ONE OF MY early PRO SE FILINGS, Bottom line explaining most fraud, but trust me there is more..

Response to Defendants Motion To Dismiss AND Demand For Jury Trial

1.Plaintiffs appear in opposition to defendants motion to dismiss and state their arguments

 2.Defendants are not the real parties in interest pursuant to FRCP 17(a).

3.Defendants contract on which they seek to foreclose purports to be an instrument of

negotiation yet, there is no evidence whatsoever the instrument was ever negotiated

pursuant to UCC 3-202.

4.The instrument defendants sought to foreclose on was subject to Affixation Requirements

under UCC 3-204.

FACTUAL ALLEGATIONS

5.This basis of this action arises from a loan that was created by the closing of a consumer

credit refinancing transaction between Plaintiffs and Universal Savings bank, fs. The

Loan purports to be a Securitized Transaction Negotiated at the closing of the loan or

very shortly thereafter, in compliance with the Federal Securities and Exchange Act and

those regulations and New York State Laws thereto. Upon information and belief, after

the closing of the loan, USB, transferred/sold the instrument to LBB as well as to a

master servicer affiant of LBB, ALS who acted as an interim Note holder while

defendants located a buyer for the “Note” accomplishing these transactions through their

in-house investment managers and/or parent corporation and head thrift LBHI. The

investor found was purportedly Fannie Mae. The borrower under the Deed of Trust was

designated as Scott L. Misenhelter, As his sole and separate property, Scott L.

Misenhelter is the sole borrower under the Deed of Trust. (See Exhibit B )

6.Under the Deed of Trust, acting on behalf of the Lender as nominee of record was

designated as Mortgage Electronic Registration Systems, Inc. (MERS). On July 21,

2010, MERS assigned its purported rights under the Deed of Trust via a Notice of

Substitution Trustee to Cal Western and as noted on the Notice of Trustee Sale, ALS was

named as beneficiary by MERS/Cal Western. On the same day, MERS appointed Cal

2

Western Reconveyance Corp. as the Substitute Trustee. MERS attempted to make this

appointment by affidavit (“MERS Affidavit”). The MERS Affidavit was signed by Susan

Smothers. On this affidavit, she is listed as the “Assistant Secretary” of Mortgage

Electronic Registration Systems Inc. As well as on the same day a Notice of Trustee Sale

was recorded in the same county and Cal Western attempted to make this appointment by

affidavit, again the (“Cal Western Affidavit”) was also signed by Susan Smothers. Yet on

this affidavit she is listed as the “A.V.P.” –Assistant Vice President (per phone

conversation with said company by Plaintiff, Rebecca Misenhelter), of Cal Western

Reconveyance Corporation.

7.The trustee under the Deed of Trust and Note was designated as Stewart Title & Trust of

Phoenix INC. The lender under both the Deed of Trust and the Note was UNIVERSAL

SAVINGS BANK, fs (“USB”). On July 22, 2010, no assignment of By, for or between,

ANY DEFENDANTS’ purported interest, in the Deed of Trust was made in the County

of Maricopa Records. Arizona follows the “title theory” rule, as of 1971 and A.R.S. 33-

801 et seq Arizona deed of trust statutes were adopted. This provides that a deed of trust

is a three-party instrument by which the borrower (Plaintiff) (Scott Misenhelter) conveys

to the trustee (Stewart Title & Trust Of Phoenix) legal title to the property. The trustee

(Stewart Title & Trust Of Phoenix) holds legal title to the property on behalf of the

lender, (USB) who becomes the beneficiary of the deed of trust.

8.A Deed of Trust MUST: describe the real property, name the party transferring the

property (grantor), (SELLER) the party receiving the property (grantee) (BUYER) and be

signed and notarized by the grantor. To complete the transfer (conveyance) the deed must

3

be recorded in the office of the County Recorder or Recorder of Deeds (MARICOPA

COUNTY). (See Exhibit B)

9.The loan instrument secured by Plaintiffs residential real property and home, purports to

be a securitized loan, financial transaction subject to Fixation Requirements pursuant to

Negotiable Instruments, Negotiation of the Instrument pursuant to U.C.C. Sec. § 3-

201(3), and this instrument purporting to be“ Order Paper” from debtor, The true

originators of the loan immediately and simultaneously securitized (allegedly) the note

through the means of conversion of an Article III negotiable Instrument (U.C.C.) into

Article IX (U.C.C.), non-negotiable paper.

