memorandum in support of objection to motion for summary judgment

8/14/2019 MEMORANDUM IN SUPPORT OF OBJECTION TO MOTION FOR SUMMARY JUDGMENT

1/54

STATE OF RHODE ISLAND SUPERIOR COURT

PROVIDENCE, SC

DEREK LANGER

Vs. CA NO. PC11-4670

MERS, HOMECOMEINGS

FINANCIAL NETWORK, INC., AURORA

LOAN SERVICES, LLC AND

JOHN DOE SECURITIZED TRUST

______________________________________

AURORA LOAN SERVICES, LLC

VS. CA NO. WD11-0570

DEREK J. LANGER

MEMORANDUM IN SUPPORT OF

OBJECTION TO MOTION FOR SUMMARY JUDGMENT

Now comes Derek Langer and hereby submits this Memorandum in support of the

Motion for Summary Judgment now before this Court. (This memorandum relates to both

actions now before this Court) As grounds therefore, Langer hereby claims that there are

genuine issues of material fact in both cases for the trier of fact to determine and that the moving

parties are not entitled to judgment as a matter of law.

BUCCI1HAS BEEN CONSISTANTLY MISAPPLIED BY THIS COURT AND

MISUNDERSTOOD BY DEFENDANTS COUNSEL

The matter before this Court does involve some of the issues decided by the Rhode Island

Supreme Court inBucci v. Lehman Bros. Bank, FSB, 2013 WL 1498655 (R.I. April 12, 2013).

What is Gospel is the fact that the Supreme Court, inBucci, ruled that in order to foreclose the

1The Rhode Island Supreme Court in its holding inBucci overruled the lower court by requiring

that the foreclosing party be the mortgagee and note holder or an agent acting on behalf of the

note holder. In other words, a mortgagee, without the note, or without being an agent for the

note holder, could not invoke the Statutory Power of Sale.


2/54

foreclosing party be the mortgagee and note holder or an agent acting on behalf of the note

holder. As this Court knows, MERS has made judicial admissions in Rhode Island and inBucci,

that it never holds or owns the note and that it is a mere mortgagee without the note or an agent

for the note holder cannot foreclose pursuant to the statutory power of sale.

In order for that to be true in this case, MERS had to make a valid assignment of the

Mortgage in compliance with Rhode Island General Laws 34-11-24.2 It did not because it

could not. MERS, by its own admission in Bucci, never holds promissory notes and it never is

owned the indebtedness. This being a judicial admission of which this Court must take judicial

notice, this Court must find that the attempted assignment in this case is voidas a matter of law.

The assignment statute clearly requires that the mortgagee making the assignment assign the

mortgage, the note and the debt secured thereby. Not having the note and not owning the debt,

MERS cannot comply with Rhode Island General Laws 34-11-24. There is no rational way to

reach this conclusion. This Court has, much like a contortionist in a circus, tried to manipulate

this statute to serve its purpose of validating MERS mortgages to make true its promise in Porter

that No holding of this Court should invalidate the foreclosurebut it has failed in each and

every case where it has failed to address the clear and precise language of RIGL 34-11-24.

This Court has never performed a statutory analysis of 34-11-24 as it should have. If a

2Rhode I sland General Laws>Ti tle 34>Chapter 34-11> 34-11-24 - Ef fect of assignment of mortgage

An assignment of mortgage substantially following the form entitled "Assignment of Mortgage" shall, when dulyexecuted, [emphasis added] have the force and effect of granting, bargaining, transferring and making over to the

assignee, his or her heirs, executors, administrators, and assigns, the mor tgage deed with the note and debt thereby

secured, [emphasis added] and all the right, title and interest of the mortgagee by virtue thereof in and to the estate

described therein, to have and to hold the mortgage deed with the privileges and appurtenances thereof to the

assignee, his or her heirs, executors, administrators and assigns in as ample manner as the assignor then holds the

same, thereby substituting and appointing the assignee and his or her heirs, executors, administrators and assigns as

the attorney or attorneys irrevocable of the mortgagor under and with all the powers in the mortgage deed granted

and contained
http://www.lawserver.com/law/state/rhode-island/ri-laws/rhode-island-general-lawshttp://www.lawserver.com/law/state/rhode-island/ri-laws/rhode-island-general-lawshttp://www.lawserver.com/law/state/rhode-island/ri-laws/rhode-island-general-lawshttp://www.lawserver.com/law/state/rhode-island/ri-laws/rhode_island_general_laws_title_34http://www.lawserver.com/law/state/rhode-island/ri-laws/rhode_island_general_laws_title_34http://www.lawserver.com/law/state/rhode-island/ri-laws/rhode_island_general_laws_title_34http://www.lawserver.com/law/state/rhode-island/ri-laws/rhode_island_general_laws_chapter_34-11http://www.lawserver.com/law/state/rhode-island/ri-laws/rhode_island_general_laws_chapter_34-11http://www.lawserver.com/law/state/rhode-island/ri-laws/rhode_island_general_laws_chapter_34-11http://www.lawserver.com/law/state/rhode-island/ri-laws/rhode_island_general_laws_chapter_34-11http://www.lawserver.com/law/state/rhode-island/ri-laws/rhode_island_general_laws_title_34http://www.lawserver.com/law/state/rhode-island/ri-laws/rhode-island-general-laws


3/54

foreclosure was done in violation of RIGL 34-11-22 it is the obligation of the Court to reverse a

foreclosure regardless of its personal viewpoints. The Court must enforce the law and not

enforce its sense of right and wrong, Instead, this Court has made impossible rulings, time after

time based upon irrational fabricated legal doctrine. Even after it admitted in U.S. Bank National

Association v. Alfaia et al, C.A. NO. PC-2009-2776 (R.I. Super. Ct., August 8, 2013) (Rubine,

J.), which involved the authority of a party to foreclose, this Court

unequivocally decided as a matter of Rhode Island law, that the transfer/negotiation of a

promissory note, such as those in all cases decided by the Superior Court on the MERS Calendar,

is governed by the 6A-3-301, et seq. Specifically, the Court wrote as follows:

To enforce the Note as an obligation under a negotiable instrument, the

party seeking enforcement must be a person entitled to enforcement under

6A-3-301 of the UCC.

Logic dictates that for MERS to be able to comply with 34-11-24, it must be able to

transfer the note and debt secured thereby. MERS has readily admitted that it never holds the

note, owns the note or has the right to enforce the note. This was its own testimony inBucci. It

can never, therefore, negotiate or transfer a promissory note as required by 34-11-24. It cannot

comply with This proves, therefore, that a party that does not hold the promissory note, may not

transfer that note by operation of law because it never complies with 6A-3-301 of the UCC.

For this Court to rule as it did inAlfaiaand rule any other way in any other MERS assignment

case involving the negotiation of a promissory note is ludicrous.

As stated in the above case, the Court must look to the UCC as it relates to Rhode Island

conveyancing statutes, specifically R.I.G.L. 34-11-24 when deciding the issue of the identity of

the actual note holder. The Court cannot now retreat from this sound legal conclusion to support

its former decisions made on the MERS colander and to rule against Langer in this case. To do


4/54

so would be prima facie evidence that this Court is making decisions first and writing opinions to

support those decisions. If this is the practice, it must end now.

Notwithstanding all of the above and the volumes of writings that this Court has simply

ignored them to bootstrap ruling after ruling. The time for bootstrapping is at an end and

quoting the Court, has been put to bed once and for all .

The Defendant states, with no support whatsoever, that the Plaintiff does not have the

ability to allege any failure by the mortgagee of record to comply with the Rhode Island

Statutory Foreclosure process, Plaintiff instead is attempting to challenge contract, agreements

and title interests to which he is neither a party nor a third party beneficiary. Qui te to the

contr ary, the foreclosure in th is case never took place. I t is void because the assignment of

mor tgage is void. The Defendant claims that the Defendant has the right to assign the mortgage

and enforce the statutory power of sale. It citesBucci, Porter v. First NCL Financial Services,

No. PC-10-2526, 2011 R.I. Super. Lexis ( 2011); inPayette v. Mortgage Elec. Registration Sys.,

2011 R.I. Super. Lexis 117 (R.I. Super. Ct. 2011); and its progeny, namely,Kriegel v. Mortgage

Elec. Registration Sys., 2011 R.I. Super. Lexis 134 (2011) for that proposition. It also cites

Rutter v. Mortg. Elec. Registration Sys., 2012 R.I. Super Lexis 39 (2012). Even theRutter

decision, written by the learned Judge Silverstein ruled, based upon the erroneous ruling of the

MERS Court, that the Rutters did not have standing to challenge the assignment of Mortgage

from MERS to another party. It is clear, based upon the Cosajay ruling, that theRutter Court

was also mistaken in relying on the previous rulings of the MERS Court regarding standing.

