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I. JURISDICTIONAL STATEMENT

APPELLANT ANNA MAY WONG (WONG), appeals all Orders of Judge

Whitneys beginning with the Order applying the CAPP program through the Order

Granting CLG Attorneys fees. All orders are final (Rule 54(b)).

The Appeal, subject to C.A.R. 31(c) and C. A. R. 28(a), RT=Reporters

Transcript; AA: =Appendix; Ad: =Addendum (Orders attached to brief).

II. STATEMENT OF ISSUES

A. Whether the court erred in concluding that WONG failed to state a claim under 12(b) (5); and concurrently that defendant lacked standing.

B. Whether the Statute of Limitation of 1 year was tolled under the Continuing injury Doctrine in WONGs FDCPA claim.

C. Whether the court erred in denying WONGs Motion to Dismiss on grounds that the Trust had standing to foreclose and denying her defenses including

constitutional defense.

D. Whether the Court erred Granting Plfs Summary Judgment, where the Trustees status as holder was disputed as sufficient to foreclose.

E. Whether the Court erred by holding that WONG may not, as a non-party, challenge an assignment or agreement.

F. Whether the court committed error by applying the Civil Access Pilot Program (CAPP) to Defendants foreclosure.

G. Whether the court abused its discretion by making rulings on evidence that denied her a chance to tell her side, and withholding excess proceeds from the

sale.

H. Whether the plaintiff waived any deficiency judgment.

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I. Whether the court erred by granting the CLG attorneys fees from an Untimely, and Procedurally Defective Request.

III. STATEMENT OF THE CASE

The Trustee initially sought a Rule 120 which it ultimately withdrew fearing

Judge Valdez in the federal case # 11cv02172, would allow a challenge to the

constitutionality of the Rule 120. In the federal case WONG charged the above

foreclosure attorneys with conspiracy to deprive homeowners of due process by

drafting legislation in 2006, amending 38-38-101 et seq through HB06-1387, thus

eliminating the burden of proof lenders needed to show standing affecting non-

judicial & judicial foreclosures. That LPS assignment to the Trust furthered a

conspiracy, as well as the Trust pressing a claim in the Rule 120, which became

actionable as an injury by the courts Order Authorizing Sale post-bankruptcy. This

appeal involves standing of both parties; wrongful application of CAPP; viability of

WONGs defenses and claims, and abuse of discretion by Judge Whitney. The appeal

raises issues of first impression .

IV. STATEMENT FOR ORAL ARGUMENT

This case litigates complex issues of standing involving the public interest and

brings into question the role of state action and the interface between public and private

players in the foreclosure process as well as a broad conspiracy to deprive homeowners of

due process.

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The question of whether Colo. Rev. Stat. 38-38-101 et seqa state statute which

impacts many thousands of Colorado residents given the role of Rule 120 and Rule

105 in foreclosure proceedingsis unconstitutional on due process grounds is

manifestly a matter that would be in the public interest to determine after careful and

deliberate consideration.

In adjudicating a creditor-debtor dispute implicating property rights, it is the

meaningfulness of the procedural forum that counts, not the fact that a particular

litigant may have, in fact, defaulted on a debt. Fuentes vs Shevin, 407 US 81 at 87

Several issues of First Impression arise from the facts in this case for which

oral arguments may provide additional basis to allay any concerns that this court

may have to determine the merits on appeal.

V. SUMMARY OF ARGUMENTS

WONG contends that the Trustee, advancing the claim of the Trust, does not

have standing because; LPS lacked authority to assign once its agency relationship

with First Washington ended; the LPS PROCEDURES MANUAL states that LPS

lacks authority to transfer debt; that the close relationship between the Trustee and

the Trust requires that the standard to be applied is: holder in due course, and the

Trustees post acquisition of mortgage debt was part of a conspiracy to shore up

under collateralized mortgage pools where First Washington committed a massive

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fraud on investors. The fraud continued when the Trustee fraudulently acquired notes

after the Trusts closing date. Furthermore, WONG alleges that the CAPP procedure

was inapplicable where the lender was acting soley as a debt collector; the plaintiff

and its associates fraudulent acts show Unclean Hands and Unjust Enrichment; and

that the constitutional issues in the federal case over the Rule 120 also affects the

Rule 105.

In remanding the case for judicial foreclosure Judge Valdez bifurcated the

constitutional issues to be determined separately with the state to determine judicial,

and the federal to determine non judicial issues. The FDCPA claim is tolled by the

Continuing Injury Doctrine . Judge Whitney abused his discretion in requiring

excess proceeds to be held by the court, torpedoed the discovery process by

dismissal, and in granting judgment to include taxes & insurance paid after which

Bank of America waived any deficiency judgment. Finally the Order Granting

Attorneys Fees to CLG was improper and an untimely request buried in a Response.

VI. STANDARD OF REVIEW

When facts are undisputed, review is de novo. Lawry v. Palm, 192 P.3d 550, 558

Abuse of discretion occurs when a ruling is manifestly arbitrary, unreasonable, or

unfair. People v. Welsh, 176 P.3d 781,790 (2007)

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VII. ARGUMENT

A. THE COURT ERRED IN DETERMINING THAT WONG FAILED TO STATE A CLAIM AND LACKED STANDING

a. Standing of WONG, Injury in Fact, and The Order Authorizing Sale

This case raises issues of standing requiring this court to review the ruling of

Judge Whitney holding that WONG lacked standing. Judge Whitney said "In sum,

because WONGs claims for monetary damages were not disclosed during her

bankruptcy proceeding, those claims are property of the bankruptcy estate and

Plaintiff lacks standing to bring them (AD: 109, DISMISSAL)

Review is de novo when facts are undisputed. Lawry v. Palm, 192 P.3d 550, 558

Judge Whitney concluded that the court lacked subject-matter jurisdiction,

because WONG was not the Real Party in Interest, and concurrently made

determinations under 12(b) (5) dismissal. (AD: 108-116, Dismissal)

The courts lack of subject matter jurisdiction means that a court has no power to

hear a case or enter a judgment, Currier v. Sutherland, 218 P.3d 709, 714 (2009)

WONG filed Bankruptcy on 12/30/2011. (AA: 274) No Order Authorizing

Sale was issued pre-bankruptcy. On 04/2012 WONG was discharged. (AA: 274)

An injury in fact is defined as an invasion of a legally protected interest which

is (a) concrete and particularized and (b) actual or imminent, not conjectural or

hypothetical. Kerchner v. Obama, U.S. Dist. LEXIS 97546 (D.N.J. 10/ 2009)

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Under current law, a plaintiff has standing upon alleging an injury in fact where

a plaintiff asserts the violation of a private right. WONG submits that there was no

injury in fact prior to the bankruptcy until the Court issued an Order Authorizing

Sale on 12/10/2012 pursuant to a stipulated agreement of 12/7/2012 when the loss or

damage became actual or imminent, not conjectural or hypothetical, and

therefore examination of accrual of her causes of action is necessary. (AA: 276-277)

WONGs Opposition in the federal (11cv02172) and state courts (2010cv747)

argued that WONGs causes of action accrued pre-bankruptcy and therefore were

assets of the bankruptcy estate. A view adopted in magistrate Brimmers Report

which assumed that plaintiffs causes accrued prior 2008 by the conduct of

defendants drafting and passing HB06-1387 which amended 38-38-101 et seq, or

by plaintiffs involvement in the Rule 120 in November of 2011.(AA: 262-263)

Magistrate Brimmer confused conduct with injury in fact when he said in his

Report:

The Plaintiff does not dispute that HB 06-1387 was passed and its

amendments to Colorados statutory non-judicial foreclosure procedures became effective January 1, 2008. See Inre Durwick, LLC, No. 11-31267

ABC, 2012 WL 2046877, at *2 n. 3 (Bankr. D. Colo. June 1, 2012).

