COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT

NO. SJC-11041 _________________________________ HENRIETTA EATON, Plaintiff-Appellee, V. FEDERAL NATIONAL MORTGAGE ASSOCIATION and GREEN TREE SERVICING, LLC Defendant-Appellants _________________________________ ON APPEAL FROM AN ORDER OF PRELIMINARY INJUNCTION OF THE SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT ________________________________________ AMICUS CURIAE OF ROBERT P. MARLEY A/K/A JOHN Q CITIZEN ______________________________________________

Robert P. Marley Pro-se 18 Lakeview Drive Lynnfield, MA 01940 781-844-3044 Marley0685@comcast.net January 27, 2011

TABLE OF CONTENTS

I. II. III. A)

Table of Authorities iii Statement of Interest 1 Argument. 2 Should This Honorable Court Affirm The Superior Court In The Above-Captioned Action And Decades Of Black Letter Law Regarding The Unity Of The Note And Mortgage To Foreclose An Apply It Retroactive. 2

B)

A Nonsensical Approach Is To Adhere To The Very Notion From The Very People Who Created This Mess, That the Note and Mortgage Can Be Separated And That This Courts Ruling Should Be Applied Prospectively...................................... 8

C)

The Only Hope For The People Are Our Courts, And A Retroactive Application In Eaton Is require For The Full Administration of Justice.... 9

D) IV.

The Sky Is Not Falling Nor Will It... 12 Conclusion 14

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TABLE OF AUTHORITIES Cases Bigelow v. RKO Radio Pictures, Inc., 327 US 251 - Supreme Court (1946 ................................... 2 Commonwealth v. Global Investment CO. 168 Mass. 80(1897 ...................................................... 9 In re Kemp, 440 BR 624 - Bankr. Court, D. New Jersey 2010 ....................................................... 8 In re Nosek, 406 BR 434 Dist. Court, D. Massachusetts (2009 ...................................................... 7 Marley v. Bank of America, et al. Civil Action NO: 1:10-CV-10885-GAO.................................... 1 Watson v. Wyman 161 Mass. 96 (1894 ........................................................................................... 9

Statutes M.G. L. c. 233, 77 ...................................................................................................................... 14 M.G. L. c. 233, 78 ...................................................................................................................... 14 M.G.L. c. 244 14 ......................................................................................................................... 10 M.G.L. c. 266 35A. ..................................................................................................................... 10

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II.

Statement of Interest of Amicus Curiae I am a lifelong resident of the state of Massachusetts and have been a Builder for 38-

Years. No one is more interested in real estate commerce in the state of Massachusetts than I am or more eager to have our economy righted. Capricious foreclosures are not an ends to that means, bringing the guilty parties to task for what they have done are. The egregious behavior perpetrated on our society by the largest Banks that ply their trade in Our State as in others, and Wall Streets Securitization Ponzi scheme and the abuses that was unleashed by the enactment of Gramm, Leach, Bliley Act of 1999, is a crime unheralded in the annals of the world and has devastated Millions of Lives. I have a case pending in the United States District Court of Massachusetts, Marley v. Bank of America, et al. Civil Action NO: 1:10-CV-10885-GAO. I have a stake in the instant matter, as do all citizens of Massachusetts. I file this brief in support of Henrietta Eaton and every Homeowner in this State whom have lost all hope, does not have the wherewithal to protect themselves, to proceed in a Court of Law pro-se, or funds to hire an attorney to protect themselves. I am not a pundit, and expert, nor do I possess higher education, I am merely an average citizen forced to educate himself to save his families future from the clutches of a criminal enterprise and their Lawyers. Even though I am not a lawyer, I have proceeded for the past two years in accord with the Professional Code of Conduct, unlike every lawyer representing the Banks. The Fraud and the misleading arguments perpetrated on our Courts by Officers of the Courts who know the law, are outrageous.

