IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT IN AND FOR LEE COUNTY, FLORIDA CIVIL DIVISION

US BANK NATIONAL ASSOCIATION, AS TRUSTEE, ON BEHALF OF THE HOLDERS OF THE CSMC MORTGAGE BACKED PASS THROUGH CERTIFICATES, SERIES 2007-1, Plaintiff VS FRANK KRAWCZYK, Defendants __________________________________________/ MANDATORY JUDICIAL NOTICE AS APPLICABLE TO PRO SE LITIGANTS As applicable, the Defendant hereby states and mandatory request JUDICIAL NOTICE of the following cases in support of the Defendants self representation: Caldwell v Miller, 790 F. 2d 589, 595 (7th Cir. 1986) Pro Se litigants are not held to the stringent standards applied to formally trained members of the legal profession, and their pleadings are to be liberally construed. The United States Supreme Court, in Haines v Kerner 404 U.S. 519 (1972), said that all litigants defending themselves must be afforded the opportunity to present their evidence and that the Court should look to the substance of the complaint rather than the form. In Platsky v CIA, 953 F.2d 26 (2nd Cir. 1991), the Circuit Court of Appeals allowed that the District Court should have explained to the litigant proceeding without a lawyer, the correct form to so that he could have amended his pleadings accordingly. Defendant(s) respectfully reserves the right to amend this complaint. CASE NO: 09-CA-070151

BEFORE: JUDGE JOSEPH C. FULLER

DEFENDANTS MOTION IN REPLEVIN in the nature of a writ of right and writ of possession TO SEQUESTER THE GENUINE ORIGINAL SECURITY NOTE INTO THE RECORDS OF THE COURT AND DEFENDANTS PURSUANT TO PLAINTIFFS CLAMS COMES NOW, FRANK KRAWCZYK, Defendant, by and through his counsel and file this his MOTION IN REPLEVIN IN DETINET in the nature of a writ of right and writ of possession , TO SEQUESTER THE GENUINE ORIGINAL PROMISSORY NOTE INTO THE RECORDS OF THE COURT AND DEFENDANTS PURSUANT TO PLAINTIFFS CLAIM, to which the Plaintiff claims to be in possession to the Security Note that was acquired in a currency exchange with the Defendant Frank Krawczyk, for the real property. The Defendants moves this Court to order, in the nature of a writ of right, that the Genuine Original SECURITY NOTE, be sequestered into the hands of this Honorable Court, due to the nature of US Bank National Association (herein after Plaintiff) and their attorneys claims that Plaintiff, is the true party of interest and has possession, has state a claim under the filed complaint for foreclosure. Plaintiff, is attempting to confiscate and/or place a claim against the Defendants or his real property through a fraudulent judicial foreclosure procedure based on the felonious acts of filing false and/or forged documents and claims the Lee County Public Records and the Court. If Plaintiff, and their attorney are successful in the foreclosure proceedings against the Defendant, via the use of fraudulent documentation and their felonious acts then the Plaintiff would have been successful. Therefore, the relinquishment and possession of the Genuine Original Promissory NOTE should be turned over to the Court. See: JAMES F. JOHNSTON and SANDRA JOHNSTON, Appellants, v. JEANNE HUDLETT, Appellee. No. 4D08-4636 [March 31, 2010] DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA, FOURTH DISTRICT, January Term 2010 Moreover, in the case of original mortgages and Promissory notes, they are not merely exhibits but instruments which must be surrendered prior to the issuance of a judgment. The judgment takes the place of the Promissory note. Surrendering the note is essential so that it cannot thereafter be negotiated. See Perry v. Fairbanks 2

Capital Corp., 888 So. 2d 725, 726 (Fla. 5th DCA 2004). The judgment cancels the note.

This Motion is supported by the laws and Constitution of Florida; and, the laws under Chapter 78 (Replevin and Replevin Action), the prior rulings of courts, the docket of this case, each of which are incorporated by this reference as if fully set forth, and for each of which the Defendant asks this Court to take judicial notice thereof. Additionally, the Defendant asserts his rights and seeks relief under the Laws of Voided Judgment. This Motion is further supported the accompanying Memorandum of Points, Authorities and Law. MEMORANDUM OF POINTS, AUTHORITIES AND LAW

The Defendant is filing this Replevin in Detinet contemporaneously within this Acton as an action to invoke The Defendants Rights protected pursuant to Florida Law and Floridas Constitution, especially The Defendants Due Process of Law and Property Rights. The Defendant states his right to claim(s) pursuant to, applicable laws of the State of Florida that Plaintiff may not sell or possess the Defendants real property; gain Summary Judgment etc., until this action is concluded. In addition, the Defendant also seeks relief under the Law of Voided Judgment.

Black's Law Dictionary, Sixth Edition, page 1574 VOIDED JUDGEMENT: One which has no legal force or effect, invalidity of which may be asserted by any person whose rights are affected at any time and at any place directly or collaterally. Reynolds v. Volunteer State Life Ins. Co., Tex.Civ.App., 80 S.W.2d 1087, 1092. One which from its inception is and forever continues to be absolutely null, without legal efficacy, ineffectual to bind parties or support a right, of no legal force and effect whatever, and incapable of confirmation, ratification, or enforcement in any manner or to any degree. 3

Judgment is a "void judgment" if court that rendered judgment lacked jurisdiction of the subject matter, or of the parties, or acted in a manner inconsistent with due process. Klugh v. U.S., D.C.S.C., 610 F.Supp. 892, 901.

Pursuant to the laws of Voided Judgment, the Defendant hereby presents to the court, on its face, that Plaintiff was never the true party of interest in the foreclosure action which was instituted before the court. Via the retainer and production of a forensic audit of the Defendants loan, to which also consist of a Bloomberg Report; upon examination of the report, the following are the findings which are supported by the affidavits, for Chandra Anand-Manager, Licensed Securitization Auditor, and William J. Paatalo, Private Investigator, PSID #49411:
On 10/19/2006, the Defendant, executed a negotiable promissory note and a security interest in the form of a MORTGAGE in the amount of $ 650,000.00. This document was filed as document number (2006000410168) in the Official Records of Lee County, FL. The original lender of the promissory note is U.S. Mortgage Corp. of New Jersey. Mortgage Electronic Registration Systems, Inc. (hereafter MERS) is a separate corporation acting solely as a nominee for Lender and its assigns.

ASSIGNMENT OF MORTGAGE: An Assignment of MORTGAGE dated 09/11/2006 was provided without any recording details in the Lee County. The assignment from MERS to CSMC Mortgage-Backed

Pass-Through Series 2007-1 was filed approximately three (3) years after the loan was securitized into the Trust as evidence by the "Pooling & Servicing Agreement".

MERS The MORTGAGE shows MIN 1000597-2750000202-3 and MERS SERVICER ID website https://www.mers-servicerid.org/sis/search indicates that Select Portfolio Servicing Inc.

Utah is the servicer but no information is provided on the Investor. The status is "INACTIVE".

ENTITIES The Florida Secretary of State Business Entity websites shows that U.S. Mortgage Corp of New jersey, Inc. has an INACTIVE status.

SECURITIZATION

Securitization is a financial practice of pooling various types of contractual debt such as residential mortgages, commercial mortgages, auto loans or credit card debt obligations (Liquid Assets) and selling said debt as bonds, pass through securities, or Collateralized mortgage

obligations (CMOs), to various investors. Securities backed by mortgage receivables are called 'mortgage-backed securi- ties'.
"

It involves a series of independent "true sales" and financial

engineering by a number of dif- ferent parties in order to transform the pooled mortgages into a security owned by investors and rep- resented by a Trustee. The process of securitization is complicated, and is highly dependent on the jurisdiction upon which the process is conducted.

The securitization trusts include government-sponsored enterprises and private entities which may offer credit enhancement features to mitigate the risk of pre-payment and default associated with these mortgages. Parties attempting to foreclose a securitized loan are often not

legally entitled to do so (they are not the real parties of interest and have no standing to foreclose), and can be chal- lenged on several fronts. Tracking what happens to the note and the deed of trust during the securit- ization process will expose the problems and issues.

PROPER SECURITIZATION When a loan is securitized, it is bundled with other loans and ends up in a trust, whose shares are sold to investors (Certificate holders). To achieve the goals of the securitization, and to avoid dou- ble taxation, a loan must follow an exact process with a fixed period of time. This process requires that there are true sales and an unbroken chain of assignments between all parties in the process and that all loans enter the trust by the Closing date, which is like a steel door that CANNOT be opened after the closing date.

POTENTIAL ISSUES With securitization, the mortgage (note and Mortgage) is converted into something different from what was represented to the homeowner, and the very process of securitization creates chain of title problems in both the note and the Mortgage.

The NOTE was sold, transferred to several institutions as per Pooling & Servicing Agreement filed
with Securities & Exchange Commission on 05/01/2007 under SEC File # 333-135481-13, securit- ized underwent Credit Enhancement. No recorded endorsement found in the Lee County Records. TRUST SALES The "true sales" are at the heart of securitization to ensure that the investors have the unequivocal legal right of ownership to the mortgage assets and receivables in the trust. The financial engineer- ing begins with the mortgages in the pool being grouped into classes based

upon the types of mort- gages and the borrowers' credit. The borrowers' credit is then enhanced and rated by credit ratings agencies such as S&P and Moody's in a process called credit enhancement. These credit enhanced mortgages are repackaged and then sold to the investors. The investors then purchase insurance in the event that the mortgage defaults. Investors evidence their ownership in the mortgages through certificates (notes), or debt agreements (bonds), or rights to ownership (derivatives). Through the true sales process, the investors' ownership is protected from potential bankruptcy or claims made against the originating lender or interim owners of the mortgage(s). If any person or entity claims to have the original promissory note in their possession, the same may be produced in the court for inspection and probably is a counterfeit security . As evidenced by the findings and the explanation above, the Note was sold to the trust (CSMC MORTGAGE- BACKED PASS-THROUGH CERTIFICATES,

SERIES 2007-1) and securitized . You can make a carrot juice from the carrots but cannot convert that juice back to carrots. It is impossible. The claimant may be compelled to file a B10 (Proof of Claim) under penalty of perjury pursuant to 18 USC 152 and 3571 in the Bankruptcy Court to establish their claim.

FINDINGS SPECIFIC TO THE DEFENDANT 1. The NOTE in this case was sold, transferred to CSMC MORTGAGE-BACKED PASS- THROUGH CERTIFICATES, SERIES 2007-1 as per the Pooling & Servicing Agreement dated 01/01/2007. The loan went into a Credit Enhancement. The original Promissory Note has not been presented. Based on the 8-K filings with SEC by CSMC Mortgage-Backed Pass-Through Certificates, Series 2007-2, the Note should have at least six endorsements: b. The Chain of transfer is not perfect and raises many legal questions. See Ibanez case of Massachusetts Supreme Judicial Court- January 2011. If the mortgages were not properly transferred and recorded in the Lee County Land Records in the securitization Process, then the party bringing the foreclosure does not in fact own the mortgage and therefore lacks standing to foreclose.

2.

c.

d. e.

The Chain of Transfer of Note is broken and is defective. Following your bankruptcy, obtain a certified copy of B10 (Proof of Claim) filed by the Claimant.

