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Appellate Case: 19-4146 Document: 010110283477 Date Filed: 01/03/2020 Page: 1

Court of Appeals Docket No. 19-04146

In the { ,--•

UNITED STATES COURT OF


APPEALS
for the
TENTH CIRCUIT
CAROL MASTERSON
Appellant - Plaintiff
V.

NATIONSTAR MORTGAGE, LLC;


DEUTSCHE BANK TRUST COMPANYAMERICAS as TRUSTEE for the
RESIDENTIAL ACCREDIT LOANS, INC. MORTGAGE ASSET-BACKED
PASSTHROUGH CERTIFICATES, SERIES 2007-QHl; RESIDENTIAL
ACCREDIT LOANS, INC.; MORTGAGE ELECTRONIC REGISTRATION
SYSTEMS, INC.; ROES 1-10 and DOES 1-10, inclusive, representing a class of
unknown persons who claim or have the right to claim an interest in certain real
property located in Park City, Utah.
Appellees - Defendants

UNITED STATES DISTRICT COURT


FOR DISTRICT OF UTAH, CENTRAL DIVISION
The Honorable Judge Robert J. Shelby
Case No. 2: 18-cv-00 196-RJS-DBP

APPELLANT'S OPENING BRIEF

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TABLE OF CONTENTS

I. CERTIFICATE OF INTERESTED PARTIES ........................................................... 3

I. WRISDICTIONAL STATEMENT ............................................................................ 6

II. ISSUES PRESENTED ................................................................................................ 6

III. INTRODUCTION ..................................................................................................... 7

IV. STATEMENT OF FACTUAL ALLEGATIONS ..................................................... 8

V. STANDARD OF REVIEW ....................................................................................... 14

VI. LEGAL ARGUMENT ............................................................................................ 14

VII. CONCLUSION ....................................................................................................... 31

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I. CERTIFICATE OF INTERESTED PARTIES

1. Appellant is now, and California at all times relevant to this action, an


individual residing in the County of Los Angeles, in the State of California
but was residing in the County of Los Angeles, in the State of California,
Appellant owns the real property commonly known as 2595 Aspen Springs
Drive, Park City, UT 84060.

2. Appellant is informed and believes, and based on such information and


beliefs, asserts that at all relevant times to this Complaint, Defendant
Nationstar Mortgage, LLC create is a subsidiary Nationstar Mortgage
Holdings, Inc., LLC with corporate headquarters located at 8950 Cypress
Waters Boulevard, Coppell, TX 75019.

3. Appellant is informed and believes, and based on such information and


beliefs, asserts that at all relevant times to this Complaint, Defendant Deutsche
Bank Trust Company Americas as Trustee (hereinafter "DBTCA") for the
Residential Accredit Loans, Inc. Mortgage Asset-Backed Pass-Through
Certificates, Series 2007-QH 1 (hereinafter "RALi 2007-QH 1") is wholly
owned subsidiary of Deutsche Bank with corporate headquarters located at 60
Wall St, New York, NY 10005.

4. Appellant is informed and believes, and based on such information and


beliefs, asserts that at all relevant times to this Complaint, Defendant Deutsche
Bank Trust Company Americas as Trustee (hereinafter "DBTCA2") for the
Residential Accredit Loans, Inc. Mortgage Asset-Backed Pass-Through
Certificates, Series 2005-QA13 (hereinafter "RALi 2005-QA13") is a New
York Corporation with corporate headquarters located at 60 Wall St, New
York, NY 10005.
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5. Appellant is informed and believes, and based on such information and


beliefs, asserts that at all relevant times to this Complaint, Defendant Deutsche
Bank Trust Company Americas as Trustee (hereinafter "DBTCA3") for the
Residential Accredit Loans, Inc. Mortgage Asset-Backed Pass-Through
Certificates, Series 2006-QAl (hereinafter "RALI 2006-QAl ") is a New York
Corporation with corporate headquarters located at 60 Wall St, New York,
NY 10005.

6. Appellant is informed and believes, and based on such information and


beliefs, asserts that at all relevant times to this Complaint, Defendant Deutsche
Bank Trust Company Americas as Trustee (hereinafter "DBTCA4") for the
Residential Accredit Loans, Inc. Mortgage Asset-Backed Pass-Through
Certificates, Series 2006-QAl0 (hereinafter "RALI 2006-QAl0") is a New
York Corporation with corporate headquarters located at 60 Wall St, New
York, NY 10005.

7. Appellant is informed and believes, and based on such information and


beliefs, asserts that at all relevant times to this Complaint, Defendant Deutsche
Bank Trust Company Americas as Trustee (hereinafter "DBTCA5") for the
Residential Accredit Loans, Inc. Mortgage Asset-Backed Pass-Through
Certificates, Series 2006-QS14 (hereinafter "RALI 2006-QS14") is a New
York Corporation with corporate headquarters located at 60 Wall St, New
York, NY 10005.

