STATE OF RHODE ISLAND PROVIDENCE, SC DEREK LANGER Vs. MERS, HOMECOMEINGS FINANCIAL NETWORK, INC.

, AURORA LOAN SERVICES, LLC AND JOHN DOE SECURITIZED TRUST ______________________________________ AURORA LOAN SERVICES, LLC VS. DEREK J. LANGER

SUPERIOR COURT

CA NO. PC11-4670

CA NO. WD11-0570

MEMORANDUM IN SUPPORT OF OBJECTION TO MOTION FOR SUMMARY JUDGMENT Now comes Derek Langer and hereby submits this Memorandum in support of the Motion for Summary Judgment now before this Court. (This memorandum relates to both actions now before this Court) As grounds therefore, Langer hereby claims that there are genuine issues of material fact in both cases for the trier of fact to determine and that the moving parties are not entitled to judgment as a matter of law. BUCCI1 HAS BEEN CONSISTANTLY MISAPPLIED BY THIS COURT AND MISUNDERSTOOD BY DEFENDANTS COUNSEL The matter before this Court does involve some of the issues decided by the Rhode Island Supreme Court in Bucci v. Lehman Bros. Bank, FSB, 2013 WL 1498655 (R.I. April 12, 2013). What is Gospel is the fact that the Supreme Court, in Bucci, ruled that in order to foreclose the

The Rhode Island Supreme Court in its holding in Bucci overruled the lower court by requiring that the foreclosing party be the mortgagee and note holder or an agent acting on behalf of the note holder. In other words, a mortgagee, without the note, or without being an agent for the note holder, could not invoke the Statutory Power of Sale.

foreclosing party be the mortgagee and note holder or an agent acting on behalf of the note holder. As this Court knows, MERS has made judicial admissions in Rhode Island and in Bucci, that it never holds or owns the note and that it is a mere mortgagee without the note or an agent for the note holder cannot foreclose pursuant to the statutory power of sale. In order for that to be true in this case, MERS had to make a valid assignment of the Mortgage in compliance with Rhode Island General Laws 34-11-24.2 It did not because it could not. MERS, by its own admission in Bucci, never holds promissory notes and it never is owned the indebtedness. This being a judicial admission of which this Court must take judicial notice, this Court must find that the attempted assignment in this case is void as a matter of law. The assignment statute clearly requires that the mortgagee making the assignment assign the mortgage, the note and the debt secured thereby. Not having the note and not owning the debt, MERS cannot comply with Rhode Island General Laws 34-11-24. There is no rational way to reach this conclusion. This Court has, much like a contortionist in a circus, tried to manipulate this statute to serve its purpose of validating MERS mortgages to make true its promise in Porter that No holding of this Court should invalidate the foreclosure but it has failed in each and every case where it has failed to address the clear and precise language of RIGL 34-11-24. This Court has never performed a statutory analysis of 34-11-24 as it should have. If a

Rhode Island General Laws > Title 34 > Chapter 34-11 > 34-11-24 - Effect of assignment of mortgage

An assignment of mortgage substantially following the form entitled "Assignment of Mortgage" shall, when duly executed, [emphasis added] have the force and effect of granting, bargaining, transferring and making over to the assignee, his or her heirs, executors, administrators, and assigns, the mortgage deed with the note and debt thereby secured, [emphasis added] and all the right, title and interest of the mortgagee by virtue thereof in and to the estate described therein, to have and to hold the mortgage deed with the privileges and appurtenances thereof to the assignee, his or her heirs, executors, administrators and assigns in as ample manner as the assignor then holds the same, thereby substituting and appointing the assignee and his or her heirs, executors, administrators and assigns as the attorney or attorneys irrevocable of the mortgagor under and with all the powers in the mortgage deed granted and contained

foreclosure was done in violation of RIGL 34-11-22 it is the obligation of the Court to reverse a foreclosure regardless of its personal viewpoints. The Court must enforce the law and not

enforce its sense of right and wrong, Instead, this Court has made impossible rulings, time after time based upon irrational fabricated legal doctrine. Even after it admitted in U.S. Bank National Association v. Alfaia et al, C.A. NO. PC-2009-2776 (R.I. Super. Ct., August 8, 2013) (Rubine, J.), which involved the authority of a party to foreclose, this Court unequivocally decided as a matter of Rhode Island law, that the transfer/negotiation of a promissory note, such as those in all cases decided by the Superior Court on the MERS Calendar, is governed by the 6A-3-301, et seq. Specifically, the Court wrote as follows: To enforce the Note as an obligation under a negotiable instrument, the party seeking enforcement must be a person entitled to enforcement under 6A-3-301 of the UCC. Logic dictates that for MERS to be able to comply with 34-11-24, it must be able to transfer the note and debt secured thereby. MERS has readily admitted that it never holds the note, owns the note or has the right to enforce the note. This was its own testimony in Bucci. It can never, therefore, negotiate or transfer a promissory note as required by 34-11-24. It cannot comply with This proves, therefore, that a party that does not hold the promissory note, may not transfer that note by operation of law because it never complies with 6A-3-301 of the UCC. For this Court to rule as it did in Alfaia and rule any other way in any other MERS assignment case involving the negotiation of a promissory note is ludicrous. As stated in the above case, the Court must look to the UCC as it relates to Rhode Island conveyancing statutes, specifically R.I.G.L. 34-11-24 when deciding the issue of the identity of the actual note holder. The Court cannot now retreat from this sound legal conclusion to support its former decisions made on the MERS colander and to rule against Langer in this case. To do

so would be prima facie evidence that this Court is making decisions first and writing opinions to support those decisions. If this is the practice, it must end now. Notwithstanding all of the above and the volumes of writings that this Court has simply ignored them to bootstrap ruling after ruling. The time for bootstrapping is at an end and quoting the Court, has been put to bed once and for all. The Defendant states, with no support whatsoever, that the Plaintiff does not have the ability to allege any failure by the mortgagee of record to comply with the Rhode Island Statutory Foreclosure process, Plaintiff instead is attempting to challenge contract, agreements and title interests to which he is neither a party nor a third party beneficiary. Quite to the contrary, the foreclosure in this case never took place. It is void because the assignment of mortgage is void. The Defendant claims that the Defendant has the right to assign the mortgage and enforce the statutory power of sale. It cites Bucci, Porter v. First NCL Financial Services, No. PC-10-2526, 2011 R.I. Super. Lexis ( 2011); in Payette v. Mortgage Elec. Registration Sys., 2011 R.I. Super. Lexis 117 (R.I. Super. Ct. 2011); and its progeny, namely, Kriegel v. Mortgage Elec. Registration Sys., 2011 R.I. Super. Lexis 134 (2011) for that proposition. It also cites Rutter v. Mortg. Elec. Registration Sys., 2012 R.I. Super Lexis 39 (2012). Even the Rutter decision, written by the learned Judge Silverstein ruled, based upon the erroneous ruling of the MERS Court, that the Rutters did not have standing to challenge the assignment of Mortgage from MERS to another party. It is clear, based upon the Cosajay ruling, that the Rutter Court was also mistaken in relying on the previous rulings of the MERS Court regarding standing. In further regard to Rutter, the Court found that even if there was standing to challenge the assignments, it did not matter because the mortgage gave MERS the right to assign. That may well be true. MERS may very well have the power and right to assign, but only when it holds

the note and debt as required by RIGL 34-11-24. This was never addressed by the Rutter Court.3The Bucci Court never addressed assignments. The Porter Court never addressed assignments. The Kriegel Decision has been totally deconstructed (See attached) as has Payette, The published Deconstruction of Kreigel and Payette was not intended to insult the Court but to point out in great detail the errors that he Court had made in those cases. They were intended to be learning tools and not written attacks on the Court itself. The Deconstruction of Kriegel and Payette did not please the Court, but one thing is certain, those decisions, when placed under the microscope, reveal that they are error laden beyond reclamation and should not even be considered by this or any other Court. This attorney has been scolded for being truthful regarding these cases, but it is time for the Court to come to terms with its errors. A final comment regarding Rutter is that it does not address RIGL 34-11-24 and it was wrong in regard to Eaton, which was fully adopted by the Rhode Island Supreme Court. Further, it echoed the personal feelings of the Justice in the Porter Court when it wrote No holding of this Court should invalidate the foreclosure, which [borrowers] agreed would ultimately be the consequence of nonpayment of the mortgage loan." Porter, 2011 WL 1251246, slip op. at 6. This matter, as all of the matters before the MERS court are based upon statutory compliance, not the moral compass of the Justices deciding these cases. If it were about morality, it is hard to believe that any Justice could ever rule for the banks, most of which have admitted liability for foreclosure fraud and misdeeds related to the foreclosure process. The Defendants go on to argue that the Plaintiff does not have standing to contest an assignment of mortgage. Again, the Defendants rely on Payette, however on November 5,

It is important to point out the Rutter Court also Rejected Eaton, and predicted that it would not be adopted by the Massachusetts SJC. In fact, it was adopted by the Rhode Island Supreme Court in Bucci. It is also clear that the Rutter Court incorrectly rejected the Culhane Ruling which was later adopted by the RI Supreme Court and which formed the basis for the Decision of the District Court in the Cosajay Memorandum and Order.

2013, the United States District Court for the District of Rhode Island, in Cosajay rendered Payette and each and every case that this Court has decided based upon a Plaintiffs lack of standing to challenge assignments wrong. Each and every case that this Court has dismissed or granted summary judgment based upon lack of standing must be overturned. This Court in particular relied upon Fryzel which was the companion case to Cosajay to support its erroneous ruling that Plaintiffs lacked standing to challenge assignments. Fryzel and Cosajay are dead and so, therefore, are each and every ruling made by this Court that relied upon them. This Court never took the time to put all the puzzle pieces together and now it is left with a mess of pieces that simply dont fit and that cannot pass judicial muster. The Defendants at page 3 claim that MERS had the ability to enforce the mortgage by invoking the statutory power of sale. They cite Bucci in support of this proposition. They stop

short, however, of telling the truth. The Bucci Court did rule that MERS could foreclose, but only when it held both the mortgage and note or when it was an agent of the note holder. There is no proof in the affidavit in this case that MERS was the agent of any party. This is especially true since Homecomings, the entity that MERS claims to be the nominee of at the time of the alleged assignment, did not exist at the time of the alleged assignment.4 Impossibility seems to be a concept that runs throughout this matter and which renders this motion untenable. Further at page 3, the Defendants claim that Bucci, Porter, Kreigel and Payette all stand for the proposition that MERS can assign a mortgage. Bucci and Porter never addressed this issue and Kreigel and Payette, both of which are based upon Fryzel/Cosajay report and recommendation which has now been rejected by the District Court for the State of Rhode Island, provide no support whatsoever for the argument that mortgagors do not have standing to

challenge assignments. The fact is, as a matter of law, they do have such standing, which renders scores of decisions made by this Court erroneous. Further, the Plaintiff has set forth in his affidavit facts that give rise to a genuine issue of material fact as to whether or not his note is paid in full. Also, his affidavit gives rise to a genuine issue of material fact as to whether or not the proper notice was given by the proper party at the proper time. RIGL 34-11-22 is quite specific as to notice and trying to do it right is not enough. There must be strict compliance with the Rhode Island Conveyance Statute as it contain predicts in 34-11-1 that must be met. If they are not met, then any document that is intended to be a conveyance, must strictly comply with the Statute. This is particular true with RIGL 34-11-22. This Court has stated that in Rhode Island Conveyance Documents, there is

presumptive validity. This is a patently false statement. This Court, in reaching that conclusion, totally ignores RIGL 34-11-1, et. seq. By doing so, it oversteps its bounds and attempts to act as the legislature. That is pure error and even more so, it is dangerous to the Republic and Democracy. THERE ARE GENUINE ISSUES OF MATERIAL FACT IN DISPUTE It is true that on October 13, 2005 a mortgage was executed in favor or MERS in it alleged capacity as nominee of Homecomings. On February 28, 2011, six years after the mortgage was executed, Homecomings no longer existed. This being the case, MERS could not be the nominee of Homecomings as it claims on the Corporate Assignment. The assignment did not claim to be executed by MERS in favor of any party buy Homecomings. It did not mention successors and assigns. This being the case, this Mortgage is trapped in MERS. While this is an absolute, rendering a foreclosure impossible at this time, Mr. Langer does continue to reside in the property. It is also true that Aurora sought to evict Mr. Langer,

based upon a VOID foreclosure document. It is true that an agreement for judgment was entered and an appeal taken. It is common practice for the District Court not to hear title actions and in essence, it forces agreements and appeals. That is what took place in this case. It is true that Mr. Langer was sent a notice to vacate and then served with process regarding an eviction. It is interesting to note that more care was taken by Aurora in its efforts to evict that in the entire mortgage/assignment/foreclosure process. The only evidence submitted to this Court that should be considered by this Court is the affidavit of Laura McCann, however, it is clear that she signed the Affidavit in her personal capacity and not in any other capacity. The Notary Clause, which is quite detailed, states all kinds of things about this woman but there is never any acknowledgment that Laura McCann, the individual is known to the notary. This Court is not free to read into the acknowledgment to conclude that the Affidavit was signed by McCann in any capacity other than her personal capacity.5 Looking at the affidavit, it is clear and beyond challenge that she signed a Laura