If the Promissory Note is owned by thousands of parties, then there is no single party that can lay a claim on the Promissory Note. If no one party can be named 'the beneficiary or the 'the lender', then the promissory note is defective. If the loan assignment was not properly done, then it cannot be "fixed". A lender cannot simply reverse engineer the title of the Deed of Trust/Mortgage or a Promissory Note to make it better. Once an instrument is defective, it cannot be used to collect the debt. If the terms of the Deed of Trust/Mortgage have violated the State Laws, then it too is defective. If it is defective, then it cannot be used to give the lender the "due on sale" clause. The terms of the Mortgage must be respected in whole. One cannot pick and choose as to which part to respected and which part is to ignore.

DISCUSSION
The creation of MERS changed the lending process. Instead of the lender being the Beneficiary on the Mortgage, MERS was now named as either the Beneficiary or the Nominee for the Beneficiary on the Mortgage. The concept was that with MERS assuming this role, there would be no need for Assignments of the Mortgages, since MERS would be given the power of sale through the Mortgage The naming of MERS as the Beneficiary meant that certain other procedures had to change. This was a result of the Note actually being made out to the lender, and not to MERS. Before explaining this change, it would be wise to explain the Securitization process. As mentioned previously, Securitization and MERS required many changes in established practices. These practices were not and have not been codified, that is why they are major points of contention today. One of the first issues to be addressed was how MERS might foreclose on a property.

This was solved through an unusual practice. MERS has only 44 employees. They are all overhead, administrative or legal personnel. How could they handle the load of foreclosures, Assignments, etc. to be expected of a com- pany with their duties and obligations? When a lender, title company, foreclosure company or other firm signed up to become a member of MERS, one or more of their people were designated as Corporate Officers of MERS and given the title of either Assistant Secretary or Vice President. These personnel were not employed by MERS, nor received income from MERS. They were been named Officers solely for the purpose of signing foreclosure and other legal documents in the name of MERS. (Apparently, there are some agreements which authorize these people to act in an Agency manner for MERS.)

This solved the issue of not having enough personnel to conduct necessary actions. It would be the Servicers, Trustees and Title Companies conducting the day-to-day

operations needed for MERS to function. As well, it was thought that this would provide MERS and their Corporate Officers with the le- gal standing to foreclose.

However, this brought up another issue that now needed addressing:

When a Note is transferred, it must be endorsed and signed, in the manner of a person sign- ing his paycheck over to another party. Customary procedure was to endorse it as Pay to the Order of and the name of the party taking the Note and then signed by the endorsing party. With a new party holding the Note, there would now need to be an Assignment of the Debt. This could not work if MERS was to be the foreclosing party. The promissory note was made payable to U.S. Mortgage Corp. of New Jersey. No

recorded doc- ument suggests that it has been indorsed to MERS or any other named entity. Once a name is placed into the endorsement of the Note, then that person has the beneficial interest in the Note. Any attempt by MERS to foreclose in the MERS name would result in a challenge to the foreclosure since the Note was owned by ABC and MERS was the Nominee/Beneficiary. MERS would not have the legal standing to foreclose, since only the person of interest would have such authority. So, it was decided that the Note would be endorsed in blank, which effec- tively made the Note a Bearer Bond, and anyone holding the

Note would have the legal stand- ing to enforce the Note under Uniform Commercial Code. This would also suggest that Assign- ments would not be necessary. MERS has recognized the Note Endorsement problem and on their website, stated that they could be the foreclosing party only if the Note was endorsed in blank. If it was endorsed to another party, then that party would be the foreclosing party. The Note in this case is blank but the party foreclos- ing is U.S. Bank, N.A. as Trustee for CSMC Mortgage-Backed Pass-Through Certificates, Series 2007-2. Obviously, they lack standing. As it is readily apparent, the above statute would suggest that Assignment is a requirement for enforc- ing foreclosure. The question now becomes as to whether a Note Endorsed in Blank and transferred to different enti- ties as indicated previously does allow for foreclosure. If MERS is the foreclosing authority but has no entitlement to payment of the money, how could they foreclose? This is especially true if the true beneficiary is not known. Why raise the question of who the true beneficiary is? Again, from the MERS website..

On MERS loans, MERS will show as the beneficiary of record. Foreclosures should be commenced in the name of MERS. To effectuate this process, MERS has allowed each servicer to choose a select number of its own employees to act as officers for MERS. Through this process, appropriate documents may be executed at the servicers site on behalf of MERS by the same servicing employee that signs foreclosure documents for non-MERS loans. Until the time of sale, the foreclosure is handled in same manner as non-MERS fore- closures. At the time of sale, if the property reverts, the Trustees Deed Upon Sale will fol- low a different procedure. Since MERS acts as nominee for the true beneficiary, it is important that the Trustees Deed Upon Sale be made in the name of the true beneficiary and not MERS. Your title company or MERS officer can easily determine the true beneficiary. Title companies have indicated that they will insure subsequent title when these procedures are followed. Direct from the MERS website. They admit that they name people to sign doc- uments in

the name of MERS. Often, these are Title Company employees or others that have no knowledge of the actual loan and whether it is in default or not. Even worse, MERS admits that they are not the true beneficiary of the loan. In fact, it is likely that MERS has no knowledge of the true beneficiary of the loan for whom they are

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representing in an Agency relationship. They admit to this when they say Your title company or MERS officer can easily determine the true beneficiary. In the case of MERS, the Note and the Mortgage are held by separate entities. This very simple statement poses major issues. To easily understand, if the Mortgage and the Note are not together with the same entity, then there can be no enforcement of the Note. The Mort- gage enforces the Note. It provides the capability for the lender to foreclose on a property. If the Deed is separate from the Note, then enforcement, i.e. foreclosure cannot occur. The following ruling summarizes this nicely.

MANDATORY JUDICIAL NOTICE REQUIRED

In Saxon vs Hillery, CA, Dec 2008, Contra Costa County Superior Court, an action by Saxon to foreclose on a property by lawsuit was dismissed due to lack of legal standing. This was because the Note and the Mortgage were owned by separate entities. The Court ruled that when the Note and Mortgage were separated, the enforceability of the Note was negated until rejoined.

The mortgage securing the note, while naming U.S. Mortgage Corp. of New Jersey as Lender, separately names Mortgage Electronic Registration Systems, Inc. (MERS) as the Mortgagee. The conveyancing language granted the mortgage to MERS solely as nominee for Lender and Lenders successors and assigns.

MANDATORY JUDICIAL NOTICE REQUIRED

In Carpenter v. Longan 16 Wall. 271,83 U.S. 271, 274, 21 L.Ed. 313 (1872), the U.S. Supreme Court stated The note and mortgage are inseparable; the former as essential, the latter as an incident. An assignment of the note carries the mortgage with it, while assignment of the latter alone is a nullity. An obligation can exist with or without security. With no security, the obligation is unsecured but still valid. A security interest, however, cannot exist without an underlying existing obligation. It is impossible to define security apart from its relationship to the promise or obligation it secures. If the creditor transfers the note but not the Mortgage, the transferee receives a secured note; the security

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follows the note, legally if not physically. If the transferee is given the Mortgage without the note accompanying it, the transferee has no meaningful rights except the possibility of legal action to compel the transferor to transfer the note as well, if such was the agreement. (Kelley v. Upshaw 91952) 39 C.2d 179, 246 P.2d 23; Polhemus v. Trainer (1866) 30C 685) Where the mortgagee has transferred only the mortgage, the transaction is a nullity and his assignee having received no interest in the underlying debt or obligation, has a worthless piece of paper (4 Richard R. Powell), Powell on Real Property, 37.27 [2] (2000)

By statute, assignment of the mortgage carries with it the assignment of the debt. . . Indeed, in the event that a mortgage loan somehow separates interests of the note and the Mortgage, with the Mortgage lying with some independent entity, the mortgage may become unenforceable. The practical effect of splitting the Mortgage from the promissory note is to make it impossible for the holder of the note to foreclose, unless the holder of the Mortgage is the agent of the holder of the note. Without the agency relationship, the person holding only the note lacks the power to foreclose in the event of default. The person holding only the Mortgage will never experience default because only the holder of the note is entitled to payment of the underlying obligation. The mortgage loan becomes ineffectual when the note holder did not also hold the Mortgage.

We have done our best to research the subject of Securitization from the lender to the borrower based on the available documents. This audit investigates the loan from the time of its origination, through the process of securitization and sale to investors in a Trust, as detailed above. Should there be any important aspect you can share with us, please feel free to let us know and we will incorporate it. We continually strive to bring the best and most up to date audit to our customers. Again, we strongly advise you to seek the counsel of a reputable attorney, as we are not attorneys and do not provide legal advice. Our securitized loan audit services are intended to simplify the complicated financial transactions of the securitized loan into a simple report and analysis of facts. Our expert(s) trace the note and deed of trust from the originating lender up the line of sales to the trust and investor ownership. Our evidentiary findings may reveal defects in the real estate title that is being claimed by the party(s) seeking to foreclose. Other undisputable material defects may also be presented. Using this evidentiary findings

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report, attorney(s) can then analyze these facts and draw their own legal opinions. Thank you for allowing us to be of service to you and please do not hesitate to contact us if you or your attorney requires further information or assistance.

MANDATORY JUDICIAL NOTICE TO THE COURT AND PRESIDING JUDGE Additionally, the defendant hereby [NOTES TO THE COURT AND PRESIDING JUDGE, ITS MARKED AS [EXHIBIT A], AS TO THE SECURITIZATION AUDIT AND BLOOMBERG AUDIT PRODUCED AND PREVIOUSLY SUBMITTED TO THIS COURT AND PRESIDING JUDGE.] MERS AS NOMINEE HAS NO INTEREST TO ASSIGN AND HAS NO INTEREST IN THE MORTGAGE OR NOTE AND IS ONLY A RECORDATION ENTITY Plaintiff by and through counsel has represented to the court that the Defendant appearently would be arguing a moot point as it pertains to MERS and MERS assignment; it is largely adjudicated in various states, (Appeals Court, Civil Court, State Court and Federal Court) that MERS has no standing and has no beneficial interest in the mortgage or note. In Landmark National Bank v. Kesler, 216 P.3D 158 (Kansas, 2009), the Kansas Supreme Court extensively analyzed the position of MERS in relation to the facts in that case and other non-binding court cases and concluded that MERS is only a digital mortgage tracking service. (At page 168) The Court recited that MERS never held the promissory note, did not own the mortgage instrument (though the documents identified it as mortgagee), that it did not lend money, did not extend credit, is not owed any money by the mortgage debtors, did not receive any payments from the borrower, suffered no direct, ascertainable monetary loss as a consequence of the litigation and consequently, has no constitutionally protected interest in the mortgage loan. Christopher L. Peterson, Associate Professor of Law, University of Florida, testified at a hearing before the U.S. Senate Committee on Banking, Housing, and Urban Affairs Subcommittee on Securities, Insurance, and Investment and stated: MERS is merely a document custodian. . . . The system itself electronically tracks ownership and servicing rights of mortgages. . . . The parties obtain two principal benefits from attempting to use MERS as a mortgagee of record in nominee 13

