STATE OF WISCONSIN

CIRCUIT COURT WAUKESHA COUNTY BRANCH V ______________________________________________________________________________ Bank of America N.A. as servicer for Case No. 11-CV-3333 The Bank of New York Mellon f/k/a The Bank of New York as trustee for Certificateholders of CWALT, Inc. Alternative Loan Trust 2004-35T2 Mortgage Pass Through Certificates, Series 2004-35T2 7105 Corporate Drive PTX-B-209 Plano, Texas 75024, Putative Plaintiffs v. Case Codes: 30404, 30303, 30201, 30106, 30107 Amy Jo Brown 15945 Ridgefield Court Brookfield, Wisconsin 53005, Purported Defendant, Counterclaimant and Crossclaimant and Unknown Spouse of Amy Jo Brown 15945 Ridgefield Court Brookfield, Wisconsin 53005, Nonexistent Party and Mortgage Electronic Registration Systems, Inc., as nominee for Secured Funding Corp 1901 East Voorhees Street, Suite C Danville, Illinois 61834 and HSBC Mortgage Services, Inc. 26525 North Riverwoods Boulevard Mettawa, Illinois 60045 Defendants --------------------------------Amy Jo Brown 15945 Ridgefield Court Brookfield, Wisconsin 53005, Third Party Plaintiff v. 1

The Bank of New York Mellon f/k/a The Bank of New York, in its corporate capacity and not as Trustee of the CWALT Alternative Loan Trust 2004-35T2 c/o Gerald Hassell, President and CEO One Wall Street New York, New York 10286, Named Plaintiff solely in its capacity as Trustee joined as Third-Party Defendant for Fraud in its corporate capacity and in its capacity as Trustee for Fraud and Quiet Title CWALT, Inc. c/o The Corporation Trust Company Corporation Trust Center 1209 Orange Street Wilmington, Delaware 19801, Third Party Defendant for Fraud and Quiet Title and Countrywide Home Loans, Inc. C T Corporation System 8040 Excelsior Drive, Suite 200 Madison , Wisconsin 53717, Third Party Defendant for Fraud ______________________________________________________________________________ BRIEF OF AMY JO BROWN IN RESPONSE TO MOTION TO DISMISS FILED BY BANK OF AMERICA, N.A. ON ITS OWN BEHALF AND PURPORTEDLY FOR CWALT, INC. AND COUNTRYWIDE HOME LOANS, INC. WHICH ARE ITS ALTER EGOS FOR THE PURPOSE OF ISSUING FRAUDULENT SECURITIES FOUNDED UPON MORTGAGE OBLIGATIONS WHICH WERE VOID AB INITIO AND NEVER CONVEYED TO THE CWALT, INC. ALTERNATIVE LOAN TRUST 2004-35T2 AND AGAINST BANK OF NEW YORK MELLON AS CO-CONSPIRATOR IN THE FRAUDS BY PERMITTING ITS NAME TO BE USED TO DECEIVE MS. BROWN AND THIS COURT IN CREATING THE FALSE APPEARANCE THAT THE CWALT, INC. ALTERNATIVE LOAN TRUST 2004-35T2 WAS FUNDED BY THE DELIVERY OF VALID MORTGAGE ASSETS BY THE DEPOSITOR TO THE TRUST, CWALT, INC., NOW A SUBSIDIARY OF BANK OF AMERICA, N.A. ______________________________________________________________________________ STATEMENT OF FACTS Amy Jo Browns Second Amended Answer, Amended Counterclaim and Amended Third Party Complaint was filed, as allowed by the Court, on May 20, 2013. Bank of America, N.A.

(BANA) appears by Attorney Edward Muth of QUARLES & BRADY, LLP, purporting to represent what would appear on the surface to be the diverse and conflicting interests of BANA, as plaintiff on Ms. Browns Amended Counterclaim, Bank of New York Mellon, N.A. (BONY) as purported Trustee of the CWALT, Inc. Alternative Loan Trust 2004-35T2 (the REMIC Trust or the Trust), CWALT, Inc. as purported depositor of Ms. Browns mortgage loan to into the Trust and Cuntrywide Home Loans, Inc. (CHL) purported seller of Ms. Browns mortgage loan to CWALT, Inc. for deposit into the Trust. For purposes of this brief in response to BANAs Motion to Dismiss her Second Amended Answer, Amended Counterclaims and Amended Third Party Complaint, Ms. Brown will continue to distinguish the factual allegations pertaining to the purported separate statuses of what now were suspected to be alter egos egos of Countrywide Financial, Inc. (CFI) and its successor by acquisition on April 27, 2009, BANA. CWALT, Inc. and CHL are wholly owned subsidiaries of BANA and have demonstrated no independence from BANA by appearing by the BANAs counsel, Edward Muth of QUARLES & BRADY, LLP, in these proceeding on June 10, 2013. She will treat BONYs failure to identify its obligations as Trustee of the purported REMIC Trust to the Court and to Ms. Brown, against whom it purports to proceed in foreclosure using a forged mortgage note and a forged mortgage assignment uttered to make it appear that Ms. Browns disputed debt obligation was delivered to the Trust as evidence that BONY has ratified the use of forgeries to proceed against Ms. Brown. The REMIC Trust was required to be closed within 3 months of December 1, 2004 for purposes of the 26 USC sec. 860D preferential tax treatment of its earnings as passive income passed through to its investors. That BONY chooses to be represented by BANAs counsel in these proceedings indicates that BONY, having 3

been served with the Amended Summons, Second Amended Answer, Amended Counterclaim and Amended Third Party Complaint, demonstrates that it is a co-conspirator with BANA, and not an independent third party Trustee with a fiduciary duty to protect the interests of the beneficiaries of the Trust against the loss of REMIC status and damages claims against it for the illegal actions the loan servicer, BANA. The facts upon which Ms. Brown relies are set forth in the Second Amended Answer, Amended Counterclaim and the Amended Third Party Complaint, along with adjudicative facts of which the Court is concurrently asked to take judicial notice. ARGUMENT I. The multiple representation of parties in the Motion to Dismiss brought by a single lawyer demonstrate that the interest of CWALT, Inc., CHL and BONY are identical. A single attorney represents BANA, BONY, CWALT, Inc. and CHL in what would be an obvious conflict of interest. Nevertheless, BANA, BONY, CWALT, Inc. and CHL have common interests: avoiding liability to Ms. Brown for illegal efforts to enforce a void loan obligation and concealing the real facts of the failed conveyance of assets to the Trust in violation of the Pooling and Servicing Agreement (PSA.) CHL purports to be a separate entity from BANA as does CWALT, Inc., but the multiple representation by a single attorney in these proceedings demonstrates what was long suspected: CWALT, Inc. and CHL are, in fact, mere alter egos of BANA as its subsidiaries by BANAs merger with Countrywide Financial, Inc. (CFI), which was the holding company of the stock in Countrywide Bank, FSB, which ceased to exist on April 27, 2009. (See Ms. Browns Request for Judicial Notice, Exhibit A.) The mutual benefit of multiple-party-representation of BANA,

