation of the restrictions and provisions of the trust is
void, not voidable. The acceptance of a loan that is in
default is not possible. The acceptance of any transaction

that would violate the terms of the Internal Revenue Code

sections on REMIC Trusts is not possible.
Plaintiff (Citibank) failed to prove to be a real party in
interest at the time of commencement of the action. The law
is crystal clear on this issue, a Plaintiff must provide
that it had standing AT THE TIME THE LAWSUITE WAS FILED, not
after.
United States Supreme Court in the case Carpenter v
Longen, 83 U.S. 271, 16 Wall.271,21L.ed.313(1872). Supreme
Court decision clearly supports the notion that the
plaintiff must own the Note and Mortgage at the time the
Complaint was filed.
Plaintiff was trying to correct this during litigation,
but court correctly said it is impossible. The basis for a
trial in which the evidence would be presented would be the
Complaint. If the Complaint requires that ownership of a
real loan be present at the time of the Complaint is field
than the Court's jurisdiction has never been invoked.
For the reasons stated herein, Defendants hereby
requesting that the Court enter an order to deny Plaintiff's
motion for a Summary Judgment and Order Of Sale and enter
the order to dismiss the case With Prejudice.

Please note that Defendants/Counter-Plaintiff is hereby

demands a trial by jury on all counts.

For these reasons, Defendants respectfully

requesting the Court to accept this MEMORANDUM IN SUPPORT OF
MOTION TO DISMISS AND ORDER TO DISMISS
for the record.
Dated this MEMORANDUM IN SUPPORT OF MOTION TO
DISMISS on this 21st day of November 2014.
Respectfully submitted by
Defendant, In Propria Persona

Respectfully submitted by
Defendant, In Propria Persona

BY: ______________________
VALERY GURALNIK

BY: __________________________
MAYA GURALNIK

BY: ______________________
MIKHAIL LIPSKIY

P.O. Business Address:

11020 Saint Rene Road
Louisville, KY 40299
I HEREBY CERTIFY that a true and correct copy of foregoing OBJECTIONS TO
PLAINTIFFS RESPONSE TO DEFENDANTS MOTION TO RECONSIDER has been
furnished by first class mail, postage prepaid to Gregory S Berman and Ekundayo Seton,
Jr. WYATT, TARRANT & COMBS, LLP Counsel for Plaintiff at 500 West Jefferson
Street, Suite 2800 Louisville, KY 40202-2898,

Valery Guralnik__________________