8. Appellant is informed and believes, and based on such information and


beliefs, asserts that at all relevant times to this Complaint, Defendant Deutsche
Bank Trust Company Americas as Trustee (hereinafter "DBTCA6") for the
Residential Accredit Loans, Inc. Mortgage Asset-Backed Pass-Through
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Certificates, Series 2007-QA3 (hereinafter "RALI 2007-QA3") is a New York


Corporation with corporate headquarters located at 60 Wall St, New York,
NY 10005.

9. Appellant is informed and believes, and based on such information and


beliefs, asserts that at all relevant times to this Complaint, Defendant Deutsche
Bank Trust Company Americas as Trustee (hereinafter "DBTCA7") for the
Residential Accredit Loans, Inc. Mortgage Asset-Backed Pass-Through
Certificates, Series 2007-QA3 (hereinafter "RALi 2007-QA3 ") is a New York
Corporation with corporate headquarters located at 60 Wall St, New York,
NY 10005.

10. Appellant is informed and believes, and based on such information and
beliefs, asserts that at all relevant times to this Complaint, Defendant Deutsche
Bank Trust Company Americas as Trustee (hereinafter "DBTCA8") for the
Residential Accredit Loans, Inc. Mortgage Asset-Backed Pass-Through
Certificates, Series 2007-QS 1 (hereinafter "RALI 2007-QS 1") is a New York
Corporation with corporate headquarters located at 60 Wall St, New York,
NY 10005.

11. Plaintiff is informed and believes, and based on such information and beliefs,
asserts that at all relevant times to this Complaint, Defendant Mortgage
Electronic Registration Systems (hereinafter "MERS") is a private electronic
database that tracks the transfer of ownership interests in mortgage loans and
does not hold any actual beneficial loans in its portfolio and is organized and
existing under the Laws of Delaware, and maintains its address at P. 0. Box
2026 Flint, Michigan 48501-2026.

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I. JURISDICTIONAL STATEMENT
Appellant appeals the District Court's Order Adopting Report and
Recommendations to grant Appellees' Motion to Dismiss Appellant's First
Amended Complaint (ECF No.40) and denying Appellant's request to amend and
the Judgement (ECF No.41).

This appeal is authorized by Federal Rules of Civil Procedure and consists of


an appeal of a final judgment by a District Court Judge after dismissal with prejudice
and without leave to amend. The District Court's Honorable Robert J. Shelby filed
his Order dated September 30, 2019, entered into the District Court's docket as ECF
No.40, granting Appellees' Motion to Dismiss. The order is appealable under
Federal Rules of Civil Procedure as a final judgment. Appellant timely filed their
Notice of Appeal on October 17, 2019, entered into the District Court's docket on
October 18, 2019 as ECF No.42.

II. ISSUES PRESENTED


1) Were Appellant's Constitutional rights violated?

2) Did the District Court Judge err as it pertains to the Appellees failure to
deny Appellant's Request for Admissions?

3) Did the District Court Judge err as it pertains to the Appellees failure to
answer Appellant's Request for Interrogatories?

4) Did the District Court Judge err in concluding Defendants withdrew any
potential admission?

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5) Did the District Court Judge err in concluding that Masterson's Motion
does not present any genuine issues of material facts that are in dispute?

6) Does Appellees request for Judicial Notice of the MIN Summary and ·
Milestones open the door for Appellant to assert Ultra Vires Acts of the
Pooling and Servicing Agreement?

7) Does Appellant's status as a homeowner deny her rights as a Stockholder


to assert Ultra Vires Acts of the Trustee Defendant Deutsche Bank Trust
Company Americas.

8) Did the District Court Judge err in closing the case at bar with other
Defendants having never responded to the Complaint(s)?

III. INTRODUCTION
In the past nine to ten years, several judicial opinions have issued in which
trustors/borrowers challenged the statutory scheme being initiated by an off-the-
record registry known as Mortgage Electronic Registration Systems, Inc. ("MERS").
In many of these cases, the courts held that the Civil Code does not provide for a
"preemptive challenge" to a foreclosure. Many of the cases were poorly plead and
thinly veiled attempts to do anything other just try and delay the loss of their
property, this is not the case at bar.

Appellant has in plain and simple language, but with great specificity
identified and articulated to the District Court the following:

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1. Appellant identified documents recorded in the Summit County


Recorder's Office containing known false information.

2. Appellant identified that the documents recorded in the Summit


County Recorder's Office executed in direct violation Utah Civil
Code.

3. Appellant identified that the Appellees request for Judicial Notice


purporting transactions identified within the MIN Summary and
Milestones reports are in direct violation of Internal Revenue Code and
Securities Laws.

Appellant is informed and believes, and based on such information and


beliefs, asserts that District Court's Honorable Robert J. Shelby erred by to see the
irrefutable facts that overwhelmingly showing that there is a true and genuine
controversy warranting Appellant be granted relief, are the exact reasons and
purpose the matter at bar needs to be determined by this Honorable Panel of Judges.

