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IN THE UNITED STATES COURT OF APPEALS
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FOR THE TENTH CIRCUIT
William J. Roberts
Plaintiff,- Appellate,
vs.
America's Wholesale Lender, BAC Home Loans Servicing, LP
FKA Countrywide Home Loans Servicing LP, Recontrust
CompanyN.A., Countrywide Home Loans, Inc., U.S. Bank
National Association N.A., U.S. Bank National Association,
Russell S. Walker
Defendants-Appellees
APPELANT RESPONSE TO
THE APPELLEES ANSWERT
OF OPENING BRIEF
Case No. 12-4088
On Appeal from the United States District Court
For the District of Utah
The Honorable Judge Dee Benson
Case No. 2:11-cv-00597-DB
APPELANT RESPONSE TO THE APPELLEES ANSWERT OF OPENING BRIEF
Respectfully submitted,
William J. Roberts Prose
140 MacArthur Ave.
Salt Lake City UT 84115
801-654-5475
Page 1 of 15
...
Appellate Case: 12-4088 Document: 01018927083 Date Filed: 10/04/2012 Page: 1
wjefferyroberts(ii)gmail.com
Oral Argument is not requested.
Contents
Statement of the integrity of Appellees dealing with the court 3
The statement of the legal controversy 8
First Legal Controversy 8
Second Legal Controversy 10
Conclusion 12
Cases
America's Wholesale Lender v. Pagano, 87 Conn.App 474,866 A.2d 698 (2005) ......................... 8
AMERICA'S WHOLESALE LENDER v. Linda K. SILBERSTEIN et al866 A.2d 695 87
Conn.App. 485 (2005) ....................................................................................................................... 8
Statutes
57-1-19. Trust deeds-- Definitions of terms .............................................................................. 8
57-1-22. Successor trustees-- Appointment by beneficiary-- Effect-- Substitution of trustee--
Recording-- Form .................................................................................................................. 8
Utah Code Ann 70A-3-312 .......................................................................................................... 2
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Statement of the integrity of Appellees dealing with the court
The Appellee has been employing a tactic of misrepresenting the Appellant position consistently in
their filing in this case. It seems there only legal strategy is to confuse, deflect, distract, the court
away from the fact that they have no defense. Appellee has not provided a viable legal defense to the
allegation.
The Appellees made a motion to the court for an extension of their time to answer the Appellants
Opening Brief. In this motion the Appellees mislead the court into thinking that the motion was a
mutually agreed upon extension. The court granted the motion because of this misleading by the
Appellee (Exhibit 1) In that Motion for Extension 10 the Appellee states that the "Appellant
therefore respectfully files this motion unilaterally." The Appellant not only didn't make this
motion, but the Appellant adamantly disagreed with the Appellees being granted this extension. The
Appellant didn't agree and should have been able to voice their opposition to the extension. The
Appellant want to make this very clear to the court. The Appellant didn't agree but in a negotiation
with the Appellee Counsel offer to allow this if and only if the Appellee would accept the simple
request that they would stop scheduling trustee's sales of the appellant's home until the case is
adjudicated. This would be normal and civil but necessary because even though Appellee states they
have voluntarily stopped the sale and Counsel Phillip Chang has said to Appellant they will not sell
the home, they continue to scheduled sale dates and attempted to sell the home. The court states that
only under extreme circumstances would an extension be granted to a deadline for filing. The
appellant questions whether having two cases for a law firm is an extreme circumstance and ask the
court to consider the sanction of granting injunctive relief in regards to the Appellee statement they
made to mislead the court into believing this was a mutually agreed upon extension. We ask to court
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to grant Appellant injunctive relief stopping Appellee and Fannie Mae from scheduling a trustee's
sale on the Appellants home during this proceeding.
