Plaintiffs discover new findings of Fraud and challenge res judicata in foreclosure case

Here is one example of how not to litigate. Calling the Judge names and pretending to know more about the law than the Judge does is a sure fire way to lose. The Homeowners should have argued that they brought no counterclaims and then argued that they were prevented from litigating properly the issues that they raised in defense of the foreclosure.
Whatever you think of res judicata, they are doctrines that DO exist and not just in mortgage foreclosures and related claims and counterclaims. Blaming the court for applying applicable rules is not a way to turn a loss into victory.
Editor’s note: Keyser v. Stern & Eisenberg PC

PHILADELPHIA – Plaintiffs in a mortgage foreclosure action have challenged the ruling of a federal judge who ruled the doctrine of res judicata effectively barred their claims from proceeding in court.

 On Feb. 27, Judge Cynthia M. Rufe of the U.S. District Court for the Eastern District Court of Pennsylvania ruled to dismiss the federal litigation brought forward by plaintiffs Kathleen and Harry Keyser against defendants Stern & Eisenberg P.C., Edward J. Donnelly, Christina C. Viola, Ocwen Loan Servicing, LLC, Francis S. Hallinan and U.S. Bank National Association.

Initially, the Keysers alleged that the defendants forged a note and mortgage, and subsequently relied upon the fraudulent documents to secure a state court judgment in mortgage foreclosure.

“In the state court action, the Bucks County Court of Common Pleas granted a motion for summary judgment in favor of defendant U.S. Bank, the holder of the note and mortgage in question, and plaintiffs’ property was subsequently sold to U.S. Bank at sheriff’s sale,” Rufe said.

Defendants Ocwen, U.S. Bank National Association, Stern & Eisenberg and Viola moved to dismiss the instant complaint, and Rufe eventually issued a ruling stating the doctrine of res judicata served to bar the plaintiffs’ claims.

“All of plaintiffs’ claims are rooted in the theory that they never executed the note and mortgage at issue, and that the documents relied upon by defendants in the state court action were fraudulent. Plaintiffs’ claims in this action are entirely based on the state court action, which resulted in a final judgment on the merits involving defendants. Because plaintiffs’ grievances could have been raised in the state court action, res judicata bars plaintiffs from re-litigating them in this Court, and the complaint will be dismissed with prejudice,” Rufe said in her February decision.

Now, the Keysers believe Rufe’s ruling utilizing res judicata and the Rooker-Feldman doctrine was “a fallacious interpretation” and filed a statement for reconsideration with the Court to argue as such, sparing no verbiage in doing so.

“This judge ruled and invoked res judicata which is a clear gross sign of incompetence or outright ignorance on the part of this person masquerading as a judge. This judge allowed forged and fraudulent promissory, forged and fraudulent assignments and absolutely no authentic evidence to be in compliance with the Pa. Rules of Evidence 901, 902, 1002, 1003 or 803.6, and violated the bank’s own terms and conditions specifically listed in the fraudulently created promissory note,” the Keysers’ statement read, in part.

Res judicata, like Rooker-Feldman, is just a protective shield used to protect the debt purchasing bandits in their illegal use of forged and fraudulently created notes. These criminals are making financial contributions to the pensions account and these attorneys sell the property and pocket the lion’s share of the money for them for the bank has collected on a fraudulent mortgage default insurance package,” the statement also read.

The plaintiffs stated their intention to file a fraud complaint with the Federal Bureau of Investigation (FBI) as well with the U.S. Attorney’s Office in response to Rufe’s ruling.

The defendants are represented by Evan Barenbaum of Stern & Eisenberg in Warrington, plus Brett L. Messinger and Brian J. Slipakoff of Duane Morris, in Philadelphia.

U.S. District Court for the Eastern District of Pennsylvania case 2:16-cv-02298

Bartram: The Missing Links

Why did the Plaintiff lose in its “standard foreclosure”?

The decision on acceleration is essentially this: If the banks do it, it doesn’t count.

