1 Samuel Salmon Judge Rosanna Malouf Peterson

Roxy Salmon
2 Salmon Residence
917C Philpott Rd.
3 Colville, WA 99114
Telephone: 509-684-8841
4 Email: srslunop@gmail.com
5

6
UNITED STATES DISTRICT COURT
7
EASTERN DISTRICT OF WASHINGTON
8
AT SPOKANE
9

10 )
Samuel Salmon and Roxy Salmon, )
11 ) Case No. 2:10-CV-10-446-RMP
Plaintiff, )
12 ) RESPONSIVE MEMORANDUM TO
vs. ) DEFENDANTS' MOTION TO
13 ) DISMISS
Bank of America, Recontrust, MERS, )
14 )
Merscorp Inc., )
15 )
Defendant )
16

17

18
RESPONSIVE MEMORANDUM REGARDING THE
19
DEFENDANTS’ MOTION TO DISMISS
20

21
Defendants Bank Of America et al, Are Not
22
Real Parties In Interest
23
1) The Salmons the owners and residence of their property at 917C Philpott
24
Road Colville, WA 99114 are the only real party in interest, in this action
25

Salmon Residence
Response To Defendants Motion To Dismiss - 1 917C Philpott Rd.
No. 2 :10-CV-00446-RMP Colville, WA 99114
Telephone: 509-684-8841
1 and require any parties who claim standing in this action, to present any
2 proof of standing as a real party in interest through real and legal
3 documents pursuant Fed. R. Civ. P. 17 (a) Real Party in Interest. An action
4 must be prosecuted in the name of the real party in interest.
5 a. In the letter from Bank of America’s Office of President and CEO
6 Exhibit (G) the undersigned Stephen Tome claims “The current
7 owner of the note is Federal National Mortgage Association”.
8 b. The Note Salmons executed with Countrywide Bank in October 20
9 2007, has been admittedly sold and its holder in due course is under
10 investigation by the Comptroller of Currency Case# 01306002.
11 c. The defendants Bank of America et al, are admittedly not the note
12 owner, or are they the holder in due course, yet they have attempted
13 to defraud the Salmons with empty claims of the loans existence.
14 d. The defendants Bank of America, et al, quite simply put, have not
15 nor ever had proof of the loan or its security with the Salmons, in
16 which they could enforce, or foreclosure nor have they provided the
17 required service disclosure agreement to demand payment thereof.
18 The only documents the defendants have provided are forgeries
19 and/or facially defective and fraudulent filings, Exhibits (G), (H),
20 (D), and defendants Exhibit B.
21 The Hidden Instrument
22 2) The defendants’ arcane securities processing and recording system allow
23 very limited access to the whereabouts of the loan. The Salmons have been
24 unable to determine the whereabouts of the note. Therefore the note seems
25 a logical suspect of securitization.

Salmon Residence
Response To Defendants Motion To Dismiss - 2 917C Philpott Rd.
No. 2 :10-CV-00446-RMP Colville, WA 99114
Telephone: 509-684-8841
1 “Securitization” a Brief Description
2 a. A negotiable instrument can only be in one of two states a loan
3 before it undergoes securitization, and a stock after it undergoes
4 securitization not both at the same time.
5 i. It can either be a loan (and treated and governed as such), or a
6 stock and would be regulated by the SEC as a stock, and
7 thereby under the jurisdiction of the SEC and their laws.
8 ii. Securitization of a loan or converting the note to a stock
9 tradable on the stock market separates the note from its
10 security or deed of trust. It also removes the liability of the
11 loan from the loan originators accounting ledger and is treated
12 as an asset.
13 b. The defendants Bank of America, et al, have no documents
14 supporting their claim as “Beneficiary”, in the alleged
15 “CORPORATION ASSIGNMENT OF THE DEED OF TRUST”
16 Exhibit (D) as required pursuant RCW 61.24.005.
17 c. In order to establish prima facie entitlement to summary judgment in
18 a foreclosure action, a claimant must 1) submit the mortgage and 2)
19 unpaid note, along with 3) evidence of default. Capstone Business
20 Credit, LLC v. Imperial Family Realty, LLC, 70 AD3d 882.
21 MERS, the “Ghost” Beneficiary with NO Standing
22 3) MERS is listed as “the beneficiary” on the Deed of Trust, but has no
23 evidence, of claim as a “holder of the Note” which is the requirement of
24 the beneficiary for the Deed of Trust clearly defined in RCW 61.24.005 (2)
25 “"Beneficiary" means the holder of the instrument or document evidencing