IV. STATEMENT OF FACTUAL ALLEGATIONS


On March 2, 2018 Plaintiff filed a Complaint in the U.S. District Court,

District of Utah, alleging claims for Declaratory Relief, RESPA Violations,

TILA Violations, Negligent Misrepresentation, Intentional Inflection of

Emotional Distress and Cancelation of Instruments (hereinafter "Complaint"

see ECF No.l).

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On April 20, 2018 Defendants filed a Motion to Dismiss (hereinafter


"MID" see ECF No.10) pursuant to FRCP 12(b)(6).

On May 7, 2018 Plaintiff filed an Opposition to Defendants filed a


Motion to Dismiss (hereinafter "OMTD" see ECF No.15).

On May 7, 2018 Plaintiff filed an Amended Complaint as a matter of


course pursuant to Federal Rules of Civil Procedure Rule 15(a)(2)
(hereinafter "FAC" see ECF No.16).

On May 20, 2018 Defendants filed an Answer to Plaintiff's FAC)


(hereinafter "Answer" see ECF No.17).

Plaintiff contacted Counsel for the Defendants several times to discuss


a proposed discovery plan. On June 20 th, 2018 Jason Baker of the Law Offices
of Akerman LLP sent an email to Plaintiff stating "A 180-day deadline for
fact discovery is fine. Making the fact discover cutoff Monday, December
17, 2018."

Later that day on June 20 th, 2018 Plaintiff by and through her husband,
Robert R. Tweed, Plaintiff mailed the Proposed Discovery Plan to Law
Offices of Akerman LLP for opposing counsel to sign and file with the

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Court. (see attached Affidavit of Robert R. Tweed Exhibit No.1) and


Plaintiff's Initial Disclosures. (see ECF No.26 Affidavit of Robert R. Tweed
Exhibit No.2)

On July 2nd, 2018 Plaintiff by and through her husband, Robert R.


Tweed, Plaintiff mailed her First Set of Requests for Admission to
Defendant Nationstar Mortgage, LLC. (see ECF No.26 Affidavit of Robert
R. Tweed Exhibit No.3)

On July 2nd, 2018 Plaintiff by and through her husband, Robert R.


Tweed, Plaintiff mailed her First Set of Requests for Admission to
Defendant Deutsche Bank Trust Company Americas as Trustee. (see ECF
No.26 Affidavit of Robert R. Tweed Exhibit No.4)

On July 2nd, 2018 Plaintiff by and through her husband, Robert R.


Tweed, Plaintiff mailed her First Set of Requests for Admission to
Defendant Mortgage Electronic Registration Systems, Inc. (see ECF No.26
Affidavit of Robert R. Tweed Exhibit No.5)

On July 2nd, 2018 Plaintiff by and through her husband, Robert R.


Tweed, Plaintiff mailed her First Set of Requests for Production of

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Documents to Defendant Nationstar Mortgage, LLC. (see ECF No.26


Affidavit of Robert R. Tweed Exhibit No.6)

On July 2nd, 2018 Plaintiff by and through her husband, Robert R.


Tweed, Plaintiff mailed her First Set of Requests for Production of
Documents to Defendant Deutsche Bank Trust Company Americas as
Trustee. (see ECF No.26 Affidavit of Robert R. Tweed Exhibit No.7)

On July 2nd, 2018 Plaintiff by and through her husband, Robert R.


Tweed, Plaintiff mailed her First Set of Requests for Production of
Documents to Defendant Mortgage Electronic Registration Systems, Inc.
(see ECF No.26 Affidavit of Robert R. Tweed Exhibit No.8)

On July 2nd, 2018 Plaintiff by and through her husband, Robert R.


Tweed, Plaintiff mailed her First Set of Interrogatories to Defendant
Nationstar Mortgage, LLC. (see ECF No.26 Affidavit of Robert R. Tweed
Exhibit No.9)

On July 2nd, 2018 Plaintiff by and through her husband, Robert R.


Tweed, Plaintiff mailed her First Set of Interrogatories to Defendant
Deutsche Bank Trust Company Americas as Trustee. (see ECF No.26
Affidavit of Robert R. Tweed Exhibit No.10)

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On July 2nd, 2018 Plaintiff by and through her husband, Robert R.


Tweed, Plaintiff mailed her First Set of Interrogatories to Defendant
Mortgage Electronic Registration Systems, Inc. (see ECF No.26 Affidavit of
Robert R. Tweed Exhibit No.11)

On or about September 29 th, 2018 Plaintiff received Defendants a Joint


Discovery Plan prepared by Robert H. Scott and Jason Baker of the Law
Offices of Akerman LLP with the only significate change being the fact
discovery cutoff of Monday, December 17, 2018 being extended to
Thursday, December 20, 2018.

On October 5th, 2018 Plaintiff received Defendants Initial Disclosures


date October 1st, 2018.

