Salmon V Bank of America Complaint (Initial Pleading)

1
7 STATE OF WASHINGTON
STEVENS COUNTY SUPERIOR COURT
8
9 ) CASE NO.: 10-2-00596-8

SAMUEL SALMON AND ROXY SALMON, )
10 ) COMPLAINT FOR TEMPORARY
PLAINTIFF, ) RESTRAINING ORDER, PRELIMINARY
11 ) INJUNCTION, PERMANENT
VS. ) INJUCTION, FORGERY, AND
12 ) REMUNERATION
BANK OF AMERICA, RECONTRUST, )
13 )
M.E.R.S., AND MERSCORP INC. )
14
DEFENDANT
15
16
17
SUMMARY OF THE ACTION
18
Plaintiff Samuel and Roxy Salmon are commencing this action
19
against Defendant BANK OF AMERICA, RECONTRUST, and M.E.R.S. for
20
illegally representing them selves as lender, trustee, and
21
beneficiary of the NOTE signed by plaintiff Samuel Salmon,
22
referenced by Deeds of Trust, exhibits (A,B, and D) filed at
23
Stevens County Assessors office. The Plaintiff alleges the
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defendant Bank of America FKA Countrywide illegally collected
25
SAMUEL SALMON
917C PHILPOTT RD.
COLVILLE, WA 99114
Summary of Pleading - 1
1 NOTE remuneration from the Plaintiff on the Note referenced by
2 said deeds of trust and, are fraudulently claiming to be the
3 lender, trustee, and or beneficiary of the NOTE. Plaintiff, will
4 in the pleading show the Defendant blatantly violated Washington
5 State Codes (RCW’s). Plaintiff has also listed several court
6 cases showing the Defendant MERS, or their banking partners
7 inability to produce the Notes in question, or proper
8 endorsements showing clear chain of title proving ownership of
9 the Note, thereby loosing standing in their claim. The original
10 Notes have not been simply produced to show standing in their
11 claims. Plaintiff alleges the Defendant, has sold the Note
12 thereby already receiving remuneration on the Note, evidencing
13 the huge derivatives debacle as securities have been sold, and
14 no one seems to know where the NOTE is. Plaintiff alleges the
15 copy of the NOTE produced by the trustee Recontrust is in fact a
16 forgery. Plaintiff will show evidence of all that the Plaintiff
17 alleges so Court may relieve the Plaintiff of injury from
18 Defendant’s claims on Plaintiff’s personal real property, and
19 Defendant’s intent to fraudulently sell Plaintiffs personal real
20 property, thereby pleading with Court to issue a temporary
21 restraining order, preliminary injunction, and permanent
22 injunction based on the following Revised Code of Washington
23 (RCW) blatant violations and Court case evidence. Plaintiff will
24 show reason for requesting a full remuneration of all illegally
25 collected payments and fees.
SAMUEL SALMON
917C PHILPOTT RD.
COLVILLE, WA 99114
1 JURISDICTION AND VENUE
2 Stevens County Superior Court has jurisdiction pursuant to:
3 RCW 7.40.010 Restraining orders and injunctions may be granted
4 by the superior court, or by any judge thereof.
5 Venue is correct pursuant to:
6 RCW 4.12.010, Actions to be commenced where subject is situated.
7 Also RCW 7.40.040, RCW 7.40.020, RCW 64.04.010, RCW
8 64.04.020, RCW 61.24.005, RCW 61.24.010, RCW 61.24.030, RCW
9 61.24.020, RCW 64.04.020, RCW 65.08.070, RCW 9A.60.020, RCW
10 9A.56.320, RCW 10.37.080, RCW 62A.5-109, RCW 65.12.750.
11 EXHIBITS
12 Exhibit (A&B) Deeds of Trust on file at Stevens County Recorders
13 Office Auditors File #2007 0012467, 2007 0012468
14 Exhibit (C) “Notice of Default” was issued by Bank of America on
15 property located at 917 A PHILPOTT ROAD COLVILLE, WA. 99114 post
16 marked September 02, 2010
17 Exhibit (D) The “Corporation Assignment of Deed of Trust at
18 Stevens County Recorders Office Auditors File # 2010 0007023”
19 recorded September 23, 2010.
20 Exhibit (E) “Notice to Resident of property subject to
21 foreclosure sale” was issued by Bank of America on property
22 located at 917 A PHILPOTT ROAD COLVILLE, WA. 99114 on October
23 21, 2010.
24 Exhibit (F) Forgery of alleged Note dated October 19, 2007.
25
SAMUEL SALMON
917C PHILPOTT RD.
COLVILLE, WA 99114
1 PARTIES
2 Plaintiff Samuel and Roxy Salmon owners and residents of real
3 property description: LOT(S) 3 OF SHORT PLAT NO. SP 33-96,
4 LOCATED IN THE SW1/4 OF SECTION 21, TOWNSHIP 34 NORTH, RANGE 39
5 EAST, W.M., IN STEVENS COUNTY, WASHINGTON, ACCORDING TO PLAT
6 RECORDED NOVEMBER 14, 1996, UNDER AUDITOR'S FILE NO.9612321, or
7 known as 917C Philpott Rd. Colville, WA 99114.
9 Defendant Bank Of America Corporation listed as beneficiary on
10 Exhibit (D) with principal executive offices located at 100
11 North Tryon Street, Charlotte, North Carolina. BOA is traded on
12 the NYSE under the symbol “BAC.” Summons will be served at Bank
13 of America’s local branch located at 225 E 1St Ave Colville, WA
14 99114 (509) 684-2551.
15 Individual Defendants:
16 Brian Thomas Moynihan, Bank of America CEO since Jan 2010.
17 Kenneth D. Lewis, Bank of America CEO from April 2001 to Jan
18 2010.
19
20 Defendant ReconTrust Company, N.A. listed trustee on Exhibit (D)
21 is a wholly-owned subsidiary of Bank of America, N.A. and has no
22 known physical street address or phone number in the State of
23 Washington.
24
25 Defendant M.E.R.S. Mortgage Electronic Registration System
SAMUEL SALMON
917C PHILPOTT RD.
COLVILLE, WA 99114
1 listed as beneficiary on Exhibits (A,B, and D) is a wholly owned
2 subsidiary of MERSCorp, Inc. MersCorp was created in the early
3 1990’s by the former C.E.O.’s of Fannie Mae, Freddie Mac, Indy
4 Mac, Countrywide, Stewart Title Insurance and the American Land
5 Title Association. MERS’ principal place of business at 1595
6 Spring Hill Road, Suite 310, Vienna, Virginia 22182. MERS’
7 national data center is located in Plano, Texas.
8 Individual Defendants:
9 R. K. Arnold President and CEO Mortgage Electronic Registration
10 Systems, Inc.
11 FACT I
12 On October 19, 2007, Plaintiffs Samuel Salmon, and Roxy E.
13 Salmon executed a promissory note in the original principal
14 amount of $409,422.53, for the purchase of their home. The Note
15 was made payable to Countrywide Bank. The Note was secured by a
16 Deed of Trust on the home. The Deed of Trust identifies the
17 beneficiary as “Mortgage Electronic Registration Systems, Inc.
18 (‘MERS’),” and states that “MERS is a separate corporation that
