coa11-1487 appellant brief

8/2/2019 COA11-1487 Appellant Brief

1/54

NO. COAII-1487 TWENTY-SIXTH JUDICIAL DISTRICT

NORTH CAROLINA COURT OF APPEALS

****************************************In the Matter of the Foreclosure ofDeed ofTrust executed by JenniferL. Wilson in the original amount of$94,000.00 dated January 16,2007,recorded in Book 21672, Page 355,Mecklenburg County Registry,Substitutie Trustee Services, Inc.,Substitute Trustee

Petitioner - Appellee,v.

Jennifer L. Wilson,Respondant - Appellant.

)))))))))))))))

From Mecklenburg CountyFile No. 10 SP 9920

*****************************************RESPONDENT - APPELLANT'S BRIEF

*****************************************

Page i of vi


2/54

INDEX

I d ..n ex .......................................................................................................................... 11'rABLE OF AUTHORITIES ................................................................................... ii il...JEGEND ............................................... ................................................................... viSTATEMENT OF THE ISSUES .............................................................................. 1STATEMENT OF THE CASE ................................................................................. 2STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW ....................... 3STATEMENT OF FACTS ....................................................................................... 4ARGUMENT .......................................................................................................... 21


3/54

TABLE OF AUTHORITIES

CasesAndrews v. Fulcher Tire Sales & Serv., 120 N.C. App. 602,463 S.E.2d 425 (1995)

............................................................................................................................. 22Debreceni v. Outlet Co., 784 F.2d l3 (1 st Cir. 1986) .............................................. 26Dobson v. Substitute Trustee Services, _ N.C. _ 2011 WL1854315 (citation

omitted) ................................................................................................................ 14Eley v. Mid/East Acceptance Corp. o/NC, 171 N.C. App. 368,614 S.E.2d 555

(2005) ................................................................................................................... 22Furst v. Loftin,29 N.C. App. 248, 224 S.E.2d 641 (1976) ...................................... 21Hotel Corp. v. Taylor and Fletcher v. Foremans, Inc.,301 N.C. 200, 271 S.E.2d 54

(1980) ................................................................................................................... 27In re Cooke, 37 N.C. App. 575, 579,246 S.E.2d 801 (1978) ................................. 28In re Foreclosure 0/Burgess, 47 N.C. App. 599,267 S.E.2d 915, appeal

dismissed,301 N.C. 90 (1980) ............................................................................. 21In re Foreclosure o/Connolly v. Potts, 63 N.C. App. 547, 550, 306 S.E.2d 123,

125 (1983) .......................................................................................... 14,21,27,28In re Foreclosure o/Kitchens, 113 N.C. App. 175,437 S.E.2d 511 (1993) ........... 28In re Foreclosure o/Real Property (Brown), 156 N.C. App. 477, 577 S.E.2d 398

(2003) ................................................................................................................... 28

Page iii of vi


4/54

In re Simpson, North Carolina Court ofAppeals, No. COAI0-361 (May 3, 2011)....................................................................................................................... 14,22

In re: Adams, N.C. App. No. COA09-1145 (Jun. 1,2010) (citation omitted) ....... 27in the Matter ofBass, No. COA11-565, __ S.E. __ Dec. 6, 2011) (citation

omitted) ................................................................................................................ 23Liles v. Myers, 38 N.C. App. 525,248 S.E.2d 385 (1978) ............................... 22,27Lujan v. Defenders ofWildl(fe, 502 US 555 (1992) ............................................... 30McNutt v. General Motors Acceptance Corporation 1936, 298 US 178, 56 S.Ct.

78080 L.Ed. 1135 ............................................................................................... 10Melo v. US, 505 F2d 1026 (Nov. 7,1974) .............................................................. 10Ohlendorfv. American Home Mortgage Servicing, U.S. Dist. Court Eastern Dist.

Cal. No. Civ. S-09-2081 (Mar. 30,2010) (citation omitted) ............................... 23Rosemound Sand and Gravel Company v. Lambert Sand & Gravel Company, 469

F2d 416 (1972) .................................................................................................... 10Viacom International Inc. v. Tandem Productions Inc., 368 F.Supp. 1264

(S.D.N.Y.1974), affd, 526 F.2d 593 (2d Cir.1975) ............................................ 26Welsh v. American Surety Company, 186 F 2d 16 (5 th Cir. Jan. 17, 1951) ............ 10Statutes

42-21.16C(a) ............................................................................................................. 5N.C.O.S. 25-3-204(a)(i) (2009) ........................................................................... 23

Page iv of vi


5/54

N .C.G S. 7 A -27 (b) ................................................................................................. 3N.C.G.S. 45-21.16(d) ........................................................................... 5,21,27,28N.C.G.S. 1-57 ....................................................................................................... 30N.C.G.S. 45-21.12(a) ............................................................................................. 8N.C.G.S. 45-21.12A ............................................................................................. 12N.C.G.S. 47-17.2 .................................................................................................. 23N.C.G.S. 25-1-201(B)(21) ................................................................................... 14Chaper 8C Evidence Code 8C-lRule 1003 ......................................................... 21Evidence Code 8C-lRule 1005 ............................................................................ 21Evidence Code 8C-lRule 902(4) ......................................................................... 21Uniform Commercial Code, G.S. 25-1-201(21)(a) ................................................. 27Other Authorities

5 C, Wright & A. Miller supra Section 1363 at 653 ............................................... 106A Wright, Miller & Kane, Federal Practice and Procedure 1541 (Westlaw

current through 2009 update) .............................................................................. 30United States Constitution

Article III ................................................................................................................. 30

Page v of vi


6/54

LEGENDReferences to the relevant Record of the Court are, enclosed in parenthesis

and designated by the italic letters (R ) followed by the page number (p. 1).Example (R p. 1).

References to the relevant Transcript are, enclosed in parenthesis anddesignated in italics by the transcript date (3/29), followed with the capital letters(1), and then by the page number (p. 1). Example (3/29 Tp. 1).

Page vi of vi


7/54

NO. COAII-1487 TWENTY-SIXTH JUDICIAL DISTRICTNORTH CAROLINA COURT OF APPEALS****************************************

In the Matter of the Foreclosure ofDeed of Trust executed by JenniferL. Wilson in the original amount of$94,000.00 dated January 16,2007,recorded in Book 21672, Page 355,Mecklenburg County Registry,Substitutie Trustee Services, Inc.,Substitute TrusteePetitioner - Appellee,v.

Jennifer L. Wilson,Respondant - Appellant.

))))))))))))))))

From Mecklenburg CountyFile No. 10 SP 9920

STATEMENT OF THE ISSUESI. DID THE TRIAL COURT ERR IN RELYING ON UNAUTHENTICATED

DOCUMENT COPIES PROFFERED BY THE PETITIONER TODETERMINE NATIONSTAR WAS THE HOLDER OF THE NOTEWITH THE RIGHT TO FORECLOSE?

II. DID THE TRIAL COURT ERR IN DETERMINING NATIONS TAR WASIN POSSESSION OF THE NOTE WITH THE RIGHT TO FORECLOSE?

III. DID THE TRIAL COURT ERR IN DETERMINING IT POSSESSEDJURISDICTION TO PROCEED ON THE MERITS?

Page I of34


8/54

STATEMENT OF THE CASEOn December 7, 2010, Jennifer L. Wilson (herein after "Wilson") appeared

before the Clerk for the General Court of Justice Superior Court Division for theCounty ofMecklenburg in the matter of the foreclosure on a Deed ofTrust (10-SP-9920). Wilson filed a motion to dismiss alleging petitioner was not the real party ininterest (lacked standing). The Clerk denied Wilson's "NOTICE OF MOTION TODISMISS FORECLOSURE ACTION DUE TO PETITIONER'S LACK OFSTANDING, LACK OF COURT'S SUBJECT MATTER JURISDICTION OVERALLEGED CONTROVERSY, ETC" ("MOTION") granting petitionerauthorization to proceed with the foreclosure sale.

On December 7,2010, Wilson filed a "Notice ofAppeal from the Order ofForeclosure."

On February 8, 2011 Wilson appeared before Judge Forest B. Bridges on theAppeal from the Clerk's authorization to proceed with the foreclosure sale.Petitioner, Substitute Trustee Services, Inc. ("STSI"), requested a continuancealleging; "subsequent to the filing of that appeal, the trustee was informed that thenote had been sold to Flagstar." The case was continued to March 29, 201l.

On March 29, 2011 Wilson appeared before Judge F. Lane Williamson oncontinuance from appeal of the Clerk's authorization to proceed with theforeclosure sale. STSI introduced additional document copies, never before seen

Page 2 of34


9/54

by appellant Wilson, now alleging Nationstar Mortgage was assigned the "InterestFirsem NOTE" ("NOTE") and DEED OF TRUST ("DEED") from SunTrustMortgage, Inc. The court continued the hearing to May 25,2011 to allow appellantWilson time to respond to the additional documentation.

