San Jose Judges Just Don't Get It When It Comes Down To Who Owns The Note To Your Property.

Sylvia Jones
1 P.O. Box 6043

Santa Clara, CA 95050
2 In Pro Se
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UNITED STATES BANKRUPTCY COURT
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NORTHERN DISTRICT OF CALIFORNIA
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) Case No.: 09-51332
7 In Re, )
) Chapter 13
8 Sylvia Jones )
) NOTICE OF MOTION FOR
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Debtor, ) RECONSIDERATION OF ORDER TO
) LIFT AUTOMATIC STAY
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vs. )
) HEARING
11 )
Date: January 21, 2010
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CitiMortgage Inc., its assignees and/or Time: 2:00 p.m.
Place: Ctrm 3099
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Successors in interest, 280 South First Street
San Jose, CA
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Movant,
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16 TO CITIMORTGAGE INC., ITS ASSIGNEES AND SUCCESSORS IN INTEREST
17 ( “Movant”) AND THEIR ATTORNEYS OF RECORD:
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NOTICE IS HEREBY GIVEN that on January 21, 2009 at 2:00 p.m., or as soon thereafter as
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the matter may be heard in Department 3099 of this court located at 280 S. First Street, San
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Jose, California, Sylvia Jones ( “Debtor”) will and hereby moves for reconsideration of the
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motion to lift automatic stay, which the Court by order made and entered on December 28,
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2009.
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The motion is based on this notice of motion, the supporting memorandum of points
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and authority, the declaration of Sylvia Jones served and filed herewith, on the record and file
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herein and on such evidence as may be presented at the hearing of the motion.
Dated this 11th day of January, 2010
26 _____________________________
Sylvia Jones
27 Pro Se
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Notice and Motion for reconsideration of order to lift the automatic stay - 1-
Sylvia Jones
1 P.O. Box 6043
2 In Pro Se
3
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) Case No.: 09-51332
7 In Re, )
) Chapter 13
8 Sylvia Jones )
) MOTION FOR RECONSIDERATION OF
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Debtor, ) ORDER TO LIFT AUTOMATIC STAY
)
10
vs. ) HEARING
)
11 ) Date: January 21, 2010
Time: 2:00 p.m.
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CitiMortgage Inc., its assignees and/or Place: Ctrm 3099
280 South First Street
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Successors in interest, San Jose, CA
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Movant,
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A motion for reconsideration is allowable under either Federal Rule of Bankruptcy Procedure
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9023, which incorporates Federal Rule of Civil Procedure 59(e), Motion to Alter or Amend
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Judgment, or under Federal Rule of Bankruptcy Procedure 9024, which incorporates Federal
19 Rule of Civil Procedure 60, Relief From Judgment or Order. Under Rule 9023, “reconsideration
20 is proper when there has been a manifest error of law or fact, when new evidence has been
21 discovered, or when there is a change in the law.” (Tuner v Burlington Northern Santa Fe R.
22 Co.,338 F.3d 1058, 1063(9th Cir. 2003))
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Conversely, under Federal Rule of Bankruptcy Procedure 9024, “relief from an
order can be granted for a clerical mistake or for mistake, inadvertence, surprise, excusable
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neglect, newly-discovered evidence, misrepresentation where the order is void or discharged or
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is no longer equitable.”
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Debtor argues that by granting the Movant’s motion, this Court “condones behavior that violates
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California law.
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Pursuant to Federal Rule 37(e) reconsideration will be granted on the motion of the
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requesting party, only when it appears the Court has overlook a material fact in the record, a
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statue or a decision which is controlling as authority and which would require a different
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judgment or order from that rendered or has been enormously construed or misapplied the
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provisions of the law or controlling authority.
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The issues raised by the Movant’s in their motion dose not introduce sufficient reason to
6 justify this Court in granting relief from stay when their motion became “MOOT” effectively
7 upon the dismissal of Debtor’s Chapter 13 on November 12, 2009. (See Attached Exhibit A)
8 Also debtor would argue, in the alternative, that if the Court determines the creditors
9 motion was not moot as of the aforementioned date, then reconsider its ruling based on Federal
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Rule of Civil Procedure 17(a) requires every action shall be prosecuted in the name of the real
party in interest."