Infra is an average citizens perspective and I hope what I say here will assist this Honorable Court to reach the proper conclusion as it relates to the retroactive effects in affirming the lower Court in Eaton. The most elementary conceptions of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty which his own wrong has created. See, Bigelow v. RKO Radio Pictures, Inc., 327 US 251 - Supreme Court (1946), See Package Closure Corp. v. Sealright Co., 141 F.2d 972, 979. That principle is an ancient one, Armory v. Delamirie, 1 Strange 505

III.

ARGUMENT

This Honorable Court has invited interested parties to submit Amicus Briefs as it relates to the effects or a retroactive or prospective application of its Ruling in the above captioned matter. As one who has suffered greatly along with Millions of American Citizens at the Hands of the Banks and their Lawyers, fundamental fairness should dictate a retroactive application. The harm caused by the Lenders should not be overlook , and if their behavior results in clouded titles or increased litigation, it is an atmosphere they are responsible for. A) Should This Honorable Court Affirm The Superior Court In The Above-Captioned Action And Decades Of Black Letter Law Regarding The Unity Of The Note And Mortgage To Foreclose An Apply It Retroactive Or Prospective The better question is should this Honorable Court allow the Banks to circumvent hundreds of years of Massachusetts and New York Black Letter Law1 to accommodate the Banks Greed and Egregious Wrongdoings? There is nothing to apply prospectively, the laws

See, Marley v. Bank of America, 1:10-CV-10885-GAO Docket NO: (41) Memorandum of Law in Support of Preliminary Injunction. 2

have been on the Books for decades, this is not a novel matter and the Bankers and their Lawyers have deliberately attempted to circumvent our Laws. The only reason we are here in this Court is that the Bankers are attempting to undo hundreds of years of Black Letter Law to suit them, nothing more. These are calculated attempts to circumvent hundreds of years of protected property rights so these entities can gamble with our property for a profit as clearly set forth below. Mortgage assignments, whether they need be recorded or not, just don't fit in with today's mortgage banking industry and the volume of transactions transferring interests in mortgages.Meeting assignment requirements is expensive. When assignments must be recorded, expenses soar as local governments seek to balance budgets by increasing service fees. In addition to in-house personnel expense and recording fees, delivery of assignments involves mail and courier costs, custodial costs, notary costs, etc. Are assignments really necessary? The effect of state recording laws further complicates the situation. Although some case law exists suggesting that recordation of assignments is necessary to protect the mortgagee's interest, some legal commentators have analyzed state law and have argued persuasively that recording statutes, when carefully analyzed, don't apply to secondary market transfers of mortgages. Although legal commentators might provide persuasive arguments as to why recordation is unnecessary, those arguments aren't binding upon state courts. However, notwithstanding the recent "tinkering" that the agencies have done with their requirements, the basic system remains intact, inefficient and costly. It definitely is time to

explore alternatives.It would seem appropriate for the mortgage banking industry through MBA to work with the agencies and other interested parties, such as the real estate bar and the title industry, to identify 21stcentury mechanisms for eliminating the paper while safeguarding the legal interests at stake. MBA is ready.2 This is the Mortgage Bankers Associations and the Banking Industries mentality and has been for the past 20-years and this is their tactic here. In other words, our laws, our property rights and our people are disposable as it equates to their bottom line and if they can bamboozle our Courts the better for them and the worse off for society. Here is the bottom line; there was nothing preventing the lenders from providing nonpredatory loans that were sustainably healthy for our economy, the investor and the homeowner, however, that did not fit within their Scheme. We no longer exist in the realm of the traditional loan. Infra is an excerpt from one of my pleadings in the US District Court. THE VESSEL NAMED SECURITIZATION Since the enactment of the Gramm, Leach, Bliley Act of 1999, lobbied for by the American Bankers Association and the contemporaneous abolition of the Glass Steagall Act of 1934, however, partially restored by way of the Dodd-Frank Act, 62 Million homeowners such as the Plaintiff, have been put to seaunbeknownst to themon a Ghost-ship named Securitization and unlike the Titanic, had no captain at the helm, however, there was a full complement of crew [i.e. originators of pools, pretender lenders, warehouse lenders, trustee, depositors, sellers of certificates, servicers, etc.].

http://findarticles.com/p/articles/mi_hb5246/is_n2_v53/ai_n28619607/?tag=content;col1