The Appellees has continually filed documents with the court containing misstatement of the facts
and untruths in an attempt to confuse and mislead the court in this case. We ask the court to carefully
consider anything said by the Appellees as suspect and void of factual basis. We offer the following
as examples of this strategy they have employed. They state in their answer to our brief, that Utah
Code Ann ?OA-3-312 States "Utah Law however expressly allows for a negotiable instrument to
signed "by the use of any name, including trade or assumed name ...... "" That quote and any
reference what so ever to that statement allowing a trade name to do anything in a negotiable
instrument doesn't appear anywhere in the cited code. This is a blatant lie to mislead the court.
In the filings in the case they state continually that the Appellant is confused in the Identity of the
Appellee AWL with the similarly named corporation formed in 2008, in State of New York, owning
the legal name American Wholesale Lender Inc. We're not confused at all about the identity of the
Americas Wholesale Lender (AWL) that signed and executed the note and trust deed. We showed
the facts that it was not a corporation in the state ofNew York when the note was executed by
Americas Whole Sale Lender and Roberts. The note states AWL was a corporation. The Appellee's
have admitted AWL was not a corporation. Also that AWL executed that legal document as a trade
name only, falsely claiming to be corporation. No ware on the Deed of Trust or Note does it say
Country Wide Home Loans (CHL). CHL didn't execute the documents and didn't enter into an
agreement with Roberts. The trade name AWL did. The facts are clear and they are undisputable
and no one including the court should be confused in regards to our understanding of the legal status
of AWL on the day the contract was signed. That is the main point of controversy of the case.
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Countrywide is not involved in the Note and Deed of trust. The controversy is does a trade name or
trade mark have the rights of a person under the law? Does it possess legal capacity to use the law to
take by foreclosure a natural person, real property? There need to be no confusion by the Court that
this is the main controversy at hand
In the Appellee Answer Brief multiple times they state that we can't bring up Fannie Mae as the
possible beneficial owner of the note on appeal because it was not brought up in District Court. On
page 4 of this Answer surprisingly they state See R.at 39 Although Roberts states"[i] is alleged [the
note and REFI Deed] were sold to a sponsor or Depositor of a REMIC Trust Between 7/3/2003 and
1 0/30/2003," The identity is now know to be Fannie Mae See exhibit 2 (Fannie Mae see exhibit 2
Obtained on July 29 2012) The Appellant goes on to state in that paragraph in the initial complaint
that the owner of the note is unknown (now know by BOA admission Exhibit 2). In addition to that
numerous times in the complaint and in subsequent court filing prior to the judge's decision in
district court the Appellant states the name ofthe true owner of the note is unknown but it is not any
of the defendants, and for that reason the defendants do not have the beneficial rights under the trust
deed to foreclose. In 17 pages 4 of the complaint it states "that the named beneficiary knows or has
evidence of the true holder ofthe plaintiffs note". This is clearly a factual statement. Bank of
America Home Loans Servicing (BOA) Now admits to only being the servicer not the beneficial
owner of the note and trust deed. They admit this only after being caught lying to the court by
arguing that they owned the note and trust deed and that they had the right to assign the note and trust
deed. Appellee BOA and AWL filed recorded assignment, 9 years after they sold the loan to Fannie
Mae a Depositor of a REMIC trust, stating on a Corporate assignment that the note and trust deed
were assigned to them by AWL who was the owner of the note and trust deed. Further more they
Recorded Substitution of Trustee to foreclose stating they were the Beneficiaries and they declare a
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default they knew this wasn't true they were a servicer only. This Trust Deed is not a MERS trust
deed and as such doesn't contain any language that would allow anyone but the actual beneficiary to
have any rights under this trust deed. That important fact about the trust deed invalidates all the case
law the Appellee listed in reference of the Appellants misunderstanding of the relationship of the
Investor and the Servicer. The Appellant is clear on the parties to the Trust Deed there is: Trustor
Roberts, Trustee Scott Lundburg Attorney, Beneficiary AWL, there is no Investor on the note.
