Filed Motion for Judicial Review

8/10/2019 Filed Motion for Judicial Review

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Miscellaneous Docket No. 65018

) In the District Court))

In re: A Purported Lien or Claim ) 239th

Judicial DistrictAgainst Amelia Colvin, Movant )))) Brazoria County, Texas

MOVANT’S AMENDED MOTION FOR JUDICIAL REVIEW OF

DOCUMENTATION AND INSTRUMENTS PURPORTING TO CREATE A LIEN

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW Amelia Colvin, Movant herein, and pursuant to Texas Government Code

Section 51.903 files this Amended Motion for Judicial Review of Documentation and

Instruments Purporting to Create a Lien. In support of this motion, Movant would respectfully

show unto the Court as follows:

A. INTRODUCTION

1. This Motion of Judicial Review is a “narrow scope of review” to determine the

validity of certain instruments identified by numbers 2008012264, 200812264, 200812263,

200812283 and 200812282; these instruments were filed in the Brazoria County land records

on March 7, 2008. These instruments purport to create an interest in the real property located

at 206 Driftwood Court, Surfside Beach, Texas (hereinafter the “Property”), owned by Movant

Amelia Colvin. These instruments also purport to transfer power of Substitute Trustee as

described in the deed of trust to Juan Aguirre. Movant files this motion, inclusive of an

outline to provide clarity for the requested relief, for the Court to rule on the purported

Assignment of Deed of Trust and Appointment of Substitute Trustee Juan Aguirre.

2. Under Texas Government Code 51.901(c) Movant requests judicial findings of

fact and conclusions of law of instrument numbers 200812263, 200812264, 200812282 and



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200812283 (hereinafter referred to as the “Instruments”), on file with the land records of

Brazoria County, all of which purport to create an interest in the Property. True and accurate

copies of the Instruments are attached hereto as Exhibits A, B, C, and D, respectively, and are

incorporated by reference herein. The parties responsible for the filing the Instruments

include Mortgage Electronic Registration Systems (MERS), Katie Brewer, Juan Aguirre,

Residential Funding Company, LLC, Deutsche Bank Trust Company America, LaSalle Bank, NA,

and Barry Johnson attorney at SettlePou Law firm Dallas Texas.

3. Movant would show and alleges herein that the Instruments are fraudulent, as

defined by Section 51.901(c)(2) of the Texas Government Code, and that the Instruments

should therefore not be accorded lien status and transfer power. Section 51.903(c) provides

that “[a] motion under this section may be ruled on by a district judge having jurisdiction over

real property matters in the county where the subject document was filed. The court's finding

may be made solely on a review of the documentation or instrument attached to the motion

and without hearing any testimonial evidence. The court's review may be made ex parte

without delay or notice of any kind.” Tex. Govt. Code § 51.903(c).

4. Amelia Colvin, Movant herein, is the record owner of the Property, which is

legally described as follows:

Being known on the tax rolls Brazoria County, Texas as Tract 10B, being a

0.1344 acre tract out of the Subdivision of Tract 46 (a.k.a. Kramig Subdivision)

located in the Brazos Coast Investment Company Subdivision #2 (more

commonly referred to as and hereafter to as BC1C #2 and located in the F.J.

Calvit League, Abstract 51, Brazoria County, Texas and said Tract 10B being

more particularly described RPLS #4808….

5. Movant executed two notes and deeds of trust on November 14, 2006 filed with

the Brazoria County Land records in which ARK-LA-TEX FINANCIAL SERVICES, LLC DBA

BENCHMARK MORTGAGE (hereinafter referred to as “Arklatex”) is the payee and lien holder.



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The deeds of trust were recorded in the Brazoria County land records on November 27, 2006,

at which time Movant was vested with superior title to the Property.

• A true and accurate copy of the deed identified by Document #2006069441 (the first lien), is attached hereto as

Exhibit E and

incorporated by reference herein.

• A true and accurate copy of the promissory note in the amount of$264,000.00 is attached hereto as Exhibit F and incorporated byreference herein.

• A true and accurate copy of the deed identified by Document #2006069442 (the second lien), is attached hereto as Exhibit G andincorporated by reference herein.

• A true and accurate copy of the promissory note in the amount of

$66,000.00 is attached hereto as Exhibit H and incorporated byreference herein.

