landrith answer to south dismissal ira dennis hawver
TRANSCRIPT
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Ira Dennis Hawver #8337 6993 Highway 92 Ozawkie, Kansas 66070 Phone (785) 876-2233 Fax (785) 876-3038 Attorney for the Plaintiff
In the United States District Court
for the District of Kansas at Kansas City, Kansas
BRET D. LANDRITH )
Plaintiff ) ) Case No. 12-cv-02352
v. ) )
BANK OF NEW YORK MELLON, et al ) Defendants )
ANSWER TO DEFENDANT SOUTH AND ASSOCIATE P.C.’S MOTION TO DISMISS
Comes now the plaintiff BRET D. LANDRITH through his attorney Dennis Hawver, Esq. and makes
the following answer to the defendant SOUTH AND ASSOCIATE P.C.’S (“SOUTH”) Motion To Dismiss with
accompanying memorandum and exhibits (Docs. # 7, 8, 8-1, 8-2, 8-3, 8-4, 8-5 and 8-6).
I. STATEMENT OF FACTS
1. SOUTH’s Memorandum in not natively converted from a word processing program into computer
readable text.
2. SOUTH’s Motion To Dismiss with accompanying memorandum and exhibits (Docs. # 7, 8, 8-1, 8-2,
8-3, 8-4, 8-5 and 8-6) does not seek to dismiss all claims against SOUTH, specifically SOUTH’s 18 U.S.C.
§ 1962(d) liability from the acts of alleged RICO co-conspirators.
3. Other than arguing that the plaintiff lacks standing, the defendant SOUTH does not argue that the
complaint fails to state a claim against any of the other defendants alleged to be SOUTH’s co-conspirators
for predicate acts in violation of 18 U.S.C. § 1962(c) that injured the plaintiff.
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Facts related to SOUTH’s Assertion of Collateral Estoppel
4. SOUTH asserts Collateral Estoppel from the Kansas action The Bank Of New York v. Jeffrey A.
Basler, Case No. 10 cv 1749.
5. SOUTH does not address Collateral Estoppel from the New York action Landrith v. Alternative
Loan Trust 2007-0A7 and Bank Of New York Mellon New York County Supreme Court Index No.
653154/2011.
6. The New York trial judge’s order in Landrith v. Alternative Loan Trust 2007-0A7 and Bank Of New
York Mellon New York County Supreme Court Index No. 653154/2011 directs the plaintiff to bring the
action in a Kansas forum for the convenience of the parties.
Facts related to Kansas Collateral Estoppel
7. SOUTH did not answer the plaintiff’s LANDRITH’s K.S.A. 60-260 (b)(3) motion for relief from
judgment for fraud.
8. SOUTH instead filed a second motion to strike.
9. The plaintiff has made a timely notice of appeal from the trial court striking LANDRITH’s K.S.A. 60-
260 (b)(3) motion.
Facts related to New York Collateral Estoppel
10. SOUTH’s co-conspirators as alleged in the complaint are the defendants in privity BANK OF NEW
YORK MELLON, ALTERNATIVE LOAN TRUST 2007-0A7 and BRYAN CAVE LLP who brought a motion
to dismiss the plaintiff’s petition for failure to state a claim and for lack of standing based on the Johnson
County District Court ruling in The Bank Of New York v. Jeffrey A. Basler, Case No. 10 cv 1749.
11. The trial court refused to sustain their motion to dismiss on the issues, failure to state a claim, and
for lack of standing.
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12. SOUTH has now brought those same issues before this court.
Facts related to Plaintiff’s Standing
13. Basler’s successor in interest is BRET D. LANDRITH, a citizen of the State of Kansas and an arm’s
length buyer in good faith of the property under K.S.A. 58-2204.
14. LANDRITH’s Affidavit filed in Johnson County Court with the Motion to Set Aside the Foreclosure,
states LANDRITH is an arm’s length buyer in good faith of the property which is the subject of this litigation,
which is lot 330, Leawood Estates, a subdivision in Leawood, Johnson County, Kansas, according to the
recorded plat thereof, commonly known as 9743 Sagamore Road, Leawood, KS 66206 (the “Property”).
15. Before offering to buy the property, LANDRITH’s Affidavit states he went to check the Johnson
County registration of deeds in person and determined Jeffery Allan Basler was the registered owner.
16. LANDRITH’s Affidavit states he then went home and checked the Johnson County civil action
database for a foreclosure action against the name “Basler” and did not see it, the screen showed only a
few cases, not a foreclosure action and LANDRITH made a PDF of the screen search result which
LANDRITH later included as an attachment to LANDRITH’s motion for an extension of time to answer the
foreclosure.
17. LANDRITH went to the last address of the registered owner Jeffery Allan Basler who resided in the
Plaza area of the City of Kansas City in the State of Missouri and left a message on his door answering
intercom that LANDRITH was interested in purchasing whatever rights he had in the 9743 Sagamore Road
property.
18. Basler telephoned LANDRITH and they exchanged email addresses so LANDRITH could send him
the offer and a proposed quit claim deed.
19. Later they arranged to meet, at which meeting LANDRITH explained his research to Basler on who
was the registered owner of the 9743 Sagamore Road property.
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20. LANDRITH’s Affidavit filed in Johnson County Court states Jeffery Allan Basler said he had no
knowledge of whether there was a foreclosure action on the 9743 Sagamore Road property.
Facts related to SOUTH’s effort to dismiss Count I Racketeering In Violation Of 18 U.S.C. § 1962(c)
21. SOUTH does not argue that the complaint fails to state a claim against SOUTH with the elements
required for two or more RICO predicate acts under 18 U.S.C. § 1962(c).
Facts related to SOUTH’s effort to dismiss Count II Racketeering Conspiracy In Violation Of 18
U.S.C. § 1962(d)
22. SOUTH does not argue that the complaint fails to state a claim against SOUTH for Racketeering
Conspiracy In Violation Of 18 U.S.C. § 1962(d).
23. SOUTH does not argue that the complaint fails to sufficiently allege the defendants BANK OF
AMERICA and the COUNTRYWIDE entities including CWALT, Inc.; ALTERNATIVE LOAN TRUST 2007-
OA7; CATHERINE A. REIN; KPMG LLP; SOUTH & ASSOCIATES, P.C.; BRYAN CAVE LLP; BAC HOME
LOANS SERVICING, LP; COUNTRYWIDE FINANCIAL; COUNTRYWIDE HOME LOANS; STEPHEN E.
SUMMERS doing business as REALTY EXECUTIVES OF KANSAS CITY entered into an agreement to
conduct or participate, directly or indirectly, in the conduct of the racketeering enterprise's affairs.
24. SOUTH does not argue that the complaint fails to sufficiently allege SOUTH knowingly associated
with the racketeering conspiracy comprising of BANK OF AMERICA and the COUNTRYWIDE entities
including CWALT, Inc.; ALTERNATIVE LOAN TRUST 2007-OA7; CATHERINE A. REIN; KPMG LLP;
SOUTH & ASSOCIATES, P.C.; BRYAN CAVE LLP; BAC HOME LOANS SERVICING, LP;
COUNTRYWIDE FINANCIAL; COUNTRYWIDE HOME LOANS; STEPHEN E. SUMMERS doing business
as REALTY EXECUTIVES OF KANSAS CITY.
