Beruflich Dokumente
Kultur Dokumente
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TABLE OF CONTENTS
10. Appellant is informed and believes, and based on such information and
beliefs, asserts that at all relevant times to this Complaint, Defendant Deutsche
Bank Trust Company Americas as Trustee (hereinafter "DBTCA8") for the
Residential Accredit Loans, Inc. Mortgage Asset-Backed Pass-Through
Certificates, Series 2007-QS 1 (hereinafter "RALI 2007-QS 1") is a New York
Corporation with corporate headquarters located at 60 Wall St, New York,
NY 10005.
11. Plaintiff is informed and believes, and based on such information and beliefs,
asserts that at all relevant times to this Complaint, Defendant Mortgage
Electronic Registration Systems (hereinafter "MERS") is a private electronic
database that tracks the transfer of ownership interests in mortgage loans and
does not hold any actual beneficial loans in its portfolio and is organized and
existing under the Laws of Delaware, and maintains its address at P. 0. Box
2026 Flint, Michigan 48501-2026.
I. JURISDICTIONAL STATEMENT
Appellant appeals the District Court's Order Adopting Report and
Recommendations to grant Appellees' Motion to Dismiss Appellant's First
Amended Complaint (ECF No.40) and denying Appellant's request to amend and
the Judgement (ECF No.41).
2) Did the District Court Judge err as it pertains to the Appellees failure to
deny Appellant's Request for Admissions?
3) Did the District Court Judge err as it pertains to the Appellees failure to
answer Appellant's Request for Interrogatories?
4) Did the District Court Judge err in concluding Defendants withdrew any
potential admission?
5) Did the District Court Judge err in concluding that Masterson's Motion
does not present any genuine issues of material facts that are in dispute?
6) Does Appellees request for Judicial Notice of the MIN Summary and ·
Milestones open the door for Appellant to assert Ultra Vires Acts of the
Pooling and Servicing Agreement?
8) Did the District Court Judge err in closing the case at bar with other
Defendants having never responded to the Complaint(s)?
III. INTRODUCTION
In the past nine to ten years, several judicial opinions have issued in which
trustors/borrowers challenged the statutory scheme being initiated by an off-the-
record registry known as Mortgage Electronic Registration Systems, Inc. ("MERS").
In many of these cases, the courts held that the Civil Code does not provide for a
"preemptive challenge" to a foreclosure. Many of the cases were poorly plead and
thinly veiled attempts to do anything other just try and delay the loss of their
property, this is not the case at bar.
Appellant has in plain and simple language, but with great specificity
identified and articulated to the District Court the following:
Later that day on June 20 th, 2018 Plaintiff by and through her husband,
Robert R. Tweed, Plaintiff mailed the Proposed Discovery Plan to Law
Offices of Akerman LLP for opposing counsel to sign and file with the
As of December 20th, 2018, Plaintiff has not received any Requests For
Admissions; Requests For Documents; or Requests For Interrogatories from
Defendants.
1. With the fact discovery cutoff of Thursday, December 20, 2018 now
having come and went Plaintiff makes this Motion for Summary
V. STANDARD OF REVIEW
A basic rule of appellate review requires this Court to construe the allegations
of a complaint liberally in favor of the pleader. On appeal, this Court must deem to
be true all material facts properly pled. A plaintiff need plead only those facts
showing that he may be entitled to some relief.
Plaintiff respectfully requests that the Court deem the Requests for
Admissions admitted and conclusively established against Defendants in
the case, pursuant to the failure of Defendants to timely respond to the
discovery propounded by Plaintiff.
the matter set forth in that Request for Admission. BA Charles A. Wright,
Arthur R. Miller, and Richard L. Marcus, Federal Practice and Procedure§
2264 at 573 (2d Ed, 1994). Sanctions for failing to timely serve answers or
objections to Requests for Admissions are that all matters in the Requests
are deemed to have been admitted by the party in the case. Based on the
failure of Defendants to respond to the Requests for Admissions, the
following Admissions are deemed to be admitted by Defendants and
conclusively established in this case:
Admit that the Deed of Trust is void ab initio as the rights, powers and
authorities are given to both the purported beneficiary and the Trustee
under the Deed of Trust.
Admit that the Deed of Trust is not a valid lien against the Property.
Admit that the Deed of Trust was never sold, granted, conveyed, transferred
or assigned to the RALI 2007-QHl as described in the PSA associated with
the RALI 2007-QHl Trust.
Ill
Admit that the Note associated with the Deed of Trust was never sold,
granted, conveyed, transferred or assigned to the RALI 2007-QHl as
described in the PSA associated with the RALI 2007-QHl Trust.