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Definition of real party in interest: a party who according to the applicable law is
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entitled to enforce the right that forms the basis of the claim regardless of who will actually
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benefit by the outcome.
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To make a determination of who the real party in interest is, the Court must be provided,
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by the party claiming legal status as the real party in interest, with evidence which will allow the
16 Court to make a equitable judgment. The Movant’s have not presented sufficient evidence, nor,
17 has this Court demanded Citimortgage, Inc. (“Citi”) provide proof. Without the Court
18 demanding Citi provide proof is a manifest of injustice and prejudice to the Debtor.
19 During the hearing of November 18, 2009 the Court did not require Movant to prove
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standing beyond attaching a copy of the Note and the Deed of Trust when Debtor produced
documents on the October 28, 2009 hearing that Freddie Mac may be the owner of the
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mortgage. In the Court’s hast not to compel any further information beyond a reasonable doubt
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to prove that Movant’s had beneficial interest or was and still has possession of the Note and
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Deed of Trust at the time of Debtor’s default. In the Court issuing a order allowing the
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automatic stay to be lifted to cause a wrongful foreclosure in the names of Movant’s who may
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be unsecured creditors if it is determined that they are not the legal owners of the debt.
26 Furthermore, debtor argues that the Court should reconsider its order, which in essence
27 and in fact, established that the Movant’s were the legal holder of the note as incorrect, because
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they have not provided sufficient evidence to this Court to draw the legal conclusion that they
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actual hold the Debtors note.
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Debtor contends that the Court, as the trier of fact, should have required Movant’s to
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answer the following questions and produce supporting documentation to determine who the real
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party of interest is and the holder in due course who has legal standing in which the Court is
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obligated to base its rulings as a matter of fact in law supported by controlling authority.
6 1. Was this loan originated in lawful compliance with all federal and state laws, regulations
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including, but not limited to, Title 62 of the Revised Statutes, RESPA, TILA, Fair Debt
Collection Practices Act, HOEPA and other laws?
8 2. Was the origination and/or any sale or transfer of this account or monetary instrument
conducted in accordance with proper laws and was it a lawful sale with complete
9 disclosure to all parties in interest?
3. Disclose whether the claim holder in due course of the monetary instrument/deed of
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trust/asset is in compliance with statutes, state and federal laws and who is entitled to the
11 benefits of payments.
4. Were all transfers, sales, Power of Attorney, monetary instrument ownership,
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entitlements, full disclosure of actual funding source, terms, costs, commissions, rebates,
13 kickbacks, fees properly disclosed; including but not limited to the period commencing
with the original loan solicitation until now and including any parties, instruments,
14 assignments, letters of transmittal, certificates of asset-backed securities and any
subsequent transfer thereof?
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5. Has the servicer of this mortgage serviced this mortgage in accordance with statutes, laws
16 and the terms of mortgage, monetary instrument/deed of trust, including but not limited
to all accounting or bookkeeping entries, commencing with the original loan solicitation
17 until now and including any parties, instruments, assignments, letters of transmittal,
certificates of asset-backed securities and any subsequent transfer thereof?
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6. Has this mortgage account been credited, debited, adjusted, amortized and charged
19 correctly, commencing with the original loan solicitation until now and including any
parties, instruments, assignments, letters of transmittal, certificates of asset-backed
20 securities and any subsequent transfer thereof?
7. Is there any Trustee agreement(s) between the nominal lender at the loan closing and any
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party or parties who could claim an interest in the loan closing or documents pertaining
22 thereto and trustee(s) regarding this account or pool accounts with any GSE or other
party’s.
23 8. Provide a copy of the United States Securities and Exchange Commission initial
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statement of beneficial ownership of securities. (Form3)
9. Provide documentation evidencing any trust relationship regarding the Mortgage/Deed of
25 Trust and any Note in this matter.
10. Provide all document(s) establishing any Trustee of record for the Mortgage/Deed of
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Trust and any Note.
27 11. Provide all document(s) establishing the date of any appointment of Trustee for this
Mortgage or Deed of Trust and any Note, including any and all assignments or transfers
28 or nominees of any substitute trustee(s).
12. Provide all document(s) establishing any Grantor for this Mortgage or Deed of Trust and
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any Note.
2 13. Provide all document(s) establishing any Grantee for this Mortgage or Deed of Trust and
any Note.
