1

DOUGLAS COUNTY DISTRICT COURT

2

Seventh Judicial District

3

Judicial Center, 111 E. 11th St. unit 5

4

Lawrence, Kansas 66044-2966

5 6

MPMORGAN CHASE BANK, NA,

7

Plaintiff,
8

vs.
9

Guy M. Neighbors,
10

Defendant
11 12

) Case No.: 10-CV-861 ) ) ) ) DEFENDANT, GUY NEIGHBORS ) MOTION FOR SUMMARY JUDGMENT ) ) ) )

Introduction:
13

1. This is a foreclosure case in which the plaintiff JPMORGAN

14

CHASE BANK NA, unlawfully foreclosed on the defendants property

15

and forced the sheriffs sale of the property on April 21st,

16

2010. (See: Sheriffs deed filed Feb. 8th 2011).

17

The plaintiff foreclosed on the defendants property on Dec. 20th

18

2010, without serving him the process of service.

19

The plaintiffs failure to serve the defendant is in Clear

20 21

violation of the defendants 5th Amendment Right to Due Process of law, before his property is seized. The plaintiff also

22 23

violated the defendants 14th Amendment Right; The right to be informed of pending civil action against him as to allow him to

24

defend.
25

MOTION FOR SUMMARY JUDGMENT - 1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

The defendant moved for Summary Judgment based on the issues stated in this document. A. The defendants Constitutional Rights have been violated. B. The chain of Assignment has been broken. C. The Plaintiff was Not the Mortgagee when the complaint was filed. D. The plaintiff is not the Holder in Due Course and therefore has no standing to bring this action E. The plaintiff cannot produce the original wet blue ink promissory note. F. The Landmark Kansas Supreme Court case National Bank v. Kesler, 2009 Kan. Lexis 834, supports reversing this default judgment and dismissing this action. G. The defendant entered into an Unconscionable Contract H. There was NO LOAN of the depositors money ever made to the defendant.

2.

THERE IS NO GENUNIE ISSUE TO MATERIALL FACT:

The plaintiff failed to serve the defendant the process of service. The defendant filed a motion to vacate due to Insufficiency of Process on Oct. 20th, 2011, and a hearing was held on Nov. 21st. The judge addressed in the hearing, the fact that the return service the plaintiff filed in court noted that a neighbor at 1105 Andover informed the process server that the defendant was in jail. The return service also noted that the

MOTION FOR SUMMARY JUDGMENT - 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

process server performed a search and found the defendant at the FEDERAL MEDICAL CENTER In Butner N.C., however when the judge asked was the defendant properly served while he was incarcerated, the counsel for the plaintiff failed to give a direct answer, and also failed to provide any evidence that will support the fact defendant had been properly served. The judge had some concerns as to whether the defendants constitutional rights had been violated, and gave the plaintiffs attorney the opportunity to respond to his concerns however no date was noted for the plaintiff to respond. The defendant contends that where a party fails to comply with the statute on service of process service is defective and must be quashed. We review questions of law by a de novo standard of review. See: S. Baptist Hosp. of Fla. Inc. v. Welker.908. So.2d 317,319, (Fla.2005).

Strict compliance with the statutory provisions governing service of process is required in order to obtain Jurisdiction over a party. See: Schupak v. Sutton Hill Assocs, 710 So. 2d 707, 708, (Fla 4th D.C.A. 1983).0 This strict observance is required in order to assure that a defendant receives notice of the proceedings filed. See: Electro Engg products Cq, Inc. v. Lewis, 352 So. 2d. 862,865, (Fla. 1977), as we quoted in Haney v. Olin Corp. , 245 So. 2d 671, 672, (Fla. 1977) The major purpose of the

MOTION FOR SUMMARY JUDGMENT - 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Constitutional provision which guarantees Due Process is to make certain that when a person is sued he had Notice of the suit and opportunity to defend.

3. THERE IS NO GENUINE ISSUE OF MATERIALL FACT THE PLAINTIFF WAS NOT THE MORTGAGEE AT THE TIME THE ACTION WAS FILED. The plaintiff filed this action on Dec. 20th 2010, in doing the plaintiff failed to attach an assignment of mortgage to the complaint as required by Jeff-Ray Corp. V. Jacobson, 566 So.2d. 885,(Fla. 4th, DCA 1990). The reason the plaintiff failed to attach the assignment of mortgage is because no mortgage assignment existed, in fact the title information attached to the defendants motion filed Nov. 21st 2011, marked (exhibit A) will show that no assignment of mortgage was attached during the last 4 times the mortgage was transferred, a clear showing the chain of assignment has been compromised, and therefore the plaintiff cannot legally prove that he was in fact the holder in due course. TRANSFERRED NOTE; If a negotiable note is involved the mode of transfer is narrowly constrained. The note MUST be physically transferred into the hands of the person who is gaining the right to enforce it. Available at 1- Real Estate Finance Law 5.28 (westlaw).