McCann. She does not identify herself as an officer of any corporation or as an agent of any other entity. The Colorado Notary Clause claims that she signed as Vice President of Aurora and other capacities. That is nice, but the fact is she signed as Laura McCann and that fact cannot be escaped. Thus, this alleged affidavit is not duly signed by Aurora or any other entity and it is not duly acknowledged. This renders the affidavit void as a matter of law. Once again, this issue any inferences that emanate therefrom must be drawn in favor of Mr. Langer. As this Court will recall, MERS was the alleged Nominee of the failed Homecomings. The Affidavit of McCann mentions Homecomings at paragraph 7. No mention is ever made

After paragraph 15 of the personal affidavit of Laura McCann, it is simply signed by Laura McCann, the individual. There is nowhere on the alleged affidavit that Laura McCann claims to be signing on behalf of anyone but herself. The Court cannot infer anything in favor of the Moving Party and must disregard this entire affidavit.

how this loan, including the note, ever came to be in the possession of or owned by Aurora. There is reference to the assignment, but the alleged assignment was void as a matter of law. The fact that Laura McCann states a legal conclusion does not make it so. The assignment, for all of the reasons set forth herein, is void as a matter of law. This Court knows that RIGL 3411-24 requires that when an assignment is made that the assignor also transfers the note and debt secured thereby. Laura McCann offers no evidence at all relative to the multiple endorsements on the note and the Alonge. That is because she has no knowledge regarding the travel of the note. The absence of any mention of the note and the alleged endorsements proves that beyond doubt. This Court must infer from the absence of any mention of the aforesaid that she has no knowledge of the aforesaid. This Court should consider what actually happened and not allow this affiant, who claims no knowledge relative to the travel of the note, to sway its judgment. In fact, to do so would violate the clear and concise language of Rule 56 of the Rhode Island Rules of Civil Procedure. The Note was originally made payable to Homecomings Financial Network, Inc., on October 13, 2005. Paragraph 7 of the affidavit states that the note attached to her affidavit is a true and accurate copy of the original note. That is not true. The note attached contains multiple marks on page 5. The Defendant has clearly stated that it is not the same note. Further, there is also an alleged Alonge attached that is not mentioned at all by the Affiant. The Court cannot infer anything from the documents in favor of the moving party as all inferences must be drawn in favor of the non-moving party. The Affiant does not offer any testimony relative to the alleged endorsements on the Note and the alleged Alonge. There is no evidence, therefore, before the Court, that proves if and how the note allegedly travelled after its execution in favor of Homecomings. It is actually

funny to note that the Affidavit and memorandum of the Defendant is totally silent on the issue of how Residential Funding Corporation and how Deutsche Bank figure into this matter and the foreclosure. Without any explanation of these endorsements, there exist genuine issues of material fact relative to the travel of the note and the mortgage itself. The affiant never states that the note was indorsed by Homecomings or if it was, how it was indorsed. Was it indorsed in blank and then filled in by Residential Funding Corporation or specifically indorsed to Residential Funding Corporation.6 ?There is certainly no evidence at all that regardless of how it was indorsed, that it was ever delivered to Residential Funding Corporation. These are all genuine issues of material fact and this Court cannot fill in the blanks for the moving party. The alleged endorsement from Homecomings to Residential is not dated. The affidavit is silent as to the date of execution. This is a genuine issue of material fact. There is no proof whatsoever that Debra Eshelman is an assistant secretary of Homecomings. The alleged endorsement from Residential to Deutsche7 is not dated and never mentioned by the affiant. There is no proof as to when it allegedly was affixed to the note and whether or not Judy Faber is a Vice President of Deutsche Bank Trust Company of America., as Trustee. Further, as Trustee of what? As usual, all of the financial institutions involved in the theft of

property by way of foreclosure like to keep things somewhat amorphous and never clear and concise. It is unfortunate that the Court has allowed them to get away with it over and over and over again because of its distaste for Plaintiffs who have not paid their mortgages current. Personal feelings such as this8 have no place in this American System of Justice. If judges cant separate their personal feelings from the cases before them, they should be in another profession.

6 7

Residential Funding Corporation is a stranger to the title to this property. (See Affidavit of Alberta Nota) Deutsche is a stranger to title to this property. (See Affidavt of Alberta Nota) 8 Porter

There is then a page with backwards writing on it. The Plaintiff feels that this speaks for itself. If it is copy bled, why did only this alleged endorsement bleed through and not the one below it. It is as if Houdini works for the banks involved in this case. This is, of course, an

idiom written to drive home the point that these documents are very suspect with what appear to be magical properties. There is then the issue of the Note Allonge. This document is also undated. Also, the affiant never mentions that Deutsche ever held the note in this case. Further, it is unclear whether or not it is actually signed by any person affiliated with Deutsche Bank. As stated, there is no mention of an allonge in the affidavit. Finally, on the Allonge, there is written that Deutsche signed the Allonge pursuant to a power of attorney. There is no power of attorney attached to the allonge and there is no power of attorney in the chain of title. All of these unaccounted for transactions most certainly create genuine issues of material fact relative to the propriety of the assignment and the foreclosure. There is no way to meet the Bucci standard unless the Defendant can prove that it held both the note and mortgage at the time of foreclosure and that the assignment of mortgage is valid when measured by 34-11-1. If the assignment is void, so must be the foreclosure. This Court has ruled that when an assignment is done by MERS, the note and debt are also transferred. In this case, the assignment took place long after Homecomings had gone bankrupt. There was no note to transfer. The alleged endorsements are not dated. There are endorsements that take place absent an assignment of mortgage. When all of the facts are taken together and viewed in the light most favorable to Langer, this Court must deny the motion for summary judgment. The mortgage was never in Residential. The mortgage was never in Deutsche. These are huge holes in the chain of title

that have not been addressed or explained by the affiant. This dictates against summary judgment. Turning to Exhibit D, it is dated 9/21/11. It does not contain any identifying headings or

footers from which one could derive its source. A review of the transactions on this unidentified document reveals that Langer had paid Private Mortgage Insurance as part of his loan payments. The purpose of that insurance was to pay the lender in the event of default. The customer activity statement clearly reveals that there were mortgage insurance disbursements yet there are no entries on the account summary showing that any payments were ever made. If payments had been made, then clearly the amount due or which may have been due, would be quite different that which is being claimed. The amount that was allegedly in default and the ultimate issue of whether or not the note has been paid by virtue of Ms. Langers PMI insurance or by the another party is a genuine issue of material fact. It is alleged that Aurora Loan Services mailed a notice of default to Langer on October 26, 2010 but there is no proof that Langer was ever notified that Aurora had become his loan servicer. The affiant claims that the assignment took place to Aurora on February 28, 2011. This begs the question, if the assignment did not take place until 2011, how did Aurora have standing to declare default before it had any interest in the mortgage or note? This too is a genuine issue of material fact. ARGUMENT STANDARD OF REVIEW Rule 56(c) provides that summary judgment shall be rendered if there is no genuine issue as to any material fact and that the moving party in entitled to judgment as a matter of law.

Because Summary Judgment is an extreme remedy, it must be applied cautiously. Golderese v. Suburban Land Co., 590 A.2d 395 (R.I. 1991). This same position was espoused by the Rhode Island Supreme Court in McPhillips v. Zayre Corp., 582 A.2d 747 (RI 1990). In Palmisciano v. Burrillville Racing Ass'n, 603 A.2d 317 (R.I. 1992), the Rhode Island Supreme Court held that In respect to a motion for summary judgment, the Court does not pass upon the weight or the credibility of the evidence, but must consider the affidavits and other pleadings in the light most favorable to the party opposing the summary judgment. Further, it is crystal clear that the Courts role in deciding a Motion for Summary Judgment is a limited one. In Saltzman v. Atlantic Realty Co., 434 A.2d 1343 (R.I. 1981) the Rhode Island Supreme Court held that The purpose of summary judgment is to issue finding, not issue determination. This holding was upheld by the Supreme Court in Capital Properties, Inc, v. State, 749 A.2d 1069 (1999). This Court should not go beyond fact finding and has engaged in fact determination. These Plaintiffs demand that the Court not do the same in this case and points to the case of GMAC v. Johnson, 746 A.2d 122 (R.I. 2000). Specifically, in Takian et al. v. Rafaelian, et al. v. Takian, et al., No. 2010-372-Appeal, Supreme Court of Rhode Island, 2012 R.I. LEXIS 102 (June 29, 2012), the Rhode Island Supreme Court wrote as follows: "[S]ummary judgment should occasion the termination of a case only where it is absolutely clear `that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law.'" Estate of Giuliano, 949 A.2d at 394. "The judge's belief that one scenario is more probable than the other is not a legally sufficient reason to grant a motion for summary judgment." McPhillips, 582 A.2d at 750. Although a motion justice entertaining such a motion may "search for the existence of factual issues," he or she "may not determine them * * * nor may the trial justice assess the weight or the credibility of the evidence." Id. at 749. Those duties fall within the province of a fact-finder. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) ("Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts

are jury functions * * *."). Therefore, we vacate the judgment of the Superior Court on plaintiffs' motion for summary judgment with respect to counts 2, 3, 4, 5, 6, and 8 against Charles and Marguerite Takian.

In Butler v. McDonald's Corp., 110 F. Supp. 2d 62 (D.R.I. 2000), this court held as follows: On a motion for summary judgment, the court must view all evidence and related inferences in the light most favorable to the nonmoving party. When the facts support plausible but conflicting inferences on a pivotal issue in the case, the judge may not choose between those inferences at the summary judgment stage. Similarly, summary judgment is not appropriate merely because the facts offered by the moving party seem more plausible, or because the opponent is unlikely to prevail at trial. Summary judgment is only available when there is no dispute as to any material fact and only questions of law remain. Additionally, the moving party bears the burden of showing that no evidence supports the nonmoving party's position. [Emphasis added]. The trial justice cannot make unsupported findings of fact when deciding a Motion for Summary Judgment. In McConaghy v. Sequa Corp., 294 F. Supp. 2d 151 (D.R.I. 2003), the Court held that findings of fact are improper at the Summary Judgment stage of a trial. It specifically stated as follows: The function of a judge facing a motion for summary judgment is not to make findings of fact, but rather, to determine whether there are genuine issues of material fact remaining for trial. When ruling on a motion for summary judgment, there is no room for credibility determinations, no room for the measured weighing of conflicting evidence such as the trial process entails, no room for the judge to superimpose his own ideas of probability and likelihood. A judge deciding such a motion should not invade the province of the trier of fact by weighing the evidence or making credibility determinations. Instead, it is the responsibility of the trial judge to determine whether a reasonable trier of fact could find for the nonmoving party based on the admissible evidence. After ascertaining what material facts are actually and in good faith controverted, Fed. R. Civ. P. 56(d) requires the hearing judge to make an order specifying the facts that appear without controversy so that these specified facts can be deemed

established, thus limiting the issues for trial to those where a genuine issue of material fact remains. By weighing the evidence and formulating these conclusions, this writer's predecessor did not determine what issues remained controverted between the parties, but instead attempted to resolve these issues finally. Such a determination remains within the province of the trier of fact and beyond the realm of summary judgment determinations. Because these determinations amount to nonessential findings of fact, and because they do not relate to the legal issues actually decided by Judge Strand, this Court concludes that they are dicta, and thus cannot not consider them the law of the case. As a result, the Sequa Defendants are not entitled to summary judgment on Counts III and VI on law of the case grounds. In the case at hand, the identity of the note holder, the existence of an agency relationship between the parties, the validity of the assignment and the validity of the foreclosure are all genuine issues of material fact that must be decided at a trial by the jury which, therefore, requires denial of the Motion for Summary Judgment. THE PLAINTIFFS HAVE STANDING TO CHALLENGE THE VALIDITY OF A FORECLOSURE OF THEIR HOME In Culhane v. Aurora Loan Servs. of Neb., 708 F.3d 282 (1st Cir. Mass. 2013), the First Circuit Court of Appeals addressed the issue of whether Plaintiffs have standing to challenge the validity of a foreclosure of their property and held a mortgagor has a legally cognizable right to challenge a foreclosing entity's status qua mortgagee. In order to address the standing issue raised by the Defendants and this Court, it is necessary to analyze the decision in Culhane and the law applied by the Appellate Court therein when determining the issue of standing as it applies to this case and all other similar cases before this Court. Defendants have erroneously argue that this Court cannot follow the holding in Culhane because the First Circuit Court of Appeals did not decide the issue of standing based on Rhode Island law but based on Massachusetts law which does not apply to the case before this Court.