capacity. First, under state secured credit laws, when a mortgage is assigned, the assignee must record the assignment with the county recording office, or risk losing priority vis--vis other creditors, buyers, or leinors. Most counties charge a fee to record the assignment, and use these fees to cover the cost of maintaining the real property records. The request of the Defendant in this action as it pertains to the real property is relative to the transfer of the Genuine Original Promissory NOTE, which is currently pendente lite and therefore US Bank National Association Associates, LP., may be justly barred from claims to collect, selling, or gain title to the Defendants real property until all matters concerning the Genuine Original Promissory NOTE are settled and/or dismissed by this Court. The Defendant has the substantial right to have this Court sequester the Genuine Original Promissory NOTE until US Bank National Association Associates, LP, is allowed to foreclose on the Defendants loan or real Property; notwithstanding said foreclosure being lawful or not. In fact, this Court should sequester the Genuine Original Promissory NOTE as the Genuine Original Promissory NOTE is a pertinent issue in this case and any adjudication of this matter may be unenforceable and/or invalid if the Genuine Original Promissory NOTE is somehow destroyed, transferred and/or lost. It is incumbent on this Court to protect the interests of all parties and said interest is reliant on the Genuine Original Promissory NOTE being in good condition and not altered in any way by any party during this case. Pursuant to Perry v. Fairbanks, Id., this Court may be required to immediately cancel and hold said Genuine Original Promissory NOTE, if the foreclosure does proceed in accordance with any possible future ruling of this Court. Sequestration of the Genuine Original Promissory NOTE is in no way similar to any so called show me the note theories as espoused on the internet as the Defendant is not requesting to see the Genuine Original Promissory NOTE. The Defendant is ONLY requesting that this Court protect the Defendants due process of law rights to have the property of interest in this matter be protected by this Court. The Defendant states on and for this Courts record that The Defendant is in fact 14

the TRUE OWNER of the real property in question, and that any claim of legal ownership by any party is unsubstantiated; and, TRUE OWNERSHIP is a higher Right than legal ownership in ALL matters pursuant to Keech v. Stanford 1726, which has never been abrogated and/or abolished and/or altered by any court in this nation. The Defendant also invokes The Defendants right to replevin action pursuant to applicable State Constitution and Statutes. The lawfulness and or fraudulent nature of the judicial foreclosure proceeding withstanding or notwithstanding; once US Bank National Association Associates, LP, attempts to take possession of the real property in question or possess claims, US Bank National Association Associates, LP, may be required by the laws of Florida; and others, to return the Genuine Original Promissory NOTE relating to the real property of the Defendant immediately after the foreclosure or the foreclosure may not be considered lawfully consummated. Accordingly, The Defendant hereby moves this Court to sequester the Genuine Original Promissory NOTE until this case is adjudicated; and after said adjudication return and/or cancel the Genuine Original Promissory NOTE pursuant to this Courts decision. The Defendant fear that the Genuine Original Promissory NOTE may be somehow transferred and/or sold and/or otherwise held by an improper party are sufficient grounds for his request for sequestration as the Defendant has provided sufficient evidence to this Court that the Defendants, jointly and/or separately, alter, falsify and/or forge documents and record such documents into a public office. Sequestration of the Genuine Original Promissory NOTE in no way harms the Plaintiff. The ONLY possible harm that may come to Plaintiff from this Courts ruling to sequester the Genuine Original PROMISSORY NOTE, is if the Plaintiff is not in possession of the Genuine Original PROMISSORY NOTE and therefore cannot avail the Genuine Original PROMISSORY NOTE for sequestration, as this would compound the situation and bring light to the actions of the Plaintiff and their Attorney. The possibility of harm to The Defendant for refusal of this Court to order the 15

sequestration of the Genuine Original PROMISSORY NOTE is immeasurable. The Defendant may be unlawfully sued by a future party that somehow garners possession of the Genuine Original PROMISSORY NOTE through lawful and/or unlawful means. The Defendant may be forced to again to pay the Genuine Original PROMISSORY NOTE if another party claims to be in possession of the Genuine Original PROMISSORY NOTE. DEFENDANTS OBJECTIONS TO THE DECISIONS OF THE COURT PURSUANT TO THE VIOLATION OF THE U.S. NATIONAL HOUSING ACT 12 USC SEC. 23

COMES NOW, the Defendant Frank A. Krawczyk (hereinafter Defendant) and brings to the attention of this court the Objection to the Decision issued in this case on December 12, 2009 , March 21, 2012 and October 23, 2012; and, those decisions delivered in this action in favor of the Plaintiff. In support of this section of this motion, the Defendant states the following as applicable to Plaintiffs violation of US National Housing Act (12 USC, SEC., 23):.

STATEMENT OF CASE AND FACT AS APPLICABLE TO THE NATIONAL HOUSING ACT (12 USC, SECTION 23) On December 09, 2009, the Plaintiff commenced the instant foreclosure action in the above mentioned case, stating that it is a federally chartered bank authorized to transact business in the State of Florida and declaring that it has an interest in the above reference real property and Security Note. As established via the attached Securitization Analysis (which is inclusive of a BLOOMBERG AUDIT), the Plaintiff, in this case has presented a foreclosure action against the Defendant, to wich they have no legal right, no true interest in the mortgage and security 16

instrument (the Security Note); to which, bi-furcation has also been committed. As it is well know; and settleed STATEMENT OF FACTS AND MANDATORY JUDICIAL NOTICE Pursuant to 12 USC sec 23, The organization certificate shall be acknowledged before a judge of some court of recordand shall be, together, with the acknowledgment, authenticated by the court and transmitted to the Comptroller of Currency, who shall record and preserve the same in his office. 1. National Housing Act 12 USC 1701-1751 et seq.: Helping Families save their Homes Act of 2009, P.L. 111-22, sec. 203, 123 Stat. 1631, 1645. HUD Regulations. a) 24 C.F.R. part 203-500-Servicing Responsibilities. [I]t is the intent of the Department that not mortgagee shall commence foreclosure or acquire title to a property until the requirements of this subpart are followed. b) 24 C.F.R. part 203.604(b) The mortgagee must have a face-to-face interview with the mortgagor, or personal interview, or make a reasonable attempt to arrange such a meeting within 30 days after such default and at least 30 days before foreclosure is commenced. c) 24 C.F.R. part 203.606 (a) Before initiating foreclosure, the mortgagee must ensure that all servicing requirements have been met. d) O.R.C. 1161.67- Only a foreign saving bank (FSB) may, upon receiving approval of the Superintendent of Financial Institutions, establish a branch in the state by creating a new branch or by agreeing to assume all of substantially all of the deposit liabilities of an existing branch of a bank, saving, foreign saving bank, or savings and loan association, which branch is located in the stateA savings bank may acquire or merge with another savings bank, a foreign savings bank, a domestic association, a state bank, a national bank, or a bank organized under any state, upon application to and written approval of the Superintendent of Financial Institutions.

ARGUMENT The pandemic of the foreclosure process began in 2005, picked up steam in 2007 and became an epidemic by 2008. Attorneys were allowed to come into State courts and address their peers by saying: I represent this bank or that bank, and the defendant has not paid their mortgage. State judges lacking the understanding of the foreclosure process, equated the process with forcible entry and detainer, where the owner petition the court for the real property being occupied by a tenant, and the court grants the Order to evict. Eighty five percent of the mortgages are financed by some 17

government agency: i.e. Fannie Mae, Ginny Mae, or Freddie Mac and, therefore, comes within the purview of federal regulations in conjunction with state laws. Millions of foreclosures have been perfected and completed without the provisions being adhered to. In this case, the Plaintiff has failed to provide the court with the document which would grant it standing to pursue a foreclosure in this court. If the plaintiff has provided the documents and the documents have not been provided to the defendant, then it violates the discovery provisions of Civil R. 26. Those documents would include: Certificate with this Courts Seal on it acknowledging its standing to sue in this arena. Minutes and terms of the parties face-to-face interview which would have taken place in late September or Early October, however, MERS did not transfer title to the property until October 14, 2011 and the action was commenced 20 days later, and, so, the defendant concludes this is in violation of federal regulations, which is a necessary prerequisite to the commencement of foreclosure. Summary Judgment is proper when: (1) no genuine issue as to material facts remain to be litigated; (2) the moving party is entitled to judgment as a matter of law; (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence must strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Summary judgment is appropriate when the non-moving party does not produce evidence supporting the essentials of its claim and when it does not produces evidence on any issue for which it bears the burden of producing. Leibreich v. A.J. Refrigeration, Inc., 67 Ohio St. 3d 266, 617 N.E. 2d 1068.

Please see [Exhibit B], copy of complaint to Comptroller of Currency and pending investigation due to the Violation of the National Housing Act (12 USC SEC. 23).

THE GOVERNING LAWS OF THE TRUST (NEW YORK STATE TRUST LAWS)

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AND THE VIOLATION THERE OF RENDERES THE TRANSACTION VOID (A NULLITY)

THE DEFENDANT TRUST HAS NO STANDING TO FORECLOSE BECAUSE THERE HAS BEEN NO VALID ENFORCEABLE ASSIGNMENT TO THE TRUSTEE OF THE TRUST
The CSMC Mortgage Backed Pass Through Certificates Series 200-1 Trust , is A New York Common Law Trust Governed By New York Law Based On Its Trust Agreement.

US BANK NATIONAL ASSOCIATON, as Trustee, under the Pooling and Servicing Agreement dated January 5, 2007, (CSMC MORTGAGE BACKED PASS THROUGTH CERTIFICATES, Series 2007-1), US Bank National Association is not the originator of the mortgage, the servicer, or even a investor/beneficiary of the trust.

This entity is a New York common law trust created by an agreement known as Pooling and Service Agreement. Allegedly, the homeowner`s home loan, along with other loans, were pooled into a trust and converted into mortgage-backed securities (MBS) that can be bought and sold by investors a process known as securitization.

The underlying promissory notes of each and every mortgage held by the Trust serve as generate a potential income stream for investors.

The Trust allegedly holding the Plaintiffs note was created on or about January 5, 2007, and is identified as CSMC MORTGAGE BAKED PASS THROUGH CERTIFICATES, SERIES 2007-1; with, US BANK NATIONAL ASSOCIATON, as Trustee, under the Pooling and Servicing Agreement dated January 5, 2007. 19

The Trust, by its terms, set a closing date of January 30, 2007 The terms of the Trust are contained in the Pooling and Servicing Agreement (PSA or the Trust agreement), which is an approximately 400-page document that creates the Trust and defines the rights, duties and obligations of the parties to the Trust Agreement.

The PSA is filed under oath with the Securities and Exchange Commission.

The PSA also incorporates by reference a separate document called the Mortgage Loan Purchase Agreement (MLPA).

hese various documents, and hence the acquisition of The Trust, being sued through its

trustee, is a New York Corporate Trust formed to act as a REMIC trust (defined below) pursuant to the U.S. Internal Revenue Code (IRC).

Pursuant to the terms of the Trust and the applicable Internal Revenue Service (IRS) regulations adopted and incorporated into the terms of the Trust, the closing date of the Trust (January 30, 2007) is also the Startup Day for the Trust under the REMIC provisions of the IRC. The Startup Day is significant because the IRC ties the limitations upon which a REMIC trust may be receive its assets to this date.

The relevant portion of the IRC addressing the definition of a REMIC is: the mortgage assets for the Trust, are governed under the law of the State of New York pursuant to section 11.03 of the PSA .

It is settled that the duties and powers of a trustee are defined by the terms of the trust agreement and are tempered only by the fiduciary obligation of loyalty to the beneficiaries (see, 20

United States Trust Co. v First Natl City Bank, 57 A.D.2d 285, 295-296, affd 45 NY2d 869; Restatement [Second] of Trusts 186, comments a, d). See In re IBJ Schroder Bank & Trust Co., 271 A.D.2d 322 (N.Y. App. Div. 1st Dept 2000)

REMIC after the startup day, there is hereby imposed a tax for the taxable year of the REMIC in which the contribution is received equal to 100 percent of the amount of such contribution. 26 U.S.C. 860G(d)(2) states: (2) Exceptions. Paragraph (1) shall not apply to any contribution which is made in cash and is described in any of the following subparagraphs:

(A) Any contribution to facilitate a clean-up call (as defined in regulations) or a qualified liquidation. (B) Any payment in the nature of a guarantee. (C) Any contribution during the 3-month period beginning on the startup day. (D) Any contribution to a qualified reserve fund by any holder of a residual interest in the REMIC. (E) Any other contribution permitted in regulations.