3 14. Provide all document(s) establishing any Beneficiary for this Mortgage or Deed of Trust
and any Note.
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15. Provide documentation evidencing the Mortgage or Deed of Trust is not a constructive
5 trust or any other form of trust.
16. Provide all assignments, transfers or other documents evidencing a transfer, sale, or
6 assignment of this mortgage, deed of trust, monetary instrument or other document that
7
secures payment to this obligation in this account from the inception of this account to
the present date, including any such assignment on Mortgage Electronic Registration
8 Systems (“ MERS”).
17. Provide all records, electronic or otherwise, of assignments of this mortgage, monetary
9
instrument or servicing rights to this mortgage including any such assignments on MERS.
10 18. Is the servicer of this mortgage account the holder in due course and beneficial owner of
this mortgage, monetary instrument and deed of trust?
11 19. Have any sales, transfers or assignments of this mortgage, monetary instrument, deed of
trust or any other instrument executed to secure this debt been recorded in any electronic
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fashion such as MERS or other internal or external recording system from the inception
13 of this account to the present date?
20. Provide the names of the seller, purchaser, assignor, assignee or any holder in due course
14 to any right or obligation of any note, mortgage, deed of trust or security instrument
executed securing the obligation on this account that was not recorded in the county
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records where the property is located, whether they be mortgage servicing rights or the
16 beneficial interest in the principal and interest payments.
21. Identify where the originals of this entire account file are currently located and how they
17 are being stored, kept and protected.
22. Where is the original deed of trust or mortgage and note debtor signed located? Please
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describe its physical location and anyone holding this note as a custodian or trustee if
19 applicable.
23. Since the inception of this account, has there been any assignment of this monetary
20 instrument/asset to any other party? If the answer is yes, identify the names and addresses
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of each and every individual, party, bank, trust or entity that has received such
assignments.
22 24. Since the inception of this account, has there been any sale or assignment of the servicing
rights to any other party? If the answer is yes, identify the names and addresses of each
23 individual, party, bank, trust or entity that has received such assignments or sale.
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25. Since the inception of this account, have any sub-servicers serviced any portion of this
mortgage account? If the answer is yes, identify the names and addresses of each
25 individual, party, bank, trust or entity that has sub-serviced this mortgage account.
26. Has the mortgage account been made a part of any mortgage pool since the inception of
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this loan? If yes, please identify each mortgage pool account that this mortgage has been
27 a part of from the inception of this account to the present date.
27. Has each assignment of this asset/monetary instrument been recorded in the county land
28 records where the property associated with this mortgage account is located?
28. Has there been any electronic assignment of this mortgage with MERS or any other
1
computer mortgage registry service or computer program? If yes, identify the name and
2 address of each individual, entity, party, bank, trust or organization or servicers that have
been assigned mortgage servicing rights for this account as well as the beneficial interest
3 to the payments of principal and interest on this loan.
29. Have there been any investors (as defined by your industry) who have participated in any
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mortgage-backed security, collateral mortgage obligation or other mortgage security
5 instrument that this mortgage account has ever been a part of from the inception of this
account to the present date? If yes, identify the name and address of every individual,
6 entity, organization and/or trust.
30. Please identify the parties and their addresses to all sales contracts, servicing agreements,
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assignments, alonges, indorsements, transfers, indemnification agreements, recourse
8 agreements, and any agreement related to this account from the inception of this account
to the present date.
9 31. How much were you paid for this individual mortgage? What premium was paid?
32. Is mortgage part of a mortgage pool, what was the principal balance used by you to
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determine payment for this individual mortgage loan?
11 33. Who issued a check or payment to for this mortgage loan?
34. Please provide copies of the front and back of the canceled check.
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35. Would any investor have to approve the foreclosure of subject property?
13 36. Has HUD assigned or transferred foreclosure rights as required by 12 USC 3754?
37. Identify all persons who would have to approve foreclosure of subject property.
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MEMORANDUM OF POINTS OF AUTHORITY
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18 A party seeking to foreclose bears the burden of demonstrating standing and must plead
19 its components with specificity, and must demonstrate that it was the holder and owner of the
20 note and mortgage as of the date that foreclosure relief is sought or the court will enter a
dismissal of the foreclosure action. Coyne v. American Tobacco Company, 183 F.3d 488 (6th
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Circuit 1999), Attached in cited Opinion and Order of Hon. Christopher A. Boyko in the matter
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of In Re Foreclosure Cases, United States District Court, Northern District of Ohio (Eastern
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Division)(copy attached hereto, dismissing foreclosure actions for failure of foreclosing party to
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satisfy its burden of demonstrating standing as of the time of seeking foreclosure relief through
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filing of Complaint).