In further regard toRutter, the Court found that even if there was standing to challenge the

assignments, it did not matter because the mortgage gave MERS the right to assign. That may

well be true. MERS may very well have the power and right to assign, but only when it holds


5/54

the note and debt as required by RIGL 34-11-24. This was never addressed by theRutter

Court.3TheBucciCourt never addressed assignments. ThePorterCourt never addressed

assignments. TheKriegelDecision has been totally deconstructed (See attached) as has Payette,

The publishedDeconstruction of KreigelandPayettewas not intended to insult the Court but to

point out in great detail the errors that he Court had made in those cases. They were intended to

be learning tools and not written attacks on the Court itself. TheDeconstruction of Kriegeland

Payette did not please the Court, but one thing is certain, those decisions, when placed under the

microscope, reveal that they are error laden beyond reclamation and should not even be

considered by this or any other Court. This attorney has been scolded for being truthful

regarding these cases, but it is time for the Court to come to terms with its errors. A final

comment regarding Rutter is that it does not address RIGL 34-11-24 and it was wrong in regard

to Eaton, which was fully adopted by the Rhode Island Supreme Court. Further, it echoed the

personal feelings of the Justice in the Porter Court when it wroteNo holding of this Court should

invalidate the foreclosure, which [borrowers] agreed would ultimately be the consequence of

nonpayment of the mortgage loan."Porter,2011 WL 1251246,slip op. at 6. This matter, as all

of the matters before the MERS court are based upon statutory compliance, not the moral

compass of the Justices deciding these cases. If it were about morality, it is hard to believe that

any Justice could ever rule for the banks, most of which have admitted liability for foreclosure

fraud and misdeeds related to the foreclosure process.

The Defendants go on to argue that the Plaintiff does not have standing to contest an

assignment of mortgage. Again, the Defendants rely onPayette, however on November 5,

3It is important to point out the RutterCourt also RejectedEaton, and predicted that it would not be adopted by the

Massachusetts SJC. In fact, it was adopted by the Rhode Island Supreme Court inBucci. It is also clear that the

Rutter Court incorrectly rejected the CulhaneRuling which was later adopted by the RI Supreme Court and which

formed the basis for the Decision of the District Court in the CosajayMemorandum and Order.
http://scholar.google.com/scholar_case?about=80150240322166967&q=Rutter+v.+MERS&hl=en&as_sdt=6,40http://scholar.google.com/scholar_case?about=80150240322166967&q=Rutter+v.+MERS&hl=en&as_sdt=6,40http://scholar.google.com/scholar_case?about=80150240322166967&q=Rutter+v.+MERS&hl=en&as_sdt=6,40http://scholar.google.com/scholar_case?about=80150240322166967&q=Rutter+v.+MERS&hl=en&as_sdt=6,40http://scholar.google.com/scholar_case?about=80150240322166967&q=Rutter+v.+MERS&hl=en&as_sdt=6,40http://scholar.google.com/scholar_case?about=80150240322166967&q=Rutter+v.+MERS&hl=en&as_sdt=6,40


6/54

2013, the United States District Court for the District of Rhode Island, in Cosajay rendered

Payetteand each and every case that this Court has decided based upon a Plaintiffs lack of

standing to challenge assignments wrong. Each and every case that this Court has dismissed or

granted summary judgment based upon lack of standing must be overturned. This Court in

particular relied uponFryzelwhich was the companion case toCosajayto support its erroneous

ruling that Plaintiffs lacked standing to challenge assignments. Fryzel andCosajayare dead and

so, therefore, are each and every ruling made by this Court that relied upon them. This Court

never took the time to put all the puzzle pieces together and now it is left with a mess of pieces

that simply dont fit and that cannot pass judicial muster.

The Defendants at page 3 claim that MERS had the ability to enforce the mortgage by

invoking the statutory power of sale. They citeBucciin support of this proposition. They stop

short, however, of telling the truth. TheBucciCourt did rule that MERS could foreclose, but

only when it held both the mortgage and note or when it was an agent of the note holder. There

is no proof in the affidavit in this case that MERS was the agent of any party. This is especially

true since Homecomings, the entity that MERS claims to be the nominee of at the time of the

alleged assignment, did not exist at the time of the alleged assignment.4 Impossibility seems to

be a concept that runs throughout this matter and which renders this motion untenable.

Further at page 3, the Defendants claim thatBucci,Porter,KreigelandPayette all stand

for the proposition that MERS can assign a mortgage. BucciandPorter never addressed this

issue andKreigelandPayette, both of which are based uponFryzel/Cosajayreport and

recommendation which has now been rejected by the District Court for the State of Rhode

Island, provide no support whatsoever for the argument that mortgagors do not have standing to

4


7/54

challenge assignments. The fact is, as a matter of law, they do have such standing, which

renders scores of decisions made by this Court erroneous.

Further, the Plaintiff has set forth in his affidavit facts that give rise to a genuine issue of

material fact as to whether or not his note is paid in full. Also, his affidavit gives rise to a

genuine issue of material fact as to whether or not the proper notice was given by the proper

party at the proper time. RIGL 34-11-22 is quite specific as to notice and trying to do it right

is not enough. There must be strict compliance with the Rhode Island Conveyance Statute as it

contain predicts in 34-11-1 that must be met. If they are not met, then any document that is

intended to be a conveyance, must strictly comply with the Statute. This is particular true with

RIGL 34-11-22. This Court has stated that in Rhode Island Conveyance Documents, there is

presumptive validity. This is a patently false statement. This Court, in reaching that conclusion,

totally ignores RIGL 34-11-1, et. seq. By doing so, it oversteps its bounds and attempts to act

as the legislature. That is pure error and even more so, it is dangerous to the Republic and

Democracy.

THERE ARE GENUINE ISSUES OF MATERIAL FACT IN DISPUTE

It is true that on October 13, 2005 a mortgage was executed in favor or MERS in it

alleged capacity as nominee of Homecomings. On February 28, 2011, six years after the

mortgage was executed, Homecomings no longer existed. This being the case, MERS could not

be the nominee of Homecomings as it claims on the Corporate Assignment. The assignment

did not claim to be executed by MERS in favor of any party buy Homecomings. It did not

mention successors and assigns. This being the case, this Mortgage is trapped in MERS.

While this is an absolute, rendering a foreclosure impossible at this time, Mr. Langer

does continue to reside in the property. It is also true that Aurora sought to evict Mr. Langer,


8/54

based upon a VOID foreclosure document. It is true that an agreement for judgment was entered

and an appeal taken. It is common practice for the District Court not to hear title actions and in

essence, it forces agreements and appeals. That is what took place in this case. It is true that

Mr. Langer was sent a notice to vacate and then served with process regarding an eviction. It is

interesting to note that more care was taken by Aurora in its efforts to evict that in the entire

mortgage/assignment/foreclosure process.

The only evidence submitted to this Court that should be considered by this Court is

the affidavit of Laura McCann, however, it is clear that she signed the Affidavit in her personal

capacity and not in any other capacity. The Notary Clause, which is quite detailed, states all

kinds of things about this woman but there is never any acknowledgment that Laura McCann, the

individual is known to the notary. This Court is not free to read into the acknowledgment to

conclude that the Affidavit was signed by McCann in any capacity other than her personal

capacity.5 Looking at the affidavit, it is clear and beyond challenge that she signed a Laura

McCann. She does not identify herself as an officer of any corporation or as an agent of any

other entity. The Colorado Notary Clause claims that she signed as Vice President of Aurora

and other capacities. That is nice, but the fact is she signed as Laura McCann and that fact

cannot be escaped. Thus, this alleged affidavit is not duly signed by Aurora or any other entity

and it is not duly acknowledged. This renders the affidavit void as a matter of law. Once again,

this issue any inferences that emanate therefrom must be drawn in favor of Mr. Langer.

As this Court will recall, MERS was the alleged Nominee of the failed Homecomings.

The Affidavit of McCann mentions Homecomings at paragraph 7. No mention is ever made

5After paragraph 15 of the personal affidavit of Laura McCann, it is simply signed by Laura McCann, the

individual. There is nowhere on the alleged affidavit that Laura McCann claims to be signing on behalf of

anyone but herself. The Court cannot infer anything in favor of the Moving Party and must disregard this entire

affidavit.


9/54

how this loan, including the note, ever came to be in the possession of or owned by Aurora.

There is reference to the assignment, but the alleged assignment was void as a matter of law.

The fact that Laura McCann states a legal conclusion does not make it so. The assignment, for

all of the reasons set forth herein, is void as a matter of law. This Court knows that RIGL 34-

11-24 requires that when an assignment is made that the assignor also transfers the note and debt

secured thereby. Laura McCann offers no evidence at all relative to the multiple endorsements

on the note and the Alonge. That is because she has no knowledge regarding the travel of the

note. The absence of any mention of the note and the alleged endorsements proves that beyond

doubt. This Court must infer from the absence of any mention of the aforesaid that she has no

knowledge of the aforesaid.

This Court should consider what actually happened and not allow this affiant, who claims

no knowledge relative to the travel of the note, to sway its judgment. In fact, to do so would

violate the clear and concise language of Rule 56 of the Rhode Island Rules of Civil Procedure.