Accordingly, taking as true that the CS Defendants drafted portions of, or the

entire, bill, such conduct occurred before January 1, 2008, which in turn

occurred well before December 30, 2011.

Also, the foreclosure action (in which Plaintiff contends she was deprived of

constitutional rights) commenced in October 2011 and the Plaintiff filed a

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response and motion to dismiss the action in November 2011. Accordingly, given this information, it appears the Plaintiffs claims arose well in advance of the time she filed her bankruptcy petition. See Clementson v. Countrywide

Fin. Corp., 464 F. Appx 706, 711 (10th Cir. Feb. 7, 2012) (affirming trial courts finding that the defendants conduct, as described in the complaint, occurred prior to the plaintiffs filing of a petition for bankruptcy).

First, the response and motion to dismiss was a boiler- foreclosure defense she

purchased on line to the Rule 120 which does not have the same preclusive effect as a

judgment in a regular court, and had nothing to do with conspiracy to deprive

homeowners of due process as alleged in the federal court (11cv02172).

Second, the conduct of defendants pre-bankruptcy merely amounted to a civil

conspiracy as outlined in SEEDS V. LUCERO, 113 P.3d 859 (2005), wherein the

court said that "Unlike a conspiracy in the criminal context, a civil conspiracy by

itself is not actionable, nor does it provide an independent basis for liability unless a

civil action in damages would lie against one of the conspirators." The Order

Authorizing Sale was that damage and injury in fact which becomes (a)

concrete and particularized and (b) actual or imminent, not conjectural or

hypothetical. Kerchner In WONGs federal Dismissal (11cv02172, ECF 200), the

Court said To demonstrate that a plaintiff has standing, three elements are required:

1. The plaintiff must have suffered an injury in fact 2. There must be a causal connection between the injury and the conduct complained of. 3. It

must be likely, as opposed to merely speculative, that the injury will be

redressed by a favorable decision. Lujan v Defenders of Wildlife.

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In, Lujan v. Defenders of Wildlife, 504 U.S. 555,562 (1992), the Court found that

the plaintiffs lacked standing, because no injury had been established. "The 'injury

in fact' requires that the party seeking review must be among the injured, and it

must be imminent, not hypothetical. ID at 563. Judge Whitney adopted the decision

of Judge Valdez who espoused the principals as established in Lujan, but misapplied

those principles to the facts prior to the bankruptcy.

In LUERAS v. BAC HOME LOANS SERVICING LP, G046799 (10/2013), the

court held that a "[s]ale of a home through a foreclosure sale is certainly a deprivation

of property to which a plaintiff has a cognizable claim." Slip op. at 1337.

Accordingly, the plaintiff had adequately alleged he "lost money or property"

within the UCL.

In Jay Boersma v. M&I Marshall & Ilsley Bank, 1 WO 2 3 4 5 6 7 8 9 (ARIZ.,

2010) the court examined the injury in fact issue and said:

Boersmas claims are not ripe [T]he injury he alleges is the potential loss of his home... Boersmas subsequent assertions to this Court, contains no other reason to believe that foreclosure is imminent. Falling behind on house

payments may lead to foreclosure, but it may also leadto loan modification. Boersma has not alleged an "actual or imminent" injury. Lujan, 504 U.S. at 560

WONG, like the homeowner in Boersma, was similarly situated prior to her

bankruptcy. While Bank of America N.A as trustee filed a foreclosure action in late

2011, the process pre-bankruptcy had not reached the point where an injury in fact

would be an indispensable requirement until a Court Order Authorizing Sale, the

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point WONG would realize impending loss of property. Since no Order had been

issued prior to the bankruptcy, no injury was imminent or concrete and

particularized as required under Lujan, and therefore no Causes of Action existed.

In In re: Alfred J. Witko, Debtor vs Deborah C. Menotte, Trustee, 11th Circuit. -

374 F.3d 1040, (2004), the 11th Circuit held that Witko was not harmed pre-

bankruptcy, therefore his malpractice suit did not accrue pre-petition, and that [The

trustee] could take no greater rights than the debtor himself had. (Cite)

The Order Authorizing Sale was effective as an injury in fact on 12/10/2012,

post-bankruptcy, pursuant to the stipulated agreement of 12/07/2011. (AA: 276-277)

Scotus has held that A plaintiff who challenges a statute must demonstrate a

realistic danger of sustaining a direct injury as a result of the statute's operation or

enforcement. O'Shea v. Littleton, 414 U.S. 488, 494 (1974). But [o]ne does not have

to await the consummation of threatened injury to obtain preventive relief. If the

injury is certainly impending that is enough. Pennsylvania v. West Virginia, 262

U.S. 553 , 593 (1923) The issuance of an Order Authorizing Sale is an impending

threatened injury of a deprivation of a homeowners property in accordance to the

analysis in Id. 593, which triggers the homeowners statutory remedy in the Rule

120(d)-- injunctive relief. To obtain a preliminary injunction the aggrieved party

must show; a danger of real, immediate, and irreparable injury which may be

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prevented by injunctive relief, Frank Romero vs City of Fountain et al, No

11CA0690, (Colorado, 2011) [B]

Clearly the injury in fact requirement is the pending sale of the home.

b. Agreement with the Bankruptcy Trustee

During the pendency of this appeal, WONG entered into an agreement with the

Bankruptcy Trustee to re-assign the claims to her, which is contested by Bank of

America.

c. WONG Stated a Claim for Conspiracy

In the Order, Judge Whitney citing Fontenot v. Wells Fargo Bank, N.A., 129

Cal. Rptr. 467, 480 (2011). (AD: 113, Dismissal) quoted:

Even if LPS lacked authority to transfer the note, it is difficult to conceive how plaintiff was prejudiced by LPSs purported assignment, and there is no allegation to this effect. Because a promissory note is a negotiable instrument, a

borrower must anticipate it can and might be transferred to another creditor. .

