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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF ALABAMA

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In re
JOHN DOE;
Debtor,

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FEDERAL NATIONAL MORTGAGE

ASSOCIATION (FANNIE MAE)
AND DOES I-X INCLUSIVE,
Creditor,

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)Case No.
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)Adv. No
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)OPPOSITION TO MOTION FOR
RELIEF FROM STAY AND MOTION
TO STRIKE AFFIDAVIT FILED BY
COUNSEL FOR FANNIE MAE
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JOHN DOE, The debtor files this Objection to Motion for Relief from

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Stay filed by Fannie Mae and Motion to Strike Affidavit filed by counsel for

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Fannie Mae regarding debtors foreclosure.

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John Doe
Opposition to Motion for Relief from Stay

COMES NOW the Debtor, objects to the Motion for Relief From Stay

filed by Federal National Mortgage Corp (Fannie Mae) (herein referred to as

Fannie Mae) and moves the Court to strike the Affidavit filed by counsel

for the Fannie Mae which asserts that Debtor accepted a settlement offer

to vacate her property in her State action.

OBJECTION TO MOTION FOR RELIEF FROM STAY

1. Fannie Mae has no standing to bring this action because the real

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estate mortgage described in and attached to the Motion of Fannie Mae

(herein referred to as the Mortgage)on the principal residence of Debtor
(herein referred to as the Property) was given by Debtor and her husband
to the Mortgage Electronic Registration Systems, Inc (MERS) as nominee
for CENLAR FSB, a Alabama corporation. (herein referred to
CENLAR).There is no assignment from CENLAR FSB to JPMorgan or to

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Fannie Mae and, accordingly, CENLAR is the real party in interest and

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Fannie Mae has no standing. While there is no assignment from MERS to

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JPMorgan, only CENLAR is the proper party to assign the Mortgage and

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associated note. As nominee MERS has no authority to assign the Note and

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Mortgage despite any language to the contrary in the Mortgage.

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2.

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ownership of the DOT via securitization on Plaintiffs loan on the secondary

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market. If this is the case then JPMorgan and Fannie Mae is barred from

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foreclosing on homeowners in nonjudicial states because it denies the

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JPMorgan claims to be servicer for Fannie Mae which claims to have

homeowners rights under the Fifth Amendment to the U.S. Constitution.

3.

JPMorgan did not hold the power of sale of the Mortgage and no

evidence has been presented that it holds such power of sale because MERS
is not qualified to do business in Alabama and never paid a mortgage tax
on the assignment of the Mortgage to MERS or subsequently to JPMorgan or
to Fannie Mae.

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John Doe
Opposition to Motion for Relief from Stay

4.

Debtor, JPMorgan allege MERS assigned Debtors Deed of Trust to JPMorgan,

therefore causing JPMorgan to foreclose on Debtors property.

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and is the holder of the CENLAR note.

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evidencing the transfer of the mortgage from CENLAR to JPMorgan.

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7.

In 2009 JPMorgan initiated a nonjudicial foreclosure sale against

Fannie Mae claims it purchased Debtors mortgage at foreclosure sale

The foreclosure was invalid because there was no chain of title
Fannie Mae is chartered by congress and their respective charter say

they are exempt from all state taxes,are now under the oversight of the
U.S. Treasury since 2008 (FHAF answers to the U.S. Treasury).
8.

Debtor defaulted on the mortgage and JPMorgan foreclosed under the

advertisement statute, Fannie Mae allege it purchased the property at a

sheriff's sale and the property vested in Fannie Mae, on September 8, 2009.
9.

The Federal Housing Enterprises Financial Safety and Soundness Act

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of 1992 governs Fannie Mae. Congress amended the Safety and Soundness

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Act by enacting the Housing and Economic Recovery Act of 2008 (HERA),

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which enables the Federal Housing Finance Agency (FHFA) to act as

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conservator or receiver of Fannie Mae. FHFA placed Fannie Mae into

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conservatorship in September 2008.