The Note was originally made payable to Homecomings Financial Network, Inc., on

October 13, 2005. Paragraph 7 of the affidavit states that the note attached to her affidavit is a

true and accurate copy of the original note. That is not true. The note attached contains

multiple marks on page 5. The Defendant has clearly stated that it is not the same note. Further,

there is also an alleged Alonge attached that is not mentioned at all by the Affiant. The Court

cannot infer anything from the documents in favor of the moving party as all inferences must be

drawn in favor of the non-moving party.

The Affiant does not offer any testimony relative to the alleged endorsements on the Note

and the alleged Alonge. There is no evidence, therefore, before the Court, that proves if and

how the note allegedly travelled after its execution in favor of Homecomings. It is actually


10/54

funny to note that the Affidavit and memorandum of the Defendant is totally silent on the issue

of how Residential Funding Corporation and how Deutsche Bank figure into this matter and the

foreclosure. Without any explanation of these endorsements, there exist genuine issues of

material fact relative to the travel of the note and the mortgage itself. The affiant never states

that the note was indorsed by Homecomings or if it was, how it was indorsed. Was it indorsed in

blank and then filled in by Residential Funding Corporation or specifically indorsed to

Residential Funding Corporation.6 ?There is certainly no evidence at all that regardless of how it

was indorsed, that it was ever delivered to Residential Funding Corporation. These are all

genuine issues of material fact and this Court cannot fill in the blanks for the moving party.

The alleged endorsement from Homecomings to Residential is not dated. The affidavit is

silent as to the date of execution. This is a genuine issue of material fact. There is no proof

whatsoever that Debra Eshelman is an assistant secretary of Homecomings.

The alleged endorsement from Residential to Deutsche7is not dated and never mentioned

by the affiant. There is no proof as to when it allegedly was affixed to the note and whether or

not Judy Faber is a Vice President of Deutsche Bank Trust Company of America., as Trustee.

Further, as Trustee of what? As usual, all of the financial institutions involved in the theft of

property by way of foreclosure like to keep things somewhat amorphous and never clear and

concise. It is unfortunate that the Court has allowed them to get away with it over and over and

over again because of its distaste for Plaintiffs who have not paid their mortgages current.

Personal feelings such as this8have no place in this American System of Justice. If judges cant

separate their personal feelings from the cases before them, they should be in another profession.

6Residential Funding Corporation is a stranger to the title to this property. (See Affidavit of Alberta Nota)7Deutsche is a stranger to title to this property. (See Affidavt of Alberta Nota)8Porter


11/54

There is then a page with backwards writing on it. The Plaintiff feels that this speaks for

itself. If it is copy bled, why did only this alleged endorsement bleed through and not the one

below it. It is as if Houdini works for the banks involved in this case. This is, of course, an

idiom written to drive home the point that these documents are very suspect with what appear to

be magical properties.

There is then the issue of the Note Allonge. This document is also undated. Also, the

affiant never mentions that Deutsche ever held the note in this case. Further, it is unclear

whether or not it is actually signed by any person affiliated with Deutsche Bank. As stated,

there is no mention of an allonge in the affidavit. Finally, on the Allonge, there is written that

Deutsche signed the Allonge pursuant to a power of attorney. There is no power of attorney

attached to the allonge and there is no power of attorney in the chain of title.

All of these unaccounted for transactionsmost certainly create genuine issues of

material fact relative to the propriety of the assignment and the foreclosure. There is no way to

meet the Bucci standard unless the Defendant can prove that it held both the note and

mortgage at the time of foreclosure and that the assignment of mortgage is valid when measured

by 34-11-1. If the assignment is void, so must be the foreclosure.

This Court has ruled that when an assignment is done by MERS, the note and debt are

also transferred. In this case, the assignment took place long after Homecomings had gone

bankrupt. There was no note to transfer. The alleged endorsements are not dated. There are

endorsements that take place absent an assignment of mortgage.

When all of the facts are taken together and viewed in the light most favorable to Langer,

this Court must deny the motion for summary judgment. The mortgage was never in

Residential. The mortgage was never in Deutsche. These are huge holes in the chain of title


12/54

that have not been addressed or explained by the affiant. This dictates against summary

judgment.

Turning to Exhibit D, it is dated 9/21/11. It does not contain any identifying headings or

footers from which one could derive its source. A review of the transactions on this unidentified

document reveals that Langer had paid Private Mortgage Insurance as part of his loan payments.

The purpose of that insurance was to pay the lender in the event of default. The customer

activity statement clearly reveals that there were mortgage insurance disbursements yet there are

no entries on the account summary showing that any payments were ever made. If payments

had been made, then clearly the amount due or which may have been due, would be quite

different that which is being claimed. The amount that was allegedly in default and the ultimate

issue of whether or not the note has been paid by virtue of Ms. Langers PMI insurance or by the

another party is a genuine issue of material fact.

It is alleged that Aurora Loan Services mailed a notice of default to Langer on October

26, 2010 but there is no proof that Langer was ever notified that Aurora had become his loan

servicer. The affiant claims that the assignment took place to Aurora on February 28, 2011.

This begs the question, if the assignment did not take place until 2011, how did Aurora have

standing to declare default before it had any interest in the mortgage or note? This too is a

genuine issue of material fact.

ARGUMENT

STANDARD OF REVIEW

Rule 56(c) provides that summary judgment shall be rendered if there is no genuine

issue as to any material fact and that the moving party in entitled to judgment as a matter of law.


13/54

Because Summary Judgment is an extreme remedy, it must be applied cautiously.

Golderese v. Suburban Land Co., 590 A.2d 395 (R.I. 1991). This same position was espoused by

the Rhode Island Supreme Court inMcPhillips v. Zayre Corp., 582 A.2d 747 (RI 1990).

InPalmisciano v. Burrillville Racing Ass'n, 603 A.2d 317 (R.I. 1992), the Rhode Island

Supreme Court held that In respect to a motion for summary judgment, the Court does not pass

upon the weight or the credibility of the evidence, but must consider the affidavits and other

pleadings in the light most favorable to the party opposing the summary judgment.

Further, it is crystal clear that the Courts role in deciding a Motion for Summary

Judgment is a limited one. In Saltzman v. Atlantic Realty Co., 434 A.2d 1343 (R.I. 1981) the

Rhode Island Supreme Court held that The purpose of summary judgment is to issue finding,

not issue determination. This holding was upheld by the Supreme Court in Capital Properties,

Inc, v. State, 749 A.2d 1069 (1999). This Court should not go beyond fact finding and has

engaged in fact determination. These Plaintiffs demand that the Court not do the same in this

case and points to the case of GMAC v. Johnson, 746 A.2d 122 (R.I. 2000).

Specifically, in Takian et al. v. Rafaelian, et al. v. Takian, et al., No. 2010-372-Appeal,

Supreme Court of Rhode Island, 2012 R.I. LEXIS 102 (June 29, 2012), the Rhode Island

Supreme Court wrote as follows:

"[S]ummary judgment should occasion the termination of a case only where it is

absolutely clear `that no genuine issue of material fact exists and that the moving

party is entitled to judgment as a matter of law.'"Estate of Giuliano, 949 A.2d at

394. "The judge's belief that one scenario is more probable than the other is not a

legally sufficient reason to grant a motion for summary judgment." McPhillips,582 A.2d at 750. Although a motion justice entertaining such a motion may

"search for the existence of factual issues," he or she "may not determine them * *

* nor may the trial justice assess the weight or the credibility of the evidence." Id.

at 749. Those duties fall within the province of a fact-finder. SeeAnderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) ("Credibility determinations, the

weighing of the evidence, and the drawing of legitimate inferences from the facts


14/54

are jury functions * * *."). Therefore, we vacate the judgment of the Superior

Court on plaintiffs' motion for summary judgment with respect to counts 2, 3, 4,

5, 6, and 8 against Charles and Marguerite Takian.

InButler v. McDonald's Corp.,110 F. Supp. 2d 62 (D.R.I. 2000), this court held as

follows:

On a motion for summary judgment, the court must view all evidence and related

inferences in the light most favorable to the nonmoving party. When the facts

support plausible but conflicting inferences on a pivotal issue in the case, the

judge may not choose between those inferences at the summary judgment stage.

Similarly, summary judgment is not appropriate merely because the facts offered

by the moving party seem more plausible, or because the opponent is unlikely to

prevail at trial. Summary judgment is only avail able when there is no dispute as

to any material fact and only questions of law remain.Additionally, the moving

party bears the burden of showing that no evidence supports the nonmoving

party's position. [Emphasis added].

The trial justice cannot make unsupported findings of fact when deciding a Motion for

Summary Judgment. InMcConaghy v. Sequa Corp.,294 F. Supp. 2d 151 (D.R.I. 2003), the

Court held that findings of fact are improper at the Summary Judgment stage of a trial. It

specifically stated as follows:

The function of a judge facing a motion for summary judgment is not to make

findings of fact, but rather, to determine whether there are genuine issues of

material fact remaining for trial. When ruling on a motion for summary judgment,

there is no room for credibility determinations, no room for the measured

weighing of conflicting evidence such as the trial process entails, no room for the

judge to superimpose his own ideas of probability and likelihood. A judge

deciding such a motion should not invade the province of the trier of fact by

weighing the evidence or making credibility determinations. Instead, it is theresponsibility of the trial judge to determine whether a reasonable trier of fact

could find for the nonmoving party based on the admissible evidence. After

ascertaining what material facts are actually and in good faith controverted, Fed.