As of December 20 th, 2018, Plaintiff has not received any reply to


Plaintiff's "Requests For Admissions" dated 7/2/2018 for Defendants
Nationstar Mortgage, LLC; Deutsche Bank Trust Company Americas As
Trustee For The Residential Accredit Loans, Inc. Mortgage Asset-Backed
Pass-Through Certificates, Series 2007-QHl; Residential Accredit Loans,
Inc. and Mortgage Electronic Registration Systems Inc. (see ECF No.26
Affidavit of Robert R. Tweed Exhibits No. 3-No. 5)

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As of December 20th, 2018, Plaintiff has not received any reply to


Plaintiff's "Requests For Documents" dated 7/2/2018 for Defendants
Nationstar Mortgage, LLC; Deutsche Bank Trust Company Americas As
Trustee For The Residential Accredit Loans, Inc. Mortgage Asset-Backed
Pass-Through Certificates, Series 2007-QHl; Residential Accredit Loans,
Inc. and Mortgage Electronic Registration Systems Inc. (see ECF No.26
Affidavit of Robert R. Tweed Exhibits No. 6-No. 8)

As of December 20 th, 2018, Plaintiff has not received any reply to


Plaintiff's "Requests For Interrogatories" dated 7/2/2018 for Defendants
Nationstar Mortgage, LLC; Deutsche Bank Trust Company Americas As
Trustee For The Residential Accredit Loans, Inc. Mortgage Asset-Backed
Pass-Through Certificates, Series 2007-QHl; Residential Accredit Loans,
Inc. and Mortgage Electronic Registration Systems Inc. (see ECF No.26
Affidavit of Robert R. Tweed Exhibits No. 9-No. 11)

As of December 20th, 2018, Plaintiff has not received any Requests For
Admissions; Requests For Documents; or Requests For Interrogatories from
Defendants.

1. With the fact discovery cutoff of Thursday, December 20, 2018 now
having come and went Plaintiff makes this Motion for Summary

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Judgment Pursuant To Federal Rules of Civil Procedure 56(A) and 56(c).


As of the date of this Motion Defendants have not responded to the
discovery request nor refuted and Admissions asserted by Plaintiff.

V. STANDARD OF REVIEW
A basic rule of appellate review requires this Court to construe the allegations
of a complaint liberally in favor of the pleader. On appeal, this Court must deem to
be true all material facts properly pled. A plaintiff need plead only those facts
showing that he may be entitled to some relief.

VI. LEGAL ARGUMENT

A. MOTION FOR SUMMARY JUDGMENT LEGAL STANDARD


Under F.R.C.P. Rule 56(c), summary judgment is proper "if the
pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a
matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548 (1986).
The plain language of Rule 56(c) "mandates the entry of summary
judgment, after adequate time for discovery and upon motion/'.

B. PLAINTIFF'S REQUEST FOR ADMISSIONS ARE DEEMED

ADMITTED AND THE FACTS ARE CONCLUSIVELY ESTABLISHED.

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Plaintiff respectfully requests that the Court deem the Requests for
Admissions admitted and conclusively established against Defendants in
the case, pursuant to the failure of Defendants to timely respond to the
discovery propounded by Plaintiff.

Federal Rules of Civil Procedure (F.R.C.P.) Rule 36(a)(3) states, in


pertinent part, "matter is deemed admitted tmless, within 30 days after
being served, the party to whom the request is directed serves on the
requesting party a written answer or objection addressed to the matter and
signed by the party or its attorney. A shorter or longer for responding may
be stipulated to under Rule 29 or be ordered by the court." By operation of
Rule 36, requests for admissions are automatically deemed admitted when
a party fails to timely respond to the discovery and the admissions are
deemed conclusively established in the case. Matters are deemed admitted,
even if the established matters are not ultimately true in the case. The
Federal Advisory Committee Notes state that the purpose of F.R.C.P. Rule
36 was to clarify that an admission under Rule 36 is comparable to an
"admission in pleadings or a stipulation drafted by counsel for use at trial,
rather than to an evidentiary admission of a party," and is therefore not
rebuttable by contradictory testimony of the admitting party. 4A Moore's
Fed. Prac. P. 36.01(7), at 36-13 (1974). A party's failure to respond, either to
an entire request or to a particular request, is deemed to be an admission of

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the matter set forth in that Request for Admission. BA Charles A. Wright,
Arthur R. Miller, and Richard L. Marcus, Federal Practice and Procedure§
2264 at 573 (2d Ed, 1994). Sanctions for failing to timely serve answers or
objections to Requests for Admissions are that all matters in the Requests
are deemed to have been admitted by the party in the case. Based on the
failure of Defendants to respond to the Requests for Admissions, the
following Admissions are deemed to be admitted by Defendants and
conclusively established in this case:

REQUEST FOR ADMISSION NO. 1:

Admit that the Deed of Trust is void ab initio as the rights, powers and
authorities are given to both the purported beneficiary and the Trustee
under the Deed of Trust.