Even a cursory review of Culhane evidences that this contention is nothing more than whole cloth.9 The Court in Culhane based its standard for determining standing upon the decision of Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (U.S. 1992) rendered not on Massachusetts law as contended by Defendants but by the United States Supreme Court: The essence of standing is that a plaintiff must have a personal stake in the outcome of the litigation. Ramrez v. Snchez Ramos, 438 F.3d 92, 97 (1st Cir. 2006). To fulfill this personal stake requirement, the plaintiff "must establish each part of a familiar triad: injury, causation, and redressability." Katz v. Pershing, LLC, 672 F.3d 64, 71 (1st Cir. 2012) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992)). We examine these three elements as they relate to this litigation. [Emphasis added].

In Lujan, the United States Supreme Court set out a specific three-prong test for determining the issue of standing: Over the years, our cases have established that the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an "injury in fact" -- an invasion of a legally protected interest which is (a) concrete and particularized, see id., at 756; Warth v. Seldin, 422 U.S. 490, 508, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975); Sierra Club v. Morton, 405 U.S. 727, 740-741, n. 16, 31 L. Ed. 2d 636, 92 S. Ct. 1361 (1972); and (b) "actual or imminent, not 'conjectural' or 'hypothetical,'" Whitmore, supra, at 155 (quoting Los Angeles v. Lyons, 461 U.S. 95, 102, 75 L. Ed. 2d 675, 103 S. Ct. 1660 (1983)). Second, there must be a causal connection between the injury and the conduct complained of -- the injury has to be "fairly . . . trace[able] to the challenged action of the defendant, and not . . . the result [of] the independent action of some third party not before the court." [*561] Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 41-42 (1976). Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision." Id., at 38, 43. [Emphasis added] In examining the family triad of injury, causation and redressability as the threeprong test to establish standing as outlined in Lujan, the Court in Culhane10 determined that the Plaintiffs cause of action met all three requisites to establish standing:

Whole cloth-complete fiction or fabrication. Merriam Webster Dictionary. In any event, the Cosajay Memorandum and Order settles this issue. 10 Culhane has been determined to apply to Rhode Island by Judge McConnell.

1.

As to injury, the court found The foreclosure of the plaintiff's home is

unquestionably a concrete and particularized injury to her. 2. As to causation, the court stated there is a direct causal connection between the

challenged action and the identified harm. The action challenged here relates to Aurora's right to foreclose by virtue of the assignment from MERS. The identified harm the foreclosure can be traced directly to Aurora's exercise of the authority purportedly delegated by the assignment. 3. As to redressability, the court determined We are confident that a determination

that Aurora lacked the authority to foreclose would set the stage for redressing the plaintiff's claimed injury. Her complaint, at least in part, prays for monetary damages as a means of ameliorating the asserted wrong. No more is exigible. The Rhode Island Supreme Court also recognized that the proper test for a determination of standing was the three-prong test set out by the United States Supreme Court in Lujan. In Pontbriand v. Sundlun, 699 A.2d 856, 859-862 (R.I. 1997), Lujan was cited by the Rhode Island Supreme Court: In Rhode Island Ophthalmological Society v. Cannon, 113 R.I. 16, 317 A.2d 124 (1974), we discussed our requirements for standing in light of Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970), and held: "It is our belief that standing can now be determined by our adoption of the first of the Data Processing criteria. The question is whether the person whose standing is challenged has alleged an injury in fact resulting from the challenged [act]. If he [or she] has, he [or she] satisfies the requirement of standing." Cannon, 113 R.I. at 26, 317 A.2d at 129.We described our standing requirement as "whether the plaintiff alleges that the challenged action has caused him injury in fact, economic or otherwise." Id. at 22, 317 A.2d at 128 (quoting Camp, 397 U.S. at 152, 90 S. Ct. at 829, 25 L. Ed. 2d at 187). Sometimes referred to as the "injury in fact" requirement, see, e.g., Cannon, 113 R.I. at 23, 317 A.2d at 128, this has been described by Justice Scalia in an oft-quoted passage as "an invasion of a legally protected interest which is (a) concrete and particularized * * * and (b) actual or imminent, not 'conjectural' or 'hypothetical.'" Lujan v. Defenders of Wildlife, 504 U.S. 555,

560, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351, 364 (1992). To this statement we would add a highly relevant comment from an analogous area of our standing jurisprudence: "The line is not between a substantial injury and an insubstantial injury. The line is between injury and no injury." Matunuck Beach Hotel, Inc. v. Sheldon, 121 R.I. 386, 396, 399 A.2d 489, 494 (1979) (quoting Davis, Matunuck Beach Administrative Law of the Seventies 22.02-10 at 507 (1976)). See also Blackstone Valley Chamber of Commerce vs. Public Utilities Commission, 452 A.2d 931, 933 (R.I. 1982). [Emphasis added]. The issue regarding standing in Culhane is identical to the issue of standing in this case. As a result, the same analysis that was applied by the appellate Court in Culhane, mandated by the United States Supreme Court, should be applied and followed by this Court in deciding this case, namely: 1. that the foreclosure of Plaintiffs home is a concrete and particularized injury to them; 2. that the action challenged relates to Defendants right to foreclose by virtue of an assignment and the identified harm-the foreclosure-can be traced directly to Defendants exercise of the authority purportedly delegated by that assignment; and 3. that a determination that Defendants lacked authority to foreclose would set the stage for redressing the Plaintiffs claimed injury. Based upon United States Supreme Court in Lujan, as adopted by the Rhode Island Supreme Court in Pontbriand, this Court must conclude that Plaintiffs have been injured, that Defendants conduct has caused the injury and this court has the power to redress Plaintiffs injury, all resulting in a finding of standing for Plaintiffs.

THE PLAINTIFFS HAVE STANDING TO CHALLENGE THE MORTGAGE ASSIGNMENT Defendants incorrectly argue that Plaintiffs cannot challenge the validity of the foreclosure of their home because, under Rhode Island law, they lack standing to challenge the mortgage assignment by which the foreclosing party asserts its rights to foreclose. In so doing, Defendants fail to correctly cite Rhode Island law to support this contention. In Bucci v. Lehman Bros. Bank, 2013 R.I. Lexis 52 (R.I. Apr. 12, 2013), the Rhode Island Supreme Court held that MERS has statutory authority to foreclose only if it is the record mortgagee and either the note holder or acting as agent for the note holder. Therefore, the Court, in placing this requirement of proof of agency on the foreclosing party, has explicitly granted standing to borrowers to challenge such proof. Consistent with the holding above, the Rhode Island Supreme Court in Bucci found that Plaintiffs have standing to challenge a mortgage assignment by adopting the holding of Culhane v. Aurora Loan Servs. of Neb., 708 F.3d 282 (1st Cir. Mass. 2013). Although absent a statutory analysis of Rhode Island law11, the Court, after quoting the First Circuit Courts opinion that its finding in Culhane fit comfortably within the structure of Massachusetts mortgage law, stated We believe that they [the findings in Culhane] reside comfortably within the law of our state as well. As such, it is evident that the Rhode Island Supreme Court, by its adoption of Culhane has undoubtedly adopted the holding that a mortgagor has standing to challenge the assignment of a mortgage on her home to the extent that such a challenge is necessary to contest a foreclosing entity's status qua mortgagee. Culhane, supra. Further, had the Rhode Island Supreme Court disagreed with any portion of the Culhane decision, specifically regarding standing, it would have so limited its holding.
11

As this Court is aware, this analysis has now been done relative to Rhode Island Law and the result was the same.

Further, in Bucci, supra, the Rhode Island Supreme Court found that Plaintiffs have standing to challenge a mortgage assignment by adopting the holding of the Massachusetts Supreme Court in Eaton v. Fannie Mae, 462 Mass. 569 (Mass. 2012). In the Eaton case, MERS, as nominee of the original lender, Bank United, assigned the mortgage by mortgage assignment to Green Tree, and the note was endorsed in blank and transferred to Fannie Mae. The Court in Bucci adopted the holding of the Massachusetts Supreme Judicial Court in Eaton and acknowledged standing for Plaintiffs to challenge the purported authority of the foreclosing party via the mortgage assignment: In that case, MERS had assigned the mortgage to another entity that conducted the foreclosure. Eaton v. Federal National Mortgage Association, 969 N.E.2d 1118, 1122 (Mass. 2012). Although the court held that an entity could foreclose if it held the mortgage and also either held the note or was act[ing] on behalf of the note holder, the court remanded the case to the Superior Court to determine if there was an agreement that the foreclosing party was in fact acting on the note holders behalf. Id. at 1134. As stated above, that analysis is unnecessary here because the parties, by accepting the Marchant affidavit, have agreed that an agency relationship was in place. In holding that MERS, as the foreclosing party, must be the mortgagee and the note holder or acting on behalf of the note holder, explicitly acknowledged that the only avenue for a Plaintiff to challenge the purported authority of a party to foreclose is to challenge the very vehicle which grants the alleged authority to foreclose-the mortgage assignment. The Rhode Island Supreme Court established standing for Plaintiffs by holding that had there not been an agreement by the parties assenting to the agency relationship between Aurora and MERS, it would have remanded the case to the Superior Court to determine the existence of such an agency relationship. In addition, Defendants have mistakenly cited the decisions of the Rhode Island Superior Court in Payette v. Mortgage Elec. Registration Sys., 2011 R.I. Super. Lexis 117 (R.I. Super. Ct.