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10.

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Court in Bismarck 314 U. S.at 102) According to Bismarck, any

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constitutional exercise of Congress delegated powers is governmental [and]

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when Congress constitutionally created a corporation through which the

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Fannie Mae are federal instrumentalities as defined by the Supreme

federal government lawfully acts, the activities of such corporation are

governmental, and therefore the corporations, like Fannie Mae and Fannie
Mae are federal instrumentalities. Id.at *20.
11.

Fannie Mae, and their servicers who they assign temporary ownership

to must foreclose judicially. This means that Fannie Mae and their servicers
must sue the homeowners to take possession like they do in Florida, New
Jersey, New York and Pennsylvania. Homeowners have a right to due
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John Doe
Opposition to Motion for Relief from Stay

process under the laws and Fannie Mae is subject to due process

requirements.

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Amendment's Due Process Clause and have violated Debtors civil rights.

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Mortgage and accordingly has absolutely no right, at law or equity, to

enforce the Note and Mortgage.

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14.

JPMorgan and Fannie Mae is liable for violation of the Fifth

Fannie Mae and JPMorgan was not a holder of the Note and

The date of the Assignment from JPMorgan to Fannie Mae is

November 2, 2014, which is after the date the bankruptcy was filed but
Cinlar had required debtor to make payments to CENLAR a substantial time
before November 2, 2009 foreclosure, which calls into question the validity
of the last minute assignment of the Note and Mortgage from MERS to
JPMorgan.
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Upon information and belief, this Note and Mortgage were part of a

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pooled investment and were one time held by 100s if not thousands of

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investors through a derivative security pool and each of whom would be

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required to assign the Note and Mortgage back to CENLAR before MERS

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could assign to JPMorgan.

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be joined in the Motion for relief to be granted. These necessary parties are

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CENLAR and MERS, as well as the 100s if not thousands of investors in the

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pooled derivative trust which,upon information and belief, this Note and

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There are necessary parties who have not been joined and who must

Mortgage were a part. The power of sale is ostensibly held by MERS and
MERS is not a party and there is no proof that the power of sale was
transferred with the Note and Mortgage, and, in fact, there is no proof that
the Note and Mortgage were ever properly negotiated to JPMorgan or to
Fannie Mae.
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MERS allegedly assigned the Mortgage and Note to JPMorgan but such

assignment did not include the power of sale that was ostensibly granted to
MERS.
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John Doe
Opposition to Motion for Relief from Stay

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Court could not grant termination of the stay because, upon information

and belief, based largely upon the existence of MERS as nominee under the

Mortgage, this Mortgage and the associated Note are one of those

instruments transferred to a pass through pool of investors who then

created a trust and resold parts of the loan pool to various tranches of

derivative securities. These derivative securities may then have been sold

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Even if the three primary parties mentioned above were joined, the

and resold. Accordingly, Fannie Mae has absolutely no right to bring this
case or, even if it does, it cannot obtain a judgment or any other relief as
the right to recover on the Note and Mortgage has been pledged to
hundreds, perhaps thousands, of other investors in the pool. Alternatively,
Fannie Mae may only have rights to the Note and Mortgage as security
position itself, in which case it is not the proper holder to bring this

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action.

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section 35-10-12 (1975) in that the persons entitled to the money thus

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secured have not been located and perhaps scattered throughout America

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and the world. Compare Crum v LaSalle Bank, NA, No.2080110 (Ala.Civ

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App. 2009).

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failure of MERS to be a party renders the rights of JPMorgan and Fannie

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Mae nonexistent.

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20.