19 is acting solely as nominee for Lender and Lender’s successors
20 and assigns.” The “Lender” is identified as Countrywide Bank,
21 The Trustee is identified as “Landsafe Title of Washington”.
22 Landsafe Title of Washington was a subsidiary of Countrywide
23 Bank, as stated on Securities Information website from the SEC
24 EDGAR database http://www.secinfo.com/dxj8.53.6.htm#1stPage,
25 which makes Landsafe Title of Washington, the original Trustee
SAMUEL SALMON
917C PHILPOTT RD.
COLVILLE, WA 99114
1 fiducially responsible to, and or an associate of Countrywide
2 Bank which nullifies this Deed of Trust Exhibits (A&B) as a
3 binding legal document pursuant to:
4 RCW 61.24.010 (3), and RCW 61.24.020
6 RCW 61.24.010 (3) The trustee or successor trustee shall have no
7 fiduciary duty or fiduciary obligation to the grantor or other
8 persons having an interest in the property subject to the deed
9 of trust.
10 RCW 61.24.020 “No person, corporation or association may be both
11 trustee and beneficiary under the same deed of trust:”
12 FACT II
13 When Countrywide Bank went out of business for predatory
14 lending, the beneficiary MERS, or the trustee Landsafe Title of
15 Washington never did record the trustee resignation, violating
16 RCW 61.24.010 (2).
17 Trustee, qualifications — Successor trustee
18 (2) The trustee may resign at its own election or be replaced by
19 the beneficiary. The trustee shall give prompt written notice of
20 its resignation to the beneficiary. The resignation of the
21 trustee shall become effective upon the recording of the notice
22 of resignation in each county in which the deed of trust is
23 recorded. If a trustee is not appointed in the deed of trust, or
24 upon the resignation, incapacity, disability, absence, or death
25 of the trustee, or the election of the beneficiary to replace
SAMUEL SALMON
917C PHILPOTT RD.
COLVILLE, WA 99114
1 the trustee, the beneficiary shall appoint a trustee or a
2 successor trustee. Only upon recording the appointment of a
3 successor trustee in each county in which the deed of trust is
4 recorded, the successor trustee shall be vested with all powers
5 of an original trustee.
6 FACT III
7 On, or about April 1, 2009, Bank of America declared itself to
8 be the new Lender by billing the Plaintiffs for the mortgage
9 payments. Bank of America assumed the position of Lender on the
10 Deed of Trust Exhibits (A&B), although they failed to file the
11 conveyance promptly with the local County’s Auditor again
12 violating RCW 61.24.010 (2), and also violating 64.04.010, RCW
13 64.04.020, RCW 65.08.070 thereby nullifying Notice of Default
14 Exhibit (C), and The “Corporation Assignment of Deed of Trust at
15 Stevens County Recorders Office Auditors File # 2010 0007023”
16 recorded September 23, 2010 Exhibit (D). This alleged assignment
17 has the same signer for both MERS and Bank of America. How does
18 this work?
19 RCW 65.08.070
20 Real property conveyances to be recorded
21 A conveyance of real property, when acknowledged by the person
22 executing the same (the acknowledgment being certified as
23 required by law), may be recorded in the office of the recording
24 officer of the county where the property is situated. Every such
25 conveyance not so recorded is void as against any subsequent
SAMUEL SALMON
917C PHILPOTT RD.
COLVILLE, WA 99114
1 purchaser or mortgagee in good faith and for a valuable
2 consideration from the same vendor, his heirs or devisees, of
3 the same real property or any portion thereof whose conveyance
4 is first duly recorded. An instrument is deemed recorded the
5 minute it is filed for record.
6 FACT IV
7 Before a conveyance was ever assigned by the Defendants, a
8 “Notice of Default” was issued by Bank of America on the
9 Plaintiffs real property located at 917 A PHILPOTT ROAD
10 COLVILLE, WA. 99114 post marked September 02, 2010 Exhibit (C).
11 At a later date, Exhibit (D) the “Corporation Assignment of Deed
12 of Trust was filed at Stevens County Recorders Office Auditors
13 File # 2010 0007023”, recorded September 23, 2010. This filing
14 of Exhibit (D) was filed over a year after the Defendant; Bank
15 of America falsely identified their self as owner of the loan on
16 April 1, 2009 and fraudulently collected payments on said
17 promissory note which is in violation of again stated
18 RCW 61.24.010 (2), and also violating 64.04.010, RCW
19 64.04.020RCW 65.08.070.
20 RCW 64.04.010
21 Conveyances and encumbrances to be by deed.
22 Every conveyance of real estate, or any interest therein, and
23 every contract creating or evidencing any encumbrance upon real
24 estate, shall be by deed: PROVIDED, That when real estate, or
25 any interest therein, is held in trust, the terms and conditions
SAMUEL SALMON
917C PHILPOTT RD.
COLVILLE, WA 99114
1 of which trust are of record, and the instrument creating such
2 trust authorizes the issuance of certificates or written
3 evidence of any interest in said real estate under said trust,
4 and authorizes the transfer of such certificates or evidence of
5 interest by assignment by the holder thereof by a simple writing
6 or by endorsement on the back of such certificate or evidence of
7 interest or delivery thereof to the vendee, such transfer shall
8 be valid, and all such assignments or transfers hereby
9 authorized and heretofore made in accordance with the provisions
10 of this section are hereby declared to be legal and valid.
11 RCW 64.04.020
12 Requisites of a deed.
13 Every deed shall be in writing, signed by the party bound
14 thereby, and acknowledged by the party before some person
15 authorized by *this act to take acknowledgments of deeds.
16 FACT V
17 Plaintiff affirms that, According to (Exhibit D) the Corporation
18 Assignment of Deed of Trust on filed under the authority of
19 Stevens County Auditor, in Stevens County, WA that MERS, Bank of
20 America, and Recontrust are not legally qualified as a Lender,
21 or Trustee, and or the Beneficiary pursuant to RCW 61.24.010
22 (3), (4), and RCW 61.24.020 as the Trustee “Recontrust Company,
23 N.A. is a wholly-owned subsidiary of Bank of America” (this
24 statement is found on the Recontrust web site home page).