2011); and its progeny, namely, Kriegel v. Mortgage Elec. Registration Sys., 2011 R.I. Super. Lexis 134 (2011); Porter v. First NCL Financial Services, No. PC-10-2526, 2011 R.I. Super. Lexis ( 2011); Rutter v. Mortg. Elec. Registration Sys., 2012 R.I. Super. Lexis 39 (2012); Gray v. Mortgage Elec. Registration Sys., 2012 R.I. Super. Lexis 173 (2012); Breggia v. Mortg. Elec. Registration Sys., 2012 R.I. Super. Lexis 52 (2012); to support their contention that Plaintiffs do not have standing to challenge an assignment of mortgage. Interestingly, Defendants demand that this Court reject the holding in Culhane, supra, because it is based on Massachusetts law while failing to advise this Court that the very cases they rely upon to support their contention that Plaintiffs do not have standing to challenge mortgage assignments, namely Payette and its progeny, are based on either non-binding precedent or case law from every other jurisdiction but Rhode Island: Homeowners lack standing to challenge the propriety of mortgage assignments and the effect those assignments, if any, could have on the underlying obligation. Fryzel v. Mortgage Elec. Registration Sys., et al, No. 10-352M, 2011 U.S. Dist. LEXIS 95114 (D.R.I. June 10, 2011) (citing, inter alia, Livonia Props. Holdings, L.L.C. v. 12840-12976 Farmington Rd. Holdings, 717 F. Supp. 2d 724, 747 (E.D. Mich. 2010); Turner v. Lerner, Sampson, & Rothfuss, No. 1:11-CV-00056, 2011 U.S. Dist. LEXIS 41364 (N.D. Ohio Apr. 11, 2011); Bridge v. Aames Cap. Corp., No. 1:09 CV 2947, 2010 U.S. Dist. LEXIS 103154 (N.D. Ohio Sept. 29, 2010); Jarbo v. BAC Home Loan Servicing, No. 10-12632, 2010 U.S. Dist. LEXIS 132570 (E.D. Mich. Dec. 15, 2010)); see also Sharon McGann HorstKamp, MERS Case Law Overview, 64 Consumer Fin. L.Q. Rep. 458 (Winter 2010). This Court agrees and finds that Plaintiffs do not have standing to attack the foreclosure on these grounds.[Emphasis added]. Payette, supra. Notwithstanding the fact that Fryzel was dismissed and Cosajay has now been decided in an adverse manner to how this Court has been ruling for the past three (3) years, this Court was never justified in relying on Fryzel, but must instead turn its attention to the holding in the seminal case of Mathews, Secretary of Health, Education and Welfare v. Weber, 423 U.S. 261

(1976), where the United States Supreme Court interpreted the Federal Magistrates Act, 28 U.S.C. 631 to read that a Magistrates recommendation has no presumptive value: The magistrate gives only a recommendation to the judge.The magistrate may do no more than propose a recommendation, and neither 28 U.S.C.S. 636(b) nor the General Order gives such recommendation presumptive weight. The district judge is free to follow it or wholly to ignore it, or, if he is not satisfied, he may conduct the review in whole or in part anew. The authority - and the responsibility to make an informed, final determination, we emphasize, remains with the judge. Mathews v. Weber has been cited in eight thousand two hundred ten cases [emphasis added] by courts throughout the country, including innumerable times by various United States District Courts and the First Circuit Court of Appeals, when deciding the role of Magistrates and the weight to be given to their recommendations. It is also important to note that the Report and Recommendation of the Magistrate in Fryzel was rendered prior to the deciding of Bucci by this Court, Eaton by the Massachusetts Supreme Court and Culhane by the First Circuit Court of Appeals. Further, this Court has previously based its decisions on holdings in cases that have been altered by the various state Supreme Courts. Since the deciding of previous cases by this Court, the Rhode Island Supreme Court rendered its decision in Bucci v. Lehman Bros. Bank, 2013 R.I. LEXIS 52 (R.I. Apr. 12, 2013) which overruled the lower court holding. In Bucci, MERS was named as nominee for Lehman Brothers Bank. LaSalle Bank was the holder of the note and Aurora was the servicer at the time of the foreclosure by MERS. The lower court held The current beneficial owner of the Note is a "successor or assign" of Lehman. Therefore, MERS is the mortgagee as the nominee for the current beneficial owner of the Note. The Rhode Island Supreme Court in its holding in Bucci overruled the lower court by requiring that the foreclosing

party be the mortgagee and note holder or an agent acting on behalf of the note holder.12 The issue of MERS being an agent of LaSalle was found to have been stipulated to by the parties and therefore was not an issue. Therefore, the blanket catch all holding of this Court that the foreclosing party is the nominee for all subsequent parties and note holders, without a factual determination of an agency relationship, has been overruled by the Rhode Island Supreme Court. In addition, all Defendants rely upon In re Huggins, 357 B.R. 180 (Bankr. D. Mass. 2006). In In re Huggins the Massachusetts Bankruptcy Court held that MERS could foreclose because it was nominee of the mortgagee and, therefore, the note holder for any party holding the note. The Massachusetts Supreme Court overruled that holding in Eaton v. Fannie Mae, 462 Mass. 569 (Mass. 2012) by holding as follows: the meaning of the term "mortgagee" in Mass. Gen. Laws ch. 183, 21 and Mass. Gen. Laws ch. 244, 14 referred to the person or entity then holding the mortgage and also either holding the mortgage note or acting on behalf of the note holder. Contrary to the conclusion of the superior court, the statutes permitted a mortgagee, although not the note holder itself, to act as the authorized agent of the note holder. The superior court's decision on the preliminary injunction did not consider the question of the mortgagee's authority to action on behalf of the note holder in initiating the foreclosure proceedings. Therefore, remand was necessary.

As a result of the overturning of In re Huggins, supra, and the lower court decision of Bucci, the case law and reasoning relied upon by this Court must be reexamined based on the new case law and reasoning therein. Further, the Defendants have repeatedly and erroneously relied upon the decision of Brough v. Foley13, 572 A. 2d 63 (R.I. 1990) and have misrepresented its conclusion to support

12

In Bucci, supra, this Court held that whether an agency relationship existed between MERS and the foreclosing party was not an issue because the parties had stipulated to that fact by way of an affidavit entered into the record. There is no such admission in this case, and, therefore, whether an agency relationship exists is a genuine issue of material fact. 13 Judge McConnell made special mention of Brough v. Foley in the Cosajay Memorandum and Order.

their contention that Plaintiffs do not have standing to challenge the mortgage assignment. In Brough, the party seeking to challenge the real estate agreement was a complete stranger to the transaction and to the title to the property. The Plaintiffs in Brough were not the original owners, were not involved in the original option to purchase and had no rights of redemption or any other rights in or to the property. In the case at hand, the Plaintiffs are the original owner of the property, are a party to the original agreement, i.e., the mortgage, and have a right of redemption to the property. Despite the fact that the Federal Court has already spoken as to why Brough does not carry the day for MERS defendants, it is worth writing that when correctly applied, Brough supports the fact that Plaintiffs have standing to challenge the mortgage assignment. The position of the Plaintiffs in this case is analogous to that of the party holding the right of first refusal in Brough. Eldacare, Inc. held the right of first refusal granted by the original contract. Had Eldacares interest in the property been violated, Eldacare would have had standing to challenge the conveyance of the subject property to a subsequent owner because it retained an interest in the property via the right of first refusal. Here, the Plaintiff is a party to the original mortgage, and therefore, retains the right to redeem the property from the mortgagee. As such, he has standing to challenge the validity of a conveyance of an interest in the subject property to another party via the mortgage assignment. Brough involved an option to purchase real estate which is not a conveyance and is not subject to R.I.G.L. 34-11-1. Whereas, in the case at bar, the assignment of mortgage is a transfer of a future interest in real estate which is subject to R.I.G.L. 34-11-1. The specific mandates of this statute governing conveyances are discussed further within.

To apply the facts and holding in Brough in any other fashion would lead to an absurd and an incorrect application of Rhode Island law. When the Rhode Island Supreme Court decided Brough it never intended the decision be used as a shield against fraud. Most importantly, on November 5, 2013, Judge John J. McConnell, United States District Judge for the District of Rhode Island issued a memorandum and order in the matter of Cosajay v. MERS, Inc., et al. This Court is intimately familiar with the Cosajay Report and Recommendation and its sister case, Fryzel v. Mortgage Elec. Registration Sys., et al, No. 10352M, 2011 U.S. Dist. LEXIS 95114 (D.R.I. June 10, 2011). In fact, this Court began citing Fryzel in Payette and has not stopped citing Fryzel in nearly every decision it has rendered on the MERS calendar for two full years. This despite the fact that both Cosajay and Fryzel were nothing more that Reports and Recommendations that had no precedential value. Judge McConnell REFECTED the Report and Recommendation and denied the Defendants Motion to Dismiss based upon their claim that they lacked standing to bring the lawsuit against the Defendants. As this Court knows, Plaintiffs in the MERS Court have argued for many months that the holding in Culhane v. Aurora Loan Services of Nebraska, 708 F.3d 282, 289-90 (1st. Cit. 2013) established that Rhode Island Residents did have standing to challenge assignments of mortgages. This Court went out of its way to ignore the powerful and clear language of the First Circuit in Culhane, Id and continued to wrongly deny mortgagors standing to challenge standing relying on contract law and not on the law of conveyencing and the Rhode Island Statute that controls conveyancing, to wit; 34-11-1, et seq. This Court must now stand corrected. In Cosajay, the District Court conducted a de novo review of a magistrate judges decision on a dispositive motion. See Fed. R. Civ. Pro. 72(b). As the Cosajay Court wrote

[D]uring this review, the Court may accept, reject, or modify the recommended disposition; receiver further evidence or recommit the matter to the magistrate judge with instructions. Id The Cosajay Court framed the matter before it quite succinctly. It wrote The question before this Court in this case is a singular one does Ms. Cosajay have standing to bring her complaint against these Defendants? Judge McConnell went on to wrote The Magistrate Judge answered this question in the negative, finding that because Ms. Cosajay was not a party to the assignment agreement, she does not have standing to assert legal rights based on [those] documents. (ECF No. 21 at 25 Citing Brough v. Foley, 525 A. 2d 919, 921-922 (R.I. 1987)).) Based upon the above, this Court can come to no other conclusion than Plaintiffs have standing to challenge the mortgage assignment that is the avenue by which Defendants claim their authority to foreclose. Judge McConnell wrote further that [t]he Magistrate Judge found that Ms. Cosajay laced privity to the assignment, where privity to the contract was deemed indispensable to a standing determination. Unlike this Court which has adamantly refused for two years plus to undertake a standing inquiry, the District Court did just that. This Court simply adopted a report and recommendation that had no precedential effect to decide against scores and scores of Plaintiffs allowing banks and servicers to take their real estate and never receiving a hearing or any form of due process. Those days are over. In an effort to assist this Court, this Plaintiff points to the Standing section of the Cosajay Memorandum and Order. This Plaintiff need not recite word for the word the content of the

opinion and it assumes that this Court has or will read the entire Cosajay document since it has been blindly following the Cosajay Report and Recommendation for the past two years, never taking the time to undertake its own analysis of the standing issue.

This Court has been provided with reams of paper containing hundreds of cases in support of the standing argument. This Court would be hard pressed to point to one of its decisions where it even makes reference to a single case cited by the Plaintiffs on the MERS calendar regarding standing. As stated earlier, this Court simply ignored the language in Culhane where the 1st Circuit found that foreclosure of a home is unquestionably a concrete and particularized injury and found a direct causal link between the challenged foreclosure and to redressing the borrowers claimed injury. Culhane went on to say that [I]f the Court were to find the Defendants lacked authority to foreclose, the borrowers injuries can be redressed through equitable relief and compensatory damages. This Court has refused to even consider that Plaintiffs that are foreclosed upon where there is a void assignment, no endorsement on a note or improper notice. After Culhane and its clear and concise language, based upon the

United States Constitution, this Court continued to rely upon Fryzel and Cosajay to the detriment of each and every Plaintiff that it ruled against. As this Court should know, since it was made crystal clear by the First Circuit in Culhane, a borrower/mortgagor has a legally cognizable right under state law to ensure that any attempted foreclosure is conducted lawfully, especially where, as here, the mortgage contains a power of sale and the states law permits foreclosure without prior judicial authorization. The MERS Court simply ignored Culhane. Even though it wrapped its arms around a mere report and recommendation to literally cause the collapse of family after family in Rhode Island, it chose to ignore a clear, concise and applicable order and decision from the First Circuit Court of Appeals. The agenda of this Court is clear and has been since Porter when it stated that it would never reverse a foreclosure. This agenda has been flawed since inception and must be changed once and for all based upon the Cosajay Memorandum and Order.