The implication is that even if LPS and Bank of America committed fraud, it

didnt matter because WONG was not prejudiced. Judge Whitney infers that any

lender may come to court, pay no value for the debt, feign ownership of the note,

even if prohibited as a trust in acquiring debt post-closing date under N.Y.Law,

Pooling and Service Agreement. (PSA) &IRS as held in Glaski vs. Bank of America,

FO64556 (5th Dist. COA, 2013)

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Since no facts are disputed, the review is de novo application of the governing

legal standards. Lawry v. Palm, supra at p.558

Judge Whitneys Dismissal concluded that WONG did not state a claim for

conspiracy when he said A civil conspiracy requires pleading and proving

underlying actionable conduct....Therefore, "[I]f the acts alleged to constitute the

underlying wrong provide no cause of action , then there is no cause of action for

conspiracy itself.. (AD: 114) WONG alleged actionable conduct when Bank of

America obtained an Order Authorizing Sale in the Rule 120 resulting in pending

damage, thus making the parties conspiratorial acts alleged to deny her due process

traceable to the attorneys who drafted HB06-1387 to amend 38-38-101 which

lowered the burden of proof lenders needed to show standing, actionable to all. (AA:

212, (II))

In WONGs Second Claim (AA: 459,460, 12), WONG states:

Elements: There are five elements required to establish a civil conspiracy in

Colorado. [T]here must be: (1) two or more persons, and for this purpose a corporation is a person; (2) an object to be accomplished; (3) a meeting of the

minds on the object or course of action; (4) one or more unlawful overt acts;

and (5) damages as the proximate result thereof. Jet Courier Serv., Inc. v. Mulei, 771 P.2d 486, 502 (Colo. 1989)

15) At the time of the assignment on October 4th, 2011, both LPS and Bank

of America knew or should have known that LPS had no authority to assign

the promissory note on two counts:

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i. LPS was in direct conflict with provisions of the LPS PROCEDURES MANUAL Which states at p. 48 that it cannot

transfer debt but did so anyway when it assigned the Promissory Note

to Bank of America N.A. along with the Deed of Trust.(Bank of

America, compl, Exhibit A, Excerpt)

ii. LPS assigned the subject knowing that it was not a nominee nor an agent of any principle at the time it assigned the property to

Bank of America N.A as trustee because First Washington, the

original lender ceased operations in 2008 and therefore any agency

ended by operation of law RESTATEMENT THIRD,

TERMINATION OF AGENCY, 3.07

16) Bank of America N.A. as trustee of the mortgage trust knowingly

transfers mortgages into the mortgage trust in violation of New York Law,

and the Pooling and Service Agreement of Mortgage after the closing date of

the trust which in this case was on January 26th, 2007.

In Fontenot, supra, at 7 cited as authority by Judge Whitney, the court said:

LPS did not purport to act for its own interests in assigning the note. Rather,

the assignment of deed of trust states that LPS was acting as nominee for the

lender, which did possess an assignable interest. A "nominee" is a person or

entity designated to act for another in a limited rolein effect, an agent.

But, on October 4, 2011when LPS made the assignment to Bank of America as

trustee, LPS was no longer an agent of First Washington. In this case by operation

of the law. RESTATEMENT THIRD, TERMINATION OF AGENCY, 3.07

In the allegations preceding WONGs 2nd Cause of action for conspiracy,

WONG alleged that plaintiff brought this action without standing for the purpose of

inducing defendant to pay money not owed to plaintiff; that the Trust is governed

under New York Law and the PSA; that LPS assignment to the Trustee on

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10/04/2011 was a sham to give the illusion that the transaction was valid. That

the purpose was to cover-up fraud by First Washington, a prime actor in the 2008

sub-prime disaster. (AA: 457,458, 16, Amended Counter Compl.)

The object of the conspiracy was to shore up deficiencies generated

through First Washingtons fraud, and to mitigate investor lawsuits on the trusts.

To do that, the Trustee fraudulently acquired debt after the closing date of the

Trust.

In 2008, the financial crisis infected mortgage trusts bristling with defaulting,

undervalued collateral. Investors filed lawsuits against the originating lenders

like First Washington and their sponsors. (AA: 444,445, Answer 32, 33)

One such suit is AMBAC ASSUR Corp v First Washington Fin. Corp. and

Merrill Lynch Mortgage Trust 2013 NY Slip Op 51180(U) Judge Schweitzer

concluded that allegations of First Washington fraud were sufficient to deny the

motion to dismiss and said:

"Despite its repeated pronouncements about its sound lending practices, First

Washington was a prolific originator of risky, higher-yielding loans that put

volume ahead of all else, including in particular the quality of the loans that

were being originated. [A] recent complaint. details the underwriting practices at First Washington as told by former First Washington underwriters,

one of whom described the lending practices at First Washington as "basically

criminal." This conduct by First Washington, one of the nation's largest mortgage originators . contributed to the collapse of the real estate market, and resulted in hardship for millions of Americans. The court can think of no

more egregious example of public fraud.

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WONG alleged that AMBAC provides the motive for the Trustee pressing

fraudulent claims against homeowners because of the egregious conduct of First

Washington making fraudulent representations to its investors now suing the Merrill

Lynch/First Washington Trust. WONG only needs two parties for her conspiracy

claim. The Trustee aided by LPS to fraudulently press claims to acquire debt to

mitigate the fraud of First Washington. The Trustee has engaged in improper or

fraudulent conduct relating to this foreclosure and should be ineligible for relief under

the Unclean Hands Doctrine. Premier Farm Credit, PCA v. W-Cattle, LLC, 155

P.3d 504, 519 (Colo. 2006) (AA: 450,451, 56-58, Defendants Answer, Unclean

Hands)

B. THE CONTINUING INJURY IN THE RULE 120 WAS AN EXCEPTION TO THE STATUTE OF LIMITATION

ON THE FDCPA CLAIM

Judge Whitneys dismissal ruled that WONGs FDCPA claim is barred by the 1

year statute of limitation. (AD: 115, DISMISSAL)

WONG contends that the Rule 120 was part of a continuing injury and an

exception to the 1 year limitation because the continuing wrong ended when the Trust

withdrew the non-judicial foreclosure on 05/14/2013 to proceed to judicial

foreclosure filed 5/17/2013. (AA: 430, 70, Compl)

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WONGs federal action claimed that 38-38-101 as amended by HB06-1387

violated the 14th

Amendment by lowering the burden of proof, making the Rule 120

unconstitutional as well as judicial foreclosures(AA: 438-443, s 7-23, Answer )

Since no facts are in dispute, review is de novo. Lawry v. Palm, supra at p.558

In IN RE: Robert N. HOERY, No.02SA241, the Colo. Supreme Ct. said:

[W]e hereby hold that where a tort involves a continuing or repeated injury, the cause of action accrues at, and the statute of limitations begins to run from the date of the last injury

or when the tortious overt acts or omissions cease.)