While Bartram didn’t turn out the way we want, there are two paths that nobody is talking about — logistics and res judicata.

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The Florida Supreme Court decision in Bartram reinforces the absurd — that after losing in trial court, the pretender lender can sue over and over again for “new defaults.” The court has re-written the alleged “loan contract” to mean that a loss in court means that their acceleration of the entire loan becomes de-accelerated, meaning that acceleration is merely an option hanging in the wind that doesn’t really mean anything. The decision might have consequences when the same logic is applied to other actions taken pursuant to contract. The decision on acceleration is essentially this: If the banks do it, it doesn’t count.
But two things remain outstanding, one of which the court mentioned in its opinion. Why did the Plaintiff lose in its “standard foreclosure”? The issues that were litigated as to the money and/or documentary trail have been litigated and are subject to res judicata. The Plaintiff, if it is the same Plaintiff, is barred from relitigating them.
If Plaintiff failed to prove ownership of the loan and was using fabricated void assignments and endorsements, the lifting of the statute of limitations should not help them in attempting to bring future litigation. Many other such issues were undoubtedly raised in the original case. The Plaintiff would be forced to argue that while the issues were raised, they were not actually litigated and a judgment was not entered based upon those issues.
The Florida Supremes took away the Statute of Limitations, up to a point (see below) but gave us the right remedy — res judicata. Even if a new Plaintiff appears, the questions remain as to how the alleged loan papers got to them remain open, as well as whether the paper represented any actual loan contract absent an actual lender.
And then there are the logistics that I don’t think were considered in its decision. According to the Bartram decision the act of acceleration vanishes if the Plaintiff loses. The statute of limitations does apply for past due payments that are more than 5 years old. That means, starting with the date of the lawsuit (not the demand), you count back 5 years and all payments due before that are barred by the SOL.
So if a Plaintiff loses the foreclosure, it can bring the action again based upon missed payments that were due within the SOL period. Of course if the Defendant won because the Plaintiff had no right or authority to collect on the DEBT, the action should be barred by res judicata. But putting that issue aside, there are other problems.
“Servicing” of a designated “loan account” is actually done by multiple IT platforms. The one used for foreclosure comes out of LPS/Black Knight in Jacksonville, Florida. This is the entity that  fabricates documents and business records for foreclosure. It is not the the actual system used for servicing that deals in reality with the alleged borrower and accepts payments and posts them. It is incomplete. This system intentionally does not have all the documents and all the “business records” relating to the loan. For example there is no document or report that shows who was and probably still is receiving payments as though the loan were performing perfectly.
The decision on when and if to foreclose is always performed by LPS/Black Knight in order to prevent multiple servicers, trustees, banks and “lenders” from suing on the same loan, which has happened in the past. LPS assigns the loan to a specific party who is then named by Plaintiff. And LPS creates all the fabricated paperwork to make it look like that party is the right Plaintiff and that the business records produced by LPS can be presented as the business records of the party whose name was rented for the purpose of foreclosure. It is LPS documents that are produced in court, not the records of the named Plaintiff.
So here is a sample simple scenario that will illustrate the logistical problem created by the Florida Supremes: LPS issues a notice of default letter naming the claimant as XYZ, as trustee for XYZ series 2006-19B Pass Through Trust Certificates. Previously XYZ lost the foreclosure action by failing to prove that it had any relationship with the loan. The Notice of Default and right to reinstate issued by LPS on behalf of XYZ must be for payment that was within the SOL. This action of course waives the payments, fees etc that are barred by the SOL. It also assumes that the date of the letter AND THE LAWSUIT will be within the SOL period. So for example, if the last payment was on December 1, 2006 and the letter refers to a missed payment starting with January 1, 2012, the letter is proper. But if suit is not commenced until January 2, 2017, the letter is defective and the lawsuit is barred by the SOL. Further the doctrine of res judicata bars any cause of action that was litigated previously.
All of this leads to a court determination of what issues were previously raised, when they were raised and whether the Final Judgment in favor of the homeowner means anything.