However, like the Titanic, because of faulty designs, after hitting an iceberg the ship sank. The iceberg that sunk the Securitization was the inability of the greedy [crew] to follow the Design Blue Prints (Pooling and Servicing Agreement (PSA)) created under New York Laws which mandated how the ship was to be built and navigated. After the wreckage in 2008, to negate their flaws, the designers [lawyers] who stayed behind on dry land safely tucked away, embarked on a mission to resurrect, to raise up the ship from the depths of the frigid waters of the deep blue sea; their tools and equipment; false affidavits, fraudulent endorsements and their most powerful tool, the creation of fraudulent assignments were applied to the task at hand. After the shipwreck, the mariners ship designers thought they could appear before the Courts with salvage rights and salvage the wreckage by making false claims to a sunken treasure where they had no valid claim. However, like the Titanic, the Securitization is buried deep beneath the sea and now; all realize it cannot rise to the surface and no amount of tool fabrication can make that possible. Hence, the only valid salvage claims are those of the passengers who survived that shipwreck, the Homeowner and the Investor because they wore a life jacket, [they followed the rules]. The only fault of the homeowners was they let themselves be led down the gangplank oblivious to what awaited them. Everyone else that set sail on that ship is dead by their own hand, buried under the deep blue sea, because they failed to wear a life jacket, [they failed to follow the ships rules], which in this case was plastered all over the ship and those rule were the (PSA) and Hundreds of years of Black Letter LAW. To give credence (in light of the rampant fraud) to any claims without proof from the very people who were responsible for the ships demise, would be akin to Nominating Joe Stalin for the Nobel Peace Prize, which of course was

a farce. Fortunately, most Courts have now realized the fraud perpetrated by the best and brightest of society albeit, still preying on the ill-fated homeowner. Plaintiff begins this story [argument] with a case akin to the Three Stooges. Plaintiff can cite hundreds of cases as it relates to such mischief, but has only included a couple, which depicts the same behavior set forth in the instant action; some of these entities and their attorneys were sanctioned, some severely, yet it has discouraged none and the Banks continue with surreptitious skullduggery and defy all. If this Honorable Court were to consider sanction, Plaintiff would suggest they be as outrageous as the Defendants Behavior. No Judge has ever put it better than our own, Judge Young, he could clearly see the deception and was appalled and gave an accurate description of his brethren without compunction. On May 28, 2009, U.S. District Court Judge William G. Young upheld the sanctions against Ameriquest, but overturned the sanctions against Wells Fargo. Judge Young's harshest criticisms were for the lawyers involved: "After 43 years at the bar, the saddest thing about this case is the conduct of the lawyers -- all the lawyers. A careful reading of the briefs in this case reveals only a single recognition that counsel did anything amiss in their misrepresentations to the Bankruptcy Court. There's blame aplenty, of course, each one blaming everyone else -- including the hapless bankrupt homeowner. ... How is it that our profession, the legal profession --which could have and should have strongly counseled against the self-interested excesses that set up the collapse -- instead has eagerly aided and abetted those very excesses? How could we (all of us who profess to be lawyers) have fallen so low?" See Marley v. Bank of America, 1:10-CV-10885-GAO docket # (48). Judge Youngs reference In re Nosek, 406 BR 434 Dist. Court, D. Massachusetts (2009) above also stated that, Oscar Wilde once said "It's not whether you win or lose, it's how you
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place the blame." This case presents the unedifying spectacle of a litigant and its lawyers engaging in egregious misrepresentations and, now that they have been sanctioned for such misconduct, scrambling to pass the blame on to others much like the iconic Thomas Nast cartoon of The Tweed Ring. Thomas Nast, Who Stole the People's Money?.... It strikes me as odd and disturbing that one of the very law firms that Judge Young refers to in Nosek that was sanctioned (Ablitt) for misleading the bankruptcy Court in that case has filed an Amicus in this case. I refer this Honorable Courts attention to my Memorandum of Law @ footnote (1) docket (41) for an understanding of how New York Law affects the Securitized New York CommonLaw REMIC Trusts and the Note and Mortgages. The gift giver MUST relinquish all Dominion and Control over the Gift to the Trust; if not, there is no Trust over the Gift and the Trust has no assets. The law requires the Trust to have both, the Note and Mortgage. Unity. How could there ever be an assignment to the Trustee years after any purported loan was securitized? All assignments of the Note and conveyances of the Mortgage were required by law to take place within 90-days of the start-up date of the Pool. It is now well known, most Lenders never transferred, assigned, set over or otherwise conveyed the Notes and Mortgages to the Trust, yet they made Trillions of Dollars off those loans. In most foreclosures related to a securitized Mortgage, the Lenders know they can never demonstrate a valid enforceable right to foreclose and to overcome this little technicality; they set out in every case to fabricate and forge documents to cover up this fact as a mountain of evidence and case law demonstrates. To give the instant matter a prospective affect would be to release all the banks from their liability related to the pervasive fraud perpetrated by all the foreclosing entities in this state.

See In re Kemp, 440 BR 624 - Bankr. Court, D. New Jersey 2010, Linda DeMartini, a supervisor and operational team leader for the Litigation Management Department for BAC Home Loans Servicing L.P. ("BAC Servicing"), testified that the new allonge was prepared in anticipation of this litigation, and that it was signed several weeks before the trial by Sharon Mason. As to the location of the note, Ms. DeMartini testified that to her knowledge, the original note never left the possession of Countrywide, and that the original note appears to have been transferred to Countrywide's foreclosure unit, as evidenced by internal FedEx tracking numbers. She also confirmed that the new allonge had not been attached or otherwise affixed to the note. She testified further that it was customary for Countrywide to maintain possession of the original note and related loan documents. This is just one example of thousands across the Nation and if this Honorable Court would like me to compile a list of all the cases from across the Nation where blatant Fraud is at issue and because of said fraud, standing in the Note and Mortgage was denied, I would be more than happy to do just that.

B)

A Nonsensical Approach Is To Adhere To The Very Notion From The Very People Who Created This Mess, That the Note and Mortgage Can Be Separated And That This Courts Ruling Should Be Applied Prospectively The issue of whether or not the Note and Mortgage could be bifurcated was settled in

Carpenter v. Longan, 83 U.S. 16 Wall. 271 271 (1872). The note and mortgage are inseparable; the former as essential, the latter as an incident. An assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity. Id All the authorities agree that the debt is the principal thing and the mortgage an accessory. Equity puts the principal and accessory upon a footing of equality, and gives to the assignee of the evidence of the debt

the same rights in regard to both. There is no departure from any principle of law or equity in reaching this conclusion. There is no analogy between this case and one where a chose in action standing alone is sought to be enforced. The fallacy which lies in overlooking this distinction has misled many able minds, and is the source of all the confusion that exists. The mortgage can have no separate existence.. Carpenter v. Longan, 83 U.S. 16 Wall. 271 (1872). See Commonwealth v. Global Investment CO. 168 Mass. 80(1897) citing Carpenter v. Longan, see also Watson v. Wyman 161 Mass. 96 (1894) citing Carpenter v. Longan. Lawyers for the Banks continuously make the argument, albeit misleading, the note and mortgage need not be united to foreclose. This is akin to making the argument they could foreclose with no demonstrable right to the Debt. This of course is illogical, ludicrous and untenable. What that argument effective says is that I can file an Assignment of Mortgage even though I know I have no rights to any debton one of Fannie Maes properties, send a notice of default, advertise and move under M.G.L. c. 244 14, then foreclose. I have contemplated doing just that to prove a point however, have not, because I more likely would be charged with the crime of larceny, whereas the Banks have not. See, M.G.L. c. 266 35A.