WONG was also subjected to a Rule 120 which does not provide a full and fair

hearing at a meaningful manner and at a meaningful time. Armstrong v. Manzo, 380

U. S. 545 (1965)

In Rosenfield v. HSBC Bank, USA, 681 F.3d 1172 (10th Cir. 2012) the court

analyzed the Rule 120:

The scope of inquiry at such hearing shall not extend beyond the

existence of a default , and such other issues required by the Service Member Civil Relief Act (SCRA), 50 U.S.C. 520 The court observed that Neither the granting nor the denial of a motion under this Rule shall constitute an appealable order or judgment. CRCP.120 (d). [B]

Although the constitutional issue was not raised in Rosenfield, the 10th Circuit

described a violation of due process as explained in Lindsey vs Normet - 405 U.S. 56

at p.78 (1972) when the Court said:

This Court has recognized that, if a full and fair trial on the merits is provided,

the Due Process Clause of the Fourteenth Amendment does not require a State

to provide appellate review. (Cite)

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Accordingly, The Rule 120 violates the 14th Amendment because it neither

accords a full and fair hearing, nor a right to appeal.

While the Rule 120 was open, it was a continuing tort; and each day of its

existence was another injury to WONG for which the statute of limitation began to

run when the Trustee withdrew the Rule 120 on 05/14/2013.(AA: 275 )

C. THE COURT ERRED IN DENYING DEFENDANTS MOTION TO DISMISS, AND DENYING AFFIRMATIVE DEFENSES INCLUDING

CONSTITUTIONAL ISSUES

a. Constitutional Issue

The facts are undisputed. Issues of pure law are reviewed de novo. Trinen v. City

& Cnty. Of Denver, 53 P.3d 754, 757 (Colo. App. 2002)

On 10/29/2011, the trustee initiated a Rule 120 against WONG to obtain an Order

Authorizing Sale (AA: 427, 44, Compl.) On 10/12/2012, WONG filed a federal

suit alleging the Rule 120 violated section 1 of the 14th

Amendment when 38-38-101

et seq was amended by HB06-1387 in 2006, lowering the burden of proof lenders

needed to show standing, affecting judicial and non-judicial foreclosures irrespective

of Judge Whitneys mistaken belief that the (Constitutional) issues concerning

defendants in the Rule 120 may be tangentially applicable but not directly at issue

in Bank of Americas request for judicial foreclosure. (AD: 114 Dismissals) (AA:

438-443, Defs Answer, s 7-23) But the Burden of Proof of both procedures are

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directly and not tangentially applicable by application of HB06-1387 which

amended 38-38-101. (AA: 210, 41(3))

On remand, Judge Valdez held that the constitutional question related to Rule 105

be left to the state while he addressed the Rule 120 thus bifurcating the two. (AA:

238) even though both procedures were affected by HB06-1387 which amended 38-

38-101 et seq. (AA: 210, 41(3)) which states:

(3) The provisions of this act shall apply to the foreclosure of any deed of

trust or other lien with respect to which a notice of election and

demand or lis pendens is recorded in the office of the clerk and recorder of

the county where the property or a portion of the property is located on or

after the applicable effective date of this act .

38-38-101(6) provides

(b) Notwithstanding the provisions of paragraph (a) of this subsection (6), the

original evidence of debt or a copy thereof without proper indorsement or

assignment shall be deemed to be properly indorsed or assigned if a qualified

holder presents the original evidence of debt or a copy thereof to the officer

It is a standard of proof too lax to make reasonable assurance of accurate fact

finding which violates the Due Process Clause. Hawkins v. Bleakly, 243 U.S. 214

The Public Trustees Association presentation explained its 2006 role with James

King & Robert Hopp and other attorneys in drafting HBO6-1387, the root of the

conspiracy. (AA: 224-226) LPS furthered the conspiracy by the assignment, as did

the Trustee under 42 US 1983 to deny due process by pressing a Rule 120 which

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became an injury upon issuance of the Order of Sale on 12/10/2012 pursuant to a

stipulated agreement. (AA: 276, 277)

b. Standing of Plaintiff

CRCP 17(a) requires that every action "be prosecuted in the name of the real

party in interest. If a partys status as real party in interest is premised upon an

assignment, as is in this case by LPS assignment of the Deed of Trust and Note (AA:

223), the plaintiff must, in addition to the other elements of a claim, prove its status

as assignee. Alpine Associates, Ind. v. KP&R, Inc., 802 P.2d 1119 (COA, 1990). A

plaintiff must establish that by virtue of substantive law, he has a right to invoke the

aid of the court in order to vindicate the legal interest in question. Goodwin v.

District Court, 779 P.2d 237 (1989)

A court lacks jurisdiction of a case unless a plaintiff has standing which is a

threshold issue that must be resolved before deciding a case on the merits. Barber v.

Ritter, 196 P.3d 238, 245 (Colo. 2008) If the plaintiff lacks standing, the case must

be dismissed. State Bd. For Community Colleges v. Olson, 687 P.2d 429, 435

(Colo.1984) [A] plaintiff has standing to sue if he or she has suffered an injury-in-

fact to a legally protected interest. Id. at 856. To constitute an injury-in-fact, the

injury may be tangible, such as physical damage or economic harm. Barber, 196

P.3d at 245-46 With respect to the Trust we speak only of economic harm.

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Since no facts are in dispute, review is de novo. Lawry v. Palm, supra at p. 558

The Trustee claims to have standing soley by virtue of LPS assignment of

10/04/2011 and the submission in court of an unauthenticated note on 12/09/2013.

WONG requested to have the note authenticated but it was subsequently deemed by

the Court as the original after the court stated at the hearing it was not yet accepting

it as original. (RT: 34, lns 11-18) Deeming the promissory note as an original for

dismissal and foreclosure under 38-38-101(6) upon application of a standard of

proof too lax to make reasonable assurance of accurate fact finding violates the Due

Process Clause. Hawkins v. Bleakly, 243 U.S. 214

c. WONGs Note Never Entered the Trust

WONG alleged that the note was never put into the Trust which would have been

an asset purchased by the investors, a fact that is undisputed. (AA: 443, 28, Answer)

The only claim that plaintiff has made is as a holder, not as a holder in due

course. This is an admission that the note never entered the Trust or purchased it,

otherwise the Trusts claim would have been as a holder in due course, who took

the note for value, in good faith, without notice of defects with a claim of an injury

in fact entitling the Trust to relief. The assignment of 10/04/11 presented several

infirmities (AA: 460, 15-17, Def. Answer; AA: 223, Assignment).

LPS assignment (AA: 223) to Bank of America N.A. as trustee stated the

following:

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NOW THEREFORE, in consideration of the sum of ten dollars and other

valuable consideration paid to the Assignor, the receipt, adequacy and

sufficiency of which is hereby assigns unto the said Assignee, the said Deed

of Trust and Promissory Note secured thereby together with all moneys now

owing or that hereafter become due or owing in respect thereof....