On May 25,2011, Wilson appeared before Judge Robert T. Sumner, oncontinuance from appeal of the Clerk's authorization to proceed with theforeclosure sale. The parties were given the opportunity to present their case. Thecourt bound the case over to allow the court time to review and then render itsdecision.

On May 31, 2011, Judge Robert T. Sumner signed the "ORDER" denyingWilson's MOTION (R p. 8-35), dismissing the Appeal filed by Wilson onDecember 7,2010, and granting STSI authorization to proceed with the foreclosuresale. It is this ORDER Appellant appealed from.

STATEMENT OF THE GROUNDS FOR A P P E L L A T ] ~ REVIEW

Judge Robert T. Sumner's ORDER denying appellants motion to dismiss,dismissing the appeal from the ORDER of the Mecklenburg County Clerk ofSuperior Court entered on December 7, 2010, and granting Petitioner the right toconduct a foreclosure sale as provided by statute, is a final judgment, and appealtherefore lies to the Court ofAppeals pursuant to N.C. Gen. Stat. 7 A-27(b).

Page 3 of34


10/54

STATEMENT OF FACTS

On October 11, 2010, STSI petitioned the Clerk for the General Court ofJustice North Carolina Mecklenburg County for authorization to conduct aforeclosure sale. The hearing was set for December 7,2010.

On December 6,2010, appellant Wilson filed a MOTION to dismiss. (Rp.8-35). The MOTION challenged standing of the parties, and perpetually objectedto any purported evidence absent valid authentication. (R p. 13, par. 10). TheMOTION specifically objects to the unauthenticated copies of the NOTE andDEED. (R p. 14, par. 19). The MOTION evidences the real party in interest is notrepresented and STSI is absent standing to invoke the jurisdiction of the court. (Rp. 6, par. 27). The MOTION presented probative evidence identifying FederalNational Mortgage Assocation ("FNMA") to be the holder and owner of the NOTEand DEED. (R p. 15-16, par. 28 inclusive). Probative evidence labeled Exhibits A,B, C, & D (R pp. 37, 39, 41, 43) were attached to Wilson's MOTION. Exhibits Cand D, reports from FNMA and MERS respectively, are dated December 5, 2010and evidence Nationstar is only the Servicer and FNMA is the owner/investor.Accompanying the exhibits in the MOTION was Wilson's jurat attesting theexhibits authenticity.

On December 7,2010, STSI filed a copy of the NOTE evidencing a blankendorsement by SunTrust Mortgage, Inc., DEED, "AFFIDAVIT PURSUANT TO

Page 4 of34


11/54

N.C.G.S. 45-21. 16(d) AND 42-21.16C(a)" ("AFFIDAVIT"), and"APPOINTMENT OF SUBSTITUTE TRUSTEE" ("APPOINTMENT") both theAFFIDAVIT and APPOINTMENT are executed by Mary C. Jones on August 19,2010, and March 4, 2010 respectively, each alleging the holder of the note andindebtedness is SunTrust Mortgage Inc. (R pp. 83-85).

On December 7,2010, Cameron D. Scott, Assistant Clerk of Superior Courtfor Mecklenburg County, granted STSI authorization to proceed with a sale. (R p.86).

On December 7,2010, Wilson filed a "NOTICE OF APPEAL OF ORDEROF FORECLOSURE AND ORDER SETTING BOND ON APPEAL." (R p. 87).The appeal was set for hearing on February 8, 2011.

On February 8, 2011 a hearing was held before Judge Forest B. Bridges onthe Appeal from the December 7,2010, Clerk's order authorizing STSI to proceedwith the foreclosure sale.

At the hearing Andrew Cogbill (herein after "Cogbill") averred hisappearance on behalfof STSI, and Flagstar Bank. (2128 Tp. 2). Wilson asked forclarification as to who Cogbill was representing. (2128 Tp. 2). Immediately,Cogbill moved for continuance explaining "SunTrust Bank was the original lenderon the note .. . subsequent to the appeal the trustee was informed that the NOTEhad been sold to Flagstar Bank. And Flagstar has since contacted us to represent

Page 50f34


12/54

them in this appeal." (2128 TR pp. 2-3). Ms. Wilson informed the court, "that's newto me." (2128 T p. 3). Cogbill, explained to the court, "we [STSI] need to attainadditional information to present to the court that's not already in the record."(2128 T p. 3). Judge Bridges asked Wilson "do you oppose a continuance?" (2128 Tp. 3). Ms. Wilson did not oppose the continuance asking for a response to theMOTION filed on December 6,2010, and informed the court of an addendum tothat MOTION. (2128 T p. 3). Ms. Wilson elaborated, for the record, "FlagstarBank, that's even a new party to me. I've been told by five different sourcesincluding SunTrust Bank that it's FNMA who is the owner and investor on thisaccount." (2128 T p. 4). Wilson continued asserting this motion (continuance)needs to be brought in the name of FNMA and the substitute trustee filed in thepublic record is invalid. "So it [Substitute Trustee Services, Inc., Flagstar Bank, orSunTrust Mortgage] does not have standing and it's not the real party ininterest."(2128 Tp. 4).

The court having read through Ms. Wilson's MOTION asked, "Who isShannon Brazelton?" Wilson replied, "That's the note that SunTrust Bankprovided me when I .. . asking [asked] for certified copies of the documents toprove their standing." (2128 Tp. 5). Cogbill, explaining to the court, the copy ofthe note bearing the name Shannon Brazelton was "provided in error in the actualnote addressed in the subject property was provided as evidence at the time of the

Page 60f34


13/54

[Dec. 7, 2010] hearing." (2/28 Tp. 5). The court indicated its willing to grant thecontinuance given both parties are moving for same. (2/28 Tp. 5). Ms. Wilsonimmediately moved for dismissal on grounds STSI and SunTrust Mortgage"(STM"), do not have standing and are not the real party [parties] in interest. (2/28Tp. 6). The court declined to address Wilson's motion in open court granting thecontinuance and subsequently setting the hearing for March 29, 2011.

On March 29,2011 Wilson appeared before Judge F. Lane Williamson oncontinuance from appeal of the Clerk's authorization to proceed with the sale. Thecourt informed Wilson it read Wilson's MOTION and stated it made no sense tothe court. So the court asked Wilson to explain "in 30 seconds or less what youcontend entitles you to avoid this foreclosure?" (3/29 T p. 2). Wilson repliedSTM's claim to be the real party in interest is false. They do not possess the rightto begin this action they're not the real party in interest. (3/29 Tp. 2). Responding,Cogbill contended STM was the proper party when the foreclosure began,however, "the holder of the note changed from STM to Nationstar". "I need topresent additional evidence to the court." (3/29 Tp. 3). Wilson objected. The courtadmonished Ms. Wilson. (3/29 Tp. 3). Cogbill continued by identifying thealleged new evidence to be introduced, "affidavit from Nationstar," and a "copy ofthe note endorsed in blank to prove evidence of the conveyance." (3/29 T pp. 3-4).The court questioned Cogbill "you're telling me since the order of the foreclosure

Page 7 of34


14/54

.. . that there's a new holder." (3/29 Tp. 4). Cogbill replying in the affirmative. Thecourt questioned Cogbill if this case should return to the Clerk. Cogbill explainedthe case now before the court is de novo. Wilson objected and the courtadmonished her again warning she will be removed from the court. (3/29 Tp. 4).Continuing, Cogbill explained since the Clerk's ORDER the note holder haschanged, therefore, additional evidence as to the current note holder, and due to astatutory change "the court needs to make an additional finding that was notrequired last year with regard to the sale being barred by N.C.G.S. 45-21. 12(a).. . I guess what I would say is, to the best of my knowledge the clerk's order wascorrect at the time it was entered." (3/29 Tp. 4). The court affirming N.C.G.S. 45-21.12(a) became effective October 31,2010. (3/29 Tp. 5). Wilson reminds thecourt that at the Feb. 8 appearance the trustee admitted the real party in interest didnot initiate the foreclosure. Nationstar is only the servicer. Evidence in the fileshows FNMA is claiming to be the holder and owner of the NOTE. Wilson assertseven though STSI claims to represent Nationstar they still are not representing thereal party in interest. (3/29 T p. 5). Cogbill responds offering a new paymenthistory affidavit from Nationstar Mortgage "which alleges that they are the holderof the note and indebtedness, a military affidavit [N.C.G.S. 45-21. 12(a)], a copyof the NOTE endorsed in blank [by SunTrust Mortgage Inc.], and a copy of theassignment." (3/29 T p. 6). Wilson asserts lack of opportunity to cross examine the

Page 8 of34


15/54

affiant(s) for Nationstar, and objects to the copies being entered into evidence.(3/29 T p. 6). The court expresses concern about the procedural caution, in fairnesstoMs. Wilson "this is the first notice that the holder in the original notice is not theholder now." (3/29 Tp. 7). The court continues to express concerns over thechange in the holder of the note since the clerk's order on Dec. 7,2010. Cogbillconvinces the court to postpone a decision to give Ms. Wilson time to review thenew note holder documents. (3/29 Tp. 8). The matter is set for re-hearing on May25,2011.