CWALT, Inc. and CHL is the concealment of the failed securitization of Ms. Browns mortgage loan executed on September 17, 2004. That purported loan obligation is void ab initio as having been procured in the name of Americas Wholesale Lender (AWL), a New York corporation, an entity which had no legal existence as a New York corporation on that date or at any time prior to the incorporation of Americas Wholesale Lender, Inc. by third parties having no relationship to CHL, which used AWL as a trade name. (See Request for Judicial Notice, Exhibit B.) The concealment of the void loan benefits CHL because it acquired the void note and mortgage from the closing on Ms. Browns mortgage refinance without ever identifying its interest as the loan originator to Ms. Brown, which would have caused her to question what a loan originator is, as opposed to a conventional lender. The concealment of CHLs involvement in the loan closing prevented Ms. Brown from knowing several essential elements of the transaction: (1) that she was not entering into a valid and enforceable contract with AWL, a New York corporation, because AWL had no legal existence as a corporation in the State of New York or anywhere else; (2) that CHL was the actual loan originator but was not a lender as the term was fraudulently used in the loan documents because CHL, concealing its identity behind AWL, which it pretended was Ms. Browns lender did not loan her any money1;

BANA admits in its brief in support of its Motion to Dismiss, that AWL did not loan Ms. Brown any money in consideration for her note and mortgage where it states, in the fifth and sixth sentences under the subheading: ii. Borrower's fraud allegations lack substantive merit and are discredited by Borrower's own allegations, Borrower has cited no authority for the proposition that extension of credit under a trade name defeats enforceability of the instrument. Pleadings are not required to set forth citations to statutes or case law. Pleadings are not briefs. To the extent that Ms. Brown set forth citations, she did so to make the authority for her causes of action clear on the factual allegations made. But it is now boldly admitted by BANA, that CHL, its alter ego in these proceedings, extended credit on the warehouse line of credit supplied by Bank of America, N.A. to Countrywide Bank,

(3) that CHL had no funds of its own to lend, but was acting as an agent for CFI to keep the loan off the books of Countrywide Bank, FSB in violation of its regulatory obligations2; (4) that the loan was not a conventional mortgage loan but was an extension of the credit of Countrywide Bank, FSB which was void for want of consideration because banks may not loan their credit as if it is money under Wis. Stats. sec. 134.15; (5) that void mortgage documents were taken from Ms. Brown for the sole purpose of purporting to provide collateral for a securities offering, a purpose undisclosed and unknown to Ms. Brown; (6) that CHL purported to sell the void note and void mortgage to CWALT, Inc. in which it had no financial interest because it had paid nothing as and for consideration obtaining Ms. Browns promise to pay and the mortgage for which the consideration was credit extended from BANAs warehouse line of credit through Countrywide Bank, FSB to CHL to be concealed behind AWL and loaned to Ms. Brown; (7) that bank credit is not lawful consideration for a loan under Wis. Stats. sec. 134.15;

FSB through CHL to Ms. Brown. Banks may not lend their credit, but may only loan money, as will be shown below. In its desperation to assert that there was valid consideration for the AWL transaction, BANA has dropped all pretense that money was loaned in exchange for Ms. Browns note and mortgage and urges Ms. Brown to cite legal authority for the proposition that a private corporation, CHL, may not extend credit under a trade name. This is easily done, as will be shown below, because credit is not lawful consideration for any loan and any loan made upon the extension of credit which purports to represent lawful money of the United States or its equivalent value in gold or silver coin is void under Wis. Stats. sec. 134.15 and American Express Co. v. Citizens State Bank, 181 Wis. 172, 194 N. W. 427 (Wis., 1923.) The lending of a banks credit is an ultra vires act for which the corporation is liable without the need to join any of its employees or officers in the action under Zinc Carbonate Co. v. First Nat. Bank of Shullsburg, 103 Wis. 125, 79 N. W. 229 (Wis., 1899.) A pleading against a corporation (and by logical extension) its successors in interest and co-conspirators in the fraudulent transaction is not subject to a demurrer because it cannot benefit from its ultra vires acts.
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(8) that CWALT, Inc. purported to deposit the void note and void mortgage into a REMIC Trust, but never delivered the loan obligations to the Trust as required by the PSA; and (9) that BONY never received the delivery of Ms. Browns void loan documents into the REMIC Trust or any other loan documents on or before the Trusts closing date as required by the Pooling and Servicing Agreement (PSA) when, in fact, the asset-backed securities which were sold to the Trusts investors are backed by nothing, breaching BONYs fiduciary duty to the investors who acquired nothing-backed securities which were insured by MBIA and guaranteed by the United States Treasury under 12 USC sec. 5212 as being backed by mortgage assets. BANAs liability in this action as servicer of the nothing-backed securities for which its is acting as the loan servicer for its co-conspirator, BONY, through its alter egos CWALT, Inc.and CHL, is founded on loan documents which are doubly void in the State of Wisconsin (1) for having been executed in favor of a non-existent entity, AWL and (2) are void as a matter of law because the consideration for the loan is specifically unauthorized and the loan is null and void for lack of lawful consideration under Wis. Stats. sec. 134.15(b). That BANA has now asserted in its brief that AWL was used by CHL to extend credit and not to loan money is the essential proof of the fraud which Ms. Brown has exhaustively pleaded in these proceeding. It is the reason why the original mortgage note was destroyed and only a forgery remains. It is the reason why the mortgage assignment had to be forged. No loan of money was ever made. The entire purpose of the real estate transaction in which CHL and CWALT, Inc., now BANAs subsidiaries by its April 27, 2009 acquisition of CFI, fraudulently obtained Ms. Brown

void note and mortgage executed in favor of AWL3 was to obtain her note and mortgage for the asset-backed securities sold to investors and was never intended to be a mortgage loan. The

liability of BANA, CHL and CWALT, Inc. for the frauds on Ms. Brown and the investors in the CWALT, Inc. Alternative Loan Trust 2004-35T2 are different from the liability of BONY to Ms. Brown and the defrauded investors. BONY has rights to require BANA to repurchase Ms. Browns void loan obligation under the PSA. If CHL and CWALT, Inc. were not mere alter

egos of BANA, as it is now clear by their joint legal representation that they are, CHL would be liable to CWALT, Inc. for purporting to deliver the void loan obligation to CWALT, Inc. CWALT, Inc. is liable for purporting to deliver the void loan obligation to BONY. BONY is liable for purportedly receiving a void loan obligation under the terms of the PSA, because delivery was not made within the 3 month period after the closing date of the REMIC Trust as required by the PSA and 26 USC sec. 860D, which must be strictly followed or the Trust loses its status as a pass-through (passive) entity and becomes liable for income tax on all of its earnings from the payments received from the servicer and distributed to the investors in the nothingbacked securities. Counsel for BANA prefers the interests of its original client in this action and pays no attention to the apparent disparate interests of CHL, CWALT, Inc. and BONY in this action. BONY has a claim against BANA for repurchase of the void loan under the PSA and a claim against CWALT, Inc. for failure to deliver valid and enforceable loan documents. If CWALT, Inc. and CHL had endorsed the note as required by the PSA, BONY would have a claim against

The mortgage documents executed by Ms. Brown are void as given to a nonexistent entity and as founded upon the illegal consideration of an ultra vires extension of credit from BANA to Countrywide Bank, FSB pending a securities sale to the investors in the REMIC Trust.

each of them in reverse succession. Because the original note is a copy of a computer image, on which Ms. Browns signature in blue ink appears, it is a forgery, created in 2011 to bear the endorsement of David A. Spector, as managing director of CHL, when he had left CFI in 2006, BONY breached its duty under the PSA to assure that valid loan documents, properly and timely endorsed were delivered to the REMIC Trust. By appearing for BONY, CHL and CWALT, Inc., counsel for BANA hopes to extend the benefit of the forged note with the forged David A. Spector endorsement to BONY, CHL and CWALT, Inc. by making it appear that the note was endorsed for delivery to the Trust but the forgery fails to accomplish that illusion. Even the forgery fails to to comply with the PSAs requirements for endorsements in succession. The mortgage assignment is a forgery, executed by employees of BAC Home Loans Servicing, LP (BHLS), over which BANA was the managing partner through BC GP, LP. (See Request for Judicial Notice, Exhibit D.) BONY, BANA in its own name as successor in interest to BHLS4, CWALT, Inc. and CHL are all liable for Ms. Browns damages resulting from the frauds alleged. All were acting in concert to defraud her by facilitating the fraud by which Ms. Brown paid in excess of $150,000.00 on a void loan obligation, her loss of use and enjoyment of her home, damages to her reputation as alleged, as well as her consequential damages arising from the fraudulent procurement of void loan documents for the concealed purpose of pretending to back a securities