The PSA addresses these sections of the IRC by obliging the parties to the Trust to avoid any action which might jeopardize the tax status of any REMIC and/or impose any tax upon the Trust for prohibited contributions or prohibited transactions.

These PSA provisions are important to the analysis of the facts in this case because of the interplay between the New York trust law, the IRCs REMIC provisions, and the PSAs incorporation of the IRC REMIC provisions.

The Trust Instrument/PSA Sets Forth A Specific Time, Method And Manner Of REMIC after 21

the startup day, there is hereby imposed a tax for the taxable year of the REMIC in which the contribution is received equal to 100 percent of the amount of such contribution. 26 U.S.C. 860G(d)(2) states: (2) Exceptions. Paragraph (1) shall not apply to any contribution which is made in cash and is described in any of the following subparagraphs: (A) Any contribution to facilitate a clean-up call (as defined in regulations) or a qualified liquidation. (B) Any payment in the nature of a guarantee. (C) Any contribution during the 3-month period beginning on the startup day. (D) Any contribution to a qualified reserve fund by any holder of a residual interest in the REMIC. (E) Any other contribution permitted in regulations.

The PSA addresses these sections of the IRC by obliging the parties to the Trust to avoid any action which might jeopardize the tax status of any REMIC and/or impose any tax upon the Trust for prohibited contributions or prohibited transactions.

These PSA provisions are important to the analysis of the facts because of the interplay between the New York trust law, the IRCs REMIC provisions, and the PSAs incorporation of the IRC REMIC provisions.

The Trust Instrument/PSA Sets Forth A Specific Time, Method And Manner Of The IRC also provides definitions of prohibited transactions and prohibited contributions which are relevant to this case as well. In the context of this case, the relevant statute is the definition of prohibited contributions which is as follows: 26 U.S.C. 860G(d)(1) states: Except as provided in section 860G(d)(2), if any amount is contributed to a Funding The Trust The Trust seeking to foreclose on the Plaintiff has included in the terms of its Trust agreement (the PSA) a specific time, method and manner of funding the Trust with its assets. The most critical time is the Trusts closing date, January 30, 2007. 22

According to the terms of the PSA, all of the assets of the Trust were to be transferred to the Trust on or before the closing date. This requirement is to ensure that the Trust will receive REMIC status and thus be exempt from federal income taxation. The specific section of the PSA provides for a window of 90 days after the Trust closing date in which the Trust may complete any missing paperwork or finalize any documents necessary to complete the transfers of assets from the depositor to the Trust.

THE TRUST AGREEMENT PROVIDES THE ONLY MANNER IN WHICH ASSETS MAY BE PROPERLY TRANSFERRED TO THE TRUST AND ANY ACT IN CONTRAVENTION OF THE TRUST AGREEMENT IS VOID

Thus, for an asset to become an asset of the Trust it must have been transferred to the Trust within the time set forth in the PSA.

The additional 90 days in the timeline requirement is incorporated from the REMIC provisions of the IRC to provide a clean-up period for a REMIC to complete the documents associated with the transfers of assets to a REMIC after the startup day (which is also the Trust closing date).

Therefore, according to the plain terms of the Trust agreement in this case, the closing date/startup date was January 30, 2007 and the last day for transfer of assets into the Trust was January 30, 2007.

Transfer of Assets to the Trust Pursuant to the Trust Instrument/PSA

There are several methods by which the underlying assets of the Trust, specifically the 23

individual promissory notes, might be transferred or conveyed.

A trusts ability to transact is restricted to the actions authorized by its trust documents. Here, the Trust documents permit only one specific method of transfer to the Trust. That method is set forth in the PSA and can be accessed at:

http://www.sec.gov/cgi-bin/browse-edgar?action=getcompany&CIK=0001387355&owner=excl ude&count=40&hidefilings=0

Pursuant to the Mortgage Loan Purchase Agreement, each Seller sold, transferred, assigned, set over and otherwise conveyed to the Depositor, without recourse, all the right, title and interest of such Seller in and to the assets sold by it in the Trust Fund. In connection with such sale, the Depositor has delivered to, and deposited with, the Trustee or the Custodian, as its agent, the following documents or instruments with respect to each Mortgage Loan so assigned: (i) the original Mortgage Note, including any riders thereto, endorsed without recourse (A) in blank or to the order of US BANK NATIONAL ASSOCIATON, as Trustee, under the Pooling and Servicing Agreement dated January 30, 2007, US Bank national Association, as Trustee, On Behalf Of the Holders Of The CSMC Mortgage Backed Pass Through Certificates, Series 2007-1 or (B) in the case of a loan registered on the MERS system, in blank, and in each case showing an unbroken chain of endorsements from the original payee thereof to the Person endorsing it to the Trustee, The analysis of this transfer language requires that you consider each part.

In the second paragraph of the language in the Trust Agreement, the first statement is one of transfer, stating the Depositor has delivered to and deposited with the Trustee or the Custodian the following documents. 24

The key document is the original mortgage note, which requires mandatory endorsements found in this language: the original mortgage note.endorsed without recourse followed by two alternatives which are phrased in the either/or format.

The first labeled A states in blank or to the order of US BANK NATIONAL ASSOCIATON, as Trustee, under the Pooling and Servicing Agreement dated January 30, 2007 to the CSMC Mortgage Backed Pass Through Certificates, Series 2007-1.

The second possibility stated in B provides as the or proposition for transfer the following statement in the case of a loan registered on the MERS system, in blank In each case, the affirmative language of the Trust agreement places a burden on the depositor to make a valid legal transfer in the terms required by the Trust instrument.

The key language in the entire paragraph is the final statement trailing the either/or language of A & B which reads: and in each case showing an unbroken chain of endorsements from the original payee thereof to the Person endorsing it to the Trustee; and, a requirement of an unbroken chain of endorsements is the requirement of certification of the final contents of the collateral file for the benefit of the Trust.

With respect to each Mortgage Loan, the Mortgage File shall include each of the following items, which shall be available for inspection by the Purchaser or its designee, and which shall be delivered to the Purchaser or its designee pursuant to the terms of this Agreement.(a) The original Mortgage Note, including any riders thereto, endorsed without recourse to the order of US BANK NATIONAL ASSOCIATON, as Trustee, under the Pooling and Servicing etc.,and showing to the extent available to the related Mortgage Loan Seller an unbroken chain of 25

endorsements from the original payee thereof to the Person endorsing it to the Trustee.

The foregoing requirement demonstrates clearly that while the parties to the securitization made provisions whereby promissory notes for this Trust might be delivered in blank to the Trustee, there were two requirements that were mandatory.

First, all notes sold to the Trust were required to have an unbroken chain of endorsements from the original payee to the person endorsing it to the Trustee. This requirement stems from a particular business concern in securitization, namely to evidence that there was in fact a true sale of the securitized assets and that they are in no way still property of the originator, sponsor, or depositor, and thus not subject to the claims of creditors of the originator, sponsor, or depositor.

Second, there was a requirement that ultimately, within 90 days of the Trust closing date, the actual promissory note must be endorsed over to the trustee for the specific trust to effectively transfer the asset into the trust and therefore make the GIANNAKAKOS promissory note Trust property. This requirement finds support in logic and law and is, in fact, the ancient and settled law of New York and in particular New York Trust Law(s) on this issue.

New York Law Governs The Mandatory Requirements To Effectively Transfer an Asset To A Trust; It is not contested that securitization trusts, such as US Bank, are subject to the common law of New York. Conveyed to it, that that the that they will have the right to establish their ownership as investors in that collateral.

New York Law Governs The Mandatory Requirements To Effectively Transfer An Asset To A Trust It is not contested that securitization trusts, such as the defendant, are subject to the common law of New York. 26

New Yorks trust law is ancient and settled. There are a few principles of New York Trust law that are particularly important to the analysis of whether any particular asset is an asset of a given trust. Under New York law, the analysis of whether an asset is trust property is determined under the law of gifts. In order to have a valid inter-vivos gift, there must be a delivery of the gift;; and , must be gifted pursuant to applicable law.

As early as 1935, in Burgoyne v. James, 282 N.Y.S. 18, 21 (1935), the New York Supreme Court recognized that business trusts, also known as Massachusetts trusts,are deemed to be common law trusts. See also In re Estate of Plotkin, 290 N.Y.S.2d 46, 49 (N.Y. Sur. 1968)

(characterizing common stock trust funds as common law trust[s]). Other jurisdictions are in accord. See, e.g., Mayfield v. First Natl Bank of Chattanooga, 137 F.2d 1013 (6th Cir. 1943) (applying common law trust principles to a pool of mortgage participation certificate holders). In the case of a trust where there is a trustee other than the grantor, transfer will be governed by the existing rules as to intent and delivery (the elements of a gift)In re Becker, 2004 N.Y. Slip Op. 51773U, 4 (N.Y. Sur. Ct. 2004).

Physical delivery of the subject of the gift or a constructive or symbolic delivery (such as by an instrument of gift) sufficient to divest the donor of dominion and control over the property and what is sufficient to constitute delivery must be tailored to suit the circumstances of the case. The delivery rule requires that [the] delivery necessary to consummate a gift must be as perfect as the nature of the property and the circumstances and surroundings of the parties will reasonably permit. Under New York law there are four essential elements of a valid trust of personal property:

A designated beneficiary; 27

A designated trustee, who must not be the beneficiary; A fund or other property sufficiently designated or identified to enable title thereto to pass to the trustee; and, The actual delivery of the fund or other property, or of a legal assignment thereof to the trustee, with the intention of passing legal title thereto to him as trustee. There is no trust under the common law until there is a valid delivery of the asset in question to the Trust.

(See, Matter of Szabo, 10 N.Y.2d 94, 98-99, supra; Speelman v Pascal, 10 N.Y.2d 313, 318-320, supra; Beaver v. Beaver, 117 N.Y. 421, 428-429, supra; Matter of Cohn, 187 App. Div. 392, 395); as cited in Gruen v. Gruen, 68 If the trust fails to acquire the N.Y.2d 48, 56 (N.Y. 1986). (Matter of Szabo, supra, at p. 98).

(id.; Vincent v Rix, 248 N.Y. 76, 83; Matter of Van Alstyne, supra, at p 309; see, Beaver v. Beaver, supra, at p 428) as cited in Gruen v. Gruen, 68 N.Y.2d 48, 56-57 (N.Y. 1986) . Brown v. Spohr, 180 N.Y. 201, 209-210 (N.Y. 1904).13 Until the delivery to the trustee is performed by the settlor, or until the securities are definitely ascertained by the declaration of the settlor, when he himself is the trustee, no rights of the beneficiary in a trust created without consideration arise (cf. Riegel v. Central Hanover Bank & Trust Co., 266 App. Div. 586; Matter of Gurlitz [Lynde], 105 Misc 30, affd 190 App. Div. 907, supra; Marx v. Marx, 5 Misc 2d 42) as cited in Sussman v. Sussman, 61 A.D.2d 838 (N.Y. App. Div. 2d Dept 1978). and Trusts Law (EPTL) section 7-2.1(c) authorizes investment trusts to acquire real or personal property in the name of the trust as such name is designated in the instrument 28

creating said trust. Further, the actual contracts of the parties, which include the custodial agreements, the mortgage loan purchase agreements, and the trust instrument known as the pooling and servicing agreement, prescribe a very specific method of transfer of the notes and mortgages to the Trust.