On May 25,2011, Wilson appeared before Judge Robert T. Sumner, oncontinuance from appeal of the Clerk's order to conduct the foreclosure sale. Thehearing was opened and Ms. Wilson averred she was representing herself, and Mr.Cogbill identified himself appearing for "Substitute Trustee Services andNationstar." (05/25 T p. 2).

Judge Sumner requested Wilson give the court "a little procedural history onthis file .. . " Responding Wilson informed the court of the administrative hearingthat took place on December 7, and the "purpose of that hearing was to view themerits based on North Carolina General Statutes 45-21.16 the four points regardingthe debt .. . " (5/25 T p. 3). The court inquired if the sale had already occurred andMs. Wilson responded "No." (5/25 Tp. 3). The court established on December ihthe Clerk of the Mecklenburg County court granted STSI authorization to conduct

Page 9 of34


16/54

a foreclosure sale. (5/25 T pp. 3-4). Wilson responding, " .. . his [Clerk] comment tome was whether he felt that ifhe ruled against me now or .. . in 30 to 60 days, '" Iwas going to appeal his decision anyway so he was just going to find for thepetitioner .. ." (5/25 T p. 4). Wilson continued with the summary, "So onDecember 7, as I [Wilson] had indicated, I did file the motion to dismiss based onlack of standing and lack of subject matter jurisdiction of this court and Irespectfully remind the court that in Me10 v. US, 505 F2d 1026 November 7th of1974 the court opined when it clearly [appears] appeals ( sic) that the court lacksjurisdiction, the court has no authority to reach the merits. In such a situation theaction should be dismissed for want of urisdiction and Rosemound Sand andGravel Company v. Lambert Sand & Gravel Company 469 F2d 416 the courtopined 'Generally a plaintiffs allegations of jurisdiction are sufficient but whenthey are questioned as is in this case, the burden of the plaintiff is to provejurisdiction'; citing McNutt v. General Motors Acceptance Corporation 1936,298,US 178, 56 S.Ct. 780 80 L.Ed. 1135; Welsh v. American Surety Company, FifthCircuit 1951, 186 F .2d 16; 5 C, Wright & A. Miller supra Section 1363 at 653. If itpleases the court, I'm requesting at this time an affirmative ruling on myunrebutted (sic) MOTION." (5/25 Tp. 4).

Cogbill asking, "this is a motion to dismiss based on the court's lack ofjurisdiction or based on the substitute trustee's lack of standing to bring the

Page 10 of34


17/54

action?" (5/25 Tpp. 4-5). Wilson responding, "also the petitioner has a lack ofstanding to bring the matter forward. Hence, there is no subject matterjurisdiction." (5/25 T p. 5). The court, "Well, that's what the motion says." (5/25 Tp.5).

Responding Cogbill cited N.C.G.S. "vest special jurisdiction in a Clerk of[the] Superior Court .. . With regard to the issue of standing I'm [Cogbill] preparedto go through - I don't know if you [court] want to address that separately oraddress the motion with regard to jurisdiction first." (5/25 T p. 5).

The court asked Wilson "if the clerk doesn't have standing and wouldn'taddress that to hear foreclosures, who does and who do you think should hear aforeclosure action?" (5/25 T p. 5).

Wilson responded, "it's not the clerk doesn't have standing. It's that STSIwas substituted by STM who's claiming ... they're the owner and holder of the noteand deed of trust. That is a false claim and in my motion ... I submitted evidencethat shows ... Fannie Mae [FNMA] is claiming ownership of the note, that STMCustomer Service itself says Fannie Mae [FNMA] is the owner and holder of thenote and that STM is only the servicer and all of that evidence is submitted in thefile as attachments to the original motion ... I objected to all of the evidence that[STSI] was entered into the court because it did not meet the rules of evidence andit was all unauthenticated." (5/25 T p. 5). The court responded stating it understood

Page 11 of34


18/54

Wilson is saying "the party that brought this action is not the real party in interest'" in other words .. . they're not the owner of the paper." (5/25 Tp. 6). Wilsonaffirmed the courts understanding.

Cogbill stated STM endorsed the NOTE in blank and the DEED conveysinterest to State Street Title Group, LLC as trustee.

The court asked Wilson "the property ... they're attempting to foreclose on is'the property that you own - is that correct?" (5/25 T p. 6). Wilson replying untilthere's a ruling on subject matter jurisdiction, anything that he [Cogbill] saysshould be struck from the record. He's [Cogbill] had five months and there hasbeen no response to the MOTION to rebut .. ." (5/25 Tp. 6). Upon further inquiryWilson confirmed to the court the property is in her name and is the correctproperty they're attempting to foreclose on. (5/25 Tp. 7).

Cogbill stated, on March 4th 2010 STM appointed STSI as substitute trusteeclaiming STSI 's standing to proceed is based on that substitution. (5/25 T p. 8).Continuing Cogbill stated on or about December 1, [2010] STM transferred theirright to enforce the note to Nationstar Mortgage, this "is the issue that came up atthe last hearing .. ." (5/25 T p. 8). Because of that transfer and the implementationofN.C.G.S. 45-21.12A STSI presented additional evidence at that hearing (Mar.28, 2011).

Page 12 of34


19/54

The court inquired if Wilson was given a copy of the new evidencepresented at the Mar. 28th hearing? (5/25 Tp. 8). Wilson replied, "I did object tothat evidence being admitted .. ." The court responding" .. . Williamson allowed itin." (5/25 Tp. 9).

Cogbill affirmed STSI does not dispute the clerk signed the order and "Ms.Wilson properly appealed that order .. ." There is a copy of the NOTE endorsed inblank and assignment from the original lender [Sun Trust Mortgage d/b/a SunAmerica Mortgage, a Virginia Corporation] to Nationstar and "we believe thosedocuments under North Carolina case law present evidence that STM was theholder of the NOTE and STSI was properly appointed. However, during the courseof the foreclosure the NOTE and the right to enforce the NOTE were transferred toNationstar and ... Nationstar is currently the owner and holder of the note ... "that's why I'm here on behalf ofNationstar. (5/25 Tp. 9).

Wilson responded, "As counsel he is barred from offering any type oftestimony or testifying to the veracity of the documents that have been submittedinto the court. 1 stand objecting to all of the documents .. . they do not meet therules of evidence of this court .. . there is no certificate of authenticity in any of theaffidavits ... submitted ... There is no proof ofwho has .. . firsthand knowledge asrequired in the recent Gilbert ruling and ... who has possession of the NOTE andthe DEED. It just talked about 'We're the holder of the note in indebtedness.' They

Page 13 of34


20/54

are required to be in possession particularly because they made that negotiableinstrument a bearer instrument .. . and I do object to it. .. . [H]ence, based on therecent Gilbert ruling .. . 'the party seeking to foreclose on a promissory note as theholder of said note is an essential element of the action and the debtor is entitled todemand strict proofof this element .. . Without a determination of who has physicalpossession of the note, the trial court cannot determine under the uniformcommercial code the entity that is the holder of the note.' See N.C.G.S. 25-1-201 (B )(21) defining holder as the person in possession of a negotiable instrumentthat is payable either to bearer or to an identified person that is the person inpossession, ... Connolly, 63 NC Appeals at 550, 306 S.E.2d at 125. It is the fact ofpossession which is significant in determining whether a person is a holder and theabsence ofpossession defeats that status." (5/25 Tp. 10).

The court in looking for the affidavit of default asked Wilson if she wants tomake any further comments?

Cogbill intervenes stating, "With respect to ownership of the NOTE, it 's ouropinion and we're aware of the findings that the Court ofAppeals made. Thematter In re: foreclosure of David A. Simpson ... " (5/25 Tp. 10-11).

The court requested a copy of the David A. Simpson case to which Cogbillpresented along with Dobson v. Substitute Trustee Services stating, "the Simpson

Page 14 of34


21/54

ruling came out May 3 d and the Dobson ruling came out May 17th ... " (5/25 T p.11).

The court addressing Wilson said, "You're saying that the assignment is onething that Nationstar needs to actually have the note in their possession. Is that thecrux of your argument with regard to the standing issue?" (5/25 Tp. 12).

Wilson replying, "The crux ofmy argument goes back to SunTrustMortgage never had -- was never the owner and holder of the note. Hence, theycan't assign something that they don't own." (5/25 Tp. 12).

Cogbill intervenes, "[W]e're not relying necessarily on the affidavit ofdefault to establish who the holder of the note is at any given point in time .. . " InSimpson and Dobson the affidavits were found to have statements as to the noteholder rather than factual statements. (5/25 Tp. 12). Cogbill elaborate STSI'sreliance on the note holder is based on STM was the original owner of the NOTEuntil endorsement and assignment evidencing a transfer. (5/25 Tp. 12-13).