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Any foreclosure of a pooled mortgage would violate Ala Code

MERS is a necessary and indispensable party to this action and the

JPMorgan is not a valid continuation of or successor in interest to the

original mortgagee, who was MERS as nominee for CENLAR (not JPMorgan),
despite the purported last minute assignment from MERs to JPMorgan. This
is because the fourth paragraph of the Mortgage attached as exhibit B to
states, in part, as follows:for this purpose, Borrower does hereby
mortgage, grant and convey to MERS (solely as nominee for Lender and
Lenders successors and assigns) and to the successors and assigns of

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MERS, with power of sale. (emphasis supplied) This language should be

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interpreted to mean that only Lender (CENLAR FSB)could rightfully assign

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John Doe
Opposition to Motion for Relief from Stay

the Note and Mortgage to JPMorgan and not MERS. The language

mentioning MERS successors and assigns should be interpreted to mean an

entity that succeeds to MERS in its entirety. It should not be interpreted to

allow MERS to execute individual assignments from its principal to another

successor lender like it tried to do in this case. See Argent Classic

Convertible Arbitrage Fund, LP v. Countrywide Financial Corp 07-CV-07097

(CD CA 2009).

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21.

MERS is a necessary party and is not qualified to do business in

Alabama and, accordingly, may not sue on any contract in Alabama since
MERS does considerable business in Alabama. In fact, MERS was formed for,
inter alia, escaping mortgage transfer taxes that otherwise would have been
required to pool investments such as the Mortgage.
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Fannie Mae will find it impossible to prove that it is a holder in due

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course of the Note and Mortgage and hence it is subject to any of the

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foregoing defenses that are deemed substantive and not jurisdictional. Most

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importantly, for JPMorgan to be able to foreclose and for Fannie Mae to file

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a motion for relief from stay, there would have to be a valid assignment

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from CENLAR to JPMorgan and the assignment from MERS to JPMorgan is

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ineffective for any purpose.

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substantive assignment transactions on behalf of its principal. Instead, it

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was only given the power of sale for CENLAR, and was not given the right

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There is no authority or apparent authority for MERS to undertake

to assign CENLARs rights to another.

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There is absolutely no evidence that the original Note has been

endorsed or that an allonge has been signed and affixed to the Note in any
manner effective to make JPMorgan or Fannie Mae a holder of the Note
much less a holder in due course of the Note. See UCC 7-3-201.11.
25.

The Note was a negotiable instrument under Alabamas Uniform

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Commercial Code and the Fannie Mae did not properly acquire the Note via

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negotiation. See Union Bank & Trust Co. v Thompson, 202 Ala. 537, 81 So.
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John Doe
Opposition to Motion for Relief from Stay

39, 40 (1919) and Crum, supra. See also, Alabama Code Sections 7-3-

104(a) and 7-3-301.12. In order to endorse a note, the current holder must

either sign the instrument itself or an allonge (a paper so firmly affixed to

the note that it becomes part of the note).See, e.g. Crossland Sav. Bank

FSB v. Constant, 737 S.W. 2d 19 (Tex Ct.App. 1987). The text of the UCC

suggests mere assignment of an instrument is not sufficient to make the

assignee a holder. This is because when an instrument is assigned, it is not

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necessarily endorsed to the assignee. Courts have supported this

interpretation and in a bankruptcy proceeding, one court held that
assignment alone does not make the note owner a holder in the absence of
endorsement and delivery to the person currently in possession. In re
Governors Island, 39 B.R. 417 (Bankr E.D.N.C. 1984)(holding mere
assignment of a note without endorsement by the notes previous owner

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prevents the notes current owner from being a holder of the note). Without

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status as a holder, one can never be a holder in due course. There is no

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evidence whatsoever, and, indeed, Fannie Mae will not be able to produce

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any evidence a clear chain of title was ever recorded in public records and

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that it is the holder of the Note or Mortgage and will not be able to show

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the court the loan servicer JPMorgan conducted a judicial foreclosure as

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required as an agent or trustee of a securitized trust, neither can Fannie

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Mae show the court it's agent/loan servicer JPMorgan conducted a judicial

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foreclosure on behalf of Fannie Mae's securitized trust against Plaintiff in

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violation of the Fifth Constitutional amendment.