6. As will be set forth in great detail herein, the sales, transfers, and/or

assignments of Movant’s mortgage(s) are wrought with intentional misstatements and falsities.

Specifically, the Instruments contain the following false/fraudulent statements regarding the

Property:

• That Movant executed and delivered a certain Deed of Trust securing aNote in the principal sum of $66,000.00 payable to the order of MERS(Document # 2008012263)

• That La Salle Bank, NA, is/was a holder of the Note pertaining to theProperty (Document # 2008012263)

• That LaSalle Bank, NA, removed the trustee named in the Deed of Truston February 11, 2008 (Document # 2008012263)

• That LaSalle Bank, NA, appointed Barry D. Johnson, Charlotte M. Harris,

and/or Steve Leva as Substitute Trustees to the Property on February 11,2008 (Document # 2008012263)

• That MERS assigned its interest in the Property (Document #2008012264)

• That MERS, c/o Settle Pou, assigned its interest in the Property to LaSalleBank, N.A., c/o Settle Pou (Document # 2008012264)



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• That MERS assigned its interest in the Property for good and valuableconsideration (Document # 2008012264)

• That Movant executed and delivered a certain Deed of Trust securing aNote in the principal sum of $264,000.00 payable to the order of MERS(Document # 2008012282)

• That Deutsche Bank Trust Company America, as Trustee, is/was a holderof the Note pertaining to the Property (Document # 2008012282)

• That Deutsche Bank Trust Company America, as Trustee, removed thetrustee named in the Deed of Trust on February 11, 2008 (Document #2008012282)

• That Deutsche Bank Trust Company America, as Trustee, appointedBarry D. Johnson, Charlotte M. Harris, and/or Steve Leva as SubstituteTrustees to the Property on February 11, 2008 (Document #

2008012282)


• That MERS, c/o Settle Pou, assigned its interest in the Property toDeutsche Bank Trust Company America, as Trustee, c/o Settle Pou(Document # 2008012283)


7. Upon review and consideration of this action, including all documents attached

hereto and referenced herein, Movant seeks the appropriate judicial findings of facts and

conclusions of law.

B. JURISDICTION AND VENUE

8. Jurisdiction herein is based upon (i) Section 24.007 of the Texas Government

Code; (ii) Article V, Section 8, of the Texas Constitution; and (iii) Section 12.004 of the Texas

Civil Practice & Remedies Code. Venue in this cause is proper in Brazoria County, Texas

pursuant to Section 15.001 of the Texas Civil Practice and Remedies Code because this action

involves real property that is located in Brazoria County, Texas.



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C. RELEVANT BACKGROUND and SUMMARY

General Overview of a Residential Real Estate Transaction

9. In the most common residential lending scenario, there are two parties to a

real property mortgage – the mortgagee, i.e., a lender, and the mortgagor, i.e., a borrower.

When a mortgage lender loans money to a home buyer, it obtains two documents: (1) a

promissory note in the form of a negotiable instrument from the borrower; and (2) a

"mortgage" or a "deed of trust" granting to the mortgage lender a security interest in the

property as collateral to repay the note. The mortgage, as distinguished from the note,

establishes the lien on the property securing repayment of the loan. For the lien to be

perfected and inoculate the property against subsequent efforts by the mortgagor to sell the

property or borrow against it, the mortgage instrument must be filed in the deed records of the

county in which the property is located.

10. The terms contained within the security instrument affect an interest in real

property and these terms require compliance with all applicable, federal, state and local

laws, as well as the language contained within the security instrument itself. Failure to

comply with the laws governing the contents of the security instrument or language within

the security instrument would render the security instrument a nullity.

11. Regardless of whether the mortgage note is sold to a subsequent purchaser,

recordation of the security instrument is required to permanently perfect the lien. The

security instrument affects title to real property, and as such, the laws of local jurisdiction

govern and such requirement to comply with local laws of jurisdiction is contained within

the security instrument itself. The filing of record serves a second and distinctive purpose:

to create the priority of perfection among subsequent purchasers of the mortgage note.





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system sought to eliminate the need for recording in the county land records and track

ownership changes on its system. Former MERS Chief Executive Officer, R. K. Arnold, has

admitted in an article he wrote that appeared in the September/October 2010 issue of Probate

and Property that the note was bifurcated (split) from the deed, as it was necessary to

securitize it in the mortgage pools. The instruments at issue in this motion are a fraudulent

attempt to reattach the split deed of trust from the notes.