Wilson asked, " ... reliance on the assignment and what? (5/25 Tp. 13).Cogbill responding, "The assignment and the NOTE with its endorsement as

to who's the holder with the right to enforce and .. . the holding in Dobsonessentially restates the holding [in Simpson] ... Dobson found .. . there's no needto present the original note at one of these hearings unless there's actual evidencethat contradicts something in the note ... However, if the court is uncomfortable

Page 15 of34


22/54

with the evidence presented, I can request a copy of the original note and bring itdown." (5/25 T p. 13).

The court replied, "the lender is ... STM '" that's who the lender was whenyou signed the note and deed of trust."

Wilson responding, " .. . SunTrust Mortgage doing business as Sun AmericaMortgage, a Virginia Corporation, is the lender."

The court, "Well, DBA is a trade name use to present to the public who youare ... your actual legal name is SunTrust Mortgage, Inc. That would be the owner... " (5/25 Tp. 13).

Wilson to the court, "I will show you that shortly after that closing, STMsold the note to FNMA and ... held this note since the inception .. , the first exhibitthat I'm submitting to you, sir, includes an affidavit about me testifying to how Ireceived -- and you've already gotten a copy of the packet, correct?" (5/25 Tp. 13-14). The court affirming Wilson continued, .. . "my affidavit that everything I amsubmitting ... is a true and correct copy and ... nothing has been altered and I amswearing under penalties of perjury ... Your Honor ... first information provided ...is a printout from October 12 of 20 10 .. . from FNMA Loan Lookup site [website].It clearly states ... the subject property that FNMA owns a loan at this address ...knowing that this would not be enough information to corroborate this statement, Ithen went to MERS website because MERS ... has a loan lookup ... you can type

Page 16 of34


23/54

in the MIN number of your DEED and it will pull up .. . who the servicer is andwho the investor is ... on this particular loan on October 12,2010, it stated theservicer is SunTrust Mortgage and the investor is FNMA ., . I did the same type oflookup .. . on February 1st of2011 and ... Fannie Mae is confirming ... they stillown a note and loan ... and if you flip to the MERS printout ... it (5/25 Tp. 14)states the servicer is Nationstar Mortgage and the investor is FNMA ... YourHonor Exhibit C .. . an affidavit that outlines several phone calls ... I ... made overthe ... past seven to eight months ... is ... based on my firsthand personalknowledge regarding these three separate telephone communications .. . the firstcall ... to STM Customer Service ... took place on October 12 of2010 ... STMpositively identified FNMA to be the owner and holder of the note and that FNMAobtained possession shortly after the closing date of January 2007. The second callwas to Nationstar Mortgage .. . on January 13th of2011 .. . Nationstar Mortgagepositively identified FNMA to be the owner and holder of the note and ... obtainedpossession shortly after closing ... January 2007. The ... final call .. . was ... toNationstar Mortgage Customer Service ... on February 2nd of2011 and .. .Nationstar Mortgage positively identified FNMA to be the owner and holder of thenote and again confirmed ... FNMA obtained possession shortly after the closingdate of January 2007. I do have recordings ... and if .. . the court will permit, I willbring in the recordings to submit into evidence.

Page 17 of34


24/54

Cogbill objected to Wilson's telephone call affidavit, the court respondingwith "consideration." (5/25 T p. 15).

Wilson replied, "This affidavit is based on my personal firsthand knowledgeand I'll be more than happy to submit the recordings." The court "All right." (5/25Tp.15-16).

Wilson continuing, "Customer service is required when asked to identifywho ... the holder of the NOTE is. Exhibit D ... is a letter from NationstarMortgage dated December 15th of2010 and it's [Nationstar Mortgage] stillrequired ... by Title 12 of the United States Code Section 2605. You can see ... theletter states .. . and 1 quote, 'Welcome to Nationstar Mortgage. We look forward toservicing your loan on behalfofFannie Mae. Your total debt at the time of transferis $106,527.58. This debt is owed to Fannie Mae but is being serviced byNation star. ' I have labeled this as exhibit E and I introduce this into the court aswell. Actually, 1 may be off ofmy exhibit and I apologize. The court "That was D,1 believe." Wilson affirming continued, "I have a true and correct copy of theFannie Mae announcement 08-12 dated May 23rd of2008 presented to me onMarch 29th of 2011, .. . by Andrew Cogbill ... who represents the petitioner in thismatter. The court will please take note .. . the first sentence in the last paragraph onpage 1 .. , states, 1 quote, 'Fannie Mae is at all times the owner of the mortgagenote whether the note is in Fannie Mae's portfolio or whether owned as trustee.'

Page 18 of34


25/54

Your Honor, STM was not the real party in interest on March 4th of 2010 whenthey executed the appointment of Substitute Trustee prepared by the law firm of

Hutchens, Senter and Britton. Hence, SunTrust Mortgage lacked any possessoryinterest in the note and thus lacks the contractual capacity to substitute the trusteepursuant to paragraph 24 of the said deed of trust. Further, Rule 17A of the NorthCarolina Rules ofCivil Procedure require, and I quote, 'every claim shall beprosecuted in the name of the real party in interest.' The petitioner before this courtis clearly not the real party in interest based on the preponderance of evidencepresented and now before this court. Respondent Jennifer L. Wilson respectfullyrequests the court, set aside the order of the clerk and grant the motion to dismissfor lack of standing with prejudice." (5/25 Tp. 16).

Cogbill responding, "Ifyou'd continue on in exhibit E to the second page .. .the bold heading temporary possession by the servicer, that section specificallyaddresses cases where there is a default .. . they [FNMA] transfer ownership,holdership and the right to enforce that NOTE to the servicer ... I'm not sayingthat Fannie Mae did at any time own that note. I am saying that in the event thatthey did, the documentary evidence that the plaintiff is relying on says that theywould transfer the ownership and holdership (sic) and the right to enforce to theservicer to conduct the action so --" Ms. Wilson intervening, "Your honor --"Cogbill continuing, "Excuse me. The cases that the appellant is relying on

Page 19 of34


26/54

disregard all the evidence that the appellant is relying on. The cases say that youhave to have the note properly endorsed and evidence of the right to enforce. Now

what FNMA says on their website or what MERS says on their website may bevery well be confusing but it does not equate to evidence to the court as to who'sthe owner and holder of the note at any point in time. What the court can rely on asproper evidence on who is the owner and holder of the note and the right to appointa substitute trustee or the right to proceed with foreclosure is the NOTE itselfwhich was originally made by STM and endorsed, a copy ofwhich has beensubmitted as endorsed in blank so -- and to be able to be enforced by bearer and anassignment by which STM transferred its holder right to Nationstar. There's noother documentary evidence competent to the court to suggest that there's anyproblem standing or that the petition has brought by a party that's not the holder of[indiscernible] [0:34:09.4]" (5/25 Tp. 17).

Wilson responding, "The statement that Mr. Cogbill just made regardingwhat the circular from FNMA says is misleading .. . It [FNMA] never transfersownership of the note and many of the items here in Fannie Mae's circular violatethe law. Fannie Mae specifically states in this circular that the servicer willforeclose in the servicer's name. That is a violation of federal rules as well as therules of this court that all actions must be brought in the name of the real party ininterest. "

Page 20 of34


27/54

The court closing, "I want to take a look at the cases that were handed up aswell as your affidavit as well as the court file and I will be in touch with you or theclerk with regard to my decision on our motion. Thank you very much."

ARGUMENT

I. DID THE TRIAL COURT ERR IN RELYING ON UNAUTHENTICATEDDOCUMENT COPIES PROFFERED BY THE PETITIONER TODETERMINE NATIONSTAR WAS THE HOLDER OF THE NOTEWITH THE RIGHT TO FORECLOSE?Chaper 8C Evidence Code 8C-1Rule 1003. Admissibility of duplicates, in

relevant part states, "A duplicate is admissible to the same extent as an originalunless (1) a genuine question is raised as to the authenticity of he original or (2)in the circumstances it would be unfair to admit the duplicate in lieu of heoriginal.,,1 (Emphasis added). Rule 1005 "Public records" in relevant part states,"The contents ofan official record, or ofa document authorized to be recorded orfiled and actually recorded or filed, ... ifotherwise admissible, may be proved bycopy, certified as correct in accordance with Rule 902 or testified to be correct bya witness who has compared it with the original." (Emphasis added). Rule 902(4)in relevant part states, "Certified Copies of Public Records. - A copy ofan official

I Connolly v. Potts, 63 N.C. App. 547, 306 S.E.2d 123 (1983) (overturning Furst v. Lofiin,29 N.C. App. 248, 224S.E.2d 641 (1976 ("A party seeking to go forward with foreclosure under a power of sale must establish,inter alia, by competent evidence, the existence of a valid debt ofwhich he is the holder."; citing G.S. 45-2 1.16(d),In re Foreclosure afBurgess, 47 N.C. App. 599,267 S.E.2d 915, appeal dismissed,301 N.C. 90 (1980).