25
SAMUEL SALMON
917C PHILPOTT RD.
COLVILLE, WA 99114
1 Therefore Recontrust is associated with and is fiducially
2 responsible entirely to the alleged Lender Bank of America.
4 RCW 61.24.010 (3) (4)
5 Trustee, qualifications — Successor trustee.
6 (3) The trustee or successor trustee shall have no
7 fiduciary duty or fiduciary obligation to the grantor or other
8 persons having an interest in the property subject to the deed
9 of trust.
10 (4) The trustee or successor trustee has a duty of good
11 faith to the borrower, beneficiary, and grantor.
12 RCW 61.24.020
13 “No person, corporation or association may be both trustee and
14 beneficiary under the same deed of trust:”
15 FACT VI
16 The Plaintiff asserts that the Note and Deed of Trust were not
17 properly assigned to the defendant Bank of America and,
18 therefore has not proven its self as the Legal holder of the
19 Note and Deed of Trust, therefore it lacks standing to enforce
20 any claim on said property. For the reasons that follow, the
21 Plaintiff finds that the Defendant has not proven that it is the
22 holder of the original Note pursuant to RCW 61.24.030(7)(a&b),
23 and RCW 61.24.010 (4).
24 RCW 61.24.030
25
SAMUEL SALMON
917C PHILPOTT RD.
COLVILLE, WA 99114
1 (7) (a) That, for residential real property, before the notice
2 of trustee's sale is recorded, transmitted, or served, the
3 trustee shall have proof that the beneficiary is the owner of
4 any promissory note or other obligation secured by the deed of
5 trust. A declaration by the beneficiary made under the penalty
6 of perjury stating that the beneficiary is the actual holder of
7 the promissory note or other obligation secured by the deed of
8 trust shall be sufficient proof as required under this
9 subsection.
10 (7) (b) Unless the trustee has violated his or her duty under
11 RCW 61.24.010(4), the trustee is entitled to rely on the
12 beneficiary's declaration as evidence of proof required under
13 this subsection.
14 61.24.010 (4) The trustee or successor trustee has a duty of
15 good faith to the borrower, beneficiary, and grantor.
16 Statement
17 Any proof of Note possession offered by the trustee, or
18 beneficiary other than the production of the actual original
19 Note is not acceptable due to said Trustee, Lender, and
20 Beneficiary violations of stated RCW’s, therefore it lacks
21 standing to issue any claim on Plaintiffs property.
22 FACT VII
23 The Plaintiff affirms that according to the alleged trustee’s
24 records and Plaintiffs phone Conversation with Recontrust, it
25
SAMUEL SALMON
917C PHILPOTT RD.
COLVILLE, WA 99114
1 does not have a physical street address in the state of
2 Washington which is in violation of: RCW 61.24.030 (6).
4 RCW 61.24.030 (6)
5 (6) That prior to the date of the notice of trustee's sale and
6 continuing thereafter through the date of the trustee's sale,
7 the trustee must maintain a street address in this state where
8 personal service of process may be made, and the trustee must
9 maintain a physical presence and have telephone service at such
10 address;
11 FACT VIII
12 The Deed of Trust contains false representation on its face when
13 it represented that MERS was a beneficiary under the Deed of
14 Trust, which states that “MERS is a separate corporation that is
15 acting solely as a Nominee for Lender and Lender’s successors
16 and assigns MERS as the beneficiary under this Security
17 Instrument.” MERS is NOT the beneficiary under the Deed of
18 Trust, it never had ownership or possession of the Promissory
19 Note which is the obligation which is secured by the Deed of
20 Trust, and MERS has never been entitled to receive one cent of
21 remuneration from the Plaintiff’s loan proceeds. The statement
22 that MERS is the nominee is nonsensical language which means
23 nothing in a real estate transaction and most certainly, MERS
24 has never been nor is it now the beneficiary under the Deed of
25 Trust. The language is a sham. MERS is a wholly owned
SAMUEL SALMON
917C PHILPOTT RD.
COLVILLE, WA 99114
1 subsidiary of MersCorp, Inc. MERS has no interest in the NOTE,
2 the LOAN, or the REAL PROPERTY therefore has no authority to
3 transfer the NOTE as a nominee, pursuant to:
4 RCW 61.24.005 (2)
5 (2) "Beneficiary" means the holder of the instrument or
6 document evidencing the obligations secured by the deed of
7 trust, excluding persons holding the same as security for a
8 different obligation.
9 FACT IX
10 Plaintiff has proven the Trustee, Lender, and Beneficiary are
11 illegal in this entire loan process. Plaintiff does not
12 recognize any authority the alleged Claimants or Defendants are
13 making on Plaintiffs real property, as the Deed of Trust is in
14 itself entirely invalid and the only security for the Note.
15 Plaintiff demands the Defendant produce the original Note with
16 the proper endorsements for all transfers required by law
17 pursuant RCW 62A.3-203 to be submitted for inspection and
18 verification by a court appointed expert pursuant to RCW
19 61.24.030 (6), and (7) (a) (b). Until then the copy or forgery
20 of the NOTE which was included with Notice of Trustee sale is
21 not sufficient to validate any claim Made by the Defendant on
22 the Plaintiffs possessions, and is in violation of Washington
23 forgery laws pursuant RCW 62A.5-109, RCW 10.37.080, RCW
24 9A.56.320, and RCW 9A.60.020.
25 RCW 9A.60.020
SAMUEL SALMON
917C PHILPOTT RD.
COLVILLE, WA 99114
1 (1) A person is guilty of forgery if, with intent to injure or
2 defraud:
3 (a) He falsely makes, completes, or alters a written
4 instrument or;
5 (b) He possesses, utters, offers, disposes of, or puts off
6 as true a written instrument which he knows to be forged.
7 (2) In a proceeding under this section that is related to
8 an identity theft under RCW 9.35.020, the crime will be
9 considered to have been committed in any locality where the
10 person whose means of identification or financial information
11 was appropriated resides, or in which any part of the offense
12 took place, regardless of whether the defendant was ever
13 actually in that locality.
14 (3) Forgery is a class C felony.
15 CASE EVIDENCE FOR FACT VIII AND FACT IX