To be clear and necessarily redundant, the First Circuit rejected that concept14, holding that a non-party mortgagor has standing to raise certain challenges to the assignment of her mortgage. In this case, the moving party has claimed that based upon the Plaintiffs lack of

standing to challenge the void assignment in this case, this Court should grant summary judgment. This Court can no longer use Fryzel and Cosajay as go to cases to support its erroneous decisions based upon lack of standing. The First Circuit has followed the rationale in Culhane in another recent decision when in reiterated that standing may be appropriate even where a mortgagor is not party to, nor beneficiary of, the challenged assignments. Woods v. Wells Fargo Bank, NA, No. 12-1942, 2013 WL 5543637, at *3 (citing Culhane, 708 F.3d at 829). Culhane was not an anomaly, it is the law of the land. Fryzel and Cosajay are, once and for all, dead and buried and each and every decision based upon them must be considered incorrect and must be reversed. Certainly, this Court cannot grant a summary judgment on this case based upon them unless it decides to cling to the carcasses of Cosajay and Fryzel. The District Court directly addressed the Defendants further reliance on Brough v. Foley, 525 A.2d at 922 (cite) and found that it to be unpersuasive. The Cosajay Court wrote that The First Circuit in Culhane recognized that a non-party who does not benefit from a contract generally lacks standing to assert rights under that contract. Almond v. Capital Props. Inc., 212 F.3d 20, 24 & n.4 (1st Cir. 2000). In Culhane and again in Wood, the First Circuit stepped away from the generality in mortgage foreclosure cases because of the unusual position in which a mortgagor finds him or herself. Culhane, 708 F.3d at 290. In Post Culhane Decisions
14

In considering whether a plaintiff premises her claims on her own legal rights justifying her standing to sue, Culhane considered whether she had to be a party or a third party beneficiary of the assignment as the Magistrate Judge in Cosajays case opined.

on the MERS calendar, this Court routinely held that Culhane did not apply to Rhode Island assignment/foreclosure cases. In fact, on the last MERS calendar in decisions rendered by this Court, it was held that homeowners/mortgagors did not have standing to challenge assignments. It is ironic that on the very same day, the Memorandum and Order issued from the District Court. What is critical to note is that Judge McConnell noted that the Culhane and Woods decisions were both based upon Massachusetts law but concluded that Rhode Island Law provides that same dual basis for deviating from the General Contract Rule.15 The Cosajay Court wrote as follows: First, the First Circuit cited to Mass. Gen. Laws ch. 183, 21, which is the Statutory Power of Sale in Mortgage section. That section is of the same vein as Rhode Island General Laws 34-11-22, also called Statutory Power of Sale in mortgage, which provides a Rhode Island Mortgagor with the right to insure that any foreclosure is done appropriately.16 . [I]n line with the second basis the Culhane Court lists, Rhode Island Law also allows foreclosures to take place without prior judicial authorization where a power of sale clause exists in a mortgage. Therefore, the Court finds that Rhode Island law provides that same protection to mortgagors in the same situation in which the First Circuit found the Culhane and Woods plaintiffs under Massachusetts law. The Cosajay Court went on to address how the holding in Bucci v. Lehman Brothers Bank played into this decision. The District Court pointed out that the Bucci decision did analyze the First Circuits Culhane decision holding that the MERS structure was appropriate under Massachusetts mortgage law and found that holding reside[d] comfortably within the law of our state as well. Id, 68, A.3d 1069, 1088 (R.I. 2013). The Cosajay Court, after analysis of the Bucci opinion and its commentary regarding Culhane, that While not an exact fie, the Court is comfortable with the Rhode Island Supreme Courts acceptance of the Culhane
15 16

See Cosajay Memorandum and Order at page 7, footnote 2. Bucci v. Lehman Bros. Bank, FSL 68 A.3d 1069, 1085 (R.I. 2013)(finding that 34-11-22 was enacted for the purpose of establishing a uniform power of sale provisions that could be referred to with ease, if the parties so desired.

decision vis--vis MERS, along with its own comparison of Massachusetts and Rhode Island power of sale statutes, to determine that the Culhane analysis and outcome would be the same under Rhode Island Law. [emphasis added] The Cosajay Court also took the time to address the relationship of this case to the Brough v. Foley, 525 A.2d at 922. It pointed out that Brough v. Foley stood for the general proposition that a party does not have standing to assert rights under a contract to which it is not a party. It concurred with the Culhane decision to step away from this generality in mortgage foreclosure cases because of the unusual position in which a mortgagor finds him or herself. Culhane, 708 F.3d at 290. This Court is bound to do the same and recognize that these are

conveyance cases and not straight contract cases and in each of these cases, the Plaintiffs, such as Langer in this case, stands in the relative position of Brough in the Brough v. Foley case. Based upon this thoughtful, thorough and well-reasoned opinion, the Cosajay Court ruled that Rhode Island Law provides the same protection to mortgagors in the same situations in which the First Circuit found the Culhane and Woods plaintiffs under Massachusetts Law. 17 In regard to the facts of Cosajay, the Court found that because she had challenged her foreclosure on the ground that it was void due to an invalid assignment to a non-existent entity, and the First Circuit in Culhane concluded that homeowners have a legally cognizable right to protection against illegal foreclosures, she had demonstrated a a concrete and particularized injury in fact, a causal connection that permits tracing the claimed injury to the defendants actions, and a likelihood that prevailing in the action will afford some redress for the injury. This is true in this case and in each and every case in which the MERS Court has ruled against Mortgagor Plaintiffs. In fact, this Court never once took the time to look at the assignments to determine whether or not they gave rise to a legally cognizable right to protection against illegal
17

See Cosajay Memorandum and Order at footnotes 4 and 5.

foreclosures. The Court simply said no-standing and ended its consideration of each and every complaint at that stage. Each and every MERS Plaintiff has been short changed and endured

losses that never should have been visited upon them. The same is true for this client. GENUINE ISSUES OF MATERIAL FACT EXIST THAT REQUIRE A DENIAL OF THE MOTION FOR SUMMARY JUDGMENT 1. Under Rhode Island law unauthorized and facially defective assignments are void. Rhode Island law clearly defines a void assignment in R.I.G.L. 34-11-1. At the outset, a mortgage is a future interest in land and R.I.G.L. 34-4-11 governs its transfer. R.I.G.L. 34-411 states: Conveyance of contingent, executory, and future interests. A contingent, an executory and a future interest, and a possibility coupled with an interest, in any tenements or hereditaments of any tenure, and a right of entry whether immediate or future and whether vested or contingent, into or upon any tenements or hereditaments of any tenure, may be disposed of by legal conveyance or will, but no such disposition shall, by force only of this section, defeat or enlarge an estate tail. [Emphasis added]

Since corporations, all lenders and banks, cannot dispose of mortgage interests by will, their only alternative is to transfer or assign by conveyance. The only form prescribed by R.I.G.L. 34-11-24 to convey a mortgage is an assignment. The prerequisites for effectuating a conveyance are set forth in R.I.G.L. 34-11-1: Conveyances required to be in writing and recorded. Every conveyance of lands, tenements or hereditament absolutely, by way of mortgage, or on condition, use or trust, for any term longer than one year, and all declarations of trusts concerning the conveyance, shall be void unless made in writing duly signed, acknowledged as hereinafter provided, delivered, and recorded in the records of land evidence in the town or city where the lands, tenements or hereditaments are situated; provided, however, that the conveyance, if delivered, as between the parties and their heirs, and as against those taking by gift or devise, or those having notice thereof, shall be valid and binding though not acknowledged or recorded. A lease for the term of one year or less shall be valid although made by parol. Leases for terms of more than one year may be recorded with a memorandum of lease in writing rather than the original lease; provided,

however, that the memorandum shall contain the names of the parties to be charged, a description of the real estate, the duration of the lease, including renewal options and purchase options. [Emphasis added]

This statute defines a void assignment as one that does not meet the five prerequisites mandated therein- the assignment must be in writing, duly signed, acknowledged, delivered and recorded. In the previous example, it equates to the preposterous argument that a deed or bill of sale executed by anyone other than the owner of the property attempting to convey title to the property is imperfect and has a defect that can be cured. It would be void on its face without any legal or binding affect. Therefore, an assignment that is backdated, executed in blank, not duly executed or executed by a party without authority constitutes a conveyance that is void not only because it is a nullity and is unable, in law, to support the purpose for which it is intended but because it is in violation of Rhode Island law, namely R.I.G.L. 34-11-1. It is critical to note that RIGL 34-

11-24 clearly provides that when an assignment takes place, the note follows the mortgage. It can be read no other way. It clearly contemplates that that the mortgagee and note holder are one in the same. It can be read no other way and makes it clear that when the note is assigned by the note holder, the note holder must property, in satisfaction of the UCC, endorse and deliver the note to the assignee. This is very simple yet to avoid a windfall for mortgagors, this Court has gone to great lengths to avoid reaching this entirely logical and statutorily mandated determination. For three years, it has failed to address the fact that there is a 2 ton elephant in the room. Well the elephant is here and he must be dealt with and the statute dictates what must be done with the elephant. There can be no more game playing relative to this statute. The time is now to man up and accept what it says and what it compels.

The alleged assignment at issue in this case from MERS to Aurora is void as a matter of law, not only because it does not comply with 34-11-2418, but because it is self-limiting by its very language. This statement requires a brief explanation. This alleged assignment, called a Corporate Assignment, is not a corporate assignment at all. From its face it is clear that it was prepared by Aurora Loan Services. It is clear, therefore, that the alleged assignee has prepared the assignment. It is allegedly signed by Jan Walsh as a Vice President of MERS. The affidavit in support of this Motion for Summary Judgment does not offer any evidence that Jan Walsh is a Vice President of MERS. The Plaintiff is sure that this Court will attempt to cure this obvious evidentiary defect by ruling that the Notarization of the signature somehow proves that Jan Walsh is a Vice President of MERS. If this is true, the Courts attention is drawn to the Notary Clause which states that Jan Walsh is the Vice President. It does not indicate what he or she is a Vice President of MERS or of the Kiwaniss club of Scotts Bluff, Nebraska. This court has made up law that assignments which are notarized are presumptively valid. This is not supported by the Rhode Island Conveyance Statute, 34-11-1, which contains conditions precedent that must be met for an assignment to be valid. Clearly, since Jan Walsh does not sign as Vice President, this Court cannot conclude that he or she is a Vice President of MERS. This being the case, this becomes a genuine issue of material fact. Further, this is not a MERS Corporate Assignment. This alleged assignment is not signed by MERS in its corporate capacity but in a nominee capacity solely as the nominee of Homecomings Financial Network, Inc. There is no language to the effect that the MERS was

assigning on behalf of Homecomings, its successors and assigns. It was attempting to assign on behalf of Homecomings only. That is what the document says. This Court must read the

18

MERS cannot comply with 34-11-24 because it does not own or hold the note and is not owed the indebtedness. MERS has made multiple judicial admissions of this fact.

document as written and not add terms to it or modify it based upon it past rulings and rationale. Furthermore, Homecomings Financial at the time of the alleged assignment Homecomings was in Bankruptcy (where) Docket No. MERS was, therefore, the nominee of no one when this

alleged assignment was executed and recorded rendering the alleged assignment void for this reason as well. Further the 1995 MERS Corporate Seal is misleading to say the least. The 1995 version of MERS (MERS 1) was absorbed into (MERS 2) in and was no longer in existence when this alleged assignment was signed. The 1995 seal amounts to fraud by the party that affixed it to the alleged assignment.19 It is akin to a former Notary continuing to Notarize

19

There were 3 companies all named Mortgage Electronic Registration Systems, Inc. created between 1995-1999 and MERSCORP, Inc. which absorbed 2 of them including the trademark MERS which was used for the system; MERSCORP, Inc. created Mortgage Electronic Registration Systems, Inc. (III) with the acronym MERS (not to be confused with the trademarked MERS) and this is the strawman entity in the mortgages with no employees or assets; the banks were all members of MERSCORP, Inc. not Mortgage Electronic Registration Systems, Inc. (III), but the bank employees were actually working for MERSCORP, Inc. under the guise of (III); and that there was no disclosure to the homeowner of MERSCORP, Inc. who appears in the contracts with the homeowner and investors as the MIN# which does not belong to (III) but belongs to MERSCORP, Inc. DETAILS: There were three (3) Mortgage Electronic Registration Systems, Inc.(s) created = (I), (II), (III). Mortgage Electronic Registration Systems, Inc. (I) originally formed in about 1995,registered a trademark in 1997 and MERS and conveyed a security interest to Nationsbank, N.A. (Bank of America) on or about June 1998; that was followed by the creation of another Mortgage Electronic Registration Systems, Inc. (II) which was also created on or about June 30, 1998 and per the Hultman Declaration merged with Mortgage Electronic Registration Systems, Inc. (I); Then there was a name change of name Mortgage Electronic Registration Systems, Inc. (II) to MERSCORP, Inc. on or about December 1998 which was to become effect as of Jan 1999. See the documents on DeadlyClear http://deadlyclear.wordpress.com/2011/10/11/mers-vs-merscorp-looks-likethey-are-one-in-the-same/ ;

documents using his old seal. behavior.

