TABLE OF CONTENTS

Table of Contents .pg 1

Table of Authorities .....pg 2
Statutes ...pg 3
Rules ...pg 3
Jurisdictional Statement .pg 4-5
Statement of Facts ...pg 6-13
A. Nature of Case .pg 6-7
B. Procedural History .pg 8-13
Points Relied Upon .pg 13-17
Arguments
I. The trial court erred in making any judgements as they
lacked subject matter jurisdiction.pg 18-20
Standard of Review .pg 21
II. The trial court erred in granting summary judgement of
foreclosure followed by granting unlawful detainer due to
fraud pursuant to Rule 74.06(b)(2)..pg 22-24

Standard of Review .pg 25

Conclusion pg 26
Certificate of Service ..pg 27-28
Appendix Exhibits A-F

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 Table of Authorities

JESINOSKI v. COUNTRYWIDE HOME LOANS, INC. 574 U. S.

____ (2015)

Joyce v. U.S. 474 2D 215

J.C.W. v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009)

Melo v. US. 505 F2d 1026

OLD WAYNE MUT. L. ASSOC, v. McDONOUGH, 204 U. S. 8, 27 S.

Ct.

236 (1907)

Re Application of Wvatt. 300 P. 132; Re Cavitt, 118 P2d 846

Basso v. Utah Power & Light Co. 495 F 2d 906, 910

Vaughan v. United Fire & Cas. Co., 90 S.W.3d 220, 225

(Mo.App.2002)

Memco., Inc. v. Chronister, 27 S.W.3d 871, 875 (Mo.App. 2000)

First Bank of the Lake, 302 S.W.3d at 169 n.7

State ex rel. Lowry, 178 S.W.3d at 637

Essig v. Essig, 921 S.W.2d 664, 667 (Mo.App. 1996).

Walker v. Walker, 280 S.W.3d 634, 636 (Mo.App. 2009)

2
Statutes:
15 U.S. Code 1635

RSMo. 469.906.1

RSMo. 534.030

RSMo. 534.050

RSMo. 534.160

Rules:

Rule 74.06(b)(4)

Rule 55.27(g)(3)

Rule 74.06(b)(2)

Rule 55.15

3
 Jurisdictional Statement
This case is on appeal from a judgement entered by Judge Stephen

Bouchard in the 23rd Circuit Court of Jefferson County Missouri (L.F. I 62-

63) and Judge Jeffery Coleman (L.F. II 143) of the same. Judgement

entered granted summary judgement of foreclosure and judgement for

unlawful detainer to HSBC Mortgage Services Inc. (hence forth

respondent). The trial court rejected appellants request for jury trial on the

unlawful detainer (L.F. I 6) depriving appellants of any due process. The

trial court granted a trial de novo (L.F. I 9) and found in favor of the

respondent. Appellants requested new trial on March 6th 2015 (L.F. I 9) and

were denied.

Appellants then filed a notice of appeal with this court on June 15 th

2015 (L.F. II 140-141). As there was no appealable judgement on record in

accordance with rule 74.01(a), this court dismissed the appeal without

prejudice on October 6th 2015 (L.F. II 142). As no judgement was rendered

as required under 74.01(a), respondents had no judgement or order to

enforce, however on September 14th 2015 respondents served appellants

with a writ of execution, garnishment, and eviction notice (L.F. I 10).

Respondent submitted a proposed judgement which conforms to rule

4
74.01(a) on September 29th 2015 (L.F. II 143) which was signed by Judge

Jeffery Coleman on February 5th 2016 (L.F. II 143). A new appeal was filed

by appellants on March 17th 2016 based on the Circuit Courts lack of

subject matter jurisdiction and fraud pursuant to 74.06(b)(3)(4). This case

does not involve the validity of a statute or constitutional provision, nor

does it involve the construction of revenue laws or title to any state office.

Therefore, the grounds for conferring exclusive jurisdiction in the Missouri

Supreme Court do not apply and jurisdiction of this Court is properly

invoked pursuant to Article 5, 3 of the Missouri Constitution and Mo. Rev.

Stat. 477.050.