2. In the assignment of October 4th, 2011 to Bank of America N.A. as trustee,

LPS purports to be the nominee to lender, successors and assigns. The original lender was First Washington Mortgage that ceased operations in

March of 2008. (Exhibit B) Accordingly, an agency relationship with First

Washington Mortgage ended by operation of the law. RESTATEMENT

THIRD, TERMINATION OF AGENCY 3.07

3. The TRUST cannot transfer mortgage debt past the closing date of the trust. In this case January 26th, 2007.

The assignment was notarized on October 7th

, 2011, 3 days after the assignment

on October 4th, 2011. A fact that raises suspicion about the assignment. (AA: 223)

D. THE COURT ERRED IN GRANTING SUMMARY JUDGEMENT AS WONG DISPUTED THAT TRUSTEE, AS HOLDER, SUFFICED TO

FORECLOSE INSTEAD OF HOLDER IN DUE COURSE.

The Trustee moved for Summary Judgment waiving any benefit of a favorable

judgment on Quantum Meruit & Unjust Enrichment to foreclose quickly.

To defeat a motion for summary judgment there can be no genuine issue of

material fact. Deutsche Bank Trust Company Americas v. Samora, 2013 COA 81

Granting Summary Judgment is drastic, especially when the result is homelessness.

A trial courts ruling is reviewed de novo. Lawry v. Palm, supra at p.558 .

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WONG contends that the Trustee is not advancing a claim for the Trust as a

Holder in Due Course to foreclose. Judge Whitney could not distinguish between a

Holder, and a Holder in Due Course as did the court in Samora when in his Order

granting Plaintiffs Summary Judgment, (AD: 120) Judge Whitney said:

WHAT EFFECT, IF ANY, DOES A FINDING OF WHETHER

PLAINTIFF IS A HOLDER OR A HOLDER IN DUE COURSE HAVE

UPON WONG'S OBLIGATION TO PAY PLAINTIFF THE AMOUNTS

DUE UNDER THE NOTE?

There is no question that Plaintiff is the Holder of the Note which was

endorsed in blank. However, WONG contends that Plaintiff is not a Holder

in Due Course, and therefore holds the note subject to her defenses.

Section 3--306. Rights of One Not Holder in Due Course. (AA: 204)

Unless he has the rights of a holder in due course any person takes the

instrument subject to

(a) all valid claims to it on the part of any person; and

b) all defenses of any party which would be available in an action on a

simple contract; and

(c) the defenses of want or failure of consideration, non-performance of any

condition precedent, non-delivery, or delivery for a special purpose (Section

3--408); and

(d) the defense that he or a person through whom he holds the

instrument acquired it by theft, or that payment or satisfaction to such holder

would be inconsistent with the terms of a restrictive indorsement. The

claim of any third person to the instrument is not otherwise available as a

defense to any party liable thereon unless the third person himself defends the

action for such party.

22

Under the UCC, negotiable paper is transferred from the original payor by

negotiation. 3-301. Order paper must be endorsed; bearer paper need only be

delivered. 3-305. For the note to be enforced, the person who asserts the status of

the holder must be in possession of the instrument. ( 1-201 (20)) The original and

subsequent transferees are referred to as holders who take with no notice of

defect or default and are called holders in due course, and take free of many

defenses. UCC 3-305(b) A person who takes a note without notice of any claim as

described in section 3-306, claims ownership just like the payee would have a claim

of ownership to any other lost personal property. This provision would thus prevent

the finder from becoming a holder in due course.

In Samora at p. 24, the court said:

47 Because the warranty deed is not void, in order for Samora to defeat

Deutsche Banks claim to quiet title in the Trust, she must show that Deutsche Bank as trustee is not advancing a claim by the Trust as a holder in due course

of the Note and Deed of Trust.

As in Samora, to defeat the Trustees claim, WONG must show that the Trustee

is not advancing a claim for the Trust as a holder in due course of the Note and Deed

of Trust. The argument of holder in due course goes to the Trusts right to

foreclose ,and is consistent with the reasoning in Samora. Judge Whitneys ruling was

prejudicial, and allows a trustee, who paid no separate value, to enforce a note in blank

for the trust, in a proceeding subject to no defenses contrary to UCC 3-306. (AA:

23

204) Though the Trustee is the holder, the Trust is the intended owner who must

accept the note under the requirements of a holder in due course for value, in good

faith, and without notice of any defects in the transaction.

In determining that being a note holder was sufficient to foreclose, Judge

Whitney condoned the defects known to the Trustee and LPS, including the nominal

consideration paid, even though Judge Whitney acknowledged concern. (AD: 120,

Order) Judge Whitney said:

WONG questions the Plaintiff's right to recover damages for Quantum Meruit

and Unjust Enrichment, contending that such must be predicated upon the

amount of consideration Plaintiff paid for the Note.

[T]he Court has concerns with regard to the applicability of this argument where, as here, Plaintiff has physical possession of the Note with an open

endorsement, such was not fully briefed as Plaintiff has moved to dismiss this

claim if it receives judgment on its claim for judicial foreclosure.

The Trustees claimed that WONG would be unjustly enriched by allowing her to

retain her property, while WONG claimed the Plaintiff would be unjustly enriched

because they paid no value for the property (AA: 451, 60,Answer)

With due respect to Judge Whitney, the issue was fully alleged and briefed in

Sixth Affirmative Defense (Unjust Enrichment) (AA: 451, 59, 60, Answer)

WONG alleged:

[T]his Answering Defendant alleges that Bank of America N.A. as trustee will be unjustly enriched if this court allows Plaintiff possession and

ownership on proof so lax that it violates the burden of proof required under

the 14th

Amendment.

24

LPS assigned the Deed of Trust and Promissory Note for a cost of $10.00

dollars while the value of the property was in excess of 170,000 dollars.

As Judge Valdez at the May 6th

, 2013 hearing in WONGs case (12cv0276, AA:

249-1, lns 22-25 &, 250, lns 1-16) said to Bank of Americas attorney,

THE COURT: Well, if we were operating in a procedural setting pre-2006

where in order to prevail at a Rule 120 hearing the holder in due course would

have to come in with an original deed of trust and an original promissory

note, or a verified assignment document, I would agree with you, because

then the real party in interest and who is the true holder of the note would not

have been an issue.

But what this lawsuit raises in my mind is we have a totally changed

landscape post-2006, and there's a very real issue as to who is actually the

owner of this property. If it turns out that U.S. Bank, your clients are not the owners right now, Ms. WONG is the owner, but if it turns out that your

clients are in fact the actual holders of the deed of trust and note, then I agree

your clients have been victimized by Ms. WONG,***

However, if your clients are not the actual holders in due course of the

note and deed of trust, then she's the victim, because she loses her property

to folks who can't prove they actually own the deed of trust or promissory

note. [B, U]

The facts were fully before the court and never disputed in WONGs Motions to

Dismiss & Reconsideration and Opposition to Summary Judgment (AA: 473,474),

WONG cited Samora for controlling law and said:

Therefore there exist material issues of fact as to whether the Trust who is [not]the holder in due course, took the negotiable instrument or assignment

for value, in good faith, without notice of certain problems with the

instrument. The evidence is in the record. The Deed of Trust (Exhibit A); The Promissory Note (Exhibit B); and, The Assignment for the consideration of $10.00 dollars.(Exhibit C) On property with a fair market

value according to Zillow of almost $222,000 dollars (Exhibit D)

According to Samora, just being a holder is insufficient when it said at fn 3:

25

While Deutsche Bank is the current holder of the Note, it did not give

separate value for the Note, and, therefore, it may only enjoy the same status

that the Trust has. See 4-3-302(a) (2) (a holder in due course must give

value for the instrument).

