! "!

Bret D. Landrith
Plaintiff appearing Pro se
9743 Sagamore Rd,
Leawood, KS 66206
Cell 913-951-1715
bret@bretlandrith.com

IN THE DISTRICT COURT OF JOHNSON COUNTY, KANSAS

THE BANK OF NEW YORK )
) Case No. 10CV1749
v. )
) Court Number: 2
JEFFERY ALLAN BASLER, et al )

DEFENDANTS MOTION TO SET
ASIDE SALE AND JUDGMENT UNDER K.S.A. 60-309

Comes now the defendant, BRET D. LANDRITH as the successor in interest to
JEFFERY ALLAN BASLER, the defendant and makes the following Notice to Set Aside
the Sale and Judgment.
The defendant BRET D. LANDRITH refers the court and parties to his
accompanying Answer asserting a separate an independent basis for continuing
jurisdiction of this court to resolve post sale issues in equity and the defendant
incorporates by reference the evidentiary documents and the attested facts in his Notice
Of Successor In Interest And Motion For Extension Of Time To Answer:
STATEMENT OF FACTS
1. The defendant Bret D. Landrith, a citizen of the State of Kansas is an arms length
buyer in good faith of the property on 8-1-2011 that is the subject of this litigation is lot
330, Leawood Estates, a subdivision in Leawood, Johnson County, Kansas, according to
the recorded plat thereof, commonly known as 9743 Sagamore Road, Leawood, KS
Exhibit 8 LANDRITH KS Motion to Set Aside Foreclosure
! #!
66206 (the Property). See Attachment 1 Defendants Affidavit of Lack of Knowledge
and Structural Engineering Defect.
2. The defendant came to check the Johnson County registration of deeds in person
and determined JEFFERY ALLAN BASLER was the registered owner.
3. The defendant checked the Johnson County civil action database for a foreclosure
action against Basler and did not see it.
4. The defendant was told by JEFFERY ALLAN BASLER who resides in the State
of Missouri that he did not know whether there was a foreclosure or not.
5. The record as best can be deciphered by the defendant from the appearance
docket history does not show service of process with return of service on JEFFERY
ALLAN BASLER other than by publication.
6. The interest foreclosed upon, any purported interest in the property or alleged
right to foreclose held by the trust THE BANK OF NEW YORK is acting as an agent for
was purchased by THE BANK OF NEW YORK.
7. The US District Court for The District of New Jersey in a bankruptcy proceeding
applying materially identical state UCC law with Kansas, determined in a finding of fact
that Countrywide Homeloan, Inc. engaged in a pattern and practice of retaining mortgage
notes and not delivering them to the trusts as represented by THE BANK OF NEW
YORK in court proceedings, and found that at law, the trust lacked the right to foreclose
or to otherwise enforce the note. See Attachment 2 Kemp v. Countrywide Home Loans,
Inc., 440 B.R. 624 (Bankr. N.J. 2010).


! $!
MEMORANDUM OF LAW
A sale and judgment of foreclosure obtained on publication service through
default may be set aside under K.S.A. 60-309 within two years of its issuance. Facts have
come to light providing a basis to question the standing of THE BANK OF NEW YORK
and its right to foreclose and whether any valid interest in the 9743 Sagamore Road is
held by its principal.
Neither the defendant BRET D. LANDRITH nor his predecessor in interest
JEFFERY ALLAN BASLER can be found to have acquiesced in the sale or judgment:
[O]ur court has recently held that failure to participate in the foreclosure sale or to
seek a stay does not constitute acquiescence in the judgment. Citifinancial
Mortgage Co. v. Clark, 39 Kan.App.2d 149, 155-57, 177 P.3d 986 (2008).

Deutsche Bank Nat. Trust Co. v. Rooney, 186 P.3d 820 (Kan. App., 2008).
The address of JEFFERY ALLAN BASLER was easily ascertainable and is how
the defendant BRET D. LANDRITH found him and succeeded in interest as the
purchaser of the 9743 Sagamore Road property:
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K.S.A. 60-309:!
K.S.A. 60-309 (default judgment based on publication service may be set aside
within two years of judgment if party had no actual notice).
! @!

Bank Western v. Henderson, 255 Kan. 343, 874 P.2d 632 (Kan., 1994).