16 MERS important case reference and commentary
17 MERS v. Nebraska Dept of Banking and Finance – State Appellate,
18 MERS demands to be recognized as having no actionable interest
19 in title. 2005, Cite as 270 Neb 529
20 Merscorp, Inc., et al., Respondents, v Edward P. Romaine, & c.,
21 et al., Appellants, et al., Defendant the fact that the Mortgage
22 and Deed of Trust are separated is recognized (concurring
23 opinion). While affirming MERS could enter in the records as
24 “nominee”, the court recognized many inherent problems. Rather
25
SAMUEL SALMON
917C PHILPOTT RD.
COLVILLE, WA 99114
1 than resolve them, they sloughed them off to the legislature.
2 2006
3 The Boyko Decision -Federal District Judge Christopher Boyko of
4 the Eastern Division of the Northern District of Ohio Federal
5 Court overturns 14 foreclosure actions with a well reasoned
6 opinion outlining the failure of the foreclosing party to prove
7 standing. This decision started the movement of challenging the
8 standing of the foreclosing party. Oct 2007
9 Landmark National Bank v Kesler – KS State Supreme Court – MERS
10 has no standing to foreclose and is, in fact, a straw man. Oct
11 2009.
12 The importance of the findings of the Supreme Court of Kansas
13 cannot be overemphasized. It is generally the law in all states
14 that if the law of one state has not specifically addressed a
15 specific legal issue that the court may look to the law of
16 states which have. The Kansas Court acknowledged that the case
17 was one of “first impression in Kansas”, which is why the Kansas
18 Court looked to legal decisions from California, Idaho, New
19 York, Missouri, and other states for guidance and to support its
20 decision. As we have previously reported, the Ohio Courts have
21 looked to the legal decisions of New York to resolve issues in
22 foreclosure defense, most notably issues of standing to
23 institute a foreclosure.
24 It is practically certain that this decision will be the subject
25 of review by various courts. MERS has already threatened a
SAMUEL SALMON
917C PHILPOTT RD.
COLVILLE, WA 99114
1 “second appeal” (by requesting “reconsideration” by the Supreme
2 Court of Kansas of its decision by the entire panel of Judges in
3 that Court). However, for now, the decision stands, which
4 decision is of monumental importance for borrowers. It thus
5 appears that the tide is finally starting to turn, and that the
6 courts are beginning to recognize the extent of the wrongful
7 practices and fraud perpetrated by “lenders” and MERS upon
8 borrowers, which conduct was engaged in for the sole purpose of
9 greed and profit for the “lenders” and their ilk at the expense
10 of borrowers.
11 MERS, Inc., Appellant v Southwest Homes of Arkansas, Appellee
12 The second State Supreme Court ruling – AR 2009
13 BAC v US Bank – FL Appellate court upholds the concept of
14 determining the standing of the foreclosing party before
15 allowing summary judgement. All cases in FL must now go through
16 this process. 2007
17 Wells Fargo NAS v Farmer Motion to vacate in Supreme Court,
18 Kings County, NY 2009
19 In Re: Joshua & Stephanie Mitchell – US Federal Bankruptcy
20 Court, NV 2009
21 In Re: Wilhelm et al., Case No. 08-20577-TLM (opinion of Hon.
22 Terry L. Myers, Chief U.S. Bankruptcy Judge, July 9, 2009) –
23 Chief US Bankruptcy Judge, ID – MERS, by its construction,
24 separates the Deed from the Mortgage
25 MERS v Johnston – Vermont Superior Court Decision
SAMUEL SALMON
917C PHILPOTT RD.
COLVILLE, WA 99114
1 Wells Fargo v Jordon – OH Appellate Court
2 Weingartner et al v Chase Home Finance et al – US District Court
3 Schneider et al v Deutsche Bank et al (FL): Class action suit
4 (the filing) seeking to recover actual and statutory damages for
5 violations of the foreclosure process. Provides an excellent
6 description of the securitization process and the problems with
7 assignments.
8 JP Morgan Chase v New Millenial et. al. – FL Appellate which
9 clearly demonstrates the chaos which can ensue when there is a
10 failure to register changes of ownership at the county
11 recorder’s office. Everyone operates in good faith, then out of
12 nowhere, someone shows up waving a piece of paper. The MERS
13 system, while not explicitly named, is clearly the culprit of
14 the chaos. 2009
15 In Re: Walker, Case No. 10-21656-E-11 – Eastern District of CA
16 Bankruptcy court rules MERS has NO actionable interest in title.
17 “Any attempt to transfer the beneficial interest of a trust deed
18 without ownership of the underlying note is void under
19 California law.” “MERS could not, as a matter of law, have
20 transferred the note to Citibank from the original lender,
21 Bayrock Mortgage Corp.” The Court’s opinion is headlined stating
22 that MERS and Citibank are not the real parties in interest.
23 In re Vargas, 396 B.R. at 517-19. Judge Bufford made a finding
24 that the witness called to testify as to debt and default was
25 incompetent. All the witness could testify was that he had
SAMUEL SALMON
917C PHILPOTT RD.
COLVILLE, WA 99114
1 looked at the MERS computerized records. The witness was unable
2 to satisfy the requirements of the Federal Rules of Evidence,
3 particularly Rule 803, as applied to computerized records in the
4 Ninth Circuit. See id. at 517-20. The low level employee could
5 really only testify that the MERS screen shot he reviewed
6 reflected a default. That really is not much in the way of
7 evidence, and not nearly enough to get around the hearsay rule.
8 In Re: Joshua and Stephanie Mitchell, Case No. BK-S-07-16226-
9 LBR [U.S. Bankruptcy Court, District of Nevada, Memorandum
10 Opinion of August 19, 2008]. Federal Court in Nevada attacked
11 MERS’ purported “authority”, finding that there was no evidence
12 that MERS was the agent of the note’s holder
13 Mortgage Electronic Registration Systems, Inc. v. Girdvainis,
14 Sumter County, South Carolina Court of Common Pleas Case No.
15 2005-CP-43-0278 (Order dated January 19, 2006, citing to the
16 representations of MERS and court findings in Mortgage
17 Electronic Registration Systems, Inc. v. Nebraska Dept. of
18 Banking and Finance, 270 Neb. 529, 704 NW 2d. 784). As such, ALL
19 MERS assignments are suspect at best, and may in fact be
20 fraudulent. The Court of Common Pleas of Sumter County, South
21 Carolina also found that MERS’ rights were not as they were
22 represented to be; that MERS had no rights to collect on any
23 debt because it did not extend any credit; none of the borrowers