25. SOUTH does not argue that the complaint fails to sufficiently allege SOUTH embraced the
objective of the racketeering conspiracy.
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26. SOUTH does not argue that the complaint fails to sufficiently allege SOUTH knew the general
nature of the racketeering enterprise and knew that the enterprise extends beyond SOUTH’s general role.
27. SOUTH does not argue that the complaint fails to sufficiently allege that SOUTH and the
defendants BANK OF AMERICA and the COUNTRYWIDE entities including CWALT, Inc.; ALTERNATIVE
LOAN TRUST 2007-OA7; CATHERINE A. REIN; KPMG LLP; SOUTH & ASSOCIATES, P.C.; BRYAN
CAVE LLP; BAC HOME LOANS SERVICING, LP; COUNTRYWIDE FINANCIAL; COUNTRYWIDE HOME
LOANS; STEPHEN E. SUMMERS doing business as REALTY EXECUTIVES OF KANSAS CITY would
commit two predicate acts under 18 U.S.C. § 1962(c) in furtherance of the conspiracy.
III. ARGUMENT AND AUTHORITIES
The plaintiff makes the following arguments that collateral estoppel does not preclude his claims
against SOUTH and that the plaintiff has standing to bring RICO and RICO conspiracy claims against
SOUTH.
A. The Current Standard for Dismissal.
SOUTH asserts the heightened pleading standard in Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007) where the court addressed the plausibility of an inferred antitrust conspiracy, is applicable to the
plaintiff’s claims of RICO predicate acts committed by SOUTH in an alleged express agreement by SOUTH
and the co-conspirators to further the racketeering conspiracy, controls whether the plaintiff’s complaint
states a claim against SOUTH.
This year, the Tenth Circuit recognized that Fed. R. Civ. P. Rule 8 is still the valid standard for
evaluating non fraud based claims under Fed. R, Civ. P. 12(b)(6). The Tenth Circuit in a new refined
standard that is truer to the subtle nuances of the Supreme Court in Twombly, 550 U.S. 544 stated:
“There is no indication the Supreme Court intended a return to the more stringent pre-Rule 8 pleading requirements. See Iqbal, 129 S. Ct. at 1950 ("Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era . . . ."). And in fact, the Supreme Court stated in Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002), a pre-Twombly case, that "[a] requirement of greater specificity for particular claims is a result that must be obtained
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by the process of amending the Federal Rules, and not by judicial interpretation." Id. at 515 (internal quotation marks omitted). Thus, as the Court held in Erickson v. Pardus, 551 U.S. 89 (2007), which it decided a few weeks after Twombly, under Rule 8, "[s]pecific facts are not necessary; the statement need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Id. at 93 (quoting Twombly, 550 U.S. at 555 (alteration in original)); see also al-Kidd v. Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009) ("Twombly and Iqbal do not require that the complaint include all facts necessary to carry the plaintiff's burden."). While the 12(b)(6) standard does not require that Plaintiff establish a prima facie case in her complaint, the elements of each alleged cause of action help to determine whether Plaintiff has set forth a plausible claim. See Swierkiewicz, 534 U.S. at 515; see also Twombly, 550 U.S. at 570.”
Khalik v. United Air Lines at 5-7 (10th Cir., 2012).
SOUTH does not make arguments in its motion to dismiss or supporting memorandum (Docs. # 7,
8) that the plaintiff’s complaint fails to satisfy the Fed. R. Civ. P. Rule 9 pleading requirement in its fraud
based allegations.
B. Defendant’s Argument That This Action is Barred by the Doctrine of Collateral Estoppel.
The plaintiff considered whether collateral estoppel would apply to this action before bringing it to
this court. The New York Supreme Court (trial court judge opinion) in Landrith v. Alternative Loan Trust
2007-0A7 and Bank Of New York Mellon New York County Supreme Court Index No. 653154/2011 directs
the plaintiff to bring the action in a Kansas forum that includes the Kansas District Court. The complaint’s
procedural history section (Plt. Comp. pgs. 3-4, ¶¶ 23-29 ) and jurisdictional statements (Plt. Comp. pgs. 1-
2, ¶¶ 1-9 ) give the court and the parties notice that collateral estoppel does not bar the plaintiff’s claims.
1. Defendant’s Argument That The Doctrine of Collateral Estoppel Applies in this Case
The plaintiff rejects the idea that the Doctrine of Collateral Estoppel applies to SOUTH or its
principals BANK OF NEW YORK MELLON, ALTERNATIVE LOAN TRUST 2007-0A7 and CWALT, INC. in
this case and certainly would not apply to the parties SOUTH did not act as agent for, in the underlying
State of Kansas action the Johnson County District Court The Bank Of New York v. Jeffrey A. Basler, Case
No. 10 cv 1749.
The defendant SOUTH omits the collateral estoppel effects of the other underlying state case, i.e.
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the State of New York action for fraud on the court Landrith v. Alternative Loan Trust 2007-0A7 and Bank
Of New York Mellon New York County Supreme Court Index No. 653154/2011 where the plaintiff raised the
issue of the defendants committing the same or identical fraud on the court claims as the present action but
under State of New York common law fraud rather than the Racketeer Influenced And Corrupt
Organizations Act ("RICO"), 18 U.S.C. § 1961, et seq. See Exhibit 1 Landrith v. Alternative Loan Trust
2007-0A7 and Bank Of New York Mellon Petition.
In the State of New York action, the defendants BANK OF NEW YORK MELLON, ALTERNATIVE
LOAN TRUST 2007-0A7 and BRYAN CAVE LLP brought a motion to dismiss the plaintiff’s petition for
failure to state a claim and for lack of standing based on the Johnson County District Court ruling in The
Bank Of New York v. Jeffrey A. Basler, Case No. 10 cv 1749. See Exhibit 2 BANK OF NEW YORK
MELLON and ALTERNATIVE LOAN TRUST 2007-0A7 Motion to Dismiss.
The plaintiff answered, defending his petition and claims based on the lack of preclusive effect of the
sustaining of the defendants’ Motion to Strike by the Johnson County District Court where the plaintiff had
briefed the Johnson County Court on early Kansas precedent, holding that foreclosure courts were
inappropriate venues for determining disputed issues related to title. See Exhibit 3 LANDRITH Answer To
BANK OF NEW YORK MELLON and ALTERNATIVE LOAN TRUST 2007-0A7 Motion to Dismiss.
The New York trial court refused to grant BANK OF NEW YORK MELLON and ALTERNATIVE
LOAN TRUST 2007-0A7 Motion to Dismiss on failure to state a claim and refused to grant dismissal based
on lack of standing. Instead the New York court dismissed the petition for forum non conveniens. See
Exhibit 4 Landrith v. Alternative Loan Trust 2007-0A7 and Bank Of New York Mellon Order of Dismissal
Without Prejudice.
The plaintiff filed a timely notice of appeal, and has nine months to perfect the appeal in the State of
New York. See Exhibit 5 Landrith v. Alternative Loan Trust 2007-0A7 Corrected Brief of the Appellant.