5
 Statement of Facts
A. Nature of Case

This is an appeal from the trial courts decision to grant respondents

claim for unlawful detainer and summary judgement of foreclosure (L.F.II

143). The circuit court granted summary judgement of foreclosure based on

the trustees deed (L.F.I 28). However, the trustee and respondent knew or

should have known that the original note and deed of trust had been made

void by the mailing of a federal notice of rescission pursuant to 15 U.S.

Code 1635a-f sent by appellant on February 14th 2012, more than 1 year

before the trustees non-judicial foreclosure. Since the court granted

summary judgement in the foreclosure, it then granted judgement of

unlawful detainer in favor of the respondent (L.F. II 143) based upon the

void note and deed of trust.

The appellants have 2 points on appeal. First, the trial court lacked

subject matter jurisdiction in this case. As a federal rescission (Appendix

Exhibit A) was filed a full year before any attempted foreclosure

proceedings, and according to Supreme Court decision JESINOSKI v.

COUNTRYWIDE HOME LOANS, INC. the rescission is effective upon

mailing, the circuit court no longer had any subject matter on which to

6
make rulings as the deed and note were made void by the federal rescission

thereby depriving the circuit court of any subject matter jurisdiction.

Second, the trustee and respondent committed fraud by recording an

assignment which was invalid as the assignor listed on the document was an

entity that had been out of business for 5 years at the time of the assignment.

The trustee and respondent were made aware of this fact before the trustees

sale occurred and not only continued with the sale, but did not inform the

court of the fraud.

If appellants are successful on any point, appellants request this court

vacate the unlawful detainer and summary judgement of foreclosure, return

to appellants all bond thus far paid to the court, reimburse appellants for all

legal fees, and any other relief this court deems just.

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 B. Procedural History
In November of 2011, appellant began application process to receive

a permanent modification from respondent. Respondents employees

informed appellants that they must be behind at least 60 days to qualify for

the permanent modification program. As such, no payment was made in

December 2011 or January 2012. Appellants supplied respondents all

requested paperwork by fax on 5 separate occasion from the end of January

2012 to the beginning of February 2012. Respondents could not seem to

find or keep the documentation that they had requested. At the same time,

respondents refused to name the holder and owner of the note and deed and

claimed they did not know who the actual holder of the note and deed of

trust was.

On February 14th, 2012, Donald and Kimberly Bolin (appellants) sent

a notice of rescission (see Appendix: Exhibit A) pursuant to 15 U.S. Code

1635(a) as appellants had not received the proper notices required under

FDCPA, TILA, and Reg Z on the loan modifications made by respondent in

January of 2011. Appellants also made a Debt Validation requests (See

Appendix: Exhibit B) and a Qualified Written Request (see Appendix:

Exhibit C) to the respondents on the same day. Neither HSBCs response to

the QWR nor the debt validation showed any evidence of the loan

8
modifications, proper notification on the new loan modifications, nor any

chain of title showing HSBC as the actually holder of the note and deed of

trust. On February 25th 2012, appellants were contacted by HSBC and told

that a permanent modification was being processed and that payment could

now be made. Payment was made on February 25th 2012. On March 7,

2012, notice of acceleration of note was sent to appellant along with denial

of permanent modification. HSBC made no reference or comment

regarding the notice of rescission, even though they received the notice and

were aware that they had only 20 days to respond by filing suit in federal

court.

The next correspondence appellant received was from the Martin,

Leighs, Laws, and Fritzlen (known hence forth as trustee), on June 4th 2013

announcing that they were the successor trustee and demanding payment in

full. On July 7th 2013, Dale Wiley, attorney for the appellant sent a letter

requesting debt validation and denying the existence of any debt. The

trustee replied with a copy of the note and deed of trust now containing

endorsements from not one but two entities that had not been in business for

5 years.

Appellants attorney, Dale Wiley, sent a pre-foreclosure letter on

August 7th 2013 (Appendix: Exhibit D) elaborating just some of the issues

9
and frauds that should have prevented the trustees sale. However, the

trustees sale went forward on August 12th 2013 (L.F. I 28) and a

subsequent trustees deed was issued on September 9th 2013 (L.F. I 28).

Trustee claims that notice to vacate was mailed to appellants on

October 22, 2013 by certified mail (L.F. II 115-120). However, appellants

did not receive any such notice. Trustee also claims to have posted a notice

to vacate on the premises on October 24th 2013 and offer an affidavit by

Paul Morad (L.F. II 121) as proof thereof. However, upon reading of the

affidavit, one sees that Paul Morad posted said affidavit at 7619 Folk Ave.