10.The beneficial interest in the note was never in the lender, In this case AURORA LOAN

SERVICES, MERS, and CAL WESTERN have declared a default and are not in privy

with the lender. The true owner (s) or beneficiary(s) of the mortgage loan has not

declared a default, cannot declare a default under its’ Trust Agreement, and does not have

an interest in the Note that allows for any remedial actions to be undertaken4 by the

Beneficial Interest Holder(s).

11.Universal Savings Bank F.S. (USB), the originating lender at closing purports to have

been negotiated and assigned at some time after closing to LEHMAN BROTHERS

BANK, F.S.B, (“LBB”) and again to The Federal National Mortgage Association

(“Fannie Mae”). Yet Plaintiffs have documents showing this may have actually been set

in motion earlier, while the Loan Origination was still commencing prior to closing.

Plaintiffs have evidence showing deceptive and altered the loan documents also including

but not limited to the Notice Of Substitution Trustee and Notice Of Trustee Sale.

(See Exhibit A and B)

4

12.Aurora Loan Services, per a written “Notice” of Loan Servicing Transfer letter provided

by USB on March 16, 2006 to Plaintiffs’, was to become the Servicer of Plaintiffs’ loan

as of May 01, 2010, on behalf of the “Lender” USB. Defendants state in there Motion to

Dismiss page 2 line 5 that “Plaintiffs Scott L. Misenhelter on or about April 25, 2006

received a letter from Aurora Loan Services stating that their loan was transferred to it

from USB Home Lending. When in fact Plaintiffs never received nor saw any such letter

from any such company by the name USB Home lending until on or about November 01,

2010. That actual document image was included on a cd sent to Plaintiffs by Linda

Sierzchulski employed by Karhl Wutscher LLP for Aurora Loan services per written

Qualified Written Request. (See Exhibit D ) The loan instrument bears no signs it was

ever negotiated pursuant to UCC § 3-204(a) (d).

13.As Per Defendants Cal Western Joinder and Defendant Aurora Loan Services Motion to

Dismiss, Plaintiffs wish at this time to request this Court continue adjoin them in this

action as they are included in all allegations and Plaintiffs can file an amended complaint

as new and pertinent allegations have come to light since the initial filing of this action.

Prior to and upon Plaintiffs final closing of the refinanced loan and over the course of an

unknown period, Defendants ALS, in concert with USB and other John Does, Altered the

loan documents and terms in tandem employing backed dated and forged documents as

well as TILA “Material Loan Disclosures”. Astonishingly, it seems Defendant, ALS

created these, backdated in their name, regardless of their later claims only to have been

the “SERVICER” of the plaintiff’s loan as of May 01, 2006. (See Exhibit C)

14.By fact and by the Defendants own admissions, Defendant ALS was never a party to the

loan closing and had professed in writing to have never been party to the loan closing, (),

5

and undisputed; ALS insisted they had only “acquired” service of plaintiff loan on May

01, 2006. These facts clearly foreclose even the remotest possibility that the backdated

disclosures could ever have been given, thus further supporting plaintiffs’ fraud

allegations. ALL Defendants named and as of yet unnamed, patently had notice as to

these “Material Disclosures and Alterations” made to plaintiffs loan.

15.Plaintiff s have discovered documents that were created by either one of the stated

defendants, MERS, ALS, CAL WESTERN, unnamed Defendants, Fannie Mae,

CitiMortgage, or defunct Defendants, USB, LBB, Principal Residential Mortgage, which

seems to have been used while they were not signed by or known to be in use by actual

Plaintiffs’ at time of alleged usage and creation. (Exhibit marked A & C)

16.By use of these multiple documents, Defendants breached multiple duties to Plaintiffs’,

and ultimately are trying to pursue illegal foreclosure as well as to accomplish the

receiving of unlawful gains. Prior to Defendants ALS servicing of plaintiffs loan, USB

purported a “sale” and transfer of interest to LBB, and Defendants ALS, purported to

have help initiate and complete this action in course of fraudulent loan originations, they

transferred plaintiffs loan servicing to themselves with the help of UBS knowing full well

that they were just the vehicle being used to “purchase” the loan for LBB and therefore

ALS became the “Master Servicer” to do with as they please and then ALS assigned the

instruments to LBHI in pools of loans. ALS helped in origination of these loans for LBB

and LBHI that were then sold as securities to Wall Street. In this case according to ALS,

MERS, LBHI, the Plaintiffs loan was purchased by Lehman and then during some point,

sold to Fannie Mae on May 31, 2006.( See Exhibits) Plaintiffs have other records

6

received during the origination of the loan that “FANNIE MAE” was already and

investor on this property’s’ loan though prior to refinance of March 2006.