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Tenth Circuit Requirement Both State Decisions Be Analyzed for Preclusion
SOUTH’s motion to dismiss asserts collateral estoppel, but only discusses its application in
relationship to The Bank Of New York v. Jeffrey A. Basler, Case No. 10 cv 1749 where LANDRITH
asserted he was a defendant and raised affirmative defenses without a duty to raise mandatory
counterclaim and where the trial court sustained SOUTH’s Motion to Strike rather than proceeding to a trial
on the merits. SOUTH does not discuss Landrith v. Alternative Loan Trust 2007-0A7 and Bank Of New
York Mellon New York County Supreme Court Index No. 653154/2011 where the LANDRITH brought his
claims as a plaintiff.
This court would be in error if it did not apply New York collateral estoppel to the parties where
issues in Landrith v. Alternative Loan Trust 2007-0A7 and Bank Of New York Mellon New York County
Supreme Court Index No. 653154/2011 have preclusive effect:
“In granting Federal's motion for partial summary judgment, the district court apparently relied primarily on the Michigan litigation but considered Kansas, California and federal law to determine its collateral estoppel effect. We find that the district court erred in failing to apply Michigan law to determine the collateral estoppel effect of the Michigan litigation. The Full Faith and Credit Statute, 28 U.S.C. Sec. 1738, requires a federal court to apply the law of the state rendering the judgment to determine collateral estoppel effect.”
Federal Ins. Co. v. Gates Learjet Corp., 823 F.2d 383 at 385 (C.A.10 (Kan.), 1987)
State of New York Collateral Estoppel
The defendants were unable to prevail in the State of New York Court on the arguments in Exhibit 2
BANK OF NEW YORK MELLON and ALTERNATIVE LOAN TRUST 2007-0A7 Motion to Dismiss that the
plaintiff’s claims the defendants procured the foreclosure, sheriff’s sale and issuance of sheriff’s title
through fraud on the Johnson County Court injuring the plaintiff by taking the plaintiff’s Leawood, Kansas
home when they had never obtained the mortgage or promissory notes, mortgage file or authority to
foreclose, on a claim or issue preclusion (including collateral estoppel and res judicata) theory or that the
plaintiff lacked standing when his claims encompassed the procurement of the change in title through fraud
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on the court.
Even by the more favorable to the defendants simple version of State of New York collateral estoppel
elements, the New York County Supreme Court judge was correct in refusing to sustain the plaintiff’s
motion for dismissal with prejudice on these theories:
“"[F]or collateral estoppel to apply * * * three criteria must be met: (1) the issue must actually have been litigated and determined by a valid and final judgment in a separate action, (2) that determination must have been essential to the judgment and (3) either the party to be precluded had a full and fair opportunity to litigate the issue in the prior proceeding or other circumstances do not justify affording him an opportunity to relitigate it" (Braunstein v Braunstein, 114 AD2d 46, 52-53 [concluding that collateral estoppel did not preclude the granting of a distributive award, because the issue of equitable distribution "was never raised by either party nor did the (Swedish) court resolve or allude to that issue in the final divorce decree"] [internal quotation marks and emphasis omitted]; see Nikrooz v Nikrooz, 167 AD2d 334, 334-335; see also Lester v New York State Off. of Parks Recreation, & Historic Preserv., 87 AD3d 561).”
Cudar v. Cudar, 2012 NY Slip Op 4965 at og. 2-3 (N.Y. App. Div., 2012).
In a serious throw down over collateral estoppel as controlled by State of New York precedent, the
defendant SOUTH does not make the first, second, or third elements. While not a party to The Bank Of
New York v. Jeffrey A. Basler, Case No. 10cv1749 , SOUTH is irrefutably in privity with BANK OF NEW
YORK MELLON, ALTERNATIVE LOAN TRUST 2007-0A7 and CWALT, INC. But, SOUTH does not get
element 1. The problem is that both actions are timely appealed depriving SOUTH of the “valid and final
judgment” requirement of the first element.
SOUTH also fails element 2 because even in stretching the effect of the Johnson County Court
order sustaining SOUTH’s motion to strike (which under Kansas precedent cannot be a final judgment, see
State of Kansas Collateral Estoppel infra) because the plaintiff does not have standing to “intervene”
beyond its constitutional dimensions, a finding that LANDRITH did not have standing to intervene is not
essential to the Johnson County Court ruling where clearly establish State of Kansas precedent supports a
finding that a foreclosure action is an inappropriate forum to resolve title disputes.
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Finally, SOUTH fails the element 3 requirement “must have been actually litigated in the prior
proceeding” because neither court proceeded to discovery or an evidentiary hearing. Since in the New York
court, BANK OF NEW YORK MELLON and ALTERNATIVE LOAN TRUST 2007-0A7 defaulted, the
plaintiff presented evidentiary documents in support of a sworn affidavit that might have met the “actually
litigated” requirement the court in Cimerring v. Merrill Lynch Mortg. Investors, Inc., 2012 NY Slip Op 51123
at pg. 7 (N.Y. Sup. Ct., 2012) imported from Virginia law, but here the court did not allow a hearing on the
default.
Under an offensive use of the New York Collateral Estoppel doctrine, SOUTH cannot in this action
raise issue preclusion or LANDRITH’s standing in a Motion to Dismiss in the present action:
” Since collateral estoppel is invoked here to preclude the landlord from relitigating the issues raised in the tenants' affirmative defense and counterclaim, it is affirmative relief through the operation of the prior judgment--i. e. offensive collateral estoppel, that is sought”
111 East 88th Street Partners v. Fine, 443 N.Y.S.2d 195 at 196, 110 Misc.2d 960 (N.Y. City Civ.Ct., 1981).
Neither SOUTH or its principals BANK OF NEW YORK MELLON, ALTERNATIVE LOAN TRUST
2007-0A7 or CWALT, INC. made a timely filing of a notice of counter appeal in either action. The New York
County Supreme Court judgment denying dismissal on the issues of an asserted preclusive effect of The
Bank Of New York v. Jeffrey A. Basler, Case No. 10cv1749 or LANDRITH’s standing from a change of title
before Basler Quit Claim Deeded his interest to LANDRITH without knowledge of the foreclosure or
sheriff’s sale prevents SOUTH from both theories it is now asserting in its Motion to Dismiss and
Memorandum in Support.
State of Kansas Collateral Estoppel
The plaintiff does not dispute SOUTH’s definition of Collateral Estoppel. However, SOUTH avoids
addressing the State of Kansas precedents provided SOUTH in The Bank Of New York v. Jeffrey A. Basler,
Case No. 10cv1749. by the plaintiff ( Exhibit 6 LANDRITH Notice Of Supplemental Authority ) that show
the Johnson County Order sustaining SOUTH’s Motion to Strike cannot have res judicata or collateral
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estoppel effect under Kansas law since SOUTH’s Motion to Strike was not equivalent to a demurer or
motion to dismiss.