Certainly this Court would never countenance this type of

So what to the untrained eye seems to be a valid assignment is a conglomeration of false and impossible statements rendering it void as a matter of law. Further, the Court must take judicial notice of the fact that attorney generals of forty-nine (49) states, Rhode Island included, launched a probe to investigate allegations of fraudulent
This means that the MERS belongs to MERSCORP, Inc. and it became the system that was licensed for members use. Shortly after the name change MERSCORP, Inc. created yet another Mortgage Electronic Registration Systems, Inc. (III) (per Hultman) which is the Mortgage Electronic Registration Systems, Inc. (strawman) in the mortgage contracts (not MERSCORP, Inc. and the MERS reference in the mortgages is just an acronym (not the registered trademark MERS)., MERSCORP, Inc. is in the mortgage contracts but not disclosed to the borrower - the MIN # belongs to MERS the system not the strawman Mortgage Electronic Registration Systems, Inc. (III). The Trademark Documents (can be found in the Post http://deadlyclear.wordpress.com/2011/10/28/complaint-state-of-delaware-v-merscorpinc-go-go-beau/ it is too large to email) that were used in a lawsuit against a California company help to support the timeline this scenario wasnt used by the CA defendant I think it was so convoluted nobody ever figured it out it was likely meant to be confusing on purpose. REGISTRATION NO: 2084831 SERIAL NO: 75/031300 MAILING DATE: 08/29/2007 REGISTRATION DATE: 07/29/1997 MARK: MERS REGISTRATION OWNER: MERSCORP, Inc. Bottom-line is that there were 3 Mortgage Electronic Registration Systems, Inc., 2 were absorbed by MERSCORP, Inc., and the acronym MERS in the mortgages is the strawman Mortgage Electronic Registration Systems, Inc. (no employees or systems, shell) - not MERSCORP, Inc.s MERS. There are no records of agreements, contracts, licensing, or assignments of license that have been filed in any business records in DE, NY, MI or Virginia or the patent office that I have searched or been able to find so far that link the Strawman to the MERS. http://deadlyclear.wordpress.com/2011/10/11/mers-vs-merscorp-looks-like-theyare-one-in-the-same/

behavior of lenders throughout the United States. After the states began their investigation in this case, they partnered with the U.S. Justice Department, the Treasury Department, and the Department of Housing and Urban Development and state banking commissioners who conducted thorough examinations of mortgage servicers under their jurisdiction. The investigation resulted in the National Mortgage Settlement Agreement which is the largest consumer settlement agreement in history. It was entered into by the nations largest lenders and mortgage servicers. The Settlement Agreement acknowledges the existence of robo-signers and fraudulent documents signed by employees of mortgage servicing companies hired by the large mortgage lenders and banks. The signer of the assignment in this case is an obvious robo-signer. Robo-signing is legally deficient because a contract requires intent to contract which includes an offer and an acceptance. As a robo-signer, he did not have the requisite intent to contract on behalf of the lender. The act of robo-signing, putting pen to paper, does not result in a duly executed document under R.I.G.L. 34-11-1. Robo-signers are nothing more than mercenaries hired for the sole purpose of eliminating the mandates of R.I.G.L. 34-11-1 as discussed above. These lenders were required to pay over 25 billion dollars to compensate states and homeowners for their wrongdoing. It is unbelievable that this very Court, on the record, stated last week that it

did not know what a robo-signer is, this despite being provided with a plethora of information to allow this Court to become informed. The General Public knows what a robo-signer it. It is scary to hear from the MERS Court that it does not. (Robo-signing was written about in Culhane. If this Court does not know what robo-signing is, does it not follow that it did not read Culhane?

The First Circuit Court of Massachusetts in Culhane v. Aurora Loan Servs. of Neb.,708 F.3d 282, 291 (1st Cir. 2013) also expressed its distaste for the assignment signing process. The Court although deeply troubled by this continuous habit of robo-signing, stated that it was constrained by M.G.L. ch.183 54B. The Court held that M.G.L. ch.183 54B does not require proof of the signer's actual authority to act on behalf of the mortgagee; nor does it require the signer to attest to the truth and accuracy of the assignment of his personal knowledge. This Court is not constrained by M.G.L. ch.183 54B because Rhode Island has no such statute that even resembles M.G.L. ch.183 54B. In fact, R.I.G.L. 34-11-36 allows for a party to challenge an acknowledgment on any conveyancing document. R.I.G.L. 34-11-36 states: Defective acknowledgments. Any acknowledgment of or upon any instrument used in conveying, directly or indirectly, any interest in real estate in this state, including power of attorney, where the instrument has been on record for a period of ten (10) years, shall be construed to be a valid acknowledgment in accordance with the requirements of chapter 12 of this title; provided, nevertheless, that if, within the period of ten (10) years, a proceeding is commenced in superior court relative to the validity of the acknowledgment, and a notice of lis pendens is duly recorded and indexed with the appropriate records of land evidence, the instrument shall be subject to the further order of the court involved in any such proceeding.

Therefore, this Court is bound by Rhode Island law and not Massachusetts General Law 54B. R.I.G.L. 34-11-1 renders each and every assignment executed by a robo-signing flimflam person void. Robo-signing is the very practice that R.I.G.L. 34-11-1 was designed to prevent. In addition, in furtherance of Plaintiffs position the assignment of mortgage is void, the Defendants did not comply with the requirements of R.I.G.L. 34-11-24 which states: 34-11-24 Effect of assignment of mortgage. An assignment of mortgage substantially following the form entitled "Assignment of Mortgage" shall, when

duly executed, have the force and effect of granting, bargaining, transferring and making over to the assignee, his or her heirs, executors, administrators, and assigns, the mortgage deed with the note and debt thereby secured, and all the right, title and interest of the mortgagee by virtue thereof in and to the estate described therein, to have and to hold the mortgage deed with the privileges and appurtenances thereof to the assignee, his or her heirs, executors, administrators and assigns in as ample manner as the assignor then holds the same, thereby substituting and appointing the assignee and his or her heirs, executors, administrators and assigns as the attorney or attorneys irrevocable of the mortgagor under and with all the powers in the mortgage deed granted and contained. [Emphasis added]

Therefore, pursuant to Rhode Island law, the assignor must be the mortgagee and the note holder. Rhode Island law provides a concise and clear prerequisite that the mortgage must be the party that can negotiate the promissory note. Simply stated, in order for a party to foreclose based upon an assignment, the assignor must have been the mortgagee and the note holder at the time of the assignment or the assignment is void. This statute has been judicially abrogated by each court that has been required to address the issue of the effect of a mortgage assignment. It has been held in every case regardless of the holder of the note at the time of the assignment, the note automatically hops to the assignee when a mortgage assignment is executed. The analyses in both Porter and Bucci presuppose that an assignment of the mortgage to MERS does not fatally disconnect the Note and Mortgage. Particularly bearing in mind Bucci, which adopted the reasoning of In Re Huggins, this Court found that no disconnection occurred. Payette v Mortgage Electronic Registration Systems, et al, C.A. No. 2009-5875, at p 14 (R.I. Sup. Ct. 2011); MERS assignment of the Mortgage to Deutsche Bank had the effect of transferring the Note as well as the Mortgage. (34-11-24) (an assignment of the mortgage is deemed as an assignment of the note and debt secured thereby). Batista v Mortgage Electronic Registration Systems, Inc., et al, C.A. No. 2011-2922, at p. 7 (R.I. Sup. Ct. 2011); Section 34-11-24 provides that an assignment of the mortgage shall also be

deemed an assignment of the debt secured thereby. Therefore, by operation of law, the assignment of the Mortgage interest by MERS to HSBC transferred the Mortgage as well as the Note and debt secured thereby. The Note and Mortgage were both held by HSBC as the time of the foreclosure sale. Cafua v Mortgage Electronic Registration Systems, C.A. No. 2009-7407, at p. 6 (R.I. Sup. Ct. 2012); 34-11-24 provides that an assignment of the mortgage shall also be deemed an assignment of the debt secured thereby. By the clear and unambiguous language of 34-11-24, an assignment of the mortgage deed assigns the mortgage with the note and debt thereby secured. Accordingly, an assignment of the mortgage interest alone carries with it the note and debt thereby secured and will not be rendered a nullity. Casimiro v Mortgage Electronic Registration Systems, Inc, et al., C.A. No. 2011-1833, p. 9, 10 (R.I. Sup. Ct. 2012); 34-11-24 provides that an assignment of the mortgage shall also be deemed an assignment of the debt secured thereby. By the clear and unambiguous language of 34-11-24, an assignment of the mortgage deed is assigned with the note and debt thereby secured. Section 34-11-24. Chhun v Mortgage Electronic Registration Systems, Inc, et al, C.A. No. 2011-4547, at p. 11, (R.I. Sup. Ct. 2012); Pursuant to Rhode Island law, G.L. 1956 34-11-24, entitled Effect of assignment of mortgage, which provides, an assignment of mortgage . . . shall . . . have the force and effect of granting, bargaining, transferring and making over to the assignee, . . . the mortgage deed with the note and debt thereby secured. Kriegel v. Mortg. Elec. Registration Sys., Inc., No. PC 2010-7099, 2011 WL 4947398 at p. 7, 8 (R.I. Sup. Ct. 2011); The assignment of the Mortgage carries with it an assignment of the debt secured by the Mortgage. See G.L. 1956 34-11-24. Furthermore, as discussed supra, MERS acts as nominee of the note holder, as well as mortgagee, when assigning the Mortgage interest, and thus there is no requirement that MERS must possess the Note in order to assign the Mortgage interest. Hernandez v Mortgage

Electronic Registration Systems, Inc., et al, C.A. No. 2010-1212, at p. 8, 9, (R.I. Sup. Ct. 2012); Where, as here, an entity such as MERS is identified in the mortgage indenture as the nominee of the lender and as the mortgagee of record and the mortgage indenture confers upon such nominee all of the powers of such lender, its successors and assigns, a written assignment of the note and mortgage by MERS, in its capacity as nominee, confers good title to the assignee and is not defective for lack of an ownership interest in the note at the time of assignment. Rutter v MERS: PennyMac v Rutter, C.A. No. PC 10-4756/ 10-4418, at p. 15, (R.I. Sup. Ct 2012); Furthermore, the assignment of the Mortgage interest from MERS to ARC carried with it the Note and debt thereby secured. Sec. 34-11-24. (an assignment of mortgage . . . shall . . . have the force and effect of granting, bargaining, transferring and making over to the assignee, . . the mortgage deed with the note and debt thereby secured). Leone v Mortgage Electronic Registration Systems, et al, C.A. No. 2010-0801, at p. 3, 6, (R.I. Sup. Ct. 2012); 34-11-24 provides that an assignment of the mortgage shall also be deemed an assignment of the debt secured thereby. Rutter, 2012 WL 894012; see also Kriegel, 2011 WL 4947398. Once the lender designates MERS as its nominee, MERS, and thus any assignee of MERS, also acts as holder of the debt secured by the mortgage and has the authority to assign the mortgage interest. Kriegel, 2011 WL 4947398; By the clear and unambiguous language of 34-11-24, an assignment of the mortgage deed assigns the mortgage with the note and debt thereby secured. Section 34-11-24. Gray v Mortgage Electronic Registration Systems, Inc., et al,, C.A. No. 20111830 at p. 9, (R.I. Sup. Ct. 2012); 34-11-24 provides that an assignment of the mortgage shall also be deemed an assignment of the debt secured thereby. Rutter, 2012 WL 894012; see also Kriegel, 2011 WL 4947398; Once the lender designates MERS as its nominee, under Rhode Island law MERS, and thus any assignee of MERS, also acts as holder of the debt secured by the