Page 21 of34


28/54

record or report or entry therein, or ofa document authorized by law to berecorded or filed and actually recorded or filed in a public office, .. , certified as

correct by the custodian or other person authorized to make the certification, bycertificate complying with paragraph (1), (2), or (3) or complying with any law ofthe United States or of his State." (Emphasis added).

Competent evidence is evidence "that a reasonable mind might accept asadequate to support the finding.,,2

The NOTE, relied upon by STSI and the court, is not accompanied by anaffidavit from someone who actually compared the genuine NOTE with the copySTSI presented to the court.3

The DEED, (R p. 60) relied upon by STSI and the court, is absent anycertification from the Office of the Register ofDeeds (custodian) for MecklenburgCounty.

Even the ORDER of the Superior Court draws into question, "Who's onfirst?" Judge Sumner's ORDER in relevant part states, " .. . about Dec. 1,2010,SunTrust Mortgage, Inc. caused their right to enforce the above referenced note to

be transferred to NationStar Mortgage, LLC" (R p. 117, par. 7). The hearing, andORDER from the Clerk of the Superior Court for Mecklenburg County,2 Eley v. Mid/East Acceptance Corp. ofN.C., 171 N.C. App. 368,369,614 S.E.2d 555, 558 (2005); Andrews v.Fulcher Tire Sales & Serv., 120 N.C. App. 602, 605, 463 S.E.2d 425, 427 (1995).3 In re Simpson,_ N.C. _ , 7 1 1 S.E. 165 (May 3, 2011) (Citation omitted) " ... the holder of said note is anessential element of action and the debtor is "entitled to demand strict proofof this element"; citing Liles v. Myers,38 N.C. App. 525, 528, 248 S.E.2d 385, 388 (\ 978).

Page 22 of34


29/54

authorizing the sale took place on December 7,2010, six days after STSI avers inopen court STM transferred its right to enforce the NOTE (R p. 117 par. 8), and sixdays after the relation back date noted on the "ASSIGNMENT OF NOTE ANDDEED OF TRUST" ("ASSIGNMENT") by Nationstar. (Rp. 91). If the court is toaccept the relation back date noted on the ASSIGNMENT then STM was not the"Note Holder" at the time of the hearing before the Clerk, and STSI knew orshould have known STM transferred its rights to enforce the NOTE as the NOTEpresented to the Clerk for the Superior Court for Mecklenburg evidenced anallegedly lawful endorsement from SunTrust Mortgage, Inc. (R pp. 80-82). Eitherthe Clerk of the Superior Court for North Carolina Mecklenburg County isinadequately trained for the position or is incompetent as the endorsement on theNOTE presented at the Dec.7, 2010 hearing is prima facie evidence that SunTrustMortgage, Inc. had surrendered its rights to foreclose.4

The veracity of the ASSIGNMENT prepared by "The Law Firm ofHutchens, Senter & Britton, P.A." is gravely suspect as it was executed on March16, 2011, just thirteen (13) days before the March 29th hearing and avers the"assignment is effective (12/01/2010),,5 six days before the ORDER from the Clerk

4 In the Matter ofBass, No. COA 11-565, S.E. (Dec. 6, 20 II) (Citation omitted) ("An indorsement is "asignature, other than that ofa signer or maker . . . that alone or accompanied by other words [may be] made on aninstrument for the purpose of . . . negotiating the instrument . . . ."); citing, N.C. Gen. Stat. 25-3-204(a)(i) (2009.s Ohlendorfv. American Home Mortgage Servicing, U.S. Dist. Court Eastern Dist. Cal. No. Civ. S-09-2081 (Mar.30,2010) (citation omitted) "While California [North Carolina law] law does not require beneficiaries to recordassignments, see California Civil Code Section 2934 [N.C.G.S. 47-17.2], the process of recording [executing]

Page 23 of34


30/54

of the Mecklenburg County Superior Court. Since the ASSIGNMENT wasprepared by "Law Firm of Hutchens, Senter & Britton, P.A.", and is allegedlyretroactive to December 1, 2010, any reasonable man would draw the conclusion itwas manufactured specifically for the March 29th hearing. The execution of thisASSIGNMENT is also extremely suspect as the executor claims to be an officerfor "Nationstar Mortgage LLC" acting in the capacity of an "attorney-in-fact forSUNTRUST MORTGAGE, INC. D/B/A/ SUN AMERICA MORTGAGE." (Rp.91). Simply put Nationstar Mortgage LLC assigned an asset, allegedly owned bySunTrust Mortgage, Inc., to itself, while acting as attorney-in-fact for the allegedowner, Sun Trust Mortgage, Inc.

Appellant, Wilson, introduced seven exhibits, all supported by a notarizedaffidavit, each evidencing Federal National Mortgage Association is theowner/investor of the NOTE before the hearing on Dec. 7, 2010. Wilson, basedupon firsthand knowledge, by affidavit (R pp. 16, 34, 35, 98 & 99), affirmed onOct. 12,2010, December 5,2010 and February 1,20116 the websites for bothFNMA and Mortgage Electronic Registration Systems, Inc. confirmed FNMA isthe owner/investor of the NOTE. (Rpp.37, 39, 41,43, 100, 101, 103, 104). TheMERS Oct. 12,2010 report states, "Server: SunTrust Mortgage, Inc. . . . Investor:Fannie Mae." The MERS Dec. 5,2010 report states, "Server: Nationstar Mortgageassignments with backdated effective dates may be improper, and thereby taint the [assignment] notice of default."(Dismissed on other grounds).6 These FNMA and MERS reports cast a dark shadow on the veracity of he backdated ASSIGNMENT.

Page 24 of34


31/54

LLC ... Investor: Fannie Mae." The MERS Feb. 1,2011 reports states, "Server:Nationstar Mortgage, LLC ... Investor: Fannie Mae." The "MIN: 1000104-0039042015-4" is on all the MERS reports. (See Rpp. 41, 101 & 104). Theidentical "MIN: 1000104-0039042015-4" is also found in the upper right corner ofthe first page of the NOTE and the DEED proffered by STSI. (Rpp. 81 & 60respectively). Wilson then presents the court a letter she received from NationstarMortgage dated Dec. 15, 2010 attesting "This debt is owed to Fannie Mae, but isbeing serviced by Nationstar.,,7 (R p. 109). The MERS FNMA website reports andNationstar's letter unquestionably goes beyond supplanting reasonable doubt in aman's mind, it speaks directly to the absence of the truthfulness of the contents ofthe ASSIGNMENT allegedly executed by Nationstar as attorney-in-fact forSunTrust Mortgage, Inc. and backdated to December 1, 2010. The United StatesCourt ofAppeals First Circuit addressed the issue of "retroactive", "relation back"[backdated] agreements,

"as a general rule that when a written contract provides it shall beeffective 'as of' an earlier date, it generally is retroactive to theearlier date, 368 F.Supp. at 1270 (citing Jeremiah Burns, Inc.), thecourt made clear in its extensive discussion that it construed theretroactively-dated written contract to be a validation oran alreadyexisting and partially performed oral contract ... The court found thatthe contract existed at an earlier date because the parties acted on thesupposition that it already existed, and because the parties ... had not

7 12 U S.C. 2605(b)(1) "Each servicer of any federally related mortgage loan shall notify the borrower in writingof any assignment, sale, or transfer of the servicing of the loan to any other person."

Page 25 of34


32/54

intended to require a writing before being bound.,,8 (Emphasisadded).

Based upon the opinion in Debreceni v. Outlet Co. the backdating of theASSIGNMENT validates and binds the parties, STM, the assignor, and Nationstar,the assignee, to its terms as effective Dec. I, 2010. Therefore, either Nationstar liedin the letter it sent Wilson on December 15,2010, or Nationstar lied whenexecuting, as attorney-in-fact, the backdated (Dec. 1,2010) ASSIGNMENTclaiming STM, "does also sell, assign, transfer and set over unto the saidNATIONSTAR MORTGAGE, LLC all of its rights, title and interest in and to thesaid note secured by said deed of trust. Presuming the validity of theASSIGNMENT, STM knew it was not the "Note Holder" at the time of the hearingon Dec. 7,2010. Assuming STSI had no prior knowledge, in the face of theevidence Wilson presented establishing FNMA as the owner/investor from October12,2010 through May 25, 2011, then both STM and Nationstar must havedeceived STSI for the purpose of unjust enrichment.9 The trial court erred in theface ofWilson's continual objections to the authenticitylO of the copy documents(NOTE and DEED), and ASSIGNMENT, the reliance of which was outweighedby the overwhelming evidentiary materials proffered by Wilson.8 Debreceni v. Outlet Co., 784 F.2d 13, 19 (I st Cir. 1986); citing Viacom International Inc. v. Tandem ProductionsInc., 368 F.Supp. 1264, 1270 (S.D.N.Y.1974), affd, 526 F.2d 593 (2d Cir.1975.9 Precision Inst. MIg. CO. v. Automotive Maintenance Mach. Co., 324 U.s. 806, 814 (1945).10 See (5/25 T pp. 5 & 10 (" .. there is no certificate of authenticity .. ." ; (3/29 T pp. 3 ("I have to object ... 1 objectyour honor"), 4 ("Objection your honor"), 6 (" ... [ object to any copies being submitted into evidence as the copiesdo not substantiate any evidence as relevant whatsoever.".