St. Louis, MO. 63143 (L.F. II 121). As such, the appellants were not

notified pursuant to REV, STAT. 534.030 and 534.050.

On January 19th, 2014, trustee filed suit for unlawful detainer (L.F. I

16-19). On February 24th 2013 Dale Wiley filed entry of appearance on

behalf of appellant. On the same day, Dale Wiley filed a motion to request

a jury trial on the unlawful detainer motion (L.F. 4-5) pursuant to RSMo

534.160. The motion for jury trial was denied, which is a violation of

appellants due process rights as unlawful detainer is already a summary

action. On March 19th 2014 trustee filed a motion for summary judgement

on their unlawful detainer suit and included a memorandum at law, and

statement of uncontroverted facts with exhibits (L.F. I 17-54). On April 18th

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2013, Dale Wiley filed DEFENDANT'S RESPONSE TO PLAINTIFF'S

MOTION FOR SUMMARY JUDGMENT PLAINTIFF'S STATEMENT

OF UNCONTROVERTED FACTS (L.F. I 55-58). Mr. Wiley lays out the

disputed facts in the case in answer to their uncontroverted facts.

Trustee then responded with PLAINTIFFS REPLY TO

DEFENDANTS RESPONSE TO PLAINTIFFS MOTION FOR

SUMMARY JUDGMENT (L.F. I 59-61). On May 13, 2014 attorneys

argued the case before Judge Stephen Bouchard in Jefferson County

Missouri, 23 circuit, division 12. Judge Bouchard entered judgement on

May 23rd 2014 (L.F. I 62-63).

On May 23rd 2014, Mr. Wiley, attorney of record for the appellant,

filed a motion for a trial de novo (L.F. I 65). The court granted the motion

for trial de novo on June 6th 2016 (L.F. I 66).

On August 23rd 2014, trustee filed a motion for summary judgement

on their unlawful detainer suit and included a memorandum at law, and

statement of uncontroverted facts with exhibits (L.F. II 67-125). On

September 25th 2014, Mr. Wiley filed DEFENDANT'S RESPONSE TO

PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT PLAINTIFF'S

STATEMENT OF UNCONTROVERTED FACTS (L.F. II 126-129).

11
 Trustee then filed PLAINTIFF'S REPLY TO DEFENDANT'S

RESPONSE TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

(L.F. II 130-132). On February 4th 2015 Judge Jeff Coleman entered a

memorandum granting summary judgement of unlawful detainer to the

respondent (L.F. II 133).

On March 6th 2015, Mr. Wiley filed a motion for new trial with the

trial court (L.F. II 134-135). On March 23rd 2015 respondent filed

PLAINITFF'S RESPONSE IN OPPOSITION TO DEFENDANTS'

MOTION FOR NEW TRIAL/ MOTION TO RECONSIDER (L.F. II 136-

139). Court did not respond to motion and so it was not granted.

On June 16th 2015, Mr. Wiley filed a notice of appeal with this court

(L.F. II 140-141). This appeals court dismissed the case without prejudice

due to lack of an appealable judgement pursuant to Rule 74.01(a) on

October 6th, 2015 (L.F. II 142). On September 22, 2015 a writ of

garnishment was executed by respondents and served on appellant on

September 28, 2015 (L.F. I 10). On September 29, 2015 respondent wrote a

judgement against the appellant and filed it with the court. On February 5th

2016 Judge Coleman signed the order (L.F. II 143).

12
 On March 26th 2016, Mr. Wiley filed a notice of appeal on the

judgement above (L.F. I 11). On August 1st 2016, Mr. Wiley informed the

appellants that he had no intention of filing the required brief, thereby

abruptly quitting and leaving the appellants to act pro se.

13
 Points Relied Upon

The trial court erred in making any judgements as they lacked

subject matter jurisdiction. Once the notice of rescission (Appendix

Exhibit A) was mailed, the note and deed of trust became void. Any

judgement made based upon void documents is a nullity and is itself

void. The only recourse the respondent had available after the

notice of rescission was sent pursuant to 15 U.S. Code 1635 was the

ability to file suit in FEDERAL COURT within 20 days of receiving

the notice of rescission. Failure to file any such suit within the

appropriate time frame leaves the respondent with no legal recourse.