15. But since MERS does not own the actual loan, doing so violates a long line of

precedents that bar the separation of the note from the deed of trust. Hence we have the

fraudulent statement contained in the filings at issue that “MERS is the payee of the notes.” See

The New York Times article authored by Chris Peterson, Dean of University of Utah Law School,

attached hereto as Exhibit I and incorporated by reference herein.

16. But since MERS does not own the actual loan, doing so violates a long line of

precedents that bar the separation of the note from the deed of trust. Hence we have the

fraudulent statements contained in the filings that MERS is the “payee” of the notes. “The note

and mortgage are inseparable; the former as essential, the latter as an incident. An assignment

of the note carries the mortgage with it, while an assignment of the latter alone is a nullity.

Van Burkleo v. Southwestern, Tex. Civ. App., 39 S.W. 1085, 1087; Sheldon v. Sill , 49 U.S. 441

(1850) (the assignment of the mortgage, without an assignment of the debt, is a nullity.)

Nominees are not eligible to hold future interests in property without statutory assignments.

Only statutory assignees can exercise the functional abilities, (e.g. lend money, service

mortgages, hold the notes, etc.) to gain control of the elements required to provide a clean title

at the end of the transfer process. MERS does not, and cannot, perform these functions.





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mortgagor; cannot suffer any monetary loss as a result of default; nor derive any gain from the

proceeds of foreclosure. It describes itself as a computer database that keeps track of the

transfer and assignment of mortgages that are traded in securitized mortgage pools on Wall

Street. Indeed, MERS has no interest in the promissory note evidencing the mortgage loan;

MERS is not a party to either the note or the mortgage; MERS is not the owner of the

promissory note and has no rights to the payments made by the debtor on said note;

20. Further, on April 13, 2011, the Office of the Comptroller of the Currency (“OCC”)

issued a Cease and Desist Order by Consent of MERS and MERSCORP, Inc., whose practices it

(OCC) found to be “unsafe and unsound”, which exposed their members (which include GMAC)

to “unacceptable operational, compliance, legal and reputational risks.” (at Article II, Paragraph

5 of Consent Order #2011-044). A true and accurate copy of the OCC’s Cease and Desist Order

pertaining to MERS is attached hereto as Exhibit J and incorporated by reference herein. As

referenced in this document, the OCC found that MERS failed to establish and maintain internal

controls, policies and procedures, compliance risk management, and numerous other unsound

practices. Similar consent orders were issued against members of MERS (including GMAC) by

the OCC, describing much the same practices, including but not limited to recordation of

documents in court records and land records that contained affidavits that were improperly

sworn or attested to by persons within their organization or within third-party servicing

organizations that had no personal knowledge of what they were signing. A true and accurate

copy of the OCC’s Cease and Desist Order pertaining to GMAC is attached hereto as Exhibit K

and incorporated by reference herein.

21. Movant requests the Court to take judicial notice of the information contained

in a Linked “Linkedin” profiles of Katie Brewer and Juan Aguirre, attached hereto as Exhibit L

and incorporated by reference herein. These documents disclose the true identities of Katie



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Brewer and Juan Aguirre. For the time period May 2007 through December 2008, the time in

which she purported to execute the Assignment on behalf of MERS, Ms. Brewer identifies

herself as a Portfolio Manager at GMAC Rescap. See Exhibit L. Since November 2006 to the

present, Mr. Aguirre identifies himself as Manager Litigation GMAC. Id. There is no evidence

to support the contention that either individual is an employee and/or officer of MERS at the

relevant time. These sorts of practices were the type the OCC ruling was intended to address.

22. Movant also attaches an article published in ProPublica, by Paul Kiel on July 27,

2011, wherein it reports that GMAC filed phony documents in order to foreclose on

homeowners. A copy of this article is attached hereto as Exhibit M and incorporated by

reference herein. This article explains how GMAC made up an assignment in a foreclosure

case; it also references the firing of the person who revealed GMAC’s practices.

23. On October 1, 2010, Texas Attorney General Greg Abbot wrote to William

Solomon, General Counsel for GMAC Mortgage, regarding fraudulent practices of GMAC

employees “executing assignments of underlying deeds of trust, removal of trustees and

appointments of substitute trustees who have been found to sign affidavits where they had no

person knowledge of the facts contained therein.” A true and accurate copy of this

correspondence is attached hereto as Exhibit N and incorporated by reference herein.