Shughart Thomson & Kilroy, P.C. v. Max Rieke & Bros., Inc. Mutuality of Estoppel
Additionally the plaintiff distinguishes Shughart Thomson & Kilroy, P.C. v. Max Rieke & Bros., Inc.,
943 P.2d 508, 24 Kan.App.2d 205 (Kan. App., 1997) as the defendant employs it from the plaintiff’s action
against SOUTH. Shughart’s predecessor in interest had prevailed in the underlying litigation which was
upheld in appeal. Shughart Thomson & Kilroy, P.C. v. Max Rieke & Bros., Inc. is about the collateral
estoppel of a final judgment, unlike The Bank Of New York v. Jeffrey A. Basler, Case No. 10cv1749 or
Landrith v. Alternative Loan Trust 2007-0A7 and Bank Of New York Mellon New York County Supreme
Court Index No. 653154/2011 which are both timely appealed. If Shughart Thomson & Kilroy, P.C. v. Max
Rieke & Bros., Inc., 943 P.2d 508 has any application to the present action, SOUTH, like Shughart, suffers
offensive collateral estoppel, what the Kansas Court of Appeals refers to as mutuality of estoppel where
none of SOUTH’s principals BANK OF NEW YORK MELLON, ALTERNATIVE LOAN TRUST 2007-0A7 or
CWALT, INC. made a timely filing of a notice of counter appeal in either action.
Williams v. Evans 220 Kan. 394 Definition
The plaintiff agrees with SOUTH’s description of the doctrine from Williams v. Evans 220 Kan. 394:
“The doctrine of collateral estoppel exists as "'a bar in an action upon a different claim as to certain matters in issue which were determined in a former judgment.'" Williams v. Evans 220 Kan. 394, 396, 552 P .2d 876, 878 (Kan. 1976) quoting Penachio v, Walker, 207 Kan. 54, 57, 483 P .2d 1119, 1121 (Kan. 1971). "Instead of preventing a second assertion of the same claim or cause of action, the doctrine of collateral estoppel prevents a second litigation of the same issues between the same parties or their privies even in connection with a different claim or cause of action." Williams v.Evans,20 Kan. 394, 396, 552 P.2d 876, 878 (Kan,1987).”
SOUTH Memorandum in Support of Dismissal at pg. 5.
Strike Order’s Preclusive Effect
The problem with SOUTH’s use of collateral estoppel is that this court may not give more effect to
the Johnson County Court order striking the plaintiff’s answer and motion to set aside the foreclosure than
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the State of Kansas would:
“The Full Faith and Credit Statute, 28 U.S.C. Sec. 1738, requires a federal court to apply the law of the state rendering the judgment to determine collateral estoppel effect. Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985); Kremer v. Chemical Constr. Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982). Furthermore, according to the Marrese decision, a federal court cannot give greater preclusive effect to a state court judgment than would the state rendering the judgment. 470 U.S. at 380, 105 S.Ct. at 1331; Kiowa Tribe v. Lewis, 777 F.2d 587, 590 (10th Cir.1985), cert. denied, --- U.S. ----, 107 S.Ct. 247, 93 L.Ed.2d 171 (1986).”
Federal Ins. Co. v. Gates Learjet Corp., 823 F.2d 383 at 385 (C.A.10 (Kan.), 1987).
The Kansas District Court in The Estate Ray Belden v. Brown County, 46 Kan.App.2d 247 has
observed and followed a rule in Kansas Supreme Court decisions over the preclusive effect of issues not
heard or resolved by the trial court that is consistent with Kansas Supreme Court decisions addressing the
preclusive effect of orders to strike. State of Kansas courts have determined when an Order striking a
pleading is preclusive as a decision that is appealable final order. In State v. $895.00 U.S. Currency, 133
P.3d 91, 281 Kan. 819 at 99-101 (Kan., 2006) the Kansas Supreme Court stated:
“An order to strike is not "appealable unless it has the features of finality by serving the same purpose as a demurrer to test the sufficiency of a claim or defense." 4 Gard & Casad, Kansas C. of Civ. Proc. Annot. § 60-212, p. 74 (4th ed.2003); see Harris v. City of Topeka, 180 Kan. 758, Syl. ¶ 1, 308 P.2d 88 (1957). Cf. G.S. Johnson Co. v. N. Sauer Milling Co., 148 Kan. 861, Syl. ¶ 1, 84 P.2d 934 (1938) (where certain allegations in petition involve merits of the cause of action, order to strike allegations is appealable order and is equivalent to order sustaining demurrer).”
State v. $895.00 U.S. Currency, 133 P.3d 91, 281 Kan. 819 at 99-101 (Kan., 2006). The earlier case referenced by the State v. $895.00 U.S. Currency court, Harris v. City of Topeka stated;
“the established rule of this jurisdiction that rulings on motions to strike and make definite and certain rest in the sound discretion of the trial court and are not appealable unless they affect a substantial right and in effect determine the action. See Barnhouse v. Rowe, 178 Kan. 248, 284 P.2d 618; Vogt v. Drillers Gas Co., 178 Kan. 146, 283 P.2d 442; Meek v. Ames, 175 Kan. 564, 266 P.2d 270”
Harris v. City of Topeka, 308 P.2d 88, 180 Kan. 758 (Kan., 1957).
The other requirement from the State v. $895.00 U.S. Currency court that the Motion to Strike be
equivalent to Motion for Demurrer ( now a Motion to Dismiss For Failure to State a Claim The People's Law
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Dictionary by Gerald and Kathleen Hill Publisher Fine Communications;
http://dictionary.law.com/Default.aspx?selected=487 ) from the earlier case Barnhouse v. Rowe, 178 Kan.
248, 284 P.2d 618 at 621 (Kan., 1955) stated:
There is an additional reason why this motion was not the equivalent of a demurrer. As already herein set out, there were issuable facts joined by the pleadings and, therefore, the motion for judgment on the pleadings cannot be equivalent or tantamount to a demurrer. The decisions are abundant on this point. A few of them are Pease v. Snyder, 166 Kan. 451, 201 P.2d 661; Sullivan v. Paramount Film Distributing Corp., 168 Kan. 524, 213 P.2d 959, 14 A.L.R.2d 458, 469; Diehn v. Penner, 173 Kan. 41, 244 P.2d 215; Vogt v. Drillers Gas Co., 178 Kan. 146, 283 P.2d 442. Since the order overruling the motion for judgment on the pleadings was not an appealable order, this court is without jurisdiction in the case and the appeal must be dismissed. It is so ordered.”
Barnhouse v. Rowe, 178 Kan. 248, 284 P.2d 618 at 621-622 (Kan., 1955).
TIME PERIOD PROBLEMS
The Johnson County Court believed it had lost subject matter jurisdiction after rendering the
foreclosure judgment and approving the sale order. In the present action, LANDRITH’s claims are for a
different time period, misconduct through predicate acts of fraud on the court by the defendants to
misrepresent that they had standing to foreclose. See generally 18 Federal Practice & Procedure:
Jurisdiction § 4421” Murdock v. Ute Indian Tribe of Uintah and Ouray Reservation, 975 F.2d 683 at 687
(C.A.10 (Utah), 1992).
The order striking filings in a closed foreclosure case cannot be preclusive or an estoppel on claims
addressing a different time period and issues never before the trial court:
“Other jurisdictions have recognized "the principle that matters adjudged as to one time period are not necessarily an estoppel to other time periods." Int'l Shoe Mach. Corp. v. United Shoe Mach. Corp., 315 F.2d 449, 455 (1st Cir.1963); see also Harkins Amusement Enters., Inc. v. Harry Nace Co., 890 F.2d 181, 183 (9th Cir.1989) (rejecting idea that collateral estoppel barred a suit for conspiracy where "the plaintiff alleges conduct that occurred in a different time period"). This is particularly true "when significant new facts grow out of a continuing course of conduct." Hawksbill Sea Turtle v. Fed. Emergency Mgmt. Agency, 126 F.3d 461, 477 (3d Cir. 1997).