Admit that the Deed of Trust was never sold, granted, conveyed, transferred
or assigned to the RALI 2007-QHl as described in the Prospectus associated
with the RALI 2007-QHl Trust.
Admit that the Note associated with the Deed of Trust was never sold,
granted, conveyed, transferred or assigned to the RALI 2007-QHl as
described in the Prospectus associated with the RALI 2007-QHl Trust.
Admit that the Deed of Trust was never sold, granted, conveyed, transferred
or assigned to the Residential Accredit Loans, Inc. as described in the PSA
associated with the RALI 2007-QHl Trust.
Ill
Ill
Ill
Admit that the Note associated with the Deed of Trust was never sold,
granted, conveyed, transferred or assigned to the Residential Accredit
Loans, Inc. as described in the PSA associated with the RALI 2007-QHl
Trust.
Admit that the Deed of Trust was never sold, granted, conveyed, transferred
or assigned to the Residential Accredit Loans, Inc. as described in the
Prospectus associated with the RALI 2007-QHl Trust.
Admit that the Note associated with the Deed of Trust was never sold,
granted, conveyed, transferred or assigned to the Residential Accredit
Loans, Inc. as described in the Prospectus associated with the RALI 2007-
QHl Trust.
Admit that DBTCA acceptance of the Note into the RALI 2007-QHl Trust
after April 30, 2007 is an Ultra Vires Act.
Ill
Ill
Admit that DBTCA acceptance of the Deed of Trust into the RALI 2007-QHl
Trust after April 30, 2007 is an Ultra Vires Act.
Admit that any contributions made into the RALI 2007-QHl Trust after
April 30, 2007 violates the REMIC status of the RALI 2007-QHl Trust.
Admit that DBTCA has committed Ultra Vires Acts directly associated with
the RALI 2007-QHl Trust.
Ill
Ill
Ill
Admit that MERS has committed Ultra Vires Acts directly associated with
the RALI 2007-QHl Trust.
Admit that you have no proof of an Opinion of Counsel Letter for the
Residential
Admit that you have no proof of the Residential Accredit Loans, Inc.
Mortgage Asset-Backed Pass-Through Certificates, Series 2007-QHl has
issued a written acceptance of the subject Deed of Trust dated December 15,
2006.
None of the Appellees have refuted any of these Admissions and each
of these facts should be deemed conclusively established.
THE COURT.
exhibit A is a true and correct color copy of the original note." (see ECF
Doc# 19-2) (emphasis added)
19-1 Page No.7) attached hereto as Exhibit No.1. Plaintiff further directs the
Court's attention that nowhere contained with Exhibit A" (ECF Doc# 19-1) II
a) I am over eighteen years old and have personal knowledge of the facts
stated here. I am an attorney licensed to practice in Utah at the law firm
of Akerman, LLP in Salt Lake City, Utah.
b) On September 25, 2018 Akerman received, from Mr. Cooper, the original
note executed by Ms. Masterson that is the subject of this lawsuit. Upon
Opening Brief Masterson v. Nationstar Mortgage, et al Docket No. 19-04146
23
Appellate Case: 19-4146 Document: 010110283477 Date Filed: 01/03/2020 Page: 24
c) The document attached as exhibit A is a true and correct color copy of the
original note.
(see ECF Doc#25 Exhibit 2 Pages 21 & 22)
Ill
Ill
theory that securitization of the loan invalidated the deed of trust", even
though the word securitization" doesn't appear in Plaintiff's Complaint a
II
single time nor does Plaintiff even come close to asserting that the Deed of
Trust is void as a result of any purported securitization of Plaintiff's loan,
Plaintiff is informed and believes, and based on such information and
beliefs, asserts that Defendants' Counsel has perpetrated a fraud upon the
Court that may warrant sanctions or even a referral to the BAR Association
for disciplinary action. As stated above, nowhere in Plaintiff's Complaint
does the word securitization" ever appear, Plaintiff's assertions that the
11
subject Deed of Trust is void arises from the comingling and merging of the
roles; rights; and authorities of the Beneficiary and the Trustee under the
Deed of Trust rendering the Security Instrument a nullity having failed to
create a trust, not as a result of an assignment into a Securitized Trust as
misrepresented by Defendants' Counsel.
1 Defendants' MID citing Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir.
2013) (internal quotation marks omitted). "A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged."
2 see Defendants' MID Pg. 3 "6. Nationstar responded to that letter on August 24, 2012. Compl., 'JI 26, Ex.