24. In Movant’s case, on March 10, 2008, three (3) days after filing the Instruments,

GMAC employee Hattie McLaughlin signed an affidavit, a true and accurate copy of which is

attached hereto as Exhibit O and incorporated by reference herein, wherein she testifies to the

following:

“I have reviewed the books and records of Homecomings in connection with the

First Loan and Second Loan that are the subjects of this suit. The business

records of Homecomings support the statements contained in this affidavit. As

Limited Signing Officer for Homecomings, I am authorized to make this affidavit.

All of the records attached to this affidavit are the original or exact duplicates of



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the original.

“In November of 2006, Amelia Colvin executed a fixed rate interest home equity

Note ("First Note"), in the original principal amount of $264,000 made payable to

ARK-LA-TEX Financial Services, LLC dba Benchmark Mortgage. A true and correct

copy of the First Note, is attached hereto as Exhibit No. 1, and incorporated herein

by reference.

“Plaintiff executed a Second Note, in the amount of $66,000.00, payable to ARK-LA-

TEX Financial Services, LLC dba Benchmark Mortgage. A true and correct copy of

the Second Note, is attached hereto as Exhibit No. 2, and incorporated herein by

reference.” See Exhibit J.

25. Movant is the owner of the Property by virtue of her recorded deed. The

recordation satisfies the requirement that she “allege right, tit le, or ownership in herself with

sufficient certainty to enable the court to see she has a right of ownership that will warrant

judicial interference” in the issue of the deed of trust’s validity. Wright v. Matthews, 26

S.W.3d 575, 578 (Tex. App.—Beaumont 2000, pet. denied); see also MERS vs. Groves, NO.

14-10-00090-CV, 2011 Tex. App. LEXIS 2696, 2011 WL 1364070 (Tex. App.--Houston [14th

Dist.] 2011). To be sure, Movant alleges the following: (a) that she is the owner of the

Property; (b) that Arklatex, not MERS, accepted and recorded a Deed of Trust securing an

alleged lien on the Property on November 27, 2006; and (3) the Assignment of the Deed of

Trust and Appointment of Substitute Deed is in fact invalid and of no force or effect.

D. THE FRAUDULENT INSTRUMENTS

26. On or about November 14, 2006, Movant executed a purchase money deed of

trust for the Property in the amount of $264,000.00 (hereinafter referred to as the “First

Deed”). The First Deed identified the lender as Arklatex; it also identif ied MERS as a

beneficiary under the deed. See Exhibit E. At the same time, Movant signed a promissory note

in the amount of $264,000.00, payable to Arklatex (hereinafter referred to as the “First Note”).



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See Exhibit F.

27. On or about November 14, 2006, Movant executed a purchase money deed of

trust for the Property in the amount of $66,000.00 (hereinafter referred to as the “Second

Deed”). See Exhibit G. The Second Deed identified the lender as Arklatex; it also identified

MERS as a beneficiary under the deed. Id. At the same time, Movant signed a promissory note

in the amount of $66,000.00, payable to Arklatex (hereinafter referred to as the “Second Note”).

See Exhibit H.

28. Arklatex originated Notes and Deeds, making it the lender and the payee of

Movant’s notes. The Deeds were filed in the Brazoria County records on or about November

27, 2006, thereby vesting superior title to the Property in Movant’s name. On March 7, 2008,

the Parties filed four (4) fraudulent documents in the Brazoria County land records. The

Brazoria County land records do not reflect any negotiation or indorsements of notes nor any

other recordation of releases of liens or assignments between November 26, 2007, the original

Arklatex recording date, and March 7, 2008.

29. At 9:54 a.m., the following two documents were filed: “REMOVAL OF TRUSTEE(S)

AND APPOINTMENT OF SUBSTITUTE TRUSTEE(S)”, Doc # 2008012263. (hereinafter referred to as

“Appointment 2263”; and “ASSIGNMENT OF DEED OF TRUST”, Doc #2008012264 (hereinafter

referred to as “Assignment 2264”). True and accurate copies of Appointment 2263 and

Assignment 2264 are attached hereto as Exhibits A and B, respectively, and are incorporated by

reference herein. Exhibits A and B were filed in the land records of Brazoria County purporting

to create a lien or a claim against the Property; thus, these documents fall within the scope of

Texas Government Code §51.903.

