STATE OF INDIANA ) SS:

IN THE JOHNSON CIRCUIT/SUPERIOR COURT

COUNTY OF JOHNSON )
  )  

E*Trade Financial

)  

     Plaintiff

)  
  )    Case Number
VS. )    xxxxxxxxxxxxxxxxxxx
  )  
xxxxxx, et al. )  
     Defendant )  


MOTION TO DISMISS

    COMES NOW the Defendant, (hereinafter xxxxxx) pro se, and hereby presents this Motion to Dismiss pursuant to the fact that plaintiff E*Trade Financial has failed to prove standing.        

   Attached hereto, and incorporated herein by this reference as if set forth fully hereinafter, is a Memorandum of Law which more fully sets forth the basis for dismissing this instant lawsuit.  

                        Respectfully presented,

 

                        __________________________
                        xxxxxx
                        Addr
                        Indiana

 
 

[doc edited 18-DEC-2010]

STATE OF INDIANA ) SS:

IN THE JOHNSON CIRCUIT/SUPERIOR COURT

COUNTY OF JOHNSON )
  )  

E*Trade Financial

)  

     Plaintiff

)  
  )    Case Number
VS. )    xxxxxxxxxxxxxxxxxxx
  )  
xxxxxx, et al. )  
     Defendant )  

MEMORANDUM OF LAW

  COMES NOW the Defendant, (hereinafter xxxxxx) pro se, and hereby presents his Memorandum of Law, for the reasons set forth herein and as set forth more fully in the attached Memorandum of Law.

FACTUAL BACKGROUND

   1.  The Plaintiff (hereinafter E*Trade) lacks standing to bring its claims against xxxxxx.

   2.  Specifically, xxxxxx initially contacted Home Loan Center d/b/a Lending Tree Loans (hereinafter Lending Tree) on or about  2006, and requested a Home Equity Line of Credit (HELOC), secured by his house located at xxxxxx, Indiana.

Loan Servicing Transferred to Countrywide Home Loans, Inc.

   3.  Shortly thereafter, xxxxxx received a letter dated 2006, notifying him that his HELOC was allegedly transferred to Countrywide Home Loans, Inc. (See letter dated 2006, notifying xxxxxx of the sale of his HELOC, attached hereto as Exhibit A.)

New Mortgage Loan Signed Between
xxxxxx and Countrywide Home Loans, Inc

   4.  Consequently, xxxxxx met with a representative from Countrywide Home Loans, Inc., on or about 2006, at a McDonald’s Restaurant in Indiana, because Countrywide had no office nearby. At that time xxxxxx entered into a new, and separate original mortgage agreement with Countrywide Home Loans, secured by his house referenced in Paragraph 2 above, superseding the HELOC loan with Lending Tree. (See copy of original 2006 “Schedule of Real Estate Owned” between xxxxxx and Countrywide Home Loans, identifying Countrywide Home Loans as the new “Lender,” with new so-called "loan number," attached hereto as Exhibit B).

   5.  On or about June, 2006, xxxxxx was diagnosed with pancreatic cancer and needed surgery. Consequently, xxxxxx was under anesthesia for approximately eight (8) hours. A possible side effect of being anesthetized for a long period of time is memory loss. xxxxxx does not recall whether he executed a new promissory note with Countrywide Home Loans.

Assignment of Promissory Note Without
Countrywide Mortgage Agreement is a Nullity

   6.  Therefore, there is a real need for both authenticum promissory note and the Mortgage Agreement between xxxxxx and Countrywide to be presented to this Court, otherwise there exists a question of standing and particular case jurisdiction, as any valid assignment, either an assignment of the authenticum note and the Mortgage Agreement separately is a nullity. See Carpenter v. Longan, 83 U.S. (16 Wall.) 271, 274 (1872), quoted below.

   7. Before Countrywide Financial was purchased by Bank of America (BOA) in 2008, Countrywide Bank was known primarily as an originator and purchaser of mortgage loans and home equity lines of credit for investment purposes. The majority of these loans were allegedly sourced through its mortgage banking subsidiary, Countrywide Home Loans.

   8.  Apparently, Lending Tree, completely, and in its entirety, claims to have assigned, transferred, sold, conveyed, granted or delivered all of its rights to xxxxxx’s HELOC, directly or indirectly, to Countrywide Home Loans. Otherwise, xxxxxx would not have been required to (1) enter into a new and separate Mortgage Agreement with Countrywide Home Loans, Inc., in November, 2006, (2) be assigned a new loan number, and (3) possibly a new promissory note.