REQUEST FOR ADMISSION NO. 2:

Admit that the Deed of Trust is not a valid lien against the Property.

REQUEST FOR ADMISSION NO. 3:

Admit that the Deed of Trust was never sold, granted, conveyed, transferred
or assigned to the RALI 2007-QHl as described in the PSA associated with
the RALI 2007-QHl Trust.

Ill

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REQUEST FOR ADMISSION NO. 4:

Admit that the Note associated with the Deed of Trust was never sold,
granted, conveyed, transferred or assigned to the RALI 2007-QHl as
described in the PSA associated with the RALI 2007-QHl Trust.

REQUEST FOR ADMISSION NO. 5:

Admit that the Deed of Trust was never sold, granted, conveyed, transferred
or assigned to the RALI 2007-QHl as described in the Prospectus associated
with the RALI 2007-QHl Trust.

REQUEST FOR ADMISSION NO. 6:

Admit that the Note associated with the Deed of Trust was never sold,
granted, conveyed, transferred or assigned to the RALI 2007-QHl as
described in the Prospectus associated with the RALI 2007-QHl Trust.

REQUEST FOR ADMISSION NO. 7:

Admit that the Deed of Trust was never sold, granted, conveyed, transferred
or assigned to the Residential Accredit Loans, Inc. as described in the PSA
associated with the RALI 2007-QHl Trust.

Ill
Ill
Ill

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REQUEST FOR ADMISSION NO. 8:

Admit that the Note associated with the Deed of Trust was never sold,
granted, conveyed, transferred or assigned to the Residential Accredit
Loans, Inc. as described in the PSA associated with the RALI 2007-QHl
Trust.

REQUEST FOR ADMISSION NO. 10:

Admit that the Deed of Trust was never sold, granted, conveyed, transferred
or assigned to the Residential Accredit Loans, Inc. as described in the
Prospectus associated with the RALI 2007-QHl Trust.

REQUEST FOR ADMISSION NO. 11:

Admit that the Note associated with the Deed of Trust was never sold,
granted, conveyed, transferred or assigned to the Residential Accredit
Loans, Inc. as described in the Prospectus associated with the RALI 2007-
QHl Trust.

REQUEST FOR ADMISSION NO. 12:

Admit that DBTCA acceptance of the Note into the RALI 2007-QHl Trust
after April 30, 2007 is an Ultra Vires Act.

Ill
Ill

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REQUEST FOR ADMISSION NO. 13:

Admit that DBTCA acceptance of the Deed of Trust into the RALI 2007-QHl
Trust after April 30, 2007 is an Ultra Vires Act.

REQUEST FOR ADMISSION NO. 14:

Admit that MERS selling, granting, conveying, transferring or assigning the


Deed of Trust directly into the RALI 2007-QHl Trust is an Ultra Vires Act.

REQUEST FOR ADMISSION NO. 15:

Admit that MERS selling, granting, conveying, transferring or assigning the


Note directly into the RALI 2007-QHl Trust is an Ultra Vires Act.

REQUEST FOR ADMISSION NO. 16:

Admit that any contributions made into the RALI 2007-QHl Trust after
April 30, 2007 violates the REMIC status of the RALI 2007-QHl Trust.

REQUEST FOR ADMISSION NO. 17:

Admit that DBTCA has committed Ultra Vires Acts directly associated with
the RALI 2007-QHl Trust.

Ill
Ill
Ill

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REQUEST FOR ADMISSION NO. 18:

Admit that MERS has committed Ultra Vires Acts directly associated with
the RALI 2007-QHl Trust.

REQUEST FOR ADMISSION NO. 19:

Admit that you have no proof of an Opinion of Counsel Letter for the
Residential

Accredit Loans, Inc. Mortgage Asset-Backed Pass-Through Certificates,


Series 2007- QHl authorizing the granting, conveying, transferring or
assigning the subject Deed of Trust dated December 15, 2006 to the
Residential Accredit Loans, Inc. Mortgage Asset-Backed Pass-Through
Certificates, Series 2007-QHl Trust.

REQUEST FOR ADMISSION NO. 20:

Admit that you have no proof of the Residential Accredit Loans, Inc.
Mortgage Asset-Backed Pass-Through Certificates, Series 2007-QHl has
issued a written acceptance of the subject Deed of Trust dated December 15,

2006.

None of the Appellees have refuted any of these Admissions and each
of these facts should be deemed conclusively established.

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C. PLAINTIFF RESTATES THE FOLLOW FROM PLAINTIFF

OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY

JUDGMENT ONLY TO REITERATE DEFENDANTS FRAUDS UPON

THE COURT.