30. At 10:25 a.m., the following two documents were filed: “Removal of Trustee(s)

and Appointment of Substitute Trustee(s)”, Doc # 2008012282. (hereinafter referred to as



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“Appointment 2282”; and “Assignment of Deed of Trust ”, Doc #2008012283 (hereinafter

referred to as “Assignment 2283”). True and accurate copies of Appointment 2282 and

Assignment 2283 are attached hereto as Exhibits C and D, respectively, and are incorporated by

reference herein. Exhibits C and D were filed in the land records of Brazoria County purporting

to create a lien or a claim against the Property; thus, these documents fall within the scope of

Texas Government Code §51.903.

Appointment 2263

31. When the Parties filed Appointment 2263 (Exhibit A), they violated Section

51.903 of the Texas Government Code. This document contains the following intentional

misrepresentations:

• That Movant executed and delivered a certain Deed of Trust securing aNote in the principal sum of $66,000.00 payable to the order of MERS(Document # 2008012263) and referenced the document as Movant’soriginal Deed of trust number 2006069442.

• That La Salle Bank, NA, is/was a holder of the Note pertaining to theProperty (Document # 2008012263)

• That LaSalle Bank, NA, removed the trustee named in the Deed of Truston February 11, 2008 (Document # 2008012263)

• That LaSalle Bank, NA, appointed Barry D. Johnson, Charlotte M. Harris,and/or Steve Leva as Substitute Trustees to the Property on February 11,2008 (Document # 2008012263)

32. In fact, Movant never executed a Deed of Trust securing a Note that was payable

to MERS. See Exhibits E, F, G and H. Movant executed a Security Interest in favor of the original

lender, Arklatex. Furthermore, MERS has made in clear through other lawsuits that it has no

interest in the promissory note; that it is not the owner of the promissory note and has no

rights to the payments made by the debtor on said note; MERS, Inc. v. Nebraska Department of

Banking and Fin., 704 N.W.2d 784 (Neb. 2005), Brief of Appellant at 11-12. MERS is a

bankruptcy-remote entity that cannot loan money; cannot receive monthly payments from a



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mortgagor; cannot suffer any monetary loss as a result of default; nor derive any gain from the

proceeds of foreclosure.

33. The trial court in Nebraska Department accurately characterized MERS' services

as follows:

“… MERS agrees not to assert any rights (other than rights specified in the

Governing Documents) with respect to such mortgage loans or mortgaged

properties. MERS shall have no rights whatsoever to any payments made on

account of such mortgage loans, to any servicing rights related to such mortgage

loans, or to any mortgaged properties securing such mortgage loans. MERS

shall serve as mortgagee of record with respect to all such mortgage loans solely

as a nominee, in an administrative capacity, for the beneficial owner or owners

thereof from time to time. MERS, Inc. v. Nebraska Department of Banking and Fin.,

704 N.W.2d 787 (Neb. 2005). “MERS shall at all times comply with the

instructions of the beneficial owner of mortgage loans as shown on the MERS®

System.” Id.

MERS argues that it does not acquire mortgage loans and is therefore not a

mortgage banker under § 45-702(6) because it only holds legal title to members'

mortgages in a nominee capacity and is contractually prohibited from exercising

any rights with respect to the mortgages (i.e., foreclosure) without the

authorization of the members. Further, MERS argues that it does not own the

promissory notes secured by the mortgages and has no right to payments made

on the notes. MERS explains that it merely "immobilizes the mortgage lien whiletransfers of the promissory notes and servicing rights continue to occur." Brief

for appellant at 12. Id.

In Movant’s case, the statement contained in Appointment 2263 that the Note was made

payable to MERS was therefore knowingly and intentionally a false statement when it was filed

with Brazoria County.