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Alternatively, even if the alleged assignment from MERS to JPMorgan

or to Fannie Mae is deemed to be within the authority of MERs (which

debtor strongly disputes), if the assignment is not firmly affixed to the
Note, there has not been a valid endorsement. See Adams v Madison
Realty & Development, 853. F.2d 163 (3rd Cir 1998).
27.

MERS was created to facilitate the easy transfer of equity

participation rights in mortgages and notes, but overlooked was the law on
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John Doe
Opposition to Motion for Relief from Stay

the proper transfer of instruments in the various states, including Alabama,

and when MERS is named as a nominee with a power of sale and no more,

it does not have the authority to transfer or assign the underlying

instrument from lender to lender. Transfers and assignments from lender to

lender must be conducted by each lender and not its power of sale

nominee.

28.

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There is no evidence contained in Fannie Maes Motion that would

indicate that MERS or JPMorgan has any right to transfer, assign foreclose
judicially or nonjudicially or to sale the Note and Mortgage. Even if the
Court holds that MERS does have that right, there is no evidence in the file
to indicate that CENLAR directed MERS to assign this Note and Mortgage to
JPMorgan or to Fannie Mae.
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Finally, there have been serious questions raised concerning the

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execution of documents by lenders and MERS by what are being referred to

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as robosigners to the point that numerous jurisdictions have suspended

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all foreclosures. Moreover, the fact that JPMorgan was collecting payments

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from debtor for several months prior to November 2,2009, the assignment

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from MERS to JPMorgan was executed only after Debtors Federal civil

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complaint for wrongful foreclosure was filed. Moreover, the person signing

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the assignment has a title of Vice President. This leads to the inevitable

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conclusion that the assignment filed in this case by JPMorgan was not done

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in the ordinary course of business of MERS or CENLAR for that matter.

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30.

WHEREFORE, the Court is respectfully requested to deny Fannie Maes

Motion for Relief From Stay until such time as Fannie Mae can show a valid
chain of title to the Note and Mortgage which would require, at a very
minimum, an assignment from CENLAR to MERS from MERS to JPMorgan
and some evidence that the Note and Mortgage were not sold as a
derivative investment.
31.

Debtor asserts she was cohursed into accepting a settlement offer

although Debtor stated to Fannie Mae's counsel and the state judge she
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John Doe
Opposition to Motion for Relief from Stay

wished to appeal. Debtor notified Fannie Mae's counsel she rejected the

settlement offer, and therefore debtor did not misrepresent anything.

Debtor remains in possession of the payment received from Fannie Mae.

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Fannie Mae and moves that it be struck from the record in this case.

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served no purpose in this case as debtor indicated that she was not going

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Debtor therefore objects to the affidavit submitted by counsel for

Debtor asserts that the affidavit submitted by counsel for Fannie Mae

to surrender the home,and debtor therefore asserts that the affidavit was
filed to vex and harass debtor and to call into question the veracity of
debtor.
34.

Even though the opinion of counsel for Fannie Mae as to debtor

accepting a settlement offer to surrender debtors home has absolutely no

relevance to this case, it should be struck from the record as vexatious,

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harassing and irrelevant and because it negatively affects the truth and

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veracity of debtor.

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WHEREFORE, debtor respectfully requests this Court to strike the Affidavit

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re debtor accepting a settlement offer, document number 22 in this action,

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on the grounds stated above.

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November 20, 2014.

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________________________
JOHN DOE, Debtor

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CERTIFICATE OF SERVICE

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John Doe
Opposition to Motion for Relief from Stay

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I JOHN DOE do hereby certify that on the 20th day of November 2014

I caused a copy of the foregoing document to be served upon the

parties listed in the attachment, by mailing a copy of Debtors

Opposition to Motion for Relief from Stay, by first class mail to :

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_____________________________
JOHN DOE, Debtor

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John Doe
Opposition to Motion for Relief from Stay