Previously, in the Preliminary Statement of her Plaintiffs' Opposition


to Defendants' Motion to Dismiss Plaintiffs' Complaint (ECF Doc#lS)
Plaintiff stated "It is unclear what is more disturbing, the fraud upon the Court
Defendants' Counsel just committed with their gross misrepresentation of
Plaintiff's claims in an effort to misdirect the Court's attention or Defendants'
Counsel's nonsensical Motion to Dismiss that not only confirms Plaintiff's claims
but acts as a material admission that would Plaintiff to move forward seeking a
judgment on the pleadings. "(emphasis added)

Plaintiff avers that Defendants' Counsel, in their filing of the current


motion at bar (Defendants' Motion for Summary Judgment Pursuant to
Federal Rules of Civil Procedure 56(a) (ECF Doc#19)) have committed
another fraud upon the Court and in doing so have again provided prima
facie evidence that a true controversy exists requiring this matter to
continue through Discovery and on to Trial. Additionally, Plaintiff
respectfully requests the Court to issue an order to show cause why

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Defendants should not be sanctioned and that Robert H. Scott should be


referred to the Utah BAR Association for disciplinary action.

Defendants' Counsel, proclaimed in the Introduction of their


Defendants' Motion for Sm:pmary Judgment Pursuant to Federal Rules of
Civil Procedure 56(a) (ECF Doc#19 hereinafter "DMSJ") "Ms. Masterson's
complaint is predicated nearly entirely on her false assertion that Mr.
Cooper is not entitled to enforce the $1.4M promissory note she executed
and the deed of trust securing it. Mr. Cooper holds the original note,
indorsed in blank. Under the Uniform Commercial Code, as adopted by Utah, Mr.
Cooper is entitled to enforce the note. Under Utah statutes and precedent, Mr.
Cooper's right to enforce the note carries with it the right to enforce the deed of
trust. All of Ms. Masterson' s claims that there is some error in the recorded deed of
trust assignments are irrelevant." (emphasis added)

In support of Defendants' assertions that Mr. Cooper the original


note, indorsed in blank, Defendants' counsel Robert H. Scott submitted to
the Court a purported copy of the Note attached to the motion as Exhibit A
(see ECF Doc# 19-1) and a declaration stating that "On September 25, 2018
Akerman received, from Mr. Cooper, the original note executed by Ms. Masterson
that is the subject of this lawsuit. Upon receipt I inspected the original note and
instructed it to be placed in the firm's safe." and that "The document attached as

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exhibit A is a true and correct color copy of the original note." (see ECF
Doc# 19-2) (emphasis added)

Plaintiff respectfully directs the Court's attention to the purported


Note that Mr. Scott, as an officer of the court has declared is a "true and
correct color copy of the original note" that he, Mr. Scott, had inspected the
Note and attached to DMSJ as Exhibit A. The Court can plainly see that
Exhibit A", ECF Doc# 19-1, contains only one indorsement. (see ECF Doc#
II

19-1 Page No.7) attached hereto as Exhibit No.1. Plaintiff further directs the
Court's attention that nowhere contained with Exhibit A" (ECF Doc# 19-1) II

is there an Allonge containing any other indorsements.

Plaintiff now directs the Court's attention to the to the Defendants'


Initial Disclosures dated October 1, 2018 (attached hereto as Exhibit No.2)
Within the Defendants' Initial Disclosures Robert H. Scott includes the same
Declaration as attached to DMSJ Exhibit B (ECF Doc# 19-2) where he, as an
officer of the Court declares the following:

a) I am over eighteen years old and have personal knowledge of the facts
stated here. I am an attorney licensed to practice in Utah at the law firm
of Akerman, LLP in Salt Lake City, Utah.

b) On September 25, 2018 Akerman received, from Mr. Cooper, the original
note executed by Ms. Masterson that is the subject of this lawsuit. Upon
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receipt I inspected the original note and instructed it to be placed in the


firm's safe.

c) The document attached as exhibit A is a true and correct color copy of the
original note.
(see ECF Doc#25 Exhibit 2 Pages 21 & 22)

However, the purported Note that Mr. Scott instructed to be placed in


the firm's safe on Friday September 28, 2018 now, just three days later and
over the weekend, on October 1, 2018 now contains not one but two
endorsements. Plaintiff directs the Court's attention to the Mr. Scott's
assertion in DMSJ purporting "the original note, indorsed in blank". (see
ECF No. 19-1 Page 7) However, with the utmost reverence and respect to
the Court, Plaintiff points out that the purported Note in no longer indorsed
in BLANK, but while secured in the safe of the Ackerman Law Office over
the weekend, the first indorsement purports to be "PAY TO THE ORDER
OF RESIDENTIAL FUNDING COMPANY, LLC" and that the Note
miraculously now contains a second indorsement purporting to transfer
beneficial interest of Plaintiff's loan from Residential Funding Company,
LLC to "Deutsche Bank Trust Company America as Trustee. (see ECF
Doc#25 Exhibit 2 Page 28)

Ill
Ill

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In addition to the second newly found indorsement the purported


Note now has an Allonge purporting two additional indorsements. (see
ECF Doc#25 Exhibit 2 Page 29)

Plaintiff asserts that Defendants' Counsel's repeated securitization


references caused Plaintiff to question if Ultra Vires Acts committed by
Defendant Deutsche Bank Trust Company Americas, her being a stock
holder in Deutsche Bank, would adversely affect Plaintiff's investments and
that Defendants' Counsel's gross misrepresentations and deceptive conduct
should become part of the Court Record warranting sanctions and
disciplinary action.