C)

The Only Hope For The People Are Our Courts, And A Retroactive Application In Eaton Is require For The Full Administration of Justice. No one in authority has made an earnest attempt to stop this criminal enterprise but for

some of our Courts. If the DOJ brought a Criminal RICO against the CEOs, this Mess would be over. However, I give praise to my High Court for protecting the citizens of this State. MARS3 used in conjunction with Value at Risk (VAR) 4is one of the early software systems the Originators of the Pools used to create the exotic toxic loans that plague our society
3 4

http://findarticles.com/p/articles/mi_hb5246/is_n2_v53/ai_n28619602/?tag=content;col1 http://findarticles.com/p/articles/mi_hb5246/is_6_59/ai_n28729397/pg_3/?tag=content;col1 9

and would be placed in the securitized pools and it predicted with precise accuracy when these loans would go into default before they issued them. Each loan was designed to fit within their scheme and into each one of the tranches in the Pools. The lower the tranche the more interest was paid to the investor, the lower the tranche the higher predetermined incident of default on these toxic loans, which Millions of Citizens are stuck with. When the different loans were created it was then Lenders set out searching for people to fill the loans in order to fill the Pools with loans they KNEW were not sustainable and a detriment to society as a whole. I cannot brief these issues or the various software systems used in this Ponzi scheme on these 15 Pages. However, as the scheme grew exponentially, the software technology became more precise. In order to fill more securitization Pools to generate servicing fees for their coffers among others, Lending Institutions everywhere partook in the frenzy with reckless disregard for society as a whole even after they were put on notice in this state in 1997 and advised not to issue these types of toxic loans by the Massachusetts Division of Banks.5 Similarly, in a 2003 OCC advisory letter the OCC stated that, The OCC encourages national banks to adopt policies and procedures to address, and in practice to avoid, engaging in loan practices that may be abusive, unfair, or deceptive practices that raise legal risks and serious supervisory concerns and that, if not remedied, could result in supervisory action, injury to the banks reputation, and financial loss.6 On April 13, 2011, Congress gave the entire world the evidence necessary to bring the Banks to justice for what they have done to our society. No government agency has Indicted one Wrongdoer for what they have done to our society.7

5 6

http://www.mass.gov/ocabr/business/banking-services/industry-letters/subprime-lending.html http://www.occ.gov/static/news-issuances/news-releases/2003/nr-occ-2003-8-advisory-ltr-2003-2.pdf 7 http://www.hsgac.senate.gov//imo/media/doc/Financial_Crisis/FinancialCrisisReport.pdf?attempt=2 10

The corruption runs so deep in areas of our government that it is frightful. In the early 1990s after the S&L Scandal, thousands of Bankers went to prison for what they had done. Not one has been indicted here, never mind convicted. The very people entrusted to protect the populous are seriously lacking for want of bias. The skullduggery in the instant crisis pales in comparison to the S&L Scandal and the Keating Five. Take for a monument the Friends of Angelos list, and the Politicians among others that reside on that list. See Staff Report U.S. House of Representatives111th Congress Committee on Oversight and Government Reform Darrell Issa, Ranking Member March 19, 2009 http://oversight.house.gov/images/stories/Reports/20090319FriendsofAngelo.pdf See section F. Countrywide Mobilizes Its Friends. The entire report is a demonstration of blatant corruption. However, it is a whos who of the Defendant/Appellants Fannie Mae in the instant Appeal and the list will assuredly grow much larger as the investigation progresses. See also, http://www.reuters.com/article/2012/01/18/us-usa-countrywide-congressidUSTRE80H03K20120118 Then see, http://www.reuters.com/article/2012/01/18/us-fhfacongress-idUSTRE80H1GD20120118 Then See this link for a story on the top law officials whose duty it is to protect us. http://www.reuters.com/article/2012/01/20/us-usa-holder-mortgage-idUSTRE80J0PH20120120 U.S. Attorney General Eric Holder and Lanny Breuer, head of the Justice Department's criminal division were partners of the law firm (Covington & Burling) working for and guiding the Banks that created this mess. If there is no justice for the citizens and it is the intent to sweep this sweeping crime under the rug, what recourse are we, the average citizen left. Are Holder and Breuer going to bite the hand that feeds them or incriminate themselves or their partners?