Page 26 of34


33/54

II. DID THE COURT ERR IN DETERMINING NATIONS TAR WAS INPOSSESSION OF THE NOTE WITH THE RIGHT TO FORECLOSE?The NOTE states, "The Lender or anyone who takes this Note by transfer

and who is entitled to receive the payments under this Note is called the "NoteHolder."

"Uniform Commercial Code, G.S. 25-1-201(21)(a) "Holder" is "[TJheperson in possession ofa negotiable instrument that is payable either to bearer orto an identified person that is the person in possession." to be "a person who is inpossession of .. an instrument ... issued or indorsed to him or to his order .... ,,11 Itis the fact ofpossession which is significant in determining whether a person is aholder, and the absence ofpossession defeats that status.12

In order to find that there is sufficient evidence that the party seeking toforeclose is the holder ofa valid debt in accordance with N.C.G.S. 45-21.16(d),the following two questions must be answered in the affirmative: (I) "is theresufficient competent evidence of a valid debt?"; and (2) "is there sufficientcompetent evidence that [the party seeking to foreclose is] the holder of the [note]

II Hotel Corp. v. Taylor and Fletcher v. Foremans, Inc.,301 N.C. 200, 271 S.E.2d 54 (1980).12 In re: Adams, N.C. App. No. COA09-1145 (Jun. 1,2010); citing Connolly v. Potts, 63 N.C. App. 547, 550, 306S.E.2d 123, 125 (1983); citing Liles v. Myers,38 N.C. App. 525,248 S.E.2d 385 (1978).

Page 27 of34


34/54

Notes?,,13 In a foreclosure proceeding, the lender bears the burden of proving aright to foreclose under power of sale, and notice. 14

It is unquestioned the record evidences the substitute trustee, SubstituteTrustee Services, Inc., over the span of ust two (2) short months, averred in opencourt no less than three (3) different holders of the NOTE; 1) SunTrust Mortgage,Inc. (2/8 T p. 2, last par.) ; 2) Flagstar Bank (2/8 T p. 3, 4th sentence from the top);and 3) NationStar Mortgage, LLC (3/29 T p. 3, lh par. from bottom).

In stark contrast to the unauthenticated document copies andASSIGNMENT presented by STSI alleging Nationstar to be the "Note Holder",Wilson presented no less than seven (7) documents authenticated by affidavitattesting to their veracity. All seven (7) documents, unlike the unauthenticateddocument copies and ASSIGNMENT presented by STSI, consistently evidenceFNMA is the owner/investor of the NOTE. Five (5) of the seven (7) documentsidentify Nationstar Mortgage as merely the servicer. Three of the seven (7)documents naming FNMA as the owner/investor identified the NOTE and DEEDby way of the MIN number.

It cannot be questioned the authenticated evidentiary documentation Wilsonpresented outweighs the allegations and unauthenticated copies of the NOTE and

13 In re Cooke, 37 N.C. App. 575, 579, 246 S.E.2d 801, 8 0 4 ~ 0 5 (1978); In re Foreclosure ofConnolly v. Potts, 63N.C. App. 547, 550, 306 S.E.2d 123, 125 (1983).14 In re Foreclosure ofReal Property (Brown), 156 N.C. App. 477, 577 S.E.2d 398, 406 (2003); citing In reForeclosure o/Kitchens, 113 N.C. App. 175, 177,437 S.E.2d 511, 512 (1993); see also N.C. Gen.Stat. 45-2 1.16(d).

Page 28 of34


35/54

DEED presented by STSI in open court. Absent the presentation of the genuineNOTE and DEED for examination by the respective parties and the court, STSIhas presented acutely insufficient documentation that fails to defeat the evidenceestablishing Nationstar is devoid of the Note Holder status.III. DID THE COURT ERR IN DETERMINING IT POSSESSED

JURISDICTION TO PROCEED ON THE MERITS?Standing has both constitutional and prudential (i.e. self-imposed)

requirements. The real party in interest [Note Holder] question is really theprudential component of the overall standing analysis, while injury-infact is aconstitutional requirement. Both requirements must be met before a court can grantrelief. In addition, a party also has standing to seek relief [substitute trustee] if ithas the authority [assignment of substitute trustee] to act on behalf of an entity thathas standing. Therefore, a nominee or agent will have to prove both (1) that it is anagent with the authority [recorded assignment of substitute trustee] to act on behalfof the principal and (2) that the principal ["Note Holder"] has both constitutionalstanding and prudential standing. However, even if a party has standing, the agentmust prosecute the action in the name of the real party in interest and not in its ownname.

Page 29 of34


36/54

The standing requirement is "an essential and unchanging part of the case-orcontroversy requirement ofArticle III.,,15 This constitutional doctrine requires that

a claimant must present an actual or imminent injury that is fairly traceable to thedefendant's conduct and redressable by a favorable ruling.16 The standing questionis a threshold issue, required before a court may entertain a suit. 17 Thus, if a lender("Note Holder") cannot prove standing, the court has no authority to hear itspetition for relief.

Prudential requirements also require that a party bringing an action be thereal party in interest. 18 The purpose is to ensure the party bringing forth the actionis the party who "possesses the substantive right being asserted under theapplicable law.,,19 (Emphasis added).

A "foreclosure under a power of sale is not favored in the law and itsexercise will be watched with jealousy.,,2o The party seeking to foreclose on apromissory note is the holder of said note is an essential element of the action andthe debtor is "entitled to demand strict proofof this element.,,21

IS Constitution for the United States; Lujan v. Defenders ofWildlife, 502 US 555, 560 (1992).16 Davis v. Fed. Election Comm 'n, 128 S.Ct. 2759 (2008).17 Warth v. Seldin, 422 U.S. 490, 495 (1975).18 N.c.a.S. 1-57 "Every action must be prosecuted in the name of the real party in interest .. ."19 6A Wright, Miller & Kane, Federal Practice and Procedure 1541 (Westlaw current through 2009 update).20 In re Simpson, _ N.C. _ , 11 S.E.2d 165, 170 (2011); citing, In re Foreclosure ofGoforth Props., Inc., 334N.C. 369, 375,432 S.E.2d 855, 859 (1993.21 In re Simpson, _ N.C. _ , 11 S.E.2d 165, 170 (2011); citing, Liles v. Myers, 38 N.C. App. 525, 528, 248S.E.2d 385, 388 (1978).

Page 30 of34


37/54

The evidence Wilson proffered that FNMA is the Note owner/investorcannot be overcome by mere unauthenticated copies. STSI's failure to bring theaction in the name of Federal National Mortgage Association is fatal to the court'sjurisdiction. (Supra In. 18-19). Therefore, the court acted in excess of itsjurisdiction by denying Wilson's MOTION and proceeding on the alleged meritsof the case.

Appellant's MOTION was unopposed by STSI. STSI, failed to refute any ofthe documentary evidence presented by Wilson attesting Federal NationalMortgage Association is owner/investor, instead relied solely upon theunauthenticated copy of the NOTE and DEED. The failure to object to Wilson'sMOTION and the overwhelming evidence presented to the court clearly identifiesNationstar is only the servicer. The lack of note holder status (Supra In. 17) byNationstar defeats the prudential component necessary to envoke the jurisdiction ofthe court. The court, turning away from the authenticated evidence Wilsonpresented opting in favor of the unauthenticated copies of the NOTE and DEEDsubmitted by STSI, gave an unqualified self imposed grant of urisdiction.Therefore, the court erred in proceeding on the alleged merits of the case absentstrict proof (Supra In. 21) ofNationstar Mortgage, LLC standing to invoke thejurisdiction of the court.

Page 31 of34


38/54

CONCLUSION

The record of the court supports Vacatur of the Judgment.