B-S Steel of Kansas, Inc. v. Texas Industries, 439 F.3d 653 at 663 (10th Cir., 2006).
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2 Defendant’s Argument That Defendant Demonstrates the Necessary Threshold Showing to Invoke the Doctrine of Collateral Estoppel
The plaintiff observes that SOUTH cannot meet two of the three elements SOUTH’s own cited
authority Jackson Trak Group, Inc. v. Mid States Port Authority, 242 Kan, 683, 690, 751 P.2d 122, 128
(Kan. 1988). requires for this court to recognize collateral estoppel precludes any of the LANDRITH’s
claims.
(1) a prior judgment on the merits which determined the rights and liabilities of the parties on the issue based upon ultimate facts as disclosed by the pleadings and judgment SOUTH cannot meet the first element of its precedent Jackson Trak Group, Inc. v. Mid States Port
Authority, 242 Kan, 683, 690, 751 P.2d 122, 128, id.. This is equivalent to the fourth element of federal
collateral estoppel: “(4) the prior action must have been finally adjudicated on the merits.” Wells v. Fed.
Deposit Ins. Corp. at pg. 7 (D. Kan., 2012).
“"Finality" for purposes of collateral estoppel means merely that the issue has been fully litigated.
Chemetron Corp. v. Business Funds, Inc., 682 F.2d 1149, 1191 (5th Cir.1982), vacated on other grounds
and remanded, 459 U.S. 375, 103 S.Ct. 683, 74 L.Ed.2d 548 (1983); Miller Brewing Co. v. Joseph Schlitz
Brewing Co., 605 F.2d 990, 996 (7th Cir.1979), cert. denied, 444 U.S. 1102, 100 S.Ct. 1067, 62 L.Ed.2d
787 (1980); Zdanok v. Glidden Co., Durkee Famous Food Division, 327 F.2d 944, 955 (2d Cir.), cert.
denied, 377 U.S. 934, 84 S.Ct. 1338, 12 L.Ed.2d 298 (1964). See, also Aetna Casualty & Surety Co. v.
Jeppesen & Co., 440 F.Supp. 391 (D.Nev.1977), vacated on other grounds and remanded, 642 F.2d 339
(9th Cir.1981).
There has been no final judgment from which issue or claim preclusion would arise under Kansas
law:
“The preclusive effect of an order granting a motion to strike that was not equivalent to a motion to dismiss is the same as the state court would evaluate an interlocutory order from another jurisdiction: “As an interlocutory order, it has no res judicata effect, does not vacate or reverse the prior judgment, and is not entitled to full faith and credit.”
15
Hankin v. Graphic Technology, Inc., 222 P.3d 523 (2010), Court of Appeals of Kansas., January 8,
2010.
The Kansas District court turning to State of Kansas law regarding the finality of an action where a
timely appeal is pending does not apply preclusion to the state trial court findings:
“However, under Kansas law the pendency of an appeal precludes the application of res judicata principles. See Speer v. Dighton Grain Inc., 229 Kan. 272, Syl. ¶ 1, 624 P.2d 952 (1981) ("The doctrine of res judicata cannot arise from a judgment rendered in an action until the time for appeal or modification has passed."). Because the plaintiffs appeal is still pending before the Kansas Court of Appeals, the defendants are not entitled to summary judgment at this time on res judicata principles.”
Snodderly v. Kansas, 79 F.Supp.2d 1241 at 1244-45 (D. Kan., 1999).
In Pioneer Operations Co., Inc. v. Brandeberry, 789 P.2d 1182, 14 Kan.App.2d 289 (Kan. App.,
1990) the state appellate court had occasion to examine the Kansas Supreme Court’s determination of the
preclusive effect of a judgment certified for appeal in Dennis v. Southeastern Kansas Gas Co., 227 Kan.
872, 610 P.2d 627 (1980). The supreme court ruled that res judicata attached to the certified final judgment
but only because there was not a timely appeal. Pioneer Operations Co., Inc. v. Brandeberry, 789 P.2d
1182, 14 Kan.App.2d 289 (Kan. App., 1990).
This first element of Jackson Trak Group contains the third element requiring a full and fair
opportunity to litigate under Federal issue preclusion or collateral estoppel. See also Murdock v. Ute Indian
Tribe, 975 F.2d 683, 687 (10th Cir. 1992) (citing United States v. Rogers, 960 F.2d 1501, 1508 (10th Cir.
1992)) (quoting In re Lombard, 73,9 F.2d 499 (10th Cir. 1984)).
There was never any pre-trial conference, discovery or presentation of evidence at a hearing in
Bank Of New York v. Jeffrey A. Basler, Case No. 10 cv 1749. Since the motion to strike was not equivalent
to a motion to dismiss (see Exhibit 10 SOUTH Johnson County Motion to Strike ), having confused
LANDRITH’s Answer and Motion to Set Aside the Foreclosure (Exhibits 7-8) with an attempt to intervene
as a non party, no Rule 12 (b) 6 theories for dismissal were presented or briefed by SOUTH and Exhibit 10
16
SOUTH Johnson County Motion to Strike at pg. 1 ¶¶ 2,3 expressly admitted the grounds for which
LANDRITH held a personal interest in a chose in action, the right Basler had under K.S.A. 60-309 (now
transferred through Quit Claim Deed to LANDRITH) to set aside the foreclosure for up to years over the
lack of personal service, See Standing infra.
SOUTH’s use of Jackson Trak Group fails to comprehend how strongly that court was opposed to
preclusion of issues the trial court, like the Johnson County Court refused to hear evidence on, including
the fraud based affirmative defenses raised by LANDRITH:
“More importantly, a judgment is not res judicata as to any matters which a court expressly refused to determine, and which it reserved for future consideration, or which it directed to be litigated in another forum or in another action. American Home Assur. v. Pacific Indem. Co., Inc., 672 F.Supp. 495 (D.Kan.1987); 46 Am.Jr.2d, Judgments § 419, p. 588-89.”
Jackson Trak Group By and Through Jackson Jordan, Inc. v. Mid States Port Authority, 751 P.2d
122 at 128, 242 Kan. 683 (Kan., 1988).
Without the presentation or evidence or testimony, and without SOUTH providing a legal argument
for dismissal of LANDRITH’s claims (affirmative defenses to foreclosure) preventing a hearing on which the
court could be briefed for a trial on their merits, there was no full and fair opportunity to litigate the issues in
Johnson County Court that are now before this court:
“First, the issues are identical (in this analysis, the issues are critical, not the cause of action). Second, the parties against whom the doctrine is invoked—the Wells—were parties in the prior action. And third (regarding the fourth collateral estoppel element), the prior action was finally adjudicated on the merits. The only element that remains to be analyzed is whether the Wells had a full and fair opportunity to litigate the issue in the state litigation. In state district court, plaintiffs filed a brief in support of redemption. The district court initially ruled that their redemption was valid. Then, after Lloyds entered an appearance in the state action, SSB filed a motion to reconsider and the court held a hearing. Plaintiffs' counsel appeared and argued in favor of redemption again. When plaintiffs lost, they appealed. On appeal, they argued that they should be able to redeem the property and that the FDIC's newly-established presence in the case did not deprive the appellate court of jurisdiction. Although plaintiffs lost on appeal and were denied review by the Kansas Supreme Court, they had a full opportunity to present their case. Based on these factors, the court determines that collateral estoppel applies to bar plaintiffs' claim against defendants FDIC, Lloyds, and Wilson.”