The defendant has a colorable defense to a foreclosure action by THE BANK OF
NEW YORK on behalf of a trust claiming a secured interest and right to foreclose
resulting from a Countrywide Mortgage.
The Kansas Supreme Court has stated that a foreclosure could be repudiated as
fraudulent where the mortgagee does not have any right in the mortgage:
"When plaintiff [assignee] discovered what Haas [assignor] had done, it could
choose one of two courses of action: It could repudiate the foreclosure proceedings
on the ground of fraud, and itself foreclose the Caskey mortgage; or it could confirm
the regularity and validity of the foreclosure proceedings as vesting title in Haas
[assignor], and hold him as trustee of the title for plaintiff's benefit." 127 Kan. at
242, 273 P. 477.
The first course of action is supported by Mutual Benefit Life Insurance Co. v.
Huntington, 57 Kan. 744, 48 P. 19 (1897). Once the mortgage is assigned, the
mortgagee/assignor no longer has any right in the mortgage, and any judgment the
mortgagee/assignor obtained would have been fraudulent.

Bank Western v. Henderson, 255 Kan. 343, 874 P.2d 632 (Kan., 1994).
It is clearly established that a lack of standing of an entity purporting to foreclose
on a mortgage for another party lacking a valid assignment of rights under the note
negates subject matter jurisdiction of this court and can be raised at any time:
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4-*+9<!1*!+()!:1>*+!1,!5+/!17,!.1+51,<!.-9!*-5/)!-+!-,9!+5.)&!*+%,""-&$'&
.#/0#)#%<!#S$!F-,&!$SL<!$LI<!"H$!J&$0!"##I!M#KKIO&G!
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1+%02#2"&3/"4'&5"26-0%#06+7&89-'&:74&$'&;%#,#<!MF-,. App., 2010).
K.S.A. 84-3-301 is materially identical to N.J.S.A. 12A:3-301 found to bar New
York Banks right to enforce the note. K.S.A. 84-3-301states:
84-3-301: Person entitled to enforce instrument. "Person entitled to enforce" an
instrument means (a) the holder of the instrument, (b) a nonholder in possession of the
instrument who has the rights of a holder, or (c) a person not in possession of the
instrument who is entitled to enforce the instrument pursuant to K.S.A. 84-3-309 or 84-3-
! H!
418(d). A person may be a person entitled to enforce the instrument even though the
person is not the owner of the instrument or is in wrongful possession of the instrument.
There being no independent buyer in good faith prevailing at the sheriffs sale, the
parties would not be prejudiced in a lawful possessory interest by setting aside the sale
and foreclosure judgment.

Respectfully submitted,
________________
Bret D. Landrith
Defendant appearing Pro se

CERTIFICATE OF SERVICE
I certify I have mailed a copy of the above pleading to counsel for the plaintiff THE
BANK OF NEW YORK on September 12, 2011.
South and Associates, PC
Brian P. Hazel
6363 College Blvd. Suite 100
Overland Park, KS 66211
Brian.Hazel@southlaw.com

________________
Bret D. Landrith
Defendant appearing Pro se

! "!
IN THE DISTRICT COURT OF JOHNSON COUNTY, KANSAS

THE BANK OF NEW YORK )
) Case No. 10CV1749
v. )
) Court Number: 2
JEFFERY ALLAN BASLER, et al )