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See John OBriens latest press release. With the corruption such as it is, it will fall on deaf ears. http://www.salemdeeds.com/pdf/PressRelease1-18-12.pdf For the citizens of Massachusetts, this Honorable Court is the bastion of last resort and if the Court does not protect the populous from these criminals, then no one will as demonstrated by the dereliction of duty and inaction of those in authority. The violations raised throughout the Foreclosure Crisis are not novel and are just a matter of history repeating itself and it is the same players trying the same old tricks trying to circumvent the Law to suit their greedy needs at the expense of society as a whole. Take your average criminal; what does he/she leave in their wake, more often than not, one victim. This single Ponzi scheme has destroyed Millions, a whole Nation, the global economy, and we are all victims of this scheme. In relation to the S&L Scandal, in sentencing Keating, Judge Ito alluded to a lyric by the folk singer Woody Guthrie. "More people have suffered from the point of a fountain pen than from a gun".8 No quarter should be given to the wrongdoers that destroyed our Nation and every Remedy at Law should be afforded the citizens of Massachusetts and if that means the insurance companies must payout on the policies they took money for, then so be it and if Banks and their lawyers are brought to task for their Blatant Fraud, so it should be. D) The Sky Is Not Falling Nor Will It As a mere citizen and homeowner briefly, I would like to point out to the Court the difficulty associated with bringing and action to defend our homes. First, with no money, we cannot hire lawyers to defend ourselves and not many lawyers will take these cases anyway. The
8

http://www.nytimes.com/1992/04/11/business/keating-is-sentenced-to-10-years-for-defrauding-s-lcustomers.html

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legal aid organizations are understaffed and underfunded and cannot help the majority of homeowners who wish to fight back. Second, the average person with average intelligence is at a loss from the very beginning and does not have the wherewithal intellectually to mount a defense. A process takes place in the average mind when faced with foreclosure. First fear sets in, then depression sets in, then desperation and humiliation sets in, and that is the breaking point for most people and therefore, they surrender to the deceptive banks. Most people cannot read one paragraph of legalese and understand what they are reading. This is a lawyerly game not for the faint of heart and the waters are shark infested and most citizens fear to tread here. Nothing has change in the dockets in this state because of Ibanez or Bevilacqua nor will it when Eaton comes down. The sky will not fall, nor a catastrophic number of cases be filed in light of Eaton. Most people will not be privy to this case unless they read about in the Boston Globe and even then, will have no understanding of what it means. Lastly, No lawyer for the banks should ever be allowed to write an affidavit and attest to the validity of a chain of title whereas they have demonstrated repeatedly they are not to be trusted. More importantly, they have no firsthand knowledge related to the Title Record . They must produce the Business records, as they are the foundation of evidence, not some slick lawyers perjured affidavit. Do I need to list here all the law firms that are under investigation for their criminal fraud as it relates to the foreclosure crisis? You have proof of standing or you do not, you have the proper documentation or you do not. If you do not, then you are up the preverbal creek without a paddle.

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M.G. L. c. 233, 77 provides that copies from the records, books, and accounts of banks and trust companies doing business in the Commonwealth must have an affidavit taken before a notary stating that the officer has charge of the original records. M.G. L. c. 233, 78 provides that business records shall be admissible if the court finds the record was made in good faith, in the regular course of business, before the beginning of legal proceedings, and the person who made the entry has personal knowledge of the facts stated in the record. The most elementary conceptions of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty which his own wrong has created.

IV.

CONCLUSION

In light of the foregoing, this Honorable Court should affirm the Trial Court ruling and decades of law requiring unity of mortgage and note for foreclosures in Massachusetts. Further that there be no bar to any claims that may arise because of the lenders continued intentional omissions and misrepresentations for these past many years.

Respectfully submitted

_______________________________ Robert P. Marley Pro-se 18 Lakeview Drive Lynnfield, MA 01940 781-844-3044 Marley0685@comcast.net

Dated: January 27, 2012

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Certification I, Robert P. Marley hereby certify the I have served two copies of the herewith Amicus Brief on the Parties attorney of record by first class mail on this 27 day of January, 2012. Signed under the pains and penalties of perjury.

Robert P. Marley

_________________________________

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