R. Civ. P. 56(d) requires the hearing judge to make an order specifying the facts

that appear without controversy so that these specified facts can be deemed


15/54

established, thus limiting the issues for trial to those where a genuine issue of

material fact remains.

By weighing the evidence and formulating these conclusions, this writer's

predecessor did not determine what issues remained controverted between the

parties, but instead attempted to resolve these issues finally. Such a determinationremains within the province of the trier of fact and beyond the realm of summary

judgment determinations. Because these determinations amount to nonessential

findings of fact, and because they do not relate to the legal issues actually decided

by Judge Strand, this Court concludes that they are dicta, and thus cannot not

consider them the law of the case. As a result, the Sequa Defendants are not

entitled to summary judgment on Counts III and VI on law of the case grounds.

In the case at hand, the identity of the note holder, the existence of an agency relationship

between the parties, the validity of the assignment and the validity of the foreclosure are all

genuine issues of material fact that must be decided at a trial by the jury which, therefore,

requires denial of the Motion for Summary Judgment.

THE PLAINTIFFS HAVE STANDING TO CHALLENGE THE VALIDITY OF A

FORECLOSURE OF THEIR HOME

In Culhane v. Aurora Loan Servs. of Neb.,708 F.3d 282 (1st Cir. Mass. 2013), the First

Circuit Court of Appeals addressed the issue of whether Plaintiffs have standing to challenge the

validity of a foreclosure of their property and held a mortgagor has a legally cognizable right to

challenge a foreclosing entity's status qua mortgagee.

In order to address the standing issue raised by the Defendants and this Court, it is

necessary to analyze the decision inCulhaneand the law applied by the Appellate Court therein

when determining the issue of standing as it applies to this case and all other similar cases before

this Court.

Defendants have erroneously argue that this Court cannot follow the holding in Culhane

because the First Circuit Court of Appeals did not decide the issue of standing based on Rhode

Island law but based on Massachusetts law which does not apply to the case before this Court.


16/54

Even a cursory review of Culhane evidences that this contention is nothing more than

whole cloth.9 The Court in Culhanebased its standard for determining standing upon the

decision ofLujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (U.S. 1992) rendered not on

Massachusetts law as contended by Defendants but by the United States Supreme Court:

The essence of standing is that a plaintiff must have a personal stake in the

outcome of the litigation.Ramrez v. Snchez Ramos, 438 F.3d 92, 97 (1st Cir.2006). To fulfill this personal stake requirement, the plaintiff "must establish each

part of a familiar triad: injury, causation, and redressability."Katz v.

Pershing, LLC,672 F.3d 64, 71 (1st Cir. 2012) (citingLujan v. Defenders of

Wildlife,504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992)). We

exami ne these three elements as they relate to this l i tigation. [Emphasis added].

InLujan, the United States Supreme Court set out a specific three-prong test for

determining the issue of standing:

Over the years, our cases have established that the irreducible constitutional

minimum of standing contains three elements. First, the plaintif f must have

suf fered an " in jury in f act" -- an invasion of a legall y protected interest which

is (a) concrete and parti cular ized, see id., at 756; Warth v. Seldin,422 U.S. 490,

508, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975); Sierra Club v. Morton, 405 U.S.

727, 740-741, n. 16, 31 L. Ed. 2d 636, 92 S. Ct. 1361 (1972); and (b) " actual or

imminent, not 'conjectural' or ' hypothetical,'" Whitmore, supra, at 155 (quotingLos Angeles v. Lyons,461 U.S. 95, 102, 75 L. Ed. 2d 675, 103 S. Ct. 1660

(1983)). Second, there must be a causal connection between the injur y and the

conduct complained of -- the in ju ry has to be " fair ly . . . trace[able] to the

chall enged action of the defendant, and not . . . the resul t [of] the independent

action of some thi rd party not before the cour t." [*561] Simon v. Eastern Ky.

Welfare Rights Organization, 426 U.S. 26, 41-42 (1976). Thi rd, it must be

" li kely," as opposed to merely " speculative," that the inj ury wil l be " redressed

by a favorable decision."Id., at 38, 43. [Emphasis added]

In examining the family triad of injury, causation and redressability as the three-

prong test to establish standing as outlined inLujan, the Court in Culhane10determined that the

Plaintiffs cause of action met all three requisites to establish standing:

9Whole cloth-complete fiction or fabrication. Merriam Webster Dictionary. In any event, the Cosajay

Memorandum and Order settles this issue.10Culhane has been determined to apply to Rhode Island by Judge McConnell.


17/54

1. As to injury, the court found The foreclosure of the plaintiff's home is

unquestionably a concrete and particularized injury to her.

2. As to causation, the court stated there is a direct causal connection between the

challenged action and the identified harm. The action challenged here relates to Aurora's

right to foreclose by virtue of the assignment from MERS. The identified harmthe

foreclosurecan be traced directly to Aurora's exercise of the authority purportedly

delegated by the assignment.

3. As to redressability, the court determined We are confident that a determination

that Aurora lacked the authority to foreclose would set the stage for redressing the

plaintiff's claimed injury. Her complaint, at least in part, prays for monetary damages as a

means of ameliorating the asserted wrong. No more is exigible.

The Rhode Island Supreme Court also recognized that the proper test for a determination

of standing was the three-prong test set out by the United States Supreme Court inLujan.In

Pontbriand v. Sundlun, 699 A.2d 856, 859-862 (R.I. 1997), Lujan was cited by the Rhode Island

Supreme Court:

In Rhode Island Ophthalmological Society v. Cannon, 113 R.I. 16, 317 A.2d 124(1974), we discussed our requirements for standing in light ofAssociation of Data

Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S. Ct. 827, 25

L. Ed. 2d 184 (1970), and held: "It is our belief that standing can now bedetermined by our adoption of the first of the Data Processing criteria. The

question i s whether the person whose standing is chal lenged has all eged an

in jury in fact resul ting from the challenged [act]. I f he [or she] has, he [or she]

satisfies the requir ement of standing." Cannon,113 R.I. at 26, 317 A.2d at129.We described our standing requirement as "whether the plaintiff alleges that

the challenged action has caused him injury in fact, economic or otherwise." Id. at

22, 317 A.2d at 128 (quoting Camp, 397 U.S. at 152, 90 S. Ct. at 829, 25 L. Ed.

2d at 187). Sometimes referred to as the "injury in fact" requirement, see, e.g.,Cannon, 113 R.I. at 23, 317 A.2d at 128, this has been described by Justice

Scalia in an oft-quoted passage as "an invasion of a legally protected interest

which is (a) concrete and particularized * * * and (b) actual or imminent, not'conjectural' or 'hypothetical.'"Lujan v. Defenders of Wildlife, 504 U.S. 555,


18/54

560, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351, 364 (1992). To this statement we

would add a highly relevant comment from an analogous area of our standing

jurisprudence: " The li ne is not between a substantial in ju ry and an

insubstantial in jur y. The line is between inju ry and no injury." MatunuckBeach Hotel, Inc. v. Sheldon, 121 R.I . 386, 396, 399 A.2d 489, 494 (1979)

(quotingDavis, Matunuck Beach Administrative Law of the Seventies 22.02-10at 507 (1976)). See alsoBlackstone Valley Chamber of Commerce vs. PublicUtilities Commission, 452 A.2d 931, 933 (R.I. 1982). [Emphasis added].

The issue regarding standing in Culhaneis identical to the issue of standing in this case.

As a result, the same analysis that was applied by the appellate Court in Culhane, mandated by

the United States Supreme Court, should be applied and followed by this Court in deciding this

case, namely:

1. that the foreclosure of Plaintiffs home is a concrete and particularized injury to

them;

2. that the action challenged relates to Defendants right to foreclose by virtue of an

assignment and the identified harm-the foreclosure-can be traced directly to

Defendants exercise of the authority purportedly delegated by that assignment;

and

3. that a determination that Defendants lacked authority to foreclose would set the

stage for redressing the Plaintiffs claimed injury.

Based upon United States Supreme Court in Lujan, as adopted by the Rhode Island

Supreme Court inPontbriand, this Court must conclude that Plaintiffs have been injured, that

Defendants conduct has caused the injury and this court has the power to redress Plaintiffs

injury, all resulting in a finding of standing for Plaintiffs.


19/54

THE PLAINTIFFS HAVE STANDING TO CHALLENGE THE MORTGAGE

ASSIGNMENT

Defendants incorrectly argue that Plaintiffs cannot challenge the validity of the

foreclosure of their home because, under Rhode Island law, they lack standing to challenge the

mortgage assignment by which the foreclosing party asserts its rights to foreclose. In so doing,

Defendants fail to correctly cite Rhode Island law to support this contention.