34. Appointment 2263 also states that LaSalle Bank was the current holder of the

Note. See Exhibit D. This statement also contradicts the position that MERS is the holder (not

owner) of the Note. But, the falsity of this statement is no more clearly revealed than in a letter

dated August 15, 2011, attached hereto as Exhibit P and incorporated by reference, Bank of

America to Movant states the following:





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Assignment 2264

38. When the Parties filed Assignment 2264 (Exhibit B), they violated Section


misrepresentations:


• That MERS, c/o Settle Pou, assigned its interest in the Property to LaSalleBank, N.A., c/o Settle Pou (Document # 2008012264)


39. Movant contends that MERS did not, in fact, assign its interest in the Property, as

it was acting in a nominal capacity only. MERS does not have any financial or pecuniary

interest in the note that it held on behalf of Arklatex. Further, the statement that MERS

assigned its interest in the Property “for good and valuable consideration” is direct

contradiction with the affidavit of Hattie McLaughlin (Exhibit O), as well as the letter from Bank

of America (Exhibit P), and numerous other lawsuits, that MERS has no interest in the

promissory note; that it is not the owner of the promissory note and has no rights to the

payments made by the debtor on said note; MERS, Inc. v. Nebraska Department of Banking and

Fin., 704 N.W.2d 784 (Neb. 2005), Brief of Appellant at 11-12. MERS is a bankruptcy-remote

entity that cannot loan money; cannot receive monthly payments from a mortgagor; cannot

suffer any monetary loss as a result of default; nor derive any gain from the proceeds of

foreclosure. Therefore, the statements set forth in Assignment 2264, that MERS assigned its

interest in the Property for good and valuable consideration, were knowingly and intentionally

a false when filed with Brazoria County.

40. Assignment 2264 also represents that MERS assigned its interest in the Property

to LaSalle Bank. See Exhibit B. But, the letter from Christina Fryer, Office of the CEO and



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President of Bank America, notified Movant in written correspondence that LaSalle Bank had

never been in possession of the note. See Exhibit P. Therefore, the representation in

Assignment 2264 is in direct contradiction with information disclosed in the August 15, 2011

letter, and is prima facie evidence that the Assignment 2264 contained knowingly and

intentionally false statements when filed with Brazoria County. Brazoria County land records

are devoid of any assignments, releases of lien to LaSalle Bank.

Appointment 2282

41. When the Parties filed Appointment 2282 (Exhibit C), they violated Section


misrepresentations:

• That Movant executed and delivered a certain Deed of Trust securing aNote in the principal sum of $264,000.00 payable to the order of MERSreferencing Brazoria county land records document 20060690441 and2006069440. (Document # 2008012282)

• That Deutsche Bank Trust Company America, as Trustee, is/was a holderof the Note pertaining to the Property (Document # 2008012282)

• That Deutsche Bank Trust Company America, as Trustee, removed thetrustee named in the Deed of Trust on February 11, 2008 (Document #2008012282)

• That Deutsche Bank Trust Company America, as Trustee, appointedBarry D. Johnson, Charlotte M. Harris, and/or Steve Leva as SubstituteTrustees to the Property on February 11, 2008 (Document #2008012282)

42. In fact, Movant never executed a Deed of Trust securing a Note that was payable

to MERS. See Exhibits E, F, G and H. Movant executed a security interest in favor of the original

lender, Arklatex. Again, MERS has no interest in the promissory note; it is not the owner of the

note and has no rights to the payments made on the note. See Kingman Holdings LLC v.

CitiMortgage Inc., and Mortgage Electronic Registrations Systems Inc., Case No. 4:10-CV-619

(E.D. Tex.) 2011 U.S. Dist. LEXIS 52770, April 21, 2011,



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43. Moreover, Movant recently tendered a letter, through counsel, to Deutsche Bank

requesting confirmation that it has ever been the trustee for the note to the Property. The

Affidavit of James Anderson, with exhibits, is attached hereto as Exhibit Q and incorporated by

reference herein. Movant’s letter seeks the disclosure of information to which she is entitled

under the Fair Debt Collections Practices Act (the “Act”). The Act requires Deutsche Bank to

respond within thirty days. It has failed to do so. See Exhibit Q (certified mail “green card”

indicates that the letter was tendered on October 11, 2011 and again to November 4, 2011. To

date, no response has been received. Deutsche Bank’s failure to respond and/or provide

evidence that it has a bona fide claim or interest in the Note further supports Movant’s

contention that Appointment 2282 contained numerous false statements when it was filed with

Brazoria County. Brazoria County land records are devoid of any assignments, releases of lien

to Deutsche Bank Americas as Trustee.

