CASE NO.

10CV122
MOTION TO AMEND MOTION TO STRIKE PLAINTIFFS MOTION TO SUBSTITUE PARTY PLAINTIFF

Kellylhansen143@gmail.com

IN THE DISTRICT COURT OF DOUGLAS COUNTY, KANSAS

CIVIL COURT DEPARTMENT
METLIFE HOME LOANS, A DIVISION OF
METLIFE BANK, N.A.
Plaintiff,
vs.
C.T. & KELLY L. HANSEN;
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WELLSVILLE BANK;
UNITED STATES OF AMERICA
DEFENDANTs and
Counterclaim
Plaintiffs, Pro Se

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ATTORNEYS COPY
Case No. 2010 CV 122
Hon. Robert W. Fairchild
DIV I K.S.A. 60
TITLE TO REAL ESTATE
INVOLVED
MORTGAGE FORECLOSURE

MOTION TO AMEND MOTION TO STRIKE

PLAINTIFFS MOTION TO SUBSTITUE PARTY PLAINTIFF
COME NOW, Clarence G. Hansen and Kelly L. Hansen (DEFENDANTS), Pro Se, and
moves this Court to deny MetLife Home Loans, a Division of MetLife Bank, N.A.
(PLAINTIFF) Motion to Substitute Party Plaintiff, and as grounds therefore states:
In searching the Kansas Statutes, Defendants can only find K.S.A. 60-255, and
amendments thereto, in reference to a substitution of party plaintiff, and the statute is applicable
only if a party dies. Because the Plaintiff did not refer to another Kansas Statute or any Kansas
case law in support of its motion, DEFENDANTS offer the following statements in support of
their motion to strike:
1.

If MetLife has assigned or sold Defendants Note to any entity under K.S.A. 84-3-

302(1)(2)(C)(D)(E)(F)1 the entity accepting Defendants note would not be a holder in due
course as it took the security interest in the Defendants note subject to the same infirmity that
was present when it was held by MetLife. The accepting entity may not recover on the Note.

1 HURST ENTERPRISES, LLC, d/b/a Mr. Payroll Check Cashing, Appellant, v. Bryan CRAWFORD, an
individual, Cactus Roofing, LLC, Appellees.

CASE NO. 10CV122

MOTION TO AMEND MOTION TO STRIKE PLAINTIFFS MOTION TO SUBSTITUE PARTY PLAINTIFF

Kellylhansen143@gmail.com

2.

Pursuant to the Kansas Statute of Frauds; Fraudulent Conveyances, Chapter 33, Article 1,

transfers to delay or defraud are deemed utterly void and of no effect:

K.S.A. 33-102: Transfers to delay or defraud creditors or purchasers. Every gift, grant or
conveyance of lands, tenements, hereditaments, rents, goods or chattels, and every bond,
judgment or execution, made or obtained with intent to hinder, delay or defraud creditors
of their just and lawful debts or damages, or to defraud or to deceive the person or
persons who shall purchase such lands, tenements, hereditaments, rents, goods or
chattels, shall be deemed utterly void and of no effect.
3.

The Plaintiff has failed to make a prima facie showing it holds an interest in the

Defendants Note.
4.

At the Case Management Hearing on August 16th, 2010, Counsel for Plaintiff

stated there had been an additional assignment subsequent to the assignment to IBM Lender
Processing Services that took effect on May 1, 2010. In a transcript from the hearing, on page 4,
Mr. Robert M. Swiss, Counsel for MetLife advised Fannie Mae will now be substituted as the
party plaintiff. We havent filed a motion to substitute the plaintiff yet; we are waiting for the
affidavits showing that the note has been assigned . . . which I expect to be filed in the next
couple of weeks as soon as we get that affidavit finalized. The assignment to Fannie Mae was
made on July 26, 2010. Plaintiff announced it to the Court on August 16, 2010. Mr. Swisss
motion to substitute party plaintiff is not timely. Defendants request it be denied. A copy of
page 4 from the transcript of the Case Management Hearing is attached hereto as Defendants
Exhibit A and is incorporated herein by this reference.
5.

MetLife, if it sold a purported interest to Fannie Mae (and the DEFENDANTS

aver the Plaintiff holds no interest to sell) the DEFENDANTS move this Court to ORDER the
Plaintiff to put back to Fannie Mae its purported interest. There is no justification to substitute
party plaintiff this late in litigation at the caprice of the Plaintiff.

CASE NO. 10CV122

MOTION TO AMEND MOTION TO STRIKE PLAINTIFFS MOTION TO SUBSTITUE PARTY PLAINTIFF

Kellylhansen143@gmail.com

6.

The court in Landmark Natl Bank v. Kesler (September, 2009) noted that investors

that purchased loans from MERS should not be allowed to:

obscure[e] from the public the actual ownership of a mortgage, thereby creating the
opportunity for substantial abuses and prejudice to mortgagors, [and] should not be
permitted to insulate [the mortgage purchaser] from the consequences of its actions in
accepting a mortgage from [the original lender] that was already the subject of
litigation in which [the original lender] erroneously represented that it had
authority to act as mortgagee.2 (Emphasis mine.)
In the instant case, the Plaintiff is the fourth servicer of this mortgage loan and it has
erroneously represented it has the authority to act as mortgagee by selling the DEFENDANTS
Note to Fannie Mae. The Plaintiff has failed to respond to DEFENDANTS repeated requests to
Produce. It has not proven it owns the DEFENDANTS Note, nor that it has standing to bring
this cause of action in this Court, and it certainly has no legal right to sell a purported interest to
Fannie Mae.
7.