Because the method of transfer is set forth in the Trust instrument, it is not subject to any variance or exception and Trusts Law (EPTL) section 7-2.1(c) authorizes investment trusts to acquire real or personal property in the name of the trust as such name is designated in the instrument creating said trust.

The actual contracts of the parties, which include the custodial agreements, the mortgage loan purchase agreements, and the trust instrument known as the pooling and servicing agreement, prescribe a very specific method of transfer of the notes and mortgages to the Trust. Because the method of transfer is set forth in the Trust instrument, it is not subject to any variance or exception. In an action against the individual defendant, based on the theory of breach of fiduciary obligation, the Trust documents require that the promissory notes and mortgages be transferred to the Trustee, which under New York trust law requires valid delivery. The question then arises What constitutes valid delivery to the Trustee? Where the property, is not transferred properly or timely, there is no trust over that property which may be enforced. An attempt to convey to a trust will fail if there is no designated beneficiary in the conveyance. In the context of mortgage-backed securitization, it is clear that registration of the notes and mortgages in the name of the trustee for the trust is necessary for effective 29

transfer to the trust. Within the Statutes of New York governing Trusts, Estates Powers complaint was properly dismissed on the ground that he had acquired no title or separate control of the goods and, hence, there was no actual trust over the property to breach., (See Kermani v. Liberty Mut. Ins. Co., 4 A.D.2d 603 (N.Y. App. Div. 3d Dept 1957).

(See Wells Fargo Bank v. Farmer, 2008 N.Y. Misc Lexis 3248. Courts may neither ignore the actual provisions of transaction documents nor create contractual remedies that were omitted from the governing contracts by the contracting parties. See Schmidt v. Magnetic Head Corp., 468 N.Y.S.2d 649, 654 (N.Y. App.Div. 1983)

(It is fundamental that courts enforce

contracts and do not rewrite them . . . An obligation undertaken by one of the parties that is intended as a promise . . . should be expressed as such, and not left to implication. (citations omitted)); Morlee Sales Corp. v. Manufacturers Trust Co., 172 N.E.2d 280, 282 (N.Y.1961) ([T]he courts may not by construction add or excise terms . . . and thereby make a new contract for the parties under the guise of nterpret[ation]. (quoting Heller v. Pope, 250 N.E. 881, 882 (N.Y. 1928))

When the requirements of transfer to the trustee are viewed in the context of the corporate or business trust indenture, more information about compliance with these requirements becomes apparent. One must first understand that

[t]he corporate trustee has very little in common with the ordinary trustee . . . .The trustee under a corporate indenture . . . has his [or her] rights and duties defined, not by the fiduciary relationship, but exclusively by the terms of the agreement. His [or her] status is more that of a trustee., [a]n indenture trustee is unlike the ordinary trustee. 30

In contrast, some cases have confined the duties of the indenture trustee to those set forth in the indenture. The obligations are defined by the terms of the indenture agreement.

It is settled that the duties and powers of a trustee are defined by the terms of the trust agreement and are beneficiaries, and must take delivery in strict compliance with the terms of the PSA/Trust document. Further, given that New York Estates Powers and Trusts Law section 7-2.1(c) authorizes a trustee to acquire property in the name of the trust as such name is designated in the a stakeholder than one of the indenture trustee, [i]t is tempered only by the fiduciary obligation of loyalty to the clear import of these cases and statutes is that the delivery of an asset to a trustee under the terms of a corporate indenture requires strict compliance with the mandatory transfer terms of the trust indenture.

(See AG Capital Funding Partners, L.P. v. State St. Bank & Trust Co., 2008 N.Y. Slip Op. 5766, 7 (N.Y. 2008) 18Green v. Title Guarantee & Trust Co., 223 A.D. 12, 227 N.Y.S. 252 (1st Dept.), affd, 248 N.Y. 627 (1928); Hazzard v. Chase National Bank, 159 Misc. 57, 287 N.Y.S. 541 (Sup. Ct. 1936), affd, 257 A.D. 950, 14 N.Y.S.2d 147 (1st Dept.), affd, 282 N.Y. 652, cert. denied, 311 U.S. 708 (1940). See Meckel v. Continental Resources, 758 F.2d 811, 816 (2d Cir. 1985) as cited in Ambac Indem. Corp. v. Bankers Trust Co., 151 Misc. 2d 334, 336 (N.Y. Sup. Ct. 1991).20see, United States Trust Co. v First Natl City Bank, 57 A.D.2d 285, 295-296, affd 45 NY2d 869; Restatement [Second] of Trusts 186, comments a, d) as cited in In re IBJ Schroder Bank & Trust Co., 271 A.D.2d 322 (N.Y. App. Div. 1st Dept 2000).

The property must be registered in the name of the trustee for the particular trust. Trust property cannot be, held with incomplete endorsements and assignments that do not indicate that the property is held in trust by a trustee for a specific beneficiary trust. 31

It is clear in the law of New York that an attempt to transfer to a trust which fails to specify both a trustee and a beneficiary is ineffective as a conveyance to the Trust. The failure to name a beneficiary for the Trustee renders the assignment without merit. This position is further supported logically in the common law of New York by the following propositions:

The delivery necessary to consummate a gift must be as perfect as the nature of the property and the circumstances and surroundings of the parties will reasonably permit; there must be a change of dominion and ownership; intention or mere words cannot supply the place of an actual surrender of control and authority over the thing intended to be given.

It is the consummation of the donors intent to give that completes the transaction. Intention alone, no matter how fully established, is of no avail.

(See Wells Fargo Bank, N.A. v. Farmer, 2008 NY Slip Op 51133U, 6 (N.Y. Sup. Ct. 2008) 22(cf. Riegel v. Central Hanover Bank & Trust Co., 266 App. Div. 586; Matter of Gurlitz [Lynde], 105 Misc. 30, affd 190 App. Div. 907, supra; Marx v. Marx, 5 Misc 2d 42) as cited in Sussman v. Sussman, 61 A.D.2d 838 (N.Y. App. Div. 2d Dept 1978). 23Vincent v. Putnam, 248 N.Y. 76, 82-84 (N.Y. 1928). Without the consummated act of delivery.

How could one logically argue that delivering a promissory note endorsed in blank (making it bearer paper) into a trustees vault is delivery beyond the authority and control of the donor when the vault is managed by the agent of the donor?

If the donor were to claim that the promissory note If the donor delivers the property to the third person simply for the purpose of his delivering it to the donee as the agent of the donor, the gift is not complete until the property has actually been delivered to the donee. Such a delivery is not 32

absolute, for the ordinary principle of agency applies, by which the donor can revoke the authority of the agent, and resume possession of the property, at any time before the authority is executed. were its property, not the trustees, there would be no evidentiary basis for the trustee to claim ownership. Accordingly, New York law expressly requires that for property to be validly delivered to a trust, the property must pass completely out of the control of the donor (and its agents): Another case addressing this issue holds that In order that delivery to a third person shall be effective, he must be the agent of the donee.

Delivery to an agent of the donor is ineffective, as the agency could be terminated before delivery to the intended donee.Trustees for securitizations often occupy many roles simultaneously and conflictingly both as document custodians and trustees for myriad thousands of securitizations as well as for various parties who are active in the securitization process including originators, servicers, sponsors and depositors. Accordingly, it is inconceivable that anything other than registration into the name of the trust as such

name is designated in the instrument creating said trust property could ever qualify as delivery to any particular securitization trust.

Absent such registration, there would be nothing that would indicate which of thousands of trusts in the care of a trustee a particular promissory note might belong to or if it were the personal property of the This point was recently slammed home to the public consciousness in a watershed decision out of the State of Massachusetts.

33

On January 7, 2011, the Supreme Judicial Court of Massachusettsthe highest court in that staterendered a unanimous verdict in a case captioned U.S. Natl. Bank Assn., Trustee, v. Ibanez, For ABFC 20050PT 1 Trust, ABFC Asset Backed Certificates, Series 2005-0PT 1, No. SJC-10694, (Mass. Jan. 7, 2011).

While that ruling is of course not binding, it is very much contrary to the mortgage securitization industrys position in cases involving the foreclosure of mortgage loans which have allegedly been securitized.

The facts of the case in Massachusetts and the facts of this instant case are similar. The case was a ruling on two consolidated cases both cases were filed by banks (as trustees for two separate trusts) to quiet title on properties they had foreclosed and purchased at the foreclosure sale to satisfy the mortgagors debt.

The Massachusetts Supreme Judicial Court held that neither bank proved that its trust owned the mortgages when they foreclosed on the homes; therefore, neither had title to the foreclosed properties and that their foreclosures were void. Effectively, this put the borrowers back into the place they were before the foreclosure. [THUS, AS IN THIS INSTANT CASE, THE DEFENTANTS MOTION APPLICABLE UNDER THE LAWS OF VOID, IS HEREBY A VALID ASSESSMENT, CLAIM AND IS A SELF EVIDENTLY ENFORCABLE.]

The Massachusetts Supreme Judicial Court did not tell the homeowners they are allowed to shirk their obligation to pay their mortgages, which are still outstanding, valid obligations. 34

The Massachusetts Supreme Judicial Court did, however, sharply instruct the banks that they must have the proper documentation which demonstrates a valid right to foreclose before a foreclosure can be carried out. It is well worth noting the conclusion of the Massachusetts Ibanez opinion.

The Massachusetts Supreme Judicial Court noted that he legal principles and requirements we set forth are well established in our case law and our statutes. All that has changed is the [banks] apparent failure to abide by those principles and requirements in the rush to sell mortgage-backed securities. Just as the principles and requirements of Massachusetts law are well-founded, so too are those of New York law, and they should be upheld even if adherence to the law is inconvenient for banks rushing to sell mortgage-backed securities.

THE INTENT TO TRANSFER AN ASSET TO THE TRUST IS NOT A TRANSFER TO THE TRUST

The contents of these statutes, cases and contracts lead to one inescapable conclusion: the intent of the parties and the requirements of the contracts were that the assets be conveyed to the Trusts by the Trust closing dates.

For a transfer to any foreclosure industry has chosen to argue that it is clear that it was the parties intent to transfer these assets and therefore no court would ever declare that these assets were not transferred to these trusts. The controlling law is overwhelmingly against the industry in this position.

The failure to deliver the notes and mortgages to these trusts as required by the trust instruments is a default under the terms of every agreement that these parties executed, 35

including their agreements for payment guarantees with the monoline bond insurers.

The securitization industry chose to create its securitization trusts under New York law precisely because the law was ancient and settled.

Now that the actions of the foreclosure industry contradicts that law, parties such as the Plaintiff trust are left to argue hope against precedent.

The well-settled New York trust law provides that A mere intention to make a gift which has not been carried into effect, confers no right upon the intended beneficiary. There must be also delivery beyond the power of further control and dominion. foreclosure industry has chosen to argue that it is clear that it was the partiesintent to transfer these assets and therefore no court would ever declare that these assets were not transferred to these trusts. The controlling law is overwhelmingly against the industry in this position.

There must be also delivery beyond the power of further control and dominion. Equity will not help out an incomplete delivery.

