motion in opposition to substitute party plaintiff

CASE NO. 10CV122MOTION TO AMEND MOTION TO STRIKE PLAINTIFF’S MOTION TO SUBSTITUE PARTY [email protected]

IN THE DISTRICT COURT OF DOUGLAS COUNTY, KANSASCIVIL COURT DEPARTMENT

METLIFE HOME LOANS, A DIVISION OF )METLIFE BANK, N.A. ) ATTORNEY’S COPY

Plaintiff, ) vs. )

) Case No. 2010 CV 122 C.T. & KELLY L. HANSEN; ) WELLSVILLE BANK; ) Hon. Robert W. FairchildUNITED STATES OF AMERICA ) DIV I – K.S.A. 60

DEFENDANTs and ) Counterclaim ) TITLE TO REAL ESTATE Plaintiffs, Pro Se ) INVOLVED

) MORTGAGE FORECLOSURE

MOTION TO AMEND MOTION TO STRIKE PLAINTIFF’S MOTION TO SUBSTITUE PARTY PLAINTIFF

COME NOW, Clarence G. Hansen and Kelly L. Hansen (“DEFENDANTS”), Pro Se,

and moves this Court to deny MetLife Home Loans, a Division of MetLife Bank, N.A.

(“PLAINTIFF”) Motion to Substitute Party Plaintiff, and as grounds therefore states:

In searching the Kansas Statutes, Defendants can only find K.S.A. 60-255, and

amendments thereto, in reference to a substitution of party plaintiff, and the statute is applicable

only if a party dies. Because the Plaintiff did not refer to another Kansas Statute or any Kansas

case law in support of its motion, DEFENDANTS offer the following statements in support of

their motion to strike:

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

302(1)(2)(C)(D)(E)(F)1 the entity accepting Defendant’s note would not be a holder in due

course as it took the security interest in the Defendant’s note subject to the same infirmity that

was present when it was held by MetLife. The accepting entity may not recover on the Note.

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

mailto:[email protected]


2. Pursuant to the Kansas Statute of Frauds; Fraudulent Conveyances, Chapter 33,

Article 1, transfers to delay or defraud are deemed utterly void and of no effect:

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

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

Defendant’s Note.

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

stated there had been an additional assignment subsequent to the assignment to IBM Lender

Processing Services that took effect on May 1, 2010. In a transcript from the hearing, on page 4,

Mr. Robert M. Swiss, Counsel for MetLife advised “Fannie Mae will now be substituted as the

party plaintiff. We haven’t filed a motion to substitute the plaintiff yet; we are waiting for the

affidavits showing that the note has been assigned . . . which I expect to be filed in the next

couple of weeks as soon as we get that affidavit finalized.” The assignment to Fannie Mae was

made on July 26, 2010. Plaintiff announced it to the Court on August 16, 2010. Mr. Swiss’s

motion to substitute party plaintiff is not timely. Defendants request it be denied.” A copy of

page 4 from the transcript of the Case Management Hearing is attached hereto as Defendants

Exhibit A and is incorporated herein by this reference.

5. MetLife, if it “sold” a purported interest to Fannie Mae (and the DEFENDANTS

aver the Plaintiff holds no interest to sell) the DEFENDANTS move this Court to ORDER the

Plaintiff to “put back” to Fannie Mae its purported interest. There is no justification to substitute

party plaintiff this late in litigation at the caprice of the Plaintiff.



6. The court in Landmark Nat’l Bank v. Kesler (September, 2009) noted that investors

that purchased loans from MERS should not be allowed to:

“obscure[e] from the public the actual ownership of a mortgage, thereby creating the opportunity for substantial abuses and prejudice to mortgagors…, [and] should not be permitted to insulate [the mortgage purchaser] from the consequences of its actions in accepting a mortgage from [the original lender] that was already the subject of litigation in which [the original lender] erroneously represented that it had authority to act as mortgagee.”2 (Emphasis mine.)

In the instant case, the Plaintiff is the fourth servicer of this mortgage loan and it has

“erroneously represented it has the authority to act as mortgagee” by selling the DEFENDANTS

Note to Fannie Mae. The Plaintiff has failed to respond to DEFENDANT’S repeated requests to

Produce. It has not proven it owns the DEFENDANT’S Note, nor that it has standing to bring

this cause of action in this Court, and it certainly has no legal right to sell a purported interest to

Fannie Mae.