Florida Foreclosure: Where No Case is Over-Ever

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I have not commented on the arguments regarding the statute of limitations here in Florida. It is time I did. The article here points out that the 3rd DCA has bent over backward and essentially broken its own backbone by creating legal fictions to save the banks. What they continue to ignore is that saving the banks means screwing the consumer, the citizen and the taxpayer. They also have essentially ruled that the banks can keep coming into court, filing the same lawsuit over and over again, until they win by attrition — few homeowners can afford to contest foreclosures repeatedly. The 3rd DCA decision essentially says that it isn’t over until the bank wins.

The obvious premise behind this flawed decision is that somehow this will make everything turn out “right.” It doesn’t. The court completely ignores the huge body of law and information in the public domain that reveals the banks as the perpetrators of epic fraud. Either the court doesn’t know about the fraud or it doesn’t care.

And what the court does not address is the nature of the fraud by assuming facts that don’t exist. These banks don’t have a penny invested in any of the loans that they are using for foreclosure and even modification where ownership of the debt gets transferred from the investors who advanced the money to the banks who sold them the bad deals. The investor is left with nothing in most cases while the borrower cleans out his savings account trying to save his/her home only to lose it to a party who is stealing the home from the borrower and the loan from the investor.

The court is creating multiple legal fictions. In so doing the court has destroyed the value of stare decisis — legal precedent. Or, if you look from another point of view creating a destructive legal precedent. Instead of taking each legal effective act as something that matters, they have bent and broken the language of the note and mortgage — essentially converting the act of acceleration to an option that means nothing unless foreclosure is successful.

If this decision is left standing then no case is over, ever. And lawyers will start arguing that even though their client committed themselves to an act with legal significance, they now choose to disavow that act and proceed on an alternative theory — after they have already lost the case in prior proceedings. This creates an endless chain of alleging “new facts” or “alternative facts” on every case where a party previously lost the legal contest, or where their case was dismissed.

The inherent presumption is that borrowers have no voice in this process because they received the benefit of fraudulent schemes. But in the courts where I grew up as a lawyer, no party was allowed presumptions if they had unclean hands seeking the equitable remedy of foreclosure.


Nor would a fraudster be allowed to benefit from his schemes once the scheme was revealed. The courts are turning this on its head. As stated in the Yvanova decision in California, it DOES matter if the wrong party is bringing the foreclosure action. It is not enough that the homeowner may owe someone money based upon some equitable theory of law; the homeowner must respond only to a claim from the actual party to whom the debt is owed, i.e., the creditor.

That California decision said it well — we don’t enter judgments against people simply because they must owe somebody (or anybody) money. The legal system is only available to those with legal standing — a party to whom the debt is actually owed because they paid for it.
This rush to “convict” the homeowner of bad behavior (breach of an unconscionable arrangement where there is no actual enforceable loan contract) is the insidious basis of most of the court decisions where the courts have “read in” fictions that never existed by contract, statute or legal precedent.


They did it with due process by putting the burden on homeowners to prove facts that were solely within the care, custody and control of third parties.


They rubbed it in when they blocked discovery to get to those facts.


They did it again by reading into TILA rescission that the homeowner must file a legal action to make rescission effective (despite the express wording of the statute to the contrary).


They did it again by reading into TILA rescission that the homeowner had to offer some tender to the “lender” in order to make rescission effective.


And they are doing it again, even after the Supreme Court of the United States told them they were wrong by reading into TILA rescission that the conditions precedent to a valid rescission mean that the rescission is not legally effective until a judge decides the issues raised by the pretender lenders. THAT theory brings us full circle around to the erroneous theory that TILA rescission is not effective upon mailing and that it is not effective until someone files a lawsuit. But they do it again when they say that the Court can decide the outcome of a nonexistent lawsuit filed by a nonexistent party.