The original servicer, Countrywide Home Loans Servicing, LP changed its name to BAC Home Loans Servicing, LP (BHLS) and serviced the void mortgage before it was deemed to be in default. BANA, took over the purported servicing of the void loan after BHLS already deemed the void loan to be in default. Therefore, BANA is liable for its FDCPA violations which are continuing through its attempt to obtain payment on the void debt obligation by taking the real estate security and liquidating it for payment of a void debt obligation.

offering with the void documents, which were never delivered to the REMIC Trust. BANA is liable for violations of the Fair Debt Collection Practices Act. BONY, BANA and CHL are the proper parties to the quiet title action. CHL was acting under the trade name of AWL when it procured the mortgage lien in the name of AWL and nominated Mortgage Electronic Registration Systems, Inc. (MERS) to act on its behalf when it knew that AWL, a nonexistent entity, cannot be a member of the MERS registry and MERS cannot act as nominee for a nonexistent entity. The forged mortgage assignment is void under State Bank of Drummond v. Christophersen, 93 Wis.2d 148, 286 N.W.2d 547 (1980), as will be discussed below. The forged mortgage assignment is void and a nullity and conveys no interest to BONY as the Trustee of the purported REMIC Trust. BONY, as purported Trustee of the REMIC Trust is a proper party to the quiet title action because the forged mortgage assignment pretends to grant a mortgage interest to BONY. MERS has not yet been served with process and is a necessary party under Count III. BANAs response to Count III must be disregarded for lack of standing to appear and argue Count III which does not pertain to any of BANAs rights, interests or liabilities in this action, except as it may be liable to BONY for its role in forging the mortgage assignment. BANAs counsel wholly fails to argue against the quiet title action on

BONYs behalf at Count III, stating instead, at footnote 12: Although not specifically advanced against BANA, Borrower's Count IV request for declaratory relief collaterally attacks the assignments of mortgage partially underlying BANAs ability to enforce the debt. Ridiculously, BANA now thinks it can enforce a second mortgage loan claimed by HSBC Mortgage Services, Inc. in which BANA has no interest whatsoever. Counts III and IV are not ripe for adjudication because all necessary to the adjudication of Counts III and IV had not yet been served. 10

BANAs attorney shows how the conflicts of interest in which he has chosen to participate have confused him (which is why lawyers are prohibited from representing parties with conflicting interests under SCR 20:1.7). The Conclusion in BANAs brief in which BANAs counsel purports to be representing BONY, CWALT, Inc. and CHL as well as BANA gives him away completely. The Conclusion of BANAs brief in support of its Motion to Dismiss reads: BANA prays that this Court grant its Motion to Dismiss Borrower's Second Counterclaim with prejudice, and prays for all other relief that this Court should find appropriate. It does not conclude with a prayer for relief for BONY, CWALT, Inc., or CHL, which suggests that BANAs counsel may not have been retained by BONY, CWALT, Inc. or CHL. BONY was served with process on June 3, 2013 at its corporate offices in New York, New York. CWALT, Inc. was served by process delivered to its registered agent in Wilmington, Delaware on June 4, 2013. CHL was served by process delivered to its registered agent in Madison, Wisconsin on May 28, 2013. The Motion to Dismiss purportedly filed on behalf of BANA, CWALT, Inc., CHL and BONY is dated June 10, 2013. Counsel for BANA was served on May 20, 2013 and it seems quite clear from BANAs brief that the names of BONY, CWALT, Inc. and CHL were simply added into the Notice of Motion and the signature line of BANAs counsel, without any independent investigation into the merits of their claims and defenses. BANA would have this Court believe that three diverse entities would all retain its counsel, with the following actual time frames: BONY within less than 5 full business days of actual service at its corporate offices in New York, New York; CWALT, Inc. within less than 4 full business days of service on its registered agent in Wilmington, Delaware; and CHL within 8 full business days of service on its registered agent in Madison, Wisconsin. The service upon 11

registered agents (CWALT, Inc. and CHL) requires the documents to be forwarded to the entity for which process is received. CWALT, Inc. is a limited purpose subsidiary of the Bank of America, with its principal offices in Calabasas California. It has no registered address with the Delaware Secretary of State. CHL lists its principal 4500 Park Granada, CH-11, Calabasas,

California 91302 with the Wisconsin Department of Financial Institutions. (Request for Judicial Notice Exhibit B.) It is not known how the registered agents in Delaware and Wisconsin forwarded the Amended Summons, Second Amended Answer, Amended Counterclaims and Amended Third Party Complaint to CWALT, Inc. and CHL, but assuming that they were scanned and sent electronically to those Third Party Defendants, it would be necessary for the the Amended Summons, Second Amended Answer, Amended Counterclaims and Amended Third Party Complaint to be processed and referred to counsel within 4 and 8 business days respectively. It is no coincidence that the Third Party Defendants would all retain the same counsel within 8, 5, and 4 business days prior to the Motion to Dismiss being prepared by BANAs counsel on June 10, 2013. What really happened was that BANAs then only counsel of record in these proceedings, Christina Demakopoulos, forwarded the Amended Summons, Second Amended Answer, Amended Counterclaims and Amended Third Party Complaint to Attorney Muth of QUARLES & BRADY, LLP after she was served with Ms. Browns amended pleadings on May 20, 2013. Attorney Muth prepared the Motion to Dismiss in the names of BANA and the Third Party Defendants, BONY, CWALT, Inc. and CHL at the direction of BANA. That he was acting at the direction of BANA is made obvious by the Conclusion in his brief in which he does not even seek relief on behalf of any party except BANA and in the text of the brief, he only recites that 12

claims are brought against BANA, BONY, CWALT, Inc. and CHL, without making a single distinguishing argument on behalf of the Third Party Defendants. It is now clear from the multiple party representation that CWALT, Inc. and CHL are alter egos of BANA and that BANA is and always has been the source of the frauds perpetrated against Ms. Brown and similarly situated homeowners as well as frauds perpetrated against the investors in the nothing-backed securities. For BONYs part, it is allowing its name to be used to make it appear that there is a valid, third party trustee with a fiduciary duty to the investors in the nothing-backed securities of the purported REMIC Trust, when it has wholly failed to require compliance with the PSA. BONY is conspiring with BANA to conceal its liability for failing to assure that the securities are backed with the assets represented to have been deposited into the trust, by CWALT, Inc., which CWALT, Inc. pretended to acquire from CHL. CHL for its part pretended to be an independent seller of mortgage loans and frequently concealed its identity behind a nonexistent entity to avoid detection of the securitization fraud in which BONY and its parent company, first CFI, now BANA, are engaged. II. BANA is a debt collector covered by the Fair Debt Collection Practices Act (FDCPA) because it is attempting to collect a debt not owed to it, purportedly on behalf of BONY as a mortgage servicer and took over the mortgage servicing rights by merger with BAC Home Loans Serving, LP when the debt was being treated as in default. BANA gave Amy Jo Brown written notice that it was taking over the servicing of a mortgage loan in July, 2011. On August 6, 2011, Ms. Brown sent a debt validation letter to BANA. BANA to the debt validation letter by stating that the notice of change of servicer had been sent to her by mistake. The notice of change of servicer was not a mistake. BANA had indeed become the servicer of a loan deemed by it to be in default, by merger with BAC Home