26 Whereas; a party seeking relief is not a party in interest, and has no personal claim, or
27 does not represent anyone on whose behalf he might be a party in interest, he has no standing to
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seek relief and any relief sought is without merit and cannot be granted for the lack of standing.
1
In Re Property Management & Investment, Inc., 17 B.R. 728, 730 (Bankr. M.D. Fla. 1982).
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Whereas; Movant’s motion for relief from stay states the following in the caption of their
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motion as “CitiMortgage Inc. its assignees and/or successors interest.” Whereas; the
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unidentified parties are not listed as required to be listed pursuant to Fed. R. Civ. P. Rule 10(a)
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which states all parties must be named in every motion caption pleading. Whereas; in the
6 opinion and order of Federal Bankruptcy Judge Samuel Bufford who clearly states on page 3,
7 item A, lines 14-15 that unidentified parties are not permitted. The opinion further states on page
8 3, item A, lines 5-11 the importance of the identification of all parties serves several important
9 functions such as linking the motion of all parties to schedules A and D. It also determines if
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there is a relationship between the Judge and all other unidentified Movant’s in which the Judge
must recue himself under the Code of Conduct for the United States Judges. (See Attached
11
Exhibit B)
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Movant’s have clearly states on page 2, item 3, lines 3-4, reply to Debtor’s opposition to
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Movant’s motion to lift the stay that the loan was originated in the name of Freddie Mac is
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simply not true. (See Attached Exhibit C) The Note clearly states on page four, item 1. lines 1-
15
3 that the originating Lender was Pacific Community Mortgage (“PCM”). (See Attached
16 Exhibit D) Movant’s further states on page 2, item 3, lines 4-6 that the Deed of trust indicates
17 MERS is the beneficial owner and holder of the Note at origination. This is also not true. The
18 Honorable Judge Bufford clearly states as controlling authority to reinforce Debtor’s argument
19 on page 7. item ii, lines 6-12. Debtor contends that if MERS states that it owns Debtor’s Note
20
that No formal request for demand of payment by MERS was ever made to Debtor in writing or
for that matter verbally. Debtor contends that MERS will be unable to produce such a demand
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sent to Debtor in writing pursuant to the Fed. R. Evid. 1001(1). Furthermore; the opinion of
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Judge Bufford states on page 7, item ii, lines 10-12 that pursuant to §3501(b)(2) that person
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making the demand to enforce the Note must show the original. Movant’s have not produced
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nor showed the original Note to Debtor or this Court. Judge Bufford further states on page 7,
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item ii, lines 13-24 that MERS is not in the business of holding Notes and that MERS acts as a
26 nominee which is a Agent for the lender and is not entitled to enforce the Note under CAL.
27 COM. CODE§3301. (See Attached Exhibit E) MERS has not produced any evidence pursuant
28 to the Fed. R. Evid. 902(4) before this Court that it had authority from the untitled Note holder,
first to assign the Deed of Trust to Movant Citi and second to initiate a foreclosure against
1
Debtor. See attached exhibit B Judge Bufford has also posted on his court room doors is a
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notice to all moving parties and attorney’s requesting relief from stay, will be denied if they do
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produce the original promissory Note for his personal inspection. He also cites relevant
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bankruptcy codes of why a copy the Note must not be filed with the court. (See Attached
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Exhibit F)
6 The Nebraska Supreme Court also gave a opinion that was not in favor of MERS, noting
7 that “MERS has no independent right to collect on any debt because MERS itself has not
8 extended credit, and none of the mortgage debtors owe MERS any money.” 270 Neb. at 535.
9 The Nebraska court reached the same conclusions as Judge Bufford based on the
10
submissions by counsel for MERS that “MERS does not take applications, underwrite loans,
make decisions on whether to extend credit, collect mortgage payments, hold escrows for taxes
11
and insurance, or provide any loan servicing functions whatsoever. MERS merely tracks the
12
ownership of the lien and is paid for its services through membership fees charged to its
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members. MERS does not receive compensation from consumers.” 270 Neb. at 534.