Wells v. Fed. Deposit Ins. Corp. at pg. 7-8 (D. Kan., 2012).
17
(2) the parties must be the same or in privity
The plaintiff concedes SOUTH meets element 2 of Jackson Trak Group By and Through Jackson
Jordan, Inc. v. Mid States Port Authority, 751 P.2d 122 at 128, 242 Kan. 683 (Kan., 1988). SOUTH is
irrefutably in privity with BANK OF NEW YORK MELLON, ALTERNATIVE LOAN TRUST 2007-0A7 and
CWALT, INC.
(3) the issue litigated must have been determined and necessary to support the judgment
SOUTH cannot meet the third element of its precedent Jackson Trak Group, Inc. v. Mid States Port
Authority, 242 Kan, 683, 690, 751 P.2d 122, 128 (Kan. 1988). The Johnson County Court order sustaining
SOUTH’s motion to strike and the later order denying LANDRITH’s K.S.A. 60-260 (b)(3) motion for relief
from judgment because the foreclosure and sale took place before Basler transferred his interest to
LANDRITH is in the light most favorable to SOUTH merely a determination of a lack of subject matter
jurisdiction. The court was sitting in equity and determined SOUTH’s principals had standing to foreclose
and ordered a sale and issuance of sheriff’s title entirely on the photocopy of a mortgage SOUTH had
presented to the court in an ex parte proceeding without serving process on Basler.
The Johnson County Court as a court sitting in equity had no subject jurisdiction beyond the terms of
the written mortgage contract SOUTH had presented it. The foreclosure had been completed, the property
had been purchased (albeit by SOUTH’s principals at the sale) and the Sheriff’s title had been made out to
them. The Johnson County Court’s subject matter jurisdiction had ended when LANDRITH filed his Answer
and Motion to Set Aside the Foreclosure:
“It has consistently been held in this jurisdiction that a court of equity has no power to extend a lease beyond the term which the parties themselves have fixed by their written contract. This was the situation presented in Kahm v. Arkansas River Gas Co., 122 Kan. 786, 253 P. 563, where the court said: 'A court of equity has no power to extend a lease beyond the term which the parties themselves have fixed by their written contract. We have considered this question in Elliott v. Oil Co., 106 Kan. 248, 187 P. 692, and here as there we find it impossible to deny to plaintiffs the relief to which their ownership and right of possession entitled them, especially when the rights which they seek to
18
enforce are in literal accord with the contract of lease which defined and limited the rights of defendant.”
Reese Enterprises, Inc. v. Lawson, 220 Kan. 300, 553 P.2d 885 at 894 (Kan., 1976).
It is clearly established that the issue of standing for LANDRITH determined by the Johnson County
Court after the judgment of foreclosure and the order of sale had been entered was under Kansas law, an
issue of subject matter jurisdiction:
"In Kansas, standing is a component of subject matter jurisdiction, which any party, or the court on its own motion, may raise at any time. Vorhees v. Baltazar, 283 Kan. 389, 397, 153 P.3d 1227 (2007)."
Mortgage Elec. Registration Sys.Inc v. Graham (Kan. App., 2010).
The Tenth Circuit has determined that in circumstances where a court determines it lacks subject
matter jurisdiction to entertain a claim, such as the Johnson County Court determined when it received
LANDRITH’s Answer (Exhibit 7) and Motion to Set Aside the Sale (Exhibit 8), after the foreclosure case
had closed, any decision made by the Johnson County Court regarding LANDRITH or his allegations are
not collateral estoppel and without the effect of preclusion at law:
“Segal v. American Tel. & Tel. Co., 606 F.2d 842, 845 & n. 2 (9th Cir.1979) ("For the purpose of issue preclusion (collateral estoppel) ... relitigation of an issue presented and decided in a prior case is not foreclosed if the decision of the issue was not necessary to the judgment...."); 18 Federal Practice & Procedure: Jurisdiction § 4421. In particular, once a court determines that it does not have subject matter jurisdiction to consider a claim, any discussion of the merits of that claim is unnecessary to the judgment and therefore does not constitute collateral estoppel for purposes of future litigation of issues involved in that claim. See Bunker Ramo Corp. v. United Business Forms, Inc., 713 F.2d 1272, 1279 (7th Cir.1983). In Affiliated Ute, the Supreme Court affirmed the Tenth Circuit's conclusion that the district court had correctly dismissed that case for lack of subject matter jurisdiction. Thus, had the Supreme Court decided the Affiliated Ute case alone, the Court's subsequent discussion of whether the AUC was the authorized representative of the mixed-bloods Utes would have been unnecessary to the decision and therefore would not have precluded relitigation of the issue. The Court did not decide Affiliated Ute alone, however, but rather considered it along with Reyos.”
Murdock v. Ute Indian Tribe of Uintah and Ouray Reservation, 975 F.2d 683 at 687-688 (C.A.10 (Utah),
1992).
19
C. Defendant’s Argument That The Court Should Dismiss Plaintiff's Claims Against Defendant Because Plaintiff Lacks Standing . A sale and judgment of foreclosure obtained on publication service through default may be set aside
under K.S.A. 60-309 within two years of its issuance. This right in the the house and land at 9743
Sagamore Road in Leawood, Kansas held by Jeffery Allan Basler and then transferred by Quit Claim Deed
to LANDRITH is not limited or snuffed out by a statutory redemption period under K.S.A. 60-2414 as
SOUTH appears to misapprehend the Kansas statutes related to foreclosure in its present Memorandum in
Support of Dismissal (Doc. # 8).
No language in K.S.A. 60-309 conditions LANDRITH’s right on the redemption period set out in
K.S.A. 60-2414:
“Statute 60-309: Opening default judgment rendered on service by publication. (a) Procedure. A party against whom a judgment has been rendered without other service than publication in a newspaper, may, at any time within two (2) years after the entry of the judgment, have the same opened and be let in to defend. Before the judgment may be opened the applicant shall give notice to the adverse party of his or her intention to make such an application and shall file a full answer to the petition, pay all costs if the court require them to be paid, and make it appear to the satisfaction of the court by affidavit that during the pendency of the action the applicant had no actual notice thereof in time to appear in court and make a defense. The adverse party on the hearing of the application may present counter affidavits. (b) Sale for value after six months. If no proceedings are commenced under subsection (a) within six (6) months from the date the judgment was entered, any sale of property made to a purchaser for value in reliance upon the judgment, is not affected by any such proceedings. (c) Judicial sales. If property is sold on order of sale under the judgment sought to be opened, the sale is not affected by any proceedings brought under subsection (a). Unless the court finds from affidavits or other evidence that actual notice has been given before judgment to the defendants served only by publication, the proceeds of the sale shall be impounded by the court and not distributed (1) until three months have elapsed from the time the judgment was entered, or (2) until proceedings under subsection (a), if brought within said three months period, are disposed of and the right to the impounded proceeds determined. (d) Bond in lieu of impounding proceeds. In lieu of impounding the proceeds of sale as provided in subsection (c) any party having an interest under the judgment may give a bond to be approved by the court, for the payment of an amount not exceeding the amount of the proceeds of sale, to other persons found in such proceedings to be entitled thereto. History: L. 1963, ch. 303, 60-309; Jan. 1, 1964.”