This won’t end until the Courts return to basic contract law. The courts must abandon their intrusion into the legislative agendas where public policy is declared. They must especially back off when the court doctrines on public policy conflict with the legislators who are the ONLY people constitutionally permitted to make policy. Those legislators have spoken on Federal and State levels. But the courts are unconstitutionally refusing to abide by laws passed by the legislative branch. The statute of limitations is just another example.


The way it destroys legal precedent is that it directly conflicts with the doctrine of finality. For example if a person is in an auto accident and chooses to make the claim before they reach maximum medical improvement, the measure of damages is diminished because once they sue the damages are based upon the proven injury. They might even lose because the proven damages are inconsequential. When they later discover they have more injuries and more damages they cannot come back into court and say that their last claim was an option — and more importantly that the fact that their claim was dismissed should be ignored.   And even more to the point, if their last claim was within the statute of limitations and their present claim is outside of the statute of limitations the plaintiff’s claim is dismissed on the basis of res judicata — the matter has already been litigated AND the statute of limitations.


If the judiciary is able to rewrite laws of the legislature from the bench in regards to Mortgages, then why shouldn’t the court do the same for ALL legal issues?  It is only a matter of time until these cases are used to circumvent the statute of limitations in other cases- opening up an onslaught of new cases that have already been tried.  Finality will be a thing of the past.


There can be little doubt that the banks control the judiciary. The Third District Court of Appeal ruled that the statute of limitations in mortgage foreclosure actions are not applicable. The court had earlier determined in the 2014 Deutsche Bank v. Beauvais opinion that the statute barred Deutsche Bank from filing a foreclosure action five years after the borrower’s default and the lender’s acceleration demanding full payment of the loan.

The Third District Court reversed this decision in a 6-4 ruling on April 12 and held that the statute of limitations can NEVER bar a bank’s efforts to foreclose on a Florida homeowner! What does this mean? It means that the banks will have until 5 years after the maturity of the loan to foreclose, and the ability to repeatedly file foreclosure actions until they have outspent and exhausted the homeowner.

This decision is a travesty. This decision ensures the foreclosure crisis will continue for decades, and allows the banks unlimited court actions until they can successfully foreclose on the homeowner. Very few homeowners have the financial means to endure decades of litigation, and very few homeowner’s attorneys will have the endurance or desire to defend cases for long durations of time. This ruling allows the banks to regroup, correct the issue, and re-litigate (or fabricate documents to “cure” the error).

The Third District’s en banc decision was based on the 2004 Florida Supreme Court opinion in Singleton v. Greymar. In Singleton, the trial court dismissed the lender’s foreclosure action on an accelerated debt with prejudice after the bank failed to appear at a hearing. What is unclear from the Singleton record is why the lender failed to appear. The court should have recognized that there was an agreement to reinstate under which the borrower made payments prior to the dismissal.
The lender filed a second foreclosure action after the borrower defaulted on a new, subsequent workout plan. The borrower sought to avoid the second action claiming res judicata. It is noteworthy that the lender’s Supreme Court brief in Singleton was only four pages long, with only one paragraph of actual argument stating that to deny the foreclosure would create “uncertainty” for banks and a “windfall” for homeowners, offering no analysis of res judicata, collateral estoppel or the consideration of the statute of limitations.

Even the attorney who represented the lender in Singleton, Mark Evans Kass, said that Singleton has been misinterpreted and misapplied by many courts across Florida, including the Third District in Deutsche Bank v. Beauvais. The Florida Supreme Court found the two actions were different events and the second action involved a new and distinct default by the borrowers.

“There really is no mystery as to why the Florida Supreme Court ruled that my client was not barred by res judicata in bringing the second foreclosure action,” Kass stated. “It’s simple. The debtors, Gwendolyn and William Singleton, made payments and reinstated the loan after we accelerated the debt. A few months after reinstating and dismissing the first lawsuit, they defaulted again, which is why we filed a second lawsuit and alleged a subsequent and separate default date — because there actually was a subsequent and separate default.”