mortgage and has the authority to assign or enforce the mortgage interest. Kriegel, 2011 WL 4947398; By the clear and unambiguous language of 34-11-24, an assignment of the mortgage deed is assigned with the note and debt thereby secured. Section 34-11-24. Therefore, under Rhode Island law, the assignment of the Mortgage interest by MERS to UBS, and subsequently by UBS to USA Residential, transferred the Mortgage as well as the [N]ote and debt thereby secured. Section 34-11-24. DiLibero v Mortgage Electronic Registration Systems, Inc., et al, C.A. No. 11-4645, at p. 9, (R.I. Sup. Ct. 2012); By the clear and unambiguous language of 34-11-24, an assignment of the mortgage deed is assigned together with the note and debt thereby secured. Section 34-11-24. Therefore, the assignment of the Mortgage interest by MERS to FNMA transferred the Mortgage as well as the [N]ote and debt thereby secured. Section 34-11-24. Cook v Mortgage Electronic Registration Systems, Inc., et al, C.A. No. 11-3487, at p 11, 12, (R.I. Sup. Ct. 2012); 34-11-24 provides that an assignment of the mortgage shall also be deemed an assignment of the debt secured thereby. Rutter, 2012 894012; see also Kriegel, 2011 WL 4947398; Once the lender designates MERS as its nominee, MERS, and thus any assignee of MERS, also acts as holder of the debt secured by the mortgage and has the authority to assign or enforce the mortgage interest. Kriegel, 2011 WL 4947398; By the clear and unambiguous language of 34-11-24, an assignment of the mortgage deed is assigned with the note and debt thereby secured. Section 34-11-24. Therefore, the assignment of the Mortgage interest by MERS to Bank of New York transferred the Mortgage as well as the [N]ote and debt thereby secured. Kosiba III v Mortgage Electronic Registration Systems, Inc., et al, C.A. No. 11-0874, at p. 10 (R.I. Sup. Ct. 2012); An assignment of mortgage . . . shall . . . have the force and effect of granting, bargaining, transferring and making over to the assignee, . . . the mortgage deed with the note and debt thereby secured, . . . . Kriegel, 2011 WL 4947398

(quoting Section 34-11-24) (emphasis added); An assignment of the mortgage deed results in the assignment of the note and debt thereby secured. OBrien v Mortgage Electronic Registration Systems, et al, C.A. No. 09-1695, at p. 11, (R.I. Sup. Ct. 2012); Also, under Rhode Island statutory law, an assignment of a mortgage effectively results in an assignment of the note and debt secured thereby. Akalarian v Nation One Mortgage Company, Inc., et al, CA. No. 2010-4744, at p. 8, (R.I. Sup. Ct. 2013); Section 34-11-24 of the Rhode Island General Laws provides that an assignment of the mortgage shall also be deemed an assignment of the note and debt secured thereby. See G.L. 1956 34-11-24; Muscatelli v Mortgage Electronic Registration Systems, Inc., et al, C.A. No. 11-2554, at p. 3, (R.I. Sup. Ct. 2013); Section 34-11-24 of the Rhode Island General Laws provides that an assignment of the mortgage shall also be deemed an assignment of the note and debt secured thereby. See G.L. 1956 34-11-24. Camilo, et al, v. Mortgage Electronic Registration Systems, Inc., et al, C.A. No. 11-2550, at p. 3, (R.I. Sup. Ct. 2013); An assignment of the Mortgage does not cause a disconnect between the note and mortgage rendering the assignment a nullity. Rather, under 34-11-24, an assignment of the mortgage carries with it the note and debt thereby secured. Section 34-11-24. Therefore, in this case, the assignment of the Mortgage interest from MERS to FNMA transferred the Mortgage as well as the [N]ote and debt thereby secured. Reyes v Mortgage Electronic Registration Systems, Inc., et al, C.A. No. 11-4094, at p. 5, 6, (R.I. Sup. Ct. 2013); An assignment of the Mortgage does not cause a disconnect between the note and mortgage rendering the assignment a nullity. Rather, under 34-11-24, an assignment of the mortgage carries with it the note and debt thereby secured. Section 34-11-24. Therefore, in this case, the assignment of the Mortgage interest from MERS to FNMA transferred the Mortgage as well as the [N]ote and debt thereby secured. Machado v Mortgage Electronic Registration Systems,

Inc., et al, C.A. No. 11-4092, at p. 5 (R.I. Sup. Ct. 2013).

Each and every one of these holdings

cannot satisfy judicial muster. What of the UCC? What of endorsement and delivery? 3411-24 is a conveyance statute, It is a judicially recognized fact throughout the country that MERS is never the note holder and has no beneficial interest in the fact. On September 25, 2009, R.K. Arnold, the President and CEO of MERSCORP, Inc. the parent corporation of Mortgage Electronic Registration Systems, Inc., was deposed in Alabama in the case of Henderson v. MERSCORP, C.A. 08-900805, Circuit Court for Montgomery, Alabama. Arnold is also an Officer of MERS. Arnold admitted MERS does not have a beneficial interest in any mortgage; does not loan money; does not suffer a default if monies are not paid; etc. etc. The internal agreement used by MERS expressly disavows any beneficial interest. Since MERS admits it is never the note holder, this Court must apply the bedrock legal principle of nemo dat quod non habetthat you cant give what you dont have. All commercial law is built upon this legal maxim. See, e.g. John F. Dolan Et Al., Core Concepts of Commercial Law: Past, Present, and Future: Cases and Materials 2 (Thompson West, 2004) (The First Rule of ConveyancingNemo Dat). The assignment in this case does not state that MERS is acting as an agent of any party nor does it identify who MERS is acting for. MERS on its own cannot assign a note but must identify who it is acting as agent for. Further, Defendants refer to previous decisions by this Court in advancing the theory that the assignments are valid as a matter of law. Payette, supra, and all cases relying on Payette and its progeny. This Court has cited the cases of Dolan v. Hughes, 20 R.I. 513, 40 A. 344 (1898) and Johnson v. Thayer, 17 Me. 403 (1840). The Dolan case involved an assignment of wages and has no bearing on an assignment of property rights and Johnson holds that a third

party does have standing to challenge the validity of an assignment, which is a direct opposite of the decisions of this Court. This holding and argument offered by the Defendants and cited by this Court is unsupported by both Rhode Island statutes and case law. The validity of an assignment of mortgage which is the vehicle by which the Defendants claim their authority to foreclose is a genuine issue of material fact that must be decided by a trial requiring a Motion for Summary Judgment to be denied. Based upon the above evidence which would be introduced at trial, Plaintiffs will succeed in proving their allegation that the assignment is void, and therefore, the subsequent foreclosure is void because Defendants did not comply with any of the requirements of R.I.G.L.34-11-1, 34-11-21 and 34-11-24 which are not optional but are statutory dictates.

1. The existence of an agency relationship is an issue of material fact that must be decided at a trial on the merits.

As previously stated, the Rhode Island Supreme Court in Bucci, supra, held that MERS, the foreclosing party, may foreclose, because it was the named mortgagee and was acting as an agent of the owner of the note. Therefore, this Court has set out the two predicates for MERS, as the foreclosing party to be entitled to foreclose. First, it must be the named mortgagee in the mortgage document and second, it must be the note holder or be acting as an agent of the note holder, which is a question of material fact. In Bucci, supra, the Rhode Island Supreme Court held that the existence of an agency relationship is a question of fact by stating as follows: We have held that the existence of an agency relationship is a question of fact. See, e.g., Credit Union Central Falls v. Groff, 966 A.2d 1262, 1268 (R.I. 2009) (Whether an attorney-client relationship has formed is a question of fact governed by the principles of agency.); Baker v. ICA Mortgage Corp., 588 A.2d 616, 61718 (R.I. 1991) (refraining from recognizing the existence of an agency

relationship, but remanding the matter to the Superior Court to resolve that question of fact). See also 2A C.J.S. Agency 5at 309 (2003) (The existence of an agency relationship is a question of fact under the circumstances of the particular case * * *.) In Credit Union Cent. Falls v. Groff, 966 A.2d 1262 (R.I. 2009), the central issue revolved around whether an agency relationship existed between two parties. In response to this question, the Rhode Island Supreme Court held that whether an agency relationship existed was a genuine issue of material fact that rendered inappropriate the granting of a Motion for Summary Judgment. In addition, the United States Federal District Court for the District of Rhode Island in Toledo v. Van Waters & Rogers, Inc., 92 F. Supp. 2d 44, 58 (D.R.I. 2000), held that the existence and scope of an agency relationship is essentially a factual determination and, thus, a jury issue which requires the denial of a Motion for Summary Judgment. The court stated as follows: In the case sub judice, there is a genuine dispute of material fact over whether Van Waters exerted control over Frey in the packaging of the chemicals at issue, or had the right to control Frey in the performance of these activities. Therefore, whether Frey was an agent of Van Water is a matter for the jury to decide. Although plaintiff has a tough row to hoe in proving the existence of an agency relationship, Van Waters' motion for summary judgment must be denied for the foregoing reasons. In the case at hand, there is no evidence of any type produced by the Moving party that there is an agency relationship between any of the party. This is, therefore, a genuine issue of material fact requires a trial on the merits and, therefore, denial of Defendants Motion for Summary Judgment. 2. The burden of proving an agency relationship is on the party claiming the existence of the agency relationship. As was cited in the Bucci, supra, decision, it is a long standing principle in the State of Rhode Island that the party asserting the agency relationship has the burden of proving such an

agency. Ward v. Trustees of New Eng. S. Conference, 27 R.I. 262 (R.I. 1905); H. W. Ellis, Inc. v. Alofsin, 87 R.I. 252, 140 A.2d 131(1958); Inleasing Corp. v. Jessup, 475 A.2d 989 (R.I. 1984). Further, the party asserting the existence of an agency relationship cannot prove its existence by mere allegations made in an affidavit. In Mello v. Coy Real Estate Co., 103 R.I. 74, 78 234 A2d 667, 670 (1967) and Walmac Co. v. Zurich Ins. Co., 114 R.I. 410, 417 (R.I. 1975); American Ins. Co. v. Aetna Life Ins. Co., 120 R.I. 441 (R.I. 1978); Prata Funeral Home v. Thatcher, 1987 R.I. Super. LEXIS 107 (1987); Powers v. Coccia, 2004 R.I. Super. LEXIS 28 (2004), the Rhode Island Supreme Court found as follows: where the existence of a principal-agent relationship is alleged and in issue, it is generally held that extrajudicial statements and declarations sought to be attributed to the purported agent are inadmissible to prove the agency under the hearsay rule.

3. The existence of an agency relationship cannot be presumed or inferred but must be proven by testimony to be heard by a jury. In Gomez v. Rivera Rodriguez, 344 F.3d 103, 116 (1st Cir. 2003), the First Circuit Court of Appeals held that an agency relationship must be proven by independent evidence other than out of court statements of the purported agent. The court specifically stated as follows: It is hornbook law that an agency cannot be proven solely by the unsupported out-of-court statements of the claimed agent. Although the contents of the putative agent's out-of-court statements may be considered in the decisional calculus, the statements "are not alone sufficient to establish the declarant's authority." Fed. R. Evid. 801(d)(2). For present purposes, then, Morales's testimony cannot be viewed as self-authenticating. An agency relationship must be shown to exist by independent evidence before out-of-court statements by a purported agent can be deemed admissions by a party-opponent. Mackey v. Burke, 751 F.2d 322, 326 n.3 (10th Cir. 1984); United States v. Portsmouth Paving Corp., 694 F.2d 312, 321 (4th Cir. 1982).