Salmon Residence
Response To Defendants Motion To Dismiss - 3 917C Philpott Rd.
No. 2 :10-CV-00446-RMP Colville, WA 99114
Telephone: 509-684-8841
1 the obligations secured by the deed of trust.” This code is a real and
2 binding authority defining the legal beneficiary of the Note and specifically
3 an absolute requirement for the processing of a foreclosure.
4 a. Therefore without MERS ever having evidence of any beneficial
5 interest in the loan, or being a holder in due course pursuant RCW
6 61.24.005 (2), UCC§ 3-302, and UCC§ 3-203 it has no legal
7 standing act as a beneficiary in any capacity of interest, to transfer,
8 assign or otherwise.
9 b. MERS has never been an equitable or legal party of interest for the
10 loan, its security, or in this action, and has never had rights to the
11 loan by law, principle, fact, or otherwise.
12 c. It begs to question that a person with real interest in a negotiable
13 instrument would illegitimately sign over their interest to a
14 completely non-interested party who has no authority to act in any
15 capacity, and is responsible to none; this is why these laws are
16 binding and unequivocally valid and specific for this subject matter.
17 d. In addition Salmons feels it necessary to emphasize that all three
18 conditions must be met, not just produce the alleged evidence of
19 default before summary judgment can be made for the defendant.
20 i. A party cannot foreclose on a mortgage without having title,
21 giving it standing to bring the action. (See Kluge v. Fugazy,
22 145 AD2d 537, 538 (2nd Dept 1988 ), holding that a
23 “foreclosure of a mortgage may not be brought by one who
24 has no title to it and absent transfer of the debt, the assignment
25 of the mortgage is a nullity”. Katz v. East-Ville Realty Co.,

Salmon Residence
Response To Defendants Motion To Dismiss - 4 917C Philpott Rd.
No. 2 :10-CV-00446-RMP Colville, WA 99114
Telephone: 509-684-8841
1 249 AD2d 243 (1st Dept 1998), holding that defendants
2 attempt to foreclose upon a mortgage in which he had no legal
3 or equitable interest is without foundation in law or fact”.
4 e. The Salmons being the only real party of interest in this action, are
5 not impeding a legal foreclosure, and have legal and rightful
6 authority under these laws to demand, and require proof of debt or
7 obligation, to ensure they are not defrauded, as the victim of a scam,
8 and/or forgery. Therefore these laws are true, right, and proper for
9 these reasons.
10 Breach Of Fiduciary Duty
11 4) The Trustee Recontrust is biased in its duties in regards to identifying the
12 beneficiary and proof of the note, first because Bank of America owns the
13 alleged trustee Recontrust and the alleged beneficiary BAC Home Loans
14 Servicing.
15 a. The trustee Recontrust has also breached its fiduciary duty by not
16 having proof the alleged beneficiary is the owner of the note
17 pursuant RCW 61.24.030 (7)(a) “trustee shall have proof that the
18 beneficiary is the owner of any promissory note”
19 b. The trustee has also violated his or her duty under RCW 61.24.010
20 (3) The trustee or successor trustee shall have no fiduciary duty or
21 fiduciary obligation to the grantor or other persons having an interest
22 in the property subject to the deed of trust.
23 c. RCW 61.24.020 “No person, corporation or association may be both
24 trustee and beneficiary under the same deed of trust.”
25