K.S.A. 60-309.
20
LANDRITH filed his K.S.A. 60-309 motion on 09/14/2011, within six months of the entry of the
foreclosure order on 4/27/2010, giving LANDRITH a superior property interest to the defendants under
K.S.A. 60-309(b). See Exhibit 9 Johnson County Court Appearance Docket.
Neither the plaintiff LANDRITH nor his predecessor in interest Jeffery Allan Basler can be found to
have acquiesced in the sale or judgment:
"[O]ur court has recently held that failure to participate in the foreclosure sale or to seek a stay does not constitute acquiescence in the judgment. Citifinancial Mortgage Co. v. Clark, 39 Kan.App.2d 149, 155-57, 177 P.3d 986 (2008)."
Deutsche Bank Nat. Trust Co. v. Rooney, 186 P.3d 820 (Kan. App., 2008). The address of Jeffery Allan Basler was easily ascertainable and is how LANDRITH found him and
succeeded in interest as the purchaser of the 9743 Sagamore Road property:
"2. Where the names and addresses of adverse parties are known or easily ascertainable, notice of pending proceedings by publication service, alone, is not sufficient to satisfy the requirements of due process under the 14th Amendment to the federal Constitution or g 2 of the Bill of Rights of the Kansas Constitution."
Weaver v. Frazee, 547 P.2d 1005, 219 Kan. 42 (Kan., 1976). The Kansas statues provide a cure for the
lack of due process under the 14th Amendment to the federal Constitution and § 2 of the Bill of Rights of the
Kansas Constitution created by the default sale and foreclosure judgment of this court in K.S.A. 60-309:
"K.S.A. 60-309 (default judgment based on publication service may be set aside within two years of judgment if party had no actual notice)."
Bank Western v. Henderson, 255 Kan. 343, 874 P.2d 632 (Kan., 1994).
The plaintiff LANDRITH has a property interest and a colorable defense to a foreclosure action by
BANK OF NEW YORK MELLON on behalf of a trust claiming a secured interest and right to foreclose
resulting from a Countrywide Mortgage.
The Kansas Supreme Court has stated that a foreclosure could be repudiated as fraudulent where
the mortgagee does not have any right in the mortgage:
"When plaintiff [assignee] discovered what Haas [assignor] had done, it could choose one of two
21
courses of action: It could repudiate the foreclosure proceedings on the ground of fraud, and itself foreclose the Caskey mortgage; or it could confirm the regularity and validity of the foreclosure proceedings as vesting title in Haas [assignor], and hold him as trustee of the title for plaintiff s benefit." 127 Kan. at242, 273 P. 477. The first course of action is supported by Mutual Benefit Life Insurance Co. v. Huntington, 57 Kan. 744, 48 P. 19 (1897). Once the mortgage is assigned, the mortgagee/assignor no longer has any right in the mortgage, and any judgment the mortgagee/assignor obtained would have been fraudulent."
Bank Western v. Henderson, 255 Kan. 343, 874 P.2d 632 (Kan., 1994).
D. SOUTH Does Not Challenge 18 U.S.C. § 1962(c) and 18 U.S.C. § 1962(d) RICO Claim
Sufficiency
SOUTH does not argue that the complaint fails to state a claim against any of the other defendants
alleged to be SOUTH’s co-conspirators for predicate acts in violation of 18 U.S.C. § 1962(c) that injured the
plaintiff.
Sufficiency of 18 U.S.C. § 1962(c) Claims
SOUTH has not challenged the sufficiency of the plaintiff’s allegations SOUTH violated 18 U.S.C. §
1962(c) through SOUTH’s own commission of two predicate acts of Mail Fraud under 18 U.S.C. Sec. 1341
and Wire Fraud 18 U.S.C. Sec. 1343.
This court in Kraemer v. Padgett, 685 F.Supp. 1166 (D. Kan., 1987) states that to survive
dismissal, a violation of section 1962 requires (1) conduct; (2) of an enterprise; (3) through a pattern; (4) of
racketeering activity. Torwest DBC, Inc. v. Dick, 810 F.2d 925, 927 (10th Cir.1987) (citing Sedima, S.P.R.L.
v. Imrex Company, 473 U.S. 479, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985)). Section 1962(c) states:
“it shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.”
18 U.S.C. § 1962(c).
The Tenth Circuit has determined that the elements of Mail Fraud under 18 U.S.C. Sec. 1341 are:
22
“(1) the devising of a scheme or artifice either (a) to defraud or (b) for obtaining money by means of false or fraudulent pretenses, representations, or promises, (2) the specific intent to defraud, and (3) the use of the United States mails to execute the scheme.”
Williams v. United States, 368 F.2d 972, 975 (10th Cir.1966), cert. denied, 386 U.S. 997, 87 S.Ct.
1317, 18 L.Ed.2d 345 (1967).
This court utilizes the same criteria for judging the sufficiency of Wire Fraud 18 U.S.C. Sec. 1343
as a predicate act under 18 U.S.C. § 1962(c) but substitutes electronic transmission for the element related
to depositing the letter into the US Postal system:
"The elements of wire fraud are very similar, but require that the defendant use interstate wire, radio or television communications in furtherance of the scheme to defraud."
Hall v. Witteman, 569 F.Supp.2d 1208 at 1226 (D. Kan., 2008).
The Tenth Circuit focuses on the fraudulent scheme element of RICO predicate acts of Mail Fraud
and Wire Fraud:
“Based on the plain language of the statute, this court made clear in Graham v. United States, 120 F.2d 543, 544 (10th Cir.1941), that the central focus of the first element is the existence of a scheme. "It is not the making of the false pretenses, representations, or promises that constitutes the first element of the offense," we explained, "[i]t is the devising or intending to devise the scheme." Id. Accordingly, we concluded that it was "neither necessary to allege nor prove that the false pretenses, representations, or promises were actually made" to anyone, much less to each individual in the distinct mail fraud counts. Id.
Since the decision in Graham, this court has taken an additional step in interpreting the language of the mail fraud statute by making explicit the distinction between mail fraud violations based on schemes "to defraud" and those based on schemes "for obtaining money or property by means of false or fraudulent pretenses, representations, or promises." In United States v. Cronic, 900 F.2d 1511, 1513-14 (10th Cir.1990), we clarified that schemes to defraud need not even contemplate the use of affirmative misrepresentations.” [Emphasis added]
U.S. v. Kennedy, 64 F.3d 1465 at 1475-1476 (C.A.10 (Colo.), 1995).
