[doc edited 18-DEC-2010]
STATE OF INDIANA
IN THE JOHNSON CIRCUIT/SUPERIOR COURT
COUNTY OF JOHNSON
|| Case Number
|xxxxxx, et al.
MEMORANDUM OF LAW
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.
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,
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
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
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
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
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
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
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
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
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
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.
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.'"
Association v. MacMullan, 406 U.S. 498, 506 (1972)
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
Allen v. Wright,
468 U.S. at 750. The United States Supreme Court has
summarized the standing requirement as having three
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
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."'
U.S. at 560; see
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
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.
Parole Comm. v. Geraghty, 445 U.S. 388, 396, 403-04
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
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
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
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.
Interstate Commerce Commission, 909 F.2d 186, 189 (7th
E*Trade Lacks Prudential Standing
37. In addition to the irreducible requirement of Article
III, the standing doctrine has a prudential component.
U.S. at 560. The prudential component ordinarily prevents
plaintiffs from invoking the rights of third parties. See
U.S. at 499 (1975);
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");
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
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.
39. WHEREFORE, based on the foregoing, the Defendant
respectfully requests this Court enter the tendered order
attached hereto, dismissing E-Trade’s Complaint.
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: