Hunter Etrade Rule 60 Motion 2 Vacate Rev 4

7/27/2019 Hunter Etrade Rule 60 Motion 2 Vacate Rev 4

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endorsements on the note were presented by surprise on February 28, 2012, attached to their

Motion for Summary Judgment. Plaintiffs summary judgment was decided by the Court by

submission of both surprise and deceptive fabricated evidence without affording the

Defendant sufficient opportunity to investigate and unravel this carefully constructed fraud

prior to rendition of judgment, and thereby making the impeachment of this evidence

impossibility.

5. The premature termination of the case by granting summary judgment, despite the

numerous contested evidentiary issues, also denied the Affiant the opportunity to fully explore

and prove this meticulously crafted and concealed perjury, forgery and fraud by writtendiscovery and deposition. The Affiant had initially served discovery on the Plaintiff in

September, 2010, seeking to inspect the original note, which went unanswered. The Affiant

was not allowed opportunity to inspect the alleged original note until July 19, 2012, at which

the time the forged endorsements Lending Tree to Countrywide were revealed to be alleged

endorsements on the back of the note.

6. The Plaintiffs fraudulent concealment of the transfer to Countrywide entities until

February, 2012 and the stonewalling discovery attempts to view the note, effectively

precluded the Affiant and opportunity to conduct any meaningful discovery to timely acquire

compelling evidence of the Plaintiffs perjury and forgery in time to be presented by Affiant

as affirmative and defensive summary judgment evidence.

7. The Affiant/defendant incorporates by reference his previous pleadings in this Court,

specifically, his Emergency Motion for Stay of Trial Court's Order and Defendants Response

to Motion by Plaintiff, A Person Entitled to Enforce Note Pursuant to IC 26-1-3.1-301,

for Summary and Default Judgment Entry and Decree of Foreclosure, filed March 28, 2012,


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and attached exhibits, all of which placed before the Court a portion of the evidence and

information supporting Affiants arguments and allegations of Plaintiffs lack of standing, the

Courts lack of jurisdiction to hear this particular case, as well as Plaintiffs perjured affidavit,

evidence fabrication and fraud upon the Court. This deceptive behavior has been compounded

by the unwitting complicity of the Court, which has become entangled the deceptions, the

violations of Indiana Code, and the violations of Affiant/defendants constitutional rights of

due process of law and equal protection under the law.

8. The jurisdictional question can be raised at any time and cannot be waived. Parkview

Hosp., Inc. v. Geico Gen. Ins. Co., 977 N.E.2d 369, 372 (Ind. Ct. App. 2012). trans. denied.9. While it is undisputed that the Court had jurisdiction of the class of cases to which the

case at bar belongs, the Affiant/defendant avers that this Court had no jurisdiction of the

subject matter in this particular case if the Plaintiff is not the real party in interest. [T]he

objection that there is no jurisdiction of the subject-matter may be interposed at any time.

McCoy v. Able (1892), 131 Ind. 417, 30 N.E. 528.

10. Conversely, [f]or some time, Indiana has adhered to the rule that the judgment of a

court having jurisdiction of the subject matter of the suit and the person, however irregular, is

not void and not impeachable, unless it may for fraud. K.S. v. State, 849 N.E.2d 541-42

(Ind. 2006) (quoting Mishler v County of Elkhart, 544 N.E.2d 149,151 (Ind. 1989).

11. A void judgment has no effect whatsoever and is incapable of confirmation or

ratification, Lucas v. Estate of Stavos, 609 N. E. 2d 1114, rehearing denied, and transfer

denied (Ind. App. 1 dist. 1993). Void judgment is one that from its inception is a complete

nullity and without legal effect Stidham V. Whelchel, 698 N.E.2d 1152 (Ind. 1998).

12. Despite the fact that at the time of commencement of the above captioned cause, the


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Plaintiff was not able to produce a note with either a special endorsement or endorsed in blank

raises a prima facie question of standing to commence the action on August 30, 2010, the

Affiant/defendant Plaintiff could not have acquired possession of the subject note from a

MERS as nominee for Home Loan Center, Inc., d/b/a Lending Tree, because the last owner of

the mortgage loan was Countrywide Home Loans, Inc and the assignment of mortgage

alleged to have transferred it was fraudulent and perjured document.

13. Under existing law there is really only one way to attack a judgment on grounds of

fraud on the court; namely, an independent action pursuant to Trial Rule 60(B). See, e.g.,

Global Travel Agency, 727 N.E.2d at 1103-04; Glover v. Torrence, 723 N.E.2d 924 , 932(Ind.Ct.App.2000); In re Marriage of M.E., 622 N.E.2d 578 , 581 (Ind.Ct.App. 1993); In re

Paternity of Tompkins, 518 N.E.2d at 504.

Violations of Indiana Code

14. Danielle, Abenes, both as an officer of BOA and signatory on the Assignment of

Mortgage, commits the crime of counterfeiting, violating IC 35-43-5-2(a)(1)(D), where (under

version A of the law) she makes or utters a written instrument which purports to be by

authority of one who did not give authority., a Class D felony (Level 6 felony) and IC 35-43-

5-3(a)(2), Deception, when being an officer, manager, or other person participating in

the direction of a credit institutionknowingly or intentionally makes a false or misleading

written statement with intent to obtain property a Class A misdemeanor.

15. Thaddeus Larimer, as default Hearing Manager of Specialized Loan Servicing,

LLC, committed perjury in furnishing the Court with a sworn, false affidavit in support of the

Plaintiffs Affidavit in Support of Plaintiffs Judgment Entry And Decree of Foreclosure,

violating IC 35-44-2-1: Perjury a class D felony (Level 6 felony).
http://www.leagle.com/get_cited/723%20N.E.2d%20924http://www.leagle.com/get_cited/622%20N.E.2d%20578http://www.leagle.com/get_cited/622%20N.E.2d%20578http://www.leagle.com/get_cited/723%20N.E.2d%20924


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16. The subject assignment of mortgage signed and executed by Danielle The law firm of

Feiwell & Hannoy P C, in Indianapolis, Indiana, and attorney Susan M. Woolley of Feiwell &

Hannoy colluded to generate a fraudulent assignment of mortgage to make it appear as though

the Plaintiff (E*Trade) had standing to foreclose on the subject property.

E*Trade Never Had Standing to Foreclose

17. Standing is a fundamental, threshold, constitutional issue that must be addressed by

this, or any, court to determine if it should exercise jurisdiction in the particular case before

it. Alexander v. PSB Lending Corp., 800 N.E.2d 984, 989 (Ind. Ct. App. 2003).

18. The Court and the Affiant/defendant were not fully aware to the extent that DanielleAbenes could not possibly be an officer or employee of MERS as she claimed in her

assignment of mortgage. Or, that BOA had an internal policy to separate and insulate itself

from Countrywide mortgage loans and to the extent that in order to insulate BOA from the

Countrywide mortgage loans, they would collude with the Plaintiff and their counsel Feiwell

& Hannoy to fraudulently advance this foreclosure action.

19. E*Trade, knowingly stood on a fraudulent document to maintain the appearance of

standing in the subject foreclosure action. Without valid proof of an assignment to

substantiate their cause of action they lacked standing in the subject foreclosure proceedings.

It is clear that the law firm of Feiwell & Hannoy P C and Susan M. Woolley, along with BOA

and Danielle Abenes, are guilty of extrinsic fraud in that they colluded to generate a

fraudulent assignment of mortgage to make it appear as though the Plaintiff (E*Trade) had

standing to foreclose on the subject property.

20. The issue of standing focuses on whether the complaining party is the proper one to

invoke the courts power. Scott v. Randle, 736 N.E.2d 308 (Ind. Ct. App. 2000). The standing


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requirement assures that litigation will be actively and vigorously contested, as plaintiffs must

demonstrate a personal stake in the litigations outcome in addition to showing that they have

sustained, or are in immediate danger of sustaining, a direct injury as a result of the

defendants conduct. Id. To establish standing, therefore, a plaintiff must demonstrate a

personal stake in the outcome of the lawsuit and that the injury is a result of the defendants

conduct. Hibler v. Conseco, Inc., 744 N.E.2d 1012 (Ind. Ct. App. 2001). If properly

challenged, when a plaintiff fails to establish standing in the pleadings, the court must dismiss

the complaint. Schulz v. State, 731 N.E.2d 1041 [(Ind. Ct. App. 2000)].Id.

21. Because there are material, factual and legal issues as to the subject matter and inpersona jurisdiction under Indiana Rules of Trial Procedure, TR 17(A)(2) and TR 12(B) (1)

(2) (6) and (7), due to lack of Ratification of Commencement by the Real Parties in Interest

that needs to be addressed by this Court sua sponte as a threshold issue under Section 12 of

the Article 1 Sec. 12 of the Indiana Constitution, and as such, this Court should vacate its

Judgment.

22. The primary averment here is that the mortgage assignment was fraudulently executed

to mislead and burden the state court and the Affiant/defendant and thereby achieve an

objective of foreclosure judgment without standing.

BOA Acquired Countrywide and Created Shell Entities to Evade Liabilities

23. In 2006, the Affiant initially contacted Lending Tree Loans and applied for a home

equity line of credit. But, Lending Tree, being only a loan aggregator had to immediately sell,

assign or transfer, etc, the Affiants home equity loan to Countrywide Home Loans, because

the Affiant then shortly thereafter received a checkbook from Countrywide to draw on the

funds by and through Bank of New York (now Bank of New York Mellon) who was acting as


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trustee for 530 Countrywide securitization trusts. (See copy of a Countrywide check provided

to Affiant/defendant)

24. Affiant recently discovered that BAC first announced its plans to purchase

Countrywide, however, and increasingly thereafter, Countrywides contingent liabilities were

mounting, with regulators, investors, shareholders, and insurers all alleging that Countrywide

had engaged in fraud and imprudent underwriting. Cognizant of these liabilities, BAC

engaged in a series of transactions in an attempt to evade liability for Countrywides fraud and

other misconduct while acquiring its valuable assets and business operations.

25. Specifically, BAC set out to acquire control over Countrywide Financial Corporationand its subsidiaries, strip those companies of all their valuable assets and business operations,

while at the same time, distancing itself from toxic assets (non-performing loans), leaving

shell entities behind to act as protective filters for Countrywides mounting contingent

liabilities from what it called its most toxic assets, or those assets

26. The so-called toxic assets related to Countrywide include knowingly selling vast

quantities of fraudulent mortgages in order to securitize them and sell them to unwitting

investors or where Countrywide on illegal securitization where notes and mortgages were

never delivered to the trust that issued the securities.

27. The Affiant/defendant hereby avers that in furtherance of BOAs plans to distance and

insulate itself from toxic Countrywide assets BOA colluded to generate a fraudulent

assignments of mortgage to fabricate ownership of Affiants mortgage as part and parcel of its

scheme to evade liabilities involving Countrywide mortgages, such as Affiants.

28. Unbeknownst to the Affiant, BOA did away with the Countrywide brand in 2008. On

the above referenced date the Affiant discovered a press release on BOA website dated April


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27, 2009. In that press release BOA officially announced that after acquiring Countrywide

Home Loans, Inc. on July 01, 2008, they are now launching BOA Home Loans brand, and

also officially retired the Countrywide brand. (See BOA press release/article, dated Monday,

April 27, 2009, attached hereto as Exhibit A )

(source: http://newsroom.bankofamerica.com/press-release/countrywide/bank-america-

responds-consumer-desire-increased-transparency-home-loan-pro

BOA Fraud Through MERS

29. When the Plaintiff filed the above captioned complaint on the Affiant, based on the

assignments produced by the Plaintiff in their summary judgment proceedings,BOA/Countrywide was the last owner of Affiants mortgage and thus the only entity capable

of assigning his mortgage to the Plaintiff, not Lending Tree Loans. This was recognized and

agreed on by both the Court and the Plaintiff at the hearing on Plaintiffs motion for summary

judgment conducted in July of 2012.

30. Clearly, based on the paper trail offered up by the Plaintiff and defendant,

Countrywide succeeded Lending Tree as early as 2006. But, BOA, the Countrywide successor

in interest, deemed it necessary to document the transfer of ownership of Affiants mortgage

with a fraudulent document reciting false job titles and a phony assignor to give the

appearance of standing.

31. Affiants mortgage (Line of Credit) Lending Tree originally named the Mortgage

Electronic Registration System Inc, (MERS) solely as nominee for Home Loan Center Inc.,

d/b/a/ Lending Tree. MERS is a privately-held company that operates a national electronic

registry to track servicing rights and ownership of mortgage loans in the United States. The

MERS system purportedly operates as follows:

When a home is purchased, the lender obtains from the borrower a promissory note and a
http://newsroom.bankofamerica.com/press-release/countrywide/bank-america-responds-consumer-desire-increased-transparency-home-loan-prohttp://newsroom.bankofamerica.com/press-release/countrywide/bank-america-responds-consumer-desire-increased-transparency-home-loan-prohttp://newsroom.bankofamerica.com/press-release/countrywide/bank-america-responds-consumer-desire-increased-transparency-home-loan-prohttp://newsroom.bankofamerica.com/press-release/countrywide/bank-america-responds-consumer-desire-increased-transparency-home-loan-pro


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mortgage instrument naming MERS as the mortgagee (as nominee for the lender and itssuccessors and assigns). In the mortgage, the borrower assigns his right, title, and interest inthe property to MERS, and the mortgage instrument is then recorded in the local land recordswith MERS as the named mortgagee. When the promissory note is sold (and possibly re-sold)in the secondary mortgage market, the MERS database tracks that transfer. As long as theparties involved in the sale are MERS members [as are most large financial institutions],MERS remains the mortgagee of record thereby avoiding recording and other transfer feesthat are otherwise associated with the sale) and continues to act as an agent for the new ownerof the promissory note.

In re MERS Litig., 659 F. Supp. 2d 1368, 1370 n.6 (U.S. Jud. Pan. Mult. Lit. 2009)

32. The fact that MERS is supposed to keep a close track on mortgage loan transfers is

confirmed by R.K. Arnold, President of MERS is to eliminate what he calls unnecessary

assignments and track mortgage loans. (See copy of relevant portion of video deposition of

R.K. Arnorld, given on September 25, 2009, attached hereto as Exhibit B ).

33. However, the fact is that MERS was created in 1995 to enable the mortgage industry

to avoid state recording fees, allow for the rapid sale and securitization of mortgages, and

shorten the time it takes to pursue foreclosure actions. Its corporate shareholders include,

among others, BOA, Wells Fargo, Fannie Mae, Freddie Mac, and the Mortgage Bankers

Association.

34. When the Plaintiff initially filed their Complaint they attached a fraudulent

Assignment of Mortgage, seemingly executed by MERS employee, Danielle Abenes,

allegedly acting as nominee for Home Loan Center, Inc., d/b/a/ Lending Tree Loans.

35. However, according to William Hultman, Senior Vice President of MERS, not only

are there no salaried employees at MERS, they have no employees at all. (See relevant

portions of deposition given by William Hultman, dated April 07, 2010, attached hereto as

Exhibit C ).

36. In fact, Danielle Abenes is really an assistant vice president with BOA (MERS

Shareholder), with a direct office phone number 336-333-7242 at the headquarters of BOA,


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located at the Triad Center, 4161 Piedmont Pkwy, Greensboro, N.C., 27140, in Guilford

County, North Carolina. The same county in North Carolina that appears in the notarys

verification on the subject Assignment of Mortgage attached to the Complaint by the Plaintiff.

37. Moreover, BOA employee, Ms. Danielle Abenes, has been working at BOA since at

least October 01, 2009, because a document entitled Authority to Cancel is recorded with

the Chancery Clerk, Desoto County, Mississippi. See copy of Authority to Cancel executed

by Ms. Abenes, identifying her a an assistant vice president of BOA, attached hereto as

Exhibit D

38. The banking industry created a private registry of mortgages that offers homeownerslittle accountability, slashes millions of dollars from county revenue, and skates over

hundreds of years of state property laws.

39. The entire MERS fraudulent artifice is designed to enable a person like Ms. Abenes to

enter into one or more agreements for signing authority which purports to allow employees

of Servicing Agents and foreclosure mill law firms like Plaintiffs counsel Feiwell &

Hannoy to prepare and execute fraudulent mortgage assignments with false job titles in

which the assignor and assignee are not possessed of the capacity stated, and of which the

person executing the document(s) has no knowledge.

MERS Named as Nominee for Lender Indicates Intent to Securitize Mortgage Loan

40. The Affiant/defendant also recently learned that the very presence of MERS indicated

that the Affiants loan was certainly bundled with a group of mortgage and securitized, and

that neither Countrywide/BOA ever had a beneficial interest in Affiants mortgage after it was

securitized in 2006.

41. To put it more clearly, in an Opinion and Order issued by John R. Jolly, Jr., Chief


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Special Superior Court Judge for Complex Business Cases, in the General Court of Justice,

Superior Court of State of North Carolina, Judge Jolly, Jr., stated:

[I]t appears that MERS exists to facilitate the creation and maintenance of mortgage-

backed securities. The creation of mortgage-backed securities requires the acquisitionand repackaging of groups of mortgages. The conversion of groups of mortgages intomarketable securities requires that the beneficial interest in a mortgage, along withservicing rights, be rapidly transferred through multiple parties. Put simply, underlyingmortgages must be assigned through a chain of parties ultimately to becomesecuritized.

42. Therefore, it is quite clear that the Affiants loan was certainly bundled with a group

of mortgage and securitized, and that neither Countrywide/BOA ever had a beneficial interest

in Affiants mortgage after it was securitized in 2006. (It will be demonstrated below,Countrywide was in the business of fraudulently marketing non-mortgage backed securities as

mortgage backed securities).

43. In any event, the proceeds of Affiant/defendants home equity line was supplied, by

and through the Bank of New York, the trustee for hundreds of securitized trust traceable

back to Countrywide purchased mortgage loans; Thus, the only entity that could directly

assign the mortgage to the Plaintiff would be the trustee of the securitized trust to which the

Affiants mortgage loan was supposedly transferred during the process of securitization his

mortgage.

BOA Motivation for Forging the Defendants Assignment of Mortgage

44. After BOA acquired Countrywide in 2008 and was actively and earnestly involved in

stripping the assets from Countrywides productive mortgage loans, BOA knew when

foreclosing on defaulting Countrywide mortgages there was a problem with the chain of

ownership. BOA discovered that many of the loan assets they acquired were not only

subprime loans mislabeled as prime, but they also were notoriously defective due to


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mortgage backed securities, but that neither Countrywide or BOA could foreclose on

loans under the name of the trustee, the Bank of New York. The very entity upon

which the defendant was drawing upon for his home equity funds.

50. BOA acquired Countrywide only two (2) months after the Kemp bankruptcy

petition was filed and final disposition was in November, 2010; thus, BOA carried out

this fraudulent fabrication involving the Plaintiff at the same time it was fabricating

documents in the above captioned case. In an attempt to the problem stemming from

Countrywides fraudulent and illegal securitization practices, BOA set up a litigation

and foreclosure division to apparently fabricate documents in order to give foreclosing

entities the appearance of standing to foreclose mortgages involving numerous so-

called toxic Countrywide assets.

51. Since BOA/Countrywide routinely never passed on the mortgage loan documents they

did not issue mortgage back securities at all, they in fact, perpetrated a fraud, by issuing non-

mortgage backed securities, making the Affiant/defendant and others, an unwitting, third

party to a fraudulent and illegal investment contracts and thereby clouding titles to borrowers

property.

The Plaintiffs Unclean Hands

52. At the outset of this case, the Plaintiff has proceeded in bad faith and colluded with

BOA to engage in extrinsic fraud on this Court to maintain the appearance of standing. This

should give this Court pause to consider these circumstances and the case be dismissed on the

basis of unclean hands alone. This is no mere oversight or mistake.

53. The Plaintiff knew they were not the real party in interest with standing to foreclose

because the assignment of mortgage came from Lending Tree Home Loans, Inc.


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O R D E R

The Court being duly advised, denies / grants the Motion to Vacate Void Judgment.

The Court hereby orders: (___) defendants motion set for hearing / (___) said judgment vacated

and this matter set for contested hearing on _______________________, 20____, at ________.m.

Date: __________________________ ____________________________________ David Riggins, Special JudgeJohnson Superior Court No. 3


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CERTIFICATE OF SERVICE AND COMPLIANCE

I hereby certify that a true and accurate copy of the foregoing was served via U.S.

Mail, postage prepaid, this _______ day of ___________________, 2013, by mailing same

to:

BRYAN K. REDMONDc/oFEIWELL & HANNOY, P.C.251 N. Illinois Street, Suite 1700Indianapolis, IN 46204 -1944

__________________________ Kenneth Hunter1413 S. Center Ln.,Franklin, Indiana, 46131(317) 736-4847

Documents

Hunter Etrade Rule 60 Motion 2 Vacate Rev 4