44. Next, Appointment 2282 represents that Deutsche Bank removed the trustee

named in the Deed of Trust on February 11, 2008. See Exhibit C. In fact, the document was

signed and notarized on February 25, 2008; not on February 11. Id . The practice of “back

dating” the effective date is a common practice in the foreclosure industry to (at tempt to)

ensure that the appointment of the trustee occurs the requisite twenty-one (21) prior to sale,

when the notices of sale are tendered in accordance with the Texas Property Code.

45. In this case, the Property was originally posted for sale on March 4, 2008.

Therefore, an appointment of the substitute trustee on February 25 would not have complied

with the Texas Property Code, whereas an appointment on February 11 would. “The trustee or

substitute trustee may not appoint an agent or representative to conduct the sale in their place

unless the requirements of the Deed of Trust have been satisfied.” See Wilson vs. Armstrong,

236 S.W. 755, 757 (Tex. Civ. App.—Beaumont, no writ). The practice violates the provisions of





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foreclosure. Therefore, the statements set forth in Assignment 2264, that MERS assigned its

interest in the Property for good and valuable consideration, were knowingly and intentionally

a false when filed with Brazoria County.

E. SUMMARY and CONCLUSION

48. The universal maxim is that fraud vitiates everything it touches. The Texas

Constitution and applicable state law do not allow for MERS, Deutsche Bank, LaSalle Bank,

through the likes of Katie Brewer, Juan Aguirre, and Barry Johnson, to create liens based upon

false statements and then file them in the Brazoria County Land Record . “To be effectively

recorded, an instrument relating to real property must be eligible for recording and must be

recorded in the county in which a part of the property is located. However, if such an

instrument grants a security interest by a utility as defined in Section 261.001, Business &

Commerce Code, the instrument may be recorded as required by Sections 261.004 and 261.006

of that code, and if such instrument is so recorded, the lien and the secured interest created by

such instrument shall be deemed perfected for all purposes.” Texas Property Code, Section

11.001.

49. In this case, the assignments and appointments of substitute trustees contain

fraudulent statements; the fraud makes these documents ineligible for filing. Only a holder of

note under the lien perfection theory and the Texas Local Government Code, Sections 192.001

and 192.007, allow for a legitimate transfer of lien and release of lien, and appointment of

substitute trustee to be appointed. As of March 7, 2008 the lack of timely assignment that

included back-dating of an appointment of substitute trustee, which is a fraud upon the land

records and the Movant, makes these filings ineligible for recording.

50. The record evidence establishes that MERS owned neither the notes, nor an

interest, legal share, or right in the notes. The only rights that could be gained, and were



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gained, were through the creation of fraudulent instruments. The Parties therefore had no

rights to filing the assignments and/or the appointments of substitute trustees. The record

shows that as early as 2005, MERS made is sworn public knowledge that it was never the payee

of a promissory note; that it had no more than a “straw” interest in a deed of trust or mortgage;

and that it had no employees. The Parties ignored instances where sworn testimony was given

as early as 2005 where it was established that MERS had no more than a nominal interest in

deeds of trusts and notes.

51. Years later, on March 2008, the Parties intentionally violated with knowledge

and intent various Texas statutes, including but not limited to, the Texas Property Code, the

Texas Government Code, and the Texas Local Government Code. The record establishes that

the Parties had knowledge through internal email and documents that when the Parties did not

have the requisite legal instruments, they were capable of, and willing to, simply manufacture

what was needed.

52. Movant contends that the foregoing motion and exhibits hereto sustain her

burden to establish that the Instruments were filed in violation of Section 51.903 of the Texas

Government Code. As such, the Court may enter appropriate findings of fact and conclusions of

law, specifically that the Instruments were/are indeed fraudulent for purposes of the statute.

F. PRAYER

53. Movant prays for a review of the attached documentation; that a hearing be set

at which time the Movant may address any questions of the Court; that an order of judicial

finding of fact and conclusion of law as to each document under Texas Government Code

§51.903 and 51.901 and Section 12.004 of the Texas Civil Practice & Remedies Code be

rendered; and for such other and further relief at law equity to which Movant may show herself

to be justly entitled.



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Respectfully submitted,

_____________________________________________Wade KrickenState Bar No. 24034527P. O. Box 59331Dallas, Texas 75229-1331214.418.1187 - direct214.593.3108 – [email protected]

ATTORNEY FOR MOVANT

mailto:[email protected]