By attempting to alter the Court's perception of character and material


nature of case at bar by proclaiming Plaintiff's claims are based on the II

theory that securitization of the loan invalidated the deed of trust", even
though the word securitization" doesn't appear in Plaintiff's Complaint a
II

single time nor does Plaintiff even come close to asserting that the Deed of
Trust is void as a result of any purported securitization of Plaintiff's loan,
Plaintiff is informed and believes, and based on such information and
beliefs, asserts that Defendants' Counsel has perpetrated a fraud upon the
Court that may warrant sanctions or even a referral to the BAR Association
for disciplinary action. As stated above, nowhere in Plaintiff's Complaint

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does the word securitization" ever appear, Plaintiff's assertions that the
11

subject Deed of Trust is void arises from the comingling and merging of the
roles; rights; and authorities of the Beneficiary and the Trustee under the
Deed of Trust rendering the Security Instrument a nullity having failed to
create a trust, not as a result of an assignment into a Securitized Trust as
misrepresented by Defendants' Counsel.

Defendants' Counsel further assertions that Plaintiff's Complaint


lacks sufficient factual allegations to 11
raise a right to relief above the
speculative level" 1 is beyond nonsensical as Defendants in fact confirm
Plaintiff's assertions that her loan has been sold without notification to
Plaintiff. Defendants' Counsel confirms Defendant Nationstar Mortgage
LLC' s receipt of Plaintiff's RESPA letter or Qualified Written Request
(QWR) dated August 9, 2012 asserted in Plaintiff's Complaint and identifies
11
it as Compl., <j[ 25". Defendants' Counsel further confirms Defendant
Nationstar Mortgage LLC' s response to Plaintiff's RESP A letter dated
August 9, 2012 and authenticates that Defendant Nationstar Mortgage
LLC's reply was attached to Plaintiff's Complaint as Exhibit No. 5. 2

1 Defendants' MID citing Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir.

2013) (internal quotation marks omitted). "A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged."
2 see Defendants' MID Pg. 3 "6. Nationstar responded to that letter on August 24, 2012. Compl., 'JI 26, Ex.

5 thereto."
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Defendants' Counsel does correctly assert that "The Court may


consider the note and other exhibits to the motion because the complaint
refers to these documents, the documents are central plaintiff's claims, and
the parties cannot reasonably dispute their authenticity. See Jacobsen v.
Deseret Book Co., 287 F.3d 936, 941-942 (10th Cir. 2002) (citing GFF Corp. v.
Assoc. Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997))."
Plaintiff respectfully directs the Court's attention to Exhibit No. 5 of
Plaintiff's Complaint, specifically pp 14-16 of Exhibit No. 5 (pp 74-66 of
Complaint).

As part of Defendant Nationstar Mortgage LLC's response to


Plaintiff's RESP A letter dated August 9, 2012, Defendant Nationstar
Mortgage LLC (hereinafter Nationstar) included a MERS MIN Summary
(Page 14 of Exhibit No. 5) and Milestones Report (Pages 15 & 16 of Exhibit
·No. 5) The MIN Summary confirms Plaintiff's loan as tracked on the MERS
System and the Milestones Report documents the complete chain of title
and transactional history of the Beneficial Ownership as well as the transfer
of Servicing Rights of Plaintiff's loan since inception.

This transactional history of Plaintiff's loan, documented by


Defendant Mortgage Electronic Registration Systems, Inc., (hereinafter
MERS) provided by Defendant Nationstar and confirmed as a document

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central to Plaintiff's claims, and the parties cannot reasonably dispute their
authenticity by Defendants' Counsel clearly shows Plaintiff's loan having
been sold numerous times, none of which ever recorded in the Summit
County Recorder's Office, not even transfers to entities or individuals that
are not members of MERS as required by MERS bylaws and Public Policy.

The failure to record an Assignment of Deed of Trust to entities or


individuals that are not members of MERS is Prima Fade Evidence that
Defendants have violated the Truth in Lending Act (hereinafter TILA) not
once but numerous times.

Plaintiff asserts that all of the above mentioned, specifically the fraud
upon the Court by Mr. Scott in submitting one version of the Note to the
Court on Friday September 28, 2018 and just three days later, over the
weekend, provided a completely different version of the Note now
containing not one indorsement in blank but four indorsements, none of
which were in blank, to the Plaintiff, clearly provides prima fade evidence
that Defendant BONY, as purported in the QWR Response by NationStar to
be the owner of Plaintiff's loan, is not in fact the true and correct owner and
that there is a true and genuine controversy that the Court must provide
declaratory relief.