When these assignments processes are not followed and not recorded, three problems can occur.

MOTION FOR SUMMARY JUDGMENT - 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

A. Kansas law requires a record of the assignment chain to be in order, to foreclose. B. Without a recorded assignment, the current mortgage holder is not protected from Fraudulent Action, such as foreclosure or discharge, taken by prior holders of the note and mortgage. C. The mortgagee will have a difficult time getting a legitimate discharge when they do not know who owns the mortgage at the time of discharge. There is NO assignment of mortgage, this action must be reversed and judgment for damages rendered in favor of the defendant.

4. THERE IS NO GENUINE ISSUE OF MATERIAL FACT The contract in question was an unconscionable contract due to several facts, full disclosure was not provided to the defendant when the plaintiff processed the note through the Federal Reserve and was paid in full for the property in question with credits, and unlawfully charged the defendant interest on those credits. The note was monetized and deposit multiplied by a factor of 10, the defendants property is paid with a check from the account the credits were deposited into and the rest of the money was gravy for the bank. The bank uses the attributes of the Federal Reserve deposit multiplier to enrich themselves by a factor of 9 times the

MOTION FOR SUMMARY JUDGMENT - 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

amount of the promissory note. This multiplier factor can go as high as 23 times the amount of the promissory note. The bank accepted the defendants promissory note and deposited it as an asset without the defendants knowledge, therefore concealing full disclosure. The bank was paid in full by the value of the defendants signature on the promissory note. The bank was never at risk and never loses a penny even if the defendant failed to pay. The defendant was robbed; non-disclosure of the facts is FRAUD! The Federal Reserve has been very clear in their circulars that the banks do not really lend or loan money. Federal Reserve official publications reveal one example in the Uniform Commercial Code (UCC), which governs all negotiable instruments, and every state of the union has adopted and codified the UCC into their state statutes. Here are two examples to prove the point about what the Feds say about the banks lending money. First: Federal Reserve Publication Modern Money Mechanics states on pg.6: Of course they (banks) do not really pay out loans from money they receive as deposits. If they did this, no additional money would be created. So if the banks do not really pay out loans from money they receive as deposits, where do they get the money to pay out loans?

MOTION FOR SUMMARY JUDGMENT - 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

The Feds reveals this in such a matter that it would take professional help to fail to comprehend: What they do when they make loans is to accept promissory notes in exchange for credits to the borrowers transaction account. In reality an exchange has occurred.

So the bank was lying when they stipulate in their agreement that the defendant received a loan. The agreement never mentions the real nature of the transaction, an exchange founded in fraud, relying upon the defendants ignorance.

Second: The Feds adds fuel to the argument in their publication Two Faces of debt, pg. 19: Depositors balance rises when the depository institution extends
Credits either by granting a loan to or by buying securities from The depositors in exchange for the note or security, the lending or Investing institution credits the depositors or gives a check that can be deposited at yet another depository institution. In this case no one else loses a deposit and the money supply is increased; new money has been brought onto existence.

Again the Feds uses the word exchange, which will be associated with the so called loan. Notice the quote clearly says that a depositors balance rises, (evidence the promise to pay is deposited) when a

MOTION FOR SUMMARY JUDGMENT - 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

depository institution extends credit either by granting a loan to or by buying securities from a depositor... In truth, the new money brought into the existence was done so by the deposit of the promissory note, predicated upon the defendants signature.

Critical Issues: For an agreement or a contract to be valid,

both parties to the agreement must fully disclose all of the facts relevant to the transaction. Without full disclosure the defendant has no way to competently authenticate by validation. Usually, there is really NOTHING in these so-called agreements that holds the alleged creditor liable if they were to commit fraud or other nefarious act. That is because the signer has the free-will to EXIT the agreement if it can be proven that the alleged creditor (bank) has not acted in good faith. True to the criminal aspect of their business, the banks representatives will never discuss the signers options if you determine that the bank has committed wrong-doing with respect to the transaction: this is no accident.

A signature that was provided pursuant to false representation, fraud, is violable upon discovery of the fraud perpetrated in order to acquire the signature.