24 owe MERS any money; that MERS does not own the promissory notes
25
SAMUEL SALMON
917C PHILPOTT RD.
COLVILLE, WA 99114
1 secured by the mortgages; and that MERS does not acquire any
2 loan or extension of credit secured by a lien on real property.
3 MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. v. SAUNDERS 2010
4 ME 79 Docket: Cum-09-640.Supreme Judicial Court of
5 Maine. | Ordered dated August 12, 2010. We conclude that
6 although MERS is not in fact a “mortgagee” within the meaning of
7 our foreclosure statute, 14 M.R.S. §§ 6321-6325, and therefore
8 had no standing to institute foreclosure proceedings, the real
9 party in interest was the Bank and the court did not abuse its
10 discretion by substituting the Bank for MERS. Because, however,
11 the Bank was not entitled to summary judgment as a matter of
12 law, we vacate the judgment and remand for further proceedings.
13 MERS ‘AGENT’ PREVIOUS MTG FRAUD SCHEME| Mortgage Electronic
14 Registration Systems, Inc. v. Folkes, 2010 NY Slip Op 32007 –
15 NY: Supreme Court The settlement agent on all of the MERS
16 documents was listed as Peter Port, Esq., undeniably plaintiffs
17 agent. According to an affidavit, with documents attached from
18 Ms. Nichole M. Orr, identified as an Assistant Vice President
19 and Senior Operational Risk Specialist for Bank of America Home
20 Loans, the successor-in-interest to plaintiff America’s
21 Wholesale Lender (April 1, 2010)[1] certain wire transfers were
22 made on November 23, 2004 to Mr. Port. The money appears to have
23 come from an account with JP Morgan, but one of the documents
24 also shows, inexplicably, that Mr. Port then sent $435,067.73 of
25 this money to Cheron A. Ramphal at 14917 Motley Road, Silver
SAMUEL SALMON
917C PHILPOTT RD.
COLVILLE, WA 99114
1 Springs, MD. It should also be noted, as it was in the decision
2 of February 5, 2008 by Judge Payne, that Mr. Port pled guilty in
3 March 2006 in Federal District Court in New Jersey to providing
4 false documents in a scheme to commit mortgage fraud.
5 ‘NO PROOF’ MERS assigned BOTH Mortgage and NOTE to HSBC|HSBC
6 Bank, etc. v. Miller, et al. The “Assignment of Mortgage,” which
7 is attached as exhibit E to the opposition papers, makes no
8 reference to the note, and only makes reference to the mortgage
9 being assigned. The Assignment has a vague reference to note
10 wherein it states that “the said assignor hereby grants and
11 conveys unto the said assignee, the assignor’s beneficial
12 interest under the mortgage, “but this is the only language in
13 the Assignment which could possibly be found to refer to the
14 note.
15 Contrary to the affirmation of Ms. Szeliga in which she
16 represented, in paragraph 17, that there was language in the
17 assignment which specifically referred to the note, the
18 assignment in this case does not contain °a specific reference
19 to the Note.
20 In light of the foregoing, the Court is satisfied that there is
21 insufficient proof to establish that both the note and the
22 mortgage have been assigned to the Plaintiff, and therefore, it
23 is hereby ORDERED that the Plaintiff has no standing to maintain
24 the foreclosure action; and it is further ORDERED that the
25 application of Defendant, Jeffrey F. Miller, to dismiss is
SAMUEL SALMON
917C PHILPOTT RD.
COLVILLE, WA 99114
1 granted, without prejudice, to renew upon proof of a valid
2 assignment of the note.
3 UNION BANK CO. v. NORTH CAROLINA FURNITURE EXPRESS, LLC.: MERS
4 ‘GETS FORECLOSED’| ASSIGNS NADA TO BAC fka COUNTRYWIDE OHIO
5 COURT OF APPEAL: While an assignment typically transfers the
6 lien of the mortgage on the property described in the mortgage,
7 as BAC acknowledged in its reply brief, an assignee can only
8 take, and the assignor can only give, the interest currently
9 held by the assignor. R.C. 5301.31. With that stated, it is
10 clear under the facts of this case that BAC never obtained an
11 interest in the property; thus, it could not have been
12 substituted as a party-defendant in the 2008 foreclosure action.
13 Here, with respect to the 2008 foreclosure action, the date the
14 last party was served with notice was on January 28, 2009, which
15 was almost six months before the purported assignment from MERS
16 to BAC. Next, on March 11, 2009, the trial court issued a
17 judgment entry of default against MERS foreclosing on its
18 interest in the property. Once again, this default judgment was
19 entered against MERS almost three months before the purported
20 assignment from MERS to BAC occurred. The effect of this default
21 judgment against MERS resulted in MERS having “no interest in
22 and to said premises and the equity of redemption of said
23 Defendants in the real estate described in Plaintiff’s Complaint
24 shall be forever cut off, barred, and foreclosed.” (2008 CV
25 0267, Mar. 10, 2009 JE). Nevertheless, according to the
SAMUEL SALMON
917C PHILPOTT RD.
COLVILLE, WA 99114
1 documents filed by BAC to evidence its assignment from MERS,
2 MERS assigned its interest to BAC on June 1, 2009. (2009 CV 312,
3 Oct. 7, 2009 JE, Ex. A). Consequently, as a result of the
4 already entered default judgment against MERS, when BAC was
5 assigned MERS’ interest in the property on June 1, 2009, BAC did
6 not receive a viable interest in the property. See Quill v.
7 Maddox (May 31, 2002), 2nd Dist. No. 19052, at *2 (mortgagee’s
8 assignee failed to establish that it had an interest in the
9 property, as mortgagee’s interest was foreclosed by the court
10 before mortgagee assigned its interest to assignee, which could
11 acquire no more interest than mortgagee held). Thus, we find
12 that it was reasonable for the trial court to have denied the
13 motion to substitute BAC as a party-defendant for MERS given its
14 lack of interest in the property.
15 HSBC v. Thompson: HSBC’s Irregularities: Mortgage Documentation
16 and Corporate Relationships with Ocwen, MERS, and Delta Even if
17 HSBC had provided support for the proposition that ownership of
18 the note is not required, the evidence about the assignment is
19 not properly before us. The alleged mortgage assignment is
20 attached to the rejected affidavits of Neil. Furthermore, even
21 if we were to consider this “evidence,” the mortgage assignment
22 from MERS to HSBC indicates that the assignment was prepared by
23 Ocwen for MERS, and that Ocwen is located at the same Palm
24 Beach, Florida address mentioned
25 in Charlevagne and Antrobus. See Exhibit 3 attached to the
SAMUEL SALMON
917C PHILPOTT RD.
COLVILLE, WA 99114