This is a made up term to confuse the court. The Appellee by their use of searching key words in
Nexus Lexis and not actually reading the trust deed to determine it is not a MERS loan has wasted
the courts and Appellants time with their continued legal rambling, citing dozens of meaningless
cases void of anything that pertains to the fact of the case. MERS Deed Cases are decided on the
fact that they contained the MERS language in the trust deed, stating MERS is the beneficiary for the
beneficiary and its assigns forever. So and MERS member by the use of MERS name have the
ability to assign the ownership of the Trust Deed and foreclose. The Appellants Trust Deed is void
of any MERS language; none of those cases or legal finding applies to this case. The only one with a
legal rights under the note and trust deed in our case is the beneficiary or it's assigns that obtained
legal ownership of the note by assignment from an owner that posses the legal capacity to assign the
note and by law. The new owner would then receive only the legal rights the original beneficiary
posses in the trust deed. Not all the right in the Trust Deed. In our case they would not obtain legal
capacity to execute the trust deed because AWL didn't possess that to assign.
BAC has never been the beneficial owner of the note and had no ownership of the security
instrument. AWL sold whatever rights they possessed to Fannie Mae on 7/3/2003 who is a REMIC
Trust Depositor. Just as Roberts stated in the complaint and now has been discovered and admitted
by BOA. (Exhibit 2) Fannie Mae then deposited the note and security into a REMIC Trust where it
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has remained. IRS regulations only allow the REMIC trust to maintain its pass through tax status if
the loans in the trust remain in the trust or are sold by the trust if needed because of default. Fannie
Mae and or the Trustee of that REMIC trust would not violate that pass through tax status to transfer
a loan out of the trust and then back into the trust. lfthey did that would mean hundreds of thousands
of taxes would be owned by Fannie Mae on the interest it earned on the Trust after being stripped of
it pass through tax status. Again this clearly show the Appellees continued use of deceptive
practices to mislead the court, by their actions and statements in this case. Without the court holding
litigants to answer the allegations in a truthful and honest manor can our legal system continue to
function!
The Appellee answer brief exceeds the limits put on by the court. One reason for this is the Appellee
from pages 19 to 28 went off on an argument about Recon Trust's ability to foreclose on Roberts. It
was clearly pointed out in the district court that all parties agree that the initial filing on Recon Trust
being an unqualified trustee that didn't possess the power of sale was moot! Recon Trust has been
removed as trustee and the notice of default was canceled. The Appellant didn't address this as a
point of appeal in the Appellant brief. Why did the Appellee waste the time of the court to write 9
pages on a moot point that was not include in the appeal? It's simply more of the legal games to
distract the court. They want to confuse the court from the real controversy which they have no
viable defense, and be able to use this case to create a legal precedent for other cases in front of this
court. If the Appellee would have refrained from this suspect legal strategy they may have
completed their Answer Brief succinctly within the courts requirement of 30 pages.
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The statement of the legal controversy
The facts and the controversy in this case are simple and easy to understand. When you strip away
all the acquisitions there are really only 2 legal questions at controversy that court needs to rule on.
After that ruling the causes of action will become clear to the court.
First Legal Controversy
AWL acting as a trade name executed a note and deed of trust with the Appellant. In that note and
deed of trust it stated that AWL was a corporation in New York. The Appellee admits AWL was not
a corporation when it executed the trust deed its legal status was a trade name. Also the trust Deed is
not a MERS loan. These are the facts and all agree this is what the documents have on them.
The Legal Controversy: Does a trade name have legal capacity to execute contracts and jurisdiction
to have standing in court to use the law to foreclose.
Appellant Argument: AWL does not possess the rights of a natural person. Only a real person or a
legal entity that was given the rights of a natural person possesses those rights. A trade name or trade
mark does not have legal capacity base of our constitution or the law of the land. Appellant offers an
identical argument as their legal precedence cites; America's Wholesale Lender v. Pagano, 87
Conn.App 474, 866 A.2d 698 (2005). and AMERICA'S WHOLESALE LENDER v. Linda K.