Kass commented on the Third District’s recent en banc opinion and said, “I would agree with the dissent that Deutsche Bank v. Beauvais has created a new legal fiction. In Singleton, we had a reinstatement and then a new and separate default. For that reason, our second foreclosure was a different cause of action. I understand that the borrower in Beauvais never reinstated the accelerated loan, never made additional payments, and there was never a new or subsequent default.”

The four dissenting judges in Beauvais agreed and stated that Beauvais: 1) creates a “legal fiction” that acceleration does not affect the installment nature of the loan; 2) rewrites the contract provisions between the parties; and 3) rewrites the statute of limitations to favor banks. Thus, the only exceptions to the statute of limitations in Florida are capital crimes like murder and now-mortgage foreclosures. However, ONLY murder is an exception actually carved out by a statute enacted by the Florida Legislature.


The Florida Supreme Court failed to address is how there can legally be a new default after a debt has already been accelerated. Over the years the banks have worked to convince the courts that Singleton supports the proposition that if a foreclosure is dismissed “for any reason,” there is an automatic reinstatement of the installment nature of the loan, thereby resetting the statute of limitations period for foreclosures.

In an unprecedented move, the Third District took Beauvais to an entirely new level claiming that the installment nature of the loan was never affected by the lender’s acceleration of the debt. Thus, even if a bank demands full repayment, the borrower is still obligated to make monthly payments as if there were no acceleration. The courts have opportunistically misinterpreted Singleton and the Florida Supreme Court will need to clarify whether Singleton changes the meaning and effect of “acceleration” and therefore nullified the statute of limitations for mortgages.



With so many courts misinterpreting the Florida Supreme Court’s Singleton opinion, the Florida Supreme Court must clarify whether Singleton changed the meaning and effect of “acceleration” and nullified the statute of limitations for mortgages. New exceptions to the statute of limitations is a Legislature issue, not for the judiciary to decide.

Does Yvanova Provide a Back Door to Closed Cases?

That is the question I am hearing from multiple people. My provisional answer is that in my opinion there is a strong argument for using it if the property has not been liquidated after the foreclosure auction. There might be a grey area while the property is REO and there might be a grey area where the property has been sold but the issue of a void assignment is raised in an eviction procedure. It will strain the minds of judges even more, but these issues are certain to come up. As things continue to progress Judges will shift from looking askance at borrowers and thinking their defenses are all hairsplitting ways to get out of a debt and get a free house. Upon reflection, over the next couple of years, you will see an increasing number of judges taking the same cynical view and turning it toward the banks and servicers who in most cases function neither as banks or servicers.

The Yvanova court took great pains to say that this was a very narrow ruling. Starting with that one might argue it only applied to that specific case. But they went further than that and we all know it. SO it stands for the proposition that a void assignment can be the basis of a wrongful foreclosure. AND most BANK LAWYERS agree that is a huge problem for them, at least in California but they think it will adopted across the country and I agree with the Bank lawyers on that assessment.

The reason is simple logic. If the foreclosure is wrongful then it seems stupidly simple to say that it was wrong in the first place. If it was “wrong” the questions that emerge in legal scholarship arise from two main paths.

What does “wrong” mean. Or to put it in Yvanova language is wrong the same as void or is it voidable. This would have a huge impact on issues of jurisdiction, res judicata, collateral estoppel etc. Does it mean that it was wrong and you can get damages or does it mean that it was wrong and therefore the homeowner still owns the house. I lean towards the former not by preference but by what I think the court was saying between the lines. The whole point of nonjudicial foreclosure (amongst two other points that are obvious) is to provide stability and confidence in the title system. So if a wrong foreclosure occurs the title would most likely remain in whoever bought it at auction — although the purgatory in which many properties remain (REO) might create a grey area in which there is no prejudice in vacating the sale. Indeed if the party holding the “FINAL” title did so by fraud (using a void assignment) then equity would seem to demand return of title to the homeowner. AND THEN you still have the problem of evictions or writs of possession or whatever they are called in your state. Title is one thing but possession is another. If you raise the void assignment can you defeat possession even if you can’t defeat the title transfer? It would SEEM not but equity would demand that a thief not further the rewards of his ill-gotten gains.