If the agent of the donor has failed to make the delivery expected equity will particular trust to be effective, there should have been a registration of the assets into the name of the trust as such name is designated in the instrument creating said trust propertythis is the only method by which these assets could have been divested from the possession and title of the donors. In response to the lucidity of the controlling law on this issue, the mortgage did

(See Vincent v. Rix, 248 N.Y. 76, 85 v. Rix, 248 N.Y. 76, 85; Matter of Green, 247 App. 36

Div. 540; McCarthy v. Pieret,281 N.Y. 407, 409.) as cited by In re FIRST TRUST & DEPOSIT CO., 264 A.D. 940, 941 (N.Y. App. Div. 4th Dept 1942)

not declare him a trustee for the donee. Thus, Thornton on Gifts and Advancements (140) notes: In determining whether there has been a valid delivery, the situation of the subject of the gift must be considered. If it is actually present, and capable of delivery without serious effort, it is not too much to say that there must be an actual delivery, although the donor need not in person or by agent hand the article to the donee, if the latter assumes the possession.

There was absolutely nothing in the physical nature of the papers delivered, or in the physical condition or the surroundings of the donor, that made a symbolical delivery necessary.of the thing given has been very largely relaxed, but a symbolical delivery is sufficient delivery as nearly perfect and complete as the circumstances will allow.

It is true that the old rule requiring an actual delivery only when the conditions are so adverse to actual delivery as to make a symbolical. Further, the failure to convey to a trust per the controlling trust document is not a matter that may be cured by the breaching party.

New York law is unflinchingly clear that a trustee has only the authority granted by the instrument under which he holds, either deed or will. This fundamental rule has existed from the beginning and is still law. An indenture trustee is unlike the ordinary trustee.

In contrast ,

(See Vincent v. Putnam, 248 N.Y. 76, 82-84 (N.Y. 1928) 30In re Van Alstyne, 207 N.Y. 298, 309-310 (N.Y. 1913).31 In re Van Alstyne, 207 N.Y. 298, 309-310 (N.Y. 1913). 32Allison & 37

Ver Valen Co. v. McNee, 170 Misc. 144, 146 (N.Y. Sup. Ct. 1939). 33Ambac Indem. Corp. v. Bankers Trust Co., 151 Misc. 2d 334, 336 (N.Y. Sup. Ct. 1991).

the trustees for these trusts may only acquire assets in the manner set forth in the trust instrument and may not acquire assets in violation of the trust instrument.

To the extent that any assets were not conveyed to these trusts as required and when required by the trust instrument, they are not assets of the trusts and the trustee cannot correct this deficiency now since the funding period provided in the Trust instruments passed many years ago. The attempt to acquire assets by these trusts which violate the terms of the Trust instrument are void.

Therefore, late assignments, improper chains of title, late endorsements, improper chains of title in the endorsements and the attempt to transfer to the trusts by foreclosure deed are just a number of the many examples of actions which are void if taken by a party to the indenture who is attempting to transfer property to the Trustee for the Trust in violation of the trust instrument.

THE TRUST NEVER PROPERLY ACQUIRED THE MORTGAGE NOTE AND THE TRUST CANNOT CURE ITS FATAL STANDING DEFECT

Therefore, the trustees for these trusts may only acquire assets in the manner set forth in the trust instrument and may not acquire assets in violation of the trust instrument. That no assets were conveyed to these trusts as required and when required by the trust instrument, they are not assets of the trusts and the trustee cannot correct this deficiency now since the funding period provided in the Trust instruments passed many years ago. The attempt to acquire assets by these trusts which violate the terms of the Trust instrument are void, and further support the Defendants arguments once again 38

as as applicable under the LAWS OF VOIDS a/k/a LAWS OF VOIDED JUDGEMENTS.

Therefore, late assignments, improper chains of title, late endorsements, improper chains of title in the endorsements and the attempt to transfer to the trusts by foreclosure deed are just a number of the many examples of actions which are void(s), if taken by a party to the indenture who is attempting to transfer property to the Trustee for the Trust in violation of the trust instrument. The assignment as applicable in this case was filed long after the (United States Security and Exchange Form 15/15D) was filed with the SEC by US Bank as Trustee; moreover, the purported Trust was actually closed before the date that MERS signed the assignment to US BANK NA, and its purported Trust.

THE TRUST NEVER PROPERLY ACQUIRED THE MORTGAGE NOTE AND THE TRUST CANNOT CURE ITS FATAL STANDING DEFECT

New Yorks Law is so well-settled regarding the limitations of a trustees power to act that New Yorks Estates Powers and Trust Law Section 7-2.4 states: 7-2.4 Act of trustee in contravention of trust: If the trust is expressed in the instrument creating the estate of the trustee, every sale, conveyance or other act of the trustee in contravention of the trust, except as authorized by this article and by any other provision of law, is void.

Under New York law there is no trust over property that has not been properly transferred to a trust. US Bank National Association has stated to the U.S. Securities and Exchange Commission in filings under oath that it possesses assets in excess of for example $400 million. To acquire assets, the Trust must be funded in accordance with the requirements of the PSA/Trust documents.

39

The pertinent terms of the agreement are found within the governing doctrine; and, are found under the caption or title (Conveyance of Trust Fund) of the PSA. This section details how the mortgage notes in the instant case were transferred from the Originator, to the sponsor and a seller (DLJ Mortgage Capital, Inc.) to Credit Suiess First Boston Mortgage Securities Corp., (the Depositor), to the CSMC Mortgage-Backed Trust 2007-1 (the purported Issuing Entity) to which US Bank National Association acted as (Trustee); with, Wells Fargo Bank, as (Master Servicer); and, Wells Fargo Bank, acting as (Trust Administrator). At which time, the CSMC Mortgage Backed Trust 2007-1, was required to deliver to the TRUSTEE or TRUST ADMINISTRATOR, the original mortgage note showing an unbroken chain of endorsements from the original payee to the person endorsing it to the Trust.

The only assignment of the mortgage was signed by a purported individual claiming to be an officer for MERS (to which MERS has only 44 employees), nothing has been submitted by the Trust to the Court indicating that MERS ever assigned the mortgage to any other entity. Based on the documents, New Jersey Mortgage Corp., (a Bankrupt entity), not US BANK NA, or its so called acting capacity title as trustee is the mortgage holder. US Bank National Association, does not have the authority to foreclose the mortgage, Deed of trust.

According to the requirements set forth in the Trust Agreement Defendant would expect to see a series of endorsements of the promissory note reflective of each party who had an interest in the promissory note reflective of each party who had an ownership interest in the promissory note culminating with a blank endorsement from the depositor at the very minimum. The Trust never possessed the mortgage note per the terms of the PSA (Pooling and Service Agreement).

40

Any attempt by MERS, US BANK NA, to transfer the promissory note to the Trust at a late date or later date would fail for numerous reasons, not the least of which is that the closing date of January 30 2007, passed nearly 6 years ago. By the terms of the Trust and the applicable provision of the Internal Revenue Code incorporated into and a part of the Trust agreement, the promissory note cannot be transferred to the Trust.

THE TRUST IS NOT ENTITLED TO THE MONEY SECURED BY THE GIANNAKAKOS MORTGAGE AND CANNOT FORECLOSE

Because of the fact that MERS transferred the loan and note after the closing date of the trust and the filing of the form 15D as evidence in the case is that the Giannakakos loan has never been conveyed to the Trust and a conveyance to the Trust at this time would be void as violating the terms of the PSA, one is left with one clear and inescapable proposition:

The Trust has never owned the Giannakakos promissory note and the Trust can never own the Giannakakos promissory note. Trust has not provided documentation to show that it was or is entitled to the money secured by the mortgage of Giannakakos property. The defendant Trust has offered no proof of ownership and the collateral file. Evidence presented by the attorneys for the Plaintiff and Plaintiff (the trust and trustee) suggests that the Trust clearly demonstrates that this loan was not securitized (meaning a fabrication in securitization via d.t.c only); and, moreover was never a true transfer to this Trust

US BANK NATIONAL ASSOCIATON, as Trustee, under the Pooling and Servicing Agreement of the CSMC Mortgage Backed Pass Through Certificates, Series 2007-1 Trust as Plaintiff[s] has no parity with the Defendant, is without prudential standing, the Plaintiff 41

lacks Constitutional Standing and Plaintiff[s] has failed to demonstrate it is the real party in interest.

Subsequent to discovery of the precise identity of the real party in Interest and when this has been proven, by Plaintiff, only then, can Plaintiff attempt proof that it has actual, full and complete authority to act on behalf of the real party in interest, which it must prove, if it cannot prove this, then the real party in interest must be enjoined, as a party; and Must prove that it has this authority, then it must prove that the instrument, the alleged note is negotiable.

Presence of a statuary trust, acting on behalf of certificate holders, this fact causes fatal UCC (Uniform Commercial Code) defect(s) on standing issues, as is present in prima facie form here, The trust nor the trust has not demonstrated it is holder in due course; US Bank National Association is legally devoid of standing to enforce the note in question.

A courts jurisdiction is dependent upon the standing, of the litigant, which includes both constitutional standing and prudential standing.

(See Valley Forge Christian Coll. v. Am. United for Separation of Church and State, 454 U.S. 464, 472 (1982); 2Kowalski v. Tesmer, 543 U.S. 125, 128- 29 (2004) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). Plaintiff also lacks capacity.

New Jersey Mortgage Corp., now an inactive, defunct corporation, the original lender as stated on the Deed of Trust in section [c] Lender of the subject Deed of Trust, may have the required standing, but NJMC is not enjoined.

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The original lender has not lawfully conveyed the Deed of trust and its Note in a proper legal manner, to the Trust in keeping with the rules of the Pooling and Servicing Agreement.

Constitutional Standing under Article III, minimally, will require that a party, must, have suffered some actual or threatened injury as a result of the Defendants` conduct, that the injury be traced to the challenged action, and that it is likely to be redressed by a favorable decision, the Plaintiff cannot satisfy this basic element with lawful success. Foreclosure agents and servicers must prove they have authority to act for a party that has standing.

(See In re Scott, 376 B.R. 285 290 (Bankr. D. Idaho 2007); Kang Jin Hwang, 396 B.R. at 767; Jacobson, supra at 12. The assignments of mortgage are Robo-Signed, and are legally deficient, by stated black letter law.

The home loan was transferred into a pool of loans to be sold on Wall Street; this pool of loans is governed by a Pooling and Servicing Agreement, under the statutory trust, to which is closed and under trust law can only be terminated in kind or in cash position Not to mention the fact the note in question was sold away from the Trust.

Based on the law, the terms of the Pooling and Service Agreement, the failure to show the proper chain of endorsements, and the arguments contained herein, permanently deny US Bank National Association from foreclosing on the property because they have failed to make the required showing that they are or ever were or ever could be the holder of the mortgage/Deed of Trust and promissory note.

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STANDING

Standing requests are governed by FED. R. BANK R. P. 4001(a)(1), to which FED. R. Bank R. P. 9014 is applicable. Rule 9014, in turn, incorporates Rule 7017, which makes FED. R. Civ. P. 17 applicable ([a]n action must be prosecuted in the name of the real party in interest.;). The standing doctrine involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise. (See Kowalski v. Tesmer, 543 U.S. 125, 128-29, 125 S. Ct. 564, 160 L. Ed. 2d 519 (2004) (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S. Ct. 2197, 45 L. Ed. 2D 343 (1975)).