   9.  Since xxxxxx’s house was appraised at $110,000.00 at the time, it is not possible that xxxxxx had two (2) separate outstanding $85,000.00 mortgages on his property.

   10.  Before the purchase of Countrywide Financial by BOA, xxxxxx sent payments to Countrywide Home Loans. And then after the BOA purchase, xxxxxx has been sending payments to BOA.

   11.  E*Trade, whom xxxxxx has never heard of, now claims that they have been assigned a promissory note and mortgage agreement between xxxxxx and Lending Tree, by Mortgage Electronic Registration Systems Inc., (MERS). The E*Trade claim has never been validated with certified evidence.

MERS Naked Conclusory Averment of Being Nominee

   12.  MERS claim is a naked conclusory averment of being "nominee" of Lending Tree with respect to the claimed Assignment of Mortgage to E*Trade.  MERS has failed to validate its claim with certified documentation to prove the existence of an authenticum nominee agreement. Therefore, there is no proof of any authority transferred by Lending Tree to MERS giving MERS the authority to assign the Lending Tree promissory note and mortgage agreement.

"The note and mortgage are inseparable; the former as essential, the latter as an incident. An assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity." Carpenter v. Longan, 83 U.S. (16 Wall.) 271, 274 (1872). (emphasis added) (Access Carpenter here:
http://supreme.justia.com/us/83/271/case.html)

   13.  The above referenced currently binding opinion of the Supreme Court of the United States, was recently utilized as basic law in Landmark Nat’l Bank v. Kesler, No. 98,489, by the Supreme Court of the State of Kansas, (August 2009).

No Nominee Agreement Attached to Complaint

   14.  Furthermore, the claimed, so-called Assignment of Mortgage attached to the complaint makes the naked conclusory allegation that MERS is the nominee of Lending Tree without any proof of a valid nominee agreement between Lending tree and MERS. The Affidavit, dated August 2010 from MERS vice president referencing MERS authority as a “nominee” renders the assignment between MERS and E*Trade meaningless without proof of “nominee” status. Certified representations of authenticum documentation that validate the MERS vice president's sworn statement should have been attached to the affidavit.

   15.  Further, examining the Assignment of Mortgage attached to E*Trade’s Complaint, there is no mention of the conveyance of the superseding Countrywide Home Loans, Inc., Mortgage Agreement, dated November 22, 2006, to E^Trade, nor is there reference to BOA who allegedly purchased Countrywide Financial.

E*Trade Submitted Counterfeit and Forged Copies of
Promissory Note and Mortgage Agreement

   16.  There is a clear break in the proffered uncertified evidentiary chain of custody of the documentation required to validate an assignment of the authenticum promissory note and mortgage. If so, E*Trade has crossed the threshold of this Court with a sham pleading with a void, and counterfeit copy of an alleged mortgage (a security) and promissory note (a security) bearing what appears to be the forged, photo-shopped, and fraudulent misrepresentation of the signature of xxxxxx.  The so-called "signature" shown on a COPY of a writing, is no more real in the same way that a photo-copy image of a baby reproduced on a piece of paper is NOT THE LIVING BABY.

   17.  Who in fact is in actual physical possession of the authenticum “promissory note” relating to a HELOC conveyed and incorporated into a Countrywide Mortgage Agreement, executed approximately four (4) years ago to Countrywide, is a mystery.

   18.  MERS is notorious for possessing only non-negotiable, electronic copies of mortgages and promissory notes. Without production of the original, wet-ink autographed authenticum mortgage agreement and promissory note, there is no way of knowing who in fact is entitled to enforce the actual “promissory note.”

UCC and Person Entitled To Enforce the Note

   19.  E*Trade amazingly claims to be a “person entitled to enforce the promissory note pursuant to IC § 26-1-3.1-301 while presenting copies of what have to be considered to be counterfeit, forged, photo-shopped, and fraudulent representation of an alleged mortgage agreement and promissory note.

   20.  Pursuant to IC 26-1-3.1-301, “Person entitled to enforce instrument”

Sec. 301 states,:

"Person entitled to enforce" an instrument means:

      (1)  the holder of the instrument;

      (2)  a nonholder in possession of the instrument who has the rights of a holder; or

      (3)  a person not in possession of the instrument who is entitled to enforce the instrument under IC 26-1-3.1-309.

   21.  Since, E*Trade is not the original so-called “creditor,” and has NOT proved that it is in possession of the original authenticum promissory note and mortgage agreement, E*Trade, therefore, cannot be considered to be the holder. Further, since E*Trade possesses only a copy of an alleged mortgage and promissory note, they cannot be considered a “nonholder in possession of the instrument who has the rights of a holder.”