InBucci v. Lehman Bros. Bank,2013 R.I. Lexis 52 (R.I. Apr. 12, 2013), the Rhode

Island Supreme Court held that MERS has statutory authority to foreclose only if it is the record

mortgagee and either the note holder or acting as agent for the note holder. Therefore, the Court,

in placing this requirement of proof of agency on the foreclosing party, has explicitly granted

standing to borrowers to challenge such proof.

Consistent with the holding above, the Rhode Island Supreme Court inBucci found that

Plaintiffs have standing to challenge a mortgage assignment by adopting the holding of Culhane

v. Aurora Loan Servs. of Neb., 708 F.3d 282 (1st Cir. Mass. 2013). Although absent a statutory

analysis of Rhode Island law11

, the Court, after quoting the First Circuit Courts opinion that its

finding in Culhane fit comfortably within the structure of Massachusetts mortgage law, stated

We believe that they [the findings in Culhane] reside comfortably within the law of our state as

well. As such, it is evident that the Rhode Island Supreme Court, by its adoption of Culhanehas

undoubtedly adopted the holding that a mortgagor has standing to challenge the assignment of a

mortgage on her home to the extent that such a challenge is necessary to contest a foreclosing

entity's status qua mortgagee. Culhane,supra. Further, had the Rhode Island Supreme Court

disagreed with any portion of the Culhanedecision, specifically regarding standing, it would

have so limited its holding.

11As this Court is aware, this analysis has now been done relative to Rhode Island Law and the result was the same.


20/54

Further, inBucci, supra, the Rhode Island Supreme Court found that Plaintiffs have

standing to challenge a mortgage assignment by adopting the holding of the Massachusetts

Supreme Court inEaton v. Fannie Mae, 462 Mass. 569 (Mass. 2012). In theEatoncase, MERS,

as nominee of the original lender, Bank United, assigned the mortgage by mortgage assignment

to Green Tree, and the note was endorsed in blank and transferred to Fannie Mae. The Court in

Bucciadopted the holding of the Massachusetts Supreme Judicial Court inEatonand

acknowledged standing for Plaintiffs to challenge the purported authority of the foreclosing party

via the mortgage assignment:

In that case, MERS had assigned the mortgage to another entity that conductedthe foreclosure.Eaton v. Federal National Mortgage Association, 969 N.E.2d

1118, 1122 (Mass. 2012). Although the court held that an entity could foreclose if

it held the mortgage and also either held the note or was act[ing] on behalf of the

note holder, the court remanded the case to the Superior Court to determine ifthere was an agreement that the foreclosing party was in fact acting on the note

holders behalf. Id. at 1134. As stated above, that analysis is unnecessary here

because the parties, by accepting the Marchant affidavit, have agreed that anagency relationship was in place.

In holding that MERS, as the foreclosing party, must be the mortgagee and the note

holder or acting on behalf of the note holder, explicitly acknowledged that the only avenue for a

Plaintiff to challenge the purported authority of a party to foreclose is to challenge the very

vehicle which grants the alleged authority to foreclose-the mortgage assignment. The Rhode

Island Supreme Court established standing for Plaintiffs by holding that had there not been an

agreement by the parties assenting to the agency relationship between Aurora and MERS, it

would have remanded the case to the Superior Court to determine the existence of such an

agency relationship.

In addition, Defendants have mistakenly cited the decisions of the Rhode Island Superior

Court inPayette v. Mortgage Elec. Registration Sys.,2011 R.I. Super. Lexis 117 (R.I. Super. Ct.


21/54

2011); and its progeny, namely,Kriegel v. Mortgage Elec. Registration Sys., 2011 R.I. Super.

Lexis 134 (2011);Porter v. First NCL Financial Services, No. PC-10-2526, 2011 R.I. Super.

Lexis ( 2011);Rutter v. Mortg. Elec. Registration Sys., 2012 R.I. Super. Lexis 39 (2012); Gray v.

Mortgage Elec. Registration Sys., 2012 R.I. Super. Lexis 173 (2012);Breggia v. Mortg. Elec.

Registration Sys.,2012 R.I. Super. Lexis 52 (2012); to support their contention that Plaintiffs do

not have standing to challenge an assignment of mortgage. Interestingly, Defendants demand that

this Court reject the holding in Culhane, supra, because it is based on Massachusetts law while

failing to advise this Court that the very cases they rely upon to support their contention that

Plaintiffs do not have standing to challenge mortgage assignments, namelyPayetteand its

progeny, are based on either non-binding precedent or case law from every other jurisdiction but

Rhode Island:

Homeowners lack standing to challenge the propriety of mortgage assignments

and the effect those assignments, if any, could have on the underlying obligation.Fryzel v. Mortgage Elec. Registration Sys., et al, No. 10-352M, 2011 U.S. Dist.

LEXIS 95114 (D.R.I. June 10, 2011) (citing, inter alia, Livonia Props. Holdings,

L.L.C.v. 12840-12976 Farmington Rd. Holdings, 717 F. Supp. 2d 724, 747

(E.D. Mich. 2010); Turner v. Lerner, Sampson, & Rothfuss,No. 1:11-CV-00056,2011 U.S. Dist. LEXIS 41364 (N.D. OhioApr. 11, 2011);Bridge v. Aames Cap.

Corp., No. 1:09 CV 2947, 2010 U.S. Dist. LEXIS 103154 (N.D. OhioSept. 29,

2010);Jarbo v. BAC Home Loan Servicing, No. 10-12632, 2010 U.S. Dist.LEXIS 132570 (E.D. Mich. Dec. 15, 2010)); see also Sharon McGann

HorstKamp, MERS Case Law Overview, 64 Consumer Fin. L.Q. Rep. 458

(Winter 2010). This Court agrees and finds that Plaintiffs do not have standing toattack the foreclosure on these grounds.[Emphasis added].Payette, supra.

Notwithstanding the fact thatFryzelwas dismissed and Cosajay has now been decided in

an adverse manner to how this Court has been ruling for the past three (3) years, this Court was

never justified in relying onFryzel, but must instead turn its attention to the holding in the

seminal case ofMathews, Secretary of Health, Education and Welfare v. Weber,423 U.S. 261


22/54

(1976), where the United States Supreme Court interpreted the Federal Magistrates Act, 28

U.S.C. 631 to read that a Magistrates recommendation has no presumptive value:

The magistrate gives only a recommendation to the judge.The magistrate may

do no more than propose a recommendation, and neither 28 U.S.C.S. 636(b) northe General Order gives such recommendation presumptive weight. The districtjudge is free to follow it or wholly to ignore it, or, if he is not satisfied, he may

conduct the review in whole or in part anew. The authority - and the responsibility

to make an informed, final determination, we emphasize, remains with thejudge.

Mathews v. Weber has been ci ted in eigh t thousand two hundr ed ten cases [emphasis

added] by courts throughout the country, including innumerable times by various United States

District Courts and the First Circuit Court of Appeals, when deciding the role of Magistrates and

the weight to be given to their recommendations. It is also important to note that the Report and

Recommendation of the Magistrate inFryzelwas rendered prior to the deciding ofBucciby this

Court,Eatonby the Massachusetts Supreme Court and Culhaneby the First Circuit Court of

Appeals.

Further, this Court has previously based its decisions on holdings in cases that have been

altered by the various state Supreme Courts. Since the deciding of previous cases by this Court,

the Rhode Island Supreme Court rendered its decision inBucci v. Lehman Bros. Bank, 2013 R.I.

LEXIS 52 (R.I. Apr. 12, 2013) which overruled the lower court holding. InBucci, MERS was

named as nominee for Lehman Brothers Bank. LaSalle Bank was the holder of the note and

Aurora was the servicer at the time of the foreclosure by MERS. The lower court held The

current beneficial owner of the Note is a "successor or assign" of Lehman. Therefore, MERS is

the mortgagee as the nominee for the current beneficial owner of the Note. The Rhode Island

Supreme Court in its holding inBuccioverruled the lower court by requiring that the foreclosing


23/54

party be the mortgagee and note holder or an agent acting on behalf of the note holder.12

The

issue of MERS being an agent of LaSalle was found to have been stipulated to by the parties and

therefore was not an issue. Therefore, the blanket catch all holding of this Court that the

foreclosing party is the nominee for all subsequent parties and note holders, without a factual

determination of an agency relationship, has been overruled by the Rhode Island Supreme Court.

In addition, all Defendants rely uponIn re Huggins, 357 B.R. 180 (Bankr. D. Mass.

2006). InIn re Hugginsthe Massachusetts Bankruptcy Court held that MERS could foreclose

because it was nominee of the mortgagee and, therefore, the note holder for any party holding the

note. The Massachusetts Supreme Court overruled that holding inEaton v. Fannie Mae,462

Mass. 569 (Mass. 2012) by holding as follows:

the meaning of the term "mortgagee" in Mass. Gen. Laws ch. 183, 21 andMass. Gen. Laws ch. 244, 14 referred to the person or entity then holding the

mortgage and also either holding the mortgage note or acting on behalf of the note

holder. Contrary to the conclusion of the superior court, the statutes permitted amortgagee, although not the note holder itself, to act as the authorized agent of the

note holder. The superior court's decision on the preliminary injunction did not

consider the question of the mortgagee's authority to action on behalf of the note

holder in initiating the foreclosure proceedings. Therefore, remand wasnecessary.