1 affidavit of Chomie Neil. In addition, Scott Anderson, who
2 signed the assignment, as Vice-President of MERS, appears to be
3 the same individual who claimed to be both Vice-President of
4 MERS and Vice-President of Ocwen. See Antrobus, 2008 WL 2928553,
5 * 4, and Charlevagne, 2008 WL 2954767, * 1.
6 MERS v. TORR NY JUDGE SPINNER DENIES Deutsche & MERS for NOT
7 Recording Mortgage, Make up Affidavit and Assignment! MERS
8 ‘QUIET TITLE’ FAIL: To establish a claim of lien by a lost
9 mortgage there must be certain evidence (e.s.) demonstrating
10 that the mortgage was properly executed with all the formalities
11 required by law andproof of the contents (e.s.) of such
12 instrument. … Here Burnett’s affidavit simply states that the
13 original mortgage is not in Deutsch Bank’s files, and that he is
14 advised (e.s.) that the title company is out of business.
15 Burnett gives no specifics as to what efforts were made to
16 locate the lost mortgage…. More importantly, there is no
17 affidavit from MLN by an individual with personal knowledge of
18 the facts that the complete file concerning this mortgage was
19 transferred to Deutsch Bank and that the copy of the mortgage
20 submitted to the court is an authentic copy of Torr’s Mortgage.”
21 (e.s.)
22 LPP MORTGAGE v. SABINE PROPERTIES: FINAL DISPOSITION| NO
23 Evidence ‘MERS’ Owned The NOTE, Could NOT ASSIGN IT NY SUPREME
24 COURT: FINAL DISPOSITION
25
SAMUEL SALMON
917C PHILPOTT RD.
COLVILLE, WA 99114
1 Here, there are no allegations or evidence that MERS was the
2 owner of the note such that it could assign it to LPP. Thus, the
3 assignment from MERS was insufficient to confer ownership of the
4 note to LPP and it has no standing to bring this action. Kluge
5 v. F umz ~1, 45 AD2d at 538 (holding that the assignment of a
6 mortgage without transfer of the debt is a nullity); Johnson v.
7 Melnikoff, 20 Misc3d 1142(A), “2 (Sup Ct Kings Co. 2008), n. 2,
8 afr, 65 AD3d 519 (2d Dept 20 1 Oj(noting that assignments by
9 MERS which did not include the underlying debt were a legal
10 nullity); m e Elect ro pic Registration Svstem v, Coakley, 41
11 AD3d 674 (2d Dept 2007)(holding that MERS had standing to bring
12 foreclosure proceeding based on evidence that MERS was the
13 lawful holder of the promissory note and the mortgage).
14 Thus, even assuming arguendo that the language of the assignment
15 from MERS to LPP could be interpreted as purporting to assign
16 not only the mortgage but also the note, such assignment is
17 invalid since based on the record, MERS lacked an ownership
18 interest in the note. $ee LaSalle Bank Nat. Ass’n v. Lamv, 12
19 Misc3d 1191(A), “3 (Sup Ct Suffolk Co. 2006) (noting that “the
20 mortgage is merely an incident of and collateral security for
21 the debt and an assignment of the mortgage does not pass
22 ownership of the debt itself ’);
23 WACHOVIA BANK, NATIONAL ASSOCIATION, against –STUART BRENNER, et
24 aI. : Defendant’ s answer contains a defense of “lack of
25 standing.” Plaintiff has failed to establish it was the holder
SAMUEL SALMON
917C PHILPOTT RD.
COLVILLE, WA 99114
1 of the note and the mortgage securing it when the action was
2 commenced. In that regard, plaintiff relies on an undated
3 assignment of the mortgage by MERS as nominee acknowledged by a
4 Texas notary on July 18, 2009. The note sued on does not contain
5 an indication it has been negotiated. The undated assignment by
6 MERS contains a provision at the assignment of the mortgage is
7 “TOGETHER with the notes described in said mortgage.” The record
8 before me is devoid of proof that MERS as nominee for purposes
9 of recording had authority to assign the mortgage. However,
10 assuming it had such authority since it is a party to the
11 mortgage and such authority might be implied , there has been a
12 complete failure to establish MERS, as a non-party to the note,
13 to negotiate its transfer. A transfer of the note effects a
14 transfer of the mortgage MERS vs. Coakley, 41 AD3 674), the
15 assignment of a mortgage without a valid transfer of the
16 mortgage note is a nullity(Kluge vs. Fugazv, 145 AD2 537).
17 Following are more cases from THE NEW YORK SUPREME COURT…
18 JUDGE SCHACK BLOWS ‘MERS’ and Bank Of New York (BNY) OUT THE
19 DOOR!
20 WM SPECIALTY MORTGAGE v. JORGE RAMIREZ NO PROOF MERS OWNED THE
21 MORTGAGE AND NOTE
22 MERS v. MAHENDRA RAMDOOLAR MERS IN NOT THE OWNER OF SUBJECT
23 MORTGAGE AND NOTE
24 HOLY COW!!! MERS v. MERS NO EVIDENCE IT HAD THE MORTGAGE AND NOTE
25 MERS V. THOMAS STANDFORD MERS DOES NOT OWN MORTGAGE AND NOTE
SAMUEL SALMON
917C PHILPOTT RD.
COLVILLE, WA 99114
1 MERS V. GAIL PALMORE-ARCHER MERS DOES NOT OWN MORTGAGE AND NOTE
2 In the Matter of the Foreclosure of Tax Liens MERS GETS CHEWED
3 UP!
4 BANK OF NEW YORK V. JOSEPH CERULLO MERS NOT OWNER AND HOLDER OF
5 NOTE MORTGAGE
6 HSBC V. HENRY FELD MERS NOT HOLDER OWNER OF NOTE
7 THE BANK OF NY MELLON V. RICHARD BUSTRUC MERS IS NOT OWNER
8 HOLDER OF MORTGAGE AND NOTE
10 ONEWEST BANK GETS THE BOOT, MERS ASSIGNMENT MAKES NO REFERENCE
11 TO NOTE
12 NY SUPREME COURT: WELLS FARGO, MERS & STEVEN J. BAUM “FATAL
13 DEFECT”
14 FDN attorneys Jeff Barnes, Esq. and Elizabeth Lemoine, Esq. have
15 achieved a significant victory in Federal Court in Oregon
16 against MERS. On Tuesday, September 28, 2010, Mr. Barnes and Ms.
17 Lemoine defended and argued Motions to Dismiss the borrowers’
18 lawsuit challenging a nonjudicial foreclosure. The Motions were
19 filed by the Defendants OneWest Bank and MERS. The action was
20 originally filed in state court where a temporary restraining
21 order was entered stopping the sale. On the eve of the scheduled
22 hearing on the borrowers’ Motion for Preliminary Injunction,
23 Defendants OneWest Bank, MERS, and Regional Trustee Services
24 removed the case to Federal Court in an obvious attempt to
25 circumvent the state court injunction hearing. The Federal Court
SAMUEL SALMON
917C PHILPOTT RD.
COLVILLE, WA 99114
1 entered an Injunction and scheduled a hearing on the Motions
2 filed by the Defendants.
3 During the course of the hearing, the Court repeatedly raised
4 the “MERS as nominee” issues to counsel for the Defendants, with
5 said counsel finally admitting, upon repeated inquiry by the
6 Court, that MERS cannot transfer promissory notes. The Court
7 denied the Motions to Dismiss and has, by Order, commanded the
8 injunction against the sale to remain in place through the
9 duration of the borrowers’ lawsuit.
10
11 REQUEST FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY

12 INJUNCTION
13 Because of the nature of the findings of the listed FACTS I
14 through FACT VII and lack of truthful evidence leading to these
15 illegal foreclosure proceedings Plaintiff prays for the Court to
16 issue a temporary restraining order and a preliminary injunction
17 against Defendant for any and all claims the Defendants are
18 pursuing against Plaintiff and Plaintiff’s property, via
19 Exhibits (A, B, C, D, E, and F) thereby causing harm to the
20 Plaintiff.
21 REQUEST FOR PERMANENT INJUNCTION AND REMUNERATION

22 Because of all of the FACTS and Court case evidence listed in
23 this complaint, Plaintiff demands the Defendants produce the
24 original NOTE in question to avoid forgery and fraud charges. If
25 NOTE is not produced within 30 days from the delivery and
SAMUEL SALMON
917C PHILPOTT RD.
COLVILLE, WA 99114
1 receipt of the summons upon the Defendant, Plaintiff will press
2 forgery charges pursuant RCW 9A.60.020. Plaintiff thereby will
3 demand remuneration of fraudulently collected monies paid to
4 illegally represented lenders Bank of America FKA Countrywide,
5 and interest at 6.75% with the total amount of $87,756.36 + case
6 fees, or Eighty Seven Thousand, Seven hundred and fifty six
7 dollars and 36 cents plus case fees to the Defendant, who
8 deceived the Plaintiff by, fraudulently claiming to be the
9 legitimate lender, trustee, and beneficiary while falsely
10 claiming to hold the NOTE, assuming all assets and liabilities
11 of Countrywide.
12 RCW 7.40.020
13 Grounds for issuance.
14 When it appears by the complaint that the plaintiff is entitled
15 to the relief demanded and the relief, or any part thereof,
16 consists in restraining the commission or continuance of some
17 act, the commission or continuance of which during the
18 litigation would produce great injury to the plaintiff; or when
19 during the litigation, it appears that the defendant is doing,
20
21 or threatened, or is about to do, or is procuring, or is
22 suffering some act to be done in violation of the plaintiff's
23 rights respecting the subject of the action tending to render
24 the judgment ineffectual; or where such relief, or any part
25 thereof, consists in restraining proceedings upon any final
SAMUEL SALMON
917C PHILPOTT RD.
COLVILLE, WA 99114
1 order or judgment, an injunction may be granted to restrain such
2 act or proceedings until the further order of the court, which
3 may afterwards be dissolved or modified upon motion. And where
4 it appears in the complaint at the commencement of the action,
5 or during the pendency thereof, by affidavit, that the defendant
6 threatens, or is about to remove or dispose of his property with
7 intent to defraud his creditors, a temporary injunction may be
8 granted to restrain the removal or disposition of his property.
10
11
12
13
14
15
16 By:
Samuel Salmon
17 917C Philpott Rd.
Colville, WA 99114
18
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SAMUEL SALMON
917C PHILPOTT RD.
COLVILLE, WA 99114