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Loans Servicing, LP (BHLS), which had originally serviced her mortgage loan under the name of Countrywide Home Loans Servicing, LP (CHLS) before CHLS changed its name to BHLS. Ms. Brown had stopped making payments to BHLS in May, 2009. BHLS deemed the disputed loan obligation to be in default and filed the first foreclosure action against her in Waukesha County Circuit Court Case No. 10-CV-5383 on December 22, 2010, which it unilaterally dismissed on January 21, 2011. There can be no legitimate dispute that, when BANA took over the servicing of the mortgage loan, the mortgage loan had been deemed by its predecessor to be in default when it merged with BHLS on July 1, 2011 (Request for Judicial Notice Exhibit C.) BANA, by succeeding in interest to BHLS, took the mortgage loan subject to BHLS determination that the loan was in default and that a foreclosure proceeding had already been commenced and dismissed in Waukesha County Circuit Court Case No. 10-CV-5383. It was obligated under the FDCPA to respond to the debt validation request of Ms. Brown, but it did not do so. It attempted to dodge its obligations under the FDCPA, which arose when it took over the servicing rights to a mortgage loan which its predecessor in interest had already deemed to be in default, by responding to Ms. Browns debt validation request by stating that it had sent the notice of change of mortgage servicer to her by mistake. Under 15 USC sec. 1692g, Ms. Brown is entitled to a response to the debt validation letter before collection actions may continue. The only way that BANA can claim that the notice of change of servicer was a mistake is if BANA had not taken over the loan servicing rights from BHLS. There is no dispute that BANA succeeded to BHLS servicing of a mortgage loan its predecessor deemed to be in default. By undertaking to service a mortgage loan its predecessor had deemed to be in default, BANA is a debt collector under the FDCPA and is liable for its violations thereof, including the 14

commencement and continuation of these proceedings. BANA succeeded not only to the servicing rights of its predecessor, BHLS, by merger, but to its liabilities as well. BHLS knew that its employees, under the instructions of BAC GP, LP of which BANA was the managing partner, forged the mortgage assignment falsely claiming to be officers of Mortgage Electronic Registration Systems, Inc. (MERS) on September 16, 2009. The forged mortgage assignment is attached to BANAs Complaint as its Exhibit D. Ms. Browns Exhibit D for which Judicial Notice is requested is BANAs recorded admission filed in the Worchester, Massachusetts Deed Registry. By Exhibit D, BANA admits that Rhoena Rice and Aaron Formby were BHLS employees which BANA (as managing partner of BC GP, LP) instructed to sign documents purporting to transfer real estate interests on behalf of MERS. Rice and Formby were not officers of MERS, but they executed the mortgage assignment under that false authority for the purpose of deceiving the public, by recording the forged assignment with the Kenosha County Register of Deeds, Ms. Brown and the Waukesha County Circuit Court. BHLS employees (Rice and Formby) assigned the mortgage Ms. Brown gave to AWL, a nonexistent entity, for which MERS was named as nominee to hold bare legal title, to their employer, the loan servicer for the purported REMIC Trust. It is axiomatic that an assignment must have two parties: the assignor and the assignee. An assignee cannot assign the assignors interest to the assignee. There is no such thing as an assignment from an assignee to itself. The mortgage assignment upon which BANA proceeds is a forgery in violation of Wis. Stats. sec. 943.38(1), which provides: 943.38 Forgery. 15

(1) Whoever with intent to defraud falsely makes or alters a writing or object of any of the following kinds so that it purports to have been made by another, or at another time, or with different provisions, or by authority of one who did not give such authority, is guilty of a Class H felony: (a) A writing or object whereby legal rights or obligations are created, terminated or transferred, or any writing commonly relied upon in business or commercial transactions as evidence of debt or property rights; or (b) A public record or a certified or authenticated copy thereof; or (c) An official authentication or certification of a copy of a public record; or (d) An official return or certificate entitled to be received as evidence of its contents. (Emphasis added.) In State Bank of Drummond v. Christophersen, supra, at page 160, the Supreme Cour of Wisconin held, when addressing a forged mortgage, that a forged mortgage is void. It held. the giving of a void mortgage, a valueless thing, was not a consideration that the law can recognize. Forging a mortgage note and a mortgage assignment is criminal, and therefore, unsconscionable conduct, prohibited by the FDCPA at 15 USC sec. 1692e(2)(A.) CWALT Alternative Loan Trust 2004-35T2 never received the delivery of Ms. Browns mortgage note nor had the mortgage been assigned to it within the 3 months following the closing date of the trust (more than 4 years before the forged mortgage assignment was created, uttered and recorded.) This second attempted foreclosure on Ms. Browns home (now by BANA as successor to BHLS) is an attempt to collect a debt not owed to BONY as Trustee for the CWALT Alternative Loan Trust 2004-35T2. BANA, as a debt collector, was informed in writing that the debt is disputed. Its records demonstrate that the disputed debt was already deemed to be in default by the time BANA succeeded to the servicing rights for the purported loan by merger with BHLS. The purported loan obligation is void ab initio for fraud in the inducement, whereby Ms. Brown believed that she was receiving a conventional mortgage loan from Americas Wholesale Lender (AWL), a corporation organized and existing under the laws of the State of 16

New York (page 1 of Exhibit C to BANAs Complaint) when AWL was not a corporation organized under the laws of the State of New York. The debt validation request required BANA to disclose the essential elements of the loan transaction which it seeks to enforce as mortgage servicer for a disputed debt already deemed to be in default when it took over the role of servicer. It sought to escape its obligation under 15 USC 1692g by claiming that the change of servicing rights was sent to Ms. Brown by mistake. Once the debt validation request is made debt collection practices must cease until there is a response to the underlying request. It is not a valid response to state that the notice of change of loan servicer was sent to Ms. Brown by mistake because (1) there was a change of loan servicer from BHLS to BANA and (2) the debt validation request is not dependent upon the notice of change of loan servicer, unless the debt collector initiates communication, it which case it must respond to the debt validation letter within the statutory period. BANA falsely asserts that Ms. Brown conceded that BANAs response to the debt validation request was proper. She conceded that the RESPA violation was not properly pleaded against the previous third party defendants, BLOMMER PETERMAN, S.C., because the RESPA violation can only be pleaded against the party with the obligation to provide the RESPA notice of change of servicer. (Transcript of the August 2, 2012 Hearing, page 40, lines 16-23.) She never conceded, much less admitted, that BANA properly responded to the debt validation request. The August 2, 2012 proceedings in no way discredited factual basis for the FDCPA claim against BANA, but rather, the Courts decision on August 2, 2012 dismissing the FDCPA claim as to BANA was made as a matter of law and not as a matter of fact. At the Transcript of the August 2, 2012 Hearing at page 24, lines 17-25 and page 25, lines 1-6, the Court ruled: 17