As a result of the overturning ofIn re Huggins,supra, and the lower court decision of

Bucci, the case law and reasoning relied upon by this Court must be reexamined based on the

new case law and reasoning therein.

Further, the Defendants have repeatedly and erroneously relied upon the decision of

Brough v. Foley13, 572 A. 2d 63 (R.I. 1990) and have misrepresented its conclusion to support

12 InBucci,supra, this Court held that whether an agency relationship existed between MERS and the foreclosing

party was not an issue because the parties had stipulated to that fact by way of an affidavit entered into the record.

There is no such admission in this case, and, therefore, whether an agency relationship exists is a genuine issue of

material fact.13Judge McConnell made special mention of Brough v. Foley in the Cosajay Memorandum and Order.


24/54

their contention that Plaintiffs do not have standing to challenge the mortgage assignment. In

Brough, the party seeking to challenge the real estate agreement was a complete stranger to the

transaction and to the title to the property. The Plaintiffs inBroughwere not the original owners,

were not involved in the original option to purchase and had no rights of redemption or any other

rights in or to the property. In the case at hand, the Plaintiffs are the original owner of the

property, are a party to the original agreement, i.e., the mortgage, and have a right of redemption

to the property.

Despite the fact that the Federal Court has already spoken as to why Brough does not

carry the day for MERS defendants, it is worth writing that when correctly applied,Brough

supports the fact that Plaintiffs have standing to challenge the mortgage assignment. The position

of the Plaintiffs in this case is analogous to that of the party holding the right of first refusal in

Brough. Eldacare, Inc. held the right of first refusal granted by the original contract. Had

Eldacares interest in the property been violated,Eldacare would have had standing to challenge

the conveyance of the subject property to a subsequent owner because it retained an interest in

the property via the right of first refusal. Here, the Plaintiff is a party to the original mortgage,

and therefore, retains the right to redeem the property from the mortgagee. As such, he has

standing to challenge the validity of a conveyance of an interest in the subject property to another

party via the mortgage assignment.

Broughinvolved an option to purchase real estate which is not a conveyance and is not

subject to R.I.G.L. 34-11-1. Whereas, in the case at bar, the assignment of mortgage is a

transfer of a future interest in real estate which is subject to R.I.G.L. 34-11-1. The specific

mandates of this statute governing conveyances are discussed further within.


25/54

To apply the facts and holding inBroughin any other fashion would lead to an absurd

and an incorrect application of Rhode Island law. When the Rhode Island Supreme Court

decidedBroughit never intended the decision be used as a shield against fraud.

Most importantly, on November 5, 2013, Judge John J. McConnell, United States District

Judge for the District of Rhode Island issued a memorandum and order in the matter of Cosajay

v. MERS, Inc., et al. This Court is intimately familiar with the CosajayReport and

Recommendation and its sister case,Fryzel v. Mortgage Elec. Registration Sys., et al, No. 10-

352M, 2011 U.S. Dist. LEXIS 95114 (D.R.I. June 10, 2011). In fact, this Court began citing

Fryzel inPayetteand has not stopped citingFryzelin nearly every decision it has rendered on

the MERS calendar for two full years. This despite the fact that both CosajayandFryzel were

nothing more that Reports and Recommendations that had no precedential value.

Judge McConnell REFECTED the Report and Recommendation and denied the

Defendants Motion to Dismiss based upon their claim that they lacked standing to bring the

lawsuit against the Defendants. As this Court knows, Plaintiffs in the MERS Court have argued

for many months that the holding in Culhane v. Aurora Loan Services of Nebraska,708 F.3d

282, 289-90 (1st. Cit. 2013) established that Rhode Island Residents did have standing to

challenge assignments of mortgages. This Court went out of its way to ignore the powerful and

clear language of the First Circuit in Culhane, Id and continued to wrongly deny mortgagors

standing to challenge standing relying on contract law and not on the law of conveyencing and

the Rhode Island Statute that controls conveyancing, to wit; 34-11-1, et seq. This Court must

now stand corrected.

In Cosajay, the District Court conducted a de novo review of a magistrate judges

decision on a dispositive motion. See Fed. R. Civ. Pro. 72(b). As theCosajayCourt wrote


26/54

[D]uring this review, the Court may accept, reject, or modify the recommended disposition;

receiver further evidence or recommit the matter to the magistrate judge with instructions. Id

The CosajayCourt framed the matter before it quite succinctly. It wrote The question

before this Court in this case is a singular onedoes Ms. Cosajay have standing to bring her

complaint against these Defendants? Judge McConnell went on to wrote The Magistrate

Judge answered this question in the negative, finding that because Ms. Cosajay was not a party to

the assignment agreement, she does not have standing to assert legal rights based on [those]

documents. (ECF No. 21 at 25 CitingBrough v. Foley, 525 A. 2d 919, 921-922 (R.I. 1987)).)

Based upon the above, this Court can come to no other conclusion than Plaintiffs have

standing to challenge the mortgage assignment that is the avenue by which Defendants claim

their authority to foreclose. Judge McConnell wrote further that [t]he Magistrate Judge found

that Ms. Cosajay laced privity to the assignment, where privity to the contract was deemed

indispensable to a standing determination.

Unlike this Court which has adamantly refused for two years plus to undertake a

standing inquiry, the District Court did just that. This Court simply adopted a report and

recommendation that had no precedential effect to decide against scores and scores of Plaintiffs

allowing banks and servicers to take their real estate and never receiving a hearing or any form

of due process. Those days are over.

In an effort to assist this Court, this Plaintiff points to the Standing section of the Cosajay

Memorandum and Order. This Plaintiff need not recite word for the word the content of the

opinion and it assumes that this Court has or will read the entire Cosajay document since it has

been blindly following the Cosajay Report and Recommendation for the past two years, never

taking the time to undertake its own analysis of the standing issue.


27/54

This Court has been provided with reams of paper containing hundreds of cases in

support of the standing argument. This Court would be hard pressed to point to one of its

decisions where it even makes reference to a single case cited by the Plaintiffs on the MERS

calendar regarding standing. As stated earlier, this Court simply ignored the language in

Culhanewhere the 1stCircuit found that foreclosure of a home is unquestionably a concrete

and particularized injury and found a direct causal link between the challe nged foreclosure and

to redressing the borrowers claimed injury. Culhanewent on to say that [I]f the Court were

to find the Defendants lacked authority to foreclose, the borrowers injuries can be redressed

through equitable relief and compensatory damages. This Court has refused to even consider

that Plaintiffs that are foreclosed upon where there is a void assignment, no endorsement on a

note or improper notice. After Culhaneand its clear and concise language, based upon the

United States Constitution, this Court continued to rely uponFryzel andCosajayto the detriment

of each and every Plaintiff that it ruled against.

As this Court should know, since it was made crystal clear by the First Circuit in

Culhane, a borrower/mortgagor has a legally cognizable right under state law to ensure that any

attempted foreclosure is conducted lawfully, especially where, as here, the mortgage contains a

power of sale and the states law permits foreclosure without prior judicial authorization. The

MERS Court simply ignored Culhane. Even though it wrapped its arms around a mere report

and recommendation to literally cause the collapse of family after family in Rhode Island, it

chose to ignore a clear, concise and applicable order and decision from the First Circuit Court of

Appeals. The agenda of this Court is clear and has been sincePorterwhen it stated that it

would never reverse a foreclosure. This agenda has been flawed since inception and must be

changed once and for all based upon the CosajayMemorandum and Order.


28/54

To be clear and necessarily redundant, the First Circuit rejected that concept14

, holding

that a non-party mortgagor has standing to raise certain challenges to the assignment of her

mortgage. In this case, the moving party has claimed that based upon the Plaintiffs lack of

standing to challenge the void assignment in this case, this Court should grant summary

judgment. This Court can no longer useFryzeland Cosajayas go to casesto support its

erroneous decisions based upon lack of standing.

The First Circuit has followed the rationale in Culhanein another recent decision when in

reiterated that standing may be appropriate even where a mortgagor is not party to, nor

beneficiary of, the challenged assignments. Woods v. Wells Fargo Bank, NA,No. 12-1942,

2013 WL 5543637, at *3 (citing Culhane, 708 F.3d at 829). Culhanewas not an anomaly, it is

the law of the land. Fryzel and Cosajayare, once and for all, dead and buried and each and

every decision based upon them must be considered incorrect and must be reversed.

Certainly, this Court cannot grant a summary judgment on this case based upon them

unless it decides to cling to the carcasses of CosajayandFryzel.

The District Court directly addressed the Defendants further reliance onBrough v.