Allowing the Plaintiff such a legal maneuver would be prejudicial against the

DEFENDANTS; they have spent the 18 months preparing a defense against METLIFE, not
FANNIE MAE. Plaintiff should not be allowed to force the DEFENDANTS to jump through its
strategic hoops.
8.

The Plaintiff knows, or certainly has reason to know, it is illegal to sell a Note and

Mortgage in default a standard guideline in each of its Securitization Master Pooling and
Servicing Agreements.
9.

Neither METLIFE HOME LOANS nor FANNIE MAE are registered with the

Secretary of State as is required for all entities conducting mortgage business in the state of

2 Landmark Natl Bank v. Kesler, 216 P. 3d at 168 (quoting Johnson v. Melnikoff, No. 10548/2007, 2008
WL 4182397 (N.Y. Sup Ct. Sept. 11, 2008)).

CASE NO. 10CV122

MOTION TO AMEND MOTION TO STRIKE PLAINTIFFS MOTION TO SUBSTITUE PARTY PLAINTIFF

Kellylhansen143@gmail.com

Kansas.3 See DEFENDANTS Answer, Affirmative Defenses, and Counterclaim, 8, and

Plaintiffs Reply to Defendants Counterclaim, 8.
10.

Neither METLIFE HOME LOANS, nor FANNIE MAE are licensed to service mortgage

loans as is required by the State of Kansas Office of the State Bank Commissioner. 4 See
DEFENDANTS Answer, Affirmative Defenses, and Counterclaim, 9 and Plaintiffs Reply to
Defendants Counterclaim, 9.
11.

Plaintiff, on page 15, paragraph 3 of its CROSS MOTION FOR SUMMARY

JUDGMENT, has invoked K.S.A. 9-1121 in a very telling attempt to avoid the evidentiary
requirement of producing the Defendants original Promissory Note. In 2009, The U.S. Supreme
Court established in Cuomo v Clearinghouse, all National Banks, are subject to the laws of the
state in which they are foreclosing 5. See Motion to Amend Motion in Response to Plaintiffs
Cross Motion for Summary Judgment, Pp. 11-13.
DEFENDANTS state a foreclosing Plaintiff must show, at the time the foreclosure action is
filed, that it is the owner or the holder in due course of the DEFENDANTS Note 6 (MERS
cannot assign Notes) with rights to enforce the DEFENDANTS Note and Mortgage and that the
DEFENDANTS default has caused them harm. After an adequate period of discovery, the
Plaintiff has not been able to produce, and will not be able to produce, evidence sufficient to

3 Cuomo v Clearinghouse by US Supreme Court, June, 2009

4 Cuomo v Clearinghouse by US Supreme Court, June, 2009
5 Cuomo v Clearinghouse by US Supreme Court, June, 2009
6 Landmark National Bank v. Kesler, 216P.3d, 166-168

CASE NO. 10CV122

MOTION TO AMEND MOTION TO STRIKE PLAINTIFFS MOTION TO SUBSTITUE PARTY PLAINTIFF

Kellylhansen143@gmail.com

allow the Trier of fact to find the Plaintiff will be able to prove up the ultimate fact elements of
their case.
WHEREFORE, the Defendants respectfully request the Court deny the Plaintiffs Motion
to Substitute Party Plaintiff.
RESPECTFULLY SUBMITTED this Wednesday, February 9, 2011,

Clarence G. Hansen, Defendant

83 E. 1250th Road
Baldwin City, KS 66006 CERTIFICATE OF SERVICE
785-760-2337 Phone
hansencars@msn.com

Kelly L. Hansen, Defendant

33605 W. 88th Street
De Soto, KS 66018
913-529-9837 Phone
866-409-9552 Fax
kellylhansen143@gmail.com
I CERTIFY that this CHAMBER COPY of the foregoing was sent U.S.P.S. overnight

express delivery signature required to Sherry Bernhardt, Administrative Assistant to the

Honorable Robert W. Fairchild on Wednesday, February 9, 2011.
I CERTIFY that this ATTORNEY COPY of the foregoing was provided by fax
transmission to R. Scott Ryburn, Attorney with ANDERSON & BYRD, LLP. Counsel for
WELLSVILLE BANK, delivered to fax 785-242-1279, on Wednesday, February 9, 2011.
FURTHER, I CERTIFY that an ATTORNEY COPY of the foregoing was sent U.S.P.S.
overnight express delivery signature required to Bob Swiss, Attorney with MARTIN, LEIGH,
LAWS & FRITZLEN, P.C., Counsel for PLAINTIFF, on Wednesday, February 9, 2011.
FINALLY, I CERTIFY that this CLERK COPY of the foregoing was sent U.S.P.S.
overnight express delivery signature required to the Clerk of the Douglas County District Court
on Wednesday, February 9, 2011.

Clarence G. Hansen, Defendant

83 E. 1250th Road
Baldwin City, KS 66006
785-760-2337 Phone
hansencars@msn.com

Kelly L. Hansen, Defendant

33605 W. 88th Street
De Soto, KS 66018
913-529-9837 Phone
866-409-9552 Fax
kellylhansen143@gmail.com