[page 24] ... 17 As to the claim for a violation of the 18 Fair Debt Collection Practices Act, the court 19 likewise agrees with the plaintiff that a creditor 20 collecting their own debts are not considered debt 21 collectors for purposes of the Fair Debt 22 Collection Practices Act. The cases cited by Mr. 23 Muth do indicate that courts have uniformly held 24 that mortgage servicers are not considered debt 25 collectors. The bank is named as a plaintiff in [page 25] 1 this action in its role as a mortgage servicer for 2 the Bank of New York Mellon. The court finds as a 3 matter of law that the bank is not a debt 4 collector as that term is defined under the Fair 5 Debt Collection Practices Act and therefore that 6 claim will likewise be dismissed. ... It is well established that collecting a debt which is in default at the time the debt collector begins to service the debt falls within the purview of the FDCPA. In Ruth v. Triumph Partnerships, 577 F.3d 790, 796-797 (7th Cir., 2009), the Seventh Circuit Court of Appeals held: On the merits, Ms. Ruth contends that the district court was correct to hold that Triumph Partnerships is a debt collector under the FDCPA. Relying on our decisions in McKinney v. Cadleway Properties, 548 F.3d 496, 501 (7th Cir.2008), and Schlosser v. Fairbanks Capital Corp., 323 F.3d 534, 539 (7th Cir.2003), she submits that [t]he purchaser of a debt in default who undertakes directly or indirectly to collect the debt is a debt collector. . . . Triumph Partnerships argument is foreclosed by our precedents. The FDCPA distinguishes between debt collectors, who are subject to the statute's requirements, and creditors, who are not. For purposes of applying the Act to a particular debt, these two categories ... are mutually exclusive. Schlosser, 323 F.3d at 536. Where, as here, the party seeking to collect a debt did not originate it but instead acquired it from another party, we have held that the party's status under the FDCPA turns on whether the debt was in default at the time it was acquired. See McKinney, 548 F.3d at 501; Schlosser, 323 F.3d at 538-39. We based this interpretation on the language of the statute, which excludes from its definition of creditor those who acquire and seek to collect a debt in default 15 U.S.C. 1692a(4), and excludes from its definition of debt collector those who seek to collect a debt which was not in default at the time it was obtained id. 1692a(6)(F). We also found support for this distinction in the rationale behind Congress' decision to treat the originator of a debt obligation differently from a party whose only interest is in the collection of a debt that already has fallen into default. (Emphasis added.) There can be no dispute that the FDCPA applies to BANA because (1) BANA did not originate the debt obligation; (2) BANA purports to be collecting a debt owed to another, BONY;

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and (3) BANA took over the servicing of the loan from BHLS after BHLS had treated the obligation to AWL as being in default by commencing a foreclosure action against Ms. Brown in 2010 in Waukesha County Circuit Court Case No. 10-CV-5383. BANA falsely argues that the FDCPA rests on a factual basis discredited at the hearing on August 2, 2012. Rather, the FDCPA claim rests on a undisputed factual basis. It was an erroneous ruling by the Court, as a matter of law, that BANA owned the debt and was servicing a debt owed to it. The Second Amended Complaint and Counterclaim for the FDCPA violations pleaded against BANA are supported by facts clearly demonstrable on the face of the Counterclaim and by judicial notice of the previous foreclosure proceeding filed against Ms. Brown by BHLS in Waukesha County Circuit Court Case No. 10-CV-5383 on December 22, 2010, which clearly demonstrates, as a matter of fact, that BANAs predecessor in interest, BHLS, had taken the position that the loan obligation it was servicing was in default. BANA could have attempted to argue that the law of the case is that BANA is the owner of the loan as mortgage servicer, which is what the Court held on August 2, 2012, but that conclusion of law is clearly erroneous and would be reversed on appeal because it is based upon facts which are plainly false. The Court clearly erred on August 2, 2012 when it held, as a matter of law, that the FDCPA does not apply to BANA. The very face of the BANAs Complaint demonstrates that BANA is acting as the mortgage servicer for BONY and the judicially noticeable facts of the existence of Waukesha County Case No. 10-CV-5383 in which BHLS commenced a foreclosure action against Ms. Brown on December 22, 2010 clearly demonstrate the BANA is attempting to collect a debt which its predecessor in interest had declared to be in default by the commencement of the first foreclosure action in 2010. 19

When this Court allowed the repleading of the Counterclaims on May 9, 2013, it plainly allowed the repleading of the Counterclaims which were erroneously dismissed on the record of the August 2, 2012 hearing and erroneously memorialized as dismissed with prejudice by the Order of August 14, 2012. The FDCPA claim stands upon meritorious facts plainly demonstrated by the face of BANAs Complaint in these proceedings and upon the judicially noticeable fact that BHLS had declared the disputed debt obligation to be in default by commencing a foreclosure proceeding against Ms. Brown on December 22, 2010. Under the FDCPA, no further debt collection efforts may be pursued after a debt validation request is served upon the debt collector under 15 USC sec. 1962g which provides, in relevant part: (a) Notice of debt; contents Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing (1) the amount of the debt; (2) the name of the creditor to whom the debt is owed; (3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector; (4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and (5) a statement that, upon the consumers written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor. (b) Disputed debts If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) of this section that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector. 20

Collection activities and communications that do not otherwise violate this subchapter may continue during the 30-day period referred to in subsection (a) unless the consumer has notified the debt collector in writing that the debt, or any portion of the debt, is disputed or that the consumer requests the name and address of the original creditor. Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the consumers right to dispute the debt or request the name and address of the original creditor. (Emphasis added.) BANA now appears to be trying to argue CHL was the original lender and not its trade name AWL (which was not the name of a New York corporation until December, 2008 and was then incorporated in the State of New York by parties in no way associated with CHL.) CHL and BANA are seeking injunctive relief in the United States District Court for the Central District of California in Case No. 8:12-cv-00242-CJC-AN.5 (See Request for Judicial Notice Exhibit E, previously filed as Exhibit H to Ms. Browns Opposition to Summary Judgment for which judicial notice is concurrently requested.) The purpose of the debt validation letter under 15 USC sec. 1692g is to require a debt collector to disclose to a person against whom debt collection activities are being initiated the identity of the original lender. BANA failed to disclose the identity of the original lender as being AWL, CHL or any other entity. The collection efforts represented by these foreclosure proceedings have been commenced in violation of 15 USC sec. 1692g(b). BANA is legally precluded from proceeding to foreclose on Ms. Brown as a debt collection effort because it has not yet responded to her debt validation request by identifying her original lender. BANA

could not identify the original lender because there is no original lender. BANA extended its

The case is entitled Countrywide Home Loans, Inc. and Bank of America, N.A. v. Americas Wholesale Lender, Inc., a New York Corporation, Dennis L. Bell, an Individual; Cheri B. English, an Individual, Jan Van Eck (a/k/a) Herman Jan Van Eck a/k/a Mauritz Van Eck a/k/a Maurice Van Eck a/k/a Maritz Van Eck a/k/a George Tomas), an individual; and DOES 1-100.