Like Deutsche Bank, Bank of America did not give separate value for the Note,

and like Deutsche Bank, it can only enjoy the same status as the Trust.

In BAKER v. WOOD et al., No. 162. 157 U.S. 212 (1895) Scotus considered

whether the Colorado assignee obtained the assignment for value and without

knowledge of fraud and said [I]f,a negotiable note is shown to have been

obtained by fraud, the presumption, arising merely from the possession of the

instrument, that the holder in good faith paid value, is so far overcome that he

cannot have judgment. [B, U]The Court further said:

The amount of the consideration is, under some circumstances, important in determining whether, within the rule on the subject, the purchaser paid value,

for the amount paid may be so disproportionate to the real value of the

security purchased that the claim to have paid value will be treated as a

pretense;; and ...upon the question of notice and good faith..

As in Baker, the assignment Plaintiff purportedly paid TEN Dollars, should be

invalidated because of the lack of value and bad faith of the Trustee, and the Trust

who did not satisfy the requirements of a holder in due course because it had

knowledge of the infirmities, either actual or imputed under the Close Relationship

Doctrine where there is such a significant ongoing interconnected business

26

relationship that the Trustees conduct is imputable to the Trust. Stotler v. Geibank

Indus. Bank, 827 P.2d 608, 611 (Colo. App. 1992)

Here, the consideration given was so greatly disproportionate to the value of the

property that it forms a significant element in the transaction. To be an owner of the

note, the Trust must satisfy the requirements of a Holder in Due Course. UCC

3-302(AA: 202)

Moreover, Judge Whitneys order (AD: 123) that Plaintiff is the Holder of the

Note which was endorsed in blank is sufficient to foreclose runs afoul of Baker

where Scotus held that mere possession of the negotiable instrument obtained by

fraud is so far overcome that it would not be given judgment.

WONG proved that LPS lacked authority to assign the Deed of Trust and Note,

and Judge Whitneys response was that Even if LPS lacked authority to transfer the

note, it is difficult to conceive how plaintiff was prejudiced by LPS's purported

assignment, and there is no allegation to this effect.(AD: 113, DISMISSAL) Judge

Whitney quoting Fontenot, supra. In Fontenot, supra, at 15, the court said:

A nonjudicial foreclosure sale is presumed to have been conducted regularly and fairly; one attacking the sale must overcome this common law

presumption by pleading and proving an improper procedure and the resulting prejudice.

Fontenot spoke to irregularities in the procedures, while here, the prejudice is

substantive-- the Trusts standing to foreclose which being substantive is defined as

27

[A]n essential part or constituent or relating to what is essential. Blacks Law

Dictionary, 9th Ed., It was not mere irregularities in procedures as in Fontenot .

In COLORADO ENVIRONMENTAL COALITION et al. VS KEN SALAZAR

et al.(2011 ), No. 09-cv-00085-JLK, the court said:

A non-party may, however, challenge a settlement agreement if it has been

prejudiced by that settlement. New England Health Care Employees Pension

Fund v. Woodruff, 512 F.3d 1283, 1288 (10th Cir. 2008).

In order to establish prejudice, Intervenor Defendant must show either that the

settlement interferes with its contract rights or that the settlement strips it of a

legal claim or cause of action. ). A non-party may, however, challenge a settlement agreement if it has been prejudiced by that settlement. New

England Health Care Employees Pension Fund v. Woodruff, 512 F.3d 1283,

1288 (10th Cir. 2008). In order to establish prejudice, Intervenor Defendant

must show either that the settlement interferes with its contract rights or that

the settlement strips it of a legal claim or cause of action.

Not allowing WONG to challenge the assignment, or the Pooling and Service

agreement would be prejudicial, and strip WONG of a legal claim or cause of action.

ID p. 7.

Neither Trustee nor LPS ever denied that First Washington ceased operations in

2008 ending the agency relationship by operation of the law. Both knew that LPS

assignment to Trustee in 2011 was a sham. With LPS help, the Trustee could take

the property for the Trust for Ten Dollars and therefore no value. First Washington

never received the Ten Dollars since it ceased to exist in 2008.

28

E. WONG HAS STANDING TO CHALLENGE THE ASSIGNMENT

In American Jurisprudence 6A C.J.S. Assignments 132 states:

"The obligor of an assigned claim may defend a suit brought by the assignee on

any ground that renders the assignment void or invalid, but may not defend on

any ground that renders the assignment voidable only."

Judge Whitney, in his Order sided with LPS that WONG lacked standing as a

non-party to challenge the Assignment, and that WONG was not prejudiced. (AD:

113, Dismissal) His ruling is not supported by Colorado case law.

a. The Burden of Proof to Enforce an Order Authorizing Sale devolves on The Party Seeking Validation of the Assignment

In Goodwin vs District Court, 779 P.2d 837, 842,843 (1989) the court allowed

non-parties to the challenge an assignment and said:

The Goodwins raise the following arguments in support of their claim that

Marjory Ollson and Etta Mae Vann were not the real parties in interest: that

the purported assignment of the promissory note to Marjory Ollson was

invalid.. Without passing on the merits of the Goodwins' "real party in interest" defense, we are satisfied that they should have been entitled to raise

that defense at the C.R.C.P. 120 hearing.

The Goodwins were non-parties to the assignment, yet the Court in Goodwin said

they were still entitled to challenge the assignment and raise the real party in interest

defense, just as WONG should be entitled.

In Alpine Associates, Ind. v. KP&R, Inc., and 802 P.2d 1119 (1990), the court

said:

29

If, as here, plaintiff's status as a real party in interest depends upon an

assignment from the original real party in interest, it is necessary for the

plaintiff to prove, in addition to the basic elements of its case, its status as

an assignee. .. Generally, this burden is met by proving a full and complete assignment of the claim from an assignor who was a real party

in interest with respect to the claim. [B]

In Alpine, Section II, the plaintiff sought to estop a party who had dealt with the

business in its corporate capacity from denying the legal existence of Alpine Supply,

the purported Assignor. The Court refused to acknowledge the assignment because,

like First Washington which ceased to exist as a legal entity prior to the assignment,

Alpine Supply ceased to exist as a legal entity prior to the assignment and could not

legally transact business. The Court said To hold otherwise would subvert the

public policy of the state Graham, Inc. v. Mountain States Telephone and

Telegraph Co., 680 P.2d 1334 (Colo.App.1984).