Salmon Residence
Response To Defendants Motion To Dismiss - 5 917C Philpott Rd.
No. 2 :10-CV-00446-RMP Colville, WA 99114
Telephone: 509-684-8841
1 d. The Notice of Default lists in paragraph “K” “2. The creditor to
2 whom the debt is owed: BAC Home loan servicing, LP.” For the
3 record, BAC Home loan servicing, LP does not nor ever had proof it
4 was “the creditor.”
5 e. Recontrust issued the “Notice of Default” marked Exhibit (H) which
6 was post marked SEP 01, 2010, and listing the principle balance of
7 the debt as $409,422.53, this amount is not reflected in the attached
8 forged note which exposes even more fraud.
9 The Case of the “FAKE” Notary
10 5) The “Corporation Assignment of Deed of Trust” page 1 of 2 referenced in
11 the Salmons pleading Exhibit D shows the signature of the assignment
12 dated 9/17/10 by the undersigned G. Hernandez for the alleged Beneficiary
13 Mortgage Electronic Registration Systems, or M.E.R.S. and the notary
14 stamp was dated SEP 20, 2010 three days later, which is impossible
15 without a time machine, hereby rendering this document facially defective,
16 void, worthless, and evidence of fraud.
17 a. Again the same “Corporation Assignment of Deed of Trust” page 2
18 of 2 shows the alleged new beneficiary as BAC Home Loans
19 Servicing, LP FKA Countrywide Home Loans servicing LP, notice
20 the same person for both MERS the undersigned G. Hernandez is
21 also the undersigned for BAC Home Loans Servicing, LP and again
22 null and void with the notary stamp dated three days later. BAC
23 Home Loans Servicing, LP is a subsidiary of Bank of America and
24 neither of these parties has evidence of standing in this case, or
25

Salmon Residence
Response To Defendants Motion To Dismiss - 6 917C Philpott Rd.
No. 2 :10-CV-00446-RMP Colville, WA 99114
Telephone: 509-684-8841
1 “Note Holder”. Again this voids and nullifies this assignment in its
2 entirety.
3 b. The only security for the Note is the deed of trust. The Note cannot
4 be enforced, or foreclosed on without its legal deed of trust and
5 assigns.
6 The Rights of A Loan Servicer
7 6) In the letter from Bank of America’s Office of President and CEO Exhibit
8 (G) the undersigned Stephen Tome claims that according to their “internal
9 servicing system as well as MERS that Bank of America is the current
10 servicer of the loan.” Assuming these servicing records are legitimate (and
11 I’m not) Bank of America et al, as “a servicer of a mortgage loan shall not
12 be treated as the owner of the obligation” pursuant to 75 FR 58501 Subpart
13 E—Special Rules for Certain Home Mortgage Transactions Revise §
14 226.39 read as follows:
15 a. (a)(1)For purposes of this section, a servicer of a mortgage loan
16 shall not be treated as the owner of the obligation if the servicer
17 holds title to the loan, or title is assigned to the servicer, solely
18 for the administrative convenience of the servicer in servicing
19 the obligation.
20 b. The defendants Bank of America et al, were required to disclosed the
21 mortgage transfer before collecting payments on the note from the
22 Salmons pursuant to 75 FR 58501 Subpart E—Special Rules for
23 Certain Home Mortgage Transactions Revise § 226.39 read as
24 follows:
25