Constitutional standing under Article III requires, at a minimum, that a party must have suffered some actual or threatened injury as a result of the defendants conduct, that the injury be traced to the challenged action, and that it is likely to be redressed by a favorable decision. (See Valley Forge Christian Coll. v. Am. United for Separation of Church and State, 454 U.S. 464, 472, 102 S. Ct. 752, 70 L. Ed. 2d 700 (1982)(citations and internal quotations omitted)). Beyond the Article III requirements of injury in fact, causation, and redressibility, the creditor must also have prudential standing, which is a judicially-created set of principles that places limits on the class of persons who may invoke the courts powers. (See Warth v. Seldin, 422 U.S. 490, 499, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975)). As a prudential matter, a plaintiff must assert his own legal interests as the real party in interest. (See Dunmore v. United States, 358 F.3d 1107, 1112 (9th Cir. 2004), as found in FED. R. CIV. P. 17, which provides [a]n action must be prosecuted in the name of the real party in interest.)

In re Mitchell, Case No. BK-S-07-16226-LBR (Bankr.Nev. 3/31/2009)(At page 10) the Court found that MERS does not have standing merely because it is the alleged beneficiary 44

under the deed of trust. It is not a beneficiary and, in any event, the mere fact that an entity is a named beneficiary of a deed of trust is insufficient to enforce the obligation. In re Maisel, the Bankruptcy Court for the District of Massachusettes found that a lender did not have standing to seek relief from the automatic stay because it did not have an interest in the property at the time it filed its motion for relief. 378 B.R. 19, 22 (2007)

THE PROMISSORY NOTE EVIDENCES THE REAL PARTY IN INTEREST, AND THAT PARTY IS NOT MERS OR US BANK NA

Transfers of mortgage paper may be made outright (sale) or by pledge (as security for a loan to the transferor.). In either event, to perfect the transfer, the transferor should physically deliver the note to the transferee. Without a physical transfer, a sale of the note could be invalidated as a fraudulent conveyance and a transfer in pledge could be invalidated as unperfected.

Referencing: (California Mortgages and Deeds of Trust, and Foreclosure Litigation, by Roger Bernhardt, Fourth Edition, section 1.26) One without a pecuniary interest in the Mortgage Loan is not an oblige under the debt and, thus, has no legal standing to foreclose ab initio. (Watkins v. Bryant (1891) 91C 492, 27 P 77)

MERS HELD NO ENFORCEABLE BENEFICIAL INTEREST AND COULD NOT PASS ANY SUCH INTEREST TO US BANK NA

US Bank National Associaitions interests if any flow from MERS interests. US Bank National Associations ignores the plain language of the mortgage that names MERS as a nominee: MERS is Mortgage Electronic Registration Systems, Inc. MERS is a separate corporation that is acting solely as a nominee for Lender and Lenders successors and assigns. MERS is the mortgagee 45

under this Security Instrument.

Therefore, if US Bank National Assocaition, is going to demonstrate an equitable assignment of the note, it must first show that MERS had rights to the un-indorsed Note which it could assign to US Bank National Association or the Trust. However, the terms and provisions of the MERS mortgage expressly refute the notion that MERS owned or held the note at inception. The mortgage was not countersigned by the original note holder/lender (New Jersey Mortgage Corp) such as to give MERS any rights or interests in the note.

As well the Note itself admits of no rights or interests in MERS. Only the Homeowner signed the mortgage and it is indisputable that she cannot award, grant or otherwise deign to transfer the rights of the obligee, the note holder, to another. The mortgage granted no power or authority to MERS (a mere nominee holding only the lien, not the note) to sell or transfer the note or mortgage or to assign its duties as nominee.

The Note was not indorsed to US Bank, US Bank didnt take the Note pursuant to negotiation under the UCC. US Bank with taking whatever rights MERS had by the Assignment of Mortgage from MERS to US Bank etc and/or the Trust. MERS could not assign any greater rights to US Bank or in its capacity as trustee than MERS had.

In Carpenter v. Longan, 16 Wall. 271, 83 U.S. 271, 274, 21 L.Ed. 313 (1872), the U.S. Supreme Court stated The note and mortgage are inseparable; the former as essential, the latter as an incident. An assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity.

An obligation can exist with or without security. With no security, the obligation is unsecured 46

but still valid. A security interest, however, cannot exist without an underlying existing obligation. (Hensley v. Hotaling (1871) 41 C 22; Turner v. Gosden (1932) 121 CA 20, 8 P. 2d 505; Lee v. Joseph (1968) 267 CA2d 30, 72 CR 471) It is impossible to define security apart from its relationship to the promise or obligation it secures. (Civil Code 2872, 2909, 2920; California Mortgages and Deeds of Trust, and Foreclosure Litigation, by Roger Bernhardt, Fourth Edition, 1.11) The obligation and the security are commonly drafted as separate documents typically a promissory note and a deed of trust. If the creditor transfers the note but not the deed of trust, the transferee receives a secured note; the security follows the note, legally if not physically. (Civil Code 2936; Seidell v. Tuxedo Land Co. (1932) 216 c 165, 13 P.2d 686. Lewis v. Booth (1935) 3 C.2d 345, 44 P.2d 560) (endorsement of note transferred deed of trust). If the transferee is given the deed of trust without the note accompanying it, the transferee has no meaningful rights except the possibility of legal action to compel the transferor to transfer the note as well, if such was the agreement. (Kelley v. Upshaw (1952) 39 C.2d 179, 246 P.2d 23; Polhemus v. Trainer (1866) 30 C 685)

When one transferee receives the note and another receives the deed of trust, the one holding the note prevails, regardless of who first received a transfer.

Adler v. Sargent (1895) 109 C. 42, 41 P. 799. (California Mortgages and Deeds of Trust, and Foreclosure Litigation, by Roger Bernhardt, Fourth Edition, section 1.25)

Transfers of mortgage paper may be made outright (sale) or by pledge (as security for a loan to the transferor.) In either event, to perfect the transfer, the transferor should physically deliver the note to the transferee.

Without a physical transfer, a sale of the note could be invalidated as a fraudulent conveyance 47

(under Civil Code 3440), and a transfer in pledge could be invalidated as unperfected (under Com Code 9313-9314).

(California Mortgages and Deeds of Trust, and Foreclosure Litigation, by Roger Bernhardt, Fourth Edition, section 1.26) One without a pecuniary interest in the Mortgage Loan is not an obligee under the debt and, thus, has no legal standing to foreclose ab initio. (Watkins v. Bryant (1891) 91C 492, 27 P 77) Where the mortgagee has transferred only the mortgage, the transaction is a nullity and his assignee, having received no interest in the underlying debt or obligation, has a worthless piece of paper. (4 RICHARD R. POWELL, POWELL ON REAL PROPERTY, 37.27[2] (2000);

In re Mitchell, Case No. BK-S-07-16226-LBR (Bankr.Nev. 3/31/2009)(At page 12) MERS website admits at pages 10, 20, 22, 26, 34, 38, 40, 42, 44, 46, 62, 68, 72, 76, 78, 88, 89, 99: MERS stands in the same shoes as the servicer to the extent that it is not the beneficial owner of the promissory note. An investor, typically a secondary market investor, will be the ultimate owner of the note. (fn)

Even if the servicer has physical custody of the note, custom in the mortgage industry is that the investor (Fannie Mae, Freddie Mac, Ginnie Mae or a private investor) owns the beneficial rights to the promissory note.

In the consolidated cases of In re Foreclosure Cases, 521 F. Supp. 2D 650, 653 (S.D. Oh. 2007), a standing challenge was made and the Court found that there was no evidence of record that New Century ever assigned to MERS the promissory note or otherwise gave MERS the authority to assign the note. 48

Beginning with this case, courts around the country started to recognize that MERS had no ownership in the notes and could not transfer an interest in a mortgage upon which foreclosure could be based.

In LaSalle Bank NA v. Lamy, 824 N.Y.S.2d 769 (N.Y. Supp. 2006), the Court denied a foreclosure action by an assignee of MERS on the grounds that MERS itself had no ownership interest in the underlying note and mortgage.

In the case of In re Mitchell, Case No. BK-S-07-16226-LBR (Bankr.Nev., 2009), the Court stated In order to foreclose, MERS must establish there has been a sufficient transfer of both the note and deed of trust, or that it has authority under state law to act for the notes holder. (At page 9) The Court found that MERS has no ownership interest in the promissory note.

The Court found that though MERS attempts to make it appear as though it is a beneficiary of the mortgage, it in fact is not a beneficiary.

The Court stated But it is obvious from the MERS Terms and Conditions that MERS is not a beneficiary as it has no rights whatsoever to any payments, to any servicing rights, or to any of the properties secured by the loans.

TRANSFER OF RIGHTS IN THE PROPERTY

The beneficiary of this Security Instrument is MERS (solely as nominee for Lender and Lenders successors and assigns) and the successors and assigns of MERS. This Security Instrument secures to Lender; (i) the repayment of the Loan, and all renewals, extensions and modifications of 49

the Note; and (ti) the performance of Borrowers covenants and agreements under this Security Instrument and the Note. For this purpose, Borrower irrevocably grants and conveys to Trustee, in trust, with power of sale, the following described property located in CA

In the case of In re Vargas, 396 B.R. 511, 520 (Bankr.C.D.Cal., 2008) , the Court stated: MERS is not in the business of holding promissory notes. (fn 10: MERS, Inc., is an entity whose sole purpose is to act as mortgagee of record for mortgage loans that are registered on the MERS System.

This system is a national electronic registry of mortgage loans, itself owned and operated by MERS, Inc.s parent company, MERSCORP, Inc.)

In the case of In re Sheridan, Case No. 08-20381-TLM (Bank r. Idaho, 2009) MERS moved for relief from the stay. The Court stated that MERS Counsel conceded that MERS is not an economic beneficiary under the Deed of Trust.

It is owed and will collect no money from Debtors under the Note, nor will it realize the value of the Property through foreclosure of the Deed of Trust in the event the Note is not paid. The Court stated Further, the Deed of Trusts designation of MERS as beneficiary is coupled with an explanation that MERS is . . . acting solely as nominee for Lender and Lenders successors and assigns. The Court stated Even if the proposition is accepted that the Deed of Trust provisions give MERS the ability to act as an agent (nominee) for another, it acts not on its own account. Its capacity is representative.

In Landmark National Bank v. Kesler, 216 P.3D 158 (Kansas, 2009), the Kansas Supreme Court extensively analyzed the position of MERS in relation to the facts in that case and other 50

non-binding court cases and concluded that MERS is only a digital mortgage tracking service. (At page 168) The Court recited that MERS never held the promissory note, did not own the mortgage instrument (though the documents identified it as mortgagee), that it did not lend money, did not extend credit, is not owed any money by the mortgage debtors, did not receive any payments from the borrower, suffered no direct, ascertainable monetary loss as a consequence of the litigation and consequently, has no constitutionally protected interest in the mortgage loan; and, furthermore, Christopher L. Peterson, Associate Professor of Law, University of Florida, testified at a hearing before the U.S. Senate Committee on Banking, Housing, and Urban Affairs Subcommittee on Securities, Insurance, and Investment and stated:

MERS is merely a document custodian. . . . The system itself electronically tracks ownership and servicing rights of mortgages. . . . The parties obtain two principal benefits from attempting to use MERS as a mortgagee of record in nominee capacity. First, under state secured credit laws, when a mortgage is assigned, the assignee must record the assignment with the county recording office, or risk losing priority vis--vis other creditors, buyers, or lienors. Most counties charge a fee to record the assignment, and use these fees to cover the cost of maintaining the real property records.

CONCLUSION AND RELIEF SAUGHT

The request of the Defendant in this action as it pertains to the real property is relative to the transfer of the Genuine Original Promissory NOTE, which is currently pendente lite and therefore US Bank National Association Associates, LP., may be justly barred from claims to collect, selling, or gain title to the Defendants real property until all matters concerning the Genuine Original Promissory NOTE are settled and/or dismissed by this Court.