SILBERSTEIN et al 866 A.2d 695 87 Conn.App. 485 (2005). In both cases it was found that
AWL didn't have legal capacity to use the law to take natural persons real property. The court want
on to elaborate that since AWL possessed no legal capacity, if they transferred the note and trust
deed, they could only transfer the rights they possessed under the law. The new note owner would
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have no legal capacity. Transferring the note to a new entity that had the rights of a natural person
would not solve the lack of legal capacity AWL created when they created a flawed note and trust
deed.
The decision has no basis in Connecticut law it's was the fundamental foundation of the law that the
Connecticut court used as the basis of their decision simply the legal concept of Jurisdiction.
The Appellee has stated the cases are not similar we argue they are identical. The parties are AWL
and the home owner. The controversy in front of that court was a trade name executed a mortgage
with a home owner only in the name of the trade name and attempted to use the law to foreclose and
take the home owner a natural person's home from them. In our case a mortgage was executed
between only a trade name and a home owner a natural person and the assigns of the trade name are
trying to use the law of non-judicial foreclosure to take the home of the natural person. The
controversy in the Connecticut case and our case are identical.
The Appellee Argues that the Appellant is confused about the entity and CHL signed the documents.
That is a false statement CHL is not mentioned anywhere on the note or trust deed. CHL was not a
party to the transaction AWL and Roberts were the parties. They then make a completely false
statement that Utah Code Ann ?OA-3-312 States expressly allows for a negotiable instrument to be
signed by the use of any name, including trade or assumed name. That is a complete fabrication, that
statute does not address that at all. They then argued that the Appellant didn't properly introduce the
two Connecticut cases even though in his decision District Judge Benson address that he weighed
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both the Appellants Objection to Magistrates Alba Recommendation and The Supplemental
Authority, both filing contained the citation of the two Connecticut case.
The Appellee has failed to make any creditable legal argument that defends this accusation and
without a credible legal defense the Appellant asks the court to rule in favor of the Appellants motion
for summary judgment granting all the Appellant causes of action quieting the title and damages as
seen fit by the court.
Second Legal Controversy
The facts: None of the Appellees is the current beneficial owner of the note. The named beneficiary
of the note who was AWL hade knowledge who the current owner and beneficiary was. The Note
and trust deed was sold to a sponsor or depositor of a REMI C Trust Between 7/3/2003 and
1 0/30/2003REMIC. The Appellee AWL, BAC were not the owner of the note, knew they were not
have admitted they were not in the Answer. They fabricated false and misleading corporate
assignments of the note and deed of trust and recorded the false and misleading documents at the
county. They did this to fraudulently manufacture a false change of title to wrongfully non-judicially
foreclose on the deed of trust in which they didn't own the note and trust deed. The Appellee has
finally admitted that they are not the owner of the note and have only been the servicer. This trust
deed is a Non MERS note and trust deed. As Such there is a nominal beneficiary MERS and there
assigns in interest. There is not any terminology in the trust deed defining a new category investor.
That terminology is used by the Appellee to confuse the court of the real issue. The real issue is that
Fannie Mae was uncovered and confirmed as the beneficial owner of the note and trust deed
executed by AWL and Roberts. Fannie Mae bought the note and any legal capacity that AWL had
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on 7/3/2003. The Appellees had no right to execute any corporate assignments in their name after
Fannie Mae became the owner of the note and the beneficiary of the trust deed. Yet they answered
allegations in the case and recorded legal documents after the filing of the case stating they were the
beneficiary of the note and trust deed.
Now that they have been caught and it is uncovered that Fannie Mae was the unknown depositor of
the REMIC trust that bought the note, they try to deflect the fact that they have created false
documents signed as the beneficiary, substituted trustees and executed corporate assignment multiple
times ofthe note and trust deed a right only afforded to the beneficiary. They did this knowing they
were not the beneficiary.
The law: 57-1-19. Trust deeds-- Definitions of terms. (1) "Beneficiary" means the person
named or otherwise designated in a trust deed as the person for whose benefit a trust deed is given, or
his successor in interest.