AFFIDAVIT OF NO ACTUAL KNOWLEDGE
OF FORECLSOURE AND OF STRUCTURAL ENGINEERING DEFECT

I, BRET D. LANDRITH, a citizen of the State of Kansas attest to the following
related to the property at 9743 Sagamore Road, in the City of Leawood, Johnson County
Kansas:
I am an arms length buyer in good faith of the property which is the subject of
this litigation is lot 330, Leawood Estates, a subdivision in Leawood, Johnson County,
Kansas, according to the recorded plat thereof, commonly known as 9743 Sagamore
Road, Leawood, KS 66206 (the Property).
Before offering to buy the property, I went to check the Johnson County
registration of deeds in person and determined JEFFERY ALLAN BASLER was the
registered owner.
I then went home and checked the Johnson County civil action database for a
foreclosure action against the name Basler and did not see it, the screen showed only a
few cases, not a foreclosure action and I made a PDF of the screen search result which I
later included as an attachment to my motion for an extension of time to answer the
foreclosure.
I went to the last address of the registered owner JEFFERY ALLAN BASLER
who resided in the Plaza area of the City of Kansas City in the State of Missouri and left
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a message on his door answering intercom that I was interested in purchasing whatever
rights he had in the 9743 Sagamore Road property.
He telephoned me and we exchanged email addresses so I could send him my
offer and a proposed quit claim deed.
Later we arranged to meet where I explained my research to him on who was the
registered owner of the 9743 Sagamore Road property.
JEFFERY ALLAN BASLER stated he had no knowledge on whether there was a
foreclosure action on the 9743 Sagamore Road property.
JEFFERY ALLAN BASLER disclosed he had built the current house at 9743
Sagamore Road in 2006 with the desire to resale it on part of the foundation of an older
existing home he had purchased.
I asked about the shoring on the North all of the basement and about water I saw
through the South East basement window where no sump system appeared to be cast in
the basement floor concrete.
JEFFERY ALLAN BASLER disclosed that the drainage systems excavated for
the property had failed and the buyers inspection prior to closing revealed two feet of
standing water in the basement resulting in the sales contract being revoked.
JEFFERY ALLAN BASLER disclosed that a childhood friend of his who had
done much of the construction of the current house had re excavated the South East
corner in an attempt to fix the problem.
I relied on the information about the house including the flooding problem
resulting from the construction of the basement foundation in the South East corner of the
structure, the need to have had the North wall of the basement shored because of use of
! $!
part of the existing concrete basement foundation in the 2006 reconstruction of the house
by his childhood friend, and the lack of any knowledge of a foreclosure action or
judgment given to me by JEFFERY ALLAN BASLER at this meeting to reach an
outright cash purchase price of $6,000.00.
I paid JEFFERY ALLAN BASLER while he executed the Quit Claim Deed to me
on the afternoon of August 1, 2011.
Later that day, I rechecked everything and discovered a foreclosure action was on
the electronic record and sent two emails to JEFFERY ALLAN BASLER seeking return
of the funds but did not obtain them. See Exb. 1.
I returned to the property after a light afternoon rain in August 12, 2011 and took
a picture through the basement window at the South East corner of water standing on the
floor of the basement. See Exb. 2

State of Kansas_ )
)
County of Johnson )

Signed and affirmed before me on Month of September, day of _____2011 by

__________________
Bret D. Landrith
Affiant
_________________________________
(Signature of notarial officer)
(Seal, if any)
_________________________________
Title (and Rank)
Monday, September 12, 2011 12:51 PM
Page 1 of 1
!"#$%&'()*%()+,-).%/0)
1,'%()1uesday, AugusL 2, 2011 9:47 AM
2345()8reL LandrlLh <breL[breLlandrlLh.com>
64()"bauerup1974[yahoo.com" <bauerup1974[yahoo.com>

l wlll reLurn Lhe qulL clalm Lo you and noL reglsLer lL lf you reLurn Lhe funds, less compensauon
for your ume and eorL.


Cn 8/2/11 6:46 AM, "bauerup1974[yahoo.com" <bauerup1974[yahoo.com> wroLe:


Ch no.....bad news. WhaL do you propose.
SenL from my P1C on Lhe now neLwork from SprlnL!

----- 8eply message -----
lrom: "8reL LandrlLh" <breL[breLlandrlLh.com>
uaLe: 1ue, Aug 2, 2011 1:43 am
Sub[ecL: 8ad news
1o: "!e 8asler" <bauerup1974[yahoo.com>

!e

l found Lhe foreclosure already Look place and Lhe sherl's sale has been
conrmed. l wlll noL be able Lo challenge Lhe lawfulness of Lhe morLgage aer lL
wenL Lrough ML8S. See auached case hlsLory (Lhe case dld noL Lurn up on Lhe
onllne search l dld before maklng Lhe oer Lo you).

Also your redempuon perlod may have been as llule as Lhree monLhs, now explred.
l have auached a page explanauon from Lhe kansas AC's omce LhaL explalns Lhe
umellne and LhaL Lhe sherl's sale deed ls noL granLed unul Lhe redempuon perlod
explres.

l Lhlnk you would have Lo nd a house before Lhe foreclosure was led or sLep lnLo
Lhe shoes of someone and answer and defend agalnsL foreclosure.

8reL

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