This opinion is supported by the fact that the declarations and statements of one purporting to be acting as agent, other than his testimony in the case in which the issue arises, are not admissible to prove agency. See 2 Am.Jur., Agency, 445, p. 352. Consistent with these principles of agency law, the Rhode Island Supreme Court in Bucci found that an agency relationship existed between MERS and the subsequent note holder because the parties stipulated to that fact by an affidavit that was entered into the record. There is no agreement as to an agency relationship in this case, therefore, the issue of an agency relationship is a genuine issue of material fact. 4. The identity of the note holder is a genuine issue of material fact that must be resolved by a trial on the merits. As stated previously, Bucci held that MERS must be the mortgagee and the note holder or be acting as an agent on behalf of the note holder. In order to prove or disprove this crucial issue, the identity of the note holder is imperative for a proper determination of the rights of the foreclosing party. That burden has not been carried by the moving party in this case. When determining the party that has statutory authority to foreclose, the Rhode Island Supreme Court in Bucci appropriately quoted the Restatement (Third) Property 5.4(c) at 380 which provides that "[a] mortgage may be enforced only by, or in behalf of, a person who is entitled to enforce the obligation the mortgage secures." The party who is entitled to enforce the obligation the mortgage secures is the note holder. It is an incomprehensible statement that the identity of the note holder is irrelevant to the validity of a foreclosure sale. Moreover, since the Bucci decision, the identity of the note holder is imperative to determine the existence of any agency relationship between the note holder and the foreclosing party.

In Credit Union Cent. Falls v. Groff, 966 A.2d 1262 (R.I. 2009), citing American Title Ins. Co. v. East W. Fin. Corp., 16 F.3d 449, 456 (1st Cir. R.I. 1994), the First Circuit Court of Appeals held as follows: An agency relationship exists when: (1) the principal manifests that the agent will act for him; (2) the agent accepts the undertaking; and (3) the parties agree that the principal will be in control of the undertaking. The essence of an agency relationship is the principal's right to control the work of the agent, whose actions must primarily benefit the principal.[Emphasis added]. In order for an agency relationship to exist under Rhode Island law, the party claiming the agency relationship must prove all three elements. The first element required is a manifestation by the principal that the agent will act for him. Manifestation is defined as the apparent, unmistakable, clear, obvious, distinct, and noticeable act of showing or demonstrating something (the knowledge by principal that the agent will for him).20 The second element required to prove an agency relationship is acceptance by the agent. Acceptance is defined as an agreement that somebody (the agent) agrees to an invitation or offer.21 The third element is that the principal will be in control of the actions of the agent. All three elements of proof are required. In the case at hand, whether MERS was an agent of the note holder is a genuine issue of material fact. As soon as the note was transferred to a non-MERS member, in this case FNMA, the agency relationship between MERS and the note holder ended. The assignment claims to transfer the note as well as the mortgage which is an impossibility because the note was transferred prior to the note and MERS is never the holder of the note.

20 21

Merriam Webster Dictionary See footnote number 1.

In addition, in Bucci, supra, the Rhode Island Supreme Court adopted the holding of the Massachusetts Supreme Court in Eaton v. Federal National Mortgage Association, 969 N.E.2d 1118, 1122 (Mass. 2012). In so doing, this Court specifically stated as follows: Similarly, we do not believe that our General Assembly intended to proscribe [the] application of general agency principles in the context of mortgage foreclosure sales. Eaton, 969 N.E.2d at 1131. Therefore, we interpret the term mortgagee in our statutes in a similar fashion as did the Supreme Judicial Court of Massachusetts. Thus, it is our opinion that none of the statutes that plaintiffs rely upon prohibit MERS from foreclosing on the Bucci mortgage, because in so doing, MERS would be acting as an agent on behalf of the note owner. The Supreme Court of Massachusetts in deciding two post Eaton cases held that Motions for Summary Judgment granted by the trial justice must be reversed because no evidence was properly presented addressing the agency issue between the foreclosing party and the note holder. The Court in HSBC Bank USA, N.A. v. Norris, 83 Mass. App. Ct. 1115 (Mass. App. Ct. 2013) stated as follows: Under Eaton v. Federal Natl. Mort. Assn., 462 Mass. 569, 571, 584-586 (2012), foreclosure by sale pursuant to G. L. c. 244, 14, requires that the mortgagee also hold the mortgage note or be the authorized agent of the note holder. The fact that HSBC had been assigned the mortgage is not enough to effect a valid foreclosure by sale pursuant to G. L. c. 244, 14. As noted above, HSBC did not present any evidence in the summary judgment record as to who held the note at the time of the foreclosure by sale, or whether it was acting as the authorized agent of the note holder. As a result, the motion judge in this case should have denied HSBC's motion for summary judgment and also required that Norris receive the discovery he sought concerning the note and the servicing and pooling agreement. Therefore, to follow the precedent set by the Rhode Island Supreme Court in Bucci, this Court must deny the Motion for Summary Judgment as did the Massachusetts Appellate Court in Norris, supra and Lyons v. Mortgage Elec. Registration Sys., 2013 Mass. App. Unpub. LEXIS 620 (Mass. App. Unpub. 2013). It is important to note that numerous other jurisdictions have also held that the foreclosing party must hold the note and mortgage and prove the same to be granted a Motion for

Summary Judgment. On July 31, 2013, the Ninth Circuit Court of Common Pleas in South Carolina decided the case of Deutsche Bank v. Heinrich, 2011-CP-10-1060 (South Carolina 2013) which addresses the issue of whether the foreclosing party must have possession of the note and the mortgage in order to foreclose. Judge Nicholson stated as follows: Carpenter v. Longan, 83 U.S. 271, 16 W. 271, 21 L. Ed. 313 (1872), clearly supports the notion that the Plaintiff must clearly own the note and the mortgage to foreclose on the property. Plaintiff failed to show that it owned the mortgage at the time the Complaint was filed. In its Complaint, Plaintiff merely contends that it is a holder and it has the right to enforce, Further, the mortgage of this case shows MERS, Inc. to be the mortgagee. MERS is never mentioned on the Note It is clear to have standing in this foreclosed case, Plaintiff must not only be the holder and owner of the original note, but also the mortgage as well. Plaintiff fails to meet this criteria. Based on the above, this Motion for Summary Judgment should be denied. 5. The validity of the assignment is a genuine issue of material fact which must be resolved by a trial on the merits. In the case before this Court, there is no evidence that the note and debt were transferred with the assignment. There is no proof that the party signing the assignment was an officer of MERS. The notary clause on the alleged assignment is flawed as is the method by which the assignment was signed. It was signed by and individual. All of these flaws render the assignment void as a matter of law; to wit 34-11-1 and 34-11-24. UCC MUST BE HARMONIZED WITH OTHER RHODE ISLAND STATUTES In a recent ruling by the Rhode Island Superior Court relative to the issue of whether the UCC applies when a mortgage assignment allegedly done in compliance with R.I.G.L. 34-1124 transfers the operative promissory note and the debt secured thereby. In U.S. Bank National Association v. Alfaia et al, C.A. NO. PC-2009-2776 (R.I. Super. Ct., August 8, 2013) (Rubine, J.), which involved the authority of a party to foreclose, this Court

unequivocally decided as a matter of Rhode Island law, that the transfer/negotiation of a promissory note, such as those in all cases decided by the Superior Court on the MERS Calendar, is governed by the 6A-3-301, et seq. Specifically, the Court wrote as follows: To enforce the Note as an obligation under a negotiable instrument, the party seeking enforcement must be a person entitled to enforcement under 6A-3-301 of the UCC. Logic dictates that for MERS to be able to comply with 34-11-24, it must be able to transfer the note and debt secured thereby. MERS has readily admitted that it never holds the note, owns the note or has the right to enforce the note. It can never, therefore, negotiate or transfer a promissory note as required by 34-11-24. This proves, therefore, that a party that

does not hold the promissory note, may not transfer that note by operation of law because it never complies with 6A-3-301 of the UCC. As stated in the above case, the Court must look to the UCC as it relates to Rhode Island conveyancing statutes, specifically R.I.G.L. 34-11-24 when deciding the issue of the identity of the actual note holder. A fundamental principle in mortgage law holds that a foreclosing party must have the power to enforce the underlying note. Carpenter v. Longan, 83 U.S. 271, 274 (1872). Therefore, the assignment of a mortgage independent of the debt which it is given to secure, is a meaningless and void. That concern underlies the standard doctrine in foreclosure proceedings that the foreclosing party must provide proof that it has the power to enforce the note.22 In adopting that fundamental principle, the Rhode Island legislature enacted R.I.G.L 3411-24 which governs mortgage assignments. R.I.G.L. 34-11-24 states as follows: An assignment of mortgage substantially following the form entitled "Assignment of Mortgage" shall, when duly executed, have the force and effect
22

White, Alan, Losing the Paper Mortgage Assignments, Note Transfers and Consumer Protection, 24 Loy Consumer L Rev 468, 476-77 (2012)

of granting, bargaining, transferring and making over to the assignee, his or her heirs, executors, administrators, and assigns, the mortgage deed with the note and debt thereby secured, and all the right, title and interest of the mortgagee by virtue thereof in and to the estate described therein, to have and to hold the mortgage deed with the privileges and appurtenances thereof to the assignee, his or her heirs, executors, administrators and assigns in as ample manner as the assignor then holds the same, thereby substituting and appointing the assignee and his or her heirs, executors, administrators and assigns as the attorney or attorneys irrevocable of the mortgagor under and with all the powers in the mortgage deed granted and contained. [Emphasis added]. The validity and travel of promissory notes are governed by the Uniform Commercial Code which was enacted in by the State of Rhode Island in 2000. Article Three is the law of this State regarding Negotiable Instruments (promissory notes) and Article Nine governs Secured Transactions (mortgages). R.I.G.L. 6A-3-201 states as follows: (a) "Negotiation" means a transfer of possession, whether voluntary or involuntary, of an instrument by a person other than the issuer to a person who thereby becomes its holder. (b) Except for negotiation by a remitter, if an instrument is payable to an identified person, negotiation requires transfer of possession of the instrument and its endorsement by the holder. If an instrument is payable to bearer, it may be negotiated by transfer of possession alone. Therefore, according to Rhode Island law, a promissory note or the debt secured by the mortgage can only be transferred or negotiated by delivery of possession. In the case at hand, no evidence has been introduced which addresses the requirement of delivery and possession of the note. In addition, according to the Bucci, supra, decision, MERS, as the foreclosing party, must be the note holder or an agent of the note holder. It is important to note that the word agent or nominee does not appear in the entire UCC in any section whatsoever. The UCC defines the note holder as the person entitled to enforce which is defined by R.I.G.L. 6A-3-301. 6A-3301 states as follows:

Person entitled to enforce instrument. "Person entitled to enforce" an instrument means (i) the holder of the instrument, (ii) a nonholder in possession of the instrument who has the rights of a holder, or (iii) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to 6A-3-309 or 6A-3-418(d). A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument. Therefore, according to Rhode Island law, the holder must be the party entitled to enforce and must be the party in possession of the note unless it was lost, destroyed or stolen (6A-3309) or the note is paid or accepted by mistake (6A-3-418(d). As the evidence indicates, this issue cannot be proven by Defendants and, therefore, a genuine issue of material fact exists, which requires denial of this Motion for Summary Judgment. CONCLUSION This Court is mindful of the fact that that many Courts have judged similar cases with a negative eye based upon their distaste of the circumstances and facts of Plaintiffs claims. It is apparent from the opinions of many Courts that personal ideologies have taken the place of unbiased jurisprudence. Plaintiffs strongly agree with the finding of the Court in Culhane v. Aurora Loan Servs., 826 F. Supp. 2d 352 (D. Mass. 2011) which succinctly stated this view by stating: It is clear beyond peradventure that Culhane is substantially behind in paying her mortgage and appears unable to remediate her default. This, however, does not render her an outlaw, subject to having her home seized by whatever bank or loan servicer may first lay claim to it. She still has legal rights. Everything that follows attempts to sort out these competing claims.

This case should be decided with a realization that but for Defendants faulty lending practices and their greed for easy money this crisis would not have occurred. The Plaintiffs

involved have legal rights secured for them by the laws of this country and the State of Rhode Island. These principles should not be overlooked in favor of personal opinions laced with distaste for Plaintiffs circumstances. Once a thorough reading and analysis of the applicable case law and statutes as outlined by this memorandum has been undertaken by this Court, it will conclude that this Motion for Summary Judgment must be denied. Cosajay has put the nail in the coffin once and for all of the standing issue so often relied upon by the MERS Court to rid itself of cases on its docket. Derek Langer, By his attorney,

____________________________ George E. Babcock, Esquire 574 Central Avenue Pawtucket, RI 02861 724-1904 Date: November 5, 2013