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The Defendant has the substantial right to have this Court sequester the Genuine Original Promissory Note; until then US Bank National Association, should not be allowed to foreclose on the Defendants loan or real Property; notwithstanding said foreclosure being unlawful or not. In fact, this Court should sequester the Genuine Original Promissory Note as the Genuine Original Promissory Note is a pertinent issue in this case and any adjudication of this matter may be unenforceable and/or invalid if the Genuine Original Promissory Note is somehow destroyed, transferred and/or lost.

It is incumbent on this Court to protect the interests of all parties and said interest is reliant on the Genuine Original Promissory Note being in good condition and not altered in any way by any party during this case.

Pursuant to Perry v. Fairbanks, Id., this Court may be required to immediately cancel and hold said Genuine Original Promissory Note, if the foreclosure does proceed in accordance with any possible future ruling of this Court, and not to mention the inherent fact of the violation of the National Housing Act, which further controverts this illegal foreclosure.

Sequestration of the Genuine Original Promissory Note is in no way similar to any so called show me the note theories as espoused on the internet; and other legal arguments, as the Defendant is not requesting to see the Genuine Original Promissory Note. The Defendant is ONLY requesting that this Court protect the Defendants due process of law rights to have the property of interest in this matter be protected by this Court.

The Defendant states on and for this Courts record that The Defendant is in fact the TRUE OWNER of the real property in question, and that any claim of legal ownership by any party is unsubstantiated; and, TRUE OWNERSHIP is a higher Right than legal ownership in ALL matters pursuant to Keech v. Stanford 1726, which has never been abrogated and/or 52

abolished and/or altered by any court in this nation.

The Defendant also invokes The Defendants right to replevin action pursuant to applicable State Constitution and Statutes.

The lawfulness and or fraudulent nature of the judicial foreclosure proceeding withstanding or notwithstanding; once US Bank National Association, attempts to take possession of the real property in question or possess claims, US Bank National Association, may be required by the laws of Florida; and others, to return the Genuine Original Promissory Note relating to the real property of the Defendant immediately after the foreclosure or the foreclosure may not be considered lawfully consummated.

Accordingly, The Defendant hereby moves this Court to sequester the Genuine Original Promissory Note until this case is fairly adjudicated; and after said adjudication return and/or cancel the Genuine Original Promissory Note pursuant to this Courts lawful and fair decision.

The Defendant fear that the Genuine Original Promissory Note may be somehow transferred and/or sold and/or otherwise held by an improper party are sufficient grounds for his request for sequestration as the Defendant has provided sufficient evidence to this Court that the Defendants, jointly and/or separately, alter, falsify and/or forge documents and record such documents into a public office.

Sequestration of the Genuine Original Promissory Note in no way harms the Plaintiff, if they are the true party of interest. Presenting the instrument does not change their claims; but, will be evidence beyond a shadow of a dough as to the true party of interest.

The ONLY possible harm that may come to Plaintiff from this Courts ruling to sequester the Genuine Original PROMISSORY NOTE, is if the Plaintiff is not in possession of the 53

Genuine Original PROMISSORY NOTE and therefore cannot avail the Genuine Original PROMISSORY NOTE for sequestration, as this would compound the situation and bring light to the actions of the Plaintiff and their Attorney to be FRAUDULENT; FRAUD UPON THE COURTS AND THE DEFENDANT.

The possibility of harm to The Defendant for refusal of this Court to order the sequestration of the Genuine Original PROMISSORY NOTE is immeasurable.

The Defendant may be unlawfully sued by a future party that somehow garners possession of the Genuine Original PROMISSORY NOTE through lawful and/or unlawful means. The Defendant may be forced to again to pay the Genuine Original PROMISSORY NOTE if another party claims to be in possession of the Genuine Original PROMISSORY NOTE.

Accordingly, The Defendant also moves this Court to sequester all copies, certified or not, of the Genuine Original PROMISSORY NOTE in this action.

Factual events pertaining to this matter: a. The Original Lender in this case traded the Defendants the real property for the Genuine Original PROMISSORY NOTE. b. Plaintiff is attempting to take possession of the real property and/or gain judgment against the Defendant pursuant to rights the Plaintiff claims they acquired when they purportedly acquired the Genuine Original PROMISSORY NOTE; c. If successful, Plaintiff MUST by law then cancel the Genuine Original PROMISSORY NOTE and relinquish possession of such to this Court. d. Plaintiff cannot by law be allowed to be in possession of both the real property and the Genuine Original PROMISSORY NOTE, such is also inclusive of all copies, certified or not, of the Genuine Original PROMISSORY NOTE; e. The Defendant cannot by law be stripped of all rights and possession of the real property while the Genuine Original PROMISSORY NOTE is in the possession of Plaintiff, and/or the fact, that the Defendants Promissory note could be the possession of a possible closed Mortgage Backed Securities Trust; 54

f.

g. h.

i. j.

k.

m. n.

The law of equity requires that neither party have both the Genuine Original PROMISSORY NOTE and the REAL PROPERTY; and, THE LAWS APPLICABLE UNDER ARTICLE III, OF THE CONSTITUTION (STANDING); As stated, the Plaintiff filed false and/or forged documents in a public office in Broward County, Florida, each filing being a felony under Florida law; The foreclosure of the real property is not completed nor perfected nor consummated in accordance with Florida law, until such time as the Genuine Original PROMISSORY NOTE is cancelled by this Court and eturned into the possession of the Court or the Defendant. Plaintiff and/or other parties may currently be in unlawful possession of the Genuine Original PROMISSORY NOTE and copies thereof, certified or not; The Defendant is currently in possession of the real property as the True owner, which is one aspect in relation to the original lenger and the Defendants transaction; to which the Plaintiff here claims to have an interest and right under possessory. There is no basis in law for either party in a currency exchange and/or other transaction to achieve possession of all items in the transaction even after default of a party, and/or judgment; There is no factual evidence that The Defendant ever defaulted on the original lender, their successor or assigns, on the Defendants transaction. THE TRUE PARTY OF INTEREST HAS NOT BEEN IDENITFIED PERSUANT TO MERS ID CHECKTHE INVESTER IN UNKNOWN AND IS NOT PROVIDENT. THERFORE, THE DEFENDANT ALSO REQUEST THE JUDGEMENT BE OVERTURNED.

For the foregoing reasons and in the interest of justice and equity, The Defendant moves this Court to sequester the Genuine Original PROMISSORY NOTE and all copies thereof until final adjudication of this mater. Additonally, the Defendant also request the over-turn of all judgements (defaults and summary judgment) applicable under the LAWS OF VOIDED JUDGEMENTS.

Submitted this 23rd, day of November 2012 Respectfully Submitted

______________________________ FRANK KRAWCZYK 10580 TUDOR CIRCLE NORTH ROYALTON, OHIO 44133 440-212-0300 55

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was served on the following:

1.

2.

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IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT IN AND FOR LEE COUNTY, FLORIDA CIVIL DIVISION
US BANK NATIONAL ASSOCIATION, AS TRUSTEE, ON BEHALF OF THE HOLDERS OF THE CSMC MORTGAGE BACKED PASS THROUGH CERTIFICATES, SERIES 2007-1, Plaintiff VS FRANK KRAWCZYK, Defendants __________________________________________/ DEFENDANTS REQUEST FOR HEARING CASE NO: 09-CA-070151

COMES NOW, the Defendant in the above captioned case and matter and request this Honorable Court to set a date for hearing on the following: DEFENDANTS MOTION IN REPLEVIN, in the nature of a writ of right and writ of possession TO SEQUESTER THE GENUINE ORIGINAL SECURITY NOTE INTO THE RECORDS OF THE COURT AND DEFENDANTS PURSUANT TO PLAINTIFFS CLAMS; and all additional facts presented and stated thereto.

Respectfully Submitted

______________________________ FRANK KRAWCZYK 10580 TUDOR CIRCLE NORTH ROYALTON, OHIO 44133 440-212-0300

57

IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT IN AND FOR LEE COUNTY, FLORIDA CIVIL DIVISION
US BANK NATIONAL ASSOCIATION, AS TRUSTEE, ON BEHALF OF THE HOLDERS OF THE CSMC MORTGAGE BACKED PASS THROUGH CERTIFICATES, SERIES 2007-1, Plaintiff VS FRANK KRAWCZYK, Defendants __________________________________________/ DEFENDANTS REQUEST FOR HEARING CASE NO: 09-CA-070151

COMES NOW, the Defendant in the above captioned case and matter and request this Honorable Court to set a date for hearing on the following: DEFENDANTS MOTION IN REPLEVIN, in the nature of a writ of right and writ of possession TO SEQUESTER THE GENUINE ORIGINAL SECURITY NOTE INTO THE RECORDS OF THE COURT AND DEFENDANTS PURSUANT TO PLAINTIFFS CLAMS; and all additional facts presented and stated thereto.

Respectfully Submitted

______________________________ FRANK KRAWCZYK 10580 TUDOR CIRCLE NORTH ROYALTON, OHIO 44133 440-212-0300

58

IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT IN AND FOR LEE COUNTY, FLORIDA CIVIL DIVISION
US BANK NATIONAL ASSOCIATION, AS TRUSTEE, ON BEHALF OF THE HOLDERS OF THE CSMC MORTGAGE BACKED PASS THROUGH CERTIFICATES, SERIES 2007-1, Plaintiff VS FRANK KRAWCZYK, Defendants __________________________________________/ ORDER OF THE 20TH JUDICIAL CIRCUIT SETTING HEARING CASE NO: 09-CA-070151

Pursuant to the request of the Defendant in the above styled case, it is hereby ordered that on ______, of _______, 2012. A hearing shall be held regarding DEFENDANTS
MOTION IN REPLEVIN, in the nature of a writ of right and writ of possession TO SEQUESTER THE GENUINE ORIGINAL SECURITY NOTE INTO THE RECORDS OF THE COURT AND DEFENDANTS PURSUANT TO PLAINTIFFS CLAMS; and all additional facts presented and stated thereto.

DATE: _____________________

__________________________________ PRESIDING JUDE, LEE COUNTY COURTS

59

IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT IN AND FOR LEE COUNTY, FLORIDA CIVIL DIVISION
US BANK NATIONAL ASSOCIATION, AS TRUSTEE, ON BEHALF OF THE HOLDERS OF THE CSMC MORTGAGE BACKED PASS THROUGH CERTIFICATES, SERIES 2007-1, Plaintiff VS FRANK KRAWCZYK, Defendants __________________________________________/ CASE NO: 09-CA-070151

COURT ORDER

Upon review and consideration of the DEFENDANTS MOTION IN REPLEVIN in the nature of a writ of right and writ of possession TO SEQUESTER THE GENUINE ORIGINAL SECURITY NOTE INTO THE RECORDS OF THE COURT AND DEFENDANTS PURSUANT TO PLAINTIFFS CLAMS; and, all additional relief this court shall deem appropriate.

It is hereby ORDERED, that Plaintiff and Plaintiffs Attorney, pursuant to this order produce to this Honorable Court and the Defendant the Security Note/Security Instrument in question; thus satisfying the SEQUESTRATION OF THE SECURITY NOTE/SECURITY INSTRUMENT INTO THE HAND OF THIS HONORABLE COURT.

DATE: _____________________

__________________________________ PRESIDING JUDE, LEE COUNTY COURTS

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