LANDRITH’S Complaint statement of facts details the defendant SOUTH’S communications as an
agent of BANK OF NEW YORK MELLON to commit ALTERNATIVE LOAN TRUST 2007-OA7’s fraud on
the Johnson County Court with the RICO Co-conspirators through RICO predicate acts of Mail Fraud and
23
Wire Fraud under the Leber-Krebs, Inc. v. Capital Records, 779 F.2d 895 (2d Cir. 1985) elements. The
defendant SOUTH’S motion to dismiss does not assert the plaintiff’s complaint failed to sufficiently allege
the elements of fraud on the court from Leber-Krebs, Inc. v. Capital Records, 779 F.2d 895 (2d Cir. 1985)
with supporting specific facts.
Clearly, the plaintiff’s complaint alleges SOUTH made communications on behalf of the other
defendants and expressly as the agent for the nominal defendant BANK OF NEW YORK MELLON and the
racketeering defendants CWALT, Inc. and ALTERNATIVE LOAN TRUST 2007-OA7, solely for the purpose
of furthering the fraudulent scheme alleged in the complaint, after being given notice by the plaintiff of the
specific frauds the defendants had committed on the Johnson County Court related to whether or not BANK
OF NEW YORK MELLON, CWALT, Inc.; ALTERNATIVE LOAN TRUST 2007-OA7 and the certificate
investors had standing to enforce the promissory note or foreclose the mortgage.
Sufficiency of 18 U.S.C. § 1962(d) RICO Conspiracy Claims
SOUTH has not challenged the sufficiency of the plaintiff’s allegations SOUTH conspired with the
defendants BANK OF AMERICA and the COUNTRYWIDE entities including CWALT, Inc.; ALTERNATIVE
LOAN TRUST 2007-OA7; CATHERINE A. REIN; KPMG LLP; SOUTH & ASSOCIATES, P.C.; BRYAN
CAVE LLP; BAC HOME LOANS SERVICING, LP; COUNTRYWIDE FINANCIAL; COUNTRYWIDE HOME
LOANS; STEPHEN E. SUMMERS doing business as REALTY EXECUTIVES OF KANSAS CITY.
The Tenth Circuit has determined that a defendant such as SOUTH may be liable for racketeering
conspiracy under 18 U.S.C. § 1962(d) even though SOUTH may be found to have not committed an overt
act in U.S. v. Smith, 413 F.3d 1253 (Fed. 10th Cir., 2005):
“Mr. Smith was convicted of violating 18 U.S.C. § 1962(d), which makes it "unlawful for any person to conspire to violate" 18 U.S.C. § 1962(c). Because this conspiracy provision lacks an overt act requirement, a defendant can be convicted under § 1962(d) upon proof that the defendant knew about or agreed to facilitate the commission of acts sufficient to establish a § 1962(c) violation. See Salinas v. United States, 522 U.S. 52, 63-66, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997).”
24
U.S. v. Smith, 413 F.3d 1253 at 1265 (Fed. 10th Cir., 2005).
The plaintiff’s complaint alleges that SOUTH entered into an agreement `to conduct or participate,
directly or indirectly, in the conduct of the racketeering enterprise's affairs ( Plt. Comp. pg. 39 ) ; SOUTH
knowingly associated with the racketeering conspiracy ( Plt. Comp. pg. 40 ); that SOUTH agreed the
defendants would commit two predicate acts under 18 U.S.C. § 1962(c) in furtherance the conspiracy ( Plt.
Comp. pg. 40, 41 ). These allegations irrefutably exceed the pleading sufficiency to withstand a Rule
12(b)(6) motion in the Tenth Circuit which requires only that 18 U.S.C. § 1962(d) RICO conspirators agree
to facilitate two or more 18 U.S.C. § 1962(c) violations, not that SOUTH or its attorneys had to commit to
the predicate acts of Mail or Wire Fraud being performed, or even have agreed to commit the predicate
acts of Mail or Wire Fraud. Irrefutably, by the time SOUTH filed its motions to strike the plaintiff’s filings
showing the specific “who, what, where and when of their clients frauds, the plaintiff’s complaint shows
SOUTH had the requisite knowledge of the racketeering and still acted in furtherance of the fraud and to
injure the plaintiff sufficiently to meet the pleading elements for 18 U.S.C. § 1962(d) RICO conspiracy in the
Tenth Circuit:
“The conspiracy element of § 1962(d) requires the Government to demonstrate only that the defendant knew about and agreed to facilitate the commission of—rather than personally committed or agreed to commit—at least two of the predicate acts constituting a pattern of racketeering activity that were proven at trial. See Salinas, 522 U.S. at 66, 118 S.Ct. 469.”
U.S. v. Smith, 413 F.3d 1253 (Fed. 10th Cir., 2005).
IV. CONCLUSION
Whereas the Johnson County Order striking the plaintiff’s Answer and Motion to Set Aside Foreclosure was
not a final appealable order under controlling State of Kansas precedent, the State of New York court
denied the defendants’ motion for dismissal on both the preclusive effects of the Johnson County strike
order and the standing of the plaintiff to pursue fraud on the court claims, and the plaintiff has made a
timely appeal of the Johnson County Order striking the plaintiff's motion for relief from judgment, the plaintiff
respectfully requests the trial court deny SOUTH & ASSOCIATES, PC.'s motion for dismissal.
Respectfully submitted,
s/ Dennis Hawver Ira Dennis Hawver 8337 Attorney for Plaintiff
AFFIDAVIT OF BRET D. LANDRITH
I do hereby verify that the statement of facts above are correct and accurate to the best of my knowledge and the attached exhibits to this motion are correct and accurate to the best of my knowledge.
I found Jeffery Basler's address in Kansas City, Missouri from the bankruptcy court records. I searched the Johnson County Court civil case database online for Basler's foreclosure action several times and was unable to find the case. I made a screen PDF of the search resu lts. I asked Jeffrey Basler if he knew if there was a foreclosure action against the house. He said he had gotten some letters from different attorneys but had not been served process in a foreclosure action and knew of no judgment. I gave him the $6000.00 Esther Burnett had entrusted to me to purchase Basler's house. I saw Jeffery Basler execute the Quit Claim Deed to myself before a notary public. I attempted to file the Quit Claim Deed with the Johnson County registrar of deeds. The deed was rejected for the format of the notarization.
Executed th is lb Day of July, 2012 at Ozawkie, Kansas. . ) )__,_____
Bret D. Landrith
VERIFICATION "f'h
Bret D. Landrith appeared before me on 'day of July , 2012, and executed the aforegoing affidavit, and acknowledged the same as his free act and deed. In witness Whereof I have set my hand and affixed my official seal the day and year last writte::r=:.__
OTARY PUBLIC- State of Kansas Notary P ic IRA DENNIS HA_lVYER
My Appt. Exp. IT&.b-tu
22
CERTIFICATE OF SERVICE
I do hereby certify that on the 13th of July, 2012 I electronically filed the foregoing Entry of Appearance via the CM/ECF system, which will send a notice of electronic filing to the following:
David L. Boman David Boman South & Associates, PC Email: [email protected] Attorney for: South & Associates, PC James D. Lawrence Christopher C. Grenz Email: [email protected], [email protected] Email: [email protected], [email protected] Attorneys for: Alternative Loan Trust 2007-OA7 BAC Home Loans Servicing, LP Bank of America Corporation Bank of New York Mellon Bryan Cave LLP Countrywide Financial Countrywide Home Loans Countrywide Homeloan, Inc.
/s/ Dennis Hawver_________________ Dennis Hawver 8337 Attorney for Plaintiff