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CONCLUSION
16 Whereby in granting the Movant’s motion to lift the automatic stay the Court can’t
17 arbitrarily determine or designate that the Movant’s are the real party’s of interest. This Court
18 has not address all of the above questions as a matter of law to fully determine who is the real
19 party of interest. The Court further prejudice the Debtor in giving Movant’s legal advice to evict
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the Debtor from her property. Lifting the stay to foreclose and eviction are two separate actions.
as I recall the only motion before this Court was to lift the stay to foreclose heard on the October
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28, 2009 and November 18, 2009.
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This Court in issuing its order on December 28, 2009 has also made a determination to
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deny the Debtor her rights to discovery and evidence under the law of due process to determine
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the true identities of the real parties of interest as the holder in due course of the Note and the
25
Deed of Trust. (See Attached Exhibit G)
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PRAYER FOR RELIEF
1
Effectively upon Debtor’s motion being dismissed on November 12, 2009 and Movant’s
2
motion to lift the stay scheduled hearing on November 18, 2009 should have readily been
3
dismiss as being “MOOT”. The Court err by not dismissing Movant’s motion as being MOOT.
4
Debtor is respectfully requesting that this Court alter , correct or incorporate changes to the order
5
issued on December 28, 2009 to read Movant’s motion to lift the stay is dismissed as being
6 MOOT.
7 Dated this 11th day of January, 2010
_____________________________
8 Sylvia Jones
Pro Se
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Sylvia Jones
1 P.O. Box 6043
2 In Pro Se
3
4
5
7
) Case No.: 09-51332
In Re, )
8
) Chapter 13
Sylvia Jones )
9
) DECLARATION OF SYLVIA JONES IN
Debtor, ) SUPPORT THEREOF MOTION FOR
10
) RECONSIDERATION OF ORDER TO
vs. ) LIFT THE AUTOMATIC STAY
11
)
12 ) HEARING
CitiMortgage Inc., its assignees and/or Date: January 21, 2010
13
Time:2:00 p.m.
Successors in interest, Place: Ctrm 3099
14
280 South First Street
Movant, San Jose, CA
15
16
17
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I, Sylvia Jones, declare the following:
19
1. I am the Debtor in the above caption title and resident in the State of California and
20
county of Santa Clara.
21 2. I have personal knowledge of the matters stated in this Declaration, and if called as
22 a witness, I could and would testify competently as to those matters; and as to those
matters stated on information and belief, I believe them to be true.
23
3. I make this Declaration in support of my Motion for Reconsideration of the Court’s
24
December 28, 2009 order. For the Court’s convenience, I have attached a true and
25
correct copy of the Court’s Order as “Exhibit A” hereto.
26
4. On September 17, 2009 trustee’s motion for Debtor to correct filing defects or the Courts
27
dismissal of the Chapter 13. The hearing was continued to November 12, 2009 for
28 Debtor to correct errors . The trustee motioned to dismiss Debtor’s chapter 13 on
November 12, 2009 because Debtor was unable to correct defects. The Court granted
1
trustee’s motion without prejudice and advised Debtor to obtain a attorney to re-file
2
Chapter 13 at a later date.
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5. The order for dismissal of Chapter 13 was issued on November 19,2009.
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6. Movant’s filed a notice of motion and motion to lift the automatic stay and set hearing on
5
October 28, 2009. All parties were present whereby attorney for Movant appeared by
6 phone. (See Attached Exhibit B)
7 7. The Debtor produced a online 2 page document from the Freddie Mac web site. The
8 document stated that Freddie Mae was the owner of Debtor’s mortgage. Debtor raised the
9 issue of legal standing and citied Fed. R. Civ. P. Rule 17 ( real party of interest) The
10 Court received the document and accepted it as valid. (See Attached Exhibit C)
8. The Court advised opposing counsel for the Movant to go online and view the web cite
11
and stated he could not lift the stay because Debtor has raised the issue of legal standing.
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9. The Court stated that rather than deny the motion he would allow opposing counsel the
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opportunity to verify if Freddie Mac was the owner of Debtor’s mortgage. The Court
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then granted Movant’s a continuance and set a hearing date for November 18, 2009.