17.Defendants ALS, MERS, CAL WESTERN and their affiliates, assignees, co-companies,

LBB, FANNIE MAE, LBHI and unknown John Does, benefited from their subordinate

thrifts and servicing agents frauds and received as a direct and proximate result thereto

the “Fruits of these Frauds”. Upon information and belief, at some unknown time and

date, between 1999-2006 (present life of loan by Plaintiff at stated time) and before, or

during loan closing, an Interim Flow Servicing Agreement was employed by defendants

and affiliates, during and/or after the closing of the loan in which the loan was

transferred/sold multiple times Material Alterations to the loan Deed of Trust, Note and

Related “Loan Documents” took place during the servicing of the loan with ALS and was

further by their affiliated servicing entity,., however none of these nor any assignments

were indorsed on the loan instrument or permanently affixed to the instrument and note,

pursuant to Uniform Commercial Code § 3-204.

18.What is more, these “Material Alterations” to the loan terms and documents, were

exacted by Defendants, collectively when intending to extort by illegal conversion,

(declaring payment defaults that never existed), of Plaintiffs property employing

torturous slander of title and conversion by way of having their servicing agents illegal

foreclosure actions despite no default in mortgage payments and or contract. In the

process of defendants executing their illegal property conversion scheme against

Plaintiffs home and real property, debtors and even their subsequent loan servicer IBM

LENDER PROCCESSING SERVICES., made and have still not made, any mandatory

7

II. PLAINTIFFS

disclosures as required by TILA and state laws as to these materially altered terms and

further issued no new “Notice of Right to Cancel” as mandated by TILA.

19.The Plaintiffs never received the “Mandated”, “Material Truth in Lending Disclosures”,

Subpart B, Regulation Z, as to the loans Interest Rate, Amount Financed, Payments and

Payment Schedules and Total Cost of Credit, as of the March 21, 2006 closing of the loan

secured by plaintiff residence. Plaintiff Borrowers statutory TILA remedy of rescission

and relief cannot be avoided by the “Purchaser” known now to purportedly be LBB

and/or USB, and LBB/LBHI’S filing of bankruptcy given that Statutory and Regulatory

remedies are not protected by bankruptcy and are non-dischargeable.

20.Plaintiff SCOTT MISENHELTER is the legal owner of 234 E HEATHER AVE,

GILBERT, AZ, 85234, (“the Subject Property”). The legal description of the Subject

Property is, LOT 193, VILLAGE TWO, according To Book 198 Of Maps, Page 25,

records of Maricopa County, Arizona.

and loan number, No. 45060325, (see Deed of Trust Exhibit C Attached), assigned to the

loan on March 16, 2006. Second loan number assigned after loan ‘Alterations” recorded

in land records of Maricopa County records in assignment to substitution trustee, and

notice of default, Loan No.xxxxxx6990, Deed of Trust. Known ALS # 0032686990, Now

yet another Loan No. 10799049 by unknown means to new serving entity, IBM Lender

Business Process Services on or about 08/01/2010.

23. The Plaintiffs seek affirmative damages, damages by way of recoupment, punitive

damages, costs, fees and such other statutory relief against all Defendants pursuant to:

a. UCC § 3-204, Instrument Not Instrument of Negotiation;

8

b. UCC § 3-407 Alteration with Fraudulent Intent to

Convert Property Instrument Extinguished;

c. Quiet Title;

f. TILA – Treble Damages and Order Identifying Truth in Owner, Real Owner.

WHEREFORE, Plaintiff demands judgment against Defendants for the following relief:

A.An injunction preventing ALL DEFENDANTS and John Does from entering the

property or attempting to take any action to take possession of the property

B.Order Defendant to terminate its security interest in the Residence and set-aside of

foreclosure sale as an equitable remedy or, alternatively, damages to Plaintiff

resulting from the wrongful foreclosure or breach of contract as a remedy at law;

C.Compensation to Plaintiff for Defendants’ Gross Negligence, violations of the Duty of

Good Faith and Fair Dealing, Abuse of Process and/or Maliciousness, Fraud,

Fraudulent Concealment, Fraudulent Misrepresentation, Negligent Misrepresentation,

Conspiracy to Commit Mortgage Fraud Punitive damages against Aurora Loan

Services,

D.Statutory damages for violations of the Truth In Lending Act and the Real Estate and

Settlement Procedures Act; and Compensation to Plaintiff for fees, court costs, and

such other relief as this Court may deem appropriate.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s