MOTION FOR SUMMARY JUDGMENT - 8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Conclusion:
There are numerous procedures and prerequisites to foreclosure that banks must follow, and each of these directives to the banks opens more doors for sanctions against them if they fail to comply. Research has shown, some foreclosure law firms and their employees, while rushing to meet the banks time lines and motivated financial rewards for faster foreclosures, have failed to serve proper process of service, filed improper, and fraudulent documents to expedite the court process. These rushed mistakes and knowingly fraudulent acts usually insure to the detriment of the homeowner, often times fatally prejudicing the homeowners case. In every jurisdiction, however, procedures exist to deter and punish litigants from advancing frivolous claims and defenses, commonly encapsulated within a motion for sanctions. A summary judgment (FRCP Rule, 56) is a procedural device used during civil litigation to promptly and expeditiously dispose of a case without a trial, and a party is entitled to judgment as a matter of law. Usually a court will hold oral arguments; however it may decide the summary judgment motion on the parties briefs and supporting documentation alone. Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law Fed. R. Civ.P. 56(c).

MOTION FOR SUMMARY JUDGMENT - 9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

The moving party bears the initial burden of proving that there is no genuine issue of material fact in dispute. See: Matsushita Elec. Indus. Co. Ltd. V. Zenith Radio Corp., 475 U.S. 574, 585 n.10 (1986). Once the moving party carries this burden, the non-moving party must come forward with specific facts showing there is genuine issues for trial Id. At 587, (quoting Fed. R. Civ.P. 56(e)). The task for the court is to inquire whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one sided that one party must prevail as a matter of law. Liberty Lobby, 477 U.S. at 251-52; Tabas v. Tabas, 47 F.3d 1280,1287 (3d Cir. 1995) (en banc). The documents files against the plaintiff in this case have gone largely unanswered. When a plaintiff fails to rebut an affidavit the affidavit stands as fact in court. In this case the documents on the record unanswered will clearly show the plaintiff is in violation of the law and the defendants constitutional right, whereby the decision should be in favor of the defendant and damages should be granted. The defendant will show from the additional exhibits attached to this motion that the plaintiff has displayed a past history of unconscionable behavior, and business practices of which civil action have been filed against the plaintiff by a number of individuals, corporations, and by the 50 states of the union.

MOTION FOR SUMMARY JUDGMENT - 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

The exhibit marked B is a story dated Dec. 2nd 2011 written by David Mclauglin. The story titled JPMORGAN CHASE BANK, BOFA SUED BY Massachusetts Over Home Foreclosure Massachusetts Attorney General Martha Coakley filed this law suit against three banks (including the plaintiff in this pending action) alleging the plaintiffs conducted unlawful foreclosures and deceived homeowners. Attorney Generals accused the banks of engaging in unfair and deceptive trade practices in violation of state law. State Attorneys General across the U.S. have been negotiating a possible settlement that would resolve a probe into foreclosure practices. The probe began more than a year ago following disclosures that faulty documents were being used to seized defendants homes. The state and federal officials are aiming to reach a deal that would provide mortgage relief to home owners and set requirements for the way mortgage services conduct home foreclosure and interact with borrowers. Coakley, today blamed the banks for failure to reach a deal, saying they hadnt offered meaningful and enforceable relief to homeowners for harm they have caused. With a settlement still out of reach more than a year after all 50 states announced their investigation into the banks practices, coakley said, she decided to file her law suit.

MOTION FOR SUMMARY JUDGMENT - 11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

They have had more than a year to show theyve understood their role and the need to show their accountability for this economic mess, and they failed to do so. She said.

The Banksters $7.7 Trillion $ Bailout (Exhibit C). This article mentioned a 7.7 Trillion Dollar Bailout the bank and the government forgot to mention to the public. The point of adding this exhibit to this document is to show the banks unconscionable greed, the banks decisions are not in accordance with what is right or just. The author makes the very important point, that if the banks would refinance homeowners mortgage at interest rate of 0.01% (the same interest the Feds gave them) We could all save our homes.

JPMorgan Chase Bank Sued by BayernLB Over Mortgage-Backed Securities (Exhibit D) This article shows, JPMorgan Chase bank was sued for fraud by a German lender. The lender contends JPMorgan units concealed the truth about the Poor quality of the loans underlying the securities and knew that credit ratings misrepresented their risk. This misconduct has resulted in astounded rate of default on Loans. BayernLB said, most of the securities have been downgraded to junk.

MOTION FOR SUMMARY JUDGMENT - 12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

The facts contained in this motion for summary judgment will show a pattern of unlawful, unethical, and unconscionable behavior by the plaintiff whereby judgment should be ruled in favor of the defendant and damages should be granted.

CERTIFICATE OF MAILING

I hereby certify that on this_______ day of Jan. 2012, A copy of the above motion for summary judgment was mailed 1st class mail to the following: Wendy Green Sharpiro & Mock 6310 Lamar, suite 240 Overland Pk. Ks. 66202

Dated this 2nd day of January , 2012____________________________

MOTION FOR SUMMARY JUDGMENT - 13