Foley, 525 A.2d at 922 (cite) and found that it to be unpersuasive. The Cosajay Court wrote that

The First Circuit in Culhanerecognized that a non-party who does not benefit from a contract

generally lacks standing to assert rights under that contract. Almond v. Capital Props. Inc., 212

F.3d 20, 24 & n.4 (1stCir. 2000). In Culhane and again in Wood, the First Circuit stepped

away from the generality in mortgage foreclosure casesbecause of the unusual position in

which a mortgagor finds him or herself. Culhane, 708 F.3d at 290. In Post Culhane Decisions

14In considering whether a plaintiff premises her claims on her own legal rights justifying her standing to sue,

Culhane considered whether she had to be a party or a third party beneficiary of the assignment as the Magistrate

Judge in Cosajays case opined.


29/54

on the MERS calendar, this Court routinely held that Culhanedid not apply to Rhode Island

assignment/foreclosure cases. In fact, on the last MERS calendar in decisions rendered by this

Court, it was held that homeowners/mortgagors did not have standing to challenge assignments.

It is ironic that on the very same day, the Memorandum and Order issued from the District Court.

What is critical to note is that Judge McConnell noted that the Culhaneand Woods

decisions were both based upon Massachusetts law but concluded that Rhode Island Law

provides that same dual basis for deviating from the General Contract Rule.15

The Cosajay

Court wrote as follows:

First, the First Circuit cited to Mass. Gen. Laws ch. 183, 21, which is theStatutory Power of Sale in Mortgage section. That section is of the samevein as Rhode Island General Laws 34-11-22, also called Statutory Powerof

Sale in mortgage, which provides a Rhode Island Mortgagor with the right

to insure that any foreclosure is done appropriately.16

. [I]n line with the

second basis the Culhane Court lists, Rhode Island Law also allows

foreclosures to take place without prior judicial authorization where a power

of sale clause exists in a mortgage. Therefore, the Court finds that Rhode

Island law provides that same protection to mortgagors in the same situation

in which the First Circuit found the Culhane and Woods plaintiffs under

Massachusetts law.

The Cosajay Court went on to address how the holding inBucci v. Lehman Brothers

Bankplayed into this decision. The District Court pointed out that the Bucci decision did

analyze the First Circuits Culhane decision holding that the MERS structure was appropriate

under Massachusetts mortgage law and found that holding reside[d] comfortablywithin the law

of our state as well. Id, 68, A.3d 1069, 1088 (R.I. 2013). The CosajayCourt, after analysis of

theBucciopinion and its commentary regarding Culhane, that While not an exact fie, the

Court is comfortable with the Rhode Island Supreme Courts acceptance of the Culhane

15See Cosajay Memorandum and Order at page 7, footnote 2.16Bucci v. Lehman Bros. Bank, FSL 68 A.3d 1069, 1085 (R.I. 2013)(finding that 34-11- 22 was enacted for the

purpose of establishing a uniform power of sale provisions that could be referred to with ease, if the parties so

desired.


30/54

decision vis--vis MERS, along with its own comparison of Massachusetts and Rhode

Island power of sale statutes, to determine that the Culhane analysis and outcome would be

the same under Rhode Island Law. [emphasis added]

The CosajayCourt also took the time to address the relationship of this case to the

Brough v. Foley, 525 A.2d at 922. It pointed out thatBrough v. Foleystood for the general

proposition that a party does not have standing to assert rights under a contract to which it is not

a party. It concurred with the Culhanedecision to step away from thisgenerality in mortgage

foreclosure cases because of the unusual position in which a mortgagor finds him or herself.

Culhane,708 F.3d at 290. This Court is bound to do the same and recognize that these are

conveyance cases and not straight contract cases and in each of these cases, the Plaintiffs, such as

Langer in this case, stands in the relative position of Broughin theBrough v. Foleycase.

Based upon this thoughtful, thorough and well-reasoned opinion, theCosajayCourt ruled

that Rhode Island Law provides the same protection to mortgagors in the same situations in

which the First Circuit found the Culhaneand Woodsplaintiffs under Massachusetts Law.17

In regard to the facts of Cosajay, the Court found that because she had challenged her

foreclosure on the ground that it was void due to an invalid assignment to a non-existent entity,

and the First Circuit in Culhane concluded that homeowners have a legally cognizable right to

protection against illegal foreclosures, she had demonstrated a a concrete and particularized

injury in fact, a causal connection that permits tracing the claimed injury to the defendants

actions, and a likelihood that prevailing in the action will afford some redress for the injury.

This is true in this case and in each and every case in which the MERS Court has ruled against

Mortgagor Plaintiffs. In fact, this Court never once took the time to look at the assignments to

determine whether or not they gave rise to a legally cognizable right to protection against illegal

17See CosajayMemorandum and Order at footnotes 4 and 5.


31/54

foreclosures. The Court simply said no-standing and ended its consideration of each and every

complaint at that stage. Each and every MERS Plaintiff has been short changed and endured

losses that never should have been visited upon them. The same is true for this client.

GENUINE ISSUES OF MATERIAL FACT EXIST THAT REQUIRE A DENIAL OF

THE MOTION FOR SUMMARY JUDGMENT

1. Under Rhode Island l aw unauthor ized and facially defective assignments are void.Rhode Island law clearly defines a void assignment in R.I.G.L. 34-11-1. At the outset, a

mortgage is a future interest in land and R.I.G.L. 34-4-11 governs its transfer. R.I.G.L. 34-4-

11 states:

Conveyance of contingent, executory, and future interests. A contingent, an

executory and a futur e in terest, and a possibility coupled with an interest, in any

tenements or hereditaments of any tenure, and a right of entry whether immediate

or future and whether vested or contingent, into or upon any tenements orhereditaments of any tenure, may be disposed of by legal conveyance or wi l l, but

no such disposition shall, by force only of this section, defeat or enlarge an estate

tail. [Emphasis added]

Since corporations, all lenders and banks, cannot dispose of mortgage interests by will,

their only alternative is to transfer or assign by conveyance. The only form prescribed by

R.I.G.L. 34-11-24 to convey a mortgage is an assignment. The prerequisites for effectuating a

conveyance are set forth in R.I.G.L. 34-11-1:

Conveyances required to be in writing and recorded. Every conveyance of

lands, tenements or hereditament absolutely, by way of mortgage, or on condition,

use or trust, for any term longer than one year, and all declarations of trusts

concerning the conveyance, shal l be void unless made in writ ing duly signed,

acknowl edged as hereinafter provided, del ivered, and recorded in the records ofland evidence in the town or city where the lands, tenements or hereditaments

are situated; provided, however, that the conveyance, if delivered, as between the

parties and their heirs, and as against those taking by gift or devise, or thosehaving notice thereof, shall be valid and binding though not acknowledged or

recorded. A lease for the term of one year or less shall be valid although made by

parol. Leases for terms of more than one year may be recorded with amemorandum of lease in writing rather than the original lease; provided,


32/54

however, that the memorandum shall contain the names of the parties to

be charged, a description of the real estate, the duration of the lease,

including renewal options and purchase options. [Emphasis added]

This statute defines a void assignment as one that does not meet the five prerequisites

mandated therein- the assignment must be in writing, duly signed, acknowledged, delivered and

recorded. In the previous example, it equates to the preposterous argument that a deed or bill of

sale executed by anyone other than the owner of the property attempting to convey title to the

property is imperfect and has a defect that can be cured. It would be void on its face without any

legal or binding affect.

Therefore, an assignment that is backdated, executed in blank, not duly executed or

executed by a party without authority constitutes a conveyance that is void not only because it is

a nullity and is unable, in law, to support the purpose for which it is intended but because it is in

violation of Rhode Island law, namely R.I.G.L. 34-11-1. It is critical to note that RIGL 34-

11-24 clearly provides that when an assignment takes place, the note follows the mortgage. It

can be read no other way. It clearly contemplates that that the mortgagee and note holder are

one in the same. It can be read no other way and makes it clear that when the note is assigned by

the note holder, the note holder must property, in satisfaction of the UCC, endorse and deliver

the note to the assignee. This is very simple yet to avoid a windfall for mortgagors, this Court

has gone to great lengths to avoid reaching this entirely logical and statutorily mandated

determination. For three years, it has failed to address the fact that there is a 2 ton elephant in the

room. Well the elephant is here and he must be dealt with and the statute dictates what must be

done with the elephant. There can be no more game playing relative to this statute. The time is

now to man up and accept what it says and what it compels.


33/54

The alleged assignment at issue in this case from MERS to Aurora is void as a matter of

law, not only because it does not comply with 34-11-2418

, but because it is self-limiting by its

very language. This statement requires a brief explanation. This alleged assignment, called a

Corporate Assignment, is not a corporate assignment at all. From its face it is clear that it was

prepared by Aurora Loan Services. It is clear, therefore, that the alleged assignee has prepared

the assignment. It is allegedly signed by Jan Walsh as a Vice President of MERS. The affidavit

in support of this Motion for Summary Judgment does not offer any evidence that Jan Walsh is a

Vice President of MERS. The Plaintiff is sure that this Court will attempt to cure this obvious

evidentiary defect by ruling that the Notarization of the signature somehow proves that Jan

Walsh is a Vice President of MERS. If this is true, the Courts attention is drawn to the Notary

Clause which states that Jan Walsh is the Vice President. It does not indicate what he or she is a

Vice President of MERS or of the Kiwaniss club of Scotts Bluff, Nebraska. This court has

made up law that assignments which are notarized are presumptively valid. This is not supported

by the Rhode Island Conveyance Statute, 34-11-1, which contains conditions precedent that

must be met for an assignment to be valid. Clearly, since Jan Walsh does not sign as Vice

President, this Court cannot conclude that he or she is a Vice President of MERS. This being

the case, this becomes a genuine issue of material fact.