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10. All parties were present at the November 18, 2009 whereby opposing counsel appearing
16 by phone.
17 11. Debtor appeared on November 18, 2009 and was unaware that Movant’s had filed a reply
18 motion to her verbal opposition made at the October 28,2009 hearing. Debtor was asked
19 by the Court if she received a copy of the Movant’s reply motion and if she had
20 opportunity to reviewed Movant’s reply motion. Debtor’s was taken taken back, shocked
and surprised and responded to the Court that she had not receive opposing counsel’s
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motion.
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12. The Court handed Debtor courts copy of Movant’s reply motion to view out in hallway
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and passed the case to give Debtor a opportunity to view Movant’s motion.
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13. The case was re-called and Debtor argued the legal standing issue again and handed the
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Court documents that she had on hand. Which was a chain of title and a copy of a MERS
26 registration indicating CitiMortgage Inc. (“Citi”) as the servicer of Debtor’s loan.
27
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14. The Court viewed Debtor’s documents and erroneously determined that Movant’s had
1
legal standing to lift the stay to foreclose on Debtor’s property. However, the Court did
2
not grant the Movant’s wavier of the 14 day stay.
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15. Debtor realized after leaving Court that Movant’s motion should not have been granted
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because it was MOOT. Debtor contacted the Judges Clerk by phone and notified her the
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Court had err. The clerk said that she had to research it and would return her call.
6 16. The Judges clerk stated that the Court would contact opposing counsel by phone and
7 notify him that the motion was MOOT. Debtor asked the clerk if she should prepare a
8 order for the Judge to sign. The clerk stated to Debtor it would not be necessary, so
9 Debtor did not prepare a order to submit to the Court.
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17. Debtor received a copy of the order issued by the Court dated December 28, 2009.
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Debtor believes that she was mislead by the Court in the fact that they did not intend to issue
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a order as to Movant’s motion because it was MOOT and grounds for dismissal. Debtor had no
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idea that the Court would sign a copy of a order prepared by Movant issued and dated
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December 28, 2009. It is upon information and belief that the prevailing party is to prepare a
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order for the Court’s signature unless the Court decides to prepare and issue a order on its own .
16 Under the penalty of perjury the foregoing statement is true and correct and within my
17 personal knowledge.
18 Dated this 11th day of January, 2010
_____________________________
19 Sylvia Jones
Pro Se
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Sylvia Jones
1 P.O. Box 6043
2 In Pro Se
3
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5
7
) Case No.: 09-51332
In Re, )
8
) Chapter 13
Sylvia Jones )
9
) (PROPOSED) ORDER FOR
Debtor, ) RECONSIDERATION TO LIFT THE
10
) AUTOMATIC STAY
vs. )
11
) HEARING
12 )
Date: January 21, 2010
CitiMortgage Inc., its assignees and/or Time:2:00 p.m.
13
Place: Ctrm 3099
Successors in interest, 280 South First Street
14
San Jose, CA
Movant,
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18 Movant’s motion for relief from the automatic stay came on for hearing on November 18,
2009 before Honorable Judge Efremsky, presiding over this matter.
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The Court, having considered pleadings and oral arguments makes its findings and orders
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as follows:
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IT IS HEREBY ORDERED, that Debtor’s motion for reconsideration of the order enter on
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December 28, 2008 to lift the automatic stay is hereby “GRANTED”.
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25 IT IS FURTHER ORDERED, that Movant’s motion to lift the automatic stay to foreclose on
26 the subject property generally described as 1057 Delna Manor Ln, San Jose, California is
27 dismissed as “MOOT”.
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IT IS SO ORDER
1
Dated this ____day of January, 2010
2 _____________________________
3 Honorable Judge of Court
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San Jose Judges Just Don't Get It When It Comes Down To Who Owns The Note To Your Property.

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San Jose Judges Just Don't Get It When It Comes Down To Who Owns The Note To Your Property.

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Sylvia Jones

1 P.O. Box 6043

16 TO CITIMORTGAGE INC., ITS ASSIGNEES AND SUCCESSORS IN INTEREST

17 ( “Movant”) AND THEIR ATTORNEYS OF RECORD:

22 Co.,338 F.3d 1058, 1063(9th Cir. 2003))

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