WHEREFORE, Jennifer L. Wilson, request;a. The court vacate the ORDER of the Superior Court ofNorth Carolina

Mecklenburg County entered on May 31,2011 by Judge Robert T.Sumner Presiding, with prejudice;

b. Remand to the trial court for an ORDER directing Substitute TrusteeServices, Inc. to record with the Register ofDeeds for the County ofMecklenburg a rescission of the TRUSTEE'S DEED, instrumentnumber 2011096152, and the Substitution ofTrustee instrument number2010032816;

c. Instruct the trial court to sanction Substitute Trustee Services, Inc. in anamount equal to all direct and indirect monetary losses Jennifer L.Wilson has suffered since the ORDER of the Clerk for the SuperiorCourt ofNorth Carolina Mecklenburg County entered on December 7,2010, said losses shall be awarded to Appellant; and

d. Instruct the trial court to sanction Substitute Trustee Services, Inc. foran amount equal to all trial and appellate court costs.

Page 32 of34


39/54

Respectfully submitted this the 1ih day of January 2012.Jennifer L. Wilson, Propria Persona

; '' --.. ...-

Jeqrfifer L. ilson, Propria Persona4365 School House Commons, 500-251Harrisburg, NC 28075Ph.: 704-773-1712

Page 33 of34


40/54

CERTIFICATE OF SERVICE

I, Jennifer L. Wilson, defendant in the above entitled action, and self-

represented, hereby certifY on this date I served the attached "APPELLANT'SBRIEF" and this "CERTIFICATE OF SERVICE" upon all parties, by placing acopy of said documents in the sole care and custody of the United States PostOffice, with first class postage prepared and with same addressed to:

THE LAWFIRM OF HUTCHENS, SENTER & BRITTON, P.A.Attn: Andrew Cogbill1915 Rexford Road, Suite 100Charlotte, North Carolina 28211

THE LAWFIRM OF HUTCHENS, SENTER & BRITTON, P.A.Attn: Scott J. FlowersPOB 2505Fayetteville, NC 28302

This l ih day of January, 2012.

J n ifer L. ilson, Propria Persona5 School House Commons, 500-251Harrisburg, NC 28075Ph.: 704-773-1712

Page A of 0


41/54

TRANSCRIPT RECORD .................................................. Be. TRANSCRIPT RECORD February 8, 2011, line 4 page 6 ofBrief:

MS. WILSON: Again, I would also like to go onto the record, FlagstarBank, that's even a new party to me. I have been told by five different sourcesincluding Sun Trust Bank that it's Fannie Mae who is the owner and investor onthis account.

JUDGE: Mhm. Okay.MS. WILSON: And also your honor, based on the trustee themselves stating

that they've gotten new information, this motion needs to be brought in the nameofFannie Mae. The substitute trustee that's been filed in the public record isinvalid. It was filed and brought by Sun Trust Mortgage. So it does not havestanding and it's not the real party in Interest.

f. TRANSCRIPT RECORD February 8, 2011, line 2 page 7 ofBRIEF:JUDGE: Well due to the fact that both the petitioner and the

respondent .. . [reading the document] ... Given the fact that both the petitioner andthe responder are moving for a continuance on the matter, I'm inclined to grant thatmotion.

MS. WILSON: Your honor, because Substitute Trustee Services being thatSun Trust Mortgage who did the initial substitution of trustee does not have

Page B 0[0


42/54

standing in this matter nor are they the real party in interest, I move the court todismiss.

JUDGE: I thought both of you wanted to continue the matter. I thought youdid not oppose a continuance.

MS. WILSON: I did not oppose the continuance if they are going to respondto this issue. However because they have admitted here in court today that SunTrust Mortgage, the petitioner does not have standing and is in last and they um- isnot the real party in interest, hence the court lacks subject matter jurisdiction, thecourt can dismiss this entire proceeding. And I move to strike the substitution oftrustee from the public record as well as the affidavit from Sun Trust.

g. TRANSCRIPT RECORD March 29,2011, line 3 page 8 ofBRIEF:MR COGBILL: However, since it's a de novo hearing, I think that we have

a responsibility to the court to re-demonstrate the elements before foreclosure orfor foreclosure, pardon me. And since the note holder has changed since the clerk'sorder, I believe we need to present additional evidence as to the current holderbecause the foreclosure sale then be conducted for their benefit on the trustee's

behalf. In addition, because of the statutory change, the court needs to make anadditional finding that was not required last year with regard to the sale beingbarred by NCGS 45-12.12(a). So I need to present an additional affidavit regardingmilitary service. I guess what I would say is, to the best ofmy knowledge the

Page C 0 [0


43/54

clerk's order was correct at the time it was entered. Since that time, the facts havechanged and since this is a de novo review of the evidence for the elements offoreclosure, then we need to present additional evidence to establish those.

h. TRANSCRIPT RECORD Mar. 29, 2011, line 9 page 8 ofBRIEF:JUDGE: All right. Ma'am, I'll hear from you now.MS. WILSON: Your honor, at the last appearance in February, the trustee

admitted that the real party in interest did not initiate the foreclosure process.Nationstar Mortgage is just servicer. The evidence that I have presented in the fileshows that Fannie Mae is claiming to be the real party in interest. So even thoughhe's now claiming to represent Nationstar, he is still not representing the real partyin interest. JUDGE: All right, thank you. Mr. Cogbill, what is it you want me toconsider today in terms of --

MR COGBILL: As far as additional evidence your honor, I have a newpayment history affidavit executed by the assistant secretary ofNations arMortgage which alleges that they are the holder of the note and indebtedness. Ihave a military affidavit with an attached search of the Department ofDefensedatabase. I have a copy of the note endorsed in blank by SunTrust and attached tothat is a copy of an assignment, a note and deed of trust from SunTrust Mortgageto Nationstar Mortgage LLC. I would like to present those.

JUDGE: Have you given copies to Miss Wilson?

Page D of 0


44/54

MR COGBILL: I'm prepared to hand copies to Miss Wilson.JUDGE: Go ahead and do that.MS. WILSON: Your honor, I did not have the opportunity to cross examine

the person who has completed this affidavit. Additionally, I object to any copiesbeing submitted into evidence as the copies do not substantiate any evidence asrelevant whatsoever.

i. TRANSCRIPT RECORD March 29,2011, line 2, page 9 ofBRIEF:JUDGE: What troubles me is just about the procedural caution. I realize that

this is de novo is that I don't think I would have any issue if this were an appealand it was SunTrust. It's the same holder. I'm troubled with, since we are holding ade novo hearing, making the findings necessary for the sale to go forward whenbasically in fairness to Miss Wilson, this is the first notice that the holder in theoriginal notice is not the holder now.

j. TRANSCRIPT RECORD May 25, 2011, line 11, page 9 ofBRIEF:JUDGE: Where do you think -- Ms. Wilson, where -- if the clerk doesn't

have standing and wouldn't address that to hear foreclosures, who does and whodo you think should hear a foreclosure action?

MS. WILSON: Your Honor, it's not the clerk doesn't have standing. It's thatSubstitute Trustees was substituted by SunTrust Mortgage Bank who's claimingthat they're the owner and holder of the note and deed of trust. That is a false claim

Page E of 0


45/54

and in my motion that I submitted to the clerk of court I submitted evidence thatshows that Fannie Mae is claiming ownership of the note, that SunTrust MortgageCustomer Service i tself says Fannie Mae is the owner and holder of the note andthat SunTrust Mortgage is only the servicer and all of that evidence is submitted inthe file as attachments to the original motion. The clerk chose not to view that andI objected to a copy and I objected to all of the evidence that was entered into thecourt because it did not meet the rules of evidence and it was all unauthenticated.Yet he felt I was going to appeal regardless which kind of tells me --

JUDGE: I understand why -- I understand he ruled and that really has nobearing on what I'm going to do one way or the other but essentially, as Iunderstand, you're saying that the -- that the party that brought this action is not thereal party in interest, I think is what you're saying, not so much standing but realparty in other words they don't have the right to proceed because they're not theowner of the paper.

MS. WILSON: Correct.TRANSCRIPT RECORD May 25, 2011, line 19, page 12 ofBRIEF:JUDGE: What did -- what did Judge Williamson want with that?MR. COGBILL: He wanted us to continue the matter to give Ms. Wilson

time to respond to that additional evidence with regard to transfer of the note andthe military act.

Page F of 0


46/54

JUDGE: OK. All right.MR. COGBILL: Because that additional evidence was presented for the first

time at that hearing.JUDGE: All right. And she was given a copy of it that time?MR. COGBILL: She was given a copy at the time. That's correct.JUDGE: All right.MS. WILSON: Which I did object to the evidence being admitted into the

file at that time --JUDGE: I know that Williamson allowed it in. I saw on the file that you did

but you did get a copy of that -- ?MS. WILSON: I did.JUDGE: I'll let you speak on that in just a minute. OK?MR. COGBILL: OK. Beyond that, I think that pretty much gets us up-to

date. We don't dispute that the clerk signed an order on December 7 and that Ms.Wilson properly appealed that order and that's why we're here. It's our contentionthat the court file contains the original - a copy of the original note. Obviously notthe original note itself, that the copy demonstrates that the note has been endorsedin blank and that there is also a copy of an assignment from the original lender tothe current holder, Nationstar, and we believe those documents under NorthCarolina case law present evidence that at the time - at the time prior to the

Page G of 0


47/54

foreclosure, at the time that Substitute Trustee was appointed, that SunTrust wasthe holder of the note and that Substitute Trustee was properly appointed.However, during the course of the foreclosure the note and the right to enforce thenote were transferred to Nationstar and that Nationstar is currently the owner andholder of the note and that's why I'm here on behalf ofNationstar.