Ill

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Defendants are NOT entitled to dismissal under Federal Rule of Civil


Procedure 12(b)(6) as the Complaint DOES contain sufficient factual
matters, accepted as true and authenticity confirmed by Defendants, stating
claims for relief that is beyond plausible on its face but in fact cites
documents that are central Plaintiff's claims and the parties not only cannot
reasonably dispute their authenticity but in fact have confirmed the
information that can be judicially noticed by this Court. Nor should
Defendants be granted a Motion for Summary Judgement in their favor as
the documents attached as exhibits do support Defendants' defenses but
reconfirm Plaintiff's claims raising them from plausible to a level of
probable.

As Defendants did not comply in any way shape or form with any of
the requirements of 15 U.S.C. § 1641(G), Plaintiff's claim should not be
dismissed as the consumer protections contained in the statute are liberally
interpreted, and creditors must strictly comply with TILA' s requirements.
See McDonald v. Checks-N-Advance, Inc. (In re Ferrell), 539 F.3d 1186, 1189
(9th Cir. 2008). On its face, 15 U.S.C. § 1640(a)(2)(A)(iv) imposes upon the
assignee of a deed of trust who violates 15 U.S.C. § 1641(g)(l) statutory
damages of "not less than $400 or greater than $4,000."

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As the Court unanimously held in Haines v. Kerner, 404 U.S. 519 (1972),
a pro se complaint, "however inartfully pleaded," must be held to "less
stringent standards than formal pleadings drafted by lawyers" and can only
be dismissed for failure to state a claim if it appears "beyond doubt that the
plaintiff can prove no set of his claim which

D. Federal Rule of Civil Procedure 36(a)(3).

Federal Rule of Civil Procedure 36(a)(3) states that "[a] matter is admitted
unless, within 30 days after being served, the party to whom the request is directed
serves on the requesting party a written answer or objection addressed to the matter
and signed by the party or its attorney.

Appellant asserts that the lower court erred when it ruled that "Defendants
effectively withdrew any such admissions." (emphasis added) as Appellees never
filed a Motion to have the Admissions withdrawn. Appellant further asserts that the
lower court erred when it used the analysis of "In Bergemann, the court faced a
similar situation as the facts present here: the plaintiff represented the requests for
admission had been mailed, but the defendant claimed it never received them. The
court noted that the defendant included an affidavit with its opposition to the
plaintiffs motion for summary judgment confirming non-receipt of the requests,
which effectively acted as a motion to withdraw the admissions."
Ill
Ill
Ill
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VII. CONCLUSION
For all of the aforementioned reasons, Appellant respectfully that the
District Court's Honorable Robert J. Shelby erred in filed his Order dated September
30, 2019, entered into the District Court's docket as ECF No.40, granting Appellees'
Motion to Dismiss and that Summary Judgement be GRANTED in favor of the

Plaintiff or in the alternative grant Appellant leave to amend/correct her

Complaint to address any deficiencies the Court may see and the include the

newly discovered violations of frauds upon the Court by Defendants and

their counsel.

Dated this 31 st day of December, 2019

Cwe~Aȣ0
CAROLMA~ ON
1566 HILLCREST AVE.
GLENDALE, CA 91202
Phone: (323) 864-0778
Masterson.Hillcrest@outlook.com
Plaintiff Pro Se

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CERTIFICATE OF COMPLIANCE
I hereby certify that this brief has been prepared using proportionately one and half
spaced 14-point Times New Roman typeface. According to the "Word Count"
feature in my Microsoft Word for Windows software, this brief contains 5,563 words
up to and including the signature lines that follow the briefs conclusion. I declare
under penalty of perjury that this Certificate of Compliance is true and correct and
that this declaration was executed on 31 st day of December, 2019.

Dated this 31 st day of December, 2019

(lteAA
CAROLMAS~
1566 HILLCREST AVE.
GLENDALE, CA 91202
Phone: (323) 864-0778
Masterson.Hillcrest@outlook.com
Plaintiff Pro Se

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CERTIFICATE OF SERVICE

I hereby certify that on this 31 st day of December, 2019, I caused to be served


a copy of the foregoing APPELLANT'S OPENING BRIEF on the following
person(s) in the manner indicated below at the following address(es):

AKERMANLLP PITE DUNCAN LLP


Jason T. Baker Peter J. Salmon
j ason.baker@akerman.com ecfutd@aldridgepite.com
170 S MAIN ST STE 725 4375 JUTLAND DR STE 200
SALT LAKE CITY, UT 84101 SAN DIEGO, CA 92123
101 Montgomery Street, Suite 1950 Telephone: (858) 750-7600
Telephone: (801) 907-6900

byCM/ECF
by Electronic Mail
by Facsimile Transmission
X by First Class Mail
by Hand Delivery
by Overnight Delivery

Dated this 31 st day of December, 2019

) (\
"~i-v 'cvtn,u;ft
Ellen Dorsett

Opening Brief Masterson v. Nationstar Mortgage, et al Docket No. 19-04146


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