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credit through a warehouse line of credit to CHL through Countrywide Bank, FSB. That is why BANA acquired CFIto seize control of the assets which it believed were secured by its extensions of credit to Countrywide Bank, FSB on its 4 Billion Dollar line of credit to CFI in order to conceal the fraud on the investors whose investments are backed by nothing because no assets were ever delivered to the REMIC Trusts. Clearly, compliance with 15 USC sec. 1692g would have opened a pathway into the discovery of the massive frauds committed by BANA through CFI and its subsidiaries before the date of its acquisition by BANA, on April 27, 2009 (Request for Judical Notice Exhibit A) for which BANA, CWALT, Inc. CHL and BONY could be liable to the investors in the CWALT, Inc. Alternative Loan Trust 2004-35T2. BANA is likewise liable for frauds on MBIA (which only agreed to insure valid loans and which settled its claim against BANA without discovering the full scope of the frauds committed upon it6 on May 6, 20137) and the United States Treasury, which is making payments to the investors for payments purportedly due on the void mortgage obligations under 12 USC sec. 5212(a)(3). BANA failed to comply with 15 USC sec. 1692g(b) of the FDCPA and has continued collection efforts by commencing and continuing this action against Ms. Brown. Her request for debt validation arises under the FDCPA and not under RESPA, to which BANAs response that

MBIA knew that the asset-backed securities it was defrauded into insuring were not delivered to the REMIC trusts, but was forced to settle to avoid bankruptcy as a result of BANAs claims against it. It likely did not know that the mortgage obligations which were represented as being loans made in the State of Wisconsin based upon extensions of credit were void ab initio because money was not loaned, but were obtained in exchange for an extension of credit, which consideration is null and void in the State of Wisconsin as a matter of statutory and case law.
7

http://www.reuters.com/article/2013/05/06/us-mbia-bankofamerica-deal-idUSBRE9450L020130506

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the RESPA notice was sent to her by mistake is wholly immaterial. Ms. Brown never conceded that the immaterial RESPA response was a proper debt validation response under the FDCPA. The reference to the FDCPA violations on the record of the hearing on August 2, 2012 by Ms. Browns counsel are on pages 18, lines 7-25, and page 19, lines 1-2.

7 . . . With 8 respect to Fair Debt Collection Practices Act, I 9 do not agree with Mr. Muth that Bank of America in 10 its servicing capacity is not a debt collector. I 11 would have to go over the cases he cites again, 12 but it is my impression of the law that a debt 13 collector is a third party collecting a debt for 14 another entity. 15 In this case Bank of America is claiming 16 to collect a debt on behalf of Bank of New York 17 Mellon. It did not respond to the RESPA request, 18 the qualified written request saying, hey, were 19 the servicer for this trust that Bank of New York 20 Mellon is for which theyre the trustee. They 21 said its a mistake and then they turned around 22 and sued my client. [The] RESPA violation [was] followed by a 23 series of Fair Debt Collection Practices Act 24 violations specifically and pleaded specifically 25 the attempt to collect a debt that is not owed to [page 19] 1 the party for whom the debt collection procedures 2 are being executed against my client. The Second Amended Answer and Counterclaim alleges violations of the FDCPA for BANAs attempt to collect a debt which is not owed to the party for which the debt collector purportedly is collecting the debt under 15 USC sec. 1692e(2)(A) without responding to the debt validation request is an unconscionable practice under 15 USC sec. 1692e(2)(A), which provides: A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section: . . . (2) The false representation of (A) the character, amount, or legal status of any debt . . . BANAs failure to respond to the debt validation request is clearly demonstrable in the text of the its response, quoted in its entirety at paragraph 33 of the Second Amended Answer and Counterclaim and this entire action has been undertaken in violation of the FDCPA at 15 23

USC sec. 1692g and its further an unconscionable debt collection practice prohibited by 15 USC sec. 1692e(2)(A). Furthermore, the violation of 15 USC sec. 1692b(6) at Christmas-time in 2011 occurred when Ms. Brown was then represented by this counsel and direct contact with Ms. Brown is specifically prohibited. The FDCPA violations were allowed to be repleaded against BANA, have been specifically repleaded in detail and may not be dismissed as resting on a discredited factual basis or because Ms. Browns counsel admitted that FDCPA violations could proceed against BANA because the record of the August 2, 2012 hearing clearly demonstrates that no findings of fact or admission by Ms. Browns counsel that FDCPA claims could not be brought against BANA were made. BANA is simply lying to the Court, believing that its prevarication will deceive this Court. The complexities of the underlying securitization scheme are designed to obscure the essential facts of the transaction. Every act BANA takes against Ms. Brown in these proceedings is a violation of the FDCPA, because it has failed to respond to the debt validation request under 15 USC sec. 1692g and it received written notice that Ms. Brown disputes the debt. III. The fraud allegations are clear, specific and detailed; under Wisconsin law, a corporation may be sued for ultra vires acts, which BANAs extensions of credit are, as a matter of law. To be clear, Ms. Brown is not a Borrower. AWL is not a lender. It loaned Ms. Brown no money. CHL was the conduit for an extension of credit from BANA through Countrywide Bank, FSB. Extensions of credit are not loans of money and are specifically void as and for consideration for loans in the State of Wisconsin under Wis. Stats. sec. 134.15 which provides:

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134.15 Issuing and using what is not money; contracts void. (1) Any person who shall knowingly issue, pay out or pass, and any body corporate, or any officer, stockholder, director or agent thereof who shall issue, pay out or pass, or receive in this state, as money or as an equivalent for money, any promissory note, draft, order, bill of exchange, certificate of deposit or other paper of any form whatever in the similitude of bank paper, circulating as money or banking currency, that is not at the time of such issuing, paying out, passing or receiving expressly authorized by some positive law of the United States or of some state of the United States or of any other country, and redeemable in lawful money of the United States, or current gold or silver coin at the place where it purports to have been issued, such person shall be punished by imprisonment in the county jail not more than 6 months or by fine not exceeding $100, and such body corporate shall forfeit all its rights, privileges and franchises and shall also forfeit to the state and pay for each offense the sum of $500. (2) All contracts of any kind whatever the consideration of which, in whole or in part, shall consist of any such paper as is prohibited in sub. (1) and all payments made in such unauthorized paper shall be null and void. BANA now admits that the consideration for the contract into which Ms. Brown entered was an extension of credit through CHL. CHL cannot extend credit as consideration for a loan. Extensions of credit not payable at the time of its issuance in lawful money of the United States or current gold or silver coin is precisely the type of paper which Wis. Stats. sec. 134.15 prohibits. An extension of credit is not money. It is the opposite of money. The extension of credit was represented by a promissory note (check drawn against a line of credit), sight draft (payable on sight at the place where it was issued) or a payment order against BANAs warehouse line of credit extended to Countrywide Bank, FSB. Because it was only an extension of credit, it was never paid in lawful money of the United States or its current value in gold or silver coin. An extension of credit is not a loan of money and is null and void as consideration for a loan in the State of Wisconsin. Furthermore, that AWL did not exist is admitted by BANAs argument that CHL was using the name of AWL for purposes of making an extension of credit. This concealment of CHLs identity, which is not cured by a return address

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naming CHL because the return address could be any processing agent. CHL has never been identified as to Ms. Brown or this Court as the lender or loan originator. There is no lender no money was loaned. Wis. Stats. sec. 134.15 enunciates a principle of law which is wellestablished as the law of money and banking in this state. In American Express Co. v. Citizens State Bank, 181 Wis. 172, 177-178, 194 N. W. 427 (Wis., 1923) the Supreme Court of Wisconsin held: Neither as included in its powers nor incidental to them is it a part of a banks business to lend its credit. If a bank could lend its credit as well as its money, it might, if it received compensation and was careful to put its name only to solid paper, make a great deal more than any lawful interest on its money would amount to. If not careful, the power would be the mother of panics, and if no compensation was received, there is the additional reason, if any is needed, that such a power is in derogation of the rights and interests of stockholders, and at all events could only be exercised with the consent of all. Indeed, lending credit is the exact opposite of lending money, which is the real business of a bank; for while the latter creates a liability in favor of the bank, the former gives rise to a liability of the bank to another. 1 Morse, Banks & Banking (5th ed.) 65; Magee, Banks & Banking (3d ed.) 248; 1 Michie, Banks & Banking, 99. This rule is so well established that it is unnecessary to cite the great number of cases which declare it. In American Express Co. v. Citizens State Bank, supra, the Supreme Court of Wisconsin was prophetic. Only six (6) years later, in 1929, the mother of all panics occurred in the twentieth century as a result of banks lending their own credit on margin for the purchase of stocks which resulted in the stock market crash of 1929. In 1923, the Wisconsin Supreme Court also prophesied the collapse of the real estate securities market in 2008 and the ensuing panic which resulted in the bank bailout of September, 2008, which can fairly be called this centurys mother of all panics. This current panic led to the Foreclosure Crisis unfairly blamed on Borrowers by the banks but was caused because the banks violated the basic principle of banking by lending their credit and not lending money, as BANA now concedes. BANA dares 26