JUDGE: I have SunTrust.MR. COGBILL: And I'd be happy to respond further to any --JUDGE: I think that tells me. I really ought to look at the file but that tells

me what your position is. Ms. Wilson, would you like to respond to anything hesaid plus anything else you think is appropriate?

MS. WILSON: If I may Your Honor ... ?JUDGE: Yes.MS. WILSON: As counsel he is barred from offering any type of testimony

or testifying to the veracity of the documents that have been submitted into thecourt. I stand objecting to all of the documents. They are not -- they do not meetthe rules of evidence of this court. They have not been authenticated. They have -there is no certificate of authenticity in any of the affidavits that were submitted.There is no proofofwho has -- how they have firsthand knowledge as required inthe recent Gilbert ruling and there's no talk of who has possession of the note andthe deed of trust. It just talked about "We're the holder of the note in

Page H 0[0


48/54

indebtedness." They are required to be in possession particularly because theymade that negotiable instrument a bearer instrument according to the evidence that

they have submitted into the court which again is authenticated and I do object toit.

They made it a bearer instrument and hence, based on the recent Gilbertruling from the North Carolina Court ofAppeals that "the party seeking toforeclose on a promissory note as the holder of said note is an essential element ofthe action and the debtor is entitled to demand strict proofof this element." Alsofrom the Gilbert finding: "Without a determination ofwho has physical possessionof the note, the trial court cannot determine under the uniform commercial code theentity that is the holder of the note. See North Carolina General Statute Section 25-1-201 (B )(21) defining holder as the person in possession of a negotiableinstrument that is payable either to bearer or to an identified person that is theperson in possession, emphasis added, Connolly, 63 NC Appeals at 550, 306S.E.2d at 125. It is the fact ofpossession which is significant in determiningwhether a person is a holder and the absence of possession defeats that status."

TRANSCRIPT RECORD May 25,2011, line 2, page 16 ofBRIEF:MS. WILSON: The deed of trust on its face says SunTrust mortgage doing

business as Sun American Mortgage, a Virginia Corporation, is the lender.JUDGE: Yes.

Page I 0[0


49/54

MS. WILSON: Not SunTrust Mortgage.JUDGE: Well, DBA is a trade name that's used to present to the public who

you are but your actuallegal name is SunTrust Mortgage, Inc. That would be theowner --

MS. WILSON: If I can walk you through this exhibit package -JUDGE: Yes, you may.MS. WILSON: -- I will show you that shortly after that closing, SunTrust

Mortgage sold the note to Fannie Mae and Fannie Mae has pretty much held thisnote since the inception and I will walk you through the evidence. The first -- thefirst exhibit that I'm submitting to you, sir, includes an affidavit about metestifying to how I received -- and you've already gotten a copy of the packet,correct?

JUDGE: Yes.MS. WILSON: Is my affidavit that everything I am submitting in here is a

true and correct copy and that nothing has been altered and I am swearing underpenalties of perjury, Your Honor. The first information provided to you is aprintout from October 12 of 20 I 0 of a website from Fannie Mae Loan Lookup site.It clearly states that this address which is the subject property that Fannie Maeowns a loan at this address.

JUDGE: Who states that? What is this website?

Page J of a


50/54

MS. WILSON: This is Fannie Mae's website where you can go in and youcan type in your address to determine if Fannie Mae holds the loan on your pieceof property.

JUDGE: OK.MS. WILSON: See, down here it's saying match found based on the

property information entered. It appears Fannie Mae owns a loan at this address.There is only one loan at this address. There's only one deed of trust attached tothe title of this property, Your Honor, but knowing that this would not be enoughinformation to corroborate this statement, I then went to MERS website becauseMERS also has a loan lookup and you can type in the MIN number of your deed oftrust and it will pull up and tell who the servicer is and who the investor is. When Ipull that up on this particular loan on October 12, 2010, it stated the servicer isSunTrust Mortgage and the investor is Fannie Mae. The next exhibit, Your Honor,IS --

JUDGE: Is that exhibit B?MS. WILSON: No, now I'm moving to exhibit B. I did the same type of

lookup and pull of the information on February 1st of2011 and you can see Ipulled up the information on February 1st of20l1 from Fannie Mae's website. Ithas stayed the same. Fannie Mae is confirming that they still own a note and loan.They still own the loan at this address and ifyou flip to the MERS printout of their

Page K 0[0


51/54

website on the MIN number of the subject property, it states the servicer isNationstar Mortgage and the investor is Fannie Mae. I'll then walk you to exhibitC, Your Honor. Exhibit C, I am submitting an affidavit that outlines several phonecalls that I have made over the course of the past seven to eight months and this isan affidavit based on my firsthand personal knowledge regarding these threeseparate telephone communications. Essentially the first call was to SunTrustMortgage Inc. Customer Service and took place on October 12 of2010.

During the course of this call SunTrust Mortgage Inc. positively identifiedFannie Mae to be the owner and holder of the note and that Fannie Mae obtainedpossession shortly after the closing date of January 2007.

The second call was also to Nationstar-- I'm sorry. The second call was toNationstar Mortgage and that took place on January 13th of201l. During thecourse of this call Nationstar Mortgage positively identified Fannie Mae to be theowner and holder of the note and that Fannie Mae obtained possession shortly afterclosing the - closing date of January 2007. The third and final call in this affidavit,Your Honor, was also to Nationstar Mortgage Customer Service and it took placeon February 2nd of2011 and during the course of this call Nationstar Mortgagepositively identified Fannie Mae to be the owner and holder of the note and againconfirmed that Fannie Mae obtained possession shortly after the closing date ofJanuary 2007.

Page L of 0


52/54

I do have recordings of these phone calls and if necessary and the court willpermit, I will bring in the recordings to submit into evidence.

MR. COGBILL: Your Honor, I'll object to the admission of the affidavittestimony as to what these individual [indiscernible] [0:28:27.0] as irrelevant andhearsay. It's irrelevant because there's indication in this affidavit that theseindividuals had any reason to know through documentary evidence who the noteholder is and it's hearsay because they're removed obviously from the[indiscernible] [0:28:45.1] and there's no opportunity to ascertain them.

JUDGE: All right.MS. WILSON: And, Your Honor, this -- JUDGE: -- consideration.MS. WILSON: This affidavit is based on my personal firsthand knowledge

and I'l l be more than happy to submit the recordings.JUDGE: All right.MS. WILSON: Customer service is required when asked to identify who

they have on their record which are the mortgage services records who the holderof the note is.

Exhibit D, Your Honor, is a letter from Nationstar Mortgage datedDecember 15th of2010 and it's still required by the letter required by Title 12 ofthe United States Code Section 2605 . You can see right there the letter states thefollowing, and I quote, "Welcome to Nationstar Mortgage. We look forward to

Page M 0[0


53/54

servicing your loan on behalf ofFannie Mae. Your total debt at the time of transferis $106,527.58. This debt is owed to Fannie Mae but is being serviced byNationstar." I have labeled this as exhibit E and I introduce this into the court aswell. Actually, I may be off ofmy exhibit and I apologize.

JUDGE: That was D, I believe.MS. WILSON: That was D and then for exhibit E I have a true and correct

copy of the Fannie Mae announcement 08-12 dated May 23rd of2008 presented tome on March 29th of 2011 in the hall just outside of this courtroom by AndrewCogbill himselfwho claims to -- who represents the petitioner in this matter. Thecourt will please take note as that in the relevant part, the first sentence in the lastparagraph on page 1 of this Fannie Mae announcement, states, I quote, "FannieMae is at all times the owner of the mortgage note whether the note is in FannieMae's portfolio or whether owned as trustee." Your Honor, SunTrust mortgage wasnot the real party in interest on March 4th of 20 10 when they executed theappointment of Substitute Trustee prepared the law firm ofHutchens, Senter andBritton. Hence, SunTrust Mortgage lacked any possessory interest in the note andthus lacks the contractual capacity to substitute the trustee pursuant to paragraph24 of the said deed of trust. Further, Rule 17A of the North Carolina Rules ofCivilProcedure require, and I quote, "every claim shall be prosecuted in the name of thereal party in interest." The petitioner before this court is clearly not the real party in

Page N of 0


54/54

interest based on the preponderance of evidence presented and now before thiscourt. Respondent Jennifer L. Wilson respectfully requests the court, set aside the

order of the clerk and grant the motion to dismiss for lack of standing withprejudice.

JUDGE: All right. Yes, sir.

coa11-1487 appellant brief

Documents