Judge Whitney did not require the Trustee to prove the validity of the assignment

which conflicts with the requirements under Alpine and Goodwin at p.843 when the

Goodwin court said [T]herefore, the burden should devolve upon the party seeking

the order of sale to show that he is indeed the real party in interest.

Who was the Real Party in Interest if First Washington was defunct in 2008?

What was the status of the agency relationship between LPS and First Washington

on October 4th, 2011?

30

Colorado Case Law allows assignment challenges from non-parties as seen in

Alpine and Goodwin and to any agreement which is prejudicial to the non-party

where the non-party is stripped of a legal claim or cause of action. COLORADO

ENVIRONMENTAL COALITION et al, supra, at. p. 7.

Moreover, Bank of America as trustee acknowledges in its Brochure, Entitled

Role of the Trustee: Parties to a Mortgage Backed Securities Transaction to its

clients that parties to the securitization include the borrower. (AA: 234)

b. More Jurisdictions are allowing Non-party Challenges to assignments by Trusts acquiring debt Post Closing Date.

In SALDIVAR VS JPMORGAN CHASE BANK. N.A. et al, 11-10689, (Texas,

2013) Chase and Deutsche Bank argued that the Saldivars lacked standing to

challenge the validity of the assignment to the trust. The Court held that however,

if the assignment was void, ab initio, because it occurred after the closing date,

the Saldivars have a valid argument that the banks are not valid Note Holders.

In Glaski vs. Bank of America, FO64556 (5th Dist. CAL, 2013) the court said:

We conclude that Glaski's factual allegations regarding post-closing date

attempts to transfer his deed of trust into the WaMu Securitized Trust are

sufficient to state a basis for concluding the attempted transfers were void.

In this case, however, we believe applying the statute to void the attempted

transfer is justified because it protects the beneficiaries of the WaMu

Securitized Trust from the potential adverse tax consequence of the trust

losing its status as a REMIC trust under the Internal Revenue Code.

31

In JAMES HENDRICKS, et aI., vs Bank of America N.A. as trustee, Case No. 10-

849-CH, (Mich. 2011) The judge applied New York law because all First Washington

Trusts are governed under New York law.(AA: 423, . 1 , compl.)

The Court reviewed the PSA concluding that LPS lacked authority to assign the

property. Since the Note never passed to Merrill Lynch, the Trust could not have

validly received it. The record before the Court was that the only assignment of the

mortgage that was recorded was the assignment from LPS to USB, as trustee. As the

Court in Hendricks said, Other than First Washington, a division of National City

Bank, none of the Defendants owned the indebtedness.. The Trust in that case, like

the Trust here never paid for the note and cannot claim by virtue of the default an

Injury to acquire standing. The Trust could not claim Holder in Due Course status.

In REINAGEL v. DEUTSCHE BANK NATIONAL TRUST COMPANY, No.

12-50569 (2013) the court said:

Texas courts follow the majority rule that the obligor may defend on any ground which renders the assignment void. A contrary rule would lead to the odd result that Deutsche Bank could foreclose on the Reinagels' property

though it is not a valid party to the deed of trust or promissory note, which, by

Deutsche Bank's reasoning, should mean that it lacks standing to foreclose.

c. Defendant May Challenge the Assignment as a Spurious Document

Judge Whitney failed to address in the Order on Reconsideration whether

Defendant could challenge the assignment through CRCP 105.1. (AD: 124-126)

32

The construction of a statute or rule is a question of law that is reviewed de novo.

People v. Manzo, 144 P.3d 551, 554 (Colo. 2006). CRCP 105.1 states:

Any person whose real or personal property is affected by a spurious lien or

spurious document, as defined by law, may file a petition in the district

court. for an order to show cause why the lien or document should not be declared invalid.

The assignment of the Deed of Trust and Note is a document affecting WONGs

real property, and therefore can be scrutinized as a spurious document requiring the

assignor & assignee the burden of proving their validity.

A spurious document as defined by 38-35-201, C.R.S. 2012 states: (3)

Spurious document means any document that is forged or groundless, contains a

material misstatement or false claim, or is otherwise patently invalid. Therefore, the

fact that LPS has no authority to assign, and the Trust paying no value, shows the

assignment of 10/04/2011 contains material misstatements or false claim making the

assignment a spurious document as stated under 38-35-201, C.R.S. 2012 .

F. THE COLORADO CIVIL ACCESS PILOT PROJECT WAS IMPROPERLY APPLIED IN THIS CASE

On 10/29/2013, Judge Whitney arbitrarily ruled that the CAPP procedure was applicable. (AD:

103) The facts are undisputed. The Trustee is advancing the claim on behalf of the Trust. A trial

courts interpretation of a rule of civil procedure is a question of law that is reviewed de novo. City

& County of Broomfield v. FarLPS Reservoir & Irrigation Co., 239 P.3d 1270, 1275 (Colo. 2010).

WONG objected to the application of CAPP. (AA: 293-295) The FDCPA defines debt collector as,

33

[A]ny person who uses any instrumentality of interstate commerce or the mails in any

business the principal purpose of which is the collection of any debts, or. who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be

owed or due another. 15 U.S.C.A. 1692a (6)

Lenders who foreclose on their own mortgage loans are not debt collectors. Olroyd v.

Associates Consumer Discount Co., 863 F.2d 237 (D.C., E D. Penn 1994).

Here, the Trustee is attempting to foreclose on behalf of the Trust and not collecting on its own.

Some trustees fall under the exception to debt collector that covers any person collecting or

attempting to collect any debt due another to the extent such activity is incidental to a bona

fide fiduciary obligation.15 U.S.C.A. 1692a (6) (F)(i) (West 1998). In Wilson v. Draper, 443

F.3d 373 (4th Cir. 2006) the court concluded that a trustees actions to foreclose on a property

pursuant to a deed of trust are not incidental to its fiduciary obligation rather, they are central to

it. Thus, to the extent the trustees use the foreclosure process to collect the alleged debt, they could

not benefit from the exemption contained in 1692a (6) (F) (i). In Draper at p. 23, the court said

that the exemption,

[D]oes not include a .debtors trustee solely for the purpose of conducting a foreclosure sale (i.e., exercising a power of sale in the event of default on a loan). [B]

Judge Whitney misapplied CAPP because Bank of America, as a financial institution, was

soley engaged in collecting a debt and is excluded from using CAPP as seen in Appendix A

Section II, Excluded Actions--- d. Actions brought by commercial banks or other financial

institutions solely for the collection of debt. (AA: 219 Excerpt), (AD: 103, Order)

G. THE COURT ABUSED ITS DISCRETION BY MAKING RULINGS THAT WERE MANIFESTLY, UNREASONABLE, OR UNFAIR

Judge Whitneys application of the CAPP program was unreasonable and

arbitrary and manifestly unjust. It was a procedure that favored the Plaintiff as

34

well as deeming the promissory note as original and dismissing the action before

WONG could have an expert examine the note for its authenticity as he promised at

the Case Management hearing of 12/09/2013. (RT: 34, lns 11-18)

Judge Whitney arbitrarily decided he would hold excess proceeds from the sale

when he said (4) finally, to pay any balance remaining into the registry of this Court,

to be applied as this Court may hereafter direct. (AD: 123, Order, Summary

Judgment) Judge Whitney glossed over arguments such as the Holder in Due

Course argument to reach his decision for Plaintiff which was arbitrary, and

manifestly unjust.