Further, this is not a MERS Corporate Assignment. This alleged assignment is not signed

by MERS in its corporate capacity but in a nominee capacity solely as the nominee of

Homecomings Financial Network, Inc. There is no language to the effect that the MERS was

assigning on behalf of Homecomings, its successors and assigns. It was attempting to assign on

behalf of Homecomings only. That is what the document says. This Court must read the

18MERS cannot comply with 34-11-24 because it does not own or hold the note and is not owed the indebtedness.

MERS has made multiple judicial admissions of this fact.


34/54

document as written and not add terms to it or modify it based upon it past rulings and rationale.

Furthermore, Homecomings Financial at the time of the alleged assignment Homecomings was

in Bankruptcy (where) Docket No. MERS was, therefore, the nominee of no one when this

alleged assignment was executed and recorded rendering the alleged assignment void for this

reason as well. Further the 1995 MERS Corporate Seal is misleading to say the least. The 1995

version of MERS (MERS 1) was absorbed into (MERS 2) in and was no longer in existence

when this alleged assignment was signed. The 1995 seal amounts to fraud by the party that

affixed it to the alleged assignment.19

It is akin to a former Notary continuing to Notarize

19There were 3 companies all named Mortgage Electronic Registration Systems, Inc.created between 1995-1999 and MERSCORP, Inc. which absorbed 2 of them including thetrademark MERS which was used for the system; MERSCORP, Inc. created MortgageElectronic Registration Systems, Inc. (III) with the acronym MERS (not to be confused withthe trademarked MERS) and this is the strawman entity in the mortgages with noemployees or assets; the banks were all members of MERSCORP, Inc.not MortgageElectronic Registration Systems, Inc. (III), but the bank employees were actually working forMERSCORP, Inc. under the guise of (III); and that there was no disclosure to thehomeowner of MERSCORP, Inc. who appears in the contracts with the homeowner andinvestors as the MIN# which does not belong to (III) but belongs to MERSCORP, Inc.

DETAILS:

There were three (3) Mortgage Electronic Registration Systems, Inc.(s) created = (I), (II),(III).

Mortgage Electronic Registration Systems, Inc. (I) originally formed in about 1995,registereda trademark in 1997 and MERS and conveyed a security interest to Nationsbank, N.A.(Bank of America) on or about June 1998; that was followed by the creation ofanother Mortgage Electronic Registration Systems, Inc. (II) which was also created on or

about June 30, 1998 and per the Hultman Declaration merged with Mortgage ElectronicRegistration Systems, Inc. (I);

Then there was a name change of name Mortgage Electronic Registration Systems, Inc. (II)to MERSCORP, Inc. on or about December 1998 which was to become effect as of Jan1999. See the documents onDeadlyClear http://deadlyclear.wordpress.com/2011/10/11/mers-vs-merscorp-looks-like-they-are-one-in-the-same/ ;


35/54

documents using his old seal. Certainly this Court would never countenance this type of

behavior.

So what to the untrained eye seems to be a valid assignment is a conglomeration of false

and impossible statements rendering it void as a matter of law.

Further, the Court must take judicial notice of the fact that attorney generals of forty-nine

(49) states, Rhode Island included, launched a probe to investigate allegations of fraudulent

This means that the MERS belongs to MERSCORP, Inc. and it became the system thatwas licensed for members use.

Shortly after the name change MERSCORP, Inc. created yet another Mortgage ElectronicRegistration Systems, Inc. (III) (per Hultman) which is the Mortgage Electronic RegistrationSystems, Inc. (strawman) in the mortgage contracts (not MERSCORP, Inc. and theMERS reference in the mortgagesis just an acronym (not the registered trademarkMERS)., MERSCORP, Inc. is in the mortgage contracts but not disclosed to theborrower - the MIN # belongs to MERS the system not the strawman MortgageElectronic Registration Systems, Inc. (III).

The Trademark Documents (can be found in thePost http://deadlyclear.wordpress.com/2011/10/28/complaint-state-of-delaware-v-merscorp-inc-go-go-beau/ it is too large to email) that were used in a lawsuit against a Californiacompany help to support the timeline this scenario wasnt used by the CA defendant I

think it was so convoluted nobody ever figured it outit was likely meant to be confusing onpurpose.

REGISTRATION NO: 2084831 SERIAL NO: 75/031300 MAILING DATE: 08/29/2007REGISTRATION DATE: 07/29/1997MARK: MERSREGISTRATION OWNER: MERSCORP, Inc.

Bottom-line is that there were 3 Mortgage Electronic Registration Systems, Inc., 2 wereabsorbed by MERSCORP, Inc., and the acronym MERS in the mortgages is the strawmanMortgage Electronic Registration Systems, Inc. (no employees or systems, shell) - notMERSCORP, Inc.s MERS.

There are no records of agreements, contracts, licensing, or assignments of license thathave been filed in any business records in DE, NY, MI or Virginia or the patent office that Ihave searched or been able to find so far that link the Strawman to theMERS. http://deadlyclear.wordpress.com/2011/10/11/mers-vs-merscorp-looks-like-they-are-one-in-the-same/


36/54

behavior of lenders throughout the United States. After the states began their investigation in

this case, they partnered with the U.S. Justice Department, the Treasury Department, and the

Department of Housing and Urban Development and state banking commissioners who

conducted thorough examinations of mortgage servicers under their jurisdiction. The

investigation resulted in the National Mortgage Settlement Agreement which is the largest

consumer settlement agreement in history. It was entered into by the nations largest lenders and

mortgage servicers. The Settlement Agreement acknowledges the existence of robo-signers and

fraudulent documents signed by employees of mortgage servicing companies hired by the large

mortgage lenders and banks.

The signer of the assignment in this case is an obvious robo-signer. Robo-signing is

legally deficient because a contract requires intent to contract which includes an offer and an

acceptance. As a robo-signer, he did not have the requisite intent to contract on behalf of the

lender. The act of robo-signing, putting pen to paper, does not result in a duly executed

document under R.I.G.L. 34-11-1. Robo-signers are nothing more than mercenaries hired for

the sole purpose of eliminating the mandates of R.I.G.L. 34-11-1 as discussed above. These

lenders were required to pay over 25 billion dollars to compensate states and homeowners for

their wrongdoing. It is unbelievable that this very Court, on the record, stated last week that it

did not know what a robo-signer is, this despite being provided with a plethora of information to

allow this Court to become informed. The General Public knows what a robo-signer it. It is

scary to hear from the MERS Court that it does not. (Robo-signing was written about in

Culhane. If this Court does not know what robo-signing is, does it not follow that it did not read

Culhane?


37/54

The First Circuit Court of Massachusetts in Culhane v. Aurora Loan Servs. of Neb.,708

F.3d 282, 291 (1st Cir. 2013) also expressed its distaste for the assignment signing process. The

Court although deeply troubled by this continuous habit of robo-signing, stated that it was

constrained by M.G.L. ch.183 54B. The Court held that M.G.L. ch.183 54B does not require

proof of the signer's actual authority to act on behalf of the mortgagee; nor does it require the

signer to attest to the truth and accuracy of the assignment of his personal knowledge. This Court

is not constrained by M.G.L. ch.183 54B because Rhode Island has no such statute that even

resembles M.G.L. ch.183 54B. In fact, R.I.G.L. 34-11-36 allows for a party to challenge an

acknowledgment on any conveyancing document. R.I.G.L. 34-11-36 states:

Defective acknowledgments.Any acknowledgment of or upon any

instrument used in conveying, directly or indirectly, any interest in real estate

in this state, including power of attorney, where the instrument has been onrecord for a period of ten (10) years, shall be construed to be a valid

acknowledgment in accordance with the requirements of chapter 12 of this

title; provided, nevertheless, that if, within the period of ten (10) years, aproceeding is commenced in superior court relative to the validity of the

acknowledgment, and a notice of lis pendens is duly recorded and indexed

with the appropriate records of land evidence, the instrument shall be subject

to the further order of the court involved in any such proceeding.

Therefore, this Court is bound by Rhode Island law and not Massachusetts General Law

54B.

R.I.G.L. 34-11-1 renders each and every assignment executed by a robo-signing flim-

flam person void. Robo-signing is the very practice that R.I.G.L. 34-11-1 was designed to

prevent.

In addition, in furtherance of Plaintiffs position the assignment of mortgage is void, the

Defendants did not comply with the requirements of R.I.G.L. 34-11-24 which states:

34-11-24 Effect of assignment of mortgage. An assignment of mortgagesubstantially following the form entitled "Assignment of M ortgage" shall , when


38/54

duly executed, have the force and effect of granting, bargain ing, transferr ing

and maki ng over to the assignee, his or her heir s, executors, admin i