not state that it loaned money to Ms. Brown, because she knows it did not. BANA attempts to attribute an allegation to Ms. Brown which she did not make: that AWL did not extend credit to her. Her allegation, repeated throughout her Second Amended Answer, is that she was not loaned money by any entity in connection with the securitization scheme for which her note and mortgage were fraudulently taken, under the false pretense that she was contracting for a mortgage loan. BANA claims that Ms. Brown was not harmed by its extension of credit through Countrywide Bank, FSB to CHL, concealed by the use of a trade name, AWL, purporting to be a New York corporation. She paid in excess of $150,000.00 in mortgage payments while she believed that she had a valid loan. She has lived for 3 years under threat of foreclosure upon a void loan, which threat has caused her to lose the enjoyment of her home. She has been forced into two bankruptcies as the result of a void debt obligation in an effort to compel BANAs predecessor to identify the authority by which it was proceeding against her by attempting to compel a Proof of Claim. She has paid attorneys fees, filing fees and incurred expenses in litigation. BANA is making the equivalent argument to that made by the Respondents in Zinc Carbonate Company v. First National Bank of Shullsberg, et al, 103 Wis. 125, 79 N.W. 229 (1899.) There a national bank argued that it could not be held liable for the frauds committed against the Appellant, Zinc Carbonate Company because its employees and officers committed the frauds and the Appellant could not hold the bank liable for its ultra vires acts. BANAs extension of credit is an ultra vires act. BANAs charter allows it only to act in accordance with the law. Its FDCPA violations are ultra vires acts. Its creation and uttering of forged documents 27

are ultra vires acts. Fundamentally, BANA is claiming by its motion to dismiss that the facts of which it has the superior knowledge must be known to Ms. Brown before she can proceed against it for its unlawful conduct because she pleads some of her allegations upon information and belief. This is what the Supreme Court of Wisconsin held in similar circumstances as to the First National Bank of Shullsberg: 1. A corporation may be held liable as a party to a conspiracy to defraud in a transaction outside the scope of its charter, and a complaint against it and its co-conspirators to enforce such liability, charging that the corporation and its co-defendants made and consummated the fraudulent agreement, is not defective on demurrer for want of allegations as to who acted for the corporation in making such agreement and as to special authority having been given by its governing body in regard to the subject. [From the Syllabus by Judge Marshall] Judge Marshall wrote:

The complaint in this case appears to be free from novelty except for the magnitude of the fraudulent scheme set forth, its completeness, the boldness with which it was consummated and the fact that a national bank was one of the guilty parties. . . Zinc Carbonate Company, at page 230. . . .The doctrine of ultra vires is a most powerful weapon to keep private corporations within their legitimate spheres and to punish them for violations of their corporate charters, and it probably is not invoked too often; but to place that power in the hands of the corporation itself, or a private individual, to be used by it or him as a means of obtaining or retaining something of value which belongs to another, would turn an instrument intended to effect justice between the state and corporations into one of fraud as between the latter and innocent parties. Such is the modern doctrine, evolved and settled in the progress of events, reaching from the time when private corporations were few and the doctrine of ultra vires invoked quite as freely as to them as to public corporations, to a time when substantially all restrictions to the formation of such private bodies were removed, and they were authorized and commenced to exist, great and small, everywhere, for the purpose of conducting almost every kind of legitimate business. If such a body transcend its powers it commits a wrong against the state, and ordinarily it is for the state, only, to call it to account for such violation. [Citing numerous cases.] Zinc Carbonate Company, at page 231. . . . Counsel for respondents freely admit that a corporation may be liable for a tortious act and as a co-conspirator in a scheme to commit fraud, but insist that unless the fraud be a 28

wrongful means resorted to, to accomplish something which the corporation has a lawful right to do by lawful means, fraud cannot be attributed to it unless its officers or agents who assumed to act in its behalf were specially authorized to so act, and that a statement of the cause of action to remedy such a wrong requires the special authorization to be pleaded. Zinc Carbonate Company, at page 231. The Supreme Court of Wisconsin went on to hold, We need not, for this appeal, determine whether the special authorization is necessary. If it be admitted, for the purposes of the discussion, that such is the case, yet the complaint charges that the corporation did the wrongful acts. That is repeated over and over again. How it became involved in the transactions complained of is a matter of proof in respect to which an issue need not necessarily be tendered by the complaint. If the allegations charging the corporation are open to any criticism, it is upon the ground of indefiniteness to be reached by motion and not by demurrer. . . Necessary facts, reasonably inferable from those pleaded, under our liberal rules of pleading, must be considered as pleaded by way of such inference. Miller v. Bayer, 94 Wis. 123, 68 N. W. 869. It may properly be said, in addition, on this point, that the complaint fairly shows ratification by the corporation of the scheme entered upon and carried out in part by its officers and agents assuming to act in its behalf with knowledge of the facts. That is sufficient to render it liable by ratification, the same as if such officers and agents were originally authorized to represent and act for it. Zinc Carbonate Company, at page 231. In the present case, four corporations are charged with conspiring to conceal a securitization scheme by which owners of real estate are fraudulently induced into signing notes and mortgages believing that they are taking out a mortgage loan under a conventional contract. When Ms. Brown signed mortgage loan documents, she believed that she was receiving a loan of money, not an extension of credit. She agreed, in the unlikely event that her loan would be sold, it could be sold, believing that the whole loan would be sold to another lender for value. She never agreed to accept an extension of credit in lieu of money and indeed she could never have imagined that she was receiving an extension of credit instead of a loan of money because banks cannot loan their credit. Without her knowledge and consent, her note and mortgage were taken for the purpose of being bundled with other notes and mortgages into a securities offering. Banks are not permitted to lend their credit. Banks are not permitted to create securities using 29

the notes and mortgages of parties without their informed consent. The lending of credit and taking of collateral to create a security was not contemplated by the conventional loan contract Ms. Brown was fraudulently induced to execute, because the essential elements of the contract were fraudulently concealed. Before Ms. Brown has even had the benefit of discovery, which BANA has obstructed, BANA seeks to dismiss her fraud claims against it because she pleaded some allegations on information and belief. Like the Respondent First National Bank of Shullsberg in Zinc