   22.  Consequently, E*Trade can only claim to be “a person not in possession of the instrument who is entitled to enforce the instrument under IC 26-1-3.1-309 ...”

   23.  Therefore, E*Trade status is governed by IC 26-1-3.1-309, “Enforcement of lost, destroyed, or stolen instrument.” Sec. 309 states in pertinent part, “[a] person not in possession of an instrument is entitled to enforce the instrument if:

(1) the person seeking to enforce the instrument:

“(A) was entitled to enforce the instrument when loss of possession occurred, “[a] person seeking enforcement of an instrument under subsection (a) must prove the terms of the instrument and the person's right to enforce the instrument. If that proof is made, IC 26-1-3.1-308 applies to the case as if the person seeking enforcement had produced the instrument. The court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. Adequate protection may be provided by any reasonable means.” (Emphasis added).

   24.  xxxxxx autographed a superseding Mortgage Agreement with Countrywide Home Loans, Inc., and denies that the signature alleged to be xxxxxx’s appearing on the proffered copies of securities are genuine. Therefore, IC § 26-1-3.1-308 applies.

   25.  Since pursuant to IC § 26-1-3.1-308, the burden of establishing validity is on the person claiming validity (E*Trade), and E*Trade has not and cannot produce the original authenticum promissory note and mortgage, they have no standing and this Court lacks particular case jurisdiction.

E*TRADE LACKS STANDING
TO INVOKE
THE COURT’S PARTICULAR-CASE-JURISDICTION

Plaintiff Lacks Standing to Maintain this Action

   26.  "[T]he core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Without standing, E*TRADE’S claim cannot go forward. Indeed, "the [ ] courts are under an independent obligation to examine their own jurisdiction, and standing is perhaps the most important of the jurisdictional doctrines." FW/PBS. Inc. v. City of Dallas, 493 U.S. 215, 231 (1990) (internal quotation marks omitted); see also Vickers v. Henrv County Savings & Loan Ass'n, 827 F.2d 228, 230 (7th Cir. 1987). Furthermore, the burden is upon the plaintiff to establish standing and the presence of jurisdiction [ ]. NLFC, Inc. v. Devcom Mid-America. Inc., 45 F.3d 231, 237 (7th Cir. 1995); Grafon v. Hausermann, 602 F.2d 781, 783 (7th Cir. 1979).

E*Trade Failed To Meet The Requirement For Standing
Under Article III
.

   27.  E*Trade failed to establish that a justiciable controversy exists in this case. Article III of the United States Constitution vests the federal courts, with jurisdiction to decide only actual cases or controversies. This constitutional concept must also be observed in the state courts. See Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990); Deakins v. Monaghan, 484 U.S. 193, 199 (1988); DeFunis v. Odegaard, 416 U.S. 312, 316 (1974).

   28.  A central inquiry for determining whether a case or controversy exists is whether there is a "'substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality.'" Lake Carriers' Association v. MacMullan, 406 U.S. 498, 506 (1972) (citation omitted); see also Arizonans for Official English v. Arizona, 520 U.S. 43, 64 (1997). The Supreme Court has noted that standing is perhaps the most important of the case or controversy requirements. See Allen v. Wright, 468 U.S. at 750. The United States Supreme Court has summarized the standing requirement as having three elements:

First, the plaintiff must have suffered an "injury in fact" - an invasion of a legally protected interest which is (a) concrete and particularized, and (b) "actual or imminent, not 'conjectural' or “hypothetical. "

Second, there must be a causal connection between the injury and the conduct complained of - the injury has to be "fairly . . . trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court."

Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision."

Luian, 504 U. S. at 560-61 (citations and footnote omitted). "This triad . . . constitutes the core of Article III's case-or-controversy requirement, and the party invoking federal and state court jurisdiction bears the burden of establishing its existence." See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 103-04 (1998) (citations omitted); Kyles v. J. K. Guardian Sec. Serv, Inc., 222 F.3d 289, 293 (7th Cir. 2000) ("Implicit in that limitation [that there be a case-or-controversy] is the requirement that a party invoking the court's jurisdiction have standing."). As explained below, the plaintiff failed to satisfied the requirements of Article III standing.

E*Trade Failed To Demonstrate An Actual Injury.

   29.  As an initial matter, E*Trade failed to show that it suffered an actual injury sufficient to establish Article III standing. The sweeping assertion based upon a naked allegation concerning one alleged link in the chain of valid assignments that must be complete going to the actual and present holder of the as yet to be proved existing original autographed agreement is simply not sufficient to allow litigation of this particular action.

   30.  Additionally, there is no proof of a valid agreement identifying MERS as a nominee with the power to make valid assignment of rights to enforce the alleged promissory note and mortgage agreement.

   31.  As noted above, a plaintiff’s injury must be "concrete and particularized" and "actual or imminent, not 'conjectural' or 'hypothetical."' Lujan. 504 U.S. at 560; see also Whitmore v. Arkansas, 495 U.S. 149, 155-60 (1990); Illinois v. City of Chicago, 137 F.3d 474, 477 (7th Cir. 1998) ("[i]njury is an indispensable element of a case or controversy," and "[tlhat means a palpable harm to a concrete interest."). The plaintiff’s injury must be one that is "peculiar to himself or to a distinct group of which he is a part." Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 100 (1979); see also Schlesinner v. Reservists Comm. To Stop The War, 418 U.S. 208, 218 (1973). The plaintiff must have a "personal stake" in the outcome of the litigation. See United States Parole Comm. v. Geraghty, 445 U.S. 388, 396, 403-04 (1980).

   32.  E*Trade has not articulated a sufficiently particularized "injury in fact" to satisfy the irreducible requirements of Article III. In particular, E*Trade has not shown valid evidence to prove that xxxxxx is identified upon the face of an existing original autographed agreement.

   33.  Any COPY of such an agreement can easily be fabricated either/or “photo-shopped.”

   34.  E*Trade has failed to allege in even a broad perspective just exactly the nature of any "harm" suffered by E*Trade in order to substantiate an actual and concrete injury. See, e.g., Warth v. Seldin, 422 U.S. 490, 501 (1975) (absent an express statutory right of action, plaintiff must "allege a distinct and palpable injury to himself”).

E*Trade Has Not Shown That Any Alleged Injury Is
Fairly Traceable To xxxxxx Or That the Relief Requested
Is Likely to Redress any Alleged Injury

   35.  Even if E*Trade were able to demonstrate a concrete and particularized injury, standing would still be lacking because there is no valid evidence to prove that any alleged injury to E*Trade is "fairly traceable" to xxxxxx or that the relief requested would likely address E*Trade’s alleged injury. See Lujan, 504 U.S. at 560-61.

   36.  E*Trade has failed to allege the ability to produce any evidence to substantiate the existence of any alleged contract, action, transaction, duty, omission, or responsibility with respect to E*Trade which would constitute a basis for jurisdiction. xxxxxx has neither caused nor threatened to cause any legally cognizable injury to E*Trade. It cannot be said that E*Trade has suffered any actual or threatened injury by any conduct by xxxxxx. See Simmons v. Interstate Commerce Commission, 909 F.2d 186, 189 (7th Cir. 1990).

E*Trade Lacks Prudential Standing

   37.  In addition to the irreducible requirement of Article III, the standing doctrine has a prudential component. Lujan, 504 U.S. at 560. The prudential component ordinarily prevents plaintiffs from invoking the rights of third parties. See Warth, 422 U.S. at 499 (1975); see also Powers v. Ohio, 499 U.S. 400, 411 (1991) (in addition to alleging injury-in-fact, a litigant seeking to invoke the rights of a third party, must allege a sufficiently close relationship with the third party so that the court is assured that the litigant will be an effective proponent of the cause and "there must exist some hindrance to the third party's ability to protect his or her own interests"); Whitmore v. Arkansas, 495 U.S. at 163-64.

   38.  Here, E*Trade seeks to litigate the rights of an unnamed and unknown holder of an alleged agreement that has not been proved to even exist. Without any showing of a concrete and particularized injury in fact and any showing that E*Trade possesses the requisite "close relation" to the actual and present holder of an alleged original agreement, E*Trade cannot show that it is attempting to protect its own interests. See Powers v. Ohio, 499 U.S. at 411. To the contrary, E*Trade has initiated this instant action without any valid proof whatsoever to demonstrate an unbroken and valid certified chain of assignment to the alleged actual and present holder of the alleged original autographed agreement. Accordingly, E*Trade lacks standing to make the assertions in the complaint.

CONCLUSION

  39.  WHEREFORE, based on the foregoing, the Defendant respectfully requests this Court enter the tendered order attached hereto, dismissing E-Trade’s Complaint.

 

         Respectfully presented, 

         __________________________
         xxxxxx
         Addr
         Indiana
         Tel.

CERTIFICATE OF SERVICE

    I hereby certify that a true and accurate copy of the foregoing was served via U.S. Mail, postage prepaid, this _______ day of September, 2010, by mailing same to:

Plaintiff Attorney
Indianapolis, IN

  

                        __________________________
                        xxxxxx
                        Addr
                        Indiana

 

 

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