Next path. Procedure, evidence and objections. Going back in time the homeowner might have objected or even alleged things that the Yvanova court now finds to have merit. So a lay person might think that is all they need is to show the void assignment and presto they have title or money or both in their hands. Not so fast. Due process is intended to allow a person to be heard and the justice system is designed and created to FINALIZE disputes, whether the decision is right or wrong. SO questions abound about what happened at the trial court level. But there was a remedy for that. It is called an appeal. And there are choices to even go to Federal Court if the state court is rubber stamping void instruments. But the time for doing that has expired on all but a few cases and the judicial doctrine of finality is the most difficult to overcome. Even a condemned man usually will be put to death even if there is actual evidence of innocence after a period of time has expired and a number of appeals have been exhausted.

SO that is my long winded way of saying I don’t know. If Yvanova opens the door to many new openings of closed cases, it certainly doesn’t say so. But a defense of a current case — even one amended to cite Yvanova, might fare much better.

The real answer: pick a path and try it.

Miuse of Lift Stay Order Causes Chaos in State and Federal Courts

I have noticed on many occasions that the bankruptcy court judges are adding to the orders some language of finding that the movant is the owner of the loan. The court lacks jurisdiction to consider those issues and that is the reason why the act of lifting the stay is a ministerial act based upon a preliminary finding that the movant has some colorable right to proceed.

It is nothing more than an order of remand outside the administrative side of the bankruptcy following which the debtor ought to be able to file either an adversary proceeding in the Bankruptcy action, a federal civil action with the Federal District Civil Court or the state court of competent jurisdiction.

But when filed outside the adversary proceeding in the bankruptcy court, the debtor is often met with the argument that the matter has already been litigated and that therefore the debtor should be barred from “re-litigating” the issue under the Rooker-Feldman doctrine, or the common law doctrines of collateral estoppel or res judicata.

Frequently uninformed Judges accept this argument as true. While it is true that good research and writing of memorandums might suffice I have suggested to attorneys that they attack the source — the bankruptcy Judge in the administrative proceedings in which the bankruptcy is being processed.

Based upon this I have advised several attorney who have asked for my research and opinion, that the court be advised that the lift stay order is going to be misused and that the court lacks jurisdiction to do anything other than grant or deny the motion to lift stay. But many Judges are adding language that implies that the matter has been litigated, which causes unending procedural problems for the homeowners.

If you lose, you ought to ask the Judge to insert language in the order that the order may not be construed as a findings of fact based upon an adversary hearing in which evidence was presented on the merits of the intended foreclosure or the the debtor’s defenses.

The problem you are addressing is that if the lift stay order is entered, it is often construed by state courts as being conclusive as to the issue of the ownership of the loan, the legal ability of the forecloser to submit a credit bid, and your potential defenses.

This is particularly true where Judges gratuitously add, at the urging of the would-be forecloser that the forecloser is the owner of the loan. Since the burden of proof required at a motion to lift stay hearing is merely whether there exists some “colorable” right to proceed, it is not a hearing in which due process  has been afforded the debtor as to the merits of the supposed creditor’s claim nor the defenses of the debtor, where the burden of proof is at least a preponderance of the evidence.

So I often suggest that counsel for the debtor specifically request that if the Judge is inclined to grant the lift stay order, that the Judge also recite the fact that this order should not be construed as barring the defenses or claims of the debtor under the Rooker-Feldman doctrine, res judicata or collateral estoppel, which is something for the state court to decide.