The note and deed of trust have been void since the mailing of the

notice of rescission on February 14th 2012 and as such the trial court

lacked subject matter jurisdiction as there was NO subject matter

upon which the court could rule.

Appendix Exhibit A Notice of Rescission

JESINOSKI v. COUNTRYWIDE HOME LOANS, INC. 574 U. S.

____ (2015)

Joyce v. U.S. 474 2D 215

14
J.C.W. v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009)

Melo v. US. 505 F2d 1026

OLD WAYNE MUT. L. ASSOC, v. McDONOUGH, 204 U. S. 8, 27

S. Ct.

236 (1907)

Re Application of Wvatt. 300 P. 132; Re Cavitt, 118 P2d 846

Basso v. Utah Power & Light Co. 495 F 2d 906, 910

Rule 74.06(b)(4)

Rule 55.27(g)(3)

15
 Points Relied Upon

II

The trial court erred in granting summary judgement of

foreclosure followed by granting unlawful detainer due to

extrinsic fraud pursuant to Rule 74.06(b)(2). The trustee was

informed PRIOR to the foreclosure sale, through a pre-

foreclosure letter (Appendix Exhibit D) sent by Mr. Wiley, that

the assignment of the deed of trust recorded in Jefferson County

Missouri Recorder of Deeds Office was fraudulent (Exhibit E).

The assignment was fraudulent due to the fact that the assignor

listed (Intervale Mortgage) ceased to be a business entity in July

of 2008, as evidenced by the cease and desist order issued against

Intervale Mortgage by the Office of Thrift Supervision (hence

forth the OTS)(Appendix Exhibit F). As the assignor was no

longer a business entity and the respondent recorded no proof of

an existing power of attorney or previous assignment, Intervale

Mortgage could not assign its interest. Recording an assignment

that the respondents knew or should have known was fraudulent,

is extrinsic fraud.

Rule 74.06(b)(2)

16
Rule 55.15

Appendix Exhibit D Pre Foreclosure Letter

Appendix Exhibit E Assignment of Deed of Trust

Appendix Exhibit F Cease and Desist Order to Intervale Mortgage

Vaughan v. United Fire & Cas. Co., 90 S.W.3d 220, 225

(Mo.App.2002)

Memco., Inc. v. Chronister, 27 S.W.3d 871, 875 (Mo.App. 2000)

First Bank of the Lake, 302 S.W.3d at 169 n.7

State ex rel. Lowry, 178 S.W.3d at 637

Essig v. Essig, 921 S.W.2d 664, 667 (Mo.App. 1996).

Walker v. Walker, 280 S.W.3d 634, 636 (Mo.App. 2009)

Essig, 921 S.W.2d at 667

RSMo. 469.906.1

17
 Argument
I
The trial court erred in making any judgements as they lacked subject

matter jurisdiction. Once the notice of rescission (Appendix Exhibit A)

was mailed, the note and deed of trust became void. Any judgement

made based upon void documents is a nullity and is itself void. The

only recourse the respondent had available after the notice of rescission

was sent pursuant to 15 U.S. Code 1635 was the ability to file suit in

FEDERAL COURT within 20 days of receiving the notice of rescission.

Failure to file any such suit within the appropriate time frame leaves

the respondent with no legal recourse. The note and deed of trust have

been void since the mailing of the notice of rescission on February 14th

2012 and as such the trial court lacked subject matter jurisdiction as

there was NO subject matter upon which the court could rule.

The trial court erred in 3 ways. First, even though the 2009 en

banc decision of the Missouri Supreme Court (J.C.W. v. Wyciskalla,

275 S.W.3d 249 (Mo. banc 2009) granted all circuit courts plenary

jurisdiction, that jurisdiction does not extend to cases that are strictly

within the realm of Federal Statutes or the U.S. Constitution. Cases

that invoke a federal statute or involve the U.S. Constitution are

18
strictly the jurisdiction of the federal courts. Thus, the trial court

erred by making judgements on a case where the trial court lacked

subject matter jurisdiction. Jurisdiction is fundamental and a

judgment rendered by a court that does not have jurisdiction to hear is

void ab initio. In Re Application of Wvatt. 300 P. 132; Re Cavitt,

118 P2d 846. Jurisdiction can be challenged at any time. and

Jurisdiction, once challenged, cannot be assumed and must be

decided. Basso v. Utah Power & Light Co. 495 F 2d 906, 910.

Second, the trial court erred by basing its decisions on

documents that were void based on the federal statutes (15 U.S. Code

1635 a-f) (JESINOSKI v. COUNTRYWIDE HOME LOANS, INC.

574 U. S. ____ (2015)). A judgment based on a void document is

itself also void and without force of law the judgement itself is a

nullity and cannot be enforced (Joyce v. U.S. 474 2D 215) (Re

Application of Wyatt, 300 P 132; Re Cavitt, 118 P2d 846).

Third, the trial court erred by not properly ascertaining the facts

in relation to its ability to act based on subject matter jurisdiction. In

Joyce vs. U.S., 474 F2d 215, the court ruled that There is no

discretion to ignore the lack of jurisdiction. A court cannot confer

jurisdiction where none existed and cannot make a void proceeding

19
valid. It is clear and well established law that a void order can be

challenged any court OLD WAYNE MUT. L. ASSOC, v.

McDONOUGH, 204 U. S. 8, 27 S. Ct. 236 (1907). Rule 55.27(g)(3)

Makes clear that the court should dismiss any case where the court

lacks subject matter jurisdiction. As a matter of law, subject matter

jurisdiction may be raised at any point in time, even on appeal and

must then be proved upon the record. (Latana v. Harper, 102 F. 2d

188). Once jurisdiction is challenged, the court cannot proceed

when it clearly appears that the court lacks jurisdiction, the court has

no authority to reach merits, but, rather, should dismiss the action.

Melo v. US. 505 F2d 1026.

Accordingly, as the trial court lacked subject matter

jurisdiction, this court should set aside and vacate the trial courts

judgements of summary foreclosure and unlawful detainer based

upon Supreme Court Rule 74.06(b)(4) the judgment is void.

20
 Standards of Review

Whether a judgment should be vacated as void is a question of

law that that should be reviewed de novo, giving no deference to the

trial courts determination. OHare v. Permenter, 113 S.W.3d 287,

289 (Mo.App. 2003).

Rule 74.06(b)(4) provides that a court may relieve a party or

his legal representative from a final judgment or order [if] the

judgment is void. A judgment is void under this rule only if the

court that rendered it lacked personal or subject matter jurisdiction

or acted in a manner inconsistent with due process of law.(State ex

rel. Koster v. Walls, 313 S.W.3d 143,145 (Mo.App. 2010)).

Litigants can request relief from a void judgment pursuant to Rule

74.06(b) at any time. Id. (quoting Franken v. Franken, 191 S.W.3d

700, 702 (Mo.App. 2006)).

21
 Argument

II
The trial court erred in granting summary judgement of

foreclosure followed by granting unlawful detainer due to fraud

pursuant to Rule 74.06(b)(2). The trustee was informed PRIOR

to the foreclosure sale, through a pre-foreclosure letter sent by

Mr. Wiley, that the assignment of the deed of trust recorded in

the Jefferson County Missouri Recorder of Deeds Office was

fraudulent (Appendix Exhibit E). The assignment was fraudulent

based on the fact that the assignor listed (Intervale Mortgage)

ceased to be a business entity in July of 2008, as evidenced by the

cease and desist order issued against Intervale Mortgage by the

Office of Thrift Supervision (hence forth the OTS)(Appendix

Exhibit F). As the assignor was no longer a business entity and

the respondent recorded no proof of an existing power of

attorney or previous assignment, Intervale Mortgage could not

assign its interest. Recording an assignment that the respondents

knew or should have known was fraudulent, is extrinsic fraud.

22
 Pursuant to RSMo. 469.906.1, the trustee is required to act as

an impartial party in cases of non-judicial foreclosure and as the

trustee is also an officer of the court, the trustee has a duty to inform

the court when it receives knowledge that extrinsic fraud has been

committed. "Extrinsic fraud is 'fraud that induced a party to default

or to consent to judgment against him.'" First Bank of the Lake, 302

S.W.3d at 169 n.7 (quoting State ex rel. Lowry, 178 S.W.3d at 637).