Salmon V Bank of America Complaint (Initial Pleading)

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Salmon V Bank of America Complaint (Initial Pleading)

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1

9 ) CASE NO.: 10-2-00596-8

2 said deeds of trust and, are fraudulently claiming to be the

3 lender, trustee, and or beneficiary of the NOTE. Plaintiff, will

4 in the pleading show the Defendant blatantly violated Washington

5 State Codes (RCW’s). Plaintiff has also listed several court

6 cases showing the Defendant MERS, or their banking partners

7 inability to produce the Notes in question, or proper

8 endorsements showing clear chain of title proving ownership of

9 the Note, thereby loosing standing in their claim. The original

10 Notes have not been simply produced to show standing in their

11 claims. Plaintiff alleges the Defendant, has sold the Note

12 thereby already receiving remuneration on the Note, evidencing

13 the huge derivatives debacle as securities have been sold, and

15 copy of the NOTE produced by the trustee Recontrust is in fact a

16 forgery. Plaintiff will show evidence of all that the Plaintiff

17 alleges so Court may relieve the Plaintiff of injury from

18 Defendant’s claims on Plaintiff’s personal real property, and

19 Defendant’s intent to fraudulently sell Plaintiffs personal real

20 property, thereby pleading with Court to issue a temporary

21 restraining order, preliminary injunction, and permanent

22 injunction based on the following Revised Code of Washington

23 (RCW) blatant violations and Court case evidence. Plaintiff will

24 show reason for requesting a full remuneration of all illegally

25 collected payments and fees.

3 RCW 7.40.010 Restraining orders and injunctions may be granted

4 by the superior court, or by any judge thereof.

5 Venue is correct pursuant to:

6 RCW 4.12.010, Actions to be commenced where subject is situated.

7 Also RCW 7.40.040, RCW 7.40.020, RCW 64.04.010, RCW

8 64.04.020, RCW 61.24.005, RCW 61.24.010, RCW 61.24.030, RCW

9 61.24.020, RCW 64.04.020, RCW 65.08.070, RCW 9A.60.020, RCW

10 9A.56.320, RCW 10.37.080, RCW 62A.5-109, RCW 65.12.750.

13 Office Auditors File #2007 0012467, 2007 0012468

14 Exhibit (C) “Notice of Default” was issued by Bank of America on

15 property located at 917 A PHILPOTT ROAD COLVILLE, WA. 99114 post

16 marked September 02, 2010

17 Exhibit (D) The “Corporation Assignment of Deed of Trust at

18 Stevens County Recorders Office Auditors File # 2010 0007023”

19 recorded September 23, 2010.

20 Exhibit (E) “Notice to Resident of property subject to

21 foreclosure sale” was issued by Bank of America on property

22 located at 917 A PHILPOTT ROAD COLVILLE, WA. 99114 on October

24 Exhibit (F) Forgery of alleged Note dated October 19, 2007.

3 property description: LOT(S) 3 OF SHORT PLAT NO. SP 33-96,

4 LOCATED IN THE SW1/4 OF SECTION 21, TOWNSHIP 34 NORTH, RANGE 39

5 EAST, W.M., IN STEVENS COUNTY, WASHINGTON, ACCORDING TO PLAT

6 RECORDED NOVEMBER 14, 1996, UNDER AUDITOR'S FILE NO.9612321, or

7 known as 917C Philpott Rd. Colville, WA 99114.

9 Defendant Bank Of America Corporation listed as beneficiary on

10 Exhibit (D) with principal executive offices located at 100

11 North Tryon Street, Charlotte, North Carolina. BOA is traded on

13 of America’s local branch located at 225 E 1St Ave Colville, WA

14 99114 (509) 684-2551.

16 Brian Thomas Moynihan, Bank of America CEO since Jan 2010.

17 Kenneth D. Lewis, Bank of America CEO from April 2001 to Jan

20 Defendant ReconTrust Company, N.A. listed trustee on Exhibit (D)

21 is a wholly-owned subsidiary of Bank of America, N.A. and has no

22 known physical street address or phone number in the State of

25 Defendant M.E.R.S. Mortgage Electronic Registration System

2 subsidiary of MERSCorp, Inc. MersCorp was created in the early

3 1990’s by the former C.E.O.’s of Fannie Mae, Freddie Mac, Indy

4 Mac, Countrywide, Stewart Title Insurance and the American Land