Whether you are filing or speaking or both, the wording should go something like this (check with licensed counsel as to form and content):

1. The debtor denies that the party seeking relief from stay is a creditor of the bankruptcy estate or an authorized representative of any creditor. In fact, the moving party refuses to provide the identity of the creditor who could submit a credit bid in lieu of cash at auction and refuses to provide either the debtor or this court with any evidence from the Master Servicer which has access to the loan receivable account that contains all of the receipts and disbursements relative to this loan and the pool it is alleged to be the owner of the loan.
2. Debtor also denies that a perfected lien exists in which this moving party or any other party can foreclose.
3. Debtor denies the default, since the subservicer and other parties continued to make payments to the creditor’s loan or bond receivable account after the alleged declaration of default and notice of sale. Hence even if this court were to decide that the “colorable” claim threshold had been met, the order entered should not be subject to claims by this movant that a default exists or that it is the the actual owner of a loan receivable account in which the balance is deficient or payments have not been made to the creditor.
4. In fact, based upon public records, it is apparent that a mortgage bond was issued in lieu of an account or loan receivable and that the account was or should be credited with payments received by insurance, credit default swaps and other contractual arrangements with the subservicer and master Servicer in which the creditor was paid or credited with those payments that expressly waived subrogation and which did not involve an assignment or purchase of the loan.
5. Based upon the facts thus far discovered by debtor and the lack of evidence offered by the the party seeking the right to foreclose, debtor specifically denies that she ever entered into a financial transaction with this party or any of its predecessors. Debtor admits that she has had many loans or credit with many parties as is evident from the schedules filed in this bankruptcy, but none of those included this party moving to lift stay or any predecessors.
6. If the court were to enter an order based upon the “colorable” interest doctrine, Debtor respectfully requests that this party or any successors be barred from using this order as a matter that had had already been litigated and that debtor be permitted to assert claims and defenses in the state court, as these would-be foreclosers have claimed when the debtor brings actions for Temporary restraining Orders and other claims.
7. Debtor denies the the note is evidence of any loan owed by debtor to this movant or any of its predecessors and denies therefore that the Deed of Trust constitutes a perfected lien against the subject property and further denies that the power of sale contained in the Deed of Trust can be exercised —particularly without an adversary proceeding in which evidence is presented with proper foundation through testimony of competent witnesses that the debtor can cross examine.
8. In fact, upon information and belief, the wire transfer instructions received by a closing agent specifically exclude this movant and any predecessors in interest or asserted interest regarding the loan origination documents, that were not and never were supported by consideration nor were any “assignments” or sales of the loan ever supported by consideration in which value or money exchanged hands. Debtor denies that the named payee was the lender or source of funds for any loan and therefore could not neither be the beneficiary under the deed of trust nor have any nominee as beneficiary under the deed of trust.
9. This is being brought to the court’s attention at a late date because the information about the origination of the loan only recently came into the hands of the debtor.
10. Debtor denies the validity and authenticity of any documents proffered by the supposed creditor to whom no money is owed and who lacks any right, justification or excuse to bring any collection or foreclosure proceeding since it neither funded nor purchased the loan.
11. Even in a motion to lift say, the burden is upon the movant to bring forward some competent evidence in which the foundation for any documents being used to support the motion are supported by the testimony of a witness that is competent to testify — on personal knowledge of the all of the receivable instead of the partial accounting from the subservicer upon which the the movant and the trustee on the deed of trust rely. Debtor denies that such a witness exists because the facts upon which such a witness would be required to testify also do not exist.
12. Debtor intends to bring an adversary action against this movant for wrongful foreclosure, abuse of process and slander of title, amongst other causes of action. If the court denies the motion to lift stay, debtor shall file the adversary action in the in this Court. If the Court grants the motion to lift stay, debtor shall file the proceeding in state court. Debtor requests that her meritorious claims not be barred by misuse of civil procedure and misuse of the rules of evidence and common law doctrines based upon a hearing whose burden of proof is less than “probable cause” in criminal actions.

If the BKR judge disagrees, then statistics would indicate that a LATERAL appeal to the District Court judge would have a much higher likelihood (50%) of success than an appeal to the BAP (15%) or Circuit Court of Appeal (15%).

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