57-1-22. Successor trustees-- Appointment by beneficiary-- Effect-- Substitution of trustee
--Recording-- Form. (1) (a) The beneficiary may appoint a successor trustee at any time by
filing for record in the office of the county recorder of each county in which the trust property or
some part of the trust property is situated, a substitution of trustee.
The code is plain language and as such should be interpreted by the court as written the Beneficiary
is the only one and or it's assigns in interest that is allowed to execute documents and record
documents.
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The Appellant has presented the facts he pled them in the initial complaint everything I have claimed
is true and factual. My argument is simple the Fannie Mae the Beneficiary is the only party that can
use the power of the trust deed and foreclose. The Appellee has as stated in the complaint filed false
and misleading documents in which they knew they were not the beneficiary yet they still filed them
stating they were to unlawfully create a false chain oftitle that would allow them the foreclose.
Because there are at least three clouds of title and a missing assignment it is necessary for the court to
have a quiet title hearing and have the beneficiary show up with the wet ink signed note and deed of
trust to clear the clouds of title. The Appellant has provide that he possesses the highest and best
proof of title in the warranty deed since the Appellees claim of title are fraudulent.
The Appellee in the district court case made the argument they were the owner of the note. Presented
in their filing that the Appellee was the beneficiary at the time of each assignment and recording.
Now in their answer when they have been proven that they have put fraud on the court they introduce
a new argument that they as servicer can execute the document claiming to be the owner and to
transfer the ownership out of Fannie Mae hands. This is a failed argument because it is not a MERS
loan and there is only the beneficiary and its assigns there is not separate language splitting the
beneficial interest of the note and trust deed from the note owner to the servicer. The court should
reject this and rule in favor to the Appellant because Utah Law clearly states the beneficiary and also
clearly states the beneficiary is a person.
Conclusion
I ask the court to not be confused by the weight of the paper filed by the Appellees or their keyword
searches on Lexus Nexus but to look at the facts read in the law in plain language and rule in favor of
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the Appellant that the District Judge erred and find that the Appellee has no legal capacity and no
jurisdiction to use the law to wrongfully take the Appellants horne and quiet the title and award
damages as seen fit by the court.
Respectfully submitted this 21th day of September, 2012.
William J. Roberts
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Exhibit 1
Page 14 of 15
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UNITED STATES COURT OF
FOR THE TENTH CIRCUIT
WILLIAM J. ROBERTS,
Plaintiff - Appellant,
v. No. 12-4088
AMERICA'S WHOLESALE LENDER, et
al.,
Defendants- Appellees.
ORDER
( ( ' . 1
This matter is before the 'court on Appellees' motion for extension of time to file
their opening brief in this appeal. Because i1: appears that Appellant agrees to the date
proposed by Appellees, the request is granted. Appellees' opening brief shall be filed on
or before September 4, 2012.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
: / '\ _y /2-r--r----
!C_. 1
by: Jane K. Castro
Counsel to the Clerk
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Exhibit 2
Page 15 of 15
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July 27, 2012
William J. Roberts
140 West MacArthur A venue
Salt Lake City, UT 84115
BankofAmerica ...
Home loans
400 National Way
Mailstop CA6-919-02-22
Simi Valley, CA 93065
Re: Property Address: 140 West MacArthur Avenue, Salt Lake City, UT 84115
Loan Number Ending in: 2284
Dear Mr. Roberts:
We are in receipt of your correspondence dated July 18, 2012, which was received on July 23,
2012, by Bank of America, N.A., as successor by merger to BAC Home Loans Servicing, LP,
regarding the referenced loan.
You requested information regarding the Owner of the Note for this loan, which is as follows:
Federal National Mortgage Association (Fannie Mae/FNMA)
3900 Wisconsin Avenue, NW
Washington, DC 20016
1.800.732.6643
The concerns addressed in your correspondence require further detailed analysis. We will
respond to your request after we have completed our investigation.
If you have any questions in the interim, please contact Nina Hernandez at:
Sincerely,
~ ~
Arlene Araniva
Litigation Specialist II
Qualified Written Request (QWR) Group
805.917.0875
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