Salmon Residence
Response To Defendants Motion To Dismiss - 7 917C Philpott Rd.
No. 2 :10-CV-00446-RMP Colville, WA 99114
Telephone: 509-684-8841
1 c. (2)(b) Disclosure required. Except as provided in paragraph (c)
2 of this section, each covered person is subject to the
3 requirements of this section and shall mail or deliver the
4 disclosures required by this section to the consumer on or before
5 the 30th calendar day following the date of transfer.
6 d. (2)(b)(2) The date of transfer. For purposes of this section, the
7 date of transfer to the covered person may, at the covered
8 person’s option, be either the date of acquisition recognized in
9 the books and records of the acquiring party, or the date of
10 transfer recognized in the books and records of the transferring
11 party.
12 i. Payments were collected, and the “Notice of Default” was
13 issued, by the alleged trustee Recontrust, without a service
14 agreement disclosure, or the deed of trust assignment.
15 ii. The alleged Corporation Assignment of the Deed of Trust was
16 filed in the Stevens county recorders office on September 23,
17 2010 three weeks AFTER the notice of default, and almost a
18 year and a half after Bank of America began illegally billing
19 the Salmons.
20 iii. In this case a service agreement disclosure and the deed of
21 trust assignment are necessary to issue the notice of default, or
22 enforce the collection of a loan for the beneficiary.
23

24

25

Salmon Residence
Response To Defendants Motion To Dismiss - 8 917C Philpott Rd.
No. 2 :10-CV-00446-RMP Colville, WA 99114
Telephone: 509-684-8841
1 Removal of Charges
2 7) Salmons in their original pleading listed forgery charges. These charges are
3 hereby removed from this civil action and are being pursued in their proper
4 venue.
5 CLAIM OF RELIEF
6 8) The Salmons are the real parties of interest in this action and ask court to
7 order all other parties without proof of standing to stand down.
8 a. The defendants Bank of America et al, have no evidence of debt in
9 this matter therefore have no standing for a claim, to enforce,
10 foreclose, or even present themselves as a party of interest in this
11 action must hereby be removed.
12 b. The defendants have not provided the required disclosure of the
13 service agreement evidencing their legal right to collect on the loan.
14 i. Therefore in the face of the defendants’ empty, and void
15 claims, and without standing, the Salmons demand:
16 1. Quiet title, the defendants shall in writing remove any
17 and all claims on the Salmons property.
18 2. Reclamation of all monies fraudulently collected by
19 defendants Bank of America et al, and its agents, from
20 the Salmons. The amount owed by Bank of America is
21 $72,739.45 + interest case preparation, mailing and
22 filing fees, or Seventy Two Thousand, Seven hundred
23 and thirty nine dollars and 45 cents plus case
24 preparation, mailing, and filing fees.
25

Salmon Residence
Response To Defendants Motion To Dismiss - 9 917C Philpott Rd.
No. 2 :10-CV-00446-RMP Colville, WA 99114
Telephone: 509-684-8841
 DECLARATION
1

2 I, Samuel Salmon hereby declare under penalty of perjury under the laws of the
3 United States and the State of Washington that on the 12th day of January, 2011,
4 all undersigned statements to be true and correct, and I, Samuel Salmon am
5 competent to state the matters set forth herein, that the contents are true, correct,
6 complete, and certain, admissible as evidence, and reasonable and just in
7 accordance with Affiant’s best firsthand knowledge and understanding.
8

9 CERTIFICATE OF SERVICE
10 I hereby certify that on the 13th day of January, 2011, I filed the foregoing
11 document with the Clerk of Court. I certify that a true and correct copy of said
12 Motion was sent to all case participants in the following manner: certified mail.
13 John S. Devlin III
14 Lane Powell PC
1420 Fifth Avenue, Suite 4100
15 Seattle, Washington 98101-2338
16
Telephone: 206-223-7000

17

18 Dated this 13th day of January, 2011

19

20
Samuel Salmon
21 Salmon Residence
917C Philpott Rd.
22 Colville, WA 99114
Samuel Salmon
23 Roxy Salmon

24

25

Salmon Residence
Response To Defendants Motion To Dismiss - 10 917C Philpott Rd.
No. 2 :10-CV-00446-RMP Colville, WA 99114
Telephone: 509-684-8841