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

DEFENDANTS; they have spent the 18 months preparing a defense against METLIFE, not

FANNIE MAE. Plaintiff should not be allowed to force the DEFENDANTS to jump through its

strategic hoops.

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

Mortgage in default – a standard guideline in each of its Securitization Master Pooling and

Servicing Agreements.

9. Neither METLIFE HOME LOANS nor FANNIE MAE are registered with the

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

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



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

Plaintiff’s Reply to Defendant’s Counterclaim, ¶8.

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

mortgage loans as is required by the State of Kansas’ Office of the State Bank Commissioner. 4

See DEFENDANTS Answer, Affirmative Defenses, and Counterclaim, ¶9 and Plaintiff’s Reply

to Defendant’s Counterclaim, ¶9.

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

JUDGMENT, has invoked K.S.A. 9-1121 in a very telling attempt to avoid the evidentiary

requirement of producing the Defendant’s original Promissory Note. In 2009, The U.S. Supreme

Court established in Cuomo v Clearinghouse, all National Banks, are subject to the laws of the

state in which they are foreclosing5. See Motion to Amend Motion in Response to Plaintiff’s

Cross Motion for Summary Judgment, Pp. 11-13.

DEFENDANT’S state a foreclosing Plaintiff must show, at the time the foreclosure

action is filed, that it is the owner or the holder in due course of the DEFENDANT’S Note6

(MERS cannot assign Notes) with rights to enforce the DEFENDANT’S Note and Mortgage and

that the DEFENDANT’S default has caused them harm. After an adequate period of discovery,

the Plaintiff has not been able to produce, and will not be able to produce, evidence sufficient to

allow the Trier of fact to find the Plaintiff will be able to prove up the ultimate fact elements of

their case.

3 Cuomo v Clearinghouse by US Supreme Court, June, 20094 Cuomo v Clearinghouse by US Supreme Court, June, 20095 Cuomo v Clearinghouse by US Supreme Court, June, 20096 Landmark National Bank v. Kesler, 216P.3d, 166-168



WHEREFORE, the Defendant’s respectfully request the Court deny the Plaintiffs Motion

to Substitute Party Plaintiff.

RESPECTFULLY SUBMITTED this Wednesday, February 9, 2011,

CERTIFICATE OF SERVICE

I CERTIFY that this CHAMBER COPY of the foregoing was sent U.S.P.S. overnight

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

Honorable Robert W. Fairchild on Wednesday, February 9, 2011.

I CERTIFY that this ATTORNEY COPY of the foregoing was provided by fax

transmission to R. Scott Ryburn, Attorney with ANDERSON & BYRD, LLP. Counsel for

WELLSVILLE BANK, delivered to fax 785-242-1279, on Wednesday, February 9, 2011.

FURTHER, I CERTIFY that an ATTORNEY COPY of the foregoing was sent U.S.P.S.

overnight express delivery signature required to Bob Swiss, Attorney with MARTIN, LEIGH,

LAWS & FRITZLEN, P.C., Counsel for PLAINTIFF, on Wednesday, February 9, 2011.

FINALLY, I CERTIFY that this CLERK COPY of the foregoing was sent U.S.P.S.

overnight express delivery signature required to the Clerk of the Douglas County District Court

on Wednesday, February 9, 2011.

Clarence G. Hansen, Defendant 83 E. 1250th RoadBaldwin City, KS 66006785-760-2337 Phone [email protected]

Kelly L. Hansen, Defendant

33605 W. 88th StreetDe Soto, KS 66018

913-529-9837 Phone 866-409-9552 Fax

[email protected]

Clarence G. Hansen, Defendant 83 E. 1250th RoadBaldwin City, KS 66006785-760-2337 Phone [email protected]

Kelly L. Hansen, Defendant

33605 W. 88th StreetDe Soto, KS 66018

913-529-9837 Phone 866-409-9552 Fax

[email protected]






motion in opposition to substitute party plaintiff

Documents