5 thereto."
Opening Brief Masterson v. Nationstar Mortgage, et al Docket No. 19-04146
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Appellate Case: 19-4146 Document: 010110283477 Date Filed: 01/03/2020 Page: 27
central to Plaintiff's claims, and the parties cannot reasonably dispute their
authenticity by Defendants' Counsel clearly shows Plaintiff's loan having
been sold numerous times, none of which ever recorded in the Summit
County Recorder's Office, not even transfers to entities or individuals that
are not members of MERS as required by MERS bylaws and Public Policy.
Plaintiff asserts that all of the above mentioned, specifically the fraud
upon the Court by Mr. Scott in submitting one version of the Note to the
Court on Friday September 28, 2018 and just three days later, over the
weekend, provided a completely different version of the Note now
containing not one indorsement in blank but four indorsements, none of
which were in blank, to the Plaintiff, clearly provides prima fade evidence
that Defendant BONY, as purported in the QWR Response by NationStar to
be the owner of Plaintiff's loan, is not in fact the true and correct owner and
that there is a true and genuine controversy that the Court must provide
declaratory relief.
Ill
As Defendants did not comply in any way shape or form with any of
the requirements of 15 U.S.C. § 1641(G), Plaintiff's claim should not be
dismissed as the consumer protections contained in the statute are liberally
interpreted, and creditors must strictly comply with TILA' s requirements.
See McDonald v. Checks-N-Advance, Inc. (In re Ferrell), 539 F.3d 1186, 1189
(9th Cir. 2008). On its face, 15 U.S.C. § 1640(a)(2)(A)(iv) imposes upon the
assignee of a deed of trust who violates 15 U.S.C. § 1641(g)(l) statutory
damages of "not less than $400 or greater than $4,000."
As the Court unanimously held in Haines v. Kerner, 404 U.S. 519 (1972),
a pro se complaint, "however inartfully pleaded," must be held to "less
stringent standards than formal pleadings drafted by lawyers" and can only
be dismissed for failure to state a claim if it appears "beyond doubt that the
plaintiff can prove no set of his claim which
Federal Rule of Civil Procedure 36(a)(3) states that "[a] matter is admitted
unless, within 30 days after being served, the party to whom the request is directed
serves on the requesting party a written answer or objection addressed to the matter
and signed by the party or its attorney.
Appellant asserts that the lower court erred when it ruled that "Defendants
effectively withdrew any such admissions." (emphasis added) as Appellees never
filed a Motion to have the Admissions withdrawn. Appellant further asserts that the
lower court erred when it used the analysis of "In Bergemann, the court faced a
similar situation as the facts present here: the plaintiff represented the requests for
admission had been mailed, but the defendant claimed it never received them. The
court noted that the defendant included an affidavit with its opposition to the
plaintiffs motion for summary judgment confirming non-receipt of the requests,
which effectively acted as a motion to withdraw the admissions."
Ill
Ill
Ill
Opening Brief Masterson v. Nationstar Mortgage, et al Docket No. 19-04146
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Appellate Case: 19-4146 Document: 010110283477 Date Filed: 01/03/2020 Page: 31
VII. CONCLUSION
For all of the aforementioned reasons, Appellant respectfully that the
District Court's Honorable Robert J. Shelby erred in filed his Order dated September
30, 2019, entered into the District Court's docket as ECF No.40, granting Appellees'
Motion to Dismiss and that Summary Judgement be GRANTED in favor of the
Complaint to address any deficiencies the Court may see and the include the
their counsel.
Cwe~Aȣ0
CAROLMA~ ON
1566 HILLCREST AVE.
GLENDALE, CA 91202
Phone: (323) 864-0778
Masterson.Hillcrest@outlook.com
Plaintiff Pro Se
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief has been prepared using proportionately one and half
spaced 14-point Times New Roman typeface. According to the "Word Count"
feature in my Microsoft Word for Windows software, this brief contains 5,563 words
up to and including the signature lines that follow the briefs conclusion. I declare
under penalty of perjury that this Certificate of Compliance is true and correct and
that this declaration was executed on 31 st day of December, 2019.
(lteAA
CAROLMAS~
1566 HILLCREST AVE.
GLENDALE, CA 91202
Phone: (323) 864-0778
Masterson.Hillcrest@outlook.com
Plaintiff Pro Se
CERTIFICATE OF SERVICE
byCM/ECF
by Electronic Mail
by Facsimile Transmission
X by First Class Mail
by Hand Delivery
by Overnight Delivery
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Ellen Dorsett