Carbonate Company, supra, BANA argues that it cannot be held accountable for the acts of its agents and employees unless it specifically authorizes the crimes being committed by them. Exhibit D to the Request for Judicial Notice demonstrates that BANA did indeed authorize the forgery of countless documents purporting to transfer the property rights of third parties. The Supreme Court of Wisconsin held in Zinc Carbonate Company, that a demurrer on the grounds that the corporation cannot be held liable for its ultra vires acts cannot be sustained. So, too, the modern equivalent of the demurrer, the Motion to Dismiss for Failure to State a Claim upon which Relief may be granted [Wis. Stats. sec. 802.06(2)(b)6.] cannot be sustained. Ms. Browns pleading of fraud is wholly supported by the facts in the record and all of her allegations of fact are deemed to be true at the motion to dismiss stage of the case. That she is precluded from jurisdictional limitations of this state court from obtaining nationwide service of process on BANAs employees and agents who are not residents of Wisconsin and do not have sufficient connections to invoke this Courts long arm jurisdiction is a joinder problem which arises from BANAs choice of forum: state court, rather than federal district court. Like the facts alleged in Zinc Carbonate Company, supra, this case is not novel. Even the 30

magnitude of the fraudulent scheme set forth, its completeness, the boldness with which it was consummated and the fact that a national bank was one of the guilty parties (Zinc Carbonate Company, supra, page 231) is too common, arising from the extensions of credit to procure the undisclosed use of real estate assets, here, Ms. Browns assether homeas purported collateral in a securities offering. The creation and uttering of forged documents, too, is distressingly common. BANA wants this Court to allow it to enforce a forged mortgage note, ignore a forged mortgage assignment and uphold a void loan founded on what BANA now admits was not a loan, but an extension of credit. BANA presumes that [Ms. Browns] counsel realizes that such a claim [attempted theft by fraud] sounds in criminal law and is not properly addressed before this Court. The claims of forgery and uttering forgeries are defenses to enforcement of a forged instrument under the Wisconsin Uniform Commercial Code. Many crimes have civil law implications. For example, the crime of murder has a civil tort equivalent actionable as a wrongful death suit. When the a civil tort is also a crime, the mens rea justifies punitive damages. BANAs counsel is trying very hard to pretend he is confused. The only thing he is confused about it the nature of money. Money is not an extension of credit. BANAs counsel feigns confusion because he believes that the theory that securitization renders that underlying debt unenforceable were accepted then millions of mortgages across Wisconsin would be unenforceable. This is clearly an absurd result. The only mortgages which are unenforceable are which founded upon forged documents uttered into the court proceedings and the public records, were fraudulently induced because essential elements of the transaction were concealed and those for which no money was loaned and for which credit was extended as consideration, which consideration is void as a matter of law. While Ms. Browns case involves 31

all three features rendering the claimed debt obligation unenforceable and void, this counsel can attest that every mortgage retained in house by a bank which loaned money and did not extend credit and for which the loan documents are authentic and not forged are enforceable. Every transaction in which is money is loaned, which is subsequently securitized and the documents are actually delivered to the REMIC Trusts before the trust closing date is enforceable, provided that the fact of the securitization is disclosed and the identity of the real party in interest is disclosed in any subsequent foreclosure proceeding. Fraud, forgery, the lending of bank credit are never enforceable and BANA cannot change the fundamental law of banking, the Statute of Frauds or the Wisconsin Uniform Commercial Code in order to enforce a debt not owed as a matter of law in one case or a million cases. IV. Count III,8 quiet title, as against the mortgage to AWL, nonexistent entity, properly lies against MERS, CHL, BANA and BONY and title will always be quieted when a mortgage or assignment of mortgage is a forgery. The facts Ms. Brown pleads justify a judgment of quiet title against MERS9, CHL, BANA and BONY. Quiet title is a recognized independent cause of action in Wisconsin when

Count IV, Quiet Title as against MERS is not presently before the Court. MERS was served with the Amended Summons, Second Amended Complaint and Cross Claim on June 17, 2013. As of Friday, August 2, 2013, MERS is in default for failure to respond because the Summons provided 45 days for MERS to answer on the basis that a causes of action for fraud was made against it. MERS and HSBC are the only parties interested parties to Count IV. HSBC has not yet been served. Count IV will not be briefed by Ms. Brown. MERS was served on June 17, 2013 in this action. As of Friday, August 2, 2013, MERS is in default for failure to respond because the Summons provided 45 days for MERS to answer on the basis that a causes of action for fraud was made against it. BONYs rights arise upon a forged mortgage assignment uttered by employees and agents of BANA. The quiet title action is not ripe for adjudication because a necessary party is not presently before the Court, MERS is in default as of Friday, August 2, 2013 and Ms. Brown has not yet had the opportunity to move for a default judgment against MERS. BANA, BONY, CWALT, Inc. and CHL do not have standing to obtain dismissal of Count III against MERS. MERS default could result in the relief sought by Ms. Brown in Count III regardless of the position taken by BANAs counsel.
9

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brought by the owner of real estate whose title has been clouded by a void instrument. That the mechanism for quieting the title must be by a judgment declaring the offending instrument to be void or voidable does not make the cause of action derivative per se. In the instant case, however, the forged mortgage assignment is a fraud per se and the fraud action is sustainable on its merits as well. BONY is the party which must respond to the quiet title action, but it does not do so. BANA has no standing to argue BONYs rights under the forged mortgage assignment because its employees forged the mortgage assignment. In BANAs brief dated June 10, 2013, 16 days before the summary judgment motion brought by BANAs co-counsel, BLOMMER PETERMAN, S.C. was scheduled to be heard (on June 26, 2013), Attorney Muth writes: [Ms. Browns] inability to survive summary judgment on her substantive allegations also precludes declaratory relief. This Court should Borrower's dismiss Counts III and IV of Second Counterclaim on that basis. Summary judgment has not been granted in BANAs favor and cannot be granted in BANAs favor when disputed issues of fact are pending trial. It is typical of the psychopathic arrogance of this too big to follow the law entityBANAthat it would presume that it has this Court in its pocket, along with so many it others it believes it can purchase with what its lawyer thinks is money: extensions of bank credit. There are many people who cannot and will not be purchased at any price and even more who are beginning to realize what was well-known to past generations: bank credit is not money and is not to be accepted as money. Attorney Muth writes as if summary judgment has already been granted in BANAs favor, but he is a poor prophet. This writer has a different vision of the near and distant future: whatever the result of the summary judgment motion, Ms. Browns case will eventually be tried 33

to a jury. The jury will learn that BANA loaned Ms. Brown its credit (which is BANAs own debt) and tried to foreclose on her home when the consideration it loaned was illegal and void. Ms. Brown will remain in her home and her grandchildren will hear the tale about how a criminal enterprise forged documents in an effort to take her home. And they will know what BANA, its subsidiaries, BONY and their attorneys appear not to know: bank credit is not money and forgeries do not convey legal rights. CONCLUSION BANAs attempt to demur to the Amended Counterclaims must be denied. The FDCPA claims are obvious and well-pleaded. The fraud claim is obvious and supported on the record of these proceedings. The quiet title action involving MERS is not ripe for adjudication because MERS has not been served. BANAs counsel wholly fails to develop any independent arguments on behalf of BONY, CWALT, Inc. and CHL. The multiple representation of BONY, CWALT, Inc. and CHL demonstrates that BONY is a co-conspirator with BANA in its frauds and that CWALT, Inc. and CHL are mere alter egos of BANA. The Counterclaim and Third Party Complaints against the moving parties must proceed. Dated at Madison, Wisconsin this 5th day of August, 2013. /s/ Wendy Alison Nora
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Wendy Alison Nora ACCESS LEGAL SERVICES 310 Fourth Avenue South, Suite 5010 Minneapolis, Minnesota 55415 Main Office Voice (612)333-4144 Main Office FAX (608) 497-1026
accesslegalservices@gmail.com

WI BAR # 1017043

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CERTIFICATION OF COMPLIANCE WITH WAUKESHA COUNTY LOCAL RULE 5.6 This brief does not exceed 30 pages, exclusive of pages containing a statement of facts, exhibits, and affidavits. /s/ Wendy Alison Nora
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Wendy Alison Nora, Attorney for Amy Jo Brown

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