H. THE TRUST WAIVED ANY DEFICIENCY JUDGMENT

Judge Whitney ruled that defendant pay taxes and insurance totaling

$5,618.01(AD: 122, Order: Sum Judgment) even though in Bank of Americas said

Due to her bankruptcy discharge, the Trust is not seeking a personal deficiency

judgment against WONG for any deficiency due under the Note after the foreclosure

Sale. (RT: 19, 14-20)

I. THE COURT ERRED BY GRANTING CLG ATTORNEYS FEES ON AN UNTIMELY & DEFECTIVE REQUEST

On May 23rd, 2014, Judge Whitney granted attorneys fees to CLG under 13-

17-20, made in its response to defendants motion for Reconsideration. (AA: 397,

398)

35

Since no facts are in dispute, review is de novo. Lawry v. Palm, supra at p.558

WONG objected to any award of attorneys fees. (AA: 481-489) Judge Whitney said

Third party defendant The Castle Law Group, LLC is correct that the Court did not address its request for fees and costs. (AD: 129)

a. The Request for attorneys fees was untimely

The Order of Dismissal was on 01/14/ 2014.(AD: 104) No motion was made by

the CLG, let alone a timely one required under the section. The only request for

attorneys fees was embedded within CLGs Response in Opposition to Defendants

Motion for Reconsideration filed February 14th, 2014. (AA: 397-398)

C.R.C.P Rule 121, 1-22. 2. ATTORNEY FEES b. states:

(b) Motion and Response. Any party seeking attorney fees under this practice

standard shall file and serve a motion for attorney fees within 15 days of

entry of judgment or such greater time as the court may allow. [B]

CLG was required to file its motion within the time constraints in Rule 121, 1-

11.2. Judge Whitney noted in his Order that in March, 2012, that the time for filing a

motion was extended to 21 days. (AD: 130) But even if the time had been extended,

the request was still untimely and without a motion. Given that the Order of

Dismissal was on January 14th, 2014 and the request for attorneys fees was on

February 14th, 2014, the difference between the two dates is 30 days. If you count the

1st day January 15

th, 2014, subtract 3 days for mailing leaves 27 days. The maximum

allowed, even using the 21 days plus 3 for mailing is 24 days. CLG missed the

36

deadline on the motion, even if their purported motion embedded in a response was

acceptable, it was still untimely by 3 days. Their motion should have been made by

February 11th, 2014. In KATHLEEN MILLS VS THE PRUDENTIAL

INSURANCE COMPANY OF AMERICA, Civil Action No. 11-cv-02127-DME-

CBS the court denied the motion for attorneys fees as untimely and said Unless a

statute or court order provides otherwise, the motion must [] be filed no later than 14

days after the entry of judgment.

b. The Request for Attorneys Fees was Procedurally Improper

No Colorado State authority seemingly addresses whether a Request for

Attorneys fees may be made within a response or reply. It is an issue of First

Impression. Colorado Federal Local Rules prohibits the practice. COLO.LCivR 7.1

(c) MOTIONS states: A motion shall not be included in a response or reply to the

original motion. A motion shall be made in a separate document. Additionally, a

motion would have required conferral (C.R.C.P. 121)

C.R.C.P. 7 Pleadings allowed (b) Motions and Other Papers

(1). The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion. [U]

No notice of a hearing was made by CLG. (AA: 397, 398, Response)

37

In re Marriage of James H. Nelson, 2012 COA 205, pgs 19, 20 the court

said the wifes request for attorney fees wasnt part of the findings or Order,

suggesting that she should submit a separate motion for fees, as CLG should.

VIII. CONCLUSION

For the reasons set forth , this court should find for WONG on all issues, and remand

back with direction denying Plaintiffs Motion to Dismiss with leave to amend

WONGs claims to include Lawrence E. Castle named James King in this case which

Judge Whitney concluded was not properly served, and grant WONGs Motion to

Dismiss.

Respectfully,

___________________, Dated:_______.2014

ANNA MAY WONG

38

39

EXHIBIT A

40

EXHIBIT B

41

SEC Info Home Search My Interests Help Sign In Please Sign In

First Washington Mortgage Loan Trust/Series 2007-FF1 8-K For 1/26/07 EX-4.1

Filed On 2/12/07 5:29pm ET SEC File 333-130545-42 Accession Number 950123-7-1844

Find

in

this entire Filing.

Show

Docs searched

and

every "hit".

Help... Wildcards: ? (any letter), * (many). Logic: for Docs: & (and), | (or); for Text: | (anywhere), "(&)" (near).

As Of Filer Filing For/On/As Docs:Size

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2/12/07 First Washington Mortgage..2007-FF1 8-K{8,9} 1/26/07 3:409

Bowne of NY City...01/FA

Current Report Form 8-K

Filing Table of Contents

Document/Exhibit Description Pages Size

1: 8-K Current Report 5 15K

2: EX-4.1 Pooling and Servicing Agreement 394 1.49M

3: EX-99.1 Mortgage Loan Sale and Assignment Agreement 10 32K

EX-4.1 Pooling and Servicing Agreement

Exhibit Table of Contents

EXHIBIT C

42

Merrill Lynch Throws in Towel, Shuts First

Washington, NationPoint

Colin Robertson March 5, 2008 Comments Off

Merrill Lynch finally came forward today and formally announced that it was halting all loan origination via its First Washington and Lake Forest, CA-based NationPoint operations effective immediately. According to the press release, the company based the decision on the deterioration of the subprime lending market. Since July, we have reduced staffing at First Washington by nearly 70 percent, but after evaluating a number of strategies, we believe it is appropriate to discontinue mortgage origination, said David Sobotka, head of Fixed Income, Currencies & Commodities at Merrill Lynch. Merrill said about 650 employees would be affected by the decision, and that estimated charges related to the move will cost approximately $60 million, half of which will be recorded in the first quarter. Heres an excerpt from the companys website, which is now just a one page exit message: Effective March 5 at 2 p.m. PST, 2008 First Washington Financial Corporation will no longer accept mortgage loan applications. Thank you for considering us as a source for your mortgage originations.? We realize that our 26 years of success and accomplishments would not have been possible without the people and businesses in the mortgage industry. It is assumed that the mortgage lender will continue to process locked loans and possibly loans in progress, although that is uncertain at the moment. The company also said it plans to sell its loan servicing unit, Home Loan Services, and will solicit bids in coming weeks.

Merrill Lynch will continue to originate prime mortgages via its Global Wealth Management Group unit and through Merrill Lynch Credit Corporation.

EXHIBIT D

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44

45

46

47

48

49

50

51

52

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EXHIBIT G