In this case, the trustee was informed of the extrinsic fraud committed

by the respondent (See Exhibit C) in falsifying the assignment of the

deed of trust (see Exhibit D) recorded with the Jefferson County

Recorder of Deeds.

The trustee was sent a letter by Mr. Wiley (Exhibit C). Points

2 & 4 layout the extrinsic fraud being committed by the respondent.

The trustee had knowledge of this fraud before the foreclosure sale

occurred and therefore had a duty to inform the court of such fraud.

"'Fraud is a positive act resulting from a willful intent to deceive.'"

Vaughan v. United Fire & Cas. Co., 90 S.W.3d 220, 225 (Mo.App.

2002) (quoting Memco., Inc. v. Chronister, 27 S.W.3d 871, 875

(Mo.App. 2000)). As neither the trustee nor the respondent informed

the court of the fraud being committed, the trustee did not investigate

23
any of the issues brought to their attention, and the trustee did not

stop the sell from occurring, both the trustee and the respondent were

culpable in committing extrinsic fraud. "Extrinsic fraud refers to the

fraudulent procurement of a judgment, not the propriety of the

judgment." Walker v. Walker, 280 S.W.3d 634, 636 (Mo.App. 2009).

"It must relate to the manner in which the judgment was obtained."

As the fraud in this case was collateral to the merits of the non-

judicial foreclosure, this court should vacate the summary judgment

of foreclosure and the unlawful detainer thereby obtained. Extrinsic

fraud "is collateral to the merits of the cause[.]" Essig v. Essig, 921

S.W.2d 664, 667 (Mo.App. 1996).

24
 Standard of Review

Appellate review of the trial court's judgment in an

independent action in equity is governed by the same standard as that

used in a judge-tried case.

See Systematic Bus. Servs., Inc. v. Bratten, 162 S.W.3d 41, 46

(Mo.App.

W.D.2005). As set forth in Rule 74.06(b), extrinsic fraud creates a

void judgement and Litigants can request relief from a void

judgment pursuant to Rule 74.06(b) at any time. (quoting Franken

v. Franken, 191 S.W.3d 700, 702 (Mo.App. 2006)).

25
 Conclusion

Subject matter jurisdiction can be raised at any point in time,

even upon appeal. Once raised, subject matter must be proven upon the

record. Since the trial court lacked subject matter jurisdiction as outlined

above, the judgements of the trial court are void and thus should be vacated.

The appellants have also shown that the respondents, along with the trustee

in this case, have committed extrinsic fraud against the appellants and the

trial court. If appellants are successful on any point, appellants request this

court vacate the unlawful detainer and summary judgement of foreclosure,

return to appellants all bond thus far paid to the court, reimburse appellants

for all legal fees, and any other relief this court deems just.

Respectfully Submitted,

Donald L. Bolin Kimberly J. Bolin

Kimberly Bolin
Acting pro se
5019 Meadow Dr.
Imperial, MO. 63052
636-226-8173
Tazzer4000@unseen.is

26
 CERTIFICATE UNDER RULE 84.06(c)

I, Kimberly Bolin, hereby certify that I am acting pro se and that the

foregoing Brief of Appellant:

(1) Includes the information required by Rule 55.03;

(2) Complies with the limitations contained in Rule 84.06(b); and

(3) Contains 6566 words.

The undersigned further certifies that the pdf file submitted by email of

this Brief has been scanned for viruses and is virus-free.

_____________________________
Kimberly Bolin

27
 CERTIFICATE OF SERVICE

I, Kimberly Bolin, hereby certify that I am acting pro se and that on the 14th day
of November, 2016, I caused one copy of the aforesaid Brief of Appellant and a copy of
the disk for the brief to be served upon counsel for the Respondents by depositing the
same upon counsel for the Respondents by depositing the same in the United States mail,
postage prepaid, addressed as follows:

MATTHEW MIGUEL PETERS

Attorney for Respondent

1044 MAIN STREET

STE 900

KANSAS CITY, MO 64105

Business: (816) 221-1430

X
Kimberly Bolin
acting pro se

______________________________
Kimberly Bolin, acting pro se

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